State of Louisiana v. Dillon Mathew James

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-518

STATE OF LOUISIANA

VERSUS

DILLON MATHEW JAMES

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 97,242
HONORABLE TONY A. BENNETT, DISTRICT JUDGE

**********

CHARLES G. FITZGERALD
JUDGE

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Court composed of Van H. Kyzar, Charles G. Fitzgerald, and Gary J. Ortego, Judges.

AFFIRMED AND REMANDED
WITH INSTRUCTIONS.

Chad M. Ikerd
Ikerd Law Firm, L.L.C.
600 Jefferson Street, Suite 903
Lafayette, Louisiana 70501
(337) 366-8994
Counsel for Defendant/Appellant:
Dillon Mathew James

Terry W. Lambright
District Attorney
Thirtieth Judicial District
William M. Thornton
Assistant District Attorney
Post Office Box 1188
Leesville, Louisiana 71466
(337) 239-2008
Counsel for Appellee:
State of Louisiana

FITZGERALD, Judge.

Defendant, Dillon Mathew James, appeals his conviction and sentence for

second degree battery.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

Shortly before 3:00 a.m. on December 17, 2021, Defendant and his brother

and a few others decided to go mud riding. As the brothers were driving down the

road, they came upon their grandfather’s residence and noticed a vehicle parked at

the end of the driveway. Their grandfather, Wallace James, was in his eighties and

had cancer. The brothers got out of their vehicles to investigate and saw a man

walking down the driveway towards them.

The man, Woodie Blanks Jr., delivered newspapers for the Lake Charles

American Press, and he was delivering Mr. Wallace’s newspaper. Mr. Blanks was

walking back to his vehicle after dropping the newspaper off on Mr. Wallace’s

porch, which he normally did because of Mr. Wallace’s poor health. The brothers

did not know Mr. Blanks, and they did not know why he was on their grandfather’s

property. An altercation ensued, resulting in significant injuries to the sixty-seven-

year-old Mr. Blanks.

On January 31, 2022, Defendant was charged by bill of information with

second degree battery in violation of La.R.S. 14:34.1. Defendant’s trial began on

October 17, 2022. Three days later, he was convicted as charged by a unanimous

six-person jury verdict. Five months after that, on March 14, 2023, the trial court

denied Defendant’s motion for new trial and motion in arrest of judgment, and then

imposed an eight-year hard labor sentence, suspended one year, and placed

Defendant on supervised probation for three years. The trial court also imposed a

fine of $2,000.00 and court costs, both of which were ordered to be paid during

probation. Additionally, the trial court ordered Defendant to pay a monthly

supervision fee of $60.00 and $11.50 to the sex offender technology fund.

Defendant appealed.

On appeal, Defendant asserts the following assignments of error: (1) the State

failed to sufficiently prove that he was guilty of second degree battery; (2) his eight-

year at hard labor sentence, with one year suspended, is excessive; and (3) the trial

court erred in allowing Defendant’s prior testimony to be read to the jury when the

testimony was given in a case in which he was not a defendant, thereby violating his

constitutional right against self-incrimination.

LAW AND ANALYSIS

I. Errors Patent

All appeals are reviewed for errors patent on the face of the record. La.Code

Crim.P. art. 920. Based on our review of the record, there is an error patent involving

the conditions of probation, a possible error patent involving the lack of a twenty-

four-hour delay between the denial of post-trial motions and sentencing, and two

errors in the minutes of sentencing.

First, we will address the error patent involving the conditions of probation.

The trial court imposed a $2,000.00 fine and court costs as conditions of Defendant’s

probation but failed to establish a payment plan. The same error was addressed in

State v. James, 23-238 (La.App. 3 Cir. 10/25/23), 373 So.3d 509. 1 There, a panel of

this court explained:

For the defendant’s conviction of second-degree battery, the
court sentenced him to serve eight years at hard labor with one year
suspended. The defendant was placed on supervised probation for three
years and ordered to pay a monthly supervision fee of $65.00 and

1
In that case, Defendant’s brother’s conviction and sentence for second degree battery of
Mr. Blanks were affirmed.

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$11.50 per month to the sex offender technology fund. Additionally,
the defendant was ordered to pay a $2,000.00 fine and court costs. A
monthly payment plan was established for the supervision fee and the
sex offender technology fund fee; however, a payment plan was not
established for the $2,000.00 fine and court costs. Accordingly, the
defendant was not put on notice of how the fine and court costs must
be paid to comply with his probation and avoid possible revocation.
Thus, the defendant’s case must be remanded for the establishment of
a payment plan in compliance with La.Code Crim.P. art. 875.1.

Id. at 1.

For these same reasons, we must remand this case to the trial court for the

establishment of a payment plan for the fine and court costs imposed as conditions

of Defendant’s probation.

Now to the possible error patent. The trial court sentenced Defendant on the

same day that it overruled Defendant’s motion for new trial and motion in arrest of

judgment. Yet La.Code Crim.P. art. 873 provides:

If a defendant is convicted of a felony, at least three days shall
elapse between conviction and sentence. If a motion for a new trial, or
in arrest of judgment, is filed, sentence shall not be imposed until at
least twenty-four hours after the motion is overruled. If the defendant
expressly waives a delay provided for in this article or pleads guilty,
sentence may be imposed immediately.

So the issue is whether Defendant expressly waived the twenty-four-hour

delay in Article 873. To this end, after the trial court denied Defendant’s motions,

the court noted defense counsel’s objection. Importantly, defense counsel then

replied as follows: “Thank Your [sic] Honor. And I believe that brings us to

sentencing?” In response, the trial court stated: “All right. At this time, we will

move forward to the sentencing.” When the trial court asked the defense if it had

anything to present, defense counsel replied, “Um, no, Your Honor.” The trial court

then proceeded to consider the facts of the case, the sentencing guidelines of La.Code

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Crim.P. art. 894.1, and the presentence investigation report. Thereafter, the trial

court imposed sentence.

The jurisprudence on this issue is summarized below. For instance, in State

v. Kisack, 16-797 (La. 10/18/17), 236 So.3d 1201, cert. denied, 583 U.S. 1160, 138

S.Ct. 1175 (2018), the Louisiana Supreme Court found that the waiver must be

express, not implicit. Distinguishing between the two types of waivers, the court

explained that merely participating in the sentencing hearing would be considered

an implicit waiver. And although announcing a readiness for sentencing had been

considered an implicit waiver by some appellate courts, the supreme court explained

that such a waiver should be considered an express waiver. Subsequently, in State

v. Boyd, 17-1749 (La. 8/31/18), 251 So.3d 407, the supreme court found an express

waiver was made when the defense responded that it had no objection to proceeding

with sentencing.

