Case Number: KA-17-0657

Judge: Juan W. Pickett

Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Plaintiff's Attorney: Michael C. Cassidy
District Attorney
Bennett R. LaPoint
Assistant District Attorney

Defendant's Attorney: Alfred F. Boustany, II

Description: The defendant, Kyvonte Latrell Eaglin, attended a party at the American
Legion Hall in Jennings on August 8, 2015. An altercation broke out, and a group
moved outside. The defendant went to his vehicle and retrieved a gun. Shots from
one or more firearms were fired, and the victim, Jawon Lennette, was killed.
The defendant was indicted for second degree murder, a violation of La.R.S.
14:30.1, on December 16, 2015, as a result of the shooting on August 8, 2015, that
resulted in the death of Jawon Lennette. Counsel filed a number of pre-trial
motions, including a motion for a hearing pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), and Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999), as adopted by the
Louisiana Supreme Court in State v. Foret, 628 So.2d 1116 (La.1993).
Counsel also filed a motion to declare the defendant indigent and to provide
funds to retain a firearms expert. The trial court ruled on October 27, 2016,
finding the defendant was indigent. However, the trial court denied the
defendant’s request to provide funds for him to retain an expert witness, and it
denied his request to reopen the Daubert hearing to present new scientific evidence
that purportedly refuted the state’s expert’s testimony. The defendant filed a
proffer of the new evidence for purposes of appellate review on November 14,
2016.1 He also proffered recorded statements of three witnesses.
The case went to trial on November 15, 2016. The jury rendered the
responsive verdict of guilty of manslaughter on November 18, 2016. Although he
was tried on a count of second degree murder, in closing argument the state argued
the jury should return a verdict of guilt for manslaughter. The defendant filed a
1The proffer referenced a website where the report could be found in its entirety.
2
motion for new trial on December 6, 2016, which the trial court denied without a
hearing. The defendant asked the trial court to reconsider the ruling, but the trial
court denied his request on December 14, 2016.
The trial court sentenced the defendant to twenty years at hard labor on
January 30, 2017. The defendant made an oral motion to reconsider his sentence,
and the trial court denied it. The defendant timely appealed.
ASSIGNMENTS OF ERROR

1. The district judge erred when he denied this indigent defendant's request for funds to hire a firearms expert.

2. The district judge erred when he allowed the State to argue that the jury should accept the testimony and opinions of the State’s firearms expert, because the defendant never called a firearms expert to contradict that testimony.

3. The district judge erred when he concluded that the State’s firearms expert was qualified to testify as a firearms expert, and that she proved that her testing procedure had sufficient scientific validity.

4. The district judge erred when he refused to allow the defense to reopen the Daubert hearing on the State’s firearms expert, after a very recent scientific report was brought to the court’s attention, and filed in the record, that cast considerable doubt on the scientific basis for the expert’s procedure and conclusion.

5. The district judge erred when he allowed the State unlimited challenges for cause against all prospective jurors who expressed reservations about a mandatory life sentence for a 17-year old child.

6. The district judge erred when the defense raised a Batson challenge, and the State did not give adequate or legal reasons for removing African-American jurors.

7. The district judge erred when he allowed the State to introduce, as evidence of the defendant’s “bad character,” a copy of a Facebook photograph of the defendant, who was roughly 13 years old, that falsely portrayed him as a masked armed robber holding a dangerous pistol to the back of a child’s head, as though ready to shoot the child, that the judge himself described as “inflammatory.”

8. The district judge erred when he refused to allow the defense to present the testimony of eye witnesses who would have testified that the defendant appeared to have accidentally fired a shot at the alleged victim.
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9. The district judge erred when he refused to allow the defense to impeach the State’s witnesses with prior inconsistent statements about how the shooting occurred. 10. The district judge erred, as a matter of law, when he denied the defendant’s motion for new trial, without a hearing.

11. The district judge erred by failing to properly consider the mitigating factors when imposing the sentence and imposed an excessive sentence.

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 are no errors patent.
ASSIGNMENT OF ERROR NUMBER THREE2

The defendant argues the trial court erroneously held the state’s firearms
expert was qualified to testify and that she proved her testing procedure had
sufficient scientific validity.
Daubert, 509 U.S. 579, “set forth a means for determining reliability of
expert scientific testimony and answered many questions as to proper standards for
admissibility of expert testimony.” Foret, 628 So.2d at 1121. When considering
reliability, the trial court should first perform “a preliminary assessment of whether
the reasoning or methodology underlying the testimony is scientifically valid and
of whether that reasoning or methodology properly can be applied to the facts in
issue.” Daubert, 509 U.S. at 592-93. Illustrative, not exclusive, factors bearing on
that assessment include whether the theory or technique can be and has been
tested, whether it has been subjected to peer review and publication, “the known or
2The logical order of the defendant’s claims is to address whether the state’s expert was qualified to testify, whether the Daubert hearing should have been re-opened, whether the defendant was entitled to funding to hire a firearms expert, and whether the jury should have accepted the testimony of the state’s expert where the defendant had no expert. Accordingly, we have addressed the defendant’s first four assignments of error out of order.
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potential rate of error . . . and the existence and maintenance of standards
controlling the technique's operation,” and general acceptance of the theory or
technique in the scientific community. Id. at 594. This gatekeeping function
“applies not only to testimony based on ‘scientific’ knowledge, but also to
testimony based on ‘technical’ and ‘other specialized’ knowledge.” Kumho Tire,
526 U.S. at 141. The inquiry must be applied to the facts of each particular case.
Id.
Our supreme court adopted a three-part inquiry to determine the
admissibility of expert testimony in Cheairs v. State ex rel. Department of
Transportation & Development, 03-680 (La. 12/3/03), 861 So.2d 536. Quoting
from the Eleventh Circuit’s opinion in City of Tuscaloosa v. Harcros Chemicals,
Inc., 158 F.3d 548, 562 (11th Cir.1998), cert. denied, 528 U.S. 812, 120 S.Ct. 309,
and cert. denied, 528 U.S. 812, 120 S.Ct. 47 (1999), the court held expert
testimony is proper when:
(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Cheairs, 861 So.2d at 542. The Daubert evaluation applies to the second of these
prongs. Id.
The trial court heard the defendant’s Daubert motion on September 21,
2016. The state offered Michelle Cazes as its firearms analysis expert.3 Ms. Cazes
worked at the Louisiana State Police Crime Laboratory in crime scene and firearms
analysis. She began her college studies at Southeastern Louisiana University,
majoring in accounting. However, when Our Lady of the Lake College in Baton
3The record at times refers to Ms. Cazes’s last name as “Olinde.”
5
Rouge began offering a degree in forensic science, Ms. Cazes transferred and
obtained her degree in that field.
After graduation, Ms. Cazes was accepted into a two-year training process
with a Bureau of Alcohol, Tobacco, and Firearms (ATF) training academy. During
the first phase of the program, she did research and wrote papers. In the second
phase, she spent four months in Maryland “doing hands on exercises and training.”
The third phase gave her “mock evidence to work up like casework.” She returned
to Maryland for the fourth phase to “testify in like a mock trial.” She received a
certificate and has completed a competency and proficiency test each year
An outside company administers annual tests to evaluate Ms. Cazes’s
competency at the crime lab. Ms. Cazes has not given any wrong answers in any
of the tests; she testified, “I’ve had all the correct answers.” Ms. Cazes previously
qualified as an expert forensic firearm analyst in four different Louisiana courts.
At the time of the Daubert hearing, Ms. Cazes was in the process of becoming
certified in firearm analysis with the Association of Firearm and Tool Mark
Examiners (AFTE). She was already certified in crime scene analysis.
Additionally, the crime lab is accredited by AFTE and falls under its protocol.
Ms. Cazes’s method of analysis is to examine, compare, and reach a
conclusion regarding evidence. Everything is verified. By doing the analysis this
way, “developing the class characteristics, individual detail, and then the
conclusion, every one [sic] would also come up with the same thing[]” because her
procedures are generally accepted in the scientific community.
According to Ms. Cazes, the procedures have also been subjected to peer
review, published in peer-reviewed journals, and shown to be reliable. Validation
studies over the past fifty years have shown the ability to “distinguish between two
firearms [and] the markings between them[.]” When “anything falls in the
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threshold or the gray area[,] and it doesn’t meet the threshold for identification,”
Ms. Cazes’s practice is to “err on the side of caution” and give a result of inclusive.
In this case, Ms. Cazes received one live cartridge, one mushroom copper
jacketed bullet, two nine-millimeter cartridge cases (fired rounds), and three .40
caliber cartridge cases for analysis. She was able to identify the fired bullet as a
nine-millimeter caliber. The same bullet was tested for DNA at the crime lab.
Ms. Cazes compared the two nine-millimeter cartridge cases to each other
and determined they were “fired in the same unknown firearm.” Additionally, “the
jacketed hollow point cartridge . . . was microscopically compared to the cartridge
case . . . and was determined to have been cycled through the same action of the
same unknown firearm.” Ms. Cazes found the markings on the nine-millimeter
cases and the live round to be “similar as far as they showed the same . . . class
characteristics and then some – the same individual detail.”
She further microscopically compared the three .40 caliber cartridge cases
and determined they had been fired from “the same unknown Glock or Glock-type
firearm.” She examined breech, chamber, extractor, ejector, and feed marks. The
.40 caliber cases seemed to be fired from the same weapon; they “had the same
firing pin shape, size, and then the individual detail.” Ms. Cazes’s findings were
twice-verified, once in technical review and again in administrative review. She
believed there was no rate of error. The protocol uses pattern matching. Ms.
Cazes explained:
[Y]ou want the patterns to line up identical[ly]. If they’re slightly off or completely off – if they’re slightly off but you have some that line up, then that – like I said, that would go in the inconclusive area. If they exactly line up, that would be the identification. And then if they’re totally off or just totally different class characteristics, then that would be the elimination.

