State of Louisiana v. Markus O. Andrews

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-295

STATE OF LOUISIANA

VERSUS

MARKUS O. ANDREWS

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 21-257573
HONORABLE SUZANNE M. DEMAHY, DISTRICT JUDGE

**********

GARY J. ORTEGO
JUDGE

**********

Court composed of D. Kent Savoie, Gary J. Ortego, and Ledricka J. Thierry,
Judges.

AFFIRMED.

Hon. M. Bofill Duhe
District Attorney
17th Judicial District Court
W. Claire Howington
300 Iberia St., #200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR APPELLEE:
State of Louisiana

Edward Kelly Bauman
LA Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Markus O. Andrews

ORTEGO, Judge.

In this matter, on October 29, 2021, Defendant, Markus O. Andrews, was

charged by bill of information with five counts of attempted first degree murder, in

violation of La.R.S. 14:27 and 14:30(A)(1). On July 13, 2023, the jury

unanimously found Defendant guilty as charged. On March 7, 2024, the trial court

sentenced Defendant to eighteen years at hard labor without the benefit of

probation, parole, or suspension of sentence for each count of attempted first

degree murder. The trial court also ordered all sentences to run concurrently.

Defendant timely appeals his convictions and sentences. For the following

reasons, we affirm his convictions and sentences.

FACTUAL AND PROCEDURAL HISTORY

On October 29, 2021, Defendant, Markus O. Andrews, was charged by bill

of information with five counts of attempted first degree murder, in violation of

La.R.S. 14:27 and 14:30(A)(1). Defendant subsequently pled not guilty to all

charges.

On April 6, 2022, Defendant, through defense counsel, filed a motion for the

appointment of sanity commission and a motion for mental examination as to

sanity at the time of offense and his ability to understand the proceedings against

him and assist in his own defense, which the trial court granted. On July 11, 2022,

following a sanity hearing, the trial court found Defendant competent to proceed to

trial.

On July 12, 2023, a trial by jury commenced solely on the attempted first

degree murder charges. On July 13, 2023, the jury unanimously found Defendant

guilty as charged. Thereafter, Defendant filed a motion for post-verdict judgment

of acquittal and a motion for new trial, which the trial court denied.

On March 7, 2024, the trial court sentenced Defendant to eighteen years at

hard labor without the benefit of probation, parole, or suspension of sentence for

each count of attempted first degree murder. The trial court also ordered all

sentences to run concurrently.

Defendant now appeals his convictions and sentences

ERRORS PATENT

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

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

error patent.

The trial court did not accurately advise Defendant as to the time period for

filing post-conviction relief. At sentencing, the trial court advised Defendant that

he had “two years from the date your conviction becomes final to apply for any

post-conviction relief[.]”1 According to La.Code Crim.P. art. 930.8(A) (emphasis

added), the time period for filing post-conviction relief is “two years after the

judgment of conviction and sentence has become final[.]” Thus, we find the advice

given at sentencing was only partially accurate. In State v. Hudson, 23-760, p. 2

(La.App. 3 Cir. 5/8/24) (unpublished opinion) (2024 WL 2046021), this court

found the trial court’s advice that Hudson had “‘two years from the date this

conviction becomes final to file an application for post-conviction relief’” was

inadequate. See also State v. Wilhite, 55,023, p. 21 (La.App. 2 Cir. 5/17/23), 361

So.3d 1246, 1258, writ denied, 23-847 (La. 3/5/24), 379 So.3d 1271; State v.

Robertson, 53,970, p. 18 (La.App. 2 Cir. 6/30/21), 322 So.3d 937, 947; and State v.

Simpson, 50,334, p. 19 (La.App. 2 Cir. 1/13/16), 186 So.3d 195, 206–07.

1
According to the minutes of sentencing, the trial court advised Defendant that he had two years
from the date his “sentence” became final to seek post-conviction relief.

2

Considering these cases, this court instructs the trial court to inform

Defendant of the correct provisions of article 930.8 by sending appropriate written

notice to him within ten (10) days of the rendition of this opinion and to file

written proof that Defendant received the notice in the record of the proceedings.

State v. Green, 21-14, p. 4 (La.App. 3 Cir. 10/27/21), 329 So.3d 917, 921.

ASSIGNMENTS OF ERROR

Defendant assigns four errors:

1. The evidence presented at trial, when viewed in the light most
favorable to the prosecution, was insufficient to find Markus
Andrews guilty of attempted first degree murder beyond a
reasonable doubt.

2. The trial court’s comments, remarks, interruptions, and
admonishment of Defense counsel violated Mr. Andrews’
constitutional right to a fair trial and effective assistance of
counsel.

3. The trial court erred in denying Defense counsel’s Batson
challenge.

4. The trial court erred in imposing constitutionally excessive
sentences and in failing to give sufficient consideration to Art.
894.1.

EVIDENCE PRESENTED AT TRIAL

As defendant has contested the sufficiency of the evidence at trial, we will

review the testimony presented at trial.

Deputy Nicholas Olander of the St. Martin Parish Sheriff’s Office testified

on July 17, 2021, at around 1:20 a.m., he responded to a call regarding a car being

struck by gunfire on Interstate 10 (I-10). Upon arrival, Deputy Olander located the

victims on the side of the interstate near mile maker 112 between Breaux Bridge

and Henderson. According to Deputy Olander, there were five victims in the

3

vehicle, including two juveniles. Since he was unable to stop the flow of traffic on

the interstate, Deputy Olander instructed the driver to move the vehicle to a nearby

gas station to ensure everyone’s safety. Thereafter, Deputy Olander inspected the

vehicle and noticed three impact marks, which he believed were consistent with

gunshots.

Carla Mendez, the mother, testified that at the time of the shooting, she, her

husband, and her three children were traveling from California to Baton Rouge,

Louisiana, for an International Youth Conference. According to Mrs. Mendez, her

21-year-old son Eddie was driving at the time of the shooting, and she was next to

him in the front passenger seat. Her son Jacob was seated in the backseat directly

behind her on the passenger’s side, while her husband was seated directly behind

the driver’s side seat. Sophia, the youngest child, was sitting in the back middle

seat. Ms. Mendez stated that while they were traveling on the interstate, they heard

noises and then the front passenger window shattered. Ms. Mendez testified that at

first she assumed rocks hit the window. However, whenever her husband and son

got out and inspected the vehicle, they noticed that someone had just shot at them

in their car. Ms. Mendez testified she observed that their vehicle had bullet holes

in the passenger’s side back light, the passenger’s side door, the dashboard, and the

front passenger window. Ms. Mendez noted at the time of the shooting the only

vehicles that passed them were a small car and a semi-truck.

Jacob Coreas, who was sixteen at the time of the incident, testified he was

sitting in the backseat when he was “startled” by “some thuds on the car, from

behind the car, and then, eventually, this, kind of cracking sound at the window.”

After the shooting, he, his father, and his brother examined the vehicle and noticed

there were holes in the taillight, the rear door, and in between the windows, all on

the passenger’s side of their vehicle. According to Jacob, there was no damage to
4

the vehicle prior to the incident. Jacob recalled seeing only a semi-truck and the

taillights of an unidentified vehicle immediately after the shooting.

Next, Eddie Coreas testified regarding his recollection of the events that

occurred that night. According to Eddie, he was driving in the left lane at

approximately 79 to 80 miles per hour when a dark Kia Soul suddenly started

tailgating them. Eddie stated as the car passed them, they heard noises and saw the

front passenger window shatter. Eddie further testified that the Kia Soul and a

semi-truck were the only vehicles on the interstate at the time of the incident. At

first, Eddie thought rocks had hit the window, so he pulled over, and he and his dad

inspected the vehicle. While they were inspecting the vehicle, they noticed bullet

holes in the taillight, passenger door, and passenger window. They called the

police and notified them of what had happened, and it took them approximately

five to ten minutes after the shooting occurred to contact the police. Eddie also

testified that he was the only person in the vehicle to get wounded, as glass shards

got lodged in his leg.

Detective Charles (“Chuck”) Scott of the St. Martin Parish Sheriff’s Office

testified that he assisted Detective Vicki Lagrange by researching the license plate

recognition (LPR) cameras to identify the vehicle that passed the victims on the

interstate. According to Detective Scott, the closest LPR camera to mile marker

112 where the shooting occurred was located at mile marker 113.5. Detective

Scott stated he retrieved the camera footage from mile marker 113.5 and then

viewed the footage about ten to fifteen minutes prior to the 911 call to see what

vehicles passed. Detective Scott further testified that the LPR camera showed a

vehicle traveling on the interstate about a mile and a half from the scene at 1:11

a.m., just minutes after the shooting, which placed the Kia Soul at the scene of the

shooting. Detective Scott testified that there was not any entrance or exit ramps
5

between mile markers 112 and 113.5. Detective Scott then ran the license plate

number of the vehicle in the National Crime Information Center (NCIC), which

verified the vehicle shown on the LPR camera was a black Kia Soul, which

Detective Scott learned that the vehicle was owned by a rental car company located

in Atlanta, Georgia.

Detective Scott further testified that he used the LPR system to obtain the

whereabouts of the vehicle before the incident, stating:

A . . . I expanded the search for that particular license plate to see
if it had been in our area. And, there is [sic] other cameras further
West on I-10, so, my focus was to see if that vehicle had been
following our victim, to try and establish a route that they may have
traveled together. So, when I did that, I came up with some daytime
images, which are a lot clearer. You can actually see that it’s a black
Kia Soul, same license plate, on the 16th, which a lot of those reads
were in Lafayette [P]arish the day before the incident.

Q Were you able to determine where the vehicle was -- the LPR
system, able to determine where that vehicle had been prior to the
incident?

A Yes, I was.

Q Where was that?

A At 12:57 p.m., it hits on US 90, Evangeline Throughway, near
the Lafayette airport. It hit two LPRs, back-to-back, at 12:57.

Q So, that would indicate what?

A It would indicate that that’s where the vehicle was at the time
and it basically --

Q Would it give you a direction of travel? You’re saying it hit two
LPR systems, back-to-back?

A Yes.

Q Could you establish a direction of travel of the vehicle from
that?

A Yea. It was traveling north on Evangeline Throughway, in the
direction of I-10.

