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Date: 11-20-2017

Case Style:

STATE OF LOUISIANA Vs. SHAVEZ WILEY

Shavez Wiley convicted of 2011 murder, Orleans jury splits on 2 attempted murder counts

Case Number: 2016-KA-0999

Judge: Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods

Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: Leon A. Cannizzaro, Jr.
DISTRICT ATTORNEY
Kyle Daly
ASSISTANT DISTRICT ATTORNEY

Defendant's Attorney: Holli Herrle-Castillo
LOUISIANA APPELLATE PROJECT

Description: On January 17, 2012, a grand jury returned an indictment charging
Defendant with one count of second degree murder and two counts of attempted
second degree murder, violations of La. R.S. 14:30.1 and 14:27/14.30.1,
respectively. On January 23, 2012, Defendant appeared for arraignment and
entered pleas of not guilty on all charges. On January 31, 2012, Defendant filed
motions to suppress statements, evidence, and identifications. At a hearing held on
June 27, 2012, the district court denied the motion to suppress identifications and
took the motion to suppress statements under advisement. On July 24, 2012, the
district court granted Defendant‟s motion to suppress statements and the State
sought a writ, which this Court ultimately denied.1

1 State v. Wiley, 2012-1356 (La.App. 4 Cir. 9/28/12) (unpub.). The Louisiana Supreme Court also denied the State‟s writ. State v. Wiley, 2012-2360 (La. 12/14/12), 104 So.3d 452.





2
On both August 6, 2013, and October 9, 2013, Defendant filed motions to
exclude evidence and on May 29, 2014, filed a motion for an in-camera inspection
of the grand jury transcripts. At the hearing on May 30, 2014, the district court
denied both of the motions to exclude evidence and granted the motion for
inspection of the grand jury transcripts. On September 18, 2015, the district court
held a Prieur hearing and ordered evidence of all prior bad acts inadmissible,
except for threats of physical harm Defendant allegedly made to law enforcement
officers during the course of the case.
A jury trial commenced on October 13, 2015. At the conclusion of the four
day trial, the jury found Defendant guilty on the one count of second degree
murder and on one count of attempted second degree murder, but not guilty on the
second count of attempted second degree murder. On December 4, 2015,
Defendant filed a motion for a new trial, which the trial court denied. On the same
day, the court sentenced Defendant to life imprisonment at hard labor on the count
of second degree murder, and forty-nine years‟ imprisonment at hard labor on the
count of attempted second degree murder. This timely appeal now follows.
The facts of the case are as follows. Calva Williams, one of the attempted
second degree murder victims and an eyewitness to the shooting, testified at trial
that she dated decedent, Jasper Branch, for two months prior to his murder. They
lived together and sold small amounts of marijuana from their residence. Ms.
Williams also knew Defendant, as they had briefly dated at least a year before the
murder.
Ms. Williams stated that Defendant was acquainted with her landlord, who
also resided in the home, and began visiting regularly for several weeks. Ms.
Williams subsequently learned that Defendant and decedent were also acquainted.


3
Ms. Williams testified she made plans to move out of the residence. She learned
that her best friend‟s sister, Crystal Thomas, who she did not know, had an extra
bedroom into which she and decedent could move.
According to Ms. Williams, the night before she was supposed to move in
with Ms. Thomas, Defendant told her and decedent that his friend was leaving
town and needed to sell some things, including two handguns and a quarter-pound
of marijuana. Ms. Williams stated that they made plans to purchase the marijuana
and one of the handguns the next day.
According to Ms. Williams, on the day of the murder, she picked up
decedent from work and drove to Ms. Thomas‟ house to see the accommodations
before they moved in. After she took decedent back to work, she returned to where
she and decedent had been living, packed their belongings, and moved them to Ms.
Thomas‟ residence. As Ms. Williams and Ms. Thomas were running errands, Ms.
Williams received a phone call from a woman who was also moving out of Ms.
Williams‟ former residence, asking for a ride.
When Ms. Williams and Ms. Thomas arrived at Ms. Williams‟ former
residence to pick the woman up, Defendant was present and asked Ms. Williams
for a ride to his cousin‟s house. Ms. Williams took the woman to her destination,
and then picked up decedent from work again, intending to make the purchase they
arranged the previous night. The four of them (Ms. Williams, Ms. Thomas,
Defendant, and decedent) drove to the home of Defendant‟s cousin and went
inside. Defendant and his cousin had a discussion in a separate room while Ms.
Williams, Ms. Thomas, and decedent waited in the living room. When Defendant
emerged, he stated that they needed to relocate to an apartment complex on Tara
Lane to “meet [his] homeboy.”


4
When they arrived at the complex, Ms. Williams and Ms. Thomas indicated
that they preferred to wait inside the car while Defendant and decedent completed
the purchase, but Defendant demanded that the women exit the vehicle and
accompany them. The group entered the apartment complex through the front
courtyard, and Defendant asked Ms. Williams if he could use her cell phone to
make a call. Ms. Williams overheard defendant speak into the phone, “Oh hello.
You ready? We downstairs.” After the call, Defendant brandished a handgun from
his waistband and said to decedent, “Where‟s at partner?” then immediately began
shooting. Ms. Williams heard decedent yell, “Baby. Gun. Run.” so she ran toward
the back of the apartment complex. Defendant shot Ms. Thomas and decedent and
then chased after Ms. Williams while continuing to fire the weapon. Ms. Williams
ran down an alley and attempted to climb over a fence. When she realized she
could not escape that way, she zigzagged back to the front of the apartment
complex and attempted to conceal herself within the crowd of people also running
from the gunfire. She was ultimately not injured.
When the shooting stopped, Ms. Williams ran back to the courtyard and
heard Ms. Thomas yell, “He dead, he dead.” Ms. Williams observed decedent lying
in the courtyard entryway. She ran over to him, dropped her purse and keys, and
knelt beside him. Ms. Williams attempted to keep him awake, although he could
not speak or hold her gaze. Neighbors gave her towels to apply pressure to the
wounds and a nurse also attempted to render aid. The police arrived shortly
thereafter and transported Ms. Williams to a mobile police station for questioning.
Ms. Williams identified Defendant by name as the shooter and subsequently
selected his photo out of a photographic lineup. Because Ms. Williams began


