STATE OF LOUISIANA VERSUS TORY N. CLARK

Gretna, Louisiana - Criminal defense lawyer represented defendant Tory Clark with appealing his conviction for second degree murder.

On September 30, 2010, a Jefferson Parish Grand Jury indicted defendant,

Tory N. Clark, for second degree murder of Terrance Augustine in violation of La.

R.S. 14:30.1. Clark was only fifteen years old at that time. He was arraigned and

pled not guilty. The case was tried from January 27 through January 30, 2015,

before a twelve-person jury that unanimously found Clark guilty as charged.

On February 11, 2015, defendant filed a motion for post-verdict judgment of

acquittal and a motion for appeal. The motion for appeal was granted the next day,

February 12, 2015. On April 2, 2015, defendant filed a motion for new trial; that

same day, the trial court denied defendant’s motion for post-verdict judgment of

acquittal and motion for new trial, and held a sentencing hearing pursuant to La.

C.Cr.P. art. 878.1. On April 14, 2015, the trial judge sentenced defendant to life

imprisonment with eligibility for parole after thirty-five years.

20-KA-167 2

Because the trial court had granted defendant’s motion for appeal before

ruling on defendant’s post-verdict motions and before imposing defendant’s

sentence, the trial court had been divested of jurisdiction to sentence defendant or

to rule on his post-verdict motions. Accordingly, on defendant’s first appeal, this

Court vacated the sentence, remanded for a ruling on post-verdict motions, and, if

those motions were denied, for resentencing, after which time defendant could

appeal his conviction and sentence. State v. Clark, 15-357 (La. App. 5 Cir.

11/19/15), 180 So.3d 602, 604.

On February 29, 2016, on remand, the trial court denied defendant’s motions

for post-verdict judgment of acquittal and new trial. On the same date, the trial

court sentenced defendant to life imprisonment with eligibility for parole after

serving thirty-five years.1 On June 12, 2018, defense counsel filed a Motion for

Out of Time Appeal, which the trial court granted on June 14, 2018.

In his second appeal, this Court found defendant’s request for an out-of-time

appeal was untimely and dismissed the appeal. State v. Clark, 18-519 (La. App. 5

Cir. 12/27/18), 263 So.3d 957, 958. Defendant thereafter filed a writ application in

the Louisiana Supreme Court, which granted the writ and remanded the case to this

Court for consideration on the merits. The Supreme Court determined that

defendant’s trial counsel failed to file a second motion for appeal after remand for

defendant’s sentencing, thus, defendant lost his constitutional right to an appeal

through no fault of his own. See State v. Clark, 19-1077 (La. 5/1/20), 295 So.3d

935, 936-37.

FACTS

This case arises from flaring tempers and false bravado exhibited by young

men at a block party in Kenner that ended in the shooting death of an innocent



1 The hearing transcript indicates the trial court did not impose the sentence with hard labor, as

required by La. R.S. 14:30.1. This patent error is discussed below.

20-KA-167 3

bystander. Testimony and evidence elicited at trial depicts an initial altercation

between Jade Berry and Dorion Johnson; Berry then told her friend Danny Bell

about the altercation. Bell was attending the block party with defendant and other

friends; tension escalated between Bell’s group and Johnson’s group; and

defendant and at least one other person in Bell’s group followed Johnson’s group

when Johnson’s group left the party. Defendant testified at trial that he followed

Johnson’s group; he quickly retrieved a weapon that had been stashed nearby, and

he fired four shots in the direction of Johnson’s group, though he contends he did

so in self-defense. A 12-person jury unanimously convicted him of second-degree

murder after hearing testimony from several witnesses for the State and the

defense, apparently rejecting defendant’s self-defense claim. At trial, the jury heard

the following testimony:

Detective David Schlueter of the Kenner Police Department testified that on

the night of June 26, 2010, his patrol unit was parked on the corner of 27th Street

and Greenwood Street in Kenner, where he was monitoring a large block party.

Detective Schlueter responded to an unrelated disturbance a few blocks away, but

while there, he heard six or seven gunshots in rapid succession coming from the

Greenwood area. As Detective Schlueter drove down 27th Street toward

Greenwood, he saw people running in different directions. When Detective

Schlueter approached the corner of 27th and Fayette Street, west of Greenwood, he

was flagged down by people who pointed to a subject, later identified as Terrance

Augustine, lying on the ground in a driveway.2 EMS took the victim to University

Hospital where he later died.



2 Demonstrative exhibits introduced at trial show that Greenwood street runs north and south and

crosses 27th Street, which runs east and west. Fayette Street runs north and south, crosses 27th

Street, and is west of Greenwood. Salem Street also runs north and south, crosses 27th Street,

and is west of Fayette and Greenwood. The block party was located on Greenwood, north of 27th

Street.

20-KA-167 4

Dr. Karen Ross, an expert in the field of forensic pathology, performed an

autopsy on the victim. The cause of death was a gunshot wound to the back of the

head; the manner of death was homicide. Dr. Ross recovered a 9-millimeter

projectile from the frontal region of the victim’s head. She testified that the

projectile entered the back of the victim’s head sideways. When she retrieved the

bullet, it appeared that one side of it had been scraped off, consistent with the

bullet having ricocheted after striking some other object before hitting the victim.

Detective Joseph McRae of the Kenner Police Department was the primary

case officer investigating the murder. He brought defendant in for questioning

along with his mother.3 After waiving his rights, defendant gave a recorded

statement to Detective McRae indicating that he was at a party near Greenwood

and 27th Streets with Charles Lathers and with his cousins, Cory Cage and Danny

Bell. Cage and Bell approached Latyres “Tyrus” Turley and Dorion “DoDo”

Johnson anticipating a fight. Defendant stated that Tyrus and DoDo walked down

the street and that he (defendant), Cage, and Bell walked behind them but then

stopped at the corner. Defendant stated that Tyrus, Dodo, “Keevin,”4

and “Gauge,”

then started running away toward the intersection of Fayette and 27th Streets.

Defendant claimed in his statement that he heard a gunshot from Fayette and saw

“Keevin” pull out a revolver and shoot at him. Defendant said he then pulled a .380

gun from his waist area and shot back four times. Defendant said he also heard

gunshots next to him but claimed he did not know who was shooting. Defendant

claimed he was the only one with a gun among him, Bell, and Lathers; he also

stated that he usually kept the gun hidden behind an abandoned house on Helena.

