Opinion
NO. 2016 KA 0147
09-16-2016
STATE OF LOUISIANA v. TRESSIE LUCINDA NEWBERRY
HILLAR C. MOORE, III DISTRICT ATTORNEY MONISA L. THOMPSON ASSISTANT DISTRICT ATTORNEY BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA CYNTHIA K. MEYER NEW ORLEANS, LA ATTORNEY FOR DEFENDANT-APPELLANT1 TRESSIE LUCINDA NEWBERRY
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. 09-13-0206
Honorable Beau Higginbotham, Judge HILLAR C. MOORE, III
DISTRICT ATTORNEY
MONISA L. THOMPSON
ASSISTANT DISTRICT ATTORNEY
BATON ROUGE, LA ATTORNEYS FOR
STATE OF LOUISIANA CYNTHIA K. MEYER
NEW ORLEANS, LA ATTORNEY FOR
DEFENDANT-APPELLANT
TRESSIE LUCINDA NEWBERRY BEFORE: PETTIGREW, McDONALD, AND DRAKE, JJ. PETTIGREW, J.
By order dated April 28, 2016, Gwendolyn K. Brown enrolled as counsel for the defendant; by order dated May 4, 2016, Ms. Myer withdrew as counsel for same.
The defendant, Tressie Lucinda Newberry, was charged by grand jury indictment with the second degree murder of Brandon Harris, a violation of Louisiana Revised Statutes 14:30.1. She entered a plea of not guilty and, following a jury trial, was found guilty as charged by a unanimous verdict. The defendant filed motions for new trial, post-verdict judgment of acquittal, and arrest of judgment, all of which were denied. She was sentenced to a term of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, asserting four assignments of error. For the following reasons, we affirm the defendant's conviction and sentence.
Mason Chiapuzio was charged by the same indictment but not tried with the defendant.
FACTS
Baton Rouge Police Officer Brandon McCain and Corporal Doug Chutz were dispatched to the 1400 block of Sharlo Avenue on April 15, 2012, around 2:37 a.m., in response to a shooting. The victim had been shot three times, with one "near contact" wound to his skull and two wounds to his abdomen. The autopsy revealed that the multiple gunshot wounds caused his death, and the coroner determined that the shots were first fired to the victim's trunk, then to his head. The victim was found deceased, with his pants pockets turned inside-out, indicating to officers the possibility that he had been robbed after he was shot. Crime scene investigators collected the victim's pants and the cellular telephone found near the victim's pants pocket. They also collected three spent shotgun shell casings located in the roadway, a pair of broken eyeglasses and a loose lens with possible biohazardous material on them found near the victim's body, and a hat found a little farther, but also near the body.
The coroner specified that a "near contact" wound is one where the muzzle of the weapon is within six inches of the skin when fired.
The victim's fingerprints were taken, and he was identified as Brandon Harris. A warrant for the cellular telephone found near the victim's pants pocket was obtained. The data taken from this phone revealed incoming and outgoing calls to a number programmed as "Lucy White Girl" and to another unprogrammed number, made during the nighttime hours of April 14, 2012, and into the early morning hours of April 15, 2012. The number programmed as "Lucy White Girl" was registered to Regina Pritt. Detectives contacted Pritt, who informed them that she allowed the defendant to use her phone.
The unprogrammed number was linked to Jennifer Prine. Prine testified that she was formerly in a relationship with the defendant, who lived with her at her apartment on Sherwood Forest near Coursey Boulevard. According to Prine, on the night of the victim's murder, the defendant picked her up from work, and the two returned to Prine's apartment where Prine changed clothes. The defendant told Prine that they were going to pick up a man and drive him to defendant's son's house near Tigerland to purchase cocaine. The defendant drove Prine's car to an area off of Acadian Thruway and picked up the victim, who referred to the defendant as "Lucy." The three traveled to the defendant's son's apartment in Tigerland. Once in the Tigerland area, Prine exited the vehicle, walked around to the back of it, and shook the victim's hand. The defendant stayed in the front seat of the vehicle, and when Prine walked toward her to find out what she was doing, a man came out of the bushes wearing a suit and ski mask, and carrying a long black gun. Prine testified that she and the victim saw the gun at the same time. According to Prine, when the man appeared with the gun, the defendant was "[j]ust standing there" and did not run. Prine heard the first gunshot and heard the man say, "don't run." Prine and the victim took off running in opposite directions. She did not see the second shot because her back was turned and she was running. The direction that Prine ran was a dead end, so she had to turn around and run back. Prine testified that when she turned around and ran back, she had to "run past them and that's when they shot him in the head." She testified that she heard three gunshots. Prine ran off and called the defendant who came and picked her up near the railroad tracks toward the entrance of Tigerland.
