State Of Louisiana VS Kevin Smith
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NOT DESIGNATED FOR PUBLICATION STATE OF LOU SIANA COURT F APPEAL F I RST CIRCUIT N0 2011 KA 0742 STATE OF LOUISIANA VERSUS KEVIN SMITH G Judgment I Rendered DEC 2 1 Z011 On Appeal from the 32nd Judicial District Court II In and for the Parish of Terrebonne State of Louisiana Trial Court No 522 244 Honorable Timothy C Ellender Judge Presiding Joseph L Waitz District Jr Attorneys for Plaintiff Appellee State of Louisiana Attorney Mark Rhodes Assistant District Attorney Ellen Daigle Doskey Assistant District Attorney Houma LA Martin F Regan Nisha Sandhu Jr Attorneys for Defendant Appellant Kevin Smith New Orleans LA BEFORE CARTER C PARRO AND HIGGINBQTHAM JJ J HIGGINBOTHAM J Defendant Kevin Smith was char by grand jury indictment with two ed counts of s degree murder violations of La R 14 He pled not guilty cond S 30 1 and a a trial by jury was unanimously found uilty as charged on both counts ter The trial cour sentenced him to two concurrent terms of life imprisonment at hard abor without benefit of parole probation now appeals raising six assignments of or suspension error of sentence Defendant For the following reasons we affirm defendant convictions and sentences s ASSIGNMENTS OF ERROR 1 The evidence was insufficient to support defendant convictions s 2 The trial court erred in denying defendant motion to suppress oral statements s 3 The trial court erred in admittin a scientific analysis report into evidence in the absence of the analyst who performed the testing or comparison thereby violating sright to confrontation defendant 4 The trial court erred in determinin that the requirements of Daubert were met and allowing a state witness to testify as an expert 5 The trial court erred in denying defendant Batson challenge s 6 The trial court erred in denying a motion for mistrial after the prosecutor made prejudicial remarks during rebuttal argument FACTS On the evening oF March 15 ZOOb defendant Yuri Johnson Johnson and Kelly Noble Noble K Reed and Taniesha Stallworth arrived by bus in neani xas Lafayette Louisiana Defendant had travelled from San Antonio T and the others from California to visit Khari LeBlanc who is defendant first cousin s Defendant and Johnson had known each other for years and reportedly were extremely close friends At one time they had liv together in California d LeBlanc and his brother Pat Stewart pick the group up at the Lafayette d s bus station and drove them to LeBlanc trailer in visitors planned to stay for several days 2 Gibson Louisiana where the s nd LeBlanc girlfri Nicole Johnson I arrived at the trailer later that evening She and LeBlanc went to bed while the others stayed up late visiting At least some of them also smoked marijuana The next morning I eBlanc drove the two wome Reed and Stallworth to Mart Wa1 and on several other errands defendant Johnson arad Noble alone Nicole also left the trailer leaving While the others were gone the three men smoked marijuana As LeBlanc and th others were returning to the trailer they saw Stewart driving down the road They stopped to visit together at the home of their grandmother Myrtle Seymare whose house was located across the bayou and less than a mile f rom LeBlanc trailer s While they were there a friend Corey Sims also stopped to visit When LeBlanc told him that defendant and Johnson both of whom Sims knew were in town Sims proc to the trailer to see them eded Vhen 1 Sims arrived at the trailer several minutes later h observed that the back door was open When he knocked on the front door and got no response he opened the door and discover Noble body lying in a pool of blood in the living ds room He jumped back and walked around to the back of th trailer where he found Johnson lying call did not go through He then telephoned LeBlanc and told him he n to eded come on the ground bleeding home but LeBlanc thought he was Sims attempted to call 911 but the joking and hung up on him Sims then called Stewart and told him what had occurred At that point LeBlanc St and the two women drove toward th trailer wart in LeBlanc vehicle s As they turned onto the Jarvis Bridg to cross over the bayou they saw defenda running toward them out of breath Defendant got into nt the vehicle and returned to the trailer with them When LeBlanc asked what d happen defendant said that some guys had come into th txailer and started shooting Defendant further stated that he was in the rear bedroom sleeping at the time but hit the door and got out when he heard shooting 3 Upon the group arriving at the trailer Sims pointed out wh Johnson was re lying covered with blood continuing to bleed and unsuccessfully attempting to speak LeBlanc looked through s the back door and observed Noble body With s ndant lp def h LeBlanc put Johnson inta his car to take him to the hospital in Houma However LeBlanc first stopped by Seymore house to pick up his s mother Defendant remained at Seymore house when LeBlanc departed for the s hospital Defendant returned to the appeared nervous trailer purportedly and agitated He borrowed a car and briefly to take Nable to the hospital However he claimed that no one there would help him put Noble into the car so he re to urned the Seymore house In the meantime as LeBlanc and his mother were driving toward the hospital they saw a police car that was responding to a report of the shooting They flagged the officer down and Johnson subsequently was taken to the hospital by air ambulance However he died before reaching the haspital frozn multiple gunshot wounds including a range close wound to the head Noble who had sustained a single gunshot wound to the head r life support for two mained on months before he also died In searching the trailer for evidence the police discovered l pounds of 7 marijuana located inside a box on the top shelf ofthe closet in LeBlanc sbedroom They also found a bloody palm print that was later found to match defendant s palm print as well as multiple bloody footprints T bloodstained t and a wo shirts pair o tennis shoes were recovered tram the frant bedroom of the trail The r police also recovered a bullet three jacketed bullets and a bullet fragment all of which were rmined det to have come from the same unidentified firearm firearm was ver recovered in connection with the offenses 4 No Initially defendant was interviewed by the polic as eyewitness an However due to inconsistencies in statements he made to the police and to various other individuals he b a suspect and eventually was arrested for the murders came of Johnson and Noble SUFFICIENCY OF THE EVIDENCE In his insufficient first to assigninent of error defendant argues sustain his convictions for second degree the evidenc murder was Specifically he contends that the state failed to exclude the reasonable hypothesis of innocence that someone else committed the murders He asserts that there was no direct evidence linking him ta the murders and that th state case was based wholly on s unreliable circumstantial evidence The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not vi the evidence in the light most favorable to wing I the prosecution fact of ments any rational trier could have found the essential el of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 S 99 S Ct 2d Ed 2781 2789 61 L 560 1979 821B State v