6

Q That would have been -- what time was that?

A 12:57 a.m. I think I said p.m. earlier, but, I corrected myself. It
was 12:57 a.m.

Q Yes. It’s morning, essentially. Is that consistent with the LPR
reader reading it at 1:11 in the morning, on I-10?

A Yea. It’s reasonable. However, the estimated speed -- I think
the person would have been traveling higher than the posted speed
limit because it’s basically, three minute -- you’re looking at fourteen
minutes, which is possible, but, in my opinion, I think the person
driving was driving pretty fast.

Q When you say, it’s possible, the LPR -- they track him here,
then, they track him there (indicating). So, is there any --

A It’s definitely in that direction. Yeah. It’s definitely possible to
be -- I mean, and it’s the same -- I’ve never had this not read -- I
mean, it’s the same vehicle. There is no denying that it’s the same
vehicle. Same license plate.

Detective Vicki Lagrange of the St. Martin Parish Sheriff’s Office, who was

the lead investigator in the case, testified that on the night of incident, she

responded to a call regarding a drive-by shooting. Detective Lagrange stated she

met the victims at a gas station right off the interstate in Henderson, and whenever

Detective Lagrange arrived at the gas station, she spoke with the victims and

inspected their vehicle, which she identified as a Toyota Camry. According to

Detective Lagrange, there were four bullet holes found in the victims’ vehicle: one

in the passenger taillight, one in the passenger side door, one in the passenger

window frame, and one bullet hole through the front passenger window. Detective

Lagrange testified that the impact marks/holes found on the victims’ vehicle were

consistent with gunshots, and based upon her experience in law enforcement she

knew the holes were bullet holes.

Thereafter, Detective Lagrange discussed her findings after processing the

vehicle. According to Detective Lagrange, she found a bullet fragment in the black

rubber between the door handle and the door opening. Detective Lagrange stated
7

that she was only able to recover one bullet fragment because the others more than

likely fell out on the interstate. Detective Lagrange further testified she was able to

determine the trajectory of the bullets based upon the bullets’ directions of travel.

According to Detective Lagrange’s testimony the bullets came from behind and on

the right side of the victims’ vehicle, which indicated the driver of a passing

vehicle would have been the shooter.

After Detective Lagrange inspected the vehicle and spoke with the victims,

she secured the bullet fragment and brought it to Acadiana Criminalistics

Laboratory (ACL) to have it processed. 2 Detective Lagrange also provided

Detective Scott with a description of the vehicle, wherein Detective Scott was able

to locate the vehicle, a black Kia Soul, and obtain the vehicle’s license plate

number.

According to Detective Lagrange, she also obtained information that the

black Kia Soul was seen driving on Verot School Road at 12:57 a.m., which was

approximately fourteen minutes from exit 109 in Breaux Bridge. After putting the

license plate number into the database, Detective Lagrange also learned the vehicle

was registered to a rental company in Atlanta. Detective Lagrange then contacted

the rental company, and obtained the name of the renter, which was the Defendant,

Markus Andrews. According to the rental company, Defendant rented the car in

April and the return was in May, however, he failed to return the rental.

After Detective Lagrange received Defendant’s name from the rental car

company, she researched him in a law enforcement database and discovered that he

had been arrested in St. John the Baptist Parish approximately an hour after the

shooting. Detective Lagrange subsequently called St. John the Baptist Parish,
2
The ballistics report determined that the bullet fragment lacked “sufficient barrel markings for
comparison and was not suitable for identification with any firearm.”

8

received information regarding Defendant’s arrest, and obtained a copy of a 911

call Defendant made to the St. James Parish Sheriff’s Office.3

The following colloquy as to Defendant’s called 911 at 2:17 a.m. was as

follows:

Q What’s the time frame from that and this?

A It’s a little over an hour.

Q So, he continued to travel on I-10?

A That is correct. The time would match. After speaking to the
victim, he did admit that he was speeding. He said he was traveling,
approximately, seventy-nine to eighty miles per hour. When the
vehicle passed him up, the vehicle was speeding, which would make
sense that he made it to that area in about an hour.

Q Right. You know that he was -- from that LPR, you know that
he was at a certain location at 1:11. Right?

A Absolutely. Yes.

Detective Lagrange further testified as follows:

Q What do you know about the continuation of this?

A After I got the phone call, I also contacted the jail. They told me
that he was released. After I called, I was able to make contact with
the officer . . . who came in contact with that vehicle, which was
Detective Michael Dean. And, Micheal Dean was able to tell me that
he stopped the vehicle.

....

Q After talking to him, without telling me what he said, can you
tell me, based on your conversation, what you did next?

A Yes. I was able to locate the vehicle, which was towed to a
wrecker yard.

Q And, you were able to go and view the vehicle?

3
According to Detective Lagrange, Defendant made the 911 call while traveling through St.
James Parish but subsequently was arrested in St. John the Baptist Parish.

9

A Yes. I was able to obtain a search warrant through St. John the
Baptist, in the jurisdiction where the vehicle was.

....

Q Did you, in fact, collect any evidence?

A I did.

Q Tell me what you collected? Not just you. Give me, in total,
what did you -- any evidence that you obtained of [sic] St. John the
Baptist [P]arish.

A On the morning the incident took place, Detective Dean was
able to see an AK 47 from the black Kia Soul that was occupied by
Markus Andrews. He also located three spent rounds, which is [sic]
the casings. Three casings of the AK 7.62’s inside that vehicle, which
he secured and later, was [sic] given to me and I placed into evidence.

Detective Lagrange further testified that during their investigation they also

found a .22 shell casing and boxes with Defendant’s name on them in the Kia Soul.

After the search of the vehicle, Detective Lagrange secured an arrest warrant for

Defendant.

Detective Lagrange stated that upon arrest Defendant refused to speak with

her, so she secured a warrant to search the contents of Defendant’s cellphone.

Detective Lagrange testified messages on Defendant’s phone were found where

Defendant told another person that “he was ran down by some people on the

highway,” which he stated required him to fire on that person. Defendant, himself,

made a 911 call at 2:17 a.m., which was approximately an hour from the scene of

the shooting where he stated he had been involved in a shooting on the highway.

On cross-examination, Detective Lagrange elaborated more on the 911 call

Defendant made, stating:

Q . . . Y’all also discussed that Mr. Andrews reported that he was
being fired upon?

A Yes.

10

Q Tell us about that.

A He said that somebody was shooting at him[,] and he had to
shoot back, which places him shooting -- firing a firearm.

Q Where?

A He was on the Interstate when he made that call, saying
somebody had shot at him, and he had to shoot back.

Q But, he didn’t place that phone call until he got to St. James
[P]arish.

A That is correct.

Q Is there anything else in that phone call that you found
important?

A Yes. He said that there was [sic] twenty to forty people
following him. And, I know, at the time the black Kia Soul passed my
victim’s vehicle, there was [sic] no vehicles on the road, other than,
the semi-truck that was in front.

Thus, Detective Lagrange’s testimony, along with the evidence and

photographs of the victim’s vehicle, confirmed the testimony of the victims that

Defendant shot at their vehicle as he passed them in the right lane of I-10 in the

dark Kia Soul that he was apprehended driving later that night.

Lieutenant Michael Dean of the St. John the Baptist Parish Sheriff’s Office

testified he made contact with Defendant around 2:30 a.m., which was after the

shooting. Lieutenant Dean stated while he and another deputy were patrolling,

they received a call regarding a shooting that occurred between two vehicles on I-

10. Lieutenant Dean stated as he was travelling towards I-10, he noticed a Kia

Soul exiting the interstate. According to Lieutenant Dean, no other vehicles

appeared to be around or behind the Kia Soul.

Lieutenant Dean then testified as follows:

A . . . I turned around and notified dispatch and other units, that
were already coming to the area, that the black Kia Soul was traveling
Southbound on Belle Terre Boulevard at a high rate of speed. I
activated my emergency lights and sirens on my unit, at which time
11

the black Kia Soul continued to travel Southbound on Belle Terre
Boulevard, disregarding the lights and sirens. He ran the red light at
Belle Terre Boulevard and St. Andrews Boulevard, continuing
Southbound. The next intersection is the intersection of Fairway
Boulevard and Belle Terre Boulevard. There is a red light there. There
were numerous marked and unmarked units already sitting in that area
by that red light with all of their lights on. He continued through that
intersection, ran another red light and continued Southbound on Belle
Terre Boulevard. Numerous units, besides myself [sic], converged on
the vehicle. We tried to initiate a rolling road block, which would be
suspect vehicle, my unit, and we try to get units beside it and in front
of it. And, once we do that, it’s a box-in technique. We gradually slow
down to make them stop. Well, we couldn’t get anybody to the right
hand side because he was in the right lane. At that point, he drove off
the roadway into a grassy lot to try to get around the lead car, but, was
forced back on to Belle Terre, due to a wooden fence by a business.
At that point in time, we were finally able to get the vehicle to stop.
We conducted a felony vehicle stop on it, ordered the driver out, at
which time, a solo black male exited the vehicle. He provided his
name of Markus Andrews to myself [sic], as he was detained and
advised of his Miranda Rights. As we tried to approach the car to see
if there was [sic] any other suspects in the vehicle, there were three
very large pit bulls in the vehicle that prevented our further
advancement on the vehicle. So, we backed off and called for Animal
Control to come, which took almost two hours to get there. So, we sat
on this car for two hours with three large pit bulls, rocking this Kia
Soul.

Q So, there was one occupant in the car?

A Yes, ma’am.

Q And, that occupant was obviously the driver?

A Yes, ma’am.

Lieutenant Dean stated after the pit bulls were removed from the vehicle,

they searched the vehicle and noticed a “AK 40-style pistol, commonly referred to

as a Draco style” pistol on the driver’s side floorboard and a black cylindrical

object, which was consistent with a suppressor. Lieutenant Dean further testified

they also found three 7.62x39 shell casings in the vehicle, which were consistent

with an AK-47 round. Lieutenant Dean also stated they found a .22 spent casing in

the passenger side door. However, Lieutenant Dean noted they were unable to

12

locate a firearm that was compatible with the .22 projectile during the search of the

vehicle.

