author: KEATY, Judge.

text:
    STATE of Louisiana v. Jody D. HAMILTON.
    No. 12-204.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 2013.

      Van Hardin Kyzar, District Attorney, Charles W. Seaman, Assistant District Attorney, Natchitoches, Louisiana, for Appel-lee, State of Louisiana.

      Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Jody D. Hamilton.
    Jody D. Hamilton, Angola, Louisiana, pro se.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

Defendant appeals his convictions and sentences for second degree murder and attempted second degree murder. For the following reasons, we affirm.

PROCEDURAL BACKGROUND

11Defendant, Jody D. Hamilton, entered into a plan with Demarcus Law and Edward Paige to steal drugs from someone else. On December 12, 2009, Defendant and Law went to the residence where the drugs were located, and Law kicked in the door. Defendant then shot Dakaria Williams, who was in the living room, in the leg. Law proceeded to the kitchen where Paige and Shamichael Berryman were and began shooting. Defendant shot Williams several more times but never entered the residence. When leaving the residence, Law noticed Williams was still moving and shot him in the face. Berry-man was shot six times and died as a result of his injuries. Williams, who had been shot at least nine times, survived.

Defendant was charged in an indictment with one count of second degree murder, a violation of La.R.S. 14:30.1, and one count of attempted second degree murder, a violation of La.R.S. 14:30.1 and La.R.S. 14:27. Defendant entered a plea of not guilty, and this matter proceeded to trial by jury on September 19, 2011. The jury found Defendant guilty as charged, and he was sentenced as follows: life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence, for second degree murder and fifty years at hard labor for attempted second degree murder, with eighty percent of that sentence to be served without benefit of parole. The trial court ordered the sentences to run consecutively. A motion for appeal was filed on the same date Defendant was sentenced and was subsequently granted.

|2Pefendant appealed and asserted four assignments of error. He contended that: (1) the trial court erred in denying challenges for cause of potential jurors; (2) he was denied the right to full review on appeal because the record was incomplete; (3) the jury instructions incorrectly included the phrase “or to inflict great bodily harm” within the attempted second degree murder charge; and (4) the trial court erred in admitting two firearms into evidence because the weapons were not connected to him.

After reviewing Defendant’s appeal, this court addressed only his second assignment of error and found that Defendant was denied, based on an incomplete record, the right to full review of the jury selection process. Therefore, we vacated his convictions and sentences without addressing his remaining three assignments of error. In reaching our conclusion, we noted that while the record contained the transcript of voir dire, the transcript did not include in-chambers discussions regarding the exercise of cause and peremptory challenges. Additionally, minute entries failed to indicate which side excused prospective jurors and why. The record was also uncertain as to how many cause challenges Defendant made unsuccessfully. See State v. Hamilton, 12-204 (La.App. 3 Cir. 11/7/12), 103 So.3d 705.

The supreme court vacated this court’s ruling and remanded the matter for further consideration. The supreme court directed this court to supplement the record with the jury strike sheets, which the State requested in its application for rehearing filed in this court. The supreme court also directed this court to reconsider the Defendant’s assignments of error relating to the denial of his cause challenges by the trial court and the denial of his right to full review on appeal because of the incomplete record. See State v. Hamilton, 13-104 (La.6/28/13), 117 So.3d 95.

lain light of the supreme court’s ruling, we will reconsider Defendant’s four assignments of error asserted in his original appellate brief.

DISCUSSION

On appeal and as discussed above, Defendant asserts four assignments of error. We will address each assignment of error below.

I. Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on. the face of the record. After reviewing the record, there is one error patent.

At sentencing, the trial court stated in pertinent part: “On the charge of attempted second-degree murder, you are sentenced to 50 years at hard labor, 80% of which is to be served before you are eligible for parole.”

At the time of the commission of the crime, La.R.S. 14:30.1 provided a penalty of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Additionally, La. R.S. 14:27 provided that if the offense attempted was punishable by life imprisonment, as in this case, the penalty was ten to fifty years at hard labor without the benefit of probation, parole, or suspension of sentence. Consequently, the trial court imposed an illegally lenient sentence by stating that only eighty percent of the attempted second degree murder sentence would be served before parole eligibility. However, this court will not ordinarily consider an illegally lenient sentence unless it is raised error. We do not do so under the present circumstances.

II. Assignment of Error Number One

In his first assignment of error, Defendant contends the trial court erred in denying cause challenges of prospective jurors thereby depriving him of his constitutional right to a fair and impartial jury.

l/The United States Constitution’s Sixth Amendment guarantees the accused the right to a trial by an impartial jury. The Louisiana Constitution Article I, Section 17(A) provides that a defendant has a right to challenge jurors peremptorily, with the number being fixed by law at twelve. When a defendant uses all of his peremptory challenges, a trial judge’s erroneous ruling depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence. A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of. the entire voir dire reveals the trial judge abused its discretion. Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. An erroneous ruling depriving an accused of a peremptory challenge is a substantial violation of his constitutional and statutory rights and constitutes reversible error.
“A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.” However, a trial court does not abuse its discretion when it refuses to excuse a prospective juror on the ground he is not impartial where, after further inquiry or instruction, the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and evidence. Thus, to establish reversible error warranting reversal of a conviction and sentence, defendant must demonstrate “(1) erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges.” In the instant case, it is undisputed that defense counsel exhausted his peremptory challenges, and, therefore, need only show that the trial court abused its discretion by denying a challenge for cause.

State v. Odenbaugh, 10-268, pp. 28-25 (La.12/6/11), 82 So.3d 215, 236-37, cert. denied, — U.S. -, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012) (citations omitted).

According to La.Code Crim.P. art. 797, the State or Defendant may challenge a prospective juror for cause on the ground that:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such Ifithat it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4)The juror will not accept the law as given to him by the court.

In Odenbaugh, 82 So.3d at 238 (citations omitted), the supreme court further stated:

[WJhile cognizant of the broad discretion afforded a district court when ruling on cause challenges, this Court has cautioned that a prospective juror’s responses cannot be considered in isolation and that a challenge should be granted, “even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably [inferred].”

In the present case, the jury strike sheets indicate that Defendant used twelve of his peremptory challenges when selecting the jury and one peremptory challenge during the selection of alternate jurors. Accordingly, Defendant may properly challenge the denial of his cause challenges. In that regard, Defendant argues that the trial court incorrectly denied cause challenges to prospective jurors Stacy Isk-enderian, Linda Venable, and Theresa Garrett.

A. Iskenderian

During voir dire, Iskenderian was questioned by the State and said she knew the deceased victim, Berryman. She stated that she grew up with Berryman, they went to school together, and she saw him socially. She testified that their fathers were good friends and Berryman often visited her home with his father. She stated that she “[s]omewhat” saw him up until the time of his death, and she considered him a friend.

The jury panel on which Iskenderian sat was asked by the trial court if there was “any reason whatsoever why any of you could not give both the defendant and the State a fair trial, and decide this case based solely upon the evidence presented |fiand in accordance with the law.” There was no response from any of the prospective jurors.

Iskenderian was subsequently questioned by defense counsel and stated she still knew Berryman’s family. Iskenderian was further questioned as follows:

MR. METHVTN: If the prosecution didn’t prove their case beyond a reasonable doubt, would you have problems being around his family?
MS. ISKENDERIAN: No, no I wouldn’t.
MR. METHVIN: Okay, even though you have this long history with Mr. Ber-ryman, who’s deceased?
MS. ISKENDERIAN: Yes.

When asserting his objections to jury selection, defense counsel objected to the denial of a challenge for cause to “Ms. Shay (sic) ... on the grounds that she was bias, given her family relationship with the Berryman family.” The State argued that she rehabilitated herself as she had not seen Berryman in “a good while” and said she could be fair and impartial. The trial court recalled that she had not been in close contact with “them” for a while and said she could be fair and impartial, and it was “comfortable with that fact.” Defense counsel then noted for the record that he used a peremptory challenge to exclude her.

In State v. Sonnier, 379 So.2d 1336 (La. 1979), the defendant was found guilty of two counts of first degree murder and was sentenced to death. On appeal, the defendant argued that the trial court erred in failing to grant a challenge for cause as to prospective juror Flossie Berard on the basis of La.Code Crim.P. art. 797(3). During voir dire, it was determined that Ber-ard’s niece was married to the brother of one of the victims, Loretta Bourque. Ber-ard’s mother and father were |7friends with the family of the other victim, David LeBlanc, and she had known LeBlanc since he was a baby. At the time LeBlanc was killed, he was employed by another of Berard’s brothers. Additionally, at that time, Berard’s brother was serving as the sheriff of St. Martin Parish, the parish where the abductions occurred.

The supreme court in Sonnier, 379 So.2d at 1351 (citations omitted), was unable to conclude that the trial court abused its discretion in denying the challenge for cause and stated the following:

Our reading of the voir dire examination as a whole discloses that Mrs. Berard showed herself to be an educated, intelligent and reasonably articulate individual who was quite candid in admitting the connection she had with the victims. She also acknowledged that her brother was the Sheriff in neighboring St. Martin Parish. However, throughout the entire voir dire she was unequivocal in her statements that she had no prefor-mulated opinions of guilt, that she could decide the case solely upon the evidence presented in court and that she did not feel any pressure from anyone outside the courtroom which might influence her judgment.
The fact that a prospective juror knows the victim of an offense is not in itself sufficient grounds for a challenge for cause under Article 797. The defense must show that the juror’s acquaintance with the victim is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.

