author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. Readus WILLIAMS.
    No. 12-KA-305.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Gail D. Schlosser, Matthew Clauss, Kellie M. Rish, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

12Pefendant, Readus Williams, appeals his convictions and sentences for the second degree murder of Lanell Darden, in violation of La. R.S. 14:30.1; aggravated flight from an officer, in violation of La. R.S. 14:108.1(C); and illegal possession of stolen things in excess of $500.00, in violation of La. R.S. 14:69. For the following reasons, we affirm defendant’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

On March 11, 2010, the Jefferson Parish Grand Jury indicted defendant, on Count 1, for second degree murder in violation of La. R.S. 14:30.1; on Count 2, for aggravated flight from an officer in violation of La. R.S. 14:108.1(0; and on Count 3, for illegal possession of stolen things in excess of $500.00 in violation of La. R.S. 14:69. Defendant was arraigned the next day and pled not guilty to all charges. On September 10, 2010, defendant’s motions to suppress evidence, ^identification, and statements were denied after a hearing. On August 22, 2011, defendant filed a motion to appoint a sanity commission. On September 14, 2011, a competency hearing was subsequently held, after which the trial judge found defendant competent to stand trial.

On September 20-24, 2011, the case was tried before a 12-person jury which unanimously found defendant guilty as charged on all counts. On October 5, 2011, defendant’s motion for new trial and motion for post-verdict judgment of acquittal were denied. After waiving sentencing delays, the trial judge sentenced defendant to life imprisonment at hard labor on Count 1 without benefit of parole, probation, or suspension of sentence; imprisonment at hard labor for two years on Count 2; and imprisonment at hard labor for ten years on Count 3, with all sentences to run consecutively to each other and to any other sentence defendant might be serving. On October 11, 2011, defendant filed a motion to reconsider sentence that was denied. Two days later, defendant filed a timely motion for appeal that was granted.

After Hurricane Katrina in 2005, Lanell Darden, her children, and her uncle Donald Darden moved from Kenner, Louisiana to Orlando, Florida. In 2009, Lanell and defendant began a romantic relationship, which quickly became abusive. About four days after the relationship began, defendant took Lanell’s vehicle from her because he did not want her to go anywhere. Defendant took Lanell’s keys, put a knife under her neck, and threatened her. At some point, defendant moved into the home of Lanell and her uncle.

In November of 2009, Lanell went to the house of her neighbor, Beatrice Bush, crying and hysterical. When Ms. Bush went outside, defendant told Ms. Bush, this “B-tch killed my baby.” Someone called the police, who arrived and spoke with Lanell. Several other incidents involving defendant occurred where the |4poIice had to be called to Lanell and her uncle’s home on December 8, 9, and 16, 2009. Lanell subsequently got a restraining order against defendant. Afterward, defendant moved across the street from Lanell’s house. La-nell continued to see defendant despite the restraining order.

In January of 2010, Lanell ultimately decided to end her relationship with defendant and move back to Kenner to live with her sister, Yolanda Darden, at 1013 31st Street, Apartment No. 11, in Kenner. La-nell had told Ms. Bush on three occasions that she thought her life was in danger at the hands of defendant. According to Donald Darden, defendant appeared to be “a little bothered” by the fact that his relationship with Lanell had ended.

After January 11, 2010, Yolanda received a phone call from defendant who asked to speak to Lanell; she told him, however, that Lanell was unavailable. On January 15, 16, and 17, 2010, Yolanda received text messages from that same phone number. On January 15, 2000, defendant asked Yolanda to have Lanell call him. On January 16, 2000, defendant sent the same message, but added that if Lanell called him, he promised he would never call her again. The next day, defendant sent Yolanda a text message saying he needed Lanell to talk him “off this ledge I’m on,” and to please have her call him as he was “going crazy.” Another text asked Yolanda to have Lanell call him.

In January of 2010, defendant borrowed the computer of his friend, Carol Cone, to obtain directions to Lanell’s sister’s residence. On January 20, 2010, Ms. Cone loaned her 2001 red Dodge Durango truck to defendant. Although defendant was supposed to return the vehicle to her at her place of employment by 10:00 p.m., he never returned. The next day, Ms. Cone reported her vehicle stolen.

On January 21, 2010, Lanell took her son and Yolanda’s son to G.T. Woods Elementary School, which is located across the street from the apartment complex. IfiAt approximately 8:00 a.m., Alexis Lewis, a resident at the apartment complex, saw a girl, later identified as Lanell, running from the apartments and screaming. The girl ran in front of him and got into a vehicle. Mr. Lewis then saw a man in a black shirt running and chasing her with a black gun. The man pushed Mr. Lewis out of the way and shouted that the girl was “pregnant for him.” The man then shot three times, hitting the girl. After he shot, the man said, “B-tch, I’m going to kill you.” Afterward, the man walked through the breezeway of the apartment complex to a vehicle.

Numerous officers from the Kenner Police Department heard over the police radio that there was a shooting at 1013 31st Street and that the perpetrator had left the scene in a red Dodge Durango. Officer Nicholas Patterson noticed a red Dodge Durango next to him in traffic. He angled his unit behind the Dodge Durango and Officer Kevin Ballard angled his unit in front. The driver of the Dodge Duran-go then went up on the grassy area by the sidewalk and went around Officer Ballard’s unit and continued through the red light.

The officers pursued the Dodge Duran-go with their lights and sirens activated. The Dodge Durango first went southbound on Loyola Drive to I — 10 and then westbound on the interstate. The driver of the Dodge Durango led numerous police officers on a high-speed chase on the interstate with speeds reaching 135 miles per hour. During the chase, the driver of the Dodge Durango made a U-turn on the interstate and drove in the wrong direction, causing drivers to swerve out of the way and run off the road. The Dodge Durango eventually turned around and headed in the correct westbound direction.

As the Dodge Durango entered the Three-Mile Bridge on the interstate, the driver swerved toward the guardrail. Sergeant Russell Moran observed a splash of water from the side of the bridge and radioed that the driver had probably just | ^thrown the gun into the water. The Dodge Durango crossed the bridge, pulled to the shoulder and came to a stop. Officers took the driver into custody and later identified defendant in court as the driver of the Dodge Durango.

Sergeant Moran then retrieved a white loose-leaf sheet of paper on the ground and saw it had directions from Ocala, Florida to 1013 31st Street in Kenner, the location of the shooting. Mr. Lewis positively identified defendant as the person who shot the girl. Mr. Lewis told the detective that based on the face and body type, it looked like the same person who did the shooting. In checking the defendant’s person for weapons, former officer Robert Bales, Jr. recovered Lanell’s Florida Identification Card.

Detective Jeff Adams went to the crime scene and observed a tan or brown-colored Suburban in the parking lot at 1013 31st Street. He saw the deceased victim lying in the vehicle halfway out of the passenger door, with her legs dangling towards the ground. Detective Adams noticed two casings near the front of the vehicle on the passenger side near the open passenger door, one casing behind the vehicle, and one casing that fell out of the driver’s side door when it was opened. A black hat was located next to the vehicle.

Detective Adams advised defendant of his rights, and defendant signed the waiver of rights form. In a preliminary interview, defendant told Detective Adams that he and Lanell had been dating for eight months, and that she was three months into a pregnancy when he found paperwork in her purse indicating she had aborted their child. He said that they then argued until Lanell’s uncle intervened. He saw marks on Lanell and called the police. When the police told defendant he would have to leave, defendant then moved across the street from Lanell to a friend’s house.

| -^Defendant said that after he saw La-nell drive away, he used a computer and found Lanell and Yolanda’s address in Louisiana and wrote down the directions. Defendant admitted using Ms. Cone’s vehicle and driving to Kenner. He arrived at 3:00 a.m. and parked at 1013 31st Street in the parking lot. Defendant said he sat there and watched Lanell walk the children to school. He then exited his vehicle and went to the breezeway to wait for her return. When she approached the breezeway, he tried to talk to her; however, she took off running. Defendant explained that he chased after her, and then “blacked out.” The next thing he knew, he was on the interstate being chased by the police, and he realized he must have done something wrong.

Defendant admitted that he had a gun in his pocket when he was at the apartment complex and that he threw it into the water during the chase. After throwing the gun into the water, defendant pulled over and surrendered to the police. Detective Adams testified that in an interview defendant stated that he realized he had done something “stupid,” that he would not have Lanell anymore, that Lanell’s children would not have a mother, and that he would be serving a life sentence in prison.

Witnesses at the school, Clara Clemens and Syd Campbell, testified they saw a man walking with a gun in his hand after hearing gunshots. Ms. Clemens was inside of the school, and Mr. Campbell was standing in the breezeway between the cafeteria and the classrooms, when they heard the shots. The detective showed a photographic lineup to both witnesses. They each identified two possible subjects out of a photographic lineup, one of which was defendant.