Lieutenant Dean further testified:

Q . . . So, you found cartridge casings, spent casings in the
vehicle?

A Yes.

Q What was significant about the location of the cartridge
casings?

A Specifically, cartridge casings located in this vehicle, it pertains
to the way they are ejected from this weapon would be -- if I am
driving, the only way I am going to get a casing under the driver seat
or by the instrument panel, behind the steering wheel, would be, my
body would have to be canted toward the driver side window and the
weapon would have to be pointed up the driver side window to get
that ejection port and that trajectory.

Q Okay. Because one was on the dashboard?

A One was on the instrument cluster, right behind the steering
wheel, around where the speedometer, tachometer is. It was right
there. One was under the driver seat, which could have hit the
dashboard, fallen under feet. Depending on if the subject is shooting
the weapon and moving the weapon, which could result as one being
on the passenger-side floorboard, because it could eject, hit the
windshield, the dashboard, or the floor board, which would put the
round -- that’s why a round would be on the passenger-side floor
board.

Q Would it be possible for a passenger to fire that gun out of the
driver[s] side window?

A If you look at the weapon again, it’s not a shoulder stock. It has
a very short barrel length. That is a very loud and high-powered rifle.
When a gun is shot at close distance from the muzzle, whether the
barrel is long or short, you’re gonna [sic] get -- gun powder still
comes out, and it will singe clothing, if it’s close, or skin, if the skin is
close to the end of the barrel. The night of the incident, with Mr.
Andrews, he was asked if he was injured in any way, shape, or form,
which is part of our policy of our department. He described no
injuries. He didn’t observe to have any injuries; any powder burns or
anything like that on his face or body that would be in relation to that
gun being fired close to him, and without a muzzle-break device on
that rifle, and the shortness of the barrel, if it was fired from the
passenger side of the vehicle, somebody reaching over towards the
driver’s side, he would have suffered significant hearing damage, as
13

well as, temporarily blinded by the flash that the muzzle caused. At
night, there is a flame that’s going to come out of that weapon when
it’s fired. I mean, there will be a flame even in the daytime, but, at
nighttime, you’ll be able to see it, obviously, more visible.

According to Lieutenant Dean, the AK-47 rifle found in the vehicle was not

reported as stolen.

ON THE MERITS:

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the evidence presented at trial, when viewed in the

light most favorable to the prosecution, was insufficient to find him guilty of

attempted first degree murder beyond a reasonable doubt.

Standard of Review

The analysis for insufficient-evidence claims is well settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however, the
record must reflect that the state has satisfied its burden of proving the
elements of the crime beyond a reasonable doubt.

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

The testimony of a single witness, if believed, and absent internal

contradictions or irreconcilable conflicts with physical evidence, is sufficient to

support a conviction. State v. Pierre, 14-1071 (La.App. 3 Cir. 5/6/15), 170 So.3d

348, writ denied, 15-1151 (La. 5/13/16), 191 So.3d 1054.

14

This court has stated the following regarding appellate review in cases

relying on circumstantial evidence:

When the conviction is based upon circumstantial evidence, La.R.S.
15:438 provides that the state “must exclude every reasonable
hypothesis of innocence” in order to convict. State v. Camp, 446
So.2d 1207, 1209 (La.1984). “Circumstantial evidence consists of
proof of collateral facts and circumstances from which elemental
factors may be inferred according to reason, experience and common
sense.” State v. Burns, 441 So.2d 843, 845 (La.App. 3 Cir. 1983).
However, La.R.S. 15:438 does not establish a stricter standard of
review on appeal than the rational juror’s reasonable doubt standard.
The statute serves as a guide for the jury when considering
circumstantial evidence. On appeal, the issue is whether a rational
trier of fact, when viewing the evidence in a light most favorable to
the prosecution, could find that all reasonable hypotheses of
innocence were excluded. State v. Williams, 13-497 (La.App. 3 Cir.
11/6/13), 124 So.3d 1236, writ denied, 13-2774 (La. 5/16/14), 139
So.3d 1024.

State v. Baumberger, 15-1056, pp. 10−11 (La.App. 3 Cir. 6/1/16), 200 So.3d 817,

826−27, writ denied, 16-1251 (La. 5/26/17), 221 So.3d 859, cert. denied, 583 U.S.

950, 138 S.Ct. 392 (2017).

Attempted First Degree Murder

In the instant case, Defendant was convicted of attempted first degree

murder. First degree murder is defined as the killing of a human being when the

offender has the specific intent to kill or to inflict great bodily harm and is engaged

in the perpetration or attempted perpetration of assault by drive-by shooting.

La.R.S. 14:30(A)(1). An assault by drive-by shooting is an assault committed with

a firearm when an offender uses a motor vehicle to facilitate the assault. La.R.S.

14:37.1(A). An attempted first degree murder requires the offender do or omit to

do an act for the purpose of and tending directly toward the accomplishing of his

object and have the specific intent to kill. La.R.S. 14:27(A).

15

To support a conviction for attempted murder, only specific intent to kill is

sufficient. State v. Hongo, 96-2060, p. 2 (La. 12/2/97), 706 So.2d 419, 420.

Specific 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 need not be proven as a

fact but may be inferred by the circumstances of the transaction and actions of the

defendant. State v. Graham, 420 So.2d 1126 (La.1982). The simple act of pointing

a gun at the victim’s vehicle and firing numerous shots at the occupants in the

vehicle shows specific intent to kill. State v. Bethley, 12-853, p. 7 (La.App. 3 Cir.

2/6/13), 107 So.3d 841, 847.

Arguments in Brief

In his brief, Defendant contends that no rational trier of fact could have

found him guilty of attempted first degree murder beyond a reasonable doubt.

According to Defendant, none of the occupants in the vehicle could identify the

shooter or definitively state whether there was more than one person in the vehicle

that they believed shot at them. Defendant further asserts he did not stop until he

was in St. John the Baptist Parish, which was over 100 miles away from the scene.

Although he admits he called 911 to report that he had been shot at and returned

fire, Defendant claims he never stated that the shooting occurred on I-10.

Defendant also contends that although a firearm and spent casings were discovered

in his vehicle, there was no evidence presented at trial that proved the casings were

a match to the bullet holes found in the victims’ vehicle.

Defendant further argues the suppressor and spent casings recovered from

his vehicle were not a match to the weapon found in his possession. According to

Defendant, no gunshot residue test was conducted to reveal whether he fired a

weapon on the night of the incident, and no gunshot powder burns were noticed on

16

Defendant. Defendant also claims the authorities never attempted to locate Tyler

Myers. As such, Defendant contends the State failed to meet its burden of proving

he was guilty of attempted first degree murder beyond a reasonable doubt.

On the contrary, the State argues that there was sufficient evidence presented

to determine that a crime occurred, and Defendant committed the offense.

According to the State, the evidence showed that the shots were fired at the victims

and came from a black Kia Soul that was driving over 80 miles per hour on I-10 at

1:00 a.m. The State contends the only Kia Soul shown to have passed on the

interstate at that time and near the scene of the shooting was rented by Defendant.

The State further contends the evidence presented established that there was

no opportunity for another vehicle to either enter or exit the interstate between the

location of the shooting and the LPR camera. The State also asserts that Defendant

called 911 and claimed that he had been involved in a shooting approximately an

hour after the incident and about 100 miles down the interstate. The State also

argues that several spent casings and an AK-47 “Draco style” pistol were found in

Defendant’s possession after a subsequent search of the rental. Moreover, the

State contends there was a “direct line” between the dark colored Kia Soul seen by

the victims, captured on the LPR system, and pulled over in St. John the Baptist

Parish. The State claims Defendant was the only occupant in the vehicle and there

was physical evidence presented that suggested that the AK-47 was fired out of the

driver’s side of the vehicle.

According to the State, it proved the identity of the shooter beyond a

reasonable doubt, and given the evidence, a reasonable jury could conclude that the

shots fired at the victims and their vehicle came from the black Kia Soul seen

immediately prior to the shooting. Additionally, the State contends there was

insufficient time for Defendant to swap drivers or passengers and still make it to
17

St. John the Baptist Parish in the given time frame. As such, the State argues that,

when viewed in the light most favorable to the State, there was sufficient evidence

presented to establish each element of attempted first degree murder and that

Defendant’s argument is without merit.

Analysis

At the trial, Deputy Olander testified the impact marks found on the victims’

vehicle were consistent with gunshots. Eddie Coreas, the driver of the vehicle,

identified the car that passed his family on the interstate at the time of the shooting

as a “dark Kia Soul.” While searching the LPR System, Detective Charles Scott

spotted a black Kia Soul driving past mile marker 113.5 at 1:11 a.m., minutes after

the shooting, which placed the black Kia Soul at the scene. According to Detective

Scott, there were no exit or entrance ramps between mile markers 112 and 113.5

where the shooting occurred, so there was no opportunity for another vehicle to be

involved in the shooting. Detective Scott also recognized the same black Kia Soul

on the LPR system traveling north on “US 90, Evangeline Throughway, near the

Lafayette airport” in the direction of I-10 at 12:57 a.m. Detective Scott stated

depending on the rate of speed the Kia Soul was traveling it would have been able

to drive from Evangeline Throughway to I-10 near mile marker 113.5 within the

fourteen-minute time frame.

Although Defendant argues the State failed to prove he was the shooter,

Detective Lagrange testified that Defendant, himself, made a 911 call at 2:17 a.m.,

which was approximately an hour from the scene, while in St. James Parish

reporting his involvement in a shooting. Considering the time between this

shooting and Defendant’s arrival in St. John the Baptist Parish, we find that there

was insufficient time for Defendant to drop off an alleged passenger. Moreover,

18

Lieutenant Dean stopped the same black Kia Soul in St. John the Baptist Parish

with Defendant as the driver and in possession of an AK-47 “Draco style” firearm.

Thus, it was reasonable for the jury to believe that Defendant, who was the

driver of the Kia Soul, was the shooter even though none of the occupants in the

victims’ vehicle were able to identify the shooter. Additionally, it was reasonable

for the jury to conclude the bullet holes came from the weapon found in

Defendant’s possession. Thus, this court finds that a rational trier of fact could

have found Defendant guilty of attempted first degree murder beyond a reasonable

doubt.

