author: ROLAND L. BELSOME, Judge. TOBIAS, J.,

text:
    STATE of Louisiana v. Dejean PIERCE, Tyronne Stevenson.
    No. 2012-KA-0879.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State Of Louisiana.
    Mary Constance Hanes, New Orleans, LA, for Defendant/Appellant, Dejean Pierce.
    Holli Herrle-Castillo, Marrero, LA, for Defendant/Appellant, Tyronne Stevenson.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

|,The defendants appeal their joint convictions of second degree murder and attempted second degree murder. For the following reasons, we vacate the defendants’ convictions and sentences, and remand for further proceedings.

STATEMENT OF THE CASE

The defendants, Dejean Pierce and Tyr-onne Stevenson, were jointly charged by grand jury indictment with one count of second degree murder, a violation of La. R.S. 14:80.1, and one count of attempted second degree murder, a violation of La. R.S. 14:(27)30.1. Both defendants pleaded not guilty at their arraignment. The trial court denied defendants’ motions to suppress the evidence and identification. After a joint trial by a twelve-person jury, both defendants were found guilty as charged on each count. Their post-trial motions were denied, and the defendants each stated that they were ready for sentencing. On their respective convictions for second degree murder, the trial court sentenced each defendant to life imprisonment at hard labor, without benefit of parole, probation, or suspension of|2sentence. Additionally, they received concurrent fifty-year sentences for their attempted second degree murder convictions. This timely appeal followed.

FACTS

On May 17, 2009, Jerrold Smith and Qian Sabatier, who were dating, went to the “Bus Stop” bar at Hickory and Leonidas Streets, in New Orleans. The defendants, Dejean Pierce and Tyronne Stevenson, later entered the bar with their faces partially covered, armed with an AK 47 and 9 mm handgun. They opened fire, firing approximately thirty shots. Qian Sabatier sustained fatal gunshot wounds. Jerrold Smith was injured; but, he survived the attack.

Two days after the shooting, Smith was released from the hospital, and taken to police headquarters. At that time, he named “Duke” and “DJ” as the individuals who had shot him and Qian Sabatier. He later identified both of the defendants in a photographic lineup.

ERRORS PATENT

A review of the record reveals no errors patent on the face of the record.

DISCUSSION

In their respective assignments of error, both defendants assert that the evidence was insufficient to support their convictions. They argue that the State ^failed to prove the identity of the shooters, as it did not negate the reasonable probability of misidentification.

When reviewing the sufficiency of the evidence to support a conviction, this court is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which dictates that to affirm a conviction “the appellate court must determine that the evidence, 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 had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

|4In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79 (citation omitted). Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293 (citation omitted). “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992) (citation omitted).

A fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Where rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all evidence most favorable to the prosecution must be adopted on review. Only irrational decisions to convict by the trier of fact will be overturned. State v. Winston, 11-1342, pp. 8 (La.App. 4 Cir. 9/12/12), 100 So.3d 332, 337 (citations omitted).

When the identity of the defendant as the perpetrator is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden under Jackson v. Virginia, supra. State v. Galle, p. 31 (La.App. 4 Cir. 2/13/13), 107 So.3d 916, 935; State v. Everett, 11-714, p. 15 (La.App. 4 Cir. 6/13/12), 96 So.3d 605, 619, writs denied, 12-1593, 12-1610 (La.2/8/13), 108 So.3d 77.

|sThe defendants focus on the lack of physical evidence linking them to the crime. They further attack the credibility of Jerrold Smith, the surviving victim and primary witness. They contend that his version of the events was inconsistent and unbelievable.

Admittedly, there was no physical evidence definitively linking either defendant to the shootings. However, in his initial statement identifying the defendants as shooters, Smith told Detective Catherine Beckett of the New Orleans Police Department that “DJ” (Pierce) was wearing a black Dickies shirt at the time of the shooting; and, a black Dickies shirt was subsequently found during a search of Pierce’s bedroom.

At trial, Smith testified that Pierce was armed with a 9mm handgun with an extended magazine. Eighteen 9mm spent cartridge casings were found at the crime scene, and according to what Detective Beckett said, an extended 9mm caliber magazine was found in the drawer of a nightstand in Pierce’s bedroom.

Smith further testified that his son told him that the defendants, “DJ” and “Duke,” were “going to get him;” yet, he admitted that he did not pay attention to the defendants when they walked into the bar with their faces obscured, and turned his back to them before the shooting. While Smith testified that he had a “semi-beef’ with defendants, he also said that he recently had seen them after a funeral Rand they had only given each other “hard stares.” Smith also testified that he felt protected because he was armed — however false that sense of security may have been.

Additionally, Detective Beckett testified that after Tyronne “Duke” Stevenson’s arrest, she read him his rights, he said nothing, and refused to sign the rights-of-arrestee form. When she asked him if he wanted to make a statement, he said he had not done anything and asked her what she wanted to know. In Stevenson’s presence, Detective Beckett indicated to a Detective Pardo that there were video recordings from the bar, something she admitted was not true. At that point, Stevenson looked up at her and began laughing. He pulled his T-shirt up over his nose, continued to laugh, and said: “You go [sic] video? You got video? Man, just take me to jail.” Stevenson’s response to Detective Beckett’s interrogation also tends to support the accuracy of Smith’s identifications.

The jury clearly credited Jerrold Smith’s testimony identifying the defendants as the gunmen. Given Smith’s testimony and identification of the defendants together with the evidence taken from Pierce’s home and Stevenson’s response to Detective Beckett’s interrogation, a rational trier of fact could have found beyond a reasonable doubt that defendants Pierce and Stevenson killed Qian Sabatier and wounded Jerrold Smith, while having the specific intent to kill or to inflict great bodily harm upon each victim. Therefore, we find there was sufficient evidence to support the defendants’ convictions.

|7Next, both defendants contend that the trial court erred in granting the State’s reverse-Batson challenge, and reseating juror, Cindy Ehrlicher, who was removed on a peremptory strike by Stevenson., We agree.

The Louisiana Supreme Court addressed Batson challenges in State v. Nelson, 10-1724, pp. 7-9 (La.3/13/12), 85 So.3d 21, 27-29 (footnotes omitted), stating:

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 use of peremptory challenges to exclude persons from a jury based on their race violates the Equal Protection Clause. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712. The holding in Batson was initially adopted by this Court in State v. Collier, 553 So.2d 815 (La.1989), and has been codified by the legislature in Louisiana Code of Criminal Procedure article 795(C) and (D). While Batson discussed a prosecutor’s use of peremptory challenges, its holding is equally applicable to criminal defendants. See, Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992). The Court in McCollum specifically held “the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges.” 505 U.S. at 59, 112 S.Ct. 2348. Further, in State v. Knox, this Court considered whether the State may successfully object during voir dire to a minority defendant’s alleged racially discriminatory exercise of peremptory challenges. 609 So.2d 803 (La.1992). We applied McCollum to hold that the State may invoke Batson where a black criminal defendant exercises peremptory | ^challenges against white prospective jurors. Id. at 806. An accusation by the State that defense counsel has engaged in such discriminatory conduct has come to be known as a “reverse-Batson ” challenge. The Court in Batson outlined a three-step test for determining whether a peremptory challenge was based on race. Under Batson and its progeny, the opponent of a peremptory strike must first establish a prima facie case of purposeful discrimination. Second, if a prima facie showing is made, the burden shifts to the proponent of the strike to articulate a race-neutral explanation for the challenge. Third, the trial court then must determine if the opponent of the strike has carried the ultimate burden of proving purposeful discrimination. Batson, 476 U.S. at 94-98, 106 S.Ct. 1712. See also, State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443, 448.

Batson Step One

In the instant case, the State made a reverse-Batson challenge after Stevenson struck Ehrlicher. Ehrlicher was the eighth white juror to be stricken. Thus, the challenge was based on the number of strikes to white jurors. The trial court found that the State made a prima facie showing of racial discrimination, and Stevenson offered race-neutral reasons for his strikes. Since Stevenson offered reasons explaining the use of peremptory challenges, the correctness of the trial court’s finding of a prima facie case of discrimination is moot. See Nelson, 10-1724 at p. 10, 85 So.3d at 29.

