State of Louisiana v. Kendrick Nelson Shepherd

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-135

STATE OF LOUISIANA

VERSUS

KENDRICK NELSON SHEPHERD

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 16635-18
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

************
LEDRICKA J. THIERRY
JUDGE
************

Court composed of Gary J. Ortego, Ledricka J. Thierry and Guy E. Bradberry,
Judges.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

Stephen C. Dwight, District Attorney for Calcasieu Parish
Karen McLellan, Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

G. Paul Marx
Louisiana Appellate Project
P.O. Box 82389
Lafayette, LA 70598
(337) 237-2538
COUNSEL FOR DEFENDANT/APPELLANT:
Kendrick Nelson Shepherd

THIERRY, Judge.

FACTS AND PROCEDURAL HISTORY

On July 26, 2018, Defendant, Kendrick Nelson Shepherd, entered a Valero

Gas Station/Smoker’s Haven Convenience Store located on Belden Street in Lake

Charles, Louisiana. As the cashier opened the cash register, Defendant struck him

in the head with a beer bottle. While the cashier was lying on the floor, Defendant

reached over the counter and removed money from the register. He then stood over

the fallen cashier and demanded more money. After going to the back of the store,

Defendant fled the scene. The events were captured on video surveillance.

Defendant was seen on the video wearing a white top and blue shorts.

Several days later, another robbery was committed at a nearby Exxon Gas

Station and the perpetrator was also wearing a white top and blue shorts. That

robbery was also captured on video.

On August 4, 2018, Defendant was observed in the area wearing the same

blue shorts as observed in both videos. He was arrested by law enforcement. During

an interrogation, the police contended Defendant acknowledged that it was him in

still shots he was shown from the Valero robbery and confessed to that robbery.

Defendant denies on appeal that he confessed to the crime.

On September 17, 2018, Defendant was charged by bill of information with

one count of armed robbery, a violation of La.R.S. 14:64. On April 10, 2019, upon

Defendant’s motion, the trial court appointed a sanity commission to determine

Defendant’s capacity to proceed. This order appointed Dr. James Anderson and Dr.

Patrick Hayes to serve on the sanity commission. Thereafter, on October 23, 2019,

the trial court appointed Dr. Andrew Thrasher to the sanity commission. On July 1,

2020, Defendant was found competent to proceed. On March 28, 2022, Defendant

filed a motion for the appointment of a second sanity commission to determine his

capacity to proceed. The trial court denied the motion on that same date. On April

28, 2022, Defendant changed his plea from not guilty to not guilty and not guilty by

reason of insanity. Subsequently, after a six-day trial ending on May 6, 2022,

Defendant was found guilty of armed robbery by a unanimous jury.

The trial court denied a motion for new trial filed by Defendant. At the

sentencing hearing, the State filed a habitual offender bill, charging Defendant as a

fourth or subsequent habitual offender, to which Defendant entered a denial. The

minutes of August 19, 2022, indicate the trial court found Defendant to be a habitual

offender and sentenced Defendant to life imprisonment, without benefit of

probation, parole, or suspension of sentence. On September 1, 2022, the trial court

granted Defendant an appeal.

On appeal, Defendant alleges five assignments of error—one challenging the

sufficiency of the evidence, one asserting the admission of improper expert

testimony, one challenging the trial court’s failure to grant a mistrial after the

admission of improper other crimes evidence, one challenging the trial court’s

improper questioning of Defendant about his right to testify, and one challenging the

trial court’s adjudication of Defendant as a fourth habitual offender.

ERRORS PATENT

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

court for errors patent on the face of the record. After reviewing the record, we note

that both the minutes of sentencing and the cover page for the sentencing hearing

refer to the sentencing as a “resentencing.” It is clear from the record as a whole,

however, that no other sentence was imposed. On the day of the jury’s verdict (May

6, 2022), the trial court scheduled sentencing for July 8, 2022. At the hearing on

July 8, 2022, Defendant’s motion for new trial was argued by counsel and denied by

the trial court. The State then filed a habitual offender bill of information, and a
2

habitual offender hearing was scheduled for August 19, 2022. The habitual offender

hearing was held and Defendant was sentenced on August 19, 2022. It is apparent

from the dates set by the trial court, and the dates on which the habitual offender

hearing and sentencing actually took place, that no other sentencing took place

before the August 19, 2022 sentencing. Thus, both the minutes and the cover page

of the August 19, 2022 sentencing mistakenly refer to the hearing as a

“resentencing.” Accordingly, this court orders the trial court to correct the minutes

to delete the reference to the sentencing as a “resentencing.”

Additionally, the minutes for August 19, 2022, state that the case was

remanded from the Louisiana Third Circuit Court of Appeal. This court has no

record of a remand for resentencing in this case, and with the fact that the August

19, 2022 sentencing hearing took place within three and one-half months of

Defendant’s conviction, there was not sufficient time for the case to have been

lodged in this court and subsequently remanded. Accordingly, the minutes of

sentencing should be amended to delete the statement that the case was remanded

from the Louisiana Third Circuit Court of Appeal.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant asserts the State failed to prove his

identity as the perpetrator of the armed robbery for which he is charged and of the

armed robbery that occurred a few days later. According to Defendant, no

eyewitness identified him, and there was no formal process to establish

identification. The State maintains it negated any reasonable probability of

misidentification.

Standard of Review

In reviewing the sufficiency of evidence, this court has set forth the standard

of review as follows:
3

When the issue of sufficiency of evidence is raised
on appeal, the critical inquiry of the reviewing court is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel.
Graffagnino v. King, 436 So.2d 559 (La.1983); State v.
Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393
So.2d 1212 (La. 1981). It is the role of the fact finder to
weigh the respective credibilities of the witnesses, and
therefore, the appellate court should not second guess the
credibility determinations of the trier of fact beyond the
sufficiency evaluations under the Jackson standard of
review. See Graffagnino, 436 So.2d at 563, citing State v.
Richardson, 425 So.2d 1228 (La.1983). To obtain a
conviction, the elements of the crime must be proven
beyond a reasonable doubt.

State v. Thacker, 13-516, p. 5 (La.App. 3 Cir. 1/28/15), 157 So.3d 798, 804 (quoting

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

The State is required “to negate any reasonable probability of

misidentification” when the key issue in a case is the defendant’s identity. State v.

Hughes, 05-992, p. 5 (La. 11/29/06), 943 So.2d 1047, 1051 (citing State v. Weary,

03-3067 (La. 4/24/06), 931 So.2d 297, cert. denied, 549 U.S. 1062, 127 S.Ct. 682

(2006); State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649, cert. denied, 535 U.S.

940, 122 S.Ct. 1323 (2002)). However, “[p]ositive identification by only one witness

is sufficient to support a conviction. It is the factfinder who weighs the respective

credibility of the witnesses, and this court will generally not second-guess those

determinations.” Id. at 1051 (citations omitted).

Evidence Presented at Trial

The first witness to testify was the cashier and victim at the Valero, Ishan

Kahn Silwal. The victim described the incident that took place on that date as

follows:

The guy had walked in. There was another guy that came after
him, and he took his stuff and I did his transaction; but then I had the -
4

- I was on the counter and putting my money inside the register,
whatever the other person had given me. At that time somebody came
around the table, struck me with a beer bottle, and I instantly fell to the
ground.

He took all the money from the register and stuff that was change
from the bag and demanded me [sic] for more money, for which I
responded with, go to the cooler. Then he went for the cooler, that’s
when I got up and tried to call the police. Then he ran away from the
store.

The victim identified S-1 as a surveillance video that accurately depicted the

robbery. The video was then played for the jury. The video clearly shows the robber

going behind the cash register, hitting the cashier with a bottle, quickly gathering

items, and then walking away while carrying stuff in his hands. The video offered

a clear view of the robber. On cross-examination, the victim did acknowledge that

he saw “quite a few” guys wearing gym shorts while he worked at Valero.