Dr. Karen Ross, an expert in the field of forensic pathology, performed the autopsy on Lanell, age 29 at the time of her death. She testified that the cause of death was a gunshot wound to the head, and that the manner of death was | ¡¡homicide. She explained that the projectile, which she recovered during the autopsy, went through the skull and brain and was visible underneath the skin beneath the lower jaw.

A dive team recovered a gun at the location where Sergeant Moran saw a splash in the water. Jene Rauch, qualified as an expert in the field of the examination of firearms and toolmarks, conducted two examinations, one before the gun was recovered and one after. She concluded that the four cartridge cases found at the scene were fired from the same weapon. Once she received the gun, she further concluded that the four casings from the scene were fired from the gun retrieved from the water. Ms. Rauch also asserted that the projectile recovered from the victim during the autopsy was fired from that same gun. Gerald Roser, a crime scene technician for the Kenner Police Department, performed a gunshot residue test on defendant and Lanell, and the tests were positive. ■

Sarah Serou, qualified as an expert in DNA analysis, testified that she received four cuttings from the black hat found at the scene and a reference sample from defendant. She explained that the DNA profile obtained from three of the hat cuttings was consistent with the DNA profile from defendant’s reference sample. Ms. Serou further explained that the DNA profile from the fourth hat cutting was consistent with a mixture of DNA from at least two persons, one major contributor and one minor contributor, and that the DNA profile from defendant’s reference sample could not be excluded as being the major contributor in this mixture. It was Ms. Serou’s opinion that the DNA profile from the fourth hat cutting was over 100 billion times more likely to be a mixture of DNA from defendant and an unknown, unrelated individual than a mixture of DNA from two unknown, unrelated individuals.

IcThe shooting at the apartment complex was captured on videotape and shown to the jury.

ASSIGNMENTS OF ERROR ONE AND TWO

In related assignments of error one and two, defendant contends (1) that the trial court improperly restricted appellant’s constitutional right to a full voir dire by refusing to allow him to question the jurors regarding their ability to understand and apply the law and (2) for failing to include the law applicable to the case and/or for failing to include the requested special charge that the jury could return a responsive verdict despite the evidence of guilt. At trial, defendant sought to voir dire and have the jury instructed on nullification issues.

Defendant first argues that the trial judge improperly restricted his constitutional right to a full voir dire by refusing to allow him to question the jurors regarding their ability to understand and apply the principles of State v. Porter, 93-1106 (La.7/5/94), 639 So.2d 1137. He contends that Porter allows a jury to return a responsive verdict even though the evidence supports the charged offense.

The State responds that the trial judge did not improperly restrict defendant’s voir dire. It further responds that Porter is distinguishable from the instant case and, is therefore inapplicable. The State notes that unlike the court in Porter, the trial judge here did not exclude any responsive verdicts, and that what defendant actually sought at trial in the instant case was an instruction equivalent to jury nullification. The State responds that this Court has already rejected jury nullification instructions in State v. Seals, 09-1089 (La.App. 5 Cir. 12/29/11), 83 So.3d 285, writ denied, 12-293 (La.10/26/12), 99 So.3d 53, and State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, - U.S. -, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012).

[ inDefendant also argues that the trial judge erred by failing to instruct the jury on the law applicable to the case and/or by failing to include the requested special charge that the jury could return a responsive verdict despite the evidence of guilt. The State responds that the trial judge properly rejected any jury instruction equivalent to jury nullification, and that the general jury charge, which tracked the pattern jury charge concerning responsive verdicts, was sufficient. The State further responds that considering the overwhelming evidence of guilt, defendant has not shown that any limit placed on him during voir dire, and the refusal to charge the jury on jury nullification, constituted a miscarriage of justice, prejudice to the substantial rights of defendant, or a substantial violation of a constitutional or statutory right.

During voir dire, defense counsel told the prospective jurors that he wanted to talk about Porter with them. The prosecutor objected, and a bench conference was held. The prosecutor contended that defense counsel was erroneously attempting to say that the jury had the ability to nullify. Since defense counsel did not have a copy of Porter, the prosecutor asked that they not go into it during voir dire, but they could go into it at a later time if defense counsel subsequently presented case law. Defense counsel agreed, stating that was fair, and further agreed it would give him a chance to find the Porter case and then discuss it in his closing argument. During the trial, after the State’s fourth witness had testified, defense counsel moved for a mistrial, arguing that defendant was entitled to a full voir dire, which he did not receive because he was not allowed to discuss the law as written in Porter. He argued that according to Porter, a criminal defendant had the statutory right to a jury free to return a lesser verdict even though the evidence clearly supported a conviction of the charged offense. Defense counsel noted that he had objected during voir dire to the prosecutor asking the jury whether it would |nreturn a guilty verdict on second degree murder, if the evidence supported it. He explained that he would have chosen the jury differently had he been allowed to discuss Porter with them.

The prosecutor responded that defense counsel received a full and fair voir dire, and that defense counsel was not prohibited from discussing Porter pursuant to any court order. Rather, the prosecutor noted that he and defense counsel had jointly agreed that the issue would not be discussed in voir dire until they could resolve the Porter case to everyone’s satisfaction. Defense counsel replied that he had acquiesced to that decision, but did not agree to it. The trial judge told defense counsel that he had agreed to it and that he and the prosecutor had decided to move on. In effect, the trial judge, denied defendant’s motion for mistrial. After two more of the State’s witnesses testified at trial, defense counsel again moved for a mistrial based on Porter, which the trial judge denied.

On the morning of the third day of trial, the trial judge stated that she had read Porter and State v. Guidry, 94-596 (La.App. 3 Cir. 11/2/94), 649 So.2d 486, writ denied, 94-2953 (La.3/17/95), 651 So.2d 267, two cases cited by defense counsel. Defense counsel reiterated that the holding of Porter was that a criminal defendant had the right to a responsive verdict notwithstanding the overwhelming evidence that the primary offense had been committed. He alleged that the prosecutor had elicited a promise from the prospective jurors during voir dire that they would return a guilty verdict if the State proved its case beyond a reasonable doubt. The trial judge recalled the matter, but said that she had asked the prosecutor to rephrase and that he had.

Later on during the trial, jury charges were discussed. Defense counsel said he wanted a jury charge on Porter and Gui-dry, but the prosecutor objected. The 1 atrial judge asked defense counsel for his proposed jury charge so she could review it at a later time.

At another point during the trial, jury charges were discussed again. Defense counsel asked the trial judge to delete the phrase “that if you find the State has met its burden of proving its case beyond a reasonable doubt that you must return a guilty verdict.” He stated that that would solve the Porter problem. The prosecutor subsequently requested the standard jury instructions, which the trial judge said she would use. Defense counsel replied that just because the court had been using that language for a long time did not make it right.

The trial judge said she would instruct the jury as follows: “In order to convict the Defendant of second degree murder you must find beyond a reasonable doubt that the State proved every element of the Defense [sic] charged. If you’re not con-vineed beyond a reasonable doubt that the Defendant is guilty of the Defense [sic] charged, but you’re convinced beyond a reasonable doubt that the Defendant is guilty of a lesser included offense then you should reflect that on your verdict form.” Defense counsel responded that he had no problem with that instruction and would review it. The trial judge said they would discuss it again the following day.

After the last witness testified, jury charges were discussed again. Defense counsel objected to the jury charge that he had no problem with the day before. He said that a true reflection of the law was found in Porter — “The jury must be given an option to convict the defendant of a lesser charge even though the evidence clearly and overwhelmingly supported a conviction of the charged offense.” However, defense counsel said he “would not expect any Louisiana judge to use that language.” The prosecutor responded that the “jury will be given an opportunity to return a responsive verdict, that’s within the pattern jury | ^instructions.” After hearing arguments of counsel, the trial judge said that the jury must have the option to return a responsive verdict, and that the jury would be given the option to return the responsive verdict of manslaughter. Defense counsel noted his objection, arguing that was a qualified option.

Defense counsel then objected to another jury instruction which provided, “If the State fails to prove beyond a reasonable doubt that defendant is guilty of either the offense charged or a lesser offense, then your verdict form should be marked not guilty.” Defense counsel explained that that was a qualifying charge that limited and negated the holding in Porter. The prosecutor replied that that was a pattern jury instruction used throughout the 24th Judicial District Court, and it was appropriate and reflected the current state of the law. Defense counsel responded that that was not the current state of the law. The trial judge overruled the defense’s objections.

After the defense rested its case, the prosecutor gave his closing argument; however, defense counsel elected not to give one. Afterward, the trial judge asked if there were any objections to the jury charges. Defense counsel stated that he had the same objections that he had previously made during the jury charge conference based on Porter.

