Opinion
NUMBER 2015 KA 1741
06-06-2016
STATE OF LOUISIANA v. DEVIN MICHAEL BAHAM
Warren L. Montgomery District Attorney Covington, LA Counsel for Appellee State of Louisiana Prentice White Louisiana Appellate Project Baton Rouge, LA Counsel for Defendant/Appellant Devin Michael Baham
NOT DESIGNATED FOR PUBLICATION
Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Docket Number 534157 "H"
Honorable Allison H. Penzato, Judge Presiding Warren L. Montgomery
District Attorney
Covington, LA Counsel for Appellee
State of Louisiana Prentice White
Louisiana Appellate Project
Baton Rouge, LA Counsel for Defendant/Appellant
Devin Michael Baham BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. GUIDRY, J.
The defendant, Devin Michael Baham, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1 (count one); aggravated arson, a violation of La. R.S. 14:51 (count two); and obstruction of justice, a violation of La. R.S. 14:130.1 (count three). The defendant entered a plea of not guilty to all counts. Following a jury trial, he was found guilty of the responsive offense of manslaughter, a violation of La. R.S. 14:31, on count one and guilty as charged on counts two and three. He filed motions for new trial and postverdict judgment of acquittal, both of which were denied.
The State then filed a habitual offender bill of information alleging that the defendant was a fourth-felony habitual offender on count one, and the defendant denied the allegations of the bill. After a hearing, the defendant was adjudicated a fourth-felony habitual offender. He was then sentenced to fifty-five years at hard labor without the benefit of probation or suspension of sentence on count one. On count two, the defendant was sentenced to fifteen years at hard labor, with two years to be served without the benefit of parole. On count three, he was sentenced to ten years at hard labor. The district court ordered that the sentences for counts two and three run concurrently with each other and consecutively to count one. The defendant filed a motion to reconsider sentence, which was denied. He now appeals, alleging two assignments of error. For the following reasons, the defendant's convictions and sentences are affirmed.
The defendant's predicate offenses included: (1) a September 23, 2009 guilty plea to theft of $300.00 or more, but less than $500.00, in the 22nd Judicial District Court ("22nd JDC"), Parish of St. Tammany, docket number 475169; (2) an April 27, 2009 guilty plea to theft over $500.00 in the 22nd JDC, Parish of St. Tammany, docket number 458207; and (3) an April 27, 2009 guilty plea to theft of $300.00 or more, but less than $500.00, in the 22nd JDC, Parish of St. Tammany, docket number 464537.
FACTS
On February 23, 2012, at approximately 5:30 a.m., Slidell Police Department Detective Richard Walden received a call concerning a possible arson at the Bayou Lane Apartment complex in Slidell. Once firefighters extinguished the fire, Detective Walden learned that a deceased body was located inside of the apartment. The body was later identified as that of the thirty-two year old victim, Ashley King. Louisiana State Fire Marshall's Office Arson Investigator Jason Johnston testified that the victim was most likely deceased before the fire was set because of the lack of soot on her teeth, tongue, and mouth, indicating that she was not breathing at the time of fire. He noticed marks on the victim's chest and contacted the Slidell Police Department.
Slidell Police Department officers found the front bedroom of the apartment in disarray. According to Lieutenant Barry Van Shoubrouek, the bed inside of the master bedroom was covered with items. Officers collected several prescription bottles in the victim's name from the apartment. Rags and cloths found near the victim's head were tested and determined to have gasoline on them.
The Orleans Parish Chief Forensic Pathologist, Doctor Samantha Huber, testified that she believed that the victim died prior to being burned and that the knife that the State had in evidence was consistent with the wounds suffered by the victim. The autopsy revealed that the victim suffered thirteen sharp force injuries on the back of her neck, chest, the back of her right arm, and her thumb. At least four were potentially fatal, and three penetrated her heart. A majority of the wounds were caused by a single-edged blade, one caused by a single-edged blade with serrations, and all were consistent with a knife.