See also La Code Crim P art 0207 2d Qrdodi 2006 La 11 946 So 654 660 p6 29 The Jackson v Virginia standard of review incorporated in La Code Crim P art 821 is an objective standard foz testing the overall evidenc circumstantial for reasonable doubt both direct and State v Patorno 2001 SLa App 1st 25 Cir 6 02 822 So 141 144 21 2d Furthermore when analyzing circumstantial evidence La S R 43 15 s provid that in order to canvict the trier must be satisfied that the overall fact ot evidence excludes every reasonable hypothesis of innocence Patorno 822 So 2d at 144 However La R 15 does not establish a stricter standard of review S 438 than the more general rational juror reasonable doubt standard it is merely an s evidentiary uid for the jury when considering circumstantial evidence 5 State v Manning 2003 La 10 885 So 1044 1088 cert denied 544 U 1982 04 19 2d S 7 9 125 Ct S 1745 161 2d Ed L 612 2005 When a case s involv circumstantial evidence and the trier reasonably rejects the hypothesis of fact of innocence presented by the defense that hypothesis falls and the defendant is ss unl there is another guilty hypothesis that raises a reasonable doubt State v Moten S 10 So 55 61 La App 1 st Cir writ denied 514 So 126 La 2d 2d 7 19 At the time of the instant offenses La R 14 provided in pertinent S 30 1 part that A Second degree inurder is the killing of a human being 1 When the o has a specific intent to kill or to inflict fender great bodily harm or a 2 When the offender is en in the perpetration or aged aggravated burglary armed robbery attempted pezpetration of first degree robbery ar simple robbery even though he has no intent to kill or to inflict great bodily harm Defendant circumstantial ar ues that the state P resented evidence to prove that he was no I direct evidence and insufficient the person who shot I and killed I Johnson and Noble contention Based on our careful review of the record we find this to be meritless Other than defendant sown statements there was no evidence that anyone other than defendant and the victims was present at the time the murders occurred Defendant admitted being inside the trailer at the time of the shootings At trial the state presented evidence that defendant gave several inconsistent accounts of what occurred Originally he gave tkt following account to the police H was lying down in the back bedroom when he first heard someone enter the trailer aand then a gunshot He proceeded into the hallway and saw a single assailant struggling with Johnson The assailant xtended his arm and fired a shot at defendant At that point defendant fled through the back door and hid under a nearby trailer for approximately five to ten minutes during which time 6 he heard s additional gunshots The assailant then came out of th trailer and veral ran toward a wooded the trailer behind area park Defendant described the assailant as a black male dressed all in black wearing a sw pants and a ski atshirt mask defendant could not recall whether the assailant was wearing gloves However when a detective asked how defendant knew the assailant was black given the clothing dand the fact that defendant could not recall whether he scribed was wearing gloves defendant became very defensive and insisted he had never said the assailant was black Defendant stated that he ran back ta the trailer when he saw the assailant flee and he found Johnson lying on the ground outside the back door Johnson was bleeding heavily and asping for air Defendant held Johnson and asked what had happened However Johnson was UI7 t0 answ and spit up blood on bl r defendant Defendant then entered the trailer to check on Noble whom he found just inside the front door with an apparent gunshot wound to the head He walked around the trailer itt shock and thet went into the front bedroom to clean up ar d change clothes because he trailer and started walkin returned to was bloody fram holding Johnson Next he left the toward the road However he the trailer and told him what had happened saw Sims arriving and LeBlanc arrived at the trailer shortly therea and defendant helped him put Johnson in the car ter Although defendant told the police that there was only one assailant he told other individuals that there were two ta three Additionally as the police continued to interview defendant at intervals over the course of several hours other aspects of his account chan Significantly he went from claiming that he went ed back inside the trailer to check on Noble to admitting that he went inside to look for the marijuana because he knew the police were coming He also went from saying that he stopped to attend to Johnson befare going inside the tzto saying that he went straight inside to look for the marijuana In one interview defendant 7 i I stated that he went into the trailer alone three times to search for the marijuana but in another interview he claimed that he and LeBlanc entered the trailer to to ether search for the marijuana after they put Johnson into the car Additionally defendant initially denied leaving the trailer park before s LeBlanc arrival and said it was not true that LeBlanc had picked him up on the bridge ver How this claim did raot match the testimony of witnesses who testified that th met defendant running down the road near the Jarvis Bridge y which was 38 miles from the trailer park When the police confronted defendant with the contrary statements of other witnesses h ftnally admitted that he did leave the trailer park on oot and reached the Jarvis Bridge where he was picked up by LeBlanc Further the state presented evidence that a bloody palm print that was found on the hallway wall matched defendant sprints There also was testimony that the police recovered clothing in the trailer front bedroom including two bloady t s shirts and shoes that matched the description of the clothes defendant said he was wearing when h cleaned up and changed his clothes after the shootin s The clothes w found in the area of the bedroom that defendant marked with an X re on a diagram of the trailer drawn by a detective An examination of the shoes indicated they could not be excluded as the source o several bloody footprints found inside the trailer Moreover the stat presented testimony from Ross Gardner an expert in crime scene and blood stain pattern analysis who testifred that the trans pattern of the bloody shoe prints overlaid with small spatters er indicated that the wearer of the shoes was present at the time that Johnson was injured and his blood spattered The state also established that samples taken from bloodstains on the white shiz tfound in the area of the front bedroom where defendant left his bloody clothes were consistent with Johnson DNA s S Based on his analysis of the crime scene and the numerous bloodstain patterns on the t shirts Gardner concluded that the wearer o the t shirts was exposed to Johnson blood as it spattered and s ushed on multi P le occasions in at least ei g ht different orientations in immediate proximity to the attack upon Johnson Finally defendant told the police that he bloadied his clothes by holding Johnson when he found him lying outside the trailer However Gardner testified that he saw nothing on the t was consistent with the wearer being in shirts that tedirect contact with Johnson body as it lay outside the trailer Gardner immedi s also concluded