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The bullet found with the victim’s blood on it was fired from a nine
millimeter firearm, but Ms. Cazes could not say it was fired from the same weapon
as the other cases. She testified it would require the gun or another bullet from it
to make that comparison. Because no firearms were recovered in this case, and she
could not identify the firearm from which that bullet was fired, she concluded two
or three weapons could have been fired at the scene.4 The trial court found Ms.
Cazes’s methodology was accepted under the Daubert standard, and it accepted
her as a forensic firearm analyst. The state proved her educational background in
the field of forensic science, a specific in-depth training program in forensic
science, and her proficiency in the field, verified by annual competency tests. The
defendant submitted nothing to show she was not qualified to testify as an expert in
forensic firearms analysis in this case.
We find that the state presented sufficient evidence to satisfy the standards
of Daubert, 509 U.S. 579, and of Cheairs, 861 So.2d 536. Ms. Cazes testified her
methodology was verified, accepted in the scientific community, subjected to peer
review, and shown to be reliable. Others doing the same analysis would reach the
same conclusion because of these standard procedures. This assignment of error
lacks merit.
ASSIGNMENT OF ERROR NUMBER FOUR

The defendant contends the district court erred when it refused to re-open
the Daubert hearing after the defendant brought a recent scientific report to the
court’s attention and filed it into the record. He alleges the report cast considerable
doubt on the scientific basis for Ms. Cazes’s procedure and conclusion.
4The two or three weapons would have been one that shot the .40 caliber cartridges and one or two nine-millimeter weapons.
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In this assignment of error, the defendant states the law allows a trial court to
review and reconsider an interlocutory ruling prior to final judgment if substantial
justice is served. The defendant contends this applies to the report he submitted to
the court. The defendant makes no argument. He cites only one case, Ryan v.
State Farm Mutual Automobile Insurance Co., 10-961, 10-962 (La.App. 1 Cir.
12/22/10), 68 So.3d 563, writ denied, 11-172 (La. 4/1/11), 60 So.3d 1250. That
case merely states “a trial judge may, at his discretion, change the substance or the
result of interlocutory rulings.” Id. at 566.
The defendant’s brief fails to identify how the trial court abused its
discretion in failing to reopen the Daubert hearing. The brief notes, “This request
was addressed at [Record] Pages 199-209; 220-234; [and] 715-731.” However, the
defendant may not incorporate arguments made in the trial court into his appellate
brief by reference. Bennett v. Hughes, 03-1727 (La.App. 4 Cir. 5/26/04), 876
So.2d 862, writ denied, 04-1599 (La. 6/30/04), 877 So.2d 122. Such a reference is
insufficient to constitute briefing of this assignment of error. Uniform Rules—
Courts of Appeal, Rule 2-12.4; Theriot v. Bourg, 96-466 (La.App. 1 Cir. 2/14/97),
691 So.2d 213, writ denied, 97-1151 (La. 6/30/97), 696 So.2d 1008.
The defendant’s reply brief, however, argues knowledge of scientific
information casting doubt on the validity of an expert’s qualifications, procedure,
or opinion requires the trial court to reopen the Daubert hearing. Failure to reopen
it, the defendant contends, is an abuse of the trial court’s discretion.
Uniform Rules—Courts of Appeal, Rule 2-12.6, requires a reply brief to be
“strictly confined to rebuttal of points urged in the appellee’s brief.” Where a reply
brief “goes beyond mere rebuttal and attempts to raise a new legal argument[,]” an
appellate court should not address the new issues. McGregor v. Hospice Care of
9
Louisiana in Baton Rouge L.L.C., 09-1355, 09-1356, p. 9 (La.App. 1 Cir. 2/12/10),
36 So.3d 281, 287 n.2, writ denied, 10-832 (La. 5/28/10), 36 So.3d 258.
The defendant’s original brief did not allege an abuse of discretion by the
trial court. While it argued the trial court could have reopened the Daubert
hearing, it did not state why it should have. We do not consider the arguments
advanced in the reply brief as proper rebuttal argument.
We consider this assignment of error abandoned. See Bennett, 876 So.2d.
869.
ASSIGNMENT OF ERROR NUMBER ONE

The defendant contends the trial court erred by denying his request for funds
to hire a firearms expert. Once again, the defendant refers to his numerous filings
in the trial court to explain his need for a firearms expert. Our courts do not allow
this practice. Uniform Rules—Courts of Appeal, Rule 2-12.4; Theriot, 691 So.2d
213.
Further, none of the motions to which the defendant’s appeal brief refers
requested funding except “Defendant’s Motion for Declaration of Indigency, and
for Funds for a Forensic Firearms Expert,” filed on October 18, 2016. That motion
sought funding to refute Ms. Cazes’s expert testimony “that in her scientific
opinion the bullets and/or cartridge casings were cycled through the action and/or
fired from the same unknown firearm.”
The defendant’s appellate brief states, “We also know now that the bullet
casings may have fingerprints on them, and that evidence can be obtained with the
assistance of a firearms expert.” That issue was not brought before the trial court.
Rather, counsel for both parties questioned Ms. Cazes at the Daubert hearing about
her methodology of comparing bullets and casings. She concluded two or possibly
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three firearms were present at the scene. Again at trial, she testified to the
possibility of three guns firing the bullet fragment and cartridge casings.
Well into her trial testimony, during cross-examination, Ms. Cazes was
asked for the first time about fingerprints being set into bullets when they are fired.
This issue was not raised before that point. Ms. Cazes testified fingerprints could
be obtained from a live round or from casings “picked up after the firing
process[.]” She was questioned about whether body salts could etch fingerprints
into a casing when a gun was fired. She testified that as a firearms expert she does
not test for fingerprints and further testing for that process was not performed by
the lab in this case because it was not requested.
This court may not consider the defendant’s request to fund an expert to
testify about whether fingerprints can be etched on fired casings because the issue
was not raised in the trial court. The defendant never asked the trial court anything
about funding for such tests. Although his brief states we “know now” about this
possibility, he identifies no source of that knowledge or how or when he became
aware of it. No expert testified regarding this possibility or whether this actually
occurs. Defense counsel discussed the theory with Ms. Cazes at trial:
Q. . . . . Somebody loading bullets will probably finger the bullets in order to load them into a cylinder or a magazine, right? They might touch it.

A. Yes, sir.

Q. And so by touching them, it leaves tiny quantities of salty sweat with each time they touch it, right?

A. Yes.

Q. All right. And then when the bullet is fired away from its casing, there’s tremendous heat and instantly transfers that salty sweat to the metal. It vaporizes the moisture, and it sets the salts for those prints. Does that make sense?

A. Yes, sir.
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Q. Okay. And the salts become molten and a chemical reaction with metal etches of the fingerprints are permanently into the casing?

A. Yes, sir.

Q. Makes sense.

This colloquy is nothing more than counsel’s testimony, not questioning,
about a theory not established by any evidence other than Ms. Cazes’s one word
responses. If the defendant wanted to establish this possibility, which seems to
indicate that it might be possible, and obtain the concomitant tests, he could have
asked the trial court to fund the hiring of this type of expert. He did not, and he
may not raise the issue on appeal. Uniform Rules—Courts of Appeal, Rule 1-3.
The defendant’s appellate brief, however, correctly argues the Fourteenth
Amendment guarantees him a fair opportunity to present a defense. To obtain
funding for an expert witness, the defendant must show “a need for the funding by
establishing with a reasonable degree of specificity what type of expert is needed
and the purpose for which the expert is required.” State v. Lee, 05-2098, p. 41 (La.
1/16/08), 976 So.2d 109, 137, cert. denied, 555 U.S. 824, 129 S.Ct. 143 (2008).
He must also show “it is more likely than not the expert assistance will be required
to answer a serious issue or question raised by the State’s or defense’s theory of the
case, and that denial would result in an unfair trial.” Id. If a defendant meets that
burden, “the trial court is to order the state to provide those funds.” Id. The trial
court’s denial is subject to review under an abuse of discretion standard. Id.
The defendant’s motion sought funding to hire an expert to refute Ms.
Cazes’s testimony “that in her scientific opinion the bullets and/or cartridge
casings were cycled through the action and/or fired from the same unknown
firearm[,]” based on the report by the President’s Council of Advisors on Science
and Technology (PCAST) dated September 2016. The report was entered into
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evidence at trial as Exhibit D-3. Pertinent portions of the report were filed into the
record as part of “Defendant’s Motion for Declaration of Indigency, and for Funds
for a Forensic Firearms Expert” on October 18, 2016. The trial court denied that
motion.
The defendant’s motion argued the report showed Ms. Cazes’s methodology
to be invalid in spite of having had the expert’s report for seven months. The
defendant filed the motion just a few weeks prior to the scheduled trial on
November 15, 2016. At the hearing of the motion on October 27, 2016, the
defendant’s counsel repeatedly told the trial court he was not seeking a
continuance of the trial. However, at the hearing three weeks before the scheduled
trial, defense counsel refused to answer the trial court’s question as to whether he
had an expert in mind. The trial court tried several ways to obtain an answer to
that question:
THE COURT: My question to you, have you consulted a firearm’s [sic] expert since March? Have you consulted one at this point in time? Yes or no? A simple question.

MR. BOUSTANY: Judge –

THE COURT: A simple question.

MR. BOUSTANY: What I do representing the defendant, I think – THE COURT: You’re requesting a firearm’s [sic] expert from this Court so you have to tell me whether you have one or not, okay? Because you want me to pay you for it.

MR. BOUSTANY: I can’t have one if [Defendant] can’t afford it. I can’t expect a firearm expert to consult with me when I don’t pay them. That’s why we are here. I have to pay the firearm’s [sic] expert.

THE COURT: So you’re telling me you do not have a firearm’s [sic] expert and you have not contacted on[e] or sought one out since March?

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MR. BOUSTANY: No, I’m not telling you that. No, I’m not telling you that.

Counsel told the trial court his unidentified expert:
would testify that the casings that the [S]tate’s expert said she looked at and they looked like they had similar markings and as a result she gave an opinion that they would have been fired from the same gun even though the gun was not recovered, and that she has a zero error rate, that testimony is what we need an expert for. It is that testimony itself that we will need an expert.

The defendant received Ms. Cazes’s expert report in March of 2016. As
previously noted, he did not seek funding for his own expert until approximately
seven months later. At the hearing of the motion, defense counsel told the trial
court:
And so the [S]tate’s position appears to be that the casings that were found came from only one gun, and that gun had to be the defendant’s gun, and that means that the defendant shot the alleged – the victim.