The victim's father, Joseph King, testified at trial. According to Joseph, the victim sold her BMW vehicle for $10,000.00 cash in order to purchase a tanning bed. On February 22, 2012, he picked up the victim's prescription for Oxycodone and drove her to Walmart to purchase a table for the tanning bed around 9:30 a.m. After purchasing the table, Joseph drove the victim back home. He called her at 6:00 p.m., but the call was sent straight to voicemail. The victim's boyfriend contacted Joseph the following morning and said that he could not get in touch with the victim.
The victim's friend, Erin Marks, testified that she spoke with the victim on February 22, 2012, and the victim told her that Andrew Sumner was coming over to help her put together a desk. Later that day, the victim's boyfriend contacted Marks stating that he was unable to get in touch with the victim. Marks drove to the victim's apartment to check on her, but no one answered the door. Marks looked through the window and saw that the lights were on and a candle was lit.
Sumner testified at trial and explained that he was currently incarcerated for charges related to the murder of the victim, in which he, the defendant, and Katelyn Lusich were involved. He admitted that he initially lied to police about any involvement in the murder, but ultimately pled guilty to manslaughter, obstruction of justice, and aggravated arson. At the time of the defendant's trial, Sumner had not yet been sentenced. Sumner was married to Lusich, and they had a son together. Lusich, who pled guilty to obstruction of justice, was sentenced to forty years imprisonment.
According to Sumner, at the time of the victim's murder, Lusich was seven-and-one-half months pregnant, and the two of them lived with his parents in Slidell. He was nineteen years old, and the defendant was twenty-one years old. Sumner's testimony established that he had access to his parents' accounts in order to purchase clothes, food, and drugs and that he did not need to work for money. Sumner claimed that he met the victim through a friend and purchased "Roxies" from her. Sumner attended high school with the defendant. According to Sumner's testimony, prior to the incident, the defendant told him that he wanted to "hit a lick" for money to buy a vehicle, and when discussing whom to rob, the defendant suggested the victim because he knew Sumner purchased pills from her.
Both Sumner and Lusich testified that the defendant traveled with them to the victim's apartment in Lusich's vehicle. According to Sumner, once inside the apartment, the defendant hit the victim in her face, ran up behind her, grabbed her from behind, and fell to the ground with her prior to him hearing the victim yell and say, "F***, I'm bleeding." Sumner testified that he heard a "thumping sound" before the victim stopped screaming. He admitted he had purchased a knife for the defendant from Academy on January 30, 2012, and had given the knife to the defendant the weekend before the incident. Sumner also admitted that the knife he purchased for the defendant was used to kill the victim. Sumner testified that the defendant told him that he needed to clean up and asked Sumner to return and pick him up when he called.
According to Sumner and Lusich, they returned to Sumner's house without the defendant, and Sumner later picked up the defendant. They testified that the defendant changed clothes upon returning to Sumner's home and put his clothes into a trash bag. They also testified that Sumner and the defendant siphoned gasoline from Sumner's boat. Sumner explained that he returned to the victim's apartment with the defendant, and the defendant poured gasoline on the victim, lit a sock on fire, and threw the sock. Lusich testified that when Sumner and the defendant returned to Sumner's home, both smelled like gasoline. Sumner and Lusich also testified that the defendant subsequently cleaned Lusich's car, and Sumner's father corroborated that testimony. Sumner and Lusich both stated that the defendant told them a version of events to tell the police.
Sean Bartley, a crime scene investigator with the Slidell Police Department, conducted a search of Lusich's vehicle. There were not many items in the front of the vehicle, and the carpet appeared to have been vacuumed or brushed. He found a receipt from the Dollar Tree dated February 22, 2012, at 9:13 p.m. The receipt was for three drinks, latex gloves, and adult hangers. A cardboard package for latex gloves was found in the back seat area of the vehicle. The defendant's driver's license was inside of the center console of the vehicle. Paychecks made out to Sumner were inside of the glovebox.
