text:
    STATE of Louisiana v. William KINARD State of Louisiana v. William Kinard
    NO. 2016-KA-0917, NO. 2016-K-0976
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 15, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Donna Andrieu, CHIEF OF APPEALS, J. Taylor Gray, ASSISTANT DISTRICT ATTORNEY, Parish of Orleans, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT/STATE OF LOUISIANA
    Thomas Frampton, ORLEANS PUBLIC DEFENDER’S, 2601 Tulane Avenue, Suite 700, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Daniel L. Dysart

liThe State of Louisiana appeals the trial court ruling granting William Kinard’s Motion to Quash. In a separate writ application consolidated with this appeal, the States seeks review of the trial court’s ruling suppressing two recorded statements given by Kinard.

For the reasons that follow, we reverse the grant of the Motion to Quash. We further grant the State’s writ application, maintain the trial court’s ruling as to the January 2, 2016 statement, and reverse the trial court’s ruling as to the suppression of the January 11, 2016 statement.

BACKGROUND:

William Kinard was interviewed by the New Orleans Police on four separate occasions following the murder of his girlfriend on New Year’s Eve of 2015. During an interview on January 2, 2016, Kinard admitted that he possessed a firearm on New Year’s Eve, and that he fired the weapon into the ground somewhere in New. Orleans East. He made a .similar statement on January 11, 2016. Based on these statements, a warrant was issued for Kinard’s arrest. He was ^subsequently charged by bill of information with one count of intentionally or criminally negligently discharging a firearm (La. R.S. 14:94A), and one count of being a felon in possession of a firearm (La. R.S. 14:95.1), and was arrested on January 13, 2016.

Kinard filed a motion for suppression of statements and a motion to quash the bill of information. Following a hearing, the trial court granted his motions to suppress and to quash the bill of information. This State seeks review of those rulings.

DISCUSSION:

Motion to Quash:

In its first assignment of error, the State argues that the trial court erred in granting Kinard’s motion to quash the bill of information. Kinard argues that the ground for granting the motion to quash is that a defendant cannot be convicted based upon a confession without corroborating evidence, commonly known as the corpus delicti rule. See, e.g., State v. Cruz, 455 So.2d 1351 (La. 1984), and State v. Brown, 236 La. 562, 108 So.2d 233 (La. 1959). He further argues the applicability of Smith v. U.S., 348 U.S. 147, 153, 75 S.Ct. 194, 197, 99 L.Ed. 192 (1954); wherein the United States Supreme Court noted that a confession could be unreliable when coerced or induced “if it is extracted from one who is under the pressure of a police investigation.”

| .¡The facts reveal that Kinard was interviewed four times by the New Orleans Police Department; however, the only two relevant interviews for the purpose of this appeal took place on January 2, 2016, and January 11, 2016.

The January 2, 2016 interview was conducted shortly after the murder. The recording reflects that Kinard is crying throughout most of the interview as he describes the events surrounding the shooting of his girlfriend. Two minutes into the interview, the detectives advise him that he is not a subject and is free to leave at any time. At the nineteen minute mark, Kinard admits to firing a weapon into the ground on New Year’s Eve, but offers that he did not fire a weapon the day of the interview (the day of the murder). Kinard asks the detectives several times if he is free to leave, asking specifically, “Can I leave? I gotta go see my girl.” However, the detective tells him he will not be able to see Myeisha (the victim) at that time. The detectives continue to question him, indicating that the more he cooperates, the more likely they are to find the person who killed his girlfriend. After about thirty-five minutes, the detectives ask him if he is willing to give a gunshot residue test, explaining that they will let him go right after the test is completed.

Nine days later, Kinard was again interviewed on January 11, 2016, but was given his Miranda rights before the interview began. One detective explains to Kinard that he is in custody for a parole violation. Several minutes into the interview, one of the detectives tells Kinard that the police know he killed his girlfriend, but they do not know why. During the remainder of the interview, the |4detectives use various tactics to get Kinard to confess to his girlfriend’s murder, but he does not.

At the motion hearing, the interviewing detective conceded that when Kinard requested to leave, he answered with, “We need to talk to you some more.”

The trial court acknowledged on the record that it was granting the defendant’s motion to quash on corpus delicti grounds.

Louisiana Code Criminal Procedure art. 532(5) provides that a motion to quash may be based on the ground that “[a] bill of particulars has shown a ground for quashing the indictment under Article 485.” La. C.Cr.P. art. 485 provides:

If it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured. The defect will be cured if the district attorney furnishes, within a period fixed by the court and not to exceed three days from the order, another bill of particulars which either by itself or together with any particulars appearing in the indictment so states the particulars as to make it appear that the offense charged was committed by the defendant, or that there is no ground for quashing the indictment, as the case may be.

The trial court found that the evidence provided by the State, i.e., 911 calls that shots had been fired in New Orleans East on the night in question, was insufficient to prove that Kinard committed the crime to which he confessed. The judge held: “I think the defense is right. This is a confession without any sort of evidence of a—the crime actually being committed.”

|BThe ultimate issue of whether a defendant is guilty of the crime with which he is charged is a matter for trial. State v. Guillott, 12-0652, pp. 5-6 (La.App. 4 Cir. 2/20/13), 155 So.3d 551, citing State v. Schmolke, 12-0406, p. 3 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298 (“So long as the facts accepted as true can conceivably satisfy an essential element of the crime, the accused person can be compelled to stand trial for the charge.”).

Kinard argues that Guillot does not apply as that case did not involve a bill of particulars, La. C.Cr.P. art. 485, or an admission by the State that the only evidence of the crime was the defendant’s confession. In Guillot, the defendant was charged as being an accessory after the fact, relative to second degree murder. At a motion to suppress statement hearing, a police officer and a lay witness testified. The trial court found probable cause and denied the motion to suppress; however, the trial court later granted the defendant’s motion to quash.

On appeal, this Court noted that the defendant’s argument was that the State did not prove its case at the hearing on the motion to quash; however, the Court ruled that the issue of Guillot’s guilt was a matter for trial. The Court explained that it reviewed the bill of information and bill of particulars, and accepting the facts alleged therein as true, found sufficient facts which, if found credible by the trier-of-fact, could support a conviction. The Court distinguished State v. Brown, 236 La. 562, 108 So.2d 233 (La. 1959), in that Brown did not involve a motion to |fiquash, but rather a conviction. Here, all of the cases cited by Kinard involve convictions, not motions to quash.

In Guillot, we stated:

In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits.

Guillott, 12-0652, p. 3, 155 So.3d at 553.

By deciding that the evidence presented by the State is insufficient to warrant a conviction, the trial court is improperly weighing the evidence. The trial court’s only duty in regards to a motion to quash is to decide whether or not a crime has been charged. Accordingly, pursuant to Guillot, we find that the trial court erred in granting the motion to quash on corpus delicti grounds.

Motion to Suppress Statements:

In its second assignment of error, the State argues that the trial court erred in granting Kinard’s motion to suppress his statements.

It is well settled that an appellate court reviewing a trial court’s ruling on a motion to suppress applies a clearly erroneous standard to findings of fact, but reviews the trial court’s ultimate decision de novo. State v. Everett, 13-0322, p. 4 (La.App. 4 Cir. 3/26/14), 156 So.3d 705, 709 (citing State v. Dorsey, 00-2331, p. 1 (La.App. 4 Cir. 1/24/01), 779 So.2d 1008-09). As to mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion 17standard, but reviews conclusions to be drawn from those facts de novo. Everett, 13-0322, pp. 4-5, 156 So.3d at 709.

Here, the trial court noted that it was undisputed that Kinard was not Miran-dized as to the January 2, 2016, interview. The trial court next considered whether Kinard was in custody or was free to leave. After reviewing the facts, the trial .court determined that Kinard was indeed subject to a custodial interrogation. The State asserts that Kinard was free to leave at any time.

In State v. Hankton, 12-0466 (La.App. 4 Cir. 4/30/14), 140 So.3d 398, this Court recognized the following guidelines to determine whether a defendant was subject to a custodial interrogation:

The Fourth Amendment to the United States Constitution and Article I, [§ ] 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. A .defendant adversely affected may move to suppress any statement from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. C.Cr.P. art. 703 A. A trial court’s ruling on a motion to suppress the evidence is entitled to great weight, considering the district court’s opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Robinson, 09-1269, p. 6 (La.App. 4 Cir. 5/12/10), 38 So.3d 1138, 1141, citing State v. Mims, 98-2572, p. 3 (La.App. 4 Cir. 9/22/99), 752 So.2d 192, 193-94.
The obligation to provide Miranda warnings attaches only when a person is questioned by law enforcement after he has been taken “into custody or otherwise deprived of his freedom of action in any significant way.” Miranda[ v. Arizona], supra, 384 U.S. [436] at 444, 86 S.Ct. [1602] at 1612[, 16 L.Ed.2d 694 (1966) ]. Custody is decided by two distinct inquiries: an objective assessment of the circumstances surrounding the interrogation to determine whether there is a formal arrest; and, second, an evaluation of how a reasonable person in the position of the interviewee would gauge the breadth of his freedom of action. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994), (citing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983)(per curiam)); State v. Manning, 03-1982, p. 24 (La. 10/19/04), 885 So.2d 1044, 1074 (citations omitted).

12-0466, pp. 12-13, 140 So.3d at 407.

It is undisputed that Kinard did not receive Miranda warnings during the January 2, 2016, interview. He asked the detectives on several occasions if he was free to leave, but the detectives did not acknowledge his requests. We recognize that the detectives told Kinard he was not under arrest; however, after reviewing the interview in its entirety, it is clear that a reasonable person would not have believed that he was free to leave. See State in Interest of W.B., 16-0642, p. 12 (La.App. 4 Cir. 12/7/16), 206 So.3d 974, 979.

