Date: 02-08-2017

Case Style:

Case Number: 16-KA-462

Judge: Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson

Court: FIFTH CIRCUIT COURT OF APPEAL, TATE OF LOUISIANA

Plaintiff's Attorney:

Bridget A. Dinvaut
Orenthal J. Jasmin

Defendant's Attorney:

Bruce G. Whittaker

Description: On April 15, 2013, the St. John the Baptist Grand Jury indicted Defendant,
with second degree murder, in violation of La. R.S. 14:30.1. Defendant was
arraigned and pleaded not guilty on April 16, 2013. On January 20-22, 2016, the
case was tried before a 12-person jury.
At trial, Dontae Bond, Defendant’s nephew, testified that on the night of
February 20, 2013, he was at Alex’s Sports Bar1 with two friends. While having
drinks and talking to people in the patio area of the bar, he heard a gunshot. Mr.
Bond looked back and saw Defendant holding a gun, and he also saw a man on the
ground. He did not see anyone else in that room with a gun after the gunfire. Mr.
Bond identified the victim as his friend, “Turk.”2 He asserted that he and
Defendant were not together that night, but he and Defendant were in the bar at the
same time.
Mr. Bond testified that after the shooting, he and his friends left. They drove
around and then went to Defendant’s house. Mr. Bond stated that he spoke to
Defendant and asked him what happened, after which Defendant said, “Don’t say
nothing.” The police arrived afterwards. Mr. Bond indicated that the police
arrested him in connection with the shooting, and he gave three statements to them.
He said he initially told them he did not know anything, but ultimately he told the
police what happened because he did not want to be charged with a crime he did
1 Amanda Roh, a former employee of the St. John Parish Sheriff’s Office, testified that Alex’s Sports Bar was located at 119 East 24th Street in Reserve, Louisiana. 2 Ms. Roh testified that the victim’s name was Anthony Young.


16-KA-462 2
not commit.
Wilfred Lewis testified that on February 20, 2013, he also was in Alex’s
Sports Bar. He stated that he arrived at 10:15 p.m., after which his friend, “Turk,”
asked him to give him a ride home. Mr. Lewis sat in the patio area of the bar and
waited while “Turk” helped his uncle, the owner of the bar, clean the area. While
sitting there, Mr. Lewis heard a voice and then “Turk’s” voice, after which Mr.
Lewis looked down for a second and then heard a shot. Mr. Lewis testified that
when he looked up, he saw “Turk” spin around and fall on a table. A man, whom
he later identified as Defendant, turned around and had a gun in his right hand.
Defendant put the gun in his pocket. Mr. Lewis explained that when Defendant
passed by him to leave, he brushed against Defendant. Defendant then turned
around and pointed a gun at Mr. Lewis, and Mr. Lewis held up his hands begging
Defendant not to shoot him. Mr. Lewis testified that Defendant subsequently
backed out the screen door, walked to a car across the street, and left the scene.
Mr. Lewis recalled that Defendant was not upset and had no emotional
response after the shooting. He stated that he did not know Defendant’s name, but
he would never forget his face. He also stated that no one else had a gun that
night. Mr. Lewis was positive that Defendant was in the bar that night, and
Defendant shot “Turk.” Mr. Lewis admitted that he had seven convictions for
possession of cocaine and other non-drug convictions. Mr. Lewis insisted that no
one made promises to him for his testimony.
The victim, Anthony Young, died as a result of the shooting. Dr. Samantha
Huber, who was accepted as an expert in forensic pathology, testified that she
performed the autopsy on the victim. She determined that the cause of death was a
gunshot wound to the inner aspect of his left eye with a bullet going through the
base of his skull through his brain and coming to rest in a fracture at the back right
of his skull. Dr. Huber stated that she retrieved the projectile and gave it to a crime