St. Tammany Parish Coroner's Office Forensic DNA Analyst Tara Johnson testified that she tested swabs taken from the center console of Lusich's vehicle on the passenger's side near the floorboard. The swab produced a profile consistent with the victim. The defendant, Sumner, and Lusich were excluded as DNA donors of that profile. A sample from the shifter area in the vehicle was also tested. The mixture produced a profile of at least two DNA donors. Sumner and Lusich could not be excluded as donors, but the victim and the defendant were excluded as donors. Swabs from the area around the victim's body as well as both sides of the melted gas can produced results consistent with the victim. The defendant, Sumner, and Lusich were all excluded. A pair of Sumner's sneakers tested positive for blood, and the samples of blood from the sneakers were consistent with Sumner. The victim, the defendant and Lusich were excluded.
Slidell Police Department Detective Michael Deckelman testified that he obtained the victim's cellular telephone number and noted that the last outgoing call from her phone was on February 22, 2012. at 1:53 p.m. Detective Deckelman further testified that he was present for the arrests of Sumner and the defendant, and both men were photographed. The detective testified that he heard the defendant yelling from his holding cell and repeating several times, "don't tell them anything" in an almost threatening manner.
The defendant called Norbert Washington to testify. Washington claimed that he met Sumner while in jail and that he went to school with the defendant, but did not know him. Washington admitted that Sumner was "geeky" and had a "weak" personality. According to Washington, Sumner admitted that he killed the victim and that he and Lusich blamed everything on the defendant. He further claimed that he saw Sumner talking to the defendant while they were in jail, and Sumner was attempting to find out how much money it would take for the defendant to "take the charge."
The defendant testified at trial. His testimony established that he was incarcerated from 2009-2011. He testified that in 20.09, he pled guilty to one count of felony theft between $300.00 and $500,00 and one count of theft over $500.00. He was sentenced to probation for a term of five years, but his probation was revoked when he pled guilty to eight counts of theft under $300.00, He also testified that he had a simple battery and simple possession charge. (R. 1532-33, 1576-77, 1580). The defendant claimed that he was not in need of money at the time of the murder and that he never met the victim, but had heard of her from Sumner. (R. 1534). He denied asking Sumner to purchase a knife for him. He testified that he spent the night at Sumner's house on February 21, 2012, but claimed he never left the house. (R. 1536-37).
According to the defendant, on February 22, 2012, Sumner dropped him off at a park where he played football, jogged, and sent text messages. He explained that he changed clothes and put his clothes into a bag because the clothes that he was wearing had grass stains. The defendant claimed that Sumner poured all of his gasoline into one can because he wanted to take a fishing trip. In explaining their purchases at the Dollar Store, the defendant claimed that Sumner bought gloves for his mother for gardening' purposes. He claimed that he did not leave Sumner's house once they returned and explained that he placed a call to Sumner at 4:30 a.m. on February 23, 2012, because he woke up during the night, went outside to smoke a cigar, and noticed that the car was not there. He admitted cleaning Lusich's vehicle, but claimed that he was doing so to help the couple out because they planned to trade in the vehicle. He admitted telling Sumner not to say anything to the police officers, but claimed that he did so because he was scared and did not want Sumner to get into trouble. He also claimed that Sumner offered him $300,000.00 to "take the life sentence."
On cross-examination, the defendant admitted that because he was on parole, he could not purchase a weapon, including a knife.
SUFFICIENCY
In his first assignment of error, the defendant challenges the sufficiency of the State's evidence. Specifically, the defendant argues that the State failed to establish that it was him, and not Sumner, who committed the crimes. According to the defendant, he was "being targeted for second degree murder because Sumner neither wanted [Lusich] nor himself to be in prison for the rest of their lives." The defendant argues that his DNA was not found on any of the items taken from the victim's apartment, and "[f]or the jury to return a guilty verdict using biased testimony from the State's primary witnesses requires a reversal."