The defendant told Prine that the shooter was her son, Mason Chiapuzio, and that the victim was a "bad man." The defendant explained to Prine that the victim tried to rape her ex-girlfriend and that her ex-girlfriend subsequently committed suicide in October 2011. According to Prine, the defendant was not surprised about the shooting. The two then drove to Prine's apartment, changed clothes, and drove back to Chiapuzio's apartment. When they arrived, Chiapuzio was dressed in the same clothes as the shooter. Prine testified that Chiapuzio told her, "sometimes in this life, the world gets dirty and that God puts certain people on the world to clean it off and that's what he [Chiapuzio] was doing." Chiapuzio also threatened Prine that if she didn't stick with them, keep quiet, and not go to the police, that they knew where Prine and members of her family lived. Chiapuzio told Prine that if he were turned in, he could be connected to murders all over the state of Louisiana, and he wouldn't take that chance. He threatened he would "eliminate" Prine if that was necessary. The defendant told Prine not to go to the police and that if they all stuck together, that this would just be chalked up to gang violence; but that if Prine did go to the police, two things would happen - somebody in Prine's family would die, or Prine would spend the rest of her life in prison. Prine testified that she initially lied to the detectives who interviewed her because she was scared, but when she was arrested on May 6, 2013, she decided to tell the truth because both the defendant and Chiapuzio were in custody at that time, and she no longer feared for her family's safety.
Cameron Reynaud, whom Prine testified was at Chiapuzio's apartment on the night of the murder, testified consistent with Prine's testimony. He testified that he lived in the Sharlo Avenue Apartment complex off of Brightside Drive and Alvin Dark Avenue, in Baton Rouge; and Chiapuzio lived about one hundred yards away in an apartment in Tigerland. Reynaud testified that "a day or two after" April 15, 2012, Chiapuzio came to his apartment, crying, and saying that he "shot that n*****." According to Reynaud, Chiapuzio explained that the defendant and Prine picked up the victim and drove to a parking lot near Reynaud's apartment complex where Chiapuzio hid in some bushes. The victim and Prine "made out" outside of the vehicle, and Chiapuzio ran from out of the bushes where he was hiding and shot the victim. Reynaud testified that Chiapuzio told him the victim was murdered in retaliation for his raping one of the defendant's ex- girlfriends who subsequently committed suicide, and also because he (Chiapuzio) owed an individual named Robert Taylor Hanchey money for cocaine. According to Reynaud, Hanchey was also at the scene during the murder. Hanchey, however, denied being present at the time of the murder but testified that he came into contact with Chiapuzio the day after the homicide. At that time, Chiapuzio was in possession of a twelve-gauge shotgun, and he and Hanchey traveled to Zachary to return the gun to its owner, who had loaned the gun to Chiapuzio. Upon questioning, Hanchey acknowledged that he noticed Chiapuzio wearing unusually nice (dressy) clothes at the time. Hanchey further testified in court that he had previously been shown photographic lineups from which he had been able to correctly identify Chiapuzio, the defendant, and the defendant's girlfriend (Prine), although he did not know the girlfriend's name.
The pockets of the jeans recovered from the victim's body were tested by a DNA analyst and compared to reference swabs from the victim and Chiapuzio. The profiles obtained from the pockets of the jeans revealed multiple contributors. The swabs taken from the pockets contained DNA from at least three contributors. The victim was the major contributor. As to all of the swabs taken from the pockets, because of the amount of contributors, the analyst was unable to include or exclude Chiapuzio as a contributor. The three shell casings found on the roadway were also tested, but not enough DNA was present to obtain a profile.
A firearms examiner with the Louisiana State Police Crime Lab testified that he examined the three twelve-gauge shell casings found on the roadway as well as items removed from the victim's body during his autopsy. The firearms examiner determined that the three casings were fired from the same firearm. Two shotguns were submitted to him for testing, but both were eliminated as possible sources. The items removed from the victim's body included three pellets, an undershot wad, and an over-powder wad, which he described as layers of the shotgun shells. The items were consistent with the twelve-gauge shotgun shell casings that he examined.
SUFFICIENCY OF THE EVIDENCE
In cases where a defendant has raised issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal. When the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So.2d 731, 734 (La. 1992). Accordingly, we will first address the defendant's second assignment of error, which challenges the sufficiency of the State's evidence.
Specifically, the defendant contends that there "is no physical evidence linking [her] to this crime" and "[n]o one testified that they heard [her] plan the murder with [Chiapuzio]." The defendant complains that the State failed to refute the reasonable probability that the defendant drove the victim to Chiapuzio to conduct a drug transaction, and that the victim was killed in the process. Thus, the defendant contends that the State failed to prove that she drove the victim to Tigerland with the specific intent that he be killed.
The standard of review for sufficiency of the evidence to support a conviction is whether, 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 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, 2010-1841 (La. App. 1 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, 2002-1006 (La. App. 1 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 (La. App. 1 Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 and 2000-0895 (La. 11/17/00), 773 So.2d 732.
Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1.A(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). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, 390. 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. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Henderson, 99-1945 (La. App. 1 Cir. 6/23/00), 762 So.2d 747, 751, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235. Additionally, "[a]lthough an individual's flight does not in and of itself indicate guilt, it can be considered as circumstantial evidence that the individual has committed a crime; flight shows consciousness of guilt." State v. Williams, 610 So.2d 991, 998 (La. App. 1 Cir. 1992), writ denied, 617 So.2d 930 (La. 1993).
Louisiana Revised Statutes 14:24 provides that "[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals." However, only those persons who knowingly participate in the planning or execution of a crime may be said to be "concerned" in its commission, thus making them legally liable as principals. Mere presence at the scene of a crime does not make a person a principal to the crime. A defendant may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Neal, 2000-0674 (La. 6/29/01), 796 So.2d 649, 659, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). However, "[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice's intention." State v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225 (per curiam), citing, 2 W. LaFave, A. Scott, Substantive Criminal Law, § 6.7, p. 138 (West 1996).
A victim's or witness's testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion. State v. Dorsey, 2010-0216 (La. 9/7/11), 74 So.3d 603, 634, cert. denied, ___U.S.___, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012).
During their investigation, detectives spoke with Antoine Washington who stated that on the night of the murder, he was in front of the victim's home on Buchanan Street with the victim, whom he identified as a friend of his, along with two other women who had been to a party earlier with another female friend who was a neighbor of the victim. Washington also stated that two additional women were in front of the victim's home, sitting in a red car. The neighbor had given the victim the use of her black vehicle so he could take her two friends home. The victim did so, and afterwards, Washington walked back to the victim's home with the victim. When they arrived, the two women in the red car were still there. According to Washington, he and the victim got into the red car with the two women, and they started to head "south of the campus." A short while later, the female driver of the vehicle told Washington that he could not go with them, asked him where he lived, and dropped him off at his home a couple of streets away.
A red Oldsmobile Alero was later located at a trailer where Prine was living at the time of the investigation, and Prine admitted that it was her vehicle. Prine explained that she and the defendant picked up the victim, drove him to an area near Tigerland, and the defendant waited inside of the car while she and the victim exited. As soon as Prine walked away from the victim and walked toward the defendant still seated in the car, a man whom she later learned was Chiapuzio came out of the bushes and fired a weapon. According to Prine, the defendant was not surprised about the shooting, and she threatened to harm Prine and her family if Prine contacted the police.
The State presented the testimony of Timothy Piper, a radio frequency engineer for AT&T Wireless, who was accepted as an expert in historical cell site call and data analysis. The expert reviewed and analyzed the phone records of the victim, the defendant, and Prine, from the night of the murder. He testified that his analysis of those three cellular telephone records placed all three, the defendant, Prine, and the victim, near the location of the victim's death - in the Tigerland Avenue and Brightside Drive area - during the early morning hours of April 15, 2012. The defendant placed calls to the victim at 11:45 p.m., 12:54 a.m., 1:02 a.m., and 1:19 a.m. Calls made by the defendant placed her near the Sherwood Commons area at 11:45 p.m., the middle of the Louisiana State University campus at 12:54 a.m., and near Tigerland at 1:02 a.m. and 1:19 a.m. A call made from Prine to the defendant at 2:30 a.m. placed Prine near the Mike Anderson's Restaurant parking lot. Calls made from Prine's phone placed her near Sherwood Commons between 11:26 p.m. and 11:44 p.m., north of campus around 12:14 a.m., south of campus at 1:39 a.m., and near Tigerland at 2:23 a.m., 2:30 a.m., and 3:56 a.m. Calls made and received by the victim placed him near north campus at 1:02 a.m. and in Tigerland at 2:21 a.m. After that time it is presumed that the victim was deceased, as no incoming calls from the defendant or Prine were received on the victim's phone.
The State also presented recordings of calls placed by the defendant when she was being held in the St. Tammany Parish Jail, and one of the calls was published to the jury. On the recording, the defendant stated that she wanted her attorney to "start working on twenty years." She also stated that she did not want any visitors until she was moved "wherever they're going to let [her] live [her] life out."
While out on bail, the defendant did not appear for trial scheduled for April 20, 2015. She was located in St. Tammany Parish, arrested, and held without bail until the instant trial. The district court ruled that no evidence could be introduced regarding the defendant's failure to appear for trial on April 20, 2015. --------
The defendant did not testify at trial. However, Baton Rouge Police Department Corporal Robert Cook testified regarding an interview he conducted with defendant on June 7, 2012. At that time, the defendant was considered as a "person of interest." Cook testified that the defendant initially denied knowing the victim, but she subsequently admitted that she may have called the victim to purchase drugs, and that she used the name "Lucy," which is short for her middle name, "Lucinda," when she participated in drug transactions. The defendant also told Cook that Prine would go with her to purchase drugs, and they would travel in Prine's red Alero. The defendant also admitted that she formerly had a girlfriend who committed suicide. Cook testified that he also interviewed Prine, but that neither the defendant nor Prine was placed under arrest after these interviews; at that time, they were still only persons of interest as there was insufficient probable cause to justify a warrant. Cook added, however, that after interviewing Reynaud, Hanchey, and other individuals who lived with Reynaud, he had sufficient evidence and drafted warrants for, and ultimately arrested, Prine, the defendant, Reynaud, and Chiapuzio.
The defense presented testimony establishing that the murder weapon was not located. The defense also presented the testimony of Sadie Newberry, defendant's daughter, who admitted that the defendant was at Chiapuzio's house on April 15, 2012, around 2:00 a.m. However, Sadie was not at Chiapuzio's house at that time, and she stated she had no personal knowledge of the crime. Sadie admitted writing letters to Prine and Reynaud while they were being held in jail, and acknowledged one of those letters contained the statement, "no one talks, everybody walks."
After a thorough review of the record, we find that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of principal to second degree murder, including the defendant's specific intent to kill the victim. The defendant picked up the victim and drove him to a parking lot knowing that her son was waiting nearby in some bushes, intending to shoot the victim. The defendant remained in the vehicle while Prine and the victim exited. Cellular telephone records confirmed that the defendant, Prine, and the victim were in the same area at the same time. After Chiapuzio fired the shots at the victim, the defendant drove off and picked up Prine. According to Prine, the defendant was not surprised about the shooting and claimed that the victim was a "bad man." The defendant provided a motive for the shooting in that she claimed the victim had raped one of her former girlfriends. The defendant left the scene with Prine and later returned to Chiapuzio's home where she and her son threatened Prine to prevent her from telling the police what happened. The verdict rendered in this case indicates that the jury credited the testimony of Prine and the other witnesses against the defendant and rejected her attempts to discredit those witnesses. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429 (La. App. 1 Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331.
The unanimous verdict returned in this case indicates that the jury rejected the defendant's hypothesis of innocence posited by her counsel in closing arguments that she was in the area merely because that was where her son lived. When a case involves circumstantial evidence and the jury 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. See State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). No such hypothesis exists in the instant case.
Further, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam); State v. Mire, 2014-2295 (La. 1/27/16), ___ So.3d ___, 2016 WL 314814, at *2 (per curiam). Accordingly, this assignment of error is without merit.
HEARSAY EVIDENCE
In assignment of error number one, the defendant argues that the district court erred by allowing Reynaud to testify in regard to statements that the defendant's son made after the commission of the offense.
On the first day of trial, Reynaud testified that a couple of days after the victim was shot, Chiapuzio came to Reynaud's apartment. The State asked, "[a]nd what did he say when he entered the apartment?" Reynaud testified, "[w]hen he showed up, you could tell that he wasn't himself and he broke down crying, and he stated that he shot that n*****." The defendant did not immediately object to the State's question or Reynaud's response. The following colloquy then occurred:
[State]: And you said he was crying.
[Reynaud]: Yes.
[State]: Was anybody with you when he said this to you?
[Reynaud]: Not within arms' reach, no.
[State]: Okay. What else did he tell you about the shooting?
[Defense]: Objection. . . . Hearsay.
[State]: He is a - Mason Chiapuzio is a co-conspirator to the - to [the defendant], and while they're not - neither one of them's [sic] charged with conspiracy, statements of co-conspirators are admissible.
[Court]: My question - my initial question is, is why didn't you object on the first question, if it's hearsay?
[Defense]: Because he never - the first question didn't say what he said, then ask him what he said.
[Court]: He most certainly asked him what he told him.
[Defense]: Well, that doesn't mean that I waive my objection.
[Court]: Okay. He's got personal knowledge of it - is a coconspirator, so I'm going to overrule your objection.
[Defense]: I would like - that violates our right to confrontation, and I'd like to note the objection.
[Court]: It was tendered in discovery?
[State]: Yes.
[Defense]: What was tendered in discovery?
[Court]: The gist of the statements, and you're going to get to cross examine him as to what he just said.
[Defense]: I'm talking about he is - this is hearsay within -
[Court]: You have the right to call Mason Chiapuzio.
[Defense]: He won't be -
[Court]: Well, that doesn't matter whether he's going to come. You have the right to rebut that evidence. You can call Mr. Chiapuzio.
[Defense]: I would still just like the record to show . . . that I'm objecting to him making any hearsay statements.
[Court]: It's noted. Thank you.
The State proceeded to ask Reynaud what else Chiapuzio told him about the shooting. According to Reynaud's testimony, Chiapuzio told him that the defendant and Prine picked up the victim and drove him to a parking lot in the area of his apartment complex, while Chiapuzio hid in bushes in a parking lot across the street and Hanchey waited in his car. Prine and the victim exited the vehicle, sat on the back of the vehicle, and began "making out." At that point, Chiapuzio ran through and shot the victim. Reynaud explained that Chiapuzio told him the victim was murdered in retaliation for raping one of the defendant's ex-girlfriends who subsequently committed suicide and also because Reynaud owed Hanchey money for cocaine. Reynaud testified that Hanchey was at the scene during the murder.
Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, that is offered in evidence to prove the truth of the matter asserted. La. Code Evid. art. 801.C. Generally, hearsay is not admissible except as specifically provided by law. See La. Code Evid. art. 802. The State argued that the statements made by Reynaud fell within the co-conspirator exception to the hearsay rule. Pursuant to La. Code Evid. art. 801.D(3)(b), a statement is not hearsay if it is offered against a party and is made "by a declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of the conspiracy, provided that a prima facie case of conspiracy is established[.]" A criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime and where one or more parties does an act in furtherance of the object of the agreement or combination. See La. R.S. 14:26.A.
According to Reynaud, the statements made to him by Chiapuzio were made a couple days after the incident. Thus, because it was not shown that the statements were made "while participating in a conspiracy . . . and in furtherance of the objective of the conspiracy," they were not admissible pursuant to the co-conspirator exception to the hearsay rule, and the district court erred in overruling defense counsel's objection to the testimony as hearsay. Nevertheless, the erroneous admission of hearsay testimony does not require a reversal of the defendant's conviction because this error was harmless beyond a reasonable doubt. Reversal is mandated only when there is a reasonable possibility that the evidence might have contributed to the verdict. See La. Code Crim. P. art. 921; State v. Wille, 559 So.2d 1321, 1332 (La. 1990), cert. denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992). An error is considered to be harmless when the guilty verdict actually rendered in the trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 100. While the reference to the defendant's involvement in the murder was potentially prejudicial, it was not unduly so. The testimony provided by Reynaud did not implicate the defendant as being involved in the murder any more so than Prine's testimony. The only statement implicating the defendant made by Reynaud during his testimony was that the defendant drove the victim to the scene of the murder. This fact was also established by Prine's testimony. Additionally, Washington told detectives that he saw the victim enter a red vehicle with two white females. Also, the cellular telephone records of the victim, the defendant, and Prine placed the three of them in the same area at the same time as the murder. Thus, Reynaud's testimony that the defendant drove the victim to the scene of the murder was cumulative of other evidence presented by the State. Moreover, on cross-examination, the defense established that Reynaud did not hear Chiapuzio enter into an agreement to shoot anyone and that Reynaud's knowledge of the events was based entirely on what Chiapuzio told him two days after the shooting. The record shows that the evidence presented by the State, including the testimony of Prine and the cellular telephone records, indicates that the unanimous guilty verdict was correct and surely not solely attributable to the improper admission of the hearsay testimony. Accordingly, because no prejudice resulted to the defendant, the error was harmless beyond a reasonable doubt See La. Code Crim. P. art. 921. This assignment of error is without merit.
JURY INSTRUCTION
In assignment of error number three, the defendant argues that the district court erred by instructing the jury that flight could be considered in determining guilt. Specifically, she claims that the instruction should not have been included because there was "absolutely no testimony regarding flight by [the defendant]."
During the testimony of Corporal Robert Cook, one of the investigating detectives, the State asked whether the detective had appeared in court on April 20, 2015, expecting to testify. Defense counsel asked to approach, and argued that the State was trying to "impress upon the jury that [the defendant's] failure to attend court is some evidence of guilt[.]" The State responded that the defendant did not "just not appear. She not appeared [sic] and fled and was hiding out in the woods in Saint Tammany Parish before - could find her." Defense counsel argued that the defendant's flight was "from trial" and "not in reference to flight from [an] incident or a criminal act." The district court ruled that there would be "no evidence or no solicitation from the witness about any prior jury trial date." It clarified that, if the State wanted to elicit that the defendant was "picked up" in another parish, it would "let that go," but that it would allow "nothing in the tone" that the defendant fled.
The following colloquy then occurred:
[State]: Prior to this week, did you appear in court, expecting to testify with regards to [the defendant]?
[Detective]: Yes.
[State]: Was [the defendant] here?
[Detective]: No, she was not.
[State]: And did you later find out where she was located?
[Detective]: That's correct.
[State]: Where was she located?
[Detective]: Another parish in Louisiana.
[State]: And were you responsible for investigating her whereabouts, or did agents from another law enforcement agency find her and work to get her back here?
[Detective]: That's correct.
[State]: Okay.
When the parties reviewed the proposed jury instructions, the defense argued that the flight instruction should not have been included because there was no allegation that the defendant fled "immediately after a crime." The State argued that the fact that the defendant did not show up for trial on April 20, 2015, and was found hiding in St. Tammany Parish was evidence of flight that the jury could consider. The defense argued that because the flight was not from the scene of the crime, the instruction was inapplicable. The State responded that the instruction only required the flight to occur after the commission or an accusation, not immediately after the crime. The district court allowed the instruction, and the defense objected to the court's ruling. The flight instruction presented to the jury stated:
If you find that the defendant fled immediately after a crime was committed or after she was accused of a crime, the flight alone is not sufficient to prove that the defendant is guilty. However, flight may be considered along with - along with all other evidence. You must decide whether such flight was due to consciousness of guilt or to other reasons unrelated to guilt.
The ruling of the district court on an objection to a portion of its charge to the jury will not be disturbed unless the disputed portion, when considered in connection with the remainder of the charge, is shown to be both erroneous and prejudicial. State v. Butler, 563 So.2d 976, 988 (La. App. 1 Cir.), writ denied, 567 So.2d 609 (La. 1990). If there is testimony of flight after the crime was committed and the jury charge regarding flight is brief when considered in connection with the remainder of the charge, the instruction is neither erroneous nor prejudicial. State v. Bell, 97-896 (La. App. 5 Cir. 10/14/98), 721 So.2d 38, 41, writs denied, 98-2875 and 98-2890 (La. 3/12/99), 738 So.2d 1085.
"Flight" comprehends continued concealment to avoid arrest and prosecution as well as the act of leaving the jurisdiction. The term is defined, in criminal law, as "the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention, or the institution or continuance of criminal proceedings." Thus, in criminal law, "flight" is "not merely a leaving, but a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest." State v. Davies, 350 So.2d 586, 588-89 (La. 1977) (quotinq 22A CJS, Criminal Law, § 625A, pp. 460 et seq.).
Corporal Cook testified that he appeared for court in East Baton Rouge Parish, expecting to testify, and the defendant was not present. The defendant was later found in St. Tammany Parish, and law enforcement agents worked to return her to East Baton Rouge Parish. Because there was testimony that the defendant evaded the course of justice by voluntarily withdrawing herself in order to avoid the continuance of her criminal proceedings, the instruction on flight was appropriate, and certainly not erroneous. Additionally, the jury may consider evidence of flight from the scene of the crime whether or not law enforcement personnel are involved. See State v. Berry, 95-1610 (La. App. 1 Cir. 11/8/96), 684 So.2d 439, 459, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603; see also Davies, 350 So.2d at 588-89. In the instant case, there was testimony that the defendant left the scene after the shots were fired, picked up Prine, and returned to Prine's apartment to change clothes. Moreover, because of the brevity of the instruction, when considered in connection with the remainder of the charge, the instruction on flight was not prejudicial. Accordingly, this assignment of error is without merit.
FAILURE TO EXCUSE JURORS
In assignment of error number four, the defendant argues that the district court erred in failing to excuse two jurors when they showed "evidence of ill health during the trial." Specifically, he complains that Juror Daniels and Juror Taylor were not questioned as to their ability to continue to serve after demonstrating difficulties.
During a recess, the court stated, "[a]ll right. I don't know if y'all heard. Mr. Wall said that, I believe, Ms. Daniels may be diabetic. [Defense counsel is] not in here . . . [t]here's not a problem. I'm just disclosing." The following colloquy then took place:
[State]: I was hoping that we could, maybe, continue the recess for just a few more minutes for me to speak with [defense counsel] about some potential developments.
[Court]: Okay. What I was just saying is, is Ms. Daniels, I believe it is -
[Defense counsel]: Uh-huh.
[Court]: - but anyway, she's diabetic. She didn't disclose it in voir dire or anything like that. There's not a problem. We got her a coke. She's okay. She's about ready to come back in. Is there something y'all want to discuss with the court?
[State]: No. I think I just need to talk with [defense counsel] and his investigator for a second.
[Court]: Okay. We will - there's - and for the record, there's nobody except [the defendant], [defense counsel], and [the State] in the courtroom, as far as jury or anything like that.
[State]: We have some peppermints if Ms. Daniels needs them.
[Court]: How long do y'all need?
[State]: Maybe five minutes.
[Court]: All right. We'll be in recess for another five minutes.
After recess, the State indicated that it discussed plea negotiations with the defense, which were unsuccessful.
Later on during the trial, defense counsel asked to approach the bench and noted that it thought "one of the jurors [was] having a little difficulty, Mr. Taylor." The court responded, "[y]eah." It went on to state, "Mr. Taylor, you - you all right, there? The following colloquy occurred:
[Mr. Taylor]: It just -
[Court]: All right. Mr. Taylor said he's all right. We're still waiting on the lunches right now, so let's go ahead and try to get one more witness.
[State]: I - I don't want to deprive jurors the opportunity to review the report that they're looking at now, so -
[Court]: Yeah. Okay.
[State]: - take your time.
[Court]: Mr. Taylor, you need some water something [sic]?
[Mr. Taylor]: Some air.
[Court]: I'm sorry?
[Mr. Taylor]: Some air.
[Court]: Some air.
The State then called its next witness, and the parties argued as to the admissibility of that witness's testimony. Prior to the witness taking the stand, the court decided to break for lunch.
Louisiana Code of Criminal Procedure article 789 provides for the replacement of a juror with an alternate juror in the event the former becomes unable to serve or is disqualified prior to the time the jury retires to consider its verdict. The decision to disqualify a juror and replace the former with an alternate should not be reversed in the absence of abuse of discretion of the district court. See State v. Hawkins, 496 So.2d 643, 647 (La. App. 1 Cir. 1986), writ denied, 500 So.2d 420 (La. 1987).
The defendant failed to object to the jurors continuing to serve on the jury or otherwise preserve this issue for appellate review by means of a contemporaneous objection. See La. Code Crim. P. art. 841.A; State v. Trahan, 93-1116 (La. App. 1 Cir. 5/20/94), 637 So.2d 694, 704 ("[t]he grounds for objection must be sufficiently brought to the court's attention to allow it the opportunity to make the proper ruling and prevent or cure any error."). Moreover, the district court clearly stated that there was "not a problem" as to Ms. Daniels, and Mr. Taylor was given a lunch break prior to hearing any testimony after his request for air. The record reveals no evidence that either juror became unable to serve or should have been disqualified. Accordingly, this assignment of error is without merit.
For all of the foregoing reasons, we affirm the defendant's conviction and sentence.