Batson Steps Two and Three

Thus, the analysis proceeds to a review of the trial court’s actions pursuant to step two and three of Batson. In the instant revers e-Batson case, step two involved defendant Stevenson presenting race-neutral reasons for his peremptory | challenges made up until the point of the State’s revers e-Batson objection, to rebut the prima-facie showing of intentional racial discrimination. Batson, 476 U.S. at 97, 106 S.Ct. 1712; Nelson, 10-1724, p. 11, 85 So.3d at 30. The reasons do not have to be persuasive, or even plausible, for at the second step of the Batson inquiry the issue is the facial validity of the striking party’s explanation. Nelson, supra (citation omitted). Unless a discriminatory intent is inherent in the striking party’s explanation, the reason offered will be deemed race-neutral. Id.

When offering race-neutral reasons for the stricken jurors, Stevenson mistakenly asserted that Ehrlicher had stated that her father had been murdered and that her husband had been abducted at gunpoint. At that time, both the State and the trial court asserted that that had been another juror, not Ehrlicher. Pierce then indicated that Stevenson was “one off,” and that Ehrlicher was the victim of a car theft. The State agreed, stating: “Stolen car.” After Stevenson offered race-neutral reasons for the remaining jurors, the trial court stated that it did not find all of Stevenson’s answers “acceptable.” It further explained that Ehrlicher would be reseated on the jury. Stevenson then argued that she was the victim of a stolen car and the instant crime was a “victim crime.” The trial court responded: “She’s now on the jury. I don’t find your race-neutral reason to be grounds to cut her. I find that to be a violation of Bat-son.” In the same challenge conference, Stevenson requested to “revisit” the issue of now-reseated juror Ehrlicher, and the trial court granted that request, with no objection from the State. At that time, he explained |10that she had voted for the defendant in a civil matter, which was “the same thing as voting for the State in a criminal matter.” The trial court indicated that Ehrlicher was still on the jury, and both defendants objected.

In Nelson, which is heavily relied upon by Pierce, the Supreme Court noted that the burden in providing a facially neutral reason under the Batson analysis was one of “production and not one of persuasion” and cautioned against combining steps two and three of the Batson analysis. Nelson, 10-1724, pp. 14-15, 85 So.3d at 32. Where the trial court requires a superficially race-neutral and gender-neutral reason to be at least minimally persuasive during the second step of the Batson analysis, the trial court impermissi-bly shifts the burden of proof from the party challenging the use of peremptory strikes. Id., 10-1724, p. 16, 85 So.3d at 32. Of course, once the opposing party has presented facially neutral reasons for exercising his peremptory challenges, “an issue of fact is joined, and the trial court must assess the weight and credibility of the explanation in order to determine whether there was purposeful discrimination in the use of the challenge.” State v. Collier, 553 So.2d 815, 820 (La.1989) (citation omitted). In so doing, the trial court must conclude that the opposing party’s reasons are both neutral and reasonable and not pretextual. Id., 553 So.2d at 821 (citation omitted).

Ultimately, the Nelson Court concluded that the trial court erred in granting the state’s “reverse-Batson ” motion. More specifically, it found that “[although |nnone of the proffered reasons appears to inherently violate equal protection, the court nonetheless rejected nine of them for no specific reason. In rejecting defendants’ proffered race-neutral reasons, the trial court reasoned that defendants failed to rebut the State’s prima facie case of discrimination, essentially finding the defendants’ reasons not persuasive enough.” Nelson, 10-1724, p. 16, 85 So.3d at 32-38. Accordingly, it found that the trial court improperly shifted the burden of proof to the defendant when it rejected the defendant’s race-neutral reasons “without conducting an analysis of any of the considerations indicative of purposeful discrimination.” Id. See also State v. Bourque, 12-1358, p. 7 (La.App. 3 Cir. 6/5/13), 114 So.3d 642, 648 (where the court held that the trial court imper-missibly shifted burden of proof to defendant, at second stage of inquiry into State’s revers e-Batson claim, by rejecting as nonpersuasive defendant’s proffered race-neutral justifications for exercise of peremptory challenges against white males, without requiring State to prove purposeful discrimination).

Likewise, our review of the record reflects that the Stevenson’s proffered reasons for exercising his peremptory challenges were facially race-neutral. Challenges that a prospective juror has been a victim of crime, and as to the nature of one’s vote in a civil trial have been recognized as valid, race-neutral reasons for defeating a Batson claim. State v. Jacobs, 09-1304, pp. 6, 12-13 (La.4/5/10), 32 So.3d 227, 232, 235. Thus, when the trial court rejected those reasons without requiring the state to prove purposeful discrimination, it impermissibly shifted the 112burden of proof to Stevenson. Therefore, we find that the trial court erred in granting the State’s reverse-Batson challenge.

Though the State argues this error is harmless, it implicates a constitutional right guaranteed to the defendant by the State of Louisiana; thus, a harmless error analysis is inappropriate. An accused has a constitutionally guaranteed right to peremptorily challenge jurors. La. Const. art. I, § 17. See also, Nelson, 10-1724, p. 23, 85 So.3d at 37; State v. Lewis, 12-1021, p. 13 (La.3/19/13), 112 So.3d 796, 803; State v. Thompson, 495 So.2d 328, 330 (La.App. 4 Cir.1986); and State v. Seals, 09-1089 (La.App. 5 Cir. 12/29/11), 83 So.3d 285, 315, writ denied, 12-293 (La.10/26/12), 99 So.3d 53, and cert. denied, _ U.S. _, 133 S.Ct. 2796, 186 L.Ed.2d 863 (U.S.2013).

The rationale of State v. Hills, 241 La. 345, 129 So.2d 12 (1960), still provides excellent guidance as to the scope of voir dire examination:
... The intelligent exercise of the right of rejection, by use of ... peremptory challenges, is the meat of the privilegef.]

17 La. Civ. L. Treatise, Criminal Jury Instructions § 8:4 (3d ed.).

Here, the trial court erroneously refused to accept the race-neutral reasons offered by Stevenson, depriving him of his state constitutional right to reject her by way of peremptory challenge. This pretrial error “is a structural one, affecting the framework within which the trial proceeded,” requiring reversal. State v. Bourque, 12-1358, p. 8 (La.App. 3 Cir. 6/5/13), 114 So.3d 642, 649. Compare: Lewis. 12-1021, p. 796, 112 So.3d at 799 (where the Supreme Court distinguished the constitutional right to peremptory challenges and the statutory right to backstrike, finding that the right to use a peremptory challenge to backstrike a provisionally accepted juror implicates a statutory right not guaranteed by the constitution; therefore, it is subject to the harmless error analysis).

In Nelson, the trial court improperly merged steps two and three during a reverse-Batson challenge. Id., 10-1724, p. 16, 85 So.3d at 32. The Supreme Court vacated the defendants’ convictions and sentences due to the trial court’s faulty application of Batson, as well as its error in formulating a remedy for the alleged violation, which included a deprivation of their peremptory challenges. Id., 10-1724, pp. 16-17, 25, 85 So.3d at 32-33, 38-39. Significantly, two Justices wrote separately to explain that the holding on the reverse-Batson issue was reversible error; thus any discussion regarding the validity of the trial court’s remedy was dicta. Id., 10-1724, p. 25, 85 So.3d at 39 (Victory, J., concurring in the result)(Guidry, J., concurring in part, dissenting in part). Likewise, in the instant case, the trial court’s ruling on the reverse-Raison challenges was reversible error.

\ DECREE

Consequently, we vacate both of the defendants’ convictions and sentences and remand the matter to the trial court for further proceedings. Having found merit with the defendants’ assertions of error regarding the State’s reverse-Batson challenge, we pretermit their remaining assignments of error.

REVERSED AND REMANDED.

TOBIAS, J., concurs.

TOBIAS, J.,

concurs.

hi respectfully concur in the majority’s decision that holds that the evidence was sufficient to convict the defendants. However, I write separately to address why, in this case, I find that a reversal and remand is necessary under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

I read the evidence in this case as a bit stronger than the majority. Accordingly, I restate the facts as follows:

/.

The defendants Dejean Pierce and Tyr-onne Stevenson were convicted of the 17 May 2009 second degree murder of Qian Sabatier (“Qian”) and the attempted second degree murder of Jerrold Smith (“Jerrold”).

