author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. Kedrick JOHNSON.
    No. 2013-KA-0343.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO, Judge SANDRA CABRINA JENKINS).
   MADELEINE M. LANDRIEU, Judge.

|]The defendant, Kedrick Johnson, was convicted of two counts of manslaughter and sentenced as a multiple offender to two consecutive eighty-year terms. For the reasons that follow, we affirm Mr. Johnson’s convictions and sentences.

PROCEEDINGS BELOW

On February 24, 2011, in a multi-count indictment, Kedrick Johnson was charged with violating the Louisiana Street Terrorism Enforcement and Prevention Act, Louisiana Revised Statute 15:1404(B), by engaging in a pattern of criminal gang activity involving four instances of the sale and/or possession of and transportation of controlled dangerous substances during the period of August 17, 2000 through January 9, 2007. The indictment also charged Mr. Johnson with two counts of second-degree murder, violations of Louisiana Revised Statute 14:80.1, relating to the December 1, 2002 shooting death of Jerome Scarborough and the April 2, 2007 shooting death of Alexander Williams. After a jury trial on August 7, 2012 through August 9, 2012, Mr. Johnson was found guilty of two counts of |amanslaughter. The jury declined to find him guilty of the charges arising from the Louisiana Street Terrorism Enforcement and Prevention Act.

After the trial, the State filed a multiple bill of information, pursuant to Louisiana Revised Statute 15:529.1. The trial court adjudicated Mr. Johnson a second-felony offender as to the Scarborough manslaughter conviction and as a third-felony offender as to the Williams manslaughter conviction. Mr. Johnson was sentenced to two consecutive eighty-year sentences. This appeal follows.

ASSIGNMENTS OF ERROR

Mr. Johnson first asserts that the evidence was insufficient to support his manslaughter convictions for the deaths of Mr. Scarborough and Mr. Williams. Intertwined in this assignment of error are Mr. Johnson’s assertions that the trial court abused its discretion in allowing into evidence (1) the statement of Stephen Hymel, an eyewitness to Mr. Williams’ murder, (2) the statement of Joshua Johnson, a witness to Mr. Williams’ murder, and (3) a report from ATF Special Agent Cheryl Harrell. In his final assignment of error, Mr. Johnson asserts that his sentences are excessive under the circumstances of this case.

FACTS

The December 1, 2002 Shooting Death of Jerome Scarborough

On December 1, 2002 at 11:47 p.m., Ms. Arva Lewis called 911 and reported that she had heard gunshots and thought there was possibly a dead body on her back porch. New Orleans Police Department Officer Carolyn Dalton responded to the call and observed the body of a black male, later identified as |3Jerome Scarborough, on Ms. Lewis’ back porch as she had reported. Officer Dalton notified EMS personnel, who pronounced Mr. Scarborough dead on the scene. A fully loaded, unfired, .38 caliber weapon was in Mr. Scarborough’s back pocket.

New Orleans Police Department Homicide Detective Greg Hamilton, the lead investigator in the case, learned that Ms. Lewis and three children, Leonard, Ivan, and Shelby, lived at the St. Claude Avenue residence and were present when the shooting occurred. Ms. Lewis, Ivan, and Shelby were transported to the homicide office, where they gave statements about the events leading to the shooting. Based on the statements, Detective Hamilton obtained arrest warrants for Leonard Lewis and his friend, Kedrick Johnson, the defendant in this appeal. Both men were arrested and charged with the second-degree murder of Mr. Scarborough. The facts giving rise to the defendant’s arrest and conviction will be addressed later in this opinion.

The April 2, 2007 Shooting Death of Alexander Williams

On April 2, 2007, Sergeant John Blatcher of the New Orleans Police Department investigated a 911 call reporting a shooting in the 1200 block of Louisa Street. When he arrived on the scene, a black male, later identified as Alexander Williams, was lying face up near the driver’s side door of a black Taurus parked in front of 1220 Louisa Street. Mr. Williams was unresponsive and |4had suffered an apparent gunshot wound to the back of his head. EMS personnel transported Mr. Williams to the hospital, where he was later pronounced dead.

ATF Special Agent Cheryl Harrell, assigned to New Orleans to investigate street gangs, narcotics offenses, and federal firearms violations, participated in the investigation of the homicide of Mr. Williams. During her investigation, she learned that Mr. Williams had received a call from a man named Joshua Johnson seven minutes before the first 911 call reporting the shooting. Agent Harrell met with Mr. Johnson twice. She first met with him at a federal prison in Yazoo City, Mississippi and later met with him at his attorney’s office in New Orleans in 2009. In the latter meeting, Agent Harrell was accompanied by Detective Michael McCleary.

At this second meeting, Mr. Johnson revealed that he was inside 1220 Louisa Street cooking cocaine on the day Mr. Williams was shot. Prior to the shooting, he observed Mr. Williams in the area trying to buy narcotics from the defendant. According to Mr. Johnson’s statement to Agent Harrell, Mr. Johnson observed the defendant and Mr. Williams argue over the price of the drugs and then observed Mr. Williams leave the area. Shortly thereafter, an acquaintance told Mr. Johnson that he had heard that Mr. Williams had a gun in his car and was looking for the defendant. Soon thereafter, Mr. Johnson heard gunshots. When he Hooked out of his window, he saw Mr. Williams lying on the ground and saw the defendant holding a gun.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

I. Sufficiency of the Evidence

In his first assignment of error, the defendant contends that the State presented insufficient evidence to support his two manslaughter convictions beyond a reasonable doubt. When reviewing for the sufficiency of the evidence, this court is controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id. at 319, 99 S.Ct. 2781. As stated by the Louisiana Supreme Court in State v. Mussall, 523 So.2d 1305, 1311 (La.1988):

If the court finds that no rational trier of fact viewing all of the evidence from a rational pro-prosecution standpoint could have found guilt beyond a reasonable doubt, the conviction cannot stand constitutionally. The actual trier of fact’s rational credibility calls, evidence weighing and inference drawing are preserved through the requirement that upon judicial review all of the evidence is to be considered as if by a rational fact finder in the light most favorable to the prosecution, and by the admonition that the sufficiency inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Thus, the reviewing court is not called upon to decide whethér it believes the witnesses or whether the conviction is contrary to the weight of the evidence. As Professor Wright observes, the important points are that “the court is not to substitute its judgment of what the verdict should be for that of the jury, but that at the same time the jury cannot be permitted to speculate if the evidence is such that reasonable jurors must have .a reasonable doubt.” [Footnotes and citation omitted.]

| fiIn this case, Mr. Johnson was convicted of two counts of manslaughter under Louisiana Revised Statute 14:31(A)(1), which defines manslaughter as

... a homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. • .

“Sudden passion” and “heat of blood” are mitigating factors, which the defendant must prove beyond a preponderance of the evidence, not separate elements of the offense. State v. Points, 2000-1371, p. 7 (La.App. 4 Cir. 4/11/01), 787 So.2d 396, 401. The jury may infer the mitigatory circumstances from the evidence. State v. Cheavious, 2003-0706, p. 8 (La.App. 4 Cir. 11/19/03), 862 So.2d 135, 140. Manslaughter, under the theory of “sudden passion” or “heat of blood,” like second-degree murder, requires proof of the defendant’s specific intent to kill or cause great bodily harm. State v. Harris, 2000-3459, p. 10 (La.2/26/02), 812 So.2d 612, 618. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the • prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). “Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant.” State v. Bishop, 2001-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437 (Citations omitted). If, however, the evidence adduced at trial is sufficient to support a conviction for the charged offense of second-degree murder, then the jury’s verdict 17of manslaughter is authorized. State v. Harris, 97-2903, p. 8 (La.App. 4 Cir. 9/1/99), 742 So.2d 997, 1001.

Jerome Scarborough Manslaughter Conviction

The defendant contends that there was insufficient evidence to support a conviction of manslaughter for the death of Mr. Scarborough because only one witness testified that he actually saw him shoot Mr. Scarborough. This argument is without merit.

First, the testimony of one witness, if reasonably credible and believed by the jury is sufficient to sustain a conviction. A victim’s or witness’s testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. State v. Davis, 2002-1043, p. 3 (La.6/27/03), 848 So.2d 557, 559. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, is believed by the fact finder, is sufficient support for the requisite factual conclusion. State v. Dorsey, 2010-0216, (La.9/7/11), 74 So.3d 603, 534 (citing State v. Robinson, 2002-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79.) Second, the State did not have to prove Mr. Johnson was the shooter in order to support his conviction.