Therefore, we find, when viewed in a light most favorable to the

prosecution, the evidence adduced at trial was sufficient to prove Defendant

committed five counts of attempted first degree murder, and this assignment of

error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In Defendant’s second assignment of error, he asserts the trial court’s

comments, remarks, and interruptions violated his constitutional right to a fair trial

and that of ineffective assistance of counsel.

Standard of Review

During a jury trial, the judge has a duty to remain neutral and
impartial, while administering the law through rulings on evidence
and charging the jury as to the applicable law. State v. Baldwin, 388
So.2d 679, 686–87 (La.1980). “A judge is more than a moderator; he
is charged to see that the law is properly administered, and it is a duty
which he cannot discharge by remaining inert.” United States v.
Marzano, 149 F.2d 923, 925 (2nd Cir.1945); see also Baldwin, 388
So.2d at 686–87. In the discharge of his duties, the judge shall not
comment upon the facts of the case in the presence of the jury, either
by commenting on evidence or testimony or by giving an opinion as
to what has been presented, proved, or not proved. La.C.Cr.P. art. 772.

If, during trial, a defendant believes that the trial court commented
improperly on the evidence or made prejudicial comments in the
presence of the jury, then defendant should object at the time of the

19

occurrence or move for a mistrial. Baldwin, 388 So.2d at 686;
La.C.Cr.P. arts. 770, 775. A motion for mistrial or a contemporaneous
objection to the alleged prejudicial comments or judicial bias
preserves the issue for review on appeal. La.C.Cr.P. art. 841. See State
v. Ellwest Stereo Theatres, Inc., 412 So.2d 594, 597 (La.1982).

We review claims of prejudicial comments or bias under a harmless

error analysis.

Harmless-error review looks . . . to the basis on which “the jury
actually rested its verdict.” Yates v. Evatt, 500 U.S. 391, 404, 111
S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991) (emphasis added). The
inquiry, in other words, is not whether, in a trial that occurred without
the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.

Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124
L.Ed.2d 182 (1993). In order to constitute reversible error, the judge’s
improper comments must be such as to have influenced the jury and
contributed to the verdict, thereby denying the defendant a fair trial.
State v. Johnson, 438 So.2d 1091, 1102 (La.1983).

State v. Diggins, 12-15, pp. 13–14 (La.App. 4 Cir. 10/23/13), 126 So.3d 770,

784, writ denied, 13-2742 (La. 5/23/14), 140 So.3d 723.

A. Trial Court’s Comments:

As to the issue of the trial court’s comments during voir dire, and the trial, we

note that defense counsel failed to object to these statements. Thus, Defendant is

precluded from asserting any claims regarding the trial court’s statements on

appeal. La.Code Crim.P. art. 841; State v. Young, 344 So.2d 983 (La.1977).

B. Jury Instructions

During deliberations, the jury requested clarification on the charges against

Defendant. Thereafter, the following colloquy occurred (emphasis added):

THE COURT: Okay, we got a note that the jury wants me to tell
them the differences between the different charges. So, we start
out with attempted first-degree murder. First-degree murder is
the killing of a human being when the offender has the specific
intent to kill or inflict great bodily harm and is engaged in the
perpetration or attempted perpetration of assault by drive by
shooting.
20

MS. BROUSSARD [defense counsel]: May we approach, Your
Honor?

MR. SONGY [prosecutor]: Approach, Your Honor?
(SIDEBAR)

MS. ROSE [defense counsel]: I think you’re reading from the old
paper.

MS. LOUVIERE [prosecutor]: We had to strike the great bodily harm
part.

MR. SONGY: We struck the great bodily harm.

MS. ROSE: Right.

(COUNSEL RETURN TO SEATS)

THE COURT: So, let me start over. First-degree murder is the killing
of a human being, when the offender has the specific intent to kill and
is engaged in the perpetration, or attempted perpetration of assault by
drive-by shooting. So, there is [sic] two elements. Not only the intent
to kill or inflict great bodily harm, but, it has to be engaged in the
perpetration, or attempted perpetration, of assault by drive-by
shooting. Assault by drive-by shooting is an assault committed with a
firearm; when the offender uses a motor vehicle to facilitate the
assault. The term drive-by shooting means the discharge of a firearm
from a motor vehicle on a public street or highway, with the intent
either to kill, cause harm to, or frighten another person. Assault is an
attempt to commit a battery or the intentional placing of another
human being in reasonable apprehension of receiving a battery. A
battery is the use of force or violence on the person of another. An
assault is an attempt to commit a battery. So, the bullet didn’t hit
anybody and didn’t kill anybody. One young man got hit by a
shard of glass.

MS. BROUSSARD: Objection. Approach?

MS. LOUVIERE: Your Honor, may we approach?

THE COURT: You may make an objection after I’m finished
explaining everything. That’s not what this man is charged with.
He is charged, basically, with attempted first-degree murder by assault
by drive-by shooting.

....

THE COURT: All right. That’s it.

MS. BROUSSARD: Judge, may we put our objection on the record?

21

THE COURT: Okay. I’m sorry. Go ahead.

MS. BROUSSARD: What we were objecting to was, Judge, during
the reading of the jury instructions, there were times where you were
commenting on the actual evidence, and we just wanted that to be
clear that would be persuasive to the jury that you were making a
belief, one way or another. That’s what we were objecting to, Your
Honor.

THE COURT: Well, we must have a total different recollection of
what I said, but, the transcript will show. What I was trying to do is
explain the context in which the charges are being given; not making
any comment, whatsoever, on the weight or sufficiency of the
evidence, but, simply what the elements of the particular crimes were.

MS. BROUSSARD: Yes, sir. We understand. We just wanted to make
sure that we didn’t give the jury any inferences. And, just note our
objection for the record. Thank you.

THE COURT: Well, I don’t know if anyone else is, but, I’m
convinced I didn’t give the jury any inferences as to what they should
do. All right. Thank you.

MR. BROUSSARD: Thank you, Your Honor.

Defendant now argues that the trial court’s statement was a “comment or

opinion as to what has been proved or not proved, and such a statement is

prohibited by La.Code Crim.P. art. 772 and 806.” The judge in the presence of the

jury shall not comment upon the facts of the case or charge the jury concerning the

facts of the case “either by commenting upon or recapitulating the evidence,

repeating the testimony of any witness, or giving an opinion as to what has been

proved, not proved, or refuted.” La.Code Crim.P. arts. 772, 806.

In State v. Gallow, 338 So.2d 920 (La.1976), the defendant argued that the

trial court committed legal error by commenting on the facts of the case and

expressing an opinion on his guilt or innocence during voir dire. Due to issues with

the transcript, there were two versions of the trial court’s statements. One version

showed that the trial court stated, “There is no attempt involved here. He is on trial

for the person who died . . . killed, not for the one he didn’t get.” The other version

22

showed that the trial court stated, “There is no attempt involved here. He is on trial

for the person who got killed not for the one who didn’t get killed.” Id. at 922.

On review, the Louisiana Supreme Court stated:

Having reviewed the judges comment in context, we construe it to
mean that the defendant was charged with murder, not attempted
murder. (The defendant was charged with second degree murder of
Bobby Miller, who was struck by a bullet intended for another.)
Even if the comment were construed to be a factual comment,
however, in our opinion the error would not be reversible. Firstly, the
comment by the court during voir dire is not a comment on the facts
within the purview of Article 772 of the Louisiana Code of Criminal
Procedure. Secondly, the remark did not relate either directly or
indirectly to any of the grounds listed in Article 770 of the Louisiana
Code of Criminal Procedure requiring a mistrial if requested. At most,
the comment would constitute a remark under Article 771 of the
Louisiana Code of Criminal Procedure, which can be cured by an
admonition. Such an admonition was given.

It is well settled that a verdict will not be set aside because of
improper remarks by the judge unless the reviewing court is
thoroughly convinced that the jury was influenced by the remarks and
that they contributed to the verdict. State v. Hammler, La., 312 So.2d
306 (1975); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965).

Id. at 922.

Considering Gallow, we cannot say that the trial court’s comments were

improper, we find that the trial court was simply stating that Defendant was

charged with attempted murder, not murder. Moreover, and contrary to La.Code

Crim.P. arts. 772 and 806, we find the trial court’s comments were not on the facts

of the case, nor that the trial court’s comments influenced the jury. Therefore,

Defendant’s argument is without merit.

Admission of Evidence

Defendant additionally claims the trial court admitted evidence without

allowing defense counsel to object, as to the following colloquy (emphasis added):

THE COURT: Let the record show that the exhibit is being published
to the jury without objection.

MS. BROUSSARD: No objection, Your Honor.
23

MS. LOUVIERE:

Q Ms. Lagrange, you also collected pictures, which would have
been taken by another deputy, or one of the initial deputies?

A Yes.

Q You reviewed those photographs?

A Yes.

MS. LOUVIERE: May I approach?

THE COURT: Yes.

MS. LOUVIERE: Your Honor, we’d like the record to reflect that the
State’s going to approach with State’s Exhibit 9, for identification
purposes only.

MS. BROUSSARD: Your Honor, we would have to object to it
because these are not pictures that Ms. Lagrange actually took.

THE COURT: Well, you could ask her some questions as to how
she came into possession of them and see if she recognizes them.

MS. LOUVIERE:

Q Can you identify the documents that I’ve just given to you?

A Yes.

Q What are those documents?

A Those are photographs that were taken by the initial deputy of
the vehicle on the side of Interstate 10.

Q Which vehicle?

A The victim’s vehicle.

Q You recognize that to be the victim’s vehicle?

A Yes, ma’am.

Q Do those pictures accurately depict the same vehicle that you
took photographs of?

A Yes, ma’am.

24

Q It’s just a different kind of view, or a total view of the vehicle?

A Yes, ma’am.

Q You know it to be the victim’s vehicle?

A Yes, ma’am.

MS. LOUVIERE: Your Honor, the State would move to offer, file,
and introduce what’s been marked State’s Exhibit 9, in globo.

MS. BROUSSARD: We would object, again. I think that these are
pictures that was [sic] taken by another officer, who I think is present,
who could have identified these pictures.

THE COURT: He still could. So, I will overrule the objection.

MS. LOUVIERE: Thank you, Your Honor.

Defendant further argues the trial court was biased towards the State by

assisting the State with its introduction of photographic evidence.

In State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, the

defendant argued that the trial court erred by admitting photographic evidence

without proper authentication. In that case, the State introduced the evidence

during one of the responding officer’s testimony. The defendant subsequently

objected to the introduction of the photos because the testifying officer did not take

the photos. The trial court overruled the defendant’s objection and allowed the

State to introduce the photos into evidence. On appeal, the fifth circuit stated:

Generally, photographs are admissible if they illustrate any fact, shed
light upon any fact or issue in the case, or are relevant to describe the
person, place, or thing depicted. State v. Becnel, 04–1266, p. 16
(La.App. 5 Cir. 5/31/05), 904 So.2d 838, 851. The proper foundation
for the admission of a photograph into evidence is laid when a witness
having personal knowledge of the subject depicted by the photograph
identifies it as such. Id. It is well settled that a photograph need not be
identified by the person who took it to be admissible. Id.

Officer Kowalski identified the photographs as taken of the shopping
basket and cart defendants were pushing in the store at the time of the
incident. The photographs clearly shed light on the described looted
items. Thus, the photographs were properly admitted.

25

Id. at 655.

Here, the State introduced the photographic evidence by asking Detective

Lagrange if she recognized the vehicle in question, just as in Pearson. Although

the trial court may have suggested that the State ask Detective Lagrange how she

came into possession of the photos, we note Detective Lagrange’s testimony as to

her knowledge of the vehicle in the photos was enough to make the photos

admissible. Moreover, we note defense counsel did not object based on any

alleged bias by the trial court, and a new ground for an objection cannot be

presented for the first time on appeal. State v. Cressy, 440 So.2d 141 (La.1983).

Thus, we find this argument by Defendant to be without merit.

ASSIGNMENT OF ERROR NUMBER THREE

This assignment of error is based upon Defendant’s Batson challenge.

Defendant, who is an African American male, claims the trial court erred in

denying his defense counsel’s Batson challenge.4 Specifically, Defendant contends

the trial court’s use of a “systematic exclusion” was the incorrect standard for a

Batson analysis and that the State’s reasons for peremptorily striking the

prospective African American jurors were not race-neutral, plausible, or sufficient.

Standard of Review

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69,
the United States Supreme Court held that the use of peremptory
challenges to exclude persons from a jury based on their race violates
the Equal Protection Clause. The jurisprudence regarding Batson is
well-settled in Louisiana:

A defendant’s Batson challenge to a peremptory strike requires
a three-step inquiry. First, the trial court must determine
whether the defendant has made a prima facie showing that the
prosecutor exercised a peremptory challenge on the basis of
race. Second, if the showing is made, the burden shifts to the
prosecutor to present a race-neutral explanation for striking the
juror in question. Although the prosecutor must present a

4
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986).
26

comprehensive reason, the second step of this process does not
demand an explanation that is persuasive, or even plausible; so
long as the reason is not inherently discriminatory, it suffices.
Third, the court must then determine whether the defendant has
carried his burden of proving purposeful discrimination. This
final step involves evaluating the persuasiveness of the
justification proffered by the prosecutor, but the ultimate
burden of persuasion regarding racial motivation rests with, and
never shifts from, the opponent of the strike.

Alex v. Rayne Concrete Serv., 05-1457, 05-2344, 05-2520, p. 15 (La.
1/26/07), 951 So.2d 138, 150-51 (quoting State v. Snyder, 98-1078
(La. 9/6/06), 942 So.2d 484).

In discussing the first Batson criterion, the United States
Supreme Court has explained that “a prima facie case of
discrimination can be made out by offering a wide variety of
evidence, so long as the sum of the proffered facts gives ‘rise to
an inference of discriminatory purpose.’ ” Johnson v.
California, 545 U.S. 162, 169, 125 S.Ct. 2410, 2416, 162
L.Ed.2d 129 (2005) (footnote omitted) (quoting Batson, 476
U.S. at 96, 106 S.Ct. 1712). The court further explained:

“To establish such a case, the defendant first must show that he
is a member of a cognizable racial group, and that the
prosecutor has exercised peremptory challenges to remove from
the venire members of the defendant’s race. Second, the
defendant is entitled to rely on the fact, as to which there can be
no dispute, that peremptory challenges constitute a jury
selection practice that permits ‘those to discriminate who are of
a mind to discriminate.’ Finally, the defendant must show that
these facts and any other relevant circumstances raise an
inference that the prosecutor used that practice to exclude the
veniremen from the petit jury on account of their race.”

Id. (quoting Batson, 476 U.S. at 96, 106 S.Ct. 1712). Therefore, “a
defendant satisfies the requirements of Batson’s first step by
producing evidence sufficient to permit the trial judge to draw an
inference that discrimination has occurred.” Johnson, 545 U.S. at 170,
125 S.Ct. 2410.

State v. Thomas, 17-959, pp. 22–23 (La.App. 3 Cir. 9/26/18), 255 So.3d 1189,

1203–04, writ denied, 18-1757 (La. 4/22/19), 268 So.3d 294, and writ denied, 18-

1662 (La. 4/22/19), 268 So.3d 303.

27

Voir Dire

During voir dire, defense counsel raised a Batson challenge after the

State peremptorily struck three African American potential jurors, stating

(emphasis added):

MS. BROUSSARD [defense counsel]: Your Honor, we would [sic]
make [sic] Batson Challenge because the State has stricken Ms.
Aguillard, who is a black female, as well as, Mr. Catrell Noel, who is
a black male, as well as, Goodie. I don’t know his first name, James
Goodie, who is also a black male. Since there has [sic] been three
people, African-American, which our client is -- we think that it’s at
the point where we need to assert the Batson Challenge.

MS. LOUVIERE [prosecutor]: Your Honor, the State will point out
the record that on Panel A, the State accepted Janella Demouchet. She
is a black female. The State also accepted Lambert Goodie who is a
black male. On that panel, the State struck Sherry Poirier who was a
white female. On Panel 2, the State accepted Ms. Mary Payne and Ms.
Brittany Payne on that panel; those were both black females. Both of
those left for cause, beyond the control of the State. But, the State did
accept both of those individuals. Mr. Broussard was a black male.
That was the State’s second strike. He was a black male. So, that
would be one white female. One black male. I’m sorry. He would be
the third strike. Secondly, the State struck Mr. Frederick, who was a
white male. Our third strike would have been Mr. Broussard, who is a
black male. My fourth strike was Mr. Goodie. Black male. On the
third panel, the State accepted Ms. Davis, who is a black female.
Then, struck Mr. Noel, who is a black male. Our last strike was a
white female.

THE COURT: I hardly see a pattern for racial selection, based on
those strikes. Perhaps when we finish the next panel, and if you still
feel that it’s a Batson violation, we might have a better cross-section
to go from. But, right now, I don’t see that there is a pattern. So, I
don’t have to go into [sic] analysis. I’ll let you reserve your right to
re-urge the Batson Challenge after we see the next panel.

MS. BROUSSARD: I guess note our objection, and we would ask to
be able to reserve our right to be able to assert it again.

THE COURT: Yes, ma’am. So, we will revisit this issue once we
complete jury selection, and before we release all the jurors, in case
we do strike some of those that have been accepted.

28

Later, defense counsel re-urged her Batson challenge, stating:

MS. BROUSSARD: . . . We would like to re-urge the Batson
Challenge.

THE COURT: Which juror was it?

MS. BROUSSARD: Let me get my notes, Judge. Okay. Yes, Your
Honor. So, in the first panel -- I’m sorry. In, Panel 2, there was a black
male that the State struck, and he said he would hear both sides and
that he would be fair. Ms. Payne, I think the Court released her with
cause. Ms. Brittany Payne, I think was also released for cause, and
both of them are black females. The State used State 3 to get rid of
Mr. Daymon Broussard. Also, they got rid of Mr. Catrell Noel. He
was a black male[,] and he stated that he would be fair and impartial.
That was State’s -- I think that’s 5. They also struck Ms. Aguillard,
and she did have issues in saying that she would have to monitor her
blood pressure, but, the Court said they would make accommodations
in regards to that. And, the State used State’s 6 to strike her. The
State has used eight strikes, and of the eight, they have stricken at
least four black people. And, we believe that is a significant
amount, especially since there is [sic] not a lot of black people that
are present for our jury. And, I can understand that there were
some people that were stricken for cause, however, Mr. Andrews
is a black male and he is entitled to have a jury of his peers. So, we
would ask for those reasons that a Batson Challenge would be
valid.

THE COURT: All right.

MS. LOUVIERE: Your Honor, again, I would state that in Panel 1,
the State exercised [its] first strike, which was a white female. It
exercised [its] second strike on Panel 2, which was a white male. In
Panel 1, we accepted -- the State accepted the black female, Ms.
Janella Demouchet. We also accepted a black male, Mr. Lambert
Goodie. Mr. Broussard, the State’s third strike. He was a black male,
Your Honor. The State’s fourth strike was Mr. Goodie, who was a
black male. The State’s fifth strike was a black male.

THE COURT: What’s the name of that person?

MS. LOUVIERE: That was Catrell Noel. State’s 6 was a black
female. State’s 7 was a white female. State’s 8 was a white female.
We would also point out that in Panel 2 -- well, so in Panel 1, we had
accepted a black female and a black male. In Panel 2, we accepted
both Mary Payne and Brittany Payne. Mary Payne got cause after the
State indicated that we wanted to accept. If I remember correctly,
Brittany Payne was actually accepted as a juror, and was accepted by
both parties. It was a black female who was on the jury, and then got
excused because she gave some reasons to the Court that would make
it incapable for her to remain as a juror, but she was initially seated as
29

our sixth juror, I believe it was, because we accepted her. We also
accepted Sophia Davis who is a black female, and Byron Chretien
who is a black male. I would also think that we could make a reverse
argument -- we could make a reverse Batson Challenge because two
of the fourteen were the non-white individuals; one was a black
female[,] and one was a Hispanic male. All the other jurors that the
Defense rejected were all white individuals.

MS. ROSE [defense counsel]: Your Honor, if we can make a
clarification, and this is just on the law in the state. The law of Batson.
The Defense has the burden of proving -- or the State, in her cross-
Batson Challenge has the burden of proving that the other party had
stricken these particular jurors because of their race. Once we
articulate that, the other side, in this case, the State, has the burden of
proving that they did not strike these particular jurors because of race.
What the State is arguing -- just displayed to us is who they chose; the
other jurors. But, she did not argue a race-neutral reason why they
struck those particular jurors. And, that’s just the law part of it.

MS. LOUVIERE: My understanding of the law is that, once they
make the challenge, the Court has to rule that there is a systematic
exclusion. And, if the Court doesn’t find there is systematic -- if the
Court finds that we systemically excluded, based upon race, then, it’s
incumbent upon the State to respond and give race-neutral reasons
significant for that, so I believe we hadn’t gotten to the point of
systematic exclusion. Once that happens, then the State -- or if that
happens, the State would be more than happy to provide race-neutral
reasons. I just think it’s premature.

THE COURT: Who are the African-American people who you
claimed were systematically excluded? Go over those again with me. I
heard Broussard and Goodie were excused.

MS. BROUSSARD: The ones that were State struck were Mr.
Daymon Broussard, which was their strike three. He was a black
male. Mr. Chance Goodie. I think it’s Chance Goodie that was strike
four, that was also a black male. And, Mr. Catrell Noel. That was the
State’s 5. That was [a] black male. And, Ms. Aguillard was State’s 6,
which was a black female. And, they testified that they could be fair
and impartial. There are other black people[,] and I understand that
the State is saying that they accepted them, but those people are not
sitting on the jury because of cause. So, I think that although they did,
the fact of the matter is Mr. Andrews’ jury is not made up of those
people. So, I understand the State accepted them, but, those people are
not on the jury. So, at this particular point I think we need to focus on
the people that are on the jury, and give reasons as to why the people
that were stricken for whatever reason, they should have to state a
race-neutral reason as to that.

30

THE COURT: Well, the first step you have to determine is whether or
not there has been a systematic exclusion. After finding a systematic
exclusion, then, we go into race-neutral reasons. But, if there is no
systematic exclusion, then the State doesn’t have to articulate any
particular or specific reasons. So, my finding is there is [sic] no
systematic exclusions.

Thereafter, the trial court allowed the State to offer race-neutral reasons for

striking each prospective African American juror, wherein the following colloquy

occurred:

MS. LOUVIERE [prosecutor]: Okay, Your Honor. Let’s see, the first
juror was Mr. Broussard. Mr. Broussard, if I recall, he was sitting all
the way on the end. He said things like he doesn’t like dealing with
criminal stuff. He’d rather not be here. Several times, he indicated his
reluctance to be here on both sides, of even participating in the
criminal process at all.

THE COURT: That’s definitely my recollection. Mr. Broussard
simply wanted out, so, I granted his wish and excluded him.

MS. LOUVIERE: And, Your Honor, I think that Mr. Latiolais, who
sat next to him, although he didn’t argue or put cause on Mr.
Broussard, Mr. Latiolais, who sat next to him said the exact same
things as Mr. Broussard, and he was excused for cause because it was
moved for by the Defense. So, I mean, we challenged him on the same
basis that they moved for cause on the very next juror, who was a
white juror. That would be my race-neutral reasoning.

THE COURT: It was a problematic juror -- problematic jurors who
were white.

MS. LOUVIERE: We didn’t try to exercise a cause, I just struck him.
The next juror would have been, is it Goodie? So, Mr. Goodie was the
individual that sat at the bottom. I believe I asked Mr. Goodie if her
[sic] was related to the other Mr. Goodie, who was currently our juror.
I had some reservations about them being related. Sometimes, you
know, two people who are related who are on the same jury tend to
follow each other, and not act independently. He did, however, I will
say for the record, say that he didn’t believe that he was related to Mr.
Lambert. Also, when questioning him, he seemed -- he had an issue.
He was quick to say that he would dis-credit law enforcement officers,
and didn’t hold a lot of stock in what law enforcement said. He didn’t
seem to be overly law-enforcement-friendly. He verbalized his
thoughts about his, you know, like I said, being quick to disagree with
law enforcement officer and not really what they had to say.
Obviously, the State felt like that would make him not the best juror
for less than a case like this. I’m here to present law enforcement
witnesses.
31

THE COURT: Certainly, we don’t expect jurors to be pro-law
enforcement. And we don’t expect them to be anti-law enforcement,
either. So, we do excuse those that have close ties to law enforcement,
and articulate to the court that they do have a problem ruling against
law enforcement. And, none of the jurors that were actually accepted
expressed that concern to the Court; that they would have a problem
not believing, or everyone admitted that they would commit to
treating law enforcement officers the same as they would any other
witness. That was done repeatedly. So, I would agree that there were
no race-neutral excuses for Mr. Goodie. He seemed like he had a
pretty bad attitude during voir dire, as well, for both sides.

MS. BROUSSARD [defense counsel]: I didn’t get that from him. I
thought he was very attentive.

MS. ROSE [defense counsel]: I thought so, too. I thought he was very
--

MS. BROUSSARD: I thought he was very, very pleasant. I thought
that he said he would be fair. He would be impartial. I didn’t really get
any of that when --

MS. LOUVIERE: He just expressed his -- he would seem to be
zealous to –

THE COURT: One at a time, please. First, Ms. Louviere. Go ahead
and speak and then, without interrupting her, listen to everything she
says. Then, the Defense will be able to speak without interruption, so
that I can hear both sides.

MS. LOUVIERE: I’m not saying that he wasn’t engaged, but he was
quick to exclude several --
....

MS. LOUVIERE: So, Judge, there was a question that was asked.
Would you hold law enforcement at a higher regard? The manner in
the way that he answered was, hell no. Just to us, it indicated that he
might have some issues with law enforcement, Your Honor. And,
that’s my race-neutral reason. That was what he said, and the manner
in which he answered it.

THE COURT: Okay. Response?

MS. BROUSSARD: Your Honor, I remember that question. I don’t
remember him having that response. I thought he answered the
question like everybody else. I thought he was -- I didn’t get that
response from him. I didn’t think he gave any insinuating or non-
verbal clues that would leave a person to believe that he was saying,
hell no.

32

THE COURT: Well, I seem to remember him saying, hell no. The
court reporter can tell me whether he did or not. You would need to
give her time to examine the transcript. It might take a while. So, I am
going to temporarily deny that challenge. But, if the transcript says
hell no, then, I will.

Later, the trial court finished hearing the State’s race-neutral reasons for

striking the prospective African American jurors:

THE COURT: We’re now back to the Batson challenge.

MS. LOUVIERE [prosecutor]: Yes, Your Honor.

....

MS. LOUVIERE: I think that leads us to the last one[,] who is Catrell
Noel. Mr. Noel who was on Panel 3. I think -- I’ve conferred with
Counsel at my table, we all agreed that he was -- although he
answered all the questions right, he was much more open in body
language and just his answers and his willingness to be forthcoming
was a lot more expressive with the Defense counsel, as opposed to the
State. We felt like he wasn’t the juror that we wanted to sit on the
panel.

THE COURT: That was Mr. Noel?

MS. LOUVIERE: That was Mr. Noel, Your Honor.

THE COURT: Okay.

MS. LOUVIERE: We felt like his body language was a lot more
closed off with the State, as opposed to the Defense. As for the last
one, Your Honor, Ms. Aguillard. She had some heart issues, as she
indicated. She had asked to be released from the jury. She would have
needed a break every four hours. It would have required a lot of time.
It was really out of courtesy. But, you know, I had no problem with
Ms. Aguillard, personally. She was elderly. We’ve been courteous to
every other juror that had a health issue. I felt no reason not to be
courteous to Ms. Aguillard.

THE COURT: Okay. I thought the Defense had agreed to release Ms.
Aguillard.

MS. LOUVIERE: I don’t think they did.

THE COURT: I don’t --

MS. LOUVIERE: I think --

33

MS. BROUSSARD [defense counsel]: I don’t remember if you did a
cause, but it was stricken by the State, so, we wouldn’t have had to
strike.

MS. LOUVIERE: My understanding is that, from what I recall, is that
we addressed the issue because of her medical issues. We tried to
raise it, kind of like, as a cause to see if we could get if [sic] for cause.
The Defense said, look -- that the Court had indicated we could be
accommodating to her, so, I used one of my peremptory challenges,
for no other reason than to be accommodating for her because she was
gonna [sic] need breaks every four hours, and it was gonna [sic] be
difficult for her to sit here. We’ve been accommodating to everybody
else. There was no reason not to be accommodating to her.

THE COURT: I agree. I probably should have accommodated her,
right at first, like I did with everybody else that said they might have a
problem serving because we had plenty of jurors to pick from.

MS. LOUVIERE: Right.

THE COURT: And, that’s the reason why we’ve been so liberal with
the [sic] excusing people, just based on their word about having
difficulties. So, I don’t see any reason why this lady should be treated
any differently than all the other people that got excused. This made
the State use a strike because -- it was clear that it wasn’t that she
didn’t want to serve. I think she was willing to serve, but she would
have had some difficulties for sure.

MS. LOUVIERE: I agree.

THE COURT: Health reasons, or otherwise. Okay. What else do we
have?

MS. BROUSSARD: If I may respond to both of those. For Mr. Noel,
the State is arguing that he was a little bit more receptive to me. I
think, a lot of that comes from that I asked questions that made him
respond. Whereas, I felt that the State did a lot more of telling him,
and he just had to nod. So, I think whenever a person is asking you,
you tend to be a little bit more responsive. So, I think he was just
more responsive because of me asking more questions. As far as Ms.
Aguillard, I can understand she had some health issues, and some of
the other people we did, but, this lady, her issue was something that
could have been -- we could have made accommodations for her.
Some of the other people with the health issues, there was [sic] no
accommodations to be made. They needed to go to the doctor, or they
had to have procedures done and stuff like that. So, I think she was
different in that respect. And, that’s why we felt that that particular
issue, with her medical issue, was not that big of a hurdle, and it was
something that the Court could manage and help her to make sure that
she would be able to take her medicine in a timely fashion, which of
course they would.
34

THE COURT: I partially agree and partially disagree. Ms. Aguillard
was not elderly. I did want to try to keep her on the jury at first, but, I
could tell that she was having some difficulty as it, was and with a
case of this magnitude, attempted murder by drive-by shooting, I
sincerely felt that this might be a little too much for her and decided to
release her, as I did many other people who expressed problems with
medically serving. So, I don’t think the release of Ms. Aguillard was
in any way related to her race, but, rather to her health condition.