Defendant was subsequently found guilty as charged, after which he filed a motion for new trial and a motion for post-verdict judgment of acquittal. At the hearing on the motions, defense counsel argued, inter alia, that the trial judge had committed reversible error by not following the holdings of Porter and Guidry. The prosecutor replied that that argument had no merit, as the jury was given the option of returning the responsive verdict of manslaughter in compliance with Porter and Guidry. Defense counsel responded that a violation of the holding in Porter was not harmless error and would be reversed on appeal. After hearing 114arguments of counsel, the trial judge denied the motion for a new trial and the motion for a post-verdict judgment of acquittal.

LAW AND DISCUSSION

La. Const. art. I, § 17 guarantees a defendant full voir dire examination of prospective jurors and the right to challenge jurors peremptorily. The purpose of voir dire is to determine qualifications of prospective jurors by testing their competency and impartiality in order to discover bases for challenges for cause and for the intelligent exercise of peremptory challenges. State v. Hall, 616 So.2d 664, 668 (La.1993). Nonetheless, the scope of examination rests within the sound discretion of the trial court, and its ruling will not be disturbed absent clear abuse. La.C.Cr.P. art. 786; Hall, 616 So.2d at 669. In determining whether the trial court afforded sufficiently wide latitude to defendant, the entire voir dire examination must be considered. Id.

Under La.C.Cr.P. art. 802, the trial court “shall charge the jury ... [a]s to the law applicable to the case[.]” The State and defendant shall have the right to submit special written jury charges. La. C.Cr.P. art. 807. The court shall give a requested special jury charge “if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.” La.C.Cr.P. art. 807. See also State v. Tate, 01-1658, p. 20 (La.5/20/03), 851 So.2d 921, 937, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Fasola, 04-902, p. 19 (La.App. 5 Cir. 3/29/05), 901 So.2d 533, 545, writ denied, 05-1069 (La.12/9/05), 916 So.2d 1055. Failure to give a requested jury charge constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Harris, 01-2730, p. 46 (La.1/19/05), 892 So.2d 1238, 1261, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005). When a special jury charge is not reduced to writing for presentation to the court, a trial judge may properly refuse to give such a charge. See La.C.Cr.P. art. 807; State v. Davis, 00-278, p. 11 (La.App. 5 Cir. 8/29/00), 768 So.2d 201, 210, writ denied, 00-2730 (La.8/31/01), 795 So.2d 1205.

In Porter, the defendant was indicted for aggravated rape and second degree kidnapping, but convicted of the lesser offenses of forcible rape and simple kidnapping. The Supreme Court granted certio-rari to determine whether the trial court erred in granting the State’s motion to exclude from the list of responsive verdicts the statutorily authorized responsive verdicts of simple rape and attempted simple rape. The Supreme Court stated in pertinent part:

Since before the turn of the century, this court has recognized that a defendant, when charged with a crime for which the Legislature has provided a responsive verdict, has the statutory right to have the jury characterize his conduct as the lesser crime. Treating the jury’s prerogative to return a responsive verdict similar to the jury’s power of nullification, this court has consistently held that the jury must be given the option to convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged offense.

Porter, 639 So.2d at 1140 [footnote added].

After a lengthy analysis, the Supreme Court in Porter found that the trial court erred in granting the State’s motion to delete the simple rape and attempt simple rape responsive verdicts. It noted that the defendant had the right to have the jury resolve in his favor any doubts created by the victim’s alcohol consumption regarding either the degree of compulsion exercised by the defendant or the degree of resistance exercised by the victim, and to have the jury return a verdict of guilty of simple rape or attempted simple rape. The Supreme Court also 1T ¿found that this error was not harmless, since the lesser verdicts returned indicated the jury’s refusal to accept unconditionally the victim’s version of events and, therefore, there was the possibility that the jurors might have returned an even lesser verdict provided by statute, if given the option to do so. Porter, 639 So.2d at 1144.

In Jacobs, supra, the defendant argued that the trial court erroneously denied the following proposed instruction that was based on Porter, supra: ‘You may convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged crime.” Citing State v. Sharp, 35,714 (La.App. 2 Cir. 2/27/02), 810 So.2d 1179, writ denied, 02-1736 (La.6/6/03), 845 So.2d 1081, this Court concluded that the trial court did not err in rejecting the proposed charge. This Court found that in this case, as in Sharp, the use of the defendant’s proffered charge might have caused the jury to misunderstand or even disobey the law on responsive verdicts. This Court asserted that the record showed the trial court properly instructed the jury that it could return a verdict of a lesser-included offense, and that the judge had explained that the responsive verdicts were: guilty of second degree murder, guilty of manslaughter, guilty of negligent homicide, and not guilty. This Court found that since the defendant’s requested special jury charge was included in the court’s general charge, the general jury charge was sufficient to impart the law on responsive verdicts to the jury. Jacobs, 07-887 at 52-55, 67 So.3d at 573-75.

|17In State v. Legrand, 02-1462 (La.12/3/03), 864 So.2d 89 (unpublished app.), cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005), the defendant asserted that the trial court erred in refusing to instruct the jury that, “Even if you are convinced beyond a reasonable doubt that the defendant is guilty as charged, you may return that verdict or any of the lesser verdicts.” Instead, the trial court instructed the jury as to the charge and responsive verdicts and told them if they were “not convinced that the defendant is guilty of First Degree Murder, you may find the defendant guilty of another lesser offense, if you are convinced beyond a reasonable doubt that the defendant is guilty of a lesser offense.” The trial judge went on to say that “[i]f the state has failed to prove beyond a reasonable doubt that the defendant is guilty of either the offense charged or of a lesser responsive offense, the form of your verdict should be Not Guilty.”

The Louisiana Supreme Court in Le-grand found that the defendant’s requested special charge was an accurate statement of Louisiana law as found in State v. Porter, supra. However, the Supreme Court also found that a defendant was not necessarily entitled to an instruction in this respect, as a direct and blatant appeal to Louisiana’s traditional approach to jury compromise potentially conflicted with La. C.Cr.P. art. 790, which required jurors to swear an oath that they will “render a verdict according to the law and the evidence.” The Supreme Court stated that at any rate, the trial court had rejected the instruction at issue because it simply reiterated the law of responsive verdicts to the jury. Citing Sharp, supra, the Supreme Court concluded that the jury was clearly instructed that it could return a verdict of guilty of the lesser included offense of manslaughter and, therefore, a special instruction on the same issue was unwarranted. State v. Legrand, 02-1462 at 30-3, 864 So.2d 891 (unpublished app.).

|18In Seals, supra, the defendant alleged that the jury was erroneously instructed that it could not nullify the verdict. Citing Porter, supra, the Seals court explained that jury nullification was a recognized practice that allowed the jury to disregard uncontradicted evidence and instructions by the trial judge. This Court found that the trial judge did not err by refusing to instruct the jury on nullification, noting that the record showed the trial judge gave detailed, correct instructions as to the general law, and he did not specifically instruct the jury that it was prohibited from exercising its power to nullify its verdict. This Court also noted that defendant failed to show how the trial court’s refusal to instruct the jury to disregard the law and the evidence constituted a miscarriage of justice, prejudiced substantial rights of the defendant, or violated a constitutional or statutory right. Seals, 09-1089 at 75-77, 83 So.3d at 342-43.

In the instant case, defense counsel asked the trial judge many times to allow him to question the prospective jurors regarding his understanding of the law in Porter, namely that the jury must be given an option to convict defendant of a lesser charge even though the evidence clearly and overwhelmingly supports a conviction of the charged offense. Defense counsel also asked the trial judge many times for the jury to be instructed as to his interpretation of the ruling in Porter. The trial judge refused these requests. However, we find that the trial judge did not improperly restrict defendant’s voir dire by refusing to allow him to question the jurors regarding their ability to understand and apply the principles of Porter. We further find that the trial judge did not err by failing to include the requested special charge that the jury could return a responsive verdict despite the evidence of guilt.

First of all, defense counsel did not submit a special jury charge in writing; rather, he orally objected to the general jury instructions and informed the trial 1 lajudge that the language of Porter should be utilized therein. Although defense counsel told the trial judge he would provide a proposed written jury instruction based on Porter, the record does not reflect that he ever did. Because the special jury charge was not in writing, we find that the trial court properly refused to give such a charge. See Davis, supra.

Second, even though the special jury charge in question was arguably an accurate statement of Louisiana law as found in Porter, the Louisiana Supreme Court has found that a defendant is not necessarily entitled to such an instruction, because of its potential conflict with La.C.Cr.P. art. 790, which requires jurors to swear an oath that they will “render a verdict according to the law and the evidence.” See Legrand, supra. Also, a review of the entire voir dire in the instant case shows that the trial judge afforded a sufficiently wide latitude to defendant. See Hall, supra.