16-KA-462 3
scene technician. Dr. Huber testified that the gunshot wound was from an
intermediate range of six inches to two feet away. She further stated that the
toxicology report reflected that there was cocaine and alcohol in the victim’s
system. Dr. Huber asserted that there was evidence of recent drug use because
there was “parent cocaine” in his blood.
Detective Michael Pugh of the St. John Parish Sheriff’s Office crime scene
division testified that on the night of February 20, 2013, he responded to a call
involving a homicide at Alex’s Sports Bar. When he arrived, he collected evidence
and took photographs. He identified the contents of the victim’s pockets, which
included cocaine.3 Detective Pugh stated that he searched Defendant’s home but
found no guns or ammunition inside. He further stated that he searched the Nissan
vehicle parked in front of Defendant’s home and seized a 9mm Taurus handgun
from the trunk and two phones from the interior of the vehicle. Detective Pugh
asserted that he collected a Winchester .45 caliber shell casing from the floor of the
bar. He maintained that no gun was ever found that linked Defendant to the crime.
Detective Walter Stevens, Jr. of the St. John Parish Sheriff’s Office testified
that on February 20, 2013, he responded to a call involving a homicide at Alex’s
Sports Bar. His investigation led him to arrest Defendant and Mr. Bond.
Defendant did not give a statement and wanted an attorney. Mr. Bond initially
denied knowing anything but later admitted that Defendant shot the victim.
Detective Stevens testified that Mr. Lewis later contacted him and positively
identified Defendant in a photographic lineup as the shooter. He further testified
that Mr. Lewis also positively identified Mr. Bond as being present at the time of
the shooting.
Detective Juan Watkins of the St. John Parish Sheriff’s Office testified that
3 Dr. Huber testified that the coroner’s office wrote in the report that the Sheriff’s Office had “coke” in evidence. Detective Pugh identified the contents of the victim’s pocket. He also identified “a sealed evidence envelope with a clear plastic bag containing three clear plastic bags containing one white powder, second bag containing one white powder and the third containing a white pill.” Detective Pugh stated that it was sent to the Louisiana State Police Crime Lab for a drug analysis, but he was not furnished any results from that analysis.


16-KA-462 4
he interviewed Mr. Lewis in connection with the homicide that occurred on
February 20, 2013. Mr. Lewis recounted the events of the evening in question to
the detective. Detective Watkins presented Mr. Lewis with a photographic lineup,
after which Mr. Lewis positively identified Defendant.
Laneka Frank-Hicks, Defendant’s wife, provided an alibi for Defendant.
She testified that on February 20, 2013, at 9:15 p.m., she contacted Defendant and
told him that she was on her way home. She arrived home at 9:30 p.m. When she
got inside, Defendant was sitting on the sofa, watching television and eating. Mrs.
Frank-Hicks testified that she got in the bathtub at 10:00 p.m., and she and
Defendant went to bed no later than 11:00 p.m. She recounted that at
approximately 2:30 a.m., her daughter called and told her the police were looking
for her and Defendant. Mrs. Frank-Hicks explained that she heard a knock at the
door, and when she opened it, officers were present. She further explained that the
police subsequently obtained a search warrant and searched her house and her
vehicle. Mrs. Frank-Hicks testified that she told an officer that Defendant told her
he had gone to Alex’s Sport’s Bar earlier that day.
Detective Stevens testified in rebuttal that when he went to Defendant’s
house, he observed four black males congregated around a Nissan Maxima vehicle,
and Defendant was standing right by the vehicle. He further testified that when he
informed Defendant that he and the other subjects were to come with him to the
Criminal Investigations Division for an interview, Defendant wanted to notify his
wife that he was going to be leaving with them. Detective Stevens testified that he
believed Defendant knocked on the bedroom door to awaken his wife, and she
followed them outside.
At the conclusion of the presentation of evidence at trial, the jury found
Defendant guilty as charged. On February 16, 2016, Defendant filed a Motion for
New Trial, which was denied on February 22, 2016. Also on February 22, 2016,


16-KA-462 5
Defendant waived sentencing delays, after which the trial judge sentenced him to
life imprisonment at hard labor without benefit of parole, probation, or suspension
of sentence. Subsequently, Defendant filed a Motion for Appeal, which was
granted. The instant appeal followed.
ASSIGNMENTS OF ERROR
On appeal, Defendant alleges the trial court erred by prohibiting the jury
from learning of the victim’s criminal conviction record, which denied him his
Sixth Amendment right to present a defense, and 2) it was an error for the
prosecutor to personally attack defense counsel in closing argument by suggesting
that his defense amounted to a denigration of the value of the life of the victim.
LAW AND ANALYSIS
Victim’s Criminal Record
Defendant argues the trial judge erred by prohibiting him from presenting to
the jury reliable evidence of the victim’s felony conviction record, as that evidence
was relevant and probative to his defense. Defendant asserts that, since his defense
was that he did not kill anyone and this was not a claim of self-defense, it was error
to prohibit him from presenting such evidence where the record tended to support
the defense that other individuals may have had a motive to kill the victim. He
claims that the victim was a convicted felon with a long record of narcotics
distribution, a notoriously violent activity, and that, at the time of his death, he was
carrying cocaine on his person packaged for retail distribution and was intoxicated
on the drug. Defendant contends that the trial judge’s ruling excluding this
evidence violated his Sixth Amendment right to present a defense.
The State responds that the trial judge’s ruling in this matter was proper.
The State further responds that the victim’s criminal conviction record is
inadmissible because there has been neither a claim of self-defense nor a claim of
an overt act on the part of the victim.


