State Of Louisiana VS Dalvin Amir Sewell
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2014 KA 0262 STATE OF LOUISIANA VERSUS DALVIN AMIR SEWELL Judgment rendered December 23, 2014. ****** Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana Trial Court No. 03-12-0403 Honorable Trudy White, Judge ****** HILLAR C. MOORE, III DISTRICT ATTORNEY MONISA L. THOMPSON ASSISTANT DISTRICT ATTORNEY BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA HOLLI HERRLE-CASTILLO MARRERO, LA ATTORNEY FOR DEFENDANT-APPELLANT DALVIN AMIR SEWELL ****** BEFORE: KUHN, PETTIGREW, AND WELCH, JJ. PETTIGREW, J. Defendant, Dalvin Amir Sewell; was chargep by grand jury indictment with armed robbery, a violation of La. R.S. 14:64. 1 He pled not guilty and, following a jury trial, was found guilty of the responsive offense of first degree robbery, a violation of La. R.S. 14:64.1. The trial court denied defendant's subsequent written motion for postverdict judgment of acquittal and motion for new trial. Thereafter, the trial court sentenced defendant to three years at hard labor, without the benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging three assignments of error. For the following reasons, we affirm defendant's conviction and sentence. FACT.S In or around July 2010, Edward Daniels was robbed while visiting a friend, Darius Byrd (who was deceased at the time of trial). Dl1ring the afternoon, Byrd and the victim were standing in the driveway outside of Byrd's Baton Rouge residence when a red Ford Expedition pulled up. Reagan Taylor, who the victim testified he knew from school and the neighborhood, exited the vehicle from the back passenger door while other occupants waited in the vehicle. As Taylor, the victim, and Byrd began to converse, other occupants of the vehicle exited from the front and back passenger side armed with guns. At that point, Taylor pulled a gun out, pointed it at the victim's face, and demanded that he give him everything he had. In compliance, the victim gave Taylor the contents of his pockets, which specifically included his medication (consisting of prescribed hydrocodone) and cash (approximately between $300.00 and $400.00). During a subsequent investigation into the offense, the victim positively identified Taylor as one of the perpetrators. Derricka .Leduff,' Byrd's sister, observed the incident . from inside of the residence and positively identified Taylor and defendant, Dalvin Amir Sewell, as perpetrators. 1 Also charged in the indictment was codefendant Reagan Taylor, who was tried in the same proceeding as defendant. Taylor was convicted of armed robbery, and this court previously affirmed his conviction and sentence. See State v. Taylor, 2013-1629 (La. App. 1 Cir. 7/30/14) (unpublished). 2 SUFFICIENCY OF THE EVIDENCE In his second assignment of error, which we address first, defendant alleges that the evidence presented at trial was insufficient to support his guilty verdict for first degree robbery. Defendant contends that the State. did not meet its burden of proving beyond a reasonable doubt that he commlttf3'd armed r.obbery or first degree robbery, or that he acted as a principal in the commission of. an an:ned robbery. . '. A conviction based on insufficient evidence cannot stand as .it violates due ' ,. process. See U.S. Const. amend. XIV; La. Cons~. art. I,.§ 2. The standard of review for the sufficiency of the evidence to uphold a corvlction is whether, viewing the evidence in the light most favorable to the .prosecution, any rational trier .of fact could have found the essential elements of the crime beyonda reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed2d 560 (1979). See also La. Code Crim. P. art. 821(8); State v. Ordodi, 2006-0207, p, 10 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in Article. 821(8), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R5. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585, p. 5 (La. App, 1 Cir. 6/21/02), 822 So.2d 141, 144. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. l4:64(A). First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by the use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. La. R.S. 14:64.1(A). A "dangerous weapon" is defined as any instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(A)(3). 