The trial court also made a finding that Kinard’s January 2, 2016 statement was involuntary because he can be heard crying during the interview. Although it is quite evident that the defendant is audibly distraught during the questioning, it is insufficient to cause his statement to be involuntary or inadmissible. State v. Lundy, 15-0776 (La.App. 4 Cir. 5/25/16), 195 So.3d 587. However, we find that based upon the totality of the circumstances, the January 2, 2016 interview was a custodial interrogation, and since at no time was Kinard ever read his Miranda rights, the confession was properly suppressed.

In its third assignment of error, the State argues that Kinard’s January 11, 2016 statement was not the fruit of the poisonous tree, and that the trial court erred in relying on Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) to find that 13as the January 2, 2016 statement was not voluntary, the subsequent statement on January 11, 2016 was equally tainted.

Seibert involved a two-stage interview of a murder suspect—the first stage during which the defendant confessed was about thirty minutes long and was conducted without Miranda, warnings; the second stage was twenty minutes later, with Miranda warnings and a signed waiver of rights form. The defendant confessed again. The Supreme Court held that both statements were inadmissible as a midstream recitation of Miranda warnings could not comply with the object of Miranda, i.e., that the suspect is aware that he has a real choice about giving an admissible statement at that point. Seibert, 542 U.S. at 612, 124 S.Ct. at 2610.

We find the holding of Missouri v. Seibert applies only to a narrow set of facts wherein the pre-warning and post-warning statements occur in close proximity in time. In this case, Kinard provided the pre-warning statement on January 2, 2016, and the post-warning statement on January 11, 2016. Given the nine day lapse between his initial statement and the January 11, 2016 statement when he was given his Miranda rights, it is inconceivable that these two statements would be considered as one.

In Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985), the Supreme Court found that an initial confession was inadmissible as Miranda warnings had not been given, but a subsequent confession given after Miranda warnings were given, was admissible as the admission of guilt was voluntary.

Kinard further argues that the trial court should have also suppressed his 1 ^January 11, 2016 statements pursuant to La. R.S. 15:451, because he was under fear, duress, intimidation, menaces, threats, inducements or promises when the officers told him that he was a liar, had no conscience, and was subhuman.

Louisiana Code Criminal Procedure art. 703D provides that the State “shall have the burden of proving the admissibility of a purported confession or statement by the defendant.” Although Kinard sounds distraught during other parts of the interview, he sounds calm when answering the detective’s questions regarding his firing a weapon on New Year’s Eve when he was on parole. Additionally, although the detectives repeatedly ask him if he would submit to a lie detector test, the detectives make no threats, inducements, or promises to him. Kinard does not show that the January 11, 2016 was involuntary pursuant to La. R.S. 15:451.

Finally, Kinard argues that he sought to end questioning during the January 11, 2016 interview by saying, ‘You know what? Is this matter over? Y’all can take me. Because I’m not about to let y’all sit up here and use that, talking about...” He relies on State v. Taylor, 01-1638, p. 6 (La. 1/14/03), 838 So.2d 729, 739, wherein the Court recognized that “[wjhen a defendant exercises his privilege against self-incrimination the validity of any subsequent waiver depends upon whether police have “scrupulously honored” his right to remain silent.” (citing Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). “Whether police have „scrupulously honored’ an accused’s right to silence is determined on a case-by-case basis under the totality of the circumstances.” Taylor, 01-1638, pp. 6-7, 838 So.2d at 739. Our review of the recording in its entirety does not persuade this |nCourt that Ki-nard categorically exercised his right to remain silent. He indicates that he is not going to continue speaking, but he nonetheless continues to speak. He does not ask for an attorney and does not unequivocally state that he will not answer any more questions. We thus find that this argument lacks merit.

CONCLUSION:

For the foregoing reasons, we find that the trial court erred in granting the motion to quash. We further find that the trial court was not manifestly erroneous in suppressing the January 2, 2016 statement; however, we find the trial court erred in suppressing the January 11, 2016 statement. Accordingly, this matter is remanded for further proceedings in accordance with this opinion.

MOTION TO QUASH REVERSED; WRIT GRANTED IN PART, DENIED IN PART

      . Only two interviews are the subject of these proceedings.

      . The Brown court noted that "an extrajudicial confession does not warrant a conviction unless it is corroborated by independent evidence of the corpus delicti."


source: Caselaw Access Project

author: Judge Marion F. Edwards, Pro Tempore

license: Public Domain

text:
    Linda M. POTIER v. MORRIS BART, L.L.C.
    NO. 2016-CA-0879
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 15, 2017

      R. S. lies, P. O. Box 3385, Lafayette, Louisiana 70502, COUNSEL FOR PLAINTIFF—APPELLANT, LINDA M. POTIER
    Judy L. Burnthorn, Melissa M. Lessell, Andrew J. Baer, DEUTSCH KERRIGAN L.L.P., 755 Magazine Street, New Orleans, Louisiana 70130, COUNSEL FOR DEFENDANT-APPELLEE, MORRIS BART, LLC
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore

11 Linda M. Potier sued Morris. Bart, LLC, her former personal injury attorney, for malpractice, contending that it breached the applicable standard of care in connection with its securing of a settlement agreement on her behalf. In response, Morris Bart invoked a binding arbitration clause found within its attorney-client contract with Ms. Potier. In opposing Morris Bart’s request, Ms. Potier argued that the attorney-client contract was adhesionary, and thus unenforceable. The district judge disagreed and stayed Ms. Potter’s malpractice suit on October 9, 2014. Ms. Potier did not seek review of the stay order, and the matter proceeded to arbitration. Ruling against Ms. Potier, the arbitrator concluded that Morris Bart did not breach the applicable standard of care in connection with its representation of Ms. Potier and awarded Morris Bart costs and fees. Soon thereafter, Morris Bart moved to confirm the arbitt’ation award in the district court in accordance with La. R.S. 9:4209. The district judge granted the motion over Ms. Potter’s opposition and signed a final judgment on June 13, 2016, that, among other things, confirmed lathe arbitration award and dismissed Ms. Potier’s claims against Morris Bart with prejudice.

Ms. Potter timely filed a motion for de-volutive appeal from the June 13, 2016 judgment and now asserts that the arbitration award should not have been confirmed because it was error to initially stay the proceedings and send the matter to arbitration. In other words, Ms. Potter seeks to upend the arbitration award by securing a reversal of the October 9, 2014 judgment that stayed the proceedings. We observe, however, that the grounds upon which a district judge may refuse to confirm an arbitration award are statutorily restricted, and that Ms. Potier’s proffered error is not found among those grounds that are listed in La. R.S. 9:4210. We, additionally, observe that Ms. Potier’s grounds for reversing the October 9, 2014 judgment, ie., that she is functionally illiterate and was thus incapable of appreciating the terms of the retainer agreement, were not argued before the district judge at the time she opposed the motion to stay. Generally, issues not raised in the district court will not be given consideration for the first time on appeal. See Rule 1-3, Uniform Rules-Courts of Appeal, Scott v. Zaheri, 2014-0726, p. 14 (La.App. 4 Cir. 12/3/14), 157 So.3d 779, 788. Therefore, we will not consider Ms. Potier’s functional illiteracy argument in connection with our review of the district judge’s stay order. We have, nevertheless, reviewed the order and conclude that the district judge did not abuse her discretion when she ordered this matter stayed. We, therefore, affirm the June 13, 2016 judgment that confirmed the arbitration Raward and dismissed Ms. Potier’s suit with prejudice. We now explain our decision in more detail.

I

We first discuss this matter’s factual and procedural histories. Ms. Potter suffered injury in a December 26, 2011 automobile accident. Her first response, however, was not to contact an attorney. Instead, Ms. Potter first contacted the insurer for the other driver and notified it of her liability claim. She also settled her own property damage claim. And, Ms. Potter further contractually increased the uninsured motorist coverage limits on her own automobile policy after discovering that they were less than she had thought them to be.

Ms. Potter then contacted Morris Bart, who had represented her in connection with personal injury claims on two prior occasions. She spoke with a Morris Bart attorney who discussed with her the retainer agreement, HIPPA forms, and all of the documents Ms. Potter would subsequently receive. Soon thereafter, one of Morris Bart’s non-attorney investigators met with Ms. Potter at her home to secure her signature on the retainer agreement and medical release paperwork. Once the retainer agreement was signed, Ms. Potier’s case was assigned to Raynique Williams, one of Morris Bart’s staff attorneys, who contacted Ms. Potter by telephone on January 24, 2011, the same day she signed the retainer agreement. Notably, Ms. Potier’s retainer agreement contains an arbitration clause.

Ms. Potier’s case was subsequently settled in mediation on June 27,2013. According to the terms of settlement, Ms. Potter received $30,000, i.e., the policy’s limits, from the other driver’s liability insurer and $15,000 in uninsured motorist coverage from Great American, her own insurer. Ms. Williams was also able to persuade Great American, which was also Ms. Potier’s occupational disability provider, to waive its subrogation claim against the settlement, which ensured that Ms. Potier would still be able to pursue her occupational claims against Great American.

On April 30, 2014, Ms. Potier filed suit against Morris Bart claiming that it had breached the applicable standard of care for attorneys in negotiating her settlement. Morris Bart responded by filing a motion to stay pending arbitration, Ms. Potier opposed the motion, which the district judge set for an evidentiary hearing. Although Ms. Potier provided the district judge with an opposition memorandum, she presented no evidence or testimony in support of her argument that the retainer agreement was adhesionary, and thus unenforceable. Morris Bart, however, elicited testimony from Ms. Williams about the signing of the retainer agreement and her representation of Ms. Potier. The district judge granted the motion at the close of the hearing and subsequently signed the stay order on October 9, 2014.