5
receiving threats, the police placed her and Ms. Thomas in witness protection
where they resided together in a hotel room.
On cross-examination, Ms. Williams admitted that she moved to Florida
sometime after the shooting, and had initially refused to testify against Defendant
at trial. The district attorney ultimately had her arrested and brought to the Orleans
Parish Jail until she agreed to testify. She further admitted that she used to work as
a stripper and a prostitute, and her former relationship with Defendant centered on
her efforts to pursue a rapping career. She also admitted that while speaking to
Defendant‟s former counsel, she asked, “what do they really need to pin [the
murder] on [Defendant]?” She also stated that Defendant and decedent were
friends and they had not been arguing prior to the shooting.
On re-direct, Ms. Williams stated that Defendant and decedent met in jail.
She also explained that she was not trying to falsely “pin” the murder on
Defendant; she just wanted to see him brought to justice. Ms. Williams further
testified that the reason she did not want to return to New Orleans was because she
was afraid that Defendant‟s family members were “looking for her.”
Crystal Thomas, the surviving shooting victim, related the same series of
events. She explained that she was pregnant at the time, and was allowing Ms.
Williams and decedent to move into an empty bedroom in her house. She
described the errands she ran with Ms. Williams that day, taking Ms. Williams‟
friend to her new house, picking up Defendant and decedent, and driving to
Defendant‟s cousin‟s house, and then to the apartments at Tara Lane. She stated
that she had been aware that Ms. Williams, Defendant, and decedent had planned
to engage in a transaction, but she did not know the details. Although Ms. Thomas
had never met Defendant before that day, she was able to identify him at trial.


6
Ms. Thomas testified that when they arrived at the apartment complex, she
wanted to wait in the car because she was not included in the planned transaction,
but Defendant became angry and ordered her and Ms. Williams out of the vehicle.
They walked into the courtyard of the apartment complex and Defendant used Ms.
Williams‟ cell phone to make a call. After the call, Defendant pulled a gun from
his waistband, asked, “Where‟s at partner?” and began shooting.
Ms. Thomas stated that Defendant was four or five feet from her when he
started shooting. She heard decedent tell them to run, so she and Ms. Williams ran
toward the rear of the complex while Defendant was shooting at decedent in the
courtyard. As Ms. Thomas was running, her leg began to hurt and she became
weak, so she lay down in the alleyway, pretending to be dead. Through the corner
of her eye, she saw Defendant stand over her to see if she was moving, as he
continued to chase and shoot at Ms. Williams. While Ms. Thomas lay in the
alleyway, she began to feel “her insides burning” and realized she had been shot.
She waited until she believed it was safe to stand up and then ran for help. Because
decedent fell in the entryway to the courtyard, Ms. Thomas had to step over his
body and she observed that he was still alive, gasping for breath. She stated that the
residents of the apartment complex rendered aid until the paramedics arrived and
transported her to University Hospital.
Ms. Thomas testified that while she was in the hospital, the police took her
statement and showed her a photographic lineup. She recalled that she had been in
shock and in pain and was slurring her words while speaking to the police. Ms.
Thomas stated that she chose Defendant‟s picture out of the lineup, but because he
had been wearing a hat during the shooting and not in the picture, she could not be


7
absolutely certain. In her statement to police, she described the shooter as wearing
a blue-striped polo shirt, red and white tennis shoes, and a baseball cap.
On cross-examination, Ms. Thomas was adamant that Defendant was the
shooter and denied having any difficulty remembering the incident. She stated that
she remembered the shooter had five gold teeth, two on the top and three on the
bottom. Ms. Thomas admitted that she pled guilty in 2010 to unauthorized use of a
motor vehicle and was sentenced to two years of probation. Her probation was
subsequently extended for another two years after she failed a drug test and had not
made payments toward restitution. She also stated that she only became aware of
the proposed drug deal when the group was driving to the Tara Lane Apartments;
she was unaware that Defendant had a gun.
On cross-examination, Ms. Thomas testified that Ms. Williams informed her
that Defendant was the father of her child, which she later learned was not true.
She also denied telling the police that they were shot near the car, explaining that if
an officer wrote that in his report, he must have misunderstood. She also denied
telling the police that decedent was planning to buy a small amount of marijuana,
as she was unaware of the nature of the transaction that the others had planned. She
stated that, although she never saw Defendant remove anything from decedent‟s
pockets, she believed robbery was the motive for the shooting. Ms. Thomas also
admitted that she did not tell the police that the shooter had tattoos on his face
because she had not noticed, as she had only just met Defendant a short time
before the shooting.
On re-direct, Ms. Thomas stated that, while she did not mention Defendant‟s
tattoos to the police, she also did not say the shooter had no tattoos, and she did tell
the grand jury that the shooter had facial tattoos. She also denied that she and Ms.