MS. LOUVIERE: And, Your Honor, just as an extra note. I believe
she said she had just gotten her diagnosis the day before and because
of that, she was having to monitor her blood pressure every four hours
and there were different things that she had to do for a period of time,
based on the most recent diagnosis. So, I think that she had a lot of
maintenance that was going on, specifically at this time as opposed to
some other time. It’s the next two weeks, I believe it was that she had
some things to do to make sure that she was doing it right, or if her
medication was working correctly or whatever it is that they wanted to
monitor her for.

THE COURT: I agree. The only mistake, if you can call it a mistake,
is that I didn’t release her right away. I made her sit around more,
before I finally came to the conclusion that she should [be] released
based on health reasons.

MS. BROUSSARD: Just for the record, Your Honor, I would like for
it to be stated that she was stricken. She wasn’t a cause challenge.

THE COURT: I understand.

MS. BROUSSARD: For record purposes.

THE COURT: Do we have any more?

MS. BROUSSARD: No, Your Honor. I think those were the ones that
we were making a note of. And, just for clarification, out of the eight
strikes that the State used, four of them were black people.

THE COURT: The State have anything more they want to present?

MS. LOUVIERE: Your Honor, we had lodged a reverse Batson, but, I
don’t think -- I mean, we’re not concerned about moving forward.

THE COURT: So, we had asked that the court reporter look
something up about a man who might have made a comment.

COURT REPORTER: It’s Mr. Goodie.

35

Subsequently, the trial court ruled on the defense’s Batson challenge stating

(emphasis added):

THE COURT: I can make the ruling now and deny the objection.
Whatever was said doesn’t change the fact that there was no
intentional discrimination, based on race. That’s the bottom line.
Jurors are excused for the reasons that are race-neutral.

Standard for a Batson Challenge

Defendant first argues the trial court erred by using the “systematic

exclusion” standard when ruling on defense counsel’s Batson challenge. To

support his argument, Defendant cites to State v. Hampton, 52,403, p. 27 (La.App.

2 Cir. 11/14/18), 261 So.3d 993, 1012, writ denied, 19-287 (La. 4/29/19), 268

So.3d 1029, wherein the second circuit held that the “systematic exclusion”

standard was the improper standard of review for a Batson analysis. Hence, we

find Defendant is correct in his assertion that the trial court used the incorrect

standard when ruling on defense counsel’s Batson challenge. However, the record

establishes the trial court allowed and the State offered race-neutral reasons for

striking the prospective African American jurors, thus we find Defendant’s

argument has become moot. Specifically, under Hernandez v. New York, 500 U.S.

352, 359, 111 S.Ct. 1859, 1866 (1991), the Supreme Court noted, “Once a

prosecutor has offered a race-neutral explanation for the peremptory challenges

and the trial court has ruled on the ultimate question of intentional discrimination,

the preliminary issue of whether the defendant had made a prima facie showing

becomes moot.”

Therefore, since the trial court allowed and the State provided race-neutral

reasons for striking the prospective African American jurors, and considering the

ruling in Hernandez, we find that Defendant’s argument regarding the trial court’s

36

use of the incorrect standard in its review of defense counsel’s Batson challenge is

misguided and moot.

Trial Court’s Ruling on Defense Counsel’s Batson Challenges

Defendant next argues the trial court erred by finding that the State’s reasons

for challenging Daymon Broussard, James Goodie, Catrell Noel, and Amelia

Aguillard were plausible, sufficient, and race neutral. Defendant contends Mr.

Broussard was willing to apply the law and give him a fair trial, even though the

State argued that he was reluctant to be a juror. Defendant claims Mr. Goodie did

not respond “hell no” when asked if he would hold law enforcement to a higher

standard, although the State argued otherwise. Defendant argues defense counsel

asked Mr. Noel questions that required a response, which made it seem as though

he was more responsive to the defense. Defendant contends the trial court could

have accommodated Ms. Aguillard’s health issues. Thus, Defendant claims that

the State’s reasons for challenging each prospective African American juror were

not race-neutral.

We note Defendant’s argument concerns step two of the Batson analysis, which

requires a determination of whether the State presented race-neutral explanations

for challenging each prospective juror. Thus, we will review each prospective

juror pursuant thereto.

1. Daymon Broussard

The State asked the prospective jurors if they were okay with sitting as jurors in

a trial wherein the crime was serious. According to the record, the State said, “I

see Mr. Broussard, you are saying no”; thereafter, Mr. Broussard indicated that “it

would be tough” for him to do so. Defense counsel later questioned Mr. Broussard

about his hesitance to be a juror on the case, and Mr. Broussard responded, “I

mean, I don’t like, really know, like, to deal with all with all of this. Like, I don’t
37

know nothing [sic] like, for this.” Mr. Broussard also revealed that he did not want

to be involved in the criminal justice system. The trial court then asked the

prospective jurors if they would be able to “hear the evidence, hear the law, and

determine whether or not the State has proven beyond a reasonable doubt the

elements of the crime.” When the trial court specifically asked Mr. Broussard if he

would be able to do so, he stated, “I guess.” When offering race-neutral reasons

for striking Broussard, the State claimed that he was reluctant to participate as a

juror and that he simply wanted out. The trial court ultimately agreed, stating:

“That’s definitely my recollection. Mr. Broussard simply wanted out, so, I granted

his wish and excluded him.”

2. James Goodie

Defense counsel asked the prospective jurors if they would hold law

enforcement to a higher standard than someone else. According to the record,

there was no audible response from Mr. Goodie. Yet, when the State provided its

race-neutral reasons for striking Mr. Goodie, the State claimed that Mr. Goodie

responded, “hell no,” and that Mr. Goodie was not law enforcement friendly. The

trial court subsequently agreed with the State’s recollection of Mr. Goodie’s

response and noted that Mr. Goodie had a “pretty bad attitude during voir dire”.

3. Catrell Noel

Catrell Noel answered all questions asked of him by the State and defense

counsel. Nevertheless, when the State provided its race-neutral reasons for striking

Mr. Noel, the State indicated that “he was much more open in body language and

just his answers and his willingness to be forthcoming was a lot more expressive

with the Defense counsel, as opposed to the State” and that he was not the type of

juror that it wanted to sit on the panel.

38

4. Amelia Aguillard

Amelia Aguillard informed the court that she was on medication for her

heart and that she would need to check her blood pressure every four hours. When

offering a race-neutral reason for striking Ms. Aguillard, the State asserted that it

had struck her “out of courtesy.” The trial court subsequently agreed, stating “I

probably should have accommodated her, right at first, like I did with everybody

else that said they might have a problem serving because we had plenty of jurors to

pick from.”

Analysis

Louisiana courts have recognized a plethora of race-neutral explanations for

challenging prospective jurors. In State v. Jacobs, 09-1304 (La. 4/5/10), 32 So.3d

227, reh’g granted in part on other grounds, 09-1304 (La. 6/18/10), 37 So.3d 994,

the State peremptorily challenged a prospective juror due to his medical issues

after defense counsel declined to jointly challenge the juror for cause. The

Louisiana Supreme Court held the State’s explanation for challenging the potential

juror was race neutral. Id. at 231. In State v. Parker, 04-1017 (La.App. 5 Cir.

3/29/05), 901 So.2d 513, writ denied, 05-1451 (La. 1/13/06), 920 So.2d 235, the

State challenged a prospective juror after she was more receptive to the defense.

The fifth circuit stated, “perceived hostility, lack of interest and unresponsiveness

are race-neutral reasons for excluding potential jurors. State v. Duplessy, 03-185

(La.App. 5 Cir. 7/29/03), 853 So.2d 77, 82, writ denied, 03-2416 (La. 2/6/04), 865

So.2d 739.” Id. at 523.

After reviewing the reasons offered by the State for each of the potential

African American jurors peremptorily struck, we find the trial court did not err in

finding that the reasons provided by the State were race-neutral and there was no

39

intentional discrimination. Accordingly, we find Defendant’s assignment of error

lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends the trial court erred in imposing constitutionally

excessive sentences and failing to sufficiently consider La.Code Crim.P. art. 894.1.

Specifically, Defendant argues the trial court failed to consider Defendant’s

mitigating circumstances, such as his age, lack of criminal history, dependents,

employment, or health.

In response, the State argues that Defendant’s sentences are not excessive.

Moreover, the State asserts Defendant should be limited to a claim of bare

excessiveness since he failed to file a motion for reconsideration of sentence.

We note after the trial court sentenced Defendant, defense counsel made a general

objection. However, as noted by the State, no motion to reconsider was filed.

In State v. Barling, 00-1241, pp. 10–11 (La.App. 3 Cir. 1/31/01), 779 So.2d

1035, 1041–42, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, this court

addressed review of a sentence following a general objection and the failure to file

a motion for reconsideration:

The failure to timely file a written motion to reconsider sentence or to
orally urge any specific ground for reconsideration at sentencing
precludes a defendant from objecting to the sentence imposed. State v.
Moore, 98–1423 (La.App. 3 Cir. 3/3/99); 734 So.2d 706. See also State
v. King, 95–344 (La.App. 3 Cir. 10/4/95); 663 So.2d 307, writ denied,
95–2664 (La.3/15/96); 669 So.2d 433. La.Code Crim.P. art. 881.1
(emphasis added) serves as the basis for this restriction and provides, in
pertinent part:

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

(2) The motion shall be oral at the time of sentencing or in writing
thereafter and shall set forth the specific grounds on which the motion
is based.

40

....