The defendant was charged as a principle in the death of Mr. Scarborough. Principals, as defined in Louisiana Revised Statute 14:24, are “all persons concerned in the commission of the crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its ^commission, or directly or indirectly counsel or procure another to commit the crime.” Principals are considered “equally culpable” for the crime, even if they do not personally commit the acts of the charged offense. State v. Neal, 2000-0674, p. 12 (La.6/29/01), 796 So.2d 649, 659. Evidence that the defendant “acted in concert to bring about'a lethal result [he] specifically intended” suffices to meet the State’s burden. State v. Anderson, 97-1301, p. 1 (La.2/6/98), 707 So.2d 1223, 1224. A review of the record shows that the State’s position at all stages of the trial was that Leonard Lewis was the shooter and the defendant was present and acted in concert with Leonard Lewis. This position is amply supported by the evidence.

Ms. Arva Lewis testified at trial that at about 11:00 p.m. on the night of the shooting, she was at home with Leonard, Ivan, and Shelby. The defendant was at the residence visiting Leonard. From her bedroom, Ms. Lewis heard someone knocking loudly on the front door of the house. She told Ivan to tell the person knocking to go to the back door. Ms. Lewis then heard a gunshot coming from the back of the house. She walked to the rear of the house and saw the defendant holding a gun, complaining that it had jammed. Ms. Lewis testified that the defendant unjammed the gun and told Leonard, Let’s go back to the back door and shoot him again. She tried to restrain Leonard, but he ran to the rear door with the defendant. Ms. Lewis heard two more shots, and although she testified that she did not see who shot the gun, she again saw that the defendant had the gun in his hand. Ms. Lewis testified that the defendant said to her, “Call the police and |flsay someone got shot on your back porch.” The defendant and Leonard then ran out of the house through the front door. Ms. Lewis testified that she had given a statement to police officers on the night of the shooting and had identified photos of her son, Leonard, and the defendant. Upon further questioning, Ms. Lewis admitted that she told Detective Hamilton on the night of the murder that her son, Leonard, is the one who shot Mr. Scarborough. She further testified that she told Detective Hamilton that Mr. Scarborough had come to her house that night to kill Leonard.

Shelby Lewis, Leonard’s sister, testified at trial that she was at home on St. Claude Avenue with her mother and her brother, Ivan, the night of the shooting. Sometime during the evening, her brother, Leonard, and the defendant came to the house. Shelby testified that she was in the bathroom when she heard a loud knock on their front door. She heard the defendant and Leonard speaking with Mr. Scarborough, and then heard two gunshots. She then heard Leonard and the defendant complain that the gun had jammed, after which she heard another gunshot. After she came out of the bathroom, Shelby saw Leonard and the defendant run out of the house through the front door while telling her mother to call the police and report a shooting. Shelby testified that she did not see who actually shot the gun. She testified that she had given a statement to the detectives at the police station on the night of the shooting.

Ivan Lewis, Leonard’s brother, gave a recorded statement to Detective Hamilton on the night of the shooting. At the time of trial, Ivan’s whereabouts 1 inwere unknown. Over a defense objection, the State called Detective Hamilton to the stand to testify regarding Ivan’s statement so. that the statement could be played for the jury. According to the statement, Ivan said that he had heard Mr. Scarborough knocking at the front door at approximately 11:47 p.m. Ivan told Mr. Scarborough to go to the back door, at which time Leonard and the defendant came in and appeared to be scared that something would happen to Leonard. Ivan heard an exchange of words between the three men, and then saw Leonard shoot the victim one time. Ivan stated that he heard the defendant tell Leonard to “finish him [Mr. Scarborough] off.” Leonard then shot Mr. Scarborough three more times. The defendant and Leonard ran out of the house through the front door. They told Ivan and his family to call the police and make up a story about the shooting.

The defense called Leonard Lewis to the stand, who testified that he was incarcerated at the time of the trial after having pled guilty to manslaughter in the death of Mr. Scarborough. He testified that he had received a plea deal in exchange for his testimony against the defendant and that his sentence would be based on the truthfulness of his testimony. Leonard recalled that on the night of the shooting, he, Mr. Scarborough, and the defendant were playing dice on his mother’s back porch. Mr. Scarborough and the defendant got into a physical altercation over the game, and the defendant knocked Mr. Scarborough down to the ground. Then, the defendant shot Mr. Scarborough. Leonard testified that the gun jammed after the first shot, so the defendant told him to get a kitchen knife and finish him (Mr. ^Scarborough) off. Leonard testified that the defendant then somehow unjammed the gun and shot Mr. Scarborough five or six more times. Leonard testified that his only involvement in the shooting was disposing of the gun.

Although the witnesses’ testimony varied as to who actually shot the gun, all four witnesses testified that the defendant was present and participated in the killing of Mr. Scarborough. Viewing the entire record in the light most favorable to the prosecution, any rational trier of fact could have found, beyond a reasonable doubt, that Mr. Johnson was a principal, and that the State proved all the elements of manslaughter beyond a reasonable doubt. This assignment of error is without merit. Alexander Williams Homicide

The defendant contends that the State presented insufficient evidence to prove beyond a reasonable doubt that he killed Mr. Williams. He argues that the State did not present a single witness at trial who claimed to have seen him shoot Mr. Williams, but, rather, based its entire case on hearsay evidence. “[W]hen the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial.” State v. Hearold, 603 So.2d 731, 734 (La.1992). Thus, we first consider whether the entirety of the evidence is sufficient to support the conviction.

| ^Detective Michael McCleary testified that in connection with the investigation of the Williams homicide, he met with an alleged eyewitness, Mr. Stephen Hymel. According to Detective McCleary, Mr. Hy-mel told him that he knew the defendant because they had been neighbors for a number of years. Mr. Hymel also told Detective McCleary that on the day of the shooting, he was working around his house when he saw the defendant run from an alley and shoot Mr. Williams. Mr. Hymel stated that he was in his living room and saw the shooting from his front window. He stated that he saw the defendant fire three or four shots. The State introduced into evidence Mr. Hymel’s recorded statement which corroborated Detective McCleary’s trial testimony.

The State also introduced into evidence a statement Joshua Johnson gave to ATF Agent Harrell and Detective McCleary. In this statement, Joshua Johnson said that he heard gunshots, saw Mr. Williams’ body on the ground, and saw the defendant standing above Mr. Williams holding a gun.

The defendant presented the testimony of Dominique Morgan, who lived in the same neighborhood as Mr. Hymel and the defendant. She testified that she knew Mr. Hymel as “Crack Head Steve” and that the general knowledge in the neighborhood was that he used crack cocaine. She stated that Mr. Hymel’s house was known to be a crack house where people would go to discuss drug transactions.

| isThe factfinder’s determination of credibility should not be overturned unless there is no evidence to support those findings. State v. Bourque, 622 So.2d 198, 222 (La.1993). We find that the jury did not abuse its discretion in accepting as true the statements of Mr. Hymel and Joshua Johnson. Because these statements were sufficient to convict the defendant of the manslaughter of Mr. Williams, this assignment of error is without merit.

We next address the defendant’s arguments that the statements of Mr. Hy-mel and Joshua Johnson, as well as Agent Harrell’s ATF report, were inadmissible. If these hearsay statements were properly admitted, the conviction will stand; if the hearsay statements were inadmissible and not harmless error, the conviction must be reversed and a new trial ordered. See, Hearold, 603 So.2d at 738.

II. Stephen Hymel’s Statement

Mr. Hymel was killed after he gave a recorded statement to the police about this crime and before this case proceeded to trial. In this assignment of error, the defendant asserts that his Sixth Amendment right of confrontation was violated when the trial court allowed Detective McCleary to testify about what Mr. Hymel had told him and admitted into evidence Mr. Hymel’s recorded statement.

The Sixth Amendment’s confrontation clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. Amend. VI. In Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Sixth Amendment’s confrontation clause bars admission of an uncross-examined “testimonial” statement that an unavailable witness previously 114made out of court. While the Crawford Court did not fully define “testimonial,” the Court recognized that the Confrontation Clause applies to “witnesses against the accused in other words, those who bear testimony.... An accuser who makes a formal statement to government officers bears testimony in a sense that a casual person who makes a casual remark to an acquaintance does not.” Crawford, 541 U.S. at 51, 124 S.Ct. 1354. Simultaneously, the Crawford Court discussed certain exceptions to the right of confrontation. At issue here is the recognized exception referred to as “forfeiture by wrongdoing.”

It is undisputed that Mr. Hymel’s statement to the police officers is “testimonial.” Therefore, its admissibility hinges on whether the “forfeiture by wrongdoing” exception applies under the facts presented here.

