State Of Louisiana VS Patrick Jerome Williams
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 KA 1844 STATE OF LOUISIANA VERSUS Y PATRICK JEROME WILLIAMS Judgment Rendered f 2 3 2012 On Appeal from the 21stJudicial District Court In and For the Parish of Tangipahoa Trial Court No 703180 The Honorable Ernest G Drake Jr Judge Presiding tt 5 M Pemlloux Counsel for Appellee trict xAttorney I State of Louisiana Natricia Parker Amos Assistant District Attomey Amite Louisiana Rodney Baum Baton Rouge Louisiana J Counsel for Defendant Appellant Patrick Jerome Williams BEFORE GAIDRY McDONALD AND HUGHES JJ HUGHES J The defendant Patrick Jerome Williams was charged by grand jury indictment with one count of second degree murder of Darren Williams a violation of LSA 14 L S R 30 defendant convicted was as He pled not guilty Following a jury trial the The defendant was charged sentenced to life imprisonment at hard labor to be served without benefit of parole probation or suspension of sentence The defendant now appeals urging the following assignments of error The trial court erred by denying defense counsel challenges s l for cause of potential juror Gerard LeBlanc during voir dire and by improperly granting the State for cause challenges of potential jurors s Lakesheila Dickerson and Karen Cannino The trial court erred by allowing the State to recall its witness 2 case agent Lieutenant Jerry McDowell to the stand during its case in chief The trial court ened by allowing the State to play the recorded statement of its witness Krissa Donaldson during the trial 3 4 The court erred by not granting the defendanYs motion for mistrial after two or more jurors were allowed to see the defendant while he was in handcuffs being escorted by a sheriff sdeputy 5 the The defendant was denied his right to due process of law under Fifth and Fourteenth Amendments to the United States Constitution and Article 1 2 of the Louisiana Constitution as there was insufficient evidence to support his conviction 6 Due to error under LSA art 920 the defendant P G C 2 s conviction and sentence should be reversed or For the reasons set forth below we affirm the defendant conviction and s sentence BACKGROUND On September 22 2007 the victim was found lying face down on Towers Road in Ponchatoula He had a single gunshot wound to his right temporal scalp and superficial abrasions to his head and lower extremities A motorist who was The defendant is not related to the victim 2 traveling on Towers Road at approximately 1 p and again shortly after 2 50 m m p called 911 at 2 p and reported seeing a motionless body lying face 15 m down on Towers Road Police and emergency medical personnel responded to the scene within minutes of the call The victim had a very weak pulse and was unresponsive and not breathing Emergency personnel transported him to a local hospital Shortly after arriving at the hospital the emergency room physician pronounced the victim dead Later the victim was identified as Darren Williams Lieutenant Jerry McDowell of the Ponchatoula Police Department headed the investigation in this matter The officers at the scene immediately noticed the victim was wearing socks but no shoes Police searched the area but did not find any shoes An autopsy conducted the next day revealed that the abrasions found on the right side of the victim body were road rash injuries caused by the victim s being dragged over the road surface The autopsy also revealed the victim s s road rash injuries occurred while he was alive and close in time to the gunshot injury Because the victim had road rash injuries to his feet the pathologist who conducted the autopsy surmised the victim did not have shoes on when he received the road rash injuries Police immediately began to receive information that quickly moved the investigation forward Lt McDowell learned from the victim close friend and s roommate Greg Jones Jr that the victim was driving Greg black Dodge s Charger that day and the victim always carried his cell phone with him and never let anyone borrow it Greg informed Lt McDowell that the victim had not answered any of his calls from Greg the afternoon of the murder Hoping to locate the victim missing cell phone Lt McDowell requested the victim cell phone s s records for the day of the murder 3 Greg also provided Lt McDowell with information about the victim s ssing mshoes Although he did not know what shoes the victim was wearing that day he informed Lt McDowell that he and the victim wore the same sized shoes and they frequently shared shoes Greg searched the apartment and discovered the only shoes missing were a pair of his own high top Air Jordan shoes Greg told Lt McDowell that the victim must have been wearing his Air Jordan shoes the day he was murdered He gave Lt McDowell a post card showing the different style of Air Jordan shoes and he circled the style of his missing shoes He also gave Lt McDowell a detailed description ofthe color of his missing Air Jordan shoes One day into the investigation Lt McDowell obtained the names of three individuals who lived in the Towers Road area who might have information about the crime Subsequently he interviewed a person named Donnie McKay and ruled him out as a suspect On the day after the murder Lt McDowell interviewed two cousins Keno Walker and Charlton Walker He learned that the victim had been with the Walker cousins and the defendant the day of the murder Keno Walker lived with the Walker cousins grandmother in a residence on Murray Road and Charlton Walker lived with his mother and an aunt three houses away on a street off of Murray Road The victim also lived in the Murray Road area Towers Road is less than three minutes in driving time from the Walker cousins homes The Walker cousins told Lt McDowell on the day of the murder the victim picked up Charlton and they drove to Keno house They decided to go to a nearby s neighborhood stand to buy a pack of cigarettes As they were getting ready to ave lr the defendant stopped by and decided to go with them to buy the cigarettes Before they could leave the Walker cousins grandmother told Keno and Charlton to get out of the car Keno got out of the car right away Charlton rode with the victim and the defendant the short distance