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

In cases where courts have held that an oral objection alone is
sufficient to preserve the issue for review, the oral objection contained
the basis for the motion, such as excessiveness of sentence. See State
v. Caldwell, 620 So.2d 859 (La.1993); State v. Trahan, 98–1442
(La.App. 4 Cir. 12/1/99); 752 So.2d 921. Therefore, since Defendant’s
oral motion did not set forth any specific grounds to support his claim
of excessive sentences, we are relegated to a bare claim of
excessiveness. State v. Mims, 619 So.2d 1059 (La.1993), after
remand, 626 So.2d 856 (La.App. 2 Cir.1993), writ denied, 93–2933
(La.2/11/94); 634 So.2d 373.

Since defense counsel entered a general objection, this court is relegated to a

bare claim of excessiveness. Thus, Defendant waived review of his claims that the

trial court failed to provide an adequate factual basis for the sentence imposed and

failed to properly comply with La.Code Crim.P. art. 894.1.

However, in previous instances, this court has reviewed claims of

excessiveness where no objection was made and no motion to reconsider sentence

filed. See State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ

denied, 10-97 (La. 6/25/10), 38 So.3d 336, cert. denied, 562 U.S. 1150, 131 S.Ct.

932 (2011); State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127; State

v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.

6/25/10), 38 So.3d 352; State v. H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999

So.2d 338, writ denied sub nom. State ex rel. Lantz v. State, 09-606 (La. 12/18/09),

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

writ denied, 10-1355 (La. 1/7/11), 52 So.3d 885.

41

Thus, we will review Defendant’s claim as a bare claim of excessiveness.

Standard of Review

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).

Barling at 1042–43 (alteration in original).

In deciding whether a sentence is shocking or makes no meaningful
contribution to acceptable penal goals, an appellate court may
consider several factors including the nature of the offense, the
circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786,
789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061.

Defendant was convicted of five counts of attempted first degree murder.

Attempted first degree murder is enumerated as a crime of violence and carries a

sentencing range of no more than fifty years but no less than ten years at hard

labor. La.R.S. 14:2(B), 14:27(D)(1)(a), and 14:30.1.

In this case, the trial court sentenced Defendant to eighteen years at hard

labor, which falls at the lower end of the sentencing range. Before imposing the

sentences, the trial court stated its reasons as following:

THE COURT: In considering the sentencing in Mr. Andrews’ matter,
on an attempted first-degree murder, the possible sentence is
imprisonment at hard labor for not less than ten years, nor more than
fifty years, without the benefit of probation, parole, or suspension of
sentence. Thereby, because of the charge Mr. Andrews would not be
42

eligible for any kind of probated sentence. In considering this
sentence of imprisonment, the Court must determine whether there is
a need for correctional treatment, or a custodial environment, that
would provide a most effective place, during his commitment to an
institution. I do consider his lack of criminal history, and this being
his first offense. I do find that it is necessary for him to be sentenced
to a substantial amount of time, in order for him to receive that
correctional treatment. I think any lesser sentence would deprecate the
seriousness of the crime. It’s an attempted murder charge. We’re not
looking at an illegal discharge of a firearm. We’re looking at a
situation where the allegations that were proven at trial was that, when
discharging that firearm multiple times into a vehicle with people, that
he had the intent to commit great bodily injury or death of one of
those people in the vehicle. I find that he would have known, or
should have known, that the people in the vehicle were young in age,
which increases the severity of this situation. It was a vehicle,
including family that had juvenile children with them. In considering
his sentence, I do consider the weapon that was used, and the level of
violence that could be inflicted upon someone with the type of firearm
that he used. I do find that he poses a threat to the community, and to
the type of crime and the insinuation or allegation that the crime was
committed upon someone, without any reason for committing that
crime, that this could happen to anyone in society, which causes a
concern for the community, that someone is discharging a firearm into
vehicles, without any knowledge of who these people are. In
considering any mitigating circumstances, I do consider that Mr.
Andrews has no criminal history[,] and this offense would have been
the first time he would have been in any kind of crime of violence. I
do consider some of the stuff presented in his explanation, and the
pre-sentence investigation, the circumstances he may have been
involved in, prior to the alleged commission of the crime. I do
consider the circumstance[s] that have occurred with Mr. Andrews
that have resulted during his incarceration. Although, that is outside of
-- necessarily in the scope of this case; that he has had to endure
substantial loss with regards to his family, and his incarceration has
not made him available to his family during this time period. I do find
that incarceration would, and in mitigation of his sentence, I do find
that, based on the information that he has provided to the Court, and
his presentations during the pre-trial situations, and also during the
trial, that he would be able to be rehabilitated, during that time of
incarceration, with any programs that were available to him. So, I do
consider that he is someone that, although the circumstances that took
place, I do consider that during incarceration, he would be someone
that would be able to be rehabilitated and returned to society. So, I do
not think it’s necessary for him to receive the full sentence that’s
available, as that would not allow him to rehabilitate and return to
society, at an age that he could still become a productive citizen of
society. I also considered the victim impact statements, where they did
express some concern. And, this circumstance that fell upon them
caused a lot of anxiety, and caused the situation they’re in. However,
they did show forgiveness towards Mr. Andrews, and showed that
43

they don’t think his life should necessarily be thrown away. However,
. . . he should receive a sentence more than the minimum because of
the type of crime that was committed.

Analysis

Louisiana courts have laid out the following guidelines regarding excessive

sentence review:

Sentences within the statutory sentencing range can be
reviewed for constitutional excessiveness. State v. Sepulvado, 367
So.2d 762 (La.1979). In State v. Barling, 00-1241, 00-1591, p. 12
(La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-
838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the
review of excessive sentence claims, stating:

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).

Further, in reviewing the defendant’s sentences, the appellate court
should consider the nature of the crime, the nature and background of
the offender, and the sentences imposed for similar crimes. State v.
Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State
v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-433 (La.
6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4 (La.App. 3
Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03),
845 So.2d 1061, a panel of this court observed that:

While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that
sentences must be individualized to the particular
offender and to the particular offense committed.” State
v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge
“remains in the best position to assess the aggravating
44

and mitigating circumstances presented by each case.”
State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957,
958.

State v. Soileau, 13-770, pp. 4–5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005–

06 (alteration in original), writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

Regarding the nature of the crime, Defendant was convicted of attempted

first degree murder. First degree murder is defined as the killing of a human being

when the offender has the specific intent to kill or to inflict great bodily harm and

is engaged in the perpetration or attempted perpetration of assault by drive-by

shooting. La.R.S. 14:30(A)(1). An attempted first degree murder requires the

offender do or omit to do an act for the purpose of and tending directly toward the

accomplishing of his object and have the specific intent to kill. La.R.S. 14:27(A).

Attempted first degree murder is enumerated as a crime of violence and carries a

sentencing range of no more than fifty years but not less than ten years at hard

labor. La.R.S. 14:2(B), 14:27(D)(1)(a), and 14:30.1. Here, the trial court

sentenced Defendant to eighteen years at hard labor, which falls at the lower end of

the sentencing range.

In the instant case, the evidence presented at trial was that, when Defendant

was discharging that firearm multiple times into a vehicle, that he had the intent to

commit great bodily injury or death of one or more of those people in that vehicle.

Additionally, it was a vehicle with a family, including juvenile children, while they

were peacefully traveling on Interstate 10, which increases the severity of this

situation.

As to the second factor, the nature and background of the offender, the trial

court noted Defendant was a first-time offender. However, as the trial court noted,

it is not only the type of crime but also that Defendant is discharging a firearm into

vehicles, without any knowledge of who were these people, and that the crime was
45

committed upon someone, without any reason for committing that crime, which

could have happened to anyone in society, which causes a concern for not only the

victims but the community as well.

The third factor is a comparison of Defendant’s sentence with the sentences

imposed in similar cases. We note the sentencing range for attempted first degree

murder is the same as the sentencing range for attempted second degree murder.

As the jurisprudence of sentencing ranges for attempted first degree murder is

limited, we will review the attempted second degree murder cases.

In State v. Butler, 618 So.2d 572 (La.App. 2 Cir.), writ denied, 624 So.2d

1226 (La.1993), the twenty-two-year-old defendant fired multiple shots at a crowd

of people after a high school football game and was subsequently convicted of two

counts of attempted first degree murder. The trial court sentenced the defendant to

thirty years at hard labor on each count. The defendant appealed, arguing that his

sentences were excessive and that the trial court failed to consider any mitigating

circumstances, such as his age and lack of criminal history. The second circuit

affirmed the defendant’s sentences, holding that the upward departure from the

sentencing guidelines was warranted due to the defendant deliberately firing five to

eight shots into a crowd while yelling gang slogans. Id. at 574.

In State v. Sanders, 33,778 (La.App. 2 Cir. 10/4/00), 769 So.2d 183, the

defendant was convicted of one count of attempted second degree murder and was

sentenced to ten years after he shot from inside a vehicle into a crowd of four men.

The defendant appealed his sentence, arguing that it was unconstitutional

excessive. The second circuit affirmed the defendant’s sentence due to the fact the

sentence imposed was the bottom of the range and the victim was an unarmed

bystander. Id. at 188.

46

A review of the above jurisprudence shows no cases wherein the offenders

received a sentence as low as Defendant received for each attempted first degree

murder, involving a drive-by shooting. Here, the record shows that the trial court,

after properly considering the factors pursuant to La.Code Crim.P. art. 894.1,

sentenced Defendant to eighteen years at hard labor, which falls at the lower end of

the sentencing range, and further ordered all sentences were to run concurrently

and not consecutively.

Therefore, we find Defendant’s sentences are not unconstitutionally

excessive, considering they are within the lower range of the statutory sentencing

range, there are no cases of other offenders having been sentenced as leniently as

Defendant, and all sentences are ordered to run concurrently. As such, we find the

trial court did not abuse its broad discretion and the record supports the sentences

ordered by the trial court. Thus, we find this assignment of error lacks merit.

DECREE

Defendant’s convictions and sentences are affirmed. Additionally, the trial

court is instructed to inform Defendant of the correct provisions of article 930.8 by

sending appropriate written notice to him within ten (10) days of the rendition of

this opinion and to file written proof that Defendant received the notice in the

record of the proceedings. State v. Green, 21-14, p. 4 (La.App. 3 Cir. 10/27/21),

329 So.3d 917.

AFFIRMED.

47