Opinion
NO. 2017 KA 0362
09-15-2017
STATE of Louisiana v. Daren Q. KITCHEN
RICKY L. BABIN, DISTRICT ATTORNEY, LARRY W. BUQUOI, DONALD D. CANDELL, ASSISTANT DISTRICT ATTORNEYS, 23JUDICIAL DISTRICT COURT, GONZALES, LA, ATTORNEYS FOR STATE OF LOUISIANA ANTHONY P. LEWIS, THIBODAUX, LA, ATTORNEY FOR DEFENDANT–APPELLANT DAREN Q. KITCHEN
RICKY L. BABIN, DISTRICT ATTORNEY, LARRY W. BUQUOI, DONALD D. CANDELL, ASSISTANT DISTRICT ATTORNEYS, 23RD JUDICIAL DISTRICT COURT, GONZALES, LA, ATTORNEYS FOR STATE OF LOUISIANA
ANTHONY P. LEWIS, THIBODAUX, LA, ATTORNEY FOR DEFENDANT–APPELLANT DAREN Q. KITCHEN
BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
PETTIGREW, J.
Defendant, Daren Q. Kitchen, was charged by bill of information with aggravated second degree battery, a violation of La. R.S. 14:34.7 (count 1); aggravated criminal damage to property, a violation of La. R.S. 14:55 (count 2); and two counts of aggravated battery, violations of La. R.S. 14:34 (counts 3 & 4). He pled not guilty and, following a jury trial, was found guilty as charged on all counts. He filed motions for new trial and post-verdict judgment of acquittal, which the trial court denied. Thereafter, the trial court sentenced defendant to ten years at hard labor on each count, all to run consecutively. Defendant now appeals, alleging several assignments of error and requesting a patent error review. For the following reasons, we affirm the convictions and sentences.
In his reply brief, defendant raised the issue of double jeopardy for the first time. We note that defendant's double jeopardy argument exceeded the allowable scope of a reply brief argument. See Uniform Rules—Louisiana Courts of Appeal, Rule 2–12.6. Moreover, defendant sets forth only generalized statements concerning the same evidence test in his reply brief and offers no real briefing on this issue. Nonetheless, based on our review of the record, we find that defendant's convictions do not constitute double jeopardy.
FACTS
On the evening of July 2, 2012, Jennifer Morvant and Kenneth Gravois were talking in the driveway of Morvant's home in Lafourche Parish when a black pickup truck drove by her home. Defendant, Morvant's ex-boyfriend, was a passenger in the truck at this point. As the truck drove past Morvant's home, defendant yelled, "Oh, hell no," from the passenger's-side window. Fearful of defendant, Morvant entered Gravois's truck and instructed him to drive away from the area.
Gravois drove his truck down La. Hwy. 304 in the direction of Thibodaux. As Gravois neared a church in Chackbay, the black pickup truck that drove by Morvant's home pulled beside Gravois's vehicle. Defendant was now driving the truck, and the truck's owner, Purnell Cage, was riding in the truck's passenger's seat. Defendant began to motion for Gravois to stop his truck, but Gravois continued to drive away, ultimately turning onto La. Hwy. 20. Gravois drove his truck at a high rate of speed to attempt to evade defendant, but defendant caught up and began to ram Gravois's vehicle with Cage's truck. As the front bumper of Cage's truck and the rear bumper of Gravois's vehicle impacted, defendant accelerated, causing both vehicles to gain speed. Defendant then pulled into the oncoming lane of traffic and rammed the left side of Gravois's vehicle. As defendant drove beside him, Gravois slowed his vehicle, and defendant cut back into the proper lane of travel. As defendant did so, he clipped the front bumper of Gravois's vehicle, causing both vehicles to spin off the roadway. Gravois's vehicle ended up in the yard of a home in an adjacent subdivision. He eventually drove his vehicle to a nearby park, where he waited for police assistance. The vehicle driven by defendant ended up in a ditch located off the side of the roadway. Cage suffered severe injuries and was transported to the hospital for treatment.
