author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Joseph PETERS.
    No. 2012-KA-1641.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 21, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Joseph Peters.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

hOn 7 April 2011, the state indicted the defendant, Joseph Peters (“Peters”), and codefendants, Derrick Allen (“Allen”) and Jazmun Tolbert (“Tolbert”), with one count of second degree murder. Peters pleaded not guilty on 12 May 2011. A hearing on motions was held on 28 October 2011; the trial court found probable cause and denied Peters’ motions to suppress evidence and identification. On 24 January 2012, on joint motion, trial was continued to 10 April 2012. On 2 April 2012 Allen elected a trial by judge. Thereafter, on 10 April 2012, the state filed a motion to sever Allen’s case from Peters’; it also sought to sever Tolbert’s case from Peters’. According to a minute entry, Peters refused the state’s offer of a plea bargain. Trial was again continued on a joint motion. On 12 June 2012, Peters elected a trial by jury, and trial began with jury selection. Peters’ trial was held on 12-15 June 2012. The jury found Peters guilty of manslaughter, a violation of La. R.S. 14:31. Peters filed a motion for a new trial and motion for post-verdict judgment of acquittal on 20 June 2012, as well as a motion to reconsider sentence, all of which the trial court denied. The trial court sentenced Peters to forty years at [2hard labor with credit for time served from 26 October 2010, to run concurrently with any and all sentences. According to the 25 July 2012 minute entry indicating that it was an amended 20 June 2012 entry, the trial court granted Peters’ motion for appeal on 20 June 2012.

I.

Latoya Dugay, a 911 operator and the custodian of records in the 911 department, testified that she takes calls from witnesses reporting incidents, types up an incident recall (with an item number), and sends the recalls to the dispatcher. She stated that she had reviewed the incident recalls and 911 radio dispatch recordings for item numbers 3-3353110, 3-3352710, and 3-3353610, consisting of (1) incident recalls of the 911 calls on 25 October 2010; (2) an incident recall of dispatcher talking to police officer in the field; (3) a disk recording of the 911 calls; and (4) a disk recording of dispatcher providing information to a police officer. The 911 tape and the recording of the dispatcher’s call to an officer were played for the jurors. Ms. Dugay stated that she had not listened to the recordings that day, but she recognized the voices when it was played in court. She agreed that she had heard the caller say that there were “four black males” in the recording, but the incident recall did not indicate that there were four shooters. She explained that the number in the recording referred to the subjects at large, not the ones apprehended. The incident recall noted three apprehensions.

Dr. Cynthia Gardner, a forensic pathologist with the Orleans Parish Coroner’s Office, was accepted as an expert, and testified that she performed an autopsy on Sedale Dorsey, the victim, on 26 October 2010 and prepared the autopsy protocol. The protocol was introduced in evidence. She stated that, prior |sto the incident, the victim had been a paraplegic confined to a wheelchair. She found three older bullets that were positioned very near Mr. Dorsey’s spinal column, which gunshots probably caused his paralysis. The doctor noted that Mr. Dorsey’s right kidney and right adrenal glands were absent (surgically removed). As to the current injuries, Dr. Gardner testified that the victim had fourteen acute gunshot wounds. Two of the wounds were to the head, one of which went through the head and exited; the wounds caused injury to the soft tissue of the victim’s face and eye, as well as fractures to the skull and bleeding around the surface of the victim’s brain. Ten wounds were to Mr. Dorsey’s torso, which caused injury to his spinal column and the large vein in his upper chest, as well as injuries to both of his lungs and an extensive injury to his heart. The last two gunshot wounds injured his right hand and forearm, injuring only soft tissue. Dr. Gardner stated that Mr. Dorsey “died as a result of these multiple gunshot wounds.” She explained the paths of the bullets and the damage they caused; an enlarged copy of a page of the autopsy protocol was shown to the jury. The doctor said that all bullet entrance wounds were on the victim’s back, and some wounds indicated that Mr. Dorsey was sitting down (presumably in his wheelchair). Dr. Gardner said that she recovered one bullet from the victim’s skull and five from his torso. She stated that the guns were fired at a distance from the victim, at least two feet, because she found no gunpowder stippling (unbumed flakes of gunpowder around the entrance wounds that would have been present if the gun had been within two feet of Mr. Dorsey). She stated that once a shot is fired more than two feet away, there is no way to know the exact distance. Dr. Gardner explained the entry and exit wound of each bullet that exited the body and marked each of those on the enlarged diagram of the victim’s body.

|4Sergeant Irving Gasper, an eighteen-year veteran of the New Orleans Police Department (“NOPD”), testified that on 25 October 2010 he responded to a 34-S, which is an aggravated battery by shooting. He was the first officer at the scene at St. Andrew and South Liberty Streets. He observed a black male seated in a wheelchair with apparent gunshot wounds. The victim was about twenty feet from the intersection, positioned directly behind a parked blue Dodge minivan. The sergeant observed a lot of blood on the front of the victim’s body and multiple gun casings on the ground around the victim. Sergeant Gasper indicated that the victim’s back was positioned toward the street. He began stringing the crime scene with tape and talked to the large number of people at the scene (about 150), but he could not find any witnesses to the drive-by shooting.

Detective Justin Rice of the Homicide Division testified that he was the lead investigator in the murder; twenty-seven spent casings were recovered from that scene. The second crime scene was in the 7800 block of Fig Street, where a Chrysler Sebring automobile crashed into a house, and its occupants, who were suspects in the drive-by shooting, jumped out of the vehicle and fled. Two suspects were apprehended there. One gun was recovered within a suspect’s flight path. The detective said that he located two witnesses, who were reluctant to cooperate. Detective Rice said that he spoke to the two Orleans Parish Sheriff’s deputies who were executing an arrest warrant when they heard the gunshots nearby. The deputies headed to investigate, but a Chrysler Sebr-ing sped in their direction before the driver threw the car into reverse and sped away. The deputies followed the Chrysler until NOPD units took over the lead. Detective Rice said that the dashboard cameras (“cams”) on the NOPD units captured the high speed chase. [{¡Detective Rice contacted Sergeant Henry Burke of the mobile data unit, and he obtained the video footage for the detective.

Detective Rice said that a Glock 19 pistol, which was discarded by Peters, was recovered in the 8200 block of Fig Street, and a Glock 27 pistol was recovered in the 7800 block of Fig Street, which was in the flight path of the suspects. A Glock 17 was found in the Chrysler Sebring. The detective submitted a ballistics request so that the three firearms would be compared to the spent casings at the scene of the homicide. He requested that the weapons be swabbed for any DNA, that Detective Tim Bender apply for a search warrant for the Chrysler, had the vehicle dusted for latent fingerprints. Detective Rice learned that Officer Kevin Wheeler had used his Taser on Peters, and the detective had that officer’s Taser video downloaded. The detective obtained a search warrant for Peters and Allen; he used buccal swabs to obtain samples of their DNA.

On cross-examination, Detective Rice said that he obtained four videos from the dashboard cams on the police units. He stated that Tolbert was not arrested until a few months after the shooting when a DNA hit was obtained on CODIS for the DNA taken from the Glock discarded in the 7800 block of Fig Street. He stated that Tolbert and Allen had been victims in an earlier shooting. Detective Rice stated repeatedly that he knew of no crime cameras in the area of the chase or the drive-by shooting. The detective acknowledged that initially the 911 callers insisted that there were four perpetrators, but after talking to the deputies, the witnesses, and the NOPD officers, “it was relayed to me that there was [sic] only three.” He stated that the victim’s recovered cellphone was smashed and yielded no information.

[fiOn redirect examination, Detective Rice testified that the lead police vehicle had a dashboard camera (“cam”) that showed the chase. Videos from four dashboard cams showed the entire chase. The detective said that the guns that were used to kill Mr. Dorsey were found. Detective Rice said that he interviewed Deputy Braun, who had said that there were four suspects, and he then stated that “he saw three subjects inside the vehicle and there was possibly a fourth but he was unclear.” He said that two suspects were apprehended that day. Detective Rice testified that he spoke to Officer Chantelle Minor, who had been involved in the apprehension of the suspects. Officer Minor reported that two suspects were apprehended; one was apprehended on a roof, and she had helped to arrest Peters. The officer explained that she had stopped a third subject, but he was “a mentally challenged person who was outside at that time.” Only two were apprehended that day. Tolbert was apprehended months later. The detective explained that he was taught how to swab a subject’s cheek in order to obtain a DNA sample, but he knew nothing about DNA analysis. He said that a note found in the victim’s pants had no evidentiary value to the case. The detective told defense counsel that he did not get the name of the “mentally challenged” man because Officer Minor had immediately released him.