Forfeiture by wrongdoing was first addressed by the United States Supreme Court in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878 Term). The Reynolds Court stated:

The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot' complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.

Id. at 158.

The United States Supreme Court more recently examined the “forfeiture by wrongdoing” exception in Giles v. California, 554 U.S. 353, 367, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), and found that the exception “applies only if the defendant has in mind the particular purpose of making the witness unavailable.” In Giles, the defendant was | lson trial for the murder of his girlfriend. The State of California introduced statements that had been made by the girlfriend to police officers responding to a domestic violence report three weeks prior to the shooting. Over the defense’s objection, the trial court admitted the statements, and the defendant was ultimately found guilty. On appeal, the defendant asserted that the admission of the victim’s statements had violated his Sixth Amendment right of confrontation. The California Court of Appeal held that the Confrontation Clause was not violated, finding that Mr. Giles had forfeited his right of confrontation because his killing of his girlfriend was an intentional criminal act that had made her unavailable to testify. The California Supreme Court affirmed on the same grounds. The United States Supreme Court granted certiorari and refused to extend the “forfeiture by wrongdoing” exception to the facts in Giles. The Court held that in order to admit testimonial hearsay evidence that would fit within the forfeiture by wrongdoing exception, the prosecution must show that the defendant had intended to prevent a witness from testifying. Id. at 361, 128 S.Ct. 2678.

Louisiana’s forfeiture by wrongdoing exception was modeled after the Federal Rule and is firmly rooted in a hearsay exception. We recently discussed this exception in State v. Warner, 2012-0085, pp. 12-19 (La.App. 4 Cir. 5/1/13), 116 So.3d 811, 817-821. Louisiana Code of Evidence article 804(B)(7)(a) provides that “[a] statement offered against a party that has engaged or acquiesced in the wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness” is not excluded by the hearsay rule. The party seeking to introduce the statement must establish by a preponderance of evidence that the party against whom the statement is offered engaged in or acquiesced in the wrongdoing. La. C.E. art. 804(B)(7)(b).

1inHere, the State introduced evidence that Mr. Hymel gave a statement to Detective McCleary in which he said that he saw the defendant shoot Mr. Williams. Detective McCleary testified that Mr. Hy-mel feared retaliation so they listed him as a “known witness” in police reports and that his name was redacted from his statement. On April 29, 2009, at a hearing on the defense’s motion to suppress an identification, the defense complained that they did not know the identity of the “known witness.” During the hearing, the State provided the defense with a photograph of the man Mr. Hymel had identified as the shooter. This was a photograph of the defendant. The State did not initially realize it, but Mr. Hymel’s name and signature were on the back of that photograph. Mr. Hymel was killed later that day.

In support of its theory that the defendant was responsible for Mr. Hymel’s death, the State identified and played for the jury two telephone calls made by the defendant on April 29, 2009. This is the same day Mr. Hymel’s identity was made known to the defense. The referenced calls were placed by the defendant after the hearing and before Mr. Hymel was shot and killed later that evening.

The first call was made by the defendant to his father. In that phone call, the defendant’s father said to him, “... so if it’s this person who we think ... the detective say he working for the city for three years ... and he said this person said they were sitting in their living room.... ” The defendant replied, “I read the transcript ... and [the police] ask him, ‘information you gave to us today, would you be willing to come to court ... [the witness] said ... no, I wouldn’t ... when they did the computers on the person ... the person having multiple arrests ... the person ain’t li7gonna want to deal with it.” The second call was placed by the defendant a few hours later to an associate. In the recording of that call, the defendant is heard to say: “So by 9 o’clock I should be on with it ... I know one thing, you should’ve you probably done f* * * *d that hoe by then ... Let me know if it’s good tonight or in the morning with that hoe when I calls.” Mr. Hymel was killed at approximately 10:00 that evening.

The defendant argues that Stuart Weg, his attorney at the time of the motion hearing, had informed him of Mr. Hymel’s identity months before Mr. Hymel’s death. However, this representation is contradicted by the transcript of the April 29, 2009, during which Mr. Weg requested a continuance because he did not know the identity of a “known witness.” When asked by the court who this witness was, Mr. Weg responded “I don’t know. That’s why they are unidentified.” After being shown the identification photograph on which Mr. Hymel had signed his name, Mr. Weg stated, “Now I know the name of the alleged identification individual.”

We find that the State established by a preponderance of evidence, as provided in Louisiana Code of Evidence article 804(B)(7)(b), that the defendant procured or acquiesced in the murder of Mr. Hymel, thereby making him unavailable to testify. As such, the trial judge did not err in ruling that Mr. Hymel’s statement was admissible under the forfeiture by wrongdoing exception to the hearsay rule. This assignment of error is without merit.

III. Joshua Johnson’s Statement

118In this assignment of error, the defendant claims that his Sixth Amendment right of confrontation was violated when the trial court allowed the State to introduce the prior testimony of Joshua Johnson.

Prior to this trial, the defendant had already been tried for the murder of Mr. Williams. That trial resulted in a hung jury. During that trial, the State called Joshua Johnson to the stand. In the proceedings before us, the trial court, over a defense objection, allowed the State to introduce that prior sworn testimony into evidence finding that Mr. Johnson was “unavailable.”

Louisiana Code of Evidence article 804(A) provides that “a declarant is ‘unavailable as a witness’ when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court.” This includes when the declarant is “absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.” When a witness has been declared “unavailable,” a party may offer “[tjestimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” La. C.E. art. 804(B)(1).

Determining the unavailability of a witness is a preliminary question for the trial court. La. C.E. art. 104(A). A trial court’s ruling as to a witness’s availability may not be disturbed on appeal absent an abuse of discretion. State v. Ball, 2000-2277, p. 26 (La.1/25/02), 824 So.2d 1089, 1112. Even when the witness is | ^determined to be unavailable, the use of the prior testimony must not violate the defendant’s right to confrontation under the Sixth Amendment. See State v. Hills, 379 So.2d 740, 743-44 (La.1980); State v. Pearson, 336 So.2d 833, 835 (La.1976). It is well settled that, in order to protect this constitutional right, certain conditions must be met before allowing the prior testimony to be introduced into evidence in the present trial:

(1) the defendant must have been represented by counsel at the earlier hearing; (2) the witness must have testified under oath; (3) the witness must have been cross-examined or there must have been a valid waiver of the right to cross-examination; (4) at the time of the trial, the witness must be “unavailable” to testify; and (5) the State must have made a good faith effort to locate the unavailable witness.

Ball, 2000-2277, p. 26, 824 So.2d at 1112 (citation omitted). The record is clear that the defendant was represented by counsel in the previous trial, that Joshua Johnson testified under oath, and that he was cross-examined by defense counsel.

In the instant case, the trial court held a hearing on May 14, 2012, on the State’s motion to introduce the prior testimony of Mr. Johnson. At the hearing, Mike Jurina, an agent for the Orleans Parish District Attorney’s Office, testified that he attempted to execute a State writ of habeas corpus on Mr. Johnson, but was unsuccessful in transporting him to New Orleans from the custody of the Bureau of Prisons in Cumberland, Maryland. When Agent Jurina arrived at the federal prison on April 22, 2012, the prison was on lock-down, and he was told that Mr. Johnson was being non-compliant and argumentative. He testified that there was concern with regard to the ability to transport Mr. Johnson via airplane to New Orleans because he had the potential of becoming very aggressive. At the hearing, the j 2pState asked the trial court to take judicial notice of Mr. Johnson’s behavior during the previous trial for the murder of Mr. Williams. Specifically, the court noted that Mr. Johnson had to be forcefully removed by sheriffs deputies from the vehicle to the courtroom, on the court’s order, because of his hostile demeanor while on the stand and after testifying.