Additionally, as in Jacobs and Sharp, the record in the instant case shows that the trial judge properly explained that the responsive verdicts were: guilty of second degree murder, guilty of manslaughter, guilty of negligent homicide, and not guilty. The record also shows that the trial judge properly instructed the jury that it could return a verdict of a lesser included offense as follows:

In order to convict the defendant of second degree murder, you must find beyond a reasonable doubt that the state proved every element of the offense charged. If you are not convinced beyond a reasonable doubt that the defendant is guilty of the offense charged, but you are convinced beyond a reasonable doubt that the defendant is guilty of a lesser included offense, then you should reflect that on your verdict form.

Further, we find, as this Court did in Jacobs, that since defendant’s special requested jury charge based on Porter was included in the trial court’s general charge, the general jury charge was sufficient to impart the law on responsive verdicts to the jury. Lastly, we find that defendant has failed to show how the trial hncourt’s refusal to instruct the jury to disregard the law and the evidence constituted a miscarriage of justice, prejudiced substantial rights of the defendant, or violated a constitutional or statutory right. See Seals, supra. Assignments of error one and two lack merit.

ASSIGNMENT OF ERROR THREE

In assignment of error number three, defendant contends the trial court erred in failing to declare a mistrial premised upon the State’s mid-trial disclosure of videotape evidence showing appellant in the act of committing the charged offense.

Defendant argues that the trial judge erred by failing to declare a mistrial premised upon the State’s mid-trial disclosure of videotape evidence showing him in the act of committing the charged offense. He contends that prior to trial, the State produced multiple grainy still images and a non-operational disc which purported to show the shooting. Defendant claims that the clarity and impact of the video evidence produced at trial, compared to the still photographs, was so great that it would have changed his trial strategy and even his decision to go to trial. The State responds that considering the overwhelming evidence of guilt, defendant has not shown any prejudice by the trial court’s denial of the motion for a mistrial. The State further responds that any error the trial court may have made in denying defendant’s motion for a mistrial was harmless.

Edward Rohde of the Kenner Police Department testified that he located a video recording of Lanell’s murder from the Kenner apartment complex computer system. He downloaded that video to a thumb drive and returned to the police complex. As Rohde played the video, he captured and saved frames to a folder. Afterward, Rohde saved everything to a CD-Rom which was marked as State’s Exhibit 307. He also identified State’s Exhibits 308 through 341 as still images |2idownloaded from the Kenner Housing Authority Complex computer. The video from that CD-Rom was played for the jury.

While the video was playing, defense counsel objected, and the video was stopped. A bench conference was held, during which defense counsel argued that the quality of the video the State was showing at trial was not the same quality that the State provided to him before trial. Defense counsel explained that the video at trial contained a shooting, and that shooting was not shown on his video. He commented that this situation caught him completely by surprise.

The prosecutor responded that she had called defense counsel the weekend before trial began on Friday, Saturday, and Sunday, and that they had spoken on Friday and Sunday. During those conversations, she told defense counsel that there was software that allowed the video to play nonstop. The prosecutor said she explained to defense counsel that he could use Kodak to display the video full-stream in Windows Media Player. Defense counsel recalled that he and the prosecutor had discussed that they were having trouble opening the video. He said that she had given him the “VLS” website for him to download it so he could view the video. Defense counsel stated that he had downloaded the video, but that he and the prosecutor were having trouble getting it the correct size because the video was upside down or sideways. He said he had no idea that if he downloaded a second source, he would have a full video.

The prosecutor responded that she told defense counsel on at least four occasions that he could come and see the physical property at her office at any time he wanted, and she noted that defense counsel had had that video since May of 2010. After hearing arguments of counsel, the trial judge overruled defense counsel’s objection, stating that defense counsel had open file discovery and the chance to go to the District Attorney’s office to view the video and to make sure l^that he and the State had the same video. Following the trial judge’s ruling, the rest of the video was played for the jury.

The next day, defense counsel moved for a mistrial. He argued that the four-second image of the individual in black coming out from the building and shooting was not displayed in the video he possessed. Defense counsel also noted that he had made certain statements in his opening statement regarding the video he had in his possession that he would not have made had he known about the existence of the State’s full-stream video.

The prosecutor responded that the video was provided to defense counsel in its entirety in the exact format the State had. She explained that she and defense counsel were having the same problem opening up the file six or seven months prior. She further explained that the week before trial, she got her IT department involved and, realizing there were programs that could open that video file, shared that information with defense counsel. The prosecutor said she and defense counsel were on the phone together as they walked through the process of opening the program. She explained that she and defense counsel both realized that there was a four-second delay that was not captured that needed to be recaptured.

Once the technicians resolved the problem, she called defense counsel on Friday and Saturday because she wanted him to have the same information she had. She could not get back in touch with defense counsel, so she sent him an e-mail containing that information. The prosecutor told defense counsel she would be at the office the next day on Sunday and extended an offer to view all the physical evidence in this case, which she had extended on four previous occasions including during regular working hours. The prosecutor said she eventually talked to defense counsel on Sunday and asked him if he had seen her e-mail. He said he had been at the jail but would look at the e-mail. She explained to defense counsel l^at that time that the video would open and play through Windows Media Player. Defense counsel replied that the prosecutor had not informed him that she could access full-stream video and that she had a computer program that could add data to video that was not previously there.

After hearing arguments of counsel, the trial judge denied the motion for mistrial, stating that defense counsel had the opportunity to view everything, and that if the video was an issue, he should have gone to the District Attorney’s office and made sure he and the State had the same video.

Following the guilty verdicts, defense counsel filed a motion for new trial and a motion for post-verdict judgment of acquittal. At the hearing, defense counsel argued that the motions were based, in part, on his being surprised by the State’s video, and that he was not provided with the method of opening the video until the Saturday before trial. The prosecutor responded that the State complied with discovery obligations by turning over the video of the offense in May of 2010. She further responded that she gave defense counsel numerous opportunities to view the video at her office, and she also provided him with the software necessary to download the full-stream video. After hearing arguments of counsel, the trial judge denied the motions without providing reasons.

LAW AND DISCUSSION

La.C.Cr.P. art. 775 provides that “[ujpon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.” When the conduct does not fall within the mandatory mistrial provisions of La. C.Cr.P. art. 770, the judge has the sound discretion to determine whether the activity or comment so prejudiced the | ^defendant that he could not receive a fair trial. State v. Talbot, 408 So.2d 861, 866 (La.1980). A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to defendant that deprives him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. State v. Pierce, 11-320, pp. 4-5 (La.App. 5 Cir. 12/29/11), 80 So.3d 1267, 1271.

La.C.Cr.P. art. 718(2) requires the State, on defendant’s motion, to produce documents and tangible objects that are within its possession, custody or control and that are intended for use by the State as evidence at the trial. The State is under a continuing obligation to promptly disclose additional evidence that may be discovered or that it decides to use as evidence at trial. La. C.Cr.P. art. 729.3. When a party fails to comply with the provisions of the discovery articles, “the court may order such party to permit the discovery or inspection, grant a continuanee, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.” La.C.Cr.P. art. 729.5(A). It is within the trial court’s discretion to choose an appropriate remedy for a discovery 12sviolation that will offset any possible prejudice. State v. Chaplain, 03-338, p. 4 (La.App. 5 Cir. 7/29/03), 852 So.2d 1088, 1089.

The State’s failure to comply with discovery procedures does not automatically require reversal. The appellate court must examine the circumstances of the case to determine whether the defendant was prejudiced, and whether any prejudice resulting from the State’s non-compliance with discovery procedure caused the trier-of-fact to reach the wrong conclusion. State v. King, 06-554, pp. 17-18 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 396, writ denied, 07-371 (La.5/4/07), 956 So.2d 600 (citing State v. Sweeney, 443 So.2d 522, 527 (La.1983)).

In State v. Smith, 99-1020, pp. 6-7 (La.App. 5 Cir. 2/29/00), 757 So.2d 74, 77-78, writs denied, 00-1017 (La.3/30/01), 788 So.2d 439 and 01-854 (La.11/21/01), 802 So.2d 631, this Court explained:

The discovery articles are intended to eliminate unwarranted prejudice which could arise from surprise testimony and evidence, to permit the defense to answer the State’s case, and to allow the defendant to properly assess the strength of the State’s evidence in preparing a defense. When the defendant is lulled into a misapprehension of the strength of the State’s ease through the prosecution’s failure to disclose timely or fully, and the defendant suffers prejudice when the undisclosed evidence is used against him, basic unfairness results which constitutes reversible error. However, a conviction will not be reversed on the basis of a discovery violation unless prejudice is shown by the trial court’s adverse ruling.