According to defendant’s statement, after the shooting, he and Lathers ran to

Helena where defendant threw the gun into a field.



3 Detective McRae reviewed the juvenile advice of rights form with defendant, and defendant’s

mother signed as a witness.

4 The record also spells Keevin as “Keeven.”

20-KA-167 5

Detective McRae arrested defendant for second-degree murder and returned

to defendant’s mother the rosary bead necklace he had been wearing.5 Detective

McRae obtained search warrants for the homes of defendant and Lathers.6

Detective McRae indicated that Thomas Houston had positively identified Lathers

as one of the shooters. Detective McRae also discovered that an online profile of

Lathers included a picture of Lathers and defendant in which defendant was

wearing a brownish military-style hat and a rosary necklace. While searching

defendant’s bedroom, Detective McRae found a 9-mm magazine containing six

live 9-mm rounds and one live .223 Remington round. He also found a tan or

brownish military-style hat with a neck string in the laundry room of defendant’s

house.

Mary Beyer, a Kenner Police Department crime scene technician, collected

three .380 casings and eight 9-mm casings from the corner of 27th and Greenwood.

She also collected three projectiles: one from Fayette Street near the intersection of

27th, one from 233 27th Street, and one from 2703 Salem Street. A jacketed

projectile also was collected from 2713 Salem. Ms. Beyer documented that a

vehicle located on the corner of 27th and Salem had damage to its windows,

apparently caused by the shooting.

Colonel Timothy Scanlan, an expert in the field of firearms and toolmark

examination, examined the casings and projectiles recovered. He explained that the

three .380 casings recovered were fired from the same weapon and that all eight 9-

mm casings recovered were fired from another single weapon. Colonel Scanlan



5 Detective McRae subsequently learned that one of the shooters was wearing a rosary-style

necklace and that one of the shooters was wearing a brown army-style hat.

6

In the master bedroom at Lathers’ home, Detective McRae also located a live 9-mm Luger

round. In another room of defendant’s home, Detective McRae located two large capacity

magazines and two 7.62 by 39-caliber bullets. He searched a vehicle in the driveway and found a

9-mm handgun. Detective McRae stated that the magazine of that 9-mm weapon contained eight

live 9-mm Luger rounds. Ultimately this 9-mm handgun and the large capacity magazines and

other ammunition were not traced to the scene of the shooting at issue here.

20-KA-167 6

found that two of the projectiles were consistent with 9-mm ammunition and

another projectile was consistent with .32-caliber ammunition.

Colonel Scanlan also examined a .380 handgun that Joseph Humbles, the

victim’s cousin, located in a vacant lot on the corner of Helena and 27th Streets.7

Colonel Scanlan admitted that the .380 casings found at the scene were not fired

from the weapon that Mr. Humbles found; he also noted that a .32 auto cartridge

was wedged in the barrel of the weapon that Mr. Humbles found. Colonel Scanlan

further testified that there was a “.380 caliber cartridge” in the barrel and some

ammunition in the magazine. He determined that the .380 weapon was able to fire

a .32-caliber projectile but he could not say whether the .32 projectile found at the

scene was fired from that weapon. Colonel Scanlan further stated that the casings

found close together at the scene were consistent with stationary shooters and at

least two guns being used.

In addition to the testimony from Kenner Police and the coroner, several fact

witnesses testified about the events surrounding the shooting: Patrick Augustine,

Lorenzo Augustine, Thomas Houston, Latyres “Tyrus” Turley, Dorion “DoDo”

Johnson, Danny “D.L.” Bell, Corey Cage, Jade Berry, Cory Wilson, Brennan

Bellard, Keeven Robinson, and defendant. Although their testimony was largely

consistent regarding events that occurred at the block party before the shooting, the

testimony widely diverged with regard to who shot first, how many shooters there

were, who possessed weapons, and what kind of weapons were involved.

The witnesses consistently agreed that DoDo Johnson and Jade Berry had an

altercation earlier that evening, that Berry told Bell about the altercation, and that

members of the group associated with Berry (Bell, defendant, Lathers, and Cage)



7 The .380 that Mr. Humbles found was not examined for fingerprints because it had been

exposed to the weather for some time and because Mr. Humbles had handled it before turning it

over to the Kenner Police.

20-KA-167 7

indicated they wanted to fight the group associated with Johnson (Turley, Johnson,

and Houston).

Patrick Augustine and Lorenzo Augustine were not associated with either

defendant’s group or Johnson’s group. Patrick Augustine testified for the State that

he, Lorenzo (his brother), and Terrance Augustine (his cousin, the victim) left

Patrick’s mother’s house at 215 27th Street, intending to attend the block party.

They walked down 27th and reached Fayette. Before reaching the party, however,

they saw people running back toward Fayette from Greenwood. Soon thereafter,

Patrick heard shots coming from the area of Greenwood and 27th but he did not

hear gunshots coming from the area of Fayette and 27th. He stated the gunshots

occurred in rapid succession. Lorenzo Augustine’s testimony largely corroborated

that of his brother, Patrick.

Thomas Houston testified for the State that on June 26, 2010, he went to the

block party where he met his cousin, Latyres Turley. Houston overheard people at

the party speaking about Turley. He became concerned for Turley’s safety, so he

told Turley they should go, but Turley did not want to leave. Houston returned to

the area where people were talking about Turley. It appeared that some people in

that group were carrying guns – one wearing rosary beads and another wearing a

brownish army hat with a string tied in front. According to Houston, as he and

Turley were leaving, someone in the other group yelled at Turley asking if he

wanted to fight. Houston and Turley began walking away from the party and later

started running toward Fayette, with Turley a little bit ahead of him. Houston was

on 27th Street, about halfway between Greenwood and Fayette, when he saw two

people pull out guns and start shooting in Turley’s direction, toward Fayette Street.