The trial judge, in finding Mr. Johnson to be “unavailable,” and, thus, granting the State’s Article 804 motion, stated that

In my thirteen plus years on the bench I have never had to sign an order [to bring a witness into court] that says “by any means necessary,” which is what the sheriffs department required. They required the Court to sign an order that the defendant — excuse me, that the inmate, Joshua Johnson, be brought to Section “H” by any means necessary because Mr. Johnson was clearly not going to get out of the car even though he was handcuffed and I believe shackled, with leg shackles on.
The Court had to execute the order as we were in a jury trial for Mr. Kendrick Johnson. Mr. Joshua Johnson’s testimony was necessary. The Court notes for the record that once the order was signed, the sheriffs deputies were able to get Mr. Joshua Johnson to come into the courthouse but he refused to come into the court for the trial, that he was in the back by chambers and there were .several sheriffs deputies, Mr. Jurina, I believe a public defender for Mr. Joshua Johnson, and it was a very bad situation in terms of Mr. Joshua Johnson was not going to walk out of that door and take the witness state (sic). And then when he did walk out of the door, we didn’t know what was going to happen, either side, once he hit the witness stand.
Agent Jurina’s testimony today regarding his April 22, 2012, visit to the Cumberland Federal Bureau of Prisons and his conversation with Mr. Joshua Johnson further solidified, in this court’s opinion, that Mr. Joshua Johnson is not and will not go or make himself amendable to going with a transportation agency and/or an agent of the State to effect his transportation here fo court to testify a second time in this trial.
The Court finds that the State has established grounds that would render any order of this Court that he be brought here, render a |21 situation both unsafe for those who would be charged with escorting Mr. Joshua Johnson here to New Orleans and would present a dangerous situation, in fact, for the de-clarant himself, Mr. Joshua Johnson, as this Court had the opportunity to firsthand observe the interaction between Joshua Johnson and the sheriffs deputies and Agent Jurina before he testified in the last trial in November of 2011.

The trial court found that the State had made a good faith effort to make the witness available to testify, but ultimately had been unsuccessful. We cannot say that the trial court abused its discretion in finding Mr. Johnson to be “unavailable”. Furthermore, the conditions necessary to protect the defendant’s right to confrontation have been met. This assignment of error is without merit.

IV. ATF Special Agent Cheryl Harrell’s report

The defendant next contends that the trial court violated his right of confrontation by allowing the State to introduce Agent Cheryl Harrell’s report into evidence.

Louisiana Code of Evidence article 80S(8)(b)(i) provides that except as specifically provided otherwise by legislation, “[ijnvestigative reports by police and other law enforcement personnel” are inadmissible. The trial court erred when it denied the defense’s objection to the admissibility of this report. We must then address whether this error is harmless.

Confrontation Clause violations are subject to a harmless error analysis. State v. Welch, 1999-1288, p. 6 (La.4/11/00) 760 So.2d 317, 321. The admission of hearsay testimony “is harmless error where the effect is merely cumulative or corroborative of other testimony adduced at trial.” State v. Johnson, 389 So.2d 1302, 1306 (La.1980). “The verdict may stand if the reviewing court determines l^that the guilty verdict rendered in the particular trial is surely unattributable to the error.” State v. Broadway, 96-2659, p. 24, (La.10/19/99), 753 So.2d 801, 817 (citation omitted).

Agent Harrell’s report contains information she and Detective McCleary received from Joshua Johnson. Had Agent Harrell’s report been excluded from evidence, the jury would have still heard the pertinent contents of the report during Agent Harrell’s and Detective McCleary’s testimonies and in the eyewitness account by Mr. Hymel. We find that the admission of the report was error, but that the report was cumulative and that its admission was, therefore, harmless. This assignment of error is without merit.

Y. Excessiveness of Sentence

In his final assignment of error, the defendant asserts that two consecutive eighty-year sentences, the maximum term of imprisonment he could have received as a multiple offender, are excessive under the circumstances. This issue has not been preserved for appeal. A review of the record indicates that no oral or written motion to reconsider the sentence was filed by Mr. Johnson. Accordingly, he has waived any right to review the sentence on appeal or post-conviction pursuant to Louisiana Code of Criminal Procedure article 881.1(E).

^Nevertheless, we note that the trial judge has the broad discretion in imposition of sentences within statutory limits, but shall, pursuant to Louisiana Code of Criminal Procedure article 894.1(C), “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” Although rigid compliance with article 894.1 has been deemed unnecessary where the record clearly shows an adequate factual basis for the sentence imposed, the record should reflect the considerations taken into account by the trial court in determining the sentence to aid the reviewing court in determining whether the sentence is warranted in light of the particular circumstances of the case. State v. Quebedeaux, 424 So.2d 1009 (La.1982).

A review of the record shows that at the multiple bill hearing, the trial court reviewed the information in the Pre-Sen-tencing Investigation report. That report revealed that Mr. Johnson had a criminal history dating from 1997. In support of the sentences imposed, the trial judge cited the sentencing guidelines in Louisiana Code of Criminal Procedure article 894.1. In sentencing Mr. Johnson to two consecutive eighty year sentences, the trial judge stated,

The Court finds the fact of the aggravated factors that the code set out that the offender knew the victim, Jerome Scarborough, was fifteen years old at the time he was shot and killed and left to die on the back porch.
That the offender used his position of status to facilitate the commission of the offense. The offender used threats of or actual violence in the commission of the offense.
That the offense resulted in significant permanent injury or significant economic loss to the victim or his family.
That the offender used a dangerous weapon in the commission of the offense.
| g4That the offender was persistently involved in similar offenses not already considered as criminal history or as a part of a multiple offender adjudication.
And that the offender was a leader or his violation was in concert with one or more persons with respect to whom the offender occupied a position of organizer, a supervisory position or any other position or management in terms of the criminal street gang activity that the Court heard about.
The Court finds most chilling in all of this the fact that the sole eyewitness to a murder, that being a witness, Mr. Hymel, for the Alexander Williams murder. That being count two. That the day of these motions to suppress identification were heard in this very courtroom and that that witness’s identification was made public in open court. That that evening, not less than three or four hours later, Mr. Hymel was gunned down on the streets with his murder still remaining a mystery or unsolved by the New Orleans Police Department.

The trial court’s reasons for the sentences more than adequately support the appropriateness and constitutionality of the sentences imposed. Therefore, even if preserved for appeal, this assignment would have no merit.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

JENKINS, J., concurs in result.

      . Leonard Lewis ultimately pled guilty to a reduced charge of manslaughter and was sentenced to five years at hard labor.

      . There is nothing in record to suggest that this witness, Joshua Johnson, is related to the defendant, Kedrick Johnson. For clarity, we will refer to Joshua Johnson as Mr. Johnson and to Kedrick Johnson as the defendant.

      . The defendant does not appeal the trial court’s ruling on the admissibility of this statement.

      . Mr. Hymel did not testify at any motion hearing or at trial. The admissibility of his recorded statement is one of the assignments of error raised by the defendant and will be discussed later in this opinion.

      . The defendant did not object to this evidence being heard by the jury.

      . A transcript of the calls was also introduced into evidence.

      . Mr. Weg testified at Mr. Johnson’s first trial for the murder of Mr. Williams. His previous testimony was read for the jury. On November 17, 2011, he testified that he had received the transcription of a “known witness” statement on January 21, 2009, and he had passed it on to Mr. Johnson at that time. Mr. Weg acknowledged that the transcript had contained blacked out portions, but testified that he had not initially noticed that in one place on the first page of the statement, Mr. Hy-mel's name was not blacked out.

      . Louisiana Code of Criminal Procedure article 881.1(E) states in pertinent part:
      Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence ... on appeal or review.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. William BAHAM.
    No. 2013-KA-0058.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO, Judge SANDRA CABRINA JENKINS).
   JOY COSSICH LOBRANO, Judge.

11 Following a jury trial, William T. Ba-ham (“defendant”) was convicted of second degree murder for the death of Errol Meeks and sentenced to life in prison. Defendant appealed. For the reasons that follow, we affirm defendant’s conviction and sentence.

On the night of January 17, 2011, Meeks was at Friar Tucks bar with Larry Brown, a relative. Donald Oliver (nicknamed “Diesel”), who knew Meeks through a friend, was also at the bar. Defendant and two acquaintances, Derrick Lotz (nicknamed “Pops”) and Mitchell Marks were among the other patrons at Friar Tucks that night.

Darnell Lawrence, a bouncer at Friar Tucks, was on duty the night of January 17, 2011. During the evening, defendant and Oliver were involved in a fight in the bar’s men’s room. Upon learning of the fight, Lawrence broke it up and returned to his position at the door. After the incident, Oliver left the bar. Defendant and his friends also left. However, defendant left to retrieve his gun because “[h]e was mad and he wanted to smash” Oliver. Derrick Lotz, Marks, and Robert Lotz (nicknamed “Rough” or “Ruffy”) “tr[ied] to talk [defendant] out of it,” but they eventually drove back to Friar Tucks in Derrick Lotz’s white Chevrolet |2Monte Carlo. Derrick Lotz (the driver) and defendant (the front passenger) exited the vehicle and approached the bar.