In State v. Johnson, 11-63 (La.App. 5 Cir. 11/15/11), 78 So.3d 255, the defendant contended that a videotape made by the police during the execution of a search warrant should have been excluded because the State did not provide it to him in a timely fashion during discovery. This Court noted that the defendant had approximately two years notice prior to trial of the existence of the videotape and its contents. It stated that even though defense counsel did not view the videotape, he certainly should have known the items seized in the search. Also, this Court 126found that the defendant did not demonstrate how his defense would have been different had he learned of the videotape prior to trial. This Court concluded that given the circumstances, it could not be said that the defendant was lulled into a misapprehension of the strength of the State’s case nor could it be said that the alleged late disclosure affected his ability to prepare a defense. Id., 11-63 at 8-9, 78 So.3d at 261.

In State v. Chaplain, 03-338 (La.App. 5 Cir. 7/29/03), 852 So.2d 1088, the defendant asserted the trial court erred by not suppressing a videotape of him shoplifting after the State failed to timely disclose its existence. This Court found that the defendant had failed to show any specific prejudice that resulted from the untimely disclosure of the videotape. It stated that by defense counsel’s own admission, the tape corroborated expected testimony and did not reveal any new witnesses. This Court asserted that the defendant did not demonstrate how his defense would have been different had he learned of the videotape prior to trial, and that the defense merely made a broad assertion that he did not have time to prepare a defense to the videotape. It further found that there was no allegation or evidence of bad faith on the part of the State. This Court noted that the trial court provided a sufficient remedy to the defendant when it recessed trial to give the defendant an opportunity to view the videotape. Id., 03-388 at 5-6, 852 So.2d at 1090.

In the instant case, it is noted initially that defendant is alleging a discovery violation and, therefore, a mistrial was not mandatory under La.C.Cr.P. art. 770. Therefore, the decision to grant a mistrial was discretionary. After reviewing the record, we find that no discovery violation occurred. The record reflects that the prosecutor provided the disc containing the video to defense counsel in May of 2010, over one year prior to trial. When the prosecutor realized there was a 127problem opening the video, she had her IT department check into the problem, after which she contacted defense counsel and they walked through the process of opening the video. The prosecutor extended offers numerous times to defense counsel to come to her office to view the video prior to trial; however, he chose not to do so. Additionally, there is no evidence of bad faith on the part of the State. See Chaplain, supra.

In any event, we find that the jury’s viewing of the video of the shooting did not prejudice defendant, as the video only corroborated the other evidence against defendant. Witnesses testified that they observed an abusive relationship between defendant and the victim. Defendant admitted that after the victim moved away, he obtained directions, borrowed a vehicle, and drove from Florida to Kenner in search of the victim. He confessed to being at the crime scene around the time of the shooting, and he told the detective that he had done something “stupid,” that he and the victim’s children would not have the victim anymore, and that he would be serving a life sentence in prison. An eyewitness positively identified defendant as the individual who shot the victim. Following the shooting, defendant led police on a high-speed chase, during which he threw a gun into the water. Testing on the gun showed that it was the murder weapon.

In light of the foregoing, we find that the trial judge did not abuse her discretion by denying the motion for mistrial. This third assignment of error lacks merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals one error patent.

[ 2sThere is a discrepancy between the commitment and the transcript involving the sentences. According to the transcript, the sentences were ordered to run consecutively to any other sentence defendant may be serving. However, the commitment does not reflect this. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). As such, we remand this matter for correction of the commitment to accurately reflect that the sentences are to run consecutively to any other sentence defendant may be serving. See State v. Hart, 10-905, pp. 11-12 (La.App. 5 Cir. 5/10/11), 66 So.3d 44, 51, writ denied, 11-1178 (La.11/18/11), 75 So.3d 448. We further order the district court on remand to make the entries in the commitment reflecting this change and direct the Clerk of Court to transmit the original of the minute entry to the officer in charge of the institution to which defendant has been sentenced and to the Louisiana Department of Corrections Legal Department. See La.C.Cr.P. art. 892(B)(2);. State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

CONCLUSION

For the reasons assigned herein, defendant’s convictions and sentences are hereby affirmed.

AFFIRMED

      . It is noted that defense counsel relied upon both Porter and Guidry in his argument in the trial court. However, even though the Third Circuit in Guidry quoted this law in its opinion, the underlying facts in Guidry are not particularly germane to the instant discussion. State v. Guidry, 94-596 at 3-4, 649 So.2d at 488.

      . In Sharp, the defendant was tried and convicted of second degree murder. The defendant requested a jury instruction providing that the jury had the option of convicting him of the lesser offense of manslaughter, even if the evidence supported a second degree murder conviction. The trial court rejected the proposed charge. On appeal, the Second Circuit in Sharp found that the trial court had not erred in rejecting the proposed charge, since the trial court clearly instructed the jury that it could return a responsive verdict of manslaughter. The Sharp court explained that to expound the responsive verdict in the way the defendant suggested would require at the very least qualification and explanation, and that there was no Louisiana jurisprudence supporting an argument that it was proper to instruct a jury that it could disobey law and reach a verdict inconsistent with the evidence. Jacobs, 07-887 at 54, 67 So.3d at 575.

      . La.C.Cr.P. art. 770 provides: Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      es) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark .or comment but shall not declare a mistrial.


source: Caselaw Access Project

author: ROBERT M. MURPHY, Judge. LILJEBERG, J.,

license: Public Domain

text:
    STATE of Louisiana v. Quincy McKINNIES, Jr.
    No. 12-KA-335.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Assistant District Attorneys, Gretna, LA, for appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

|2The State appeals the trial court’s granting of a new trial. For the reasons that follow, this Court affirms.

PROCEDURAL HISTORY

On January 26, 2011, the defendant, Quincy McKinnies, Jr., was charged by bill of information with aggravated assault on a peace officer with a firearm, a violation of La. R.S. 14:37.2. On January 28, 2011, defendant was arraigned and pled not guilty. The matter proceeded to trial on October 18, 2011; the jury found defendant guilty as charged.

On November 3, 2011, defendant filed a motion for new trial based on the discovery of new evidence. In defendant’s affidavit in support of his motion for a new trial, defendant argued that a new trial was warranted on the grounds that newly discovered evidence, regarding the credibility of key witness Officer Ryan Mekdes-sie, “would probably have changed the verdict or judgment of guilty.” On |3January 3, 2012, after listening to the arguments of counsel, the trial judge took the motion for a new trial under advisement. On January 5, 2012, the trial judge granted defendant’s motion for a new trial, declaring in both the oral and written judgment that “the ends of justice would best be served by the granting of a new trial,” pursuant to La.C.Cr.P. art. 851(5).

The State thereafter filed a timely writ application with this Court under docket number 12-K-192, seeking review of the trial court’s granting of defendant’s motion for a new trial, arguing among other things that the trial court erred in granting the motion “in the interest of justice without identifying the reasons for the ruling.” On March 1, 2012, this Court directed the district court to issue a per curiam opinion “outlining the reasons why the motion for new trial was granted pursuant to La.C.Cr.P. art. 851(5).”

On March 5, 2012, the trial judge issued a per curiam, stating: “[t]he court after hearing the testimony of witnesses, watching their demeanor while testifying, and considering the evidence presented by all parties, has reasonable doubt as to the guilt of the defendant. Therefore, the court believes that the ends of justice would best be served by granting defendant, Quincy McKinnies a new trial.”

After review by this Court of the per curiam filed by the trial judge, on March 22, 2012, this Court granted the State’s writ for the limited purpose of instructing the trial court to consider the State’s notice of intent to seek writs as a motion for appeal of the lower court’s ruling granting the defendant’s motion for new trial. Thus, pursuant to our Court’s order, the trial court granted the State’s motion for appeal.

Subsequent to the filing of the State’s appeal, defendant filed a motion to remand “this case back to the trial court in order for the appellee to amend his original motion for new trial to include the newly disclosed information as further reasons for the motion being granted.” On June 18, 2012, this Court granted ^defendant’s motion to remand “for further proceedings surrounding appellee’s motion for new trial.” The proceedings in this Court were stayed “until such time that the proceedings in the trial court are concluded.” On October 26, 2012, a hearing was held in the trial court wherein defendant made an oral motion to amend his original motion for a new trial “by adding a witness.” The trial court denied defendant’s motion to amend his original motion for a new trial.

The State now appeals the granting of defendant’s motion for a new trial.

FACTS

At approximately 2:30 a.m. on December 1, 2012, Detective Ashton Gibbs was on a foot patrol detail at the Gator Bait Lounge when he observed a parked vehicle illegally blocking a residential driveway. Upon approaching the vehicle, Detective Gibbs observed that the windows were darkly tinted; so, he used his flashlight to look inside the vehicle to determine whether it was occupied. When he peered inside the vehicle, Detective Gibbs saw a handgun in plain view on the floorboard between the passenger and driver seats. Gibbs returned to his police car and conducted a computer inquiry of the illegally parked vehicle’s license plate. The search revealed that the vehicle was registered to a woman by the name of Aisha Blakely. Because the search revealed that Blakely was not a convicted felon, Detective Gibbs testified that “the gun became of no concern.”

While filling out the parking citation for the illegally parked vehicle, defendant exited the Gator Bait Lounge and proceeded to walk towards the vehicle. Defendant then retrieved a set of keys from his pocket and unlocked the vehicle with his remote. Believing defendant to be the driver of the vehicle, the officer attempted to approach defendant to issue him a parking citation. Defendant disregarded the officer, entered the vehicle, and drove off at a high rate of speed despite warnings by the officer to stop. Detective Gibbs testified that he observed defendant neglect to stop at two stop signs as he fled from the Gator Bait Lounge.

| .¡Detective Gibbs testified that Officer Ryan Mekdessie, who was also on the scene, was aware of the situation leading up to defendant’s flight. Accordingly, Officer Mekdessie activated the emergency lights and sirens on his police vehicle, and gave chase in an attempt to stop defendant. Detective Gibbs testified that he then returned to his own police car and drove to the dispatched location where defendant had abandoned his vehicle.

After setting up a perimeter around defendant’s abandoned vehicle with various other reporting officers, defendant was spotted and pursued by Officer Mekdessie. Detective Gibbs testified that while stationed at his perimeter position, he heard Officer Mekdessie repeatedly shouting, “[l]et me see your hands. Show me you [sic] hands.” After hearing that phrase shouted, Detective Gibbs heard two gunshots, again followed by Officer Mekdes-sie’s warning and followed by three more gunshots. When Detective Gibbs arrived at the area where the shots had been fired, he observed Officer Mekdessie, Officer Newby, Officer Arabie, and Officer Benet near defendant who had sustained a gunshot wound and was lying on the ground.

Upon arrest, it was noted that defendant suffered from a graze wound to his abdomen and hip, and Officer Mekdessie’s K-9 had also suffered from a gunshot wound. Defendant was transported to the hospital for treatment. Defendant’s gun was never recovered despite search efforts made by various officers.

Sergeant Tris Lear testified that he assisted in setting up the perimeter around defendant’s abandoned vehicle. While positioned with Detective Gibbs and Sergeant Heintz behind a wooded area, Sergeant Lear testified that he heard Officer Mekdessie shout the warning again, followed by three more gunshots.

Officer Mekdessie testified that he is a patrol officer and K-9 handler for the Gretna Police Department. While on patrol, Officer Mekdessie testified that Detective Gibbs informed him of his intention to issue a parking citation for a | ¡¡vehicle in which a handgun was observed on the floorboard. Thus, when defendant attempted to flee in the subject vehicle, Officer Mekdessie testified that he activated his lights and sirens and gave chase in his marked patrol unit. When defendant finally stopped his vehicle after fleeing for a “couple of blocks,” he got out and began to flee on foot. Officer Mekdessie testified that he was a few feet away from defendant who pointed a gun at him before he fled on foot. Officer Mekdessie testified that when defendant pointed his gun at him, he had his patrol car door open. He immediately took cover and unholstered his weapon. When he looked up, defendant was gone. At that time, Officer Mek-dessie released his K-9 and followed his K-9 in an attempt to locate defendant. Officer Mekdessie testified that his K-9 picked up defendant’s scent, but Officer Mekdessie pulled back his K-9 and set up another perimeter rather than follow the scent for safety reasons.

Over the radio, Officer Mekdessie advised of his position and provided a description of defendant. According to Officer Mekdessie, one of the three on-scene officers reported seeing defendant; so, Officer Mekdessie relocated to the referenced location which was approximately four blocks from his position. Prior to reporting to the location, Officer Mekdes-sie placed a harness with a 15-foot lead on his K-9. Officer Mekdessie was led by his K-9 to a dark, vacant lot where defendant was hiding behind a tree. Officer Mekdes-sie testified that he ordered defendant to come out from behind the tree, shouting, “[s]how me your hand[s]. Show me your hands.” Defendant did not come out; so, Officer Mekdessie released his K-9. Once his K-9 approached defendant, Officer Mekdessie testified that he “heard some tussling going on” and then saw defendant move from behind the tree with his right hand grabbing his K-9’s neck with “his other hand coming from his waistband.” Officer Mekdessie further testified that he shouted “[s]top fighting my dog. Show me your hand[s]. Show me your hands.” When defendant |7failed to comply, Officer Mekdessie testified that he was in fear for his life and his K-9’s; so, he fired two shots. After firing the two gunshots, Officer Mekdessie’s K-9 returned limping, while defendant proceeded to jump the fence. Officer Mekdessie again ordered defendant to show his hands, but he refused to comply and was observed reaching in his waistband. At that time Officer Mekdessie testified that he fired three more shots. With defendant on the ground, Officer Mekdessie testified that defendant put his hands up, stating, “I’m hit.”

On cross-examination, Officer Mekdessie testified that defendant only pointed his weapon at him and did not fire.

Defendant testified, admitting that he fled from the police and that after running four or five blocks, the police caught up to him. Defendant testified that before he could jump the fence, the police started shooting at him, causing him to “hit the ground.” He further testified that when the police approached him, they placed him in handcuffs and started to beat him, knocking out all of his teeth on one side of his mouth. Defendant denied ever pointing a weapon at any police officer, denied having a weapon in his possession that night, and further denied having a weapon in his girlfriend’s vehicle. He testified that he was never confronted by a K-9 and did not know there was a K-9 on the scene until he overheard the officers stating that he had shot them dog. Defendant also testified that he never heard the officer order him to show his hands; instead, the officer just started shooting.

ASSIGNMENTS OF ERROR

1. The trial court erred in granting a motion for a new trial where the written reasons granting the new trial are not responsive to the reasons given by the defense requesting a new trial.
2. The defense failed to filed a post-verdict judgment of acquittal; therefore, the trial court erroneously considered the sufficiency of the evidence in granting a new trial.
|s3. It was erroneous for the trial court to grant a new trial without identifying the reasons for granting the new trial or the legal standard used.
4. It was erroneous for the trial court to grant a new trial where the alleged new evidence was not shown to be newly discovered.
5. It was erroneous for the trial court to grant a new trial where the alleged new evidence would not have changed the jury verdict.
6. Any error in this case was harmless.

DISCUSSION

In its first assignment of error, the State argues that the objections raised by defendant in his written motion for a new trial, and at the hearing on his motion, are different from the grounds upon which the trial court granted defendant a new trial. In particular, the State notes that despite the “newly discovered” evidence ground asserted by defendant in support of his motion, the trial court granted defendant’s motion based on a finding that the court had reasonable doubt as to defendant’s guilt. Thus, the State claims that the trial court erred in its ruling because the trial court is limited in granting a new trial to the objections presented. Accordingly, the State concludes that when the trial court granted defendant’s motion for a new trial on its own finding of reasonable doubt, it applied the incorrect standard of review, and, in doing so, abused its discretion.

Additionally, in its third assignment of error, the State contends that where the trial court exercises its discretion and fails to identify the concerns it has with the trial, the decision to grant a new trial is an error of law because there is nothing to support the exercise of the trial court’s discretion. Thus, the State argues that the trial court’s failure to provide reasons for its granting of defendant’s motion for a new trial warrants reversal of the court’s ruling.

Law and analysis:

Based on a reading of the trial court’s oral and written reasons for judgment, in addition to the court’s per curiam, we find that the trial court complied with the requirements in granting defendant a new trial.

1 3La.C.Cr.P. art. 851 provides:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.

The court, on motion of the defendant, shall grant a new trial whenever:

(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discoverable before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be sened by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right. (Emphasis added).

La.C.Cr.P. art. 852 requires that: “[a] motion for new trial shall be in writing, shall state the grounds upon which it is based and shall be tried contradictorily with the district attorney.” La.C.Cr.P. art 853 requires that the motion for a new trial be filed and disposed of before sentence.

We find that the trial court adhered to the procedural and substantive requirements in hearing and granting defendant’s motion. The court’s oral and written reasons mirrored that of the statute.

A motion for new trial is based on the supposition, a threshold requirement, that injustice has been done to the defendant. State v. Raines, 00-1941, p. 10 (La.App. 5 Cir. 5/30/01), 788 So.2d 635, 642, writ denied, 01-1906 (La.5/10/02), 815 So.2d 833, (citing State v. Washington, 98-69, p. 9 (La.App. 5 Cir. 1/26/99), 727 So.2d 673, 677). After taking the matter under advisement on January 5, 2012, the trial court granted defendant’s motion for a new trial, ruling as follows:

THE COURT:
We’ve considered the motions and argument of counsel that were made on Tuesday. The Court is of the opinion that the ends of justice would be best served by the granting of a new trial. Even though they may not be entitled to it under the grounds that were set forth in the defendant’s motion. I do believe that in the interest of justice, we’re going to go ahead and grant a new trial. And that’s under Article 851, Section 5.
ImMR. SHUTE:
851, Section 5, is the reasons for granting—
THE COURT:
The reasons for the judgment, that is correct.

The court found injustice as required by La.C.Cr.P. art. 851:

[i]n accordance with Louisiana Code of Criminal Procedure art. 851[ (5) ], this Court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

The defendant made a motion for a new trial on November 3, 2011, in compliance with both La.C.Cr.P. art. 851 and the written requirement of La.C.Cr.P. art. 852. The motion was filed before sentencing in compliance with La.C.Cr.P. art. 853. The defendant further stated a ground (new and material evidence) for a new trial in his motion, and the matter was tried contradictorily with the District Attorney on January 3, 2012, pursuant to La.C.Cr.P. art. 852.

The trial court further complied with this Court’s order to submit a per curiam, outlining the reasons why the motion for a new trial was granted. The trial court stated:

The court after hearing the testimony of witnesses, watching their demeanor while testifying, and considering the evidence presented by all parties, has reasonable doubt as to the guilt of the defendant. (Emphasis added).
Therefore, the court believes that the ends of justice would best be served by granting defendant, Quincy McKinnies, a new trial.

State v. McKinnies, 10-6216 (24th JDC 3/5/12) (per curiam). The trial court’s written judgment indicated that he granted the new trial on the ends of justice basis of La.C.Cr.P. art. 851(5). Based on the language of the per curiam above, the trial court expanded its ruling to include La.C.Cr.P. art. 851(1) as a basis for finding that a new trial was also warranted because the verdict was contrary to the law and the evidence. On finding grounds for granting a new trial under La.C.Cr.P. art. 851(1) and (5), the trial judge acted in conformity with La.C.Cr.P. art. 851 which requires the trial court to grant a new trial whenever any of the grounds are met: “[t]he court, on motion of the defendant, shall grant a new trial whenever” any one of the grounds of C.Cr.P. art. 851 is met. (Emphasis added).

| nThe State contends that the trial court does not have the authority to grant a new trial on a different basis than that urged by the defendant. We find, however, that the plain language of La.C.Cr.P. art. 851 provides an exclusive list of possible grounds for new trial, that the trial judge stated his reasons within the strict parameters of that Louisiana statute and was within his discretion to consider additional grounds at the hearing. See La. C.Cr.P. art. 856. Nowhere did the Legislature dictate that the judge is restricted to the grounds asserted in the motion filed by defendant.

The next question to address is whether the trial court abused its discretion in granting defendant a new trial under La.C.Cr.P. art 851(1) and (5). The State argues that the record is silent in this case as to the trial court’s considerations in granting defendant a new trial. The State contends that there is nothing to support the exercise of the trial court’s discretion in granting a new trial.

La.C.Cr.P. art. 851(1) provides that the court shall grant a motion for a new trial whenever the verdict is contrary to the law and the evidence. In considering a motion based on this ground, the trial court must sit as a “thirteenth juror,” reweighing the evidence and determining whether it agrees with the jury’s resolution of the evidence, in effect becoming the trier of fact. State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517, 523, writ denied, 96-0388 (La.9/13/96), 679 So.2d 102; State v. Jeanlouis, 96-474 (La.App. 3 Cir. 11/6/96), 683 So.2d 1355, 1361, writ denied, 96-2822 (La.4/18/07), 692 So.2d 446; and State v. Korman, 439 So.2d 1099 (La.App. 1 Cir.1983). In considering a motion for a new trial under this ground, the trial court has wide discretion in determining the weight of evidence. The weight of the evidence refers to a determination by the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

|12A determination of the weight of the evidence is a question of fact; and in a criminal case, such a determination is not subject to appellate review. La. Const. art. V, § 10(B); State v. Azema, 633 So.2d 723, 727 (La.App. 1 Cir.1993), writ denied, 637 So.2d 460 (La.1994). Moreover, La. C.Cr.P. art. 858 specifically provides that “[njeither the appellate nor supervisory jurisdiction of the Supreme Court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.” State v. Perrin, 04-471, p. 4 (La.App. 5 Cir. 2/15/05), 897 So.2d 749, 751. The decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Humphrey, 445 So.2d 1155, 1160 (La.1984).

Conversely, the grant of a new trial pursuant to La.C.Cr.P. art. 851(5) does not involve questions of fact, but a determination of the trial court that the ends of justice would be served by a new trial even though the defendant may not be entitled to one as a matter of strict legal right. State v. Guillory, 10-1231, p. 3 (La.10/8/10), 45 So.3d 612, 615. The Louisiana Supreme Court had held repeatedly that the grant or denial of a new trial under subparagraph (5) is unreviewable. However, the Guillory Court partially overturned this line of jurisprudence when it determined that a grant or denial of a motion for a new trial pursuant to La. C.Cr.P. art. 851(5) presents a question of law that is subject to appellate review for abuse of discretion. 10-1231 at 3-4, 45 So.3d at 614-15.

In deciding whether a trial court has abused its discretion in granting a new trial under La.C.Cr.P. art. 851(5), the Supreme Court stated that when the trial judge sits as a 13th juror, the inquiry is whether the verdict falls short of serving the best interests of justice. Guillory, 10-1231 at 5, 45 So.3d at 616, (citing State v. Watts, 00-602, p. 9 (La.1/14/03), 835 So.2d 441, 449 n. 8).

Lain Guillory, the trial court answered the question of whether the verdict fell short of serving the best interest of justice in the affirmative declaring that it had indicated early on that it had some concerns with some issues that were occurring in the case, and further stating that “where this court has the opportunity or dictates to sit as the 13th juror, as to whether the ends of justice would be served in granting a new trial, I’m granting that at this time.” Guillory, 10-1231 at 2, 45 So.3d at 614.

The Louisiana Supreme Court considered the great discretion afforded to the trial court and found that the trial court’s declaration regarding “issues and concerns,” by itself, was insufficient to support a finding that the trial court did not abuse its discretion. 10-1231 at 5, 45 So.3d at 616. The Court held that the decision to grant a new trial was an error of law because there was nothing to support the exercise of the trial court’s discretion. 10-1231 at 6, 45 So.3d at 617. (Citation omitted). Ultimately, the trial court’s ruling was reversed and vacated, and the jury’s verdict was reinstated. Id.

We find that the dictates of State v. Guillory, 10-1231 (La.10/8/10), 45 So.3d 612, 615 were followed in the instant matter. The Guillory Court required articulation by the trial court of the “issues and concerns” it had. That is exactly what took place in this case.

The State argues that like the trial court in Guillory, the trial court in this case failed to substantiate its concerns and therefore abused its discretion. Here, however, the trial court answered the appellate court’s inquiry well beyond “unar-ticulated concerns.” Asked to outline the reasons why the motion was granted under La.C.Cr.P. art. 851(5), the trial court specified it had “reasonable doubt” as to the guilt of the defendant, a marked difference from the vague “issues and concerns” rejected in Guillory. In fact, in reviewing the entire trial record, the trial court found “reasonable doubt,” the equivalent of not guilty. If ever the ends of justice were not met by the decision of the jury, it was here, in the trial judge’s |14opinion. We find no error of law in the instant case, as the ground stated by the trial court supports the grant of a new trial.

The State contends in its second assignment of error, that because the defense failed to file a post-judgment verdict of acquittal, the trial court erroneously considered the sufficiency of the evidence in granting a new trial. The State avers that the trial court erroneously applied the incorrect standard of review when granting defendant’s motion for a new trial under La.C.Cr.P. art. 851. The State argues that the trial court considered the sufficiency of the evidence rather than the weight of the evidence in ruling on defendant’s motion. Thus, because the question of sufficiency is properly raised in a post-judgment verdict of acquittal, which defendant did not file, the State argues that granting defendant’s motion for a new trial based on “reasonable doubt” mandates reversal.

The State’s argument in this assignment of error is misplaced. The trial court expressed in its per curiam that it had “reasonable doubt as to the guilt of the defendant.” The State construes this language to mean that the trial court improperly employed a sufficiency standard of review under Jackson. We find the State makes this conclusory allegation without support.