In State v. Brown, 496 So.2d 261 (La. 1986), a prospective juror indicated her son had gone to high school with the victim for three years, and the victim had visited her home on several occasions. The prospective juror also knew the victim’s parents and indicated it would be difficult to face them if she voted not guilty. She further indicated that this would influence her in the jury room, and it would be very hard for her to be impartial. The supreme court found that even though the prospective juror stated she could give the defendant a fair trial, it was unrealistic to conclude her relationship with the victim and the victim’s family would not affect her deliberations in reaching a verdict. Thus, the supreme court |Rheld that the trial court improperly denied the defendant’s request to excuse the prospective juror for cause.

In State v. Gibson, 505 So.2d 237 (La. App. 3 Cir.), writ denied, 508 So.2d 66 (La.1987), the prospective juror was a social acquaintance of the victim, had previously spoken to the victim, and was good friends with the victim’s family. When questioned during voir dire, the prospective juror stated that he would have no problem being on the jury, he could put the fact that he knew the victim and the victim’s family out of his mind, he could decide the case solely on the evidence he would hear, he could find the defendant not guilty if the State failed to prove its case beyond a reasonable doubt, and he could be fair and impartial. This court found that the trial court did not abuse its discretion when denying the defendant’s challenge for cause as to this prospective juror.

In State v. Hallal, 544 So.2d 1222 (La. App. 3 Cir.1989), rev’d on other grounds, 557 So.2d 1388 (La.1990), a prospective juror stated that she knew the victim as well as his family, and that relationship would make it difficult to serve on the jury. She also indicated that she possessed no preconceived opinion of guilt or innocence and unequivocally stated she could be fair and impartial. On appeal, the defendant asserted the prospective juror’s relationship with the victim was such that it was reasonable to conclude the relationship would influence the verdict. This court found that the prospective juror’s responses did not reveal facts from which partiality could reasonably be implied. This court stated that the prospective juror accepted various legal concepts and assured the trial court she could give the defendant a fair trial. Thus, this court found that the trial court did not abuse its discretion in denying the defendant’s challenge for cause.

After reviewing the foregoing law and jurisprudence in relation to the facts of this case, this case is distinguishable from Brown, 496 So.2d 261. In Brown, |sthe potential juror stated that it would be hard for her to be fair and impartial whereas in the present case, Iskenderian knew Berry-man but never declared that she would not be fair and impartial. Based on the supreme court’s ruling in Sonnier, 379 So.2d 1336, and this court’s rulings in Gibson, 505 So.2d 237, and Hallal, 544 So.2d 1222, we cannot say that Defendant showed that Iskenderian’s relationship with Berryman was such that it was reasonable to conclude that it would influence Iskenderian in arriving at a verdict. Accordingly, the trial court properly denied the challenge for cause.

B. Venable and Garrett

During voir dire of the panel on which Venable and Garrett were seated, the trial court stated that it would instruct them on the law applicable to this case. The trial court stated that they must apply the law as instructed to the facts of the case. The trial court further stated: “Could you find the defendant not guilty even if the defendant chose not to testify or to present any evidence, because the law says that it is his right.” The trial court asked if everyone understood the law and if anyone wanted to talk about it. There were no responses from the prospective jurors.

Defense counsel subsequently questioned Garrett as follows:

MR. METHVIN: Okay. Thank you. Ms. Garrett, number 14. If the State produces an eyewitness that places a defendant at the scene of the crime, do you believe that defendant has the obligation to put on evidence to show that he was not there?
MS. GARRETT: Yes.
MR. METHVIN: Okay. And why do you believe that?
MS. GARRETT: Because if it’s an eyewitness there that can put him at the scene, I figure it’s his defense to try to show them that he wasn’t there.
MR. METHVIN: Okay. So you believe that if somebody says that the defendant was there and he committed this crime, that if he doesn’t put on any evidence to counter that then you’d find him guilty?
| mMS. GARRETT: Yes, pretty much. But the person that’s saying he was there would have to be a reliable source, also.
MR. METHVIN: Okay. If you chose not to testify or he chose not to put on any witnesses at the close of the prosecution’s case, would you still [hold] that against him?
MS. GARRETT: If you don’t try to defend himself against it.
MR. METHVIN: Okay. And that’s ... even if the judge is to tell you that you can’t do that. That you can’t hold it against him that he ... if he doesn’t testify that you can’t hold that against him, and that if he doesn’t produce any witnesses, you can’t hold that against him, you would still hold it against him?
MS. GARRETT: No, not allowed to do it. No, I couldn’t do it.

Venable was then asked how she felt about that, and the following exchange occurred:

MS. VENABLE: Well, if it’s a reliable eyewitness, says they saw him, it would be hard not to believe that.
MR. METHVIN: Okay. The question goes more to, does the defendant have the responsibility to produce evidence to show that he’s innocent?
MS. VENABLE: Well, the judge had said that he does not have to testify on his own behalf. So I would have to respect that.

The subsequent exchange followed:

THE COURT: Some of you appeared to give some answers that were inconsistent with what I asked you earlier, and I want to clarify that so we can hear all that.... Mr. Methvin’s point that he was attempting to make is a legitimate one. He wants to be sure that if his client chooses not to testify or present any evidence that you won’t hold that against him. I did give you an instruction. I told you during the process of questioning, that that is the right of a defendant in America that he cannot be made to testify or present any evidence. And if he chooses not to do so, that’s his right. And you cannot hold it against him. And so, Ms. Garrett, I know that you and Mr. Methvin talked about that, how do you feel?
MS. GARRETT: Well, I get the understanding of it since the way you put it, but if he ... I would have to go mainly on what the prosecutor have [sic] to prove to me. I wouldn’t hold it against him that [sic] he don’t [sic] try to, you know, testify for himself or anything.

InWhen asserting his objections to jury selection, defense counsel objected to the denial of a challenge for cause to Venable. Defense counsel said Venable was a “burden shifter.” Counsel believed Venable was going to require Defendant to do something to “rebut, whether or not the prosecutor’s case was credible or not.” The State argued that although Venable said she would “expect him to rebut” if there was an eyewitness, she subsequently stated she would follow the law. The trial court stated it was comfortable that Vena-ble sufficiently rehabilitated herself and denied the challenge for cause. Defense counsel then noted he used a peremptory challenge to strike Venable.

Defense counsel also objected to the denial of a challenge for cause to Garrett. Defense counsel argued that Garrett specifically stated she would judge the State’s case based on whether “he” was credible but would still expect the defense or Defendant to rebut what an eyewitness said. The State asserted that Garrett said that she would follow the law. The trial court stated Garrett “came back” and specifically said that she would follow the law and that she was sufficiently rehabilitated. Defense counsel then noted he used a peremptory challenge to strike Garrett.

As discussed above in Odenbaugh, 82 So.3d at 237, the supreme court held that an abuse of discretion fails to occur when a trial court “refuses to excuse a prospective juror on the ground he is not impartial where, after further inquiry or instruction, the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and evidence.”

After our review, we find no abuse of discretion in the trial court’s acceptance of potential jurors who initially expressed doubts about Defendant’s choice to refuse to testify at trial and subsequently, on further inquiry, demonstrated a willingness to apply the law and presumption of innocence as | ^instructed. Accordingly, the trial court properly denied the challenges for cause as to Garrett and Vena-ble. This assignment of error lacks merit.

III. Assignment of Error Number Two

In his second assignment of error, Defendant contends that he was denied the right to full review on appeal as the record was incomplete.

Defendant asserts that during jury selection, the judge and attorneys discussed the challenges raised by both sides in chambers with no contemporaneous recording of the exercise of challenges or the arguments of counsel. Defendant argues that the off-the-record discussions with regard to the use of all challenges would add additional support to the arguments raised in his first assignment of error regarding cause challenges.

Defendant notes that the record in the case at bar was supplemented with the jury strike sheets and those sheets indicate which prospective jurors were successfully challenged for cause and those who were peremptorily struck. Defendant asserts that the sheets do not indicate which prospective jurors were unsuccessfully challenged for cause, who raised those unsuccessful cause challenges, which side sought the cause challenges that were granted, and the arguments of counsel or the basis for trial court’s rulings. Defendant contends that all of this information is important in evaluating the fairness in the jury selection process and in evaluating whether challenges for cause should have been granted.

In State v. Deruise, 98-541 (La.4/3/01), 802 So.2d 1224, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), the defendant argued the appellate record was insufficient to enable the court and appellate counsel to review the proceedings for error. The defendant complained that the court reporter did not identify prospective jurors by name as they responded to questions during voir dire and further failed to record bench conferences in which peremptory strikes and | ^challenges for cause were made by the prosecutor and defense counsel. The supreme court noted that, while the bench conferences had not been recorded, the defendant only pointed to one potential juror whom he believed should have been struck for cause. The defendant alleged the trial court erroneously denied a cause challenge as to prospective juror Kreider. It was not certain from the record whether a cause challenge had been made in regard to prospective juror Kreider, and the defendant was forced to use a peremptory challenge to excuse him. The supreme court, however, assumed such a challenge had been made and analyzed the issue raised by the defendant. The supreme court noted that voir dire revealed that Kreider most likely could have acted as an impartial and well-informed juror. As such, the supreme court held that the defendant’s argument was without merit.

