Opinion
NO. 2017–KA–0312
12-20-2017
STATE of Louisiana v. Elton WILLIAMS
Leon A. Cannizzaro, Jr., District Attorney, Parish of Orleans, Scott G. Vincent, Assistant District Attorney, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA Katherine M. Franks, Louisiana Appellate Project, P.O. Box 220, Madisonville, LA 70447, COUNSEL FOR DEFENDANT/APPELLANT, ELTON WILLIAMS
Leon A. Cannizzaro, Jr., District Attorney, Parish of Orleans, Scott G. Vincent, Assistant District Attorney, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Katherine M. Franks, Louisiana Appellate Project, P.O. Box 220, Madisonville, LA 70447, COUNSEL FOR DEFENDANT/APPELLANT, ELTON WILLIAMS
(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet )
Judge Terri F. Love
This appeal arises from the conviction and sentencing of the defendant for two counts of armed robbery, one count of second degree murder, and one count of second degree battery. The defendant received one hundred years for each count of armed robbery, life for second degree murder, and ten years for second degree battery. The defendant appeals contending the trial court erroneously admitted evidence of gunshot residue and by denying a challenge for cause regarding a juror, which resulted in the defendant utilizing his last peremptory challenge.
Following our review, we find that the trial court did not abuse its discretion by admitting the gunshot residue evidence following a hearing or by denying the challenge for cause, finding that the potential juror with a residence outside of Orleans Parish was qualified to serve. We affirm the judgment and the defendant's sentences for second degree murder and second degree battery. However, having found a patent error in the sentencing for the two counts of armed robbery, we vacate those sentences and remand for resentencing.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
David Mejia, Nelson Mejia, and the decedent were repairing an automobile when Elton Williams approached asking for a cigarette. Mr. Williams then allegedly brandished a gun and demanded their money. A struggle ensued, and the decedent was shot and killed. David and Nelson detained Mr. Williams until police arrived.
Eleuterio Zaldivar was the name of the deceased victim.
Mr. Williams was charged with two counts of armed robbery, one count of second degree murder, and one count of second degree battery. Mr. Williams pled not guilty. Counsel for Mr. Williams filed motions to suppress evidence, statements, and identifications, as well as a motion for preliminary hearing and for omnibus discovery. Counsel for Mr. Williams then filed a motion for exculpatory material, a motion to inspect and photograph evidence, and a motion and order for issuance of a subpoena duces tecum. The trial court denied the motions to suppress evidence, statements, and identifications, and the search warrant packet was introduced into evidence. That same date, the trial court ruled that the subpoena duces tecum could be served as modified by the court.
Counsel for Mr. Williams filed a supplemental motion to exclude DNA test results as well as a motion in limine to exclude gunshot residue testimony, or alternatively, for discovery and a Daubert hearing on the admissibility of preliminary gunshot residue analysis testimony. The State filed an opposition, wherein it cited articles supporting the reliability of gunshot residue testing. The trial court granted Mr. Williams' motion for a Daubert hearing. Counsel for Mr. Williams also filed a motion for written jury charges, a motion for a bill of particulars and supplemental discovery, a motion for discovery mandated by Brady v. Maryland , a motion to declare La. C.Cr.P. art. 782(A) unconstitutional, a motion for a jury instruction requiring a unanimous verdict, a motion for special jury charges, and motions in limine to bar the State from improper closing and rebuttal arguments.
Also on this date, the minute entry reflects that the State gave notice of its intent to seek supervisory review of the trial court's ruling granting Mr. Williams' motion for a Daubert hearing. However, the record does not reflect that the State sought supervisory review.
The matter proceeded to trial at which time counsel for Mr. Williams filed additional motions, and twelve jurors were impaneled. A Daubert hearing was held outside the jurors' presence regarding preliminary gunshot residue field testing. At the hearing, Mr. Williams called Veronica Manuel from the New Orleans Crime Lab to testify. The trial court ruled that the evidence concerning the gunshot residue test was admissible, over defense counsel's objection. The trial proceeded, and a twelve-person jury found Mr. Williams guilty as charged on all four counts.
Counsel for Mr. Williams filed a motion for downward departure of the statutorily mandated sentence of life without parole and a motion for post-verdict judgment of acquittal, or in the alternative, motion for a new trial, which the trial court denied, and the State filed a multiple bill. Counsel for Mr. Williams filed a motion to quash the multiple bill. Mr. Williams was sentenced to thirty years at hard labor on each of the armed robbery counts without benefit of probation, parole, or suspension of sentence; life imprisonment as to the second degree murder count, without benefit of probation, parole, or suspension of sentence; and five years as to the second degree battery count.
Mr. Williams also filed a motion to continue sentencing, which the trial court granted. Mr. Williams was charged as a multiple offender as to all counts pursuant to a prior conviction for criminal damage to property.
Defendant objected to the armed robbery sentencing, contending that it would have been "double jeopardy for him to be sentenced on the armed robbery if that was the felony... given that the jury did not specify whether they found him guilty under a specific intent theory or a felony murder theory."
At the multiple bill hearing, held the same day, Officer Kevin Bell, an expert in the field of fingerprint examination and comparisons, was called by the State and testified regarding Mr. Williams' fingerprint and arrest card from his prior conviction and testified that the fingerprints from those records and Mr. Williams' certified conviction packet were one in the same. The trial court denied Mr. Williams' motion to quash the multiple bill, noting his objection.
Mr. Williams was adjudicated a second offender, and the trial court vacated his prior sentence, resentencing Mr. Williams to one hundred years at hard labor as to each of the armed robbery counts without benefit of probation, parole, or suspension of sentence, to run concurrently with each other; life imprisonment as to the second degree murder count, without probation, parole, or suspension of sentence; and ten years as to the second degree battery count, all to run concurrently. That same date, the trial court noted Mr. Williams' objection and granted his motion for appeal and motion for designation of record.
Mr. Williams contends that the trial court erred by admitting evidence of gunshot residue and by denying his challenge for cause regarding a juror who admitted to residing outside of Orleans Parish.