to Charlton shouse and got out there The Walker cousins lmew the vicfvn by the nickname Ali They referred to the victim by that nickname when they testified at trial 4 Charlton told Lt McDowell that when the victim and the defendant drove away they were alone in the car Less than five minutes after they drove away Charlton and his aunt heard a loud boom that his aunt thought was a gunshot The Walker usins c told Lt McDowell these events occuned somewhere between 1 p 00 m and 2 p 00 m Subsequently Lt McDowell located the defendant Initially the defendant denied being with the Walker cousins and the victim that day When Lt McDowell told the defendant that he had spoken to the Walker cousins the defendant admitted to being in the car with the victim but said he got out of the car with Keno The police found the missing Dodge Charger three days after the murder The police were able to lift eight latent fingerprints from the vehicle However due to the poor quality of the lifted prints the police were unable to match the prints to anyone Inside the car the police found marijuana a Taco Bell receipt aco Bell cup and food wrappers and two other empty beverage containers They also found an empty pack of cigarettes on the ground near the vehicle The Taco Bell receipt was dated the day of the murder and showed a purchase was made at 1 p Lt McDowell traced the receipt to a Taco Bell on 33 m Thomas Street in Hammond which was less than ten minutes away from the Towers Murray Road Road area Lt McDowell spoke to a cashier who remembered seeing the victim that day The victim was driving the black Dodge ger Chaz and there were two black male passengers with him one in the front passenger seat and the other in the back seat The cashier did not recognize the passengers and she was unable to identify the passengers from a photographic lineup that included a picture of the defendant When Lt McDowell received the victim cell phone recards for the day of s the murder the records showed the victim spoke with his friend Shawna Henry at 5 36 m 12 p Ms Henry testified the victim said he was going to check on a pending employment application that afternoon and would stop by her house afterwards When she did not hear back from him she called his cell phone at 2 p but 27 m the victim did not answer Ms Henry testified that the victim always answered his ll c phone and did not lend his cell phone to anyone The victim cell phone s rcords also showed that Greg unanswered calls were made at 2 p and s 22 m again at 2 p 23 m After the victim was shot his cell phone was used to make numerous outgoing calls to several different phone numbers Subpoenas were issued to the service providers for the phone records of the numbers called From these phone records Lt McDowell was ultimately able to establish the defendant used the s victim cell phone to call his father Jerry Williams and three friends Krissa Lonaldson Herman Jackson and William Young The calls began at 2 p which was just eight minutes after the motorist 23 m made the 911 call Herman Jackson and William Young testified that the efendant called several times from a number they did not recognize asking for a ride Mr Jackson and Mr Young were unable to give the defendant a ride Mr Jackson did not have access to a car and Mr Young girlfriend had his car Mr s Jackson testified that the defendant sounded like something was wrong Mr Young testified that the defendant called right back to see if the car had been returned On October 1 2007 Lt McDowell and Detective Barry Tullier of the Ascension Parish Sheriff Office conducted a recorded interview with Krissa s Donaldson In the recorded interview Ms Donaldson described her phone conversations with the defendant According to Ms Donaldson the defendant said h messed up again he was in trouble and he shot someone who tried to rob him The defendant said he took that person drugs so he could sell them and that s 6 he had hidden some items under the steps of his grandmother home s The defendant wanted Ms Donaldson to call his father and tell him to get rid of these items The police also seized three letters the defendant wrote to Ms Donaldson from jail In a letter postmarked December 12 2008 the defendant told Ms Donaldson that he did not want her to come to court because nothing good gone sia come out of it In January of 2009 the defendant wrote two more letters to 4s 1 Donaldson In a January 5 20091etter he wrote I know you want to see me at court But I got sic my reason why I don twant you to bee sic there Tn the last letter he wrote Iwill bee getting out if you dodt come to court sic At trial Krissa Donaldson said she could not remember what the defendant said during the phone calls or even when the calls were made She also claimed she could not remember what she may have told the officers during the October l 2007 recorded interview Over the defense objection Ms Donaldson recorded s s view inte was played in court The three letters the defendant wrote to Ms Donaldson were also introduced into evidence Later in the investigation Lt McDowell seized a pair of Air Jordan shoes from the defendant that matched the description given by Greg Jones DNA swabs were taken from the shoes and from the defendant Keno Walker and Charlton Walker The DNA from the shoes revealed a mixture of DNA from at least three people The DNA analyst was unable to exclude the defendant from the profile At trial Greg Jones identified the shoes seized from the defendant as his missing pair of Air Jordan shoes Keno and Charlton Walker established the victim was wearing shoes that day During the presentation of the defense the defendant father and Ms s ialdson Do testified The defendant also testified on his own behalf Ms enaldson Ltestified she made the statements in her recarded interview because Lt 7 McDowell and Det Tullier said she would go to jail if she did not tell them something She also clarified that the defendant never said he murdered someone The testimony from the defendant father and the defendant attempted to s establish that the shoes Lt McDowell seized from the defendant were actually the s defendant own pair of Air Jordan shoes The defendant said he called his father from jail and asked his father to bring the Air Jordan shoes to him According to the defendant he bought the Air Jordan shoes from a store in Hammond the week befare the victim was killed The prosecutor asked the defendant why he did not duce p the receipt for the shoes to the police The defendant explained that he could not produce a receipt from the store because he was arrested the day after the murder on an assault with a fireann charge and has been in jail since that arrest When asked why he did not ask his parents to get a copy of the receipt the defendant said he did not discuss the matter with his parents The defendant father testified that Keno Walker brought the Air Jordan s shoes to his house the day after the murder According to the defendant father s Keno said he borrowed the Air Jordan shoes from the defendant and wanted to Y return them The defendant father brought the shoes to the jail because his son s w wearing house slippers when he was arrested and he thought his son could use th shoes When asked why he did not give this information to the police the sfather simply replied Why should I clefendant At trial the defendant gave his own account of the events that happened on the day Danen Williams was murdered In the defendant version he Keno and s the victim were in the car at the neighborhood stand when it began to rain According to the defendant the stand was closed and they left After they left the victim dropped Keno off at his home and offered to take the defendant to his s grandmother home The defendant got out of the car three blocks from his 8 s andmother ghouse He testified that he amved at his grandmother house s between noon and 12 p 20 m The defendant offered an explanation as to why he had possession of the s victim cell phone The defendant explained that he was using one ofhis father s cell phones that day According to the defendant when he got into the Dodge Charger he placed his father cell phone on the front console next to the victim s s cell phone When the victim dropped him off near his grandmother shouse the defendant said he accidentally grabbed the victim cell phone instead of the cell s phane his father let him use Notably the defendant stestimony placed him in possession of the victim s il G phone somewhere between noon and 12 p However the victim cell 20 m s phone records and Ms Henry testimony established the victim used his cell s phone at 12 p when he spoke with Ms Henry During the State case 36 m s in chief Keno and Charlton Walker testified they did not recall seeing the defendant use a cell phone that day Charlton Walker said the defendant always used sor Keno Charlton scell phone if he needed to make a call The defendant aiso provided an explanation as to why he used the victim s cell phone to make outgoing calls but did not answer any incoming calls The ndant def said he did not answer the incoming calls because he did not recognize tnumbers The defendant further explained that his father gets calls concerning bs jr on his cell phones According to the defendant his father had been getting a lot of calls about jobs and the defendant thought that the incoming calls from the unknown numbers pertained to his father work He did not answer because he s did not want to mess it up Lastly the defendant explained why he called Mr Young and Mr Jackson asking for a ride The defendant said he wanted a ride to the store to buy a pack of cigarettes He called so many times because everyone was busy 9 DISCUSSION ASSIGNMENT OF ERROR NUMBER FIVE In cases such as this one where the defendant raises issues on appeal both as to the sufficiency ofthe evidence and as to one or more trial errors the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal When the entirety of the evidence both admissible and inadmissible is sufficient to support the conviction the accused is not entitled to an acquittal and the reviewing court must review the assignments of trial error to determine whether the accused is entitled to a new trial State v Hearold 603 So 731 734 La 1992 Accordingly we proceed 2d first to determine whether the entirery of the evidence both admissible and dmissible i was sufficient to support a conviction of second degree murder In his fifth assignment of error the defendant urges he was convicted on circumstantial evidence that clearly left room for reasonable doubt as to key s elements of the State case against him Specifically he contends that the circumstantial evidence was insufficient to prove that he shot and killed Darren Williams or that he had the requisite specific intent In addition he asserts the evidence presented did not exclude every reasonable hypothesis of innocence He argues that the State failed to establish a consistent timeline of events that placed him alone with the victim immediately prior to the murder He further argues that it was just as reasonable to infer from the trial testimony that the shoes seized from bia were his own shoes that he accidentally took the victim cell phone instead s i r his father cell phone when he got out of the car and that someone other than s the defendant was responsible for the murder Lastly the defendant asserts that the recorded interview given by Krissa Donaldson did not establish his confession to the crime In this regard he argues the statements Krissa Donaldson attributed to him did not specifically mention the 10 name of the person the defendant supposedly admitted to shooting3 Considering the defendant testified at trial that he was arrested the day after the instant offense on an unrelated assault with a firearm charge he urges that it is reasonable to infer the defendant was referring to the unrelated charge At best the defendant suggests the evidence merely establishes he was alone with the victim in the Dodge Charger at some point on the day of the murder The standard of review far the sufficiency of evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution a rational trier of fact could conclude that the State proved the essential elements of the crime and the defendant identity as the perpetrator s beyond a reasonable doubt LSA art 821 State v Johnson 461 So P Cr C 2d 673 674 La App lst Cir 1984 The Jackson v Virginia 443 U 307 99 S rt S 2781 61 L560 1979 standard of review incorporated in Article 821 2d Ed i