Lawrence, who was still stationed at the door, saw Meeks leave the bar. Defendant walked into the bar for a few seconds, abruptly turned around and walked out, following Meeks and trailed by Derrick Lotz. A few seconds later, as Marks and Robert Lotz were exiting Robert Lotz’s vehicle, multiple gunshots rang out, and Meeks fell to the ground. Marks and Robert Lotz immediately got back in their vehicle, and defendant ran from the bar and “jumped in the truck” with them. Defendant had a gun, “silver with a black handle” and “[b]etween a 9 and a 40” caliber, in his hand. Robert Lotz drove them to defendant’s grandmother’s house, and defendant’s grandmother then drove defendant across the river.

New Orleans Police Department (NOPD) Officer Robert Ponson arrived on the scene outside Friar Tucks shortly after 11:00 p.m., and a Friar Tucks employee handed him several cartridge casings that were fired from of a 40-caliber handgun. Lawrence approached NOPD Detective Kevin Williams, an investigator on the scene, and identified the shooter as a man named “Will” who frequented Friar Tucks once or twice a week. Detective Williams relayed the identification information to NOPD Detective Robert Hurst, the lead detective on the case. Lawrence also identified Derrick Lotz as the man standing behind defendant at the time of the shooting in the video of the incident recorded by the bar surveillance system.

The following day, Detective Hurst interviewed Derrick Lotz about the shooting. Derrick Lotz confirmed that he was standing on the bar’s porch behind defendant when defendant shot Meeks. He identified defendant as the shooter and picked him out of a photographic lineup.

IsNOPD Detective Maggie Darling visited Marks in prison on May 19, 2011, to interview him about the shooting. Marks gave Detective Darling a detailed statement of the incident, which was audio-recorded. Marks confirmed that defendant was involvéd in an altercation in the bar bathroom with another patron who pushed defendant’s head in the toilet. According to Marks, defendant had a swollen face, was very mad, and told him that he wanted to get his gun “to smash that dude.” Marks then left the bar with defendant and accompanied him to his grandmother’s house, where defendant retrieved his gun. Marks continued:

[A]fter that we went — we would go and we were trying to talk him out of it. He was on his way there.... We got by Ruffys house. Me and Ruffy was [sic] in a. car and him and Pops was [sic] in the truck. I mean the car and they went around there. Me and Ruffy was [sic] about to go inside. As we get [sic] out of the truck we just heard gunshots. Everybody got scared. We got back in the truck. He ran our way. He jumped in the truck with us.

Marks described the gun as between a nine or a forty caliber and silver with a black handle. After he gave his statement, Marks placed a call from prison that same day to his girlfriend and told her that he was going to play, dumb at trial.

On November 4, 2011, both defendant and Gregory L. Pelfrey, another Orleans Parish Prison inmate, had hearings scheduled in Orleans Parish Criminal District Court, Section L. Consequently, they, along with three other inmates, were held in the same holding cell, or dock, just outside the courtroom while they awaited their respective hearings. Defendant and Pelfrey had never met each other before that day, and did not see each other again until the day of defendant’s trial.

While waiting in the Section L dock, defendant admitted to the murder, announcing to the other inmates that the police had no evidence against him because he threw his gun into the river. He also told the other inmates that one of the key witnesses in his case was an acquaintance who was not going to show up |4for trial. Defendant told the inmates that his attorney was John Fuller. Around noon, Mr. Fuller came into the docks. At that point, defendant and Mr. Fuller moved toward the toilet, and defendant handed Mr. Fuller a document. Defendant then came back to the other inmates and said that his next court date was on December 15, 2011. After returning to his prison cell, Pelfrey filled out a grievance form, declaring what he had heard from defendant, and passed it to a deputy. From that point until the trial, Pelfrey had no contact with law enforcement about defendant’s case.

On a phone call from the prison around 2:00 p.m., on November 4, 2011, defendant stated that he had given something to Mr. Fuller, his attorney, earlier that day. Additionally, defendant stated that his next court date was December 15, 2011.

The record was reviewed for errors patent and none were found.

In the first assignment of error, defendant contends that his right to a fair trial was violated when the prosecutor, Mr. Napoli, made numerous personal attacks on defense counsel, Mr. Fuller, during the testimony of Mitchell Marks, a state witness.

At trial, Marks recanted his prior recorded statement to Detective Darling, claiming he was coerced with the threat of a murder charge. He denied returning to the bar with defendant or having any knowledge of events related to the shooting. In an attempt to refresh Marks’ memory, the following dialogue occurred among the prosecutor, the defense attorney and the trial court:

MR. NAPOLI: ... Isn’t it a fact that on these jail tapes that you talk about how this defense attorney has been encouraging you not to come to court?
| fiMR. FULLER: Objection! That’s a lie! That’s a bad lie! I have never seen this man before in my life!
THE COURT: Whoa, whoa, whoa! This is cross-examination of a hostile witness. He can ask him whatever he wants.
MR. MARKS: I don’t know that man.
MR. NAPOLI: You never said that on the jail tapes?
MR. MARKS: I don’t know what I said, but I don’t know him.
MR. NAPOLI: Judge, at this time I would request permission to play the jail calls as impeachment.

Later during the questioning of Mr. Marks, the following occurred:

MR. NAPOLI: Judge, we would like to play the part now about the attorney.
MR. FULLER: Yeah, I would like to hear that part actually.
THE COURT: Well that makes all of us. We all want to hear.
(Tape played at this time.)
MR. FULLER: Objection!
MS. BERTHELOT: Excuse me!
THE COURT: Stop it! Stop it!
MR. FULLER: They specifically said that I said and that is clearly not the case.
THE COURT: That’s sustained.
MR. NAPOLI: Let me ask you this. Isn’t it true that William Baham told you that his attorney didn’t want you to come to court?
MR. MARKS: No.
MR. NAPOLI: Play it.
THE COURT: William Baham told you that his attorney — that’s sustained.
MR. NAPOLI: Judge—
THE COURT: There is no foundation for the conversation between Baham and Fuller. It would be attorney client privilege. It’s sustained.
| f,MR. NAPOLI: While you were, on the docks — has there every [sic] been a time when you are on the docks with William Baham?
MR. MARKS: One time.
MR. NAPOLI: When he came up to you that one time didn’t he encourage you not to come to court?
MR. MARKS: No.
MR. NAPOLI: He didn’t?
MR. MARKS: No.
MR. NAPOLI: Judge, at this time we would request to play that call now considering that that is directly—
THE COURT: You can play anything that has something to do with Baham and this man, but I certainly didn’t hear anything that placed counsel Fuller in any way shape or form. Counsel Fuller would not be bound by anything that his client allegedly told somebody else when he wasn’t present or knew about.
MR. NAPOLI: But if he instructed him to do it though, Judge.
THE COURT: We don’t have that and strike that. Ignore that. Be careful. You are getting ready to start treading water.
(Tape played at this time.)
MR. NAPOLI: So when you were on the docks with William he told you that the instructions of his attorney was for you not to come to court?
MR. MARKS: No. I asked him — I asked him what was it because I thought his lawyer sent me a subpoena.
MR. NAPOLI: I have no further questions, Judge.
THE COURT: I want you to put it out of your head that there was any wrongdoing whatsoever by Mr. Fuller. This witness could or could not be telling the truth. He may or may not have spoken with the accused on this matter. His voice is not on the tape and for Mr. Fuller to be responsible for something this man allegedly had a conversation with this man that we have not heard. I ask you to take it with a grain of salt relative to Mr. Fuller.

|7On cross examination by defense counsel, Marks explained that he was served a subpoena while in court on a probation violation hearing. He identified Ms. Berthelot, one of the prosecutors, as the person who handed him the subpoena. During closing arguments, Ms. Berthelot stated:

I came into court and I gave him [Marks] a subpoena.... Come to court and tell us what you know. But you hear when he goes downstairs and he says I talked to Will. I asked Will was it your attorney or was it the State because I [Berthelot] actually didn’t talk to him.... So he asks Will. Will, your attorney wants to subpoena me? Hell, no. My attorney doesn’t want to hear anything you have to say. He told me to tell you don’t fuck with that. Don’t go.

As the record reflects, defense counsel repeatedly objected to the prosecutor’s comments and questions. The trial court sustained the defense’s objections and gave a cautionary instruction to the jury. Defendant asserts the admonitions were inadequate given that the prosecutor deliberately gave the false impression that defense counsel had communicated to Marks, through defendant, that he should not testify for the state. Regardless of the motive, defendant argues, the prosecutor’s comments and questioning undermined the defense and damaged defense counsel’s credibility, causing the jury to reject his arguments.