Ms. Potier did not seek supervisory review of the stay order, and the matter proceeded to arbitration. The parties engaged in extensive discovery over the next | ¿fifteen months. The process was capped by a two-day arbitration proceeding wherein seven witnesses testified and forty-nine exhibits were introduced. Ms. Potier, notably, never testified that she did not understand the retainer agreement or that she was forced to sign it. Rather, she acknowledged her signature on the retainer agreement. Following the proceeding, the arbitrator issued an opinion on March 3, 2016, wherein he concluded that Ms. Williams had “met the standard of care required of a Louisiana attorney in representing” Ms. Potier. He also noted that Ms. Williams had properly communicated “relevant legal considerations to Ms. Potier upon which she made an informed and binding decision.” Morris Bart moved to confirm the arbitration award shortly thereafter. Ms. Potier did not oppose the motion to confirm via one of the statutorily listed bases. See La. R.S. 9:4210. Instead, Ms. Potier attacked the October 9, 2014 stay order on the grounds that she was functionally illiterate and could not appreciate the legal contours of the retainer agreement at the time she signed it. The district judge granted Morris Bart’s motion, confirmed the arbitration award, and dismissed Ms. Potier’s claims with prejudice on June 13,2016.

Ms. Potier timely filed a motion for devolutive appeal from the June 13, 2016 confirmation judgment. On appeal, she contends, in her sole assignment of error, that the district judge erred in granting the October 9, 2014 stay order. | (¡Having reviewed the record, however, we conclude that the district judge did not err when she stayed Ms. Potter’s lawsuit or confirmed the arbitration award. We now explain our reasoning in more detail.

II

We address first Ms. Potter’s challenge to the district judge’s October 9, 2014 stay order. The determination as to whether to stay or compel arbitration is a question of law. See Regions Bank v. Weber, 10-1169, p. 3 (La.App. 4 Cir. 12/15/10), 53 So.3d 1284, 1286. Appellate review of questions of law is simply to determine whether the trial court was legally correct or incorrect. See Bolden v. FedEx Ground Package System, Inc., 10-940 (La.App. 4 Cir. 2/16/11), 60 So.3d 679, 685. Thus, we give no deference to a district judge’s decision on a matter of law. See Goodrich Petroleum Co., LLC v. MRC Energy Co., 13-1435, p. 13 (La.App. 4 Cir. 4/16/14), 137 So.3d 200, 207.

Ms. Potter, at this juncture, argues that the district judge erred in staying the proceedings because she is functionally illiterate, and was thus incapable of understanding the ramifications of the retainer agreement and its arbitration clause at the time she signed it. She, however, did not assert this claim at the show-cause hearing on Morris Bart’s motion to stay. We, therefore, forego discussing this argument because Ms. Potter failed to present it first to the trial court. See Rule 1-3, Uniform Rules-Courts of Appeal; Scott v. Zahen, 14-0726, p. 14 (La.App. 4 Cir. 12/3/14), 157 So.3d 779, 88; Rousset v. Smith, 14-1409, p. 10 (La.App. 4 Cir. 9/23/15), 176 So.3d 632, 639. On the other hand, Ms. Potter opposed the stay request on the grounds that the retainer agreement, and thus its arbitration clause, is adhesionary. In the interests of justice, we examine her assignment of error on this basis.

Arbitration is favored under both the Louisiana and the United States jurisprudence. Regions Bank, 10-1169, p. 3, 53 So.3d at 1286. In Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 03-1662, p. 8 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 387, we stated:

Louisiana courts have recognized a strong presumption in favor of arbitration. Moore v. Automotive Protection Corp., 97-0623, p. 2 (La.App. 4 Cir. 5/21/97), 695 So.2d 550, 551 ... Both the federal and state jurisprudence hold that any doubt as to whether a controversy is arbitrable should be resolved in favor of arbitration.

The Louisiana Supreme Court in International River Center v. Johns-Manville Sales Corp., 02-3060, p. 6 (La. 12/3/03), 861 So.2d 139, 143, acknowledged that the arbitration statute requires that a lower court shall order arbitration “once [the court] finds that there has been an agreement to arbitrate and a failure to comply therewith.” Put differently, the “threshold inquiry a court must decide is whether the parties agreed to arbitrate their dispute, which is a two-fold inquiry: (1) whether there is a valid arbitration agreement, and (2) whether the dispute in question falls within the scope of that agreement ... Under the FAA, any doubt concerning the scope of which disputes are arbitrable should be resolved in favor of arbitration.” Saavedra v. Dealmaker Developments, LLC, 08-1239, p. 7 (La.App. 4 Cir. 3/18/09), 8 So.3d 75, 763 (internal citations omitted). See also Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

The Louisiana statutory provisions for arbitration include La. R.S. 9:4201, which provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

La. R.S. 9:4202 provides:

If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance' with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration, (emphasis added)

The Supreme Court, in Aguillard v. Auction Management Corp., 04-2804, p. 7 (La. 6/29/05), 908 So.2d 1, 7 interpreted La. R.S. 9:4202, stating “that if any suit or proceedings are brought upon any issue referable to arbitration, the court in which suit is pending shall stay the trial of the action pending arbitration.” (emphasis added). “Accordingly, even when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration.” Aguillard, 04-2804 at 908 So.2d at 25. “The weight of this presumption is heavy and arbitration should not be denied |flunless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue.” Id. Louisiana’s statutory provisions echo the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and Louisiana courts look to federal law in interpreting the Louisiana arbitration statutes. Firmin v. Garber, 353 So.2d 975, 977 (La. 1977); Regions Bank, 10-1169, p. 5, 53 So.3d at 1286.

The arbitration clause in the retainer agreement at issue provides:

Arbitration of Attorney/Client Disputes
(What happens when you are dissatisfied)
In the event of a dispute between you and MB, LLC and/or any of its employees regarding the interpretation of the terms herein, including but not limited to the management of your case, or any aspect of the attorney-client relationship, including claims of malpractice, you ' and MB, LLC agree that any such dispute shall be resolved by arbitration pursuant to LSA-R.S. 9:4201, et seq. (Others whose interest [sic] are involved may join as a-party in the arbitration so that the entire matter may be resolved at one time.) The parties agree by signing the Retainer Agreement to submit all such disputes to arbitration and any such award made will be as final as court judgment, subject to a strictly limited appeal.
Please be advised that by your agreement to arbitrate any and all future claims and/or disputes against us, you waive your right to a jury trial on those matters subject to arbitration. Further, you are advised that you have a right to independent representation to advise you before you sign this agreement. In the event of a dispute, you must file a demand for arbitration with Mediation Arbitration Professional Systems, Inc. (“MAPS”), which arbitration shall be conducted according to the Rules of Mediation Arbitration Professional Systems, Inc. and by a single arbitrator.

Our examination of the clause indicates that its scope includes the dispute between Ms. Potier and Morris Bart. But, as noted, Ms. Potier argued that the retainer agreement in this case was an adhesionary contract. Although the FAA applies to this contract, Louisiana law governs questions of enforceability and 1 invalidity of the contract itself. See Simpson v. Pep Boys-Manny Moe & Jack, Inc., 03-0358, p. 5 (La.App. 4 Cir. 4/10/03), 847 So.2d 617, 622. Louisiana courts have found that “[generally speaking, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party.” Simpson, 03-0358, p. 5, 847 So.2d at 622. In Golz v. Children’s Bureau of New Orleans, Inc. 326 So.2d 865, 868 (La. 1976), the Louisiana Supreme Court found that contracts of adhesion, which are often in small print, “sometimes raise a question as to whether or not the weaker party actually consented to the terms” but such contracts are not per se unenforceable. See also Simpson, 03-0358, p. 5, 847 So.2d at 622.

Having reviewed the retainer agreement in its entirety, with special focus on its arbitration clause, we conclude that the district judge did not err when she refused to conclude that it is adhesionary. First, neither the retainer agreement nor the arbitration clause, as signed by Ms. Potier, were in small print; rather, both are in identical standard type. Second, Ms. Potier clearly had the option of not signing the agreement and retaining another attorney if she did not wish to be bound to arbitration. Third, the terms of the arbitration agreement are neither unduly burdensome nor extremely harsh. The agreement specifies that all disputes between Ms. Potier and Morris Bart will be resolved by arbitration. Notably, Morris Bart did not except in its favor any claims between it and Ms. Potier from arbitration. It, therefore, bound itself to the terms of the arbitration clause equally |nwith Ms. Potier, The district judge, accordingly, did not err, when it stayed Ms. Potter’s claim and ordered that the matter be arbitrated.

Ill

We now explain why we affirm the judgment that confirmed the arbitrator’s award. We begin with the important premise that arbitration awards are presumed to be valid. See Dicorte v. Landrieu, 08-0249, p. 3 (La.App. 4 Cir. 9/10/08), 993 So.2d 799, 801. A district judge may not vacate an arbitrator’s award unless specifically authorized by statute. La. R.S. 9:4210 provides for four exclusive instances' in which a district judge “shall issue ah order vacating the award”:

A. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

An arbitration award, therefore, must be confirmed by a district judge unless the challenging party establishes the presence of at least one of these four statutory grounds. See Johnson v. 1425 Dauphine, L.L.C., 10-0793, p. 7 (La.App. 4 Cir. 12/1/10), 52 So.3d 962, 967. The burden of proof in such a proceeding, therefore, | ii>is on the party attacking the arbitrator’s award. See Carter v. Holdman, 11-1473, p. 4 (La.App. 4 Cir. 5/23/12), 95 So.3d 560, 563.