an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence La S 438 R 15 provides the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence State v Patorno 2001 La App 2585 lst Cir 6 822 So 141 144 02 21 2d The applicable definition of second degree murder in the instant case is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm or when the offender is engaged in the perpetration of armed robbery first degree robbery second degree robbery simple robbery even though the offender has no intent to kill or inflict great bodily harm LSA F 14 2 Specific criminal intent is the state of mind which exists A 1 30 when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act S 1 R 10 LSA 14 3 The admissibility of Ms Donaldson recorded interview is addressed in the defendanYs third s assigunent of error 11 Specific intent may be proved by direct evidence such as statements by the defendant ar by inference from circumstantial evidence such as the defendant s 2ions a or facts depicting the circumstances State v Cummings 99 La 3000 App lst Cir 11 771 So 874 876 In addirion specific intent to kill may 00 3 2d F inferred from a defendant act of pointing a gun and firing at a person See s ate v Burns 98 La App l st Cir 2 734 So 693 695 writ 0602 99 19 2d denied 99 La 9 747 So 1114 0829 99 24 2d At trial the evidence established the victim was shot and left on Towers Road between 1 p and 2 p Keno Walker and Charlton Walker placed 50 m 15 m the defendant alone with the victim in the Towers Road Road area Murray immediately prior to the window of time in which the victim was shot The place where the victim was left on Towers Road was less than five minutes from the Walker cousins residences Charlton Walker and his aunt heard a loud boom eved bel to be a gunshot less than five minutes after the victim and the defendant drnve away in the Dodge Charger On appeal the defendant claims the testimony from Keno Walker and Charlton Walker does not establish a consistent timeline placing him alone with the victim during the window of time when the victim was shot At trial even when pressed for an answer Keno and Charlton Walker could not recall the exact time they decided to leave to buy the cigarettes However Charlton clearly remembered it was not sunny that day and it started to rain a few minutes before they decided to go buy the cigarettes When pressed by the defense as to the accurate time Charlton answered I couldn really remember the time right now t but I remember sic the time during that day On the day after the murder the clker cousins told Lt McDowell the events occurred between 1 p and 2 00 m m p 12 The weather conditions in the Towers Road Road area also played a Murray role in establishing a timeline that placed the defendant alone with the victim immediately prior to the crime Charlton Walker said it had just started to rain when they decided to drive to the stand to buy the cigarettes The defendant s testimony also placed him in the Dodge Charger with the victim when it began to rair The motorist who called 911 testified that it started raining when she began i h return trip on Towers Road shortly after 2 p Because of the rain she did not m rcalize the object in the road was a body until she got close to it Lt McDowell testified that it had just started to rain around 2 p He remembered the time m because he had just finished officiating a football game when it began to rain and he received the call about the murder after he left the field The evidence at trial also established the defendant robbed the victim of his cell phone and shoes As previously noted the evidence established the defendant was the last person seen with the victim immediately before the murder Lt McDowell seized the missing Air Jordan shoes from the defendant The victim s roommate identified the Air Jordan shoes seized as his missing pair of Air Jordan es s As to the victim missing cell phone the defendant admitted to having s ssession of the victim cell phone after the murder The victim phone records s s established the defendant began making calls on the victim phone just minutes s after the 9ll call was made reporting a body on Towers Road The testimony of Herman Jackson and William Young established that the first calls the defendant made were to ask for a ride and the defendant sounded like something was wrong During the time immediately following the murder the defendant also used the victim cell phone to call Krissa Donaldson numerous times Although she s claimed she could not recall her phone conversations with the defendant when she ified tec at trial the recorded interview Ms Donaldson had with Lt McDowell and k L3 Tullier showed she recalled what the defendant said to her when she was 13 interviewed less than two weeks after the murder The defendant letters to Ms s Donaldson also revealed that he instructed her not to come to court and that he would be back with her soon if she did not come to court The unanimous guilty verdict indicates the jury accepted the testimony of the State witnesses and rejected the defendant testimony and that of the s s s defense other witnesses This Court will not assess the credibility of witnesses or the evidence to overturn a fact finder determination of guilt s The ier of t fact may accept or reject in whole or in part the testimony of any witness oreover r when there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency State v Lofton 96 La App lst Cir 3 691 So 1365 1368 writ 1429 97 27 2d denied 97 La 10 701 So 1331 1124 97 17 2d We are convinced that any rational trier of fact viewing the evidence presented at trial in the light most favorable to the State could find the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable thesis h of innocence all of the elements of second degree murder and the s fendant didentity as the perpetrator The verdict rendered in this case indicates t 4 jury rejected the defendant sversion of events and his hypothesis that someone se e murdered Darren Williams When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the s defendant own testimony that hypothesis falls and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt State v Capriille 448 So 676 680 La 1984 We find no such hypothesis exists in the instant 2d case In reviewing the evidence we cannot say that the jury determination was s irrational under the facts and circumstances presented to them 14 See State v rdodi 2006 La 11 946 So 654 662 An appellate court errs 0207 06 29 2d by substituting its appreciation ofthe evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State v 3d 2306 09 21 Calloway 2007 La 1 1 So 417 418 per curiam his T assignment of error lacks merit ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE In the defendant ssecond assignment of error he challenges the trial court s ruling that permitted the State to recall its case agent Lt McDowell The endant d contends allowing the State to recall its case agent during its case in iief c violated the restrictions the trial court imposed on the State in its initial sequestration order and the requirements set out in State v Lopez 562 So 1064 2d La App 1 st Cir 1990 and State v Revere 572 So 117 La App 1 st Cir 2d 1990 writ denied 581 So 703 La 1991 2d Louisiana Code of Evidence article 615 provides in pertinent part A As a matter of right On its own motion the court may and on request of a party the court shall arder that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings and refrain from discussing the facts of the case with anyone other than counsel in the case In the interests of justice the court may exempt any witness from its order of exclusion B Exceptions This Article does not authorize exclusion of any of the following 2 A single officer ar single employee of a party which is not a natural person designated as its representative or case agent by its attorney The trial court exempted the State case agent Lt McDowell from s sequestration on the condition the State call Lt McDowell as its first witness The trial court also ordered Lt McDowell be sequestered during the presentation of the defense but allowed the State to call him on rebuttal 15 After Lt McDowell testified he was permitted to hear the testimony of the s e other witnesses The State called Krissa Donaldson as a witness for the urpose of providing testimony about the inculpatory statements the defendant made to her during the phone calls after the murder At trial the prosecutor was taken by surprise when Ms Donaldson asserted her Fifth Amendment privilege against self However the State quickly granted Ms Donaldson incrimination complete immunity from any criminal charges that could result from her testimony in this matter After she was granted immunity Ms Donaldson testified that she did not remember any of the statements she made to the officers during her recorded interview or what the defendant told her after the murder The prosecutor asked Ms Donaldson if she received a copy of her October 1 2007 recorded interview from the District Attomey Office Ms Donaldson s admitted that she received a copy but said she did not review it Having been granted permission to treat Ms Donaldson as a hostile witness the prosecutor went through each of the inculpatory statements Ms Donaldson attributed to the defendant during her recorded interview Despite the prosecutor bringing each statement to her attention Ms Donaldson continued to maintain she had no recollection It is against this backdrop that the prosecutor sought to recall Lt McDowell for the purpose of laying a foundation for impeaching Ms Donaldson with her October 1 2007 recarded statements Over the defense objection the trial court s odified its initial sequestration ruling and allowed the State to recall Lt McDowell during its case The trial court restricted the scope of Lt chie in s McDowell testimony to the impeachment issue 4 4 Thereafter the trial court also allowed the state to yuestion Lt McDowell for the additional purpose of laying a foundation to introduce handwriting exemplars taken from the defendant Although the defense obj ected to this additional ruling the defendant did not raise this issue on appeal 16 The defendant urges Lopez supports his contention that recalling Lt Jowell Mc was improper We find the defendant reliance on Lopez is misplaced s I Lopez the State case against the defendant depended almost completely on s t credibility of its law enforcement witnesses The State case agent was s permitted to hear the testimony of some of the other State witnesses befare he testified as the principal witness against the defendant On appeal the Lopez defendant argued that the trial court erred by not requiring the State to call its representative as its first witness This court agreed finding particularly troublesome the fact that before he testified the Lopez case agent was allowed to hear the testimony of the law enforcement officer who made the initial traffic stop Lopez 562 So at 1066 2d In Lopez this court held that permitting the 1aw rcement enf officer to serve as the representative of the State without requiring the vresentative to r testify first violated applicable law See Lopez 562 So at 2d 67 J66 Unlike Lopez in the instant matter the trial court took appropriate measures to minimize the possibility of potential prejudice to the defendant In its initial sequestration order the trial court complied with the requirements set out in Lopez by requiring the State to call Lt McDowell as its first witness When the trial court modified its initial ruling to allow the State to recall Lt McDowell it restricted the scope of the State examination of Lt McDowell to the s aclunent np iissue A thorough review of Lt McDowelPs subsequent testimony reaeals the prosecutor in fact limited the scope of Lt McDowell direct s examination as ordered by the trial court Moreover the record shows Lt s cDowell P testimony when recalled was subject to cross by the examination defense Although the defense questioning of Lt McDowell during cross s examination arguably opened the door for the State to question Lt McDowell 17 about the defendant unrelated aggravated assault charge and arrest the s prosecutor declined to pursue that specific area of testimony on redirect Under these particular facts we find the trial court did not abuse its discretion where it mo3ified its initial sequestration order to allow the State to recall Lt McDowell rits in cl case chief In his third assignment of error the defendant raises two distinct arguments First he contends that allowing the State to impeach Ms Donaldson was inappropriate because her credibility was not at issue Specifically the defendant distinguishes Ms Donaldson inability to remember the prior statements she made s to Lt McDowell and Det Tullier from a situation in which a witness denies making a prior statement Essentially the defendant contends impeachment is not proper when a witness is merely unable to remember her prior statements Second to tl extent impeachment was proper the defendant contends the trial court erred e in allowing the State to impeach Ms Donaldson with her recorded statements Louisiana has long sanctioned the use of inconsistent statements to impeach t ie general credibility of a witness subject to the rule that such statements are issible adr only far their impeachment value and not as substantive evidence See State v Jackson 2000 La 12 800 So 854 855 per curiam In 1573 01 7 2d the instant matter the defendant asserts that the State did not simply rely on Ms s Donaldson priar recorded statements for impeachment purposes Rather the State used the inculpatory statements that Ms Donaldson attributed to the fendant das evidence that he confessed to shooting and robbing the victim The defendant contends this was an improper use of extrinsic impeachment evidence af T defendant also points out that the prosecutor referred to Ms Donaldson s orded rv statement during the State closing argument as the defendant phone s s 18 confession to robbing and shooting someone The defendant urges that whatever probative value the recorded statements had as impeachment evidence was substantially outweighed by the prejudicial impact that potentially resulted from the jury improper use of the evidence s See State v Cousin 96 La 2973 198 4l1 710 So 1065 2d A violation of LSA art 607 is subject to harmless error analysis E C 2 D 2d c Cousin 710 So at 74 1073 Thus even if the admission of Ms s Donaldson recorded statements as impeachment evidence was error the defendant is not entitled to a new trial if the error was harmless beyond a reasonable doubt See LSA Part 921 The proper analysis for determining Cr C armless herror is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered but whether the guilty verdict actually rendered in this trial was surely unattributable to the error Sullivan v ouisiana L508 U 275 279 113 S 2078 2081 124 L 182 1993 In S Ct 2d Ed the instant case the issue thus becomes whether the guilty verdict actually dered re in this trial was surely unattributable to the inculpatory statements Ms L unaldson attributed to the defendant in her October 1 2007 recorded interview A thorough review of the recard convinces us that allowing the jury to hear Ms Donaldson recorded interview even if error was harmless beyond a s reasonable doubt for two reasons First contrary to the defendant assertion in s 5 In its brief the state contends the defendant did not raise an objection at trial to the admissibiliry of Ms Donaldson srecorded statements on the grounds of unfair prejudice Accordingly the state contends the defendanYs argument is not proper on appeal A thorough review of the record reveals that the parties respective azguments concerning the propriety of recalling LL McDowell and using the recorded statements to impeach Ms Donaldson occurred over the span of two days The trial couR allowed counsel to research these issues ovemight and to present further azgument the next morning The record reveals that the state and the defense used this oppoRunity to bolster their initial tion pos and to expand their respective arguments VJhen the parties returned to court the next day cucnsel presented their final azgumen to the trial court Wi referring to Cousin or LSA art s hout E C 2 D J7 6 in a less than eloquent azgument the defense attempted to argue recorded statements the ild n snot be admitted because the risk of confusion of the issues or unfair prejudice clearly outweighed stever v probative value the rewrded statements had as evidence of Ms Donaldson credibiliry Thus s iz the interest of justice we find the defense sufficienYly raised a LSA art 607 objection at E C 2 D ial and we consider this argument t 19 brief that no limiting instruction was given the trial court did in fact charge the jury on this issue The trial court instructed the jury that such priar statements are admitted only to attempt to discredit the witness not to show that the statements are true Second and most importantly the overall evidence even disregarding Ms Donaldson recorded interview was sufficient to convict the defendant As s pteviously discussed in the fifth assignment of error the State produced evidence thati established a twenty minute window of time between 1 p and 2 five 50 m 15 in which the victim was shot once in the head and left on Towers Road The airticular weather conditions in the Towers Road Road area that day Murray further tightened the window of time to shortly after 2 p after it began to 00 m rain Keno and Charlton Walker established the victim and the defendant were alone in the Dodge Charger in the Towers Road Road Area after it started Murray to rain The loud boom Charlton heard that he and his aunt believed was a gunshot happened less than five minutes after the victim and the defendant drove away from Charlton house Charlton house was less than three minutes away from s s ToRNers Road The evidence and testimony produced at trial established that the victim had ell c phone and was wearing shoes When the police amved at the crime scene shortly after 2 p the victim shoes and cell phone were missing The 15 m s defendant had possession of the victim cell phone and began making calls s seeking a ride from friends at 2 p and he sounded like something was wrong 23 m The victim cell phone records and Ms Henry testimony established that the s s defendant could not have accidently taken the victim cell phone between noon s and 12 p as he claimed 20 m Medical testimony established that the victim was no longer wearing shoes when he incurred road rash injuries 20 to his feet Medical testimony also stablished the victim gunshot injury and road rash injuries occurred close in s time Greg Jones Jr testimony established the victim was wearing his own s missing Air