More recently, in State v. Samuel, 19-408, pp. 10–13 (La.App. 3 Cir. 2/5/20),

291 So.3d 256, 263–65, writ denied, 20-398 (La. 7/24/20), 299 So.3d 77, a panel of

this court found that defense counsel’s response, “Yes, Your Honor[,]” when asked

if Mr. Samuel was ready to be sentenced was an express waiver of the Article 873

delay. Similarly, in State v. Kirby, 22-757, p. 2 (La.App. 4 Cir. 4/26/23), 360 So.3d

641, 645 n.1, writ denied, 23-684 (La. 12/19/23), 374 So.3d 979, the fourth circuit

noted that defense counsel “[e]ffectively waived” the Article 873 delay by stating,

“‘We’re ready to proceed with sentencing.’”

Again, the trial court here overruled Defendant’s post-trial motions.

Immediately thereafter, defense counsel stated, “I believe that brings us to

sentencing[.]” In our view, this statement constitutes an express waiver of the

Article 873 delay.

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Finally, the minutes of sentencing must be corrected. Specifically, the

minutes do not state that the fine and court costs were imposed as conditions of

probation. Yet the sentencing transcript makes clear that the fine and court costs

were imposed as conditions of Defendant’s probation. Additionally, the minutes

reflect that the trial court ordered Defendant to pay $5.50 per month to the Sex

Offender Registry Technology Fund, but the transcript states that the trial court

ordered Defendant to pay $11.50 per month to the Sex Offender Registry

Technology Fund. “[W]hen the minutes and the transcript conflict, the transcript

prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365,

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

will be instructed on remand to correct the sentencing minutes to accurately reflect

the imposition of the fine and court costs as conditions of Defendant’s probation,

and to accurately reflect that Defendant must pay $11.50 per month to the Sex

Offender Registry Technology Fund.

II. Defendant’s First Assignment of Error

In his first assignment of error, Defendant contests the sufficiency of the

evidence to sustain his second degree battery conviction. His primary contention is

that his actions were justified under the circumstances of the encounter. Though he

does not dispute that the victim suffered serious bodily injury, he argues that the

State failed to prove he was the one who inflicted the serious bodily injury.

A sufficiency-of-the-evidence challenge is reviewed on appeal under the

standard set forth by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). “[T]he

relevant question 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 beyond a reasonable doubt.” Id. at 319. “This standard, now

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legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court

with a vehicle to substitute its own appreciation of the evidence for that of the fact-

finder.” State v. Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521. The

appellate court’s function is not to assess the credibility of witnesses or to reweigh

the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.

A reviewing court must afford great deference to a jury’s decision to accept

or reject the testimony. State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d

622, writs denied, 02-2595 (La. 3/28/03), 840 So.2d 566, and 02-2997 (La. 6/27/03),

847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404 (2004). “Where there

is conflicting testimony about factual matters, the resolution of which depends upon

a determination of the credibility of the witnesses, the matter is one of the weight of

the evidence, not its sufficiency.” Id. at 626.

And as pointed out by this court in State v. F.B.A., 07-1526, p. 2 (La.App. 3

Cir. 5/28/08), 983 So.2d 1006, 1009 (second alteration in original), writ denied, 08-

1464 (La. 3/27/09), 5 So.3d 138:

[T]he testimony of a single witness is sufficient to support a conviction
“[i]n the absence of internal contradiction or irreconcilable conflicts
with physical evidence.” State v. Dixon, 04-1019, p. 12 (La.App. 5 Cir.
3/15/05), 900 So.2d 929, 936. The trier of fact may accept or reject the
testimony of any witness, and the determination of the credibility of
that witness, in whole or in part, is left to its sound discretion and “will
not be re-weighed on appeal.” Id. at 936.

Louisiana Revised Statutes 14:34.1 defines second degree battery as “a battery

when the offender intentionally inflicts serious bodily injury[.]” A battery is “the

intentional use of force or violence upon the person of another[.]” La.R.S. 14:33.

Serious bodily injury is defined as “bodily injury which involves unconsciousness;

extreme physical pain; protracted and obvious disfigurement; protracted loss or

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impairment of the function of a bodily member, organ, or mental faculty; or a

substantial risk of death.” La.R.S. 14:2(C).

In addition, second degree battery requires specific intent. State v. Robertson,

98-883 (La.App. 3 Cir. 12/9/98), 723 So.2d 500, writ denied, 99-658 (La. 6/25/99),

745 So.2d 1187. “Specific criminal intent is that state of mind which exists when

the circumstances indicate that the offender actively desired the prescribed criminal

consequences to follow his act or failure to act.” La.R.S. 14:10(1). “Specific intent

may be inferred from the circumstances surrounding the offense and the conduct of

the defendant.” State v. Draughn, 05-1825, pp. 7−8 (La. 1/17/07), 950 So.2d 583,

592–93 (citations omitted), cert. denied, 552 U.S. 1012, 128 S.Ct. 537 (2007).

Specific intent may be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96),

684 So.2d 382. “[S]pecific intent to cause serious bodily injury ‘may be inferred

from the extent and severity of the victim’s injuries.’” State v. Williams, 20-605, p.

33 (La.App. 3 Cir. 11/3/21), 329 So.3d 938, 955 (quoting State v. Hager, 13-546, p.

6 (La.App. 5 Cir. 12/27/13), 131 So.3d 1090, 1093), writ denied, 21-1798 (La.

4/12/22), 336 So.3d 85.