Testimony of Cindy Woods

New Orleans Police Department (“NOPD”) Assistant Police Communications 911 supervisor Cindy Woods identified an audio recording of a 911 call under NOPD item # E-21968-09, and a written incident recall reflecting that call and incident. The audio recording was played for the jury. Ms. Woods confirmed on cross examination that no description of the perpetrators was mentioned in the 911 call.

| ^Testimony of Catherine Beckett

NOPD Detective Catherine Beckett was assigned to the homicide division on 17 May 2009. She investigated a shooting on that date at the “Bus Stop” bar at 8540 Hickory Street in New Orleans. Detective Beckett identified photographs of the scene, where she found an almost completely unresponsive female on the floor of the bar and a male, both having sustained multiple gunshot wounds. Numerous spent cartridge casings were on the ground, approximately thirty-AK47 casings and seventeen-9 mm casings. Because the male victim was in so much pain, the only thing she was able to learn from him was his name, before he was taken away by EMS. She also identified a Heckler & Koch .45 caliber semi-automatic handgun found in the bar that had blood stains on its grip. Detective Beckett instructed the crime scene technician to collect a sample of that blood. Nine to eleven witnesses were in the bar.

She learned from one witness, Jacqueline Washington, that two black males had been the perpetrators. The witness believed the perpetrators had something covering their faces. The witness told Detective Beckett that when she went to assist the male victim he took a weapon from his pocket and handed it to her, and she placed it on a shelf in the kitchen. The detective noticed that Ms. Washington had a blood stain on her hand, and so she instructed the crime scene technician to take a blood sample from that stain. Detective Beckett testified that seven bullets and nine bullet fragments were recovered from the female victim, Qian’s, body during an autopsy. She identified those items in evidence.

Detective Beckett interviewed shooting victim Jerrold at police headquarters on 19 May 2009; Detective Nathan McGee was also present. Jerrold came directly from the hospital, where he had been since being shot. Detective Beckett presented Jerrold a rights-of-arrestee form, advising him of his rights and that he was under investigation for being a felon in possession of a firearm and for | -¡possession of a firearm in an alcoholic beverage outlet. Jerrold waived his rights and gave a statement admitting that he had the .45 caliber handgun in his pocket at the time he was shot because he had been told by family members that his life was in danger. He stated that “DJ” and “Duke” shot him and killed Qian. He described “Duke” as short, wearing his hair in short twists, and wearing a white T-shirt. He said “Duke” had been armed with the AK47. Jerrold described “DJ” as taller than “Duke,” wearing his hair in a longer (than “Duke’s”) dreadlock style, and wearing black Dickies pants and a black Dickies shirt. He said “DJ” was armed with a 9 mm firearm with a very long extended magazine.

The detective described how Detective McGee prepared a photo lineup containing a photo of the defendant, Dejean “DJ” Pierce. He also determined that “Duke” was the defendant, Tyronne Stevenson. Detective Beckett prepared a lineup containing defendant Stevenson’s photo. Jerrold identified each defendant as one of the two shooters in the respective lineups containing their photos.

Detective Beckett further explained that she was in the process of securing arrest warrants for the two defendants and search warrants for their residences when she was contacted by Detective McGee— who had left the office and was in the neighborhood where defendant Stevenson resided. Detective McGee informed her that he had observed defendant Stevenson standing outside in that neighborhood. Detective McGee arrested Mr. Stevenson at that time, thus circumventing the need for Detective Beckett to execute an arrest warrant and search warrant at the same time when it might have been possible to locate the guns involved in the crimes in Mr. Stevenson’s residence. A SWAT team executed search and arrest warrants at the residence of Dejean Pierce. A Desert Eagle .40 caliber semi-automatic handgun was recovered underneath a mattress in defendant Pierce’s bedroom, as well as what Detective Beckett described as an extended 9 mm caliber magazine, which was found inside the drawer of a Rnightstand in that room. Detective Becket replied in the negative when asked whether the 9 mm caliber magazine fit the .40 caliber handgun recovered. Also recovered from Mr. Pierce’s room was a black Dickies shirt matching the description given by Jerrold of the shirt worn by the “DJ.”

Detective Beckett also testified that they obtained a search warrant for a Dodge Charger automobile. Inside of it they found a handwritten letter and a temporary vehicle registration. The detective also identified two cell phone bills and a hospital bill addressed to Dejean Pierce, 9003 Nelson Street, the bills having been recovered from the same bedroom where the other evidence was recovered.

The detective identified a rights-of-ar-restee form she presented to defendant Stevenson, dated 19 May 2009 at 10:40 p.m., which he refused to sign. She testified that when she read Mr. Stevenson his rights, he said nothing. When she asked him if he wanted to make a statement, he said he had not done anything and asked the detective what she wanted to know. Detective Beckett said she indicated to a Detective Pardo (in Mr. Stevenson’s presence) that there were video recordings from the bar. She admitted this was untrue. However, she testified that at that point Mr. Stevenson looked up at her and began laughing. He pulled his T-shirt up over his nose, continued to laugh, and said: “You go [sic] video? You got video?” He then said, “Man, just take me to jail.”

Detective Beckett confirmed on cross examination by counsel for defendant Stevenson that the victims were alive when she arrived on scene shortly after the initial dispatch call went out. She stated that she filled out the request form to have some of the items of evidence tested, such as the recovered spent cartridge casings, spent bullets, and bullet fragments. She did not recall whether these items were tested. However, she later replied that counsel for defendant Stevenson was correct when he asked: “So — and just so I’m clear, there were no prints on the Rspent casings, right?” She also testified in response to a question by that same defense counsel that “fingerprints are unobtainable from a spent casing.”

Detective Beckett did not submit samples of blood located in various parts of the bar for testing. A cell phone was recovered, but its ownership was never determined. She confirmed that, while Jerrold screamed out in pain at the scene, he never screamed out anything like “Duke’ shot me,” “Tyronne shot me,” “DJ’ shot me” or “Dejean shot me.” Detective Beckett confirmed that there were from eight to twelve people in the bar at the time of the shootings. It was learned from witnesses that each shooter had something concealing part of his face during the attack. Neither defendant was identified for police that night at the scene. When Detective Hamilton went to the hospital he learned that Qian had expired, and he learned from Jerrold that two individuals shot him. Detective Beckett confirmed that at that time Jerrold did not identify either of those persons as “Duke” or “DJ,” and not identify the shooters by their nicknames until 19 May 2009, after he was released from the hospital.

Detective Beckett further confirmed on cross examination that when Jerrold was released from the hospital, she instructed the Second Police District to have Jerrold transported to the homicide unit, where he was advised of his rights relative to his being under investigation for possession of a firearm by a convicted felon and possession of a firearm in an alcoholic beverage outlet. It was at this time, 19 May 2009, that Jerrold first identified the shooters as “DJ” and “Duke.” Detective Beckett confirmed that Jerrold was not arrested, although he admitted to possessing the .45 caliber handgun in the Bus Stop bar. Jerrold was later arrested on the gun charges, but they were refused by the District Attorney’s Office. The detective also confirmed that she had made arrangements to have Jerrold placed in a “safe house” in connection with the District Attorney’s Office’s witness protection program.

| nThe detective also confirmed on cross examination that no fingerprint evidence connecting defendant Stevenson to any of the spent cartridge casings was found at the scene. She said Jerrold told her he had not been drinking at the time of the shooting and she did not ask him whether he had been using any drugs that evening. She did not know the content of any toxicology tests on Jerrold’s blood from when he was treated for the gunshots at the hospital. Detective Beckett testified that the shooters were essentially directly in front of everyone in the bar, given that it was a very small bar. Other than Ms. Washington, no one gave a description of the alleged perpetrators because, Detective Beckett testified, they were so terrified they did not want to talk. She said all they kept saying was that they saw big guns and hit the ground. She subsequently contacted witnesses to have them come to her office and view the photo lineups, but they were not willing to do so.

Detective Beckett confirmed on further cross examination that when Mr. Pierce was arrested at his residence by SWAT team members, he did not resist. The detective confirmed that the black Dickies shirt seized from defendant Pierce’s bedroom was never tested for gunshot residue. Nothing of evidentiary value was recovered during a search of the Dodge Charger belonging to Mr. Pierce.

On redirect examination, Detective Beckett testified Jerrold reported that “DJ” had a bandana covering part of his face that fell down at some point and that “Duke” had a white T-shirt pulled up that also fell down. She replied in the negative when asked whether Jerrold had sought any consideration concerning possible firearms violations committed by him in exchange for information as to the perpetrators of the shootings.

