Opinion
NO. 2013-KA-0195
07-02-2014
STATE OF LOUISIANA v. BERNARD ALLEN
Leon A. Cannizzaro, Jr. District Attorney Kyle Daly Assistant District Attorney COUNSEL FOR APPELLEE, STATE OF LOUISIANA Katherine M. Franks LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 506-037, SECTION "F"
Honorable Robin D. Pittman, Judge
Judge Dennis R. Bagneris, Sr.
(Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Paul A. Bonin)
BONIN, J., CONCURS WITH ADDITIONAL REASONS
Leon A. Cannizzaro, Jr.
District Attorney
Kyle Daly
Assistant District Attorney
COUNSEL FOR APPELLEE, STATE OF LOUISIANA Katherine M. Franks
LOUISIANA APPELLATE PROJECT
COUNSEL FOR DEFENDANT/APPELLANT
CONVICTION AND SENTENCE AFFIRMED
Defendant, Bernard Allen, appeals his conviction on charges of attempted second degree murder. Finding no reversible error as to any of defendant's assignments of error, we affirm the conviction.
STATEMENT OF THE CASE
Defendant, Bernard Allen, was charged by grand jury indictment on May 19, 2011, with attempted second degree murder, a violation of La. R.S. 14:(27)30.1. He entered a plea of not guilty. Subsequent thereto, the trial court denied defendant's motion to suppress the identification. After trial by a twelve-member jury, defendant was found guilty as charged. The trial court denied defendant's motions for new trial and for post-verdict judgment of acquittal. Thereafter, the trial court sentenced defendant to fifteen years at hard labor, without benefit of parole, probation, or suspension of sentence.
The present appeal followed. FACTS
At the time of the offense, defendant was sixteen years old and the victim, Don Wilson, was seventeen years old. The following summarizes pertinent testimony adduced at trial.
Dr. Edward Staudinger, a general surgeon at Touro Hospital, testified that he treated the victim for three gunshot wounds. The most serious was a chest wound that collapsed the victim's left lung. The second gunshot wound was to the "abdomen flank" area; and the third wound was to the victim's left anterior thigh. He said that two other bullets remain in the victim's thigh and in his left chest.
Latoya Dugay, a custodian of records for the New Orleans Police Department's 911 call center, identified a NOPD item number incident recall report for a May 13, 2011 incident and a CD recording of the 911 call made under the same item number. The CD recording was played for the jury.
New Orleans Police Department Officer David Jones was called to investigate the shooting. He spoke to a nearby resident who reported that he had heard gunshots and observed some juveniles running from the area. Officer Jones said he canvassed the area and found three spent cartridge casings. He identified a NOPD sealed envelope that contained three spent .380 caliber cartridge casings that was introduced into evidence. Officer Jones said that the victim was not at the scene when he arrived. However, he did speak to Troy Picard and Renee Baptiste, who identified themselves as friends of the victim. Officer Jones indicated the two youths appeared distraught, scared, and initially seemed to not want to talk to the police. They told him that their friend had been shot while they were all leaving a YMCA playground. After the shooting, they ran to the Picard family home to get help. On cross examination, Officer Jones acknowledged that his report indicated that Troy Picard said that he did not know who shot the victim. Renee Baptiste also did not identify the shooter. The description contained in Officer Jones' police report was that of a thin, light-complexioned black male, wearing a red baseball cap, a black shirt and cargo pants.
NOPD Officer Brian Stanley stated that he met with the victim prior to the victim's surgical procedure. He thought that the victim had been on mild medication. Although the victim seemed aware, he appeared to be in distress and pain. The victim told Officer Stanley that he had been walking on First Street; someone called his name; and he fell back from the group. The victim repeatedly referenced the names "Byron and Bernard." He told Officer Stanley that he did not know why he had been shot. Officer Stanley also spoke with others individuals who had been present during the shooting. The only name he recalled was "Alexis." He said another person also mentioned the names of "Byron and Bernard."
NOPD Det. Kristen Krzemieniecki testified that Troy Picard gave her a description of the perpetrator and that Renee Baptiste was reluctant to give information. She also learned from Officer Stanley that a witness had named the shooter as Bernard Allen, also known as "B.B." She later met with the witness, Matnell Allen, who was identified as the defendant's thirteen-year-old cousin, and Matnell's mother.
Matnell told Det. Krzemieniecki that prior to the shooting, a fight had occurred between the defendant and the victim during a basketball game at the Dryades Street YMCA. After leaving the basketball court, the defendant, another cousin, and Matnell spotted the victim and a group of juveniles. Matnell said the defendant called out the victim's name and began firing a handgun. Because the name "Byron" had been mentioned, Det. Krzemieniecki asked Matnell whether Byron Allen was out there, and Matnell told her that he was not.
Det. Krzemieniecki also advised that she interviewed the victim after his hospital release. The victim told her that after he left the basketball court with his cousins, Alexis and Donovan, and his friends, Troy Picard, and Renee Baptiste, he saw "Bernard, whom he knew as "B.B." Bernard emerged from alongside a church; he then began shooting toward the group. Det. Krzemieniecki said that the victim maintained that the defendant was the only shooter. The victim also stated that "Byron" was not at the shooting location.
Det. Krzemieniecki testified that she brought a compilation of photos to her interview with the victim. Det. Krzemieniecki denied that she forced, coerced or threatened the victim to make an identification of anyone. Instead, she presented the photo lineup to the victim and he pointed to the defendant.