Finally, La.R.S. 14:24 defines a principal as follows: “All persons concerned

in the commission of a crime, whether present or absent, and whether they directly

commit the act constituting the offense, aid and abet in its commission, or directly

or indirectly counsel or procure another to commit the crime, are principals.” As

explained in State v. Petty, 12-278, p. 11 (La.App. 5 Cir. 10/30/12), 103 So.3d 616,

623:

Only those persons who knowingly participate in the planning or
execution of a crime are principals to that crime. An individual may
only be convicted as a principal for those crimes for which he
personally has the requisite mental state, and the mental state of one
defendant may not be imputed to another defendant. Thus, mere

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presence at the scene of a crime does not make one a principal to the
crime. However, it is sufficient encouragement that the accomplice is
standing by at the scene of the crime ready to give some aid if needed,
although in such a case it is necessary that the principal actually be
aware of the accomplice’s intention. State v. Page, 08–531 (La.App. 5
Cir. 11/10/09), 28 So.3d 442, 449, writ denied, 09–2684 (La.6/4/10),
38 So.3d 299.

Turning now to the evidence adduced at trial. The first witness to testify at

trial was Robert Green, an officer with the Rosepine Police Department. Officer

Green testified that on December 17, 2021, at approximately 3:00 a.m., he heard an

individual “banging on the back” of his door at the police station. Officer Green

identified the individual as Woodie Blanks Jr. According to Officer Green, Mr.

Blanks said that he “had been jumped.” Officer Green noticed that Mr. Blanks’s

eyes were swollen, and there was blood on his face and head. Mr. Blanks also

appeared to be confused and in serious pain. Officer Green called for emergency

assistance and then left to go to an apartment complex which is where he initially

believed the incident occurred.

However, Officer Green was unable to locate the suspects, and he returned to

the police department. But as he approached the police station, he noticed Mr.

Blanks driving out of the parking lot. Officer Green recalled that Mr. Blanks was

having difficulty driving, so he pulled Mr. Blanks over at a nearby gas station and

requested that medical emergency assistance respond there. When Officer Green

learned that the incident occurred outside of his jurisdiction, he contacted the Vernon

Parish Sheriff’s Office. According to Officer Green, Mr. Blanks stated that one of

the suspects might be the grandson of Wallace James.

On cross-examination, Officer Green testified that Mr. Blanks was wearing

blue jeans and a shirt, but he could not recall whether Mr. Blanks was wearing a

mask. Mr. Blanks told Officer Green the incident occurred on Catfish Hut Road,

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though he did not specify the address. Officer Green could not remember whether

Mr. Blanks’s vehicle signified that he worked for the American Press or that he

delivered newspapers.

Deputy Jacob Durrett was assigned to the patrol division of the Vernon Parish

Sheriff’s Office. Deputy Durrett was dispatched to the gas station to take a statement

from Mr. Blanks. Deputy Durrett asked Mr. Blanks if he wanted to provide a written

statement, but Mr. Blanks stated that he could not see and was unable to write a

statement. Deputy Durrett questioned Mr. Blanks about the incident, and testified

as follows:

I asked him, I said, “Where were you located?” He told me he was on
Catfish Hut Road at the first residence past Catfish Restaurant. I said,
“Okay.” And I asked him what occurred. He stated that two vehicles
pulled up. He said one was a -- he believed to be a jeep, the other was
an unknown model pickup truck. He didn’t know make, model, color
or any of those -- any of those facts at the time. And I asked him what
occurred. He stated that he was delivering the newspaper to Mr. James
and, when he was leaving the property, there w[ere] two vehicles [that]
pull[ed] up and as the vehicles pulled up, there w[ere] some subjects
[that] g[o]t out . . . of the vehicle and one of ‘em asked him, “What are
you doing on my grandpa’s property?” And he said, “Look right over
there” and pointed to the porch. He said, “Your grandpa’s sitting on
the porch. Go ask him.” And they proceeded to beat up on him and
then they got in their vehicles and left.

Deputy Durrett’s bodycam footage was entered into evidence, and the

photographs that he took in the ambulance of Mr. Blanks’s injuries were also

admitted in entered. According to Deputy Durrett, Mr. Blanks’s injuries appeared

serious, though there were no defensive wounds on his hands indicating that he did

not fight back.

The next witness was Detective Wade Wingate, who was a seven-year veteran

of the Vernon Parish Sheriff’s Office. Detective Wingate learned from Deputy

Durrett that there had been a battery on Catfish Hut Road, that the perpetrators were

9

possibly Mr. Wallace James’s grandsons, and that a dark-colored Jeep might have

been involved. Detective Wingate then went to the location where some of the James

family lived and observed a dark-colored Jeep parked outside. He knocked on the

door, and Defendant’s brother, Douglas James, answered. Detective Wingate

testified that he read Douglas his Miranda rights, and after Douglas acknowledged

that he understood his rights, he voluntarily spoke to Detective Wingate. According

to the detective, Douglas told him that Defendant was also involved. Douglas then

called Defendant, who lived next door, and Defendant came over to speak with

Detective Wingate. Defendant was given his Miranda rights, he indicated that he

understood his rights, and he waived his rights.

Defendant told Detective Wingate that he and Douglas were riding around

when they saw a dark-colored Ford truck parked on Catfish Hut Road at the end of

their grandfather’s driveway. When they started walking up the driveway to check

on their grandfather, a man wearing a hood, a mask, and gloves was walking towards

them. Defendant said they asked the man why he was at their grandfather’s house

at 3:00 in the morning, but the man did not answer and instead started moving

towards his vehicle. According to the detective, Defendant said he felt threatened

and feared for his life in that moment. Then, Defendant and Douglas hit the man at

about the same time. Defendant and Douglas’s grandfather began yelling for them

to stop because the man was the newspaper delivery man.

Detective Wingate also spoke to Douglas, Mr. Wallace, and the victim, Mr.

Blanks. The detective learned that other people were present when the incident

occurred, including Travis Moses and Charles “Max” Courville. Detective Wingate

interviewed Max, who told him that Kara Edwards and Chelsea Coleman were also

present. He interviewed them as well. According to Detective Wingate, Defendant

10

did not provide the names of these other individuals when asked, and Defendant

originally stated that he rode in the vehicle with Douglas, which was later determined

to be untrue.

Travis Moses was the next witness. He testified that on the night in question,

he was hanging out with Defendant, who Travis described as a long-time friend.

Travis then explained that he and Defendant went to Douglas’s house. And when

they arrived, Douglas, Max, and two females were present. Sometime between 2:00

and 3:00 a.m., the group decided to go mud riding. So Travis and Defendant got

into Max’s Jeep; Max was driving. Douglas, meanwhile, followed them in another

Jeep with the females. As they passed Defendant’s grandfather’s home, they

observed an unoccupied truck parked in the middle of the road. They pulled up

behind the truck, got out, and looked inside the truck. Defendant and Douglas then

walked up the driveway to investigate. Travis recalled that Defendant and Douglas

came upon the victim who was walking towards them. According to Travis,

Defendant and Douglas “confronted him,” and asked what he was doing there.