8
Williams had planned to have decedent murdered, as she had only met him the day
of the shooting.
Clarissa Lebanks Ross, another eyewitness to the shooting, testified that she
was a resident of the apartment complex on Tara Lane on the date of the murder.
She stated that she was sitting in a chair outside her apartment door watching her
children ride their bikes in the courtyard when two men and two women entered.
She noticed that one of the women was pregnant and the other had a very short
haircut she described as a “fade.” Once the strangers began arguing, Ms. Ross told
her children to go inside the apartment while she remained outside. She stated that
one of the men made a call on a cell phone and asked, “are you ready?” then put
the cell phone in his right, rear pocket. She observed him pull out a gun and shout,
“Give it up,” then start shooting toward the front gate of the courtyard. When she
saw the gun, Ms. Ross immediately entered her apartment, shut the door, and
watched the incident unfold through the window.
Ms. Ross testified that the perpetrator shot the other man and then ran across
the courtyard toward the back of the apartment complex, still firing the gun.
Because the two women who were with them had run toward the back of the
apartment complex, Ms. Ross believed the shooter was chasing and shooting at
them. As the shooter was crossing the courtyard in pursuit of the two women, he
looked in Ms. Ross‟s window and they locked eyes. She testified that she saw him
very clearly and she identified Defendant in the courtroom as the shooter, stating
that there was no doubt in her mind.
After the shooting stopped, Ms. Ross left her apartment and went upstairs to
the second floor of the apartments to observe from the balcony. As she ascended
the staircase, she was able to see Defendant jump over the fence behind the


9
apartment building. Ms. Ross testified that her neighbor called 911 and threw a
towel down into the courtyard to press onto decedent‟s wounds, as he was bleeding
profusely from his stomach.
Ms. Ross testified that she did not recall talking to the police the night of the
shooting, but a detective came to her apartment the next day to ask questions.
Several weeks later, the detective returned and showed her a photographic lineup.
She identified the shooter and circled Defendant‟s picture. The back of the
photograph contained Ms. Ross‟s signature and was dated November 1, 2011 at
11:55 am.
On cross-examination, Ms. Ross stated that she did not know how many
apartments were occupied at the time of the shooting. She knew her neighbors but
stated that she had not discussed the shooting with any of them at any time. She
also stated that Defendant‟s facial tattoos stood out to her during the shooting, in
the photographic lineup, and in the courtroom during trial.
Rachel Smith, an “NOPD complaint operator,” testified that, according to
the incident report sheet, her division received several 911 calls starting at 7:49 pm
on September 29, 2011. The callers reported the shooting of a pregnant woman,
and described the shooter as a black male with a “low haircut,” two gold teeth, a
“504” and a fleur de lis tattoo under his eyes, and wearing a blue and white striped
Polo shirt, blue jeans, and red and white “drawers.” On cross-examination, Ms.
Smith stated that the description of the shooter contained in the report appeared to
have been provided by a police officer at the scene, and that one of the 911 callers
described the shooter as someone‟s “boyfriend.” She also testified that the report
log did not indicate that any 911 callers were named Clarissa.


10
Dr. Jeffrey Rouse, the Orleans Parish Coroner, testified that he was not
employed in Orleans Parish at the time of the murder, but he authenticated the
former coroner‟s report and explained its contents. The report indicated that
decedent‟s cause of death was gunshot wounds. Specifically, he sustained gunshots
to his thumb, ring finger, and collarbone and three bullets entered his buttocks
area, causing injury to his femoral artery, iliac artery, and his large and small
intestines.
On cross-examination, Dr. Rouse stated that the report showed a lack of soot
or stippling surrounding the wounds, indicating the shooter was more than two feet
away from decedent. The report also revealed that no gunshot residue test had been
performed on decedent, and his blood contained no toxic substances. He also
agreed that the report described bullets one and three as “mushroomed,” and
described bullet two as “full metal, yellow-jacket,” although he stated that the
report contained no description of any of the bullets as “hollow-point.”
Meredith Acosta, a senior firearms examiner for the NOPD crime lab,
testified that the striation patterns on the eleven bullets recovered from the
courtyard at the crime scene and the three bullets extracted from decedent, were
identical, indicating that they all were fired from the same gun, consistent with a
nine millimeter. However, without the gun available for examination, she could not
say whether the recovered bullets were “previously attached” to the casings also
recovered at the crime scene. She also could not determine the identity of the
shooter because any DNA or fingerprints contained on the cartridge casings would
have burned off due to the high heat exposure when being fired from a gun.
Additionally, due to a number of variables such as the weather, how the shooter
held the gun, and whether he was moving around, it would be nearly impossible to


11
determine where the shooter stood based on the location of the recovered cartridge
casings.
NOPD Homicide Detective Timothy Bender testified that he assisted lead
Detective Jeffrey Vappie in this case, and his job was to document the scene,
supervise the crime lab, and collect evidence. On cross-examination, Det. Bender
testified that, to his knowledge, they were not investigating an armed robbery. His
job was to canvas the apartment complex to determine if any witnesses existed. He
spoke to three of the residents at the scene, none of whom mentioned any tattoos.
Clarissa Ross, who lived in apartment thirty-eight, recalled at least twelve gunshots
and described the shooter‟s clothing. A male in apartment forty-three, who wished
to remain anonymous, witnessed the subject jump over the chain-link fence in the
back of the apartment complex. On re-direct, he testified that none of the witnesses
said the shooter did not have tattoos.
Lieutenant Kevin Burns, Defendant‟s only witness, testified that he was
assigned to the NOPD Homicide division at the time of the shooting and assisted
lead Detective Vappie in gathering evidence. Lt. Burns interviewed Ms. Thomas at
University Hospital and collected the decedent‟s and Ms. Thomas‟ property,
including a watch, four hundred dollars, two cell phones, and decedent‟s credit
cards and driver‟s license.
After having his recollection refreshed, Lt. Burns testified that Ms. Thomas
told him she had gone to the Tara Lane apartments with decedent and another
woman named “Kelsey” to buy a small amount of marijuana. He stated that Ms.
Thomas was not able to clearly describe the order of events, however the report
indicated that Defendant and decedent argued, then defendant shot decedent inside
of the car. As Ms. Thomas and Ms. Williams fled, Ms. Thomas realized she had