When the trial court reasoned that “after hearing the testimony of the witnesses, watching their demeanor while testifying, and considering the evidence presented by all parties, [the court] has reasonable doubt as to the guilt of the defendant,” it is clear that the trial court believed a new trial was warranted under La.C.Cr.P. art. 851(1). When a new trial is granted pursuant to La.C.Cr.P. art. 851(1), the trial judge makes a finding that “the verdict is contrary to the law and the evidence,” viz., there is reasonable doubt as to the guilt of the defendant. Guillory, 10-1231 at 3, 45 So.3d at 614-15. Notably, the trial court did not use the Jackson language to delineate its findings, namely, that “after viewing the evidence [ 1f,in the light most favorable to the prosecution, any rational trier of fact could have found the essential element of the crime proven beyond a reasonable doubt.” As the trial court did not use sufficiency language, this assignment of error is without merit.

In its assignments of error four, five and six, the State contends it was erroneous for the trial court to grant a new trial where the alleged new evidence was not shown to be newly discovered; it was erroneous for the trial court to grant a new trial where the alleged new evidence would not have changed the jury verdict; and any error in this case is harmless. The State contends the trial court erroneously granted a new trial when defendant failed to: (1) proffer any evidence as to when or how he learned of the alleged “new evidence” regarding Officer Mekdessie; and (2) inform the court of the diligent steps, if any, he took toward discovering the “new evidence” or why the evidence was not discoverable before trial. The State further contends that even if the evidence could have been characterized as “newly discovered,” defendant failed to carry his burden of proving that the alleged new evidence probably would have changed the verdict or judgment of guilty. The State also asserts that defendant failed to show that the allegations against Officer Mek-dessie were relevant or even admissible. Additionally, the State contends that because the alleged newly discovered evidence related to the credibility of Officer Mekdessie, such evidence would not ordinarily support a motion for a new trial. In the alternative, the State argues that should this Court conclude that the jury should have had the opportunity to judge the “unsupported accusations” directed at Officer Mekdessie’s credibility, any alleged error is harmless.

We find the State’s last three assignments of error have already been addressed in this opinion. This Court finds the trial court met the procedural requirements of La.C.Cr.P. 851, et seq., in requiring a written motion listing ajj^ground for a new trial, and holding a contradictory hearing, and in its discretion considering additional grounds.

Accordingly, we find that the merits of defendant’s “newly discovered evidence” which concern Officer Mekdessie’s “credibility,” need not be addressed because such evidence did not form the basis of the trial court’s granting of a new trial. Defendant complied with the requirements of La.C.Cr.P. art. 856 to list the grounds then “known and available” to him; he could not have been expected to know of the trial judge’s then-unexpressed reasons he would ultimately assign to his ruling on defendant’s motion.

ERRORS PATENT REVIEW

The record was reviewed for error patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

DECREE

We affirm the trial court’s granting defendant Quincy McKinnies, Jr. a new trial.

AFFIRMED

LILJEBERG, J.,

dissents with reasons.

liFor the reasons set forth below, I must respectfully dissent from the majority opinion. First, I disagree with the majority’s finding that the trial judge properly granted a new trial on grounds not raised in defendant’s motion for new trial. This supposition is not founded in our state’s jurisprudence, nor is it supported by the language of the Code of Criminal Procedure. La.C.Cr.P. arts. 851, 852 and 856, taken together, state that only upon motion of the defendant, wherein defendant in writing shall raise all grounds upon which the motion is based, shall a trial judge grant a new trial where it has been shown that injustice has been done to the defendant. Here, defendant properly moved for a new trial prior to sentencing. However, he raised only one ground — newly discovered evidence. Notwithstanding, the trial judge failed to rule on the properly filed motion before him and sua sponte granted defendant a new trial in the interest of justice finding that the verdict was contrary to the law and evidence, a ground not urged by defendant.

Whether a trial court may grant a new trial on a ground not raised by the defendant appears to be an issue of first impression in Louisiana; however, in U.S. v. Nguyen, 507 F.3d 836 (5th Cir.2007), the Fifth Circuit Court of Appeals, finding this same issue to be one of first impression in its circuit, held that a district court does not have authority to grant a new trial |2on a ground not raised by the defendant under Federal Rule of Criminal Procedure 33. In Nguyen, almost factually indistinguishable from the instant case, the defendant moved for a new trial pursuant to Rule 33 on the basis of newly discovered evidence; however, the court ultimately granted the defendant a new trial in the interest of fairness and justice, finding that the government made an improper rebuttal argument at trial. On appeal, the government contended that the district court was without authority to grant a new trial based upon a ground not raised by Nguyen in his Rule 33 motion, noting, that a district court is “powerless to order a new trial except on the motion of defendant.” Id. (citing United States v. Brown, 587 F.2d 187, 189 (5th Cir.1979)). And further arguing, the Supreme Court has explained that a sua sponte grant of a new trial raises a “serious constitutional issue with respect to double jeopardy.” Id. at 838 (citing United States v. Smith, 331 U.S. 469, 475, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947)). The Fifth Circuit agreed, following the Third Circuit in United States v. Newman, 456 F.2d 668 (3d Cir.1972) in holding that a district court does not have the authority to grant a new trial on a basis not raised by the defendant. The Fifth Circuit reasoned that the Newman court based its ruling, at least in part, on the language of Rule 33 governing motions for new trial. Nguyen, 507 F.3d at 839. Specifically, the Newman court acknowledged that the drafters added the words “on motion of a defendant” to Rule 33 at the same time they “expanded the district court’s power to grant a new trial in civil cases, specifically stating in Rule 59(d) of the Federal Rules of Civil Procedure that a new trial could be granted for ‘a reason not stated in the motion.’ ” Id. The Fifth Circuit found the Newman Court’s reasoning persuasive, explaining that “the drafters would have inserted similar language in the criminal rules |aif they intended a district court to have the power to grant a new trial on a basis not stated in the motion for new trial.” Id. Thus, the Fifth Circuit reversed the district court’s order granting the defendant a new trial.

Similarly, Louisiana Code of Civil Procedure Article 1971 provides that “[a] new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only.” The Nguyen rationale, i.e., that the drafters would have inserted similar language if it intended that the trial court have the plenary power to grant a new trial on any or all grounds on its own motion, applies here also.

La.C.Cr.P. art. 851(5), as acknowledged by its revision comments, gives the trial court plenary power to grant a new trial even where the defendant may not be entitled to one as a matter of strict legal right, where the court believes the ends of justice would be served. However, the defendant must raise the grounds upon which the court may grant the new trial.

Here, the trial court granted defendant a new trial in the interest of justice, finding the verdict to be contrary to the law and evidence where only newly discovered evidence was raised by the defendant. I would find, contrary to the majority’s opinion, that the trial court was without authority to exercise his plenary power to grant a new trial in the interest of justice on any other basis.

Second, I disagree with the majority’s finding that the trial judge sufficiently provided reasons for his grant of a new trial in the interest of justice. Pursuant to this Court’s order, the trial court provided the following | ¿reasons as to why the motion for new trial was granted pursuant to La. C.Cr.P. art. 851(5):

The court after hearing the testimony of the witnesses, watching their demeanor while testifying, and considering the evidence presented by all parties, has reasonable doubt as to the guilt of the defendant.
Therefore, the court believes that the ends of justice would best be served by granting defendant, Quincy McKinnies, a new trial.

In State v. Guillory, 10-1231(La.10/8/10), 45 So.3d 612 at 614-15, the Louisiana Supreme Court determined that a grant or denial of a motion for new trial pursuant to La.C.Cr.P. art. 851(5) presents a question of law that is subject to appellate review and is reviewed for abuse of discretion.

Based on the guidance of the supreme court in Guillory, I would find that the trial court failed to articulate its concerns with which it was led to have reasonable doubt as to the guilt of the defendant, or why the granting of a new trial would serve the ends of justice. The trial court failed to point to any specific testimony or evidence that gave rise to its doubt as to the defendant’s guilt. Therefore, I would further find that the trial court’s grant of a new trial was an error of law because it provided nothing to support the exercise of its discretion.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . F.R.Cr.P. Rule 33 is substantially similar to La.C.Cr.P. art. 851.

      . See also, United States v. Quintanilla, 193 F.3d 1139, 1148 (10th Cir.1999), cert. denied, 529 U.S. 1029, 120 S.Ct. 1442, 146 L.Ed.2d 330 (2000) (explaining that the court could not consider the issue as the defendant did not raise it in her new trial motion).

      . "Where the trial court exercises its discretion and fails to identify the concerns it had with the trial ... the decision to grant a new trial [is] an error of law because there is nothing to support the exercise of the trial court's discretion. An articulation of what concerns the court had and with what issues would better enable the higher courts to review for an abuse of discretion.” Guillory, 10-1231, 45 So.3d at 617 (citing State v. Miller, 05-1111, pp. 3-4 (La.3/10/06), 923 So.2d 625, 627).