. A district judge’s review of an arbitration award is extraordinarily narrow. See FIA Card Services, N.A. v. Smith, 44,923, p. 7 (La.App. 2 Cir. 12/22/09), 27 So.3d 1100, 1106. A reviewing court may neither substitute its own judgment for that of the arbitrator nor review the merits of an arbitration award. See Southern Tire Services, Inc. v. Virtual Point Development, Inc., 00-2301, p. 4 (La. App. 4 Cir. 9/26/01), 798 So.2d 303, 306. “An appellate court makes a de novo review of a district court judgment confirming or vacating an arbitration award.” Goodrich, 13-1435, p. 12, 137 So.3d at 207. A district court’s ruling confirming or vacating an arbitration award, therefore, is a legal issue.

In this case, as noted, Ms. Potier’s challenge to the arbitrator’s award was based on none of Section 4210’s exclusive bases, but instead upon the assertion that the district judge erred in granting Morris Bart’s motion to stay. This assertion is not within Section 4210’s ambit.' Ms. Potier, accordingly, did not present the district judge with any statutorily sanctioned ground upon which to vacate the arbitrator’s award. In light of the statutory and jurisprudential law governing the confirmation of arbitration awards, we cannot say that the district judge erred in confirming the March 3, 2016 arbitration award.

DECREE

We affirm the district court’s judgment of October 9, 2014, which stayed Ms. Potier’s claim and ordered that the matter be arbitrated. We, likewise, affirm |T;ithe district court’s judgment of June 13, 2016, which confirmed the March 3, 2016 arbitration award, and dismissed with prejudice Ms. Potier’s claims.

AFFIRMED

      . The investigator also provided Ms. Potter with a letter which explained that he was not an attorney and that she was to notify the investigator if she had any questions and that the investigator would then immediately contact one of Morris Bart’s on-duty attorneys for assistance.

      . Another attorney, who had been referred to Ms. Potier by Morris Bart, subsequently settled this claim for $90,000.

      . We do not think it fatal to Ms. Potier’s appeal that her assault on the confirmation award is premised upon interlocutory error. It is well settled that although an interlocutory judgment may not itself be immediately appealable, it is nevertheless subject to review by an appellate court when a judgment is rendered in the case that is appealable. See Wallace C. Drennan, Inc. v. City of New Orleans, 10-1301, p. 2 (La.App. 4 Cir. 4/27/11), 65 So.3d 705, 706; La. C.C.P. art. 1915 B(2); see also, e.g., Phillips v. Gibbs, 10-0175, p. 4 (La.App. 4 Cir. 5/21/10), 39 So.3d 795, 798. “When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment." Roger A Stet-ter, Louisiana Civil Appellate Procedure, § 3:32 (2010-2011 ed.). Here, Ms. Potier’s motion for devolutive appeal clearly indicates that she seeks to appeal the June 13, 2016 judgment, which is unquestionably final and appealable. See La. C.C.P. art. 1841; La. R.S. 9:4215.


text:
    STATE of Louisiana v. Kenneth JONES
    NO. 2015-KA-0956
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 22, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, PARISH OF ORLEANS, DISTRICT ATTORNEY’S OFFICE, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE, STATE OF LOUISIANA
    Jane Hogan, HOGAN AND HOGAN, 309 E. CHURCH STREET, Hammond, LA 70401, COUNSEL FOR DEFENDANT/APPELLANT, KENNETH JONES

      (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore

I,An Orleans Parish jury convicted Kenneth “Bud” Jones, as charged, of two counts of attempted second degree murder and one count of being a felon in possession of a firearm, resulting from a drive-by shooting. The trial judge sentenced him to twenty-five years on each count of attempted second degree murder, and twenty years on the remaining count. After Mr. Jones admitted his status as a second felony offender, the trial judge vacated the previous sentences and resentenced him to one hundred years on each count of attempted second degree murder and twenty years on the felon in possession of a firearm count.

Mr. Jones now appeals and raises six assignments of error pertaining to his convictions and one assignment of error in relation to his sentences. After reviewing his arguments, the record, and applicable law, we affirm the defendant’s convictions and sentences. We explain our decision in greater detail below.

I

We begin with a recitation of the facts in this case, as adduced by the prosecution at trial, as well as the relevant procedural history.

I2A

In 2009, concerned with an increase in drug-related violence, the Federal Bureau of Investigation (“FBI”) launched the Ninth Ward Initiative, a joint task force comprised of various federal and local law enforcement agencies, including the Bureau, the New Orleans Police Department (“NOPD”), and the Louisiana State Police. Over the course of its investigation, the FBI identified two rival groups from the Lower Ninth Ward, the Back of Town and the Park Boys, which were primarily responsible for the drug trade and related violence in the area. The victims in this case, Merlin Smothers and Jeremiah Harris, are associated with the Park Boys, and the defendant, Kenneth “Bud” Jones, is associated with Back of Town.

On November 22, 2011, Merlin and Mr. Harris were driving in New Orleans when a blue Monte Carlo pulled up behind them and an individual standing through the sunroof began shooting at them with an assault rifle. Mr. Harris was shot in the neck but survived; Merlin was unharmed. The Monte Carlo was spotted at the scene and attempted to flee from police. After a brief chase, the Monte Carlo crashed and police apprehended the driver, Eugene Brashears, who was the only person in the vehicle at that time. Police collected two red hats from the car but did not find a gun. The driver was not charged as the shooter.

| ^Although both Merlin and Mr. Harris gave statements to NOPD investigators that the shooter was a black male with a red hat, neither identified the shooter to police and no suspect was arrested at that time.

The FBI subsequently arrested Merlin and Mr. Harris in the course of a drug trafficking investigation. In an apparent attempt to curry favor with federal prosecutors, both men identified “Bud,” the defendant, as the shooter on November 22, 2011. Merlin disavowed those statements at the defendant’s trial, claiming he never implicated Mr. Jones as the shooter in this or any other crime. Mr. Harris maintained that his statements to the FBI were correct and that Mr. Jones was the person who shot him.

On December 2, 2011, the NOPD conducted aerial and ground surveillance on the defendant’s associates in the hopes of locating Mr. Jones. In the course of surveillance, NOPD officers identified from aerial recordings a person who they believed to be the defendant, riding with another person in a white Dodge pickup truck. Officers followed the truck, and observed an occupant hastily exit the vehicle carrying what appeared to be an assault rifle. Investigators subsequently retrieved a discarded AK-47 from the area. Forensic testing revealed Mr. Jones to be the major contributor of DNA material on the firearm and ballistics testing confirmed that the casings found were fired from the recovered AK-47.

A grand jury indicted Mr. Jones for two counts of attempted second degree murder and one count of possession of a firearm as a convicted felon.

_|¿J3

Mr. Jones raises seven assignments of error in this appeal. First, he claims the trial judge erred by overruling a Batson challenge lodged by the defense. Relatedly, he claims that the trial judge erred by sustaining the prosecution’s reverse Bat-son challenge. Third, Mr. Jones alleges that the failure to record eighteen bench conferences violates his constitutional rights to a complete appellate record. Next, he argues that the trial court erred by allowing the prosecution to introduce prejudicial other crimes evidence. Fifth, he claims that the evidence was insufficient to support his convictions. Sixth, Mr. Jones claims the prosecutor’s remarks in closing argument, which referenced the lack of a confession, violated his constitutional right against self-incrimination. Finally, the defendant argues that his concurrent 100-year sentences are constitutionally excessive.

We address each assignment of error in the Parts that follow.

II

In this Part, we begin by addressing Mr. Jones’s sufficiency of evidence claim. See State v. Marcantel, 00-1629 (La. 4/3/02), 815 So.2d 50, 55 (“When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, we first determine the sufficiency of the evidence.”) (citing State v. Hearold, 603 So.2d 731, 734 (La. 1992)).

JfiA

The standard of review for sufficiency of evidence applicable to criminal convictions is set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The inquiry requires a reviewing court to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

There are several key principles to a sufficiency review. First, we examine all the evidence considered by the jury, including evidence which may have been erroneously admitted. See Hearold, 603 So.2d at 734. Second, all the evidence is viewed in the light most favorable to the prosecution. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; State v. Clements, 15-0630, p. 7 (La.App. 4 Cir. 5/4/16), 194 So.3d 712, 717. Thus, we may consider all reasonable inferences from the evidence which the fact-finder could have made. See id.

Finally, as a reviewing court, we are highly deferential to the findings of the trier of fact. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; State v. Armstead, 14-0036, p. 11 (La.App. 4 Cir. 1/28/15), 159 So.3d 502, 512. A jury may accept as true the testimony of any witness, even a single witness, and find such testimony sufficient to establish each essential element beyond a reasonable doubt. See Clements, at p. 7, 194 So.3d at 717. And, we will only tread on a jury’s presumed acceptance of a witness’s testimony when that testimony is implausible or clearly contrary to the evidence. See State v. Mussall, 523 So.2d 1305, 1311 (La.1988); Armstead, at p. 12, 159 So.3d at 512. See also State v. Macon, 06-481, p. 8 (La. 6/1/07), 957 So.2d 1280, 1285 (“A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review.”).