Jordan shoes on the day of the murder Greg identified the Air Jordan shoes Lt McDowell seized from the defendant as Greg missing pair of Air s Jordan shoes The State produced compelling evidence in this matter that the defendant was the person who robbed and murdered the victim Darren Williams We find that the jury verdict in the instant case was surely unattributable to the purported s erroneous admission of Ms s Donaldson recorded statements Thus the s cendant second and third assignments of error lack merit d ASSIGNMENT OFERRDR NUMBER ONE In his first assignment of error the defendant urges the trial court erred in denying his challenge for cause of prospective juror Gerard LeBlanc and erred in granting the State challenge for cause of prospective jurors Lakesheila s Dickerson and Karen Cannino An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination of the prospective jurors and to the exercise of peremptory challenges La Const art I 17 A The purpose of voir dire unination ex is to determine prospective jurors qualifications by testing their npetency cr and impartiality and discovering bases for the intelligent exercise of cause and pereinptory challenges State v Burton 464 So 421 425 La App 2d lst Cir writ denied 468 So 570 La 1985 A challenge for cause should be 2d granted even when a prospective juror declares his ability to remain impartial if the juror responses as a whole reveal facts from which bias prejudice or s inability to render judgment according to law may be reasonably implied A trial court is accorded great discretion in determining whether to seat or reject a juror for cause and such rulings will not be disturbed unless a review of the voir dire as 21 hole aindicates an abuse of that discretion State v Martin 558 So 654 658 2d ua App lst Cir writ denied 564 So 318 La 1990 2d In this assignment of error the defendant contends Mr LeBlanc did not truthfully answer questions presented to the jury panel Specifically he claims that when prospective jurors were asked if they knew any of the participants in the case including the trial judge prosecutor and defense counsel Mr LeBlanc did not acknowledge he knew the judge and defense counsel The defendant asserts he was prejudiced by the trial court error because he was forced to use a peremptory s cuallenge to strike Mr LeBlanc To prove there has been error warranting reversal of the conviction the fendant must show 1 the erroneous denial of a challenge for cause and 2 the se u of all his peremptory challenges 94 14 1 630 So 1278 1281 2d See State v Robertson 92 La 2660 Moreover the defendant must show that he objected at the time of the ruling to the court refusal to sustain a challenge for s cause of the prospective juror LSA art 800 In the instant matter our P Cr C A review of the entire voir dire examination does not support the defendant s assertion that Mr LeBlanc was untruthful or not forthcoming with truthful answers during voir dire During voir dire the trial court asked the defendant defense counsel and prosecutor to stand The trial court then asked the panel if anyone knew these t r people All of the prospective jurors shook their heads indicating they did e not know them The trial court later asked if anyone had prior jury service Mr LeBlanc did not hesitate to inform the trial court that he had previously served as a juror in the judge court When the trial court asked if he remembered what the s case was about or if the jury got to decide the case Mr LeBlanc answered he reall did not recall and he thought we were sworn in and they pled out or something Later defense counsel directed a question to Mr LeBlanc concerning 22 his recollection of whether the counsel asked And acivally went to trial you were or before jury chosen had on a the chance to deliberate jury but he pled Specifically out before he it reached y for a decision Mr LeBlanc all iswered Yes sir and immediately added He was your client At the challenges conference the defense argued Mr LeBlanc was not telling the truth because he did not tell the trial judge that he knew defense counsel or the judge when initially asked the question However the defendant argument s fails to consider Mr LeBlanc initial response in context of the full voir dire s examination or that the initial question was susceptible to different interpretations Clearly a prospective juror could ha reasonably interpreted the trial court e s qneation to imply the existence of a relationship other than recognizing counsel in the context of priar jury service Although Mr LeBlanc did not inform the trial izt c when first asked that he had served on a jury before the judge that involved efense c counsel we find Mr LeBlanc later voir dire responses indicate he was s forthcoming with this information Thus based on our thorough review of Mr scomplete voir dire examination we find that the trial court did not abuse LeBlanc its great discretion in denying the defendant schallenge for cause of prospective juror Gerard LeBlanc The defendant also argues the trial court erred in granting the State s challenge for cause of prospective jurors Lakesheila Dickerson and Karen Cannino He contends this error had the effect of giving the State mare peremptory challenges than the defense In his brief the defendant represents that v tt State and the defense used all of their peremptory challenges Conversely the utate asserts the defendant cannot complain of the alleged improper grant of the s State challenge for cause of Ms Dickerson and Ms Cannino because the State used only seven of its twelve peremptory challenges 23 Louisiana Code of Criminal Procedure art B 800 provides that the erroneous allowance to the State of a challenge for cause does not afford the ndant def a ground for complaint unless the effect of such ruling is the exercise by tt3 State of mare peremptory challenges than it is entitled to by law In the instant ter rthe defendant and the State each had twelve peremptory challenges LSA P G C art 799 The transcript of the challenge conferences which is at times difficult to follow and the jury forms counsel submitted to the trial court reveal the State used seven peremptory challenges during the seating of the jury and one peremptory challenge during the selection of