16-KA-462 6
The record reflects that Defendant filed a Motion in Limine to Admit
Evidence of Victim’s Criminal Convictions. In that motion, Defendant moved the
trial court for a pre-trial ruling allowing admissibility of the victim’s criminal
convictions, as supplied by the St. John Parish Clerk of Court, and the victim’s rap
sheet, which was furnished by the District Attorney’s Office. Defendant asserted
in his motion that no motive had been ascribed to Defendant to explain the victim’s
killing by him. He stated that the victim was found with cocaine in his blood and
urine and with cocaine and other drugs on his person. Defendant also stated that
the victim had at least three felony convictions for drug distribution, as well as
illegal discharge of a weapon, simple possession of marijuana and paraphernalia,
and was scheduled to be in court the day following his death for proceedings in St.
John case no. 2012-CR0190 “A,” for “aggravated assault on a police officer.”
Defendant noted in his motion that the Sheriff’s Office failed to send the drugs
found in the victim’s possession to the State Crime Lab until the defense filed a
motion for the testing and requested a court hearing on the matter. He contended
that he had a fundamental right to present a defense that included the presentation
of circumstances that were relevant in the context of this case.
On September 2, 2015, Defendant filed a Memorandum in Support of
Defendant’s Motion in Limine to Introduce Victim’s Rap Sheet at Trial. In that
memorandum, citing La. C.E. art. 406, Defendant stated that he desired to
introduce evidence of the victim’s criminal convictions showing that the victim
had a habit and routine practice of conducting narcotics transactions, with the
attendant dangers therein. He listed the convictions as follows: (1) St. John Case
No. 2000-CR-543, on September 5, 2002, the victim pleaded guilty to possession
of cocaine; (2) in St. John Case No. 1997-CR-153, on November 3, 1997, the
victim pleaded guilty to distribution of cocaine; (3) in St. John Case No. 1996-CR
483, the victim pleaded guilty to illegal discharge of a weapon; (4) in St. John Case


16-KA-462 7
No. 2001-CR-555, the victim pleaded guilty to possession of marijuana and
possession of paraphernalia; and (5) in St. John Case No. 2005-CR-452, the victim
pleaded guilty to possession with intent to distribute cocaine. Defendant notes that
this list of convictions was taken from the St. John Clerk of Court’s database and
did not include any convictions that might have occurred outside St. John Parish.
In that memorandum, Defendant also asserted that the State’s principal
witness, Dontae Bond, had several convictions involving crimes of violence by
firearm and that the persons accompanying Mr. Bond on the night of the murder,
“Snowman” and “Clickem,” each had several drug violation convictions.
Defendant maintained that the purpose for the introduction of the victim’s criminal
convictions was to bolster his defense that the victim’s habitual and routine
criminal behavior involving illegal drug transactions created a situation where a
jury could find the victim had many enemies. He further maintained that, in the
absence of a motive, forensic evidence, or eyewitness testimony, presentation of
such evidence was relevant to establish reasonable doubt that Defendant was the
aggressor. Defendant noted that he had no interest in establishing the victim’s bad
character but rather the life the victim had chosen to live was a circumstance
Defendant should have been allowed to exhibit to the jury.
The State filed a Memorandum in Opposition of Defendant’s Motion in
Limine to Introduce Victim’s Rap Sheet at Trial on September 25, 2015. In its
memorandum, the State argued that the victim’s alleged lifestyle of drug
distribution, use, and abuse and weapons could easily be viewed by a jury as
dangerous character that should not be admissible at trial. The State further argued
that there is no indication of a hostile demonstration or overt act by the victim at
the time of the offense. As such, the State contended that under La. C.E. art.
404(A)(2), such evidence was inadmissible.
On September 29, 2015, the trial judge issued a written judgment with