Det. Krzemieniecki added on cross examination that she tried to speak with Troy Picard; however, he was very uncooperative. Det. Krzemieniecki was "unaware" of any bad relations or beefs between Matnell Allen and the defendant or between Matnell and Byron Allen. The detective relayed that Matnell Allen said that on the day of the shooting, the defendant wore khaki pants, a black shirt and a red and black hat. She stated this description corroborated the description of the shooter given by Troy Picard.
Troy Picard testified that on the night of the shooting, he was with the victim, and friends, Alexis, Renee, and Donavan. He heard the gunshots and began running. He estimated that the victim was ten feet behind them. He said that after the gunshots, a dark-skinned individual wearing a black shirt, khaki pants, and a red hat ran past him. He returned to the scene after the police arrived. He gave them that description of the individual and told them that the individual was from the Melpomene Housing Development.
Troy confirmed on cross examination that he did not see the victim close to anyone who shot him. He acknowledged that he told the first police officer he spoke to that the person who ran past him had a "red" complexion, but he also said he told that officer the person was dark-skinned. He was never asked to identify the defendant or Byron Allen from a photo lineup or a photo.
Matnell Allen, the thirteen-year old cousin of the defendant and Byron Allen, testified that he did not personally know the victim; he knew of him because he went to school with the victim's younger brother. He claimed he did not remember anything that happened at the basketball game and did not remember telling anyone about something happening at the game that involved the defendant, the victim, and Byron. Matnell denied that it was his voice on a portion of a recorded statement played for the jury. In particular, he denied giving a statement to police on May 13th at 8:14 p.m. or that he spoke to two female detectives. He said he never told anyone that defendant shot the victim. He denied being present at the shooting and maintained that it was Byron Allen who told him to "tell the police that it was Bernard Allen."
On redirect examination, Matnell Allen admitted that the prosecutor, her co-prosecutor, and an investigator came to his residence. He also admitted that he had no recollection of telling any of them that Byron had instructed him to say that it was the defendant who shot the victim.
On rebuttal, the State recalled Det. Krzemieniecki. She testified that Matnell Allen voluntarily came to the police station to give her a statement. Det. Krzemieniecki identified a transcription of a May 14, 2011 recorded statement she took from Matnell Allen in the presence of his mother and her supervisor. Det. Krzemieniecki also identified an audiotape recording of that statement. The recording was admitted into evidence and played for the jury. Each jury member also received a copy of the transcript of the recording. The detective confirmed that the information Matnell Allen provided to her corroborated the information that she received from Troy Picard and the victim.
Don Wilson, the victim, testified that on the day of the shooting, he was playing around in Mahalia Jackson Park with his younger brother, Donovan, his niece, Alexis, and Troy and Renee Baptiste. The group subsequently began to walk away from the park. Don said his companions got in front of him. He said that at one point, he instinctively turned around, but saw nothing. He turned around again, and he saw defendant pointing a gun towards him. He said the next thing he knew, defendant shot him, and he fell. He remembered his arm was numb. He began running, and he said defendant was still shooting. Don identified defendant in court as the person who shot him. He said defendant was wearing a black t-shirt and khaki pants that day. Don did not see anyone standing with defendant when defendant shot him. He stated that after he fell, got up, and started to flee, he turned again and looked in defendant's face.
At the hospital, he gave a police officer the names Bernard and Byron. He said at the time he thought it was defendant and Byron, but explained that he had been shot and things were running through his head, like whether he was going to die. A detective later came to his sister's home and showed him a photo lineup. Don said the detective told him that Bernard Allen and some more people were in it. He understood this to mean the photo included people he might know or had seen before. He said he went through the photos and identified the defendant as the person who shot him.
Don advised that the first time he saw the defendant was at a school dance. Don's good friend, Ignatius, knew the defendant; however, that friend and the defendant did not get along because of a prior altercation between the two. The second time he saw the defendant was at a basketball game. He said the defendant and he just looked at each other. Don saw the defendant again when the defendant rode a bicycle past him as he was standing by a store. Again, the defendant just looked at him and kept going. However, Don said he felt that defendant wanted to do something to him or fight him.
Don saw Byron and defendant at another basketball game, during which an altercation occurred. Byron began fighting with Ignatius. Defendant came from behind Don and swung at him; however, he missed. Don said that the defendant and he then began to fight. He denied exchanging words with either Byron or the defendant before this fight began. Don saw the defendant another time when the defendant pulled up in van and questioned him as to whether he was "playing" with defendant's cousin. Don advised that he had never had any sort of altercation with Byron Allen or Matnell Allen.
Don confirmed that prior to showing him the photo lineup, Det. Krzemieniecki told him that she had developed a suspect; that the suspect, the person who shot him, was in the lineup; and that she wanted him to point that person out. He verified that the only person he knew who was in the lineup was the defendant.
Thomas Ripp, an investigator for the Orleans Parish District Attorney's Office, verified that the week prior to trial, he had accompanied the two trial prosecutors to the residence of Matnell Allen and his mother. Investigator Ripp testified that when they first began talking to Matnell, he did not seem to recall anything until they produced the police report in the case and the transcription of his prior recorded statement. Initially, Mantell said he was present at the scene of the shooting. However, later he recanted and said that he was not present. He then represented that Byron had told him that defendant had done the shooting. Matnell also said he made up some details, such as how far he was from defendant when the shooting occurred.
Investigator Ripp acknowledged that he did not write a report about what Matnell Allen told them on that occasion. He confirmed that Matnell stated that it was Byron who had supplied him with all of the information before Matnell talked to the police. Nevertheless, Investigator Ripp reiterated that the only party Mantell had ever identified as the shooter was the defendant.