In State v. Campbell, 06-286 (La.5/21/08), 983 So.2d 810, cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008), the defendant claimed that the transcript of numerous court appearances, hearings, and bench conferences were omitted from the appellate record. He also suggested that record omissions during voir dire rendered it difficult to establish the viability of cause challenges. Thus, he argued that the lack of a complete appellate record warranted reversal of his conviction.

The supreme court addressed the issue stating:

In [State v. ]Landry [, 97-499 (La.6/29/99), 751 So.2d 214], this Court reversed a conviction and death sentence because the appellate record was so deficient that the Court could not properly review the ease for error. Even though this Court has found reversible error when material portions of the trial record were unavailable or incomplete, a “slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal” does not require reversal of a conviction. An incomplete record may be adequate for appellate review. A defendant will not be entitled to relief on the basis of an incomplete record absent a showing that he was prejudiced by the missing portions of the record.
Defense counsel contends that the fact that the defendant represented himself at trial, coupled with the issues raised regarding the defendant’s competency, necessitate a complete and accurate 1^record since the defendant lacks the ability to provide important information to his appellate counsel. However, the defense offers no suggestion or argument that the defendant was prejudiced by the record omissions.
With regard to the transcription of the voir dire proceedings, we found no difficulty in determining the appropriateness of the cause challenges, which were the issues raised by the defendant on appeal.

Id. at 872-74 (citations omitted).

In State v. Williams, 06-1327 (La.App. 4 Cir. 1/23/08), 977 So.2d 160, writ denied, 08-413 (La.10/24/08), 992 So.2d 1033, the defendant argued that his right to full appellate review was impinged because the in-chambers portion of voir dire, where he raised challenges for cause, was not available. The fourth circuit noted that appellate counsel, who was not counsel at trial, raised no argument as to any specific juror who should not have been seated. The fourth circuit ruled as follows:

Here, unlike in [State v. ]Pinion[, 06-2346 (La.10/26/07), 968 So.2d 131,] but as in Demise, the record contains detailed jury sheets that indicate the peremptory strikes for each party as well as those jurors who were excused for cause. In addition, as in Demise, the transcript of voir dire includes the questioning of each prospective juror, from which it can be determined if there was a basis for any challenges for cause that the defense may have brought and may have been denied by the trial court, thereby causing the defense to exercise a peremptory challenge for a juror. A reading of the transcript of voir dire shows that there was no basis to excuse for cause any of the jurors who ultimately served on the jury or those whom the appellant had to excuse peremptorily. Thus, as in Demise, the appellant cannot show prejudice from the loss of the in-chambers portions of the voir dire where the defense may have challenged any of these jurors for cause because there was no basis for granting a challenge for cause as to any of the jurors who sat at trial or whom the defense peremptorily excused. Because the appellant cannot show prejudice from the lack of the transcript of these in-chambers conferences, he is not entitled to a new trial on this basis.

Id. at 176.

The record in the case at bar now contains the jury strike sheets which list the peremptory strikes exercised by each party and the cause challenges granted by | ,fithe trial court. Because we addressed Defendant’s claims asserted in his first assignment of error, Defendant cannot show he was prejudiced by the failure to record the in-chambers discussions regarding jury selection. See Deruise, 802 So.2d 1224 and Campbell, 983 So.2d 810. Because Defendant cannot show prejudice, he is not entitled to a new trial. For these reasons, Defendant’s assignment of error lacks merit.

IV. Assignment of Error Number Three

In his third assignment of error, Defendant contends the jury instructions incorrectly included the phrase “or to inflict great bodily harm” within the attempted second degree murder charge and violated the fundamental rights of due process as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States. Defendant alleges that counsel erred in failing to object to the insufficient charge.

When charging the jury, the trial court read the definition of second degree murder stating:

Second degree murder is the killing of a human being, one, when the offender has a specific intent to kill or inflict great bodily harm. Or, two, when the offender is engaged in the perpetration of armed robbery, even though he has no specific intent to kill or inflict great bodily harm. Thus in order to convict the defendant of second degree murder, you must find, one, that the defendant killed ShaMichael [sic] Berryman, and two, that the defendant acted with a specific intent to kill ShaMichael [sic] Berryman or inflict great bodily harm on him, or three, that the defendant was engaged is the perpetration or attempted perpetration of armed robbery. Even though he had no specific intent to kill or inflict great bodily harm.

When reading the definition of attempted second degree murder, the trial court stated: “The defendant is charged also with the attempted second degree murder of DeKaria (sic) Williams. I have already defined the crime of second degree murder for you. I will now define attempt for you.” The trial court then defined attempt.

116Pefendant contends the trial court failed to instruct the jury that it must find he had the specific intent to kill Williams to return a guilty verdict. Defendant notes that defense counsel did not object to the erroneous instruction. Defendant cites State v. Williamson, 389 So.2d 1328 (La.1980), for the proposition that an error that involves the very definition of the crime of which a defendant is convicted violates the fundamental requirements of due process. Defendant also cites State v. Smith, 46,343 (La.App. 2 Cir. 6/22/11), 71 So.3d 485, writ denied, 11-1646 (La.1/13/12), 77 So.3d 950, for the proposition that although La.Code Crim.P. art. 801 bars consideration of the issue if no objection was lodged, certain exceptions have been carved out. Defendant argues that because the jury charge as to the elements of attempted second degree murder incorrectly included the great bodily harm language, this assignment of error should be considered despite defense counsel’s failure to object, because the jury instructions were fundamentally flawed. Accordingly, Defendant contends a new trial is warranted.

The State asserts any error in failing to reread the proper definition of second degree murder was harmless, as Defendant confessed to shooting Williams several times, and this was indicative of his intent to kill. Further, no contemporaneous objection was lodged; thus, it would be improper to address the matter pursuant to La.Code Crim.P. art. 801.

In Williamson, 389 So.2d 1328, the trial court erroneously instructed the jury as to the evidence required to find the defendant guilty of attempted first degree murder and a responsive verdict of attempted second degree murder. Amendments to the first degree and second degree murder statutes had taken effect nineteen days prior to the offenses. The defendant failed to object to the erroneous instructions. The supreme court held “the asserted error involves the very definition of the crime of which defendant was in fact convicted” and, as such, violated the “fundamental | ^requirements of due process.” Id. at 1331. Accordingly, the supreme court reviewed the assignment of error, reversed the defendant’s convictions, and remanded the ease for a new trial.

In State v. Thomas, 427 So.2d 428 (La. 1982), the defendant appealed asserting the trial court erroneously instructed the jury on the basis of a superceded first degree murder statute. Defense counsel failed to object to the error at trial. The supreme court concluded the issue was not preserved for review and discussed Williamson as follows:

In State v. Williamson, 389 So.2d 1328 (La.1980), we allowed review of an erroneous jury instruction ■ despite the defendant’s failure to object at trial. We express no opinion on whether this court will again grant review under the unique facts of Williamson, but leave that as an open question. However, Williamson should not be construed as authorizing appellate review of every alleged constitutional violation and erroneous jury instruction urged first on appeal without timely objection at occurrence. This court has not created or recognized a plain error rule of general application.

Id. at 435.

In State v. Hongo, 96-2060 (La.12/02/97), 706 So.2d 419, the trial court erroneously instructed the jury that, to find the defendant guilty of attempted second degree murder, it had to find the defendant had the specific intent to kill or inflict great bodily harm. Defense counsel failed to object to the erroneous instruction. The supreme court concluded the erroneous instruction constituted a trial error and was, therefore, subject to a harmless error analysis. The supreme court discussed Williamson, 389 So.2d 1328, and Thomas, 427 So.2d 428, in footnote three as follows:

Although this case is before us via post conviction proceedings because of trial counsel’s failure to object, we note that because we find that the instant error is not structural, it necessarily is not of such significance as to violate fundamental requirements of due process, See State v. Williamson, 389 So.2d 1328 (La.1980), and thus a defendant must make a contemporaneous objection in order to preserve the error for direct review. State v. Thomas, 427 So.2d 428, 435 (La.1982) (on rehearing) (limiting Williamson as it “should not be construed as authorizing appellate review of every alleged constitutional violation and erroneous jury instruction urged first on appeal without timely objection”)

Hongo, 706 So.2d at 422. The supreme court also followed Hongo in State v. Bishop, 01-2548 (La.1/14/03), 835 So.2d 434.

We further note that Defendant’s co-defendant, Law, was convicted of second degree murder and attempted second degree murder arising from the events at issue in the case at bar. In State v. Law, 12-1024, p. 18 (La.App. 3 Cir. 4/3/13), 110 So.3d 1271, 1284, this court found that defense counsel’s failure to object to the jury instructions, which were the same as those at issue herein, rendered the Law’s assignment of error meritless.