Travis heard the man say, “If you’ve got a problem with what I’m doing here, you

need to ask these people.” Travis denied hearing anyone suggest checking with

Defendant’s grandfather, Mr. Wallace, or suggest calling the police. The situation

then escalated.

Travis further recalled that Defendant and Douglas tackled the man and “hit

him a couple of times.” At some point after the victim fell to the ground, Travis

grabbed Defendant by the shoulders and pulled him out of the fight. Travis

confirmed that Mr. Wallace told his grandsons to stop because the victim was

delivering his newspaper. And that, according to Travis, was “the ultimate end of

11

everything.” Travis believed that Douglas or Mr. Wallace helped the victim off the

ground. The victim then drove off and everyone went back to Douglas’s house.

Max testified next. Max explained that he, Travis, and Defendant were riding

in his Jeep when they left Douglas’s house around 2:30 a.m. Douglas followed in

his Jeep with two females as passengers. Max noted that it was odd seeing a truck

blocking the road leading to Defendant’s grandfather’s house. So he pulled his Jeep

up next to the truck, and everyone got out. Max then removed the keys out of the

truck’s ignition. Max then observed a tall man wearing dark clothes, a mask, and

gloves walking down the driveway, and he heard Defendant and Douglas

questioning the man. According to Max, either the man did not respond, or he (Max)

was too far away to hear the response.

Dr. Chanping Liang, an ophthalmology surgeon and professor of

ophthalmology at LSU Shreveport, was accepted as an expert in the field of

ophthalmology. She testified that when she saw Mr. Blanks, he reported having

been assaulted by people the night before. She observed extensive bruises, swelling,

and bleeding in both of his eyes. The left had a severe, dense subconjunctival

hemorrhage indicative of a ruptured eyeball. The right eye also had bruises and a

hemorrhage, but to a lesser degree. Scans showed his right eye had an orbital floor

fracture which was a break in the bony area below the eyeball. The injuries to his

left eye required surgery, during which the blood clots were removed, and

intraocular contents came out. She attempted to suture the laceration of the eyeball,

but she could not successfully suture the entire laceration due to its severity and

length/location.

Ultimately, Mr. Blanks lost all sight in his left eye. And though not functional,

Mr. Blanks opted to keep his left eyeball intact. By comparison, Mr. Blanks’s right

12

eye remained intact and functional, but the bleeding in that eye continued for some

time. Dr. Liang also explained that there was a small chance that the right eye could

become inflamed and develop sympathetic ophthalmia, in which case Mr. Blanks

would lose sight in that eye as well.

The next witness was the victim, Woodie Blanks Jr. He described himself as

a sixty-eight-year-old veteran who delivered newspapers for the Lake Charles

American Press. One of his customers, Mr. Wallace, had cancer and requested that

Mr. Blanks place his newspaper near the steps of his house. To accommodate him,

Mr. Blanks would either place the newspaper on his porch, or if Mr. Wallace was on

the porch, he handed it to him. On the day of the incident, Mr. Blanks woke up

around 12:00 (midnight) and got dressed for the day. Complying with COVID-19

guidelines, the American Press requested that its employees wear plastic gloves and

a mask, which Mr. Blanks was wearing that day, along with his jeans, a shirt, and

tennis shoes.

That morning, instead of driving up in Mr. Wallace’s driveway, Mr. Blanks

left his vehicle running on the edge of the driveway. Mr. Blanks testified that the

newspapers he would be delivering later—around 200 newspapers—were on the

floorboard and the front seat of his truck. He walked up the driveway and spoke to

Mr. Wallace while giving him the newspaper. While he was doing so, two vehicles

pulled up near his truck, one on the left side, and one behind his truck. Mr. Blanks

pointed it out to Mr. Wallace, but he got no response. Mr. Blanks then walked down

the driveway to return to his truck. As he did, he noticed two people had exited the

Jeep parked on his left side and two people had exited the vehicle behind his truck.

Two men came across the yard and confronted him. Mr. Blanks testified about the

ensuing altercation as follows:

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A. He was asking me what -- wanted to know what I was doing in
their grandfather’s yard. Well, being that their grandfather was sitting
on the porch, I let them know that he was right there on the porch that
they could speak with him and he would explain to ‘em just what I was
doing there.

Q. Yes, sir. What happened next?

A. Well, I was attacked, uh, broadsided, knocked to the ground, and
they started beating on me and the other two came and -- well, they had
the better part of me and the other two they just started kicking me and
-- and, uh, Mr. [Wallace] finally, uh, I heard him yell out to leave him
alone and they kept beating on me. And Mr. [Wallace] made it down
the driveway and pulled [th]em off of me and he helped me to my feet.

Mr. Blanks explained that he became concerned when he saw the vehicles

next to his truck: he felt like he was being blocked in. And he was trying to get to

his truck when the men confronted him. Mr. Blanks explained that he was first hit

in the chest, and then he was knocked to the ground. According to Mr. Blanks, he

was “pretty much knocked out.” Mr. Blanks then explained that he “thought it was

over” for him, and that all he could think to do was to try to save his face and eyes

from the beating. When asked for clarification, he said he thought he was going to

die. At some point thereafter, he heard Mr. Wallace yelling for the beating to stop,

but it continued until Mr. Wallace pulled them away.

Mr. Blanks then recalled that when he tried to leave, he realized the keys to

his truck were missing. But eventually, Mr. Wallace brought his keys to him. Mr.

Blanks explained that he felt his life was in danger, and though he “really couldn’t

see that good” due to his eyes swelling, he knew he had to leave. He then explained

that he could not see out of his left eye at the time of trial, and that he knew there

was a risk that he might lose vision in his right eye. He told the jury that he had not

worked since December 17, 2021. And he identified Defendant as one of the people

who caused his injuries.

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On cross-examination, Mr. Blanks testified that he felt afraid when he saw the

vehicles pull up, and he looked to Mr. Wallace to assist him. Defense counsel asked

why he felt that way, and Mr. Blanks explained:

A. Okay. I’m black, in a white neighborhood, a vehicle pull[ed] up
beside my vehicle, one on the side, on the left side, and one behind me.
I’m being blocked in so of course I was scared.