Don Hancock, a telephone supervisor for Orleans Parish Sheriff's Office, identified an audio disc of outgoing inmate calls placed by defendant from May 19, 2011 through June 1, 2011. He identified a call detail report and a transcript of one of the calls. A recording of that one call was played for the jury.
Sergeant Harry Henry, the assistant custodian of records for the Orleans Parish Sheriff's Office, testified on behalf of the defense. He identified an inmate booking photo of defendant, Bernard Allen, and an arrest register. The register reflected that the defendant gave a Slidell, Louisiana address as his address at the time of his booking. However, Sgt. Henry acknowledged that he did not know whether or not the defendant resided at that address when he was booked. ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, defendant argues that the evidence was constitutionally insufficient to support his conviction.
When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Marcantel, 2000-1629, p. 8 (La. 4/3/02), 815 So. 2d 50, 55, citing State v. Hearold, 603 So. 2d 731, 734 (La. 1992).
This court set forth the applicable standard of review for sufficiency of the evidence in State v. Huckaby, 2000-1082, p. 32 (La. App. 4 Cir. 2/6/02), 809 So. 2d 1093, 1111, as follows:
In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La. App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La. 1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. "[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Smith, 600 So.2d 1319 (La.1992) at 1324.Huckaby, 2000-1082, p. 32, 809 So.2d at 1111, quoting State v. Ragas, 98-0011, p. 13 (La. App. 4 Cir. 7/28/99), 744 So. 2d 99, 106-107.
The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Wells, 2010-1338, p. 5 (La. 4 Cir. 3/30/11), 64 So.3d 303, 306. A factfinder's decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. State v. James, 2009-1188, p. 4 (La. App. 4 Cir. 2/24/10), 32 So.3d 993, 996.
When the identity of the defendant as the perpetrator is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden under Jackson v. Virginia, supra. State v. Galle, p. 31 (La. App. 4 Cir. 2/13/13), 107 So.3d 916, 935, writs denied, 2013-0752 (La. 10/30/13), 124 So. 3d 1102 and 2013-0561 (La. 11/1/13), 124 So. 2d 1107; State v. Everett, 2011-0714, p. 15 (La. App. 4 Cir. 6/13/12), 96 So. 3d 605, 619, writs denied, 2012-1593, 2012-1610 (La. 2/8/13), 108 So.3d 77.
In the matter before us, defendant's sufficiency of the evidence argument encompasses solely his identification as the individual who shot the victim. Defendant argues that his identification as the shooter by the victim, Don Wilson, "was based on the detective's assertion that the photograph of the shooter was contained in the lineup he viewed." We note that the record contains some evidence to support that at the time Det. Krzemieniecki showed the victim the photo lineup, she advised him that she had actually developed a suspect; that the suspected shooter was in the lineup; and that she wanted him to point that person out.
Nonetheless, we cannot say that the victim's identification of defendant's photo in the lineup was based principally on the detective's statement that the suspected shooter was in the lineup. The record reveals that the victim had encountered the defendant five times before the shooting, which included the basketball altercation wherein the defendant had thrown a punch at the victim.
The record also establishes that the victim knew Byron Allen and that he could distinguish Byron Allen from the defendant. Our review shows that the victim testified that he looked defendant in the face during the shooting incident and that no one contradicted his testimony that he knew and recognized the defendant before his identification of the defendant as the shooter in the photo lineup. The trial testimony supports that the victim positively identified defendant in the photo lineup and positively identified defendant at trial as his shooter.
This Court acknowledges that there was conflicting testimony as to whether Matnell Allen identified the defendant as the shooter. However, based on the testimony of the victim alone, the evidence remains sufficient to negate any reasonable possibility of the victim's misidentification of the defendant as the shooter. Therefore, in viewing all the record evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that it was the defendant who shot the victim.
There is no merit to this assignment of error. ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, defendant argues that the trial court erred in denying his motion to suppress the victim's identification of him in the photo line-up presented to him by Det. Krzemieniecki.
"A defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misidentification as a result of the identification procedure." (Emphasis in original). State v. Sparks, 88-017, p. 52 (La. 5/11/11), 68 So. 3d 453, 477, citing State v. Prudholm, 446 So.2d 729, 738 (La. 1984). A defendant must first prove that the identification was suggestive. State v. Thibodeaux, 98-1673, pp. 20-21 (La. 9/8/99), 750 So.2d 916, 932. An identification procedure is suggestive if it unduly focuses attention on the defendant. Sparks, supra; State v. Cyrus, 2011-1175, p. 10 (La. App. 4 Cir. 7/5/12), 97 So.3d 554, 560.
In addition to suggestiveness, a defendant must prove that there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Robinson, 2009-0922, p. 3 (La. App. 4 Cir. 3/10/10), 50 So.3d 158, 161. Despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a very substantial likelihood of irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2254, 53 L.Ed.2d 140 (1977); State v. Leger, 2005-0011, p. 59 (La. 7/10/06), 936 So. 2d 108, 151. Under Manson, the factors courts must examine to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentification include: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Manson, 432 U.S. at 114-15, 97 S.Ct. at 2254.
In reviewing a trial court's ruling on a motion to suppress, an appellate court is not limited to evidence adduced at the hearing on the motion to suppress; it may also consider any pertinent evidence given at trial of the case. State v. Brown, 2009-0884, p. 3 (La. App. 4 Cir. 3/31/10), 36 So. 3d 974, 978.