In the instant case, defense counsel failed to object to the allegedly erroneous jury instructions and Defendant does not argue that defense counsel was ineffective for his failure to do so. Accordingly, this assignment of error was not preserved for review. La.Code Crim.P. art. 801(C); La. Code Crim.P. art. 841. Thus, Defendant’s assignment of error is without merit.

V. Assignment of Error Number Four

In his fourth assignment of error, Defendant contends the trial court erred in admitting two firearms into evidence at trial, as neither weapon was connected to him.

At trial, Detective Julius Armstrong testified that days after the offenses, he recovered a .9 millimeter Ruger pistol from 1539 Dorothy Street and a .380 caliber Bersa pistol from 839 Dorothy Street. He was not sure of the date the weapons were found. Defense counsel objected, asserting the State failed to lay a proper foundation for their admission because the witness had not stated when the weapons were recovered or what their connection to the crime was.

| isThe State subsequently attempted to introduce the .380 into evidence as State’s Exhibit 39, and defense counsel objected to the introduction of both State’s Exhibits 38, the .9 millimeter, and State’s Exhibit 39, arguing the weapons had not been linked to Defendant, and police could not state which weapon was found at the scene and which was turned over to police by a third party. The trial court overruled the objection, finding the issue went to the weight to be given the evidence and not to its admissibility. The .380 was then admitted into evidence.

Richard Beighley, an expert in firearms identification, testified that ten fired .9 millimeter casings found at the scene had been fired from the .9 millimeter Ruger marked as State’s Exhibit 38. He also testified that four fired .380 caliber casings found at the scene had been fired from the .380 caliber Bersa marked as State’s Exhibit 39. The State subsequently offered the .9 millimeter into evidence, and defense counsel asserted its admission was “subject to the same objections.” The objection was overruled, and the .9 millimeter and .380 were admitted into evidence.

Audra Williams, an expert in forensic DNA analysis, testified that no DNA was found on swabs taken from the .9 millimeter and .380.

La.Code Evid. art. 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue influence, or waste of time.

In State v. Chesson, 03-606, pp. 18-19 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 179-80, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686, this court stated the following regarding La.Code Evid. Art. 403:

| gpHowever, even the erroneous admission of irrelevant evidence does not require a reversal of a conviction if the error is harmless beyond a reasonable doubt. See State v. Wille, 559 So.2d 1321 (La.1990), cert. denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992), citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993), the United States Supreme Court explained that:
Harmless-error review looks ... to the basis on which “the jury actually rested its verdict.” Yates v. Evatt, 500 U.S. 391, 404, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991)(emphasis added). The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.

Defendant contends there was no evidence introduced to connect him to the firearms at issue, the property where one of the firearms was recovered, or the woman who turned in one of the firearms. Defendant alleges there was no DNA on the firearms. Defendant asserts the admission of the firearms was prejudicial because their admission impliedly connected him to the guns used in the shooting. Defendant contends the firearms were not relevant to a disputed issue of material fact as no one contested that Berryman and Williams were shot with either a .9 millimeter or a .380.

The State asserts the firearms were admissible as both suspects were seen running in the direction of Dorothy Street. Both firearms were found at an abandoned residence on Dorothy Street. Additionally, both firearms were identified as being the firearms used to commit the offenses. The State contends that Defendant and Law were identified as the people shooting at Williams and Berryman, and Defendant confessed to shooting Williams.

In Chesson, 856 So.2d 166, the defendant was convicted of second degree murder. On appeal, he argued the trial court erred by allowing irrelevant evidence to be introduced at trial. He specifically referred to a pair of men’s pants and a|2]gym bag, the testimony of his estranged wife, evidence of a threat by him against his wife’s brother, and the introduction of two knives and some clothes he asserted were not related to the crime. This court discussed the issue and held:

[E]ven if we were to conclude that the evidence complained of was erroneously admitted, which we do not, our review of the record indicates that any such error would be harmless. The State’s case included admissions the defendant made to police, and to fellow prisoner Thomas Stewart. Thus, we conclude that even if the individual items of evidence at issue lacked relevance, or were only marginally relevant, the defendant has failed to demonstrate that they improperly prejudiced his case.

Id. at 180.

In the present case, Defendant was charged with the second degree murder of Berryman and the attempted second degree murder of Williams. Testimony at trial indicated Defendant entered into a plan with Law and Paige to steal drugs. During the execution of that plan, Defendant shot Williams several times and Law shot Berryman six times and Williams at least once.

The State may prove a defendant guilty by showing he served as a principal to the crime by aiding another. “Persons who aid and abet in the commission of a crime are guilty as principals although they do not directly commit the act constituting the offense.” State v. Sampson, 472 So.2d 337, 339 (La.App. 3 Cir.1985) (quoting State v. Bernard, 441 So.2d 817 (La.App. 3 Cir. 1983), writ denied, 445 So.2d 439 (La. 1984)). Louisiana Revised Statutes 14:23 classifies the parties to crimes as either principals or accessories after the fact. Principals are defined by La.R.S. 14:24. The statute states, “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” Those persons who knowingly participate in the planning or execution of the crime are principals. State v. Pierre, 93-0893 (La.2/3/94); 631 So.2d 427.

State v. Savoy, 06-191, p. 11 (La.App. 3 Cir. 5/31/06), 931 So.2d 1207, 1213.

“[S]pecific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person.” State v. Seals, 95-0305, p. 6 (La.11/25/96), 684 So.2d 368, 373, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997) (citations omitted). The fact that multiple shots are fired at a victim indicates a defendant’s culpable |22state of mind and satisfies the specific intent to kill requirement for murder. State v. Griffin, 618 So.2d 680, 700 (La.App. 2 Cir.), writ denied, 625 So.2d 1063 (La. 1993).

State v. Poullard, 03-940, p. 21 (La.App. 3 Cir. 12/31/03), 863 So.2d 702, 718, writ denied, 04-908 (La.3/18/05), 896 So.2d 995.

In the present case, Defendant admitted participating in a plan to steal drugs and was a principal to Law’s act of killing Berryman during the execution of that plan. Additionally, Defendant admitted shooting Williams several times, and that act was indicative of his intent to kill Williams. For these reasons, Defendant has failed to show the admission of the firearms, if erroneous, improperly prejudiced his case. Accordingly, this assignment of error lacks merit.

DECREE

The trial court’s ruling regarding Jody D. Hamilton’s convictions and sentences for second degree murder and attempted second degree murder is affirmed.

AFFIRMED.

      . This court, as well as appellate counsel, assumes that the parties were discussing prospective juror Iskenderian.

      . “Relevant evidence” is defined by La.Code Evid. art. 401 as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE of Louisiana v. Corey W. OLIPHANT.
    No. 13-473.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 2013.

      Annette Fuller Roach, Lake Charles, LA, for Defendant/Appellant Corey W. Oli-phant.
    Van H. Kyzar, District Attorney, Charles W. Seaman, Assistant District Attorney, Natchitoches, LA, for Appellee State of Louisiana.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

| ,The defendant, Corey W. Oliphant, appeals his conviction of armed robbery, a violation of La.R.S. 14:64, which is before this court for a third time. For the following reasons, we vacate the conviction and sentence and enter a verdict of not guilty.

PROCEDURAL HISTORY

The criminal charge before us arises from the April 23, 2005 armed robbery of the Tobacco Warehouse, a Natchitoches, Louisiana business establishment. The defendant and his brother, Nicholas Andre Oliphant, were ultimately charged by bill of information with the offense. After a two-day trial beginning January 16, 2007, a jury convicted both of the defendants as charged. On April 9, 2007, the trial court sentenced the defendant to serve forty years at hard labor and ordered that the sentence be served without the benefit of parole, probation, or suspension of sentence. The defendant did not file a motion for reconsideration of his sentence.

The defendant appealed his conviction and sentence, and this court affirmed both. State v. Oliphant, 07-1210 (La.App. 3 Cir. 4/30/08), 2008 WL 1886585 (unpublished opinion), writ denied, 08-1324 (La.5/22/09), 9 So.3d 133. On April 20, 2010, the trial court rejected the defendant’s post-conviction-relief application, and the matter returned to this court via a writ for review of the trial court’s judgment, which was denied. State v. Oliphant, 10-585 (La.App. 3 Cir. 2/23/11) (unpublished writ), writ denied, 11-592 (La.3/2/12), 83 So.3d 1038.

li>The defendant then sought relief from the federal court system, and, on March 8, 2018, the United States District Court for the Western District of Louisiana issued the following order:

IT IS ORDERED that Corey Oli-phant is GRANTED A CONDITIONAL WRIT OF HABEAS CORPUS, ORDERING HIS DISCHARGE FROM CUSTODY on Ground Number 8 of his habeas petition unless, within 60 days from the date of the order, the State of Louisiana reinstates Corey Oliphant’s right to directly appeal his conviction with the assistance of counsel and affords him the opportunity to obtain court-appointed counsel for his appeal.

Oliphant v. Warden, La. State Penitentiary, No. 1:12-cv-0899, 2013 WL 951610, at *1 (W.D.La. March 11, 2013).