3 ~ The parties to crimes are classitled as ' La. R.S. 14:23. ~'' ' ------------------- principals and accessories after the fact. ' '• ' . I c:oocerned Principals are ail persons in the commission of a crime, whether present or absent, and wh~ther they, directly GOmrnlt the act constituting the 'I, t', offense, aid and abet in its commissivn: or _directly .or indirectly .counsel or procure another to commit the crime, La. RS 14:24... Only those persons who knowingly ' I' ' participate in the planning or execution of a crime are principals. An individual may be convicted as a principal only for those crimes for which he personally has the requisite mental state. State v. Pierre, 93-0893 (La. 2/3/94), 631 So.2d 427, 428 (per curiam). . . The State may prove a defendant guii~ by s.ho~~~~ that he served as a principal to the crime by aiding and abetting another. U.nder :this theory, .the defendant need not have actually performed the taking to be found guilty of a robbery. State v. Huey, 20131227, p. 4 (La. App. 1 Cir. 2/18/14); 142 Sb.}d 27r. 30, writ denied~ 2014-0535 (La. 10/3/14), _ So.3d _ . Further; a defencla.nt;~onv.lcted as a principal need not have ' personally held a weapon to be found gujlty . 354 So.2d 1316, 1320 (La. 19'78). '~ ' . of armed robbery. State v. Dominick, ' One who a19.s and abets in the commission of a crime may be charged and convicted with. a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. Holmes, 388 So.2d 722, 726 (La. 1980). Armed robbery and first degree robbery are general intent crimes. In general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts that have been declared criminaL State v, Payne, 540 So.2d 520, 523-524 (La. App. 1 Cir.), writ deniedff defendant of armed robb~ry, 546 'so2d 169 (La. 1989). To convict a the State .IS: reqUired. tb prov~: anything of value; (3) from a person. or :in the im~rn~diate (1) a taking; (2) of control of another; (4) by the use of force or intimidation; (5) while armed with a dangerous weapon. Huey, 20131227 at 4, 142 So.3d at 30. To convict a defendant of first degree robbery, the State is required to prove: (1) a taking; (2) of anything of value; (3) from a person or in the immediate control of another; (4) by the use of force of intimidation; (5) when the 4 offender leads the victim to reasonably believe he is armed with a dangerous weapon. State v. Robins, 2004-1953, p. 5 (La, App. ~Or, 5/6/05), 915 So.2d 896, 899. ' At trial, Daniels testified that he and Byrd w~re talking to Taylor when "four to five people" exited the red Ford Expedition ~'lfith guns in their hands. He stated that Taylor then pulled his own pisto~ arld lnstr.ucted hlrn to give up everything he had. ',i i Daniels stated that he complied, handing ,ov~r his ~edication and his cash. Daniels testified that he was able to identify Taylqr as one of the perpetrators because he had . '.•.' known him before the incident However, he., was .unable to. identify defendant as one .. ·, ., of the perpetrators with any degree of certainty. I identify anyone else involved lil~ely • . ~ . . . . ' : D(.mi~ls ' • I • explained that his inability to stemmed: from thefact that he was unable to focus on the others with a gun pointed in h's face. Leduff testified that she was inside her house, which ·was also Byrd's residence, during the incident. She stated that defendant and.Taylorpulled up in a red SUV while Daniels and Byrd were outside talking. Leduff had rnet both defendant and Taylor prior to the incident because they were her brother~s friends, and she knew both of their names. She testified that defendant and Tay!or hopped out the vehicle, pulled Daniels and Byrd to the side, and began to argue with· them. She could not hear what was being said, but she interpreted the· males" gestures to be hostile. When asked if defendant or Taylor had anything in their hands, she testified, "It looks like it n When asked to clarify her statement, she specified that Taylor had the object, and she described it as "[a] gun." 2 Leduff stated that she. did not see the perpetrators take any items. She estimated that the i~Cid~nt. :i~~ted . 'OHiy ~-bou-t' o~e examination, Leduff testified that Byfd'-·later 't~i&:::h~~: ·Tayl'or Daniels in the incident, but she did not mil1ute. On cross- h~d take~ a gun from state she witnessed.this action. The defense did not present any witnesses. 