TESTIMONY AND EVIDENCE
Officer Alden Moton
New Orleans Police Officer Alden Moton and his partner, Officer Cody Littleton, received a call on March 23, 2015, to respond to a homicide by shooting in the 7600 block of Alabama Street. Upon arriving on the scene in a marked police vehicle, the officers observed the decedent lying face down and unresponsive on the sidewalk. Officer Moton then located Mr. Williams in the back yard of a nearby house, where David and Nelson were detaining him. Officer Moton handcuffed Mr. Williams and called for EMS. One of the subjects detaining Mr. Williams directed Officer Moton to a gun located in the back of a pickup truck parked in a nearby driveway. Mr. Williams was initially put in the back of the police car, but after he vomited, he was put in an ambulance and taken to the hospital.
Detective Wayne Delarge
Detective Wayne Delarge testified that he was the lead investigator assigned to this homicide. When he arrived at the scene, the decedent had been pronounced dead, and his body was still on scene; Mr. Williams was being transported to the hospital. Mr. Williams received medical treatment and was tested at the hospital for gunshot residue by Veronica Manuel, a Crime Lab Technician, at Detective Delarge's direction. Detective Delarge later learned that the gunshot residue test conducted by Ms. Manuel yielded a "presumptive positive" result.
When asked whether Mr. Williams' hands were bagged prior to the gunshot residue test, Detective Delarge responded, "I don't believe they were bagged."
Detective Delarge testified that the gun recovered from the bed of the truck parked in the driveway was later discovered to be the weapon used to shoot the decedent. David Mejia, one of the robbery victims, went to the hospital to have his ear reconstructed, as Mr. Williams had bitten part of it off. Nelson Mejia, the other robbery victim and also David's son, was relocated to police headquarters for an interview. Detective Delarge spoke to Officers Moton and Littleton and canvassed the scene.
The firearm collected from the scene, which was loaded at the time it was retrieved, was subsequently sent to be tested for DNA evidence by the Louisiana State Police Crime Lab. Officers were unable to locate a spent casing at the scene, and the only ballistics evidence collected was a spent bullet retrieved from the decedent. Detective Delarge requested testing on both the firearm and the spent bullet. He and the officers searched the front yard but did not find a wallet.
On March 23, 2015, Detective Delarge obtained an arrest warrant for Mr. Williams, as well as a search warrant for a buccal swab. He also obtained buccal swabs from David and Nelson, which were submitted for analysis. Three days after the incident, Detective Delarge interviewed David and Nelson, at which time Detective Delarge and Detective Leslie Guzman showed them confirmation photographs of Mr. Williams, which were signed and dated by David and Nelson.
Nelson Mejia
Nelson testified that on March 23, 2015, his father, David, and the decedent were working of the air conditioning on Nelson's vehicle when they were approached by Mr. Williams, who asked for a cigarette. After obtaining a cigarette from Nelson, Mr. Williams left, returned a few minutes later bearing a firearm, put the weapon to David's back, and pointed it at the others. Believing that Mr. Williams intended to rob or kill them, the three men gave Mr. Williams their wallets and money.
Nelson stated that he had difficulty remembering, but believed Mr. Williams first placed the gun against his father's back.
After he gave Mr. Williams his money, Nelson attempted to take the gun away from Mr. Williams at which time Mr. Williams fired the weapon. Nelson and David then struggled with Mr. Williams for approximately twenty minutes until they were ultimately able to subdue Mr. Williams and take possession of the gun. Nelson and his father took Mr. Williams to the rear of the house where David detained him, while Nelson took the gun to David's truck and called 911.
While Nelson was putting Mr. Williams's gun in the back of his father's truck, Mr. Williams and David were struggling, at which time Mr. Williams bit off David's ear and spit it out. After the police arrived, Nelson found the decedent lying on the ground, and he told David that he was dead. Nelson spoke to the responding officers. Nelson relocated to the police station for an interview with officers. He was shown a photograph of Mr. Williams, which he signed.
David Mejia
David, Nelson's father, testified had known the decedent for five years. On the date in question, he, Nelson, and the decedent were standing outside his house preparing to work on the air conditioning of their car. David observed Mr. Williams standing on the corner near a stop sign before Mr. Williams approached them and asked for a cigarette. Nelson gave Mr. Williams a cigarette; and Mr. Williams left, returning a short time later. When Mr. Williams returned, he was armed with a gun, which he pointed at the three of them and demanded money. David gave Mr. Williams his wallet. Mr. Williams inspected the wallet, took a few steps back; and returned, demanding more money. As Mr. Williams was demanding more money from Nelson and the decedent, David began to move toward the rear of the vehicle, at which time he heard a gunshot.
David testified that he had seen Mr. Williams two days prior, when Mr. Williams asked for a cigarette, and David gave Mr. Williams six dollars so he could buy cigarettes.
A struggle ensued between Nelson and Mr. Williams, during which Nelson wrestled the gun away from Mr. Williams. Nelson then pointed the gun at Mr. Williams and demanded the money back, David detained Mr. Williams, and Nelson left to place the gun in the back of David's truck and call 911. David continued to detain Mr. Williams alone in the back yard. While Nelson was gone, Mr. Williams continued to struggle; and during the struggle, he bit off David's ear. When Nelson returned, he helped David detain Mr. Williams until the police arrived. After the police arrived, David went to the hospital. A few days later, he spoke with Detectives Delarge and Guzman at the police station at which time he was shown a photograph of Mr. Williams, which he signed.
Dr. Erin O'Sullivan
Dr. Erin O'Sullivan, of the Orleans Parish Coroner's Office, was admitted as an expert in the field of forensic pathology and testified regarding an autopsy she performed on the decedent. Dr. O'Sullivan testified that the decedent sustained a gunshot entrance wound on his chest and a bruise on his left lower leg. The bullet was recovered during the autopsy, and there was no exit wound. Dr. O'Sullivan testified that after being shot, the decedent likely survived for only a matter of minutes.
Sean McElrath
Sean McElrath, the section head of the firearms unit of the Crime Lab for the NOPD, was admitted as an expert in the field of ballistics and firearms examinations. Mr. McElrath testified regarding State's Exhibits 68 and 80, the magazine on the firearm and the bullet that was recovered from the decedent, opining that the projectile recovered was fired from the firearm in evidence.