that the condition of the tcould not be wholly explained by shirts defendant having helped LeBlanc move Johnson bloody body to the car s In arguing that the state evidence was insuffici defendant notes that the s nt gun residue test the police performed him on was negative However in making this argument defendant ignores the fact that he admitted he washed up when he changed e his clothes after tl shooting The detective who administered th t st indicated that the results of a gunshot residue test are campromised by a subject washing his hands before taking the test Moreover in light of defendant s admission that he washed his hands when he changed his clothes before leaving the trailer we also fail to see the significance Of C assertion that it is I1t 1 undisputed that he had no blood on his person when he encountered LeBlanc and the others on the Jarvis Bridge Defendant urther contends that the state failed to exclude the reasonabl hypothesis of innocence that the victims were murdered by someone who knew that Johnson was a drug dealer heard he was in town and attempted to rob him for or drugs and money his T argument is based on the fact that there was some testimony at trial indicating that Johnson was generally known to sell drugs when he visited Gibson several times a year as w as the fact that a large quantity of ll marijuana was found inside the trailer by the polic However we note that there 9 was no evidence that anyone was seen going into the trailer immediately prior to the s over shootin Mor Gardner noted in his testimony that there was only one series of shoe prints found at the very bloody scene and those were consistent with the tennis shoes found in the fz bedroom ont Defendant further sugg it is possible that Javonne Mosely who formerly sts dated Nicole Johnson LeBlanc girltriend could have killed th victims in a s jealous rage At trial there was testimony that a witness saw Mosely in the trailer park and spoke to him shortly before the murders There was alsa testimony that Mosely previously had exhibited violent behavior taward Ms Johnson including out shooting Hawever that incident was not provoked the windows of her truck by jealousy of LeBlanc since Ms Johnson testified it occurred before she was even dating LeBlanc Nor is there any suggestion as to why Mosely would have killed Johnson and Noble when LeBlanc was not even present at the trailer In any event the witness who testified to s Mos in the trailer park before the eing ly shootings admitted that she was on crack cocaine real bad as well as marijuana at the time that she puzportedly him saw Accoz the jury may have concluded her testimony was unreliable Following our thorough review of the record we are convinced the evidence supports the unanimous uilty verdicts the viewing evidence After hearing all of the testimony and including testimany as to the numerous inconsistent statements made by defendant the jury found defendant guilty of the instant offenses lying Se State v Captville 44 So 676 680 n La 1984 noting that 2d 4 has been recognized as indicative of an awareness of wrongdoing In frnding defendant guilty the jury clearly rejected his hypatheses that either th alous boyfriend j ex of LeBlanc girlfriend or someone seeking illegal drugs or s money committed the murd and accepted the state evidence establishing that rs s defendant was the person who shot and killed Johnson and Noble 10 The jury is free to accept or reject in whole or in part the tof any stimony witness An appellate court will not assess the credibility of witn or reweigh sses the evidence to overturn a jury determination of guilt State v Lofton 96 s 1429 La pp lst Cir 3 691 So 1365 1368 writ denied 97 24 La 97 27 2d 69 1 97 17 10 701 So 1331 2d As previously nated the guilty verdicts returned in this case indicate tha the juzy accepted the testimony of the state witnesses and rejected the defense hypotheses that someone oth rthan defendant killed the victims See State v Andrews 94 La App 1 st Cir S 655 So 0842 9S 5 2d 448 453 We cannot say that the jury determinatioan was irrational under the s facts and circumstances presented to it See Ordodi 946 So 2d at 662 An appellate court en by substituting its appreciation of the evidence and credibility s of witnesses for that of the jury and ther overturning a verdict on the basis of an by exculpatory hypothesis of innocence presented to and rationally rejected by the jury See State v Calloway 2007 La 1 1 So 417 418 422 2306 09 21 3d 23 per curiam Thus we are convinced that viewing all of the evidence in the light most favorable to the state any rational juror could have found beyond a asonable r doubt and to the exclusion of every reasonable hypothesis of innocence that def was guilty af two counts of second degree murder ndant This assignment o error lacks merit MOTION TO SUPPRESS In his second assignment of error defendant contends the trial court erred in denying his motian to suppress his initial oral statements to the police because he had not been advised of his Miranda rights at th time the statements were mad Specifically defendant complains that the trial court rr in finding that he was d not in custody when he made the statements Additionally he argues that the videotaped statement he subsequently made should also be suppressed because it 11 was not iven freely and voluntarily in view of the lengthy interrogation he was subjected to under coercive circumstances On the trial of a motion to suppress the burden is on the state to prove the admissibility of a purported confession or statement by the defendant La Cod Crim P art 703D Before a purported confession or inculpatory statement can be introduced into evidence La R 15 provides it must be affirmatively shown S 451 to be ree and voluntary and not made under the inf of fear duress uence intimidation menaces threats inducements or promises Further the state must show that an accus wha makes a statement or confession during custodial d interrogation was first advised of his Miranda rights State v Plain 99 La 1112 App lst Cir 2d 00 18 2 752 So 337 342 See also La Const art I l3 La Code Crim P art 218 1 Miranda warnings ar not required when the police perForm general questioning of citizens during the finding fact process following a crime Miranda v Arizona 384 U 436 477 86 S 1602 1629 16 L 694 S Ct 2d Ed 1966 State v 2d Ned 326 So 477 479 La 1976 The obligation to provide Miranda warnin attaches only when a person is questioned by the police after he s has been taken into custody or otherwise deprived ofhis freedom of action in any signifiicant way 2d So at 1073 Miranda 384 U at 444 8b S at 1612 Manning 885 S Ct Whether a person is in custody is decided by two distinct inquiries first an objective assessment of the circumstances surrounding the interrogation to determine whether there is a formal arrest or restraint on freedom of the degree associated with formal arrest and second an evaluation of how a reasonable person in the position ofthe interviewee would gauge the breadth of his freedom of action Manning 885 Sa at 10 2d 73 The admissibility of a confession is in the first instance a question for the txial court which must consider the totality of the circumstances in deciding 12 whether or not a s defendant statements are admissible See State v Hebert OOQ3 2008 La App 1st Cir S 991 So 40 4S