In her trial testimony, Det. Krzemieniecki testified that in general, when she meets with a victim, she puts the lineup in a folder and just tells the victim that she wants him to take a look at the photos and see if he recognizes anyone. She testified that she presented the photo lineup to the victim and that he pointed to defendant's photo. Det. Krzemieniecki denied that she indicated to the victim that defendant's photo was in the lineup or that she forced, coerced or threatened the victim to make an identification of anyone that day.
At the motion to suppress hearing, Det. Krzemieniecki testified that she presented the victim the photographic lineup in a folder and asked if he recognized anyone. On cross-examination, she disputed that she said anything to the victim "to the effect of there's a possible suspect."
As previously referenced herein, the victim stated that during the photographic lineup, Det. Krzemieniecki told him she had developed a suspect; that the suspect- the person who had shot him- was in the lineup; and that she wanted him to point that suspect out in the lineup. If we presume Det. Krzemieniecki's actions, as testified to by the victim, could be characterized as unduly focusing his attention on defendant's photograph, then we must determine whether the suggestive identification presented a substantial likelihood of misidentification. We conclude that it did not.
This Court's analysis of the five Manson v. Brathwaite factors finds that they are primarily directed to suggestive identifications made of suspects who were not known to the person making the identification. In this case, however, the victim knew the defendant. His testimony established that he got a look at defendant's face and that it was the defendant who pointed the gun at him and fired. His description of defendant's clothing was consistent with the testimony of Troy Picard's testimony as to the defendant's clothing. The victim did not waiver in his identification of defendant as the person who shot him.
Therefore, notwithstanding as to whether the photographic identification procedure may have been suggestive, considering the totality of the circumstances, we find no substantial risk of misidentification of the defendant as the shooter by the victim. Consequently, we find no merit to this assignment of error.
ASSIGNMENT OF ERROR NO. 3
This assignment of error argues that the trial court erred in providing instructions to the jury. Defendant contends that the trial court's jury instructions conflicted with established case law as to the elements of attempted second-degree murder and attempted manslaughter.
The record does not contain a transcript of the actual instructions to the jury. However, it does contain a copy of the trial judge's copy of her written instructions, with handwritten modifications, presumably made after consultation with counsel. Our review of this assignment of error shall be based on a review of these written instructions.
Specifically, defendant maintains that in instructing the jury as to attempted second degree murder and the lesser responsive verdict of attempted manslaughter, the trial court advised that "[s]econd degree murder is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm" and that "[m]anslaughter is the killing of human being when the defendant has a specific intent to kill or inflict great bodily harm but .... ." (Emphasis supplied). Although the intent to "inflict great bodily harm" is an element of second degree murder and manslaughter, defendant contends that the offense of attempted second degree murder requires that the defendant possess the specific intent to kill and that he commit an overt act tending toward the accomplishment of that goal. La. R.S. 14:27; La. R.S. 14:30.1; State v. Butler, 322 So.2d 189, 192 (La. 1975). Therefore, as established by Butler, intent to inflict great bodily harm is not an element of attempted second degree murder. The defendant argues that although the trial court did not specifically instruct the jury that attempted second degree murder could be found where there is specific intent to commit great bodily harm, the "attempt" instruction had the effect of including that element in the definition of both attempted second degree murder and attempted manslaughter provided to the jury. Consequently, defendant urges that the trial court misled the jury to believe that it could convict for attempted second degree murder based only upon a finding that defendant possessed the specific intent to inflict great bodily harm.
The State counters that defendant failed to preserve the issue for appellate review. It points out that his counsel failed to object to the instruction as required by La. C.Cr.P. art. 801(C). La. C.Cr.P. art. 801(C) states, in pertinent part, that "[a] party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error." Upon review of the transcript of the jury charge conference, the transcript does not reflect that defense counsel objected to these parts of the jury instructions or that any party raised objections during the giving of jury instructions. Defendant also concedes that his trial counsel did not object to the allegedly erroneous instruction.
However, defendant cites State v. Williamson, 389 So.2d 1328 (La. 1980), wherein the opinion stated: "A substantial probability that jurors may have convicted the defendant under an incorrect definition of the crime justifies setting aside a conviction on due process grounds even in the absence of a contemporaneous objection."
Williamson, however, was explained in State v. Thomas, 427 So.2d 428 (La.1982). On rehearing, the Supreme Court expressed:
Williamson should not be construed as authorizing appellate review of every alleged constitutional violation and erroneous jury instruction urged first on appeal without timely objection at occurrence.
427 So.2d at 435. In dicta, the Court noted that, even if it had reviewed the defendant's claim of error, no relief was warranted because the defendant failed to demonstrate that he was substantially prejudiced by the irregularity.
In State v. Chisolm, 95-2028 (La. App. 4 Cir. 3/12/97), 691 So. 2d 251, as in the instant case, the trial court erroneously charged the jury that to convict the defendant it had to find that the defendant had a specific intent to kill or inflict great bodily harm; also, as in the instant case, the defendant failed to object. This Court cited Thomas, supra, noting the general rule that the failure to object precludes appellate review, but, nevertheless, finding that "there is ample basis for concluding that the erroneous jury charge on specific intent was harmless.... The guilty verdict of attempted second degree murder was surely unattributable to the erroneous charge 95-2028 at p. 7, 691 So.2d at 255. See also State v. LeBlanc, 97-1388 (La. App. 4 Cir. 9/23/98), 719 So.2d 592.