In State v. Brumfield, 96-2667 (La.10/20/98), 737 So.2d 660, the prosecutor argued during closing argument that “ ‘during the course of this trial those very police officers who go about and try to protect us every day have been assailed [on cross-examination by defense counsel], have been defamed through the allegations of this defendant when he is the person who is on trial.’ ” Id. at p. 9, 737 So.2d at 666. The Louisiana Supreme Court found that the prosecutor’s argument was not improper, finding that although the State should refrain from making personal attacks on defense strategy and counsel, “the prosecutor’s statement about defense Iscounsel’s cross-examination of police officers was a fair comment pointing out the frequently used strategy of attempting to shift the focus from the accused to the accuser.” Id.

In State v. Tassin, 11-1144 (La.App. 5 Cir. 12/19/13),129 So.3d 1235, the court stated:

The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Consequently, the aim of due process is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused. Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982); State v. Ortiz, 11-2799 (La.1/29/13), 110 So.3d 1029, 1034, cert. denied, — U.S. -, 134 S.Ct. 174, 187 L.Ed.2d 42 (2013). While a prosecutor should prosecute with “earnestness and vigor” and “may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).

Tassin, 11-1144, pp. 19-20, 129 So.3d at 1249.

In Tassin, defendant argued that his rights to counsel, due process, and a fair trial were violated when the prosecutor attacked defense counsel’s integrity and denigrated the defense throughout trial. The defendant argued that the trial court erred by overruling the defense objections, refusing to give a remedial instruction, and denying requests for a mistrial. The appellate court noted that the prosecutor’s conduct during the trial went beyond the bounds of “earnestness and vigor,” and that the prosecutor, at times, clearly made inappropriate and unprofessional comments. However, the court found that the comments and unprofessional conduct of the prosecutor did not affect the fairness of defendant’s trial and therefore did not require the reversal of defendant’s conviction. Id. The court reached this conclusion, citing United States v. Jones, 839 F.2d 1041, 1049-50 (5th Cir.1988), a case in which the prosecutor had accused defense counsel of suborning perjury. In considering whether this amounted to reversible error, the \ Jones court considered three factors: the magnitude of the prejudicial effect of the statement, the efficacy of any cautionary instructions, and the strength of the evidence of the defendant’s guilt. The Jones court determined that the prosecutor’s comment, “ ‘while it no doubt impugned the integrity of [defense counsel], had little chance of affecting the determination of guilt.’ ” Tassin, 11-1144, p. 22, 129 So.3d at 1250-1251.

In United States v. Murrah, 888 F.2d 24 (5th Cir.1989), a case cited by defendant, the United States Fifth Circuit Court of Appeal considered serious complaints of prosecutorial misconduct focusing on comments made by the prosecutor in opening statements and closing argument. “The comments involved two discrete matters: evidence which was discussed but not produced, and charges the defendant and/or his counsel hid a witness.” Id. at 25. The Court stated that the trial court in response to the prosecutor’s improper remarks “opted to rectify this improper comment by merely reminding the jury to ‘recall what the evidence was in the case.’... In such a setting the court should have provided more effective instructions to offset the prosecutor’s comments ....” Id. at 26. The Court proceeded to apply the three factors analysis performed by the courts in Jones and Tassin: “the magnitude of the prejudicial effect, the efficacy of the cautionary instructions, and the strength of the evidence of defendant’s guilt.” Id. at 28. The Court found that due to the circumstantial nature of the case and the pervasiveness of the improper conduct by the prosecutor, the trial court’s instructions did not neutralize the damaging effect of the remarks. Id. at 26. The Court found the remarks tainted the trial, reversed the conviction, and remanded the case. Id. at 28.

The Murrah case is distinguishable from the present case because the complained of conduct was pervasive throughout the trial. Here, the objectionable |10remarks by the prosecutor occurred during Marks’ testimony and his attempt to recant his earlier statement. The trial court sustained all of the defense counsel’s objections and instructed the jury that defendant’s counsel did nothing wrong. In addition, contrary to defendant’s assertions, the state presented substantial evidence at trial from which the jury could have found the defendant guilty. Detective Hurst testified that the videos from both the bar and a neighbor down the street captured the murder and defendant fleeing the scene. Lawrence identified the victim and defendant in the bar video and related it to his personal observation from that night. Furthermore, defendant has failed to show how he was prejudiced by the statements of the prosecutor. Thus, the verdict was not attributable to the prosecutor’s statements. This assignment of error is merit-less.

In the second assignment of error, defendant contends the trial court violated his right to a fair trial by allowing the jury to take the transcript of a witness’s statement into the jury room during deliberations.

During deliberations, the jury sent a note to the trial court requesting to see the statement of Mitchell Marks. The trial court agreed to send the transcript of the statement to the jury. Defendant objected. The trial court reasoned that under La.C.Cr.P. art. 793(A) it would have been permissible to replay the audio of Marks’s statement to the jury during deliberation, but that it was easier to allow them to read the statement rather than deal with the technical difficulties of the recorder.

Article 793(A) of the Louisiana Code of Criminal Procedure provides:

Except as provided in Paragraph B of this Article, a juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

InThe Louisiana Supreme Court has held that it is permissible for the jury to view videotapes properly admitted into evidence during deliberation. State v. Brooks, 2001-0785, p. 5 (La.1/14/03), 838 So.2d 725, 729. The Court reasoned that videotapes of crimes as they happen are neither testimony nor written evidence. Id. at p. 3, 838 So.2d at 727. However, as this Court stated in State v. Johnson, 97-1519 (La.App. 4 Cir. 1/27/99) 726 So.2d 1126:

Louisiana courts have reversed many convictions where the jury viewed a defendant’s confession or written statement or reexamined verbal testimony during deliberations. State v. Adams, 550 So.2d 595 (La.1989) (jury reviewed defendant’s confession to police); State v. Perkins, supra [423 So.2d 1103 (La.1982) ] (conviction for first degree murder reversed based on a Brady violation and because during deliberations the jury examined the defendant’s written statement); State v. Buras, 459 So.2d 756 (La.App. 4th Cir.1984) (aggravated kidnapping reversed because during deliberations the jury was given a transcript of recorded telephone calls between the kidnappers and the victim’s family); State v. Gracia, 527 So.2d 488 (La.App. 5th Cir.1988) (jury reviewed the defendant’s written statements). Gracia noted that prejudice was presumed, quoting State v. Freetime, 303 So.2d at 489.

Johnson, 97-1519, p. 13, 726 So.2d at 1133.

The evidence provided to the jury in Johnson consisted of medical records with written notations. This Court concluded that the trial court erred by allowing the jury access to the written evidence during deliberation. In light of the cases cited above and this Court’s ruling in Johnson, we find that the trial court erred in allowing the jury to review the transcribed statement of Marks.

However, as this Court stated in Johnson, citing State v. [Saul] Johnson, 541 So.2d 818, (La.1989), such errors may not necessitate reversal. This Court stated:

Under La.C.Cr.P. art. 921, an appellate court shall not reverse a judgment because of any error “which does not affect substantial rights of the accused.” Whether substantial rights of the accused were violated is determined under federal harmless error standards, i.e., whether the guilty verdict in this trial was surely unattributable to the error. State v. [Silas] Johnson, 94-1379, p. 14 (La.11/27/95), 664 So.2d 94, 100, citing Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). [Silas] Johnson distinguished between “trial errors,” which may be reviewed for harmless error, and “structural errors,” which defy analysis under the harmless error doctrine. Johnson at p. 14, 664 So.2d at 100, citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
The Court [in Silas Johnson ] stated that trial error is error which occurs during presentation of the case to the trier of fact and may be quantitatively assessed in the context of the other evidence. The Court further explained:
A structural error is one which affects the framework within which the trial proceeds.... Structural defects include the complete denial of counsel ...; adjudication by a biased judge....; exclusion of members of defendant’s race from a grand jury ...; the right to self-representation at trial ...; the right to a public trial ...; and the right to a jury verdict of guilt beyond a reasonable doubt.... Id., at pp. 14-15, 664 So.2d at 101 [citations omitted].
We conclude based on these cases that, although Art. 793’s prohibition is explicit, violation of that article does not mandate reversal. Rather, the erroneous presentation of written, documentary evidence to the jury during deliberations is trial error that can be quantitatively assessed in the context of other evidence, and therefore is subject to harmless error analysis.

Johnson, 97-1519, p. 16, 726 So.2d at 1134.