writs denied 200 0 2 2d 1526 1687 2008 a 13 3d I 4 5 So 1S7 09 I61 When a trial court denies a motion to suppress factual and credibility determir should not be reversed in the ations absence of a clear abuse of the trial court discretion z unless such ruling is not s e supported by the evidence See State v Green 94 La 5 655 So 0887 95 22 2d However a trial court legal findings are subject to a de novo s 81 0 272 2 standard of review See State v Hunt 2009 1S89 La 12 2S So 746 09 1 3d 751 In the instant case the testimony presented at the motion to suppress hearing established the following facts After defendant was identified as a potential witness he was transported to the Terrebonne Parish Sheriff Office by a s detective Although one witness testif ed at trial that defendant was handcuffed when he was put in the car no other evidence was presented on this point In any event defendant arrived at the sheriff office at 2 p and was questioned by s 15 m Detectives Terry Daigre and Joey Quinn in an int room Defendant was not rview cansidered a suspect at that time and was not advised of his Miranda rights prior to the interview which lasted approximately one hour Defendant was then moved into the detective bur while Detective Daigre au interviewed other witnesses Detective Daigre testif ed that while he did not specifically tell defendant he was free to leave defendant was free to walk away I and would any way not have been stopp ed from doing so Defendant was not restr a ine d in Further although there were detectives present in the detective bureau ere tk is no indication that anyone was guarding defendant or pr him from nting v leaving Uetective Daigre explained that defendant was moved into the detective bureau which was a large room to give him a break from the atmosphez of the interview room 13 After Detective Daigre talked to detectives who had interviewed other witnesses inconsistencies were noted between defendant sstatements and those of the other witnesses According to Detective Daigre these inconsistencies as well as inconsistencies within defendant own stat caused the police to re s ment ard him for the tirst time as a suspect and a decision was made to advise him of his Miranda rights before further questioning Defendant was advised of those rights and signed a waiver form at 30 4 He m p was interviewed again for approximately one hour and was then noved back to the detective bureau Qver the course of the n several hours defendant was interviewed several xt times by Detectives Daigre and Thomas Cope the lead detective on the case None of the interviews lasted 2006 defendant gave between a interviewing more than an hour videotaped statement fendant d by At 12 a on March 17 19 m The detectives spent the intervals questioning additional witnesses and comparing notes with other detectives who also were interviewing witnesses The trial court denied defendant smotion to suppress both his pre Miranda oral statements and his Miranda post videotaped statement With respect to the Miranda pre statements defendant argues the trial court erred because the objective circumstances surrounding the statements indicate he was in custody at the time rthat he be advised of his Miranda rights before being quiring questioned In particular he notes that he was int by two detectives at the rrogated soffice which he alleges is an inherently coercive environm He further sheriff nt alleges he was interrogated far over two hours without being advised of his rights or the reasons for his det and was never advised he could leave Under such ntion circumstances he asserts no reasonable person would have believed he was free to go We find no error or abuse of discretion in the trial court conclusion that s s defendant initial oral statements were 14 admissible since the stat rebutted s laim defendant c that he was in custody at the time of the statements At the motion to suppress hearing Detective Daigre testified that defendant was not a suspect at the time of the initial interview At that point defendant was only one of several witnesses who were being interviewed by the police who were then in the preliminary stages of their homicide investigation Given the nature and scope of the investigation it was reasonable for the police to int the numerous rview witnesses at the sherif office rather than attempting to interview them on the s scene There is no requirement that Miranda warnings be given merely because a person is questioned at a police station See State v Thompson 399 So 1161 2d 11 bb La 19 1 Further the record does s support defendant claim that he was nat interrogated for two hours before being advised of his Miranda rights Althou h I defendant arrived at the shez office at 15 2 m p and was not advised of his Miranda rights until 4 p he was not questioned throughout this entire 30 m period Detective ly approximat one Daigre hour testified that the initial interview lasted for Moreover there was no indication that defendant requested that the questioning cease In sum the objective circumstances do not indicate that dwas under fendant arrest or that his freedom was und any significant restraint at the time of the r initial interview that he was He was not physically restrained nor was there any indication being guarded No one told him that he was under arrest or being detained nor was there any indication that he r that he be allowed to quested leave Defendant was one of numerous witn being questioned at the sheriff sses s office regarding the shooting of Johnson and Noble Detective Daigre testified that he would have allowed defendant to walk away at that point Considering the totality of the circumstances we find no error in the trial court conclusion that s defendant was not in custody at the time that he made his initial stat Hence ment 15 the state met its burden of showing that defendant soral statements were not given in violation of Miranda and were admissible We also fir no error or abuse of discretion in the trial court conclusion d s that defendant svideotaped statement which was given after he was advised of his Miranda rights was admissible Defendant argues this statement was not freely voluntarily and intelli made in view of the coercive conditions under which ently it was course given Specifically he alle h was subjected to interrogation over the es of eleven hours and was not advised of the reason for his detention In addition he claims it was unclear whether he was offered food during this lengthy period of time At the hearin on the motion to suppress Detective Daigre testified that he observed no threats or badgering of defendant during his videotaped interview He further testified that defendant did not appear tired or blurry eyed and never stated that he was hungry or tired Defendant also never requested a lawyer Moreover Detective Daigre indicated that defendant was offered food and drink as well as the opportunity to take bathroom breaks during the period that he was being questioned by the police Although Detective Daigre never specifically told defendant he was a suspect in Che shootings of Johnson and Noble he believed that fendant dknew he was being questioned with regard to these crimes Additionally Detective Cope testif ed at the suppression hearing that he advised defendant at some point that he was a susp in the shootings of Johnson ct