In the instant case, the trial court's written instructions do not directly state that one must find that defendant had the specific intent to kill or to inflict great bodily harm in order to convict the defendant of attempted second degree murder. Nevertheless, in the event we accept that the trial court's instructions improperly inferred that the jury could convict the defendant of attempted second degree murder based only a finding that the defendant had the specific intent to inflict great bodily harm, upon consideration of the merits of defendant's argument, any error in the giving of that instruction was harmless.
The record supports that the defendant shot the victim three times and that the victim was a relatively short distance away. One bullet hit the victim in his chest, causing a wound that the treating surgeon testified had to be treated emergently so that the victim would not succumb to the injury. A second bullet penetrated the victim's abdominal flank and came within centimeters of hitting a major blood vessel, which could have resulted in the victim's immediate death. The third bullet struck the victim in his left thigh. Considering this evidence of defendant's specific intent to kill the victim, we find that the State proved beyond a reasonable doubt that the guilty verdict rendered was surely unattributable to the possible misleading jury instruction. Thus, any error in the jury instructions amounts to harmless error and lacks merit. ASSIGNMENT OF ERROR NO. 4
In his fourth assignment of error, defendant argues that the trial court erred in excluding his alibi witness from testifying based on the defense's failure to notify the State of the alibi until the morning of trial.
La. C.Cr.P. art. 727 states:
A. Upon written demand of the district attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such different time as the court may direct, upon the district attorney a written notice of his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.
B. Within ten days thereafter, but in no event less than ten days before trial, unless the court otherwise directs, the district attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses.
C. If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under Subsection A or B, the party shall promptly notify the other party or his attorney of the existence and identity of such additional witness.
D. Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his own behalf.
E. For good cause shown, the court may grant an exception to any of the requirements of Subsections A through D of this Section.
F. Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention. (Emphasis supplied).
The State filed a written motion on May 9, 2012, setting forth the time, date and place at which the alleged offense occurred, and seeking, inter alia, notice of defendant's intention to offer a defense of alibi. Thus, in accordance with La. C.Cr.P. art. 727(A), defendant was required to serve on the State, within ten days from May 9, 2012, written notice of his intention to present an alibi defense, including the names and addresses of the witnesses upon whom defendant intended to rely to establish the alibi. Moreover, under La. C.Cr.P. art. 727(C), defendant was under a continuing obligation to notify the State of any such alibi information.
Upon review, the record supports that the defense did not file such written notification until the morning of trial; that the defense had represented to the State approximately a week earlier that it did not have any alibi witnesses; and that the defense had been given a one-day continuance to adequately prepare for trial. The defense does not dispute these facts. Instead, it claims that although it knew of a potential alibi witness about three weeks before the trial date, it was not certain that the witness would testify as an alibi witness until the day before trial.
The trial court has authority under La. C.Cr.P. art. 727(D) to exclude the testimony of defendant's alibi witness for defendant's failure to timely notify the State of such alibi in accordance with La. C.Cr.P. art. 727(A) and (C). The standard of review for a trial court's decision excluding alibi evidence under the authority of La. C.Cr.P. art. 727(D) is abuse of discretion. See State v. Ether, 572 So. 2d 689, 691 (La. App. 4 Cir. 1990).
In State v. Bias, 393 So. 2d 677 (La. 1981), the Louisiana Supreme Court outlines a list of factors that the court applied in U.S. v. Myers, 550 F.2d 1036 (5 Cir. 1977) to determine whether a district court had properly exercised its discretion in excluding the testimony of an undisclosed alibi witness pursuant to the provisions of Federal Rule of Criminal Procedure 12.1, which is very similar to La. C.Cr.P. art. 727. Those factors are: (1) the amount of prejudice that resulted from the failure to disclose; (2) the reason for the nondisclosure; (3) the extent to which the harm caused by the nondisclosure was mitigated by subsequent events; (4) the weight of the properly admitted evidence supporting the defendant's guilt; and (5) other relevant factors arising out of the circumstances of the case. Bias, 393 So.2d at 678-679.
In the instant case, in denying the testimony of the alibi witness, the trial court found that the defense should have exercised greater diligence to determine the witness' existence, location, and if indeed the witness qualified as an alibi witness. The trial court clearly determined that the defendant did not have a legitimate reason for its failure to timely disclose the witness and accepted the State's position that it would be prejudiced by the last-minute production of the alibi witness. As previously referenced herein, the weight of the properly admitted evidence supported the defendant's guilt, in particular, the victim's positive identification of the defendant as the shooter. Hence, when we apply the Myers factors to the facts and circumstances of the instant case, the trial court did not abuse its discretion in excluding the alibi testimony under the authority granted it by La. C.Cr.P. art. 727(D).
Defendant additionally argues that this Court should also consider the constitutional implications of denying defendant his right to present a defense. It is well established that the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §16 of the Louisiana Constitution guarantee the criminally accused a meaningful opportunity to present a complete defense. This includes the right to offer the testimony of witnesses. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).
However, based on the facts and circumstances of the instant case, we do not find that the defendant was deprived of a meaningful opportunity to present a complete defense. First of all, the defendant clearly violated a statutory provision, the notice of alibi requirements of La. C.Cr.P. art. 727(A), which properly allowed for the trial court's exclusion of his alibi witness pursuant to La. C.Cr. P. art. 727(D). The defendant also failed to proffer the purported alibi witness' testimony to make any demonstration that he was deprived of his right to present a defense.