Rhalie Austin
Rhalie Austin, a forensic DNA analyst supervisor at the Louisiana State Police Crime Lab in Baton Rouge, was admitted as an expert in the field of forensic DNA analysis. Ms. Austin testified regarding the DNA testing procedures performed, noting that the agency, namely the NOPD, decides what type of analysis is performed on the evidence submitted to the Crime Lab. Ms. Austin drafted a scientific analysis report for the DNA testing that was requested on the Smith and Wesson pistol and magazine, in addition to eleven cartridges, one Chase Visa debit card, one Visa gift card, right- and left-hand fingernail clippings from the decedent, and a reference sample from the decedent. The magazine portion of the firearm was swabbed for DNA testing. Ms. Austin was able to exclude the decedent, David, and Nelson's DNA from the magazine via buccal swab samples, but from the DNA profile that she obtained, she was unable to exclude Mr. Williams from the DNA sample that was collected from the magazine. Ms. Austin stated that:
the probability of finding the same deduced DNA profile, if the DNA had
come from an unrelated, random individual, other than Elton Williams, was approximately one in 5.56 sextillion for the Caucasian population; 4.52 quintillion for the black population and 25.8 sextillion for the southwest hispanic population.
This Court notes that Mr. Williams challenged the reasoning behind his DNA being found on the magazine and not the accuracy of the DNA evidence.
This Court notes that Mr. Williams challenged the reasoning behind his DNA being found on the magazine and not the accuracy of the DNA evidence.
ERRORS PATENT
A review for errors patent reveals two.
Indictment
The record in this appeal contains the front, but not the back of the indictment. La. C.Cr.P. art. 382(A) provides in part that a prosecution of an offense punishable by death or life imprisonment, as in this case, shall be instituted by grand jury indictment. See La. R.S. 14:30.1 (B) ("Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.") Furthermore, the indictment must have been indorsed "a true bill," signed by the grand jury foreperson, and returned to the district court in open court. La. C.Cr.P. art. 383.
Although the copy of the indictment included in the record does not contain the reverse side, which should display the proper endorsement and signature, the trial court minutes and the list of the grand jury return of indictments in the record indicate the indictment was returned as a "true bill," in open court and properly signed by the foreperson of the Grand Jury. Thus, we find that this patent error is harmless. See State v. Chambers , 16-0712, p. 6 (La. App. 4 Cir. 2/15/17), 212 So.3d 643, 647–48.
Mandatory Additional Imprisonment
The State invoked La. R.S. 14:64.3(A) in the bill of information, which provides that when a firearm is used in the commission of an armed robbery the "offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence." At the sentencing hearing, the trial court sentenced Mr. Williams to thirty years at hard labor without the benefit of probation, parole, and suspension of sentence for both convictions for armed robbery with a firearm. The trial court, however, did not specify whether Mr. Williams' sentences included the mandatory additional five years imprisonment required by La. R.S. 14:64.3(A).
This Court has held that a sentence is indeterminate when it fails to impose the additional five-year enhancement as required by La. R.S. 14:64.3(A). See State v. Brown , 16-0965, pp. 7-8 (La. App. 4 Cir. 5/3/17), 219 So.3d 518, 525–26 ; State v. Amos , 15-0954, pp. 5-6 (La. App. 4 Cir. 4/6/16), 192 So.3d 822, 826–27 ; see also State v. Burton , 09-0826, p. 3 (La. App. 4 Cir. 7/14/10), 43 So.3d 1073, 1076 (finding the failure to impose the mandatory additional five years imprisonment pursuant to La. R.S. 14:64.3(A) resulted in an illegally lenient sentence). Therefore, we vacate Mr. Williams' sentences for the two armed robbery convictions and remand this matter for resentencing for the imposition of additional imprisonment, as mandated by La. R.S. 14:64.3(A).
DAUBERT HEARING
Mr. Williams' contends that the burden of proof at the Daubert hearing was erroneously placed on the defense to establish that evidence regarding the preliminary gunshot residue test was not sufficiently reliable and that the trial court erred in admitting evidence when the State failed to meet its burden of proving that it met the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
After the jury was empaneled, the trial court held a Daubert hearing regarding the admissibility of gunshot residue testing evidence. Mr. Williams called Veronica Manuel of the New Orleans Crime Lab, who testified that she conducted the preliminary gunshot residue test on Mr. Williams while he was in the hospital. With respect to qualifications, Ms. Manuel testified that she did not have a specialized degree in metallurgy or metals, chemistry, or physics; she did not have any certifications related to gunshot residue or collecting gunshot residue, nor was she a member of the scientific working group on gunshot residue. Ms. Manuel described her training with respect to gunshot residue as "hands-on" and "basic" training as part of her police academy training.
Ms. Manuel testified that she was not the person who "bagged" Mr. Williams' hands, and she did not know when his hands were bagged. Counsel for Mr. Williams contended that the footage from the officers' body cameras evidenced that his hands were not bagged on the scene, and the evidence regarding the preliminary gunshot residue test should be excluded because Mr. Williams' hands were presumably not bagged until he arrived at the hospital.
The brand of test used was Sirchie, which manufactures a preliminary gunshot residue testing kit used in the field to swipe a person's hands. The test uses a "doppler" for each hand, which Ms. Manuel described as having "a small metal plate on it and it is capped off, it has a clear cap over it to protect the metal and it is about this small and there is [sic] two of them, one for the right hand, one for the left hand (indicating)." The cap is removed, the doppler is dabbed over the palms and backs of the person's hands, and the cap is placed back over the doppler, which is placed in an envelope.
Ms. Manuel testified that when conducting a preliminary gunshot residue test in the field, the test will show presumptive results. When a presumptive result is positive, "blue specks or a blue substance" will develop. Ms. Manuel testified that in this case, she knew that the presumptive result was positive because the blue specks were visible. However, a presumptive positive result does not indicate whether any of the three elements commonly present in gunshot residue (i.e., lead, barium, and antimony) are present or the amount of each element present. When asked whether, as part of her training, a presumptive positive result meant that the individual had actually fired a gun, Ms. Manuel testified, "I wouldn't know that." When asked whether she was trained with respect to the transfer of gunshot residue, Ms. Manuel responded in the negative. Although the dopplers are usually subjected to further testing after being put into evidence, Ms. Manuel testified that she was not involved in the testing of the dopplers and had no knowledge of the testing results of any further testing; "[a]ll we do is collect it, bring it to central evidence and property, and then we are done with it."
At the conclusion of Ms. Manuel's testimony, counsel for Mr. Williams emphasized that the only gunshot residue evidence in this case was the preliminary gunshot residue test and the presumptive positive results, as the samples submitted to the crime lab were not further tested, which the State conceded. Counsel for Mr. Williams requested the trial court exclude the presumptive positive results of the preliminary gunshot residue test. In support of that request, counsel for Mr. Williams argued that this evidence did not meet the Daubert standard because the State did not present evidence of the reliability of the testing. Specifically, counsel for Mr. Williams pointed out that (1) "there is not even a witness who understands the scientific theory or technique that [the State] put on, no field tests, no validation studies"; (2) that there was no indication that such testing had been subjected to peer review or publication; (3) that there was no information regarding the potential error rate or whether such testing was generally accepted in the scientific community; and (4) that Ms. Manuel had no specialized training, did not understand what the results of the test meant, and was not trained in gunshot residue transfer.
Counsel for Mr. Williams also argued that the evidence should be excluded because the presumptive results of the preliminary gunshot residue tests are too vague to be reliable. Specifically, counsel for Mr. Williams pointed out (1) that gunpowder contains lead, barium, and antimony; (2) that presumptive positive results did not demonstrate whether any of those elements was present; and (3) that no further testing was conducted to make this determination. Alternatively, counsel requested that, even if the trial court found that the testing met the Daubert standard, witness testimony be limited with respect to what the preliminary gunshot residue test means, as it could be evidence that an individual was merely in the vicinity when a gun was fired or that the gunshot residue was transferred in some manner.
The State argued that Mr. Williams' contention with respect to the gunshot residue evidence could be made to the jury and that the evidence goes to the weight, not admissibility. The State further noted that it was not seeking to introduce a conclusive test regarding gunshot residue evidence through an expert or an expert report, but to introduce a presumptive positive test result, and the fact that no follow-up testing was done was a fact that counsel for Mr. Williams could raise at trial.
The trial court denied Mr. Williams' motion in limine, finding that Ms. Manuel's duties did not necessitate any specialized training, stating, "I don't know necessarily that this rose to the level of a Daubert hearing, but I do find that her testimony is admissible in front of a [j]ury and the weight of her testimony can be argued during closings [sic] arguments. As far as limiting her testimony, that would go towards her level of expertise and you can fully cross examine her as to her limits." Mr. Williams objected.
Mr. Williams relies upon State v. Hampton , 15-1222, pp. 17-18 (La. App. 4 Cir. 12/23/15), 183 So.3d 769, 779, wherein the defendant made allegations regarding the unreliability of some of the DNA evidence, and this Court found that the trial court was required to hold a contradictory hearing regarding the issue. The Court found as follows:
We find that, because of the age of some of the samples, the testing procedures used at the time of their collection, and the apparent emerging scientific developments which may cast doubt upon the reliability of those procedures, Mr. Hampton has made allegations about the unreliability of some of the proposed DNA evidence which suffice to trigger the necessity of holding an appropriate pretrial contradictory hearing before determining that such evidence will be admitted at trial. We point out that Mr. Hampton had no evidentiary burden to bear at the pleading or motion stage and that the trial judge's imposition of such a burden upon him ("[t]he Defense has failed to offer any evidence to support a finding that the testing performed in any way deviated from the standard practice or was in some way unreliable") is an erroneous application of law such that the trial judge abused her discretion. See
State v. Franklin , 13-1489, p. 12 (La. App. 4 Cir. 6/11/14), 147 So.3d 231, 240 ("A trial court necessarily abuses its discretion if its ruling is based on an erroneous view or application of the law."). In this regard, we emphasize that here it is the prosecution, as the proponent of the challenged DNA evidence, which bears the burden of establishing to the trial judge's satisfaction at the Daubert – Foret hearing that the evidence is reliable. See State v. Charles , 617 So.2d 895, 896 (La.1993) ("This court's previous opinions make clear that the burden of proving the admissibility of [DNA] evidence is on the party moving to introduce such evidence.").
Mr. Williams contends that only Ms. Manuel, the crime lab technician who performed the preliminary gunshot residue test, testified regarding the reliability of gunshot residue testing. Counsel for Mr. Williams described Ms. Manuel's lack of expertise as illustrated by her testimony that she had received no special training for gunshot residue testing; that she had no certifications; and that she had received only "hands on" training in gunshot residue testing. Counsel for Mr. Williams also pointed to Ms. Manuel's statement, "All we do is collect [samples], bring [them] to central evidence and property, and then we are done with it." Mr. Williams submits that Ms. Manuel could not confirm whether a positive presumptive test is an indicator that the person fired a weapon and that she did not have a degree in chemistry or metallurgy.
Mr. Williams further asserts that the State asked no questions to meet the State's burden to establish that the presumptive test could reliably establish that the individual swabbed had recently fired a weapon. Mr. Williams reiterates that the State conceded at trial that an analysis of the dopplers had not been performed and merely contended that the lack of any proof of the scientific reliability of the preliminary gunshot residue test went to the weight of the evidence as opposed to its admissibility.
Mr. Williams did not seek supervisory review of the trial court's ruling denying the motion in limine. Additionally, the State notes that counsel for Mr. Williams objected to Detective Delarge's testimony regarding the preliminary gunshot residue testing because Detective Delarge was not present for the testing, not because the testing was unreliable, and that because Mr. Williams failed to object on the basis that the testing was unreliable, he failed to preserve the issue for appellate review. See La. C.Cr.P. art. 841. However, Mr. Williams requested, and the trial court conducted, a Daubert hearing specifically with respect to the issue of the reliability of the evidence regarding the preliminary gunshot residue test results. Thus, we find that Mr. Williams' arguments regarding the reliability of such evidence were preserved.
The State references the following colloquy, wherein the trial court overruled Mr. Williams' objection:
[Counsel for the State]: And was [Mr. Williams] subjected to testing for gunshot residue?
[Detective Delarge]: Yes, he was.
[Counsel for the State]: And why was he subjected to that testing?
A. He was subjected to that testing because it was believed that he was the perpetrator of this homicide.
[Counsel for Defendant]: Your Honor, I am just going to object as to the testing. It is my understanding Detective Delarge was not present for that.
THE COURT: Overruled.
[Detective Delarge]: So he was tested because it was believed that he was the perpetrator of the homicide. Crime Lab Technician Veronica Manuel relocated to the hospital and conducted the test. I later learned the test was presumptive positive.
[Counsel for the State]: Detective Delarge, did Ms. Manuel conduct that testing at your direction?
[Detective Delarge]: Yes.
The trial court did not indicate at the hearing that it was using any other standard and the salient issue with respect to the preliminary gunshot residue test evidence is whether the evidence was sufficiently reliable to be admissible. Mr. Williams contends that the trial court not only erroneously admitted the evidence, but also erred by allowing the prejudicial test results to be admitted via the hearsay testimony of Detective Delarge, which deprived Mr. Williams of the right to cross-examine the technician who performed the test.
In Hampton , 15–1222, pp. 8–11, 183 So.3d at 774–76 (footnote omitted) (alterations in original), this Court recognized the following principles regarding the Daubert test:
Under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), adopted by the Louisiana Supreme Court in State v. Foret , 628 So.2d 1116 (La.1993), the trial court is required to perform a "gatekeeping" function to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert , 509 U.S. at 589, 113 S.Ct. 2786. Repudiating the former "general acceptance" standard, the Daubert Court held that the Federal Rules of Evidence control the admissibility of expert scientific evidence in federal court. Finding that the Louisiana Code of Evidence was modeled after the Federal Rules of Evidence, our Supreme Court adopted the requirements set forth in Daubert . See Foret , 628 So.2d at 1122.
The general rule governing the admissibility of expert testimony in Louisiana courts is found in La. C.E. art. 702. "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if " four conditions are satisfied. Ibid. (emphasis added). The first, and critical, but not pertinent to the issue before us, is that "[t]he expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." La. C.E. art. 702(1) ; see State v. Farrier , 14-0623, p. 7 (La.App. 4 Cir. 3/25/15), 162 So.3d 1233, 1239 ("By explicitly finding that the opinion testimony of Dr. McAuliff would only serve to confuse the jury, the trial judge answered the critical question that this testimony would not be helpful and excluded the testimony.") The other three conditions are pertinent to a Daubert– Foret inquiry conducted by the trial judge qua gatekeeper: "[ La. C.E. art. 702 ] (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert has reliably applied the principles and methods to the facts of the case." In civil proceedings, the Daubert– Foret pretrial hearing is one "to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence." La. C.C.P. art. 1425 F(1). And, notably, the party demanding such a pretrial hearing and determination of the reliability of evidence which the opposing party intends to introduce into evidence at the trial "shall set forth sufficient allegations showing the necessity for these determinations by the court." Ibid. (emphasis added). Upon a timely filed and sufficiently alleged motion for a Daubert– Foret hearing, the court "shall" hold a contradictory hearing. La. C.C.P. art. 1425 F(2). "At the hearing, the court shall consider the qualifications and methodologies of the
proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence." Ibid.
Thus, in exercising her gatekeeping function, a trial judge must make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue." Daubert , 509 U.S. at 592–93, 113 S.Ct. 2786. Importantly, if the gatekeeping role is not properly executed, there is a risk that the expert evidence may be prejudicial or misleading; trial judges must therefore employ "a careful evaluation of the methodology surrounding the testimony and its conclusions." Foret , 628 So.2d at 1122.
As noted above, DNA evidence is deemed relevant to a criminal prosecution. As to the reliability of the evidence, pertinent factors for the trial court to consider include: (1) The "testability" of the scientific theory or technique; (2) Whether the theory or technique has been subjected to peer review and publication; (3) The known or potential rate of error; and (4) Whether the methodology is generally accepted in the scientific community. See Daubert , 509 U.S. at 594–95, 113 S.Ct. 2786 ; see also State v. Quatrevingt , 93-1644, p. 11 (La. 2/28/96), 670 So.2d 197, 204.
Mr. Williams also relies upon the following passage from State v. Johnson , unpub., 10-0137 (La. App. 1 Cir. 12/22/10), 2010 WL 5464926, at *2 :
In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony that requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin , 2002-1188, p. 5 (La. 5/20/03), 846 So.2d 697, 700–701. To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. Daubert , 509 U.S. at 592–594, 113 S.Ct. at 2796–2797. Thus, Louisiana has adopted Daubert's requirement that in order for technical or scientific expert testimony to be admissible under Article 702, the scientific evidence must rise to a threshold level of reliability. Daubert's general "gatekeeping" applies not only to testimony based upon scientific knowledge, but also to testimony based on "technical" and "other specialized knowledge." Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999) ; Independent Fire Ins. Co. v. Sunbeam Corp. , 99-2181, p. 13 (La. 2/29/00), 755 So.2d 226, 234. The trial court may consider one or more of the four Daubert factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Kumho Tire , 526 U.S. at 141, 119 S.Ct. at 1171. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations.
Kumho Tire , 526 U.S. at 142, 119 S.Ct. at 1171. The purpose of a Daubert hearing is to determine the reliability of an expert's methodology, not whether the expert has the proper qualifications to testify. See State v. Vidrine , 2008-1059, p. 20 (La. App. 3 Cir. 4/29/09), 9 So.3d 1095, 1107, writ denied , 2009-1179 (La. 2/26/10), 28 So.3d 268.
The evidence at issue in Johnson was fingerprint evidence. The Johnson court ultimately determined that the evidence was reliable and affirmed the trial court's denial of the defendant's request for a Daubert hearing, finding that:
[g]iven the firmly established reliability of fingerprint evidence, defense counsel's full right to cross-examine the expert witness, and the expert witness's comparison of the defendant's fingerprints, not with latent prints, but with known fingerprints, the trial court did not err in denying the motion for a Daubert hearing.
Johnson , 2010 WL 5464926, at *5.
Mr. Williams asserts that in ruling that evidence regarding the preliminary gunshot residue test was admissible despite the State's failure to offer any evidence of the test's reliability, the trial court failed in its role as "gatekeeper" of scientific evidence. However, the State cited numerous examples of peer-reviewed analysis of gunshot residue testing. Nonetheless, Mr. Williams contends that Ms. Manuel did not testify regarding the procedural steps she took to perform the gunshot residue test and was not "subject to cross examination to demonstrate her lack of knowledge of the implications of the test or its scientific basis." Ms. Manuel testified about the manner in which she conducted the field gunshot residue test. Additionally, Ms. Manuel was called by the defense at the Daubert hearing.
Further, Mr. Williams maintains that Detective Delarge was permitted to testify that the gunshot residue test was performed "because it was believed that [Mr. Williams] was the perpetrator of the homicide." As previously noted herein, Mr. Williams' objection, which was overruled, was "Your Honor, I am just going to object as to the testing. It is my understanding Detective Delarge was not present for that." Mr. Williams also avers that Detective Delarge further testified that the test was presumptively positive even though he was not present for the testing, and therefore, it was hearsay. The record does not evidence a defense objection specifically to Detective Delarge's testimony that the test was presumptively positive.