....

Q. Well, did you ask Mr. [Wallace] to go call the police department?

A. No, sir, I didn’t.

Q. You just asked Mr. [Wallace], an 87-year-old man, to help you
because you were afraid; is that right?

A. I didn’t ask him to do anything. I felt like he should have done
it.

Mr. Blanks further testified that it was still dark at 3:00 a.m., and that he was

not sure who had asked him why he was there. But according to Mr. Blanks, while

he was telling the individuals that their grandfather was on the porch and that they

could talk to him, they attacked him. Mr. Blanks was then asked why he did not tell

these individuals that he was delivering newspapers. In response, Mr. Blanks

explained that he thought telling them to talk to their grandfather on the porch would

let them know that their grandfather was okay, and they could hear from him

firsthand that he (Mr. Blanks) was his newspaper delivery man.

Mr. Blanks then suggested that the individuals could have yelled across the

yard if they were concerned for their grandfather’s safety. But instead, the two

individuals tackled him and started hitting him. Next, according to Mr. Blanks, two

other individuals “joined in with them and they started kicking” him. The people

kicked him in his shoulder and legs and punched him in his stomach after he stood

15

up. Mr. Blanks also noted that one of the individuals threatened to kill him, and he

thought it was Defendant who made that threat.

Next, the State read Defendant’s transcribed testimony from Douglas’s trial

which had occurred a few months earlier. See State v. James, 373 So.3d 509. In that

case, Defendant was called as a fact witness in Douglas’s case-in-chief. But in this

case, by contrast, Defendant elected not to testify during his defense-in-chief. The

admissibility of this evidence is addressed in our discussion of Defendant’s third

assignment of error.

Nonetheless, during Douglas’s trial, Defendant testified that he and his

brother were approached by the victim—who was wearing a big coat, a mask, and

gloves—about halfway up the driveway as they were going to check on their

grandfather. He and the victim stopped a few feet from each other. The brothers

then asked the victim what he was doing at their grandfather’s house two or three

times, but the victim did not respond. And when asked if the victim responded at

some point, Defendant stated:

I remember the last -- last time asking what he was doing at my
grandpa’s house, I remember a -- a remark was he said, “If this is your
grandpa’s, you can ask him.” And he stepped towards us.

Defendant recalled being scared. He was concerned about his grandfather.

According to Defendant, Douglas hit the victim; Defendant went to the ground with

the victim; the victim briefly fought back; and the fight was over in a few seconds.

When Defendant got up, his grandfather was there, and they walked the victim to

his truck.

Defendant clarified that he and his brother rode in separate vehicles that night,

and Defendant said that he did not look in the victim’s truck when they got there.

Defendant also clarified that his grandfather pulled him off the victim. Defendant

16

confirmed that the victim did not swing or lunge at them. Yet Defendant noted that

he felt as though the victim was “gonna go through [him], if [he] didn’t get out of

the way.” Defendant then testified that nothing would have happened if the victim

had said he was delivering newspapers.

On appeal, Defendant asserts that he acted in self-defense: he felt threatened

and reasonably acted out of fear for his life and the lives of others. His actions were

necessary to prevent Mr. Blanks from committing a battery upon himself or others.

This is Defendant’s argument.

Louisiana Revised Statutes 14:18 sets forth the defense of justification, stating

in relevant part:

The fact that an offender’s conduct is justifiable, although
otherwise criminal, shall constitute a defense to prosecution for any
crime based on that conduct. This defense of justification can be
claimed under the following circumstances:

....

(7) When the offender’s conduct is in defense of persons or of
property under any of the circumstances described in Articles 19
through 22.

Louisiana Revised Statutes 14:19 provides, in pertinent part:

A. (1) The use of force or violence upon the person of another is
justifiable under either of the following circumstances:

(a) When committed for the purpose of preventing a forcible
offense against the person or a forcible offense or trespass against
property in a person’s lawful possession, provided that the force or
violence used must be reasonable and apparently necessary to prevent
such offense.

....

C. A person who is not engaged in unlawful activity and who is
in a place where he or she has a right to be shall have no duty to retreat
before using force or violence as provided for in this Section and may
stand his or her ground and meet force with force.

17

This defense was addressed in State v. Hall, 606 So.2d 972 (La.App. 3 Cir.

1992), writ denied, 93-51 (La. 11/11/94), 644 So.2d 385. There, this court

explained:

In non-homicide cases, . . . the defendant [has] the burden
of proving self-defense by a preponderance of the
evidence. The issue of self-defense requires a dual
inquiry: (1) an objective inquiry into whether the force
used was reasonable . . . ; [and] (2) a subjective inquiry
into whether the force was apparently necessary[.]

Id. at 973–74 (citations omitted).

Here, the evidence shows that Defendant and Douglas intentionally

confronted Mr. Blanks in their grandfather’s driveway, that Mr. Blanks—who was

then sixty-six years old—approached Defendant and Douglas as he was walking

down the driveway, that Mr. Blanks took no aggressive action towards Defendant

and Douglas, and that Mr. Blanks was simply walking to his vehicle. The evidence

also shows that Mr. Blanks was wearing a mask and plastic gloves in compliance

with his employer’s COVID-19 guidelines.

In the end, even though Defendant contends it was reasonable for him to be

suspicious under the circumstances, his actions were objectively unreasonable.

Rather than attacking the victim, Defendant could have walked around the victim to

check on his grandfather or called the police. It is clear from the record that

Defendant’s actions were neither reasonable nor necessary. Thus, the jury rationally

determined that the force used by Defendant was neither reasonable nor apparently

necessary to prevent Mr. Blanks from committing an offense against Defendant or

others.

Defendant next argues that the State failed to prove beyond a reasonable doubt

that the serious bodily injuries inflicted on the victim were “the direct result of

18

[Defendant’s] actions—as opposed to those of Doug James, Max Courville, or

Travis Moses.” As stated previously, the State was required to prove the following

elements to sustain a second degree battery conviction: (1) the intentional use of

force or violence upon the person of another, (2) without the consent of the victim,

(3) when the offender has the specific intent to inflict serious bodily injury. State v.

Fuller, 414 So.2d 306 (La.1982).