12
been shot. The report indicated that Ms. Thomas described the shooter as having
two gold teeth on top and three on bottom. At trial, Lt. Burns approached
Defendant and noted that he appeared to have two gold teeth on top and two on the
bottom, although it appeared that at least one gold tooth had been removed.
On cross-examination, Lt. Burns explained that when he was interviewing
Ms. Thomas, she was crying and hysterical, and appeared to be in serious pain. She
was also worried that the other woman had been shot. She told Lt. Burns that she,
decedent, and Ms. Williams met Defendant at the apartment complex, Defendant
made a phone call on Kelsey‟s phone, argued with decedent, and then began to fire
his gun into the vehicle. She then stated that she believed Defendant was shooting
at her and Ms. Williams to “eliminate witnesses.” When Ms. Thomas realized she
was shot, she fell down and “pretended to be dead.” However, she was able to see
the shooter continue to fire at Kelsey. Ms. Thomas also described the shooter and
the clothes he was wearing. On re-direct, Lt. Burns admitted he did not know, nor
did he ask, whether Ms. Thomas had been on any drugs or medication when she
gave her statement.
After the presentation of the witnesses, the case was given to the jury. After
deliberations, the jury found the Defendant guilty of one count of second degree
murder and one count of attempted second degree murder, but not guilty of the
second count of attempted second degree murder.
ERRORS PATENT

In accordance with La.C.Cr.P. art. 920, we have reviewed this appeal for
errors patent. We find that the trial court failed to observe the twenty-four-hour
delay between the denial of Defendant‟s motion for new trial and sentencing, as
mandated by La.C.Cr.P. art. 873. Such failure has been deemed to be harmless if a


13
Defendant does not complain on appeal of his sentence. State v. Smith, 2015-0241,
p. 5 (La.App. 4 Cir. 1/27/16), 186 So.3d 794, 797; State v. Berniard, 2014–0341,
pp. 9-10 (La.App. 4 Cir. 3/4/15), 163 So.3d 71, 79-80.
In this case, Defendant filed an oral motion for a new trial on the day of
sentencing, which the court denied. The court subsequently sentenced Defendant to
the mandatory life term on the count of second-degree murder, and a consecutive
sentence of forty-nine years on the count of attempted second-degree murder, both
to be served without the possibility of parole, probation, or suspension of sentence.
Although the court failed to wait twenty-four hours after the denial of Defendant‟s
motion for a new trial to administer the sentence, Defendant does not complain of
the trial court‟s error on appeal, therefore the error is deemed harmless.
DISCUSSION

Defendant appeals his convictions citing six assignments of error. Each
assignment of error will be discussed in numerical order, with the exception of
assignment of error number four. Assignment of error number four raises an
argument that the evidence was insufficient to support Defendant‟s conviction.
When issues are raised on appeal both as to the sufficiency of the evidence and as
to one or more trial errors, the reviewing court should first determine the
sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992).
Assignment of Error Number 4
The Supreme Court provided the standard for review of a claim of
insufficiency of the evidence in Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original):
[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential


14
elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder‟s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

“Under the Jackson standard, the rational credibility determinations of the
trier of fact are not to be second guessed by a reviewing court.” State v. Williams,
2011-0414, p. 18 (La.App. 4 Cir. 2/29/12), 85 So.3d 759, 771.
Defendant does not dispute that Jasper Branch was murdered or that Crystal
Thomas was shot. However, Defendant argues the State failed to adequately prove
that he was the individual who committed the crime. In so arguing, Defendant
notes that only two witnesses made identifications that were certain, and of those
two, both gave inconsistent statements that shed doubt on how well they remember
the event and on their veracity.
While Ms. Thomas did testify that she could not positively identify
Defendant in the photo lineup the night of the shooting, during the trial she
recognized Defendant as the shooter and positively identified him at that time. Ms.
Williams and Ms. Ross also positively identified Defendant as the shooter both in
photographic lineups and in the courtroom at trial. Ms. Williams knew Defendant
personally, and, although she had just met Defendant on the day of the shooting,
she had been riding in the car and arrived at the crime scene with him that day.
Further, Ms. Ross was a resident of the apartment complex and did not know
Defendant or any of the victims, but was still able to positively identify Defendant