2 Although Leduff later reiterated that she had seen Taylor with a gun, she eventually admitted on crossexamination that she saw him only with "something in his hand." ' . _.., . .. ·.... ' ; ·, . •,' c <. ·. ~angerous Even an artificial gun constitutes a weapon when the interaction between the offender and the victim create(.'~ -~: highly·:charged atmosphere whereby there was a danger of serious bodily harm. res~; lUng from the victim's fear for his life. ' . ' . $~ See State v. Craddock, 2010-1473, p, 5 (~.a_, A.PP" 1 \)L 3/25/ll)r 62 So.3d 791 1 794, ' . writ denied, 2011-0862 (La. 10/21/ll), 73 ?o . 3d 380 .. Se~~ alsQ State v. Cittadino, 628 So.2d 251, 255 (La. App. 5 Cir. 1993) (where a victim's belief that a toy pistol pointed at her face was a real gun and that. the defendant was going to kill her was sufficient to support a conviction for .armed. robbery), A lay witness may testify as to opinions rationally based on his perc:eption. L~ ..C:ode Evid. art. 701. No weapon need ever be seen by the victim, or witnesses, ,or recov~red by the police for the trier of fact .•::. to be justified in finding that the defendant was armed with a dangerous weapon. State v. Page, 2002-689, p. 16 (La. App. 5 Cir. ·t/2~/03), 837 So.2d 165, 176, writ ·,_ '. . l denied, 2003-0951 (La. 11/7/03), '857 ·so.2d 517. :M_oreover, it is not necessary in :; '.· ' every armed robbery case to introduce the mpney or other items taken. The testimony of the victim is sufficient to establish the elements of the offense. State v. Glover, 98-2632, pp. 8-9 (La. App. 1 Cir. 9/24/99)r 754 So.. ;ld 1044, 1048, writ denied, 99-3200 (La. 4/7/00), 759 So.2d 94. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evide~ce is not subject to appellate review. An • • ' ' • •• . ' appellate court will not reweigh the· eviden·ce guilt. State v. Taylor, 97-2261r . ; i •; ' :. . • .• ·~ • ; • • • • • t(foveiturn a fact finder's determination of pp, s-6 (ta:. A~~ ..i ·or: 9!25/98), 721 So.2d 929, 932. . .. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1 Cir. 1985). An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the· fact finder and thereby overturning a verdict on .6 . . : ';' ,·· ••~ < • ; the basis of an exculpatory . •••''1: '·: . hypoth~si;s of innocence ..... · .. presented to, and rationally ·\· rejected by, the trier of fact. Sta~e_ See v. Call9_way, .2007-2306, pp. 1-2 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). After a thorough review of the record, we .t.· .. find that the evidence supports the jur}ls verdict. While Leduff did not see the vic;tlm yei!C'K.J~!i?h any .itemsr she observed the offense from inside 9f the residence,. and sh,~ te~tif!eo V\fithout hesitation or confusion ' '\.,:'.' . '· ' ! ' regarding the identity ,of the two . perp~tratqrs, 'w.hom:. she saw in. the victim's vicinity. '' , ' \ ·.:.I :. , ;·, .: .. :. ~ Further, while the instant offens~ took plac.e_.r3r:Ound.)uiy)010,. the investigation did not .. ·• . . . . ' . . . . begin until the police initiated an. inves.tigatiQn J~:~to. the September 201Q homicide of . ~ ' .. ': : ' .. ·. . .-. ' .. .. ~ ' .. : : .. . ' Byrd. Therefore, it is not surprising that no wnoney or other physical evidence was recovered in the investigation of this offen?e, ·ana this lack • ·;_ .'··· • of· physical •• evidence is not I' dispositive in ad~ressing the sufficiency of the;ev.ider1cepr:esented at trial. Finally, while Leduff was unsure about whether the item held by taylor was· a gun, Daniels testified unequivocally that Taylor held him at gunpoln~. as -h~ demanded valuables, which he relinquished. We are convinced that, viewing the evidence. in the light most favorable to the State, any rational trier of fact could hqve found beyond a re9sonabie doubt, and to the .• '. • c '· ' • exclusion of every reasonable hypothesis. of. irmocencer that defendant was guilty of . . . . ' . ; However~ being a principal to armed robbery. ' the jury found defendant guilty of a legislatively approved responsive vei;dict to armed mbbery --first degree robbery. See La. Code Crim. P. art. 814(A)(22). In State ex rei. E·laire v~ Blackbu;f1/'424 S~J.2d 246~ '251 denied, 461 U.S, 959f 103 S.Ct 24J2r·. tl . . . . : i t~.Ed:2d .,.~ ·~.(' .. ·.-..... ~ (La. 1982), cert 1318'(198.:3'), the Louisiana Supreme ~ ":". . Court recognized the legitimacy of a 'jcompromise verdict1 11 . ·• :-,: .. , , i:e., a legislatively approved responsive verdict that does not fit the evfdence, but that (for whatever reason) the jurors deem to be fair, as long as the evidence Is. sufficient to sustain a conviction for the charged offense. If the defendant timely objects to an instruction on a responsive verdict on the basls that the evidence does not support that responsive verdictr the court overrules the objection, and the jury returns a verdict of guilty of the responsive I 7 .. ,,'., ~: ' ' .. · ~ "'· :""'!"<'/(.. offense, the reviewing court must examine th~ record to determine if the responsive verdict is supported by the eviden~e and rnay rever::;e the .~oi1viction If the evidence ' . \ . ( . . i does not support the verdict. However, _1f th~-~ defendant does not enter an objection (at ~- ~h~ a time when the trial judge can. correct then the reviewing court may affirm the conviction if the evidence would hav~: supp()rt~d a conviction of the greater offense, whether or not the evidence supports the corrv!ction of the legislatively . . ' . . ·. . . ' . . ' '' : . ~· ; responsiv~ offense returned by the jury. See. Stat~ e~. (~L ~l.e~ir~{ •t24 So ..2d a~ 251. Here, there ' . I: '' ·' ,. ' '~· ' .. · ,· . was no objection to the instruction on. the resptmsive verdict of first degree robbery. It ··':. .. . ' ' is possible that the jury returned a vE;'rdict of gqjlty on this responsive offense as a ' • ; J • ••• "compromise" verdict, perhaps as a result of the ~ack of testimony that defendant was armed at the time of the incident. Regars,jle,ss. of the jury's ultimate reasoning, the . . ' evidence presented at trial was clea~!y suffi\=ient to r::onvict defendant as • > i ; ; a principal to the charged offense, so it was also suff.lci~nt .tP .support def~ndant's conviction for the • responsive offense of first degree > • • • robbery~ • ' • <. ' ~ • · : • • ' • '', This assignment of error is without ment, · . MOTlON .IN llMINE. In his first assignment of errorr defendant argues that the trial court erred in denying his motion in limine,. which sought t1J. exdud~e: references to the homicide of Darius Byrd. Specifically, he contends that these references amounted to impermissible other crimes evidence that were ailoweo to come before the jury in violation of La, Code Evid. art. 404(8)(1). Prior to trial, defendant filed two motldh; i·n limfhe, seeking to exclude certain T~ie'first motion in limine sought to exclude evidence from being introduced ·at trial:. . statements made by Byrd to his . . sist~r ih-the h;i~~di~,t~ aftermath ofthe incident. The trial judge granted this motion in the rr1lddle of ttial;· but tt1at ruhng ~as reversed by this court in an unpublished writ act1on, See·St~te v" Sewell, 2013-0512 (La. App, 1 Cir. 4/4/13) (unpublished). Defendant does not raise an argument on appeal with respect to this motion in limine. . ' _8,. . . . , . ·:·,·· ··:· In his second motion in .limine;: (iefenqant' sought to exclude any reference to the ' ·. . : . . .. ' . t.':.; . . :· ·. ~ fact that Darius Byrd was killed in an. apparent .homi,cide .. •, . , '. ' ~ ~' I j • > ' ; H~ argued "'. ' ' ' . ·- that any such ' \•:mnect Mr. reference "would lead the jury to immedlatelv .. · ... • •' l3yrd 1S death with the armed ' ~· robbery he allegedly witnessed, as ~ell .as. ~Jssor.!at.ing the det~ndant with Mr. Byrd's ... . ; .. . __ death." Following pretrial arguments on this n1otion, the trial court denied defendant's motion in limine, finding that referenc~.s to· Byrd. VI}Quld "not be highly prejudicial." . .. . . . ' ' Detective Elvin Howard, of. the BatonJ~,quge Pqlice Department, testified at trial .I '' that around September 25, 2010, he... \~~? as:=;.igne,d to, inve?tigate Byrd's homicide. Hqwarq disc:oyered that • _:l During his investigation, Detec~ive r: apparent armed robbery of Daniels a . ~yrd had witnessed the . few mo11th.s .e.ariier,. Daniels himself testified that . ··-.: -~. ' ' ' Byrd was a murder victim. Leduff ~lsq te~t!t1ed.that she, initially spoke to the police in connection with their investigation: of ByrdHs ·hQrniclde. None· of the State's witnesses ". ' .. ·.' ' . . ever testified that defendant or .his ' investigation. ' ' codefend;;:~;nt · were.. .. .·•' . -. . . . . . ,. , ' •' ; •' :•. suspects. in Byrd's homicide In connection with Dete(.ti,ve. :Howard,.s testimony describing his . '.' investigation, defense counsel entered a ' contin~,Jing objection to any reference to Byrd's homicide. Generally, evidence of other crimesv wrongsr or acts committed by the defendant is inadmissible due to the substantial risk. of .grave prejudice to the defendant. Under Article 404(B)(l), however, such evidence may be admitted for the purpose of showing motive, opportunity, intent, preparationr planl' knowledge, identity, or absence of mistake or accident. Evidence of other bad bad character of the accused. crimes evidence must. t~nd; to probative value acts is not admissible simply to prove the Ut. Cod~ ~~1H:\lrt:>~o4(B)cf{. F~~fthermoref the other p~ove<:-a~·, rrl~t~·~iar fact ge~~i~~ly ot the extraneoui cririi~~ ~~ideM~~· 'r+i~~t outvJ~igh State v. Williams, 96-1023, p. 30 at 'issue, and the its p~ejudicial (L.a.· :l/21'!98),• '76a So.2d 703, 725, cert. effect. denied, .. 525 U.S. 838, 119 S.Ct. 99, 142 LEd.2d 79· (199'8)~ Prior to trial, the State argued that it was necessary to lay a foundation regarding in how Detective Howard came to be involved the investigation of the robbery of Daniels. The trial court found that allowing the State to do so would not be prejudicial ' .; ,,.9 . ' ·''"'' -.. "- f, • ,~ • ••• • 1 ' : ~. • ' • ... ·. to defendant's case. While the evidence ellcited by the State regarding Byrd's murder . '': . . . . _ . _ not reference another crime certainly referenced another crimef that evidence d.id .. . , ~ '.· committed or alleged to have been comrnlttEx:l by defendant. At no point during the ~ State's case did any witness testify that defendant or his codefendant were suspects in Byrd's murder. After a through review of the record,, w.e. find that the trial court did not err or abuse its discretion in denying defendant's .ru9tion .. in I~mine seeking to exclude evidence of Byrd's murder. The evidence was intro.quq;q at trial sotely .to explain how Detective !: ' ' • • ; : ' ~ • ~ : ' < ' ' • ~ • Howard came to investigate the robbery of Daniels; it is not subject to the mandatory mistrial provision of La. Code Crim .. P. art. 770_(2) because. it was not a reference to another crime committed or alleged to. }1ave· bee;n committed by the defendant as to which evidence is not admissible. . Nothing ,in th~ .' •' 1·:.• ''. •' '.';: ( way this evidence was actually I,/' presented at trial led to an implication thatdefe;ndant .was under investigation for Byrd's murder. This assignment of error .is without m~~it. . , INEFFECTIVE ASSISTANCE OF COUNSEL . . . . . . ~ In his final assignment of error, defendant aiieges that the State engaged in an improper rebuttal argument. Given that his t(ial counsel failed to object to this allegedly improper rebuttal argument, defendant also argues that his trial counsel was ineffective for failing to object to this argument. Under La. Code Crim. P! art. 774, the scope of closing arguments is limited to .. - . .. . of evidence; fo ·cohclusions ·'of . ' evidence admitted, to the lack defendant may draw therefrom; arid ~ ' ' fact that the State or to th~ ~(,(,ca·dd!icable to the case; and the State's . ,·~ rebuttal is confined to answering the 'Ciefend~hes arguments. ·. Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics. See State v. Martin, 539 So,2d 1235, 12.40 (La .. 1989) (holding closing arguments that referred to "smoke screen!! tactics and "commie pinkos" inarticulate but not improper); State v. Copeland, 530 So.2d 526, 545 (La. 1988), cert" denied, 48~ U.S. 1091, 109 S.Ct 1558, 103 l..Ed.2d 860 (1989) (holding . ;·. prosecutor's showing a gruesome ~o.to th~jU.ry and'urging members to iook at it if .:· • • l ' they became "weak kneed" during dellperorti<?ns J~~snot improper}" Further, even if the ~· ; . . . ,.. ; . '' ' ' . ' ,,. prosecutor exceeds the bounds of proper arg(~m,ent: ·a·re.vi~WinQ. court will not reverse a :; ~ . :, ' .. conviction unless "thoroughly conv~nced'ff .Ulaf ·th~ .argument influenced the jury and (:as~v,. 