In compliance with that order, the trial court executed an order on March 14, 2012, allowing the defendant “to directly appeal his conviction of 1/17/2007 and that the Louisiana Appellate Project is appointed to represent him in this appeal[.]” This appeal arises from that trial court order.

DISCUSSION OF THE EVIDENTIARY RECORD

At approximately 2:00 p.m. on April 23, 2005, a man armed with a pistol entered the Tobacco Warehouse Convenience Store in Natchitoches, Louisiana, and took approximately $700.00 from the store employees at gunpoint. Jared Bennett, the clerk on duty at the time of the robbery, described the man as a black male wearing black pants and a hooded, dark sweatshirt, with the hood pulled up over his head. He further noted that the man wore a “piece of cloth, kind of like a neck gator” over his face. His co-worker, Julie Beard, described the robber as a black male in his early twenties, with brown eyes and short hair, but with no facial hair that she observed. She stated that the robber was dressed in black with a hooded sweatshirt and a “black wrap” around his chin.

At approximately the same time as the robbery, Riley Stanfield, a retired detention officer, who lives on the street immediately behind the strip mall where lathe Tobacco Warehouse is located, was working in his yard. He observed a man, dressed in a dark sweatshirt with the hood pulled up over his head, run through his yard, jump a fence, and get into the passenger side of a white, older-model Lincoln automobile, which was parked approximately 150 to 200 yards from his location. He observed that the man had something in his right hand, but could not identify the object. Additionally, he was able to see that a black male was sitting in the driver’s seat of the Lincoln. Although the driver’s face was not covered or disguised, Mr. Stanfield could not provide the investigating officers with a physical description of either man. With regard to the vehicle itself, Mr. Stanfield did note that the molding below the bottom of a door was missing.

While on patrol at approximately 4:00 p.m. that same afternoon, Natchitoches City Police Officer Joel Mitchell observed the driver of a white Lincoln Town Car run a stop sign. Being aware of the robbery and the description of the vehicle involved, Officer Mitchell attempted to initiate a stop for the traffic violation. He followed the vehicle as the driver made an apparent attempt to escape, but ultimately caused the driver to stop. The vehicle was missing the molding below the bottom of a door; was being driven by Nicholas Oli-phant (Nicholas), the defendant’s brother; and was registered to Odell Oliphant, the defendant’s father. Officer Mitchell asked Nicholas if he had a gun in the vehicle and, after some hesitation, he admitted that he did. Officer Mitchell then took Nicholas into custody, handcuffed him, and retrieved a nickel-plated, snub-nosed, twenty-two caliber revolver from the Lincoln. Officer Mitchell identified the |4weapon he took from Nicholas at trial, stating that the pistol was easily recognizable because it had the distinctive characteristic of being a nickel plated pistol with a blued cylinder.

Natchitoches City Police Officer Damien Spillman interrogated Nicholas when he was brought to the police station. According to Officer Spillman, Nicholas told him that he had been home all day and that his brother (the defendant) could verify that fact. Officer Spillman then went to the defendant’s house and asked him to return to the police station with him. The defendant agreed, stating that he was about to go to the station because he had heard that his brother was in custody. Officer Spillman stated that initially when questioned concerning his activities earlier that day, the defendant told him that he had worked the night shift and then had slept most of the day. However, Officer Spill-man testified that when they arrived at the police station, the defendant changed his story to say that he had not worked the night before but had stayed out late; that he had gotten up at 10:30 a.m.; and had gone to a friend’s house to cut hair. According to Officer Spillman, the defendant said that he left the friend’s house a few minutes after 11:00 a.m. in order to retrieve another set of clippers. He said that he then returned to the friend’s house, where he continued cutting hair until he heard of his brother being arrested.

Officer Spillman testified that he decided to call for a set of tracking dogs to assist in the investigation after the defendant told him that he had not seen his brother the entire day. While interrogating the defendant, Officer Spillman asked him to provide a sock off his foot, and the defendant complied with the request. Before requesting the sock, Officer Spillman had already telephoned the | ^Natchitoches Parish Detention Center (Detention Center) and requested that a tracking team be brought to the Tobacco Warehouse.

Natchitoches City Police Officer Jeff Franks testified that he observed Officer Spillman’s interrogation of Nicholas, and he heard Nicholas tell Officer Spillman that he and the defendant left home that morning to pick up some cigarettes for their mother, after which they returned home. He later asked the defendant about the trip to obtain cigarettes, and the defendant acknowledged the trip, but suggested that he and his brother had gone to a store different from the one identified by Nicholas. On cross-examination, however, the officer was provided his previous written statement, which suggested that the trip to pick up the cigarettes occurred the night prior to the robbery.

Officer Spillman took the defendant’s sock to the Tobacco Warehouse and gave it to Officer Roy Gallien, one of the Chase Team dog handlers assigned to the Detention Center, who was waiting with two bloodhounds. Officer Gallien testified that his position with the Detention Center required that he “transport inmatesf ] and work the Chase Team Bloodhounds.” According to Officer Gallien, the Detention Center has six tracking dogs including “Bo” and “Trusty,” the dogs used in this search, as well as a number of puppies in training. He testified that “the mamma dog” came from Angola State Prison and that she had been bred to dogs from two other correctional facilities around the state. The dogs are not certified in any capacity, and all of their tracking expertise has arisen from use at the Detention Center. While Officer Gallien testified concerning at least two situations where the bloodhounds were useful in a search, he provided no information concerning the expertise of anyone involved in the training, including Rhimself. Additionally, he acknowledged that the Detention Center keeps no records concerning the dogs’ use.

With regard to the use of the bloodhounds in the instant case, Officer Gallien testified that he let the two dogs sniff the sock provided by Officer Spillman at approximately 7:15 p.m. the evening of the robbery, and, at that time, he was not aware that the robbery had occurred at 2:00 p.m. Still, he suggested that this was an adequately fresh scent. After providing each dog with the scent, Officer Gallien and his two team members began tracking from the store to where they were told the perpetrator got into the Lincoln. Each dog tracked separately from the other and, according to Officer Gallien, each dog tracked along a route similar to what he would later learn was the route described by Mr. Stanfield.

After considering the results of the bloodhound search, Officer Spillman returned the defendant’s sock to him and later arrested him for the offense of armed robbery. The next day, he searched the Lincoln and seized two items made of a panty-hose or stocking-type material found in the floorboard of the back seat. At a later time, the officers obtained a search warrant for the defendant’s house, but the execution of that search warrant resulted in the seizure of no evidence. Specifically, the officers were unable to find any clothing resembling that worn by the robber nor did they find any evidence of money that might have been taken from the Tobacco Warehouse.

As the investigation progressed, Mr. Bennett, Ms. Beard, and Mr. Stanfield were all shown a photographic lineup containing, among other photographs, pictures of both Nicholas and the defendant. While it is significant to note that the pictures of the defendant and his brother were twice the size of the other four ^photographs used in the lineup, none of the three individuals identified either the defendant or his brother as the two men involved in the robbery. Not only could Mr. Bennett not identify anyone in the lineup as being the individual who robbed him, but when asked to “guess or ... take your best shot,” he identified someone other than either of the brothers. Ms. Beard also picked someone other than the defendant brothers, and Mr. Stanfield could not identify anyone. At trial, none of the three individuals could identify either defendant as the one who committed the armed robbery.

Both Mr. Bennett and Ms. Beard testified at trial that the pistol seized by Officer Spillman appeared to be similar to the one used by the robber, but both testified that they could not make a positive identification because their view of the weapon was obscured by the robber’s sleeve and/or hand during the robbery. When questioned at trial concerning the distinctive nature of the pistol, Mr. Bennett stated that he was not able to see the gun’s cylinder during the robbery. He further acknowledged his previous testimony in which he admitted that he told Officer Spillman that the seized gun was not the one used in the robbery.

Finally, Pat Wojtkiewicz, a technical director for the North Louisiana Crime Laboratory (Crime Lab) and an expert in DNA analysis, testified that the pistol and nylon-stocking material found in the Lincoln were tested by the Crime Lab for the presence of DNA. According to Mr. Wo-jtkiewicz, the analysis of the trigger and cylinder grip of the pistol produced an insignificant amount of DNA with which to work, and the DNA derived from the grip and hammer of the gun “was consistent of being a mixture of more than one individual, at least two or three individuals.” He stated that Nicholas could not be excluded as one of the donors of that DNA. With regard to the nylon-stocking material, Mr. Wojtkiewicz testified that the DNA profiles obtained contained “mixtures of at least two individuals.” | RWith respect to the findings, Mr. Wojtkiewicz stated that the defendant could not be excluded as a major contributor and Nicholas could not be excluded as a minor contributor. In both analysis results, Mr. Wojtkiewicz testified that when he used the word “excluded,” he was suggesting that over ninety-eight percent of the population was excluded as a contributor to the DNA sample.