and Noble He also indicat dthat it was normal practice in the sherif office to s offer sandwiches to a person being questioned over such a lengthy period of time Regarding the delay in taking defendant videotaped statement Detectiv Cope s explained that some of the delay was attributable to video equipment problems they were experiencing In denying the motian to suppress this statement the trial court stated 16 I don tthink the fact that it took so long was a planned event to try to break this individual They just had sa many witnesses they spoke to a while put him back somewhere There is nothing to contradict the fact that the normal procedure of the Terrebonne Parish s Sherif Office is to offer them food and drink Your client could him for have gotten up and testified specifically about that point only and he chose So the Court finds that th interview not to the audio interview of March l 7 at 12 a is admissible 19 m s The record supports the trial court determinations Though defendant was questioned several times over an eleven period he was never questioned for hour more than approximately one hour at a time During the breaks between interviews dwas taken out of the interview room and allowed to wait in fendant the larger detective bureau Additionally as noted by the trial court the state established a reasonable basis for the duration of defendant questioning other s than attempted coercion Moreover defendant was offered food drink and bathroom breaks during this period There was no indication that he appear tired d or hungry or requested that the questioning halt Thus the state met its burden of proving that defendant svideotaped statement was free and voluntary This assignment of error is without merit RIGHT TO CUNFRONTATION In his third assignment of error defendant argues his cor right to stitutional confrontation was violated when the trial court admitted a scientific analysis report into evidence over comparison analysis comp1aint his objection was not is directed at called the when as a the witness at analyst trial who by the performed state the s Defendant scientific analysis repor in which the analyst concluded that the pair o tennis shoes that was found in the front bedroom of the r trail could not be eliminated as a possible source of the multiple shoe impressions found at the crime scene The record reveals that the state filed a notice of intent to introduce a scienti fic analysis report re the comparison of the tennis shoes to the shoe arding impressions in November 2008 and attached a copy of the report to the notice as 17 required by who analyst La R S SOlA 15 made the Defendant did not request a subpoena of the comparison However when the state att to mpted introduce the report at trial on November 9 2009 defendant objected on the grounds that 1 there was no direct evidence linking defendant to the tennis shoes and 2 admission of the report when the analyst was not present for cross examination violated the 129 S Ct Diaz holding of Melendez 2d Ed 2527 174 L 314 2009 v Massachusetts S U The trial court overruled the objection and allowed the report to be admitt d In a criminal prosecution the accused has a constitutional right to be confronted with the witnesses against him U Const amend VI Hence th S Confrontation Clause bars admission of testimonial statements of a witness who did not appear at trial unless h was unavailabl to testify and the defendant had had a prior opportunity far cross examination Crawford v Washington S41 S U 36 53 124 S 1354 1365 158 L 177 2004 54 Ct 2d Ed In Melendez a case involving review of convictions for distribution of Diaz cocaine and trafficking in cocaine the prosecution relied upon certificates of analysis to establish that the substance hidden in the police car used to transport the def and ndant two other men contained cocaine As required under Massachusetts law the certificates were sworn to before a notary public by analysts at a state laboratary Melendez Diaz S U at 129 S at Ct 31 2530 The Court held that the c wer affidavits falling within the core rtificates class of testimonial statements subj to the Confrontation Clause and that the ct analysts were witnesses for purposes ofthe Sixth Amendment Melendez Diaz S U at 129 S at 2532 Ct ouisiana Revised Statutes 15 i 501 August 15 241 was amended by 201U La Acts No 693 l ef ective All referenc herein are to the statute as it existed prior to its amendrnent by es Act 693 18 However the Melende Court specii contrasted the statutory Diaz scheme in Massachus with the schemes created in other states by notice tts and demand statutes which require the prosecution to provide notice to th defendant of its intent to use an analyst report as evidence at trial and give a defendant a s period of time in which to object to the admission of the report absent the analyst s live appearance at trial S U Diaz endez Me at 129 S at 2541 Ct The Court reasoned hat notice statutes do not shift the burden demand and because tdefendant always has the burden of raising his Con Clause he rontation objection notice statutes simply govern the time within which he demand and must do so Diaz Melendez S U at 129 S at 2541 Additionally Ct the Court noted that it is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial and that there was no reason why a defendant could nat similarly be compelled Confrontation Clause rights before trial Melendez Diaz exercise to S U at 129 Ct S at 2541 In Louisiana La R 15 provides in pertinent part that S 499A All criminalistics laborataries established by laws of this state or by laws of the United States and all coroners forensic pathologists and other persons partnerships carporations and other legal entities practicing in fields of knowledge and expertise in the gathering examination and analysis of evidence by scientific means ar authorized to make proof of examination and analysis of physical evidence by the certificate of the person in charge of the facility in which such examination and analysis is made Louisiana Revised Statutes 15 provides in pertinent part that 500 In all criminal cases the courts o this state shall receive as evidenc any certificate made in accordance with R 15 subject S 499 to the conditions contained in this Section and R 15 1 S 5 The certificate shall be received in evidence as prima facie proof of th facts shown thereon At the time in question La R 1 S provided that S SOI A The party seeking to intraduce a certificate made in accordance with S R 499 15 shall not less 19 than ten days prior to his the commencement of the trial give written notice of intent to offer proof by certificate Such notice shall include a copy of the certificate 1 Th party against whom such certificate is offered shall be rmitted pe to subpoena on cross the person who examination or If the performed the examination analysis of the evidence subpoena is requested at least five days prior to the commencement o trial or the persan subpoenaed responds to th subpoena the B certificate shall not be prima facie proof of its contents or of proper custody 2 When the attorney for the def or the defendant acting endant in his own defens requ that a subpoena issue to the person who sts performed the exaixiitlation or analysis the request shall be in writing and shall contain a certification that the attorney or the defendant intends in good faith