B

Mr. Jones was convicted of two counts of attempted second degree murder and one count of being a felon in possession of a firearm. The prosecution had to therefore prove that Mr. Jones had the specific intent to kill the victims, demonstrated by commission of an overt act that tends toward the accomplishment of the victims’ death. See La. R.S. 14:30.1; La. R.S. 14:27. Additionally, the prosecution had to prove that Mr. Jones 1) possessed a firearm; 2) was previously convicted of an enumerated felony; 3) possessed the firearm within ten years of the previous conviction; and 4) had the general intent to commit the crime. See La. R.S. 14:95.1; State v. Scott, 13-0321, p. 8 (La.App. 4 Cir. 2/26/14), 136 So.3d 383, 389.

C

Construing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could conclude that Mr. Jones was guilty beyond a reasonable doubt of two counts of attempted second degree murder and of being a felon in possession of a firearm.

1

Jeremiah Harris testified that in 2013, he entered into a plea bargain with federal authorities, pleading guilty to distribution of heroin and conspiracy to |7distribute heroin in exchange for leniency during sentencing. He testified that the “No. 1 rule” of the plea bargain was that he “tell the truth, nothing but the truth” at trial. Mr. Harris stated that if he was not truthful about this incident (and others), the plea bargain would be void.

Mr. Harris testified that when the shooting started on November 22, 2011, he turned to look behind him and saw “Bud” standing outside of the sunroof of a car firing at them with an AK-47. He described Mr. Jones as wearing a red hat and stated that he was “100 percent sure” that the defendant was the shooter. Mr. Harris stated there was nothing obstructing his view of Mr. Jones. He admitted that he had been drinking cough syrup to get high only a short time prior, but denied that it had impaired his ability to identify his shooter. Mr. Harris testified that he did not reveal the defendant’s identity when questioned by the NOPD because he wanted to retaliate against Bud without police involvement. He stated that Merlin was also aware Mr. Jones was the perpetrator.

The prosecution presented evidence that Back of Town and Park Boys were engaged in a long-running deadly feud. It likewise demonstrated that Mr. Jones aligns with Back of Town, while the victims align with Park Boys. Further, the evidence showed that Mr. Jones had attempted to kill Merlin in a prior incident and had warned Mr. Harris to “watch who you are around.” Coupled with the defendant’s act of shooting an AK-47 several times into the victims’ vehicle, we find that the prosecution presented sufficient evidence of specific intent to kill and demonstrated an overt act in furtherance of the victim’s death.

|sMr. Jones cites Merlin’s trial testimony, wherein he denied identifying the defendant as the shooter to the FBI, to support his argument that the evidence is insufficient. Two FBI agents, however, Agent Christopher DiMenna and Agent Crystal Bender, testified that Merlin implicated Mr. Jones as the shooter in this incident, in addition to several others. Agent DiMenna also testified that he took a statement from Mr. Harris implicating the defendant as the shooter. As noted above, witness testimony will be upheld unless it is implausible or clearly contrary to the evidence. See Mussall, 523 So.2d at 1311; Armstead, at p. 12, 159 So.3d at 512. Clearly, the jury found Mr. Harris’s testimony and the testimony of the FBI agents more credible than that of Merlin Smothers. We see no reason to disturb this finding.

2

As to the conviction for possession of a firearm by a convicted felon, the defense stipulated that Mr. Jones had a prior felony conviction for possession of cocaine in 2008, which is an enumerated offense under the statute and well within the ten-year cleansing period. See La. R.S. 14:95.1 A. Thus, the prosecution only needed to prove that Mr. Jones possessed the firearm. See State v. Gaubert, 15-0774, p. 9 (La.App. 4 Cir. 12/9/15), 179 So.3d 982, 988-89 (“In general intent crimes, criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal.”) (internal quotation marks omitted) (citing State v. Oliphant, 12-1176, p. 12 (La. 3/19/13), 113 So.3d 165, 172).

|flThe evidence at trial revealed that on December 2, 2011, the NOPD conducted an aerial and ground surveillance operation in an attempt to locate Mr. Jones. A person matching the defendant’s description was seen riding in a white Dodge pickup with one other person. Based on the recorded aerial surveillance, the two subjects then ran from the vehicle carrying what appeared to be an assault rifle. NOPD subsequently recovered an AK-47 from the area. Forensic testing revealed Mr. Jones as the major contributor of DNA on the firearm, with a one in 10.5 quintillion probability that the DNA came from a person other than the defendant. Moreover, ballistics analysis matched the casings recovered from the scene to the firearm with Mr. Jones’s DNA.

Mr. Jones points out that no one, law enforcement or otherwise, positively identified him as being present or carrying an assault rifle on December 2nd. He also cites testimony given by Jonathan Alexander, an associate of Mr. Jones and a member of Back of Town, where Mr. Alexander testified that he was in possession of the firearm that day, and that it belonged not to the defendant, but to his friend Chris Williams, who is now deceased. He further testified that Mr. Jones was not present with him that day. On cross-examination, Mr. Alexander admitted that, at the time of trial, he was charged with second degree murder and that he and Mr. Jones were housed in the same tier at Orleans Parish Prison.

We acknowledge that Mr. Jones was not definitively identified as having actually possessed the recovered AK-47 on December 2, 2011. We find, however, |inthe fact that his DNA was found on the firearm as the major contributor, and that the same firearm was linked to the instant shooting where he was identified as the perpetrator, is sufficient to satisfy the essential element of possession.

Ill

We turn now to address the defendant’s Batson claims.

A

Following voir dire of the first jury panel, the defense raised a Batson challenge, based on the prosecutor’s use of peremptory challenges to strike “thus far four African-Americans out of five” from the jury pool. The following colloquy then occurred:

The Court: What is your response?
Mr. Napoli [prosecutor]: My first response would be that there is two African-Americans that we are going to keep on the Jury. The second response would be that of all the cuts used by Defense counsel, they are all on white Jurors. The third response, as to Ms. Hills, Judge, is that, first, she is an educator and is—I had some concern when I asked her about her prior Jury service. First she didn’t say anything, and then she couldn’t give us any details about the type of crime, when it took place or anything like that.”
The Court: I will note for the record that of the five challenges the State has exercised, one of them is a white male. So, per se, it is not satisfied and I accept the State’s response as to the challenge, in addition to that.
Mr. Daniels [defense counsel]: Note our objection.

Following voir dire of the second panel, the prosecutor raised a “reverse-Batson ” challenge, based on the defense’s use of all ten peremptory challenges to strike white prospective jurors. See State v. Nelson, 10-1724, p. 8 (La. 3/13/12), 85 So.3d 21, 28 (“[T]he state may invoke Batson where a black criminal defendant exercises peremptory challenges against white prospective jurors.”). The trial judge then stated “I’m noting that the State has satisfied that first level, they are all |nwhite.” The judge also noted that a majority of the stricken prospective jurors had left; she thus asked the defense to provide reasons for striking the remaining three, Jurors Feigel, Luke, and Laughlin. Mr. Jones complains only about Mr. Feigel on appeal. The following colloquy occurred between defense counsel and the trial judge:

Mr. Daniels: I’m striking Mr. Eiegel, Your Honor, because Mr. Fiegel didn’t talk much and I think Mr. Washington didn’t really question him that much. The only thing I know about him is that he is a disc jockey at a radio station. I don’t know what kind of radio station that is, Through our error, we didn’t ask him any—-we didn’t get a feel for—one way or another, I struck him because he wasn’t very talkative.
$ ⅜ ⅜
The Court: You have satisfied your race neutral basis for Jurors Luke and Laughlin. I am not satisfied with your response as to Mr. Fiegel. Batson challenge is granted as to Juror No. 28, Mr. Fiegel. He is part of this Jury.

B

Mr. Jones first claims that at the time he lodged his Batson challenge, the trial judge erred by failing to require the prosecution to submit race-neutral reasons after implicitly finding that the defense made a prima facie showing. Specifically, he argues that because the trial judge asked the prosecutor for a response, a prima facie case had been established. As to the prosecutor’s Batson challenge, Mr. Jones claims that the trial judge erred by improperly shifting the burden to the defense rather than keeping it with the proponent of the strike, the prosecution.

Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a violation of the Equal Protection Clause occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of that person’s race. See also La. C.Cr.P. art. 795. A Batson analysis involves three steps. First, the party raising the challenge must make a prima facie case of racial discrimination, which is established when three 112elements are shown: 1) the challenge was directed at a member of a cognizable group; 2) the challenge was peremptory rather than for cause; and 8) there are circumstances sufficient to raise an inference that the prospective juror was struck on account of race. See Batson, 476 U.S. at 96, 106 S.Ct. 1712; see also State v. Williams, 13-0283, p. 16 (La.App. 4 Cir. 9/7/16), 199 So.3d 1222, 1232.

If a prima facie showing is made, the burden shifts to the proponent of the strike to articulate a race-neutral explanation for the challenge. See Foster v. Chatman, 578 U.S. -, -, 136 S.Ct. 1737, 1747, 195 L.Ed.2d 1 (2016) (citing Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008)). Third, in light of the parties’ submissions, the trial court must then determine if the opponent of the strike has carried the burden of showing purposeful discrimination. See id.; Nelson, 10-1724, at p. 9, 85 So.3d at 29.