ASSIGNMENTS OF ERROR

In. this latest appeal, the defendant raises five assignments of error:

I.
The evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove beyond a reasonable doubt the identity of Corey Oli-phant as a participant or a principal in the robbery.
II.
The trial court erred in failing to assure that discussions and arguments of counsel made during sidebar discussions were recorded and preserved for appellate review, thereby denying Appellant his constitutional right to a full appeal.
III.
The trial court erred in permitting the testimony of Officer Gallien regarding the bloodhounds, as the evidence was unreliable and in violation of Appellant’s constitutional rights, among these his Sixth Amendment right to full cross-examination of his accusers.
IV.
The trial court erred in admitting into evidence the testimony of Pat Wojet-kiewicz [sic], in violation of Appellant’s right to confront his accusers as guaranteed to him by the Sixth Amendment of the United States Constitution.
_hV.
Corey Oliphant was denied his Sixth Amendment right to the effective assistance of counsel at all stages of this case.

OPINION

The United States District Court for the Western District of Louisiana based its grant of a conditional writ of habeas corpus on Claim Number Eight of the defendant’s Application for Post Conviction Relief. That particular claim addressed the defendant’s complaint that he had been denied effective assistance of appellate counsel in his appeal. It appears that after their conviction, the brothers’ father retained the services of two lawyers, who were subsequently suspended from the practice of law during the appellate process, but not before having filed a skeleton brief with this court. This court gave the brothers ten days in which to retain new counsel, but they could not do so because all the family assets had been spent on the initial representation. As a result of their financial inability to retain new counsel for the purpose of briefing the issues to be presented to this court, the skeleton brief was all they were left with, and this court, considering the record and the briefs before it, affirmed both convictions. The matter is now before us in compliance with the federal court’s March 11, 2013 order.

The defendant was convicted of the offense of armed robbery, a violation of La.R.S. 14:64. “Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La.R.S. 14:64(A). Additionally, “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La.R.S. 14:24. However, | inthe statutory rule concerning principals has some qualifications. Only those persons who knowingly participate in the planning or execution of a crime are principals. State v. Knowles, 392 So.2d 651 (La.1980). Therefore, “[mjere presence at the scene is therefore not enough to ‘concern’ an individual in the crime.” State v. Pierre, 93-893 (La.2/3/94), 631 So.2d 427, 428.

There is no dispute but that an armed robbery of the Tobacco Warehouse occurred on the afternoon of April 23, 2005, and the only issue on appeal is the identity of the individual or individuals who committed the offense. There exists no eyewitness identification of the individual who robbed the Tobacco Warehouse. In fact, when confronted with a rather suggestive photographic lineup, two of the three individuals, who saw the actual robber on that day, picked someone other than feither of the two brothers. A search of the defendants’ home found no physical evidence to link them to the robbery, and the money that was stolen was never recovered. Although there is some evidence linking Nicholas to the armed robbery, no similar evidence exists connecting the defendant. The entire case against the defendant is based on the bloodhound tracking results, the DNA-test results, and the alleged inconsistent statements by the defendant and his brother to the law-enforcement officers.

In his first assignment of error, the defendant asserts that the evidence presented by the state was insufficient to establish beyond a reasonable doubt that he was a participant or principal in the robbery. This assignment of error overlaps In with the defendant’s third and fourth assignments of error, and these will be considered together.

Our standard of review in a sufficiency of the evidence claim is well-settled. We must determine “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). This standard, commonly referred to as the Jackson standard of review, is derived from Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and is now legislatively embodied in La.Code Crim.P. art. 821.

The Jackson standard does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521. Stated another way, the appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Thus, other than insuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact[,]” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. State v. Lambert, 97-64, p. 5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727.

In attempting to determine whether the state carried its burden of proof, we also note that the evidence against the defendant is all circumstantial. Louisiana Revised Statutes 15:438 states that “[t]he rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

|12As an evidentiary rule, that statute restrains the fact finder in the first instance, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and, second, to convict only if every reasonable hypothesis of innocence is excluded. Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law.

State v. Wade, 33,121, pp. 1-2 (La.App. 2 Cir. 5/15/00), 758 So.2d 987, 990, writ denied, 00-2160 (La.9/28/01), 797 So.2d 684.

In cases where the accused asserts that he was not the person who committed the crime, the Jackson rational requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Johnson, 38,927 (LaApp. 2 Cir. 11/23/04), 887 So.2d 751. Thus, the issue before this court is whether the jury, while viewing the evidence in a light most favorable to the state, could have found that all reasonable hypotheses of innocence were excluded. State v. Dotson, 04-1414 (La.App. 3 Cir. 3/2/05), 896 So.2d 310.

We find no error in the trial court allowing the investigating officers to testify concerning the perceived inconsistent statements from both the defendant and his brother. There is no evidence to suggest that the statements were not voluntary, and conflicting voluntary statements made to law enforcement officers can be indicative of a guilty mind. State v. Wiley, 03-884 (La.App. 5 Cir. 4/27/04), 880 So.2d 854, writ denied, 04-1298 (La.10/29/04), 885 So.2d 585. Still, standing alone, conflicting statements are not sufficient for the state to overcome its burden of proof, and the remainder of the proof must be analyzed to determine if, when all of it is considered together, it meets the eviden-tiary standard of proof beyond a reasonable doubt.

The next aspect of the state’s proof relates to the bloodhound-tracking evidence. Not only does the defendant assert that it was insufficient to satisfy the state’s burden of proof, but in his third assignment of error he argues that it should | ishave been excluded as it violated his constitutional right to confront his accusers. Specifically, he asserts that nothing at trial was presented to establish Officer Gallien’s expertise in evaluating and handling bloodhounds and that a proper foundation for the admissibility of the bloodhound evidence was not laid.

As previously noted, the state offered no evidence of the certification of the two dogs involved in the tracking, and the only evidence of training was Officer Gallien’s testimony to the effect that much of the dogs’ training was accomplished by inmates at the Detention Center. Officer Gallien was not offered as an expert in the handling of bloodhounds, and the record contains no evidence of his training or the training of anyone else associated with the dogs. While Officer Gallien did testify to incidences of successful use of the bloodhounds, he acknowledged that no records were kept concerning the success or failure rate of operations involving the bloodhounds. When the defendant objected to Officer Gallien’s testimony and lack of expertise and documentation, the trial court overruled the objection, noting that the objection would go to the weight of the evidence instead of its admissibility.

The defendant argues to this court that there exists no evidence in this record to establish that bloodhound tracking is scientifically recognized or accepted in the scientific community. We acknowledge that the record does not contain such evidence, but note that while bloodhound evidence is an uncommon occurrence, it has been used in prior prosecutions. At the same time, while noting that bloodhound evidence is an uncommon occurrence, we also note that evidence concerning the use of dogs in drug criminal investigations is not, and “a ‘canine sniff by a well-trained narcotics detection dog” has been determined by the United States Supreme Court not to be an unreasonable search pursuant to Fourth |14Amendment of the United States Constitution. U.S. v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Still, as pointed out in State v. Jackson, 96-1182, p. 8 (La.App. 3 Cir. 3/26/97), 692 So.2d 659, 664, writ denied, 97-1100 (La.10/13/97), 703 So.2d 611:

Generally, although courts in this state have not set forth the requirements needed to show that a drug dog is qualified to detect drugs, they have noted the qualifications of drug detection dogs when determining their actions in detecting drugs to be sufficient probable cause for a search. See State v. Gant, 93-2895 (La.5/20/94); 637 So.2d 396, reh’g denied, 93-2895 (La.7/1/94); 639 So.2d 1183 (“drug-certified” dog detected contraband); State v. Dillon, 95-00884 (LaApp. 3 Cir. 1/31/96); 670 So.2d 278 (narcotics dog was “trained and certified”); State v. Dickens, 633 So.2d 329 (LaApp. 1 Cir.1993) (dog and trainer certified by National Narcotics Detector Dog Association); State v. Rose, 607 So.2d 974 (LaApp. 4 Cir. 1992), writ denied, 612 So.2d 97 (La. 1993) (dog was a “narcotics trained” dog); State v. Philippoff, 588 So.2d 778 (La.App. 4 Cir.1991) (dogs were “certified narcotics detection dogs”); State v. DeBlanc, 549 So.2d 1287 (La.App. 3 Cir. 1989), writ denied, 558 So.2d 599 (La. 1990) (record revealed drug detection dog had detected drugs in more than two hundred cases with the officer and had placed first nationally in vehicle searches).

The fact that bloodhound use in a criminal investigation is uncommon is supported by the lack of Louisiana jurisprudence on the subject of bloodhound certification. In the more recent cases where bloodhounds were used to track and locate perpetrators or victims, the bloodhounds’ tracking capabilities were not raised on appeal. See State v. Sparks, 88-17 (La.5/11/11), 68 So.3d 435, cert denied, — U.S. -, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012); State v. Ellis, 42,520 (La.App. 2 Cir. 9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325; and State v. Harris, 577 So.2d 220 (La.App. 1 Cir.1991).

However, the certification issue did arise in State v. Harrison, 149 La. 83, 88 So. 696 (1921). In Harrison, two bloodhounds followed a trail from a window, through which a burglar had entered a house approximately fourteen hours earlier, to the defendant’s home. Hearing the approaching bloodhounds, the defendant fled |1fihis home by exiting from a window on the other side of the house. The only evidence connecting the defendant to the crime scene was the testimony of the bloodhounds’ owner, and, in appealing his conviction, the defendant questioned the reliability of that testimony.

In reversing the defendant’s conviction and remanding the matter for a new trial, the supreme court stated that the “[s]o-called bloodhound testimony is admissible in evidence against a person accused of crime,” but its weight is “merely as a circumstance tending to prove his guilt.” Id. at 697. After finding that such evidence is not admissible in some states, the court stated that in those states where it is admissible, the admissibility is based on the proof of certain criteria:

[T]he rule is that it should not be admitted until a proper foundation has been laid, by some proof of the reliability of the dogs, their acuteness of scent and power or sense of discrimination, and, in that respect, their reputation for trailing criminals, their pedigree, training, etc. With all that, the text-writers on the subject doubt that any trial judge would allow a conviction to stand upon proof only of the trailing by bloodhounds.

Id.

In Harrison, the state had introduced copies of documents that purported to be registry and pedigree certificates of the dogs involved in the investigation. However, the supreme court found that the trial court erred in allowing them to be admitted because they were not authenticated in any manner, and it rejected the state’s argument that the introduction was harmless error.

Relying on its decision in Harrison, the supreme court addressed the issue of bloodhound evidence again in State v. Green, 210 La. 157, 26 So.2d 487 (1946). In its opinion, the supreme court cited the specific language from Harrison set forth above, but without suggesting that any effort had been made by the state to 11filay a proper foundation for the admissibility of the bloodhound evidence, the supreme court affirmed the defendant’s conviction for burglary. In doing so, the supreme court stated the following:

The judge’s per curiam shows that the ‘bloodhound’ testimony was merely one of the circumstances upon which the ver-diet was based. He states that the conviction was [based] upon the defendant’s confession and other corroborative testimony of which the ‘bloodhound’ evidence was only one part. The defendant was not denied the privilege of cross-examination or of offering additional testimony that the dog though unregistered, was unreliable or unskilled or that he acted on the [trail] so as to deprive the evidence of incriminating value. We think that the courts of this State have been rightfully cautious in admitting this ‘dumb-animal’ testimony and that the rule announced in the quotation above is a proper one and that along with the conditions stated in the rule, the defendant should have the fullest opportunity by cross-examination and otherwise to inquire into the breeding and testing of the dog and into the circumstances and details of the hunt and to introduce other relevant testimony tending to destroy the incriminating value of the evidence. The facts of the ease at bar bring it within the rule rather broadly recognized that under certain circumstances, and subject to the defendant’s right to cross-examination and to introduce evidence of contradicting facts, testimony as to trailing by bloodhounds may be permitted to go to the jury for what it is worth’ as ‘one of the circumstances’ which may tend to connect the defendant with the crime.

Id. at 488-89 (emphasis added).

We find no jurisprudence to suggest that the rule in Harrison is no longer applicable to bloodhound evidence. Unfortunately, we also find no jurisprudence that better defines what constitutes a proper foundation for admissibility. While certainly not binding on this court, we do recognize and find instructive a relatively recent decision concerning bloodhound evidence rendered by the Court of Criminal Appeals of Tennessee. State v. Barger, 612 S.W.2d 485 (Tenn.Crim.App.1980). In Barger, the defendant was convicted of burglary partially based on bloodhound evidence. Using the scent from a shirt and shoe obtained from the defendant, a bloodhound followed a trail from the burglarized home into the woods behind the home, where several of the stolen items were 117recovered. On appeal, the defendant asserted that the bloodhound evidence violated his constitutional right to confront and cross-examine the witness. He also attacked the reliability of the bloodhound evidence by arguing that the state failed to lay a proper foundation for its admission.

The Barger court first noted that the inability to cross-examine the bloodhound was not prejudicial, so long as the handler of the animal was made available for examination as to the dog’s qualifications and activities on the day of the tracking. Further, the Barger court listed five criteria that it concluded must be addressed to establish the requisite foundation: 1) the dog must be a purebred and of the type “characterized by acuteness of scent and power of discrimination”; 2) “it must be accustomed and trained to track human scents”; 8) “it must be shown by experience in actual cases to be reliable in tracking”; 4) the dog “must have been placed on the trail at a spot where the suspect was known to have been” or on a track which circumstances indicate he made; and 5) the dog must have been placed on the trail within a period of efficiency, that is, for example, before a rain storm or a lengthy passage of time. Id. at 491-92.

In Barger, a copy of the bloodhound’s registration as a purebred was introduced at trial, and the owner/handler testified that he learned to train a trailing dog from a book; that the dog had successfully tracked humans on three prior occasions; and that the dog had been placed on the trail at the home that was burglarized within a short time after the defendant was taken into custody and before any change in the weather. The Barger court found this to be a proper foundation for the admission of the bloodhound-tracking evidence. Additionally, the Barger court noted that it was error for the trial court not to instruct the jury that the bloodhound evidence was not infallible and should not be given undue [1sweight, but did not consider the error because the defendant failed to make a contemporaneous objection.

In the matter before us, the trial court did instruct the jury that “[testimony regarding the use of bloodhounds and their actions is admissible against a person accused of a crime, merely as a circumstance tending to prove his guilt.” However, finding the Barger decision to be instructive and considering the factors found therein, we find that there is insufficient evidence to establish the qualifications of the bloodhounds used to track the defendant’s exit from the Tobacco Warehouse. No evidence of certification was introduced by the state, and, when asked about the bloodhounds’ scenting abilities, Officer Gallien testified only that “[t]hey can smell, I don’t know how many hundred times better than a human can smell. They’re real good with their noses.” Interestingly, Officer Gallien also testified that the best time for a bloodhound to trail is when it is raining. He explained that “the rain brings the scent up off the ground.” The Barger court, on the other hand, noted that the bloodhound needed to be placed on the trail prior to rain because rain weakens the scent beyond the point of reliability. Additionally, although Officer Gallien could relate some examples of successful trailing by the two bloodhounds used in this case, he could not assert any degree of overall tracking reliability because of a complete lack of records.

Finally, the trail tracked by Trusty and Bo raises questions concerning the degree of accuracy that can be given to their actions as neither tracked the exact same trail and both terminated their tracking efforts at different locations. As the court in Harrison concluded with the facts before it, in this case there is no means of knowing whether the jury would have convicted the defendant if the evidence had not been introduced and “that the facts sought to be proven by the illegal |19evidence were material and relevant to the issues, and that the illegal evidence might therefore have had some influence in producing the verdict[.]” Harrison, 88 So. at 697. We find that the trial court erred in allowing the bloodhound evidence to be introduced to the jury.

In his fourth assignment of error, the defendant again argues that his right to confront his accusers was violated. In this assignment, he complains that the constitutional violation occurred when the trial court allowed Mr. Wojtkiewicz to testify regarding the results of the DNA analysis and that his trial attorney provided ineffective assistance when he failed to object to the testimony and failed to subpoena the appropriate Crime Lab witness.

This issue arises because the actual Crime Lab employee who performed the DNA analysis was on maternity leave at the time of trial, and Mr. Wojtkiewicz testified concerning the results of that testing based on his review of her notes and the tests and procedures applied in the analysis. At trial, the defendant’s counsel did not object to Mr. Wojtkiewicz’s testimony, and this failure to object generally constitutes a waiver of this alleged error in a post-conviction proceeding. La.Code Crim.P. art. 841; State v. Hayes, 44,219 (La.App. 2 Cir. 7/15/09), 16 So.3d 604, writ denied, 09-1897 (La.6/18/10), 38 So.3d 317; and State v. Thibodeaux, 97-1636 (La.App. 3 Cir. 11/18/98), 728 So.2d 416, writ denied, 98-3131 (La.5/7/99), 741 So.2d 27, cert. denied, 528 U.S. 936, 120 S.Ct. 341, 145 L.Ed.2d 266 (1999). However, because the defendant asserts that the evidence was allowed in as a result of his counsel’s failure to object, this claim is properly before this court for review. State v. Johnson, 95-711 (La.App. 3 Cir. 3/29/96), 664 So.2d 766, writ denied, 96-82 (La.3/29/96), 670 So.2d 1236.

12nAlthough Mr. Wojtkiewicz was recognized as an expert in DNA analysis without objection from the defendant, he acknowledged in his testimony that the actual analysis was accomplished by Kelli Raley, another employee of the Crime Lab, who was on maternity leave at the time of trial. Although he did not personally perform the analysis, Mr. Wo-jtkiewicz was admittedly familiar with the protocols and procedures required of the analysis. In preparation for his testimony, Mr. Wojtkiewicz reviewed Ms. Raley’s notes and stated that he was satisfied with the tests conducted, the procedures applied to those tests, and the accuracy of the results.

In support of his argument, the defendant directs us to two United States Supreme Court cases, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the defendant was charged with distributing cocaine and with trafficking cocaine in an amount between fourteen and twenty-eight grams. At trial, the prosecution placed into evidence the bags seized and three documents containing the results of the forensic analysis performed on the seized substances. These written certificates reported the weight of the seized bags and stated that the substance found in the bags had been examined and was determined to be cocaine. The three certificates contained the notarized signatures of the individuals from the Massachusetts laboratory performing the analysis as required under Massachusetts law.

The defendant objected to the admission of the certificates, asserting that the Supreme Court’s decision in Crawford, 541 U.S. 36, 124 S.Ct. 1354, required the analysts to testify 121in person. The trial court overruled the objection and admitted the certificates pursuant to state law as “ ‘pri-ma facie evidence of the composition, quality, and the net weight of the narcotic ... analyzed.’ ” Melendez-Diaz, 129 S.Ct. at 2531 (quoting Mass. Gen. Laws, ch. Ill, § 13 (West 2006)). In reversing the conviction, the Supreme Court discussed the application of its decision in Crawford, as well as other decisions, and stated in pertinent part:

The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” In Crawford, after reviewing the Clause’s historical underpinnings, we held that it guarantees a defendant’s right to confront those “who bear ‘testimony’ ” against him. 541 U.S. [36,] 51, 124 S.Ct. 1354. A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id. at 54, 124 S.Ct. 1354.
Our opinion described the class of testimonial statements covered by the Confrontation Clause as follows:
“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that de-clarants would reasonably expect to be used proseeutorially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., at 51-52, 124 S.Ct. 1354 (internal quotation marks and citations omitted).”
There is little doubt that the documents at issue in this case fall within the “core class of testimonial statements” thus described. Our description of that category mentions affidavits twice. See also White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (THOMAS, J., concurring in part and concurring in judgment) (“[T]he Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such |22as affidavits, depositions, prior testimony, or confessions”). The documents at issue here, while denominated by Massachusetts law “certificates,” are quite plainly affidavits: “declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” Black’s Law Dictionary 62 (8th ed.2004). They are incontrovertibly a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Crawford, supra, at 51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine-the precise testimony the analysts would be expected to provide if called at trial. The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.” Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (emphasis deleted).
Here, moreover, not only were the affidavits “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ ” Crawford, supra, at 52, 124 S.Ct. 1354, but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance, Mass. Gen. Laws, ch. Ill, § 13. We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose — as stated in the relevant state-law provision — was reprinted on the affidavits themselves. See App. to Pet. for Cert. 25a, 27a, 29a.
In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “‘be confronted with’ ” the analysts at trial. Crawford, supra, at 54, 124 S.Ct. 1354.
Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See Fed. Rule Evid. 808(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), made that distinction clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad’s operations, it was “calculated for use essentially in the court, not in the business.” Id., at 114, 63 S.Ct. 477. The analysts’ certificates — like police reports generated by law | ^enforcement officials — do not qualify as business or public records for precisely the same reason. See Rule 803(8) (defining public records as “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”).
Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power — whether pursuant to state law or the Compulsory Process Clause — is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g., Davis, 547 U.S., at 820, 126 S.Ct. 2266 (“[The witness] was subpoenaed, but she did not appear at ... trial). Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affi-ants if he chooses.
First, the dissent believes that those state statutes “requiring the defendant to give early notice of his intent to confront the analyst,” are “burden-shifting statutes [that] may be invalidated by the Court’s reasoning.” Post, at 2554, 2557-2558. That is not so. In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial. See, e.g., Ga.Code Ann. § 35-3-154.1 (2006); 4 (Vernon 2005); Ohio Rev.Code Ann. § 2925.51(C) (West 2006). Contrary to the dissent’s perception, these statutes shift no burden whatever. The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections. Today’s decision will not disrupt criminal prosecutions in the many large States whose practice is already in accord with the Confrontation Clause....
This case involves little more than the application of our holding in Crawford, v. Washington, 541 U.S. 36,124 S.Ct. 1354, 158 L.Ed.2d 177. The Sixth Amendment does not permit the prosecution 124to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error. We therefore reverse the judgment of the Appeals Court of Massachusetts and remand the case for further proceedings not inconsistent with this opinion.

Id. at 2531-42 (alteration in original) (footnotes omitted) (citations omitted).

The Louisiana Supreme Court has not addressed this issue in light of Melendez-Diaz, although Melendez-Diaz was addressed in State v. Davidson, 44,916 (La. App. 2 Cir. 2/10/10), 32 So.3d 290, writ denied, 10-579 (La.10/1/10), 45 So.3d 1096. In Davidson, the defendant appealed his conviction of possession of cocaine asserting that the laboratory report containing the results and weight of the cocaine should not have been admitted into evidence. The second circuit concluded that the report was clearly testimonial as explained in Melendez-Diaz, but that “[a]s-suming, arguendo, that the report in this case violated the Sixth Amendment, it would still be subject to a harmless error analysis.” Id. at 297. Without addressing the Sixth-Amendment issue, the second circuit concluded that any error in allowing its introduction was harmless based on the fact that one of the defendant’s witness had testified that the substance was cocaine and because one of the investigating officers had field-tested the substance and determined that it was cocaine.

In Larkin v. Yates, No. CV 09-2034-DSF (CT), 2009 WL 2049991 (C.D.Cal. July 9, 2009), aff'd, 417 FedAppx. 708 (9th Cir.2011), cert. denied, — U.S. -, 132 S.Ct. 186, 181 L.Ed.2d 94 (2011), an expert witness testified concerning the results of a DNA analysis performed in a laboratory where she was a supervisor. In her testimony, the expert asserted that she had independently reviewed the relevant data and had reached an independent interpretation of that data. The district court concluded that such testimony “is not akin to the affidavit-like certificates of |2fianalysis in Melendez-Diaz.” Id. at *1. The district court further noted that “[wjhereas the certificates of analysis in Melendez-Diaz were ‘functionally identical to live, in court testimony,’ the test results here, at best, served as a partial basis for the opinion of a testifying expert.” Id.

We find no error in the trial court’s ruling allowing Mr. Wojtkiewicz to testify concerning his interpretation of Ms. Ra-ley’s analysis. Therefore, we find no merit in the defendant’s argument that his trial counsel was ineffective in failing to object to Mr. Wojtkiewicz’s testimony.

However, when considering the record before us, we find that when we view the evidence in a light most favorable to the state, no reasonable trier of fact could have found that the state proved beyond a reasonable doubt that the defendant committed the armed robbery of April 23, 2005, either as the individual who directly committed the armed robbery or as a principal in the robbery. Leger, 936 So.2d 108. No witnesses were able to identify the defendant as the individual who committed the actual robbery, and the only two who came in direct contact with the actual perpetrator of the offense, when confronted with a lineup containing the defendant’s photograph, picked other men. While the inconsistent statements related by the investigating officers could be considered indicative of a guilty mind, as suggested in Wiley, 880 So.2d 854, standing alone, they are not sufficient to carry the state’s burden. Additionally, the state placed much emphasis on the tracking results of the bloodhounds using the defendant’s sock as the scent; however, that finding, even if admissible, is inconsistent with the fact that the defendant’s DNA was not present on the weapon found in his brother’s possession.

| ^Moreover, although the defendant was a major contributor to the DNA found on the stocking-material recovered from the Lincoln, absent any other evidence connecting him to the offense, the presence of that DNA could be explained by the simple act of the defendant picking up the stocking-material on an occasion when he was in the vehicle. The record establishes that the brothers lived together and, as brothers, their clothes could have been shared, thereby causing their individual DNA to be found on items used by the other. Based on the record before us, we cannot conclude that the state excluded every reasonable hypothesis that the defendant was not the individual who committed the armed robbery or drove the Lincoln from the scene of the robbery.

Having reached the conclusion that there is merit in the defendant’s assignment of error addressing the sufficiency of the evidence, we need not consider the remaining assignments of error.

DISPOSITION

For the foregoing reasons, we vacate the conviction and sentence of the defendant and enter a verdict of not guilty.

REVERSED AND RENDERED.

      . While the brothers were tried together, this appeal is limited to the review of Cory W. Oliphant’s conviction.

      . At the time of the trial, Officer Mitchell was employed by the Natchitoches Parish Sheriff’s Office.

      . Officer Mitchell testified that he had been informed that the vehicle involved in the armed robbery was a "Lincoln Town Car.” Mr. Stanfield had only described the vehicle as an "old model Lincoln.” Additionally, while questioning Officer Mitchell, counsel for the state described the vehicle as a "Continental.”

      . At the time of trial. Officer Spillman was no longer working in law enforcement.

      . In fact, Officer Gallien testified that the trustees at the Detention Center were responsible for training the dogs.

      . Reference was made by counsel for the state to Officer Mitchell's observation that the blued cylinder on the chrome pistol was extremely unusual.

      . The state made no effort to present evidence to establish which brother actually committed the robbery and which was the driver of the Lincoln. However, in closing arguments to the jury, the state asserted that the defendant committed the actual robbery based on the bloodhound evidence.

      . Nicholas was apprehended while fleeing from a law enforcement officer in a vehicle which matched the description of the one used by the perpetrators in the armed robbery; he was found in possession of a pistol similar to the one used in the robbery; and panty-hose material similar to the mask worn by the individual who directly committed the robbery was found in his vehicle.

      . Mr. Wojtkiewicz had testified in Louisiana courts approximately thirty times relative to DNA analysis.

      . In fact, Mr. Wojtkiewicz had developed some of the protocols and procedures himself.

      . Because the issue was not raised on appeal, we make no finding concerning whether the state carried its burden in establishing that Ms. Raley was unavailable to testify at trial by the general comment that she was on "maternity leave,” without establishing the specific status of that leave at the time of trial.