Testimony of Kenneth Leary

Retired NOPD Officer Kenneth Leary was qualified by stipulation as an expert in the field of “the identification and comparison of ballistics.” Officer |7Leary worked in the firearms examination unit from 1989 until 2010, and had dusted objects for fingerprints prior to then, from 1984 to 1989. He testified that the .40 caliber Desert Eagle handgun recovered from Mr. Pierce’s residence had no connection to the ballistics evidence recovered from the crime scene and the body of Qian. He testified that he had never recovered a fingerprint from a fired/spent cartridge casing. He explained that the chances of a fingerprint remaining on a cartridge casing after the explosion that is the firing of a gun were “not that great.” Officer Leary also testified on cross examination concerning gunshot residue. He stated that during the firing of a gun different chemical compounds in the gases coming out of the firearm could be transferred to the victim’s clothing (if the victim is close enough), to the shooter’s hand, or to the shooter’s clothing if the firearm is positioned close enough to the shooter’s body. He confirmed that every time the firearm is discharged the potential exists for gunshot residue to be expelled from the weapon. He confirmed that a test exists to determine whether gunshot residue is present on a person’s clothing, and that such a test could be done in the NOPD Crime Lab.

Testimony of Tarez Cook

New Orleans Police Officer Tarez Cook, who worked with the NOPD Crime Lab, processed the crime scene and wrote a report. He identified evidence collected at the scene and photographs he took thereat.

Testimony of Samantha Huber

Dr. Samantha Huber, qualified by stipulation as an expert in forensic pathology, performed an autopsy on Qian. The victim sustained twenty-two gunshot wounds, multiple abrasions from bullet fragments hitting her body, and minor blunt force injuries. All but two of the bullet wounds were received from the back, and all of them traveled at a downward angle from top to bottom. Fourteen of them were perforating or through-and-through wounds. Some of the | ¡¡wounds, around the hips and legs, suggested that she was most likely in a sitting position, with her legs at a ninety-degree angle to her body. The most serious gunshot wound was one that perforated her aorta, which caused her death from blood loss. Dr. Huber collected fifteen projectiles from Qian’s body. She found no evidence that would lead her to conclude that Qian had been used as a human shield.

Testimony of Jerrold Smith

Jerrold testified that he used to live in the “Pigeon Town” neighborhood of New Orleans, where he grew up. The corner of Hickory and Leonidas Streets is in that neighborhood. Jerrold was thirty-one years old at the time of trial. He had previously been convicted of possession of cocaine with intent to distribute and distribution of heroin. He replied in the negative when asked whether he was still in “that life.” He explained that he had a sixteen-year old son whom he did want to follow down the road he had been. He stated that his own father had been killed in 2008 at Hickory and Leonidas Streets, across the street from where he had been shot at the Bus Stop bar.

Jerrold testified that on 17 May 2009, he and Qian, whom he used to date, went to the Bus Stop bar. He was eating with his back turned to the door, while Qian had gone to play video poker. He identified the .45 caliber Heckler & Koch handgun he had in his possession that evening. He saw “Duke” and “DJ” enter the bar, but did not think anything of it and turned back around. He subsequently heard shots and started to turn around but was shot before he could do so. Jerrold testified that he, “Duke,” and “DJ” previously had what he characterized as a “semi-beef.” However, he said he had seen them a week or so earlier and they had just given each other hard stares. He said the first shot hit him in his back and did not see who fired that shot. When asked who was shooting, he said it was “Duke” and “DJ.” He said that on that evening “DJ” had his hair in dreadlocks and was | gearing all black, with a t-shirt and a handkerchief. “Duke” had a white t-shirt over his face and was armed with an “AK” rifle.

Jerrold said he went to the floor, the only place he said he could go. He estimated about thirty shots had been fired at him and Qian. He was shot in the back, twice in the head, in his elbow, under his left foot, and had bullet fragments in his knee. The bullet that struck him in his back was still lodged in him, and one bullet that struck him in the head still remained behind his ear. When the shooting stopped and “Duke” and “DJ” left, he stated he was still holding onto to Qian’s hand. She was spitting up blood. He did not fire any shots, although he had the gun for protection. An officer on the scene asked Jerrold if the shootings had anything to do with his father, and he told the officer “no.”

Jerrold stated that he was transported from the crime scene to the hospital, where he remained for two days. When he left the hospital he was transported by NOPD officers to police headquarters, where he was advised of his rights. He admitted that he was in possession of crack cocaine on the day of the shooting and had been selling it, and that he also had smoked marijuana that day. He answered all the questions asked of him by the police. He did not ask for a deal or offer them a deal in exchange for his cooperation.

Jerrold identified the two respective photographic lineups in which he identified the defendants. He also identified them in court as the individuals who shot Qian and him.

He admitted on cross examination that on 14 November 2009, he was arrested in Baton Rouge for theft of goods, resisting an officer, and possession of marijuana. He admitted that he pleaded guilty to those charges. He also admitted to pleading guilty relative to a May 2010 charge of criminal damage to property and felony theft. He maintained that he thought he only had the two drug convictions, as he had testified to on direct examination. Jerrold confirmed, as he |10had on direct examination, that he acquired the handgun he was carrying the evening of the shootings in exchange for crack cocaine. He admitted that the prosecutor had informed him that his post-shooting hospital toxicology tests had been positive for cocaine and marijuana. He admitted that he had cocaine in his mouth when he was inside the bar, but did not know whether he spit that cocaine out or had swallowed it.

Jerrold testified that the lights were dim inside the Bus Stop bar that night. He recognized “Duke” and “DJ” the moment they entered the bar, emphasizing that he knew them. He admitted that, although he was eventually arrested for possessing the gun in the bar as a convicted felon (he turned himself in), he was released without having to post a bond. It was unclear to him if he was arrested on both possession of a firearm by a convicted felon and possession of a firearm in an alcoholic beverage outlet. He was shown a document reflecting that a May 2009 charge of being a convicted felon in possession of a firearm was refused by the district attorney on 3 November 2009. Jerrold said he had been unaware the charge had been refused, and that he believed it was still pending. He indicated he had not really been concerned about having a pending gun charge. He denied that he was lying so he would not go back to jail for being a felon in possession of a firearm or possessing a firearm in an alcoholic beverage outlet. Jerrold confirmed that his son told him that “Duke” and “DJ” were going to kill him, yet he still saw them enter the bar and had turned back around before the shooting.

II.

In the case at bar, the defendants/appellants raise a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) issue. They contend that the peremptorily-challenged juror, Cindy Ehrlicher, was improperly seated on the jury over the defense’s objection.

| ¶ T Peremptory challenges are required in criminal cases under our state constitution. La. Const. art. I, § 17. Federal constitutional law does not recognize a right to peremptory challenges, such being a matter of state law. See Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009). Most states do provide peremptory challenges in some form. Id, citing Frazier v. United, States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948).

Under Batson and its progeny, it is (a) not only the right of the accused to have the juror of his choosing who has been removed improperly, but (b) also the right of the juror to serve. See Batson, 476 U.S. at 87, 91, 106 S.Ct. 1712. Because the trial judge placed Ms. Ehrlicher on the jury panel, the latter is not an issue.

Louisiana courts have not directly addressed the question of whether a harmless error, La.C.Cr.P. art. 921, analysis is applicable to a Batson challenge. Other courts around the country have applied a harmless error analysis to a Batson challenge under certain circumstances.

In Rivera, supra, the United States Supreme Court addressed this issue and approved of the harmless error analysis applied by the Illinois Supreme Court after the trial court denied the defendant’s use of a peremptory challenge, believing that the defense was discriminating against a particular prospective juror. Dissatisfied with the proffered reasons given by defense counsel for challenging the prospective juror, the trial court denied the challenge and the juror was seated. The defendant was found guilty of first degree murder.

The case was eventually heard by the Illinois Supreme Court. That court rejected the defendant’s ultimate argument that the improper seating of the juror ranked as reversible error without a showing of prejudice. Citing the United States 1 ^Supreme Court’s guiding decisions, the Illinois court observed that “the Constitution does not confer a right to peremptory challenges.” Id., 556 U.S. at 155, 129 S.Ct. 1446. Accordingly, the Illinois court held that the denial of Rivera’s peremptory challenge did not qualify as a structural error requiring automatic reversal. The court saw no indication that Rivera had been “tried before a biased jury, or even one biased juror.” Id. [emphasis by the court]. In that regard, the court stressed that Rivera did “not suggest that Gomez [the juror in dispute] was subject to recu-sal for cause.” Id.