To the contrary, the state’s expert testified at the hearing she believed, based
on her examination of the casings recovered from the scene, using pattern
matching methodology, that at least two and possibly three guns were present.
The defendant seeks to challenge Ms. Cazes’s qualifications and
methodology based solely on this new report. Daubert and Kumho Tire set the
standard for determining the reliability and admissibility of expert testimony, and
that standard may not be added to, subtracted from, or altered by an advisory
report.
Further, the question the defendant wanted an expert to answer was whether
the casings Ms. Cazes examined were fired from the same gun. Specifically, he
said he wanted an expert to say there was more than one gun fired at the scene.
Ms. Cazes answered that question favorably to the defendant. She testified at the
Daubert hearing and at trial about the possibility of three guns being present at the
scene. The jury heard her testify she could not determine whether the bullet
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fragment recovered that had the victim’s DNA was fired from the same gun as the
casings because she did not have a gun to examine. Thus, the defendant did not
show how a firearms expert would have aided him in the defense of his case, and
the trial court did not err in denying the motion.
ASSIGNMENT OF ERROR NUMBER TWO
The defendant contends the trial court erred by allowing the state to tell the
jury in its closing argument that it should accept the testimony and opinions of the
state’s firearms expert when he never called a firearms expert to contradict that
testimony, and his motion to fund such an expert was denied.
During the state’s closing rebuttal argument, counsel said:
Mr. Boustany, the defendant, [sic] got up here and – and he gave his opinion about how this stuff got there, and how the shots were fired and everything. Did you hear one defense expert get up there and say what he said? There was no defense testimony that supported Mr. Boustany’s statements about how these shots were fired (indicating) and how that stuff got there. Not one expert witness called by the defense. There was no evidence of that.

Defense counsel requested a sidebar conference where he pointed out the
defendant had no obligation to present any evidence, and the burden was on the
state. He asked “that [the state] not make that argument,” and he asked for a jury
instruction to disregard counsel’s remarks.
The trial court responded, “Okay. This – this is the way I look at it: He can
make the argument that’s your presentation. It’s just your opinion.” Defense
counsel agreed. The trial court then told counsel, “But you can’t say the defendant
did not put on any evidence.” Again, defense counsel agreed. When defense
counsel again requested an instruction, the trial court told the jury, “Ladies and
gentlemen of the jury, the defendant – again, the defendant does not have to put on
any evidence, okay. Also, the statements of the attorneys is [sic] not evidence.”
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Defense counsel lodged no objection and made no further mention regarding the
issue.
This assignment of error lacks merit. Defense counsel stopped the state’s
closing argument, requested the sidebar, and agreed with what the trial court told
the state’s counsel. He requested a special instruction to the jury, and he got it.
The defendant has identified no erroneous conduct by the trial court regarding this
issue.
ASSIGNMENT OF ERROR NUMBER FIVE

The defendant contends the trial court erred by allowing the state unlimited
challenges for cause against all prospective jurors who expressed reservations
about a mandatory life sentence for a seventeen-year-old child. In other words, he
argues too many potential jurors were excused because they may have been unable
to convict a minor who would be sentenced to mandatory life in prison.
In Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012), the United
States Supreme Court held mandatory life imprisonment without the possibility of
parole for defendants under the age of eighteen at the time of the offense violated
the federal constitutional prohibition on cruel and unusual punishment. The
defendant here was seventeen years old at the time of this offense.
During voir dire, the state told prospective jurors the sentence for a
defendant convicted of second degree murder is mandatory life in prison. When
one potential juror asked whether such a defendant would be eligible for parole,
both the state and the trial court told the potential juror the law required life
without benefit of probation, parole, or suspension of sentence.
Defense counsel did not contemporaneously object to this misstatement of
the law during that particular discussion. When the state requested specific
potential jurors be excused for cause, only then did defense counsel state, outside
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the presence of the venire, “actually the U.S. Supreme Court has said you can’t
give a juvenile life[.]” This statement by defense counsel is also not a correct
statement of law. Even then, he did not object to what was told to the venire.
Rather, he objected to the state’s causal challenge, stating, “I don’t think that [the
potential juror] has said that if the Court instructed him that he would have to apply
the law that he could not apply the law.” His objection does not address the
misstatement of the law.
Later in voir dire, the state again asked the panel whether the fact the
defendant would receive life imprisonment with a guilty verdict would prevent the
jurors from returning such a verdict. Again, defense counsel did not object. He
did not assign the erroneous statement of the law as error in his appellate brief.
Indeed, had he done so, this court would be prohibited from considering such an
assignment pursuant to La.Code Crim.P. art. 841 because counsel made no
contemporaneous objection.
The defendant’s argument is unreasonably circular. Presumably, he would
have wanted to seat people on the jury who could not convict him of second degree
murder because they did not want him sentenced to mandatory life. The reason
those potential jurors thought the defendant would receive a life sentence resulted
from the trial court’s and the state’s erroneous portrayal of the law. The defendant
did not object to that erroneous portrayal nor did he ask any questions regarding
this issue during his questioning of potential jurors. Had he done so and had the
trial court correctly instructed the jury on the law, those potential jurors who were
released for cause for that reason may have been able to fairly convict the
defendant as charged, knowing of the possibility of parole. Defense counsel,
however, never actually made an objection on the record and never asked for a
corrected instruction.
17
The defendant’s reply brief erroneously states the defendant asked the trial
court to correctly instruct the jury on the penalty for second degree murder before
the trial, and the trial court gave the wrong instruction. The record reflects no such
request. The trial court again advised the jury immediately before opening
statements and during jury instructions before they retired, that second degree
murder carried a mandatory life sentence with no possibility for parole. The
defendant entered no objection. In fact, when asked, he specifically said he had no
objection to the jury instructions. As shown above, he merely argued against the
state’s challenges for cause.
The reply brief further argues “all of the prospective jurors heard the wrong
law, and all had to commit to following that unconstitutional law. None should
have been seated in the first place. All the defendant could do was to try to remove
the worst of the jurors . . . .” The defendant did not make this argument in his
original appellate brief. He may not raise new arguments in his reply. Uniform
Rules—Courts of Appeal, Rule 2-12.6.
Further, the defendant used only eleven of his twelve peremptory challenges.
This assignment of error does not complain that the defendant had to use his
peremptory challenges in order to exclude “the worst of the jurors”; it complains
that the state was allowed to remove too many jurors because of the misstatement
of the law to which he entered no objection.
For these reasons, this assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER SIX

The defendant contends the trial court erred in denying his challenge
pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), where the
state did not give adequate or legal reasons for removing African-American jurors.
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He cites no statutory authority or jurisprudence, and he does not identify the jurors
at issue.
The defendant’s entire argument for this assignment of error states:
The defense objected that the State successfully used its challenges for cause against at least two other African-American jurors who had reservations against a life sentence without parole for a child. The State then wanted to use a peremptory challenge against another African-American juror who “would follow what the other jurors did” even though he later clearly and unequivocally indicated that he would not do that. Pages 1066-1067[.] In fact, when the State tried to use a challenge for cause against this juror for that reason, the judge denied it because the judge agreed that this juror had indicated that he could make his own independent decision. Page 1065; 10441046[.] But the judge allowed the State to use a peremptory challenge to remove this African-American juror for the same reasons.

The stated reason was legally insufficient to remove this juror.

Defense counsel did not identify any of the African-American jurors who were
subject to the state’s challenges. He further made no Batson analysis applying the
facts of this case.
Based on the wording of the defendant’s brief, we believe counsel is
discussing only the juror whose voir dire is contained in the cited pages of the
record. We have determined that juror is Stanley Leopold.
The trial court denied the state’s challenge for cause concerning Mr.
Leopold. The state then used a peremptory challenge, and defense counsel raised a
Batson challenge. After a discussion, the state asked the trial court to overrule the
Batson challenge, and the trial court stated, “All right. At this time, the Court is
going to overrule the Batson challenge, okay.” Discussion then immediately
moved to another juror. Defense counsel did not object to the trial court’s Batson
ruling. His brief does not indicate any place in the record where Mr. Leopold was
discussed again.
19
“Failure to object to the trial court's ruling on a Batson challenge waives the
issue on appeal.” State v. Richard, 16-525, p. 7 (La.App. 3 Cir. 4/5/17), 216 So.3d
1128, 1134 (citing State v. Odenbaugh, 10-268 (La. 12/6/11), 82 So.3d 215, cert.
denied, 568 U.S. 829, 133 S.Ct. 410 (2012)); La.Code Crim.P. art. 841.
Accordingly, we find defense counsel waived his right to raise this issue on appeal.
ASSIGNMENT OF ERROR NUMBER SEVEN

The defendant argues the trial court erred when it allowed the state to
introduce, as evidence of the defendant’s “bad character,” a copy of a Facebook
photograph of the defendant, who was roughly thirteen years old in the
photograph. They argue that the Facebook photo falsely portrayed him as a masked
armed robber holding a dangerous pistol to the back of a child’s head, as though
ready to shoot the child, that the court itself described as “inflammatory.”5
Jennings Police Chief Todd D’Albor testified he spoke with a witness, Kelly
Neal, at the scene of the shooting. Ms. Neal showed Chief D’Albor “her cellphone
which provided a social media site that had identified the defendant[,]” who was a
suspect. She pulled up the defendant’s Facebook page and showed him the
defendant’s photograph. Chief D’Albor testified that Ms. Neal “scrolled through a
few things” on the defendant’s Facebook page, but he did not recall anything that
“stuck out” to him, other than the photograph offered into evidence as Exhibit S-2.
He did not recall anything else about that photograph
The state’s counsel then asked Chief D’Albor, “Would you recognize a
photograph of that Facebook page if you were shown it?” When Chief D’Albor
said he would, the state’s counsel offered Exhibit S-2 into evidence as “one of the
photographs” Chief D’Albor saw on the defendant’s Facebook page. 5Interestingly, the state’s counsel objected when Defendant’s attorney questioned a witness about photographs taken from another Facebook page. He argued they were hearsay and had “no relevancy to these proceedings” other than “to try to depict [the victim] in a bad light in front of the jury.”
20
Defense counsel objected when the state offered Exhibit S-2 into evidence.
He argued the prejudicial effect of the photograph outweighed its probative value,
the authenticity of the photograph was not established, it was irrelevant, and the
purpose of introducing the photograph was “simply to prejudice the jury.”
The state argued the photograph “shows that he has a gun – that he has a
handgun . . . and that he doesn’t always use that gun for protection. That he does
other things with that gun besides keeping it for protection . . . .” Defense counsel
pointed out Ms. Neal had already identified the defendant at that point. The trial
court agreed the photograph was inflammatory. However, he overruled the
defendant’s objection without further comment and allowed the photograph into
evidence.
Exhibit S-2 depicts a young African-American man wearing printed pajama
style pants and a bandana over the lower part of his face. He appears to be holding
a handgun to the head of another boy, whose back was to the defendant and whose
face was pressed against a wall. The pair appears to be standing in a hallway.
Chief D’Albor later testified he did not know Exhibit S-2 was a picture of
the defendant at the time Ms. Neal showed it to him. Equivocal testimony, with
questions from the defendant’s counsel, did nothing to clear the confusion about
the purpose for which Chief D’Albor considered the photograph:
Q. Okay. So did she tell you that she wasn’t using her own phone that she was using someone else’s phone?