Conversely, the State submits that State v. Conner , 16-0890 (La. 5/25/16), 191 So.3d 1072, is analogous. In Conner , this Court granted a defendant's writ application and reversed the trial court's denial of the defendant's request for a Daubert hearing regarding the State's intended use of the results of a gunshot residue test. See State v. Conner , unpub., 16–0212, p. 4 (La. App. 4 Cir. 4/11/16). Like this case, the defendant in Conner contended that the testing protocols and methodologies were insufficient to corroborate a presumptive positive gunshot residue field test. Id. at p. 2. The defendant further argued "that GSR analysis is a flawed methodology in that it lacks generally accepted statistical validation of findings and that there is no scientific consensus regarding whether GSR analysis can distinguish between GSR particles acquired through the firing of a gun and GSR particles acquired through contamination."Id. The defendant in Conner cited to various publications questioning the reliability of gunshot residue testing.
The State, in Conner , argued in opposition that the defendant failed to cite any caselaw where the reliability of gunshot residue testing has been called into question. The State also, as here, cited numerous scientific articles that the State submitted were supportive of the reliability of gunshot residue testing. This Court noted that the State did not cite any publications "wherein the results of preliminary gunshot residue test was offered and admitted as substantive evidence." Id. at p. 3.
This Court reversed the trial court's denial of the defendant's request for a Daubert hearing, citing as reasons "the preliminary information offered by Mr. Conner which may cast doubt upon the reliability of the GSR field tests, the fact that the State intends to introduce the results of the GSR field test into evidence at trial, and the lack of any scientific articles suggesting the results of such preliminary tests are reliable." Id. This Court further concluded that the defendant made allegations sufficient to require the holding of a contradictory hearing before determining that such evidence be admitted at trial.
However, the Louisiana Supreme Court reversed this Court's ruling and granted the State's writ application with the following order:
Writ granted. The decision of the court of appeal is reversed and the ruling of the district court is reinstated. After reviewing the allegations made by the defendant, we find no abuse of discretion in the district court's ruling denying the motion requesting a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret , 628 So.2d 1116 (La. 1993).
Conner , 16–0890, 191 So.3d 1072 (emphasis added).
The Louisiana Supreme Court also stated, in State v. Robinson , 02-1869, p. 11, n.2 (La. 4/14/04), 874 So.2d 66, 76, n.2 (emphasis added), that:
In his thirteenth assignment of error, defendant contends that the testimony of Mr. Schwoeble regarding GSR analysis should not have been admitted, as it failed to satisfy the reliability requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 592–93, 113 S.Ct. 2786, 2795–96, 125 L.Ed.2d 469 (1993). In State v. Foret , this Court held that where a trial court is considering the admissibility of proposed expert testimony, the trial court must first make " ‘a preliminary assessment’ ‘of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue.’ " State v. Foret , 628 So.2d 1116, 1122 (La.1993) (quoting Daubert , 509 U.S. at 592– 93, 113 S.Ct. 2786 ). The trial court must also determine whether the expert is proposing to testify to (1) "scientific, technical, or other specialized knowledge" that (2) "will assist the trier of fact to understand the evidence or to determine a fact in issue." Foret , 628 So.2d 1116, 1121, (citing La. C.E. art 702). The ultimate goal of the trial court under this new standard is to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 1122 (citing Daubert , 509 U.S. at 589, 113 S.Ct. 2786 ).
Gunshot residue detection testing is not a new science. This Court has recognized experts in this field since 1981. See State v. Boyer , 406 So.2d 143, 146–47 (La.1981). Following Boyer , trial courts have routinely accepted gunshot residue testing as a reliable and accurate technique for determining if a person has recently discharged a firearm . Id. [emphasis added]
In the instant case, defendant waived his right to traverse Schwoeble as to his qualifications. Before testifying as to the specific tests and analysis he conducted with regard to this case, Schwoeble testified generally about the methodology
employed in gunshot residue testing. During this testimony, defendant made no effort to discredit the reliability of the testing methodology Schwoeble described. Thus, defendant's thirteenth assignment of error is without merit.
Considering the Louisiana Supreme Court's statements in Robinson , although arguably dicta , it appears the Court made an implicit finding that gunshot residue testing is generally reliable. Furthermore, the Louisiana Supreme Court determined that a Daubert hearing regarding the introduction of gunshot residue testing was not unnecessary in Conner. Additionally, this Court reviews a trial court's evidentiary ruling relating to the admission of evidence for an abuse of discretion. State v. Wright , 11-0141, pp. 10-11 (La. 12/6/11), 79 So.3d 309, 316.
Thus, the State's alleged failure to present compelling evidence in support of the reliability of the evidence regarding preliminary gunshot residue testing does not render otherwise admissible evidence inadmissible. As previously noted, the Louisiana Supreme Court has not only recognized that Louisiana courts "have routinely accepted gunshot residue testing as a reliable and accurate technique for determining if a person has recently discharged a firearm", but also found that no Daubert hearing was necessary with respect to evidence regarding preliminary gunshot residue testing, and thus, the evidence could be admitted without a Daubert hearing. Conner , 16–0890, 191 So.3d at 1072. In this case, the trial court granted Mr. Williams' motion and held a Daubert hearing regarding the preliminary gunshot residue testing evidence. Considering the Louisiana Supreme Court's findings in Robinson and Conner , the record does not evidence that the trial court abused its discretion in allowing the gunshot residue test results into evidence.
Robinson , 02–1869 at p. 11, n.2, 874 So.2d at 76, n.2.
Even if the trial court erred in admitting the evidence regarding the preliminary gunshot residue test, we find that the error was harmless. This Court has recognized that "[w]here improperly admitted evidence is merely corroborative and cumulative of other properly introduced evidence, it is considered harmless error." Guillot v. Daimlerchrysler Corp. , 08-1485, p. 21 (La. App. 4 Cir. 9/24/10), 50 So.3d 173, 190. Additionally, it is well-settled that the "inquiry ‘is not whether, in a trial that occurred without the error [regarding admissibility of evidence], a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ " State v. Frith , 13-1133, p. 14 (La. App. 4 Cir. 10/22/14), 151 So.3d 946, 954 ; quoting Sullivan v. Louisiana , 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).