1

With regard to Mr. Jones’s first claim, it is true that the Louisiana Supreme Court has held that when a trial judge demands that a prosecutor justify his use of peremptory strikes with race-neutral reasons, that is tantamount to making a prima facie finding under step one of Batson. See State v. Green, 94-0887, pp. 24-25 (La. 5/22/95), 655 So.2d 272, 288. We note, however, the trial judge did not specifically ask the prosecutor to justify his use of peremptory strikes, nor did she state that she wanted race-neutral reasons. Furthermore, when the trial judge’s statement “per se, it is not satisfied” strongly suggests she did not find that the defense had established a prima facie case of racial discrimination, especially because she prefaced this statement by noting that the prosecutor’s peremptory | ^challenges were not entirely directed at African-Americans. ‘When the district court finds the defendant failed to establish a prima facie case of discrimination (step one), the Bat-son analysis terminates; the burden of production ‘never shifts to the prosecutor to articulate neutral reasons (step two).’” Williams, at p. 25, 199 So.3d at 1238-39. And, we are not convinced that the trial judge’s request for a response from the prosecutor, while perhaps not keeping within the confines of a Batson analysis, constituted a demand for race-neutral reasons such that the burden would shift to the state. Cf. State v. Bender, 13-1794, pp. 3-4 (La. 9/3/14), 152 So.3d 126, 129 (“[T]he District Court asked the State to articulate race-neutral reasons for its challenged peremptory strikes....”); Green, at p. 24, 655 So.2d at 288 (“[The trial court] immediately moved to the second step and ordered the prosecutor to justify his use of peremptory strikes against black prospective jurors with race-neutral reasons.”).

2

As to the prosecutor’s Batson challenge, it is clear that the trial judge found that the prosecution established a prima facie case by her statement “the State has satisfied that first level....” The judge then proceeded to step two of the Batson analysis by asking defense counsel to provide race-neutral reasons as to Juror Fiegel. We note that the reasons provided by the defense, as quoted above, were facially race-neutral. See Nelson, 10-1724, at p. 11, 85 So.3d at 30 (“Unless a discriminatory intent is inherent in the striking party’s explanation, the reason |14offered will be deemed race-neutral.”) (citing Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)).

Step three of the Batson analysis requires the trial judge “to assess the plausibility of [the proponent’s] reason in light of all evidence with a bearing on it.” Miller-El v. Dretke, 545 U.S. 231, 251-52, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). In determining whether the party objecting to the strike has shown purposeful discrimination, we acknowledge that “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” State v. Harris, 15-0995, p. 4 (La. 10/19/16), 217 So.3d 255, -, 2016 WL 6123605 (quoting Purkett, 514 U.S. at 768, 115 S.Ct. 1769). We also note that the denial of a peremptory challenge does not always implicate constitutional rights, and in cases where the jury is ultimately composed of qualified and unbiased individuals, automatic reversal will not necessarily be required. See Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009). And, because a trial court’s determination of whether discriminatory intent is present rests largely on credibility determinations, its factual findings are entitled to great deference by the reviewing court. See State v. Jacobs, 99-0991, p. 4 (La. 5/15/01), 803 So.2d 933, 938 (citing Batson, 476 U.S. at 98, n. 21, 106 S.Ct. 1712).

The trial judge’s succinct statement that she was “not satisfied” with defense counsel’s reasons may appear to have imper-missibly shifted the burden onto the defense to rebut the prosecutor’s prima facie case. We are convinced, however, that the trial judge “assessed] the plausibility of [the defense’s] reason in light of all [the] evidence,” and, in essence, determined that the prosecution had carried its | ¿burden. Miller-El, 545 U.S. at 251-52, 125 S.Ct. 2317. Although the trial judge may not have adhered to the precise mechanics of a Batson analysis, we find that her ultimate ruling, which seated Juror Fiegel, did not render the jury unqualified or biased. We thus cannot say, based on the record before us, that the circumstances presented here warrant automatic reversal of Mr. Jones’s convictions. See Rivera, 556 U.S. at 160, 129 S.Ct. 1446 (An error is “structural,” therefore requiring automatic reversal “only when the error necessarily renders a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.”) (internal quotation marks and brackets omitted).

IV

In this Part, we turn to address the defendant’s Prieur claims.

A

The prosecution filed a pre-trialPrieur Notice, seeking to introduce evidence of Mr. Jones’s gang affiliation, specifically, evidence that Mr. Jones was the perpetrator in four other drive-by shootings in 2011, all committed with an assault rifle where members of the Park Boys were intended targets. Mr. Jones was neither convicted nor arrested in connection with the shootings. After a pretrial hearing at which Agent DiMenna testified, the trial judge ruled the evidence admissible to show Mr. Jones’s intent, motive, preparation, plan, and opportunity |1Band found it would assist the jury in understanding the background and complexities of the case.

B

Here, we summarize the other crimes evidence presented at trial:

May 2011 Incident

Detective Matthew White testified that he responded to a complaint of gunshots fired at Bonart Park in the Ninth Ward on May 24, 2011. Det. White received information that the perpetrator was driving a green Toyota Camry, which had fled the scene. The shell casings found at the scene were determined to be a caliber used with an AK-47 assault rifle.

FBI Agent James Ollinger testified that he interviewed Kendrick Smothers, a victim of a gang-related shooting and also an associate of Back of Town. According to Agent Ollinger, Kendrick had a verbal altercation with a member of the Park Boys, Peter Santiago, on May 24, 2011. Mr. Santiago ended the altercation by telling Kendrick he would “be waiting at the park for you armed with an AK.” Kendrick then contacted the defendant, relayed the altercation, and told him to go to Bonart Park and shoot Mr. Santiago. Agent Ollinger testified that Kendrick confirmed that Mr. Jones did fire shots into the park and was also driving a green Toyota Camry at the time.

When Kendrick Smothers testified, he admitted that Mr. Jones was his close childhood friend and that he and Peter Santiago did have a verbal altercation on |17May 24th. He denied, however, telling Agent Ollinger that he had told Mr. Jones to shoot up the park and that Mr. Jones was driving a green Toyota Camry.

May 27, 2011 Incident

Det. Kurt Coulon testified that on May 27, 2011, he responded to a shooting in the Lower Ninth Ward. The victim, Corey Cel-estine, had been shot twice. Det. Coulon testified that Mr. Celestine was not cooperative and would not relay any information about the shooter to police. He also testified that 31 shell casings from an AK-47 were retrieved at the scene.

Agent DiMenna later testified that the FBI targeted Devin Morgan because he was a member of the Park Boys but was also close with Back of Town members and thus likely to have information on both gangs. When Mr. Morgan was arrested for distributing heroin, Agent DiMenna took a statement from him wherein he identified the defendant as a member of Back of Town and the shooter of Corey Celestine on May 27, 2011. Mr. Morgan told the agent he was “certain” he saw Mr. Jones hanging out of the window of a car shooting an assault rifle.

Devin Morgan testified and the FBI investigated him for drug-related offenses in 2012. The prosecutor elicited testimony indicating that Mr. Morgan was a member of the Park Boys. Mr. Morgan denied, however, giving a statement to the FBI in which he identified the defendant as the perpetrator in the shooting of Corey Cel-estine. He likewise denied that he identified members of Back of Town, including Kenneth Jones, to FBI agents. When asked by the prosecutor if the FBI agent who took his statement was lying, Mr. Morgan responded in the affirmative.

\jgSeptember 5, 2011 Incident

NOPD Officer Jonathan Parker testified that on September 5, 2011, he responded to an aggravated battery by shooting. When he arrived on the scene he observed a vehicle riddled with bullets and several shell casings on the ground. The officer identified the eighteen casings as having come from an assault rifle. Officer Parker spoke to one of the victims, Merlin Smothers, who had been shot several times and was at the hospital. Merlin identified the car his assailant was driving—a blue Monte Carlo with a sunroof—but did not provide any information to NOPD about the shooter.

Merlin testified that he was shot several times on September 5, 2011 by a person in a blue Monte Carlo. He admitted being arrested by the FBI and giving two separate interviews to federal agents in 2013. Merlin denied telling the FBI that on September 5, 2011, Kenneth Jones stood out of the sunroof of a blue Monte Carlo and shot at him with an assault rifle. He also denied stating that the defendant was the only one who would “do something to him.”

Agent Crystal Bender testified that she was present for two interviews with Merlin Smothers and that both times he identified the defendant as the person who shot him on September 5, 2011. Agent DiMenna, who was present only for the second interview, likewise testified that Merlin stated “Bud” shot him while standing up through the sunroof of a blue Monte Carlo. Both agents testified that Merlin provided details about the shooting, including the location, the possible reason he was targeted, and that the defendant was wearing a red hat.

|i^November-29, 2011 Incident

On November 29, 2011, multiple assailants fired shots from a white Dodge pickup truck into a Ninth Ward bar known to be frequented by Park Boys. Police recovered several assault rifle shell casings from the area. Agent Bender testified that Merlin Smothers told her the defendant was one of the shooters. When Merlin testified at trial, though, he denied making those statements to the FBI and denied identifying any perpetrators of the bar shooting.

C

Mr. Jones asserts on appeal that the other crimes evidence was erroneously admitted' because 1) the state failed to prove that Mr. Jones committed the offenses at the pre-trial hearing; 2) the trial court should have reconsidered its admissibility ruling when new information after the pre-trial hearing revealed that the prospective witnesses, Merlin Smothers and Devin Morgan, had recanted their statements implicating Mr. Jones in the shootings; and 3) the prejudicial effect of the evidence outweighed its probative value.

The general rule in Louisiana is that evidence of other crimes, wrongs, or acts is not admissible to prove the accused committed the charged crime because he has committed such crimes in the past or to show that the probability that he committed the crimes because he is a person of criminal character. See State v. Garcia, 09-1578, p. 53 (La. 11/16/12), 108 So.3d 1, 38; see also La. C.E. art. 404 A.