A trial court error having the effect of depriving a defendant of his right to present a defense is subject to harmless error review. See State v. Juniors, 2003-2425, p. 55 (La. 6/29/05), 915 So. 2d 291, 332 ("[B]ecause any error in the exclusion of the letter allegedly written by Williams was clearly harmless, the defendant was not deprived of the opportunity to present a defense."). Given that the trial court did not abuse its discretion in excluding the testimony pursuant to La. C.Cr.P. art. 727(D), the defendant's failure to proffer the testimony of the purported witness, and most importantly, the weight of the evidence used to decide defendant's guilt, the exclusion of the purported alibi witness did not establish reversible error to show he was denied his right to present a defense. ASSIGNMENT OF ERROR NO. 5
In this fifth assignment of error, defendant argues that the record is incomplete; consequently, he has been denied his constitutional right to judicial review based upon a complete record of all the evidence.
Appellate counsel, who was not defense counsel at trial, originally noted that the record did not contain the ten exhibits introduced by the State or the two exhibits introduced by the defendant. The record was subsequently supplemented with some of the exhibits; however, defendant shows the record still does not contain the defense exhibits or State Exhibits S-2, a CD audio recording of the 911 call; S-7, an audio recording of Matnell Allen's statement to police; S-8, a CD audio recording of defendant's jail calls; and S-10, a transcript of the single jail recording that was played for the jury.
La. Const. art. 1, §19 states, in pertinent part:
No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.
Material omissions of evidence bearing on the merits of an appeal will require reversal. State v. Frank, 99-0553, pp. 20-21 (La. 1/17/01), 803 So. 2d 1, 802-803. On the other hand, inconsequential omissions do not require reversal, as an incomplete record may nonetheless be adequate for appellate review. State v. Deruise, 98-0541, p. 11 (La. 4/3/01), 802 So.2d 1224, 1234. However, a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing evidence. Frank, 99-0553, p. 21, 803 So.2d at 803.
Defendant highlights that his trial counsel argued that it was defendant's brother, Byron Allen, who actually did the shooting, and that Byron later coerced a young cousin, Matnell Allen, into giving a statement to implicate the defendant. Thus, defendant suggests the missing 911 recording is vital in "giving the initial impressions of those in the area who heard the shots and/or who were at the scene of the shooting." Although the 911 recording is missing, the record does contain the testimony of Officer Jones who responded to the 911 call and his verification of the 911 incident recall. Upon review, we find nothing in the incident recall that sets forth any information as to any suspects. Defendant fails to show that he was prejudiced in his appeal by the absence of the 911 recording.
Similarly, defendant fails to show prejudice based on the missing recording of Matnell Allen's statement. Defendant acknowledges that the record contains a transcription of the statement. However, defendant focuses on the fact that Matnell denied making this statement at trial and his testimony that Byron Allen supplied him with the facts included in his statement. Defendant reasons that hearing the recorded statement to "consider the hesitancies, the voice timbre, and the relative sureness" would aid in evaluating Matnell Allen's statement. Defendant also asserts that because of the many "inaudible" notations in the transcript, the recorded statement is important to assess the accuracy of the transcription.
Upon evaluation of this argument, defendant does not demonstrate to this Court how any of the inaudible notations render Matnell's answers unintelligible or show any material omissions from his answers. In the absence of same, we cannot say that the omission from the record of the recording of Matnell Allen's statement was consequential.
Defendant cites the jail telephone "calls" as the most critical and material omissions from the record as they were introduced as inculpatory "admissions." The record indicates that even though the jail call detail lists sixty calls, only one was played for the jury. Although this Court is unable to consider this "inculpatory" evidence, again, the defendant does not articulate how he was prejudiced by the absence of these calls from the appellate record. See State v. Hawkins, 96-0766, p. 8 (La.1/14/97), 688 So. 2d 473, 480.
As previously discussed, viewing all the record evidence contained in the record on appeal in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant shot the victim, having the specific intent to kill him. We find no material omissions from the trial transcript that have prejudiced defendant's right to appeal; accordingly, there is no merit to this assignment of error. ASSIGNMENT OF ERROR NO. 6
In his sixth assignment of error, defendant argues that the trial court erred in determining that the prosecution did not exercise its peremptory challenges in a racially/gender-biased manner.
During voir dire, defendant timely raised objections that the State unconstitutionally exercised nine of its twelve peremptory challenges to strike/excuse prospective black jurors based solely on their race, in violation of Batson v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). However, defendant made no objection that the State exercised any peremptory challenges based solely on gender; accordingly, defendant failed to preserve the issue of alleged gender-based for review; and as such, that issue will not be considered by this Court. See La. C.Cr.P. art. 795(C); State v. Maxwell, 2011-0564, p. 15 (La. App. 4 Cir. 12/21/11), 83 So. 3d 113, 123; State v. Williams, 524 So. 2d 746 (La.1988).
The Louisiana Supreme Court set forth the applicable law in State v. Anderson, 2006-2987, pp. 41-43 (La. 9/9/08), 996 So. 2d 973, 1004-1005 regarding the proper exercise of peremptory challenges as follows:
In Batson, the Supreme Court held that an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person's race. The Supreme Court reaffirmed its position that racial discrimination by any state in jury selection offends the Equal Protection clause of the 14th Amendment in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Louisiana law codifies the Batson ruling in LSA-C.Cr.P. art. 795. FN6.[] See also State v. Snyder, 1998-1078 (La.9/6/06), 942 So.2d 484, rev'd on other grounds, Snyder v. Louisiana, --- U.S. ----, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008).