99"'0023cp; 17 (La. contributed to the verdict. State v. . ' , ,. 1022, 1036, cert. denied, 531 U.S. 840, . ' ' I' . ,• •' ·, 121 S.Ct J04;,.148 L.Ed.2d 62 (2000). . f..· ,; : In the instant case, defendant tak~s: ; 1/26/00), 775 So.2d . . '. fssue' with ·}.' . ·. prosecutor in his rebuttal argument T)1,6se, state~'e{lts stat~ments made by the are as follow: And I'm going to tell you one motethlng.·arid, fr~mkly, this is the most interesting thing that I found throughout the closing arguments of Mr. Tucker and Mr. Messina, And ril te!i ypu ..,-. and l c;~pologize for my handwriting, and I hope you can all read it Okay. Can everybody read what that says? It says. innoc~nt . How fl:li:my Jimes did you hear ML Messina or Mr. Tucker say the word innocent? Neither one of them stood before you and said my eli en( is inno~eht•. Jhink·~bout .trat Think c;~bout it These two men were paid to do ever{thing they can to defend these guys and never once sa.ld they [sic] th~ir. clients were innocent, not a single time, not once. ... They did not stand up here ih the one moment that they had to fight the hardest fc;>r t~ose two guys and they didn't tell you they were innocent. Think about that That's amazing, I can come to one conclusion that has meanipg. and that is they couldn't do it with a straight face because they knoW that I .have provt~h my case, They know that I've presented evidence, so their. only hope is to try to poke holes around the edges. Their hope was not to convince you that their clients are innocent. Their hope is to mc:~ke an attenypt to cloud the issue and hope that you are blinded by their !ittie.magic tricks, by look over here, all the action is going on over here•.,.. Bu~~ fra~kiy, their .words betray them - their lack of words betray them; · If Da!vin Sewell and Reagan Taylor were innocent, their attorneys would be climbing the rooftops, ringing the bells, screaming out loud these ar~ ~nnocent men and they did not do it. They did not do it. · ' Defendant contends that this rebuttal argument had the effect of insinuating to the jury '~ .. .. ' that the defense had a duty to prove ·that: he wa~::'not gufity. . ,. Defense counsel did not object ,. ~ •• ~ • • l '. tcdhese statements at theti.me they were made. However, this issue was raised in defendant"s motion for new trial, which was denied by the trial court. .' Therefore, we elect to address the merits of this issue rather than defendant's substitute allegation of ineffective assistance of counseL After a thorough review of the record, we are convinced that the prosecutor's comments did not suggest that defendant had the burden of proving his innocence or that the State did not have to prove ali the elements of the charged offenses beyond a 11 ·. . ••• .··· ,· 1 reasonable doubt. See State v. Spears; 525 So.. 2d 329, 334 (La. App. 1 Cir.), writ '~he prosecutor~s denied, 532 So.2d 175 (La. 1988). rebuttal statement appears calculated as a rebuttal to defense coun~e!~: _argt,~rnents th,at the State failed to meet its . ·, '. ;*!: burden of proof. In fact, the prosecutor. conhnqes m ~iiS rebuttal argument to say, 'Tve . '. _;, carried my burden, I've proven my case." Thi~~ statement reiterated to the jury that the State had the ultimate burden .9t prpxing defendant's guilt ~·' • :. f '< . Nothing in the prosecutor's comments deprived _d.efendant of his presumption of innocence or impermissibly shifted the burden of proof to the defense, Even if we were to find that the prosecutor's rebuttal remarks exceeded the scope of Article 774, we would not be 'thoroughly convinced" that this argument '' influenced the jury and contributed to the verdict.. See Casey, 99~0023 at 17, 775 So.2d at 1036. Following the State's rebuttal, the.jury·was instructed on the b_urden of proof applicable to defendant's case. Much cred;t should be accorded to the good sense and fair-mindedness of jurors who have -seen the 'evidence: State v. Dilosar 2001 ~ 0024, p. 22 (La. App. 1 Cir. 5/9/03), 849 So2d 657, 674, writ deniedr 2003-1601 (La. 12/12/03), 860 So.2d 1153. This assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED. ',, ... -. , . : : '." ~ .... ·. . . . '·' /'• " .' . ,., _L::. ·.. -~i- .• ·j . :.- '• \ :• ,-· ~
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