STATE OF LOUISIANA Vs. RAVEN LAMAR WILTZ
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 19-480 STATE OF LOUISIANA VERSUS RAVEN LAMAR WILTZ ********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 158064-2 HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE ********** ELIZABETH A. PICKETT JUDGE ********** Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Jonathan W. Perry, Judges. CONVICTION AFFIRMED. SENTENCE AFFIRMED AS AMENDED. REMANDED WITH INSTRUCTIONS. Carey J. Ellis, III Louisiana Appellate Project P O Box 719 Rayville, LA 71269 (318) 728-2043 COUNSEL FOR DEFENDANT-APPELLANT: Raven Lamar Wiltz Keith A. Stutes Fifteenth JDC District Attorney Daniel M. Landry, III Assistant District Attorney P. O. Box 3306 Lafayette, LA 70502-3306 (337) 232-5170 COUNSEL FOR APPELLEE: State of Louisiana PICKETT, Judge. FACTS On July 6, 2016, two males shot and killed the victim, Desmond Boutte. The males fled the scene on foot. An eyewitness told police that the defendant, Raven Lamar Wiltz, was one of the shooters. Within thirty minutes of the shooting, both the the defendant and Jamal Lacon were apprehended in a nearby area and arrested for murder. Clothing that matched the description of one of the shooters as well as the guns used in the shooting were found in the area within which the defendant and Lacon were apprehended. On August 17, 2016, the defendant and co-defendant, Jamal Christopher Lacon, were charged by grand jury indictment with one count of second degree murder, a violation of La.R.S. 14:30.1. A jury trial of both men began on February 25, 2019, and ended on February 28, 2019, with both the defendant and Lacon being convicted of second degree murder. On March 14, 2019, the defendant, was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. On April 12, 2019, the defendant filed a motion for appeal, which was granted on April 17, 2019. The defendant alleges three assignments of error – one involving the sufficiency of the evidence, one involving the trial court’s failure to dismiss two jury panels, and one involving the late disclosure of evidence. ASSIGNMENTS OF ERROR 1. The State failed to present sufficient evidence to support the verdict, a conviction of second degree murder. 2. In this case the right to a fair trial by an impartial jury was not upheld. The Trial Court violated this right by refusing Defense Counsel’s request to dismiss two of the jury panels. 3. Mr. Wiltz’s right to full disclosure of evidence presented against him was violated. ERRORS PATENT In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent regarding the sentence imposed. The trial court failed to impose the sentence at hard labor even though a sentence for second degree murder must be imposed at hard labor. La.R.S. 14:30.1. Thus, the sentence is illegally lenient. State v. Williams, 16-579 (La.App. 3 Cir. 4/15/17), 216 S0.3d 107. We hereby amend the sentence to order that it be served at hard labor and order the trial court make a minute entry reflecting the amendment. ASSIGNMENT OF ERROR NUMBER ONE The defendant contends the evidence was insufficient to prove he committed the murder of the victim in this case. The standard of review in a case of identification is well-established: “In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . . [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). Furthermore, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Weary, 03-3067 (La. 4/24/06), 931 So.2d 297; State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649. Positive identification by only one witness is sufficient to support a conviction. Weary, 03-3067 at p. 18, 931 So.2d at 311; Neal, 00-0674 at p. 11, 796 So.2d at 658; State v. Mussall, 523 So.2d 1305, 1311 (La.1988). It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Bright, 98-0398, p. 22 (La. 4/11/00), 776 So.2d 1134, 1147. 2 State v. Hughes, 05-992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051 (alteration in original). The first witness to testify at trial was Chelsey Anderson. Around 6:00 p.m. on the day at issue, Ms. Anderson drove her friend, Kelsea Bonner, to the Martin Luther King Center (Center) so that Ms. Bonner could get her car. According to Ms. Anderson, Ms. Bonner’s boyfriend, Keelan, was at the Center playing basketball with his friend, Desmond. When Ms. Anderson pulled up, Desmond and Keelan walked up to her vehicle. According to Ms. Anderson, Desmond sat in the back of the car, and Keelan leaned over on the passenger-side window. While Desmond and Keelan were talking with Ms. Anderson and Ms. Bonner, two “boys” walked up from the side of the building and started shooting. Ms. Anderson described the “boys” as black and as being regular height. One of the boys, Ms. Anderson testified, had “dreads.” Ms. Anderson testified that one of the individuals started shooting first and then the other individual started shooting. Ms. Anderson stated that she never looked into the faces of the shooters. When asked if she remembered what the shooters were wearing, Ms. Anderson replied, “They both had on like white shirts and red. I seen one of them have on a red cap, but that’s it.” The call Ms. Anderson made to 911 was played for the jury and introduced as State’s Exhibit 3. The caller reported a shooting at the Center. The caller also stated that the shooters had taken off running. In the recording, the caller described one of the shooters as having a black rag around his head and as wearing black shorts. When asked if there were one or two shooters, the caller stated there were two shooters, and both of them shot. The caller also mentioned one of the shooters was wearing a white shirt. Although something was described as “red,” it is difficult to decipher what the caller said was “red.” 3 At trial, Ms. Anderson agreed that when she was talking to the 911 operator, she identified one of the shooters as wearing a red cap and one as having “dreads.” The following colloquy took place regarding a photograph marked by the state for identification purposes: Q. Ms. Anderson, I have marked for identification purposes only a photograph of two individuals. Does that look like what the individuals you observed were wearing? A. It could be, yes. Q. Okay. I mean, we’ve got the black pants, white shirt, and we’ve got the individual with the hat. Is that what you observed? A. Yes. Ms. Anderson agreed that she told police she did not want to identify the two individuals and did not want to testify. When asked why she did not want to testify, Ms. Anderson replied: A. Because Desmond momma buried him, and then next it would be my momma burying me, and then what? Q. So you were scared? A. Yes. Q. And in fact, we had to bring you here the first time this matter was set for trial, correct? A. Yes. Q. And that’s because you didn’t show up because you were scared? A. Yes. Q. And as we sit here today you still don’t want to testify? A. Correct. On cross-examination, Ms. Anderson agreed that she was arrested by the United States Marshals in Texas and extradited to Louisiana to testify. When 4 asked if she felt pressure from the state to put “Raven’s” name into this case, Ms. Anderson replied: A. I mean, pressured because they subpoenaed me to. I stayed in jail for eight days to testify. But not pressure like making me say this and making me say that. I don’t know him. Q. Right. A. I don’t know him from nobody except that day. That was my first time ever, and I don’t even - - You know, I just gave a description of them. I never said his name, not even to Mr. Landry, no. Ms. Anderson agreed that after the shooting, she was asked to look at a photo lineup but failed to identify either the defendant or Lacon. On re-direct, the following colloquy took place regarding the photo lineup: Q. Okay. So let me ask you about these lineups. I questioned you about these lineups when you were brought here the first time, correct? A. Correct. Q. And you actually did circle a number indicating a suspect, correct? A. Correct. Q. Okay. And you actually circled two different ones, correct? A. Correct. Q. Those aren’t the shooters that you saw that you circled, correct? A. I circled what I saw what resembled - - Again, I don’t - - Q. Okay. But I thought your testimony was you just circled it because you didn’t want to even be there and talking to police. A. Correct. Yeah, correct, so I circled whatever I saw that resembled them. I didn’t even look. Kelsea Bonner testified that Ms. Anderson drove her to the Center on the night in question. Ms. Bonner’s boyfriend, Keelan, was playing basketball at the Center with Desmond Boutte. When Ms. Bonner and Ms. Anderson drove up, 5 both Desmond and Keelan walked up to the car and talked to the women. Ms. Bonner testified that she saw “some guys come out a alley.” Ms. Bonner described the guys as “black,” but did not offer any description as to the clothes they were wearing. Ms. Bonner saw both individuals with guns in their possession as they were approaching. Although Desmond tried to get away, shots were fired, and Desmond fell. Ms. Bonner did not remember if the shots were fired at the same time or separately. After the shots were fired, the two people ran through the parking lot. When the state asked Ms. Bonner if she told the police who the shooter was, the following colloquy took place: Q. Okay. And did you tell him who the shooter was? A. No. Q. Okay. So it’s your testimony today you never told Sergeant Sices that Raven Wiltz was the shooter? A. No, but I did tell him what I observed. Q. Okay. Do you know Raven Wiltz? A. Yes, I know him from being in the community. Q. Do you see him sitting at counsel table? A. Yes, he right here. Q. Okay. He’s the gentleman with the dreads? A. Yes. Q. So it’s your testimony that you never told Sergeant Sices that Raven Wiltz was the shooter? A. No, sir. Q. Do you remember visiting with Sergeant Larry Theriot? A. No, sir. Q. Okay. I mean, Detective Theriot? 6 A. No, sir. Q. Do you remember telling him that Raven Wiltz was the shooter? A. No, sir. Q. Okay. Do you remember coming up to the district attorney’s office where Detective Theriot was in a conference room and telling him that Raven Wiltz was the shooter? A. No, sir. Q. Okay. A. You explained everything to me upstairs what happened and that, and I said, “Then what you need me for?” Q. Are you scared to tell the truth here? A. No, I’m not. Q. Okay. A. But I’m not going to put my life in danger, either. Ms. Bonner said she did not remember giving Sergeant Sices a description of the clothes worn by the shooters. When asked if she remembered telling Sergeant Sices that she saw the shooting but would not give a written or recorded statement, Ms. Bonnier replied, “Yes, I did. . . . Because that’s not my business.” Sergeant Thaddeus Sices of the Lafayette Police Department was working as a patrol supervisor on July 6, 2016, at 7:02 p.m. When Sergeant Sices received a call that there was a shooting in progress at the Center, he responded in a “minute or two.” A large crowd surrounded Desmond Boutte, who Sergeant Sices observed lying on the ground with blood coming out of his head and torso area. Sergeant Sices began questioning individuals, one of whom was Ms. Bonner. According to Sergeant Sices, Ms. Bonner named Raven Wiltz and “another black male subject” as the shooters. Sergeant Sices then called out to the other units that 7 one of the suspects was believed to be Raven Wiltz and that he had taken off running through fields toward Himbola Apartments. The audio of the police radio communications was admitted into evidence as State’s Exhibit 5. In the recording, the suspects, one being Raven Wiltz, were said to have run into the field, and one of the suspects was described as having a black rag around his head and wearing black shorts. One of the officers described seeing a person with a black backpack, black shirt, and khaki pants. Someone who heard the shots while working on his car saw two black males run toward Peppermill Street. Another officer stated that one of the subjects had a red bandana with cornrows. Another caller stated that a witness saw two black male subjects, one with dreads, that ran through a parking lot and were trying to hide in a neighborhood. Another officer stated a witness saw the suspects go toward Super One. Officers stated that various witnesses saw the suspects heading east – both wearing white t-shirts, one wearing a red hat and one wearing a black hat. According to the witness, the suspects were walking, not running. Two individuals were spotted off of “Johnny Street.” One of the officers stated that a witness said one of the suspects may have been picked up in a blue vehicle. One of the suspects, according to an officer, was peeping around some shrubbery. The defendant was apprehended while the other suspect remained at large. The second suspect was detained shortly thereafter. The two suspects that were detained were named Raven and Jamal. During his testimony at trial, Sergeant Sices identified Raven Wiltz as one of the defendants in court – the one with “dreads.” According to Sergeant Sices, the two individuals detained were “Jamal” and the defendant. described the crime scene as unusually chaotic. 8 Sergeant Sices On cross-examination, the following colloquy took place about the radio communications: Q. On the tape of the radio traffic did I hear correctly that somebody said one of the suspects had a black rag on their head? A. You may have. Q. Did I hear that somebody described the suspects as wearing a red bandana? A. Yes, sir, I think so. Q. Did I hear somebody say “black hat”? A. Yes, sir. Q. Was there also multiple communications about two suspects getting into a blue vehicle? A. Well, I mean, like I said, the crowd was saying - - people was coming and saying everything. I was just reporting it as the people were telling me, you know. Some said that he may have gotten into a blue vehicle, and some said that he - - I’ve had a lady to tell me that he ran into Himbola, and he was in one of the apartments, I mean, but - - You know, they was just saying some of everything out there at that time. When asked if information was being reported over the radio as it was learned, Sergeant Sices replied: A. Yeah. But the first person I went to - - I mean, the person who I knew, that I’ve been knowing for a long time, that person gave me information, told me who it was. I already knew where Raven lived, so I started calling out to the other officers where he lived at and things like that. Sergeant Sices testified that the defendant was a student at Lafayette Middle while Sergeant Sices was a resource officer at the school. Sergeant Benjamin Suire of the Lafayette Police Department testified that he participated in the investigation of the shooting in question. During the investigation, Sergeant Suire learned of video footage from a camera at a business – A&L Tire. According to Sergeant Suire, the timestamp on the video is July 6 at 9 6:58 p.m., around the time of the incident. The video footage was played for the jury and introduced as State’s Exhibit 6. The footage showed two black males fitting the description of the suspects walk by the business. Still photographs were taken from the video. One of the photographs (S-7) showed an individual wearing a red hat. Sergeant Suire agreed that this matched a description of one of the suspects. When asked to look at the second photograph taken from the video (S-8) and asked if there was anything unique about the individual in the image, Sergeant Suire replied, “It appears that he’s tucking an object, possibly a handgun which was reported to us, into the waistband of his pants.” On cross-examination, Sergeant Suire testified that he could not be certain that the object was a handgun but testified that “[i]t’s just consistent with what I’ve come across in my 23 years of law enforcement.” On re-direct, the following colloquy took place: Q. Sergeant, you’re familiar with the mechanics of a firearm? A. Yes, sir. Q. And an automatic weapon, a pistol, has the top. Do you know what that’s called? A. Yes, sir. It’s a semiautomatic weapon, but it’s a slide. Q. A slide? A. Yes, sir. Q. This location and what appears to be the civil - - silver, would that be consistent with what a slide would look like? A. Yes, sir. On cross-examination, Sergeant Suire was asked whether the video footage purported to capture the defendant and Lacon in the moments before the shooting. Sergeant Suire replied: A. I don’t know if it’s before or after. The description we were given of the persons involved matches what I saw on video, which is 10 why I contacted Detective Theriot, and he asked us to get a copy of the video. When asked if one of the individuals appeared to have something white in his ear, Sergeant Suire agreed that it could have been an earbud. Detective Adam Lefort worked in the Criminal Investigations Division of the Lafayette Police Department and participated in the investigation of the shooting in question. Detective Lefort learned of video footage at a business known as Zydeco Car Wash. The video footage was played for the jury and introduced as State’s Exhibit 9. According to Detective Lefort, the individuals depicted in the video footage were consistent with the descriptions of the “shooter” in the homicide. A still photograph taken from the video was introduced as State’s Exhibit 10. Detective Lefort testified that one of the individuals in State’s Exhibit 10 was wearing a red item around his head, “looking like a visor.” Detective Lefort also stated that the individual wearing the red visor was wearing long pants. On cross-examination, Detective Lefort agreed that one of the individuals in the video footage appeared to be speaking on a cell phone. The following colloquy took place regarding the motion of the individuals in the video: Q. . . . . The way they ambulate from when they enter the frame to here to back, how would you describe that motion? A. Unsure of where you’re going. Q. Well, I would describe that as walking. Would you agree? A. Yes. According to Detective Lefort’s report, the individuals were within the range of the cameras of the carwash for about four minutes, until 7:12 p.m. Detective Lefort agreed that the video showed the individuals go through a backyard and appear to hop over a hurricane fence. When asked if the individuals were moving at a leisurely pace the entire time they are shown in the video, Detective Lefort 11 replied, “I don’t recall seeing them running. Like you, I recall seeing them going over a fence, yeah.” The following colloquy then took place: Q. And the whole time that we see them here they’re walking. You know, they did hop the one hurricane fence, but they otherwise spend about four minutes from when they crossed Whitney Street to when they disappeared up here maybe one or two houses down on Pierce Street. Is that about your recollection? A. Yes. Corporal Asher Reaux of the Lafayette Police Department responded to the crime scene on the night in question. Corporal Reaux testified that the area near Johnny Street was canvased because of radio communications that someone was seen on Johnny. The following colloquy took place regarding the search of the area on Johnny Street: Q. Doing your canvas of that area did you locate any objects? A. Yes, sir. We went to the yard of a particular - - There was a trailer home with a yard, and somebody said they had seen the suspect - - last seen in that area, and we thought he had cut through the yard. So me, along with another - - a couple other officers, we got permission from the homeowner and searched the trailer to make sure nobody was inside. And then around that time they called out on the radio that they had captured - - they had detained a suspect, like, right across the street from there, so we started searching the yard to see if he had dropped or tossed anything in the yard. And underneath the trailer we located a red, like a headband thing, and then inside the trash can there was a pair of pants. Corporal Reaux identified State’s Exhibits 11 through 16 as accurate depictions of what he discovered on the night in question: Q. The State’s Exhibit 16, that is the trailer that you searched? A. Yes, sir, that’s it. .... Q. And there appears to be a large cactus - 12 A. Yeah. This is - - Back here is where the trash can was on this side of the trailer, and on this side across this street is where they - where they ended up capturing the suspect. Q. State’s Exhibit 15, that is what? A. That’s a pair of pants that was inside the trash can behind the trailer. .... Q. State’s Exhibit 13 and 14, that is the red - - A. Yeah, like a golfer hat or something. This was underneath the trailer, not far from where the trash can was. Corporal Reaux identified State’s Exhibit 17, an “Adidas Rajun Cajun red hat band,” as the item he discovered underneath the home. State’s Exhibit 18 was identified by Corporal Reaux as the pants located in the garbage can. According to Corporal Reaux, an arm of a cactus was stuck to the pants. Deputy Randy Meche of the Lafayette Parish Sheriff’s Office testified that he participated in the investigation of the shooting at issue. At that time, Deputy Meche worked for the Lafayette Police Department. Deputy Meche went to 118 Johnny Street in response to a radio dispatch to the area. Marcus Adams told Deputy Meche that there was a gun in a trash can in his front yard. Mr. Adams told Deputy Meche that when he located the gun, he used plastic gloves to pick it up and put it in the trash can. Mr. Adams said he was concerned for the safety of his nieces and nephews. Deputy Meche described the gun as a Ruger LCP. Photographs of the gun were admitted into evidence as State’s Exhibits 19, 20, and 21. Deputy Meche identified State’s Exhibit 22 as the Ruger LCP found in the trash can, and several .380 caliber cartridges. Detective Jason Migues of the Lafayette Police Department testified that he also searched the Johnny Street area the day after the shooting. According to Detective Migues, he located a gun tucked in the bushes. 13 Detective Migues identified State’s Exhibits 23 through 27 as accurate photographs of what he found in the bushes. Detective Migues also identified State’s Exhibit 28 as the gun portrayed in the photographs. On cross-examination, Detective Migues testified that the gun found in the bushes was a 9mm, a common caliber handgun. Corporal Chris Beasley of the Lafayette Police Department testified that when he arrived at the crime scene in question, it was completely chaotic, with people everywhere. According to Corporal Beasley, the crime scene had tape around it, and no one was inside the crime scene. Corporal Beasley identified photographs of items found at the scene - the victim’s covered body, five shell casings, and one projectile. Corporal Beasley also identified an exhibit introduced by the State as a fragment recovered from the victim’s body. Additionally, Corporal Beasley identified another fragment that was discovered at the scene. State’s Exhibit 50 was identified by Corporal Beasley as contact swabs taken from items of evidence and from the suspects for DNA testing. The pants, red visor, and guns previously introduced into evidence were identified by Corporal Beasley as items that he collected and processed for DNA testing as well. Clothing collected from both the defendant and Lacon was identified by Corporal Beasley as items collected into evidence. The first bag, Corporal Beasley agreed, belonged to Lacon and contained a pair of purple shorts, a white t-shirt, and white earbuds. The second bag, Corporal Beasley agreed, contained black shorts, a white t-shirt, a lighter, a charger, and white earbuds that belonged to the defendant. Finally, Corporal Beasley identified photographs of the defendant and Lacon taken at the Lafayette Police Department. According to Corporal Beasley, buccal swabs were taken from the defendant and Lacon for DNA testing. On cross-examination, Corporal Beasley identified a black Nissan in one of the photographs. Corporal Beasley believed the vehicle belonged to the victim. 14 According to Corporal Beasley, the Nissan was removed from the scene and taken to the Lafayette Police Department, where it was searched. When asked what he found while searching the vehicle, Corporal Beasley replied, “Two boxes of PPU .223 cartridges, one Glock magazine containing .40 caliber hollow-point cartridges.” Additionally, when asked if the Glock magazine had a number of rounds, Corporal Beasley responded: A. There was three PPU .40 caliber full metal jacket - - full metal jacket cartridges, and two Browning BXP .40 caliber hollow-point cartridges, and eight - - a total of eight. Q. And where were those two items found - - well, excuse me, three items? Two boxes of .223 rounds and the one Glock magazine, where were each of those found? A. The .223 cartridges were found in the tire well in the trunk, and the Glock magazine containing the cartridges was found in the glove box. Q. Did you, in your investigation of that vehicle, notice a bullet hole in the front of that vehicle? A. I believe it was in the front center. Q. Okay, yes. I don’t know if it was in your report, but that would - - that would serve your recollection correct, that there was a bullet hole in the front center of the vehicle. Did you investigate that bullet hole any further? A. If I recall, I believe we determined it to be an old bullet hole. Q. And not part of that - - that incident? A. Correct. Corporal Beasley agreed on re-direct examination that no weapons were found in the vehicle. Officer William White of the Lafayette Police Department was meeting with his narcotics agents on Willow Street when he heard radio communications regarding the shooting at issue. Officer White heard radio communication that two black males were running on Willow toward Super One. Officer White then 15 observed two black males walking casually. Officer White testified that the individuals showed no sense of urgency or nervousness. When asked if he remembered what they were wearing, Officer White replied, “I remember it was something red. I can’t remember if it was a bandana or a visor. I believe it was white shirts.” Officer White observed the individuals go through a fence area, which was a commonly used access route to the adjacent neighborhood. When asked if something happened to change his perception of the individuals, Officer White replied, “Oh, yeah,” and the following colloquy ensued: Q. And what was that? A. The next radio traffic. Q. And the next radio traffic indicated what? A. The red. And I can’t - - I think it was a visor. And once we had that visor I was like, okay, with the information we initially had, two black males running on Willow towards Super 1, these individuals walking with the red visor, that kind of heightened up our suspicions that these could be the possible suspects involved in the shooting. Q. Okay. So what did you do then? A. So me and Agent Benoit got in my unit. We left the parking lot. We drove very fastly [sic] to this shopping center right here, because I know from years of working here that this little cut-through, there’s not a whole lot of land to cover before you start hitting MLK Drive. So we positioned right here in the parking lot. The other agents, I believe, were all in the same vehicle. They positioned probably two blocks on Essie Street. Q. Did you at some point start observing these individuals again? A. Yes. Officer White identified his location on a photograph, and the following colloquy continued: Q. Okay. And this accurately depicts where y’all were located, looking back towards this trailer? 16 A. Correct. .... Q. Tell the members of the jury what you observed as y’all were sitting there. A. So once Agent Benoit and I got in position in our vehicle in the shopping center our focus was, hey, where did these guys go. When we looked across the street we see the green trailer, and I could see - Because there was no skirting on the trailer I could see legs moving back and forth rapidly. At times they would disappear, which I would believe that would be an obstruction either like a stairwell or something that would obstruct as far as why I’m not seeing the legs. But they kept going back and forth. So we’re watching this and we started seeing the marked patrol units responding or, you know, skirting the area to look for these potential suspects, and at the point a marked unit is observed traveling up Martin Luther King toward Frontage Road - - toward the Thruway. And at that time we see an individual peeking left to right of the corner of the trailer, I guess to see if the coast was clear, because it wasn’t like, hey what’s going on, it was scanning left and right. After that occurred and the marked unit kind of disappeared, that’s when Mr. Wiltz starts jogging toward our location, not knowing where we’re at - - or not knowing who we are. Q. And you’re not in a marked unit or - - A. Un-unh (no), I’m in an unmarked unit. But it wasn’t a sprint, it was just basically, I need to hurry up and get across the road. And we took him down in the parking lot. And once he - - once we asked him who he was, he said Raven Wiltz. That’s the name we had. Q. And that was the name that had been given to y’all? A. Correct. Over the radio transmission, yeah. Q. So y’all - - A. Yeah, so once we take him into custody I know that the other team is nearby, so I instruct them, “Look, you need to proceed toward this trailer and start sweeping the curtilage and land area to locate that additional subject.” And they had; they located him. 17 And after we got everybody secured we started getting information, “Hey, we’ve got some items discarded in a trash can, as well as on the ground,” the red visor. Q. And that was in the area that you saw these two individuals? A. Correct, yeah, where all the foot traffic was behind the trailer. Officer White identified Wiltz as a person in the courtroom “sitting at counsel table.” Corporal Christina Strong worked as an undercover narcotics officer for the Lafayette Police Department on the day in question. Corporal Strong was parked in an unmarked vehicle in a parking lot behind 220 West Willow Street. Corporal Strong heard radio communications regarding the shooting and heard that the suspects were being pursued. Several minutes later, Corporal Strong received a description of the suspects - two black males, both wearing white shirts and darkcolored pants, and one possibly wearing a red hat. When asked if they observed any individuals, Corporal Strong replied: A. Yes, we did. So our building is here, and there’s a library. Walking from between some of these buildings we did observe two individuals fitting that description. They passed through the buildings and they passed right near our vehicles to a little opening in the fence line here going to Johnny Street. B. Q. Okay. So did you know - - did you actually observe the two individuals? A. I did. Q. Did you notice anything unusual about them? A. Yes. When they came on the parking lot it appeared as if they had been running; both of them were sweating profusely, and they were moving fast. We don’t think at that time they knew that we were police officers because we were all in plain clothes. But they were very cautious whenever they passed us to come and go around where our vehicles were and not straight through our vehicles to the fence. Q. So did you get any further information that caused y’all to relocate? 18 A. They gave the description again which fit, and then somebody gave a last location of where they saw them running. And it was in our area where they lost them near Willow Street, and then they said they were passing Patterson. And they gave us the general area where they were going towards, which is the time we realized that those were the guys that had just walked passed us. Q. So what did you do? A. We all got in our vehicles. I was in a vehicle with Officer Jeremy Dupuis. He was driving; I was in the passenger seat. We left. We went to Willow Street because there’s a big, wooden fence, so we couldn’t just go straight through. So went around Willow Street. Some of our people stayed on that parking lot. We were basically trying to kind of set up a perimeter because we were going to assist patrol, you know, direct them to come. I put on an outer carrier vest which stated, “Metro Narcotics” on it. It’s our ballistic vest that we put on over our plain clothes. We turned onto Martin Luther King from Essie Street headed towards the Frontage Road. One of the individuals then ran across Martin Luther King almost into Sergeant Will White’s vehicle where he was on the parking lot, because he was coming in to set the perimeter, as well. At which time he was getting him on the ground Jeremy then stopped the vehicle, and I could see one of the suspects coming towards our vehicle. I exited the vehicle, held him at gunpoint. He immediately complied; got on the ground. I handcuffed him. Patrol arrived, and we left. Q. The individual that you handcuffed and took into custody, who was that? A. Mr. Lacon. Corporal Strong identified Lacon in court. When asked if she remembered what Lacon was wearing when he was arrested, Corporal Strong testified, “White shirt, dark pants.” Corporal Strong also stated that Lacon was walking on the side of a trailer. On cross-examination, Corporal Strong was asked if she remembered speaking to the victim, Desmond Boutte, on March 16, 2016, about shooting the 19 defendant’s brother. Corporal Strong replied, “I do remember the case. I don’t remember the specific - - the specifics of that.” Detective Brandon Stith of the Lafayette Police Department was accepted as an expert in digital forensics. Detective Stith performed a forensic investigation of the defendant’s cell phone, which was admitted into evidence as State’s Exhibit 64. Detective Stith identified a report that was generated as well as videos and photographs taken from the phone. According to Detective Stith, there was a video on the phone concerning the use of a firearm. Detective Stith also identified a still photograph that captured a gun in the defendant’s hand. Finally, some text messages were published to the jury as State’s Exhibit 65. Some of the text messages referred to the fact that “Desmond” had bonded out of jail. Detective Larry Theriot of the Lafayette Police Department responded to the shooting at issue. When Detective Theriot arrived at the scene, he was advised that the suspects were two black males wearing dark/black pants and white shirts. Additionally, one of the shooters was described as having a red cap and dreadlockstyle hair. Pictures of the defendant and Lacon taken at the police station were introduced into evidence as State’s Exhibits 53 to 61. According to Detective Theriot, State’s Exhibits 53 through 57 appear to be the defendant and State’s Exhibits 58 through 61 appear to be Lacon. The defendant appears to have dreadlocks, but Lacon does not. Multiple witnesses, Detective Theriot testified, reported that one of the shooters was the defendant, Raven Wiltz. According to Detective Theriot, he was advised that two suspects matching the clothing descriptions of the shooters were found near Johnny Street and Martin Luther King, Jr. Drive. The suspects were identified as Raven Wiltz (the defendant) and Jamal Lacon. According to Detective Theriot, he was told that a Ms. Bonner named Raven Wiltz. 20 The information provided was consistent that the suspects had run through the field toward the apartments. Detective Theriot testified that he spoke with Ms. Bonner, who stressed that she would not provide a written and/or recorded statement and that she would not look at a photo lineup. When asked if she identified a suspect and described how the shooting occurred, Detective Theriot replied: A. Yes, sir, she did identify one of the suspects by name. She said that she knew a Raven Wiltz. I believe she said she went to either high school or middle school with him. She advised - - I’m trying to pull from memory without looking at the report - - that the suspects had approached from what would be the tennis/basketball court area. She said that they were by a friend’s vehicle, that the suspects had approached and someone tried to intervene and say, “Look, don’t shoot, there’s too many people around.” The shooting still occurred. And I want to look at exactly what I had put. She said - - she stated that Raven Wiltz shot Desmond Boutte several times, and once his body hit the ground the second suspect who was unknown to her shot him, Boutte. Stated the suspects ran towards 804 Martin Luther King Drive. And again, she - - I indicated that she refused to look at any photographic lineups and refused to cooperate out of fear. Detective Theriot also spoke to Ms. Anderson, who said that she had witnessed the shooting firsthand. Detective Theriot read the following from his report, which Detective Theriot testified was typed immediately after speaking with Ms. Anderson: A. “At 2217 hours Chelsey Anderson arrived at Lafayette Police Department to speak with me. She advised that she was afraid to give a written and/or recorded statement. She stated that she would tell me what she saw. B. “She stated that Desmond Boutte was squatted down on the passenger side of Kelsea’s vehicle. She saw three males approach from the tennis courts of the Martin Luther King Center walking past the basketball courts. “When the male with the dreadlocks brandished a pistol the third male ran away. The two - - ” I have “reening” - - must be a typographical error. “The two reening suspects approached Desmond, 21 and another male shouted at the suspects not to shoot in this area due to the high volume of people.[”] “The male with the red cap and dreadlocks shot Desmond anyway multiple times in the legs and back. Once Desmond fell to the ground and tried to get back up the second male shot multiple bullets into the head of Desmond. Chelsey stated that both males ran to the - - both males then ran to the tall grass of the MLK Center and bedded down.” Detective Theriot also met Officer Reaux on Johnny Street, where Detective Theriot saw a large cactus with broken pieces near a trailer. Officer Reaux showed Detective Theriot a trash can containing a pair of dark-colored pants with cactus pieces stuck in them. The trash can was located on the backside of the trailer. A red visor, Detective Theriot testified, was found under the trailer. According to Detective Theriot, the area was canvassed again the following morning, at which time two firearms were recovered near the Johnny Street area. Video footage was also found at multiple locations, specifically a tire shop and the Zydeco Car Wash. When asked if the video was consistent with the descriptions, Detective Theriot replied: A. Yes, sir. From the interviews I had done the night before, from having seen the subjects that had been detained firsthand, knowing their physical descriptions from having met them in person and seeing what they were physically wearing, yes, sir. Q. So you actually had an opportunity to see them at the police station the night of their detention? A. Yes, sir. When asked if he observed any injuries or items on the clothing or bodies of the defendant or Lacon, Detective Theriot replied: A. Yes, sir. When I spoke with Mr. Wiltz I do remember in his hair there were, like, bottle caps from, like, a beer bottle or a glass bottle that were folded into pieces of his hair. And one of his legs - - I don’t recall from memory. One of his legs had what looked like a barb from a cactus in it or some sort of little vegetative bar, for lack of a better - - barb, for lack of a better term. 22 Mr. Lacon, I remember, had an injury on one of his hands, and I believe he told me it had come from a fence. It appeared - - There’s a photograph of it. He appeared to have it in two different spots on the hand, kind of near the thumb and kind of near this portion here on his hand. I don’t remember if he had any other injuries, off the top of my head, sir. Detective Theriot testified that both individuals were arrested for second degree murder and then identified both the defendant and Lacon in court. On cross-examination, Detective Theriot agreed that he and Detective Josh Strong discussed as a possible motive for the shooting in question that the victim had been investigated for the shooting of D.D. Wiltz in March. Detective Theriot read the following from a report of the shooting: A. “Mr. Boutte stated that the next day, March 19, 2016, he observed Mr. Wiltz walking on Jones Street.” I’m going to skip forward to the next sentence. “While Mr. Boutte was driving his vehicle, Mr. Boutte stated that he pulled his vehicle near Mr. Wiltz. Mr. Wiltz lifted his shirt and began grabbing at a pistol. Mr. Boutte stated that he was in fear of his life, so he shot Mr. Wiltz and fled the scene.” Detective Theriot also testified as to his conversation with the defendant on the night of the shooting at issue in the present case. Defense counsel questioned Detective Theriot about his report. Detective Theriot agreed that the report stated that the defendant denied being at the Center. Additionally, the defendant told police that he did not know where the victim was at the time of the incident. According to the report, the defendant stated that the puncture wound in his left leg was from a fence. The defendant told police that when he woke up on July 6, 2016, he met with “Jamal.” The defendant then stated that he and Jamal went to St. Anthony Park and then to Johnny Street to meet Marcus, Jr. Detective Theriot agreed that a Marcus that lived on Johnny Street contacted police. The defendant explained, “He saw a cop car, thought he had a warrant, so he ran and was detained by police.” Additionally, Detective Theriot testified regarding the text messages 23 from the defendant’s phone that were introduced as State’s Exhibit 65. Detective Theriot read a particular text message that read, “Walking to Girard. Bout to see what it’s looking like. I’ma [sic] holler at you later, bro.” When asked if the text was referring to Girard Park, Detective Theriot responded: A. There’s maybe a Girard Street, a Girard woods, a Girard crossing, but generally that’s all around that same area of Girard Park. Q. Right. Okay. Do they have basketball courts at Girard Park? A. I believe they do. When introducing the defendant’s Exhibit 8, defense counsel explained: MR. BENEZECH: So again, Google Map just indicating that Girard Park is 2-1/2 miles away from my client’s house, and he walks all the way to Girard Park to play basketball. We’ll combine it with the State’s evidence of his test [sic] message communication. When asked if the arrest on Johnny Street happened within ten minutes of the shooting, Detective Theriot replied, “It was fairly quickly. I don’t remember what the arrest or detain time was, but if [sic] was fairly quickly.” According to Detective Theriot, within thirty minutes of the shooting, the defendant and Lacon were detained and being transported to the police department. Detective Theriot agreed that the Johnny Street scene was not monitored between the night of the shooting and the canvassing that occurred the following morning. Detective Theriot agreed his report stated that multiple witnesses named Raven Wiltz as one of the shooters. According to Detective Theriot, one of the city marshals reported that an anonymous caller stated that “Daravius” of “201 DeLord Street” was one of the shooters. Detective Theriot did not think anyone went to the DeLord Street address. As for the photo lineup, Detective Theriot testified that a few hours after the shooting Ms. Anderson was shown a photo lineup of the defendant and a photo lineup of Lacon but was unable to select either the defendant or Lacon. 24 As for the injury to Lacon’s hand, the following colloquy took place: Q. You spoke yesterday about - - at least you testified yesterday that you believe that Mr. Lacon had cut his hand while jumping a fence; is that correct? A. Yes, sir. He had multiple injuries. It could be from - - It was some sort of sharp object trauma, and it was a large wound. I even remember holding up the picture showing that there were multiple punctures - - puncturing wounds, I would say. Q. It looked like a scrape on his hand? A. It looked like something punctured, and there was some lifted skin. I don’t remember which photograph it was, but it’s a very close shot of just the hand. I remember even indicating in my report that he was brought to be medically cleared for the cactus/fence injury or fence/cactus injury. Detective Theriot was questioned as to the video footage from Zydeco Carwash. Detective Theriot agreed that the individuals in the video footage appeared to be jumping a fence and appeared to be walking, not running. On re-direct, Detective Theriot agreed that his report stated that the defendant confirmed his address was 201 Delord Street, the same address given for “Daravius,” the possible shooter named by an anonymous caller. Detective Theriot also confirmed that the defendant did not have a twin. Additionally, Detective Theriot agreed that the defendant admitted he met with Jamal on the day of the shooting. As for the victim’s previous shooting of the defendant’s brother, the following colloquy took place: A. “Mr. Boutte then admitted to me that he shot Mr. Wiltz on Jones Street and that Mr. Wiltz attempted to shoot him on Carver Street the day prior. “Mr. Boutte stated that on March 18, 2016, he was standing on Carver Street at a friend’s house and observed Mr. Wiltz driving a silver truck on Carver Street. Mr. Boutte stated that Mr. Wiltz then produced a firearm and began shooting at him.” Q. So we’ve got Mr. Boutte shot at one day, the next day he shoots the defendant’s brother, and then the next thing we know, Desmond Boutte is gunned down and killed, correct? 25 A. Correct. Phillip Stout, a forensic chemist with the Acadiana Crime Lab, was accepted as an expert in firearms analysis. Mr. Stout agreed that the guns collected by the police and the cartridges collected from the crime scene were provided to the lab. According to Mr. Stout’s report, he received one box marked “122 1/2 Johnny” that contained one “Lorcin, model L9MM, 9mm Luger caliber pistol[,]” and one box marked “110 Johnny” that contained one “Ruger, model LCP, .380 Auto caliber pistol[.]” (State’s Exhibit 73.) Mr. Stout testified as follows: A. So based on that analysis I was able to determine that the jacketed bullet, item 6 - - Let’s see. I’m sorry. The jacketed bullet, item 12, and the cartridge cases, items 1 through 4, were identified as having been fired from the Lorcin pistol which was item 9. The .380 auto caliber cartridge case, item 5, was identified as having been fired from the Ruger pistol, item 10. Q. And so you basically - - The casings that were recovered at the crime scene coordinated with the two guns that were recovered - A. Correct. When asked if in his professional opinion, the cartridges found at the crime scene as well as the fragments belonged to the two guns recovered, Mr. Stout replied, “Yes, that’s correct.” Chau Nguyen, a forensic DNA analyst with the Acadiana Criminalistics Laboratory, was accepted as an expert in forensic DNA analysis. Ms. Nguyen testified that she examined a DNA swab from the visor introduced in the present case and a DNA swab from a pair of pants. Ms. Nguyen testified as follows as to her scientific conclusions: A. Okay. For item 24 which was the swab of the sweatband - And the sweatband is the inside rim of like a baseball cap or a visor. So that was the area that we tested. The conclusion is a mixed DNA profile consisting of at least three contributors. Most likely one major 26 contributor and at least two minor DNA contributors was obtained from the swab of this sweatband. The profile of the major DNA contributor matches the DNA profile obtained from the reference sample of Jamal Lacon. I apologize if I’m pronouncing that wrong. In the absence of identical twins it can be concluded that to a reasonable degree of scientific certainty Jamal Lacon is the source for the major DNA contributor profile found on this item. The profile from the minor DNA contributor is a mixed partial profile. Raven Wiltz, Marcus Adams and Desmond Boutte are excluded as possible contributors to this mixed partial minor DNA contributor profile. As for the waistband of the pair of pants, Lacon was identified as the major DNA contributor. Ms. Nguyen agreed that Lacon’s DNA was on the hat and the waistband of the pants. The rest of the items either contained no DNA or DNA that was too incomplete to make a comparison. According to Ms. Nguyen, some samples were sent to TrueAllele for further analysis. When asked if TrueAllele was a way to further process DNA samples to determine statistical probabilities, Ms. Nguyen responded, “Yes, for mixture samples and partial samples.” Carolyn Booker of the Acadiana Crime Lab was accepted as an expert in DNA analysis. Ms. Booker explained that the “TrueAllele software attempts to . . . take the raw DNA data and separate out the components or separate out the two contributors so that we can then compare it to the reference samples from individuals.” Ms. Booker testified that she is certified in using the TrueAllele software and testified that quality assurance testing is performed on the program to assure accuracy in results. When asked to explain how the TrueAllele testing is different than the testing performed by Ms. Nguyen, Ms. Booker replied: A. Well, what Chau did is she actually did actual DNA testing. She took the swabs or whatever happened to be the substrate that the DNA was on and she actually processed to get a DNA profile or get a type from the swab, and she did a comparison to the references. And she compared the single source, meaning there was only one person or one contributor to the DNA profile. 27 Where it gets more complicated is when there is a mixture of DNA containing two or more contributors, so that’s where we use the TrueAllele software. And it’s a much more complete and unbiased way to do a comparison. And we’ve been doing it about a little over two years at the lab. Ms. Booker testified that Ms. Nguyen obtained “several mixtures.” The first one examined by Ms. Booker was a swab of the trigger guard of the Lorcin pistol. According to Ms. Booker, the results of her analysis on this particular swab were as follows: A. Jamal Lacon is 7,300 times more likely than a personal match to an unrelated individual and a match between a second inferred contributor profile. And Raven Wiltz is 950 times more probable than a coincidental match to an unrelated individual. As for the result of testing done on the swab from the sweatband of the hat, Ms. Booker testified: A. Okay. A match between one of the inferred contributor profiles that Jamal Lacon is 320 trillion times more probable than a coincidental match to an unrelated person. And there was no match support to Raven Wiltz, which basically means he was excluded from the mixture. As to the waistband of the pants, Ms. Booker determined: A. Okay. The waistband. A match between one of the inferred evidence profiles, and Jamal Lacon is 100 billion times more probable than a coincidental match to an unrelated individual. And there was no match to Raven Wiltz, which basically means he was excluded. Finally, Ms. Booker explained the results that the TrueAllele System generated from a swab of the “right slide” of the Ruger pistol: A. Yes. There was a match between the - - one of the evidence profiles. And Jamal Lacon, that was 16,000 times more probable than a coincidental match to an unrelated individual. And there was no match support for Raven Wiltz. By stipulation, the parties admitted the coroner’s report without calling the coroner as a witness. According to the report, the victim died from gunshot wounds to his head and his extremities. 28 The defendant’s sister, Megan Wiltz, testified for the defense regarding text messages she received from the defendant about “Desmond” getting out of jail. Megan was shown State’s Exhibit 65 and identified her old telephone number on the log of communications. Megan testified as follows regarding the text messages between her and the defendant: A. I said, “That boy out there.” Q. And he texted back, “Who?” A. And I said, “Desmond out. Piss me off.” Q. Now, you were upset that Desmond was out after he shot your brother? A. Yes, sir. Q. How many times did Desmond shoot your brother? A. Seven. Q. And then Raven asked, “He bonded out?” A. Yeah. Q. And then you say? A. “I guess so. That shit ain’t cool, and my brother locked up.” Q. Which brother were you talking about being locked up? A. The one he shot. Q. And what is his name? A. Devante. Q. And he goes by D.D.? A. Yeah. Q. So D.D. was locked up having been shot seven times and Desmond was out - A. Yes, sir. 29 Q. - - at this point in June of 2016? All right. Raven says, “Can’t help him, though. We out struggling - - out here struggling,” I take that to mean. “I’m still trying to get all my shit.” And then you respond? A. I say, “I’m talking about Desmond out.” Q. And then you also say? A. I said, “Watch your back. Call Darrin ‘cause you by yourself.” Q. All right. Now, what did you mean by that, “Desmond is out. Watch your back . . .”? .... A. Well, I was just telling him to watch his back. Q. You were just telling him to watch his back. And is it because you were scared that - A. Uh-huh (yes), be careful, you know. Q. - - that Desmond was going to shoot Raven? A. Right. Q. Okay. All right. Then Raven says, “And I’m talking about D.D., I ain’t worried ‘bout that nigga ‘cause when I see him he knows what’s good.” The defendant argues the evidence introduced by the state to convict him of second degree murder was very conflicting, that the crime scene was chaotic, that numerous descriptions were given of the suspects, and that the weapons produced at trial were not linked to the defendant at the time of the shooting. As for the clothing found at the trailer near where the defendant was apprehended, the defendant suggests that the cactus needle found in the pants could have necessitated a change of clothing. Furthermore, the defendant asserts that his DNA was not found on any of the clothing. The defendant notes that the state failed to present the testimony of several witnesses to the shooting, particularly Ms. Bonner’s boyfriend, Keelan. According 30 to the defendant, the state’s case hinged on the testimony of Ms. Anderson and Ms. Bonner, both of whom failed to establish the defendant as one of the shooters. The state asserts the evidence clearly showed that the defendant participated with Lacon in the execution of the victim reviewing the evidence outlined above. The evidence was sufficient to convict the defendant of the murder of the victim in this case. Unlike Lacon, the defendant was named as one of the shooters by an eyewitness to the shooting. Specifically, Sergeant Sices and Detective Theriot testified that Ms. Bonner named the defendant as one of the shooters. Although at trial Ms. Bonner denied telling police that she named the defendant as one of the shooters, Ms. Bonner acknowledged that she knew the defendant from “being in the community” and identified the defendant as the gentleman with “dreads” “sitting at counsel table.” Sergeant Sices also testified that he had known the defendant for a long time and likewise identified him as one of the defendants in court – the one with “dreads.” Despite her denial at trial, Ms. Bonner’s identification of the defendant as one of the shooters at the time the offense occurred was substantive evidence of the defendant’s guilt. The supreme court has stated the following regarding such evidence: A prior statement by a witness which is “[o]ne of identification of a person made after perceiving the person,” is non-hearsay when the witness appears and is cross-examined on the statement. La.C.E. art. 801(D)(1)(c). Such a statement may be used assertively, as substantive evidence of guilt, and may be established through the testimony of one to whom the statement was made. This is so even if the witness denies making an identification or fails or is unable to make an in-court identification. State v. Johnson, 99-3462, pp. 2-3, 774 So.2d 79, 80-81. The federal rule is similar. See Fed.R.Evid. 801(d)(1)(C); United States v. Brink, 39 F.3d 419 (3rd Cir.1994); United States v. Jarrad, 754 F.2d 1451 (9th Cir.1985). See also 5 Weinstein's Federal Evidence, (MB) § 801.23[1], p. 801-39 (2nd ed., Joseph M. McLaughlin, ed., 2002). 31 State v. Stokes, 01-2564, pp. 1-2 (La. 9/20/02), 829 So.2d 1009, 1010 (alteration in original). Considering the following explanation of direct and circumstantial evidence, Ms. Bonner’s identification of the defendant as one of the shooters is considered direct evidence of the defendant’s guilt: Generally, direct evidence consists of testimony from a witness who actually saw or heard an occurrence, proof of the existence of which is at issue; whereas, circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Austin, 399 So.2d 158 (La.1981). Where there is direct evidence, the trier of fact weighs the credibility of evidence and the reviewer under Jackson defers to that trier of fact, assuming the proven facts most favorable to the State. Where an essential element of the crime is not proven by direct evidence, La.R.S. 15:438 applies. That rule restrains the fact finder, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. State v. Shapiro, 431 So.2d 372 (La.1983) (on rehearing). State v. Lilly, 468 So.2d 1154, 1158 (La.1985). In the present case, the jury heard the testimonies of Sergeant Sices and Detective Theriot that Ms. Bonner named the defendant as one of the shooters. As stated above, the jury, therefore, had direct evidence that the defendant was one of the shooters. The jury was able to weigh this evidence against the testimony of Ms. Bonner denying that she named the defendant as a shooter. In making this credibility determination, the jury also had the benefit of the following circumstantial evidence connecting the defendant to the shooting. To begin, there was evidence that the defendant had a motive to kill the victim since the victim shot the defendant’s brother only a few months before on March 16, 2016. Additionally, the evidence showed that the defendant was connected to Lacon, a person who was linked to the shooting through DNA evidence. Ms. Anderson testified that there were two shooters – black males 32 wearing white shirts and one wearing a red cap. Video footage from businesses in the area of the shooting showed two black males fitting the description of the shooters walking, cutting through yards, and jumping over fences within minutes before and after the shooting. One of the suspects appeared to put an object that looked like a gun in his pants. Police in the area also reported seeing the individuals casually walking at times but moving fast and sweating profusely at another time. Detective Theriot testified that the individuals shown in the video footage matched the description of the suspects and matched the defendant and Lacon as they appeared at the police station the night of their arrests. Although Lacon was not wearing a red cap/visor when he was arrested, a red visor and dark-colored pants, both containing Lacon’s DNA, were found in the vicinity of a trailer at which the police saw two individuals moving around. The dark-colored pants containing Lacon’s DNA had a piece of cactus stuck to them, which apparently came from a big cactus located next to the trailer. Both of these items matched the description of clothing worn by one of the shooters. The defendant also had cactus thorns stuck in his leg when he was arrested. Police saw the defendant peek around the corner of the trailer right before he ran across the street to an unmarked police unit and was arrested. Lacon was also seen walking near the trailer and arrested shortly thereafter by another unmarked police unit in the same area. Additionally, when he was arrested, the defendant told police that he was with “Jamal” the day of the shooting. There was no dispute that Lacon was the “Jamal” to which the defendant referred. Moreover, the guns used in the shooting were both found near the trailer where the clothes were discarded and near the location the defendant and Lacon were arrested. In response to a call from Marcus Adams that a gun was in a trash can in his front yard, Deputy Meche went to 118 Johnny Street and found the 33 Ruger in a trash can. The Lorcin 9mm Luger pistol was found in bushes located at 122 1/2 Johnny St. When defense counsel questioned one of the deputies about his search of the area where the clothing was found, defense counsel referred to the area being canvassed as 122 Johnny Street. A comparison of the picture of the green trailer where the clothing items were discarded and a picture of the bush in which the Lorcin pistol was found, suggests the bush was near the green trailer. State’s Exhibit 24 shows the bush as being near a white tent/gazebo, which appears to be the same white tent/gazebo behind the green trailer pictured in State’s Exhibit 16. The bush in which the Lorcin was found is visible behind the tent/gazebo, which is located behind the green trailer as pictured in State’s Exhibit 16. According to the firearms analysis expert, both the Lorcin pistol and the Ruger were connected to the cartridges and fragments found at the crime scene. Finally, DNA evidence linked both the defendant and Lacon to the guns found. Ms. Booker, an expert in DNA analysis testified that Lacon was 7,300 times more likely to be a match to the DNA swabbed from the Lorcin pistol than a coincidental match to an unrelated individual. The defendant was 950 times more likely to be a match to the DNA swabbed from the Lorcin pistol. As for a DNA swab of the Ruger pistol, Lacon was 16,000 times more probable to be a match than a coincidental match to an unrelated individual. This court has stated the following regarding a jury’s rejection of a defendant’s hypothesis of innocence: With respect to a jury’s rejection of a hypothesis of innocence, our supreme court in [State v.] Calloway, [07-2306 (La. 1/21/09),] 1 So.3d [417] at 422 (citations omitted), concluded: [W]e have repeatedly cautioned that due process, rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to substitute its own appreciation of the evidence for that of the fact finder or to second guess the 34 credibility determinations of the fact finder necessary to render an honest verdict. A reviewing court may intrude on the plenary discretion of the fact finder “only to the extent necessary to guarantee the fundamental protection of due process of law.” Thus, as Judge Pettigrew emphasized, when a jury reasonably and rationally rejects the exculpatory hypothesis of innocence offered by a defendant’s own testimony, an appellate court’s task in reviewing the sufficiency of the evidence under the Due Process Clause is at an end unless an alternative hypothesis “is sufficiently reasonable that a rational juror could not ‘have found proof of guilt beyond a reasonable doubt.’ ” The jury’s decision to reject the defendant’s hypothesis regarding the commission of the crime was based upon its rational credibility and evidentiary determinations. Accordingly, the jury’s verdict should not be overturned. State v. Jackson, 14-9, pp. 12-13 (La.App. 3 Cir. 6/18/14), 146 So.3d 631, 639, writ denied, 14-1544 (La. 2/27/15), 159 So.3d 1066 (fourth alteration in original). Likewise, the jury’s rejection of the defendant’s hypothesis of innocence in the present case was based upon its rational credibility and evidentiary determinations. Both the defendant and Lacon denied that they were involved in the shooting. Throughout their cross-examination of the witnesses, both the defendants’ attorneys attempted to discredit the police investigation of the case, implying that the police did not talk to all of the potential witnesses and ignored possible suspects. During his closing argument, the defendant’s attorney suggested that both the defendant and Lacon were innocently in the area of the shooting when they heard the commotion at the MLK Center. When they saw the victim’s car and knew that he was the one that shot the defendant’s brother three months earlier, they decided to leave for fear that the victim would see them and start looking for them. The defendant’s attorney suggested that the defendant and Lacon went to see a friend on Johnny Street. When their friend was not home, they tried to go into his bedroom window, at which time Lacon was stuck by a cactus in his leg. 35 Embarrassed and mad, Lacon threw his hat, pulled off his pants, and threw the pants in the trash. Defense counsel further suggested that word of the arrest of the defendant and Lacon spread, and the real shooters decided to plant the guns at the Johnny Street scene, which was left unattended overnight. The DNA evidence from the guns, defense counsel argued, amounted only to a probability, which is not enough to convict. Defense counsel argued that DNA from the defendant and Lacon would have been all over the guns since they were supposedly sweating profusely. The jury heard this hypothesis of innocence and obviously rejected it. Considering the testimony that the defendant was named as one of the shooters along with the circumstantial evidence linking the him to the shooting, the jury’s rejection of this hypothesis of innocence was reasonable. The evidence was sufficient to convict the defendant, and this assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER TWO The defendant alleges that his right to a fair trial by an impartial jury was violated when the trial court refused to dismiss two of the jury panels. The initial question to the first panel of prospective jurors was whether anyone knew either the defendant or Lacon. The first juror called upon by the trial court was Mr. Spears. Mr. Spears was questioned as follows: THE COURT : How do you know the defendants? MR. SPEARS (NUMBER 327) : Well, I work in -- I work in corrections. So Mr. Jamal, like I dressed him this morning. And Mr. Wiltz, I know him because -THE COURT : Hang on. MR. SPEARS (NUMBER 327) : Okay. THE COURT : Hang on. I’m going to excuse you, Mr. Spears, because this is a criminal case in which the sheriff’s office or other law enforcement agencies are involved. 36 MR. SPEARS (NUMBER 327) : Yes, sir. Counsel for Lacon then asked to approach. The court acquiesced, and a bench conference was held. Afterwards, jury selection resumed. At the conclusion of the day’s proceedings, counsel for Lacon, Mr. Edwards, stated he would “like to proffer an objection.” He pointed out Mr. Spears statement about dressing his client. He then noted: I filed a motion last week requesting that my client, at least, appear in civilian clothing without restraints, which was requested and a common practice, and those laws are very well stated in juris prudence [sic]. And although I think maybe the potential jury didn’t quite understand the impact that a statement like that could have at the beginning of voir dire would prejudice my client unduly. We had a sidebar. I gave this objection to the attention of the Court. The court noted Mr. Edwards had made a contemporaneous objection, and counsel continued: “Secondly, as part of the same objection, when we returned from break the defendants had not been pulled back in before the jury was brought in and seated. So they got the [sic] witness, my defendant, having to come in because he had been escorted out, with an officer.” The court pointed out that it observed the defendant return from the conference room with counsel, co-counsel, and two sheriff’s deputies. The objection continued: MR. EDWARDS : Yes, I think there was a smaller impact to that issue, still prejudicial. These things add up, and I think we just need to be a little more careful in trial when we’re doing these things. But I want to definitely note my objection as to both -.... MR. EDWARDS : -- and request that those jurors be removed for cause because of that outburst. Counsel for the defendant joined in the objection. 37 The state argued Mr. Spears was not an officer of the court, and his response was not elicited by the state. The state further argued: It did not appear, in my observation, the jurors, nor did it come up any other time in voir dire as to any detrimental prejudiced [sic] comments as to the defendants. In addition, there was no objection made about the incident that he’s talking about. I did not even observe that. But it was clear to me from the extensive voir dire that was done by all parties that there was no prejudice to the defendants. The court stated: I think that even if the defendant inadvertently or otherwise appears before a jury in prison garb, it doesn’t necessitate a mistrial, and it wouldn’t necessitate sustaining a cause challenge for anybody who might have seen it. I really doubt whether anybody noticed it, and I’m convinced that with the opportunity to examine the panel by all counsel that there wasn’t any prejudice to the defendants. So I’ll deny the motion, Mr. Edwards. On the second day of voir dire, Ms. Hetherwick, who was on the second jury panel and the first prospective juror to be questioned that day, was asked about her employment at the sheriff’s office as follows: THE COURT : What’s your position there? MS. HETHERWICK : (NUMBER 265) I’m a transitional coordinator for the re-entry program. I was actually transitional coordinator for -THE COURT : Okay. All right. Well, I have a policy of always excusing law enforcement officers from criminal juries. I’m sorry that you’ve had to endure all that time downstairs in the assembly room and also up here today. But when I saw that you were employed by the sheriff’s office, I told counsel that I’m [sic] going to excuse you. But thank you and, hopefully, you’ll be called to do your civic duty on a civil jury sometime. A bench conference followed. 38 During a ten minute recess later in the day, counsel for the defendant discussed Ms. Hetherwick as follows: MR. BENEZECH : On the questioning of Juror Number 265, that’s Ms. Hetherwick, she is an officer for the sheriff’s department. She works at the jail, at LPCC. She is involved in programs and release procedures. It was brought to the attention of the Court prior to any questioning of her that she may have information related to the continued custody of my client and she revealed some of that information to the panel. THE COURT : I think what happened was that I had advised counsel before we even examined this panel that she was a law enforcement officer, and I was going to excuse her. And I thought I would head off the problem we had yesterday by addressing it and asked her what -- in what capacity did she work for the sheriff’s office, and I think she volunteered that she was in the transitional programs or whatever and had some dealings with one of the defendants; I don’t know which one. MR. BENEZECH : My client, Mr. Wiltz. THE COURT : That would -- that could call to the attention of the other jurors that they were incarcerated which would not shock them, I don’t think, and I don’t think it would prejudice them, but I note your objection and your motion would be for the excusal of the entire panel? MR. BENEZECH : That’s correct, Your Honor. THE COURT : I’m going to deny that motion but note your objection. The defendant contends a mistrial should have been granted pursuant to La.Code Crim.P. art. 775, which provides, in part: “Upon motion of a the defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.” The defendant asserts, based on the questioning of Mr. Spears and Ms. Hetherwick, that prejudice is apparent. The defendant argues the statements by the two prospective jurors indicated he was “in jail and custody” and “guilty prior to trial.” The 39 defendant additionally points out that he was brought back into court by deputies, which was observed by the jury. The defendant contends the fundamental right to a fair trial has not been observed in this case. Therefore, his conviction should be reversed. In support of his claim, The defendant cites State v. Jones, 98-1165 (La.App. 3 Cir. 2/3/99), 734 So.2d 670. In Jones, the prosecution made the following comments: How is it that he’s a self-confessed liar when what he is saying totally coincides with what Mr. LeJeune said took place that day? The problem is that this self-confessed liar took responsibility for what he did and pled guilty. Mr. Jones does not want to take responsibility for his actions. Id. at 671-72. The defendant objected to the state’s remarks and moved for a mistrial based on the State’s allegedly improper reference to his failure to testify. This court held that the comments were improper and violated the defendant’s constitutional right to the presumption of innocence. However, the court found that a constitutional error did not automatically require reversal and that a reversal was warranted only when the substantial rights of the accused were affected. The court went on to find that the comments had a “high probability of allowing the jury to impose a lesser standard than guilt beyond a reasonable doubt.” Id. at 673. Furthermore, the comments were “unrelated to any truth-seeking function and aborted the presumption of innocence and right to a fair trial” guaranteed by the constitution. Id. This court ordered a mistrial and remanded the matter for a new trial. Jones is clearly distinguishable from the defendant’s case, which does not involve improper comments made by the prosecutor. The defendant cites the law regarding mistrials. However, he did not move for a mistrial. Counsel for Lacon asked that the first jury panel be dismissed for cause, and counsel for the defendant joined in his objection. Counsel for the defendant later asked that the second jury panel be dismissed. 40 “Where the defendant does not request a mistrial and no grounds exist for the trial court to order a mistrial sua sponte, the trial court does not err in failing to grant one.” State v. Day, 14-708, p. 9 (La.App. 3 Cir. 12/23/14), 158 So.3d 120, 128. In State v. Green, 10-791, p. 15 (La.App. 4 Cir. 9/28/11), 84 So.3d 573, 583, writ denied, 11-2316 (La. 3/9/12), 84 So.3d 551, the fourth circuit stated: “At no point in the instant case did either defense counsel move for a mistrial in connection with his objections to the prosecutor’s alleged improper argument. Therefore, defendants were not entitled to any relief under La.C.Cr.P. art. 770.” The record indicates that counsel for Lacon asked for a bench conference during the questioning of Mr. Sharp. At the conclusion of the proceedings for that day, counsel for the Lacon “proffered” an objection, and the trial court noted a contemporaneous objection had been made by him earlier that day. There was no indication that counsel for the defendant made a contemporaneous objection to Mr. Spears’ remarks. He merely joined in the objection “proffered” by counsel for the co-defendant at the end of the day. The defendant’s objection was not timely made. In State v. Williams, 03-1773, pp. 7-9 (La.App. 3 Cir. 6/2/04), 878 So.2d 765, 770-71, this court discussed contemporaneous objections as follows: Louisiana Code of Criminal Procedure Article 841 states in pertinent part, “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” Defendant cites State v. Lee, 346 So.2d 682 (La.1977) to say that the error must be brought to the judge’s attention within a reasonable time. In Lee, the defendant was being retried after the supreme court reversed his conviction. At the second trial, during questioning of one of the witnesses, the prosecutor referred to the date of the first trial and mentioned there was a conviction. No objection was made by defense counsel at this point. During the state’s rebuttal closing argument, the prosecutor again referred to the first trial and the fact there was a conviction. Shortly after these references, defense counsel objected and moved for a mistrial. On appeal, the state argued defense counsel’s objection was untimely. The supreme court stated the issue to be decided was whether the belated motion for mistrial, made after repetition of an unobjected-to error, could be considered in the 41 absence of an objection to the first improper reference. The court stated: Article 841 is not an inflexible rule imposed on criminal litigants without rationale or justification. It is necessary adjunct to our role as an appellate court which is intended to promote judicial efficiency and to insure fair play. See State v. Smith, 339 So.2d 829 (La.1977[1976]); State v. Ervin, 340 So.2d 1379 (La.1977[1976]); State v. Marcell, 320 So.2d 195 (La.1975). For example, its operation prevents a defendant from gambling for a favorable verdict and then, upon conviction, resorting on appeal to errors that could have been corrected at trial, had he but brought the errors to the judge’s attention. State v. Smith, supra; State v. Knight, 323 So.2d 765 (La.1975); State v. Marcell, supra. .... What our rules require is that counsel bring an error to the attention of the trial judge within a reasonable time after the error occurs so that he can cure the error or declare a mistrial. C.Cr.P. arts. 770, 771, 841. Generally, a contemporaneous objection must be made immediately. In certain instances, however, objections which come shortly thereafter will be considered timely, see State v. Foss, 310 So.2d 573 (La.1975), and there are even instances in which no objections are required because they would be a vain and useless act, see State v. Ervin, supra. Particularly may there be such exceptions to the general rule during closing argument for reasons expressed in the following law review comment: “one must recognize that the closing argument of the prosecutor may be so permeated with improprieties that constant objections may alienate the jurors or underscore the remark rather than erase it from their minds. Therefore, an objection at the end of the summation should be considered timely, and in some cases should be allowed outside the presence of the jury.” (citations omitted) 34 L.L.Rev. 746, 759 (1974). Moreover, we recognize that a prosecutor’s prejudicial comments in closing argument may be considered by a federal court to violate federal due process guarantees even in the absence of a defense challenge or objection at trial. United States v. Briggs, supra, 457 F.2d 908 (2d Cir.1972); United States v. Grunberger, 431 F.2d 1062 (2d Cir.1970); United States v. Sawyer, 347 F.2d 372 (4th Cir.1965). 42 The only effect we can see in counsel’s failure to promptly request relief was that the trial was unnecessarily continued beyond a point when it should have been aborted. We do not find that sufficient reason to bar the defendant from making a later motion when the error was blatantly repeated. Therefore we hold that the trial judge erred in refusing to grant defendant a requested mistrial when the prosecution during rebuttal argument stated and stressed that defendant Lee had been convicted of this very murder on an earlier trial of the case. Id. at 684-85. In the other case cited by the defendant, State v. Mullins, 537 So.2d 386 (La.App. 4 Cir.1988), the defense made an objection at the close of the state’s closing argument. For the reasons discussed in Lee, the court found the error was preserved for appeal. The year after Lee was decided, the supreme court dealt with this issue in State v. Sepulvado, 359 So.2d 137 (La.1978). In Sepulvado, the defendant contended on appeal that the trial court erred in allowing the state to question the victim about acts of sexual intercourse with the defendant other than the one at issue. During trial, the victim testified regarding two instances of sexual intercourse with the defendant. The prosecutor then asked her if she subsequently had sexual relations with the defendant. At that point, defense counsel objected. The supreme court held the objection came too late and the issue could not be raised on appeal. A similar conclusion was reached by the supreme court that same year in State v. Brown, 354 So.2d 516 (La.1978). In Brown, during the cross-examination of witness Simmons, the prosecutor arguably made a reference to the witness’ post-arrest silence. However, the supreme court found the objection to the question was not timely because it was not made until the prosecutor concluded two pages of cross-examination concerning the subject. Thus, the defense was not allowed to raise the error on appeal. Considering the foregoing cases, as well as the cogent facts of this case (the statement made by Gallington is separated by a substantial amount of testimony, two courtroom breaks, much more than an hour, and thirty-five