SUFFICIENCY OF THE EVIDENCE
Defendant contends that the trial court erred in denying his motion for post-verdict judgment of acquittal because the evidence presented at trial was insufficient to support his convictions. A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B) ; State v. Ordodi, 2006-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Mussall, 523 So.2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585, p. 5 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144.
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. 1 Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.
Aggravated Second Degree Battery and Two Counts of Aggravated Battery
In pertinent part, battery is the intentional use of force or violence upon the person of another. See La. R.S. 14:33. Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury. La. R.S. 14:34.7(A). "Serious bodily injury" means bodily injury that involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. La. R.S. 14:34.7(B)(3).
Aggravated second degree battery, like second degree battery, is a specific intent offense. See State v. Daigle, 439 So.2d 595, 598 (La. App. 1 Cir. 1983). Specific intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be proved 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. Johnson, 461 So.2d 1273, 1277 (La. App. 1 Cir. 1984). Under the theory of transferred intent, if the State can prove that a defendant possessed the necessary intent to inflict serious bodily injury upon an intended victim, but accidentally caused the same to another victim instead, such intent is transferred to the actual victim. See State v. Druilhet, 97-1717, p. 4 (La. App. 1 Cir. 6/29/98), 716 So.2d 422, 424.
Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34(A). Aggravated battery requires proof of general intent, i.e., a showing that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2) ; see also State v. Howard, 94-0023 (La. 6/3/94), 638 So.2d 216, 217 (per curiam). General intent may be proven by evidence that the defendant did the acts that have been declared criminal. Howard, 94–0023 at 3, 638 So.2d at 217.
A "dangerous weapon" includes any instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. See La. R.S. 14:2(A)(3). An automobile used in a manner calculated to produce or likely to produce death or great bodily harm has been found to be a dangerous weapon. See State v. Trahan, 416 So.2d 65, 68 (La. 1982).
Defendant did not testify at trial. Defendant contends that the State failed to carry its burden of proving how the ultimate accident occurred or negating the possibility that the collisions were caused by Gravois's slowing his vehicle rather than defendant's alleged intentional ramming.
Contrary to defendant's assertions, the uncontroverted testimonies from the three victims in this case indicate that defendant acted with specific intent in attempting to ram Gravois's vehicle off the road. The victims' testimonies reflect that defendant actively pursued Gravois's vehicle and rammed it several times from behind and the side. When the vehicles' bumpers became locked together, defendant accelerated his vehicle, despite driving on a two-lane highway at night. When Gravois attempted to slow his vehicle to evade defendant, defendant turned back into Gravois's lane of travel, clipped the front end of Gravois's vehicle, and ultimately caused both vehicles to leave the roadway. The resultant crash caused severe injuries to Cage, including broken ribs, a fractured sternum, a broken hip, several lacerations, and at least a partial loss of consciousness.
Viewed in the light most favorable to the State, the evidence establishes that defendant utilized an automobile as a dangerous weapon and intentionally used force against Gravois and Morvant by ramming their vehicle. The facts surrounding the incident—including the violent acts of ramming, the high rate of speed, the narrow roadway, and the time of day—evince intent to inflict serious bodily injury upon Gravois and Morvant. This intent was transferred to Cage, who ultimately suffered both extreme physical pain and the protracted impairment of function of a bodily member, particularly his leg.
When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury's verdicts in this case reflected the reasonable conclusion that defendant utilized a dangerous weapon to inflict force or violence upon all three victims, including Cage, who suffered serious bodily injury. In finding defendant guilty, the jury rejected the theory that Gravois caused the accident by slowing down. See Moten, 510 So.2d at 61. In accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder, a court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. State v. Mire, 2014-2295, p. 8 (La. 1/27/16), ––– So.3d ––––, ––––, 2016 WL 314814 (per curiam).