The standard of review for sufficiency of the evidence to support a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime, and the defendant's identity as the perpetrator of that crime, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Patton, 10-1841, p. 21 (La. App. 1st Cir. 6/10/11), 68 So. 3d 1209, 1224. In conducting this review, we must also be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; State v. Millien, 02-1006, p. 2 (La. App. 1st Cir. 2/14/03), 845 So. 2d 506, 508-09.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light, most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601, p. 3 (La. App. 1st Cir. 2/19/99), 730 So. 2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So. 2d 1157 & 00-0895 (La. 11/17/00), 773 So. 2d 732.
The defendant challenges the sufficiency of the State's evidence to support his convictions for manslaughter, aggravated arson, and obstruction of justice. As to the defendant's manslaughter conviction, in State ex rel. Elaire v. Blackburn, 424 So. 2d 246, 251 (La. 1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983), the Louisiana Supreme Court recognized the legitimacy of a "compromise verdict," i.e., a legislatively approved responsive verdict that does not fit the evidence, but which (for whatever reason) the jurors deem to be fair, as long as the evidence is sufficient to sustain a conviction for the charged offense. See also State v. Collins, 09-2102, p. 12 (La. App, 1st Cir. 6/28/10), 43 So. 3d 244, 251, writ denied, 10-1893 (La. 2/4/11), 57 So. 3d 311, cert. denied, ___ U.S. ___, 132 S.Ct. 99, 181 L.Ed.2d 27 (2011) ("[t]he factfinder has the right to 'compromise' between the charged offense and a verdict of not guilty"). If the defendant timely objects to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict, the court overrules the objection, and the jury-returns a verdict of guilty of the responsive offense, the reviewing court must examine the record to determine if the responsive verdict is supported by the evidence and may reverse the conviction if the evidence does not support the verdict. However, if the defendant does not enter an objection (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively-responsive offense returned by the jury. See State ex rel. Elaire, 424 So. 2d at 251.
The defendant herein was charged under count. one of the grand jury indictment with second degree murder, but the jury convicted him of the responsive "compromise" verdict of manslaughter. Manslaughter is a legislatively approved responsive verdict to a charge of second degree murder. See La. C. Cr. P. art. 814(A)(3). The record in the instant case does not show any objection by the defense to the instruction on manslaughter. Thus, as the defendant did not timely object to the instruction given to the jury on the responsive verdict, our review of the defendant's sufficiency of the evidence challenge of his conviction for manslaughter will be based on consideration of whether the evidence presented by the State is sufficient to support a conviction for the charged offense of second degree murder.
As applicable here, second degree murder is the killing of a human being "[w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]" La. R.S. 14:30.1A(1). Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. State v. Henderson, 99-1945, p. 3 (La. App. 1st Cir. 6/23/00), 762 So. 2d 747, 751, writ denied, 00-2223 (La. 6/15/01), 793 So. 2d 1235. Moreover, specific intent to kill can be implied by the intentional use of a deadly weapon such as a knife or a gun. State v. Templet, 05-2623, p. 15 (La. App. 1st Cir. 8/16/06), 943 So. 2d 412, 421, writ denied, 06-2203 (La. 4/20/07), 954 So. 2d 158.
The defendant's conviction on count two was for aggravated arson. Pursuant to La. R.S. 14:51A, "[a]ggravated arson is the intentional damaging by any explosive substance or the setting fire to any structure . . . whereby it is foreseeable that human life might be endangered." The defendant's conviction on count three was for obstruction of justice. Louisiana Revised Statutes 14:130.1 provides, in pertinent part:
A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described:
(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or
...
(2) Using or threatening force toward the person or property of another with the specific intent to:
(a) Influence the testimony of any person in any criminal proceeding;
(b) Cause or induce the withholding of testimony or withholding of records, documents, or other objects from any criminal proceeding;
(c) Cause or induce the alteration, destruction, mutilation, or concealment of any object with the specific intent to impair the object's integrity or availability for use in any criminal proceeding[.]