A. No, sir, she didn’t.

Q. So what you were looking for was, hey, give me a photograph of the guy you’re talking about so I can use that to try to find him; right?

A. Actually, I didn’t illicit [sic] it. She showed it.

Q. Okay. Yeah, but you want to do is see the photograph that best helps you depict what the guy looks like that you’re looking for.
21

A. We wanted to identify the person; correct.

. . . .

Q. The one that the [S]tate asked you to identify S-2, did you take that and say, yeah, that really looks – that’s a great picture and we are going to take that and we are going to go and try to find this guy.

A. No. This as I've said, this picture was printed by one of our investigators.

Q. One of your investigators printed that?

A. Printed the picture, yes. Obviously, when she’s scrolling through on the phone you can’t – couldn’t have printed it right there. But as I recalled it, when she scrolled I noticed because it’s a pretty obvious picture, I didn’t know that at the time that that was him. So to answer your question I didn’t know at the time that that was him, but if you’ve had an opportunity to hear Mrs. Neal she goes fast.

Q. Oh, she was going really fast. Her speech was --

A. It’s fast so you try to decipher the information as best you can because we are trying to identify a suspect on this case of who’s responsible for the young man that was killed that night.

Q. But Chief, the photograph, you didn’t take this photograph and say, man, that looks like, geez, a great photograph, let’s go and try to find this guy?

A. No, sir.

Q. No? So when we are talking about that in Court it’s not to try to identify Kyvonte Eaglin; is it?

A. That’s correct.

Q. Okay. Your officer when he printed it from the Facebook, you said he printed it from the Facebook account; right?

A. The picture was given to me or shown to me by Deputy Chief Semmes. When they -- again, I’m getting briefed when something develops. I’m getting briefed as to what’s going on and Deputy Chief Semmes is that liaison for me into the criminal case. So that was shown to me -- this picture was shown to me by Deputy Chief Semmes.

Q. So just to get right to the answer is that Semmes printed it from Facebook and gave it to you? Is that what you’re saying?
22

A. I don’t know if he personally printed it. I want to make sure I give you accurate information.

Q. Okay. Well, when you -- I assume that as a police officer you print stuff all the time from Facebook. You are familiar with it because that’s part of your investigative tool is you can get all kinds of stuff off of Facebook; right?

A. Social media.

Q. Yeah. I mean, people can even open all kinds of accounts but when you print it, it has a date on it.

A. Yes.

Q. Is there a date on that one?

A. Are you asking if you can right click on a picture --

Q. It’s a very simple question. Is there a date on that one?

A. There’s not a date on it.

Q. So who took the date off?

A. I didn’t know there ever was a date on it.

Q. If this is a print from Facebook there would be a date on it.

A. Not -- not true.

Q. No?

A. You can right click on a picture and download the picture straight to a photo.

Q. But if you're printing it direct from Facebook, there’s a date on it; right?

A. If you do control print. But you can right click on a picture and print the picture directly.

Q. So if we are trying to get to the truth of what’s going on in this case, wouldn’t it make more sense to print a photograph with a date on it. So that way we can see whether or not this is something recent or this is a couple of kids four years ago with a plastic BB gun. Wouldn’t that be kind of important?

A. I don’t know how to answer that one.

23
Q. We’re not really – we’re not taking this picture and saying, hey, this is Kyvonte Eaglin. He’s a really dangerous guy. He’s holding a gun on a little kid about to shoot him in the back of the head. That's not the impression you want this jury to have; is it?

A. He’s asking my opinion about this picture?

Q. I’m asking if --

A. I want to make sure I answer it -- I want to make sure I can answer it.

Q. If there’s an objection then somebody will object. But if not, then you can answer the question.

A. The way that I viewed this picture – . . . .

A. How someone views this would be their opinion of it. I don’t have a high opinion of this no matter if this was four years ago, or yesterday. That is not a good act to take a picture of of [sic] what you’re enacting. That’s a very poor --

Q. So officer, are we trying to give the Jury the impression that Kyvonte Eaglin is a bad guy because he’s -- whenever this was, would be holding a toy pistol? Is that what we are trying to depict? Or is that what we’re trying to depict? Because we saw his statement and your own officer said, yeah, we know you. You’re a good guy. You’ve never been in trouble before. So we’re not saying that’s not true, are you? You know that.

[Trial judge instructs the jury to disregard the last remark.]

Q. So Officer D’Albor, we saw the -- you saw the statement that was taken from Kyvonte; right?

A. I’m sorry. The what?

Q. You saw the statement that was taken from Kyvonte?

A. On video?

Q. Yes, you’d saw [sic] that.

A. Yes, sir.

Q. And you saw on the video the fact that he has never been in trouble before. You saw that; right?

A. As he said, yes.

24
Q. As he said?

A. Yes, sir.

Q. But, wait? So are we going to give the Jury the – you’re not saying that he has been; are you?

A. No, I’m not.

Q. Okay. Well, then let’s make that clear because that's what we’re trying to do. So this photograph is not intended to say hey, we got something on this guy. Look at this. This is a crime. He’s got a gun at the back of someone’s head. That’s not what you’re trying to depict in this; is it?

A. If you’re asking me of my opinion of what this picture depicts it doesn’t make me thin[k] anything good.

Q. I’m asking you is that what you're trying to say with this photograph.

A. It was presented to me as have I seen this before: I’m not depicting anything.

Q. Okay.

A. If you’re ask [sic] my opinion about the picture itself --

Q. How old are these kids in that photograph, do you know?

A. No, sir.

Q. Have you asked?

A. No, sir.

Q. Did you ask Kyvonte’s mother?

A. No, sir.

Q. Did you ask her if she could go -- if she -- if the gun in that little photograph is a toy gun, a plastic BB pellet gun? Did you ask her that?

A. No, sir.

(Emphasis added.)

“ʻRelevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
25
probable or less probable than it would be without the evidence.” La.Code Evid.
art. 401. “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury[.]” La.Code Evid. art. 403. Evidence of a person’s
character or of a character trait is generally not admissible. La.Code Evid. art.
404(A). The trial court’s ruling on the admissibility of photographs “will not be
disturbed on appeal unless the prejudicial effect of the photographs, in fact, clearly
outweighs the probative value.” State v. Lindsey, 404 So.2d 466, 475 (La.1981).
In State v. Coleman, 14-402 (La. 2/26/16), 188 So.3d 174, cert. denied,
__U.S.__, 137 S.Ct. 153 (2016), the defendant sought to admit photographs seized
from his girlfriend’s bedroom in her mother’s trailer. The photos allegedly
depicted the girlfriend’s male African-American friends, who “were making lewd
gestures or gang signs.” Id. at 200.
A surveillance video admitted into evidence showed the girlfriend and a
black male, whom the girlfriend’s father identified as the defendant, unsuccessfully
attempted to use a bank card at an ATM. Id. The defendant contended the man in
the surveillance video could have been one of the girlfriend’s friends shown in the
photographs, which he sought to introduce into evidence. Id.
“[T]he trial court determined the risk of confusion, misleading the jury, and
wasting time, outweighed any probative value the photos might have possessed.”
Id. at 200. The jury could use other evidence to determine whether the defendant
was the man at the ATM. Id. Our supreme court noted, “Photographs which
illustrate any fact, shed light upon any fact or issue in the case, or are relevant to
describe the person, place or thing depicted are generally admissible.” Id. at 200.
The court held the trial court did not err by excluding the “wholly irrelevant”
photographs from evidence. Id. at 201.
26
Likewise, the defendant in State v. Ockman, an unpublished opinion bearing
docket number 16-1615 (La.App. 1 Cir. 9/15/17), was charged with indecent
behavior with juveniles. He attempted to admit three photographs into evidence at
his trial. The photographs showed children sleeping or lying on a palette, a group
of children on a golf cart, and a group of children, all smiling, seated around a
table. The trial court found the photographs were not relevant to the crime for
which the defendant was on trial. On appeal, the first circuit, citing Coleman, 188
So.3d at 197, believed:
These photographs had very little, if any, evidentiary value. They established nothing more than that teenagers and children visited Defendant's home, assuming these were pictures of Defendant's home and property. This issue of many people “hanging out” at Defendant's house was conceded by every witness who addressed the issue and was contradicted by no one. The fundamental right to present a defense does not require the trial court to admit irrelevant evidence or evidence with such little probative value that it is substantially outweighed by other legitimate considerations.

Ockman, 16-1615 at p. 6.
Here, later testimony showed the photograph had nothing to do with the
crime for which the defendant was tried. Latavius Stewart, the defendant’s
sixteen-year-old cousin, testified Exhibit S-2 was a photograph taken
approximately four years earlier. He said he was the boy standing against the wall
while the defendant held a BB gun which shot plastic BBs against his head. He
said another cousin took the picture. Mr. Stewart said they were “[j]ust having fun
with it. We were being silly. Just taking pictures.”
The photograph was not reasonably useful in identifying the defendant at the
scene of the crime. Exhibit S-2 does not indicate any particular features that would
have allowed Chief D’Albor to identify the defendant. The photo shows a male
younger than the defendant whose profile is mostly covered with a bandana.
Nevertheless, when defense counsel argued Chief D’Albor “identified [Defendant]
27
by this photograph[,]” no one corrected the statement. The trial court did not allow
defense counsel to question or cross-examine Chief D’Albor “in terms of the
authentication because of his identification[.]”
This photograph, Exhibit S-2, provided no useful purpose at trial. Chief
D’Albor’s testimony did not show he relied on it at the scene to identify the
defendant. Even if he had, it would still add nothing to help the jury reach a
verdict. The photograph depicted nothing related to the crime for which the
defendant was on trial. It did, however, present a disturbing image to the jury that
portrayed the defendant as one who held a gun to a young boy’s head. Only later
in the trial did the jury hear testimony explaining the photograph, which in itself
did not cast the defendant in a particularly good light.
Nevertheless, “[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.
Koon, 96-1208, p. 9 (La. 5/20/97), 704 So.2d 756, 763, cert. denied, 522 U.S.
1001, 118 S.Ct. 570 (1997). The harmless error analysis applies in instances where
a photograph was erroneously admitted into evidence at trial. State v. Teno, 12
357 (La.App. 3 Cir. 11/7/12), 101 So.3d 1068, writ denied, 12-2652 (La. 5/17/13),
117 So.3d 510.
In Teno, 101 So.3d 1068, the defendant was charged with possession of a
firearm by a felon, illegal use of weapons, and aggravated assault with a firearm.
At trial, the State introduced a photograph of the defendant at a club with a gun in
his waistband. A security guard testified he and others tried to escort him from the
club, and “they had to wrestle him down.” Id. at 1076. Another officer removed a
loaded gun from the defendant’s pocket, and the witness identified the defendant as
the man who had the gun at the club. This court found the admission of the
photograph into evidence was harmless error because other evidence, absent the
28
photograph of the defendant at the club, was sufficient to convict the defendant as
charged.
Here, witness Ms. Neal testified that “a bunch of fussing” began between
two groups at the party. She “grabbed [Defendant] and pushed it apart.” The
defendant’s mouth was bleeding from the fight. Ms. Neal took the defendant to his
vehicle. She described the defendant’s demeanor as “[f]ear,” and said, “He was
pissed.” However, she testified as she spoke to him, “He thought about it. He said
okay. I said trouble is easy to get into. Think about it.” She spoke to the
defendant for fifteen minutes, and “he then backed down[.]” She saw a nine
millimeter gun on the passenger seat of the defendant’s vehicle. Ms. Neal believed
the defendant stayed at the party after that because his friends were there. Ms.
Neal testified that the defendant went back inside, and another fight broke out
between the defendant and the victim. She stated that it quickly turned into “a big
hooray,” and a crowd rushed outside. By the time Ms. Neal made it outside, she
testified that the defendant had raised a gun and shot about five times. Ms. Neal
stated the defendant then got in his vehicle and left the scene.
Ms. Neal said that Jermaine “Dutt” Washington was also at the scene. Ms.
Neal said she saw him running toward his vehicle, parked on the same side of the
building as the defendant’s vehicle, after the shots were fired. Mr. Washington
also had a gun, but she did not see what kind. Ms. Neal testified she saw him
“right after maybe the fourth shot . . . .” However, she later testified she saw Mr.
Washington run after all the shots were fired.
The initial shots Ms. Neal heard sounded like they came from a nine
millimeter firearm, and they were from the direction of the passenger side of the
29
defendant’s vehicle.6 Ms. Neal testified that she heard at least three other shots
that sounded like they were from “[e]very bit of a .40 caliber.” She said she could
not determine the direction from which the .40 caliber shots came.
Ms. Neal said she could tell the first shot was coming from behind the
building “when [Mr. Washington] ran out” from behind it. She said, “The second
shot was when he was like maybe in the middle. The third shot is when he hit the
street, and that was it. He ran to the truck after that, got in the truck and left.” Ms.
Neal’s testimony was confusing when she stated, “No, [Mr. Washington] didn’t
fire a shot. He was running firing.” She then testified she heard all the shots
before Mr. Washington came out on the street.
Jashanna Drake testified someone “snuck” the defendant at the party.7 She
defined “snuck” as “hit him without looking – without him looking.” She said a
fight broke out, and a crowd went outside. The defendant “ran to his car and
pulled his gun out.” However, he “put the gun back inside the car[,]” and the
crowd went back inside, where the fight broke out again among the same people.
Jashanna testified she saw the defendant go to his vehicle again and get the gun.
She said, “He pulled the gun out and started shooting.” He was standing “by his
car” with no one standing around him. She never saw the victim in the street. The
defendant shot the gun “[l]ike four times.” She heard no other gunshots.
Jashanna’s testimony was very confusing and totally lacking in credibility.
In her first statement to police, Jashanna said Mr. Washington shot the victim. In
6Ms. Neal was a lay witness who testified she had shot nine-millimeter and .40 caliber firearms and was familiar with the sounds they make. She stated, “my stepbrother was in the army, and I used to always go to the army base, and we would – he would shoot and show me different guns. That’s the reason why I know so much about them.” She was never qualified as an expert in any field, and no one made any objection to her testimony about her identification of the firearms based on the sounds they made.

7We refer to Jashanna Drake and Monteca Drake by their first names in an attempt to avoid confusion about the witnesses.
30
her second statement, she said the defendant shot him. At trial, she said she did not
see who shot the victim, but she did see the defendant shoot a gun. Later in her
testimony, however, she said her first statement was a lie, the second statement
was not a lie, and her testimony that she did not see the defendant shoot the victim
was a lie. She then testified she lied in her second statement when she said the
defendant accidentally pulled the trigger. She said she did not see the defendant
shoot the victim. Still later, Jashanna testified the part of her second statement,
where she said the defendant shot the gun to try to scare everyone, was true.8
Jashanna testified Mr. Washington was standing in front of the building, and
he ran to his truck when the shots were fired. She said she never saw Mr.
Washington with a gun that night. Jashanna explained she “was historical [sic]”
when she gave her statements, and she said what she had heard on the street. She
said Mr. Washington came to her in April of 2016, showed her papers about what
she had said, and asked her to change her story. Jashanna testified that she then
changed her statement.
Monteca Drake, Jashanna’s cousin, also gave a statement to police about the
incident. She said at the party, someone tried to stop the victim from going after
the defendant. The victim was told not to go up to the defendant because the
defendant had a gun, but the victim did not listen. Monteca saw a fight “coming
out of the building.” Everyone went back inside, but a second fight broke out,
“and [Defendant] and [the victim] passed some words.” She testified the defendant
was holding a gun in front of his body. He pointed it “at the crowd, and he shot the
first shot.” Monteca did not know “where the shot went, but he did shoot the first
8Chris Myers, an investigator with the District Attorney’s office, testified outside the presence of the jury that he went to Jashanna’s home to serve her with a subpoena in May of 2016. He believed Jashanna had been threatened, and she did not want to come to court.
31
shot.” Everyone started running, and Monteca heard someone yell the victim had
been shot.
After police were called, Mr. Washington “got in the truck and hit the lights
and stuck the gun out there and shot the last shot. But in between the first and the
last shot, there were other shots fired.” Monteca did not know who fired the other
shots, and she did not know how many other shots were fired. She said she never
saw Mr. Washington in the street.
Monteca saw the victim in the road before the defendant fired the shot, but
she did not see him at the time of the shot. She did not see the victim near the
defendant when the defendant shot. Chris Myers, the investigator for the District
Attorney’s office, testified he met with Monteca and Jashanna “pertaining to [their]
safety.” According to Mr. Myers, they “had got a couple of threats from some
people or whatever dealing with the case[.]”
Shadavia Capdeville, the victim’s cousin who was fourteen years old at the
time of this incident, also attended the party. She saw “[a] couple of people”
drinking alcohol, and said she smelled marijuana at the party. Ms. Capdeville
described how a fight broke out inside the building, but she could not see what
happened. Next, “everybody just ran outside[,]” including the people involved in
the fight. Someone said everyone needed to calm down, and everyone went back
inside. The group then went outside a second time. “[W]hen [the victim] went to
punch [Defendant],” Ms. Capdeville said “it’s like [Defendant] just shot him like
that[,]” and she “just took off running.” Ms. Capdeville said she heard two shots.
She did not see who fired the first shot, but she saw the defendant fire the second
one. The victim was running toward the defendant. She said he swung at the
defendant when he was about four feet away, and the defendant shot him “when he
was swinging.” She testified she did not see the victim with a weapon.
32
Ms. Capdeville gave a statement to police in December of 2015. She
reviewed that statement the day before she testified at trial. She recalled saying in
the statement that the defendant got a gun from his car and shot it in the air to try to
stop the fight. She also said another girl, Quiamie Randolph, tried to stop the
victim from running up to the defendant. She said the defendant fired the first shot
into the air as a warning shot, but the victim kept coming, with his fist up, ready to
punch the defendant. As the victim came closer, the defendant “just shot him.”
Jermaine Washington testified a fight broke out inside the building, but he
did not see it. He then saw “[e]verybody rushing outside.” The fight outside
ended, “and then everybody went back in.” Another fight broke out inside, and it
was “[n]ot that long until everybody went back outside.” Mr. Washington
testified, “everywhere you looked somebody was fighting.” Mr. Washington first
watched the fighting from the sidewalk, but then he moved to his truck. As he was
looking for his cousin, he heard a lot of gunshots. He was standing at the back of
his truck, and the shots came from the direction of the “front toward the truck.” He
did not see anybody shooting a gun. Mr. Washington testified he heard the shot,
opened the door of his truck, and fired one shot from a gun he had inside it. He
testified he fired one shot in the air to make the people in front of the truck move.
He said he shot only once, and he did not remember what kind of gun he had. He
did not pick up his shell casing. Mr. Washington testified that later that night, he
“threw [the gun]” when he went to Welsh. When asked why, he said, “’Cause I
shot it.” Mr. Washington took police to the spot where he said he threw it, but they
never found the gun.
Mr. Washington pled guilty to a felony charge, “[i]llegal use of – discharge
of a firearm,” as a result of the incident. He was sentenced to one year at hard
labor, but “they put it to home incarceration and two-year probation.” He agreed
33
to testify at the defendant’s trial as part of his plea agreement. Mr. Washington
gave police a statement after the shooting. At trial, he first testified he did not
recall telling them he had a nine-millimeter gun that night. However, he then said,
“Yeah, I – I probably – yeah, I probably did tell them. Yeah, I probably did.” At
trial, he said he did not recall the caliber of the gun. He testified, “they kept asking
me, so I just said a kind. They asked me – well, one of the officers said it was a
9mm, and I just said, yeah, just to say yeah.”
Next, Mr. Washington explained he only had the gun “about a week, two
weeks[,]” and he did not know what caliber it was. He had bought bullets for it,
but he did not know what size. Mr. Washington testified he found the gun in
Welsh; “[i]t was down the road.” He said he was walking on the main road in
Welsh around dark and came upon the gun in the grass. It had bullets in the clip.
He purchased ammunition for the gun, but he did not recall what size he bought.
Mr. Washington said he had never shot a gun before August 8, 2015. He did not
see the defendant with a gun that night.
Taryke Jacobs testified a fight broke out at the party, and someone named
“Dakota” started swinging at the group of people from Welsh. Ms. Neal grabbed
the defendant and calmed him. When they all went back inside, the victim said
something to the defendant, who started swinging and hit the victim, who swung
back. They all went outside again. The fight outside ended only with the shooting.
Mr. Jacobs said he did not see who fired the shot. He knew the defendant
had a gun, but Mr. Jacobs said it never left his car. When the shooting began, Mr.
Jacobs heard one shot. He “took off running. Then [he] heard several more.” Mr.
Jacobs indicated the direction from which the first shot came, but it is not
described in the record other than “from over here . . . .” The other shots came
from “[t]he same spot.” When Mr. Jacobs and two others were standing in the
34
street, he said the defendant was “kind of in front” of them. Then they heard the
first shot. Mr. Jacobs said he testified, “I take off running, and all I see is him
coming flying in his car. So he took off running to his car and drove off.” Mr.
Jacobs said, “during the gunshots, [Defendant] was running to his car.” When the
defendant was standing next to Mr. Jacobs, he did not have a gun. Mr. Jacobs had
seen the defendant with a gun before, at his house. He believed it was the same
gun he saw that night.
He testified the defendant was upset after the first fight, with tears and red
eyes. Mr. Jacobs said he looked like “[h]e was angry.” Later that night, the
defendant and four others picked up Mr. Jacobs in the defendant’s car as Mr.
Jacobs ran on Highway 90 toward Crowley. Mr. Jacobs asked the defendant to
drop him off, and he hid in the bushes until his sister picked him up. A number of
people, including Jashanna and Monteca Drake, called Mr. Jacobs about what
happened. They suggested Mr. Washington had fired shots. Mr. Jacobs gave two
statements to police; in his second statement, he said he saw Dakota Chaisson with
a gun. Mr. Jacobs told police Mr. Chaisson, two boys from Lafayette, and twins
Monteca and Teca Drake were walking in the middle of the street with a gun. He
did not see anyone shoot a gun that night. Mr. Jacobs knew the defendant did not
carry a gun “when he go [sic] to work and stuff.” When asked if the defendant
used the gun more for protection, Mr. Jacobs responded, “If that’s what you want
to call it.”
Quiamie Randolph testified the defendant was like her brother, and the
victim was her cousin. Ms. Randolph’s mother and the defendant’s father have
children together. She went to the party that night with Ms. Capdeville and
Tyranniee Withers. She said a fight broke out when the defendant hit the victim
35
from behind. The fight began inside and moved outside, where Ms. Neal broke it
up. Other fights were taking place outside at the same time.
Ms. Randolph testified she was standing with the victim when the defendant
was “[s]tanding by his car door.” She saw the defendant with a handgun “[b]y his
lower waist[,]” facing toward her and the victim. Ms. Randolph testified, “[the
victim] went up to [Defendant], and as he swung at [Defendant], the gun went off.”
She said the victim ran toward the defendant and swung at him. The gun went off
when the victim hit the defendant. She said the victim had no weapons on him.
Ms. Randolph said she only heard one shot from the defendant’s gun. She
first said she did not know if the defendant’s gun actually touched the victim, but
then she said it did. About two minutes later, “[o]ther guns went off[,]” and she
heard other shots. She could not determine the direction from which they came.
Ms. Randolph gave three statements to police; in one of them, she said the gun
came “very close” to touching the victim. Ms. Randolph said she did not want to
testify “because [she] didn’t want to see [Defendant] go away.”
Chief D’Albor testified he spoke primarily with Ms. Neal at the scene, and
he determined the defendant was a suspect. Ms. Neal showed Chief D’Albor the
defendant’s Facebook site as discussed above. The defendant was picked up in
Welsh about an hour later and taken to the criminal investigation division.
Chief D’Albor and Deputy Chief Danny Semmes conducted a recorded
interview of the defendant on August 7, 2015, and it was played to the jury. The
defendant said he and his friends were enjoying themselves at the party until
Dakota Chaisson and the victim arrived. Mr. Chaisson “snuck” him, and a fight
broke out with “everybody on top” of the defendant. Everyone ran outside, where
everybody was on top of the defendant again. The defendant said the victim was
36
one of the people who jumped on the defendant. The defendant said the fight took
place in the middle of the road in front of the hall.
The defendant said he heard multiple gunshots from more than one gun, but
he did not know the direction from which they came. He said he ran to his car and
left. The defendant originally said he did not own a gun, and he did not have a gun
that night. The defendant told the police that he had never been in trouble before.
Police told the defendant someone was hit by a bullet and was at the hospital
being treated. The defendant again said he was telling them everything that
happened. He did not shoot, and he did not know who shot. He said he did not
have a gun in his hands.
Later in the interview, the defendant admitted he did have a gun, but he said
he did not fire it. He said the gun was in the glove box of his car, which was
parked near the hall. The defendant had gotten the gun from his deceased uncle,
and he did not know what kind of gun it was. He said he had never fired it. The
defendant told police he threw the gun out of the right side of his vehicle into a
gully near a church. It was not loaded. The defendant had spoken to his mother on
the phone, and she said the police were at their home saying he had shot someone.
He threw the gun away because he was nervous about the situation.
The defendant finally admitted he shot his gun in the air one time. Police
told the defendant they had found a bullet and casings from a nine-millimeter
firearm. The defendant repeatedly, until the end of the interview, insisted he shot
only once, and it was into the air. He said he had only one bullet in the gun.
The defendant said Jermaine Washington, “Dutt,” was one of the friends
who came to the defendant’s defense during the fight. Police told the defendant
Mr. Washington also had a gun at the scene, but the defendant said he did not
know anything about it.
37
During a second interview later the same morning, police told the defendant
they would search the gully for the gun. The defendant still insisted he shot only
once in the air. Police told the defendant the victim was dead and finding the gun
would help the defendant if he was telling the truth. The defendant told the police
that he had thrown the gun into the water. They explained multiple casings and
one live round were found near the defendant’s car, along with a projectile they
believed passed through the victim’s body. They told the defendant Dutt had said
the defendant was not shooting in the air.
The defendant said the victim was hitting the defendant when he was shot.
The defendant claimed he raised his gun in the air as the victim hit him. When the
defendant heard other shots, he got in his car and left. He told police he was
defending himself. He took the gun to the party so he could defend himself if
something happened. He did not plan to shoot it until they jumped on him; he
again said he shot in the air.
Chief D’Albor testified that his department, with the assistance of the
Calcasieu Parish Sheriff’s Department dive team, searched the coulee for the
defendant’s gun. The defendant went with them to show where he had thrown it.
Accoding to Chief D’Albor, they never found the gun.
Chief D’Albor further testified that Jennings police had “dealt with [Dakota
Chaisson] on other cases.” He said that Mr. Chaisson was a member of a group
known as DBE, or Dope Boy Entertainment. 9 When asked whether police
investigated and identified members of the DBE, Chief D’Albor responded, “My
investigators would gather intelligence and people that are suspected to be
9An earlier court reporter had transcribed the testimony as “Dope Boy Entertainment.” However, during the trial, a different reporter took over, and she transcribed the testimony as “Dough Boy Entertainment.” Based on the total context of the various testimony, the correct name is “Dope Boy Entertainment.”

38
involved in any criminal activity, whether it’s an initialed name or any other, we
are going to gather intelligence on anybody that’s committing crimes or potentially
committing crimes.”
Officer Richard Geiger testified as a detective with the Jennings Police
Department. He took a number of photographs admitted into evidence and
explained those photographs at trial.10 One of the photographs showed a bullet
casing found near a vehicle in front of a building.11 A live round and a nine
millimeter spent casing were also found in the same area, in front of the building,
along with a blood spot. A slug with blood on it was found across the street from
the casings and the live round. A blood trail began in the area near where the live
round and the spent nine-millimeter casings were found.
Three spent .40 caliber casings were found at the end of an alley adjacent to
the building. A blood trail began near the point where the spent nine-millimeter
casings were found and continued down and across the street to where the victim’s
body was found. Officer Geiger testified a nine-millimeter gun would eject
casings to the right and back most of the time.
Caitlyn Traylor of the Louisiana State Police Crime Lab testified as an
expert in forensic serology. She examined a nine-millimeter bullet admitted into
evidence as Exhibit C-5 and determined it had suspected blood on it. DNA analyst
Stacy Williams of the State Police Crime Lab tested a swab of the suspected blood
from the bullet and reference samples from both the victim and the defendant. She
found the blood from the nine-millimeter bullet matched the DNA profile from the
10A DVD containing photographs of the crime scene was admitted into evidence as Exhibit S-4.

11Based on the overall trial testimony, the American Legion building is shown at the bottom of Exhibit S-7 to the right of the large grassy area. The .40 caliber casings were found in the rear of the alley to the right of the American Legion building, and the vehicle operated by Defendant, very near where the nine-millimeter casings were found, was parked in front of the building to the right of the alley, all as shown in Exhibit S-7.
39
victim’s reference sample. She did not test any of the casings for DNA. As
discussed in earlier assignments of error, Michelle Cazes, the firearms analysis
expert from the crime lab, determined “there was [sic] obviously two firearms” at
the scene, a nine-millimeter and a .40 caliber. She later agreed to the possibility of
three guns being present.
Two nine-millimeter cartridge casings and a jacketed hollow-point cartridge,
found on Market Street, were fired from the same gun. Three .40 caliber cartridge
cases, collected from behind the alley of Market Street, were “fired from the same
unknown Glock or Glock-type firearm.” Ms. Cazes could not say whether the
bullet fragment marked as Exhibit C-5 was fired from the same gun as the casings
because she had no gun from which any of them were fired.
Calcasieu Parish Coroner, Dr. Terry Welke, determined the cause of the
victim’s death was a gunshot wound to the trunk that entered the front of the chest
and exited on the right upper back with a downward trajectory. The wound was
consistent with the end of the barrel being less than two feet from the victim at the
time of discharge of the weapon. “[I]t was not a contact gunshot wound.” The
victim’s blood tests showed the presence of methamphetamine and marijuana. Dr.
Welke found no evidence of the victim being struck in the back of the head.
In summary, Exhibit S-2 was totally irrelevant to this case. It was highly
prejudicial, and the prejudice outweighed any probative value it could have had.
Indeed, the photograph had no probative value, and it should not have been
admitted into evidence.
However, this erroneous introduction of evidence is not reversible error if it
is found to be a harmless error. The defendant lied in his statement to police when
he said he did not have a gun and later when he said he had one but he left it in his
car. When he did admit to shooting the gun, he insisted he shot it only once into
40
the air. The defendant’s credibility was certainly an issue at trial because of his
multiple stories about what he did that night.
However, the credibility of multiple witnesses to the shooting was also an
issue. Jashanna Drake’s testimony was extremely confusing, and even her
testimony about what was a lie and what was the truth was inconsistent. Monteca
Drake testified she saw the defendant fire the first shot, but she did not see the
victim near the defendant when he fired. Jashanna and Monteca called Taryke
Jacobs to suggest the defendant had fired shots. Jashanna and Monteca may have
been threatened with regard to their testimony. Shadavia Capdeville told police the
defendant shot in the air, but she testified at trial the defendant shot the victim.
Jashanna Drake’s testimony is so inconsistent it cannot be relied on for
establishing any fact. Although Mr. Jacobs testified the defendant’s gun never left
the car and he did not see who fired shots, no less than four eyewitnesses testified
that they either saw the defendant shoot the victim or shoot in his direction. There
was consistent testimony regarding the fight that preceded the shooting that was
sufficient to convict the defendant of manslaughter. The trial court’s error in
admitting the prejudicial photograph, Exhibit S-2, is, therefore harmless.
ASSIGNMENT OF ERROR NUMBER EIGHT

The defendant argues the trial court erred by refusing to allow him to present
eyewitness testimony that the defendant appeared to have accidentally fired a shot
at the victim. He contends the omission of this evidence deprived him of his
constitutional right to present a defense.
The state’s counsel advised the trial court he would object if defense counsel
tried to elicit an opinion from Ms. Capdeville about whether the shooting was
accidental or intentional. In fact, defense counsel attempted three times to ask Ms.
Capdeville whether the defendant was protecting himself from the victim when he
41
fired the second shot. The state’s counsel objected all three times, and the trial
court sustained all the objections. The trial court instructed defense counsel not to
comment on the evidence and not to ask Ms. Capdeville for her opinion. Defense
counsel then, in spite of the court’s instructions, asked Ms. Capdeville, “But it
looked like an accident to you, didn’t it?” The state’s counsel’s objected a fourth
time, and the trial court again instructed defense counsel it would not allow Ms.
Capdeville to give her opinion about whether the shooting was accidental or
intentional. A lay witness may testify about her “opinions or inferences which are:
(1) Rationally based on the perception of the witness; and (2) Helpful to a clear
understanding of h[er] testimony or the determination of a fact in issue.” La.Code
Evid. art. 701. Further:
Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

La.Code Evid. art. 704. Testimony of a lay witness that “constitutes a natural
inference from what was observed” is not prohibited “as long as the lay witness
states the observed facts as well.” State v. LeBlanc, 05-885, p. 7 (La.App. 1 Cir.
2/10/06), 928 So.2d 599, 603. On appeal:
A reviewing court must ask two pertinent questions to determine whether the trial court properly allowed lay opinion testimony: (1) was the testimony speculative opinion evidence or simply a recitation of or inferences from fact based upon the witness's observations; and (2) if erroneously admitted, was the testimony so prejudicial to the defense as to constitute reversible error.

Id.
In State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219, cert. denied, 546
U.S. 883, 126 S.Ct. 182 (2005), a witness testified she personally observed a
heated discussion between the victim and the defendant while standing four to six
42
feet away from them. Based on that interaction, she testified a robbery was taking
place. The supreme court found that observation could have been rationally based
on her perception of what she saw. Thus, the trial court did not abuse its discretion
in allowing her testimony. The court noted “the credibility and reliability of such
testimony, once admitted, was still within the province of the reasonable juror.”
Id. at 1234.
The converse of the rule of LeBlanc, 928 So.2d 599, is also true, that
testimony erroneously omitted must also result in such prejudice as to constitute
reversible error. Here, the jury heard Ms. Capdeville describe how the defendant
held the gun and how he shot it in the air and then brought it down as the victim
rushed toward him. She actually left the witness stand to demonstrate the distance
between the victim and the defendant. She left the stand again to show how she
saw the victim running toward the defendant and swinging at him. The trial court
has broad discretion in evidentiary rulings. Graves v. Riverwood Int'l Corp.,
41,810 (La.App. 2 Cir. 1/31/07), 949 So.2d 576, writ denied, 07-630 (La. 5/4/07),
956 So.2d 621. This court should not disturb those rulings “absent a clear abuse of
that discretion.” Id. at 581.
Ms. Capdeville’s testimony fairly portrayed what she saw in a manner that
allowed the jury to form its own opinion about the issue. The jury had the facts
Ms. Capdeville’s testimony portrayed. Defense counsel told the trial court he was
“asking her what she saw.” The trial court ruled Ms. Capdeville could say what
she saw, but she could not give her opinion. The jury heard Ms. Capdeville’s
objective testimony about the facts she observed. Whether those facts established
that the shooting was accidental or intentional was for the jury to decide. The
defendant was not prejudiced by the exclusion of Ms. Capdeville’s opinion.
43
The defendant offered a proffer of Ms. Capdeville’s testimony outside the
presence of the jury. He contends, however, the entirety of the proffer was not
transcribed. According to the defendant, a list of witnesses who would have
testified they saw an accidental shot was omitted from the record. The defendant,
however, made no request in the trial court to supplement the record with what was
supposedly omitted from his proffer. This court may not consider any issue based
on an allegedly incomplete record because that allegation was not addressed in the
trial court. La.Code Crim.P. art. 841.
Additionally, the defendant complains about comments the state made
during its closing argument about his recorded statement being the only evidence
the jury heard of an accidental shooting. The defendant failed to object when the
state’s counsel made that argument. Thus, he did not preserve that argument for
appeal, and this court may not consider it. Uniform Rules—Courts of Appeal,
Rule 1-3.
ASSIGNMENT OF ERROR NUMBER NINE

The defendant argues the trial court erred by refusing to allow him to
impeach the state’s witnesses with prior inconsistent statements about how the
shooting occurred. According to the defendant, “some witnesses” changed their
stories at trial about whether the shooting was an accident. However, the
defendant did not identify those witnesses, indicate where their testimony could be
found in the record, or point out how their testimony was inconsistent with any
prior statements.
An argument not briefed on appeal is deemed abandoned, and this court will
not consider it. Uniform Rules—Courts of Appeal, Rule 2-12.4(B)(4). This court
cannot, based on the defendant’s argument, determine which witnesses he argues
changed their stories at trial or what changes from prior statements they made. The
44
defendant’s vague statement that witnesses changed their stories and the trial court
erred by not allowing him to question them about the discrepancies is an
abandonment of the argument that he should have been allowed to impeach that
testimony.
ASSIGNMENT OF ERROR NUMBER TEN

The defendant contends the trial court erred in denying his motion for new
trial without a hearing. He again refers this court to his filings in the trial court
regarding his motion and the grounds for it. As set out in earlier assignments of
error, this type of reference is insufficient to set out an argument on appeal.
Uniform Rules—Courts of Appeal, Rule 2-12.4; Theriot, 691 So.2d 213.
The defendant does state he filed the motion for new trial partly because the
trial court left the courtroom and did not hear proffered evidence about whether the
shooting was accidental and because the state’s firearms expert said she could test
casings for fingerprints but had not been asked to do so. He states:
There is no indication in the court’s denial of the defendant’s motion for new trial that he ever saw, heard, or evaluated the defense proffer, and the court now has the benefit of hindsight on the firearms expert issue. Those are reasons enough to [at] least have a hearing on the defendant’s motion, and it is an abuse of discretion not to schedule that hearing, and not to grant a new trial for those reasons.

Defense counsel described the proffer of Ms. Capdeville’s excluded
testimony:
This witness had she been allowed to testify under – under cross-examination would have admitted that – she said that the second – she would have said that the second shot was, quote, like an accident. She would have said she saw the defendant. He was shooting in the air and that she is not going to lie. It was like an accident. She would have said that the alleged victim was running at the defendant. The defendant was shooting in the air. She would have said I guess to scare him, and that’s when I’m guessing he slipped and shot him.

45
The trial court shall grant a motion for new trial when “[t]he court’s ruling
on a written motion, or an objection made during the proceedings, shows
prejudicial error.” La.Code Crim.P. art. 851(B)(2). As discussed in Assignment of
Error Number Eight above, the trial court did not err in excluding Ms. Capdeville’s
testimony that the shooting was accidental. Thus, the defendant has not shown
prejudicial error regarding the proffered testimony.
The defendant further seeks a new trial based on issues involving the
firearms expert testimony. As discussed in Assignments of Error Numbers One
through Four, the trial court did not err in its rulings concerning the firearms/expert
issues, or counsel failed to present an argument showing any error. The defendant
has not shown prejudicial error by the trial court regarding those issues, and no
basis for a new trial exists.
ASSIGNMENT OF ERROR NUMBER ELEVEN

The defendant contends the trial court erred by failing to properly consider
mitigating factors and imposed an excessive sentence. The trial court issued
reasons for sentencing on January 30, 2017, which detailed the reasons for the
imposition of the defendant’s twenty-year sentence. The trial court found the
defendant’s age and the fact he was a first felony offender to be the only mitigating
factors.
The trial court noted the defendant’s Pre-Sentence Investigation report (PSI)
showed he was born on July 27, 1998. He graduated from Welsh High School in
May of 2016, and he participated in football and track. He was employed as a
helper at Thornwell Warehouse for four months in 2015. The defendant had no
juvenile or adult criminal history. The PSI also stated witnesses said the defendant
fought with the victim prior to the shooting. The defendant initially denied having
a gun, but he later admitted he had a gun, shot it, left the scene, and disposed of the
46
gun. Direct review of the PSI itself confirms the defendant had no juvenile or
adult criminal history. He was the oldest child of a single mother, and he knew
little of his father. The defendant’s mother married about six years prior to the
shooting, and the family had a good relationship. The defendant graduated from
high school with a 3.4 grade point average, and he excelled at football and track.
He hoped to receive a football scholarship and begin college in the fall of 2017.
The defendant worked for four months. He had to quit that employment at the
Welsh/Thornwell warehouse, his only job, because of football practice. At the
time of the shooting, the defendant had just turned seventeen and was about to
begin his senior year of high school.
According to testimony elicited at trial, the gun involved in the shooting had
belonged to the defendant’s deceased uncle. The defendant’s grandmother had let
him take the gun, but he was supposed to return it. He still had possession of it on
the night of the shooting.
The defendant particularly contends the trial court erred in sentencing him
because of the following:
1. It considered his age at the time of sentencing, not his age at the time of the offense.