Deputy Daniel Hirseh testified that at about 6:25 p.m. on 25 October 2010, he and his partner, Deputy Braun, along with a sergeant, were serving warrants on Josephine Street when they heard several gunshots; then, after seconds, they heard a large volley of gunshots. The deputy headed to his vehicle and executed a three-point turn on Josephine (a one-way street). By then a Chrysler Sebring, which was traveling at a high speed, turned onto Josephine from South Liberty; the driver then saw the deputies’ car blocking the way. The Chrysler stopped and the driver threw |7it into reverse, traveling backwards very fast until he was past South Liberty. Then he made a right turn onto South Liberty heading westbound toward Jackson Avenue.

Deputy Hirseh stated that he pursued the vehicle while Deputy Braun handled radio communications. While he was the lead police unit behind the Chrysler, the Chrysler did not stop, traveling at a high rate of speed, ignoring all traffic lights and stop signs. Deputy Hirseh said that when the Chrysler hit Second Street and South Claiborne Avenue, a NOPD vehicle was positioned on the neutral ground. That unit jumped out behind the Chrysler and became the lead unit; Deputy Hirseh fell back into second position. As more NOPD units arrived, he was falling farther and farther back in the line, but he continued to follow the Chrysler. When he arrived at the crash scene, he saw one suspect, later identified as Peters, in custody, sitting on the steps of a residence and a weapon on the sidewalk of a side street. Because Peters appeared agitated, Deputy Hirseh and his partner took him and placed him in the back of their car. Deputy Hirseh identified Peters as that suspect. He acknowledged that no dashboard cam was present on his cruiser. The deputy said that he could not recall telling the 911 operator that there were four suspects in the Chrysler, but he really saw only two suspects, one in the driver’s seat and one in the back seat behind the driver. He was focused only on keeping up with the Chrysler and not having an accident.

Deputy Terry Braun corroborated Deputy Hirsch’s testimony that they were serving warrants in the 2200 block of Josephine Street when they heard two sets of gunshots seconds apart. The first was four or five rounds; the second was twenty or thirty rounds. When Deputy Hirseh was attempting to do a three-point U-turn, a silver Chrysler Sebring turned onto Josephine. When the driver of the Chrysler |8saw their marked car, he drove in reverse all the way back to turn onto South Liberty. Deputy Braun said that they pursued the vehicle, and Deputy Hirseh stayed right behind it until a NOPD unit took the lead position. Deputy Hirseh listened to the dispatch recording in which he said that there were four suspects in the Chrysler; he also agreed that he gave a statement saying that there were three or four suspects in the car. He said that he could not be positive because the suspects’ bodies were bouncing all over as the Chrysler was traveling at sixty-five m.p.h. on New Orleans streets. He identified the video from the dashboard cam showing the rear of the Chrysler and the license plate that he called into the dispatcher.

Deputy Braun stated that when he arrived at the scene of the crash at Fig and Dublin Streets, he observed the Chrysler and a handgun on the sidewalk between the Chrysler and a police car. Police officers were tussling with Peters even though he was handcuffed for he was trying to pull away from the officers. Deputy Braun said that he and Deputy Hirsch took Peters and placed him in the back of their unit. On cross-examination, the deputy said that he did not see the shooting, saw no gunfire from the Chrysler, and saw no weapon thrown from the Chrysler. He stated that Peters had been “tased” before they arrived at the crash scene. He knew nothing about Officer Minor. Deputy Braun explained that he saw two suspects as the Chrysler was traveling toward their car. When they were behind the Chrysler, he could see one person in the back seat, but he could not be sure if another person was present.

NOPD Officer Kevin Wheeler testified that on 25 October 2010 he was working with Officer Jerry Devorak. They were on Martin Luther King Boulevard, heading towards South Claiborne Avenue, and made a right turn onto South Galvez Street when they heard a deputy on the radio saying that shots had |sbeen fired. Officer Wheeler said that they set up at the intersection of South Claiborne Avenue and Second Street, and that when the gray or silver Chrysler Sebring turned onto Claiborne to head downtown, they pulled in immediately behind it. Officer Wheeler acknowledged that they remained the lead unit until the Chrysler crashed into a house at the corner of Dublin and Fig Streets, when three suspects exited the car and fled on foot. Officer Wheeler testified that he used his vehicle to cut off one suspect, later identified as Peters. Peters ran back toward the Chrysler, and the officer exited his unit and pursued the suspect on foot. Officer Wheeler said that Peters removed a black firearm from his waistband, and the officer reached for his own gun. Peters, however, stumbled and fell; the firearm fell from his hand to the concrete sidewalk. The officer acknowledged that he then used a Taser to stop Peters. Officer Wheeler identified the video as coming from the dashboard cam of his unit, and the video was played to the jury. It showed a Sixth District officer handcuffing Peters while Officer Wheeler kept his Taser pointed towards Peters. The officer said that he walked back to where the handgun had been dropped on the sidewalk. He identified Peters in court.

On cross-examination Officer Wheeler explained that a camera was mounted on the bottom of his Taser. He knew that Officer Chantelle Minor had detained someone, but he did not know the suspect whom she had detained. He said that a firearm was found in the Chrysler, and another one was discarded during the chase, but he had nothing to do with those. Officer Wheeler stated that he saw only three individuals in the Chrysler, and three suspects exited the car after the crash. Officer Minor detained one suspect, and he detained Peters.

Officer Jerry Devorak corroborated Officer Wheeler’s testimony as to their involvement in the high speed chase on 25 October 2010 that ended in a crash. He | i0said that Officer Wheeler cut off Peters, and they pursued him on foot. Peters began to pull a handgun from his waistband, and Officer Wheeler put his hand on his own gun. When Peters started to stumble, the gun fell to the ground. Officer Devorak said that Officer Wheeler re-holstered his gun and took out his Taser, which he used to incapacitate Peters, who then fell to the ground. Officer Devorak said that he then went down Dublin Street to Pritchard Place, where people on the street were pointing to a house. He and other officers surrounded the house, and an officer found Allen on the roof and arrested him. Officer Devorak identified Peters in court.

Veronica Manuel, an NOPD crime lab technician, processed the crime scenes at 2000 South Liberty Street where the drive-by shooting occurred, the 2900 block of Dublin Street where the Chrysler Sebr-ing crashed, the 7900 block of Fig Street where a Glock pistol was discarded, and 715 Broad Street where another Glock pistol was discarded. Photos of the crime scenes were introduced. Ms. Manuel collected ten .40-caliber casings, seventeen 9-mm casings, and one spent pellet. She identified the field test she conducted that night, a Gunpowder Residue Test (“GSR”) on Peters’ hands that was presumptively positive. Defense counsel read from the NOPD scientific information manual that indicated that a GSR collection must be outsourced for analysis; Ms. Manuel said that she only knew that she did the GSR test on Peters that night. Defense counsel attempted to discredit Ms. Manuel’s test. Ms. Manuel identified: the Glock 17 (with a jammed-live round stuck in chamber) that was recovered from the Chrysler Sebring, the Glock 19 that was recovered from the sidewalk in the 8200 block of Fig Street; and the Glock 27 that was recovered from the 7800 block of Fig Street.

InThe parties stipulated that Meredith Acosta, the firearms examiner for the NOPD Crime Laboratory, was an expert in the field of firearms examination. Ms. Acosta said that the sixteen 9-mm caliber shell casings found in the 2000 block of South Liberty were fired by the Glock 19; the ten .40-caliber casings from the 2000 block of South Liberty were fired by the Glock 27. After examining the bullets removed from the victim’s body, she stated that the copper jacketed projectiles were consistent with .38-caliber ammunition, which includes 9-mm ammunition; but she could not say more without the actual guns used. Two had characteristics of the .40-caliber Glock, but nothing more could be said. The projectile fragment had characteristics similar to a Glock’s, but she could not definitively say whether they were 9-mm or .40-caliber (because of similar characteristics). On redirect examination, Ms. Acosta testified that she tested 27 casings from the scene of the shooting, that all of those were fired by the three Glock semiautomatic pistols recovered, and that those results were beyond a reasonable doubt.

Troy Dickerson, a technician at the NOPD Crime Laboratory, was qualified as an expert in the taking of fingerprints and swabbing. He testified that he processed the Chrysler for latent fingerprints, but he did not know the result. He turned the fingerprints over to the latent fingerprint section of the police. Eight “possible” GSR samples were collected from the driver’s and the passenger’s sides of the Chrysler; thirteen photos of the car were taken. Mr. Dickerson said that he was not able to recover fingerprints from the Glock 17, the Glock 19 (save a partial latent print from the ejection port but not suitable for comparison), or the Glock 27. | ^Although the NOPD Crime Lab is not certified in DNA analysis, specimens can be sent to the Louisiana State Police, if necessary.

Marja Porteous, who works at the Louisiana State Police Crime Lab, testified that she works in evidence intake. Detective Rice’s evidence under Item 3-3353110 and request for scientific analysis was received by her on 3 December 2010; she sealed the evidence and entered it into the system. Present were two possible DNA samples from the Glock 17, two from the Glock 19, and two from the Glock 27. She had buccal cell swabs from Peters and Allen.