Defendant here concedes that he tackled and hit the victim. Yet his testimony

on this point is somewhat unclear. In the example that follows, for example,

Defendant admits hitting Mr. Blanks:

Q. Let’s start right there with what you just said. You admit that you
hit Mr. Blanks, correct?

A. I -- I’m -- when we went to the ground, I’m -- yes, sir, I guess.

Q. You hit him, correct?

A. Yes, sir.

But later in his testimony, Defendant explains that he only tackled Mr. Blanks

to the ground. Defendant’s testimony then changes again, and he admits to hitting

Mr. Blanks:

Q. You punched him, correct?

A. Correct.

Q. You would agree with me that that’s violence and force upon
him, correct?

A. I mean --

Q. Sir?

A. I guess, yes, sir.

Q. And you would agree with me that those injuries that he
sustained are serious?

19

A. Correct.

In addition, Mr. Blanks testified that he was hit in the chest area, then two

guys got on top of him and were beating him, and two other guys started kicking

him. Mr. Blanks noted that after he was knocked to the ground and the beating

began, he thought his life was over. All he could think to do was to try to save his

face and eyes from the beating. According to Mr. Blanks, all the punches hit him in

the face. And Mr. Blanks identified Defendant as one of the individuals who caused

his injuries.

In State v. Diaz, 612 So.2d 1019 (La.App. 2 Cir. 1993), the second circuit

rejected the defendant’s sufficiency-of-the-evidence challenge and affirmed the

conviction for second degree battery. In doing so, the appellate court explained:

Defendant makes much of the fact that he only struck the victim
once, failed to knock the victim to the floor or render him unconscious,
and did not pursue the victim after striking him. These factors, argues
defendant, indicate an absence of intent to cause serious bodily harm.
We do not agree. The supreme court has firmly rejected the notion that
the second degree battery statute envisions an offender who mercilessly
beats a fallen victim. The statute clearly states that the intended harm
is “serious bodily injury” and defines this to involve, among other
things, unconsciousness, extreme physical pain or protracted and
obvious disfigurement. Under the circumstances of this case, when
Diaz struck Bullock as hard as he could, he intended to cause serious
bodily injury as contemplated by the statute.

Indeed, as a consequence of defendant’s blow, Bullock’s jaw was
broken in two places. He testified that his mouth was bleeding after the
blow and his jaw “just kinda jingled.” He further stated that some of
his teeth appeared to be missing but that he later learned the gap in his
lower row of teeth was caused by the separation of the fractured pieces
of his mandible. Dr. Willis confirmed that the fractures created a six
millimeter gap between Bullock’s teeth, and he described the breaks in
Bullock’s jaw as a “serious injury.” Bullock described his pain as
“excruciating,” and his mother testified that he was asking for a pain
shot at the hospital. The injury required a five-hour reparative surgery
during which Bullock was under general anesthesia. For approximately
two months following surgery, Bullock’s mouth was wired shut, which
kept him from eating solid foods and greatly impaired his ability to
speak. According to his mother, at the time of trial, some eight months

20

after the fight took place, Bullock’s face was still disfigured, and he
was still having reparative work done to his teeth.

We find that, viewing the evidence as a whole in a light most
favorable to the prosecution, any rational trier of fact could have found
proof beyond a reasonable doubt that Diaz struck Bullock without the
latter’s consent and with the specific intent to cause serious bodily
injury.

Id. at 1022−23 (citations omitted).

More recently, the second circuit disposed of the same argument in State v.

Linnear, 44,830 (La.App. 2 Cir. 12/9/09), 26 So.3d 303. In that case, the appellate

court noted the following:

In addition to arguing he lacked the requisite specific intent to
cause great bodily injury, Linnear asserts that there was insufficient
evidence to show that Linnear caused Fuggins’ injuries. He asserts that
only circumstantial evidence links Fuggins’ injuries to Linnear and that
this circumstantial evidence does not exclude every reasonable
hypothesis of innocence. In the defendant’s own statement, he admitted
that he reacted to the victim’s antics by knocking him to the ground and
continuing to punch him. Linnear’s statement was corroborated by
Crutchfield who testified that “when he [Fuggins] fell, Stacey got on
him; hit him two more times.” Although the defense offered alternative
hypotheses, suggesting that Fuggins’ injuries may have been caused by
other patrons dancing or by security personnel when they carried him
out of the club, the jury chose to discredit these explanations. Rather,
the jury found that the strength of circumstantial evidence provided a
direct link between Linnear’s admitted acts and Fuggins’ injuries and
excluded all hypotheses set forth by the defense.

Id. at 307–08 (alteration in original).

In the case before us, Defendant and his brother confronted Mr. Blanks in the

driveway asking what he was doing at their grandfather’s house. They heard him

say something to the effect that if they wanted to know what he was doing there,

they could ask their grandfather. Mr. Blanks was not acting aggressively. Yet

Defendant and his brother struck the elderly victim with such force that serious

injury resulted. Again, Mr. Blanks was sixty-six years old at the time of this attack.

21

And the injuries that he sustained included extensive bruising and bleeding in both

eyes, with the damage to the left eye so severe that he lost all vision in that eye.

In the end, the evidence adduced at trial, when viewed in a light most

favorable to the prosecution, is sufficient to prove all elements of second degree

battery beyond a reasonable doubt. Defendant’s first assignment is therefore without

merit.

III. Defendant’s Second Assignment of Error

In his second assignment of error, Defendant contends that the facts of this

case do not warrant a maximum sentence of incarceration with only one year

suspended. However, because Defendant did not file a motion for reconsideration

and because Defendant did not object to his sentence with specific reasons at the

sentencing hearing, we will review this assignment as a bare claim of excessiveness.

See, e.g., State v. Debarge, 17-670 (La.App. 3 Cir. 2/7/18), 238 So.3d 491.

This type of review—a bare excessiveness review—was addressed in State v.

Barling, 00-1241 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.

2/1/02), 808 So.2d 331. There, this court explained as follows:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99–192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00–0165 (La.6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95–2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

22

Id. at 1042–43 (alteration in original).

Additionally, there a handful of factors that an appellate court may consider

in determining whether a sentence is shocking or makes no meaningful contribution

to acceptable penal goals, including (1) the nature of the offense, (2) the

circumstances of the offender, and (3) a comparison of the sentences imposed for

similar crimes. State v. Smith, 99-606 (La. 7/6/00), 766 So.2d 501.