to conduct the cross examination In State v Cunningham 2004 La 6 943 So 1110 1122 2200 OS 13 2d the Louisiana Supre Court upheld the constitutionality of the notice and ne demand scheme set forth in La R 15 S 499 501 against claims that it violated a s defendant right to confrontation and impermissibly shifted the burden of proof to the defendant In reaching this conclusion the Supreme Court noted in particular that if a defendant requests a subpo at least five days prior to trial for the person na who performed the analysis of the evidence or if the person responds to the subpoena the certificate is not prima faci proof of its contents or proper custody has no evidentiary value and the state is required to call the relevant witness to prove its case Cunningham 9p3 So at 1121 2d Furthermore in State v Beauchamp 0451 2010 La App 1 st Cir 10 10 9 49 So 5 this Court rejected the same argument made in this case that 3d the prosecution use of a scientific analysis report at trial violated Melendez s Diaz As in the instant case the state in Seauchamp filed proper notice of its intent to use the report in accordance with La R 15 The defense did not S SOlA subpoena the analyst but objected when the state moved to introduce the report at trial Th trial court allowed the admission of the report 4n appeal this Court concluded that the defendant right to confrontation s was not violated stating that 20 Admission of the scientif c analysis report into evid at trial did nce taot violate Mel and thus the State presented sufficient Diaz ndez evidence that the substance the defendant distributed was cocaine Louisiana Revised Statutes 15 is precis the kind of notice 501 ly demand and statute that the court in Melendez recognized to be Diaz permissible under the Confrontation Clause The Louisiana statutory S 499 scheme La R 5 et seq merely requires a defendant to exercise his Confrontation Clause rights prior to trial If the defendant had made a timely request for the issuance of a subpoena for the person who perfoz the analysis the certificate would not have en b admissible into evidence in lieu af such testimony It would have been incumbent upon the State to procure the attendance of the person makin the certificate at trial and to offer that testimony to establish the results of the examination See State v Landry S 3 2d So 911 9l 2 La 1 st Cir 914 App 1991 Beauchamp 49 So at 8 3d 13ased on the rationale stated in Cunningham and Beauchamp we tind that s defendant right to confrontation was not violated in this case Defendant was given proper notice of the state intent to introduce the report in question almost a s year prior to trial Nevertheless defendant failed to properly exercise his Controntation Clause rights by filing a timely request to subpoena the analyst who performed the comparison as he was required to do by La R 1 S S SOIB Under these circumstances th report was properly admitted This assignment oerror is without merit DAUBERT In his fourth assignment of errar def asserts that the trial court erred ndant in accepting Ross Gardner as an expert in the fields of crime scene analysis and bloodstain pattern analysis under the standard of Daubert v Merrell Dow ln support ol his argument that his right to confrontation was violated defendant cites State v Simmons 2010 La App 4th Cir 5 l 67 So 525 and Sullcomin v New 1508 i 18 3d Mexico S LJ 131 S 27US 180 L 610 201 1 In Simmons the Fc Ct 2d Ed urth Circuit disagreed with thc rationale expressed by this Court in Beauchamp and held that the Supreme Court decision in Melendez cc a conclusion that the statutory notice s Diaz mpelled andTdemand scherne of La R 15 S 499 SO1 violated the Confrontation Clause For the reasons stated in Beaucha we disagre with this interpretation of Melendez We particularly np Diaz note that the Suprerne Court in Melendez specifically distinguished notice iaz i demand and statutes such as that pravided by La R 15 trom the Massachusetts statutory scheme S 499 501 that was found to be violative of the Confrontation Clause Moreover in Bulleaming the Supreme Court again indicated that notice statutes do not violate a defiendant right demand and s to confrontation because they typically render an otherwise hearsay forensic report admissible while preserving a defendant ht to require the prosecution to call the analyst as a witness at sri Hullcorning S U T trial See 131 S at 2718 Ct 21 Pharmaceuticals Inc Sp9 U 579 113 S 2786 125 L 449 1993 S Ct 2d Ed Specifically he complains that the reliability of the methodology emplayed by Gardner was not propErly assess dand that Gardner failed to substantiate that the testing he undertook in arriving at his conclusions in this case was anything oth r than junk science Additionally defendant contends that although an associate in Gardner firm reviewed his conclusions such review was not the peer review s contemplated by Daubert The admissibility of expert testimony is govern by La Code Evid art d 702 which provides that If sci technical or other specialized knowledge ntific will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowled skill experience training or education may testify thereto in the form af an opinion or otherwise Since a determination regarding the competency of a witness is a question of fact a trial s court ruling on the qualifications of an expert witness will not be disturbed on appeal absent an abuse of discretian See State v Young 2009 La 4 1177 l0 5 3S So 3d 1042 1046 cert denied S U 131 S 597 178 L Ct 2d Ed i 434 2010 In State v Foret 628 So 1116 La 1993 the Louisiana Supreme Court 2d adopted the test s fortk in Daubert for determining the admissibility of expert t testimony under Article 702 Under th Daubert standard the trial court acts in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only r but reliable Young 35 So at 1047 To assist trial levant 3d courts in addressing the reliability issu the Daubert court delineated the following non factors to be considered in determining the admissibility exclusive of expert testimony 1 whether the theory ar 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 22 rate of error and 4 whether the methodology is generally accepted by the relevant scientific community Daubert 509 U S at Ct 94 592 113 S at 2796 97 Further the Daubert analysis is applicable to all expert testimony including that bas on technical and other d specialized knowledge and not just to scientific testimony Kumho Tire Company Ltd v Carmichael 526 U 137 141 119 S 11G7 1171 143 S Ct 2d Ed L 238 1999 Young 35 So at 1047 While the trial court may consider 3d one or more of the four Daubert factors in determining admissibility the test for xible reliability is fl and the specific factors listed neither necessarily nor exclusively apply to all experts or in every case Rather a trial court is accorded the same broad latitude in deciding how to determine reliability as it enjoys with respect to its ultimate reliability determination Kumho Tire 526 U at 141 S 42 119 S at 1171 Ct Following a Daubert hearing the trial caurt rul that the criteria oF d Daubert were met in the instant case and that the methodology employed by Gardner was generally accepted by the scientitic cornmunity We fnd no error in this conclusion Gardner testified at the Daubert hearing that the theories and methodologies utilized in crime scene analysis