Houston said the shooters were standing at the corner of 27th and Greenwood and,

after shooting, they ran in the other direction. He did not hear any gunshots before

he heard the shots coming from the Greenwood area. After giving a statement to

20-KA-167 8

the police, Houston positively identified Lathers as one of the shooters in a

photographic lineup; however, at trial, Houston testified that Lathers was one of

the people at the party but not a shooter. Houston admitted at trial that after

identifying Lathers as a shooter in the photographic lineup, Houston was contacted

by a defense attorney; that attorney spoke to him about the case and prepared an

affidavit stating that Lathers was not one of the shooters, which Houston signed.8

Mr. Turley testified for the State that on the night in question he “hung out”

with Johnson and spoke with his cousin, Houston, at the block party. Houston was

concerned that another group would start a fight with Turley, based on comments

Houston had overheard. Turley eventually left and as he was leaving, Cage

approached Turley and said he wanted to fight. Defendant and Lathers were with

Cage. Turley, Johnson, and Houston walked south on Greenwood, then west on

27th, after which Turley started running. As he was running away, Turley heard

gunshots coming from 27th and Greenwood. Turley did not hear any gunshots

coming from 27th and Fayette nor did he see anybody shooting at the intersection

of 27th and Fayette. Turley testified that he did not shoot anybody that night nor

did he have a gun that night.

Mr. Johnson’s testimony corroborated Mr. Turley’s testimony. Mr. Johnson

did not hear any gunshots coming from 27th and Fayette nor did he see anyone

shooting from there. Afterward, Johnson ran farther down 27th toward Salem

where he entered a back yard and then went to his cousin’s house. Johnson testified

it was Bell and Cage who wanted to fight him.

Mr. Bell testified for the State that while at the block party with defendant

(his cousin), Lathers, and Cage, Berry told him about her altercation with Johnson.

At trial, Bell denied telling the police that he asked Turley’s group if they wanted



8 At no point – either in his statement to police or at trial – did Houston identify Tory Clark as a

shooter. Houston also testified that a lot of people at the party were wearing rosary beads as a

necklace, not just defendant.

20-KA-167 9

to fight, although his earlier statement to police reflected as much. Bell testified

that shortly after defendant and Lathers followed Turley’s group, Bell heard

gunshots. At trial, Bell testified that he did not remember where the gunshots came

from; however, his statement to the police indicated that he heard gunshots from

27th and Greenwood and ran home. Bell denied that defendant had shot anybody.

Mr. Cage, another of defendant’s cousins, testified for the State that he could

not recall being at a block party on the night of June 26, 2010. Although he gave a

statement to the police about it soon after the incident, he claimed not to recall

many details at trial. Ultimately, Bell admitted to being at the scene that night and

running when he heard the gunshots but claimed not to remember any other details.

Ms. Berry testified for the defense that after her altercation with Johnson,

she told Bell about the altercation, who told Cage. Bell and Cage wanted to fight

Johnson. Berry later heard gunshots on Greenwood but she did not see anyone with

weapons that day and did not see who was shooting. She recalled seeing Turley,

[Keeven] Robinson, and Johnson, and she agreed that defendant and Lathers were

in the same group as Cage and Bell that night.

Mr. Wilson, defendant’s cousin, testified for the defense that he attended the

block party and saw defendant, Cage, Lathers, and Bell there but did not talk to

them. Approximately ten to fifteen minutes after he arrived, he heard gunshots and

ran the opposite way toward Aberdeen. Wilson testified that he saw Turley and

Robinson shooting guns but he did not see defendant shoot, and it looked like

defendant’s gun had jammed. Wilson claimed he heard gunshots coming from

multiple directions. He admitted that he never gave a statement to the police after

the incident and that an attorney had contacted him about the case only two days

before trial.

Mr. Bellard testified for the defense that he and defendant were together at

the party and that Lathers, Cage, Turley, Robinson (his cousin), Davonte Ivey, and

20-KA-167 10

“Montario” were there as well. He recalled that Turley approached them and was

talking “crazy” and cursing; “words” were passed back and forth. Bellard claimed

that Turley flashed a weapon and that Turley and Robinson walked past them

saying “things.” Turley’s group walked on to 27th toward Fayette.

Bellard testified that while he was at his grandmother’s house on the corner

of 27th and Greenwood, he heard approximately six gunshots and saw either

Robinson or Turley shooting at defendant’s group. Bellard testified that

defendant’s gun did not shoot because it jammed. He also testified that he heard

Ivey shooting and that Ivey was the only person he saw shooting. Bellard said he

saw flashes of light coming from where Lathers and Ivey were standing and from

where Turley and Robinson were located. Bellard admitted he had a gun that night.

He testified that after the confrontation between his group and the other group,

defendant retrieved his gun from the alleyway, where defendant kept the weapon in

case he needed it.

Mr. Keeven Robinson testified for the defense that he was at the block party

but was not “hanging” with anybody that night; he was sitting in the back of his

grandmother’s truck in front of her house on Greenwood. He ran inside when he

heard gunshots. Robinson testified that he was not with Turley, that he did not

walk down Greenwood or 27th, and that he did not have a gun that night. He

further testified that he did not see Turley that night and never saw Turley or

anyone else out there with a gun.

Finally, defendant testified that he and Lathers went to the block party.

Berry approached Bell to tell him about the altercation with Johnson. Bell then

told Cage about the altercation. Bell and Cage then approached Johnson and asked,

“What’s up?” like they wanted to fight, and the “other party” responded “What’s

up?” The “other party” walked down the street and then defendant’s group started

walking down the street. Defendant retrieved the gun he had found two months

20-KA-167 11

earlier and put the gun “on [his] waist” in case “things got out of hand” because he

knew the “other party” possessed weapons. Defendant and his group then walked

to the street corner. He testified that when he first heard gunshots, he was in the

middle of 27th Street; somebody was shooting at him from the corner of Fayette.

Defendant stated that he originally thought it was Robinson, as he indicated in his

statement, but at trial he claimed he did not know who it was because they were

packed in a group.

Defendant testified that he shot in the direction of Fayette approximately

three or four times and then his gun jammed. This was the first time he had ever

shot a gun. Afterward, he and Lathers ran to the other side of the neighborhood.

Defendant called a friend who came to pick them up. Later, defendant’s stepfather

took him to the police station where his mother met him. She told him to tell the

truth and if there was anything he knew, he should tell the police, which he did.

Defendant testified that the victim, Terrance Augustine, was his friend and

he did not want to harm him. He claimed that he was scared for his life that night

because there had been an altercation, and he never intended to shoot his gun that

night or to kill somebody. He further claimed that everything seemed “blurry” and

that his adrenaline was “pumping.” Defendant stated that each time he pulled the

trigger, he was not sure what the gun did because he had his head turned. He said

he was just shooting the gun “to scare them” because he thought “they were trying

to do him something.” After the shooting, defendant threw the gun in the field on

Helena. Defendant acknowledged that he knew guns could kill people and that

shooting a gun could end in someone’s death. Defendant testified that his mother

told the truth when she testified that he told her he had shot a .380.