Paul Berry, the State Police DNA Analyst, was accepted as an expert in DNA analysis and questioned by the defense. Mr. Berry testified that he worked on SP-013173-10 and generated a report. He stated that he was able to obtain a DNA profile from the swabs from the Glock 17 and the Glock 27 and the two reference samples from Peters and Allen. According to Mr. Berry, the DNA profile for the Glock 17 was a mixture; Allen was excluded as a contributor. Peters could not be excluded as a major contributor. Peters and Allen were excluded as contributors to the DNA from the Glock 27; the major profile was consistent with Tolbert. Mr. Berry reached no conclusion as to DNA on the Glock 19. He concluded that Tolbert was excluded from every gun, save the Glock 27.

Joseph Pollard was accepted by stipulation to be an expert in the field of latent fingerprint identification. The two fingerprints lifted from the rear driver’s side door of the Chrysler matched Allen’s fingerprints.

ERRORS PATENT

A review of the record reveals no errors patent.

| ^ASSIGNMENT OF ERROR NUMBER ONE

Appellate counsel argues that the state’s evidence is insufficient to prove that Peters committed manslaughter. Counsel contends that all the evidence was circumstantial. Under La. R.S. 15:438 the state has to exclude every reasonable hypothesis of innocence, and the state did not carry that burden of proof. The only issue at trial was whether Peters killed Sedale Dorsey. Counsel asserts that:

• No witness saw the drive-by shooting or identified the Chrysler Sebring as the vehicle used and from which the defendant exited after the crash.
• The state did not prove that Peters ran because he was involved in the shooting, asserting that he ran for another reason, “perhaps out of fear of the police.”
• Forensic examination of the bullets from the victim’s body and the three guns recovered did not definitively prove that that they were the weapons used to kill Mr. Dorsey.
• Although conceding that the gunpowder residue test performed on Peters showed that he had touched the gun, that test was in the field and only “presumptively positive;” a second outsourced laboratory test was never conducted as required.
• The state did not present evidence showing that a GSR test can prove that a particular person fired a particular gun.
• The DNA evidence linking Peters to the Glock 17, if considered reliable, only proved that Peters had touched the gun. The State Police DNA expert testified that the DNA profile from the Glock 17 was a mixture of DNA and |14Peters could not be excluded as a major contributor, but admitted that an unknown subject had also contributed to the DNA found on that gun.
• No helpful fingerprints were found on the guns, on the bullets, or in the Chrysler to prove that Peters was in the car or shooting a gun.
• Two fingerprints on the car matched Derrick Allen.

In its brief, the state argues that the verdict is amply supported by the law and the evidence. Criminal Sheriffs deputies and Braun testified that they were executing arrest warrants when they heard a large number of gunshots. As they headed for their vehicle and Deputy Hirsch made a U-turn, the driver of a gray Chrysler Sebring turned onto Josephine Street, saw their marked unit blocking the way, and drove in reverse all the way back to a street where a turn could be executed. The deputies chased the Sebring, and they were the lead unit until an NOPD unit jumped in and became the lead chase unit. Officers Wheeler and Devorak testified that they were in the lead NOPD unit chasing the Chrysler Sebring until it crashed. When the Chrysler crashed, Peters ran from it. Officer Wheeler said that he blocked Peters’ path with his unit, and then he and Officer Devorak followed Peters on foot. Officers Wheeler and Devo-rak were running right behind Peters as he pulled a Glock pistol from his waistband. When he stumbled and fumbled the Glock, which fell to the ground, Officer Wheeler used a Taser to incapacitate Peters. The state argues that even if Peters’ flight from the crashed Chrysler could be otherwise explained (as defense counsel claims), one must consider other evidence that supported the case against Peters:

• The behavior of the Chrysler’s driver (and occupants) speeding away from something (if not the drive-by shooting scene) and recklessly driving at high speeds on New Orleans streets, ignoring traffic lights and stop signs.
11S* Peters’ pulling out a Glock pistol during his flight from NOPD officers right behind him.
• The finding of gunpowder residue on Peters’ hands (even if only presumptively positive) on the night of the shooting.
• Peters’ DNA was linked to the Glock found on the front seat of the Chrysler.

Peters was charged with second degree murder, a violation of La. R.S. 14:30.1, which provides:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.
B. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

The jury found Peters guilty of manslaughter, a violation of La. R.S. 14:30.1, which provides:

A. Manslaughter is:
(1) 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 11fiaverage person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
B. Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. However, if the victim killed was under the age of ten years, the offender shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than ten years nor more than forty years.

In State v. Taylor, 12-0845, p. 9 (La.App. 4 Cir. 6/26/13), 118 So.3d 65, 77-78, quoting State v. Huckabay, 00-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111, this court once again explained the standard of review for sufficiency of the evidence:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which |17the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438.

This Court went on to state:

Additionally, when a key issue is the defendant’s identity as the perpetrator, the State is required to negate any reasonable probability of misidentification. State v. Weary, 03-3067, p. 18 (La.4/24/06), 931 So.2d 297, 311; State v. Galle, 11-0930, p. 31 (La.App. 4 Cir. 2/13/13), 107 So.3d 916, 935.

Taylor, p. 9, 118 So.3d at 77. See also State v. Veal, 12-0712 (La.App. 4 Cir. 5/1/13), 116 So.3d 779, quoting State v. Stewart, 04-2219, p. 6 (La.App. 4 Cir. 6/29/05), 909 So.2d 636, 639 (“When identity is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 ...”); State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893.

In State v. Holmes, 05-1248, pp. 8-9 (La.App. 4 Cir. 5/10/06), 931 So.2d 1157, 1162, this court fully discussed the standard to be used when a defendant disputes his identity as the perpetrator of an offense:

When a key issue at trial is whether the defendant was the perpetrator of the crime, the State is required to negate any reasonable probability of misidenti-fication in order to carry its burden of proof beyond a reasonable doubt. State v. Bright, 1998-0398 (La.4/11/00); 776 So.2d 1134, 1147. The fact-finder weighs the respective credibilities of the witnesses, and a reviewing court will generally not second-guess those determinations. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). However, the touchstone of Jackson v. Virginia is rationality and that “irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). The trier of |isfact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witnesses. State v. Hampton, 98-0331 (La.4/23/99); 750 So.2d 867, 880.

Here, Peters was inside the Chrysler Sebring when the car was speeding towards the vehicle of the Criminal Sheriffs deputies and away from the location where a number of shots had just been fired; the Chrysler never stopped. The Chrysler driver recklessly reversed and sped away from the deputies at high speeds over the streets of New Orleans, but Deputies Hirsch and Braun were right behind the Chrysler. NOPD Officers Wheeler and Devorak moved into the lead position and stayed right behind the Chrysler until it crashed; they saw Peters run from the vehicle. Their NOPD unit had a cam recorder that videotaped the chase, the crash, and Peters’ exiting the Chrysler. Officer Wheeler blocked Peters’ path with his unit, and Peters ran the other way; Officers Wheeler and Devorak ran right behind him. The officers followed Peters, who at one point pulled a Glock from his waistband. When Peters dropped his gun, Officer Wheeler put his gun away and used his Taser to incapacitate Peters. Police officers or deputies never lost sight of the Chrysler during the high speed chase. The GSR field test was presumptively positive for gunpowder on Peters’ hands, and his DNA could not be excluded as a major contributor to that found on the Glock 17 recovered from the front seat of the Chrysler. The testimony of the deputies and NOPD officers negated any reasonable probability of the misidentification of Peters as one of the shooters who killed Mr. Dorsey.

119This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Appellate counsel argues that the maximum forty-year sentence for manslaughter was excessive under the circumstances of this case because maximum sentences are reserved for the worst kind of offenders. Counsel argues that the trial court did not give adequate consideration to the sentencing guidelines in La.C.Cr.P. art. 894.1. Counsel admits that if the trial court considered La. C.Cr.P. art. 893.3 E, the minimum sentence is twenty years ■with the maximum of forty years. Defense counsel correctly notes that in the sentencing transcripts of 20 and 26 June 2012, the trial court did not mention the codal article. Counsel seeks to have the forty-year sentence vacated and the case remanded for resentencing within constitutional limits.

Contrariwise, the state notes that Peters was charged with second degree murder, and the maximum sentence under that statute is life imprisonment without benefit of parole, probation, or suspension of sentence. Peters was convicted of manslaughter, which carries a maximum sentence of forty years. The state concedes that under La. C.Cr.P. art. 893.3 E, Peters faced a sentencing range of twenty to forty years. The state notes that Peters complains that he received the maximum sentence and argues that the evidence amply supported the greater charge of second degree murder, but the trial court supported its sentence by considering that the evidence presented proved the greater crime of second degree murder and by considering that the victim was a paraplegic in a wheelchair and was shot fourteen times.

If the jury had convicted Peters of second degree murder, his sentence would have been life imprisonment at hard labor without benefit of parole, probation, or [ ^suspension of sentence. La. R.S. 14:30.1 B. The jury convicted Peters of manslaughter, and the maximum sentence was forty years at hard labor.