Where the key issue is the defendant's identity as the perpetrator of the crime, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification to carry its burden of proof. State v. Johnson, 99-2114, p. 4 (La. App. 1st Cir. 12/18/00), 800 So. 2d 886, 888, writ denied, 01-0197 (La. 12/7/01), 802 So. 2d 641. Positive identification by even one witness may be sufficient to support a conviction. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Davis, 00-2685, p. 6 (La. App. 1st Cir. 11/9/01), 818 So. 2d 76, 80.
The trier of fact is free to accept or reject, in whole or in part, any witness's testimony. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the witnesses' credibility, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261, p. 6 (La. App. 1st Cir. 9/25/98), 721 So. 2d 929, 932.
We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342, p. 8 (La. 10/17/00), 772 So. 2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the accepted evidence insufficient. State v. Quinn, 479 So. 2d 592, 596 (La. App. 1st Cir. 1985). The verdicts rendered in this case indicate that the jury credited the testimony of Sumner and Lusich against the defendant and rejected the defendant's testimony and attempts to discredit those witnesses.
When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So. 2d 676, 680 (La. 1984). The jury's guilty verdicts reflect the reasonable conclusion that, based on the testimony of several witnesses, the defendant was guilty of aggravated arson and obstruction of justice. In finding the defendant guilty, the jury clearly rejected the defendant's hypothesis of innocence. See Captville, 448 So. 2d at 680. Moreover, we find that the evidence presented by the State was sufficient to support a conviction of second degree murder, although the jury found the defendant guilty of the responsive offense of manslaughter.
In Louisiana, an accomplice is qualified to testify against a co-perpetrator even if the State offers him inducements to testify. The inducements would merely affect the witness's credibility. Additionally, a conviction may be sustained on the uncorroborated testimony of a purported accomplice. State v. Arnold, 07-0362, p. 6 (La. App. 1st Cir. 9/19/07), 970 So. 2d 1067, 1071, writ denied, 07-2088 (La. 3/7/08), 977 So. 2d 904. A positive identification by only one witness is sufficient to support a conviction. State v. Weary, 03-3067, p. 18 (La. 4/24/06), 931 So. 2d 297, 311, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Rochelle, 47,984, pp. 10-11 (La. App. 2d Cir. 7/3/13), 118 So. 3d 532, 538, writ denied, 13-1887 (La. 2/21/14), 133 So. 3d 680.
As previously mentioned, Sumner testified that the defendant devised a plan to rob the victim, and that after entering the victim's apartment, the defendant hit the victim in the face, grabbed her from behind, and fell to the ground with her. Sumner, who stated that he ran to the kitchen after witnessing the defendant's initial attack on the victim, testified he then heard the victim yell, "F***, I'm bleeding," after which he heard a "weird, like, thumping sound" and the victim stopped screaming. Sumner stated that the defendant afterwards entered the kitchen, hugged him, and told him "I love you, Little Brother. It's going to be fine," at which point Sumner looked out from the kitchen and saw the victim's arm and a big puddle of blood.
Viewing the evidence in the light most favorable to the State, we are convinced that any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of second degree murder, as well as aggravated arson and obstruction of justice. See State v. Calloway, 07-2306, p. 8 (La. 1/21/09), 1 So. 3d 417, 419 (per curiam). This assignment of error is without merit.
CROSS-EXAMINATION OF THE DEFENDANT
In his second assignment of error, the defendant argues that the district court erred in allowing the State to cross-examine the defendant about his unwillingness to give a statement, in violation of his right to remain silent. Specifically, he contends that on cross-examination, "the State inferred for the jury that [the defendant] had a duty to make a statement to the police if he was indeed innocent." According to the defendant, the State's line of questioning "prejudiced the jury and these questions permitted the jury to use [the defendant's] refusal to make a statement as an implication of guilt."
The United States Supreme Court has held that an accused's post-arrest silence is "insolubly ambiguous." Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976). Because a jury is apt to draw inappropriate inferences from the fact that a defendant chose to remain silent, "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment." Doyle, 426 U.S. at 619, 96 S.Ct. at 2245; State v. Stelly, 93-1090 (La. App. 1st Cir. 4/8/94), 635 So. 2d 725, 728, writ denied, 94-1211 (La. 9/23/94), 642 So. 2d 1309. "[T]he prosecutor may not use the fact of an accused's exercise of his constitutional right to remain silent, after he has been advised of this right, solely to ascribe a guilty meaning to the silence or to undermine by inference an exculpatory version related by the accused for the first time at trial." State v. Arvie, 505 So. 2d 44, 46 (La. 1987). However, it is well settled that where one side has gone partially into a matter on examination-in-chief, the other side may go fully into it on cross-examination. State v. Edwards, 420 So. 2d 663, 675 (La. 1982).
During his direct examination, the defendant testified that he invoked his right to speak with an attorney and chose not to answer any questions. He further stated that, "my first time I was arrested, I made a statement to the police. And I learned throughout the course of my incarceration, it's always better not to say anything, have an attorney present whenever you are speaking with police officers." On cross-examination, the following colloquy occurred:
[State]: You learned a lot in jail, didn't you?
[The defendant]: Yes, ma'am, obviously I did.
[State]: Did you talk to convicted felons in jail?
[The defendant]: Yes, ma'am, I did.
[State]: People charged with robberies?
[The defendant]: All sorts of crimes, robberies, rapes, murders--
[State]: Murder?
[The defendant]: --theft, all types of things.
[State]: And you learned what?
[The defendant]: Any time you are in trouble with the law, it's best that you invoke your right to an attorney.
[State]: That's what you learned in jail, right, never say anything?
[The defendant]: Yes, ma'am.
[State]: Even if you are innocent, never say anything?
[Defense counsel]: Objection, Can we approach the Bench?
Defense counsel argued, "I believe the case is Gonzales, US Supreme Court. You can't comment on prior occasions when he has exercised the right to remain silent or demonstrate that to a jury that he chose to exercise his right to remain silent or that he prefers to do it that way." The State responded that the question was asked on direct and it believed that the door was open. The court stated that defense counsel "did open the door." Defense counsel specified, "To this case, this case. I don't think that you ask him about any prior cases because you couldn't, reversible error in itself. We are talking about this case and his decision in this case, not prior cases." Defense counsel went on to argue, "[w]hat you learn in jail is not the same thing as having an attorney, and we are talking about his prior history. You are referring [sic] he learned this in jail. Not to say that, I don't think you can comment or ask him questions about anything other than his decision in this case because we opened the door." The district court responded that [it] thought defense counsel was "wrong on that. Y'all opened the door on numerous occasions about this whole issue, on numerous occasions. It has been brought up at least three times, not by [the State] but by y'all. . . . And I think [the State] can ask him about that now that y'all opened the door." Defense counsel responded, "In this case -- regarding this case, and we're not objecting to regarding this case, we are regarding to prior cases." The following exchange then took place:
[The Court]: She -- her question did not refer to prior cases.
[Defense counsel]: I'm sorry. Maybe I misunderstood. I thought that's what you are referring to.
[The State]: I referred to what he said he learned in jail to [defense counsel's] direct question, and now I'm asking a little more about what he learned in jail. . . . Not what he did.
[Defense counsel]: Exercising Constitutional rights is not fair as a cross-examination of other cases.
[The Court]: Okay. She has not asked about other cases. She's asked -- she's asked him about this case, what he learned in jail that impacts this case, because y'all opened the door three times on this issue. Had y'all not opened the door, this would never have come in.
[The State]: Correct.
[The Court]: Make sure that you are specific with your question . . . so that your question is not objectionable as to any prior cases. Okay?
[Defense counsel]: Note my objection.
Cross-examination continued:
[State]: [You learned] [n]ot to say anything to the police, correct?
[The defendant]: Yes, ma'am.
[State]: Even if you have something that you should tell them, right?
[The defendant]: I wouldn't say that. They just -- it was just, you know, the general knowledge if you are arrested of [sic] a crime.
[State]: Never talk to the police?