the two altemates Clearly the State had more than two peremptory challenges remaining after the jury was seated Accordingly even if the trial court rulings were erroneous the State could have s used two of its remaining peremptory challenges to strike these prospective jurors Thus we find the defendant cannot meet his burden of showing the effect of the ged aA erroneous granting of these for cause challenges was the exercise by the zce of more peremptory challenges than it was entitled to by law This assignment of error lacks merit ASSIGNMENT OF ERROR NUMBER FOUR In this assignment of error the defendant asserts that the trial court erred in denying defendant motion for mistrial after two or more jurors saw him while he s was being escorted in handcuffs to the men restroom by two sheriff officers s s The alleged viewing of the defendant in handcuffs occurred during the last break the o last day of the trial while the judge was finalizing jury instructions When the trial court was advised of the incident it immediately held a hearing and stioned aue the officers involved The bailiff who had escorted three male jurors to trestroom advised the court that when he noticed the officers and the defendant coming around the corner he immediately stood between the jurors The bailiff testified that he kept saying stop and back up 24 Away from the jurors the bailiff explained to the officers escorting the defendant what had just happened The bailiff testified that he did not know if these jurors actually saw the defendant However he informed the trial court that tfle were in a position to see the defendant The record reveals that the trial court was clearly angry and upset that the escorting officers failed to use the elaborate gxctocols the district court had in place to prevent jurors from seeing a defendant in y a condition other than what appears to be a regular person on triaL However not wanting to draw any more attention to the matter than necessary the trial court decided to question the members of the jury after the verdict was returned After the unanimous guilty verdict was rendered the trial court explained to the members of the jury what had occurred during the break The twelve jurors and two alternate jurors were asked to indicate by a show of hands if they saw the defendant in handcuffs during the break Two jurors one who deliberated in the iict r v and an aiternate juror who did not take part in deliberations indicated tbey saw the defendant during the last break The non alternate juror told deliberating P t1 trial court he saw the defendant in handcuffs The deliberating juror said he s aw the defendant but did not see the handcuffs The trial court questioned the deliberating juror about the effect if any seeing the defendant during the break had on him The following exchange occurred Q Did you notice anything about it that led you to believe one way or the other or anything about this A No I just saw him come out Q And they ushered him back in A Yes sir Q And t you didn think did you think anything of that anything A No sir 25 Q Okay Did that in anyway enter into your deliberations about obviously voted guilry did finding you A that help you get to the guilry No it did not The defendant contends that the trial court decision to question the jury s members after deliberation allowed the two jurors to have contact with other jury menbers While the deliberating juror said he did not think anything about the incident the defendant argues that it was important for the trial court to question se tL jurors as to whether they discussed what they saw and heard with the other rars j Because the trial court failed to do so the defendant asserts that granting a mistriai is appropriate because it is impossible to tell from the record what damages may have been caused by this incident Ordinarily a defendant before the court should not be shackled handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of the judicial proceeding See State v Brown 594 So 2d 372 392 La App lst Cir 9 Mistrial is a drastic remedy and should only 91 23 be granted on a showing of substantial prejudice State v Jackson 584 So 2d 256 269 La App lst Cir writ denied 585 So 577 La 1991 To find 2d rFversible error the record must show an abuse of the trial court reasonable s iscretion resulting in clear prejudice to the accused See Brown 594 So at 2d 392 In the instant matter we find that the trial court did not abuse its discretion in refusing to grant the defendant motion for mistrial s The record does not support the scenario envisioned by the defendant that the two jurors may have discussed what they saw with the other jurors We find the defendant scontention tlaat the record is insufficient to tell what damages may have resulted from the ent ci i also lacks merit Although the record establishes two jurors saw the fendant dduring the break the juror who deliberated in the verdict did not see any 26 handcuffs The trial court questioning of the deliberating juror sufficiently s established that his seeing the defendant briefly during the break had no effect or impact in his deliberation or in his finding the defendant guilty as charged Lastly the record reveals that while the defendant was testifying on his own behalf he revealed to the jury that he was arrested shortly after the date of the instant offense on an unrelated charge and had been in jail for the last two years Under these reumstances c we find there is no showing that the defendant was clearly prejudiced by this event This assignment of error lacks merit ASSIGNMENT OF ERROR NDMBER SIX The defendant also requests that this Court examine the record for error under LSA art 920 This Court routinely reviews the record for such P Cr C 2 errors whether or not such a request is made by the defendant Under Article 2 920 we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record in these proceedings we have found no reversible errors See State v Price 2005 La App lst Cir 12 952 So 112 123 en 2514 06 28 2d 25 bana writ denied 2007 La 2 976 So 1277 0130 08 22 2d CONCLUSION For all of the reasons set forth above the defendant conviction and s sentence are affirmed CONVICTION AND SENTENCE AFFIRMED 27
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