After a thorough review of the record, we find that the evidence supports the jury's verdicts finding defendant guilty of aggravated second degree battery and two counts of aggravated battery. We are convinced that viewing the evidence in the light most favorable to the prosecution, and to the exclusion of every reasonable hypothesis of innocence, any rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of these offenses. See State v. Calloway, 2007-2306, pp. 9-10 (La. 1/21/09), 1 So.3d 417, 422 (per curiam).
Aggravated Criminal Damage to Property
Aggravated criminal damage to property is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion. La. R.S. 14:55(A). While the punishment for simple criminal damage to property is dependent upon the amount of damage to the property, no such requirement exists for aggravated criminal damage to property. See State v. Bates, 37,282, p. 13 (La. App. 2 Cir. 10/16/03), 859 So.2d 841, 849, writ denied, 2004-0141 (La. 5/21/04), 874 So.2d 173.
At trial, both Gravois and Cain Labat, a mechanic, testified to the nature and amount of damage done to Gravois's vehicle. Additionally, for the reasons stated above, the evidence was sufficient to demonstrate that defendant caused this damage and, in doing so, created a situation wherein it was foreseeable that human life was endangered. Therefore, the evidence presented at trial was sufficient to sustain the conviction for aggravated criminal damage to property.
DISTRICT ATTORNEY'S RECUSAL
Defendant contends that the trial court also erred in allowing the original district attorney to recuse himself and nominate his successor. Defendant argues that the trial court was required to appoint a successor of its own choosing or, instead, to notify the attorney general of the recusal.
The bill of information in this case was filed by 17th Judicial District Court District Attorney Camille A. Morvant, II. In his brief, defendant represents that District Attorney Morvant filed a motion to recuse himself and, in the same motion, nominated 23rd Judicial District Court District Attorney Ricky Babin to handle the prosecution. This filing does not appear in the record. However, on March 30, 2015, there was a hearing on defendant's motion to recuse the newly appointed 23rd Judicial District Court District Attorney Ricky Babin.
At this hearing, defendant testified that he was notified of the recusal on February 19, 2014. He stated that he was now asking for the court to appoint the attorney general to avoid any impropriety. He admitted that he had taken no steps to challenge the recusal and appointment from February 2014 until a few weeks prior to the March 30, 2015 hearing.
Defense counsel argued that the recusal provisions of the Code of Criminal Procedure allow for a judge to appoint an attorney, who has the qualifications of a district attorney, or to notify the attorney general, but not to allow a recusing district attorney to nominate his successor. Defense counsel also stated that he was not required to prove any harm.
In response, the State argued that since District Attorney Morvant's recusal, he has had no participation in the case. The State further contended that District Attorney Ricky Babin has the qualifications of a district attorney and would have been entitled to be appointed by the trial court even without the original district attorney's nomination.
The trial court ultimately denied defendant's request to appoint another attorney or to notify the attorney general, reasoning in part that District Attorney Ricky Babin is an attorney who has the qualifications of a district attorney and who is not an assistant to the recused district attorney. Furthermore, the trial court found no showing of any alleged impropriety. Finally, the trial court noted that it would have been allowed to appoint District Attorney Ricky Babin, or any other district attorney, with or without District Attorney Morvant's nomination.
A district attorney may recuse himself, whether a motion for his recusation has been filed or not, in any case in which a ground for recusation exists. La. Code Crim. P. art. 681. When a district attorney is recused, or recuses himself, the trial judge shall either appoint an attorney at law, who has the qualifications of a district attorney and is not an assistant to the recused district attorney, to act in the place of the district attorney in the case, or shall notify the attorney general in writing of the recusation. La. Code Crim. P. art. 682.
In the instant case, the original district attorney recused himself and apparently nominated District Attorney Ricky Babin to prosecute defendant in his place. Defendant represents that the two district attorneys involved in this case, one from the 17th JDC district attorney's office and one from the 23rd JDC district attorney's office, have prosecuted cases in each other's jurisdictions on previous occasions. However, there is no evidence in the record regarding this claim, nor is it clear why such a claim is relevant.