The seminal case governing other crimes evidence, Prieur, has recently been abrogated by the Louisiana Supreme Court’s opinion in State v. Taylor, 16-1124, 16-1183 (La. 12/1/16), 217 So.3d 283, 2016 WL 7030750. The court reaffirmed the majority of principles set forth in Prieur and its progeny and reiterated that La. C.E. art. 404 B(1) governs the admissibility of other crimes, wrongs, or acts, provided that the prosecution establishes an independent reason for its admission, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. And, even when the evidence is offered for a purpose allowed under Article 404 B(1), the evidence must have substantial relevance independent from showing the accused’s criminal character and is not admissible unless it tends to prove a material fact at issue or to rebut a defendant’s defense. See Taylor, at p. 12, — So.3d at —, 2016 WL 7030750, at p. 7. The prosecution must still provide written notice before trial that it intends to offer prior crimes evidence, and the requirement that the court charge the jury as to the limited purpose of the evidence remains intact. See id. (citing Garcia, at p. 54, 108 So.3d at 39). The trial court as gatekeeper must continue to balance the probative value of the other crimes evidence against its inherently prejudicial effect before the evidence can be admitted. See id. (citing State v. Henderson, 12-2422, p. 2 (La. 1/4/13), 107 So.3d 566, 567-68); see also La. C.E. art. 403.

Taylor emphasized that a pre-trial hearing on admissibility is required. The court further clarified the prosecution’s burden of proof at the pre-trial hearing: “[W]hen seeking to introduce evidence pursuant to La. C.E. art. 404 (B), the state need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act.” Taylor, at p. 10, — So.3d at —, 2016 WL 7030750, at p. 6 (emphasis in original). Taylor declined to require a specific type of evidence, stating that the sufficiency of testimony or |⅞1 documents, such as a police report or conviction, must be determined on a case-by-case basis. See id., at p. 12, — So.3d at —, 2016 WL 7030750, at p. 6.

Finally, a trial court’s determination of the admissibility of other crimes evidence will not be reversed absent an abuse of discretion. See State v. Copelin, 16-0264, p. 17 (La.App. 4 Cir. 12/7/16), 206 So.3d 990.

D

In its Notice, the prosecution sought to introduce evidence of Mr. Jones’s gang affiliation, which would in turn reveal his intent, motive, preparation, plan, identity, and opportunity. The prosecution’s theory of the case at trial was that Mr. Jones attempted to kill two members of a rival gang which had a long and reciprocal history of violence with the defendant’s gang. Evidence of gang affiliation may be relevant and admissible to show motive, identity, and intent. See, e.g., State v. Gray, 14-1213, pp. 9-11 (La.App. 4 Cir. 11/25/15), 179 So.3d 936, 941-42. Additionally, specific intent is an essential element of the crime of attempted second degree murder. See La. R.S. 14:30.1 A(1); La. R.S. 14:27 A. And, because Mr. Jones’s defense at trial appeared to be that he was not the perpetrator, his identity and motive had substantial independent relevance to this case. We thus find that the evidence was submitted for a valid purpose other than to show Mr. Jones’s criminal character. See La. C.E. art. 404 B(1).

At the pre-trial hearing, FBI Agent Christopher DiMenna testified that in the course of the Ninth Ward Initiative investigation, Mr. Jones had been developed as a suspect in the four other incidents, as well as the instant incident. Agent DiMen-na testified in detail about the multiple witnesses who identified Mr. Jones as the shooter in each incident. He further testified about how police | ^recovered the discarded AK-47 and that forensic and ballistic testing linked the gun to the defendant and two of the crime scenes, respectively.

We first find that, under Taylor, the prosecution carried its burden with a “showing of sufficient evidence to support a finding” that Mr. Jones committed the other acts. Agent DiMenna testified that he and his team conducted investigations into each of these shootings and that either he or his colleagues obtained statements from witnesses who identified Mr. Jones as the shooter. Although the defendant complains that Agent DiMenna’s testimony was hearsay, it is well-established that hearsay is admissible in a pre-trial hearing on the admissibility of other crimes. See Taylor, at pp. 13-14, — So.3d at —, 2016 WL 7030750, at p. 7; State v. Scales, 93-2003, pp. 2-3 (La. 5/22/95), 655 So.2d 1326, 1329-30; see also La. C.E. art. 104 A.

As to whether the trial judge should have reconsidered her ruling when the prosecution revealed that Devin Morgan and Merlin Smothers had recanted their prior statements to law enforcement, we find no support for Mr. Jones’s position. Taylor allows for more relaxed evidentiary standards at the pre-trial hearing, but noted that the prosecution “will obviously be required to adhere to the rules of evidence when presenting evidence... at trial. . ..[and] [s]hould the state not properly present competent evidence at trial, the trial court may exclude the other crimes evidence at that time.” Taylor, at p. 15, — So.3d at —, 2016 WL 7030750, at p. 8. Thus, the substance of the prospective witnesses’ trial testimony had no bearing on the pre-trial admissibility of the evidence, especially because neither Merlin nor Mr. Morgan testified at the pre-trial hearing. In light of the recantations, the state perhaps bore a heavier burden to properly present evidence of the witnesses’ statements at trial. Nevertheless, we agree with the trial court l^that the issue of recantations went to the weight of the evidence, not its admissibility.

Finally, we do not find that the prejudicial effect of the other crimes evidence outweighed its probative value. While we do recognize that a substantial portion of the trial was dedicated to four other shootings, we also recognize that many witnesses who had previously implicated the defendant in statements to law enforcement proved uncooperative at Mr. Jones’s trial. The prosecution, in order to properly present the other crimes evidence within the rules of evidence, was forced to call additional witnesses to rebut the testimony of the now-recanting witnesses. See generally State v. Collins, 01-1459, p. 23 (La. App. 4 Cir. 8/21/02), 826 So.2d 598, 613 (“If at trial the eyewitness fails to remember or denies that he made the identification, the previous statements of the eyewitness can be proved by testimony of a person to whom the statement was made, and the statement can be given substantive effect.”) (internal quotation marks and citation omitted). Moreover, the trial judge instructed the jury as to the limited purpose for the introduction of other crimes evidence and, as noted above, the evidence presented as to the charged offenses was constitutionally sufficient to convict Mr. Jones. See State v. Campbell, 15-0017, pp. 27-28 (La.App. 4 Cir. 6/24/15), 171 So.3d 1176,1192.

Consequently, we find that the trial judge did not abuse her discretion by ruling the other crimes evidence admissible in this case.

V

In this Part, we address Mr. Jones’s claims of prosecutorial misconduct and the lack of an adequate record on appeal.

A

1 ^Mr. Jones claims that in closing argument, the prosecutor referenced Mr. Jones’s failure to confess, which violated his Fifth Amendment right against self-incrimination and warranted a mistrial.

In his closing argument, the prosecutor recounted the evidence which the state had presented at trial, including testimonial, DNA, and ballistics. He then stated, “One thing we weren’t able to bring you-all was a confession, but during my closing argument I’m going to confess a number of things to each and every one of you.”

1

La.C.Cr.P. art. 774 provides that the scope of closing argument “shall be confined to the evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” Closing argument “shall not appeal to prejudice,” and the prosecution’s rebuttal argument “shall be confined to answering the argument of the defendant.” Id. While prosecutors may not refer to personal experience or turn their argument into a plebiscite on crime, prosecutors nonetheless have “wide latitude in choosing closing argument tactics.” See State v. Casey, 99-0023, p. 17 (La. 1/26/00), 775 So.2d 1022, 1036 (citing cases); State v. Jones, 10-0018, p. 9 (La.App. 4 Cir. 11/10/10), 51 So.3d 827, 833. And, even if a prosecutor exceeds the scope of proper argument, a reviewing court will not reverse a conviction unless “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. Id.

In relevant part, a mistrial shall be ordered upon motion of a defendant when the prosecutor, during closing argument, refers to “[t]he failure of the defendant to testify in his own defense.” La. C.Cr.P. art. 770(3). If the prosecutor makes a | ^remark outside the scope of Article 770, trial judge may order a mistrial, upon the request of the defendant, when the remark is of such a nature that it might create prejudice against the defendant and an admonition is not sufficient to assure a fair trial. See La. C.Cr.P. art. 771.

The record reveals that Mr. Jones neither lodged an objection to the prosecutor’s remarks nor moved for a mistrial. See La. C.Cr.P. art. 841 A. Thus, he is not entitled to a mistrial under La. C.Cr.P. arts. 770 or 771. Moreover, although we note that the prosecutor’s reference to the lack of a confession was unnecessary when emphasizing the strength of the state’s case, we are not “thoroughly convinced” that the statement influenced the jury and contributed to the verdict.

B

Mr. Jones next claims that the failure to record eighteen bench conferences precludes adequate appellate review.

1

The Louisiana Constitution guarantees a criminal defendant the right to judicial review “based upon a complete record of all evidence upon which the judgment is based.” La. Const. art. 1, § 19. Additionally, La. C.Cr.P. art. 843 requires all proceedings to be recorded, “including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.” Unlike material omissions in the record, however, a “slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal” will not require reversal. State v. Campbell, 06-0286, p. 99 (La. 5/21/08), 983 So.2d 810, 872 (citation omitted).

|2flWe note that there is no per se rule either requiring the recording of bench conferences or exempting them under La. C.Cr.P. art. 843. See State v. Hoffman, 98-3118, p. 49 (La. 4/11/00), 768 So.2d 542, 586. Moreover, “objections” and “arguments” under Article 843 normally only apply to objections made in open court and the arguments of counsel at closing, “because only these objections and arguments rise to a level of materiality sufficient to invoke art. 843.” Id. And, the “evidence” referred to in La. Const. art. 1, § 19 does not generally encompass bench conferences unless they satisfy the materiality requirements of Article 843. Id.