pages of transcript from the objection to motion for mistrial), we find that the objection was not timely made and, therefore, The defendant has not preserved this issue for appeal. Thus, this assignment of error is without merit. Even if trial counsel had made a timely objection, the trial court did not err in denying the request to dismiss the first jury panel. Mr. Sharp stated he dressed 43 Lacon and indicated he knew the defendant. Mr. Sharp was interrupted and did not state how he knew the defendant. There was no attempt by the defendant to meet his burden of proving he could not receive a fair trial as he did not question prospective jurors regarding Mr. Sharp’s comment or request an admonishment be given by the court. In State v. Young, 469 So.2d 1014 (La.App. 1 Cir. 1985), the defendant argued the trial court erred by failing to summon a new jury venire or grant a mistrial because the current venire had been tainted by prejudicial comments and newspaper reporting. During voir dire, several prospective jurors stated they believed the defendant was guilty based on information received from media reports. After the first two of those jurors had been excused, the defendant moved for a new jury venire to be impaneled due to the impact of those statements. The trial court denied the motion. At the conclusion of jury selection, the defendant again objected to the jury venire. The first circuit addressed the defendant’s claims: The setting aside of a jury venire is properly raised by a motion to quash, not by objection. LSA–C.Cr.P. art. 532; State v. Charles, 350 So.2d 595 (La.1977). However, we observe that if the attack upon the petit jury venire were properly made, it is without merit. State v. Francis, 285 So.2d 191 (La.1973). The defense was entitled to challenge for cause those prospective jurors who stated that they had been influenced by this testimony, or who had formulated an opinion as to the guilt or innocence of the accused. The transcript of the voir dire indicates that the trial court carefully monitored the responses by the prospective jurors, and excused any jurors who might possibly have been influenced by statements indicating any preconceived opinions. To quash the entire venire on the basis of exposure to one source of information would seem a meaningless gesture, particularly when the voir dire process remains available. State v. Bland, 419 So.2d 1227 (La.1982). Barring a showing of actual bias or lack of impartiality, the defendant’s objection to the jury venire was properly denied. The Defendant further contends the trial court erred in failing to grant a mistrial, based on the same allegations of a tainted jury. The 44 defendant herein did not request a mistrial. He does not show that the statements by the prospective jurors made it impossible for him to obtain a fair trial or operated as a legal defect in the proceedings. LSA–C.Cr.P. art. 775. The record establishes that the jurors selected were fair and impartial. The trial court did not err by failing to grant a mistrial. Id. at 1019-20. In State v. Price, 40,408 (La.App. 2 Cir. 12/16/05), 917 So.2d 1201, writ denied, 06-156 (La. 6/16/06), 929 So.2d 1284, a sheriff’s deputy was called in the general venire as a prospective juror. When questioned by the State, he said he worked at the Ouachita Parish Correctional Center, so he knew the defendant. Counsel for defendant moved for a mistrial, which was denied. The second circuit addressed the motion for mistrial as follows: Here, Deputy Bagwell’s unsolicited comment about “knowing” the defendant from “OCC” was made during the third panel of eighteen prospective jurors. As soon as Deputy Bagwell made the comment, defense counsel requested a side bar, interrupting any further remarks, and the court immediately halted voir dire. When voir dire resumed, Deputy Bagwell was not questioned any further. The record shows that all parties thoroughly examined each prospective juror, and no one was questioned regarding whether they heard Deputy Bagwell’s comments. Defense counsel had the opportunity to examine the remaining members of the venire regarding the comments, and had the opportunity to challenge for cause anyone who may have heard the comments. Yet, the defense failed to do so. Moreover, the trial court determined that the instructions to the jurors at the beginning and at the close of the case would be sufficient to cure the prospective juror’s “almost passing reference.” Under these circumstances, we find no abuse of the trial court’s discretion in denying the defendant’s motion for mistrial. Id. at 1213-14. In State v. Hall, 43,125 (La.App. 2 Cir. 6/4/08), 986 So.2d 863, writ denied, 08-1511 (La. 3/13/09), 5 So.3d 116, a prospective juror stated the defendant scared her. The prospective juror was removed for cause. The defendant argued the entire panel of prospective jurors should have been excused, as the prospective juror’s comment was highly prejudicial and tainted the entire panel. Thus, the 45 defendant was prevented from receiving a fair trial. The second circuit cited La.Code Crim.P. art. 419, noted the defendant had the burden of proof, and continued as follows: [M]istrial is a drastic remedy that is warranted only when the defendant has received substantial prejudice such that he cannot receive a fair trial. [State v. Carmouche, 01-0405 (La. 5/14/02), 872 So.2d 1020]. A court need not order a new trial absent a showing that the prospective juror’s comments affected other jurors and prejudiced the defendant. Id. The decision to dismiss the venire rests within the trial court’s discretion. Id.; State v. Weary, 2003-3067 (La.4/24/06), 931 So.2d 297, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006). Ordinarily, proof of prejudice consists of further examination of the other venire members. State v. Weary, supra; State v. Scroggins, 40,746 (La.App. 2 Cir. 3/22/06), 926 So.2d 64, writ denied, 2006-0980 (La.11/3/06), 940 So.2d 655. An admonition to the other venire members may also cure any potential prejudice. State v. Price, 40,408 (La.App. 2 Cir. 12/16/05), 917 So.2d 1201, writ denied, 2006-0156 (La.6/10/06), 929 So.2d 1284. In front of 11 other venire members and in response to a question by defense counsel, Ms. Reynolds stated, “Just be looking at him, I will be biased. * * * I promise, he scare [sic ] me just by looking at him.” Both the state and defense challenged Ms. Reynolds (and one other juror) for cause; the district court excused them. When the court asked for peremptory challenges, defense counsel moved to strike the entire panel because the jurors were tainted by Ms. Reynolds’s remark. The court offered to conduct individual voir dire of several jurors to see if they were affected, but defense counsel replied, “There’s nothing the court can do to undo that [the prejudice].” The court orally denied the motion, stating there was nothing in the record to show that the remaining jurors were tainted. Hall’s argument is nothing more than a conclusory assertion that Ms. Reynolds’s remarks tainted the venire. He expressly declined further voir dire, a procedure normally used to show prejudice in this situation. State v. Weary, supra; State v. Scroggins, supra; State v. Rubbicco, [550 So.2d 219 (La.App. 4 Cir.1989), writ denied, 556 So.2d 1258 (La.1990)]. He also did not request an admonition, an additional curative procedure. State v. Price, supra. Notably, Ms. Reynolds voiced no opinion as to Hall’s guilt or innocence and apparently did not attempt to influence the other jurors. A fair reading of the voir dire is that Ms. Reynolds was simply trying to get out of jury service, an attitude which may well have influenced the other jurors to pay her absolutely no mind. On this record we cannot state that the court erred in refusing to dismiss the venire. This assignment lacks merit. Id. at 871 (third and fourth alterations in original). 46 In State v. McSweeney, 619 So.2d 861 (La.App. 3 Cir. 1993), the defendant was on trial for distribution of both marijuana and cocaine. During jury selection, a prospective juror was overheard saying that “‘if they would take some of these drug dealers and shove about one-half pound of cocaine down their throat, it would stop some of this crime.’” Id. at 867. The trial court refused to quash the entire jury venire based on the statement, and the defendant raised the issue on appeal. This court addressed the matter, stating: Generally, when a prospective juror makes a comment which arguably taints a panel or venire, the defendant moves for a mistrial or admonition pursuant to LSA-C.Cr.P. Art. 771 or 775. See State v. Kohler, 434 So.2d 1110 (La.App. 1st Cir.1983). The defendant also may request a challenge for cause. In the present case, the defendant did not request a mistrial, nor admonition, but requested that the entire venire be quashed. LSA-C.Cr.P. Art. 419 limits the grounds for quashing a petit jury venire. . . . The Defendant failed to establish irreparable injury due to the alleged statement and failed to show that the statement tainted the entire panel. In fact, the only other witness to Moses’s remark did not recall it. Without supporting evidence, we cannot say that the trial court abused its discretion in denying the defendant’s motion to quash the petit jury venire. Id. at 867-68. Assuming the panel of prospective jurors thought Mr. Sharp dressed the defendant as well as Lacon, the following cases, by comparison, allow the denial of the motion to dismiss the first jury panel. In State v. Kinchen, 290 So.2d 860 (La.1974), the court addressed the denial of a motion to excuse the entire jury venire on the ground that the defendant was denied the presumption of innocence when he was brought into the courtroom handcuffed and in prison garb. Before the case was called for trial, while the court was handling preliminary matters, the defendant and another accused were brought into the court by sheriff’s deputies. The men were dressed in prison garb and handcuffed. They were seated in the jury 47 box where all prisoners were seated during the morning hour. At that time, some or all members of the jury venire were seated in the spectator seats of the courtroom. The defendant was in the courtroom for ten minutes before the judge became aware of his presence. The defendant was immediately returned to jail to be dressed in civilian clothes. Defense counsel subsequently moved, outside the presence of the jury venire, to excuse the entire venire. The supreme court addressed the issue: In State v. Spencer, 257 La. 672, 243 So.2d 793 (1971), the defendant was brought into the courtroom in handcuffs before the voir dire examination of the prospective jurors. The handcuffs were removed as soon as the prisoner was seated and were not replaced during the trial. A defense motion to disqualify and discharge the jury venire was denied. No voir dire examination was directed to whether the prospective jurors had seen the defendant while manacled or were in any way adversely impressed by his appearance. In the absence of any showing of prejudice, we held that the judge did not err in his ruling. The fact that the defendant was escorted out of the courtroom in handcuffs in the full view of the jury on one occasion did not vitiate the conviction in State v. Crockett, 262 La. 197, 263 So.2d 6 (1972). Cf. State v. Boudoin, 257 La. 583, 243 So.2d 265 (1971). See also: Thomas v. Beto, 474 F.2d 981 (5th Cir. 1972); Bentley v. Crist, 469 F.2d 854 (9th Cir. 1972); Hollins v. Beto, 467 F.2d 951 (5th Cir. 1972); United States v. Rickus, 351 F.Supp. 1386 (E.D.Pa.1972); Moffett v. State, 291 Ala. 382, 281 So.2d 630 (1973); Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973); People v. Earl, 29 Cal.App.3d 894, 105 Cal.Rptr. 831 (1973); People v. Herman, 512 P.2d 1159 (Colo.1973); Scott v. State, 504 P.2d 10 (Nev.1972); State v. Doby, 18 N.C.App. 123, 196 S.E.2d 377 (1973); Vavra v. State, 509 P.2d 1379 (Okl.Cr.1973); McGregor v. State, 491 S.W.2d 619 (Tenn.Cr.App.1973); Pittman v. State, 488 S.W.2d 89 (Tex.Cr.App.1972); State v. Archuletta, 28 Utah 2d 255, 501 P.2d 263 (1972). Several factors convince us that this trial should not be set aside on the mere showing that defendant was brought into court for a brief ten minutes before trial during a morning hour while members of the jury venire were in the courtroom. In his per curiam the trial judge stated that no prejudice to the defendant was shown. Appellant did stand trial in civilian clothes without handcuffs. No effort was made by defense counsel to ask members of the jury venire on voir dire whether they recognized the defendant as the same person who had been in court earlier in handcuffs and prison garb during a busy 48 morning hour when many distractions may otherwise have held their attention. There is no adequate showing that the handcuffs were conspicuous or that the prison garb was noticeably different from civilian garb such as to draw the attention of the jury and create an impression which was detrimental to appellant. There is no evidence that the jury which tried appellant recognized him as the handcuffed party in the jury box prior to trial. These are the areas in which the discretion of the trial judge is called into play. To find an abuse of that discretion requires a clear showing in the record. And it is only when the abuse of that discretion reaches a point where the trial becomes a farce and fairness is impossible that grounds are furnished for a mistrial. La.Code Crim.Proc. art. 775; McCloskey v. Boslow, 349 F.2d 119 (4th Cir. 1965); State v. Tennant, supra. Id. at 862-63. In State v. Wilkerson, 403 So.2d 652 (La.1981), the defendant alleged the trial judge erred in permitting him to be handcuffed in the presence of the jury. Trial had adjourned for the day. However, before the jury was able to leave the courtroom, a member of the sheriff’s office handcuffed the defendant and his codefendant. More than half of the jury passed within three or four feet of the defendant. The supreme court addressed the defendant’s complaint: Ordinarily, a defendant before the court should not be shackled or handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of judicial proceedings. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); State v. Clark, 340 So.2d 208 (La.1976); State ex rel. Miller v. Henderson, 329 So.2d 707 (La.1976). However, exceptional circumstances may require, within the discretion of the trial court, the restraint of the prisoner for reasons of courtroom security or order or where the prisoner’s past conduct reasonably justifies apprehension that he may attempt to escape. State ex rel. Miller v. Henderson, supra; State v. Daniel, 297 So.2d 417 (La.1974). If the handcuffing is objected to at the time of trial, for a finding of reversible error the record must show an abuse of the trial court’s reasonable discretion resulting in clear prejudice to the accused. State ex rel. Miller v. Henderson, supra. In the instant case, the defendant’s apparent disregard for the authority and lives of police officers would suggest that some security measures were in order. Further, the defendant and his co-defendant were not handcuffed during trial. They were handcuffed solely for 49 purposes of transport to and from the courtroom. Under the circumstances, the possibility that on one occasion several jurors may have seen the defendant in handcuffs does not appear to have so prejudiced the defendant as to warrant relief on appeal. Id. at 659. Further, the trial court did not err by refusing the defendant’s request to dismiss the second jury panel. There was no attempt by the defendant to meet his burden of proving he could not receive a fair trial as he did not question prospective jurors regarding Ms. Hetherwick’s remark that she had dealings with him or request an admonishment be given by the court. Moreover, the above cited cases support the trial court’s ruling. As for the defendant’s complaint that he was escorted by deputies in the presence of the jury, the minutes of court for February 25, 2019, do not reflect any breaks or recesses other than the recess at the end of the proceedings. The transcript indicates a ten minute recess was taken well into questioning of the jury panel. Questioning resumed thereafter. Subsequently, several prospective jurors were questioned privately in the deliberation room. The defendant was not present at that time. Thereafter, the defendant entered the deliberation room, and the parties exercised challenges to the prospective jurors. Proceedings subsequently resumed in the courtroom. After all jurors were excused, counsel for Lacon made the above-referenced objections. In the pertinent objection, counsel for Lacon said the issue occurred when “we returned from break.” He did not mention when that occurred. The only break referenced in the transcript was on page 171, and the objections began on page 196. The objection as to the defendant’s escort by sheriff’s deputies was untimely. Williams, 878 So.2d 765. Moreover, based on the cases addressing handcuffed defendants, the defendant cannot prove he was prejudiced by being 50 escorted by deputies in the presence of the jury, especially considering he was on trial for second degree murder. For the reasons asserted herein, the defendant’s second assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER THREE The defendant claims the trial court erred in allowing the state to introduce the recording of police communications when the recording was not provided to the defense until trial began. During Sergeant Sices’ testimony, the state announced that it was going to play radio communications to see if Sergeant Sices recognized the communications. Lacon’s attorney asked the court, “Your Honor, may we approach?” The record indicates a bench conference was held, after which the following colloquy took place: Q. Sergeant Sices, let me go a little bit more into detail, and then we’ll let you hear this. When you got there did you have any witnesses come forward to talk to you? A. I was clearing out the crowd and I recognized some people there, and I started asking questions of anything they saw. Q. You started doing police work? A. Yes, sir. Q. And was one of those individuals Kelsea - - A. Bonner? Q. Yes. A. Yes, sir. Q. And you spoke to her? A. Yes, sir. Q. And did she indicate to you who the suspect was that was involved in the shooting? A. Yes, sir. 51 Q. And who did she indicate? A. Raven Wiltz and another black male subject. Q. All right. So at that point that you have a suspect, do you then - - You’re on Charlie. What do you then do? A. I started calling out to the other units it was Raven - - the suspect believed to be a Raven Wiltz and the way he took off running, towards Himbola Apartments through the fields. The audio recording of the radio communications was then played to the jury. When the state offered the audio recording into evidence as State’s Exhibit 5, the defendant’s attorney stated, “We’ll save our objections for after - - outside the jury purview.” After the cross-examination of Sergeant Sices, the jury was excused for the day, and the following arguments were presented to the court regarding the audio recording: MR. BENEZECH [(the defendant’s attorney)]: Yes, Your Honor. The objection is based on several arguments. First, the timing of the introduction to defense; the recording was not shared with us until Monday, the day of trial. I understand that the State’s attorney did not have it prior to then, but it was obviously something that was in police custody or accessible to them for the entire period that this case has been pending. Additionally, I objected because I felt like there was a lack of foundation and also a lack - - a failure under 403, Article 403 of the Code of Evidence as far as its prejudicial value versus its probative worth. There’s very little gleaned from it. But what it did do was it introduced my client’s name to the jury essentially within minutes of the shooting, and we feel like it didn’t offer much in the way of actual probative worth because Sergeant Sices could have testified to everything that he said and everything he learned that day, even in the absence of the video - - or the audio, MR. EDWARDS [(Lacon’s attorney)]: We join that same objection for the same reasons but would like to further state that, you know, this matter has been going on since July of 2016, and the first 52 time we’re getting to even hear - - we haven’t even gotten a copy of it yet - - to hear it was yesterday right before trial. So I think that is beyond comprehensible why we’re just getting this now. The trial court noted the objections and admitted the exhibit. The defendant claims the late disclosure of this evidence prevented the defense from investigating the case fully. Citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995), the defendant argues that the state’s duty to disclose applies to both exculpatory and impeachment evidence. Finally, the defendant argues: The discovery articles set out in C.Cr.P. arts. 716-29, are intended to eliminate prejudice from surprise evidence and testimony, to allow the defense to challenge the State’s case and to give the defense an opportunity to properly assess the strength of the evidence prior to trial. The State has a continuing duty to disclose evidence. Basic unfairness resulting from the failure to disclose information timely is reversible error. Furthermore, a discovery violation can result in a mistrial or exclusion of the evidence at trial. See La.Code Crim.P. arts. 729.3 & 729.5(A). The court denied the objections and admitted the evidence, without discussion and this evidence should have been excluded. The state responds that the defendant and Lacon were provided open file discovery, which included recaps of the radio communication records, multiple descriptions of the purported suspects, and the suspects’ routes of travel, all of which were contemporaneous with the investigation. The state further notes that both eyewitnesses to the shooting as well as the responding officers testified and were subject to cross-examination. Additionally, the state contends the radio communications were offered not to prove the truth of the matter asserted but to explain the sequence of events and the course of the police investigation. Finally, the state notes that no motion to continue was filed because defense counsels knew what was on the recording from their access to open file discovery. This court has addressed a late discovery and Brady claim as follows: 53 In State v. Taylor, 12–25, pp. 18–20 (La.App. 5 Cir. 6/28/12), 97 So.3d 522, 535–36, the fifth circuit discussed alleged exculpatory evidence not disclosed as follows: In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–97, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the suppression by the State of evidence favorable to the accused after it receives a request for it violates the defendant’s due process rights where the evidence is material to either guilt or punishment, without regard to the good or bad faith of the prosecutors. See also State v. Bright, 02–2793, pp. 5– 6 (La.5/25/04), 875 So.2d 37, 41–42. The duty to disclose is applicable even where there has been no request by the accused. United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). The State’s due process duty to disclose applies to both exculpatory and impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); State v. Kemp, 00–2228, p. 7 (La.10/15/02), 828 So.2d 540, 545. Brady also requires the disclosure of evidence concerning a promise of leniency or immunity to a material witness in exchange for his testimony at trial. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972). See also State ex rel. Guise v. State, 00–2185, p. 2 (La.10/15/02), 828 So.2d 557, 558. Evidence is “material” under Brady only if there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense. A reasonable probability is one that is sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. A reviewing court determining materiality must ascertain “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). While the United States Supreme Court has emphasized the prosecution’s duty to disclose exculpatory evidence, it has not specifically spoken on the timing of such disclosures. But the Louisiana Supreme Court has held that late disclosure as well as non-disclosure of exculpatory evidence may deprive the defendant of a fair trial. Kemp, supra; State v. Williams, 448 So.2d 659, 665 (La.1984). See also State v. Lande, 06–24, pp. 23–24 (La.App. 5 Cir. 6/28/06), 934 So.2d 54 280, 296, writ denied, 06–1894 (La.4/20/07), 954 So.2d 154. Moreover, discovery violations are not grounds for reversal unless they have actually prejudiced the defendant. State v. Garrick, 03–0137, p. 5 (La.4/14/04), 870 So.2d 990, 993 (per curiam); State v. Strickland, 398 So.2d 1062, 1067 (La.1981). Even a discovery violation involving the State’s failure to disclose exculpatory evidence does not require reversal under the Due Process Clause “unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). State v. Shupp, 15-695, pp. 23-24 (La.App. 3 Cir. 2/3/16), 185 So.3d 900, 915-16. Considering all of the evidence linking the defendant to the shooting, the recording of the radio communications was not material to the fairness of the defendant’s trial. The defendants knew from Sergeant Sices’ investigation that the defendant was identified as a shooter shortly after the shooting. Although slight variations in the descriptions of the shooters may have been relayed over the radio communications, nothing communicated over the radio was material or inconsistent with the evidence linking the defendant to the shooting. Even if the defendant or Lacon would have identified and questioned some of the witnesses referred to by the police in their developing investigation of the shooting, none of the witnesses would have diminished the evidence presented: (1) the defendant’s admission to police that he and Lacon were together before they were arrested, (2)Ms. Bonner’s naming of the defendant as one of the shooters shortly after the shooting, (3) the DNA evidence linking Lacon to clothing matching the description of one of the shooters, (4) DNA evidence linking the defendant and Lacon to the murder weapons, and (5) the physical proximity of the murder weapons to the area in which the defendants were arrested. Thus, the defendant has failed to show the late disclosure of the radio communication recording deprived him of a fair trial. 55 For the foregoing reasons, this assignment lacks merit. CONCLUSION The defendant’s conviction is affirmed. The defendant’s sentence is affirmed as amended. The matter is remanded for the purpose of entering a minute entry ordering the defendant’s sentence to be served at hard labor. CONVICTION AFFIRMED. SENTENCE AFFIRMED AS AMENDED. REMANDED WITH INSTRUCTIONS. 56
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