The Illinois court, relying on both federal and state precedents, proceeded to consider whether it was “clear beyond a reasonable doubt that a rational jury would have found [Rivera] guilty absent the error.” Id. After reviewing the trial record, the court concluded that: “Gomez’s presence on the jury did not prejudice Rivera because any rational trier of fact would have found [Rivera] guilty of murder on the evidence adduced at trial.’ ”

Because Ms. Ehrlicher served on the jury and voted with the eleven other jurors for conviction of the appellants in their unanimous twelve-to-zero verdicts, I do not agree that a reversal is automatically required. Under Louisiana law, a ten to two verdict would have been enough to convict these defendants. La.C.Cr.P. art. 782. Instead, I would first consider whether it was clear beyond a reasonable doubt that a rational jury would have found these defendants guilty absent the error. This requires that we review in detail the trial record in order to ascertain whether the error is harmless or not. See State v. Hearold, 603 So.2d 731 (La.1992). In light of the law regarding Batson challenges, we can only properly address the Batson issues if we do so in pan materia -with the appellants’ 113arguments regarding the sufficiency of the evidence. The Batson arguments may be harmless if the evidence overwhelmingly supports the verdicts of guilt and/or no rational jury would have returned a verdict of not guilty. That is, the harmless error must be so beyond a reasonable doubt. As the Louisiana Supreme Court recently stated:

Nevertheless, a trial error does not provide grounds for reversal of a defendant’s conviction and sentence unless it affects substantial rights of the accused. See La.C.Cr.P. art. 921; State v. Johnson, 94-1379, pp. 16-17 (La.11/27/95), 664 So.2d 94, 101-02. 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, 22-23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967); State v. Green, 493 So.2d 1178, 1185 (La.1986). The reviewing court must find the verdict actually rendered by this jury was surely unattributable to the error. Johnson, 94-1379 at 18, 664 So.2d at 101-02; Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)....

State v. Magee, 11-0574, pp. 45-46 (La.9/28/12), 103 So.3d 285, 318; see also State v. Nelson, 10-1724 (La.3/13/12), 85 So.3d 21.

III.

From my reading of the cold record, I would have found the defendants guilty as charged beyond a reasonable doubt. However, I cannot say (because of the credibility issues and the failure of eyewitnesses, save Jerrold, to testify) that Ms. Ehrlicher may have convinced three or more of her fellow jurors, who may have been leaning to acquittal, to vote for conviction of the defendants. Therefore, I respectfully concur.

      . The first names of the victims are spelled as they are in the indictment — "Qian” and "Jerrold.” However, they are spelled “Keyone” and "Gerald” in the trial transcript. In this opinion, we will use the spellings as they appear in the indictment.

      . He was shot in the back, twice in the head, in his elbow, under his left foot, and had bullet fragments in his knee. The bullet that struck him in his back was still lodged in him, and one bullet that struck him in the head was still lodged behind his ear.

      . When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55 (citation omitted).

      . The defendants also argue that Mr. Smith, a convicted felon and admitted drug dealer, fingered them as the shooters and testified against them to avoid being prosecuted on firearms charges. Although the charges against Mr. Smith were dropped before the instant trial, Mr. Smith testified that he never made an agreement in exchange for his testimony, and he believed that the charges were still pending.

      . Detective Beckett confirmed that this magazine did not fit the .40 caliber Desert Eagle handgun that also was found in under a mattress in defendant Pierce's bedroom.

      . Though Pierce did not object to the trial court’s initial ruling finding Stevenson’s race-neutral reason for striking Ms. Ehrlicher to be "acceptable,” he did expressly object for the record when Stevenson subsequently asserted the additional race-neutral reason that, in a civil matter, Ms. Ehrlicher had voted for the defendant. The trial court then rejected this reason and asked if there were any additional challenges. At that time, Pierce noted his objection to Stevenson’s challenge explaining that both defendants were "working together.”

      . Both defendants argue that the trial court erred in not accepting the race-neutral reason(s) articulated by Stevenson in his strike of Ms. Ehrlicher. The direct consequence of the trial court’s ruling and reseating of Ms. Ehrl-icher was that Pierce was deprived of his right to strike her for the same reasons the trial court had found unacceptable in Stevenson’s attempted strikes. The Louisiana Supreme Court has held that "an erroneous ruling of the court which deprives a defendant of one of his peremptory challenges is a substantial violation of his constitutional right to a fair trial and requires reversal.” State v. Sevin, 243 La. 1023, 150 So.2d 1, 3 (1963). Therefore, if the trial court’s rejection of Stevenson’s race neutral reason(s) for striking Ms. Ehrlicher was erroneous, then Pierce was also deprived of the right to peremptorily strike her for those same reason(s).

      . It is noted that Nelson was decided after trial in this case.

      . In State v. Sparks, 88-17, p. 37 (La.5/11/11), 68 So.3d 435, 468, the Supreme Court noted that, in order to establish a prima facie case of discrimination, the moving party must: 1) demonstrate that the opposing party’s challenges were directed at a member or members of a cognizable group; 2) show that the challenges were peremptory, rather than for cause; and 3) show circumstances sufficient to create an inference that the opposing party struck the venire person because of his or her membership in that particular group.

      . The record indicates that Ms. Ehrlicher was actually the victim of two car thefts.

      . The transcript from voir dire indicates that Ehrlicher served on a jury in a civil case that ultimately settled. Though Stevenson was again mistaken, neither the State nor the trial court challenged the correctness of his assertion.

      . The State, however, is not afforded the same constitutional right to peremptory challenges. Its right is statutory only. See Article I, § 17; and La.C.Cr.P. art. 799.

      . Pierce’s right to peremptorily challenge Ms. Ehrlicher was also deprived when he objected to the second race-neutral reason offered by Stevenson, and the trial court acknowledged the objection, along with the fact that the defendants were working together.

      . There is jurisprudence indicating that it would be proper to remand the case to allow the State to rebut the race-neutral reasons offered by the defendant, and direct the trial court to make an express determination, nunc pro tunc, regarding purposeful discrimination. See State v. Maxwell, 09-2235 (La.4/16/10), 33 So.3d 155 (where the Supreme Court remanded the case to allow the State the opportunity to offer race-neutral reasons once this Court found that the defense made a prima facie case for discrimination). If the trial court were able to make a nunc pro tunc determination that purposeful discrimination existed, the need for reversal would be obviated. However, since the trial judge who participated in the instant voir dire is no longer on the bench, we find remand inappropriate. See State v. Myers, 99-1803, p. 6 (La.4/11/00), 761 So.2d 498, 502 (where the Supreme Court found that the trial court observes firsthand the racial composition, demeanor, and general atmosphere of the voir dire, which simply cannot be replicated from a cold transcript). Consequently, the error cannot be remedied, and reversal is required.

      . See also Snyder v. United States, 554 U.S. 908, 128 S.Ct. 2947, 171 L.Ed.2d 874 (2008).

      . In addition, defendant/appellant Tyronne Stevenson raises as error the trial court’s denial of his motion for mistrial as to (a) the state’s reference to the defense not having evidence forensically tested and (b) other crimes committed by them. However, in light of the reversal for a Batson violation, I find we may pretermit a discussion of those issues.

      . The Louisiana Supreme Court has held that the harmless-error analysis is the appropriate standard of review of a district court ruling prohibiting a defendant from using a peremptory challenge to back strike a provisionally-challenged juror in violation of La.C.Cr.P. art. 799.1. State v. Lewis, 12-1021, p. 13 (La.3/19/13), 112 So.3d 796, 804.

      . An example of a case where a harmless error analysis would be especially appropriate, but not the facts in the case at bar, would be the following: a person is convicted of second degree murder by an eleven-to-one jury verdict where the evidence consists, inter alia, of the testimony of ten eyewitnesses to the wrongful act that was also captured from two different angles by two different high-definition video cameras, one of which belonged to the police and the other belonging to a private business, all in broad daylight.


source: Caselaw Access Project

author: JAMES F. McKAY III, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dominique L. CARTER.
    No. 2013-KA-0074.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2013.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, J. Bryant Clark, Jr., Assistant District Attorney of Orleans Parish New Orleans, LA, for State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, Jr., Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY III, Chief Judge.

|, After a review of the record before this Court, we have ascertained two errors patent. As such, we affirm the defendant’s conviction as to Count 1, but vacate the defendant’s sentence and remand the matter for resentencing consistent with this opinion. As to Count 2, we reverse the defendant’s conviction and sentence.

STATEMENT OF THE CASE

On August 9, 2011, the State charged the defendant with one count of attempted armed robbery with a firearm (Count 1), a violation of La. R.S. 14:(27)64.3, and one count of discharging a firearm during the commission of a crime of violence (Count 2), La. R.S. 14: 94F.

On May 29, 2012, the jury found the defendant guilty of attempted armed robbery with a firearm and guilty of attempted illegal use of a weapon.

On May 31, 2012, the court called back two jurors for questioning concerning a line drawn through the words “during a violent crime” on the verdict sheet pertaining to Count 2. As a result of the questioning, the court determined that the correct verdict as to Count 2 was guilty of attempted illegal use of a weapon during a violent crime.

|2On August 16, 2012, the court sentenced the defendant to eighteen years without parole, probation or suspension of sentence on the conviction for attempted armed robbery with a firearm and to five years without parole, probation or suspension of sentence for attempted illegal use of a firearm during a crime of violence, ordering that the sentences be served concurrently. That same day, the defense orally noticed its intent to appeal.

STATEMENT OF FACT

New Orleans Police Department Detective Kelly Morel responded to a shooting in the 2500 block of St. Ann Street on May 27, 2011. She arrived on the scene just before 7:00 p.m. to find Officer Liz Garcia speaking with the victim, who had not been injured. The victim identified his assailant as Dominique, a fellow student at Clark High School. The victim told the officers that Dominique wore a white T-shirt, cargo pants, white Nike socks and gray Converse low-top tennis shoes. Detective Morel learned that Dominique attempted to take the victim’s cell phone and fired a gun at him. Detective Morel related the information she obtained from the victim to the lead investigator.

Detective Matthew McQueen was the lead detective on this case, which he determined involved attempted armed robbery and illegal discharge of a weapon. On May 31, 2011, Detective McQueen did a verbal follow-up investigation with the victim and learned that the defendant, Dominique Carter, played on the Clark High School football team. With this information, Detective McQueen obtained a photograph of Dominique Carter, and he compiled a six-person photo lineup from which the victim positively identified the defendant as his assailant. The victim signed and dated the back of the defendant’s photograph. After the victim viewed the six-photo lineup, Detective McQueen displayed a single picture of the |3defendant to the victim. Again, the victim identified the defendant as the assailant. Detective McQueen secured an arrest warrant for the defendant for attempted armed robbery.

The victim testified that he was nineteen years old and currently a senior at Renew Accelerated High School. Prior to attending Renew, he was a student at Clark High School along with the defendant. The victim said that in May 2011 he had an Evo cell phone, which his mother gave him.

The victim related that on the afternoon of May 27, 2011, he left his home on Salce-do Street to return a shirt to Urban Outfitters. He walked on Orleans Avenue speaking on his cell phone. As he approached Broad Street, he noticed the defendant and two of the defendant’s friends walking toward him. They passed one another; however, the defendant and his friends turned around, and they began to follow the victim. When the victim crossed the street, the defendant and his friends crossed the street and continued to follow. As the victim turned onto Roche-blave Street, the defendant caught up to him and demanded the victim’s cell phone. The victim refused to surrender his phone and picked up a brick for protection. As he did so, the defendant drew a gun and pointed it in the victim’s face. The victim continued walking toward an area where he heard people talking. He walked toward the voices and realized that one of the people talking on a porch on St. Ann Street was his mother’s friend, Ms. Danky Buckner, and members of her family. The defendant asked the victim if he was going to call for help. The victim walked on. When the victim was about ten feet ahead of the defendant, the defendant shot at him and ran away. The victim ran into a nearby house. The police were called, and the victim gave them all the information concerning the | defendant’s clothing and how he knew the defendant. Subsequently, the police video recorded him identifying the defendant from the photo lineup.

Ms. Jeannetta Scott, the victim’s mother, testified that on the afternoon of May 27, 2011, the victim called and told her that a group of boys attempted to rob him of his cell phone at gunpoint. Ms. Scott confirmed that at that time, the victim had a new I-phone, which he purchased with money she gave him. Ms. Scott identified the victim’s phone at trial.

Ms. Denise Buckner lived in the 2500 block of St. Ann Street at the time of this incident. She testified that she knew the victim and that he knew her as “Danky.” Ms. Buckner, some family members and friends were sitting on her porch when she first noticed the victim at the intersection of St. Ann and Rocheblave Streets. He was walking and holding his cell phone, a shopping bag and a brick. After the victim passed her house, a young black male stood in front of her house and fired two or three shots at the victim. As the shooter ran, Ms. Buckner called the victim into her house, and Epiphany Smith called 911. The police investigated the shooting. Ms. Buckner could not identify the shooter.

The defendant testified that in 2011, he was an eleventh grade student at Joseph S. Clark Senior High School. On May 27, 2011, he, Mike and Cory went to play basketball at a playground on St. Ann Street. The victim arrived at the playground with a bag. The defendant did not see the victim with a phone. The victim played basketball with the defendant and the others for about an hour and then left the area before the others. As the defendant gathered his belongings, he noticed that his cell phone was missing. Two young boys, who had been watching the group play basketball, told the defendant that the victim took his phone. The defendant, Mike and Cory followed the victim to retrieve the defendant’s cell hphone. The group caught up with the victim in front of Ms. Buckner’s house. As the defendant and Cory approached, the victim picked up a brick and started yelling for someone to call the police. The victim continued to walk away. Cory shot at the victim one time, and then the defendant and. Cory ran away.

During re-direct examination, the defendant stated that he did not tell the police that Cory was the shooter because they did not ask him that question. The defendant also related that at the time of this trial, Mike was in jail and Cory was deceased.

ERRORS PATENT

After reviewing the record, we determined that there is an error patent concerning the rendition of the verdict on Count 2 of the indictment. The error will be discussed in Assignment of Error Number 3.

We also find that there is a second error patent. The district court failed to impose a consecutive five-year enhancement sentence as mandated by La. R.S. 14:64.3(A). Thus, the sentence is illegally lenient. State v. Joseph, 2010-1090 (La.App. 4 Cir. 8/12/11), 71 So.3d 549. In State v. Burton, 2009-0826 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, this Court held that in cases where minimum sentences are not imposed, the sentences are indeterminate, requiring the sentences to be vacated and the matter remanded for resentencing according to law for clarification of whether the defendant’s sentence includes any additional punishment under La. R.S. 14:64.3. Thus, the defendant’s eighteen-year sentence is vacated and remanded for resentencing.

MOTION TO DISMISS APPEAL

On June 25, 2013, the State filed a motion to dismiss this appeal as untimely. |fiLa.C. Cr.P. art. 914 provides as follows:

Method and time of appeal

A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.
B. The motion for an appeal must be made no later than:
(1) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.
(2) Thirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.

A review of the record herein reflects that defendant was convicted on May 29, 2012. At that time, the defendant’s counsel did not seek an appeal either orally or through written notice. Likewise, on May 31, 2012, when the trial judge vacated the original verdict, there was no oral or written motion for appeal from the defense. However, when the defendant was sentenced on August 16, 2012, defense counsel orally noticed the intent to appeal.

Although an appeal may be taken only from a conviction and sentence, this Court has held that it is not necessary to dismiss an appeal taken after conviction but before sentencing because “[djismissing the appeal would simply result in a delay of the appellate process and hinder defendant’s right to appeal.” State v. Martin, 483 So.2d 1223, 1225 (La.App. 4th Cir.1986). See also State v. Pleasant, 2011-1675 (La.App. 4 Cir. 10/17/12), 102 So.3d 247. Accordingly, the State’s motion to dismiss appeal is denied.

ASSIGNMENT OF ERROR NUMBER 1

In a first assignment of error, the defendant argues that the evidence was insufficient to sustain his conviction of discharge of a firearm during a crime of violence (Count 2). The defendant bases his insufficiency argument on the fact that no one testified they saw the defendant shoot at the victim.

17“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, 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 had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438.

When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentifieation. State v. Weary, 2003-3067, p. 18 (La.4/24/06), 931 So.2d 297, 311.

The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Wells, 2010-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306. A factfinder’s decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. State v. James, 2009-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996.

The victim in this case testified that as he walked on Orleans Avenue, the defendant and two of the defendant’s associates approached him from the opposite direction. The victim turned around to see the defendant following him. The | ¿victim crossed the street, and the defendant followed him. The defendant caught up with the victim and demanded the victim’s cell phone. The victim refused the demand and picked up a brick for protection. With that, the defendant drew his gun and pointed it in the victim’s face. The victim turned and walked away. The defendant followed close behind. When the defendant was about ten feet behind the victim, he slowed down and shot at the victim. After firing the shots, the victim said that the defendant ran away. The victim testified that he was absolutely certain that the defendant was the individual who shot at him. Considering the victim’s positive identification of the defendant, the jury was not unreasonable in determining that the defendant was the man who shot at the victim.

The defendant’s testimony had no credibility. Although the defendant said that Cory was the person who fired at the victim, the defendant neglected to tell that to the police prior to trial because: “They (the police) didn’t ask [him] about nothing.” In fact, the defendant did not advise anyone about Cory until cross-examination at trial.

There was no mistake as to the defendant’s identity. In chilling detail, the victim testified that he got a good look at the defendant because the defendant pointed a gun directly into his face when he refused to relinquish his cell phone. Moreover, the victim knew the defendant from high school.

Applying reason and common sense to the facts in this case, it was not unreasonable for the jury to conclude that the State proved beyond a reasonable doubt the defendant’s identity as the person who shot at the victim. This assignment has no merit.

^ASSIGNMENT OF ERROR NUMBER 2

In his second assignment, the defendant argues violation of his statutory right to back strike a previously-accepted juror prior to the swearing-in of the final jury in violation of La.C.Cr.P. art. 799.1.

This issue has not been preserved for appellate review because the defense failed to lodge a contemporaneous objection to the court’s refusal to allow the back strike. La.C.Cr.P. art. 841.

Regardless, even if the issue had been properly preserved for review, this assignment of error is without merit.

Defense counsel inquired about back striking Mr. Perkins, a provisionally accepted juror. At that time, the defense had one peremptory challenge remaining. The judge responded: “You need to back strike within a round, within a round. So there’s no back striking to the six that are already in the back.” Rather than objecting, defense counsel replied: “Okay.”

While it is true that considering the plain language of La.C.Cr.P. art. 799.1, the trial judge in this case erred in denying the defense permission to back strike Mr. Perkins, the defense suffered no prejudice from the error because Mr. Perkins was not seated as a juror. The trial judge excused him. (“... [t]he Court’s | ^excusing juror ... Mr. Perkins in the front row, he’s rattled to death, it’s twice this month.”)

This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 3

This third assignment argues that the trial court erred in conducting an eviden-tiary hearing ex proprio motu to have the jury foreperson and another juror “clarify” the verdict on Count 2.

The State concedes this assignment has merit.

The record herein indicates that on May 29, 2012, the minute clerk read the jury’s verdicts as guilty as charged on Count 1 and guilty of attempted use of a weapon, as the phrase “during a violent crime” seemingly marked through. When questioned whether the verdicts were as the minute clerk read, the jurors nodded their heads in agreement. The minute clerk recorded the verdicts as guilty on count 1 and guilty of attempted use a weapon on Count 2. Thereafter, the judge discharged the jury.

Two days later the trial judge called Ms. Fortier and Ms. Schroeder, the jury foreperson and a juror, respectively, back to court to “clarify” the verdict as to Count 2:

JUDGE:
As to the count of illegal use of a weapon during a violent crime, do you [Ms. Fortier] recall what the jury’s verdict was?
MS. FORTIER:
It was the second one on the list.
JUDGE:
| nSecond one from the top?
MS. FORTIER:
Yes.
JUDGE:
Which would be guilty of attempted illegal use of a weapon during a violent crime?
MS. FORTIER:
Yes.
JUDGE:
The fourth one from the top is guilty of attempted illegal use of a weapon. Was that not your verdict?
MS. FORTIER:
No. Can you say the two again?
JUDGE:
I’ll read all five of them. No. 1 was guilty as charged of illegal use of a weapon during a violent crime; No. 2 was guilty of attempted illegal use of a weapon during a violent crime; No. 3 was guilty of illegal use of a weapon, notice that it’s not in pursuit of a violent crime; No. 4 is guilty of attempted illegal use of a weapon, again, not pursuant to a violent crime.
MS. FORTIER:
I think the second one was what we had chosen because we felt it was associated with a violent crime.
JUDGE:
On this jury verdict form it reads: We, the jury find the defendant guilty of attempted use of a weapon during a violent crime all written in black ink and then there’s a blue line, [through] four of the words, can I show this to you, Ms. Fortier, and maybe you could enlighten me?
MS. FORTIER:
I can. When we first entered the jury room before we even discussed anything [,] first thing I did was write the information on the back of the |iasheet. And then when you sent us back to come up with a verdict, I had a different pen.
JUDGE:
Explain to me this blue line right here.
MS. FORTIER:
Because when I first wrote it when we first walked in the room before we even had any discussions I had a blue pen and I was just copying the information I had on the bottom.
JUDGE:
So this line was not designed to strike the phrase during a violent crime.
MS. FORTIER:
No, it was not.
* ❖ *
JUDGE:
... I presumptively viewed the line as a scratch through and didn’t do anything about it because it looked that clear to me. I don’t know if I mentioned to you the next day, I woke up at 3:45 in the morning that night thinking about that line.
* * ❖
JUDGE: Did you hear the verdict read the other night ...
MS. FORTIER: I recall reading it, but not in its entirety.
JUDGE: You don’t recall [the minute clerk] reading something that was in-
consistent with what your verdict was?
MS. FORTIER: I wasn’t, it was shorter.
MS. FORTIER: May I ask a question ... So you’re suggesting that essentially ... [the minute clerk] read a different verdict than what we had returned?
JUDGE: I’m not suggesting it. That’s exactly what I’m saying.
_b
MS. FORTIER: Well, you know what I assumed? I assumed it was the legalese thing.
JUDGE:
Let the record reflect that the recorded verdict is vacated and that the verdict of the jury now as to Count 2 will be recorded as guilty of attempted use of a weapon during a violent crime ... The verdict as to Count 1 remains.

La.C.Cr.P. art. 810 provides in pertinent part:

Form of verdict; delivery of verdict
When a verdict has been agreed upon, the foreman shall write the verdict on the back of the list of responsive verdicts given to the jury and shall sign it. There shall be no formal requirement as to the language of the verdict except that it shall clearly convey the intention of the jury....

“If the court finds that the verdict is incorrect in form or is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. In such a case the court shall read the verdict, and record the reasons for refusal.” La.C.Cr.P. art. 813.

In State v. Nazar, 96-0175 (La.App. 4 Cir. 5/22/96), 675 So.2d 780, this Court found that the trial court lacked authority to clarify its verdict. In Nazar, the defendant was originally charged with aggravated battery, but the charge was amended to simple battery. The trial court found the defendant guilty of attempted simple battery, a non-verdict. The State filed a motion to “clarify” the verdict. The trial court vacated its previous verdict and found the defendant guilty of simple battery. Nazar appealed to the Criminal District Court Appellate Division, which reversed the conviction and acquitted him of the charge. This Court granted the State’s application to review the ruling.

|14On appeal, one of the arguments asserted by the State was that the trial court had authority to replace the invalid verdict with a valid verdict pursuant to La.C.Cr.P. art. 813. This Court held, in pertinent part:

According to the State, the trial court may vacate its prior verdict and find the defendant guilty of simple battery. La. C.Cr.P. art. 813 provides:
If the court finds that the verdict is incorrect in form or is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. In such a case the court shall read the verdict, and record the reasons for refusal.
Under La.C.Cr.P. art. 820 all provisions regulating responsive verdicts and the effect of verdicts shall apply to eases tried without a jury. Contrary to the State’s position, La.C.Cr.P. art. 813 does not provide for a motion to clarify the verdict. The State cites no article of the Code of Criminal Procedure or statute which gives the trial court authority to change its prior verdict. The trial court had no authority to vacate a prior verdict of guilty of attempted simple battery (even though not a recognized crime) and to find the defendant guilty of the greater offense of simple battery. The trial court erred by “clarifying” the verdict to guilt [sic] of simple battery.

Id. at p. 2, 675 So.2d at 781-82.

Based upon State v. Nazar, 96-175 (La. App. 4 Cir. 5/22/96), 675 So.2d 780, the trial court erred by holding a hearing to “clarify” and then changing the verdict on Count 2. This assignment has merit.

ASSIGNMENT OF ERROR NUMBER 4

By this assignment, the defendant attacks his sentences as excessive, on the basis that he is a first offender with no record and no history of violence.

In State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1, the Louisiana Supreme Court set forth the standard for evaluating a claim of excessive sentence:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” (Emphasis added.) Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 2002-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

Smith, 2001-2574, pp. 6-7, 839 So.2d at 4.

In State v. Batiste, 2006-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, this Court further explained that a reviewing court may not set aside a sentence for excessiveness if the record evidences a factual basis for the imposed sentence, even if there has not been full compliance with La.C.Cr.P. art. 894.1:

An appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La.C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed. State v. Landry, supra; State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181. However, as noted in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813:
The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).
If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 2003-167116 at p. 8, 871 So.2d [1235] at 1239 [ (La.App. 4 Cir.2004)]. See also State v. Bonicard, 98-0665 (La. App. 4 Cir. 8/4/99), 752 So.2d 184.

Batiste, 2006-0875, p. 18, 947 So.2d at 820.

On his conviction for attempted armed robbery with a firearm, the defendant herein was facing a sentence of zero to forty-nine and one half years at hard labor. La. R.S. 14:(27)64.3. The trial judge imposed an eighteen year sentence, which is well below the mid-range.

For his conviction of attempted discharge of a firearm during a crime of violence, the defendant’s sentencing range was zero to ten years. La. R.S. 14:(27)94F. The defendant received five years, half the maximum sentence.

Additionally, as the following portion of the sentencing hearing shows, the trial judge afforded the defendant the added consideration of adjusting the defendant’s sentence lower than he had originally considered.

In sentencing the defendant, the trial judge noted:

It is absolutely mindboggling to me that someone would attempt to shoot somebody and attempt to arm rob them or at the very least fire a couple of rounds over a cell phone ... That is crazy. Its absolute insanity.
[The defendant] is looking at ten to twenty years on the gun and zero to forty-nine and a half years on the attempted armed robbery. I showed you the other day the number that I had written down and if anybody had told me that [the defendant] was going to get less than twenty-five or thirty years, they would have been absolutely wrong. I have nothing to go on but blind [ 17faith. I mean the man’s mamma has been corning for months and months and maybe even a year since I have been here.
The pastor comes here and she puts on an incredible presentation ...
I heard the testimony in this case. It was to use that over used word I used earlier it was “chilling.” It was scary.
What was really scary to me and what stands out the most other than the fact that these kids carry guns like we used to carry a box of cigarettes ... The [victim] doesn’t want to give up his cell phone. The [victim] would rather run the risk of walking away and getting shot than give up his cell phone and maybe that’s what triggered [the defendant] not to shoot at [the victim]. How dare that victim defy me and my gun! And maybe that’s why [the defendant] fired a couple of rounds some place to see if [the victim] would chicken out and give up the cell phone....

The trial judge clearly articulated the basis for the sentence.

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. See State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501.

In this case, the defendant’s sentences for attempted armed robbery with a firearm and attempted discharge of a firearm during a crime of violence were within the sentencing ranges for the offenses he was convicted of and are not disproportionate to the offenses. On both convictions, the defendant received less than the maximum sentences the court may have imposed.

The trial court considered the mitigating testimony offered by the defendant’s spiritual adviser and fashioned a sentence tailored specifically to this defendant. Moreover, the defendant’s sentence is not excessive considering the sentences imposed in other attempted armed robbery cases. See State v. Ambeau, 2008-1191 (La.App. 4 Cir. 2/11/09), 6 So.3d 215 (twenty-five years for attempted armed robbery not constitutionally excessive); State v. Nash, 2012-1146 (La.App. 3 Cir. 4/3/13), 112 So.3d 409 (twenty years for attempted armed robbery, first offense, not excessive); State v. Burford, 39,610 (La.App. 2 Cir. 5/11/05), 902 So.2d 1190 (thirty and forty years for attempted armed robbery not excessive).

Taking into account the number of gunshots fired, the wholly illegal motive, and the serious injury which might have been inflicted on the victim and innocent bystanders, we do not find that the trial judge abused his broad discretion in sentencing the defendant to eighteen years for attempted armed robbery.

Neither was the defendant’s five-year sentence for attempted discharge of a firearm during a crime of violence excessive. The judge imposed the statutory minimum sentence. See La. R.S. 14:(27)94F.

This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 5

In a final assignment, the defendant argues that his counsel was ineffective in failing to file a motion to reconsider his sentence.

Generally, claims of ineffective assistance of counsel are more properly raised by application for post-conviction relief in the trial court, where an evidentiary hearing can be conducted if warranted, unless the record on appeal is sufficient to make the determination. State v. McCarthy, 2012-0342, p. 4 (La.App. 4 Cir. 3/27/13), 112 So.3d 394, 397. Ineffective assistance of counsel claims are reviewed under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail, the defendant must show both that: (1) counsel’s performance was deficient; and (2) he was prejudiced by the deficiency. State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741. Counsel’s performance is considered ineffective when it can be |19shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Id. at 686, 104 S.Ct. at 2064. Likewise, counsel’s deficient performance will have prejudiced the defendant if the errors were so serious as to deprive the defendant of a fair trial. Id. To carry this burden, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 693, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. This Court has recognized that a defendant must make both showings to establish that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4th Cir.1992).

This record is sufficient to review the defendant’s claim of ineffective assistance.

This Court has held that the failure to file a motion to reconsider sentence or to object to the sentence at the time it is imposed precludes a defendant from raising a claim about his sentence on appeal. See State v. Jenkins, 2009-1551 (La.App. 4 Cir. 6/30/10), 45 So.3d 173; State v. Stewart, 2004-2219 (La.App. 4 Cir. 6/29/05), 909 So.2d 636; State v. Rodriguez, 2000-0519 (La.App. 4 Cir. 2/14/01), 781 So.2d 640; State v. Tyler, 98-1667 (La.App. 4 Cir. 11/24/99), 749 So.2d 767.

The defendant herein objected to his sentence at the time of imposition. Moreover, his sentences were reviewed in the preceding assignment of error and determined not to be excessive. The defendant has failed to show that he was prejudiced by counsel’s failure to file a motion to reconsider sentence. This assignment has no merit.

CONCLUSION

^[^Accordingly, we affirm the defendant’s conviction on Count 1, vacate the sentence and remand for resentencing to include imposition of the five-year sentence enhancement for the use of a firearm during the attempted armed robbery. La. R.S. 14:(27)64.3. We reverse the conviction and sentence on Count 2 on the basis the trial court had no authority to “clarify” the verdict and remand the matter for further proceedings in accordance with the discussion in Assignment of Error Number 3.

AFFIRMED IN PART; REVERSED IN PART; VACATED AND REMANDED FOR RESENTENCING.

      . Cory was deceased at the time of trial.

      . Back striking is permitted by La.C.Cr.P. art. 799. 1, which provides:
      Challenges; use of all available challenges Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788, in the jury selection process, the state and the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted. No juror shall be sworn in until both parties agree on the jury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties. See also, State v. Lewis, 2012-1021 (La.3/19/13), 112 So.3d 796, and State v. Patterson, 2012-2042 (La.3/19/13), 112 So.3d 806.

      . Subsection (a) of the Official Revision Comment to La.C.Cr.P. art. 813 provides:
      Former R.S. 15:402 and the jurisprudence make it clear that until a verdict is received and recorded, it is not a verdict, and the jury has the right to alter it. See State v. Owens, 193 La. 505, 190 So. 660 (1939). Although the problem has not arisen, what can occur between the time of the reception of the verdict and the dismissal of the jury should be considered. The judge can receive a verdict and, thereafter, realize that it is not responsive. If the jury has not been dismissed, there is no reason why the judge may not set aside the verdict and remand the jury. This article handles that situation.

      . This case differs from Nazar, in that the verdict on count 2 herein was downgraded to the lesser charge of attempt, whereas in Na-zar, the verdict was changed to a greater offense than originally decreed.

      . La. R.S. 14:94A and F, regarding illegal use of weapons or dangerous instrumentalities, provides in pertinent part:
      A. Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.
      F. Whoever commits the crime of illegal use of weapons or dangerous instrumentalities by discharging a firearm while committing, attempting to commit, conspiring to commit, or soliciting, coercing, or intimidating another person to commit a crime of violence ..., shall be imprisoned at hard labor for not less than ten years nor more than twenty years, without benefit of parole, probation, or suspension of sentence. ...