During deliberations, the jury asked the trial court to again provide

definitions for second-degree murder, negligent homicide, and manslaughter. The

court called the jury back and re-read the definitions. The jury convicted defendant

20-KA-167 12

of second-degree murder. The jury poll established that the verdict was unanimous.

Defendant now asserts two assignments of error on appeal.

DISCUSSION

Sufficiency of the Evidence

Defendant’s second assignment of error suggests the evidence was

insufficient to support the verdict because the State failed to prove beyond a

reasonable doubt that the killing was not committed in self-defense. When the

issues on appeal relate to both the sufficiency of evidence and one or more trial

errors, the reviewing court should first address the sufficiency assignment of error

by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734

(La. 1992). If the reviewing court determines that the evidence was insufficient,

then the defendant is entitled to an acquittal, and no further inquiry as to trial errors

is necessary. Id. Alternatively, when the entirety of the evidence, both admissible

and inadmissible, is sufficient to support the conviction, the defendant is not

entitled to an acquittal, and the reviewing court must consider the assignments of

trial error to determine whether the accused is entitled to a new trial. Id. We

accordingly address defendant’s second assignment of error regarding sufficiency

of evidence first. See also State v. Nguyen, 05-569 (La. App. 5 Cir. 2/3/06), 924

So.2d 258, 262.

Defendant contends the facts elicited at trial show that when he was

confronted by others at the party, one or more of whom he believed to be armed

(Robinson and Turley), his response to that perceived threat, though perhaps illadvised when judged in hindsight, was not so unreasonable as to support the guilty

verdict when considered in the context of the scene at the block party where

youthful emotions were running high. Defendant asserts that he responded with

deadly force only because he believed he had no other choice to save his own life.

He also asserts that the evidence shows he caused no physical harm to anyone, and

20-KA-167 13

neither he nor Lathers had a specific intent to kill anyone.

In response, the State contends the jury could rationally disbelieve

defendant’s claim of self-defense in light of the evidence presented. The State

notes that five eyewitnesses testified that gunshots came from defendant’s location,

but no gunshots were fired from any other location. This testimony was consistent

with the testimony of Detective Schlueter, who heard a single, uninterrupted burst

of gunfire, as opposed to a volley of fire followed by return fire. The State also

argues defendant cannot claim self-defense under Louisiana’s aggressor doctrine

because the evidence shows the intended victims were walking away from the

fight, but defendant went out of his way to retrieve a weapon, follow them, and

shoot at them.

When reviewing the sufficiency of evidence, an appellate court must

determine that the evidence, whether direct, circumstantial, or a mixture of both,

viewed in the light most favorable to the prosecution, was sufficient to convince a

rational trier of fact that all of the elements of the crime have been proven beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,

61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 657,

cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the

jury that “assuming every fact to be proved that the evidence tends to prove, in

order to convict, it must exclude every reasonable hypothesis of innocence.” La.

R.S. 15:438. The reviewing court is not required to determine whether defendant’s

suggested hypothesis of innocence offers an exculpatory explanation of events.

Rather, the reviewing court must evaluate the evidence in the light most favorable

to the State and determine whether the possible alternative hypothesis is

sufficiently reasonable that a rational juror could not have found proof of guilt

beyond a reasonable doubt. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d

20-KA-167 14

78, 83; State v. Washington, 03-1135 (La. App. 5 Cir. 1/27/04), 866 So.2d 973,

977.

Under La. R.S. 14:30.1, second degree murder is defined as the killing of a

human being when the offender: 1) has the specific intent to kill or to inflict great

bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one

of several enumerated felonies, even though he has no intent to kill or to inflict

great bodily harm. See State v. Lewis, 05-170 (La. App. 5 Cir. 11/29/05), 917

So.2d 583, 589-90, writ denied, 06-757 (La. 12/15/06), 944 So.2d 1277. In

addition to proving the elements of an offense, the State must prove the identity of

the defendant as the perpetrator. State v. Nelson, 14-252 (La. App. 5 Cir. 3/11/15),

169 So.3d 493, 500, writ denied, 15-0685 (La. 2/26/16), 186 So.3d 468. Where the

key issue is identification, the State is required to negate any reasonable probability

of misidentification in order to carry its burden of proof. Id.

Under La. R.S. 14:24, “[a]ll persons concerned in the commission of a

crime, whether present or absent, and whether they directly commit the act

constituting the offense, aid and abet in its commission, or directly or indirectly

counsel or procure another to commit the crime, are principals.” Only those

persons who “knowingly participate in planning or execution of a crime” are

principals to that crime. State v. King, 06-554 (La. App. 5 Cir. 1/16/07), 951 So.2d

384, 390, writ denied, 07-371 (La. 5/4/07), 956 So.2d 600. An individual may only

be convicted as a principal for those crimes for which he personally has the

requisite mental state. Id.

A person may be convicted as a principal to second degree murder even if he

has not personally fired the fatal shot. State v. Page, 08-531 (La. App. 5 Cir.

11/10/09), 28 So.3d 442, 449-50, writ denied, 09-2684 (La. 6/4/10), 38 So.3d 299.

The law of principals states that all persons involved in the commission of a crime

are equally culpable. See State v. Massey, 11-357 (La. App. 5 Cir. 3/27/12), 91

20-KA-167 15

So.3d 453, 463-64, writ denied, 12-991 (La. 9/21/12), 98 So.3d 332 (“Whether the

defendant actually fires the bullet that strikes and kills a victim is of no

consequence and the defendant may be convicted as a principal to the crime.”).

The doctrine of transferred intent provides:

When a person shoots at an intended victim with the

specific intent to kill or inflict great bodily harm and

accidentally kills or inflicts great bodily harm upon

another person, if the killing or inflicting of great bodily

harm would have been unlawful against the intended

victim actually intended to be shot, then it would be

unlawful against the person actually shot, even though that

person was not the intended victim.

State v. Baham, 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 566-67, writ

denied, 15-40 (La. 3/24/16), 190 So.3d 1189.

The jury instructions indicate the State tried defendant under the first theory

of second-degree murder, requiring the State to prove that defendant had the

specific intent to kill or to inflict great bodily harm. Specific intent is “that state of

mind which exists when the circumstances indicate that the offender actively

desired the prescribed criminal consequences to follow his act or failure to act.”

La. R.S. 14:10(1). The determination of specific intent is a question of fact. State v.

Durand, 07-4 (La. App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034, writ denied, 07-

1545 (La. 1/25/08), 973 So.2d 753.

Specific intent to kill may be inferred from a defendant’s act of pointing a

gun and firing at a person. State v. Hoffman, 98-3118 (La. 4/11/00), 768 So.2d 542,

585, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); see also

State v. Batiste, 06-869 (La. App. 5 Cir. 4/11/07), 958 So.2d 24, 27. Specific intent

to kill may be inferred from the extent and severity of the victim’s injuries. State v.

Stacker, 02-768 (La. App. 5 Cir. 12/30/02), 836 So.2d 601, 606, writ denied, 03-

411 (La. 10/10/03), 855 So.2d 327. A defendant may be convicted as a principal to

second degree murder even if he did not personally fire the fatal shot. Page, 28

20-KA-167 16

So.3d at 50. A defendant’s flight and attempt to avoid apprehension are

circumstances from which a trier of fact may infer a guilty conscience. State v.

Cazenave, 00-183 (La. App. 5 Cir. 10/31/00), 772 So.2d 854, 860, writ denied, 00-

3297 (La. 10/26/01), 799 So.2d 1151.

Defendant admits he pulled the trigger four times, in the direction of the

opposing group, but contends he shot his firearm in self-defense. When a

defendant in a homicide prosecution claims self-defense, the burden is on the State

to prove beyond a reasonable doubt that the defendant did not act in self-defense.

State v. Reed, 11-507 (La. App. 5 Cir. 2/14/12), 88 So.3d 601, 607, writ denied,

12-644 (La. 9/14/12), 97 So.3d 1014. The fact that an offender’s conduct is

justifiable, although otherwise criminal, constitutes a defense to prosecution for

any crime based on that conduct. La. R.S. 14:18.

A homicide is justifiable “[w]hen committed in self-defense by one who

reasonably believes that he is in imminent danger of losing his life or receiving

great bodily harm and that the killing is necessary to save himself from that

danger.” La. R.S. 14:20(A)(1).

“A person who is the aggressor or who brings on a difficulty cannot claim

the right of self-defense unless he withdraws from the conflict in good faith and in

such a manner that his adversary knows or should know that he desires to

withdraw and discontinue the conflict.” La. R.S. 14:21. Although “there is no

unqualified duty to retreat, the possibility of escape from an altercation is a

recognized factor in determining whether the defendant had a reasonable belief that

deadly force was necessary to avoid the danger.” State v. King, 11-767 (La. App. 5

Cir. 2/28/12), 88 So.3d 1147, 1153, writ denied, 12-660 (La. 9/14/12), 99 So.3d 35.

The determination of a defendant’s culpability rests on a two-fold test: 1)

whether, given the facts presented, the defendant could reasonably have believed

his life to be in imminent danger; and 2) whether deadly force was necessary to

20-KA-167 17

prevent the danger. State v. Sinceno, 12-118 (La. App. 5 Cir. 7/31/12), 99 So.3d

712, 720, writ denied, 12-2024 (La. 1/25/13), 105 So.3d 713. The jury is the

ultimate fact-finder in determining whether the State negated self-defense beyond a

reasonable doubt.

Based on the testimony and evidence at trial, the evidence was sufficient to

establish that defendant was a principal to the second-degree murder of Terrance

Augustine. Defendant’s statement to the police and his own testimony at trial

established that he and Lathers followed Johnson and Turley, who were leaving the

block party after people in defendant’s group challenged people in Johnson’s group

in response to an altercation that occurred between Berry and Johnson. Defendant

testified that he retrieved a weapon that he kept stashed away before following

Johnson’s group. Defendant also testified that he fired shots when he was near the

area of Greenwood and 27th Streets, that he and Lathers fled the scene, and that he

threw his gun in a field on Helena.

The jury also heard evidence indicating that Lathers was the other shooter.

The recovery of .380 casings and 9-mm casings at the scene established that there

were at least two guns involved in the incident, and defendant admitted on cross

examination that he did not shoot two guns. Detective McRae testified that Thomas

Houston identified Lathers as one of the shooters when he was shown a

photographic lineup not long after the incident. Although at trial Houston denied

Lathers was a shooter, and defendant refused to name the other shooter, the jury

could have accepted Houston’s initial identification as true to conclude that both

Lathers and defendant shot at the opposing group and, even though defendant’s

weapon did not fire the fatal shot, defendant was a principal to the crime. “Whether

the defendant actually fires the bullet that strikes and kills a victim is of no

consequence and the defendant may be convicted as a principal to the crime.”

Massey, 91 So.3d at 463-64. See also Page, 28 So.3d at 449-50; La. R.S. 14:24.

20-KA-167 18

The jury reasonably could conclude that defendant had the specific intent to

kill or to inflict great bodily harm and that the State met its burden of proving

second degree murder beyond a reasonable doubt. Defendant admits to pointing his

.380 weapon in the direction of Johnson and his group and pulling the trigger three

or four times. Witnesses for both defendant and the State testified that persons near

the corner of 27th and Greenwood Streets discharged firearms in the direction of

Fayette. The jury heard testimony that the shooters wore a rosary necklace and a

brown army-style hat with a string. Detective McRae testified that he found a

brown hat with a string in the laundry room at defendant’s home and that

defendant had given his mother his rosary necklace at the time of his arrest.

Defendant also claimed he shot a .380 weapon. Although the victim was

killed by a 9-mm projectile, not a .380 projectile, the jury could reasonably

conclude that the State met its burden of proof beyond a reasonable doubt that

defendant was a principal to second degree murder; that he had specific intent to

kill or inflict great bodily harm on Turley, Johnson, or other members of their

group; and that this intent transferred to the victim. See La. R.S. 14:10(1); Baham,

169 So.3d at 566-67.

Further, the jury reasonably could have concluded that, in light of the

testimony and evidence presented at trial, the State met its burden of proving

beyond a reasonable doubt that defendant was not acting in self-defense. The

intended victims were walking away from a potential fight when defendant

retrieved his weapon, followed, and shot at them, behaving more as an aggressor

than as the victim of another party’s aggression. “A person who is the aggressor or

who brings on a difficulty cannot claim the right of self-defense unless he

withdraws from the conflict in good faith and in such a manner that his adversary

20-KA-167 19

knows or should know that he desires to withdraw and discontinue the conflict.”

La. R.S. 14:21.

The evidence was also sufficient for the jury to determine that shots were not

fired at defendant first. Patrick Augustine, Lorenzo Augustine, Houston, Turley,

and Johnson all testified that all of the gunshots fired that evening came from the

intersection of 27th and Greenwood, where defendant admits he was standing at the

time he pulled the trigger.9 Further, Detective Schlueter testified that he heard six

or seven gunshots in rapid succession, as opposed to one or more gunshots

followed by a second set of gunshots constituting return fire, as defendant claims.

The identity of the person or persons who allegedly shot at defendant was

also never conclusively determined.10 In his statement to the police, defendant

claimed that Robinson was shooting at him with a revolver; at trial, however,

defendant testified that he did not know who was shooting at him.

The jury heard the conflicting testimony and apparently credited the version

of events portrayed by the witnesses who testified that shots came only from 27th

and Greenwood rather than the witnesses who testified shots were exchanged

between groups. Adjudging the credibility of witnesses is within the sound

discretion of the trier of fact, who may accept or reject, in whole or in part, the

testimony of any witness; the credibility of the witnesses will not be reweighed on

appeal. State v. Rowan, 97-21 (La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.



9 Defendant testified at trial that while he and his group were standing at 27th and Greenwood,

somebody shot at him first from the corner of 27th and Fayette. Defendant also asserted at one

point that he fired shots only to scare the other group. He stated that he thought he shot the gun

four times but that the gun jammed.

10 Corey Wilson, who never gave a statement to the police after the incident, testified that he saw

Turley and Robinson shooting guns, that he did not see defendant shoot, and that it looked like

defendant’s gun jammed. Brennan Bellard also testified that he saw either Turley or Robinson

shooting and that defendant’s gun did not shoot because it jammed. Both Mr. Wilson and Mr.

Bellard conceded on cross examination that they would do whatever they could to help out their

cousin, the defendant. The jury evidently did not accept Mr. Wilson’s and Mr. Bellard’s version

of events surrounding the shooting.

20-KA-167 20

Applying the Jackson standard and viewing the evidence in the light most

favorable to the prosecution, the evidence was sufficient for the jury reasonably to

reject defendant’s alternative hypothesis that he was acting in self-defense and to

conclude defendant was guilty of second-degree murder. There is no merit to

defendant’s second assignment of error regarding sufficiency of evidence.

Shooting Demonstration during Defendant’s Trial Testimony

During cross-examination, defendant testified that he was not sure if his gun

shot, that he was scared for his life, that everything seemed “blurry,” and that his

adrenaline was “pumping.” Afterward, the prosecutor asked defendant to stand up,

take the gun, hold it the way he held it on the day of the incident, and to shoot the

gun toward the door the way he shot it down the street that day. Defense counsel

objected, stating that it was inflammatory and completely unnecessary. The trial

court determined that the prosecution had a right to point out the differences

between defendant’s testimony at trial in 2015 and his statement given a few days

after the accident in 2010, and allowed the demonstration to proceed.

The prosecutor then counted four times and asked defendant if he shot it like

that, to which defendant answered affirmatively. During the demonstration,

defendant said he was not sure what the gun did each time he shot it because he

had his head turned. He said he was just shooting the gun to scare them because he

thought “they were trying to do [him] something.” Defendant said he was not one

hundred percent sure if the gun was shooting or not, but he stopped shooting after

four times because he felt “as if it was time for [him] to go” and four shots were

enough to scare them off. Defendant was unsure who shot at him.

Defendant’s first assignment of error contends the trial judge should not

have permitted the State to require him to stand before the jury with the .380

weapon introduced in evidence and to pull the trigger four times. He argues the

demonstration was irrelevant, without probative value, and completely prejudicial.

20-KA-167 21

The State argues the trial court correctly determined the demonstration was

relevant. According to the State, the prosecutor’s request helped the jury determine

the truth of defendant’s self-defense claim by asking him to show the jury what he

said he did at the time of the shooting. Before the demonstration, defendant said he

shot four times, that he was acting in self-defense, and that he stopped shooting

because his gun jammed. After the demonstration, however, defendant testified

that he was not sure if he was shooting and that he had stopped shooting because

“it was time for me to go” and that four shots were enough to “scare them off.”

The State further contends that defendant fails to show how he was

prejudiced by the demonstration, because on direct examination defendant already

had admitted to firing a .380 weapon. The State argues that defendant chose to

testify at trial, subjecting himself to cross-examination. Although defendant’s

credibility may have been damaged as a result of the demonstration, that damage

resulted from the inconsistencies between his testimony at trial and his prior

statements to the police, not because he held the gun at trial.11

Relevant evidence is defined in La. C.E. art. 401 as “evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” All relevant evidence is admissible, except as otherwise

provided by law. La. C.E. art. 402. Although evidence is relevant, it may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, or waste of time. La. C.E. art. 403.



11 Detective McRae testified at trial that in defendant’s June 29, 2010 statement, defendant said

Robinson pulled out a revolver and shot at him, after which defendant shot back four times with

a .380. At trial, however, defendant testified during direct examination that he shot his gun

because an unknown person was shooting at him from the corner of Fayette and 27th. He

explained that he attempted to “pull up” his gun, and he thought he shot approximately four

times, but the gun jammed.

20-KA-167 22

Under Louisiana’s Code of Evidence “a witness may be cross-examined on

any matter relevant to any issue in the case, including credibility.” La. C.E. art.

611(B). Subject to the discretion of a trial judge to preclude repetitive and unduly

harassing interrogation, the cross-examiner is not only permitted to delve into the

witness’s story to test the witness’s perceptions and memory, but the crossexaminer has traditionally been allowed to impeach, or discredit, the witness. State

v. Honore, 09-313 (La. App. 5 Cir. 1/12/10), 31 So.3d 485, 501 (citing State v.

Draughn, 05-1825 (La. 1/17/07), 950 So.2d 583, 616, cert. denied, 552 U.S. 1012,

128 S.Ct. 537, 169 L.Ed.2d 377 (2007)). The ruling of the trial court as to the

scope and extent of cross-examination should not be disturbed absent an abuse of

the court’s broad discretion. Id.