Similarly, with regard to Mr. Williams' argument that Detective Delarge's testimony regarding the preliminary gunshot residue test was hearsay, in State v. Falkins , 12-1654, pp. 18-19 (La. App. 4 Cir. 7/23/14), 146 So.3d 838, 851, this Court recognized that "[h]earsay testimony improperly introduced into evidence, will be considered harmless error if it is found to be cumulative and corroborative of other properly admitted evidence and did not contribute to the verdict."
Mr. Williams contends that the introduction of the gunshot residue testing evidence was not harmless in this case "[b]ecause of the inconsistency of the State's witnesses, the DNA evidence and the preliminary gunshot residue test, not performed on either of the State's witnesses, [sic] formed the basis of the jury's verdict."
In this case, both David and Nelson, testified at trial and positively identified Mr. Williams as the perpetrator who shot the decedent, and the State presented evidence that Mr. Williams' DNA was found on the magazine of the gun recovered at the scene. Mr. McElrath, the ballistics expert, testified that in his opinion, the bullet recovered from the decedent's chest was fired from the gun recovered at the scene. Thus, the evidence with respect to the preliminary gunshot residue test was merely cumulative or corroborative of other properly introduced evidence. Furthermore, considering the aforementioned evidence presented by the State at trial, the jury's verdict was unattributable to the error, and therefore, the error, if any, of admitting such evidence was harmless.
CHALLENGE FOR CAUSE
Mr. Williams asserts that the trial court erred in denying a challenge for cause to Sean Gravolet, who had advised the trial court that at the time of trial he resided in St. Tammany Parish although still registered to vote in Orleans Parish, and Mr. Williams was forced to utilize a peremptory challenge to remove Mr. Gravolet from the jury.
During voir dire, Mr. Gravolet stated that "I'm Sean Gravolet. I'm single, no kids. I'm still registered in Orleans Parish to vote; however, I reside in Madisonville and I'm a naval architect."
The trial court's failure to dismiss a potential juror may be assigned as error when the denial is erroneous and the defendant objected to the trial court's failure to dismiss the juror. Mr. Williams further submits that pursuant to La. C.Cr.P. art. 921, if a defendant has not used all of his peremptory challenges and assigns the trial court's failure to dismiss a potential juror as error, a defendant must also demonstrate that he has been prejudiced by this failure. Mr. Williams contends that if a defendant has used all of his peremptory challenges, he does not need to demonstrate prejudice, but only that the erroneous denial of a challenge for cause and an objection to the trial court's ruling regarding same.
La. C.Cr.P. art. 921 provides, "[a] judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused."
Mr. Williams contends that he lodged a challenge for cause to Mr. Gravolet, noting that although Mr. Gravolet was registered to vote in Orleans Parish, he resided in Madisonville at the time of trial, but the trial court denied the challenge, finding that Mr. Gravolet's voter registration was the determining factor. As a result, Mr. Williams exercised a peremptory challenge to remove Mr. Gravolet from the jury, which exhausted all of his peremptory challenges. Both Mr. Williams and the State rely upon La. C.Cr.P. art. 401(A)(1), which provides that "[i]n order to qualify to serve as a juror, a person must ... [b]e a citizen of the United States and of this state who has resided within the parish in which he is to serve as a juror for at least one year immediately preceding his jury service."
The voir dire transcript includes the following colloquy:
[Counsel for Defendant]: Judge, as it relates to Mr. Gravolet, I wonder if there is a concern about his eligibility for a Juror. He said he is registered here—
THE COURT: He is registered to vote. He is legal.
[Counsel for Defendant]: — but he resides in Madisonville.
THE COURT: It is based on his registration.
[Counsel for Defendant]: So just note our objection for the fact that he does not actually reside in Orleans Parish.
THE COURT: We have had that issue come up before.
The voir dire transcript includes the following colloquy:
[Counsel for Defendant]: Mr. Craver is still Juror No. 12?
THE COURT: Yes. Nobody has touched the Jury. You-all just keep blowing your challenges post 12 Jurors and State is done.
Defense's final challenge is Juror No. 30, Sean Gravolet . We have some movement on the Jury. [emphasis added]
--------
The State contends that there was no direct evidence or testimony that Mr. Gravolet resided in Madisonville at the time of trial, according to the colloquy. Additionally, the State submits that there is no evidence that Mr. Gravolet did not reside in Orleans Parish for one year immediately prior to being selected to serve on the jury in this case. While Mr. Williams submits that La. C.Cr.P. art. 401 indicates that residence, not voter registration, is determinative of a juror's qualification, the State maintains that while a person may have only one domicile, a person may have multiple residences, citing Brown v. Archer , 06-0262, p. 4 (La. App. 4 Cir. 3/21/06), 929 So.2d 172, 174.
The State asserts that to challenge the qualification of a juror, the record must evidence that the juror was thoroughly examined on voir dire with respect to the alleged disqualification. In this case, the State contends that Mr. Williams failed to demonstrate that he examined Mr. Gravolet during voir dire regarding whether he resided in Orleans Parish for one year immediately preceding trial, and therefore, the record is insufficient to establish definitively that Mr. Gravolet did not reside in Orleans Parish for a year immediately preceding trial.
In State v. Flowers , 00-0513, p. 4 (La. App. 4 Cir. 3/7/01), 782 So.2d 685, 688–89, quoting State v. Cross , 93-1189, pp. 6-7 (La. 6/30/95), 658 So.2d 683, 686–687 (emphasis added), this Court recognized:
La. Const. art. I, § 17 guarantees that "[t]he accused shall have the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law."
* * *
The trial judge is vested with broad discretion in ruling on challenges for cause, and his ruling will be reversed only when a review of the entire voir dire reveals the judge abused his discretion. [State v. ] Robertson , [92–2660, (La.1/14/94) ], 630 So.2d [1278] at 1281 ; [ State v. ] Ross , 623 So.2d [643] at 644 [ (La.1993) ].
In State v. Lindsey , 06-255, pp. 2-3 (La. 1/17/07), 948 So.2d 105, 107, this Court recognized:
Prejudice is presumed when a district court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. State v. Kang , 02-2812, p. 3 (La. 10/21/03), 859 So.2d 649, 651 ; State v. Robertson , 92-2660 (La. 1/14/94), 630 So.2d 1278, 1280. A district court's erroneous ruling which deprives a defendant of a peremptory challenge substantially violates that defendant's rights and constitutes reversible error. Kang , 02–2812, at p. 3, 859 So.2d at 652 ; State v. Cross , 93-1189, p. 6 (La. 6/30/95), 658 So.2d 683, 686 ; State v. Bourque , 622 So.2d 198, 225 (La. 1993), overruled on other grounds by State v. Comeaux , 93-2729 (La. 7/1/97), 699 So.2d 16 ; State v. McIntyre , 365 So.2d 1348, 1351 (La. 1978). When a defendant uses a peremptory challenge after a challenge for cause has been denied, the defendant must show: (1) erroneous denial of the challenge for cause; and (2) use of all peremptory challenges. Kang , 02–2812, at p. 3, 859 So.2d at 652 ; Cross , 93–1189 at p. 6, 658 So.2d at 686 ; Robertson , 92–2660 at p. 2, 630 So.2d at 1280 ; State v. Lee , 559 So.2d 1310, 1316 (La. 1990), cert. denied , 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991).
In State v. Futch , 216 La. 857, 44 So.2d 892, 896 (1950), the Court found that "[t]o challenge after verdict the qualifications of a juror it must appear that he was examined on his voir dire as to the asserted disqualification and that he answered falsely." Accordingly, it follows that a defendant must also have thoroughly examined a juror during voir dire regarding an asserted disqualification regarding residency. The State also relies on State v. Folse , 623 So.2d 59, 66 (La. App. 1st Cir. 1993), wherein the defendant argued that the trial court erred by allowing an individual to serve on the jury when it was never established that she met the requisite juror qualifications. In Folse , the First Circuit concluded that the record reflected that during voir dire the trial court noticed an address of Metairie for the prospective juror and questioned her regarding same:
THE COURT:
Yeah. You show an address of Metairie, Ms. Coxen. Are you living in Metairie now?
MS. COXEN:
I reside really in Thibodaux, but I work Monday through Friday, and I come on the weekend and stay in Thibodaux.
THE COURT:
You work in Metairie and then—
MS. COXEN:
I work in New Orleans.
THE COURT:
In New Orleans?
MS. COXEN:
Right. My actual home is Thibodaux on Back Street and when I got the form—I stay Monday through Friday sometimes for work and I come home on the weekend. So, I actually live here in Thibodaux. I spend Monday through Friday working.
THE COURT:
Thibodaux is where you regard your home?
MS. COXEN:
Yes.
THE COURT:
And you do maintain a residence here?
MS. COXEN:
Absolutely.
THE COURT:
Good. Thank you, Ms. Coxen. That clears it up. Proceed.
Id.
The First Circuit held it was "clear" that Ms. Coxen resided in Thibodaux, which is in Lafourche Parish, but:
because the record [wa]s silent as to whether or not Coxen resided in Lafourche Parish for one year immediately preceding her selection to serve on the jury as required by LSA–C.Cr.P. art. 401 A(1), it was never established that Coxen met the one-year residency requirement.
Id. at 67. The defendant in Folse filed a motion for new trial, which the trial court denied. In affirming the denial of the motion for new trial, the First Circuit concluded:
Article 851 of the Louisiana Code of Criminal Procedure provides a procedure for requesting a new trial when the defendant discovers after the verdict that a juror was unqualified. See State v. Herrod , 412 So.2d 564 (La.1982). See also LSA–C.Cr.P. art. 795, comment (b). The pertinent portion of article 851 is as follows:
The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. The court, on motion of the defendant, shall grant a new trial whenever:
....
(4) The defendant has discovered, since the verdict or judgment of
guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment....
Consequently, to take advantage of the defect and receive a new trial the defendant must establish that he was not aware of the disqualification when the juror was accepted by him and that this information could not have been ascertained by due diligence. State v. Herrod , 412 So.2d at 566 ; State v. Martin , 582 So.2d 306, 310 (La. App. 1st Cir.), writ denied , 588 So.2d 113 (La.1991). Courts generally have required that the defendant establish that he examined the juror, during voir dire, on the juror's qualifications, and that the juror answered falsely, in order to show he exercised due diligence. State v. Baxter , 357 So.2d 271, 274 (La.1978) ; State v. Martin , 582 So.2d at 310.
In this case, based on the questioning of Coxen quoted above, it is clear that the juror's alleged failure to meet the residency qualification is not a defect, that, notwithstanding the exercise of reasonable diligence by Folse, was not discovered before the verdict. Further, there is absolutely no evidence that Coxen was in bad faith in her voir dire responses. As an alternate juror, Coxen was discharged by the trial court immediately before deliberations began. Hence, we conclude that the trial court correctly denied Folse's motion for new trial on the basis of Coxen's alleged failure to meet the residency requirement.
Id. (emphasis added).
Similarly, in this case, Mr. Williams failed to demonstrate due diligence, as his counsel did not examine Mr. Gravolet during voir dire regarding whether he resided in Orleans Parish for one year immediately prior to trial. See also State v. Zeno , 14-0325, p. 18 (La. App. 1 Cir. 9/19/14), 155 So.3d 4, 17 ("Courts generally have required that the defendant establish that he examined the juror, during voir dire, on the juror's qualifications, and that the juror answered falsely, in order to show he exercised due diligence.").
As previously noted, an individual may have multiple residences, and in this case, the record is insufficient to determine whether Mr. Gravolet had a residence in Orleans Parish for one year preceding his jury service. Additionally, the record reflects that Mr. Gravolet's voter registration was in Orleans Parish. Although Mr. Gravolet stated in voir dire that he resided in Madisonville, the record does not evidence whether Mr. Gravolet also resided in Orleans Parish for one year prior to trial. This lack of evidence is due to counsel for Mr. Williams' failure to examine Mr. Gravolet during voir dire. Accordingly, the trial court did not abuse its broad discretion in denying Mr. Williams' challenge to Mr. Gravolet for cause.
DECREE
For the above-mentioned reasons, we do not find that the trial court abused its discretion by admitting the gunshot residue evidence or by denying Mr. Williams' challenge for cause as to Mr. Gravolet. We affirm all of Mr. Williams' convictions, and we affirm Mr. Williams' sentences for second degree murder and second degree battery. However, we vacate Mr. Williams' sentences for the two armed robbery convictions and remand for resentencing for the imposition of the additional punishment as mandated by La. R.S. 14:64.3(A).