and bloodstain pattern analysis sometimes referred to as blood spatter analysis are well have been d establish subjected to testing and peer review and are gerterally accepted in the scientif c community With respect to bloodstain pattern analysis we note that the Louisiana Supreme Court as well as oth courts of this state has specifically upheld the r admissibility of expert testimony as to blood spatter analysis See Manning 885 2d So at 1 p State v Allen 41 La App 2d Cir 11 1 S 942 So 89 548 Ob 2d 1244 1255 writ denied 2007 La 12 969 So 619 State v 56 0530 07 7 2d Young 95 La App 3d Cir 10 b63 So 301 302 402 9S 4 2d 03 In the present case Gardner testified that he has an associate degree in po lice sc i n ce a bachelor s de in criminal justice and a master s degree in ree 23 computer and information systems As a member of the military police he conducted supervised and evaluated felony criminal investigations for nineteen or Upon his retirement from the military he served as chief of police for a years small suburban police depar ment in Geargia for four years He stated that over the years he has attended numerous specialized seminars and courses related to crime scene investigations and bloodstain pattern analysis Further Gardner is a member of several professional organizations ermane to the fields of crime scene investigation and bloodstain pattern analysis and has written numerous journal articles relating to these areas He also has either authored or co three books related to crime scene investigation and authored bloodstain scene pattern analysis investigation and For the past fifteen years Gardner has taught crime bloodstain pattern analysis to police organizations throughout the United States as well as to several foreign law enforcement agencies level He has also taught these subjects as ata adjunct professor at the college Although Gardner has never previously been accepted as an expert by a Louisiana court he has be accepted as an expert in crime scene analysis and n bloodstain pattern analysis in the courts of approximat fifteen to twenty states ly as well as in federal courts ndant Def complains that the trial court erred in accepting Gardner as an expert becaus he did not conduct any physical experiment and his conclusions were nat subj to peer review other than by an associate at his own consulting cted firm These arguments lack merit as do defendant remaining arguments s s regarding the reliability of Gardner methodology Gardner testified that he did not conduct any physical experiments but explained that his analysis involved a mental process which he referred to as a experiment that involved thought applying known concepts and principles to the crime scene Moreover as previously noted not all o the factors listed in Daubert are applicable to every 24 type of expert in every case and a trial court is accorded broad latitude in deciding how to determine reliability See Kumho Tire 52f U at 141 119 S at S 42 Ct l l 71 Given the testimony presented especially the testimony regarding Gardner s extensive training and experience defendant failed to show that the trial court erred or abused its discr when it qualified him as an expert in the fields of tion crime scene analysis and bloodstain pattern analysis Moreover the trial court instructed the jury as follows regarding opinion evidence from an expert You should cor rany expert opinion received into evidence in this sid case and give it such weight you may think it deserves as If you should decide that the opinion of an expert witness is not based upon sufficient education and experience or if you should conclude that the reasons given in support of the opinion are not sound or if you feel that it is outwei by other evidence you may disregard the opinion hed entirely Additionally Gardner was subject to extensiv cross by th defense examination concerning both his qualifications and the conclusions he drew from his analysis of the crime scene and blaodstain patterns Given the circumstances defendant failed to show the likelihood of any prejudice resulting from the trial court acceptance s of Gardner as an expert witness Se Manning 85 So at 10 2d 9 This assignm error lacks merit ntof BATSON CHALLENGE n his fifth assignment of error defendant contends the trial court erred in overruling his objection to the state use of a peremptory strike to exclude a s prospective juror Bradley Lewis on the basis ofrace Under Batson v Kentucky 476 U 79 106 S 1712 90 L 69 S Ct 2d Ed 6 19 an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a s person race See also La Code Crim P art 795 If the defendant makes a prima facie showing E C of discriminatory strikes the burden shifts ta the state to offer racially neutral zs explanations for the challenged members The race explanation must be neutral one which is clear reasonable specific legitimate and related to the particular case at bar If a race explanation is tendered the trial court must decide in utral n step three of the Batson analysis whether the defendant has proven purposeful discrimination On appeal the trial court evaluation af discriminatory intent is s entitled to great deference and will not be revers dunless clearly erroneous State v Elie 200S La 7936 So 791 795 1Sfi9 06 10 2d Additionally the Batson explanation offered by the state does not need to be persuasive and unless a discriminatory intent is inherent in the explanation the reason offered will be deemed race neutral The ultimate burden of persuasion remains on the party raising the challenge ta prove purposeful discrimination Elie 936 So at 795 2d 96 In the instant case the twelve jury and three alternate jurors were person selected from two panels of prospective jurors Pursuant to questioning by defense counsel the race of each member of the first panel was put on the record but the record does not indicate the races of all the members of the second panel During voir dire of the first panel the prosecution exercised five peremptory challenges to exclude prospective jurors who were Caucasian 3 Indian 1 and racial half bi one white and one half Indian 1 The only African American prospective juror on the tirst panel Monchel Rockward was accepted by the prosecution without objection When the prosecutian exercised its sixth peremptory challenge on Lewis an rican Am African member of the second panel the defense objected under Batson The trial court requested a race explanation for th peremptory neutral challenge of Lewis without first making a finding of whether defendant had made a prima facie showing of purposeful racial discrimination Therefore the issue of he 1 3 record indicates the jury consisted of six Caucasians two African and one Americans ndian the record contains no indication of the races of the remaining three jurars 26 whether the defense established a prima facze case of discrimination is moot See Green 655 So at 28 Accordingly our analysis begins with Batson second 2d s step in which any reason offered by the prosecution will qualify as race neutral unless a discriminatory intent is inherent in the s prosecutor explanation Elie 936 So at 795 2d In responding to defendant Batson challenge the prosecutor noted that the s state had accepted both of the only other African proposed as jurors Americans Ms Rochward and Melissa Scott a member of the second panel He then explained