It is well settled that the requirement of exhibiting identifying characteristics

is demonstrative rather than testimonial evidence and does not violate the Fifth

Amendment right against compulsory self-incrimination. State v. Guidry, 12-296

(La. App. 5 Cir. 12/11/12), 106 So.3d 1062, 1066, writ denied, 13-76 (La.

6/14/13), 118 So.3d 1080. The use of demonstrative evidence is within the sound

discretion of the trial judge, and his ruling will not be disturbed on appeal in the

absence of an abuse of discretion. State v. Hutchinson, 02-60 (La. App. 5 Cir.

5/15/02), 817 So.2d 500, 507.12

Although we have not found a Louisiana case directly on point, courts in

other jurisdictions have found similar demonstrations permissible. For example, in

State v. Gil, 543 A.2d 1296 (R.I. 1988), the State asked defendant during crossexamination to step down from the witness stand, show how he held the gun when



12 Louisiana courts have allowed the State to compel a criminal defendant to exhibit his physical

features without finding an infringement of his privilege against self-incrimination. Louisiana

courts have compelled a defendant to put on a shirt, to allow his height to be measured, and to

exhibit a scar, a bruise, and a tattoo. Defendants in Louisiana have been forced to stand and

identify themselves, to give blood samples and handwriting samples, to demonstrate the manner

in which they open cigarette packs, and to say the words used by the robber who committed the

crime. Hutchinson, 817 So.2d at 506-07.

20-KA-167 23

he fired the shots, and demonstrate how the shooting occurred. Defendant

responded that he did not remember how he had grabbed the gun or how he held it.

Over defense counsel’s objection, the trial court found the demonstration was

permissible cross-examination intended to refresh defendant’s recollection of the

incident. Because defendant’s theory at trial was that he feared for his life and

acted in self-defense, the sequence of events surrounding the shooting was

extremely important. The appellate court found the demonstration appropriate,

noting that defendant was asked to demonstrate actions he had previously

described to police but could not remember on direct examination, and defendant’s

testimony on direct examination contradicted the statement he gave to police on

the day of the shooting. As such, the entire demonstration was relevant to the issue

of the defendant’s credibility and was within the scope of permissible crossexamination. 543 A.2d at 1299-1300.

Likewise, in Price v. State, 82 Md. App. 210, 570 A.2d 887 (Md. 1990), writ

denied, 320 Md. 16, 575 A.2d 742 (1990), defendant was convicted of two counts

of second-degree murder. On appeal, defendant argued the trial judge erred in

overruling his objection and ordering him to hold the gun as he did during the

shooting. Defendant claimed the demonstration was unnecessary because he

already had testified how he held the gun; therefore, unfair prejudice resulted. The

appellate court noted that a trial judge is vested with wide discretion in permitting

or denying demonstrations; it found defendant’s ability to remember exactly how

he held the rifle was probative of the possible inference that he was capable of

recalling in detail the circumstances of the shootings. The appellate court

concluded the trial judge did not abuse its discretion in ordering defendant to

demonstrate how he held the rifle. 82 Md. App. at 223-24.

Here, defendant’s trial testimony regarding the shooting differed somewhat

from the statement he gave to Detective McRae. In his earlier statement, defendant

20-KA-167 24

said Robinson shot at him; at trial, he testified that he was not sure who shot at

him. In his statement, defendant did not say anything about his gun jamming or

about not being sure if his gun shot, unlike his testimony at trial.

We find the trial court did not abuse its discretion in permitting the

demonstration under these circumstances. Defendant chose to take the stand in his

own defense, thereby subjecting himself to reasonable cross examination,

including questions as to what occurred at the time of the shooting. Additionally,

because defendant claims to have feared for his life and acted in self-defense when

he shot the gun four times, the sequence of events surrounding the shooting was

important and relevant to a determination of defendant’s credibility. See Gil, supra.

Defendant’s first assignment of error lacks merit.

Errors Patent

We reviewed the record for errors patent in this matter pursuant to La.

C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337, 338-39 (La. 1975); and State v.

Weiland, 556 So.2d 175, 178 (La. App. 5 Cir. 1990), and found three, discussed

herein.

(i) Sentence – Hard Labor

Defendant’s commitment sheet indicates his sentence was imposed at hard

labor, yet the hearing transcript does not reflect that the trial court imposed the

sentence “at hard labor” or that his sentence would be served with the Department

of Corrections. Generally, where there is a discrepancy between the minutes and

the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.

1983).

La. C.Cr.P. art. 879 requires a court to impose a determinate sentence. If the

applicable sentencing statute allows discretion, the failure to indicate whether the

sentence is to be served at hard labor is an impermissible indeterminate sentence.

State v. Norman, 05-794 (La. App. 5 Cir. 3/14/06), 926 So.2d 657, 661, writ

20-KA-167 25

denied, 06-1366 (La.1/12/07), 948 So.2d 145. Defendant was sentenced pursuant

to La. R.S. 14:30.1, which requires the sentence to be served at hard labor, leaving

the trial court no discretion on this component of defendant’s sentence. Thus,

although the trial court’s failure to include the language that the sentence was to be

served at hard labor is error, we find it is harmless error and corrective action is not

required. Id.; see also State v. Dennis, 12-818 (La. App. 5 Cir. 5/16/13), 118 So.3d

1166, 1174, writ denied, 13-1384 (La. 12/6/13), 129 So.3d 530.

(ii) Sentence – Statutory Restrictions

According to the sentencing hearing transcript and the sentencing minute entry, the

trial court sentenced defendant to life in prison with eligibility of parole after

thirty-five years. As previously stated, defendant was only fifteen years old at the

time of the offense.

La. R.S. 14:30.1 provides that the sentence shall be served without the

benefit of parole, probation, or suspension of sentence. In February of 2016, when

defendant was resentenced, La. R.S. 15:574.4 (E)(1)(a) provided that a person

convicted of second-degree murder committed when he was under the age of

eighteen may be eligible for parole after serving 35 years. Effective August 1,

2017, however, the Louisiana Legislature added retroactive provisions to La. R.S.

15:574.4 and La. C.Cr.P. art. 878.1, which allow juveniles convicted of murder to

obtain parole in accordance with the conditions and requirements set forth therein.

See 2017 La. Acts 2017, No. 277, § 1 & § 2; State v. Brooks, 51,917 (La. App. 2

Cir. 4/11/18), 247 So.3d 1071, 1073, writ denied, 18-705 (La. 1/14/19), 261 So.3d

785. La. R.S. 15:574.4, as amended, reduced the required time a juvenile must

serve before becoming eligible for parole from 35 years to 25 years. See State v.

Terrick, 18-102 (La. App. 5 Cir. 8/29/18), 254 So.3d 1246, 1251 n.7, writ denied,

18-532 (La. 1/14/19), 260 So.3d 1217. Effective August 1, 2019, La. R.S. 15:574.4

provides, in pertinent part:

20-KA-167 26

G. (1) Notwithstanding any provision of law to the

contrary, any person serving a sentence of life

imprisonment for a conviction of first degree murder (R.S.

14:30) or second degree murder (R.S. 14:30.1) who was

under the age of eighteen years at the time of the

commission of the offense and whose indictment for the

offense was prior to August 1, 2017, shall be eligible for

parole consideration pursuant to the provisions of this

Subsection if a judicial determination has been made that

the person is entitled to parole eligibility pursuant to Code

of Criminal Procedure Article 878.1(B) and all of the

following conditions have been met:

(a) The offender has served twenty-five years of the

sentence imposed[.]

In Terrick, supra, the defendant was a juvenile at the time of the 2001

offense and was tried as an adult on a charge of second-degree murder. This Court

affirmed the conviction and resulting sentence of life in prison without the benefit

of parole, probation, or suspension of sentence. But in 2012, the United States

Supreme Court held that the Eighth Amendment prohibition of cruel and unusual

punishment forbids a sentencing scheme that mandates life in prison without the

possibility of parole for juvenile offenders. Miller v. Alabama, 567 U.S. 460, 132

S.Ct. 2455, 2466, 183 L.Ed.2d 407 (2012). Terrick filed a motion to correct illegal

sentence requesting resentencing under Miller. The trial court resentenced

defendant to “life with the benefit of parole after serving twenty-five years”

pursuant to La. R.S. 15:574.4(G). On appeal, this Court affirmed Terrick’s resentencing.

In Brooks, supra, the defendant committed two counts of second-degree

murder at the age of seventeen, was convicted on both counts, and in 2006, was

given two concurrent life sentences without the possibility of parole. His

convictions and sentences were affirmed. On May 31, 2017, the trial court

amended Brooks’ sentences to life imprisonment with the possibility of parole

pursuant to Miller and La. R.S. 15:574.4(E), which at the time of Brooks’

20-KA-167 27

resentencing required thirty-five years to be served before consideration for parole.

This Court held that La. R.S. 15:574.4(G) (2017) “now governs retroactively” and

specified that a defendant who committed second-degree murder before turning

eighteen becomes eligible for parole consideration, if at all, after serving 25 years

of the sentence.

Pursuant to La. C.Cr.P. art. 882, an appellate court may correct an illegal

sentence at any time. When a sentencing error involves the imposition of

restrictions beyond those authorized by the legislature, the Louisiana Supreme

Court instructs appellate courts to correct the error pursuant to the authority

granted in La. C.Cr.P. art. 882. State v. Sanders, 04-17 (La. 5/14/04), 876 So.2d

42.

Defendant was fifteen when he committed second-degree murder and was

indicted before August 1, 2017. In light of Miller, Terrick, Brooks, and the current

provisions of La. R.S. 15:574.4 (G), we hereby amend defendant’s sentence to

render defendant eligible for parole after 25 years if all conditions are met pursuant

to La. R.S. 15:574.4(G). See also State v. Allen, 19-377 (La. App. 5 Cir. 4/30/20),

2020 WL 2079030 (amending defendant’s sentence to eliminate the parole

restriction on count one for the first ten years of defendant’s eighteen-year

sentence, pursuant to Article 882). We further remand to the trial court with

instructions to amend the sentencing minute entry and the Louisiana Uniform

Commitment Order (UCO) to correctly reflect the sentence as amended. Id. The

Clerk of Court for the 24th Judicial District Court is directed to transmit the UCO

to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the

Department of Corrections legal department. See State v. Long, 12-184 (La. App. 5

Cir. 12/11/12), 106 So.3d 1136, 1142.

With respect to the trial court’s failure to state that the sentence should be

served without the benefit of probation or suspension of sentence, La. R.S.

20-KA-167 28

15:301.1(A) provides that these statutory restrictions, even if not recited at

sentencing, are deemed to be contained in the sentence and are therefore statutorily

effective. State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 799. Thus, the

omission at sentencing does not require corrective action. See State v. Young, 13-

745 (La. App. 5 Cir. 4/9/14), 140 So.3d 136 n.2, writ denied, 14-1002 (La.

12/8/14), 153 So.3d 439.

(iii) Post-Conviction Relief Advisory

The transcript indicates the trial court advised defendant that he had “two

years after the sentence and judgment becomes final to file for post-conviction

relief.” The commitment indicates that the trial court advised defendant that

“he/she has thirty (30) days from today’s date to appeal this conviction, and two

(2) years after judgement of conviction and sentence has become final to seek postconviction relief.” The transcript prevails. See Lynch, supra. If a trial court fails to

advise or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, this

Court may correct this error by informing defendant of the applicable prescriptive

period for post-conviction relief in its opinion. Accordingly, we advise defendant

that no application for post-conviction relief, including applications that seek an

out-of-time appeal, shall be considered if filed more than two years after his

conviction and sentence have become final under the provisions of La. C.Cr.P. arts.

914 or 922. See State v. Oliver, 14-428 (La. App. 5 Cir. 11/25/14), 165 So.3d 970,

978, writ denied, 14-2693 (La. 10/9/15), 178 So.3d 1001.13

Defendant’s second-degree murder conviction is affirmed. Defendant’s

sentence is amended follows: Tory Clark is sentenced to life imprisonment at hard

labor in the Louisiana Department of Corrections, without the possibility of

probation or suspension of sentence. Defendant may become eligible for parole

after serving 25 years. The case is remanded to the trial court where the Clerk of

Court is directed to amend Mr. Clark’s sentencing minute entry and the Louisiana

Uniform Commitment Order (UCO) to reflect the amended sentence and to

transmit the amended UCO to the appropriate authorities.