16-KA-462 8
Reasons ruling that the victim’s criminal record was inadmissible. The trial judge
stated in pertinent part:
In the instant case, the victim’s criminal record is not relevant because Defendant is not claiming self-defense nor has an “overt act” by the victim been alleged. Defendant has not laid a foundation supporting any relevance of such character evidence. There was no showing made that Defendant was aware of the victim’s criminal record. Moreover, the victim’s criminal record, as alleged by Defendant, does not include any prior specific incidents of aggression conducted by the victim, but rather it specifies only acts of conducting narcotics transactions. Accordingly, evidence of the victim’s criminal record offered for the purpose of explaining defendant’s state of mind should be excluded, as the victim’s alleged drug habit is not relevant to prove a violent habit existed that was a routine practice or to defend Defendant’s case. LSA C.E. art. 406. Comment (b) of La. C.E. art. 406 provides that this code article is included in order to distinguish treatment of habit and routine evidence from that of character evidence, which generally is inadmissible. Therefore, the victim’s criminal record is not admissible.

The trial judge concluded:
Defendant bears the burden of laying a foundation to support the relevance of such character evidence to prove why disclosure of the victim’s criminal record is necessary, and this Court finds that he failed to meet his burden. After considering Defendant’s motion and balancing the competing interests, this Court concludes that Defendant’s need for disclosure of the victim’s criminal record and its admissibility at trial is not essential to a fair trial.

After he was convicted, Defendant filed a motion for new trial, arguing inter
alia, that the trial judge erred by denying his motion to admit the victim’s rap
sheet. Defendant contended that had the victim’s criminal history been admitted,
the jury may well have considered that the shooting involved a drug deal gone bad,
and the jury might have been swayed by the fact that Mr. Lewis had seven
convictions for possession of cocaine, among other things. In his motion,
Defendant asserted that La. C.E. art. 406 allowed evidence which is relevant to
prove that the conduct of a person on a particular occasion was in conformity with
habit or routine practice. Defendant further asserted that his effort to identify the
habit or routine practice by way of presentation of a long criminal history of
convictions should have been granted.


16-KA-462 9
At the hearing on the motion, Defendant made arguments similar to those he
made in his written motion for new trial, including arguments regarding the trial
judge’s denial of his request for admission of the victim’s criminal convictions.
The prosecutor responded that there was a pre-trial motion regarding the motion to
admit the victim’s rap sheet, that the trial judge had denied it, and that he did not
think Defendant sought review of that ruling. The trial judge subsequently denied
the motion for new trial, stating in pertinent part:
The victim’s rap sheet, of course, is a little bit more of a, of a, I think, a fuzzy area but I don’t think that there is a, in my own mind, there’s a rational connection between the fact that he may have been in possession of drugs and had a history of possession of drugs and had a history of possession of drugs and possession of weapons – there was no claim of self-defense in this trial. So even if he had a reputation for having been armed in the past, I don’t know what, what that would have tended to show in the, in the trial because there was no issue of self-defense. Plus to be able to use it they would have had to, as I appreciate it, have had to been some display of an overt action on his step before, I mean on his part before that even could have been introduced under the Code of Evidence Article 404 A, I think it was. But I don’t see the connection between the mere certainly possession of drugs, which he was clearly, the evidence revealed had drugs on his person, as well as in his system. The jury, it if were so inclined, could have inferred something about his character from that. I don’t know how it could make the leap to infer that that somehow justified or mitigated a homicide.

Again, even the mere fact that he had a reputation or, I’m sorry, not a reputation, but a record, I guess, from one, from which one could have assumed a reputation for possession, possessing weapons, I don’t see how that could lead them to conclude that that justified a, or excused a homicide in the facts of this case. There’s, there’s no evidence that there was, in fact, a gun or a weapon on, firearm on his person, so.

Both the Sixth Amendment of the United States Constitution and Article I,
§16 of the Louisiana Constitution guarantee a criminal defendant the right to
present a defense. State v. Lirette, 11-1167 (La. App. 5 Cir. 6/28/12); 102 So.3d
801, 813, writ denied, 12-1694 (La. 2/22/13); 108 So.3d 763. This right does not
require a trial court to permit the introduction of evidence that is inadmissible,
irrelevant, or has so little probative value that it is substantially outweighed by


16-KA-462 10
other legitimate considerations in the administration of justice. Id. The trial court
is accorded great discretion in evidentiary rulings and, absent a clear abuse of that
discretion, rulings regarding the relevancy and admissibility of evidence will not
be disturbed on appeal. State v. Sandoval, 02-230 (La. App. 5 Cir. 2/25/03); 841
So.2d 977, 985, writ denied, 03-853 (La. 10/3/03); 855 So.2d 308.
La. C.E. art. 404(A)(2) governs admissibility of character evidence of a
victim and states, in pertinent part:
(2) Character of victim. (a) Except as provided in Article 412,4 evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible. [footnote added].

In State v. Brown, 46,669 (La. App. 2 Cir. 2/29/12); 86 So.3d 726, writs
denied, 12-0724 (La. 9/14/12); 97 So.3d 1016 and 14-0321 (La. 10/24/14); 151
So.3d 593, the defendant argued that the trial court erred by prohibiting him from
presenting a full defense. He contended that critical to his defense was his ability
to prove, through pertinent character traits of the victim and the victim’s criminal
record, that other people had a motive to kill the victim. The appellate court found
that a review of the record indicated that the trial court ruled that the defendant
could not admit evidence concerning the criminal history of the victim unless he
first laid a foundation supporting the relevance of such character evidence. The
appellate court further found that the trial court did not prevent the defendant from
presenting a defense, because the defendant failed to lay a foundation sufficient to
support the admission of the victim’s criminal record. Id., 86 So.3d at 734-35.
In State v. Keating, 00-51 (La. App. 5 Cir. 10/18/00); 772 So.2d 740, writ
denied, 00-3150 (La. 10/12/01); 799 So.2d 494, the defendant contended that the
trial court violated his right to fully present a defense when it refused to allow him

4 La. C.E. Article 412 is not applicable to the instant case.


16-KA-462 11
to put on evidence of the victim’s criminal convictions. This Court found that
there was no evidence produced that the victim made a hostile demonstration or
committed an overt act against the defendant at the time of the incident. Thus, this
Court found that the trial court did not err in refusing to allow evidence of the
victim’s prior convictions, citing La. C.E. art. 404(A)(2)(a). This Court further
found that even assuming that the trial judge erred by excluding such evidence, the
defendant was not prejudiced by the ruling since the jury heard testimony
regarding the victim’s violent propensities as well as his criminal record.
Id., 772 So.2d at 746-47.
In State v. Young, 99-1054 (La. App. 5 Cir. 2/16/00); 757 So.2d 797, the
defendant argued that the trial court erred by not allowing him to introduce
evidence of the character of Willie Henderson, a friend of the victim who was
present at the time of the offense, particularly his propensity for violent behavior,
pursuant to La. C.E. art. 404(A)(2). This Court found that a violation of the statute
in question did not create a specific victim, but that even if Mr. Henderson was
considered a victim for purposes of Article 404, the requirements for admission of
character evidence under that article were not met. This Court stated that the
testimony indicated that it was the defendant who committed the initial hostile act.
It asserted that the trial court did not err in excluding the character evidence and
that the defendant was not prejudiced by the ruling. This Court noted that the
defendant testified that Mr. Henderson had been involved in several shootings and
armed robberies and that Mr. Henderson had a gun with him every time he saw
him. This Court found that the jury heard the defendant’s testimony and
apparently rejected it. Id., 757 So.2d at 800-01.
In the instant case, as in Brown, Keating, and Young, there was no evidence
admitted at trial showing that the victim made a hostile demonstration or
committed an overt act against Defendant at the time of the incident pursuant to


16-KA-462 12
La. C.E. art. 404(A)(2)(a). Defendant did not argue self-defense at trial; thus,
evidence of the victim’s prior convictions was not relevant. Even assuming the
trial judge erred in excluding the evidence in question, we find that Defendant was
not prejudiced by the ruling. Although the trial judge did not allow court records
of the victim’s convictions, the jury heard testimony that the victim had cocaine in
his system and narcotics packaged in three plastic bags on his person at the time of
his death. Also, even if evidence of the victim’s criminal convictions had been
admitted into evidence, we find that it would not have made much difference, since
there were two eyewitnesses who indicated at trial that Defendant shot the victim.
Therefore, we find that the trial judge did not err by refusing to allow
evidence of the victim’s prior convictions.
Personal Attacks against Defense Counsel
Defendant argues that it was error for the prosecutor in closing argument to
personally attack defense counsel by suggesting that his defense amounted to a
denigration of the value of the life of the victim. First, he contends that the
prosecutor’s claim was made in closing argument and was thus not in response to
anything defense counsel said in argument. Second, Defendant asserts that the
coroner testified to the presence of cocaine in the system of the victim in response
to direct examination by the prosecutor. Third, he argues that the prosecutor
cynically and falsely suggested that the victim was a mere casual user of cocaine
when the prosecutor knew that the victim had done more than “make a mistake”
but rather was a career offender with multiple cocaine distribution convictions on
his record, a record that the prosecutor refused to let the jury see. As such,
Defendant contends that the prosecutor’s argument was so improper as to warrant
reversal.
The State responds that the prosecutor’s statements do not warrant a reversal
of the trial court’s ruling. It further responds that the prosecutor’s comments were


16-KA-462 13
merely a retort to defense counsel’s “crafty” method of suggesting that the victim
engaged in long-term cocaine use. The State notes that the trial court properly
addressed the prosecutor’s comments before the jury when the objection was raised
by stating that he had already told the jury that it was their memory of what the
testimony and the facts were that controlled. Lastly, the State asserts that
Defendant has offered no jurisprudence to suggest that such comments constitute
reversible error.
During closing argument, the prosecutor stated:
The defense has somehow tried to diminish him by suggesting, because he might have had some chemicals in his system, that somehow his life - -

Defense counsel then objected to the photo of the victim with his daughter
remaining on the screen. The objection was overruled.
The prosecutor continued, stating:
The defense subtly tried to, to suggest that maybe his life wasn’t worth so much or he’s dispensable because he had a substance in his system. Well, that’s not an element and it certainly is not appropriate to bring up, to suggest that somehow his life was less valuable. We all know people who make mistakes and that doesn’t mean that they should be murdered.

Defense counsel objected, stating that he never suggested or implied in any
way that the victim’s life was not equally valuable to that of every other person.
The prosecutor replied that this was closing argument. The trial judge told defense
counsel that he had the right to respond, that this was argument, and that he had
already told the jury “it’s their memory of what the testimony and the facts are that
controls.” The trial judge then told the prosecutor to proceed.
The prosecutor subsequently stated in pertinent part:
As I, as I was saying, we all know people who have made mistakes but their lives are just as valuable. They’re family members, they’re friends, they’re people we know, and nobody’s lives should be taken for no reason, and that’s what happened in this case.

After he was convicted, Defendant filed a motion for new trial arguing, inter


16-KA-462 14
alia, that the trial judge erred by overruling defense counsel’s objection to the
prosecutor’s personal attack on defense counsel. Defendant claimed that the
prosecutor contended that defense counsel fashioned his defense on a theory that
the victim’s life had no value because the victim was found possessing drugs.
Defendant argued that his counsel never suggested this and that it was an ad
hominem attack on his character calculated to prejudice the jury against the
defense.
At the hearing on the motion, Defendant made arguments similar to those
made in his written motion for new trial, including arguments regarding the
prosecutor’s characterization of his defense as a character attack on the victim.
The prosecutor responded that it was only argument and that he thought it prudent
to address the issue of drugs before the jury. He added that the jury was instructed
that it was just argument and not facts and that it did not prejudice anyone. After
hearing arguments of counsel, the trial judge denied the motion for new trial,
stating in pertinent part:
The argument to the jury, while I understand and I recall counsel’s indignation about that, I do believe that that is certainly a tempest in a teapot. The jury was instructed that what, what counsel said was their contentions, it was not evidence, and I, I just don’t think that it, it was as important as the significance that Mr. Goza puts on it.

The scope of argument shall be confined to evidence admitted, to the lack of
evidence, to conclusions of fact that the State or defendant may draw therefrom,
and to the law applicable to the case. La. C.Cr.P. art. 774. The argument shall not
appeal to prejudice. Id. The State’s rebuttal shall be confined to answering the
defendant’s argument. Id. However, a prosecutor retains “considerable latitude”
when making closing arguments. State v. Taylor, 93-2201 (La. 2/28/96); 669
So.2d 364, 374, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106
(1996). Further, the trial judge has broad discretion in controlling the scope of
closing arguments. State v. Greenup, 12-881 (La. App. 5 Cir. 8/27/13); 123 So.3d