In State v. Veal, 12-0712 (La.App. 4 Cir. 5/1/13), 116 So.3d 779, quoting State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, this court set out the pertinent law relating to the review of excessive sentences:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ••• excessive ••• 'punishment.” (Emphasis added.) Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906....
This Court in Batiste, [] at p. 18, 947 So.2d at 820 further explained:
An appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La.C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed. State v. Landry, supra [871 So.2d 1235 (La.App. 4 Cir.2004) ]; State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181. However, as noted in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 8/4/98), 708 So.2d 813:
The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resen-tencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D).
If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 2003-1671 at p. 8, 871 So.2d at 1239. See also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

Veal, p. 13, 116 So.3d at 792-94.

In State v. Colbert, 07-0947 (La.App. 4 Cir. 7/23/08), 990 So.2d 76, the defendant had been charged with second degree murder, found guilty of manslaughter, and sentenced to serve forty years at hard labor, the statutory maximum. This court found that the trial court had complied with the guidelines of La.C.Cr.P. art. 894. The trial court had reviewed the pre-sentence investigation report and the defendant’s extensive criminal history. The trial court noted that the victim was an innocent bystander who had become friends with the mother of the ^defendant's baby. The victim was not armed and in no way provoked the defendant. We said:

Likewise, although the appellant here was convicted of manslaughter, the State originally charged him with second degree murder. Indeed, the fact that the appellant was lying in wait with a gun when Ms. Alexander [his baby’s mother] and Jefferson [her friend] arrived on the scene shows that his actions were not exactly spontaneous reactions to seeing Ms. Alexander and Jefferson together. In addition, this court has upheld forty-year sentences for manslaughter in the past. See State v. Allen, 2006-1434 (La.App. 4 Cir. 3/7/07), 954 So.2d 779 (the defendant, who had prior convictions, stabbed someone whom he thought had stolen his wallet); State v. Bell, 2002-2349 (La.App. 4 Cir. 8/6/03), 854 So.2d 429 (the defendant, who had no prior convictions, stabbed her lover; she had been charged with second degree murder); State v. Jones, 2001-0630 (La.App. 4 Cir. 3/20/02), 814 So.2d 623 (the defendant, charged with second degree murder, was convicted of manslaughter in the shooting death of a man with whom he had fought earlier the same night); State v. Williams, 99-2355 (La.App. 4 Cir. 12/13/00), 776 So.2d 604 (the defendant, charged with first degree murder, was convicted of manslaughter when he opened fire in the apartment of a man with whom he had previously fought). Given the circumstances of this case, we cannot say that the trial court abused its discretion by-imposing the maximum sentence for manslaughter.

[Footnote omitted.] Colbert, p. 29, 990 So.2d at 93-94.

In this case Peters was convicted of being one of the men involved in a drive-by shooting. Three shooters fired repeatedly with semi-automatic weapons at Sedale Dorsey, a paraplegic in a wheelchair. The victim was shot fourteen times. At sentencing the trial court stated that Peters had been charged with second degree murder, but was convicted of manslaughter. The trial court stated:

Mr. Peters, you went to trial in this Court for Second Degree Murder. You did not testify. The victim in this ease was a paraplegic seated in a wheelchair that was shot 14 times, as the evidence said. I think that the jury | ^finding you guilty of a lessor [sic] charge of Manslaughter was the mercy that they gave you.

The trial court set out its reasons for imposing the maximum sentence for manslaughter, which included that the state had proven second degree murder, which carries a life sentence without benefits. The court articulated its reasons for the sentence. The trial court did not abuse its sentencing discretion in this case.

' This assignment of error lacks merit. CONCLUSION

We affirm Joseph Peters’ conviction and sentence.

AFFIRMED.

LANDRIEU, J., Concurs in the Result.

      . On 23 January 2013, the state amended the charge to manslaughter, and Allen pleaded guilty. He waived delays, and the trial court sentenced him to fifteen years at hard labor, to run concurrently with any and all sentences. The state also entered a nolle prose-qui of Tolbert's second degree murder charge.

      . In this case, the specimens were sent to the Louisiana State Police for analysis.

      . During argument relating to state motions in limine without the jurors present, the state noted that the dashboard cam on the NOPD unit videotaped the chase, the crash, and the three suspects’ exit. The state said: "We have him hopping out of the car after dropping the gun that was used in the shooting.”

      . The state filed a motion seeking imposition of the firearm sentencing provisions under La.C.Cr.P. art. 893.3 E, and the mandatory minimum then would have been twenty years, and the maximum would have been forty years without benefit of parole, probation, or suspension of sentence. Appellate counsel states that the trial court did not mention whether or not it was considering the article. The trial court did not mention the article and did not restrict the forty-year sentence. In Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), the Supreme Court held that any fact that increases the mandatory minimum is an "element” that must be submitted to the jury; we note nothing in the record on appeal indicates that the jury made such a finding.

      . State v. Batiste, 06-0875 (La.12/20/06), 947 So.2d 810, 820.

      . Colbert also had a second conviction for attempted second degree kidnapping in the case; he additionally received the maximum sentence as to that charge.


source: Caselaw Access Project

author: Judge TERRI F. LOVE.

license: Public Domain

text:
    STATE of Louisiana v. Landon D. QUINN.
    No. 2012-KA-0689.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 21, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee, State of Louisiana.

      Cate L. Bartholomew, New Orleans, LA, for Defendant/Appellant, Landon D. Quinn.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   Judge TERRI F. LOVE.

[ iThis appeal arises from the defendant’s conviction of two counts of second degree murder, by non-unanimous verdicts, and his sentence of life imprisonment without the possibility of parole, probation, or suspension of sentence.

We find that sufficient evidence existed such that a trier of fact could have found the defendant guilty beyond a reasonable doubt. We find that the trial court judge’s limitation of the cross-examination of the State’s witness’ criminal history constitutes harmless error. Further, we find that the trial court did not abuse its discretion in denying the defendant’s motion to suppress the identification because adequate evidence exists in the record to comply with the required jurisprudential factors. The trial court also did not err in denying defendant’s motion for new trial because the alleged newly discoverable evidence was discoverable prior to trial. Additionally, the defendant did not preserve the right to challenge a non-unanimous verdict on appeal. Lastly, we find that the defendant’s sentences are not excessive, as they fall within the mandatory sentencing guidelines. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A grand jury indicted Landon Quinn on two counts of second degree murder in violation of La. R.S. 14:30.1, for the murders of Matthew Miller and Ryan |2McKinley. Mr. Quinn pled not guilty. Following the trial, the jury returned a verdict of guilty as charged on both counts. Mr. Quinn filed a post-trial motion for new trial, which the trial court denied. Mr. Quinn was then sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. Mr. Quinn objected to the sentence and noticed his intent to appeal. The trial court granted Mr. Quinn’s motion for appeal. The trial court also denied Mr. Quinn’s motion for reconsideration of sentence.

Testimony of Officer Enjoli Harris

First District New Orleans Police Department (“NOPD”) Officer Enjoli Harris and her partner were called to the scene of a shooting at North Prieur Street and Bayou Road in New Orleans on April 14, 2009. Upon her arrival at the crime scene, Officer Harris observed that the victims, two white males, were lying on the ground suffering from gunshot wounds. One of the victims, Mr. Miller, was still responsive, while the other victim, Mr. McKinley, was unresponsive. Officer Harris asked Mr. Miller what happened, and he identified the shooter as a black male. EMS was called to the scene, and the victims were transported to the hospital.

Testimony of Officer Rodney Vicknair

Officer Rodney Vicknair, who was assigned to the NOPD’s First District Task Force, was working with his partner, Officer Armond Clavo. He observed two gentlemen on the ground with gunshot wounds. Officer Vicknair recalled that Mr. McKinley was pale in color, scared, had trouble breathing, and was concerned about his friend, Mr. Miller. Officer Vick-nair asked Mr. McKinley if he knew who shot him and if he could give Officer Vick-nair his address for notification of his next of kin. However, Mr. McKinley could not speak. Mr. McKinley’s shirt was pbloody. No witnesses were observed in the vicinity of the shooting, and no one came to the scene to identify themselves as witnesses.

Testimony of Officer Armond Clavo

Officer Clavo observed two gentlemen on the ground with gunshot wounds. Officer Clavo recalled that the victims were making noise, or yelling that they were shot. Officer Clavo asked Mr. Miller if he knew who shot him, and Mr. Miller stated that a black male shot him and pointed towards North Johnson and Prieur Streets. Mr. Miller indicated that he and the other victim were robbed, and he showed great concern about Mr. McKinley, but Mr. Miller eventually could not speak anymore, he “shut down,” and lost consciousness.

Officer Clavo also explained that on the crime camera footage, the victims were observed with a bag, as if coming from a store, and they were talking to several people on the corner of Governor Nicholls and North Roman Streets. Officer Clavo recognized one of the people the victims were speaking to in the footage. Although Officer Clavo did not remember the person’s name, he knew where the person lived.

Testimony of Detective Ryan Aucoin

Detective Ryan Aucoin was assigned to the NOPD Homicide Division and was “investigating homicides on and off since 2004.” On the night of the shooting, Detective Aucoin reported to the crime scene and identified the location on a map at trial. When Detective Aucoin arrived at the scene, the victims were already transported to the hospital, but he viewed pools of blood on the corner of North Prieur Street and Bayou Road. Detective Aucoin also identified an article of clothing found at the scene, a two-liter pineapple Big Shot soft drink, and a wrapper, which originally contained a roast beef poboy, that was collected at the 1¿scene.

A secondary crime scene was developed in the two thousand block of Barracks Street in between a mosque and a fence. Detective Aucoin stated that this was where the investigating officers surmised the actual shooting took place. No spent bullet casings were found.

Testimony of Detective Michael McCleery

Detective Michael McCleery testified as a witness for the State. Detective McCleery worked in the NOPD’s Homicide Division for five years. Detective McCleery was able to determine where the victims lived and pinpointed at trial the location of the victims’ home from a map. During his investigation, Detective McCleery ascertained that the victims went to Wise Discount Market (“Market”) on Governor Nicholls and North Johnson, purchased a poboy sandwich and a two liter soda, and began to walk home. En route to their home, Mr. Quinn approached the victims from behind.

The Market’s surveillance cameras recorded video that Detective McCleery later retrieved during the investigation. Detective McCleery identified pictures of Mr. McKinley inside the Market with a sandwich and outside of the Market with the sandwich in his hand. Mr. Miller was also visible in this photo. Detective McCleery identified the last photo as depicting Mr. Miller.

Detective McCleery developed Qaid Ali and Zaid Wakil as eye-witnesses to the shootings. He also identified the still photos from the city crime cameras in the vicinity, the video footage from the cameras, and another photo showing Mr. 1 .^Miller standing outside of the Market. Finally, Detective McCleery identified a bullet that was recovered from Mr. McKinley.

Testimony of Dr. Cynthia Gardner

Cynthia Gardner, M.D., was qualified by joint stipulation as an expert in the fields of medicine and forensic pathology. She conducted the autopsy on the victims. Dr. Gardner identified her autopsy protocol of Mr. Miller, and testified that he had a total of two penetrating gunshot wound tracks. One of the gunshots grazed his left upper arm. The second was a penetrating gunshot wound that caused Mr. Miller’s fatal injuries. This wound was fatal, but not immediately fatal. Dr. Gardner opined that after being shot, Mr. Miller would have been able to walk several feet. She also stated that a single bullet could have caused the injuries. No projectiles were recovered from Mr. Miller until he had surgery. Based upon her findings, the shot was a distance range gunshot (more than two feet away) wound because Dr. Gardner did not observe any gunpowder soot or gunpowder stippling, as would be present in a gunshot fired from a closer range.

Dr. Gardner then identified her autopsy protocol of Mr. McKinley, and testified that he also had a total of two penetrating gunshot wound tracks. The first shot was a penetrating gunshot wound to the upper left back and injured Mr. McKinley’s left lung and ribs on the left side and returned to his diaphragm. The second was also a penetrating gunshot wound that caused the fatal injuries. Dr. Gardner recovered the projectiles from Mr. McKinley during the autopsy. Based upon her findings, the shots were also distance range gunshots. Dr. Gardner also identified the bullets recovered from Mr. McKinley. The path of entry of the wounds was consistent with someone who was either hunched over or face down.

| filTestimony of Qaid Ali

Qaid Ali was sitting in his parked and on the phone with his wife on the night of the shootings. He was parked at the mosque on “38 North Johnson” on the Barracks Street side. Mr. Ali recalled that the service was at 9 p.m., but that he was early, as it was about 8:30 p.m. Mr. Ali observed people walking back and forth, and then noticed a man suddenly run past the front of his car with a white t-shirt pulled over his head. The man appeared to be wearing dark clothing. The man ran up to two people on the other side of the street, and then grabbed one of the two people from behind and pulled that person to the ground. From Mr. Ali’s view, the man held a gun on the other person while holding the first person on the ground. Mr. Ali could not see a pistol because the man’s back was to him, but based on the man’s movements, he assumed that the man had a gun. Mr. Ali heard two faint shots, which to him, sounded like a cap gun. Immediately afterwards, the perpetrator ran past Mr. Ali’s car again. The two victims then got up and walked down from the side of the fence towards Bayou Road. Mr. Ali recalled that the perpetrator was dark skinned and had a small build. After the perpetrator fled on foot, Mr. Ali exited his vehicle and headed towards the mosque. Mr. Ali then noticed that someone exited the mosque to inspect their car (presumably for bullet holes). Mr. Ali asked the man if what he had heard were in fact gunshots. The man confirmed that the sounds were actual gunshots. It was at that point Mr. Ali heard someone yelling for help around Bayou Road. Mr. Ali figured that it was the two victims.

| testimony of Zaid Wakil

Zaid Wakil was parked on Barracks Street around 8:30 p.m., waiting for the mosque to open on the night of the shooting. Mr. Wakil recalled seeing a white male walk past his car, and about five minutes later, he saw another white male walk past his car. About five minutes later, Mr. Wakil saw both of the men walking together. However, a man with a t-shirt pulled over his head ran towards the two men and pulled a gun on them. The two men turned around and appeared nervous. Mr. Wakil heard the perpetrator say something like “give it here,” or “give it up.” He heard one of the two victims tell the perpetrator to “calm down” or “be cool,” but the perpetrator continued to point the gun at the victims and robbed them. Mr. Wakil could not see what was taken, but he could see the gun, a black revolver. Mr. Wakil identified the perpetrator as Mr. Quinn in court. Mr. Wakil heard Mr. Quinn fire the gun three times and then Mr. Quinn ran off. The victims checked each other and then staggered down the street. Mr. Wakil did not realize that they were injured, as he assumed that Mr. Quinn only fired shots to scare them.

Mr. Wakil then went into the mosque where he encountered Mr. Ali. He spoke with Mr. Ali about the incident. Both men heard the sirens and saw the lights of emergency vehicles at the end of the street. Mr. Wakil witnessed the aid being rendered to the victims. While the NOPD was investigating the scene, Mr. Wakil indicated that an NOPD officer instructed him to leave the area while the crime scene was being cordoned off. Mr. Wakil observed a second NOPD officer with a flashlight looking for bullet casings. Mr. Wakil told the police officer that he was not going to find bullet casings because the perpetrator used a revolver.

Mr. Wakil then reentered the mosque and prayed. However, when finished | swith the prayer service, one of the NOPD officers was waiting for him. The NOPD officer inquired whether he witnessed the shooting, and Mr. Wakil responded affirmatively. The NOPD officer asked Mr. Wakil if he wanted to speak to the detective. At that time, a bystander to Mr. Wakü’s conversation with the NOPD officer warned him about talking to the police. The bystander warned Mr. Wakil that the perpetrator could come back with a change of clothes and stand in the crowd to observe who was talking to the police. Mr. Wakil then said that he would not talk to the detective at the scene. Instead, Mr. Wakil gave his number to the NOPD officer and requested that the detective phone him.

Mr. Wakil stated that he met with Detective Orlando Matthews at a later date. He was presented with a photographic lineup, selected the photograph of Mr. Quinn as being the perpetrator, and signed the back of the identification.

Testimony of Stanley Woods

The transcript of Stanley Woods’ statement was read in open court because he could not be located. On the night of the shootings, Mr. Woods was in his shotgun double on Barracks Street with his fiancée and his daughter seated in the living room; the front door was opened, but the screened door was closed. He and his family were sitting and talking when he heard two or three gunshots. Mr. Woods paused for a minute then went outside. He observed a couple of white males kneeling by a trailer. Mr. Woods stated that the two men appeared to be trying to get up, and then one of the men shouted that he was shot. Mr. Woods offered to call someone for help. The two men were trying to walk towards North Prieur Street to Esplanade Avenue. Mr. Woods observed that the two men | appeared to be sitting or kneeling on the corner. Mr. Woods did not see the perpetrator or the shooting. Mr. Woods saw Mr. Wakil at the scene talking on a cell phone. Eventually, Mr. Woods and Mr. Wakil spoke and asked one another about what transpired.

Testimony of Detective Orlando Matthews

Detective Matthews interviewed Mr. Wakil. He recalled that Mr. Wakil was able to identify the perpetrator as a black male because he saw the perpetrator’s arms. Mr. Wakil thought that the perpetrator was young because of the way he moved. Mr. Wakil did not offer specific descriptions about the perpetrator’s facial features at that time. The first time Mr. Wakil identified the perpetrator was when Detective MeCleery presented him with the photographic lineup.

ERRORS PATENT

A review of the record for errors patent reveals none.

SUFFICIENCY OF THE EVIDENCE

Mr. Quinn asserts that the evidence was insufficient to support a verdict of guilty beyond a reasonable doubt for two counts of second degree murder because the State failed to prove every element necessary to constitute second degree murder. Mr. Quinn contends that the evidence of his identity in this case was circumstantial because the facts allege that he was in the neighborhood around the same time of the shootings, and only one witness identified him from a photographic lineup.

Generally, when assessing the sufficiency of evidence to support a conviction, the reviewing court must determine whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). This review must include the whole record, as a rational fact finder does. State v. Mussall, 523 So.2d 1305, 1310 (La.1988). “If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted.” Id. “It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence.” State v. Johnson, 619 So.2d 1102, 1109 (La.App. 4th Cir. 1993). “Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder.” State v. Robinson, 10-0885, p. 7 (La.App. 4 Cir. 12/21/10), 54 So.3d 1208, 1213. “Conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency.” State v. Jones, 537 So.2d 1244, 1249 (La.App. 4th Cir.1989). “Like all questions of fact, this determination is entitled to great weight and will not be disturbed unless clearly contrary to the evidence.” Id. “Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion.” State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369.

When misidentification of evidence is alleged as the basis of a sufficiency claim, this Court also reviews the reliability of an identification in accordance with the factors set out Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). State v. Stewart, 04-2219, p. 6 (La.App. 4 Cir. 6/29/05), 909 So.2d 636, 639. The Manson test includes the examination of five factors, which are: “(1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the assailant; (4) the level of certainty demonstrated by the witness; |nand (5) the length of time between the crime and the confrontation.” Id.

The State was required to show that Mr. Quinn was engaged in the perpetration of an armed robbery when the victims were killed. Armed robbery is a general intent crime, and “[i]n general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal.” State v. Pleasant, 11-1675, p. 19 (La.App. 4 Cir. 10/17/12), 102 So.3d 247, 257, quoting State v. Arnold, 07-0362, p. 7 (La.App. 1 Cir. 9/19/07), 970 So.2d 1067, 1071-72.

The Manson factors establish that Mr. Wakil’s identification of Mr. Quinn was reliable. First, Mr. Wakil’s testimony indicates that he had an opportunity to view Mr. Quinn at the time of the crime. Second, Mr. Wakil was able to describe the events immediately prior to the shooting, including the direction the victims walked to and from the Market. Third, Mr. Wakil saw Mr. Quinn run toward the victims while wearing a shirt over his head, and could clearly see the portions of Mr. Quinn’s face that were exposed. Fourth, Mr. Wakil witnessed the whole robbery and shooting. Fifth, Mr. Wakil observed Mr. Quinn flee on foot in the same direction as he came after the shootings. Thus, by the time Mr. Wakil identified Mr. Quinn in court, he testified that he witnessed Mr. Quinn commit the aforementioned criminal acts, and he had positively identified Mr. Quinn in a photographic lineup a few days after the shooting. Therefore, we find that when viewing all the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that Mr. Quinn committed the murders. Therefore, Mr. Quinn’s assertion lacks merit.

LA. C.E. ART. 607(D)(1) & LA. C.E. ART. 609.1

Mr. Quinn asserts that the trial court erred by allegedly denying a full and | unfair opportunity to cross-examine the prosecution witness, Mr. Wakil, regarding pending criminal charges against Mr. Wakil. The State concedes this point, but asserts that the error was harmless in view of the considerable other evidence against Mr. Quinn.

La. C.E. art. 607(D)(1) provides that a party may attack the credibility of a witness by introducing “[e]xtrinsic evidence to show a witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.” The plain language of La. C.E. art. 609.1 sets forth the general rule that in a criminal case “only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, indictment or a prosecution, or an acquittal.” However, as noted in Authors’ Note 2, La. C.E. art. 609.1, Pugh, Force, Rault & Triche, Handbook on Louisiana Evidence Law (2007), “[denying an accused the right to cross-examine a state’s witness as to a pending criminal charge in order to show possible bias may deny him not only his right of cross-examination, but also his constitutional right of confrontation.”

The Sixth Amendment guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” U.S. Const, amend. VI. “The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 808, 315-16, 94 S.Ct. 1105, 1110 39 L.Ed.2d 347 (1974), quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940). In addition, La. Const. Art. I, § 16 states, in pertinent part, that “[a]n accused is entitled to confront and cross-examine the 11F,witnesses against him.”

Under La. C.E. art. 608(A), reputation evidence to attack or support a witness’s credibility is limited to references to the witness’s character for truthfulness or untruthfulness. However, as noted in La. C.E. art. 608(B), “[pjarticular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness, other than conviction of crime as provided in Articles 609 and 609.1 or as constitutionally required.”

Although only convictions can be used to impeach credibility as a general rule, many cases have held that possible or ongoing prosecutions that have not resulted in a conviction can be used to show bias or interest under La. C.E. art. 607(D)(1). As stated in State v. Vale, 95-1230, 95-0577, p. 4 (La.1/26/96), 666 So.2d 1070, 1072:

This court granted certiorari because the trial court’s ruling, affirmed by the court of appeal, conflicted with numerous decisions by this court that to the extent exposure of a witness’s motivation is a proper and important function of the constitutionally protected right of cross-examination, a witness’s “hope or knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest.” State v. Brady, 381 So.2d 819, 822 (La.1980) (collecting cases); see also State v. Nash, 475 So.2d 752, 755-56 (La.1985).

Thus, alleged criminal conduct which has not resulted in a conviction may be elicited from a witness at trial to show bias or interest.

It is well-settled that “ ‘[a] witness’s bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the state regarding his conduct.’ ” State v. Burbank, 02-1407, p. 2 (La.4/23/04), 872 So.2d 1049, 1050, quoting Vale, 95-1230, 95-0577, p. 4, 114666 So.2d at 1072. “[A] witness’s ‘hope or knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest.’ ” Vale, 95-1230, 95-0577, p. 4, 666 So.2d at 1072, quoting State v. Brady, 381 So.2d 819, 822 (La.1980). “The possibility that the prosecution may have leverage over a witness due to that witnesses] pending criminal charges is recognized as a valid area of cross-examination.” Burbank, 02-1407, p. 2, 872 So.2d at 1050, quoting State v. Rankin, 465 So.2d 679, 681 (La.1985).

In Burbank, the Louisiana Supreme Court reversed a decision by this Court that found no error in the trial court’s refusal to permit defense counsel to question a prosecution witness concerning the existence and terms of a plea agreement under negotiation in her pending criminal case. Burbank, 02-1407, p. 3, 872 So.2d at 1051. The Louisiana Supreme Court remanded the case to this Court for consideration of whether the trial court error was harmless. Id. On remand, this Court found the error was harmless beyond a reasonable doubt and explained the proper inquiry for a harmless error inquiry as follows:

Sixth Amendment confrontation errors are subject to harmless error analysis. The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination was fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). Factors to be considered by the reviewing court include ‘“the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438; State v. Wille, 559 So.2d 1321, 1332 (La.1990).

State v. Burbank, 01-0831, pp. 3-4 (La.App. 4 Cir. 12/29/04), 893 So.2d 109, 112.

At trial, but before Mr. Wakil testified, the parties met in chambers to discuss Mr. Wakü’s prior convictions. The State acknowledged that Mr. Wakil had a prior 2007 conviction for a misdemeanor obstruction of justice from Virginia, but the trial court determined that the Virginia conviction was not relevant. Mr. Quinn’s counsel disagreed and contended that the obstruction of justice conviction was relevant because it reflected the nature of Mr. Wakil’s credibility. However, the trial court would not allow Mr. Quinn’s counsel to question Mr. Wakil about the obstruction of justice conviction. Mr. Quinn’s counsel objected.

The trial court also found Mr. Wakil’s failure to return a rental vehicle in 2009, which resulted in a conviction, irrelevant. In addition, the trial court omitted other convictions, over Mr. Quinn’s counsel’s objections, which included: felony burglary, theft, and stolen property convictions from Pennsylvania in 1990; receiving stolen property and burglary from Pennsylvania in 1991; a criminal conspiracy felony conviction from Pennsylvania in 1991; a criminal trespass felony from 1991; misdemean- or unauthorized use of a moveable and theft from 1991; and a drug violation from 1995.

The State conceded that Mr. Wakil was recently arrested for violating drug laws in Arizona and acknowledged that Mr. Wakil could possibly face federal charges. The trial court omitted this charge from questioning, over Mr. Quinn’s counsel’s objection. The trial court reconsidered omitting the charge after Mr. Quinn’s counsel asserted that the threat of Mr. Wakü’s prosecution was relevant. The trial court concluded that Mr. Quinn’s counsel could question Mr. Wakil about [1fiany felony convictions, but not about misdemeanor convictions.

Nevertheless, Mr. Quinn contends that the trial court’s limitation of the defense’s cross-examination of Mr. Wakil infringed upon Mr. Quinn’s Sixth Amendment right to confrontation.

The State avers that the limitation on Mr. Quinn’s counsel’s ability to cross-examine Mr. Wakil regarding certain convictions, particularly: (1) the burglary in 1990 from Pennsylvania; (2) the criminal conspiracy in 1991 from Pennsylvania; (3) the burglary in 1991 from Pennsylvania; (4)a drug violation from 1995 in Pennsylvania; and (5) the failure to return a rental vehicle in 2009 from North Carolina, did not adversely affect his Sixth Amendment right to confront the witness. The State further asserts that Mr. Quinn’s counsel was never prevented from asking questions regarding Mr. Wakil’s aforementioned felony convictions. The State maintains that while Mr. Quinn wanted to question Mr. Wakil about all his prior convictions, the right to question Mr. Wakil about prior convictions is not a constitutional right guaranteed by the Confrontation Clause. However, if there was an error, the State contends that such error was harmless.

In the case sub judice, the crucial testimony as to the convictions of Mr. Quinn was Mr. Wakil’s identification of Mr. Quinn, who was armed with a handgun, and who perpetrated the armed robbery of Mr. Miller and Mr. McKinley, which resulted in their deaths. The State presented the testimony of Mr. Wakil, who made both in-court and out-of-court identifications of Mr. Quinn as the shooter.

La. C.E. art. 609.1(A) provides that “[i]n a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations....” Particularly, La. C.E. art. 609.1(B) sets forth the | ^limitations of the cross-examination of witnesses and specifies that “only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.” However, La. C.E. art. 609.1 does not delineate between felonies and misdemeanors. La. C.E. art. 609.1 states that prior convictions are within the ambit of questioning. Thus, for the trial court to limit the cross-examination of Mr. Wakil’s other prior felony convictions constituted error. Therefore, we must determine whether the trial court’s error was harmless.

An error is harmless beyond a reasonable doubt if the verdict “was surely unattributable to such error.” State v. Robertson, 06-1537, p. 9 (La.1/16/08), 988 So.2d 166, 172, quoting State v. Johnson, 94-1379, p. 18 (La.11/27/95), 664 So.2d 94, 102. Considering all of the facts and evidence presented during the trial, we find that the guilty verdicts were unattributable to the trial court’s error of limiting Mr. Quinn’s counsel’s cross-examination of Mr. Wakil regarding whether he had a pending or prior misdemeanor convictions or charges in another jurisdiction. Mr. Quinn’s counsel was able to cross-examine Mr. Wakil on numerous convictions, which Mr. Wakil did not dispute. Therefore, the jury knew Mr. Wakil possessed multiple convictions while he was testifying. Mr. Wakil’s testimony as an eye-witness was crucial to the State’s case, and his testimony was also corroborated by Detective MeCleery. Therefore, we find that Mr. Quinn’s assertions lack merit because the trial court’s error was harmless.

MOTION TO SUPPRESS IDENTIFICATION

Mr. Quinn contends that the trial court erred in denying his Motion to Suppress the Identification.

11sThe law pertaining to the suppression of out-of-court identifications is well-settled:

La. Code of Criminal Procedure art. 703(D) provides that the defendant has the burden of proof on a motion to suppress an out of court statement. To suppress an identification, a defendant must first prove that the identification procedure was suggestive. State v. Prudholm, 446 So.2d 729, 738 (La.1984). An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980). Moreover, a defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that a likelihood of misidentification existed as a result of the identification procedure. State v. Valentine, 570 So.2d 533 (La.App. 4 Cir. 1990).
The Supreme Court has held that even if the identification could be considered suggestive, it is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. State v. Thibodeaux, 98-1673 (La.9/8/99); 750 So.2d 916, 932. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Even a suggestive, out-of-court identification will be admissible if it is found reliable under the totality of circumstances. State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517. If a suggestive identification procedure has been proved, a reviewing court must look to several factors to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of mis-identification at trial. State v. Martin, 595 So.2d 592, 595 (La.1992). The U.S. Supreme Court has set forth a five-factor test to determine whether a suggestive identification is reliable: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite, Id. The corrupting effect of the suggestive identification itself must be weighed against these factors. Martin, 595 So.2d at 595.
In evaluating the defendant’s argument, the reviewing court may consider all pertinent evidence l13adduced at the trial, as well as at the hearing on the motion to suppress the identification. State v. Lewis, 2004-0227 (La.App. 4 Cir. 9/29/04); 885 So.2d 641, 652. A trial court’s determination on the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Offray, 2000-0959 (La.App. 4 Cir. 9/26/01); 797 So.2d 764.

State v. Holmes, 05-1248, pp. 6-7 (La.App. 4 Cir. 5/10/06), 931 So.2d 1157, 1161. A defendant must establish that an identification procedure was suggestive before the court looks to the Manson factors to determine whether to suppress an identification. State v. Lee, 02-2073, p. 4 (La.App. 4 Cir. 1/15/03), 840 So.2d 1, 3, quoting State v. Thibodeaux, 98-1673, p. 20 (La.9/8/99), 750 So.2d 916, 932.

Mr. Quinn argues that Mr. Wakil provided an initial description that the perpetrator was as a black male between 5'10" and 5'11" weighing between 170 and 175 pounds. However, Mr. Quinn argues that Mr. Wakil was unable to specify the individual’s build, describing him as “not heavy, maybe thin, medium build.” Thus, Mr. Wakil, according to Mr. Quinn, was unable to provide a description of the perpetrator’s face and only determined the shooter’s race from a glimpse of the shooter’s arm. Mr. Wakil also assumed and testified that the perpetrator was young based on the shooter’s movements. The other witness at the scene, Mr. Ali, was also shown a photographic lineup, but he failed to make a positive identification of Mr. Quinn.

Since the record does not contain the photographic lineup, the Manson factors must be utilized to determine the identification procedure was suggestive. As mentioned previously, the Manson factors are: “(1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) thej^level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation.” State v. Nelson, 08-0584, p. 6 (La.App. 4 Cir. 12/17/08), 3 So.3d 57, 61, citing Manson, 432 U.S. 98, 97 S.Ct. at 2253.

Detective McCleery testified during the hearing on the motion to suppress the identification that Mr. Wakil recognized the complexion and facial features, specifically the eyes and nose, of Mr. Quinn when making the identification of the perpetrator. The testimony of Detective McCleery corroborates the testimony of Mr. Wakil wherein Mr. Wakil stated that he was able to identify Mr. Quinn because the perpetrator’s cheekbones, nose, eyes and eyebrows were visible through the neck hole of the shirt that the perpetrator wore on his head. Defense witness, Detective Matthews, testified that when Mr. Wakil made his identification of Mr. Quinn as the perpetrator, Mr. Wakil was able to identify facial features. Furthermore, the location where the victims were shot, as testified to by Mr. Wakil, is corroborated by the video surveillance from camera located on the property of the fencing company, which was presented at trial. Thus, even if the photographic lineup was suggestive, a review of the Manson factors confirms that Mr. Wakil’s identification was reliable. Thus, the trial court did not err in denying the motion to suppress the identification.

MOTION FOR A NEW TRIAL

Mr. Quinn asserts that the trial court erred when it failed to grant the Motion for New Trial based on allegedly newly discovered alibi evidence.

La.C.Cr.P. art. 851 provides, in pertinent part:

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 121 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:
(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;

Thus,

[a] defendant seeking a new trial based on newly discovered evidence must establish four elements: (1) that the new evidence was discovered after trial; (2) that failure to discover the evidence before trial was not attributable to his lack of diligence; (3) that the evidence is material to the issues at trial; and (4) that the evidence is of such a nature that it would probably produce a different verdict in the event of retrial.

State v. Brisban, 00-3437, p. 12 (La.2/26/02), 809 So.2d 923, 931. “ ‘A trial court assessing the legal merits of such a motion is given considerable latitude in evaluating the reliability of the evidence and its impact on the verdict.’ ” State v. Brooks, 98-0693, p. 12 (La.App. 4 Cir. 7/21/99), 758 So.2d 814, 820, quoting State v. Payn, 92-0975, p. 4 (La.App. 4 Cir. 7/26/95), 659 So.2d 527, 529. “The trial court has much discretion in ruling on a motion for new trial.” State v. Cureaux, 98-0097, p. 4 (La.App. 4 Cir. 5/26/99), 736 So.2d 318, 321. Review of the trial court’s ruling “is limited to determining whether the trial court abused its discretion.” State v. Labran, 97-2614, p. 6 (La.App. 4 Cir. 5/26/99), 737 So.2d 903, 907.

In the Motion for New Trial, Mr. Quinn alleged that a private investigator (“PI”) hired by his family post-verdict discovered two witnesses, Vincent E. James, II, and Dominque Cosey, who were allegedly with Mr. Quinn at the time of |22the shooting and could provide an alibi. Mr. Quinn avers that Mr. James provided information to the PI about the identification process in this matter, which Mr. Quinn contends is significant to his defense. The other alleged alibi witness, Ms. Cosey, stated that she was with Mr. Quinn at the time of the shootings. Mr. Quinn maintains that the testimony of these two witnesses should result in a new trial or a remand.

The State asserts that the testimony of Mr. James and Ms. Cosey would not constitute new evidence under current legal standards. The State avers that Mr. Quinn made no showing that the alleged newly discovered evidence was not discoverable before or during trial.

The testimony of Mr. James and Ms. Cosey is not newly discovered evidence. In the matter sub judice, Mr. James provided information regarding the alleged investigative methods of the NOPD and alleged that he was with Mr. Quinn at the time of the shootings. Ms. Cosey also alleged that she was with Mr. Quinn. Both witnesses contend that they were sitting with Mr. Quinn on a stoop and heard the gunshots in the vicinity. However, given that Mr. James’ name appears in the police report per the post-trial motions hearing, the information or existence of Mr. James is not new evidence. Additionally, if Ms. Cosey was with Mr. Quinn the night of the shooting, then Mr. Quinn knew Ms. Cosey was a potential alibi witness prior to trial. Hence, the alibi evidence is not new and does not meet the requirements for the granting of new trial.

NON-UNANIMOUS VERDICT

Mr. Quinn asserts that the non-unanimous provisions for a jury verdict in a mandatory life imprisonment without parole case are unconstitutional under the Sixth Amendment to the United States Constitution. Furthermore,

lasMhough there is no single procedure for challenging the constitutionality of a statute, our jurisprudence has established that a statute “must first be questioned in the trial court ..., and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.” Vallo v. Gayle Oil Co., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65 (footnote omitted). These rules have been established so that interested parties are afforded sufficient time to prepare briefs defending the constitutionality of a challenged statute, so that trial courts are provided with complete and thoughtful arguments regarding the issue of constitutionality, and so that reviewing courts have an adequate record upon which to determine the statute’s constitutionality. Istre v. Meche, 00-1316, p. 4 (La.10/17/00), 770 So.2d 776, 779. Raising the constitutionality issue within a motion has been deemed by this court to satisfy these goals. See Vallo, 94-1238, p. 8, 646 So.2d at 865.

State v. Granger, 07-2285, n. 5 (La.5/21/08), 982 So.2d 779, 784. There is no record of Mr. Quinn having filed a pretrial constitutional challenge to La.C.Cr.P. art. 782. Therefore, we pretermit this issue on appeal because Mr. Quinn is prohibited from raising the issue on appeal.

EXCESSIVE SENTENCE

Mr. Quinn contends that the mandatory life imprisonment without parole sentence is unconstitutionally excessive under the Eight Amendment to the United States Constitution. The trial court noted an objection to the sentence immediately after imposing the sentence and noted an objection to the alleged excessive nature of the sentence. Mr. Quinn preserved the issue for appellate review by stating his intention to file a motion for reconsideration of sentence at that time.

La. Const, art. I, § 20 explicitly prohibits excessive sentences. State v. Baxley, 94-2982, p. 4, (La.5/22/95), 656 So.2d 973, 977. “ ‘A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain l^and suffering and is grossly out of proportion to the severity of the crime.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993), quoting State v. Scott, 593 So.2d 704, 711 (La.App. 4th Cir. 1991). “[C]ourts have the power to declare a sentence excessive under Article I, Section 20 of the Louisiana Constitution, although it falls within the statutory limits provided by the Legislature.” State v. Johnson, 97-1906, p. 6 (La.3/4/98), 709 So.2d 672, 676. “ ‘When a trial judge determines a sentence from a carefully tailored penalty statute,’ ” such as the statute applicable in the instant case, La. R.S. 14:64, “ ‘there is a strong presumption that the sentence is within constitutional parameters.’ ” State v. Bunley, 00-0405, p. 24 (La.App. 4 Cir. 12/12/01), 805 So.2d 292, 308, quoting State v. Guy, 95-0899, p. 14 (La.App. 4 Cir. 1/31/96), 669 So.2d 517, 526.

“ ‘Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.Code Crim. Proc. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case.’ ” State v. Robinson, 98-1606, p. 12 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 127, quoting State v. Anderson, 97-2587, p. 10 (La.App. 4 Cir. 11/18/98), 728 So.2d 14, 20. If there is “adequate compliance with the Article 894.1,” “the reviewing court must determine whether the sentence is [sic] imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Ross, 98-0283, p. 8 (La.App. 4 Cir. 9/8/99), 743 So.2d 757, 762.

Mr. Quinn was charged with two counts of second degree murder, violations of La. R.S. 14:30.1(B), which provides that “[w]hoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without [^benefit of parole, probation, or suspension of sentence.” The trial court sentenced Mr. Quinn to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

This Court has affirmed life imprisonment without benefits for second degree murder. See State v. Robinson, 01-1305, pp. 16-17 (La.App. 4 Cir. 4/17/02), 820 So.2d 571, 582; State v. Jenkins, 98-2772, p. 6 (La.App. 4 Cir. 8/15/00), 759 So.2d 861, 865.

Mr. Quinn avers that he was convicted on “weak circumstantial evidence.” He further contends that the evidence introduced at trial indicated that he was at the Market with other individuals around the time the shootings occurred. Mr. Quinn maintains that the identity of the perpetrator is not discernible from the security video. Hence, Mr. Quinn challenges the accuracy of the identification provided by the witnesses. Mr. Quinn also avers that he had no prior felony convictions, and as such, “the sentence is disproportionate and serves no meaningful sentencing goals.” He concludes that since the imposed sentence eliminates any possibility of rehabilitation, the sentences should be declared unconstitutionally excessive.

Mr. Quinn’s life sentence for second degree murder is mandatory pursuant to La. R.S 14:30.1(B). This Court has reiterated the Supreme Court’s requirements for a defendant to overcome the mandatory sentencing requirements for a successful challenge to an excessiveness claim as follows:

There is only one way that a defendant can rebut the presumption that a mandatory minimum sentence imposed by the legislature is constitutional. The defendant must show that “because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, |?Bthe gravity of the offense, and the circumstances of the case.” State v. Lindsey, 99-3256, 99-3302, p. 5 (La.10/17/00), 770 So.2d 339, 343.

State v. Albert, 04-2098, p. 7 (La.App. 4 Cir. 7/27/05), 914 So.2d 574, 578, quoting State v. Allen, 03-2156, p. 14 (La.App. 4 Cir. 5/19/04), 876 So.2d 122, 131. In the case sub judice, there are no anomalies, or exceptional circumstances presented in Mr. Quinn’s conviction and sentencing warranting any reduction of the imposed life sentence. He is not a juvenile, nor has he been charged with the rape of a minor, nor is he incompetent. Mr. Quinn was convicted of two counts of second degree murder. The evidence presented at trial was sufficient to convict Mr. Quinn, the eyewitness’ identification was reliable and corroborated, and his alleged newly discovered alibi evidence was proven to be discoverable prior to trial. At the sentencing, the trial court stated that it was required by law to impose a mandatory life sentence without benefit of probation, parole, or suspension of sentence. Furthermore, Mr. Quinn presented no evidence or testimony at the sentencing to demonstrate that his sentences should deviate from the legislatively mandated sentence of life imprisonment, other than the fact that he had no prior felonies.

Accordingly, we find that the trial court properly applied the statutory provisions contained in La.C.Cr.P. art. 894.1, and did not abuse its discretion in imposing the statutorily mandated life sentence.

DECREE

For the above-mentioned reasons, we affirm the conviction and sentence of Mr. Quinn. We find that sufficient evidence existed such that a trier of fact could have found the defendant guilty beyond a reasonable doubt. We find that the trial court’s limitation of the cross-examination of the State’s witness’ criminal history | ^constitutes harmless error. Further, we find that the trial court did not abuse its discretion in denying the defendant’s motion to suppress the identification because adequate evidence exists in the record to comply with the required jurisprudential factors. The trial court also did not err in denying defendant’s motion for new trial because the alleged newly discoverable evidence was discoverable prior to trial. Additionally, the non-unanimous verdicts are not unconstitutional. Lastly, we find that the defendant’s sentences are not excessive, as they fall within the mandatory sentencing guidelines. Therefore, we affirm.

AFFIRMED.

      . A stipulation was offered by the State and accepted by the defense that Officer Leary would be qualified as an expert in the field of firearms examination. The stipulation further provided that if Officer Leary were called to testify, he would state that he examined the bullets recovered from the victims and determined that they were all fired from the same weapon.

      . The address of the mosque is 1238 North Johnson Street. This is a typographical error by the stenographer in the transcript.

      . During his cross-examination Mr. Wakil’s credibility was attacked. He was confronted with several prior convictions dating back to 1990, including his failure to return a rental vehicle, burglary, drug violations, receiving stolen property, and criminal conspiracy. Mr. Wakil did not dispute his past convictions.

      . La. C.E. art. 609.1(B) provides, “Generally, only offenses for which the witness has been convicted are admissible upon the issue of credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, a prosecution, or an acquittal.”

      . State v. Burbank, 01-0831 (La.App. 4 Cir. 2/27/02), 811 So.2d 1112.