There do not appear to be any cases directly on point about a recused district attorney seeking to appoint his own successor. In his brief, defendant cites State v. Clarke, 2003-0129 (La. App. 1 Cir. 9/26/03), 857 So.2d 599, as support for his argument that the original district attorney had no power to name his successor after recusal. The issue in Clarke was whether a trial judge who had recused herself had the authority to later accept defendant's attempt to withdraw his waiver of his right to a jury trial and also to rescind her recusal. Noting that the trial judge's authority to act in the defendant's case ceased at the moment of recusal, the Clarke court found that the trial court erred in reconsidering the defendant's waiver of his right to a jury trial and vacating its own recusal. See Clarke, 2003–0129 at 5–6, 857 So.2d at 603.
Defendant's reliance on Clarke is misplaced. First, Clarke involved a trial judge's recusal, not a district attorney. Second, while we agree with defendant that the original district attorney had no authority to appoint his successor in this case, the district attorney's recusal and "nomination" did not, in themselves, have the power of appointment without subsequent action by the trial court. In contrast, the trial court in Clarke acted with authority of which it had divested itself. Finally, as the trial court reasoned in denying relief, there was no obligation for the trial court to accept the original district attorney's "nomination," which was no more than a recommendation.
The fact that the trial court did ultimately appoint the nominated district attorney's office does not itself render this appointment unlawful. District Attorney Ricky Babin is undoubtedly an attorney at law who possesses the qualifications of a district attorney and who is not an assistant district attorney to the recused district attorney. Even had the original district attorney not nominated District Attorney Ricky Babin, the trial court would have been within its authority to appoint his office under the plain language of Article 682. The disjunctive "or" in Article 682 indicates that the trial court was not required to appoint the attorney general, as defendant requested. See La. Code Crim. P. art. 6(2).
FAILURE TO DECLARE MISTRIAL
Defendant argues that the trial court erred in failing to declare a mistrial, sua sponte, when victim Purnell Cage appeared in the courtroom in a wheelchair.
Immediately before Cage was called to testify, an off-the-record conversation occurred between counsel and the trial court. Thereafter, the trial court informed the jury that Cage had "a medical condition that inhibits his ability to walk" and that he had "some swelling issues going on," so he would "testify right here," presumably meaning in a wheelchair. The trial court let the jury exit the courtroom as Cage got situated. Another off-the-record discussion took place before the jury returned and testimony was taken. Defense counsel did not object to anything regarding Cage's appearance in a wheelchair.
On appeal, defendant argues that Cage's appearance in a wheelchair prejudiced the jury and created a situation where an impartial verdict could not be reached. Accordingly, he argues that the trial court could have, on its own motion, declared a mistrial.
Upon motion of a defendant , a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to receive a fair trial. La. Code Crim. P. art. 775 (emphasis added).
Defendant failed to move or object on the record to the conduct of which he now complains. Under Article 775, it is incumbent upon the defendant to lodge such a motion or objection contemporaneously. See also La. Code Crim. P. art. 841. Further, defendant cites no authority for the claim that a victim's appearance in a wheelchair constitutes "prejudicial conduct."
911 TAPE ADMISSION
Defendant contends that the trial court erred in allowing the introduction of a 911 call placed by Jennifer Morvant. He argues that the admission of this audio recording violated his Sixth Amendment right to confrontation, constituted inadmissible hearsay, and contained inadmissible other crimes evidence.
Defendant's primary issue with the admission of the 911 recording is that Morvant, on several occasions during the call, referenced an outstanding protective order against defendant.
Confrontation Clause
Defendant first argues that the admission of the 911 tape violated the Confrontation Clause of the Sixth Amendment because the call's contents were testimonial in nature. The Sixth Amendment Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." See Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). Without addressing whether the call's contents were testimonial, we note that Morvant appeared at trial to testify and was subject to full cross-examination. Therefore, the Confrontation Clause was not violated.