Sergeant Dustin Gaudet testified that on the day of the robbery, he was a

violent crimes detective with the Lake Charles Police Department. According to

Sergeant Gaudet, he became involved in the robbery that occurred on July 26, 2018,

at the Valero. When Sergeant Gaudet arrived at the scene around 7:00 a.m., he

learned the following from another detective:

So I learned that about six in the morning a vehicle pulled up to the gas
station. One subject got out of the gas station [sic] and went inside. He
walked around for a bit with another customer was in there [sic] at the
same time. The two of them walked around.

The suspect in particular went back to the cooler and got a large
beer bottle and continued to walk around until the actual customer left.
Then the suspect, holding the beer bottle, walked behind the counter,
struck the clerk in the head, and then took money from the register, took
a bag that contained about $300 in change from behind the register, and
also took some cartons of Kool cigarettes.

Sergeant Gaudet testified that he reviewed the surveillance video but was not

immediately able to identify a suspect. The sergeant put out a bulletin and a media

release asking for help identifying the subject. The bulletin contained pictures of the

5

suspect obtained from the surveillance video. Shortly after the bulletin and media

release were issued, Sergeant Gaudet left for vacation. Upon returning, he learned

that an arrest had been made. On cross-examination, he agreed that blue gym shorts

are a common garment.

Corporal Chad Smith, with the Lake Charles Police Department, was “dealing

with another incident” on July 26, 2018, when he was flagged down and told the

robbery had occurred. Corporal Smith went inside the store and found the clerk

sitting behind the register holding his head. The corporal learned that the robbery

had just occurred and that the suspect had left. Corporal Smith identified State’s

exhibits four through nine as photos that fairly and accurately depict the scene as he

remembered. When asked if there was anything in the picture of the suspect that

stuck out to him, Corporal Smith replied that the suspect was wearing a white shirt

and “like royal blue gym or basketball shorts.”

A few days later, on July 31, 2018, Corporal Smith investigated another

robbery that occurred at the “Grab-N-Geaux” Exxon on North Martin Luther King.

When asked what he learned upon arriving at the scene of the second robbery,

Corporal Smith replied:

I learned that there had been an altercation between the clerk and
the suspect; and after the altercation went on for a few minutes, the
suspect fled on foot. We learned that he was also wearing the same
type of blue gym shorts as the robbery I had worked just four or five
days prior to.

On cross, Corporal Smith testified that the suspect in both robberies was

“similar, with similar figure, similar clothing.” When asked if he testified on direct

“that it was specifically the same blue shorts[,]” Corporal Smith replied:

A. Yes.

Q. Similar blue shorts, and that’s how you identified both subjects?

A. Yes.
6

On re-direct, the following colloquy took place:

Q. I just have one question for you. Was it just the shorts that kind
of led you to believe that these were the same suspects, or were there
other features that you were able to distinguish?

A. The suspect’s total appearance was similar. The shorts stood out
mostly.

Q. But there were other things outside of just the blue shorts?

A. Yes.

The next witness, Biplop Shrestha, testified that he was working at the Exxon

on North Martin Luther King that was robbed a few days after the Valero robbery.

Mr. Shrestha described the incident as follows:

Well, it was like a normal day. I was taking customers. Then
suddenly there was a guy who tried to snatch the money from the
register. I tried to get his hand away, but instead he came towards me
inside the counter and there was some struggle with him and I. Yeah.
He was trying to snatch the money from out of the register, but I
was trying to block him. Then I was trying to get some help from
around just calling somebody, but nobody responded. Then the guy left
from going outside to the counter.

Mr. Shrestha identified S-10 as the surveillance video from the day of the

robbery, and the video was then introduced to the jury. When asked if he recognized

“this guy[,]” Mr. Shrestha answered, “I don’t remember his face.” Mr. Shrestha did

not remember if he told police that the “guy” matched the description he had seen

previously.

The next witness, Corporal Ryan Gaspard of the Lake Charles Police

Department, testified that he was involved in Defendant’s arrest on August 4, 2018.

Corporal Gaspard testified:

I took the Enterprise exit from I-10. Coming into work from my
house I travel down Louisiana Avenue. When I turned down Louisiana
Avenue, I see two subjects walking in the middle of the roadway.

7

Initially I was about to stop them whenever I recognized the blue shorts
and the build of one of the subjects, Mr. Sheppard.[1]

I decided not to stop him. He’s a robbery suspect, so I decided
to call for additional units. I made the block, radioed for Officer Smith.
I believe he advised he was several minutes away, so I was going to
wait for him.

When asked how he recognized the suspect, Corporal Gaspard responded:

A. His shorts stand out pretty good, blue, black trim with some
lighter color around the black and his build, fairly skinny.

Q. And what did you recognize those things from prior to that day?

A. The BOLO, the intelligence bulletin.

Corporal Gaspard explained that BOLO means “[b]e on the lookout, an email sent

out with pictures and details.” Corporal Gaspard identified S-11 as the shorts

collected from Defendant the morning he was arrested.

Corporal Gaspard further explained Defendant’s arrest:

A. Like I said, after recognizing he was the possible robbery
suspect, I didn’t want to go on that one by myself. I make [sic] the
block to Bank and Belden and waited there for backup to arrive.

Mr. Shepherd and, I don’t know the other subject’s name with
him, they went to the back of the store. It looked like they saw me, and
they parted ways. Mr. Shepherd went towards the back of the store.
The other subject went inside. At that time I decided to go out with
them so I wouldn’t lose sight of them.

Q. You made contact with Mr. Shepherd?

A. Correct.

Q. Please tell the jury about once you made contact with Mr.
Shepherd what happened?

A. So I made contact with him. I had him place his hands on the
hood of my police unit, patted him down for weapons. He was fairly
compliant. I wanted to detain him. I told him to place his hands behind
his back.

As soon as I did that, he took off running. He fled on foot
eastbound over Louisiana Avenue into a vacant lot. I deployed my taser

1
This is the spelling used by the court reporter.
8

only striking him with one dart, which was ineffective. I reloaded. At
which time he stumbled. I told him don’t get up or he’s going to get
tased again. He said okay, and then took off running again; at which
time I tased him. It was effective, and I put him in handcuffs.

When asked if Defendant said anything in the ride to the detective’s division,

Corporal Gaspard testified:

A. I asked him if he was aware of why I stopped him, if any of the
other officers had mentioned anything to him. To which he replied, no.
I asked him if he could take a guess; and he said because of the
robberies.

Q. Then what was your response to that?

A. I don’t recall the response to that exactly. I asked him why he
would return to one of the stores that he had originally robbed. To
which he said, I believe, [“]I’m homeless and it’s hard out here.[”]

When questioned about the subject’s blue shorts on cross-examination,

Corporal Gaspard agreed that there are probably thousands of those same shorts.

Although he had no idea how many were in Lake Charles, Corporal Gaspard agreed

that it could be hundreds. Finally, when asked on re-direct if there was anything else

besides the blue shorts that helped him recognize Defendant, Corporal Gaspard

replied, “His build was fairly skinny and appeared to be average height.”

Detective Sergeant Willie Fontenot testified that he was a violent crimes

detective in 2018. On July 31, 2018, Sergeant Fontenot investigated a robbery that

occurred on North Gerstner Memorial Boulevard. When asked what he learned

about the robbery, Sergeant Fontenot testified:

Throughout the course of the robbery, I was able to obtain video
surveillance. I was able to read the initial officer’s statement. The
initial officer had just indicated in his report that whenever they were
dispatched out there, a suspect entered the convenient store. He had on
a white T-shirt. He had some blue basketball shorts on, some tennis
shoes.