2

In an effort to demonstrate materiality, Mr. Jones points to two instances of unrecorded bench conferences which he claims prejudiced his right to appeal. Both instances concern statements during trial which allegedly insinuate that Mr. Jones orchestrated the murder of Eugene Brash-ears, the driver of the Monte Carlo on November 22, 2011. See n. 2, ante. Both times defense counsel asked to approach, and an unrecorded bench conference was held.

The first exchange occurred during opening statements:

Mr. Napoli: There is one guy you are not going to hear from and that is Eugene Brashears, the driver of that car. My first thought when we finally were able to bring these charges in 2014, let’s go talk to Eugene. It wasn’t just my first thought, though. You-all remember the name of that guy who was picked up in the car out on December 2, 2011, Julius Alexander—
Mr. Daniels: Your Honor, may we approach?

At that point an unrecorded bench conference was held. The prosecutor then resumed his opening remarks:

Mr. Napoli: ... Obviously Kenneth Jones was in jail when that murder was committed. What is very clear, Ladies and Gentlemen, is all of [a] sudden, I adjust after July 2014, there was a reason to kill Eugene Brashears, there was a reason to silence him.

The second instance occurred during the testimony of FBI Agent DiMenna:

Mr. Napoli: .. .August 30th of 2014?
Agent DiMenna: 2014, yes. Yes.
Mr. Napoli: Is that the date that Eugene Brashears was murdered?
Agent DiMenna: Yes. Yes. That reminds me now because it was a little over a month after we had charged Mr. Jones in the case that is before us.
Mr. Napoli: So it was a month after Kenneth Jones was charged with this attempted murder on November 22nd?

Defense counsel then requested to approach, and an unrecorded bench conference was held.

We first note that Mr. Jones admits he did not object to the unrecorded bench conferences, and the record is void of any request by defense counsel to record the sidebars. See La. C.Cr.P. art. 841; State v. Johnson, 09-0259, p. 12 (La.App. 4 Cir. 9/16/09), 22 So.3d 205, 213 (failure to object to unrecorded bench conferences did not preserve issues for appeal). He nonetheless argues that because the substance of the conferences is unknown, and thus might be material to his appeal, this court should reverse his convictions and order a new trial. Absent a showing of specific prejudice or that the unrecorded conferences had a discernible impact on the proceedings, however, a defendant will not be entitled to relief because of an incomplete record. See Hoffman, at p. 50, 768 So.2d at 587 (citing State v. Castleberry, 98-1388, pp. 28-29 (La. 4/13/99), 758 So.2d 749). Mr. Jones asks us to presume that the unrecorded conferences contain material objections or motions for mistrials. We do not find that argument persuasive, especially considering that defense counsel requested the sidebars and saw fit not 128to object on the record. We further find that the current record, despite eighteen unrecorded bench conferences, is sufficient to afford Mr. Jones his constitutional right to appellate review.

VI

In his final assignment of error, Mr. Jones claims his concurrent 100-year sentences as a second felony offender are unconstitutionally excessive.

A

The Louisiana Constitution prohibits sentences which constitute “cruel, excessive, or unusual punishment.” La. Const. art. 1, § 20. And, a sentence, although within the statutory range, may nonetheless violate a defendant’s right against excessive punishment. See State v. Brandy, 16-0263, p. 9 (La.App. 4 Cir. 8/24/16), 198 So.3d 1247, 1255 (citation omitted). This rule applies likewise to sentences imposed under the Habitual Offender Law. See State v. Dorthey, 623 So.2d 1276 (La. 1993). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense and is nothing more than the needless imposition of pain and suffering. See State v. Bonanno, 384 So.2d 355, 357 (La. 1980).

The penalties provided by the legislature, however, reflect the degree to which criminal conduct is an affront to society. See State v. Weaver, 01-0467, p. 12 (La. 1/15/02), 805 So.2d 166, 174. Moreover, sentences imposed under the Habitual Offender Law are presumed constitutional. See State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 675 (citing Dorthey, 623 So.2d at 1281). Thus, | ^imposed sentences which fall within the statutory range should be given great deference by a reviewing court. See id.

B

As noted, Mr. Jones was convicted of two counts of attempted second degree murder. The trial judge initially imposed the maximum of two 50-year sentences to run concurrently. See La. R.S. 14:30.1 B; La. R.S. 14:27 D(1)(a). The prosecution filed a habitual offender bill of information, and Mr. Jones admitted his status as a second felony offender. The trial judge then resentenced Mr. Jones as a habitual offender, stating:

Alright Mr. Jones, I’ve had the opportunity to review my notes from the trial that took place throughout the week of April the 20th of 2015. Having gone over my extensive notes and the testimony of all the individual witnesses that have testified against you, I have to stress that I was really shocked by the level of violence. And basically, the rampage that you conducted throughout the City of New Orleans.
The actions that you chose to take throughout the course of the offenses for which you were convicted in addition to the Prieur acts that were introduced by the State, and the ballistic evidence that was posed against you, along with the eyewitness testimony against, you.
Plus the forensic evidence that link you to the weapon that was linked to multiple shootings, indicates that you have absolutely no regard for human life; no regard for the safety of any individual in this city.
And that you intended to execute as many people as you could. And the only reason that you were convicted of attempted [second degree] murders was because you were not a very good shot.
All right Mr. Jones, having gone over the multiple bill of information filed by the State, and the fact that you have chosen to admit that you have this prior conviction, I’m now taking into account the trial testimony and evidence that was introduced at trial.
Additionally, I’m taking into account Code of Criminal Procedure 894.1. Considering the fact that I find that your acts throughout the course of this chain of events in November 22, 2011, were particularly heinous.
I find that you are a risk to society, should you be released from incarceration. The fact that you have a prior conviction. The manner in 13nwhich you’ve chosen to conduct yourself throughout the course of these heinous acts, rises to level of a basis for a maximum sentence to be imposed.

The trial judge then imposed two concurrent 100-year sentences without benefit of probation, parole, or suspension of sentence on the two counts of attempted second degree murder. These are the maximum terms allowable by statute. See La. R.S. 14:30.1 B; La. R.S. 15:529.1 A(1).

A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. See State v. Cann, 471 So.2d 701, 703 (La. 1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. See State v. Walker, 2000-3200, p. 2 (La. 10/12/01), 799 So.2d 461, 462

First, we find that the sentencing judge adequately complied with the sentencing guidelines under La. C.Cr.P. art. 894.1, taking into account the violent and serious nature of the offenses and Mr. Jones’s criminal history.

Mr. Jones claims that 100 years amounts to a life sentence, which is not authorized by the habitual offender statute under unless the two felonies are both sex offenses. See La. R.S. 15:529.1 A(2)(b). A review of the jurisprudence, however, establishes that Louisiana courts have affirmed 100-year sentences for persons convicted of attempted second degree murder and found to be second felony offenders. See State v. Hills, 98-0507 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215; State v. Hall, 606 So.2d 972 (La. App. 3 Cir. 1992). See also State v. Douglas, 39,036 (La.App. 2 Cir. 10/29/04), 888 So.2d 982 (defendant was not adjudicated a multiple offender, but had a lengthy criminal record and was |S1 sentenced to 100 years at hard labor for attempted second degree murder), and State v. Martinez, 2009-1057 (La.App. 5 Cir. 5/25/10), 40 So.3d 1113 (habitual offender sentence for attempted second degree murder conviction of 99 years at hard labor without benefit of parole, probation, or suspension of sentence not excessive).

While we do not wholly disagree that Mr. Jones’s sentences effectively constitute a life sentence, they are within the statutory sentencing range and therefore presumed constitutional. Although maximum sentences are generally reserved for the most serious violations and the worst offenders, see State v. Landry, 2003-1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239, we note that Mr. Jones attempted to kill two people in broad daylight with an assault rifle, with clear disregard for public safety and the lives of innocent bystanders. We do not find that trial judge abused her discretion in imposing the maximum sentences, nor do we find that the sentences are disproportionate to the severity of the offenses. Accordingly, the 100-year concurrent sentences imposed in this case are neither excessive nor illegal.

CONCLUSION

We affirm the convictions of Kenneth Jones for two counts of attempted second degree murder and one count of being a felon in possession of a firearm. We likewise affirm the imposed sentences of 100 years for each count of attempted second degree murder, and 20 years for being a felon in possession of a firearm.

AFFIRMED

      . Because there are two witnesses in this case who have the last name Smothers, they are referred to by their first names.

      . At the time of trial, Eugene Brashears had been murdered. The record indicates that Julius Alexander, an associate of Back of Town, has been charged with the murder of Mr. Brashears.

      . Casings recovered from a bar shooting on November 29, 2011, discussed in more detail in Part IV-B, post, were also found to have been fired from the discarded AK-47.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Quintillion is a number represented as one followed by eighteen zeros.

      . Moreover, we note that the verdict in this case was unanimous, which tends to support our decision not to reverse Mr. Jones’s convictions. See generally State v. Pierce, 12-0879, p, 14 (La.App. 4 Cir. 12/10/13), 131 So.3d 136, 152 (Tobias, J., concurring) (would apply harmless error analysis to the improper seating of a peremptorily-challenged juror where the verdict was unanimous and only a 10-2 verdict was required to convict).

      . State v. Prieur, 277 So.2d 126 (La. 1973), abrogated by State v. Taylor, 16-1124, 16-1183 (La. 12/1/16), 217 So.3d 283, 2016 WL 7030750.

      . This shooting occurred six days after the charged offenses on November 22, 2011.

      . Mr. Jones does not complain on appeal about his twenty-year sentence for being a felon in possession of a firearm.

      . Mr. Jones had a prior conviction for possession of cocaine from Texas in 2008.

      . The judge also imposed 20 years imprisonment on the count of being a felon in possession of a firearm, to run concurrently.