Hearsay
Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. Code Evid. art. 801(C). Hearsay is generally not admissible, subject to certain exceptions. See La. Code Evid. art. 802. "Present sense impressions," or statements describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, are not excluded by the hearsay rule, regardless of the declarant's availability. See La. Code Evid. art. 803(1). "Excited utterances," which are statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition, are similarly not excluded by the hearsay rule. See La. Code Evid. art. 803(2).
Defendant further argues that the 911 call constituted inadmissible hearsay because neither Morvant nor Gravois could specifically recall the time of day or the exact moment the 911 call was placed. However, the 911 call itself clearly reflects that Morvant placed the call as the incident was occurring, as she narrated the sequence of events, including defendant's ramming of Gravois's vehicle, the ultimate crash, and Gravois's action in driving away from the scene to safety. Morvant's 911 call was admissible as an exception to the hearsay rule because it constituted a present sense impression and also contained excited utterances.
Other Crimes Evidence
Furthermore, defendant argues that the 911 call should have been excluded because it contained evidence of inadmissible other crimes or bad acts because of Morvant's reference to an outstanding protective order.
Prior to trial, the State filed a notice of intent to use other crimes or bad acts, noting that it sought to introduce evidence that the victim held a protective order against defendant at the time of the offense. The notice set forth that the State did not intend to elicit the protective order's underlying facts, but merely its existence. The State argued that the protective order was evidence of "signature" crimes committed by defendant. In ruling on the State's motion, the trial court determined that Morvant's comment about a protective order did not rise to the level of other crimes evidence because the protective order was not evidence of specific acts. Thus, the trial court allowed the State to introduce this evidence.
We note initially that, while the protective order is not, itself, necessarily "other crimes" evidence, such a legal document is indicative of wrongs or acts perpetrated by the person against whom the order is issued, so an analysis under La. Code Evid. art. 404(B) is proper. See State v. Lacayo, 2010-1119 (La. App, 1 Cir. 2/11/11), 2011 WL 2135143, p. 3 (unpublished), writ denied., 2011-0517 (La. 9/30/11), 71 So.3d 281. Louisiana Code of Evidence article 404(B)(1) provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because the risk of grave prejudice to the defendant is substantial. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917, p. 3 (La. App. 1 Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So.2d 115. A trial court's ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Galliano, 2002-2849, pp. 3-4 (La. 1/10/03), 839 So.2d 932, 934 (per curiam).
In State v. Taylor, 2016-1124 (La. 12/1/16), 217 So.3d 283, the Louisiana Supreme Court recently clarified the procedure by which the State may seek to introduce other crimes evidence under La. Code Evid. art. 404(B)(1) and State v. Prieur, 277 So.2d 126 (La. 1973). When the State seeks to introduce other crimes evidence, it is required to provide the defendant with written notice prior to trial of the intent to produce such evidence. When the State does so, the trial court is required to conduct a pretrial hearing to determine the admissibility of the other crimes evidence. See Taylor, 2016–1124 at 11–12, 217 So.3d at 292.
This hearing is not intended to be a "mini trial" of the prior offenses. Rather than the "clear and convincing" standard previously required under Prieur, Taylor clarified that when the State seeks to introduce evidence pursuant to La. Code Evid. art. 404(B), the State need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act. No specific form of evidence is mandated or prohibited for every case, and sufficiency of the State's evidence must be determined on a case-by-case basis. See Id. The safeguard in Prieur providing for a jury charge regarding the limited purpose for which the other crimes evidence is presented remains valid. Id. at p. 7.
Even when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence must have substantial relevance independent from showing defendant's general criminal character and thus is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. Accordingly, the State cannot simply rely on a boilerplate recitation of the grounds for admissibility stated in La. Code Evid. art. 404(B). It is the duty of the district court in its gatekeeping function to determine the independent relevancy of this evidence. The district court must also balance the probative value of the other crimes, wrongs, or acts evidence against its prejudicial effects before the evidence can be admitted. See Taylor, 2016–1124 at 12, 217 So.3d at 292.
In the instant case, the State filed a notice of intent to introduce other crimes evidence not in an attempt to delve into the protective order's underlying facts, but as a prophylactic measure because of the victim's passing mention of the protective order in the 911 call. While the trial court found the protective order not to be evidence of other crimes or bad acts, this finding does not undermine the conclusion that the mention of a protective order would have been admissible under Article 404 and the Taylor procedure.
The victim's mention of an outstanding protective order is itself evidence sufficient to support a finding that defendant committed another bad act. Defendant disputed his identity as the vehicle's driver, so the protective order was probative of motive, intent, identity, and absence of mistake or accident. Finally, because the evidence concerning the protective order was limited to its existence, and not inclusive of the underlying facts leading to it, its probative value outweighed any prejudice. Therefore, the victim's statement concerning the protective order was properly admitted into evidence.
BATSON CHALLENGE
Defendant contends that the trial court erred in denying his Batson challenge of a stricken African–American prospective juror.
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 LEd.2d 69 (1986).
In Batson, 476 U.S. at 93–98, 106 S.Ct. at 1721–1724, the United States Supreme Court adopted a three-step analysis to determine whether the constitutional rights of a defendant or prospective jurors have been infringed by impermissible discriminatory practices. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. State v. Handon, 2006-0131, pp. 3-4 (La. App. 1 Cir. 12/28/06), 952 So.2d 53, 56.
To establish a prima facie case, the defendant must show: (1) the defendant is a member of a cognizable group and the prosecutor exercised peremptory challenges to remove venire members of the defendant's race; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the prosecutor struck the venire person on account of his being a member of that cognizable group. See Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Without an inference that the prospective jurors were stricken because they are members of the targeted group, the defendant is unable to make a prima facie case of purposeful discrimination, and his Batson challenge expires at the threshold. State v. Sparks, 88-0017, p. 37 (La. 5/11/11), 68 So.3d 435, 468, cert. denied sub nom., El–Mumit v. Louisiana, 566 U.S. 908, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012).
The trial court may "effectively collapse the first two stages of the Batson procedure, whether or not the defendant established a prima facie case of purposeful discrimination, and may then perform the critical third step of weighing the defendant's proof and the prosecutor's race-neutral reasons to determine discriminatory intent." State v. Jacobs, 99-0991, p. 8 (La. 5/15/01), 803 So.2d 933, 941, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002). A trial judge may take into account not only whether a pattern of strikes against a suspect class of persons has emerged during voir dire, but also whether the opposing party's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. See State v. Duncan, 99-2615, p. 14 (La. 10/16/01), 802 So.2d 533, 545, cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002).
The State, in presenting race-neutral reasons for its excusal of prospective jurors, need not present an explanation that is persuasive, or even plausible; unless a discriminatory intent is inherent in the State's explanation after review of the entire record, the reason offered will be deemed race neutral. For a Batson challenge to succeed, it is not enough that a discriminatory result be evidenced; rather, that result must ultimately be traced to a prohibited discriminatory purpose. Thus, the sole focus of the Batson inquiry is upon the intent of the opposing party at the time he exercised his peremptory strikes. See State v. Green, 94-0887, p. 24 (La. 5/22/95), 655 So.2d 272, 287. A reviewing court owes the trial court's evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. Handon, 2006–0131 at 5, 952 So.2d at 58.
Defendant challenges the State's peremptory challenge of Darin Robinson, an African–American male on the first panel of prospective jurors. Defendant represents that Mr. Robinson was the only African–American male juror and that the State failed to offer a race-neutral reason for striking him.
At the time the State peremptorily challenged Mr. Robinson, defense counsel immediately lodged a Batson objection. The trial court initially asked the State for its race-neutral reason, but then stated that there first needed to be a prima facie showing. The trial court noted that it would allow the peremptory challenge at that point, but subjected Mr. Robinson to a recall if it was shown there was a Batson issue in the future. The prosecutor then offered a race-neutral reason, stating that Mr. Robinson appeared to be inattentive, causing him concern that Mr. Robinson would not pay attention during trial. Defense counsel argued that he thought it was odd that the State asked Mr. Robinson whether he knew defense counsel, himself an African–American male. The State explained that he asked this question because Mr. Robinson had nodded at both defendant and defense counsel.
As the trial court noted with respect to Mr. Robinson's strike, defense counsel failed to make a prima facie showing of purposeful discrimination. Further, the State offered a race-neutral reason for striking Mr. Robinson—his alleged inattentiveness. This race-neutral explanation was reasonable and had some basis in accepted trial strategy. See Handon, 2006–0131 at 7, 952 So.2d at 59. Other than the reliance upon the single African–American male juror who was peremptorily stricken and the State's question to him about knowing defense counsel, which was negated by the State's explanation, defendant offered no facts or circumstances supporting an inference that the State exercised its strikes in a discriminatory manner. Thus, defendant's proof, when weighed against the State's race-neutral reason, was not sufficient to prove the existence of discriminatory intent against Mr. Robinson. See Green, 94–0887 at 28–29, 655 So.2d at 290. Moreover, a review of the entire voir dire transcript fails to reveal any evidence that the use of peremptory strikes by the prosecutor was motivated by impermissible considerations. See Handon, 2006–0131 at 7, 952 So.2d at 59. Accordingly, we find no abuse of discretion by the trial court in its denials of defendant's Batson challenges regarding this prospective juror.
The record reflects that defendant lodged a second Batson objection on a juror stricken from the second panel of prospective jurors, but he does not challenge the denial of that objection on appeal.
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MOTION FOR NEW TRIAL
Defendant contends that the trial court erred in denying his motion for new trial, which was predicated on claims that the verdicts were contrary to law and evidence and that a new trial was required to serve the "ends of justice." Defendant's "ends of justice" argument echo those he raised throughout most of the assignments of error.
A trial judge's duty in evaluating a new trial motion brought under La. Code Crim. P. art. 851(B)(1) or La. Code Crim. P. art 851(B)(5) is to put itself in the position of a juror. See State v. McKinnies, 2013-1412, p. 9 (La. 10/15/14), 171 So.3d 861, 869. Article 858 of the Code of Criminal Procedure limits our review of the trial court's ruling on the new trial motion: "In reviewing the granting or the refusal to grant a new trial, neither the appellate nor the supervisory jurisdiction of the Supreme Court may be invoked, except for error of law." See Id. This court will attach great weight to the exercise of the trial judge's discretion. Id.
The trial court's decision to deny the motion for new trial on the claim that the verdict was contrary to law and evidence was one that required it to act as a juror and reweigh the evidence, which this court is constitutionally precluded from doing. See State v. Mitchell, 99-3342, p. 8 (La. 10/17/00), 772 So.2d 78, 83. Defendant has shown no error of law in the trial court's denial on this ground, and we have already found sufficient evidence to support the convictions. Additionally, with the exception of the mistrial issue raised in his fourth assignment of error, we have already found these duplicative new trial "ends of justice" issues to be meritless on legal grounds. With respect to that assignment of error, raising the mistrial issue in the motion for new trial does not cure defendant's failure to object to this issue at trial. See State v. Moody, 2000-0886, pp. 4-5 (La. App. 1 Cir. 12/22/00), 779 So.2d 4, 8, writ denied, 2001-0213 La. 12/7/01), 803 So.2d 40 (failure to file motion to suppress and to object to identification at trial not revived by motion for new trial). Defendant has shown no legal error in the trial court's denial of his motion for new trial on any "ends of justice" grounds.
PATENT ERROR
As requested by defendant in his final assignment of error and routinely performed on appeal, this court has conducted an independent review of the entire record in this matter, including a review for patent error under La. Code Crim. P. art 920(2). We note no such errors.
CONVICTIONS AND SENTENCES AFFIRMED.
Crain, J. concurs