15
as the shooter, both in the photographic lineup and in court. All three of the
eyewitnesses testified that they were certain Defendant was the shooter.
“The testimony of a single witness, if believed by the trier of fact, is
sufficient to support a conviction.” State v. Wells, 2010-1338, p. 5 (La.App. 4 Cir.
3/30/11), 64 So.3d 303, 306. In this case, three eyewitnesses positively identified
Defendant as the perpetrator in the courtroom. The jury heard the testimony and
weighed the credibility of the witnesses. Defendant does not demonstrate that the
jury acted irrationally when it accepted the testimony identifying him as the
assailant. Based on the aforementioned factual evidence and jurisprudential
authorities, we find that there was sufficient evidence for the jury to convict the
Defendant; thus, this assignment of error has no merit.
Assignment of Error Number 1
In his first assignment of error, Defendant argues that the trial court erred in
allowing the admission of “other crimes” evidence, which unfairly prejudiced
Defendant in violation of La. C.E. arts. 403 and 404(B).
The first statement Defendant complains of is Ms. Williams‟ testimony on
re-direct that she told Defendant‟s prior counsel that the reason she refused to
return to New Orleans to testify against Defendant was because she was afraid that
Defendant‟s brothers were “looking for her.” The State accurately points out that
Defendant objected to the admission of this statement on hearsay grounds only,
thus preventing Defendant from claiming alternate grounds for objection on
appeal. See State v. Brooks, 1998-0693 (La.App. 4 Cir. 7/21/99), 758 So.2d 814,
819.
Additionally, it does not appear that the witness attributed any “bad act” or
“wrong” to the Defendant himself. She simply stated her fear that individuals other


16
than Defendant may be “looking for her.” See State v. Bell, 2015-1264, pp. 9-10
(La.App. 4 Cir. 7/6/16), 197 So.3d 358, 364 (holding that La. C.E. art. 404 was not
violated by the introduction of testimony from an eyewitness that she was afraid to
testify because she had received threats from individuals other than defendant).
The second statement Defendant complains of is Ms. Williams‟ testimony
that she believed Defendant and decedent met in jail, arguing that the jury could
infer that Defendant had a “jail record.” The court overruled Defendant‟s objection
when the State asked where the two met. However, there was no reference to any
specific crime or act Defendant may have committed, and no indication that
Defendant had been arrested or was serving time for any convictions. See State v.
Sanders, 2012-114, p. 10 (La.App. 5 Cir. 9/11/12), 101 So.3d 994, 1001 (holding
that defendant‟s statement that he did not want to go back to jail was not
inadmissible evidence of other crimes or bad acts because it did not refer to any
specific crime or bad act committed by defendant and was vague and ambiguous).
“[V]ague, non-pointed statements [do not] constitute other crimes evidence.” State
v. Harris, 28,517, p. 8 (La.App. 2 Cir. 8/21/96), 679 So.2d 549, 556.
Lastly, Defendant complains of the State‟s comment following its objection
to Defendant‟s presentation of decedent‟s prior bad acts when it stated, “Objection,
the victim is not on trial here… We can talk about past convictions if that‟s where
he wants to go,” and “what‟s good for the goose is good for the gander.” The State
argues that statements made by attorneys are not “evidence” as that term is used in
the Code of Evidence. We agree. See State v. Williams, 2015-0866, p. 11 (La.App.
4 Cir. 1/20/16), 186 So.3d 242, 249-50. Furthermore, the State points out that
Defendant should have requested an admonishment to the jury or moved for a
mistrial, neither of which he did, therefore failing to preserve the matter for appeal.


17
In any event, these appear to be vague, non-pointed statements as there is no
reference to any specific crime or act attributed to Defendant.
Even assuming the above references constituted impermissible other crimes
evidence and that the objections to these statements were properly preserved for
review, they would be reviewed under a harmless error standard. State v. Copelin,
2016-0264, p. 22 (La.App. 4 Cir. 12/7/16), 206 So.3d 990, 1005. “[A]n error is
harmless if it is unimportant in relation to the whole and the verdict rendered was
surely unattributable to the error.” State v. Blank, 2004–0204, p. 53 (La. 4/11/07),
955 So.2d 90, 133.
In this case, the State presented three eyewitnesses to the shooting, all of
whom positively identified Defendant as the perpetrator at trial and testified that
they were certain he was the shooter. Whether Defendant may have been in jail
previously or whether one witness feared retaliation by Defendant‟s family did not
contribute to the jury‟s verdict in light of the strength of the State‟s case. Neither
the State nor Defendant adduced any evidence at trial contradicting any of the
eyewitnesses‟ identifications of Defendant as the perpetrator. This assignment of
error is without merit.
Assignment of Error Number 2
Defendant next argues that the trial court erred when it failed to provide the
grand jury transcripts to Defendant following an in-camera inspection, finding no
inconsistencies in previous testimony that would have been subject to Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). Defendant asserts that there are
discrepancies between Ms. Williams‟s and Ms. Ross‟s grand jury and trial
testimonies and the failure of the court to allow Defendant access to the grand jury
transcripts prevented him from impeaching these witnesses on cross-examination.


18
The State asserts that Defendant has not provided proof that he was not in
possession of the grand jury transcripts and points out that Defendant objected to
the State‟s introduction of the grand jury transcripts at trial. As an initial matter,
while there is no substantive proof that Defendant was not in possession of the
grand jury transcripts, a review of the record reveals that the court granted
Defendant‟s motion on May 30, 2014, to conduct an in-camera inspection of the
transcripts to determine whether Brady material existed therein. Defendant
inquired about this motion at every subsequent hearing and again the morning of
the first day of trial. The court took a small recess and, upon its return, stated that
the grand jury transcripts contained “no Brady/Giglio material suitable for
disclosure to the defense.” It appears, therefore, that neither the State nor the court
supplied Defendant with the grand jury transcripts at any juncture before or during
trial.2
Secondly, notwithstanding the aforesaid statement, the record affirmatively
reflects that Defendant had access to Ms. Thomas‟ grand jury testimony. In fact,
Defendant made a hearsay objection to Ms. Thomas‟s trial testimony and the
State‟s use of the grand jury transcripts to refresh her recollection as to her prior
consistent statement. Under La. C.E. 612(B), once the State utilized the grand jury
transcripts to refresh the recollection of Ms. Thomas during her trial testimony,
Defendant would have had the right to inspect them, yet apparently did not.3

2 Appellate counsel appears to have been in possession of the grand jury transcripts as this assignment of error contains detailed statements made during the grand jury proceeding.

3 La. C.E. art. 612(B) provides, “In a criminal case, any writing, recording, or object may be used by a witness to refresh his memory while testifying. If a witness asserts that his memory is refreshed he must then testify from memory independent of the writing, recording, or object. If while testifying a witness uses a writing, recording, or object to refresh his memory an adverse party is entitled, subject to Paragraph C, to inspect it, to examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.”


19
In any event, the suppression of evidence favorable to the accused violates
due process where the evidence is material either to guilt or punishment, without
regard to the good or bad faith of the prosecution. Brady, 373 U.S. at 88. Favorable
evidence includes both exculpatory evidence and impeachment evidence. United
States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380 (1985); State v.
Knapper, 579 So.2d 956, 959 (La.1991). To constitute a Brady violation three
components must be met: “[t]he evidence at issue must be favorable to the
accused, either because it is exculpatory or because it is impeaching; that evidence
must have been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.” State v. Cambrice, 2015-2362, p. 4 (La. 10/17/16),
202 So.3d 482, 485 (quoting Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct.
1936, 1948, (1999)).
While grand jury testimony is generally cloaked in secrecy,4 there are
exceptions. In State v. Peters, 406 So.2d 189, 190-91 (La.1981), the Louisiana
Supreme Court held that grand jury testimony is discoverable if it is favorable to
the accused and is material to guilt or punishment under Brady. Peters further held
“that an in-camera inspection by the trial judge is a proper means of
accommodating the secrecy of the grand jury and at the same time protecting
defendant‟s constitutional rights of confrontation and due process.” Id. at 191.

Paragraph C provides, “If it is claimed that a writing or recording contains matters not related to the subject matter of the testimony the court shall examine it in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.”

4 See La. Const. art. 5, § 34(A) (providing for the establishment of one or more grand juries in each parish and mandating that the secrecy of grand jury proceedings shall be provided by law); La.C.Cr.P. art. 434 (mandating the secrecy of grand jury proceedings)


20
The prior inconsistent statements Defendant asserts on appeal are: (1) that
Ms. Williams testified to the grand jury that Defendant was her friend, but in other
statements, she said he was not her boyfriend, or that he was her ex-boyfriend; (2)
at trial, witnesses characterized Defendant‟s request to use Ms. Williams phone to
place a phone call just before the shooting as a demand or an argument, however
Ms. Williams told the grand jury defendant used the word “please”; (3) Ms.
Williams testified to the grand jury that two guns were pointed at decedent, yet
only referred to one gun in every other statement; and (4) Ms. Ross stated to the
grand jury that she went inside her apartment with her children during the
argument over the cell phone, however at trial she stated she went into her
apartment after Defendant fired the first gunshot.5
Statements (1) and (2) do not appear to be inconsistent with Ms. Williams‟s
grand jury testimony. By definition, an ex-boyfriend would not be a current
boyfriend, but that is not to say an ex-boyfriend could not still be a friend.6
Similarly, although Ms. Williams testified to the grand jury that Defendant used
the word “please” when asking to use her phone, her testimony at trial that “he

5 Defendant also complains that Ms. Williams testified for the first time at trial that she noticed a “bump” in Defendant‟s pants the day of the shooting, which she assumed to be a gun, but thought nothing of it at the time. The record reveals, however, that she was cross-examined on this matter at trial, therefore no prejudice to Defendant results. Similarly, Defendant complains that Ms. Ross stated for the first time at trial that Defendant looked in her eyes as he ran past her window while shooting, and Defendant cross-examined her also on this new information. In any event, these statements are not necessarily discrepancies, as there was no conflicting testimony presented during the grand jury proceeding. Defendant also argues that Ms. Ross testified to the grand jury “[a]fter I got inside I heard a gunshot and I didn‟t hear anymore,” which is inconsistent with her testimony at trial. However, further review of Ms. Ross‟s grand jury testimony reveals that she told the same series of events to the grand jury that she did at trial – that is, she both heard and saw Defendant fire other gunshots and saw him run past her window while shooting at the other victims.

6 Defendant also cross-examined Ms. Williams thoroughly regarding the extent of her relationship with Defendant.


21
asked me” to use the phone and her denial that an argument ensued are not
inconsistent.
While allegation (4) reveals a discrepancy between the witness‟s grand jury
and trial testimonies, every eyewitness to the shooting testified that once the
shooter terminated the phone call, he immediately pulled the gun from his
waistband and began firing. During cross-examination, Ms. Ross explained that
she took her children inside the apartment during the argument regarding the cell
phone, and once she saw the gun she moved as fast as she could inside her
apartment. As she was making her way inside, Defendant began firing the gun.
Whether Ms. Ross was all the way inside her apartment when the first shot rang
out or on her way inside is not the type of inconsistency that could rise to a level of
undermining confidence in the outcome of the trial.
Finally, statement (3) does appear to be inconsistent with Ms. Williams‟s
trial testimony. Not only did Ms. Williams testify that she saw “guns” pointed at
decedent before he was shot, the state clarified her remark by asking, “[w]hen you
say „the guns at him,‟ you mean you saw two guys pointing a gun at Jasper?” and
she answered, “Yes, ma‟am, in his face.” Although no follow-up explanation was
adduced, it appears Ms. Williams agreed that two men were pointing guns at
decedent; however nowhere in the record does any witness corroborate this
information in any statement, pre-trial or otherwise, including Ms. Williams.
Neither Ms. Thomas nor Ms. Ross ever stated there was a second gunman. It is
unclear why Ms. Williams made this statement to the grand jury and Defendant
could have used this information at trial to impeach her.
Nevertheless, Defendant fails to show he was prejudiced by the inability to
impeach Ms. Williams on this issue.


22
[P]rior inconsistent statements are only admitted to impeach or to contradict the witness‟s trial testimony, i.e., solely to discredit the witness; these statements cannot be used to divulge the content of the prior statement for the purpose of inviting the jury to believe the content of the statement. La.Code Evid. art. 607 D(2).

State v. Cousin, 1996-2973 (La. 4/14/98), 710 So.2d 1065, 1070. Here, Defendant
would have been able to admit the prior inconsistent statement solely for the
purpose of damaging Ms. Williams‟s credibility and not for the truth of the
statement that another shooter was present at the scene with another gun.
Defendant argues that “[t]he only evidence presented involve the statements
of three witnesses, one of whom was so unbelievable the jury didn‟t even believe
she was a victim and found the appellant not guilty on her count.” If the jury
convicted Defendant on the other two counts in spite of Ms. Williams‟s
“unbelievable” testimony, it does not appear likely that the jury would have
rendered a different verdict due to further impeachment of this witness, especially
considering the strength of the State‟s case as a whole, with two other eyewitnesses
testifying to the same series of events and confidently identifying Defendant in
court as the shooter. Defendant has not shown that the failure to disclose the grand
jury transcripts caused prejudice to the extent “that in its absence he [did not]
receive 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 (1995)
This assignment of error also lacks merit.
Assignment of Error Number 3
In his third assignment of error, Defendant argues that the State made
several improper remarks during closing argument. Specifically, Defendant
complains that the State (1) attempted to shift the burden of proof with multiple


23
references to the defense‟s lack of witnesses and by stating that if defense counsel
“knew” Defendant was innocent, he (defense counsel) should have testified
himself; (2) criticized Defendant‟s trial strategy stating that when defense counsel
became frustrated, he resorted to repetitive questioning; (3) insinuated Defendant
was violent by pointing out that eleven deputies were guarding the courtroom; and
(4) insinuated that Defendant was involved in witness intimidation.
The State asserts that none of the remarks were improper, and the statements
Defendant complains of were in response or rebuttal to Defendant‟s opening and
closing arguments.
The scope of closing 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. The argument shall not appeal to prejudice. The state's rebuttal shall be confined to answering the argument of the defendant.” La. C.Cr.P. art. 774. Prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. State v. Williams, 96– 1023, p. 15 (La. 1/21/98), 708 So.2d 703, 716. However, prosecutors have wide latitude in choosing closing argument tactics. State v. Casey, 99–0023, p. 17 (La. 1/26/00), 775 So.2d 1022, 1036, cert. denied, Casey v. Louisiana, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000), citing State v. Martin, 539 So.2d 1235, 1240 (La. 1989) (closing argument that referred to “smoke screen” tactics and defense as “commie pinkos” was inarticulate but not improper). Further, the trial judge has broad discretion in controlling the scope of closing arguments. Id. Even where the prosecutor's statements are improper, credit should be accorded to the good sense and fairmindedness of the jurors who have heard the evidence. State v. Ricard, 98–2278, p. 4 (La. App. 4 Cir. 1/19/00), 751 So.2d 393, 396. Even if the prosecutor exceeds the bounds of proper argument, a reviewing court will not reverse a conviction unless “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. State v. Huckabay, 2000–1082, p. 30 (La. App. 4 Cir. 2/6/02), 809 So.2d 1093, 1110. See also State v. Draughn, 2005– 1825 (La. 1/17/07), 950 So.2d 583.

State v. Haynes, 2013-0323, p. 12 (La.App. 4 Cir. 5/7/14), 144 So.3d 1083, 1090.
In this case, the State‟s comments on the failure of defense to present
witnesses appears to be in response to Defendant‟s opening statements claiming


24
Defendant was not present at the crime scene. Defendant objected to State‟s
remark that no witness had testified that Defendant was in a different location at
the time of the shooting. Although the court initially sustained the objection and
admonished the jury that the State bore the entire burden of proof, the State
reminded the court that Defendant‟s theory of the case was that he had not been
present during the shooting, but presented no evidence to corroborate that
assertion, causing the court to change its ruling.
This court rejected similar defense arguments in State v. Bailey, 2012-1662,
p. 16 (La.App. 4 Cir. 10/23/13), 126 So.3d 702, 713 finding that the prosecutor‟s
comments concerning the defense failure to call witnesses to support its case
“merely restated evidence or lack thereof that was presented during trial.”
The State‟s comment that defense counsel should have testified was in
response to defense counsel‟s assertion in his closing argument that he “knew”
Defendant was innocent, which suggested that defense counsel was privy to
additional evidence not presented at trial. Similarly, asking the jury to consider
why eleven deputies would be present in the courtroom was in response to defense
counsel‟s assertion that it was unfair to Defendant that eleven deputies were
present.
Some additional leeway is allowed the prosecutor in making remarks that
would ordinarily be inappropriate but are provoked by defense argument. See State
v. Trackling, 2004-0759, p. 6 (La.App. 4 Cir. 2/22/06), 930 So.2d 60, 65 (remarks
made during rebuttal, in response to defense counsel‟s comments are not
improper).
Any implication that Defendant engaged in, or enlisted others to engage in
threatening witnesses is arguably harmless and would not have contributed to the


25
verdict as the jurors heard without objection that both Ms. Thomas and Ms.
Williams had been placed into the witness protection program, the implications of
which would be generally understood by a reasonable juror.
The State should avoid personal attacks on defense counsel and trial
strategy. State v. Jones, 2015-0123, p. 44 (La.App. 4 Cir. 12/2/15), 182 So.3d 251,
279. However, such statements generally do not rise to the level that would merit
reversal of conviction. See State v. Dabney, 2015-0001, pp. 18, 22-23 (La.App. 4
Cir. 9/19/15), 176 So.3d 515, 527, 529 (holding that “instances where the State
attacked defense strategy and tactics, branded defense counsel a liar and not
worthy of belief, and suggested that the defendant may have killed someone in the
past” did not require reversal “in light of the traditional breadth accorded the scope
of closing argument by the courts of this state”).
We find that the State‟s remarks during closing and rebuttal arguments,
although skirted on the line of improper, do not warrant reversal of Defendant‟s
conviction. We are not “thoroughly convinced” the comments contributed to or
influenced the verdict considering the number of eyewitnesses who testified that
they were certain Defendant was the shooter. This assignment lacks merit.
Assignment of Error Number 5
Defendant initially argued that the record was incomplete because it did not
include the voir dire transcripts or State‟s Exhibit Seven, thereby denying
Defendant a full judicial review. However, the State subsequently supplemented
the record with the requested materials pursuant to an order from this Court, and
Defendant submitted a supplemental brief rendering moot any prejudice Defendant
might have sustained.



26
Assignment of Error Number 6
Defendant argues that the court erroneously denied his challenges for cause
regarding jurors nineteen and ten, and, because he exhausted all of his peremptory
challenges, his conviction should be reversed. Juror nineteen stated that her
grandfather had been murdered during an armed robbery and that to vote not
guilty, she would have to believe Defendant was not guilty, indicating she would
shift the burden of proof to Defendant. Juror number ten had family members
employed as law enforcement officers and stated he may attribute more credibility
to a police officer‟s testimony.
Prejudice is presumed when a district court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. State v. Kang, 02–2812, p. 3 (La. 10/21/03), 859 So.2d 649, 651; State v. Robertson, 92–2660, p. 3 (La. 1/14/94), 630 So.2d 1278, 1280. A district court‟s erroneous ruling which deprives a defendant of a peremptory challenge substantially violates that defendant‟s rights and constitutes reversible error. Kang, 02– 2812, at p. 3, 859 So.2d at 652; State v. Cross, 93–1189, p. 6 (La. 6/30/95), 658 So.2d 683, 686; State v. Bourque, 622 So.2d 198, 225 (La. 1993), overruled on other grounds by State v. Comeaux, 93–2729 (La. 7/1/97), 699 So.2d 16; State v. McIntyre, 365 So.2d 1348, 1351 (La. 1978). When a defendant uses a peremptory challenge after a challenge for cause has been denied, the defendant must show: (1) erroneous denial of the challenge for cause; and (2) use of all peremptory challenges. Kang, 02–2812, at p. 3, 859 So.2d at 652; Cross, 93–1189 at p. 6, 658 So.2d at 686; Robertson, 92–2660 at p. 2, 630 So.2d at 1280; State v. Lee, 559 So.2d 1310, 1316 (La. 1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991).

State v. Lindsey, 2006-255, pp. 2-3 (La. 1/17/07), 948 So.2d 105, 107.

In the instant case, Defendant exhausted all of his peremptory challenges,
and therefore, his objection to the ruling refusing to sustain his challenge for cause
is properly before this Court. However, we find that the district court did not err in
denying Defendant‟s cause challenges. La. C.Cr.P. 797 provides in relevant part:
The state or the defendant may challenge a juror for cause on the ground that:


27

. . .

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.

Furthermore,
When a juror expresses a predisposition as to the outcome of a trial, a challenge for cause should be granted. State v. Lindsey, 06– 255, p. 3 (La.1/17/07), 948 So.2d 105, 107–108. If after subsequent questioning, or rehabilitation, the juror exhibits the ability to disregard previous views and make a decision based on the evidence presented at trial, the challenge is properly denied. Id., 06–255, p. 3, 948 So.2d at 108. When assessing whether a challenge for cause should be granted, the district judge must look at the juror‟s responses during his or her entire testimony, not just “correct” isolated answers or, for that matter, “incorrect,” isolated answers. Id. A prospective juror‟s seemingly prejudicial response is not grounds for an automatic challenge for cause, and a district judge‟s refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if after further questioning the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. Id., 06–255, p. 4, 948 So.2d at 108.

State v. Washington, 2015-0819, pp. 4-5 (La.App. 4 Cir. 2/17/16), 187 So.3d 71,
74.
Here, juror nineteen appeared rehabilitated when she subsequently replied
affirmatively to Defendant‟s question of the juror‟s ability to adhere to his legal
presumption of innocence. Likewise, juror number ten stated that, although he
considered police officers generally more credible, he also stated that every person
is an individual and he would not “form [his] opinion of them based on what they
do.”


28
Because both jurors appear to have been able to judge the case according to
the law, the district court did not err in denying Defendant‟s challenges for cause.
This assignment lacks merit.

Outcome: For the foregoing reasons, we affirm the judgment of the district court in its
entirety.

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Defendant's Experts:

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