that he had excluded Lewis because he had been unemployed for six months and the prosecutor felt there must be a reason why because he did not understand employment why an bodied able young man could not find any form of The trial court overruled the defense obj to the peremptory ction nge chall of Lewis apparently finding that the prosecutor had articulated a race neutral reason for the challenge The defense noted its obj to the trial court ction s ruling On appeal defendant argues that there was no clear difference betw en Lewis unemployed status and that of Benji LeCompte a Caucasian who was selected for the jury The record reveals that Lewis was a thirty male old year two with an grade eleventh education who had been mployed un for six months He previously had been employed for eighteen months with the Terrebonne Parish Drainage Department He was not a homeowner Lecompte was a twenty eight old year man with four years of college who was only recently unemployed LeCompte previously had been employed for two and one years in the half warehous of an offshore company and stated he planned on returning to college e owned his own home Contrary to def contention the record establishes that a difference s ndant existed between th unemployment status of Lewis who had been unemployed for z j six manths and LeCompte who was recently unemployed and planning to r turn to college In any event the fact that a prosecutor excuses one person with a particular characteristic and not another similarly situated person does not in itself show that the prosecutor explanation was a mere pretext for discrimination The s accepted juror may have exhibited other traits that the prosecutor could hav reasonably believed would make him desirable as a juror despite the characteristic shared with the excus person State v Collier 553 So 815 822 La 1989 d 2d Further the trial court plays a unique role in the dynamics of a voir dire since it observes firsthand the demeanor of the attorneys and venir the persons nuances of questions asked the racial composition of the venire and the general atmosphere of th voir dire that simply cannot be replicated from a cold transcript State v Myers 99 La 4 00 761 So 498 502 Based on our revi 03 1 11 2d w w conclude that the trial s court finding that the state did not possess discriminatory intent in exercising the peremptory challenge against Lewis was not clearly erroneous This assignment of rror is without merit REBUTTAL ARGUMENT In his sixth assignment of error defendant argues the trial court erred in denying his motion for mistrial based on prejudicial r made by the marks prosecutor during rebuttal ar ument During rebuttal ar the prosecutor made the following remarks ument Because if this defendant if you think he is not guilty what you are saying is you want a videotape That what you ar saying s Between hidden camera shows and reality T and C ar all of V I Sd that you knaw we are building a culture wh we re are saying I got to see it 1 want to see a videotape of that Well if you want every about to go up Okay crime All videotaped get ready right your taxes are because then we don need jurors t we will just plug it in somewhere and we will have people that watch V T and be wonder professional jurors You are here for a reason You why you got picked on this jury You wonder why we are 28 I scratching our heads and doing this and doing all of that Because you are a cross of our community Look at you section Defense counsel objected and moved far a mistrial on the grounds that the s prosecutor remarks were inflammatory and highly prejudicial He argued that the prosecutor sremarks suggested to the jurors that they should overlook the lack of evidence unless they were prepared to pay higher taxes in order to obtain better evidence The trial court denied the motion for mistrial Defense counsel did not request an admonition Under La Gode Crim P art 771 a mistrial may be granted if prejudicial remarks are made by the prosecutor and the trial court is satisfied that an admonition not sufficient to assure the defendant a fair trial See State v Miles 2396 98 La App 1 st Cir 6739 So 901 904 writ denied 99 La 99 2S 2d 2249 00 28 1 7S3 So 231 See also La Code Crim P art 775 However a mistrial 2d is a drastic remedy that should b granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial Further the determination of whether a mistrial is warranted rests within the sound discretion of the tria court and the denial of a motion for mistrial will not be disturb don appeal absent an abuse of that discretion State v Serry 9S 1610 La App 1 st Cir 11 684 So 439 449 writ denied 97 La 96 8 2d 0278 97 10 703 So 6p3 2d Under La Code Crim P art 774 closing arguments in criminal cases are limited to the evidence admitted the lack of evid and conclusions of fact that nce may be drawn therefrom A prosecutor should refrain from argument that tends to divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making pr of the consequences of the jury verdict State v Messer 40 dictions s 2d So 1354 1356 La 19 2 The nt argum shall 29 not appeal to prejudice The s state rebuttal shall be confined to answering the argument of the defendant La Code Crim P art 774 However prosecutors have wide latitude in choosin closing argument tactics State v Casey 99 La 1 775 So 1022 1036 cert denied 0023 00 2 2d 531 S U 840 l21 S 104 14 L 62 Ct 2d Ed 200Q Moreover even if the prosecutor exceeds the bounds of proper argument a reviewing court will not reverse a conviction unless thoroughly convinced that the argument influenced the jury and contributed to the verdict Casey 775 So 2d at 1036 Much credit should be accorded to the good sense and fair ojurors who have seen mindedness the evadence heard the argument and been instructed by the trial court that arguments of counsel are not evidence and that they should not be influenced by sympathy passion prejudice or public opinion See State v Bell 477 So 759 2d 7b8 La App 1st Cir 19 5writ denied 481 So 629 La 1986 2d A prosecutor spredictions as to the consequences of a not verdict or guilty the societal costs of such a result are clearly improper and should be avoided State v Barrow 410 So l 070 1475 La cert denied 459 U 852 103 S 2d S Ct 2d Ed 115 74 L 101 l 982 However in the instant case the prosecutor was merely attempting on rebuttal to address the defense argument that the evidence s was insufficient by pointing out that the jurors should not have unrealistic expectations regarding the evidence presented as a result of watching criminal forensic programs popular in the m dia The prosecutor did not suggest that the jurors taxes would increase if they found defendant not guilty Nor did he suggest that the burden of proof rof the state was less than proof beyond a quired reasonable doubt Considerin the totality of the circumstances s prosecutor remarks did not constitute improper we argument conclude that the Further even if the remarks were improper they were not of such a pr nature especially judicial 30 considered in light of the jury instructions given as to have influenced the jury or contributed to the guilty verdicts The trial court did not err in denying the motion for mistrial See La Code Crim P art 921 This assignment of error lacks merit CONVXCTIONS AND SENTENCES AFFIRMED 31
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