The subject went to the back of the store. He obtained a
honeybun, walked back up to the counter; and once he got to the counter
to purchase it, the clerk opened the cash register.

9

At that particular point in time the suspect jumped over the
register and there was an altercation that occurred where the suspect
was able to obtain approximately $400 in cash; and at that particular
point in time, he was able to run out of the store northbound on Gerstner
Memorial.

While the officers obtained video surveillance, the store clerk indicated that

he recognized the robbery suspect from a media post regarding the July 26, 2018

robbery. The clerk told the officer that the robber was the same person that

committed the July 26, 2018 robbery. When asked his impression after viewing the

surveillance videos of each robbery, Sergeant Fontenot answered:

Definitely many similarities. They both had on the same
clothing; both had on blue shorts; both had the same tennis shoes; and
the subject appeared to be the same person, as well as multiple tattoos
throughout the arms and face.

On August 4, 2018, Sergeant Fontenot was informed that near the area of the

first robbery, Corporal Gaspard observed a black male, wearing blue shorts and

matching the description of the suspect in the two previous robberies. Corporal

Gaspard identified the male as Kendrick Shepherd.

Sergeant Fontenot identified S-12 as his interview of Defendant, whom

Sergeant Fontenot identified in court. Although the entire interview was introduced

into the record, only a portion of the transcript was published to the jury. During the

interview, Defendant said he was homeless. Sergeant Fontenot informed Defendant

that he was approached by police at 5:00 that morning because he matched the

description of the person who committed a robbery at that same location. When

asked what happened during the robbery at that same location on July 26, 2018,

Defendant stated that he did not remember and that all he knew was that he was

homeless and needed to get anything he could by any means.

When Sergeant Fontenot showed Defendant a still picture of the robbery

suspect and asked if that was him, Defendant stared at the picture but did not

10

respond. When asked again what he did in the store that day, Defendant said he did

not remember but that his intention was only to get money to get something to eat.

Defendant said that he was not robbing someone but was just trying to get something

to eat. When asked if he got the beer bottle so he could get money whenever the

clerk opened the register, Defendant nodded his head, saying “Yeah, yeah.”

Defendant denied that he intended to hit the clerk and claimed that his intention was

only to get the money to survive. Defendant said his intention was not to hurt

anyone.

Sergeant Fontenot then asked Defendant about the robbery that happened a

few days later at an Exxon station. Defendant stated that he did not remember that

robbery. When Sergeant Fontenot showed Defendant pictures and asked if that was

him, Defendant nodded slightly. Defendant reiterated that he was not trying to harm

anyone but had nowhere to go.

Defendant agreed with Sergeant Fontenot that there were victims as a result

of the robberies. Sergeant Fontenot told Defendant that when he jumped over the

counter and hit the clerk over the head with a bottle, he looked like some kind of

animal. Defendant responded that he was an animal and had no one to help him.

Defendant said that his girlfriend knew he was homeless but did not know that he

had been “pulling these little acts” to try to eat. When Sergeant Fontenot asked

Defendant if his girlfriend knew about the robberies, Defendant stated that hardly

anyone knew.

When Sergeant Fontenot asked Defendant the identity of the other person in

the pictures, Defendant stated that it was “G.” Defendant said he met “G” about six

months ago. Defendant told Sergeant Fontenot that “G” picked him up before the

robbery. When Sergeant Fontenot asked Defendant if he got into the car with “G”

after the robbery, Defendant said “yes.” Defendant said “G” told him to get in, and
11

they “burned off.” Defendant told Sergeant Fontenot that “G” pulled a gun on him

before they went into the store.

When asked why he ran from police that morning, Defendant said he did not

run, he walked. Defendant said he did not want to go to jail. When Sergeant

Fontenot asked if he knew why he was being detained, Defendant said, “No.”

Sergeant Fontenot asked Defendant if he knew it was for the robberies, and

Defendant responded that in actuality, “they” did not know who committed the

robberies. When Sergeant Fontenot said, “Your face was on the damn camera,”

Defendant responded, “But you didn’t know my name.” Defendant said he had been

doing these “acts” to try to get some help. When asked if he had done more than

these two, Defendant replied, “No.” Defendant said he knew it was not right.

Defendant claimed it was the only way he knew to cope. Defendant agreed that he

showed violent tendencies by hitting the clerk in the head with a bottle.

At trial, Sergeant Fontenot identified Defendant as the person he interviewed

on August 4, 2018. On cross-examination, Sergeant Fontenot agreed that during the

interview, Defendant was “laying down on the table and not really responding to

much[.]” When asked if Defendant identified the person in the pictures, Sergeant

Fontenot responded, “He just nods his head. He never acknowledged.” Finally, on

re-direct, the following colloquy occurred:

Q. The Defense asked you when you showed him the photo did he
acknowledge whether or not that was him or not?

A. Yes, sir.

Q. You said he nodded his head.

A. Yeah, he nodded.

Q. But then after that, did he admit and talk about it?

A. He made it very clear that that was him in the pictures, yes, sir.

12

Q. And that he admitted it?

A. Yes, sir.

....

Q. So after you show the photos, he does speak about these
robberies.

A. Yes, sir.

Q. And committing them.

A. Yes, sir.

The final witness to testify was Dr. Patrick Hayes, an expert in the field of

psychiatry and forensic psychiatry. Dr. Hayes testified that Defendant was not

insane in the courtroom and was not insane at the time of the offense.2

Defendant’s Argument in Brief

Defendant contends the “identification in this case is based on vague

references to video and Mr. Shepherds [sic] ambiguous replies to questions and

comments by police.” Defendant argues:

Fontenot’s testimony made it sound clear and conclusive, as if
there was a full confession. However, in the actual video of the
interview, there is no clarity (Exhibits Introduced At Trial – S-12). In
fact, the interview suggests that Mr. Shepherd is exhausted, denies the
robberies, says he doesn’t know about them and then tells Fontenot how
hard being homeless and broke has been. Mr. Shepherd was making
excuses for his drug abuse, but police used his failure to vigorously
deny to suggest he was confessing. But it was not that, despite officer
Fontenot claiming body language and a failure to deny made the
statement inculpatory.

Defendant notes that Sergeant Fontenot was allowed to testify over defense

counsel’s objection that Defendant “made it clear” during the interview that he

committed the robberies. Defendant maintains this allowed the State “to have the

detective embellish the video by saying Shepherd spoke about the robberies and

2
Although Dr. Hayes testified at length, his testimony is not relevant to the issue of
Defendant’s identity. The purpose of Dr. Hayes’ testimony was to rebut Defendant’s plea of not
guilty by reason of insanity.
13

committing them.” According to Defendant, “[t]his prejudicial re-interpretation

misled the jury and is inconsistent with the recorded statement, which was not nearly

as conclusive as the witness claimed.” Defendant concludes:

What happened in this case is the white shirt blue shorts were the
only evidence. Once police found somebody with that very common
outfit, they pushed to convict Mr. Shepherd. A very groggy and tired
Kendrick Nelson Shepherd spoke about his problems as a homeless
man and a drug addict, which the state interprets in this case as a
confession. That is an unreasonable stretch

State’s Argument in Brief

The State asserts that even though the victim of the July 26, 2018 robbery

could not identify Defendant at trial, the victim identified a video (S-1), which

clearly showed Defendant robbing him. As the State asserts, this video, which was

not fuzzy or grainy, was shown to the jury. Defendant was arrested, the State

contends, when Corporal Ryan Gaspard saw Defendant walking in the middle of a

roadway and recognized him as the robbery suspect. Corporal Gaspard recognized

the blue shorts Defendant was wearing as the same shorts the robbery suspect was

wearing. Additionally, Corporal Gaspard recognized Defendant’s build as fairly

skinny. As the State also notes, Corporal Gaspard told the jury that on the way to

the police station, Defendant guessed that he was being detained because of the

robberies. The State further contends:

Once at the police station and confronted with the still shots of the
robbery, the defendant nodded his head in acknowledgment that he had
committed the robbery. He confirmed that he got the beer so that when
the cashier opened the register he could grab the money. He states that
it is not his intention to hurt anyone, but just to get enough to survive.

The State further contends that the shorts worn by Defendant during the

robbery and later when he was arrested were unique shorts with identifying

characteristics.

14

Analysis

As previously stated, Defendant challenges the proof of his identity as the

perpetrator of the July 26, 2018 robbery. We find this claim has no merit. The jury

saw the video surveillance of the robbery, which clearly showed the robber’s face,

clothes, and build. The jury also saw Defendant’s video recorded interview. Thus,

the jury was able to make its own determination as to whether the same individual

was in both videos. Additionally, the jury heard Corporal Gaspard testify that he

arrested Defendant because he recognized the clothes he was wearing and his build

from the “BOLO” sent out after the robbery. The jury then heard Corporal Gaspard

testify that Defendant fled when told to place his hands behind his back. Once in

the police unit, Corporal Gaspard told the jury, Defendant guessed that he was being

arrested because of the robberies.

Finally, the jury watched Defendant’s police interview, wherein Defendant

did not deny committing the robbery and offered the excuse that he was homeless

and needed to get anything he could by any means. Although Defendant claimed to

not remember what happened during the robbery, Defendant also stated that his

intention was to get money for food. When confronted with the fact that there was

a victim in the robbery, Defendant agreed and explained that he attempts to go in

and out, without bothering anyone. Defendant acknowledged that he showed a

violent tendency by hitting the clerk in the head with a bottle. Defendant further

explained that his girlfriend knew he was homeless but did not know that he had

been “pulling these little acts” to try to eat. Lastly, after identifying the other person

in the video leading up to the robbery, Defendant answered “yes” when Sergeant

Fontenot asked if Defendant got in the car with this person after the robbery.

Considering the foregoing, we will not second guess the jury’s finding that

the state negated “any reasonable probability of misidentification” that Defendant
15

committed the robbery in question. Accordingly, this assignment of error lacks

merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment, Defendant contends the trial court erred in “overruling

objections to a jail psychologist testifying as an expert and in a narrative including

comments on video evidence.” The expert in question was Dr. Patrick Hayes, who

was qualified as an expert without objection. Defendant further contends Dr. Hayes

gave his opinion on key issues in the case.

Defendant takes issue with various parts of Dr. Hayes’ testimony. First,

Defendant notes that Dr. Hayes was a member of the sanity commission and

employed by the Calcasieu Parish Sheriff’s Department as the Clinician in Charge

at the Calcasieu Correctional Center. Although Dr. Hayes initially evaluated

Defendant’s capacity to assist in his defense, Dr. Hayes testified at trial regarding

Defendant’s mental state at the time of the offense and at trial.

Additionally, Defendant asserts that Dr. Hayes used examples of the dramatic

behavior of other defendants in court to illustrate to the jury what incompetence

looked like. According to Defendant, Dr. Hayes “insisted that the wild animal in a

court room was the best way to determine sanity at the time of the crime.” Defendant

argues that “Dr. Hayes misled the jury with horror stories of madmen in court, as if

that is the only basis for forensic insanity.”

Defendant concludes his argument in this assignment of error as follows:

[H]e narrated the actual video of the crime, leading off with “as
Kendrick approached, just watch his behavior”, thereby telling the jury
the man in the video was the defendant. This testimony solidified the
state’s theory by having an expert take the role of the jury and observing
that the state was right about identity and sanity. All despite the actual
diagnosis of normal mental health in “a controlled environment”, and
his caveat that “. . . only sobriety is required to preserve durable
competency throughout the court process”. The bias is most dramatic

16

in this excerpt from the narration of the first Robbery and the
identification provided by the doctor to the jury:

He places the beer on the counter. Mr. Shepherd is left
handed. You can tell from it from [sic] the interview video
later. So it does appear that he looks at the doors. Looks
up at the top of the screen. At a minute 40 there, it looks
like he’s glancing at the door he entered through. Now
watch the left hand. So it flips over in preparation for the
cash drawer to be opened. So pause it there for me. That’s
important because again, back to the gentlemen that is a
wild beast in the room and he doesn’t know what’s going
on.

It would be hard to find a more prejudicial expert witness testimony. It
is not in fact a discussion of Mr. Kendrick Nelson Shepherd’s mental
health so much as it is a narrative to resolve for the jury the lack of
identification evidence and to pre-empt any discussion of insanity at the
time of the offense. The state’s last minute surprise use of this biased
witness was unfair and unexpected, since Haney [sic] had done only an
evaluation for whether Mr. Shepherd could understand the trial process.

State’s Argument in Brief

The State notes that Defendant never objected to Dr. Hayes’ manner of

testimony. According to the State, there were no objections that Dr. Hayes

overstepped his area of expertise, went beyond the scope of his expertise, or

expressed an opinion as to Defendant’s guilt or innocence. Therefore, the State

contends, Defendant waived review of these claims.

Addressing the merits of Defendant’s claim, the State notes that four days

before the commencement of trial, Defendant was allowed, over the State’s

objection, to withdraw his plea of not guilty and enter a plea of not guilty and not

guilty by reason of insanity. The State maintains this last minute change of plea

required the State to seek an expert to prove Defendant was not insane at the time of

the offense. The State argues:

In this case, the defendant was seen on video committing the
robbery and he confessed to committing said robbery; video of both the
robbery and the confession were played for the jury. Dr. Hayes did not
give testimony outside the areas of his stated expertise, and he did not
give an opinion on the ultimate issue of the defendant’s guilt or
17

innocence. Any error alleged would amount to harmless error. This
defendant is entitled to no relief.

Analysis

We find Defendant has waived the claims raised in this assignment of error.

Although Defendant cites to an objection and implies the objection involved the

claims he raises in this assignment of error, the objection cited did not involve the

same issues raised by Defendant on appeal. Rather, the objection involved Dr.

Hayes’ mention of other crimes evidence:

He just introduced other crimes in reference to a gun, which is
not a part of the 404(b) that’s approved. You can’t un-ring a bell. The
jury heard it. At this time, I’m moving for a mistrial; [] it’s their
witness, their direct.

The parties then discussed whether a mistrial should be granted, or an admonishment

be given. The trial judge gave an admonition to the jury. The only other objection

to Dr. Hayes’ testimony was another objection to Dr. Hayes’ mention of other

crimes’ evidence.

Since Defendant did not assert an objection during Dr. Hayes’ testimony

regarding any of the issues he asserts in this assignment of error, Defendant is

precluded from asserting these claims for the first time on appeal. La.Code Crim.P.

art. 841. See also State v. Peterson, 96-1663 (La.App. 3 Cir. 6/4/97), 696 So.2d 211,

writ denied, 97-1742 (La. 11/26/97), 703 So.2d 644 (Defense counsel’s failure to

timely object to expert’s testimony prohibited court of appeal from considering

claim that the expert gave an opinion on the ultimate issue in the case).

Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant claims the trial court erred in failing to declare a mistrial when Dr.

Hayes, the State’s witness, told the jury he used a weapon in a prior offense.

18

During the State’s questioning of Dr. Hayes, the following colloquy took

place:

Q. You mentioned previously when you discussed with him, when
you made this competency evaluation on that date, I believe you
previously mentioned discussing the charges with him. Did you do
that?

A. Yes, sir. That is part of the Bennett Criteria to ask a patient or a
person, defendant, if they know what they’re charged with, if they know
the seriousness of that, if they have a general sense of how they should
be defended against, yes, sir.

Q. Could you describe to the jury how that conversation went or
what you recall from that assessment?

A. Yes, sir. It’s almost three years ago, so I’m going to have to
reference back to my records. There’s a lot of water under that bridge.
This is pre-Covid, pre-storms.

So the actual first Bennett Criteria that I need to respond to is
does the defendant understand the nature of the charge. Mr. Shepherd
had told me, “Simple robbery twice and they enhanced one to armed,
and a pistol charge. I was fighting that one.”

Defense counsel immediately requested to approach the bench and moved for

a mistrial:

He just introduced other crimes in reference to a gun, which is
not a part of the 404(b) that’s approved. You can’t un-ring a bell. The
jury heard it. At this time, I’m moving for a mistrial; and it’s their
witness, their direct.

When the trial judge asked the State if it knew this information was in Dr.

Hayes’ report, the State replied that it did not, although it did “peruse” the report the

night before. The State explained that it intended to “just get into these charges[,]”

to which defense counsel responded, “Your witness, your examination.” Defense

counsel argued that an admonition would not be sufficient.

When the trial court asked the State if it knew there was a gun mentioned in

the report, defense counsel interjected, “Yes[,]” and the following colloquy ensued:

MR. WILLIAMS [counsel for the State)]:

19

He’s been having to sift through a lot of inadmissible things,
Judge, is the issue. I assumed, honestly, that they were waiving a lot of
objections to prior incarceration of pending charges because of their
injecting the sanity issue and sending him tons of jail records.

THE COURT:

Yeah, but there hasn’t been a gun mentioned at all throughout
these proceedings; and there shouldn’t be a gun mentioned throughout
these proceedings. Y’all better tell your witness not to mention a gun.
I mean, that’s basic. If there’s no gun involved in this case, you better
tell him don’t mention a gun.

I don’t know what - - why are you going through this exercise
with him? What are you wanting to elicit in the discussion you’re
having with him?

MR. WILLIAMS:

My very next question, Judge, was did he admit to committing
this robbery.

....

MR. CASANAVE[(counsel for Defendant)]:

They will never get a more skilled and experienced witness, a
more skilled and experienced State’s witness. As he himself said, he
has testified hundreds of times on hundreds of cases; and mostly on this
sort of thing, on people accused of crimes and all that.

If they didn’t tell him or didn’t discuss with him, their witness,
who they choose to bring in the case in chief, about a handful of blatant
things they shouldn’t talk about, like a gun; that’s on the State. There
is no admonishment that says it can remove all those things said a gun
[sic].

MR. WILLIAMS:

Well, he said one thing.

THE COURT:

Well, but you know what, but the thing is, the fact that he may
have had a gun at some point, you know. The thing is, there’s no gun,
but he said hey, look. I want to fight that charge or whatever. But he
did say something about wanting to fight that or whatever. I think that’s
vague.

In other words, he didn’t say, hey, here’s the thing about the
pistol, but I’m going to fight that or whatever.
20

There’s no indication that he robbed anybody with a gun because
there’s no robbery charge involved here that involves a gun. I just don’t
want there to be - - and there’s no indication that there’s necessarily a -
- there isn’t any indication that there was even a crime involving a gun
would be that he just said, I guess other than potentially he’s not
supposed to have one possibly; because he said, hey, there’s that pistol
charge, but I’m going to fight that.

In other words, there’s no indication necessarily that he used a
gun or a pistol in a crime. He said there’s the pistol charge, but I’m
going to fight it. In other words, there’s no indication of a specific
crime involving a gun. So in other words - -

MS. WAMBSGANS[(counsel for Defendant)]:

He said there are two charges. One got enhanced to an armed
robbery, and that I had a gun.

THE COURT:

That’s not what Dr. Hayes just said.

MR. WILLIAMS:

There’s also a pistol charge, and I’m going to fight that.

MS. WAMBSGANS:

That statement was made after he said, “The robbery charge was
enhanced to an armed robbery.”

MR. WILLIAMS:

That’s why I think he’s talking about different charges. I think a
very clear, direct admonishment that they are to disregard the mention
of a firearm that is not involved in this case and it’s clearly not been
presented as evidence in this case; and that should be disregarded.

MR. GUELZOW[(counsel for the State)]:

Don’t say anything other than the two robberies. That way you
don’t repeat the word firearm or pistol or anything like that. Just saying
the jury should disregard anything about any other charge other than
the two robberies you just heard about.

THE COURT:

Well, I was just going to say, the only - - yeah, I don’t want to
mention the word pistol again. I’m just going to say, yeah.

21

I think an admonition under 771 is appropriate under those
stances [sic], and I’m just going to tell the jurors that - - I guess I’m
going to just say that - - I’m trying to think how I would say that.

Defense counsel stated that he was convinced that the jury had “in their head

a picture of Kendrick Shepherd with a gun right now.” The trial court replied:

THE COURT:

Well, I understand, but I’m going to - - but I don’t think that
there’s a specific crime associated with a - - what he said, and I think
that’s the reason that a mistrial is not required at this time, is because
he just mentioned the pistol. He didn’t mention - -

MR. WILLIAMS:

Your Honor, if I may interject. He mentioned a pistol charge.

MS. WAMBSGANS:

Yeah.

MR. WILLIAMS:

I think he clearly differentiated that that was a separate charge.

MS. WAMBSGANS:

Yeah. It was in regards to a charge.

MR. WILLIAMS:

He said then there’s a pistol charge.

MS. WAMBSGANS:

That he was going to fight.

MR. WILLIAMS:

He very clearly differentiated it.

THE COURT:

That’s the thing.

MR. CASANAVE:

22

Your Honor, it’s right on the heels of talking about a couple of
robberies; and I’m not sure every juror properly hears that transition
that clearly Mr. Williams hears incredibly clearly.

The trial judge summarized his ruling as follow:

After a Bench conference, and we heard both sides of this matter
- - if I would have mentioned that charge or if the District Attorney or
another court official would have made that comment or would have
mentioned that pistol charge, then a mistrial would have been
mandatory under article 770.

But under article 771, having reviewed that article, obviously
I’ve had to grant mistrials in the past because a witness has said
something that required a mistrial because of the nature of what was
said. So an admonition isn’t always something that can be used to fix
something as mentioned in front of a jury.

In any event, I believe that an admonition is sufficient; so I’m
going to sustain the objection made by the Defense, but I’m not going
to grant the mistrial. I’m going to deny that motion, but I am going to
do an admonition to the jury with regard to the pistol comment; and I’m
going to ask Dr. Hayes if there’s anything else referencing any guns or
pistols.

The trial judge also admonished Dr. Hayes to not mention the pistol or any gun.

In stating Defendant’s objection, defense counsel asserted:

MR. CASANAVE:

First of all, Your Honor, obviously we object to the denial of the
mistrial. We would point to the last paragraph of article 771 about
admonitions where it says, “In such cases on motion of the defendant,
the Court may grant a mistrial if it is satisfied an admonition is not
sufficient to assure the defendant a fair trial.”

We have great concern than an admonition not only won’t cause
anybody to disregard anything. It might cause greater attention to the
statement that should have not been made. Therefore, we think a
mistrial is proper.

Further, Dr. Hayes is a unique witness. He is one of the primary
medical providers for the jail, for the Sheriff, especially under
psychiatric matters.

Therefore, he’s practically an agent of the State himself; and
because of that I believe he falls under 770, even if not in the explicit
language by inference, that he is more or less an officer of the Court
and the State and the system.

23

In response to defense counsel’s argument, the trial court stated that it did not

believe the legislature intended to expand the definition of court officials in Article

770 “beyond the immediate court staff or whatever the case may be.” When the

jurors returned, the trial court admonished them as follows:

THE COURT:

Ladies and Gentlemen, before we get back on the record, I just need to
say I’m going to sustain the objection and just admonish that any
comments that you have heard about anything other than the two
robbery charges that y’all have heard testimony about this week, you
are to disregarded [sic][.]

Defendant’s Argument in Brief

Defendant argues the trial court erred in limiting its ruling to La.Code Crim.P.

art. 770, without considering the permissive grounds for a mistrial set forth in

La.Code Crim.P. art. 775. Defendant further contends that “[t]he admonition given

by the court was vague and ineffective in that it did not order the jury to ignore the

specific comment, and to exclude it from their deliberations.”

State’s Argument in Brief

The State first counters an argument made by defense counsel at trial—that

Dr. Hayes is “practically an agent of the State[,]” triggering a mandatory mistrial

pursuant to La.Code Crim.P. art. 770. The State argues that Dr. Hayes testified as

an expert witness and was not a court official. Acknowledging that the mandatory

mistrial provisions may apply if an impermissible reference to other crimes evidence

was deliberately elicited by the State, the State notes that no such accusation has

been made. To the contrary, the State argues, defense counsel accused it of failing

to properly prepare Dr. Hayes. Thus, the State contends the mandatory mistrial

provisions did not apply.

As for Defendant’s claim that the discretionary grounds for a mistrial set forth

in La.Code Crim.P. art. 775 should apply, the State contends Defendant fails to show

24

that he did not receive a fair trial because of Dr. Hayes’ comment. Finally, the State

addresses Defendant’s argument that the trial court’s admonition was not sufficient

because “it did not order the jury to ignore the specific comment, and to exclude it

from their deliberations.” The State notes that defense counsel specifically requested

the trial court to not mention the specific comment when it admonished the jury.

Consequently, the State argues the trial court did not abuse its discretion in

admonishing the jury rather than granting a mistrial.

Law and Analysis

Louisiana Code of Criminal Procedure Article 770 states the following

regarding the circumstances under which a mistrial must be ordered:

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,
district attorney, or a court official, during the trial or in argument,
refers directly or indirectly to:

....

(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 remark or comment but shall not declare a mistrial.

A mandatory admonition and permissible mistrial, on the other hand, are

provided for in La.Code Crim.P. art. 771:

In the following cases, upon the request of the defendant or the
state, the court shall promptly admonish the jury to disregard a remark
or comment made during the trial, or in argument within the hearing of
the jury, when the remark is irrelevant or immaterial and of such a
nature that it might create prejudice against the defendant, or the state,
in the mind of the jury:

(1) When the remark or comment is made by the judge, the
district attorney, or a court official, and the remark is not within the
scope of Article 770; or
25

(2) When the remark or comment is made by a witness or person
other than the judge, district attorney, or a court official, regardless of
whether the remark or comment is within the scope of Article 770.

In such cases, on motion of the defendant, the court may grant a
mistrial if it is satisfied that an admonition is not sufficient to assure the
defendant a fair trial.

A mistrial is also mandated by La.Code Crim.P. art. 775, which provides, in

pertinent part:

Upon motion of a defendant, a mistrial shall be ordered, and in a
jury case the jury dismissed, when prejudicial conduct in or outside the
courtroom makes it impossible for the defendant to obtain a fair trial,
or when authorized by Article 770 or 771.

Since the remark in the present case was not made by the judge, district

attorney, or a court official, an admonition, rather than a mistrial, was required,

unless the trial court found an admonition was not sufficient to assure the defendant

a fair trial.3 La.Code Crim.P. art. 771. Recently, this court addressed whether a

mistrial should have been granted when a detective testified as to other crimes

evidence:

Defendant next asserts that the trial court erred when it did not
grant a mistrial upon Detective Cammack testifying as to “other crimes
evidence” allegedly committed by Defendant. More specifically,
during the trial, Detective Cammack was asked by the representative of
the State if he questioned Defendant regarding whether she had any
information concerning the victim, Lachney. Detective Cammack
responded “Yes”, and then proceeded to state “[Defendant] said they
got up the next morning early. She said they went and purchased . . . to
Echo and purchased some crystal meth.” Defense counsel objected and
moved for a mistrial. Although the motion for mistrial was denied, the
trial court did admonish the jury to disregard the statement.

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, district attorney, or a court
official, during the trial or in argument, refers directly or
indirectly to:

3
Although Defendant’s appellate counsel mentions defense counsel’s objection at trial that
Dr. Hayes was an agent of the State, no such argument is made by appellate counsel. Thus, this
argument is considered abandoned. Uniform Rules, Courts of Appeal—Rule 2-12.4(B)(4).
26

....

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

La.Code Crim.P. art. 770.

Defendant concedes that the statement was not made by the
judge, district attorney, or court official so as to warrant a mandatory
mistrial pursuant to the code. Id. Louisiana Code Criminal Procedure
Article 771(2) provides that when a remark or comment is “made by a
witness or person other than the judge, district attorney, or a court
official, regardless of whether the remark or comment is within the
scope of Article 770[,]” the trial court shall admonish the jury to
disregard the remark when the remark is irrelevant or immaterial and
of such a nature that it might create prejudice against the defendant, or
the state, in the mind of the jury. This applies to such comments on
other crimes evidence by law enforcement officers. “In such cases, on
motion of the defendant, the court may grant a mistrial if it is satisfied
that an admonition is not sufficient to assure the defendant a fair trial.”
Id.

An investigating officer is a witness, but is closely related
to the district attorney in presentation of the prosecutor’s
case. Therefore, a prejudicial remark by an experienced
police officer should be viewed with considerable concern
as to the fairness of the trial, and may require granting a
mistrial, especially if the remark was precipitated by or
should have been anticipated by the district attorney.
Nevertheless, the decision as to the necessity of granting a
mistrial in these circumstances was left to the sound
discretion of the trial court. See State v. Madison, 345
So.2d 485 (La.1977); State v. Brown, 322 So.2d 211
(La.1975); State v. Schwartz, 354 So.2d 1332 (La.1978).
The present case does not reveal a manifest abuse of
discretion warranting the substitution of our judgment for
that of the trial judge who conducted the trial, heard the
remark, and was in the best position to assess its impact.

State v. Douglas, 389 So.2d 1263, 1266 (La.1980).

In this case, we find no error in the trial court’s decision to
admonish the jury to disregard the statement rather than grant a mistrial.
The statement clearly fell under the umbrella of La.Code Crim.P. art.
771’s discretionary mistrial provisions. We find no abuse of that
discretion here.

27

State v. Rabalais, 20-303, pp. 29–31 (La.App. 3 Cir. 4/7/21) (alterations in original)

(unpublished opinion) (2021 WL 1295020).

Likewise, Dr. Hayes’ reference to Defendant’s statement regarding a pistol

charge falls within the umbrella of La.Code Crim.P. art. 771’s discretionary mistrial

provisions. Considering the brevity of Dr. Hayes’ reference to a pistol as well as its

uncertain association to the armed robbery charge, we find Defendant has not shown

that a mistrial, rather than an admonition, was warranted. As for Defendant’s claim

that the trial court’s admonition was vague and ineffective because it did not order

the jury to ignore the specific comment, Defendant not only failed to raise such

argument in the trial court, but made known its concern that the admonition would

draw more attention to the pistol reference. At one point, defense counsel asserted:

We have great concern that an admonition not only won’t cause
anybody to disregard anything. It might cause greater attention to the
statement that should have not been made. Therefore, we think a
mistrial is proper.

Thus, we find Defendant waived any argument that the admonition should have

instructed the jury to ignore the specific comment made. La.Code Crim.P. art. 841.

For the foregoing reasons, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In this assignment of error, Defendant contends the trial court erred when it

questioned him about whether or not he would testify. Defendant asserts that such

a decision is solely up to the client and his lawyer, and “intervention by the court on

the record in the presence of the prosecutor carries the potential for prejudice.”

Defendant acknowledges there was “not a full throated objection” by trial counsel

but claims that trial counsel interrupted the trial court by stating, “Your Honor, we

might do something else[.]” Lastly, Defendant suggests this court should address

the error, despite the fact that it was not preserved for review, because “[t]his

28

intervention in the attorney-client relationship is problematic and prone to open the

proceedings to controversial prejudicial error.”

State’s Argument in Brief

The State contends the trial court acted within its authority and responsibility

to maintain order in the courtroom:

Considering the numerous outbursts and difficulties that the trial court
had in maintaining decorum with regards to this defendant, the trial
court was well within his inherent powers to inform the defendant of
his rights. Nothing that the trial court stated regarding the defendant’s
right to testify prejudiced this defendant or hindered his defense. And
the defendant fails to point to any errors or areas of concern, instead
providing hypothetical questions that are not at issue here. The trial
court committed no error and this claim does not warrant relief.

Proceedings at Trial

During a recess at trial, the trial court stated the following:

THE COURT:

Mr. Shepherd, I want to go ahead and visit with you for a second.
I’m required to go over - - I’m required to have a colloquy or a
discussion with you on the record. I’m kind of having it - - since we
have time, I’m not waiting until the last second to have a discussion
with you.

I’m going to have it again tomorrow, but I’m actually giving you
more time to think about it in having a discussion earlier than I normally
do; because we have more time because of the way the gap in the
witnesses are falling.

You have a constitutional right to testify. You have a
constitutional right to not testify. That is your call.

Normally that decision is made after consultation with your
Lawyer or Lawyers about the pros and cons of testifying verses [sic]
not testifying, and kicking that issue around, discussing it with your
Lawyers, and kind of making the decision about whether it’s in your
interest to do it or not do it.

I’m going to ask you - - the time for me to get a final decision
from you is after the State rests their case; and they’re going to rest their
case tomorrow morning after Dr. Hayes testifies.

After they do that, I’m going to ask - - I’m going to give the jurors
a few minutes. I’m going to go ahead and give them a recess. After
29

they rest their case, I’m going to take a short recess; and I’m going to
have this conversation with you.

I’m going to ask you if you’ve had a chance to discuss the issue
with your Lawyers about your right to testify or not testify, and if
you’ve had a chance to think about it yourself.

I’m going to ask you to tell me whether you’ve had that chance,
had that opportunity to have that discussion; and then I’m going to ask
you if you’ve made a decision. Then I’m going to ask you what your
decision is.

If you decide to testify, we’ll bring the jurors back in, you’ll
testify. If you decide not to, you’ll tell me that and then I will go ahead
and that will be on the record also.

In other words, that discussion is required by law to be on the
record one way or the other, that you and I have this conversation and
I explain your rights to you on the record with regard to that and you
can tell me whether you do or you don’t want to testify.

The jury doesn’t know and that’s outside of the presence of the
jury; so the jurors don’t know that we had that conversation. They don’t
know what your decision is. They just know that you have a right to
remain silent, because we told them that in jury selection.

Then when they come back in after the break and they’re sitting
in that Box, all I’m going to do is say, Okay. Defense, do y’all have
anything to put on? If you’ve chosen to remain silent and not testify,
then your Attorneys will say, no, Your Honor; and I’ll say okay.

MR. CASANAVE:

Your Honor, we might do something else.

THE COURT:

Well, that’s true, exactly. You may have other evidence. You
might say, yeah. We’re going to call whoever to testify. You may have
other witnesses to call, but you may have - - or whatever.

When it comes time for you to testify, they just won’t call you
and that’s fine, because we will have already had that conversation on
the record and the jurors will assume that you are exercising your right
to not do it, as they’ve already agreed and understood that you have that
right.

I’m required to have that conversation with you on the record
outside of their presence; so that’s what we’ll do in the morning.

30

I’m letting you know now that we’re going to have that
conversation and for you to talk to your Lawyers and be thinking about
it. I’m just giving you a head’s [sic] up.

The trial court then asked Defendant his age (thirty-five) and how far he went

in school (graduated high school). Defendant answered “[y]es” when asked if he

could read and write the English language. When the trial court stated that they were

recessing for the day, defense counsel stated that he would go to the jail and visit

with Defendant about his decision. The trial court then stated:

THE COURT:

Okay. That sounds good. We’ll go ahead and do this charge
conference and then your Lawyers can go meet with you and talk about
everything, okay?

MR. SHEPHERD:

Yes, sir.

The next day, the following colloquy took place:

THE COURT:

So Mr. Shepherd, did you have a chance to speak with your
Attorneys about your right to testify and not testify in your own defense
in this case?

MR. SHEPHERD:

Yes, sir, both of them, I did.

THE COURT:

And you and I discussed it yesterday afternoon so that you would
have time to start thinking about it and discussing it with your
Attorneys. Did you - - I will just kind of recap what I mentioned to you
yesterday. You have the right - - there are pros and cons to testifying
and not testifying; and you had a chance to discuss with your Lawyers
any potential benefit to testifying versus not testifying; is that correct?

MR. SHEPHERD:

Yes, sir.

THE COURT:

31

Did you feel like you had a chance to get your questions
answered by discussing that issue with your Attorneys?

MR. SHEPHERD:

Yes, sir. They did properly fine.

THE COURT:

Have you made a decision about whether you want to testify?

MR. SHEPHERD:

Yes, sir, I have.

THE COURT:

What is your decision?

MR. SHEPHERD:

I would not like to testify.

In response to the trial court’s questions, Defendant stated that his date of birth

is October 25, 1986, that he graduated from Westlake High School, and that he can

read and write the English language. The trial court then stated that it found

Defendant made a knowing and intelligent decision “based on consulting with

Counsel.” Defendant’s attorneys stated that they had both visited with Defendant

regarding his decision, one meeting with him twice.

Law and Analysis

As acknowledged by Defendant, there was no objection to the trial court’s

questioning of Defendant regarding his right to testify. Thus, we find Defendant is

precluded from seeking review of this issue. La.Code Crim.P. art. 841.

Additionally, even were this court to address the error because it involves such a

protected constitutional right, Defendant has failed to show any error occurred. The

supreme court stated the following when addressing a similar inquiry by the trial

judge as to the defendant’s right to testify:

32

In his only other assignment of error to this court, defendant
complains that the trial court improperly interjected itself into the
defendant’s decision to waive his right to testify in his own defense
when the court asked the defendant, outside the presence of the jury,
whether he wished to testify. Defendant asserts that the trial court’s
inquiry deprived him of a fundamentally fair trial by inducing his
decision not to take the stand.

After the State called its last witness, the trial court excused the
jury to resolve an objection to certain documentary evidence. The
following colloquy ensued:

THE COURT: For the record the jury is outside the
courtroom. I think Mr. Hall is about ready to rest. Ms.
Harried, I need to—so I don’t have to run the jury back
outside the courtroom, I need to know whether or not your
client intends to take the witness stand. And if not, I need
his statement for the record as to the fact that he chooses
not to testify.

MS. HARRIED: Your Honor, I have had an opportunity
to speak with Mr. Shaw. I have told him that it is my
advice that he not take the stand. I have explained what
dangers he faces if he takes the stand. I’ve explained to
him that his entire criminal history would come out in
front of the jury. In fact, I would have to ask him prior to
Mr. Hall cross-examining him so that it did not look like
we were hiding anything from the jury.

I explained to him the dangers that he would face on cross-
examination and how I thought that that may impact the
jury. He agreed with my assessment, and he agreed that he
did not wish to testify.

THE COURT: Mr. Shaw, is that correct?

MR. SHAW: Yes, sir.

THE COURT: Your lawyer has explained the advantages
and disadvantages of testifying verus[versus] not
testifying. And my understanding is that your choice is
that you not testify.

MR. SHAW: Yes, sir.

An accused’s right to testify is a fundamental right of
constitutional dimension. Rock v. Arkansas, 483 U.S. 44, 51–53, 107
S.Ct. 2704, 2710, 97 L.Ed.2d 37 (1987); State v. Hampton, 00–0522,
pp. 4–5 (La.3/22/02), 818 So.2d 720, 723–724. Because the right is
personal, it may be relinquished only by the defendant, and the

33

defendant’s relinquishment of the right must be knowing and
intentional. Hampton, 00–0522 at 7, 818 So.2d at 725.

In Hampton, this court established a framework for determining
whether a defendant’s right to testify was violated or waived by his
silence during trial. In doing so, a plurality commented in dicta that
absent extraordinary circumstances that should alert the trial court to a
conflict between attorney and client, the court should not inquire into a
criminal defendant’s right to testify; rather, the court should assume that
a criminal defendant, by not attempting to take the stand, has knowingly
and voluntarily waived his right. Hampton, 00–0522 at 14, 818 So.2d
at 729, quoting Passos–Paternina v. United States, 12 F.Supp.2d 231
(D.P.R.1998).

It is firmly established that a trial judge may not actively interject
himself into the defendant’s decision, aided by input from his attorney,
whether to testify in his own defense because judicial interference with
this strategic decision poses a danger that the judge will appear to
encourage defendant to invoke or waive this right. United States v.
Joelson, 7 F.3d 174, 178 (9th Cir.1993). For this reason, the federal
courts subscribe to the rule that a trial court has no duty to advise the
defendant of his right to testify, or to ensure that an on-the-record
waiver occurs. Joelson, 7 F.3d at 177. However, the absence of a duty
in this regard clearly does not mean that a court does not have the
discretion to conduct an on-the-record waiver outside the presence of
the jury, so long as the court does not interject itself into the strategic
decision made by the defendant with advice from his counsel.

Nevertheless, defendant argues that in the absence of any
indication of a disagreement between counsel and defendant, the trial
court erred in conducting this inquiry into his decision to waive his right
to testify in his own defense, and, further, that this inquiry was
presumptively prejudicial, requiring the reversal of his conviction. The
defendant additionally argues the trial court’s timing of its inquiry,
shortly before the State rested its case, also inappropriately affected his
decision to forego testifying, compounding the error.

We disagree. A review of the exchange between defendant and
the trial court reveals no evidence of improper influence. The inquiry
was an entirely neutral one in which the court neither urged nor
prevented the defendant’s testimony. Although the court’s inquiry
came after the State called its last witness but before it formally rested,
there is no indication that the timing of the inquiry impacted the
defendant’s decision to waive his right to testify. That waiver appears
on the record in unequivocal terms. In response to a benign inquiry from
the trial court, devoid of any indicia of coerciveness, the defendant
unhesitatingly waived his right to testify and further indicated that he
discussed his waiver with his attorney.

Under these circumstances, there is simply no evidence from
which this court could conclude that the defendant’s right to testify in
34

his own defense was violated or that the trial court impermissibly
discouraged the defendant from testifying. This assignment of error is
without merit.

State v. Shaw, 06-2467, pp. 21–23 (La. 11/27/07), 969 So.2d 1233, 1246–47

(footnote omitted) (emphasis in original).

As in Shaw, the trial court’s inquiry in the present case was a neutral inquiry,

with no indication that the trial judge either urged or discouraged Defendant’s

testimony. The trial court’s colloquy with Defendant in the present case focused on

informing Defendant of the procedural, not substantive, aspects of his decision. The

trial court left it up to Defendant’s attorneys to discuss the substantive issues that

must be considered and did not interject itself into the strategic decision made by

Defendant. Finally, as the court noted in Shaw, the lack of a contemporaneous

objection to the trial court’s inquiry indicates “that, at the time it occurred, the

inquiry was not deemed by either defendant or his counsel to be improper or

coercive.” Id. at 1247. n.8.

For the foregoing reasons, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant contends the trial court imposed a fourth habitual offender sentence

on him without stating reasons or factual findings as required by La.R.S.

15:529.1(D)(3). Defendant does not ask this court to vacate the sentence imposed

but simply points out that the trial court failed to make a record as required by the

“Habitual Offender Act.”

It is clear from the supplemental sentencing transcript that the trial court made

a specific finding as to Defendant’s status as a fourth habitual offender. The trial

court then imposed the mandatory life sentence without benefit of parole, probation,

or suspension of sentence. To the extent Defendant is alleging error in the trial

court’s failure to give reasons for this sentence, we note this court stated the
35

following in State v. Farry, 16-211, pp. 14–16 (La.App. 3 Cir. 11/16/16), 207 So.3d

436, 447–48:

The Defendant contends that the trial court erred in failing to
issue written reasons. . . .

...

Louisiana Revised Statutes 15:529.1(D)(3) provides:
.
When the judge finds that he has been convicted of
a prior felony or felonies, or if he acknowledges or
confesses in open court, after being duly cautioned as to
his rights, that he has been so convicted, the court shall
sentence him to the punishment prescribed in this Section,
and shall vacate the previous sentence if already imposed,
deducting from the new sentence the time actually served
under the sentence so vacated. The court shall provide
written reasons for its determination. Either party may
seek review of an adverse ruling.

In State v. Dukes, 46,029, p. 15 (La.App. 2d Cir. 1/26/11), 57
So.3d 489, 496, writ denied, 11–443 (La. 3/2/12), 83 So.3d 1033, the
court explained, in pertinent part:

Because the sentence imposed for the habitual
offender adjudication is prescribed by statute, the trial
court’s compliance with La.[Code Crim.P.] art. 894.1 is
not required. State v. Thomas, 41,734 (La.App. 2 Cir.
1/24/07), 948 So.2d 1151, writ denied, 2007–0401 (La.
10/12/07), 965 So.2d 396; State v. Gay, 34,371 (La.App.
2d Cir. 4/4/01), 784 So.2d 714. It would be an exercise in
futility for the trial court to discuss the factors enumerated
in that article when the court had no discretion in
sentencing the defendant. State v. Sewell, 35,549 (La.App.
2d Cir. 2/27/02), 811 So.2d 140, writ denied, 2002–1098
(La. 3/21/03), 840 So.2d 535.

Louisiana Code of Criminal Procedure Article 894.1(C)
provides: “The court shall state for the record the considerations taken
into account and the factual basis therefor in imposing sentence.”

In this case, the trial judge noted that he had no discretion in
sentencing as there was one penalty, and he did not articulate reasons.
Following, the trial judge imposed the mandatory sentence of life
imprisonment without the benefit of parole, probation or suspension of
sentence.

. . . , we find the trial court did not err in failing to articulate
reasons for the mandatory sentence. This assignment lacks merit.
36

Likewise, we find the trial court in the present case did not err by failing to

articulate sufficient reasons for the mandatory sentence. As indicated in the

supplemental sentencing transcript, the trial court noted that the statute required a

mandatory life sentence, with “no minimum or maximum.” Additionally, as

indicated in the transcript included in the original record, the trial court stated that it

had reviewed the presentence investigation report, which revealed Defendant’s

lengthy criminal history. The trial court further stated it saw no reason to deviate

from the mandatory life sentence based on the aggravating and mitigating factors

under La.Code Crim.P. art. 894.1, Defendant’s criminal history, and Defendant’s

history of violent offenses. Thus, considering the mandatory nature of the sentence,

we find the trial court’s reasons were sufficient.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

We order the trial court to correct the original sentencing minutes to delete the

reference to the sentencing as a “resentencing.” Finally, the original minutes of

sentencing should be amended to delete the statement that the case was remanded

from the Louisiana Third Circuit Court of Appeal.

AFFIRMED; REMANDED WITH INSTRUCTIONS

37

38