2. The trial court failed to consider this was the defendant’s first criminal offense ever, not merely his first felony offense, and

3. The trial court did not let defense counsel make any statement or argument about sentencing, but the victim’s mother was allowed to read a statement without being cross-examined. The defendant argues the trial court did not explain why it did not consider the mitigating factors he set out in his motion to reconsider his sentence.

This court has previously discussed the standard for reviewing excessive
sentence claims:
[Louisiana Constitution Article] I, ' 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To
47
constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d
1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).
The defendant was exposed to a sentence of zero to forty years for his
conviction for manslaughter, and he was sentenced to twenty years at hard labor.
La.R.S. 14:31. Thus, he received a midrange sentence.
Even though a penalty falls within the statutory sentencing range, it may still
be unconstitutionally excessive:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ
denied, 03-562 (La. 5/30/03), 845 So.2d 1061 (citations omitted). “While the trial
judge need not articulate every aggravating and mitigating circumstance outlined
in art. 894.1, the record must reflect that he adequately considered these guidelines
in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688,
698 (La.1983) (citing State v. Ray, 423 So.2d 1116 (La.1982); State v. Keeney, 422
So.2d 1144 (La.1982); State v. Duncan, 420 So.2d 1105 (La.1982)). “The
48
appellate court shall not set aside a sentence for excessiveness if the record
supports the sentence imposed.” La.Code Crim.P. art. 881.4(D).
The defendant called a number of character witnesses at his sentencing
hearing. Kade Kelly testified at the sentencing hearing that she had taught the
defendant in the fourth and fifth grades and in two years of high school. She
taught the defendant French II and English IV while he was in jail awaiting trial.
The defendant obtained his high school diploma and graduated with a 3.4 grade
point average while he was in jail. Ms. Kelly testified the defendant had “always
been a good kid” who helped other students.
Jamie Festervand taught the defendant during summer school remediation
when he came into high school. The defendant also voluntarily came to a class
that was not required to get extra help on his LEAP test. He was serious about
school and was always prepared for class. She also taught the defendant during his
junior year. The defendant and his friends talked to Ms. Festervand about racial
issues, his home life, what people in society could do better, and dogs.
The defendant liked dogs, and Ms. Festervand worked in dog rescue. She
brought the defendant and his friends into her home, where she did not allow many
people, to “love on the dogs and talk to them.” The defendant never showed any
anger or violence to her. Ms. Festervand described the defendant as “[a] very good
kid.”
Amy Stanford taught the defendant in her Fine Arts Survey, a college prep
class, during his junior year. She said the defendant was “never one to look for
trouble,” and “he was always very polite.” Although mischievous, he was never
malicious, and he was “most certainly not a kid to get in trouble and to go looking
for trouble.” She still saw him as someone with potential.
49
John Richardson coached the defendant in football. He saw the defendant
“behind the scenes . . . helping the younger guys out.” The defendant “was just a
good team player” who “never wanted attention” for helping others. Coach
Richardson believed the defendant “has a good heart and . . . has it in him to make
something of himself.”
Yvette Derouen worked at Thornwell Warehouse, where the defendant
brought his dogs to get them food, wormer, and shots during his sophomore year.
The defendant and two of his friends were later hired for summer part-time jobs at
the warehouse. She said the defendant was a “[v]ery good worker” who “[n]ever
cut up like the other ones” and was “always straight.” He was “like a son” to Ms.
Derouen. She could not believe the news when she heard of the incident; she
thought the defendant was “too loving and gentle.” She said that she thought “they
[were] naming the wrong person.” Ms. Derouen said she would hire him again if
the defendant could come back to work.
The defendant’s mother described him as “a loving kid” who helped her
with his younger brothers, who looked up to him and respected him. The
defendant had never been in trouble and was a good student.
The trial court heard this testimony and also reviewed letters from Pat
Deshotel, the former Welsh High School principal, and Mary Owens, the
defendant’s grandmother. It considered the defendant’s age by citing his date of
birth, his high school graduation, his participation in sports, his employment, and
his lack of juvenile and adult criminal history. It also noted the defendant and the
victim fought prior to the shooting, and the defendant initially denied having a gun
at the scene. The defendant also later admitted to possessing the gun, shooting it,
leaving the scene, and disposing of the weapon.
50
Despite the positive testimony at sentencing, the trial court noted the
defendant “brought a gun to a fist fight,” where he “had plenty of opportunities to
recede.” The trial court stated he could find no other mitigating factors than the
defendant’s age of eighteen and the fact this was his first felony conviction. After
the trial court pronounced a sentence of twenty years at hard labor, defense counsel
argued provocation was a mitigating factor, and the defendant was unlikely to
commit another crime. The shooting “happened without any planning or purpose”
and “happened quickly and without any forethought and likely it was an accidental
[discharge] of a firearm during the swiftly moving sequence of events.” Defense
counsel believed the trial court should consider the proffered evidence of an
accidental shooting for sentencing purposes.
In State v. Frazier, 14-1132 (La.App. 3 Cir. 3/4/15), 157 So.3d 1266, writ
denied, 15-657 (La. 2/26/16), 187 So.3d 467, the defendant stabbed and killed an
apartment complex neighbor during an altercation. He was indicted for second
degree murder, but the jury found him guilty of manslaughter. The trial court
sentenced him to twenty years at hard labor. The defendant and witnesses on his
behalf testified at the sentencing hearing, where the defendant expressed remorse
and said he never wanted to hurt or fight the victim. Witnesses testified he was a
good man. “Nevertheless, the trial court noted Defendant was caught up in anger
at the time of the stabbing, and that anger led to the victim’s death.” Id. at 1276.
The trial court indicated it had considered some of the guidelines of La.Code
Crim.P. art. 894.1, including the defendant’s prior record of only one drug charge
and the fact he had fled the scene of the incident, leaving the victim to die.
Further, the jury had found the defendant was the aggressor in the incident. This
court affirmed the sentence on appeal.
51
In State v. Dukes, 10-1455 (La.App. 3 Cir. 6/1/11), 66 So.3d 598, writ
denied, 11-1368 (La. 12/16/11), 76 So.3d 1199, a disagreement between the victim
and the defendant led to pushing and shoving. The defendant followed the victim
into the bathroom, and a knife fight ensued. The victim sustained two equally fatal
stab wounds and a number of defensive wounds. The defendant left, and the
victim died shortly thereafter on the bathroom floor. This court affirmed the
defendant’s twenty-five-year sentence.
A bystander in a bar was shot and killed during an altercation among three
men in State v. McGhee, 10-583 (La.App. 3 Cir. 12/8/10), 52 So.3d 318, writ
denied, 11-62 (La. 5/20/11), 63 So.3d 973. Evidence showed the jury believed the
defendant pulled the gun from beneath his shirt. During a struggle, it fired and
struck the victim. The defendant, who had a prior conviction for possession of
cocaine, received the maximum sentence of forty years at hard labor.
The defendant in State v. Edwards, 12-933 (La.App. 3 Cir. 3/6/13), 129
So.3d 104, writ denied, 13-761 (La. 11/1/13), 125 So.3d 418, pled guilty to
manslaughter for the shooting death of a man with whom he had argued all
evening about a handgun. This court noted the defendant was highly intoxicated
and angry with the victim at the time of the shooting. Witnesses said they had
never seen the defendant as angry as he was that night. While he expressed
remorse for the killing, he also left his friend to die, went to a store to buy beer and
cigarettes, and went to a house where he was found asleep. The defendant had a
prior drug conviction, a rejected charge for aggravated burglary, and a cocaine
possession charge that was dismissed in exchange for his guilty plea to
manslaughter. Family and church members submitted letters about what a kind,
gentle man the defendant was. This court affirmed the defendant’s twenty-five
year sentence.
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Here, the jury rejected the charge of second degree murder, a crime that
requires the specific intent to kill, and found the defendant guilty of manslaughter,
a crime that considers provocation. The defendant argued the trial court failed to
consider provocation as a mitigating factor in sentencing. The provocation that
accounts for “sudden passion or heat of blood” is one element that distinguishes
manslaughter from the greater offense of second degree murder. La.R.S. 14:30.1
and 14:31. It is the element that limits the defendant’s possible sentence to forty
years at hard labor as opposed to life imprisonment.
The trial court did refer to the defendant being eighteen years old, his age at
sentencing and not at the time of the offense. However, the trial court presided
over the entirety of this case. It was aware of the defendant’s age at the time of the
offense. Counsel did not identify how the difference in age should have affected
the sentence imposed. The difference between age seventeen and age eighteen,
particularly considering the defendant’s lack of criminal history, does not provide
significant reason to alter his twenty-year sentence.
Even though the trial court commented this was the defendant’s first felony
offense, he also indicated he had read the PSI, which indicated the defendant’s
complete lack of juvenile and adult prior criminal history, not just the lack of
felony history. Although the trial court did not offer defense counsel the
opportunity to make an argument prior to imposing the sentence, counsel argued
for a reduced sentence after the trial court pronounced the twenty-year sentence.
Nothing prohibited the trial court from amending the sentence after hearing that
argument. Counsel’s argument added nothing to the facts the trial court already
knew, and his appellate brief does not indicate anything he would have argued to
impact the length of the sentence imposed. Counsel’s brief does not identify
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anything he would have brought out during cross-examination of the victim’s
mother that would have changed the sentence.
This is a tragic case for everyone involved on both sides. One life is ended,
and another life and two families are ruined because of what happened that night.
As in many cases, the thought of the defendant, a person of young age, spending
twenty years in prison is horrible. However, as the trial court noted, the defendant
“brought a gun to a fist fight,” and now, another young man with a lot of potential
is dead. Our law provides and requires punishment in these circumstances. Based
on the facts of this case, we find the defendant’s mid-range, twenty-year sentence
is not excessive.

Outcome: The defendant’s conviction and sentence are affirmed.
AFFIRMED.

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