[The defendant]: Yes, ma'am.
[State]: All right. So you are brought in on this case. They told you you were charged with first degree murder, correct?
[The defendant]: Yes, ma'am, they did.
[State]: They showed you the warrant outside of the window that you were wanted for first degree murder, correct?
[The defendant]: Yes, ma'am.
[State]: And they brought you to the station?
[The defendant]: Yes, ma'am.
[State]: And you decided never to say anything about it, correct?
[The defendant]: In relation to a murder charge if I can do --
[State]: Murder charge/aggravated arson, the one they were sitting in front of you trying to talk about?
[The defendant]: When I learn something, I choose to apply that knowledge of where I deem necessary.
[State]: Would you answer "yes" or "no" please to my question first?
[The defendant]: Could you repeat the question, please?
[State]: You chose when you were with this case in front of the police that you were being charged with first degree murder/aggravated arson, you decided not to tell the story you just told in court today, correct?
[The defendant]: I didn't know all the things that I know this day.
[State] "Yes" or "no," did you choose?
[The defendant]: Yes, ma'am, I chose not to say anything.
[State]: Now --
[Defense counsel]: Objection. Permission for him to finish his answer after he's saying "yes" or "no"
[The court]: He can be allowed to explain.
[State]: After answering yes, do you have something you want to say?
[The defendant]: Could you repeat the question that I was about to explain, please?
[State]: I asked you, you chose not to tell the story you just told in court to the police when they gave you a chance to talk about your charges for aggravated arson and first degree murder, correct?
[The defendant]: Yes, ma'am. And I was about to say that when it comes to a murder charge, if I knew anything that could assist police officers in their investigation, I would speak. I had no knowledge of a murder charge at the time, so I didn't say nothing.
[State]: But you didn't explain that you didn't have any involvement, correct, at the time, "yes" or "no"?
[The defendant]: Yes, ma'am, that's correct.
[State]: And you never made a statement or asked to make a statement until today, correct?
[The defendant]: Yes, ma'am.
On appeal, the defendant argues that the State's line of questioning "inferred for the jury that [he] had a duty to make a statement to the police if he was indeed innocent." However, at trial, defense counsel did not object to the State's line of questioning on grounds that the State was improperly using the defendant's silence in this case to create an inference of guilt. In order to preserve the right to appellate review of an alleged trial error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La. C. Cr. P. art. 841A. A new basis for an objection may not be raised for the first time on appeal, The purpose behind the contemporaneous objection rule is to put the district court judge on notice of an alleged irregularity so that he may cure the problem. It is also intended to prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. See State v. McClain, 04-0098, p. 14 (La. App. 5th Cir. 6/29/04), 877 So. 2d 1135, 1144, writ denied, 04-1929 (La. 12/10/04), 888 So. 2d 835; see also State v. Young, 99-1264, p. 9 (La. App. 1st Cir. 3/31/00), 764 So. 2d 998, 1005.
The grounds for defense counsel's objection to the State's line of questioning was that the defendant's silence in prior cases was not a permissible topic of cross-examination. The district court overruled the objection and noted that defense counsel opened the door. A district court is afforded great discretion in controlling the scope and extent of cross-examination and its findings will not be disturbed absent a finding of an abuse of discretion. State v. Nelson, 13-0722 (La. App. 1st Cir. 12/27/13), 2013 WL 6858302 (unpublished opinion), writ denied, 14-0216 (La. 8/25/14), 147 So. 3d 700. After a thorough review of the record, we find that the district court did not abuse it's discretion in overruling the defendant's objection. As noted by the district court, the testimony presented by the defendant on direct examination established that he "learned throughout the course of his incarceration" that it is "always better to not say anything." Thus, the defendant opened the door to questions from the State on cross-examination regarding what he learned in jail. Moreover, contrary to the defendant's objection, the State did not question the defendant about his silence in prior cases. Accordingly, this assignment of error is without merit.
CONVICTIONS AND SENTENCES AFFIRMED.