Looking first to the nature of the offense, we have already thoroughly

discussed the offense and will not restate those details. However, the offense of

second degree battery is enumerated as a crime of violence. La.R.S. 14:2(B). And a

sentence for second degree battery carries a fine of not more than two thousand

dollars and imprisonment for not more than eight years with or without hard labor.

La.R.S. 14:34.1(C). Again, Defendant here was sentenced to eight years at hard

labor with one year suspended and three years of supervised probation. In addition,

a fine of $2,000.00 and court costs were imposed, and Defendant was ordered to pay

a monthly supervision fee of $60.00 and $11.50 to the sex offender technology fund.

Turning now to Defendant’s nature and background. At the sentencing

hearing, Defendant was described as a twenty-six-year-old first felony offender. He

was single and a father of two. The trial court noted Defendant’s good employment

history but observed that he had been arrested several times and had several pending

charges. Defense counsel called no witnesses and presented no arguments in

mitigation. Before imposing the sentence, the trial court discussed the following

mitigating and aggravating factors:

The Court did, in fact go through the Sentencing Guidelines of Article
894.1 and I’ll talk about that a little later. Was economic harm caused
to the victim? The answer is, “Yes.” And I will discuss some of the
other things shortly.

23

This defendant is 26 years of age. He is not married. He has two
children. The defendant is in good health. He is a pipefitter. He
graduated from high school. He states he does not have a history of
drug or alcohol abuse. However -- and this is according to the
presentence investigation -- however, the Court notes that on January
the 25th of 2015 he was arrested for underage drinking, uh, underage
driving under the influence. On 4/15 of ‘18, he was arrested for OWI
and on 4/15 of ‘22 he was arrested for DWI second in Billings,
Montana.

This case was tried before the jury on October the 1[7]th of 2022.
The jury found him guilty, and we are here today for sentencing. I
received letters from Mr. Blanks, in the prior case, and his daughters
which I have reviewed. As to the defendant’s criminal history, this is
his first felony. The Court looked specifically at Code of Criminal
Procedure Article 894.1, the Sentencing Guidelines, for the aggravating
and mitigating factors. As far as aggravating factors, the Court finds
that the offender used threats of or actual violence in the commission
of the offense. The offense resulted in a significant permanent injury
and economic loss to the victim and his family. A lesser sentence
would deprecate the seriousness of the offense. As far as the mitigating
factors, the Court finds that the defendant has no history of prior
delinquency or criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the instant offense,
except for the charges stated earlier and the Court also notes that he has
an outstanding criminal damage to property and a domestic abuse
battery charge pending.

The facts reflect that Mr. James and his brother attacked Mr.
Blanks around 3:00 AM on the morning of December the 17th of 2021.
The Court’s concerns are the injuries to Mr. Blanks. The testimony of
Dr. Liang, at trial shows that, as a result of the attack, Mr. Blanks had
extensive bruising, bruises and bleeding in both eyes. The left eye had
a severe[,] dense subconjunctival hemorrhage. In other words, the
white part of the eyeball was filled with dense blood. The eyeball was
ruptured. His right -- right eye had an orbital floor fracture. He was
then operated on and they found a laceration behind the eye and they
had to remove a blood clot and he lost a lot of the fluids inside the
eyeball which resulted in significant pain. As a result of this incident,
Mr. Blanks lost sight in his left eye. There is also a risk of losing sight
in the right eye. These injuries did, in fact cause severe pain during the
time and Mr. Blanks is still experiencing severe pain. The victim stated
to the Court, in his letter, that since the loss of his vision in his eye, uh,
he cannot shave, he cannot groom himself, he cannot cook or bathe
himself. He will forever need assistance. He has daily pain in his eyes
and, on most days, it is unbearable. He has also, neurological issues he
didn’t have before. He often has nightmares. He also lost and will
forever lose the quality of enjoyment with his daughters and
grandchildren in the future. He also lost the ability for income that he

24

had prior to this incident. The Court will note that there was [sic] not
any bills provided to this Court or any request for restitution. The Court
assumes that it is because of the testimony at trial regarding a possible
civil suit. The testimony at trial, from the defendant and his brother,
was that they did not intend to cause these results. Whether that is true
or not has little, if any, to do with the outcome. Once you start down
the road using violence, there is always a possibility of unintended
results. The fact is Mr. Blanks’ life was forever changed on that fateful
night caused by the action of this defendant and his brother.

The last factor to consider is the imposition of sentences for similar crimes.

Defendant’s brother, Douglas, was tried separately and convicted of second degree

battery. He was sentenced to eight years at hard labor with one year suspended and

three years of supervised probation. His conviction and sentence were affirmed on

appeal. See State v. James, 373 So.3d 509.

Similarly, in State v. Linnear, 44,830 (La.App. 2 Cir. 12/9/09), 26 So. 3d 303,

the second circuit affirmed a near maximum sentence of four years and nine months

on a defendant who became angry, lost control, knocked the victim unconscious, and

left the scene with the victim unattended. 2 Linnear’s statement indicated that the

victim was “throwing” gang signs in his face and bumping into him at a nightclub,

and Linnear eventually “went off” and punched him, knocking him to the cement

floor. The victim did not have the opportunity to fight back, and Linnear got on top

of him and repeatedly hit him. The victim’s injuries, which consisted of multiple

jaw fractures, a head injury, and an ensuing decubitus ulcer on his back, required

weeks of intensive care and ongoing lengthy, costly rehabilitation. Linnear’s

criminal history consisted of misdemeanor convictions for disturbing the peace by

fighting and domestic abuse battery, with prior terms of probation being revoked for

2
This opinion was rendered in 2009. At that time, the maximum term of imprisonment
for second degree battery was five years at hard labor. The maximum sentence was increased to
eight years by 2014 La. Acts No. 722, § 1.

25

noncompliance. He argued on appeal that the term of incarceration would place an

undue hardship on his family as they relied on him both financially and in helping

with the care of his disabled child who suffered from cerebral palsy. He noted that

he participated in rehabilitative programs while incarcerated, including anger

management.

In short, the trial court here did not abuse its discretion in imposing the near

maximum sentence. The record supports the trial court’s reasoning that a lesser

sentence would diminish the seriousness of the offense, especially considering the

degree of injuries inflicted. Defendant’s sentence is not constitutionally excessive.

And Defendant’s second assignment is without merit.