If the defendant makes a prima facie showing of discriminatory strikes, the burden shifts to the state to offer racially-neutral explanations for the challenged members. If the race-neutral explanation is tendered, the trial court must decide, in step three of the Batson analysis, whether the defendant has proven purposeful discrimination. The race-neutral explanation need not be persuasive or even plausible. Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 973-974, 163 L.Ed.2d 824 (2006), quoting Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). It will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The ultimate burden of persuasion as to racial motivation rests with, and never shifts from, the opponent of the peremptory challenge. State v. Tyler, 97-0338, at 3 (La.9/9/98), 723 So.2d 939, 942, cert. denied, 526 U.S. 1073, 119 S.Ct. 1472, 143 L.Ed.2d 556 (1999).
The trial court's findings with regard to a Batson challenge are entitled to great deference on appeal. Id. at 4; see also, State v. Juniors, 03-2425, p. 28 (La.6/29/05), 915 So.2d 291, 316. When a defendant voices a Batson objection to the State's exercise of a peremptory challenge, the finding of the absence of discriminatory intent depends upon whether the trial court finds the prosecutor's race-neutral explanations to be credible. "Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." Miller-El, 537 U.S. at 339, 123 S.Ct. at 1040.
The three-step Batson process which guides the courts' examination of peremptory challenges for constitutional infirmities has recently been described again by the Supreme Court as follows:
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 comprehensible 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. [Internal quotations and citations omitted.]
FN6. LSA-C.Cr.P. art. 795(C): No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.
Collins, 546 U.S. at 338, 126 S.Ct. at 973-74.
In the instant case, the State used three of its peremptory challenges to strike prospective African-American jurors Martin, Boyer, and Bourgeois from the first venire panel, and six of its peremptory challenges to strike prospective African-American jurors Nettles, L. Johnson, Perossier, Julien, Carter, and Duplessis from the second panel. Herein below is our review of the strikes from each panel.
First Venire Panel
Neither party disputes that the trial court properly followed the three-step inquiry in ruling on defendant's Batson objections. The State's explanations for its strikes were as follows:
Ms. Bourgeois: The prosecutor explained that she struck prospective juror Bourgeois based on her response to a hypothetical situation wherein Ms. Bourgeois indicated that if her sister ran a stop sign driving while intoxicated and killed someone, that Ms. Bourgeois would not hesitate to testify against her sister, even if family members pressured her not to do so. The prosecutor maintained that upon consideration of some of the facts in the instant case, the firmness of Ms. Bourgeois' response in this regard gave her "pause."
Ms. Boyer and Ms. Martin: The prosecutor contended that she struck prospective jurors Boyer and Martin because, although engaging, both seemed to "flip-flop" on some questions. The prosecutor said she watched them and observed them nod their heads and shake their heads at some statements by defense counsel. As a result, she did not believe they were individuals who would be the best jurors for the State.
The Louisiana Supreme Court has recognized that a prospective juror's body language can be an acceptable race-neutral reason for the exercise of a peremptory challenge, when that reason is accepted by the trial court. State v. Nelson, 2010-1724, p. 14 (La. 3/13/12), 85 So. 3d 21, 31-32. Therefore, we cannot say that the trial court abused its discretion in accepting the race-neutral reasons given by the State for striking Ms. Martin, Ms. Boyer, and Ms. Bourgeois from the first venire panel; and as a result, we decline to substitute our review of the record in the place of the findings of the trial judge.
Second Venire panel
At trial, defense counsel raised a Batson objection as to the State's decision to strike Mr. Nettles, Mr. L. Johnson, Ms. Perossier, Ms. Julien, Ms. Carter, and Mr. Duplessis from the second venire panel. Although the defendant disputes the State, the State gave the following race-neutral reasons for its decisions to strike.
Mr. Nettles: The prosecutor stated that Mr. Nettles was twenty-eight years old and unemployed. The prosecutor did not believe that Mr. Nettles had a lot of ties to the community; therefore, she did not want him on the jury. However because existing case law provides that a prospective juror's unemployed status may be recognized as a race-neutral reason for the exercise of a peremptory challenge, the trial court was well within its discretion to allow the strike. State v. Maxwell, 2011-0564, pp. 15-16 (La. App. 4 Cir. 12/21/11), 83 So.3d 113, 123-124.
Mr. L. Johnson: The prosecutor highlighted that although Mr. Johnson had sat on a prior criminal jury which returned a guilty verdict, Mr. Johnson also stated that he would require a lot from the State insofar as proving its case. He clarified that the State would have to give him a lot before he could vote guilty. Consequently, this Court finds that the trial court did not err in accepting this race-neutral reason for the State's decision to strike Mr. Johnson.
Ms. Perossier: The prosecutor struck Ms. Perossier because she did not get much feedback out of Ms. Perossier during the voir dire. Without having heard anything from this prospective juror, the prosecutor was hesitant to put her on the jury. The defendant did not contest this assessment. The trial court accepted the State's reason to strike as race-neutral and defendant has not rebutted this finding before this Court.
Ms. Julien: The prosecutor's concern with Ms. Julien was a medical condition referenced by Ms. Julien. The prosecutor noted that during voir dire, Ms. Julien had approached to explain her medical condition to the court. The prosecutor expressed concern that this type juror would be less inclined to pay attention to the facts of the case. Our review of the record supports the prosecutor's account that this juror presented with medical complaints; therefore, the prosecution provided the trial court with a race-neutral reason to strike the juror.
Ms. Carter: The prosecutor's stated reason to strike Ms. Carter arose from some type of professional acquaintance she had with defense counsel. Although Mr. Carter asserted she could be fair and impartial, under the circumstances, the trial court was within its discretion to decide that the State's decision to strike Ms. Carter from the jury panel was race-neutral.
Mr. Duplessis: The prosecutor relayed that Mr. Duplessis was struck because she had learned from other assistant district attorneys that he had been a defendant in some other cases. The offenses allegedly included drug violations, domestic battery case, and an armed robbery arrest. Although the defense complained that the State used information to which the defense was not privy, nevertheless, the court noted that the State's decision to strike this potential juror was not racially motivated. We agree with the trial court's finding.
Overall, defendant complains that the State ultimately exercised eleven of its twelve peremptory challenges to strike prospective African-American jurors. Based upon our review, however, in each case, the State provided sufficient race-neutral reasons for all of its decisions to strike. As a result, we find no merit in this assignment of error. ASSIGNMENT OF ERROR NO. 7
In his last assignment of error, defendant argues that the trial court erred in denying him the right to "backstrike." The record reveals that at the outset of voir dire, the trial court advised that it did not allow backstrikes, to which defense counsel objected. The concept of backstrikes is addressed in La. C.Cr.P. rt. 799.1
La. C.Cr.P. art. 799.1 states:
Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788, in the jury selection process, the state and the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted. No juror shall be sworn in until both
parties agree on the jury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties.
"Back striking, or the exercise of a peremptory challenge to strike a provisionally-accepted juror, is expressly authorized by La. C.Cr.P. art. 799.1 ... ." State v. Lewis, 2012-1021, p. 8 (La. 3/19/13), 112 So. 3d 796, 801. La. C.Cr.P. 799.1 was enacted by Acts 2006, No. 71, §1 to codify the holding of earlier jurisprudence from the Louisiana Supreme Court. Lewis, 2012-1021, p. 8, 112 So. 3d at 801 ("See [State v. ]Taylor, 93-2201 at 22 [(La. 2/28/96)], 669 So. 2d [364] at 376-77; State v. Watts, 579 So. 2d 931 (La. 1991) ('A juror temporarily accepted and sworn in accordance with LSA C.Cr.P. Art. 788 may nevertheless be challenged peremptorily prior to the swearing of the jury panel in accordance with LSA C.Cr.P. Art. 790. LSA C.Cr.P. Art. 795(b)(1).' ").
Two recent Louisiana Supreme Court cases, State v. Lewis, supra, and State v. Patterson, 112 So.3d 806 (La. 3/19/13) determined that it was reversible error for the trial court to deny defendant's statutory right to exercise peremptory backstrikes against a provisionally accepted juror. However, both decisions held that harmless error analysis is the appropriate standard for review of the trial court's decision to prohibit the defendant's right to backstrike, distinguishing its prior decision in State v. Taylor, 669 So.2d 364 (La. 2/28/96). In Lewis, the Court stated:
[T]his case is distinguishable from Taylor (wherein we concluded the district court error in not allowing back strikes was harmless) in two important respects. First, in Taylor, the defendant had a full opportunity to peremptorily challenge the objectionable juror. Not only was the defendant aware early in the voir dire that the district court would not permit back strikes, but the juror defendant identified as the individual he would have peremptorily challenged was in the last panel and nothing prevented the defendant from challenging that juror at the time. That situation differs significantly from the present one, in which the defendant was led to believe that he would be able to exercise a back strike against juror Wolfe by the2012-1021, pp. 16-17, 112 So. 2d at 805-806.
district court's apparent acquiescence to his statement, at the close of the first venire panel, that "[w]e'd reserve." Second, and most significantly, in Taylor, the defendant did not identify the juror he would have challenged until oral argument before this court. See Taylor, 93-2201 at 25, 669 So.2d at 377. Here, the objectionable juror was identified to the district court before jury selection was concluded, thereby eliminating any potential abuse of the jury selection process by the defendant. See Hailey, [20]02-1738 at 8 [La. App. 4 Cir. 9/17/03), 863 So.2d [564] at 569 ("[T]he effect of not requiring a defendant to specify at trial who he would have backstruck is to permit a defendant to gamble upon receiving a favorable jury verdict, and then, upon the return of an unfavorable verdict, scour the voir dire transcript for jurors whom he can claim he would have backstruck.").
In the final analysis, given the particular facts and circumstances of this case, we cannot conclude with certainty that the jury's guilty verdicts were surely unattributable to the error of the district court in denying defendant the right to use a peremptory challenge to back strike juror Wolfe and, thus, that the error in prohibiting the back strike was harmless beyond a reasonable doubt. (Footnotes omitted).
In Patterson, the Court opined that under the harmless error analysis, the State has the burden of showing that the jury's verdict was surely unattributable to the presence of the juror on the panel who, but for the trial court's violation of La. C.Cr.P. art. 799.1, would have been peremptorily challenged in favor of a different juror. Patterson, 2012-2042, p. 6, 112 So. 3d at 811.
In the instant case, the trial court clearly erred in its refusal to allow the defendant to exercise his statutory right under the rules of criminal procedure to back strike a provisional juror. Therefore, this Court must decide whether that decision amounted to harmless error. Upon review, we determine that the trial court's error was harmless error.
First, similar to Taylor, the trial court in the present case advised counsel at the outset that it would not permit backstrikes. Second, as in Taylor, and what the Lewis court characterized as most significant in its harmless error analysis, defendant failed to identify any provisionally-accepted juror he wanted to backstrike at trial or in this appeal. In addition, the guilty verdict rendered in this matter was unanimous, unlike in Lewis.
Upon consideration of these factors, the defendant's guilty verdict was "surely unattributable" to the trial court's error in denying defendant the right to backstrike. The error was harmless beyond a reasonable doubt; and thus, this assignment of error does not have merit.
Wherefore, based on the foregoing reasons, we affirm defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED