author: WALTER J. ROTHSCHILD, Judge.

text:
    FIRST BANK AND TRUST v. Rebecca Barnett DUWELL a/k/a Rebecca A. Barnett.
    No. 10-CA-481.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 14, 2010.
    Writ Denied Feb. 11, 2011.
    Mark C. Landry, J. Michael Brown, J. Kenneth LeDoux, Patrick Orillion, Desiree Harris, Stephen Dickie, Attorneys at Law, Metairie, LA, for Plaintiff/Appellee.
    Donald Jones I.P.P., Fayetteville, GA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

lain this appeal, we review the trial court’s January 14, 2010 judgment granting the exception of no right of action filed by plaintiff, First Bank and Trust (“First Bank”), and several officers and/or employees of First Bank. Sheriff Newell Normand and Colonel Michael Cyprian joined in the exception as well. For the following reasons, we affirm.

STATEMENT OF THE CASE

On May 22, 2008, First Bank filed a Petition for Executory Process against Rebecca Duwell a/k/a Rebecca A. Barnett, asserting that First Bank is the holder and owner of a promissory note that was secured by a multiple indebtedness mortgage on immovable property owned by Ms. Duwell in Jefferson Parish. Ms. Duwell executed the promissory note and mortgage through her agent, Donald Jones, pursuant to an Act of Procuration or Power of Attorney dated March 6, 2004. In its petition, First Bank asserted that the promissory note and mortgage |swere in default, and it requested an order of exec-utory process and that a writ of seizure and sale be issued directing the Sheriff of Jefferson Parish to seize and sell the property securing the mortgage. Notice was sent to Mr. Jones, as Ms. Duwell’s agent, and the court appointed an attorney to represent Ms. Duwell, who lives in Georgia.

Ms. Duwell has not taken any action in these proceedings. However, on July 15, 2008, Mr. Jones filed a pleading in the trial court seeking to intervene in the case and asserting that he has ownership rights in the property because he loaned money to Ms. Duwell to acquire and improve the property. He also sought an order cancel-ling the sheriffs sale. On August 1, 2008, the trial court denied Mr. Jones’ requests to intervene, to set aside the sheriffs sale, and all other relief sought. On August 20, 2008, the property was sold by the Sheriff at public sale to First Bank, as the last and highest bidder.

On June 10, 2009, Mr. Jones filed a pleading entitled, “Petition for Vacating Sheriff Sale To First Bank & Trust Co. For Non-Compliance of Writ of Seizure & Sheriff Sale-Cash Payment Not Received In Accords With LA. C.C.P. Art. 2331-Notice of Sale-LA. C.C.P. Art. 2253-Writ From Clerk-LA. C.C.P. Art. 2004-Annul-ment for Vices of Substance; Preemption of Action-Sheriff Sale To Be Vacated For Non-Compliance With Louisiana Law For Court Ordered Sheriff Sale-Damages To Co-Owner & Agent For Owner Of Property-Intervention LA. C.C.P. Art. 1091-1092.” In this pleading, he named several officers and/or employees of First Bank as defendants, including Mark Landry, J. Kenneth LeDoux, J. Michael Brown, Patrick Orillion, Desiree Harris, and Stephen Dickie. He also named Sheriff Newell Normand and Colonel Michael Cyprian of the Jefferson Parish Sheriffs Office, and Jon Gegenheimer, the Jefferson Parish Clerk of Court, as defendants. In this pleading, Mr. Jones made numerous claims and |4allegations, and he argued that the Louisiana executory process law is unconstitutional. He also made several requests for relief from the trial court, including an order vacating and setting aside the sale.

In response, on December 9, 2009, First Bank and its officers and/or employees named as defendants filed exceptions of improper use of summary proceedings, no right of action, and no cause of action. These exceptions, as well as Mr. Jones’ petition, came for hearing before the trial court on January 14, 2010. After considering the exhibits introduced by First, Bank and hearing argument from counsel for First Bank and its officers and from Mr. Jones, the trial judge granted the exception of no right of action, finding that Mr. Jones was not the proper party to bring the claims raised in his pleadings. That same date, the trial judge signed a written judgment maintaining the exception of no right of actiqn and dismissing all pending motions and other pleadings filed by Mr. Jones. Mr. Jones appeals.

DISCUSSION

On appeal, Mr. Jones asserts numerous claims and allegations, including claims that the Louisiana executory process law is unconstitutional, the sheriffs sale at issue was invalid, and that his civil and constitutional rights are being violated. Although Mr. Jones raises numerous issues on appeal, many of which are unclear or indiscernible, this Court can only review and address the issue in the judgment properly before it on appeal, which is the granting of the exception of no right of action.

LSA-C.C.P. art. 681 provides:

Except as otherwise provided by law, an action can be brought only by a person having a real.and actual interest which he asserts.

The peremptory exception of no right of action tests whether the individual bringing an action has the capacity or legal interest in judicially enforcing the right [fiasserted. La. C.C.P. art. 927 A(5); 3218 Magazine, L.L.C. v. Lloyds of London, OS-727, p. S (La.App. 5 Cir. 2/25/09), 10 So.3d 242, 243. A party has an actionable right, and consequently standing, if it can be said that the party has a legally protectable and tangible stake in the litigation. LSA-C.C.P. art. 681; Washington Mut. Bank v. Monticello, 07-1018, p. 6 (La.App. 3 Cir. 2/6/08), 976 So.2d 251, 255, writ denied, 08-530 (La.4/25/08), 978 So.2d 369. An appellate court reviews an exception of no right of action de novo. Hornot v. Cardenas, 06-1341, p. 12 (La.App. 4 Cir. 10/03/07), 968 So.2d 789, 798.

In the present case, the evidence shows that Rebecca Duwell was the owner of the property at issue, not Donald Jones. Although Mr. Jones argues that he loaned money to Ms. Duwell to purchase and improve the property and thus, he had an ownership interest in the property, the evidence presented did not establish that Mr. Jones had any ownership interest in the. property or any privilege or lien on the property.

Mr. Jones further contends that he has an interest in this litigation and a right of action, because he signed the promissory note and mortgage pursuant to the Power of Attorney and he has the right to protect his name. However, without an ownership interest in the property that was seized and sold, the fact that Mr. Jones signed some of the documents at issue is insufficient to establish that he has a legally protectable and tangible stake in this litigation.

The trial judge granted the exception of no right of action because Mr. Jones did not establish an ownership interest in the property or any other legally protected right to participate in this litigation. We have reviewed the record before us de novo, along with the applicable law, and we agree with the trial court that Mr. Jones does not have standing or a right of action in this matter. Accordingly, Rwe find that the trial court judgment maintaining the exception of no right of action was correct.

DECREE

For the foregoing reasons, we affirm the trial court’s January 14, 2010 judgment maintaining the exception of no right of action.

AFFIRMED.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Jimmy Ray WHITE, Appellant.
    No. 45,704-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.
    Rehearing Denied Feb. 24, 2011.

      Jimmy Ray White, Pro Se.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Suzanne M. Owen, William J. Edwards, Sarah S. Midboe, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

| aThis criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Jimmy Ray White, was convicted of manslaughter, a violation of La. R.S. 14:31(A)(2)(a). Following a multiple offender hearing, White was adjudicated a fourth felony offender and was sentenced to imprisonment at hard labor for the remainder of his natural life without benefit of parole, probation, or suspension of sentence pursuant to La. R.S. 15:529.1. For the reasons set forth below, White’s conviction and sentence are affirmed.

Facts

Around 10:00 p.m. on December 28, 2007, Linda Swinney was driving home when her car stalled at the intersection of Linwood Avenue and Corbitt Street in Shreveport, Louisiana. Swinney activated the hazard lights and stepped out of her vehicle in order to attempt to push it out of the street. A group of young boys, including the victim, Adam Klingensmith, ^stopped to offer her help. As the boys attempted to push Swinney’s vehicle out of the roadway, a car came from behind at a quick rate of speed. One of the boys saw the car coming, tried to flag it down, and then yelled for everyone to get out of the way. The car did not stop, crashed into Swinney’s vehicle and kept going.

Initially, the boys thought that everyone had gotten out of the path of the oncoming vehicle. Although Adam could not be found, his shoes were found at the accident scene. Shreveport police officers were dispatched to the scene and confirmed that Adam could not be located. Meanwhile, a man unrelated to the accident came upon Adam’s body and instructed his friend to call for help. The police were notified that they had found the body of a white male lying face down in the roadway at Claiborne and Dowdell Streets, a little over a mile from where the accident took place. The fire department was called to the scene where Adam’s body was found, but no pulse was detected.

After investigating the accident scene at Linwood and Corbitt, as well as the location where Adam’s body was found, there was still no information concerning the identity of the driver of the vehicle that crashed into Swinney’s car. Swinney never saw the car before or after the impact and the boys could not identify the car or the driver. Bulletins were dispersed asking _]4for information from the public should anyone have knowledge of the incident.

Meanwhile, Ruthie Vailes was at the house of Rashida Kawana Chitman on the evening that these events took place. Chitman lived in the vicinity of the intersection of Linwood and Corbitt. At around 10:30 p.m. on‘December 28, 2007, Jimmy Ray White returned to Chitman’s home. He was nervous and upset and mentioned to Vailes, his sporadic girlfriend, and Chitman that he had been in a wreck on Linwood. White left Chitman’s house and went to his house, which was just around the corner.

The following morning, on December 29, 2007, Chitman heard a news broadcast requesting information related to the accident on Linwood. Chitman became suspicious and walked to Vailes’ and White’s home to tell White about what she had heard on the news. Chitman observed that White’s car was parked in the back of the house, which was not where it was normally parked. Chitman called the police, and a statement was taken from- her that implicated White as a suspect in the matter. Members of the Shreveport Police Department proceeded to White’s home where they observed in the backyard a vehicle with severe damage to the front of the car, especially the grill, the hood, and the windshield. Blood inside the car Rand all over the windshield was also observed. Vailes gave the police officers permission to enter the home, and White was arrested.

A bill of information was filed charging White with manslaughter in violation of La. R.S. 14:31(A)(2)(a). White waived arraignment and pled not guilty. After a jury trial, the jury unanimously found White guilty as charged.

Subsequently, the state filed a fourth felony habitual offender bill of information against White. A multiple offender hearing was held, but ruling on the multiple offender bill was deferred until after the sentencing hearing, at which the trial court found White to be a fourth felony offender. The trial court then imposed a mandatory sentence in accordance with La. R.S. 15:529.1, sentencing White to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. White’s motion for reconsideration of sentence was denied, and this appeal ensued.

Discussion

As stated, White was charged with Manslaughter, as defined in La. R.S. 14:31(A)(2)(a), which states, in relevant part:

A. Manslaughter is:
(2) A homicide committed, without any intent to cause death or great bodily harm.
lfi(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person ....

In this case, the state relied on felony hit- and-run as the underlying crime to support the conviction of manslaughter. Louisiana R.S. 14:100 defines the offense of hit-and-run driving and provides, in pertinent part:

A. Hit-and-run driving is the intentional failure of the driver of a vehicle involved in or causing any accident, to stop such vehicle at the scene of the accident, to give his identity, and to render reasonable aid.

Sufficiency of the Evidence

White brings two pro se assignments of error on appeal. First he argues that the evidence adduced at trial was insufficient to convict him of manslaughter. White contends that the state failed to produce evidence which proved beyond a reasonable doubt that he killed the victim while perpetrating a felony or intentional misdemeanor directly affecting the person, asserting that there was no evidence in this .case to show that he was engaged in the perpetration of either a felony or misdemeanor at the time of the accident.

The standard of appellate ■ review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential 17elements of the crime 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. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/06/09), 21 So.3d 297.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. Wfiiere there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, | snot its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/06/09), 21 So.3d 299.

Essentially, White argues that the state’s reliance on felony hit-and-run as the offense upon which the manslaughter charge is predicated is misplaced, -in that the hit-and-run occurred after the death, and thus not during the perpetration or attempted perpetration of any felony not enumerated in La. R.S. 14:30 or La. R.S. 14:30.1, or any intentional misdemeanor directly affecting the person. We disagree.

As defined above, hit-and-run driving is the intentional failure of the driver to stop, give his identity, and render reasonable aid. First, the testimony was entirely consistent that Wfliite failed to stop after hitting Swinney’s vehicle. Carl David Ferguson, Trey Cummings, and Darius Smith, Adam’s friends and the boys who helped move Swinney’s car out of the roadway, all testified that the oncoming vehicle which hit Swinney’s car (and was later determined to have been operated by White) never stopped after the collision with Swinney’s car and nobody ever returned to the scene to indicate that he had struck her vehicle. Swinney also confirmed that the car that struck her vehicle never stopped, and nobody ever returned to the accident scene to indicate having struck her vehicle.

1 3White likewise failed to reveal his" identity because he never returned to the scene of the accident. Although he told Vailes and Chitman he had been in an accident, he did not explain the true nature of the accident. White was only identified after Chitman called the police upon seeing the news story about the accident.

Finally, White failed to render reasonable aid to his victim. Adam’s body was discovered lying on the side of the road by third parties after being hit — it was those third parties who called for aid. Incidentally, we note that considering the extent of damage to White’s vehicle, it would be reasonable for the fact finder to conclude that White had to have known he hit someone — someone who would have needed assistance. From a review of the record, it is undisputed that White committed the felony of hit-and-run driving, which was a proper underlying offense for his manslaughter conviction — absolutely sufficient evidence of every element was present.

As a result of his committing a homicide while engaged in the perpetration of hit-and-run, the evidence concerning the cause of Adam’s death must also be examined to determine if it was sufficient to prove manslaughter. The state introduced numerous photographs into evidence, including photos of the smashed-in windshield of White’s vehicle, the blood-soaked interior of that same vehicle, and autopsy photographs of the |10victim’s severe injuries. Dr. Frank Peretti, the state’s forensic pathologist, testified concerning the numerous injuries sustained by the victim. He opined that head and chest injuries were the primary cause of Adam’s death, and that all of Adam’s injuries were consistent with' impact from an automobile. Dr. Peretti also collected some of Adam’s .blood for DNA testing, which was consistent with blood found in the passenger seat of the defendant’s car. DNA analysis also indicated that the blood found on White’s clothing was consistent with Adam’s DNA. Furthermore, the key to the damaged vehicle was found in the pocket of White’s overalls- that he wore when he went to bed on the night of December 28, 2007: The evidence was sufficient to prove that White committed homicide of Adam Klingensmith while engaged in the perpetration of felony hit- and-run driving, thus supporting his manslaughter conviction. This assignment of error is without merit.

Other Crimes Evidence

White also submits that the trial court erred by allowing evidence of his other crimes, acts, or wrongs, specifically, evidence and testimony concerning his possible intoxication at the time of the crime. He argues that intoxication is not an element of the crime of felony hit-and-run driving, and intoxication does not show motive, intent, or planning for the crime of hit-jand-run.n Moreover, he maintains that evidence of his intoxication only depicted him as a bad character and its effect was prejudicial to the extent that any probative value was outweighed.

Notably, prior to the taking of witness testimony, White filed a motion in limine based on the belief that the state would seek the introduction of evidence which showed that White was drinking and/or intoxicated at or near the time of the incident. The motion sought to exclude that evidence based on the assertion that it would not be relevant to the crime charged, any probative value would be outweighed by its prejudicial effect, and such evidence would constitute impermissible other crimes evidence. The trial court denied White’s motion based on the finding that the evidence was integral evidence, it was not impermissible other crimes evidence, and the probative value substantially outweighed any danger of unfair prejudice. We agree.

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a “bad person.” La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146, 148 (La.1993). This rule of exclusion stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding • his 112unrelated criminal acts. State v. Prieur, 277 So.2d 126, 128 (La.1973). However, evidence of other crimes may be admissible if the state establishes an independent and relevant reason, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1); State v. Roberson, 40,809 (La.App.2d Cir.04/19/06), 929 So.2d 789. Even when the other crimes evidence is offered for a purpose'allowed under Article 404, the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defense. The probative value of the extraneous crimes evidence must outweigh its prejudicial effect. La. C.E. art. 403; State v. Jacobs, 1999-0991 (La.05/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002); State v. Hatcher, 372 So.2d 1024, 1033 (La.1979).

A trial court’s ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Scales, 1993-2003 (La.05/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Gaston, 43,565 (La.App.2d Cir.09/24/08), 996 So.2d 480.

11sEvidence of other crimes, wrongs or acts may be introduced when it relates to conduct that forms an integral part of the act or transaction that is the subject of the present proceedings. La. C.E. art. 404(B)(1); State v. Colomb, 1998-2813 (La.10/01/99), 747 So.2d 1074; State v. Coates, 27,287 (La.App.2d Cir.09/27/95), 661 So.2d 571, writ denied, 1995-2613 (La.02/28/96), 668 So.2d 365. Such evidence of integral acts, or res gestae, is admissible under La. C.E. 404(B)(1) without requiring the state to give Prieur notice or the trial court conducting a Prieur hearing. State v. Boyd, 359 So.2d 931 (La.1978); State v. Mandosia, 36,827 (La.App.2d Cir.04/09/03), 842 So.2d 1252. The test of integral act evidence is not simply whether the state might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. State v. Colomb, supra; State v. Gaddis, 36,661 (La.App. 2d Cir.03/14/03), 839 So.2d 1258, writ denied, 2003-1275 (La.05/14/04), 872 So.2d 519, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487 (2005).

In any event, the erroneous introduction of other crimes evidence is subject to harmless error review. State v. Rober son, supra; State v. Gatti, 39,833 (La.App.2d Cir.10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.04/17/06), 926 So.2d 511.

A trial error does not provide grounds for reversal of a defendant’s conviction and sentence unless it affects substantial rights of the accused. La. C. Cr. P. art. 921; State v. Johnson, 1994-1379 (La.11/27/95), 664 So.2d 94. The test is whether there is a reasonable possibility the error might have contributed to the conviction and whether the court can declare a belief that the error is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Juniors, 2003-2425 (La.06/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). The reviewing court must find the verdict actually rendered by this jury was surely unattributable to the error. Johnson, supra.

Here, the witness testimony and physical evidence relating to White’s intoxication are minimal compared with the number of witnesses who testified at his trial and the number of exhibits introduced into evidence. Only two photographs of an empty beer can lying on the floorboard of the vehicle White was driving were introduced into evidence. Also, out of the 21 witnesses who testified at trial, only five witnesses testified regarding White’s intoxication, and one of those five witnesses testified that White |1fiwas not drinking. Neither the introduction of the two photographs of the empty beer can, nor the limited amount of witness testimony concerning defendant’s intoxication created a risk that White would be convicted of the offense of manslaughter because such evidence might have established him as a bad person, especially in light of the rest of the photographs introduced at his trial against him.

Considering the body of evidence against White supporting his conviction, we detect no error by the trial court allowing evidence of Whiteis intoxication. We agree that the testimony regarding White’s alcohol usage was properly admitted as res gestae evidence, and that the evidence explained the underlying cause of the accident and provided a motive for White’s commission of the crime of hit- and-run. Furthermore, even if the introduction of the evidence was in error, it was harmless considering the body of evidence against White. Here, the verdict is surely unattributable to any improper reference to White’s possible intoxication. This assignment of error is without merit.

Venue

In his final assignment of error, which is also pro se, White argues that the trial court erred in denying his motion for change of venue, which resulted in depriving him of his right to a fair trial by an impartial jury. He |1fiargues that the pretrial publicity, which allegedly included media coverage, direct mailings and inflammatory statements made by the assistant district attorney, prejudiced the public mind against him. White urges that the entire community knew of the incident and as a result, he was tried and; convicted in the minds of the community before he went to trial, thus he was entitled to trial in a different venue. We disagree.

Louisiana C. Cr. P. art. 622, pertaining to the grounds for change of venue, provides:

A change of venue shall be granted when .the applicant -proves that by rea7 son of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending. In deciding whether to grant a change of venue, the trial court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

A defendant is guaranteed an impartial jury and a fair trial. La. Const, art. I, § 16. To accomplish this end, the law provides for a change of venue when a defendant establishes that he will be unable to obtain an impartial jury or a fair trial at the place of original venue. La. C. Cr. P. art. 622; State v. Clark, 2002-1463 (La.06/27/03), 851 So.2d 1055, cert. denied, 540 U.S. 1190, 124 S.Ct. 1433, 158 L.Ed.2d 98 (2004). The trial court is given | I7much discretion in granting or denying a motion for change of venue. State v. Coleman, 32,906 (La.App. 2d Cir.04/05/00), 756 So.2d 1218, writ denied, 2000-1572 (La.03/23/01), 787 So.2d 1010.

Louisiana C. Cr. P. art. 622 places the burden of proof on the defendant to show that there exists such prejudice in the collective mind of the community that a fair trial is impossible. State v. Vaccaro, 411 So.2d 415 (La.1982). The defendant cannot meet this burden by merely showing that there is widespread public knowledge of the facts surrounding the crime or the defendant. Instead, “the defendant must show the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case before trial.” State v. Clark, supra, at 1057, citing State v. Frank, 1999-0553 (La.01/17/01), 803 So.2d 1. Thus, a defendant is not entitled to a jury entirely ignorant of his case and cannot prevail on a motion to change venue merely by showing a general level of public- awareness about the crime. State v. Thompson, 516 So.2d 349 (La.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988).

White filed a motion for change of venue on June 2, 2009. He argued that the pretrial publicity prejudiced the public mind against him. Specifically, he claimed that he was the subject of television commercials and direct mailings from the National Republican Congressional Committee hsin connection with a congressional race in which the former Caddo Parish District Attorney was a candidate, as well as numerous articles about Adam’s death in The Times, Shreveport’s daily newspaper. According to White, these articles included a front-page story that contained prejudicial remarks made by the assistant district attorney prosecuting the case.

On July 28, 2009, the trial court held a hearing on White’s motion, which was ultimately denied. The trial court concluded that a fair and impartial trial could be obtained in Caddo Parish. Furthermore, the trial court did not find that prejudice, influence, or any other reasons were such that they would affect the answers of the jurors on voir dire examination nor the testimony of witnesses at trial. The ruling on the motion was made with the caveat that White could re-urge its motion at the time of jury selection, and the trial court would accede to a request for individual voir dire of prospective jurors regarding any pretrial publicity, if urged by White or the state.

Jury selection began on August 24, 2009. A review of the voir dire transcript reveals that, at the outset, the state questioned each panel as to whether or not any of the venire members had heard anything about the case; a total of five potential jurors answered in the affirmative. All five venire members who indicated that they had prior knowledge of the case went |iathrough individual voir dire examinations. Both the state and defense were able to question these venire members regarding their knowledge of the case. After fully questioning the five venire members, the results were as follows: no challenges were made by the state or White as to two of the members; the state challenged one member for cause in which White joined, and the member was excused; and, White raised two challenges for cause, which were granted by the trial court and the members were excused.

Our review of the record shows that White and the state were both given full opportunity to explore each juror’s possible knowledge of the case and any preconceived opinions they may have had. Although the language of the political mailouts and the light in which those mailouts portrayed White was prejudicial, he failed to present evidence that there was prejudice in the collective mind of the community such that a fair trial would have been impossible. The limited number of venire members who had knowledge of the case were individually questioned by White and the state, and the trial court granted all three of White’s challenges for cause.

Moreover, White did not make any showing concerning the degree to which the pretrial publicity was circulated in the community at large. There was no evidence as to the number of people the mailing was sent out to, and there was no evidence regarding the circulation of the The Times article. Wej^also note that it is not at all uncommon for a criminal proceeding to receive media coverage; however, that fact alone does not mean that potential jurors have read the coverage or that they would even remember it. This assignment of error is without merit.

Conclusion

For the foregoing reasons, the conviction and sentence of Jimmy Ray White are is affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, PEATROSS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Harold Wayne JOHNSON, Appellant.
    No. 45,828-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Louisiana Appellate Project, Lafayette, LA by G. Paul Marx, for Appellant.
    Harold Wayne Johnson, pro se.
    Jerry L. Jones, District Attorney, Cynthia P. Lavespere, Josephine P. Heller, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

12Pefendant, Harold Wayne Johnson, appeals his conviction for the second degree murder of his wife, Linda Gail Johnson. For the reasons stated herein, we affirm.

FACTS

Defendant and Ms. Johnson were high school sweethearts who had a child together. The two separated and Defendant enlisted in the army. Following his discharge from the service for reasons related to substance abuse, Defendant -.and Ms. Johnson reunited in 2004 and married in 2007. They lived together in a townhome in Monroe, Louisiana, with their two grandchildren and Ms. Johnson’s young adult daughter, Kendra Barral. Defendant and Ms. Johnson had a tumultuous relationship. According to Kendra, the couple argued frequently over “money, his drug use, him ^staying out late, him just leaving and not coming home.” Until the night of Ms. Johnson’s death, the arguments had never resulted in violence. In May 2008, Defendant wrote his wife this letter:

Hey if our, relationship, marriage, or whatever, is going to be like this. Me not trusting U or U not trusting Me. Let stop f* * ⅞ ⅝ *g with each other before somebody get badly hurt one way or another.
It don’t have to be this way or that.
U for me me for U
Me for me U for U
We got in it together & 'we can get out together without the name calling, fussing, fighting, lying on each other.
Our problems should have been our problems
Every body know our business
CHILDNESS
I AM TIRED

Ms. Johnson owned a handgun that she kept in her purse, but in mid-June 2008, the gun was missing and was reported stolen. Ms.' Johnson then began to carry a baseball bat in her truck. In addition, Defendant’s drug abuse continued; he drank and used crack cocaine despite efforts by Ms. Johnson to get him to stop.

[ 4At about 10:30 p.m. on the evening of Saturday, August 2, 2008, Ms. Johnson drove her truck to pick up Kendra from work. The two women went back to the townhouse to wait for the father of one of the grandchildren, Anthony Rogers, to pick up the children. When Rogers arrived and took the children, it was late and Defendant had not yet arrived home. Ms. Johnson and her daughter left the townhouse and went searching for Defendant, but were unable to locate him. At approximately 12:15 a.m., Ms. Johnson dropped Kendra off at Kendra’s ex-boyfriend’s house and went home. Just before 2:00 a.m., Kendra and Ms. Johnson spoke on the telephone and Kendra recalled hearing Defendant’s voice in the background.

Rogers went to the townhouse sometime the next morning and discovered that Ms. Johnson was not there, which Rogers found to be highly unusual. Rogers testified that, at that time, Defendant told him that his wife had left home in the early morning hours after the two had argued.

Around 8:00 a.m., Kendra tried to call her mother at home and Defendant answered the telephone. Kendra asked to speak with her mother and Defendant replied that he had not seen her mother since 4:00 a.m. Defendant told Kendra that her mother “just got up and left.” Kendra then telephoned relatives and she and her cousin drove around town trying to find Ms. Johnson.

[¿Kendra and her cousin discovered that her mother was not at work and they returned to the townhouse. There was not anyone there at that time and Kendra noticed several unusual or out-of-place items and that the thermostat was set at 50 degrees. Kendra found a bottle of expensive tequila on a table in the living room; the tequila did not belong to her or her mother. She also found a decorative drinking glass full of liquid. Going further into the house, Kendra discovered a mop and mop bucket which still contained water. According to Kendra, her mother kept a very neat and tidy house and Kendra knew that she would not have left water in the mop bucket. Kendra went upstairs to her mother’s bedroom and discovered it in disarray. The comforter that was normally on the bed was missing, and another comforter had been put in its place; the bed skirt was also missing.

Looking for clues, Kendra pulled the bed away from the headboard. On the headboard, Kendra found a gold-colored can of Miller High Life beer and a pack of cigarettes, both of which she identified as items used by Defendant. In the clothes hamper, Kendra found clean wet towels and testified that her mother would not have put them there because wet towels are prone to mildew.

As Kendra called local hospitals trying to find her mother, Defendant arrived at the townhouse. Defendant went upstairs to the bedroom and [¿became agitated when he saw that the bed had been moved. Kendra noticed that Defendant was drinking out of the same glass that she had seen on the table downstairs. Defendant lay down on the bed and began watching television. Rogers then arrived at the townhouse and he and Defendant left together to look for Ms. Johnson. They returned without finding her and Rogers related that Defendant bought some crack while they had been looking for her. Rogers then left on his own to resume the search.

At about 3:00 p.m., Monroe Police Department (“MPD”) Officer Stephen Snowberger arrived at the townhouse in response to a call from Defendant. According to the officer, Defendant said that he and his wife had gotten into an argument at about 3:00 a.m. Defendant explained that, following the argument, Ms. Johnson left in her pickup truck and he had not heard from her since that time. The officer noted that Defendant was drinking and also could smell that he was barbecuing outside. The officer returned to the station and entered the missing person report.

That afternoon, the family was notified by police that Ms. Johnson’s pickup truck had been found on the University of Louisiana at Monroe (“ULM”) campus in the parking lot of a dormitory, which was not far from the townhouse. The truck was-simultaneously discovered by Rogers and a Monroe police officer. Ms. Johnson’s purse was found in the truck along 17with her baseball bat; no gun was found in her purse or elsewhere in the truck.

At that point, Kendra decided to move the bed to look for further clues. Defendant had been interfering with earlier efforts to do this; each time a family member would go to that room, Defendant would sit or lie on the bed. Some family members, however, were able to distract Defendant while others lifted the mattress. Kendra was not in the room when the mattress was moved, but she came in the bedroom when she heard screaming and saw a sizable bloodstain between the mattress and box spring where the bloody mattress had been • flipped over. Blood spatter was also later found on the bedroom wall, television, picture frames and bible, which was placed on top of the television. When Defendant heard the screaming and realized that the blood had been discovered, he ran out the back door of the townhouse and fled.

Police and the family searched the area and Defendant was discovered in an abandoned house not far from the townhouse. A search of a nearby dumpster yielded a black trash bag containing the blood-soaked linens that had been on Ms. Johnson’s bed. Various items of men’s and women’s clothing — belonging to Defendant and to Ms. Johnson — were also recovered.

|SMPD transported Defendant to the police station and Defendant gave a statement to Detective Benjamin Baw, in which he admitted to the detective that he and his wife had argued at about 2:00 a.m., and he stated “that’s when I hit her.” At that point, Defendant stopped the interview.

Examination of the Ms. Johnson’s bedroom revealed that bleach had been used to clean one of the walls. Two lines of visible blood on the wall were characterized as “castoff’ blood spatter, meaning blood that is flung from a swinging weapon. Similarly, police found blood in the bed of the victim’s pickup truck.

Shortly after his arrest, Defendant made a phone call from the jail to his sister, Billie White. Calls from the jail, are recorded ; and, in the call, Defendant told his sister that “she hit me and I just snapped.... I hit her. I grabbed something and hit.” He said that he used a bottle to hit his wife. He also told his sister where he had left the body, and he acknowledged that “I don’t think I’ll be getting back out [of jail].” Police searched the location mentioned by Defendant, but found nothing. They then realized that Defendant had mistaken the name of the road and, relying on the description of the road by Defendant, they searched another area and found Ms. Johnson’s partially decomposed body.

liiDuring his time in jail, Defendant spoke with Rogers, who was also in jail at that time. - Rogers testified that Defendant admitted that he used a Seagram’s Gin bottle to kill his wife. Rogers further stated that “he said they just got into an argument and she went to her purse and he hit her across the — you know, and kept hitting her.”

As stated, Defendant was charged with second degree murder and was tried by a jury. During jury selection, Defendant’s attorney exercised five peremptory challenges against female prospective jurors on the first panel of prospective jurors and only accepted two female jurors. The prosecutor raised a reverse-Batson challenge, arguing that Defendant was not allowed to discriminate against female jurors. The court noted the high percentage of excluded females compared with accepted females and found that the prosecutor had made a prima, facie showing of discrimination. Defendant’s attorney then proffered reasons for excluding the jurors:

— Williams: Could not give adequate consideration to a manslaughter verdict;
— Day: not elaborate answers, not wholeheartedly behind her responses concerning burden of proof, right to remain silent, marriage, no connection;
— Harbor: unsolved murder of her aunt;
— Billiot: marriage and evidence against the accused, exposure to pretrial publicity;
lm— Ramsey — “attentive on answer,” recollection about the crime, concern about marriage to victim, shaky on burden of proof.

The prosecutor responded with a variety of arguments directed at the reasons offered by Defendant. The court later considered the arguments on the record. The court accepted Defendant’s reasons for jurors Billiot, Harbor and Day, but rejected his reasons for jurors Ramsey and Williams and ordered those jurors reseated over Defendant’s objection.

Subsequently, the trial court restored the two peremptory challenges to Defendant and rejected a subsequent Batson challenge by the prosecutor when Defendant used one of these strikes against a female juror. Defendant ultimately exercised all of his peremptory challenges.

After the parties questioned the third panel of jurors, the State exercised back-strike peremptory challenges against jurors Ramsey and Williams, the jurors who had been reseated pursuant to the prosecutor’s gender-discrimination challenge. These jurors were excused and did not sit on the jury.

The State presented the evidence as outlined above. In his defense, Defendant elected to testify and explained the long history of his relationship with his wife back to their high school days. Defendant described his problems with drug addiction. He further testified that he had an extramarital lnrelationship with another woman, Pat Lloyd, and that his wife knew about that relationship. Defendant further stated that his wife and mistress had engaged in a physical altercation. Defendant admitted that he and his. wife argued regularly about various things, such as money and raising their grandchildren.

Defendant further testified that, on the morning of this incident, he had just returned home from the store and he and his wife had gotten into an argument about his whereabouts on the previous night. He stated that his wife had assumed that he was at his mistress’s house. He testified:

And what brought this incident on — we fussing and arguing and she talking about Pat got AIDS and things like that. I don’t know why you messing around with this-she got AIDS and things. And I said, Gail, you know what. Guess what. If she got AIDS, guess who else got AIDS. See what I’m getting at? ... Guess who else got AIDS. And boy that-that struck a nerve. And then, that’s when she. — -I got something for your— and — all this stuff and she reached for her — reached for her purse and that’s when I hit her with the bottle.
... After I hit her with the bottle the first time, the blood, man, I kind of ... kind of lost it.... After that — after that was done, I went in and got the rest of the bottle drinking and what — what I done did? What — I can’t say these words but what the — going on. What the-look what I done got myself into and things like that. Then I start, oh shit. Let me — -shoot, I got to do something here. That’s when I start moving the body. That’s why I moved the body because I thought about them kids, man. After I done — -after I dropped the body off, I came — I washed out the truck. Came and parked the truck and I came home |12and start cleaning up. I couldn’t let them kids — I wasn’t going-— I couldn’t see them kids — didn’t want them kids to come up in there and see— see all that blood. All that blood.

Defendant admitted that he hit his wife first on the hand and she screamed; he then conceded that, at that point, he could have stopped hitting her “if I had been thinking, yes. I probably could - have stopped. But I was — I was — I was out of it by then. During that time,... Rage. Anger. Rage. Yes.”

Examination of Ms. Johnson’s body revealed a blunt injury to her right hand that the medical examiner described as a defensive wound; this was evidently the first injury. Forensic examination showed that Defendant then hit her repeatedly — at least five blows — on'the head and face with a bottle. The resulting injuries were severe and any one. of them would have caused her death; one of these traumas crushed Ms. Johnson’s skull and left a four-inch deep indentation.

Defendant also testified that, after killing his wife, he removed the bed linens, flipped the mattress over and then wiped down the room. He said that he then .had a drink, made some telephone calls asking people if they had seen his wife and began barbecuing in the back yard. Defendant explained that he was not trying to hide evidence from the police, but that he “was in the process of cleaning up really for them kids.”

|1sBy a 10-2 vote, the jury convicted Defendant of second degree murder. The court imposed the mandatory life sentence. This appeal ensued.

DISCUSSION

Assignment of Error No. 1: (verbatim) The verdict of Second Degree Murder in this case is not supported by the evidence, which is insufficient to rebut the defendant’s claim of Manslaughter. The defendant established provocation by constant arguing which troubled his relationship with the victim and combined a substance -abuse illness he had, set -the stage for a tragic homicide. The victim followed the defendant up and down the stairs and then, hit him and warned him “I’ve got something for you,” reached for a handbag in a threatening manner.

In his first assignment of error, Defendant argues that the evidence was insufficient to 'support the jury’s verdict of second degree murder. He asserts that the evidence showed that the homicide was committed in the heat of blood that deprived him of cool reflection. For this reason, he submits that 'the killing was manslaughter rather than second degree murder.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 U.S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, unit denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, unit denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence |1Rmust be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, unit denied, 07-2053 (La.3/7/08), 977 So.2d 896.

Manslaughter is defined, in relevant part, as a “homicide which would be first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31 A(l); State v. Quiambao, 36,587 (La.App.2d Cir.12/11/02), 833 So.2d 1103, unit denied, 03-0477 (La.5/16/03), 843 So.2d 1130.

A defendant is required to prove by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” for a verdict of manslaughter to be appropriate. State v. Robinson, 32,794 (La.App.2d Cir.3/1/00), 754 So.2d 311, unit denied, 00-0989 (La.3/23/01), 787 So.2d 1008.

“Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the | ^homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986).

In reviewing a defendant’s claim that he met that burden, the appellate court must determine' whether a rational trier of fact, upon reviewing the evidence in the light most favorable to the prosecution, could have found that these mitigating factors had not been established by a preponderance of the evidence. State v. Robinson, supra; State v. Lewis, 28,973 (La.App.2d Cir.12/11/96), 685 So.2d 1130, writ denied, 97-0122 (La.5/16/97), 693 So.2d 797.

In the case sub judice, Defendant is the sole living witness to the killing. Since Defendant chose to testify, the jury heard his version of the offense in detail. Defendant explained that he and his wife had a habit of arguing and, on the night of her death, his wife was enraged at Defendant because he had suggested that either he or his wife might have AIDS because Defendant’s mistress had ÁIDS. Defendant also told the jury that he struck his wife‘because he saw her reaching for her purse, implying that she might have been reaching for a weapon, although no weapon was found.

The evidence failed to prove that Defendant acted under provocation sufficient to deprive him of cool reflection; indeed, the evidence showed that Defendant, not the victim, was the provocateur. Even accepting Defendant’s 117version of events as true in its entirety — which the jury clearly did not do — his story was insufficient to reduce his culpability for this brutal crime from murder to manslaughter. Defendant, not his wife, had violated the trust of their marriage and had committed adultery with another woman; his extramarital relationship had apparently been ongoing for some period of time. Further, Defendant, by his own admission, knew that his mistress had AIDS, and he, not his wife, made that point in the argument preceding the homicide. Defendant, not his wife, was the party who was goading and antagonizing the other party to the argument. Simply stated, Defendant offered no evidence that his wife had made any statements to provoke his rage.

Moreover, Defendant went to great lengths to cover up any evidence of the crime, even going so far as to report to the police that his wife was missing, hiding her body and cleaning up the scene of the killing. Defendant’s hasty but thorough cleaning job after the crime shows that he had control of himself immediately following his killing of his wife and suggests that whatever provocation he may have been under was not great in degree. Also, Defendant fled from the scene when the crime was discovered and told several different versions of the events to various people.

| lsFinally, we are struck by the brutal nature of the killing. Ms. Johnson’s right hand had a traumatic injury that the medical examiner described as a defensive injury, and this was apparently the first injury she suffered. Significantly, Defendant admitted that he could have stopped hitting his wife at that point, but he said that he was “angry” and in a “rage,” so he continued to beat her until she was dead. The jury apparently concluded that whatever provocation Defendant was acting under evaporated when he continued his assault after he had incapacitated his wife with his first attack.

Based on the physical evidence, the testimony of those closest to the parties and Defendant’s own testimony, we conclude that the jury was well within its discretion to reject Defendant’s argument that his conviction should have been one of manslaughter rather than second degree murder.

This assignment of error is without merit.’

Assignment of Error No. 2: (verbatim) The record does not include voir dire. The minutes reflect a Batson challenge urged by the State and granted against the defense on gender bias claims, and the minutes make reference to details by indicating as follows “(see record).” Defendant therefore cannot secure assistance of Counsel on Appeal regarding jury selection and this Court should order the record be supplemented to include it.
Supplemental Assignment .of Error No. 5: (verbatim) The trial court erred in granting the Prosecutor’s Reverse Bat-son Challenges. The only factor cited to create a prima facie issue was-the number of peremptory challenges used on female, prospects. The court determined that three of five prospects were validly excused, and the court erroneously held that reasons on the others 119were not “gender neutral.” The defense was prejudiced by the timing of the jurors being re-seated, and the prosecution" did not resolve that prejudice by excluding them at the end of jury selection.

When the appellate record lodged in this Court on July 1, 2010, the record did not include a transcript of voir dire. Defendant’s counsel filed his second assignment of error concomitantly with his brief on July 26, 2010. In response, the prosecutor filed a motion to supplement the record with that transcript. On August 11, 2010, this Court granted that motion and further granted Defendant an additional 40 days to file a supplemental brief. On August 30, 2010, the record was supplemented with the transcript of voir dire; a copy of the supplement was provided to Defendant to assist him in preparing any pro se brief he might choose to file. Through counsel, Defendant filed his supplemental assignment on September 20, 2010.

On appeal, Defendant argues that the trial court erred, and that he was prejudiced, by the reseating of jurors Ramsey and Williams until they were excused peremptorily by the State. Defendant argues that:

By the time these two jurors came back, the entire jury was selected, and the defense had been prejudiced by having to temper the exercise of challenges without the two peremptories it used on them, only to have them restored after the rest of the panels were seated. The defense therefore ceded control of the selection process to the State through the court’s reseating of these two jurors, and left to the state whether the defense could actually excuse these two jurors.

12nThe State argues that Defendant suffered- no prejudice from any error the court may have made because Defendant was not deprived of peremptory challenges and because the two prospective jurors in question were removed and did not serve on the petit jury.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the state may not exercise a peremptory challenge to exclude a prospective juror on the basis of race. Like the state, the defendant is prohibited from using race as a basis for peremptory challenges. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); State v. Knox, 609 So.2d 803 (La.1992). Batson has been extended to other “suspect classifications,” such as gender. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

La. C. Cr. P. art. 795 provides, in part:

C. No peremptory challenge made by the state or the defendant shall be based solely upon the race or gender of the juror. If an objection is made that the state or defense has excluded a juror solely.on the basis of race or gender, and a prima facie case supporting that objection is made by the objecting party, the court .may demand a satisfactory race or gender neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.
J21D. The court shall allow to stand each peremptory challenge exercised for a race or gender neutral reason either apparent from the examination or disclosed by counsel when required by the court. The provisions of Paragraph C and this Paragraph shall not apply when both the state and the defense have exercised a challenge against the same juror.
E. The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral or gender neutral reason is given. Those jurors who have been peremptorily challenged and for whom no satisfactory racially neutral or gender neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge.

A reviewing court owes the district judge’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. State v. Breaux, 45,676 (La.App.2d Cir.11/3/10), 55 So.3d 806, 2010 WL 4336103.

The record of voir dire and subsequent argument shows that the trial court carefully considered the challenges at issue in light of the jurors’ responses and demeanor and made a reasonable choice to deny Defendant the right to excuse jurors Ramsey and Williams. Further, the court opted to allow Defendant to re-exercise these two challenges against other jurors; and, finally, these jurors did not serve on the jury. Defendant was notj^deprived of a peremptory challenge, erroneously or otherwise; therefore, none of his substantial rights were violated by the trial court’s handling of voir dire. La. C. Cr. P. Article. 921. Accordingly, this assignment of error is without merit.

Assignment of Error. No. 3: (verbatim) The Trial Court erred when it declined to grant a Mistrial in the wake of the District Attorney’s claim in oral argument that “this is the worst homicide case I’ve ever seen.”

In this assignment of error, Defendant argues that his conviction should be reversed because of a comment made by the prosecutor during rebuttal closing argument. The prosecutor stated:

You know who needs justice? That woman who had the eyes eaten out of her head by the maggots. That’s who needs justice. That shouldn’t take long, folks. Don’t y’all give a present for what he did. Y’all give him what he deserves. We hadn’t set'in this courthouse proving what he did, the most heinous crime I’ve ever seen, you’ve ever seen ...

At that point, defense counsel objected and a sidebar conference was held. When argument resumed, the prosecutor said:

Don’t let my bad taste influence your decision. Convict him. Give him life without parole.

After the jury retired to deliberate, the defense put the basis for the objection on the record:

I thought I heard him say that it is the most heinous crime that I have saw, him being the DA’s office. And in my IgjOpinion, that is a personal comment on the particular record that is—is prohibited.

The prosecutor explained that he was entitled to give his opinion about how he felt about the evidence, but not about the guilt of the accused. The court considered the statement, noted that Defendant had also used the word “heinous” in argument and then observed on the record that, since the remark, the jury had come back and asked to have the definitions of the crime and responsive verdicts read again. The judge concluded that the prosecutor’s remark, even if improper, was not prejudicial to Defendant and denied Defendant’s request for a mistrial.

On appeal, Defendant argues that the remark was a prohibited reference to 1 ^matters outside the evidence and so requires reversal. La. C. Cr. P. art. 774 provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
| jjsThe state’s rebuttal shall be confined to answering the argument of the defendant.

Although resort to personal experience goes beyond the proper scope of a closing argument, before a case will be reversed on this basis it must be shown that the remarks influenced the jury and contributed to the verdict. State v. Minnifield, 475 So.2d 108 (La.App. 2d Cir.1985).

The prosecutor’s initial reference to the heinousness of this offense was a resort to personal experience because he said this was the most heinous crime that he had ever seen, but he quickly corrected himself to say that it was the most heinous crime that “you’ve” ever seen. This was not a comment designed to imply that the prosecutor had knowledge of evidence against Defendant that was not presented in court. The comment was a passionate argument that the evidence showed that Defendant knew that his actions were wrong and that he was not deprived of cool reflection by the actions of the victim. Indeed, the evidence showed that this was a shocking, brutal and heinous ■ crime—Defendant bludgeoned his wife to death by crushing her skull and disposed of the body in a roadside ditch. Due to the nature of the evidence, we find no possibility that the prosecutor’s limited reference to personal experience contributed to the verdict. This assignment of error is without merit.

| Assignment of Error No. 4: (verbatim) The verdict in this case violates the United States Constitution, because it was a 10 to 2 verdict. The Bill of Rights is applicable to the States by virtue of the 14th Amendment, and a non-unanimous verdict therefore should be unconstitutional. Further, the non-unanimous verdict is illogical and arbitrary, since the very fact that two persons declined to convict demonstrates there was no “proof beyond a reasonable doubt.”

This assignment of error alleges that the nonunanimous verdict is violative of Defendant’s due process rights. This is a claim that has been raised numerous times recently and this Court has rejected each claim. As this Court stated in State v. Blow, 45,415 (La.App.2d Cir.8/11/10), 46 So.3d 735:

La. Const. Art. I, § 17, provides that a case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of 12 persons, 10 of whom must concur to render a verdict. Almost identically, La. C. Cr. P. art'. 782 provides that cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of 12 jurors, 10 of whom must concur to render a verdict. Nonunanimous jury verdicts have consistently been upheld by the courts. Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738.
The verdicts and sentences meet all constitutional and statutory requirements.

Accordingly, this assignment of error is without merit.

CONCLUSION

127For the foregoing reasons, the conviction and sentence of Defendant, Harold Wayne Johnson, are affirmed.

AFFIRMED.

      . Large signs next to the phone inform the user that the calls are monitored and recorded.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Notably, defense counsel, in closing argument, had stated, "The most heinous crime where you have taken the life of another human being, why should we sit here and listen? Because the law requires it.”


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Kenneth Dewayne PALMER, Appellant.
    No. 45,627-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Washington & Wells, Shreveport, LA by Alex J. Washington, for Appellant.
    Charles R. Scott, II, District Attorney, Suzanne M. Owen, Laura O. Wingate, Jacob P. Broussard, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS and MOORE, JJ.
   STEWART, J.

|2The defendant, Kenneth Palmer, was convicted of second degree murder and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals, asserting two assignments of error. For the reasons set forth below, we affirm Palmer’s conviction and sentence.

FACTS

On October 19, 2007, Palmer shot and killed Brandon Robertson. Palmer’s theory of the case was that he shot Robertson in self-defense. The following evidence was adduced at Palmer’s jury trial.

Robertson, along with his girlfriend, Felicia Taylor, and their child, lived in the Canaan Village apartment complex in Shreveport: Robertson sometimes, sold items, including illegal drugs, out of his apartment. On the day of the shooting, Robertson had some friends at his apartment, including Shelton Banks. Taylor had. left the apartment to run an errand. Banks testified that Palmer had come to Robertson’s apartment that evening to buy lasóme ecstasy pills, but when he arrived, Robertson was on the phone. Banks and another of Robertson’s friends at the apartment, Timothy Goodwin, saw Palmer approach Robertson and become agitated when Robertson would not get off the phone and speak with him. Goodwin related that Palmer, also known as “Fat Man,” demanded that Robertson “get off the phone” and “deal with me.” Goodwin said that the defendant then called Robertson an obscene name.

Robertson took offense to Palmer’s conduct and punched him. The two men then commenced fighting. During the struggle, Banks took possession of two handguns that were lying on a table in the room in order to prevent Robertson and Palmer from having access to the weapons. Robertson was known by Banks and Goodwin to carry a gun for protection of himself and his family. The guns belonged to his girlfriend.

When the fistfight eventually ended, Banks heard Palmer tell Robertson, “I’m fixing to go get my strap,” referring to his own firearm. Goodwin also heard Palmer say he was going to go get his “heat.” Banks stated that Robertson replied “why it got to be like that between us because we supposed to be boys,” or friends. According to Banks, Robertson hugged Palmer, kissed him on the cheek, and gave him four free ecstasy pills, saying “this wasn’t supposed to be for us,” meaning that the two of them shouldn’t 14be fighting. Goodwin said that Robertson was basically apologetic. He testified that Robertson said:

I’m sorry I lost my temper. I shouldn’t have hit you. Please, you know, hit me back. Let’s just squash it right now. Let’s not take it outside. Let’s leave it here. Let’s just call a truce.

Goodwin then explained that Robertson offered to give Palmer some extra ecstasy pills and was very adamant about “not taking it outside.”

Banks said that the defendant still appeared to be angry and left. Banks said that he then left the apartment with Robertson, so that the two could go to Banks’ home to retrieve some clothes. Some time later, they returned to Robertson’s apartment. Palmer was standing outside Robertson’s apartment along with two other men. The men stood outside and talked, and Banks reported that they all smoked marijuana and drank alcohol. Banks said that they were all having a “normal conversation” and that “it was like [the fight] was over with. That’s what it seemed like to me.”

Banks and Robertson then went back to Robertson’s apartment to get ready to go out to a club for Robertson’s birthday party. By this time, Robertson’s girlfriend had returned. Robertson told her of the fight that had taken place earlier that day. Palmer had left his hat in Robertson’s apartment, so Banks took it to Palmer’s girlfriend’s apartment, which was | Balso in the Canaan Village complex, and then returned to Robertson’s apartment.

After getting dressed for going out, Banks went outside and again saw Palmer leaning up against a wall nearby. When Banks approached him, he told Banks “Man, tell cuz I want to get another pill.” Palmer gave Banks $10 in cash, and Banks went back into Robertson’s apartment and gave the money to Robertson. Banks reported that he then went back outside to talk to Palmer and wait for Robertson. Robertson’s girlfriend, who was not going to the party due to her work schedule, watched Robertson get ready. She testified that she did not see that Robertson had a gun.

Banks talked with Palmer for a few minutes. Banks said that Robertson then came outside, turned his back to Banks and the defendant to lock the apartment door, and then turned around to face them. In responses to questioning from defense counsel, Banks said:

Q: And it is your statement you didn’t see a gun in his [Robertson’s] hand?
A: No.
Q: Do you know where his gun was?
A: It was in his waist.
Q: Did you ever see him pull the gun?
JfiA: No.

Banks explained that he knew that Robertson kept his gun at his waist, but testified that he did not see it when Robertson was coming out of the apartment. Banks testified that as Robertson turned away from the door toward them, in “about a split second,” Palmer drew a handgun and, without saying anything, shot Robertson twice. One bullet hit Robertson in the side of his neck; the other bullet hit him in the back. Banks saw the impact of the first round and saw blood coming from the wound.

Banks ran upon hearing the gunshots, and Palmer then began shooting at Banks, hitting him four times. He, and some bystanders, called 911. Palmer did not flee the scene; instead, he stood over Robertson. Robertson’s girlfriend ran outside and saw Palmer, with a gun in his hand, standing over Robertson. She said to Palmer, “You didn’t have to do that ... he wasn’t going to hurt you.” She said that Palmer looked at her and said “he said, ‘He was going to shoot me.’ ”

Paramedics and police arrived quickly. Shreveport Police Department (“SPD”) Officer Kevin Duck was first to arrive. He found Robertson dead on the ground and found Banks on the ground nearby, screaming for help. When paramedics arrived, they turned Robertson’s body over and discovered a handgun in Robertson’s left hand. This was the gun that Ivbelonged to Robertson’s girlfriend; she explained that Robertson typically carried the gun inside his waistband at the front of his pants. Officer Duck saw Palmer near Robertson’s body. Duck described Palmer as “very calm and collect[ed] and was really staring at me at one particular time.” He said that Palmer “didn’t really show any kind of feeling.” Palmer spoke to the officer and admitted that he had shot Robertson. Duck stated:

He said that it was stemmed over drugs, over ecstasy earlier that day, and that Brandon Robertson while they were standing out in the hallway walking towards him and he saw that he had a gun, and then Mr. Palmer pulled out his and shot both of them.

SPD Sergeant P.R. Scroggins also spoke to Palmer at the scene. He said that Palmer looked “worried” and admitted that he was the shooter.

Palmer was arrested after his admission. A revolver was recovered from him. All six rounds in the recovered gun had been fired. The gun recovered from Robertson’s body was a semiautomatic pistol. This weapon had a full magazine but an empty chamber, which showed that the gun had not been fired.

After he was arrested, Palmer made a statement to the police, which was tape recorded. Prior to trial, the state filed a notice of intent to use his statements against him. After a pretrial hearing, the trial court ruled that the state could offer the statements into evidence because they were freely and [¿voluntarily given, with the understanding that the state edit out the defendant’s remarks referring to his prior arrests. However, the state did not offer the recorded statement during its case in chief. During the defendant’s presentation of evidence, the state made a motion in limine. The defendant intended to call as a witness, Detective Gordon, the police officer who took the defendant’s recorded statement at the police station, and play the recording of the statement to the jury. The state’s motion sought to prevent the playing of the recording. The court granted the motion in limine and prevented the defendant from playing the recording unless the defendant agreed to take the stand and testify, which the defendant chose not to do. Detective Robert Gordon did testify that he took a statement from the defendant, but he did not provide details of the substance of the statement. The defendant did not make a proffer of the statement.

The jury convicted the defendant of second degree murder. The defendant filed a motion for new trial, urging that the jury should not have heard the evidence of a crime committed against Banks (i.e., that the defendant shot him four times) and that the jury should have been able to hear the defendant’s statement to police. The defendant also filed a motion for post-verdict judgment of acquittal. The trial court denied both motions and then sentenced the' defendant to the mandatory life-without-parole term Rfor second degree murder. Palmer now appeals. After the record was lodged, he filed two motions to supplement the record with material relevant to his motion for new trial. This court denied the second motion asking for a transcript of Palmer’s recorded statement to police because that material was not proffered in the trial court.

LAW AND DISCUSSION

Sufficiency of the Evidence

In the defendant’s second assignment of error, the defendant argues that the evidence was insufficient to convict him of second degree murder. He contends that the evidence failed to show beyond a reasonable doubt that he did not act in self-defense when he shot and killed Brandon Robertson.

When issues are raised on appeal' both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. This standard, now legislatively embodied 'in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or. in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State ex rel. D.P.B., 02-1742 (La.05/20/03), 846 So.2d 753; State v. Garner, 39,731 (La.App.2d Cir.9/8/05), 913 So.2d 874, writ denied, 2005-2567 (La.5/26/06), 930 So.2d 19; State v. Gaddis, 36,661 (La.App. 2d Cir.03/14/03), 839 So.2d 1258, writ denied, 03-1275 (La.05/14/04), 872 So.2d 519, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487 (2005). A homicide is justifiable when committed in self-defense by one who reasonably believes he is in imminent danger of losing his life or receiving great bodily harm and 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. La. R.S. 14:21.

When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense 'or in defense of others. State v. Matthews, 464 So.2d 298 (La.1985).

Evidence of a person’s character or a trait of his character, such a moral quality, is generally inadmissible for the purpose of proving that he acted in conformity therewith on a particular occasion. La. C.E. art. 404(A). An exception is a homicide case where the defendant claims self-defense 11Rand at issue is whether the deceased was the aggressor and the defendant’s state of mind. In such a case, evidence of the victim’s dangerous character or threats against the accused is relevant because it tends to show the victim was the aggressor and the defendant’s apprehension of danger was reasonable. State v. Washington, 30,043 (La.App.2d Cir.1/23/98), 706 So.2d 203.

As a condition of admissibility, the defendant must produce evidence that at the time of the incident, the victim made a hostile demonstration or committed an overt act against the defendant. The term “overt act” as used in connection with prosecutions where self-defense is asserted means any act of the victim which manifests to the mind of a reasonable person a present intention on the part of the victim to kill or to do great bodily harm. State v. Edwards, 420 So.2d 663 (La.1982); State v. Lee, 331 So.2d 455, 458-459 (La.1976); State v. Carter, 550 So.2d 805 (La.App. 2 Cir.1989); State v. Hardeman, 467 So.2d 1163 (La.App. 2 Cir.1985). The overt act must be directed at the accused at the time of the incident. State v. Jones, 451 So.2d 1181 (La.App. 1st Cir.1984). Once appreciable evidence of an overt act or hostile demonstration is established, evidence of threats and of the victim’s dangerous character is admissible for two distinct purposes: (1) to show the defendant’s reasonable apprehension of danger which would justify his ^conduct; and, (2) to help determine who was the aggressor in the conflict. State v. Edwards, supra.

In this case, the evidence clearly proved beyond a reasonable doubt that The defendant did not act in self-defense when he shot the victim. The witness who saw the shooting, Banks, testified that the physical altercation between the victim and the defendant had ended long prior to the shooting. Banks’s testimony was echoed by Goodwin, who also stated that the fight ended prior to the shooting. Although Robertson was carrying a gun when he left the apartment, Banks testified that he did not see the gun when Robertson came out of the door, and, more importantly, that the defendant shot Robertson “a split second” after Robertson locked the door and started to turn around. Banks did not see Robertson make any aggressive movement toward the defendant, and in fact thought that the defendant was going to accompany them to a party downtown.

Through photos, diagrams, and the witnesses’ testimony, the jury was made aware of the relative positions of Robertson, the defendant, and Banks at the time of the shooting. The jury also heard Banks testify that he saw the impact of the first round and saw blood coming from Robertson’s face and neck. The jury was informed that Robertson had his gun in his hand whén the paramedics arrived and turned him over, and that the defendant did not |14flee from the scene after the shooting.' The jury chose to credit Banks’s testimony that Robertson was not making an-aggressive move toward the defendant, nor was he visibly armed, when the defendant shot him. Moreover, the res gestae evidence showed that the defendant shot Banks four times in the back as he ran away, further showing that the defendant was not -shooting at Robertson because he was acting in self-defense.

. The record on appeal does not show that the jury’s decision to credit Banks’s testimony was erroneous. Through that testimony, the. state presented sufficient evidence to prove beyond a reasonable doubt that the defendant was not acting in self-defense. Accordingly, this assignment of error is without merit.

Motion in Limine

In the defendant’s first assignment of error, he urges that the trial court erroneously granted the state’s motion in limine, which prevented him from introducing into evidence his recorded statement made to Detective Gordon at the police station. He contends that his statements to officers at the scene of the incident and his recorded statement at the police station should be considered as a unit rather than separate statements and that he was entitled to have the entirety of the statements placed before the jury under La. R.S. |1K15:450. He further argues that his recorded statement was not hearsay because, per La. C.E. art. 801(D)(2), it was effectively offered against him.

La. R.S. 15:450 states:

Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.
La. C.E. art. 801(D)(2) states:
D. Statements which are not hearsay. A statement is not hearsay if:
(2) Personal, adoptive, and authorized admissions. The statement is offered against a party and is:
(a) His own statement, in either his individual or a representative capacity;
(b) A statement of which he has manifested his adoption or belief in its truth; or
(c) A statement made by a person authorized by him to make a statement concerning the subject.

In this case, the defendant attempted to offer his recorded statement, which presumably included some exculpatory information, into evidence without subjecting himself to cross-examination. He argues that the trial court erred in denying him the opportunity to play his recorded statement for the jury without concomitantly obligating the defendant to testify.

| lfiGenerally, any out-of-court statement of the accused constitutes hearsay unless subject to an exception. Such statement is admissible as an exception to the hearsay rule when it is an admission against interest. Thus, the defendant may not introduce his own self-serving exculpatory statements because they are hearsay. State v. Taylor, 31,227 (La.App. 2 Cir. 10/28/98), 720 So.2d 447, citing State v. Freeman, 521 So.2d 783 (La.App. 2 Cir.1988), writ denied 538 So.2d 586 (La.1989).

In this case, the defendant intended to offer his statement through the testimony of a police detective. Since he intended to offer his own statement in his defense, in no way could his use of the statement be construed as evidence “offered against him” for purposes of La. C.E. art. 801(D)(2). Therefore, the statement was plainly hearsay, and thus inadmissible unless subject to an exception.

In State v. Freeman, supra, this court concluded that a statement by the defendant made to police an hour and a half after an offense was a separate and distinct statement from a statement made at the scene of the crime, and so the second statement was inadmissible. Similarly in the instant case, the state did not edit the defendant’s inculpatory statement made to police at the scene, nor did it attempt to offer an impermissibly edited version of the recorded statement, which are acts which could have violated |17the rule of La. R.S. 15:450. The defendant’s inculpatory statements to police at the scene were distinct from his subsequent recorded statement that was made at the police station approximately a hour and a half later.

On the record before this court, the defendant has not shown error in the trial court’s ruling, which was the correct application of a long-understood principle, of law. The defendant’s arguments are without merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed in all respects.

AFFIRMED.