A review of the record indicates that the evidence of defendant’s guilt was substantial. Detective Hurst’s testimony was largely based on numerous angles of video camera footage that clearly depicted the crime. Lawrence was familiar with the parties involved and used this footage to identify them as well. The transcript of Marks’ statement only supplemented Lawrence’s identification of “Will” as the shooter to Detective Williams shortly after the crime. Derrick Lotz, defendant’s friend, identified defendant as the shooter from a six-person photographic lineup within twenty-four hours of the crime. Marks’ statement to Detective Darling was very specific and detailed, including, the fact that defendant had a gun that was “[bjetween a 9[-] and a 40” caliber. This description matches the 40-caliber shell | iacasings that a Friar Tucks employee found at the crime scene. Furthermore, Pelfrey’s testimony was also detailed.

The evidence of defendant’s guilt is extensive. Under the harmless error analysis, any harm that may have resulted from the jury’s access to the transcript of Marks’ statement was harmless, as it did not contribute to the verdict, and did not deprive defendant of a fair trial. This claim has no merit. ,

Accordingly, for the reasons stated above, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . La. R.S. 14:30.1.


author: SANDRA CABRINA JENKINS, Judge. LOVE, J.,

text:
    STATE of Louisiana v. Michael R. NOEL.
    No. 2013-KA-1218.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    Katherine Maris Mattes, Interim Director, Jillian Swords, Rule XX Student Attorney, Anna Szatkowski, Rule XX Student Attorney, Tulane Law Clinic, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

|TIn this criminal appeal, the State seeks review of the district court’s judgment granting defendant’s motion to quash. Defendant contends the State’s appeal should be dismissed as abandoned due to its failure to pursue the appeal for almost five years. For the reasons that follow, we deny defendant’s motion to dismiss finding the State has not abandoned its appeal and affirm the district court’s judgment granting the motion to quash.

FACTUAL AND PROCEDURAL BACKGROUND

On November 8, 2006, Michael Noel, defendant, was arrested for simple burglary. On January 5, 2007, defendant was charged by bill of information with violation of La. R.S. 14:62. Defendant filed a pro se “Petition for Writ of Habeas Corpus and/or Fix an Expedited Hearing Date” on February 5, 2007 alleging that he had been detained since his arrest for over eighty-eight (88) days without being summoned to court for arraignment as required by La. C.Cr.P. art. 230.1. Defendant was arraigned on February 7, 2007 and was appointed an Orleans Public Defender (“OPD”) after entering a plea of not guilty.

OPD filed a motion on March 26, 2007, naming defendant as a person who was not receiving effective assistance of counsel pursuant to State v. Peart, 621 So.2d 780 (La.1993). OPD then filed a motion to withdraw as counsel for defendant which was subsequently granted. After several months without counsel, the Tulane Law Clinic was appointed to represent defendant on November 16, 2007. On May 1, 2008, defendant filed a motion to quash the bill of information alleging a violation of defendant’s constitutional right to a speedy trial which was ultimately granted at the June 6, 2008 hearing. The State filed a motion for appeal and designation of the record on June 11, 2008 and a return date of August 20, 2008 was set.

No further steps were taken to advance the State’s appeal until more than five years later when the record was lodged with this Court on September 5, 2013. Thereafter, the State filed its brief and the defendant filed a motion to dismiss the appeal as abandoned based on the five-year delay between the-granting of the State’s motion for appeal and the lodging of the record with this Court. Defendant also timely filed his appellee brief. Defendant’s motion to dismiss the appeal was deferred until the merits of the appeal were considered.

DISCUSSION

The State’s sole assignment of error is that the district court abused its discretion in granting defendant’s motion to quash the bill of information. The State contends defendant’s constitutional right to a speedy trial was not violated and his motion to quash was improperly granted.

Motion to Dismiss the Appeal as Abandoned

Defendant argues the State’s appeal should be dismissed as abandoned because the State failed to pursue the appeal for five years. This court has recently addressed this contention twice where similarly situated defendants raised this abandonment argument, and both were ultimately rejected. State v. Hall, 13-453 (La.App. 4 Cir. 10/9/13), 127 So.3d 30; State v. Brooks, 13-0540 (La.App. 4 Cir. 9/18/13), 124 So.3d 1129. In Hall, the State verbally noted its intent to appeal on the record in open court after defendant’s motion to quash was granted. The State then filed a written motion for appeal nearly three years later which was granted, a return date was set, and the record was timely lodged. On appeal, Hall argued that because the state failed to pursue the appeal for three years, the appeal should be dismissed. Likewise, in Brooks, the motion for appeal was timely made and a return date was set. The district court clerk, however, did not file a notice of appeal until three years later when the trial court set a new return date and the record was lodged sometime thereafter. On appeal, Brooks argued the appeal should be dismissed because of the three year delay between granting the State’s motion for appeal and the lodging of the record.

In both cases, this Court prefaced its analysis by noting the worthy distinction between civil and criminal appeals.

A civil appeal may be dismissed as abandoned when the parties fail to take steps in its prosecution or disposition for the time periods provided in the rules of the appellate court. See La. C.C.P. art. 561(C); La. C.C.P. art. 2162. Rule 20 of the Fourth Circuit Court of Appeal Local Rules provides that, “when no activity occurs in a [civil] appeal for three years, the appeal shall be dismissed as abandoned,” except in certain circumstances. There are no comparable provisions in the Code of Criminal Procedure or the rules of this Court that authorize the dismissal of a criminal appeal.

Hall, 13-0453, p. 5, 127 So.3d at 35 (quoting Brooks, 13-0540, p. 2, 124 So.3d at 1131). This Court then stated that after the State timely moves for an appeal and it is granted, the burden falls on the district court personnel to have the record lodged and the State need not take any further action. Id. at p. 6, 127 So.3d at 36 (quoting State v. Ross, 06-1328, p. 4 (La.App. 4 Cir. 3/14/07), 955 So.2d 167, 170) |4(“[0]nce the State timely moves for an appeal, there is no further action that must be taken by the State until the record is lodged with the court of appeal.”). In the instant case, the State timely moved for an appeal and the district court granted the motion on the same day. Defendant nevertheless contends the State’s appeal should be dismissed as abandoned because the State should not be allowed to wait five years to call this matter to the court’s attention.

Applying the aforementioned principles, defendant’s abandonment argument lacks merit. In this case, as in Hall and Brooks, we find that once the State timely moved for an appeal, it has no further duty as the burden falls upon the district court to prepare and lodge the record for appeal. Thus, the fact that the record was, not lodged until September 5, 2013, five years after the return date, did not affect the validity of the State’s appeal. The record reflects the delays this appeal has sustained cannot be attributed to the State. Accordingly, we find the State did not abandon its appeal and defendant’s motion to dismiss is denied.

Motion to Quash

The granting of a defendant’s motion to quash the bill of information is a discretionary ruling by the trial court which should not be disturbed by the appellate court, absent an abuse of its discretion. State v. Love, 2000-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206 (“Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.”). •

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.... ” In analyzing whether a | sdefendant has been deprived of his constitutional right to a speedy trial, we consider four factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). None of the Barker factors is “either a necessary or sufficient condition to the finding of a deprivation of the right to speedy trial. Instead, they are related factors and must be considered together ... in a difficult and sensitive balancing process.” Love, 2000-3347, p. 15, 847 So.2d at 1210 (quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182 (internal citations omitted)).

A. Length of Delay

The length of the delay is a threshold requirement for a speedy trial analysis as further inquiry into the remaining Barker factors is unnecessary if the delay is not presumptively prejudicial. Id. 2000-3347, p. 16, 847 So.2d at 1210 (citing United States v. Avalos, 541 F.2d 1100, 1111 (5th Cir.1976)). The guarantee of a speedy trial attaches when the defendant becomes accused, typically the day of his arrest. State v. Alfred, 337 So.2d 1049, 1054-55 (La.1976). Moreover, the weight to be ascribed to the length of the delay is determined by the peculiar circumstances of each case such as the difficulty of the case, the manner of proof, and the gravity of the alleged crime. State v. Quinn, 13-0726, p. 4 (La.App. 4 Cir. 2/19/14), 136 So.3d 267, 270 (citing Love, 2000-3347 at p. 16, 847 So.2d at 1210).

In the instant case, the delay commences on November 8, 2006, and continues to the date when defendant’s right to a speedy trial was upheld, June 6, 2008, a total of nineteen months. The State argues this delay is negligible because this Court has found that even greater delays are not presumptively prejudicial. The State’s contention has some merit, however, the circumstances and complexity of each case must be considered, rendering a comparison between this case and others | (jfrivolous. Considering the circumstances of this case and the alleged offense, simple burglary of an outdoor shed, this nineteen-month delay is sufficiently great to warrant examination of the other Barker factors. State v. Esteen, 95-1079, p. 4 (La.App. 4 Cir. 4/3/96), 672 So.2d 1098, 1101, writ denied, 96-0979 (La.9/27/96), 679 So.2d 1359 (“[T]he delay tolerable for a simple street crime is considerably less than that for a serious complex, conspiracy charge”) (citing State v. Reaves, 376 So.2d 136, 138 (La.1979)).

B. Reason for Delay

Explaining the second factor, the reason for the delay, the Supreme Court in Barker stated:

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Barker, 407 U.S. at 531, 92 S.Ct. 2182. Thus, this factor focuses on which party is responsible for the delay. The State in the instant matter contends the reason for the delay is wholly attributable to the defendant because he went at-large from December 29, 2004 to February 6, 2007 and again from October 16, 2007 to February 6, 2013. As defendant points out in his brief, the alleged offense did not take place until |7November 6, 2006 and he was arrested two days later. Defendant was held in custody from the date of his arrest, November 8, 2006, until the motion to quash was granted on June 6, 2008. Accordingly, the State’s contention that the delay is solely attributable to the defendant for going at-large is preposterous.

Defendant contends the reason for the delay was the inaction of the OPD. While the majority failed to address the issue in Boyer v. Louisiana, — U.S. -, 133 S.Ct. 1702, 1706-07, 185 L.Ed.2d 774 (2013), as it dismissed the writ as improvidently granted, Justice Sotomayer’s dissent argued in pertinent part:

Where a State has failed to provide funding for the defense and that lack of funding causes a delay, the defendant cannot reasonably be faulted. Placing the consequences of such a delay squarely on the State’s shoulders is proper for the simple reason that an indigent defendant has no control over whether a State has set aside funds to pay his lawyer or fund any necessary investigation. The failure to fund an indigent’s defense is not as serious as a deliberate effort by a State to cause delay. But States routinely make tradeoffs in the allocation of limited resources, and it is reasonable that a State bear the consequences of these choices.

The state is charged with the ultimate responsibility for providing the defendant with a speedy trial.. Thus, we find it appropriate for the State to bear the fault of the delay when lack of funding by the state legislature prevents effective assistance of counsel. As such, it can be said that the delay in prosecution in this case is attributable to the State.

C. Defendant’s Assertion of his Speedy Trial Right

The third factor to be considered is whether the defendant asserted his right to a speedy trial. Whether and how a defendant asserts this right is closely associated with the other Barker factors. Esteem, 95-1079, p. 5, 672 So.2d at 1101. While the “failure to assert the right will make it difficult for a defendant to prove |sthat he was denied a speedy trial”, it is not dispositive as “defendant’s assertion of or failure to assert his right is one of the factors to be considered.” Barker, 407 U.S. at 528, 531-32, 92 S.Ct. 2182 (emphasis added). The Barker balancing test allows a court to weigh the frequency and force of the objections and “exercise a judicial discretion based on the circumstances.” Id. at 528-29, 92 S.Ct. 2182; See State v. Nowell, 363 So.2d 523, 526 (La.1978) (“Defendant was seventeen years old, incarcerated, indigent, and, most significantly, unassisted by counsel. Under these circumstances the defendant’s failure to effectively assert his rights did not constitute a voluntary, knowing and intelligent waiver of his constitutional guarantee to a speedy trial.”).

The record does not reflect that the defendant made any assertion of his right to a speedy trial prior to filing his motion to quash. However, defendant did file a pro se “Petition for Writ of Habeas Corpus and/or Fix an Expedited Hearing Date” on February 5, 2007, before he was ever appointed counsel, alleging that he had been detained since his arrest for over eighty-eight (88) days without being summoned to court for arraignment as required by La. C.Cr.P. art. 230.1. Accordingly, defendant’s failure to effectively assert his right to a speedy trial cannot be weighed heavily against him as he attempted to assert his right, did not knowingly waive this right, and was unassisted by counsel. .

D. Prejudice to Defendant

Finally, we must consider whether or not the defendant was prejudiced by the delay. This prejudice is analyzed in light of the following interests that the right to a speedy trial was designed to protect: to prevent oppressive pretrial incarceration, to minimize his anxiety and concern, and to limit potential impairment of his defense. Barker, 407 U.S. at 532, 92 S.Ct. 2182. The Barker Court noted that “even if an accused is not incarcerated prior to trial, he is still disadvantaged by | ¡¡restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.” Id. at 533, 92 S.Ct. 2182. The Court further stated that the impairment of a defendant’s ability to prepare his case is undoubtedly the most serious form of prejudice. Id. While the delay that can be tolerated for an ordinary street crime is considerably less than that for a serious murder conviction, a valid reason should serve to justify appropriate delays. Alfred, 337 So.2d at 1058.

Defendant was detained at a facility hours away from Orleans Parish in Kinder, Louisiana from the date of his arrest until his motion to quash was granted. Thus, defendant asserts he sustained considerable oppressive pretrial incarceration and claims the State’s delays caused him increased anxiety and concern because preparation of any meaningful defense was impaired. Moreover, defendant contends his lack of counsel during the critical pre-trial stages and not being afforded effective assistance of counsel for twelve months after his arrest prejudiced his case. Considering defendant’s twelve-month, un-counseled incarceration, we find defendant has clearly proved the delay prejudiced his defense as he was unable to conduct a prompt investigation due to, his lack of effective representation.

Upon a careful consideration of the above factors as they apply to the circumstances of the present case, we are unable to say that the trial court abused its discretion in granting the motion to quash. We conclude that defendant was denied his constitutional right to a speedy trial.

_JjnDE CRE hi

For the foregoing reasons, the defendant’s motion to dismiss the appeal is denied. The district court’s judgment granting the defendant’s motion to quash the bill of information is affirmed.

AFFIRMED.

LOVE, J., concurs in part and dissents in part.

LOVE, J.,

concurs in part and dissents in part.

hi respectfully concur in part and dissent in part. I agree with the majority in so far as it denies Mr. Noel’s motion to dismiss the State’s appeal. I disagree, however, with the majority’s decision to affirm the trial court’s granting of the motion to quash. Specifically, I find Mr. Noel has failed to sufficiently demonstrate that he was prejudiced by the delay in the prosecution of his case.

Pursuant to State v. Ervin, 08-1078, p. 8 (La.App. 4 Cir. 4/1/09), 9 So.3d 303, 309, the State “demonstrate[d] reasonable diligence in its efforts to bring the defendant to trial,” requiring Mr. Noel to establish specific prejudice to his defense. Mr. Noel was detained in state custody without effective assistance of counsel from the date of his arrest, November 8, 2006, until the Tulane Law Clinic was appointed to represent him, November 16, 2007. Further, the trial court ordered the warden of the correctional center to produce Mr. Noel with reasons for his detention in March 2007, but the warden failed to do so. The warden’s failure to comply with the trial court’s order should not be attributable to the state.

Additionally, the time Mr. Noel was without counsel, a little over a year, is not historically considered an extensive delay. Therefore, I find the State’s degree of culpability in this case is low despite the fact that OPD, as an extension of the criminal justice system, bears the responsibility of providing effective assistance of ^counsel to indigent defendants. The fact that the trial court appointed new counsel to represent Mr. Noel, approximately six months after OPD was allowed to withdraw as counsel, indicates that reasonable diligence was taken to bring Mr. Noel to trial. Moreover, Mr. Noel only points to the fact that he was unable to conduct a prompt pre-trial investigation to establish prejudice in this case.

For these reasons, I find that Mr. Noel failed to establish “specific prejudice to his defense.” Accordingly, I would reverse the trial court’s granting of the motion to quash.

      . While a comparison is trivial, it should be noted that the State's claim is misguided. See State v. Firshing, 624 So.2d 921 (La.App. 4 Cir.1993), writ denied, 93-2621 (La.2/25/94), 632 So.2d 760 (seventeen-month delay) and State v. Leban, 611 So.2d 165 (La.App. 4 Cir.1992), writ denied, 619 So.2d 533 (La. 1993) (sixteen-month delay). See also State v. Nowell, 363 So.2d 523, 526 (La.1978) (finding that defendant was deprived of his right to a speedy trial because he was not appointed counsel until twelve months after his arrest and could not assert such a deprivation without counsel).

      . While defendant was appointed an OPD three months after his arrest, the subsequent determination that defendant was not provided effective assistance of counsel makes, said appointment inconsequential. See State v. Edwards, Case No. 463-200 (Orleans Parish Crim. Dist. Ct. March 26, 2007) (Hunter J.)