IV. Defendant’s Third Assignment of Error

In his third assignment of error, Defendant asserts his Fifth Amendment

privilege against self-incrimination and right to remain silent was violated when the

trial court allowed his previous testimony from Douglas’s trial to be read to the jury.

The privilege against self-incrimination was addressed in State v. Lagarde,

05-268 (La.App. 5 Cir. 11/29/05), 917 So.2d 623. In that case, the fifth circuit stated

as follows:

Both the United States Constitution and the Louisiana
Constitution provide a privilege against self-incrimination. The
privilege against self-incrimination can be claimed in any type of
proceeding, whether it is civil, criminal, administrative, judicial,
investigatory or adjudicatory. Further, the privilege protects any
disclosures that the witness may reasonably apprehend could be used
in a criminal prosecution or that could lead to other evidence that might
be so used. The privilege against self-incrimination must be liberally
construed in favor of the accused or witness.

However, the Fifth Amendment does not automatically preclude
self-incrimination, whether spontaneous or in response to questions put
by government officials. In the absence of officially coerced self-
incrimination, the Fifth Amendment privilege is not violated by even

26

the most damning admissions. As explained by the Supreme Court, a
witness can lose the privilege by failing to assert it:

. . . a witness confronted with questions that the
government should reasonably expect to elicit
incriminating evidence ordinarily must assert the privilege
rather than answer if he desires not to incriminate himself
. . . But if he chooses to answer, his choice is considered
to be voluntary since he was free to claim the privilege and
would suffer no penalty as the result of his decision to do
so.

Id. at 627–28 (footnotes omitted).

In our case, the State filed a pre-trial notice of intent to use “[s]tatements made

by the defendant, Dillon James[,] while testifying in the trial of Douglas Paul James

on August 31, 2022.” In response, Defendant moved to exclude this evidence. At

the hearing on this motion, defense counsel argued that

[Dillon James] was a witness in that case. This is a different jury. It’s
a different, uh, defendant. It’s a different attorney. It’s a different trial
altogether. He was a witness. Now, he can’t be called by the State as
a witness in this case. So how can his testimony be introduced because
he gave testimony at another trial which really had nothing to do with
this one although they were co-defendants. So my point is this, Your
Honor, if -- if that is allowed, then that would cause -- cause the
defendant in this case to have to give a second thought about whether
he wanted to get on the stand in this case and everyone knows he
doesn’t have to.

In contrast, the State argued that because Defendant was advised of his right

to remain silent prior to his testimony and because Defendant waived that right by

voluntarily testifying, any incriminating statements that he made were admissible as

statements against his interest. The trial court agreed, explaining:

I specifically want to say that, in that case, of course, [counsel for Dillon
James] was in fact present. I know that [counsel] had discussions with
his client regarding the severity of if he chose to testify and, of course,
the --- the Court also, out of the presence of the jury, advised him
against his, uh, right against self-incrimination and that he could not be
forced to testify; however, if he chose, uh, to do so and waived that
right, then, of course, that testimony could be used against him in his
trial and he certainly knew that and understood and chose to go ahead

27

and testify. So, based on all that, the Court is going to deny the motion
to exclude the evidence.

On appeal, Defendant acknowledges that he was advised of his right to remain

silent by his counsel and the trial court, and Defendant acknowledges that he waived

that right and made admissions during his testimony. He nonetheless argues that

because he was not a defendant in his brother’s trial, the State could not offer his

prior statements against him during his trial: We disagree.

In State v. Redwine, 311 So.2d 855 (La.1975), the supreme court held that

there was no error in the admission of Redwine’s self-inculpatory testimony given

at a prior trial where he testified as a defense witness for his friends who were

charged with possession of opium. After the friends were convicted, the State filed

charges against Redwine, with the principal evidence used to convict him being the

testimony he had given in the prior trial. The supreme court found no error and

affirmed Redwine’s conviction. And in doing so, the court explained:

The defendant Redwine was convicted of possessing opium with
intent to distribute it, La.R.S. 40:967A, and sentenced to twenty years
at hard labor. Upon his appeal, he principally questions the admission
into evidence at the present trial of his own testimony given under oath
at a prior trial of two of his friends for the possession of the same opium.

The prior trial resulted in the convictions of the two friends, a
husband and wife, which we affirmed in State v. Devall, 296 So.2d 802
(La.1974). Redwine, the present defendant, voluntarily appeared as a
defense witness and freely testified that he himself had hidden the
opium in the Devall apartment, entirely unbeknownst to the Devalls.

Before the State introduced Redwine’s prior-trial testimony into
evidence in the present case, it produced evidence that it was freely and
voluntarily given and not compelled or the result of coercion. An
attorney had been appointed by the trial judge at the Devall trial to
confer with Redwine before he took the stand, and this attorney testified
in this case that he had informed Redwine of his constitutional rights
not to testify and against self-incrimination and that, in fact, he had
advised Redwine not to testify because of the self-incrimination
aspects. The attorney also testified as to the apparent voluntariness and
lack of promises or coercion.

28

No error is shown in the admission of the prior-trial testimony.
If a predicate is required for its admissibility as a confession or
deposition testimony in the subsequent (or present) trial, see La.R.S.
15:451 (1950), the State has adequately proved: that the defendant
freely and voluntarily took the stand and testified to help his friends;
that (in view of the strong advice of counsel not to testify) such
testimony was not compelled; and that it was not made under the
influence of coercion or inducements.

Id. at 856 (citations omitted).

Like the defendant in State v. Redwine, Defendant here was advised during

his brother’s trial that he had the right not to say anything that would incriminate

him, yet he knowingly and voluntarily waived this right and thereafter made

incriminating disclosures. Thus, no error is shown in the admission of Defendant’s

prior trial testimony, meaning that this assignment is also without merit.

DISPOSITION

Both Defendant’s conviction and sentence are affirmed. This matter is

remanded to the trial court for the establishment of a payment plan for the fine and

court costs imposed as conditions of probation in compliance with La.Code Crim.P.

art. 875.1; and the trial court is also ordered to correct the sentencing minutes to

accurately reflect the imposition of the fine and court costs as conditions of

Defendant’s probation and to accurately reflect that Defendant must pay $11.50 per

month to the Sex Offender Registry Technology Fund.

AFFIRMED AND REMANDED
WITH INSTRUCTIONS.

29