16-KA-462 15
768, 775, writ denied, 13-2300 (La. 3/21/14); 135 So.3d 617.
Nevertheless, even if the State’s argument was improper, a conviction or
sentence will not be reversed for improper closing argument unless the court is
thoroughly convinced the remarks influenced the jury and contributed to the
verdict. Taylor, 93-2201; 669 So.2d at 375. The Louisiana Supreme Court has
recognized that “much credit should be accorded to the good sense and
fairmindedness of jurors who have seen the evidence and heard the argument, and
have been instructed repeatedly by the trial judge that arguments of counsel are not
evidence.” State v. Mitchell, 94-2078 (La. 5/21/96); 674 So.2d 250, 258, cert.
denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996).
In the instant case, the record reflects that during the direct examination of
the coroner, Dr. Huber, the prosecution elicited testimony that the toxicology
report showed cocaine in the victim’s system. On cross-examination, defense
counsel said that he had the impression that the cocaine metabolites found in the
blood, urine, and fluid behind the eyes meant that the victim was engaged in both
short and long-term use of that drug. Dr. Huber testified that it was possible that
the victim could have had some long-term use, but that the presence of cocaine
metabolites in those areas did not necessarily mean there was long-term use. Also
on cross-examination, defense counsel elicited testimony from Dr. Huber
indicating that the victim had cocaine on his person at the time of his death. Dr.
Huber testified that the coroner’s office wrote in the report that the sheriff’s office
had “coke” in evidence.
Additionally, during the cross-examination of Detective Pugh, defense
counsel elicited testimony from him that State’s Exhibit 6 was the contents of the
victim’s pocket. During cross-examination, Detective Pugh identified a Louisiana
State Police Crime Laboratory evidence submittal form and testified that “E-6”
was “a sealed evidence envelope with a clear plastic bag containing three clear


16-KA-462 16
plastic bags containing one white powder, second bag containing one white
powder and the third containing a white pill.” Detective Pugh stated that it was
sent to the State Police Crime Lab for a drug analysis but that he was not furnished
any results.
After reviewing the foregoing testimony, we find that the trial judge
properly addressed the prosecutor’s comments. The prosecutor was simply
pointing out that the victim’s life had value, even if he was an illegal drug user.
Additionally, the trial judge gave the jury the preliminary instructions that what the
lawyers said in their closing arguments was not evidence. Further, during the jury
instructions, the trial judge told the jury that they must decide the facts from the
testimony and other evidence and then apply the law to those facts in reaching their
verdict. The trial judge explained to the jury again that the closing arguments were
not evidence.
Therefore, we do not find that the trial judge abused his discretion by
effectively overruling defense counsel’s objections to the prosecutor’s closing
argument comments.
Errors Patent Review
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920,
State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990). The review reveals errors patent in this case.
Post-Conviction Relief Advisal
The trial judge failed to properly notify Defendant of the two-year
prescriptive period for filing an application for post-conviction relief, as required
by La. C.Cr.P. art. 930.8(C). The transcript reflects that the trial judge advised
Defendant that he had the right to file an application for post-conviction relief
within two years of the time when his conviction became final.
This Court has held that the failure to advise a Defendant that the


16-KA-462 17
prescriptive period runs from the time his conviction and sentence become final is
incomplete. State v. Grant, 04-341 (La. App. 5 Cir. 10/26/04); 887 So.2d 596, 598.
As such, by means of this opinion, we correct that error and inform Defendant that
“no application for post-conviction relief, including applications which seek an
out-of-time appeal, shall be considered if it is filed more than two years after the
judgment of conviction and sentence has become final under the provisions of [La.
C.Cr.P.] Article 914 or 922.” See State v. Drewery, 12-236 (La. App. 5 Cir.
1/20/13); 108 So.3d 1246, 1257.
Commitment
The State of Louisiana Uniform Commitment Order improperly reflects that
Defendant was convicted of second degree murder in violation of La. R.S. 40:30.1.
The correct statutory citation is La. R.S. 14:30.1. Also, the uniform commitment
order improperly reflects that Defendant pleaded guilty when the record clearly
shows that Defendant was convicted by a jury. As such, we remand this matter
and order that the uniform commitment order be corrected to reflect the proper
statutory citation and to reflect that Defendant was convicted by a jury.
Furthermore, we direct the Clerk of Court for the 40th Judicial District Court to
transmit the original of the corrected uniform commitment order to the officer in
charge of the institution to which Defendant has been sentenced and the
Department of Corrections’ legal department.

Outcome: