author: JUDGE SANDRA CABRINA JENKINS '

text:
    STATE of Louisiana v. Travis HENDERSON
    NO. 2016-KA-0350
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 29, 2017

      Leon A. Cannizzaro, Jr., District Attor.ney, Donna Andrieu, Assistant District Attorney, Donald G. .Cassels, III, Assistant District Attorney, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR AP-PELLEE/STATE OF LOUISIANA
    Katherine M. Franks, LOUISIANA APPELLATE PROJECT, Post Office Box 1677, Abita Springs, LA 70420-1677, COUNSEL FOR DEFENDANT/APPELLANT

      (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS '

|! This is defendant Travis Henderson’s second appeal arising from his convictions for armed robbery and contributing to the delinquency of a juvenile. In his original appeal, defendant argued that he was denied his Sixth Amendment right to confront a witness, J.W., who testified against him at trial, wlien the trial court denied the defense motion to discover J.W.’s juvenile adjudication record for purposes of impeachment evidence. See State v. Henderson, 13-0526 (La. App. 4 Cir. 2/19/14), 136 So.3d 223. Upon finding that the trial court erred in denying the defense motion without first examining J.W.’s juvenile record as required by State v. Perkins, 03-1680 (La. 6/27/03), 852 So.2d 989, this Court remanded the case to the trial court to détermine whether it was harmless error to dény defendant discovery of J.W.’s juvenile record. On remand, the trial court reviewed J.W.’s juvenile record and found no error in its ruling denying defendant discovery and admission of the juvenile record based on the lack of impeachment value therein; consequently, defendant’s convictions stand.

2In the instant appeal, defendant argues that the trial "court erred in again denying discovery arid admission of J.W.’s juvenile recofd and in failing to find that the denial was not harmless error. For the following reasons, we find no merit in defendant’s arguments and we affirm.

STATEMENT OF CASE

On March 21, 2012, the State filed a bill of ’information -charging defendant with one count of armed robbery with a firearm, in violation of La. R.S. 14:64, one count of contributing to the delinquency of a juvenile, in violation of La. R.S. 14:92 E(l), and one count of illegal possession of stolen things, in violation of La. R.S. 14:69. On March 26, 2012, defendant entered ■pleas of not guilty on all counts. Subsequently, the count of illegal possession of stolen things was severed and defendant entered a plea of guilty to that charge. As to the remaining charges, the case proceeded to a jury trial.

On January 8, 2013, at the conclusion of a two-day jury trial, defendant was found guilty ais charged of armed robbery and of contributing to the delinquency of a juvenile [to wit, J.W.], On January 25, 2013, the trial court sentenced defendant on the respective convictions to seventy years at hard labor without benefits and five years at hard labor,- to run concurrently. The State then filed a multiple bill charging defendant as a fourth felony offender as to his armed robbery conviction. On February 25, 2013, the trial court adjudicated defendant a fourth felony offender and sentenced him to life imprisonment without benefits. Defendant then |stimely appealed his convictions, habitual offender adjudication, and sentences to this Court.

In ruling on defendant’s prior appeal, on February 19, 2014, this Court remanded the case to the trial court to review J.W.’s juvenile record and make it part of the record (under seal). In addition, this Court vacated defendant’s'habitual offender-adjudication and sentence, because the exhibits introduced at the multiple bill proceeding were not made a part of the record and could not be located.

On remand, on April 16, 2014, the trial court held a hearing pursuant to this Court’s decree. At that hearing, the trial court reviewed J.W.’s juvenile record and found no error in denying defendant discovery and use at trial of J.W.’s juvenile record; thus, the trial court’found no trial error and upheld defendant’s convictions.

Also following the remand from this Court, the State filed another multiple bill charging defendant as a third felony offender as to his armed robbery conviction. .On December 8,2016,.the trial court held a multiple bill hearing, adjudicated defendant a third felony offender, and sentenced him to seventy years without benefits. That same day, defense counsel filed a motion to reconsider sentence, which remains pending in the trial court, and a motion for appeal, which was granted. This timely appeal follows.

STATEMENT OF FACTS

The facts of this case, as set forth in this Court’s previous opinion, are as follows:

14At a motion hearing on 8 June 2012, and at the jury trial on 8 January 2013, Detective Travis Ward testified that he was employed at the Eighth District of the New Orleans Police Department (“NOPD”) in the Violent Crimes Unit when he was called to investigate an armed robbery on 2 January 2012. He explained that the victim was walking in the 1000 block of Ursulines Street in New Orleans, while talking on her cell phone, when she was approached by a young male. According to Detective Ward, the young male began .to question the victim as to what she was doing, et cetera. The victim motioned for the young man to leave her alone. At that time, a white van pulled up, and the driver got out. The driver told the young male something to the effect of showing him how to do it; the driver took a gun from the young male and robbed the victim of her bag and cell phone. The victim watched as the two suspects got into the white van, sat for a short moment, and then drove away. During trial, the detective identified Henderson in the courtroom as the suspect who had exited the white van and took the victim’s belongings, Detective Ward also testified that he viewed a bad quality video surveillance film of the crime. He stated that he learned from the victim that her cell phone was used after it was stolen. The victim was able to obtain the number that was called from her.phone, and she provided'him with that information. He also testified that he called the phone number provided by the victim and linked the call to the home of a Ms. Karen Elzey in New Orleans. Detective Ward testified that he and Detective Willie Jenkins went to the home of Ms. Elzey and, with Ms. Elzey’s permission, questioned her daughter, Alicia Elzey, who explained that the phone number called from the victim’s stolen cell phone was her phone number and that she remembered receiving' a call from J.W., a minor who at the time of trial was held in a juvenile detention program, and who she knew attended Marrero Middle School,'
Detective Ward testified that he searched the database for J.W. and located him at Marrero Middle School. He and Detective Michael FÍores went to the school and retrieved six photographs of students, one being of J.W. He stated that an identification of J.W. was made by the victim after he showed her the six photographs. Thereafter, Detective Ward went to the home of J.W., where J.W. admitted to the events arid told the detective that an air pistol, not a real (gunpowder) gun, was used during the crime. J.W. also stated that he was accompanied by Travis Henderson at the time of the crime. After investigating the 'matter further, Detective Ward learned that Henderson had been recently arrested in the French Quarter for a simple robbery. He obtained a photograph of Henderson and returned to J.W., who identified Henderson as “the person who was teaching him to rob people.”
|BAt the jury trial on 7 January 2013, Detective Troy Williams testified that he was a sergeant with the NOPD for approximately nineteen years. He stated that in July of 1999, while a detective in the Eight District, he was called to investigate an armed robbery at the intersection of Burgundy Street and Ur-sulines Avenue. He testified that two females were robbed at gunpoint. A few days later a suspect, fitting the description of the armed robber in this case, was stopped in close proximity to where the crime occurred. Detective Williams explained that after the female victims identified Henderson in a photographic lineup, Henderson was convicted for that 1999 robbery.
Miranda Culp of Perm Valley, California, testified that she lived in New Orleans in 1999 and worked as a cocktail waitress in the French Quarter when she was robbed at gunpoint at the intersection of Burgundy Street and Ursu-lines Avenue by Henderson.
Sergeant Nicholas Gernon testified that he was assigned to the Eighth District of the NOPD in the Crimes Unit at the time of the subject crime. He stated that he searched for surveillance video of the 1000 block of Ursulines Street and was able to obtain video from a residence located in the 900 block of Ursu-" lines Street and from the WWL television station at the corner of North Rampart Street and Ursulines Avenue. (The WWL video was played for the jury).
J.W. testified that he was sixteen years old, stationed at Camp Beauregard in Pineville, Louisiana, for the Youth Challenge Program, a Louisiana program aimed to assist at-risk kids, and working on obtaining his GED. He stated that on 2 January 2012 he was in eighth grade at Marrero Middle School and was friends with Henderson. He identified Henderson sitting' in the courtroom. J.W. testified that on 2 January 2012, after he walked to his friend Trey’s house and learned that Trey was not home, he ran into Henderson, who gave him a ride' home in a blue Chevrolet Impala automobile. J.W. stated that he later returned to Trey’s house, but Trey was still not home. J.W., seeing Henderson again, accepted a ride with Henderson, who was now driving a white van. He stated that he and Trey enjoyed playing with BB guns and that Henderson knew that J.W. had a BB gun that he purchased from Wal-Mart.
J.W. testified that he and Henderson ate at Henderson’s mother’s house, and thereafter proceeded to the French Quarter in the white van. He stated that he was instructed by Henderson to rob a group of people, on Canal Street, but did not do so. He said that Henderson circled the block and instructed him to “get out, get her,” meaning an African-American female who was walking down the.street talking on a cell phone with a purse across her body. J.W. approached the victim and asked her some questions that he could not then recall. Henderson then jumped from the van with J.W.’s BB gun and yelled at J.W. for not knowing what to do. J.W. headed back to the van, and ^Henderson soon approached and asked J.W., who was then sitting in the driver’s seat, if he knew how to drive. Henderson then crossed over. J.W. and drove away.
J.W. stated that Henderson took a cell phone, a computer, and some paperwork from the victim. He also testified that when Henderson returned to the van he saw the handgun. J.W. used the stolen cell phone to call his girlfriend, Alicia Elzey, to ask her for gas money. He stated that Henderson attempted to pawn and sell the computer. J.W. testified that he saw the video of the armed robbery, and he could see himself and Henderson therein. He corroborated Detective Ward’s testimony that he picked Henderson out of a photographic line-up when the police came to his house.
Margaret Padaya testified that on 2 January 2012 she worked as a special education teacher in the French Quarter at KIPP NOLA Leadership Primary, a school. She testified that she was walking to her home on Ursulines Street while talking to her co-worker on her cell phone. She explained that at first she ignored the young male who approached her until she realized that something was not right about the situation. At that time, she put her hands up and said “back up.” She stated that the young man backed away from her as an older man got out of a white truck, and she observed a gun being exchanged between the two men. She said the older man stated “let me show you how this is done,” whereupon he took a bag out of her hand and drove past her. Ms. Pada-ya identified herself in the video played at trial, (footnotes omitted). • . iV

Henderson, 13-0526, pp. 2-5, 136 So.3d at 225-27.

DISCUSSION

In this appeal, defendant maintains that he was denied his Sixth Amendment right to confront the main witness against him at trial due to the inability to cross-examine J.W. about his juvenile record. See Henderson, 13-0526, p. 8, 136 So.3d at 228-29. In his first assignment of error, defendant argues that the trial court erred in determining, on remand, that J.W.’s juvenile record was not discoverable or admissible at trial for impeachment purposes or to show a motive or bias for testifying. In his second assignment of error, defendant argues that the trial court erred by failing to determine that denying the discovery and admission of J.W.’s | juvenile record was • not harmless error. We address these assignments of error simultaneously.

' In the original appeal, this Court thoroughly reviewed the relevant law and jurisprudence as to a defendant’s right to confront and cross-examine a witness with evidence of the witness’s juvenile record. Henderson, 13-0526, pp. 6-13, 136 So.3d at 227-231. Based on the relevant law and jurisprudence, this Court concluded that the trial court erred in summarily denying defendant discovery and use of J.W.’s ju: venile record without first examining that juvenile record, as mandated by the Louisiana Supreme Court in Perkins’.

When a defendant moves for production of the juvenile records of a witness the trial court is called upon to deter.mine whether the impeachment value of these adjudications is outweighed by the state’s interest in maintaining the confidentiality of juvenile records. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Toledano, 391 So.2d 817 (La. 1980). As we have explained: “The, critical question in cases involving a witness’s juvenile record and the sixth amendment right to confrontation is-whether the-defendant will be precluded from utilizing a method of impeachment that would be effective in the circumstances of his case were the juvenile record available to defendant.” State v. Smith, 437 So.2d 802, 804 (La. 1983). In reviewing juvenile records, the issue thus becomes whether the witness’s juvenile adjudications have such discrediting value that there is .a reasonable likelihood it would affect the verdict. State v. Toledano, supra, 391 So.2d at 820. That determination can only be made after an examination of the juvenile record by the trial court and preservation of that record for review. State v. Hillard, 398 So.2d 1057, 1060 (La. 1981). In the instant case, the Court of Appeal denied the defendant’s application for writs from the trial court’s ruling denying production of the juvenile records of two of the State’s' primary witnesses without first reviewing those records, under seal, to determine if the trial court’s ruling with respect to the materiality of the prior juvenile adjudications was the correct one. This was error.

03-1680, pp. 1-2, 852 So.2d at 989-90; see also, State v. Rubens, 10-1114, pp. 38-42 (La. App. 4 Cir. 11/30/11), 83 So.3d 30, 55-57. Then finding that the record in [«the previous appeal was insufficient “to determine whether failing to allow Henderson to cross-examine J.W.’ in regard to his criminal record was harmless error or not,” this Court remanded the matter to the trial court to review J.W.’s juvenile record and make a determination as to whether the trial court’s denial of discovery and admission of J.W.’s- record was proper in light of the relevant jurisprudence. Henderson, 13-0526, p. 13, 136 So.3d at 231.

On remand, at the April 16, 2014 hearing, the trial court reviewed J.W.’s juvenile record, which showed two adjudications— one for obscenity and the other for simple battery..After reviewing J.W.’s record, the trial court maintained its denial of defense counsel’s motion for discovery and admission of J.W.’s juvenile record and stated the following finding:

[T]he Court finds as a matter of law that those two convictions do not go to veracity. Those two convictions do not go to credibility. Had those convictions been for forgery, theft, obstruction of justice, or any other crime in this book that would have gone to credibility or veracity, I may have ruled otherwise. But the Court is convinced that neither one of those convictions are the sort of convictions that go to one’s veracity.

In' this appeal, defendant -argues that J.W.’s juvenile record — -which has been made part of the appellate record, under seal — does not support the trial court’s ruling and- the denial of discovery and admission of J.W.’s record precluded defendant from impeaching J.W.’s credibility, in violation - of defendant’s Sixth Amendment right to confrontation. Relying primarily on Davis v. Alaska, supra, defendant argues that the exposure of a witness’s motivation in testifying through lathe introduction of and cross-examination regarding- the witness’s criminal convictions is a permissible and relevant way-of discrediting the witnéss and affecting the weight of his testimony.

In Davis, Richard Green was a crucial witness for the prosecution at the defendant’s trial for grand larceny and burglary. Before Green’s testimony at trial, the prosecution moved for a protective order to prevent any reference to Green’s juvenile record by the defense during cross-examination. At the time of trial and at the time of the incident about which Green testified, he was on probation for a juvenile adjudication for burglary. In opposing; the protective order, the defense sought to show or argue that Green had a possible bias or motive to have hastily identified defendant out of fear of possible probation revocation or in order to shift suspicion away from himself. Bqt the trial court granted the protective order to prevent admission of Green’s juvenile record and any reference to it during cross-examination, relying on the Alaska Rule of Children’s Procedure prohibiting the admission of juvenile records as evidence. On appeal of his conviction, the defendant asserted a violation of his Sixth Amendment right of confrontation.

The United States Supreme Court granted certiorari on the limited question of whether petitioner was denied his right under the, Confrontation Clause to | inadequately cross-examine Green, and the Court first looked at the Sixth Amendment:

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Confrontation means more than being allowed to confront the witness physically. ‘Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.’ Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). Professor Wigmore stated:
‘The main and essential purpose of confrontation is to secure.for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.’ (citation omitted).

Davis, 415 U.S. at 315-16, 94 S.Ct. at 1110, (1974).

The Court in Davis reversed and remanded the matter, reasoning: ■

We do not and need not challenge the State’s interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender. Cf. In re Gault, 387 U.S. 1, 25, 87 S.Ct. 1428, 1442, 18 L.Ed.2d 527 (1967). Here, however, petitioner sought to introduce evidence of Green’s probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not .to be believed in his identification, of petitioner or at least very carefully considered in that light. Serious damage to the strength of the State’s case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his- juvenile record — if the prosecution insisted on using him to make its case — is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.

Davis, 415 U.S. at 319, 94 S.Ct. at 1112, (1974).

| nln this case, defendant relies on the holding in Davis to argue that any statutory right to confidentiality of juvenile records must yield to defendant’s right to confrontation to secure a fair trial. Defendant acknowledges that Louisiana law protects the confidentiality of juvenile records and that evidence of juvenile adjudications are generally not admissible, but he argues that the Louisiana Supreme Court’s decision in Toledano, supra, determined that the disclosure of juvenile records is essential tc¡ a fair trial when the discrediting value of those records could affect the weight of testimony and the outcome of trial.

In Toledano, the Louisiana Supreme Court considered the admissibility of the juvenile witness’s rap sheet for purposes of cross-examination where the defense argued that it contained impeachable, potentially exculpatory evidence. Jn remanding the case for submission of the juvenile record to the trial judge for an in camera inspection to determine its materiality, the Court reasoned as follows:

[T]he trial court, in understandable reliance upon the statutory confidentiality and the past decisions of this court did not determine whether the co-participant witness had a record of prior adjudications and whether the impeachment value of those adjudications outweighed the witness’ statutory interest in the confidentiality of those records. In such a determination a balance must always be struck based upon the facts and circumstances of an individual case. Obviously, not all juvenile adjudications of all state witnesses have a discrediting value which is sufficient to require disclosure and admissibility for impeachment purposes, (emphasis added)

Toledano, 391 So.2d at 821.

In this case, the trial court followed the mandate from' this Court, based on the holding of Toledano, to review J.W.’s juvenile record and make a | ^determination of whether the potential impeachment value of J.W.’s adjudications outweighed the State’s interest in the confidentiality of juvenile records. Under the circumstances of this case, the trial court found that J.W.’s juvenile record would have little impeachment or discrediting value considering his admission to the involvement in the armed robbery. The trial court also noted that there is no indication in J.W.’s juvenile record that his adjudications for subsequent, unrelated offenses were in any way affected by his testimony against defendant in this case. Upon review of the trial court’s ruling, J.W.’s record, and in light of the relevant jurisprudence, we agree.

Whereas in Davis, the witness whose juvenile record the defense sought to introduce was on probation for burglary at the time he witnessed the crime of burglary about which he testified, in this case, the factually dissimilar offenses in J.W.’s juvenile record occurred after the incident about which he testified. The armed robbery about which J.W. testified at defendant’s trial occurred on January 2, 2012. The incident leading to J.W.’s adjudication for obscenity occurred at his school on January 28, 2012; the incident leading to his adjudication for simple battery occurred at his home on October 25, 2012. Furthermore, as brought out through the testimony of the police officers'and J.W., J.W. admitted his involvement in the armed robbery and identified defendant as the person who was showing him how to rob people. Under the facts and circumstances of this case, unlike in Davis, J.W.’s adjudications do not provide any more discrediting value than his own testimony to his involvement in the crime and they are not | ^sufficiently probative of his veracity to outweigh the State’s interest in maintaining the confidentiality of juvenile records.

However, now that the record before this Court includes J.W.’s juvenile records and the trial court’s findings and given this Court’s finding in the original appeal that the trial court erred in summarily denying the discovery and admission of J.W.’s records for trial, we now review the trial court’s ruling for harmless error. See Henderson, 13-0526, p. 13, 136 So.3d at 231.

Confrontation errors are subject to the harmless error analysis. State v. Broadway, 96-2659, p. 24 (La. 10/19/99), 753 So.2d 801, 817; State v. Patterson, 15-0775, p. 10 (La. App. 4 Cir. 3/16/16), 191 So.3d 620, 627; see also State v. Chester, 97-2790, pp. 16-17 (La. 12/1/98), 724 So.2d 1276, 1286-87. The Louisiana Supreme Court set forth the harmless error analysis for confrontation errors in Broadway, stating:

The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Id. at 684, 106 S.Ct. 1431. Factors to be considered by the reviewing court include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contracting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Id. at 684, 106 S.Ct. 1431; State v. Wille, 559 So.2d [1321]at 1332 [ (La. 1990) ]. The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

96-2659, p. 24, 753 So.2d at 817.

Applying the harmless error analysis set forth in Broadway, assuming the damaging potential of the cross-examination by the admission of J.W.’s juvenile record were fully realized, we are nonetheless convinced that any error in denying | t4the disclosure and admission of J.W.’s records was harmless beyond a reasonable doubt. The testimony elicited at trial from J.W., the victim, 'and the police officers revealed to the jury that J.W. was involved in the armed robbery and, thus, sufficiently raised the issue of his credibility with the jury. The introduction of J.W.’s adjudications for obscenity and simple battery, which 'occurred after the incident in this cáse, would not have undermined the cumulative testimony and evidence presented against defendaht. The details about defendant’s actions in robbing- the victim, as testified to by J.W., were corroborated by the victim’s trial testimony, during which she identified defendant as the perpetrator, and by the surveillance video shown to the jury. Given the corroborating testimony and evidence presented against defendant at trial, we find that even if the trial court erred in denying defendant discovery and admission of J.W.’s juvenile record for purposes of impeachment, the - guilty verdict rendered was surely unattributable to the error.

CONCLUSION

For the foregoing reasons, we find no merit in defendant’s arguments raised in this appeal and we affirm his convictions.

AFFIRMED

      . As there has been no ruling on defendant’s motion to reconsider sentence, defendant does not raise any sentencing issues in this appeal.

      . As explained by the trial court, the petition originally charged J.W. with one count of sexual battery, a violation of La. R.S. 14:43.1 A(l), but the charge was reduced to bbscenity, a violation of La. R.S, 1.4:106, to which J.W. pled guilty.

      . Under the facts of that case, Green was running' an errand for his mother when he saw two.African-American men on the side of the road close to his house. The men were standing next to a Chevrolet. The first time Green passed the men he had limited conversation with them, and the second time he passed them on his return home, he saw that one of the men had a crowbar. Later, it was learned that a safe was stolen from a bar in Anchorage ánd that the empty safe was found near Green’s home. The Alaskan State Troopers went to Green’s .home, questioned him, and Green subsequently identified the two men he saw on the side of the road. Once the Chevrolet was found and paint shavings from the safe were identified in the truck of the Chevrolet, the troopers arrested the men.

      . La. Ch.C. art. 412; La. C.E. art. 609.1 F.

      . Defendant also contends that the Court in Toledano determined that the failure of the prosecution to disclose J.W.’s juvenile record violated the principles set out in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Court in Toledano made no finding of a Brady violation but found it was necessary for the trial court to examine the juvenile record to determine its materiality, including whether it contained potentially exculpatory information that might have affected the verdict.


source: Caselaw Access Project

author: Judge Edwin A. Lombard

license: Public Domain

text:
    STATE of Louisiana v. Ryan POREE
    NO. 2017-K-0010
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 29, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Chief of Appeals, Assistant District Attorney, Kyle Daly, Assistant District Attorney, Donald G. Cas-sels, III, Assistant District Attorney, Parish of Orleans, 619 White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA
    Ruston Pritchard, Rule XX Student Attorney, Drew Lafontant, Rule XX Student Attorney, Katherine Mattes, Director, Tulane Criminal Justice Clinic,' 6829 Freret Street, New' Orleans, Louisiana 70118, COUNSEL FOR DEFENDANT/RELATOR
    (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Tiffany G. Chase)
   Judge Edwin A. Lombard

hThe defendant/relator, Ryan- Poree, seeks supervisory review of the trial court’s denial of his pro se- application for post-conviction relief. After consideration of the oral and written arguments presented by the State and on behalf of the relator in light of the record before this court and the applicable law, we grant the relator’s writ application, reverse- the trial court judgment denying the relator’s application for post-conviction relief, and remand the matter back to the trial court for further proceedings.

Relevant Procedural History

In January 2012, the relator was charged by indictment with two counts of second degree murder, one count of attempted second degree murder, and one count of obstruction of justice in violation of La. Rev. Stat. 14:80.1, 14:(2’7) 30.1, -and 14:130.1, respectively. He pleaded not guilty and not guilty by reason of insanity and, after a three day trial in February 2014, was found guilty as charged on all counts. In March 2014, the relator was sentenced to two terms of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on the second degree murder charges; forty-nine years at hard labor for attempted second degree murder; and forty years at hard labor for obstruction of | ¿justice. After an Anders brief asking only for review of errors patent was filed by his appointed appellate counsel, this court affirmed the relator’s conviction and sentence. State v. Poree, 2014-0691 (La. App. 4 Cir. 3/18/15), 166 So.3d 372, writ denied, 2015-0741 (La. 3/4/16), 188 So.3d 1056.

In October 2016, the relator filed a timely pro se application for post-conviction relief which was denied by the trial court in a judgment dated November 9, 2016. The relator sought supervisory review of that decision and, after review of the relator’s writ application, this court found that the trial court only, addressed the issue of whether defense counsel prevented the petitioner from testifying in its denial of the relator’s application and was notably silent regarding the relator’s claim that the trial court itself also prevented him from testifying. After finding the relator’s other claims without merit, we denied the writ in part but granted it in part for the purpose, of appointing the Tulane Law Clinic to represent the relator on this issue and placing the matter on the docket for oral argument.

Applicable Law

Pursuant to La. Code Crim. Proc. art. 930.3(1) post-conviction relief shall be granted if the conviction was obtained in violation of the state or federal constitutions.

As recognized by both the federal and state constitution, a criminal defendant’s right to testify is fundamental. Specifically, the state constitution provides in pertinent part: “[a]n accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a ^defense, and to testify in his own behalf.” La. Const, art. I § 16. Both state and federal jurisprudence recognize that “a criminal defendant’s right to testify is fundamental and personal to the defendant” and the decision to “testify in one’s own behalf’ is “ultimately a decision for the accused to make.” State v. Hampton, 00-0522, p. 4 (La. 3/22/02), 818 So.2d 720, 723, on reh’g in part (6/7/02) (citing Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C. J., concurring) (emphasis in original). Therefore, “there is no rational justification for prohibiting the sworn testimony of the accused, who above all others may be in a position to meet the pi-osecution’s case.” Hampton, supra (quoting Ferguson v. Georgia, 365 U.S. 570, 582, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961)).

The U.S. Supreme Court has been “unequivocal” in holding that the U.S. Fifth, Sixth and Fourteenth Amendments guarantee a defendant’s right to testify. Hampton, supra (citing Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). Specifically, the opportunity to testify is a necessary corollary to the Fifth Amendment guarantee against compelled testimony because it is only logical that the reverse is true, i.e., “a criminal defendant cannot be compelled to remain silent by defense counsel.” Hampton, 00-0522, p. 6, 818 So.2d at 724 (quoting U.S. v. Teague, 953 F.2d 1525, 1531 (11th Cir.1992) (en banc).) (emphasis in original). Likewise, the defendant’s right to testify is implicit in the Compulsory Process Clause of the Sixth Amendment because “logically included in the accused’s right to call witnesses whose testimony is ‘material and favorable to his defense’ is a right to testify himself, should he decide it is in his favor to do so” because in many criminal cases “the most important witness for the defense ... is the defendant himself. Hampton, 00-0522, p. 6, 818 So.2d at 724-25 (citing Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (emphasis in original). Finally, the right to testify on one’s [4own behalf is one of the rights that is essential to procedural due process and, thus, constitutionally required under the Fourteenth Amendment. Hampton, 00-0522, p. 7, 818 So.2d at 725.

As reiterated by the Louisiana Supreme Court in Hampton, the denial of an accused’s right to testify is not amenable to harmless-error analysis because the right ‘“is either respected or denied; its deprivations cannot be harmless.’” Hampton, 00-522, p. 14, 818 So.2d at 729 (quoting State v. Dauzart, 99-3471 (La. 10/30/00), 769 So.2d 1206, 1210-11. “Therefore, ... whenever a defendant is prevented from testifying, after unequivocally expressing his desire to do so, the defendant has been denied a fundamental right and suffers detrimental prejudice.” Hampton, 00-522, p. 14, 818 So.2d at 729.

Discussion

In this case, the relator unequivocally expressed his desire to testify numerous times before closing arguments and once again after closing arguments. Specifically, the trial transcript in the record shows three assertions by the relator that he wanted. to testify. First, the relator interrupted the rebuttal testimony of Dr. Blue stating: “I didn’t understand, ya’ heard me?. Put me on that stand.” (Emphasis added). Defense counsel immediately requested a short break to confer’with the relator and then Dr. Blue’s testimony resumed. However, the record transcript reveals that the relator asserted his desire to testify twice again after Dr.- Blue finished his testimony:

MR. POREE: Ms. Pittman, I want up on that stand. Straight up. I’m not—
THE COURT: I’m sorry Mr. Poree.
MR. POREE: Ms. Pittman, please may I hop up on that stand?
|BTHE COURT: Well, Mr. Poree, your attorneys rested yesterday. They completed the defense’s case and in these proceedings, the State of Louisiana had the right today to call upon witnesses and now that Dr. Blue is off the stand and they have indicated that they have no further witnesses, this is the end of the state’s case and the defense doesn’t get to call another witness.

(emphasis added).

The trial court subsequently supplemented the record by memorandum submitted on September 28, 2017, with an explanation that after the record (including the trial transcript) was submitted to this court, “it was realized that- the transcript did not reflect all of the outbursts by the Defendant, Ryan Poree, that this court recalled.” (emphasis added). Accordingly, the trial court submitted the following “additional excerpts” discovered by the court reporter upon additional review at the trial judge’s request:

Day 3 — February 13. 2014 — (Reviewed audio from 11:48:59 am-8:30:19 pm)
• @ or about 7:55 pm
Mr. Poree: Well, I walk on the (inaudible) if I been on the stand, ya heard me?
Ms. Park: Judge,.can we have two minutes?
Mr. Poree: I’ll walk on that stand.
Ms. Park: Can we have two minutes, judge? Thank you.
Mr. Poree: No, you can’t go back and tell them nothing. Let me walk on that stand.
• @ or about 7:57 pm
Mr. Poree: That’s what that paper say. Read what that tape say. That’s my life. Fuck what he wrote. Look on the tape, what the tape say? What the tape say is not the same exact thing as that paper say, ya heard me? Look on the tape, it’s not — there’s nothing on the paper. •
• @ or about 8:06 talk.
|nThe Court: All right. Dr. Blue, I’m sure you’ve been waiting for me to say this, but you can step down (laugher).
The Witness: (Laughs) Your Honor, I appreciate that.
Jurors: (Laugh)
The Court: And you can leave the courthouse.
Mr. Poree: I just want to talk, for myself. Nobody gonna talk better so let me.
• @ or about 8:08:29 pm
Ms. Reed: Judge, the state has. no additional witnesses for rebuttal.
Mr. Poree: Miss Pittman, I want to hop up on that stand, straight up.
The Court: I’m sorry, Mr. Poree.
Mr. Poree: Miss Pittman, please, can I hop on that stand?
The Court: Well, Mr. Poree, your attorneys rested yesterday.
Mr. Poree: Yes, ma’am.
The Court: They completed the defense’s case and in these proceedings, the State of Louisiana had the right ‘today to call rebuttal witnesses and now that Dr. Blue is off the stand, and they ■have- indicated that they have no further witnesses, which is the end of the State’s case, arid the Defense doesn’t get to call another witness.
Mr. Poree: All right.
The Court: Okay.
Day 3 — February 14, 2014 (Reviewed audio from 12:01:37pm-5:28:37pm)
• @ or about 3:04 p.m. (After closing arguments.)
Mr. Poree: May I speak. Miss Pittman? Can I, uh, take the stand, please, because I’m going to tell you. Let me take the stand. Your Honor.
The Court: You all need to have your client have a seat. Thank you.

(emphasis in original).

|7The State argues that the trial court judgment should be affirmed because the relator expressed his desire to testify only after defense counsel had rested and that a defendant is not entitled to a rebuttal. The normal order of trial is the presentation of evidence first by the State, then by the defendant, and then the State in rebuttal. However, La. Code Crim. Proc. art 765 specifically provides that the “[t]he court in its discretion may permit the introduction of additional evidence prior to argument.” La. Code Crim. Proc. art. 765(5); see also Rock v. Arkansas, 483 U.S. at 55, 107 S.Ct. 2704 (when a state rule of evidence conflicts with the right to present witnesses, the rule may ‘not be applied mechanistically to defeat the ends of justice,’ but must meet the furidamental standards of due process”).- Moreover, in this case, Dr. Blue did not testify in the State’s case-in-chief but was presented as a rebuttal witness (to the defendant’s affirmative defense of not guilty by reason of insanity) and the defense had filed a motion to allow surrebuttal testimony which the trial court had denied as premature.

The issue in this case in this case .is straightforward. It is not whether the accused should always be .allowed to present surrebuttal testimony, thereby restricting ,the trial court’s discretion in the matter. Nor is it whether the relator’s determination to testify against his counsel’s advice was a wise legal strategy or whether the jury would have found him a credible witness such that the outcome of the trial would have been different. Rather, the issue is whether an accused is deprived of a fundamental constitutional right when, after repeatedly and unequivocally stating his desire to testify before closing arguments, he is denied that right. Under the Louisiana and federal constitutions, as well as related Louisiana and federal jurisprudence, the trial court’s denial of a defendant’s clearly stated desire to testify on his own behalf violates a fundamental right and, | «accordingly, is not subject to harmless error analysis. Therefore, the relator was entitled to post-conviction relief under La. Code Crim. Proc. art. 930.3(1).

Conclusion

The trial court judgment denying the relator’s application for post-conviction relief is reversed and the matter is remanded back to the trial court for further proceedings consistent with this opinion.

JUDGMENT REVERSED; REMANDED.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L,Ed.2d 493 (1967).

      . The facts underlying the charges, although not pertinent to the discussion at hand, are set out in considerable detail in this court’s opinion on appeal.

      . See La. Code Crim. Proc. 930.8


author: PETTIGREW, J.

text:
    STATE of Louisiana v. Daren Q. KITCHEN
    NO. 2017 KA 0362
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered September 15, 2017
    Rehearing Denied September 26, 2017
    Rehearing Denied October 27, 2017

      RICKY L. BABIN, DISTRICT ATTORNEY, LARRY W. BUQUOI, DONALD D. CANDELL, ASSISTANT DISTRICT ATTORNEYS, 23KD JUDICIAL DISTRICT COURT, GONZALES, LA, ATTORNEYS FOR STATE OF LOUISIANA
    ANTHONY P. LEWIS, THIBODAUX, LA, ATTORNEY FOR DEFENDANT-APPELLANT DAREN Q. KITCHEN
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   PETTIGREW, J.

| ^Defendant, Daren Q. Kitchen, was charged by bill of information with aggravated second degree battery, a violation of La. R.S. 14:34.7 (count 1); aggravated criminal damage to property, a violation of La. R.S. 14:55 (count 2); and two counts of aggravated battery, violations of La. R.S. 14:34 (counts 3 & 4). He pled not guilty and, following a jury trial, was found guilty as charged on all counts. He filed motions for new trial and post-verdict judgment of acquittal, which the trial court denied. Thereafter, the trial court sentenced defendant to ten years at hard labor on each count, all to run consecutively. Defendant now appeals, alleging several assignments of error and requesting a patent error review. For the following reasons, we affirm the convictions and sentences.

FACTS

On the evening of July 2, 2012, Jennifer Morvant and Kenneth Gravois were talking in the driveway of Morvant’s home in Lafourche Parish when a black pickup truck drove by her home. Defendant, Mor-vant’s ex-boyfriend, was a passenger in the truck at this point. As the truck drove past Morvant’s home, defendant yelled, “Oh, hell no,” from the passenger’s-side window. Fearful of defendant, Morvant entered Gravois’s truck and instructed him to drive away from the area.

Gravois drove his truck down La. Hwy. 304 in the direction of Thibodaux. As Gra-vois neared a church in Chackbay, the black pickup truck that drove by Mor-vant’s home pulled beside Gravois’s vehicle. Defendant was now driving the truck, and the truck’s owner, Purnell Cage, was riding in the truck’s passenger’s seat. Defendant began to motion for Gravois to stop his truck, but Gravois continued to drive away, ultimately turning onto La. Hwy. 20. Gravois drove his truck at a high rate of speed to |aattempt to evade defendant, but defendant caught up and began to ram Gravois’s vehicle with Cage’s truck. As the front bumper of Cage’s truck and the rear bumper of Gravois’s vehicle impacted, defendant accelerated, causing both vehicles to gain speed. Defendant then pulled into the oncoming lane of traffic and rammed the left side of Gravois’s vehicle. As defendant drove beside him, Gravois slowed his vehicle, and defendant cut back into the proper lane of travel. As defendant did so, he clipped the front bumper of Gravois’s vehicle, causing both vehicles to spin off the roadway. Gravois’s vehicle ended up in the yard of a home in an adjacent subdivision. He eventually drove his vehicle to a nearby park, where he waited for police assistance. The vehicle driven by defendant ended up in a ditch located off the side of the roadway. Cage suffered severe injuries and was transported to the hospital for treatment.

SUFFICIENCY OF THE EVIDENCE

Defendant contends that the trial court erred in denying his motion for post-verdict judgment of acquittal because the evidence presented at trial was insufficient to support his convictions. A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), is an-objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When'analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585, p. 5 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

14When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601, p. 3 (La. App. 1 Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.

Aggravated Second Degree Battery and Two Counts of Aggravated Battery

In pertinent part, battery is the intentional use of force or violence upon the person of another. See La. R.S. 14:33. Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury. La. R.S. 14:34.7(A). “Serious bodily injury” means bodily injury that involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a-bodily member, organ, or mental faculty, or a substantial risk of death. La. R.S. 14:34.7(B)(3).

Aggravated second degree battery, like second degree battery, is a specific intent offense. See State v. Daigle, 439 So.2d 595, 598 (La. App. 1 Cir. 1983). Specific intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be proved by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence,' such as a defendant’s actions or facts depicting the circumstances. State v. Johnson, 461 So.2d 1273, 1277 (La. App. 1 Cir. 1984). Under the theory of transferred intent, if the State can prove that a defendant' possessed the necessary intent to inflict serioús bodily injury upon an intended victim, but accidentally caused the same to another victim ^instead, such intent is transferred to the actual victim. See State v. Druilhet, 97-1717, p. 4 (La. App. 1 Cir. 6/29/98), 716 So.2d 422, 424.

Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34(A). Aggravated battery requires proof of general intent, i.e., a showing that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act La. R.S. 14:10(2); see also State v. Howard, 94-0023 (La. 6/3/94), 638 So.2d 216, 217 (per curiam). General intent may be proven by evidence that the defendant did the acts that have been declared criminal. Howard, 94-0023 at 3, 638 So.2d at 217.

A “dangerous weapon” includes any instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. See La. R.S. 14:2(A)(3). An automobile used in a manner calculated to produce or likely to produce death or great bodily harm has been found to be a dangerous weapon. See State v. Trahan, 416 So.2d 65, 68 (La. 1982).

Defendant did not testify at trial. Defendant contends that the State failed to carry its burden of proving how the ultimate accident occurred or negating the possibility that the collisions were caused by Gra-vois’s slowing his , vehicle rather than defendant’s alleged intentional ramming.

Contrary to defendant’s assertions, the uncontroverted testimonies from the three victims in this case indicate that defendant acted with specific intent in attempting to ram Gravois’s vehicle off the road. The victims’ testimonies reflect that defendant actively pursued Gravois’s vehicle and rammed it several times from behind and the side. When the vehicles’ bumpers became locked together, defendant accelerated his vehicle, despite driving on a two-lane highway at night. When Gravois attempted to slow his vehicle to evade defendant, defendant turned back into Gravois’s lane of travel, clipped the front end of Gravois’s vehicle, and ultimately caused both vehicles to leave the roadway. The resultant crash caused severe injuries to Cage, including broken rib's, |Ba fractured sternum,' a' broken hip’, several lacerations, and at least a partial loss of consciousness.

Viewed in the light most favorable to the State, the evidence establishes that defendant utilized an automobile as a dangerous weapon and intentionally used force against Gravois and Morvant by ramming their vehicle. The facts surrounding the incident — including the violent acts of ramming, the high rate of speed, the narrow roadway, and the time of day — evince intent to inflict serious bodily injury upon Gravois and Morvant. This intent was transferred to Cage, who ultimately suf-féred both extreme physical pain and the protracted impairment of function of a bodily member, particularly his leg.

When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is-guilty unless there is- another hypothesis that raises, a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury’s verdicts in this case reflected the reasonable conclusion that defendant utilized a dangerous weapon to inflict force or violence upon all three victims, including Cage, who suffered serious bodily injury. In finding defendant guilty, the jury rejected the theory that Gravois caused the accident by slowing down. See Moten, 510 So.2d at 61. In accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder, a court of appeal impinges on a fact finder’s discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. State v. Mire, 2014-2295, p. 8 (La. 1/27/16), — So.3d -, -, 2016 WL 314814 (per curiam).

After a thorough review of the record, we find that the evidence supports the jury’s verdicts finding defendant guilty of aggravated second degree battery and two counts of aggravated battery. We are convinced that viewing the.evidence in the light most favorable to the prosecution, and to the exclusion of every reasonable hypothesis of innocence, any rational trier of fact could have found beyond a reasonable doubt that |7defendant was guilty of these offenses. See State v. Calloway, 2007-2306, pp. 9-10 (La. 1/21/09), 1 So.3d 417, 422 (per curiam).

Aggravated Criminal Damage to Property

Aggravated criminal damage to property is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion. La. R.S. 14:55(A). While the punishment for simple criminal damage to property is dependent upon the amount of damage to the property, no such requirement exists for aggravated criminal damage to property. See State v. Bates, 37,282, p. 13 (La. App. 2 Cir. 10/16/03), 859 So.2d 841, 849, writ denied, 2004-0141 (La. 5/21/04), 874 So.2d 173.

At trial, both Gravois and Cain Labat, a mechanic, testified to the nature and amount of damage done to Gravois’s vehicle. Additionally, for the reasons stated above, the evidence was sufficient to demonstrate that defendant caused this damage and, in doing so, created a situation wherein it was foreseeable that human life was endangered. Therefore, the evidence presented at trial was sufficient to sustain the conviction for aggravated criminal damage to property.

DISTRICT ATTORNEY’S RECUSAL

Defendant contends that the trial court also erred in allowing the original district attorney to recuse himself and nominate his successor. Defendant argues that the trial court was required to appoint a successor of its own choosing or, instead, to notify the attorney general of the recusal.

The bill of information in this case was filed by 17th Judicial District Court District Attorney Camille A. Morvant, II. In his brief, defendant represents..that District Attorney Morvant filed a motion to recuse himself and, in the same motion, nominated 23rd Judicial District Court District Attorney Ricky Babin to handle the prosecution. This filing does not appear in the record, However, on March 30, 2015, there was a hearing on defendant’s motion to recuse the newly appointed 23rd Judicial District Court District' Attorney Ricky Babin.

IsAt this hearing, defendant testified that he was notified of the recusal- op February 19, 2014. He stated that he was now asking for the court to appoint the attorney general to avoid any impropriety. He admitted that he had taken no steps to challenge the recusal and appointment from February 2014 until a few weeks prior to the March 30, 2015 hearing.

Defense counsel argued that the recusal provisions of the Code of Criminal Procedure allow for a judge to appoint an attorney, who h^s the qualifications of a district attorney, or to notify the attorney general, but not to allow a recusing district attorney to nominate his successor. Defense counsel also stated that he was not required to prove any harm.

In response, the State argued that since District Attorney Morvant’s recusal, he has had no participation in the case. The State further contended that District Attorney Ricky Babin has the qualifications of a district attorney and would have been entitled to be appointed by the trial court even without the original district attorney’s nomination.

The trial court ultimately denied defendant’s request to appoint another attorney or to notify the attorney general, reasoning in part that District Attorney Ricky Babin is an attorney who has the qualifications of a district attorney and who is not an assistant to the recused district attorney. Furthermore, the trial court found no showing of any alleged imprqpriety. Finally, the trial court noted that it would have been allowed to appoint District Attorney Ricky Babin, or any other district attorney, with i or without District Attorney Morvant’s nomination.

A district attorney may recuse himself, whether a motion for his recusation has been filed or not, in any case in which a ground for recusation exists. La. Code Crim. P. art. 681. When a district attorney is recused, or recuses himself, the trial judge shall either appoint an attorney at law, who has the qualifications of a district attorney and is not an assistant to the recused district attorney, to act in the place of the district attorney in the case, or shall notify the attorney general in writing of the recusation. La. Code Crim. P. art. 682.

|9In the instant case, the original district attorney recused himself and apparently nominated District Attorney Ricky Babin to prosecute defendant in his place. Defendant represents that the two district attorneys involved in this case, one from the 17th JDC district attorney’s office and one from the 23rd JDC district attorney’s office, have prosecuted cases in each other’s jurisdictions on previous occasions. However, there is no evidence in the record regarding this claim, nor is it clear why such a claim is relevant.

There do not appear to be any cases directly on point about a recused district attorney seeking to appoint his own successor. In his brief, defendant cites State v. Clarke, 2003-0129 (La. App. 1 Cir. 9/26/03), 857 So.2d 599, as support for his argument that the original district attorney had no power to name his successor after recusal. The issue in Clarke was whether a trial judge who had recused herself had the authority to later accept defendant’s attempt to withdraw his waiver of his right to a jury trial and also to rescind her recusal. Noting that the trial judge’s authority to act in the defendant’s case ceased at the moment of recusal, the Clarke court found that the trial court erred in reconsidering the defendant’s waiver of his right to a jury trial and vacating its own recusal. See Clarke, 2003-0129 at 5-6, 857 So.2d at 603.

Defendant’s reliance on Clarke is misplaced. First, Clarke involved a trial judge’s recusal, not a district attorney. Second, while we agree with defendant that the original district attorney had no authority to appoint his successor in this case, the district attorney’s recusal and “nomination” did not, in themselves, have the power of appointment without subsequent action by the trial court. In contrast, the trial court in Clarke acted with authority of which it had divested itself. Finally, as the trial court reasoned in denying relief, there was no obligation for the trial court to accept the original district attorney’s “nomination,” which was no more than a recommendation.

The fact that the trial court did ultimately appoint the nominated district attorney’s office does not itself render this appointment unlawful. District Attorney Ricky Babin is undoubtedly an attorney at law who possesses the qualifications of a |indistrict attorney and who is not an assistant district attorney to the recused district attorney. Even had the original district attorney not nominated. District Attorney Ricky Babin, the trial court would have been within its authority to appoint his office under the plain language of Article 682. The disjunctive “or” in Article 682 indicates that the trial court was not required to appoint the attorney general, as defendant requested. See La. Code Crim. P. art. 6(2).

FAILURE TO DECLARE MISTRIAL

Defendant argues that the trial court erred in failing to declare a mistrial, sua sponte, when victim Purnell Cage appeared in the courtroom in a wheelchair.

Immediately before Cage was called to testify, an off-the-record conversation occurred between counsel and the trial court. Thereafter, the trial court informed the jury that Cage had “a medical condition that inhibits his ability to walk” and that he had “some swelling issues going on,” so he would “testify right here,” presumably meaning in a wheelchair. The trial court let the jury exit the courtroom as Cage got situated. Another off-the-record discussion took place before the jury returned and testimony was taken. Defense counsel did not object to anything regarding Cage’s appearance in a wheelchair.

On appeal, defendant argues that Cage’s appearance in a wheelchair prejudiced the jury and created a situation where an impartial verdict could not be reached. Accordingly, he argues that the trial court could have, on its own motion, declared a mistrial.

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to receive a fair trial. La. Code Crim. P. art. 775 (emphasis added).

Defendant failed to move or object on the record to the conduct of which he now complains. Under Article 775, it is incumbent upon the defendant to lodge such a motion or objection contemporaneously. See also La... Code Crim. P. art. 841. Further, | ndefendant cites no authority for the claim that a victim’s appearance in a wheelchair constitutes “prejudicial conduct.”

911 TAPE ADMISSION

Defendant contends that the trial court erred in allowing the introduction of a 911 call placed by Jennifer Morvant. He argues that the admission of.this audio recording violated his Sixth Amendment right to confrontation, constituted inadmissible hearsay, and, contained inadmissible other crimes evidence.

Defendant’s primary issue with the admission of the 911 recording is that Mor-vant, on several occasions during the call, referenced an outstanding protective order against defendant.

Confrontation Clause

Defendant first argues that the admission of the 911 tape violated the Confrontation Clause of the Sixth Amendment because the call’s contents were testimonial in nature. The Sixth Amendment Confrontation Clause bars “admission of testimonial statements of a witness who did not appear, at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). Without addressing whether the call’s contents were testimonial, we note that Morvant appeared at trial to testify and was subject to full cross-examination. Therefore, the Confrontation Clause was not violated.

Hearsay

Hearsay is a statement, other than one inade by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. Code Evid. art. 801(C). Hearsay is generally not admissible, subject to certain exceptions. See La. Code Evid. art. 802. “Present sense impressions,” or statements describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, are not excluded by the hearsay rule, regardless of the' declarant’s availability. See La. Code Evid. art. 803(1). 1 ^“Excited utterances,” which are statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition, are similarly not excluded by the hearsay rule. See La. Code Evid. art. 803(2).

Defendant further argues that the 911 call constituted inadmissible hearsay because neither Morvant nor Gravois could specifically recall the time of day or the exact moment the 911 call was placed. However, the 911 call itself clearly reflects that- Morvant. placed the call as the incident was occurring, as she narrated the sequence of events, including defendant’s ramming of Gravois’s vehicle, the ultimate crash, and Gravois’s action in driving away from the scene to safety. Morvant’s • 911 call was admissible as an exception to the hearsay rule because it constituted a present sense- impression and also contained excited utterances.

Other Crimes Evidence

Furthermore, defendant argues that the 911 call should have been excluded because it contained evidence of inadmissible other crimes or bad acts because of Morvant’s reference to an outstanding protective order. . . ,

Prior to trial, the State filed a notice of intent to use other crimes or bad acts, noting that it sought to introduce evidence that the-.victim held a protective order against defendant at the time of the offense. The notice set forth that the State did not intend to elicit the protective order’s underlying facts, but merely its existence. The State argued that the protective order was evidence of “signature” crime's committed by defendant. In ruling on the State’s motion, the trial, court determined that Morvant’s comment about a protective order did not rise to the level of other crimes evidence because the protective order was not evidence of specific acts. Thus, the trial court allowed the State to introduce this evidence.

We note initially that, while the protective order is not, itself, necessarily “other crimes” evidence, such a legal document is indicative of wrongs or acts perpetrated by the person against whom the order is issued, so an analysis under La. Code Evid. art. | ia404(B) is proper. See State v. Lacayo, 2010-1119 (La. App. 1 Cir. 2/11/11), 2011 WL 2135143, p. 3 (unpublished), writ denied., 2011-0517 (La. 9/30/11), 71 So.3d 281.

Louisiana Code of Evidence article 404(B)(1) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to provfe the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is. the subject of the present proceeding. • '

Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because the risk of grave prejudice to the defendant is substantial. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917, p. 3 (La. App. 1 Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So.2d 115. A trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Galliano, 2002-2849, pp. 3-4 (La. 1/10/03), 839 So.2d 932, 934 (per curiam).

In State v. Taylor, 2016-1124 (La. 12/1/16), 217 So.3d 283, the Louisiana Supreme Court recently clarified the procedure by which the State may seek to introduce other crimes evidence under La. Code Evid. art. 404(B)(1) and State v. Prieur, 277 So.2d 126 (La. 1973). When the State seeks to introduce other crimes-evidence, it is required to provide the defendant with written notice prior to trial of the intent to produce such evidence. When the State does so, the trial court. is required to conduct a pretrial hearing to determine the admissibility of the other crimes evidence. See Taylor, 2016-1124 at 11-12, 217 So.3d at 292.

This hearing is not intended to be a “mini trial” of the prior offenses. Rather than the “clear and convincing” standard previously required under Prieur, Taylor | udarified that when the State seeks to introduce evidence pursuant to La. Code Evid. 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. No specific form of evidence is mandated or prohibited for every ease, and sufficiency of the State’s evidence must be determined on a case-by-case basis. See Id. The safeguard in Prieur providing for a jury charge regarding the limited purpose for whicli the other crimes evidence is presented remains valid. Id. at p. 7.

Even when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence must have substantial relevance- independent from showing defendant’s general criminal character and thus is not admissible unless it- tends to prove a material fact at- issue or to rebut a defendant’s defense. Accordingly, the State cannot simply rely on a boilerplate recitation of the grounds for admissibility stated in La. Code . Evid. art. 404(B). It is the duty of the district court in its gatekeeping function to determine the independent relevancy of this evidence. The district court must also balance the probative value of the other crimes, wrongs, or acts evidence against its prejudicial effects before the, evidence can be admitted. See Taylor, 2016-1124 at 12, 217 So.3d at 292.

In the instant case, the State filed a notice of intent to introduce other crimes evidence not in an attempt to delve into the protective order’s underlying facts, but as a prophylactic measure because of the victim’s passing mention of 'the protective order in the 911 call. While the trial court found the protective order not to be evidence of other crimes or bad acts, this finding does not undermine the conclusion that the mention of a protective order would have been admissible under Article 404 and the Taylor procedure.

The victim’s mention of an outstanding protective order is itself evidence sufficient to support a finding that defendant committed another bad act. Defendant disputed his identity as the vehicle’s driver, so the protective order was probative of motive, intent, identity, and absence of mistake or accident. Finally, because the |1sevidence concerning the protective order was limited to its existence, and not inclusive of the underlying facts leading to it, its probative value outweighed any prejudice. Therefore, the victim’s statement concerning the protective order was properly admitted into evidence.

BATSON CHALLENGE

- Defendant contends that the trial court erred in denying his Batson challenge of a stricken African-American prospective juror.

In Batson, 476 U.S. at 93-98, 106 S.Ct. at 1721-1724, the United States Supreme Court adopted a three-step analysis to determine whether the constitutional rights of a defendant or prospective jurors have been infringed by impermissible discriminatory practices. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. State v. Handon, 2006-0131, pp. 3-4 (La. App. 1 Cir. 12/28/06), 952 So.2d 53, 56.

To establish a prima facie case, the defendant must show: (1) the defendant is a member of a cognizable group and the prosecutor exercised peremptory challenges to remove venire members of the defendant’s race; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the prosecutor struck the venire person on account of his being a member of that cognizable group. See Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Without an inference that the prospective jurors were stricken because they are members of the targeted group, the defendant is unable to make a prima facie case of purposeful discrimination, and his Bat-son challenge expires at the-, threshold. State v. Sparks, 88-0017, p. 37 (La. 5/11/11), 68 So.3d 435, 468, cert. denied sub nom., El-Mumit v. Louisiana, 566 U.S. 908, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012).

The trial court may “effectively collapse the first two stages of the Bat-son procedure, whether or not the defendant established a prima facie case of purposeful discrimination, and may then perform the critical third step of weighing the defendant’s proof and thé prosecutor’s race-neutral reasons to determine discriminatory intent.” State v. Jacobs, 99-0991, p. 8 (La. 5/15/01), 803 So.2d 933, 941, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002). A trial judge may-take into account not only whether a pattern of strikes against a suspect class of persons has emerged during voir dire, but also whether the opposing party’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. See State v. Duncan, 99-2615, p. 14 (La. 10/16/01), 802 So.2d 533, 545, cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002).

The State, in presenting race-neutral reasons for its excusal of prospective jurors, need not present an explanation’ that is persuasive, or even plausible; unless a discriminatory intent is inherent in the State’s explanation after review of the entire record, the reason offered will be deemed race neutral. For a Batson challenge to succeed, it is not enough that a discriminatory result be evidenced; rather, that result must ultimately be traced to a prohibited discriminatory purpose. Thus, the sole focus of the Batson inquiry is upon the intent of the opposing party at the time he exercised his peremptory strikes. See State v. Green, 94-0887, p. 24 (La. 5/22/95), 655 So.2d 272, 287. A reviewing court owes the trial court’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. Handon, 2006-0131 at 5, 952 So.2d at 58.

Defendant challenges the State’s peremptory challenge of Darin Robinson, an African-American male on the first panel of prospective jurors. Defendant represents |17that Mr. Robinson was the only African-American male juror and that the State failed to offer a race-neutral reason for striking him.

At the time the State peremptorily challenged Mr. Robinson, defense counsel immediately lodged a Batson objection. The trial court initially asked the State for its race-neutral reason, but then stated that there first needed to be a prima facie showing. The trial court noted that it would allow the peremptory challenge at that point, but subjected Mr. Robinson to a recall if it was shown there was a Bat-son issue in the-future. The prosecutor then offered a race-neutral reason, stating that Mr. Robinson appeared to be inattentive, causing him concern that Mr. Robinson would not pay attention during trial. Defense counsel argued that he thought.it was odd that the State asked Mr. Robinson whether he knew defense counsel, himself an African-American male. The State explained that he asked this question because Mr. Robinson had nodded at both defendant and defense'counsel.

As the trial court noted with respect to Mr. Robinson’s strike, defense counsel failed to make a prima facie showing of purposeful discrimination. Further, the State offered a race-neutral reason for striking Mr. Robinson — his alleged inattentiveness. This race-neutral explanation was reasonable and had some- basis in accepted trial .strategy. See Handon, 2006-0131 at 7, 952 So.2d at 59. Other than the reliance upon the single African-American male juror who was peremptorily stricken and the State’s question to him about knowing defense counsel, which was negated by the State’s explanation, defendant offered no facts or circumstances supporting an inference that the State exercised its strikes in a discriminatory manner. Thus, defendant’s proof, when weighed against the State’s race-neutral reason, was not sufficient to prove the existence of discriminatory intent against Mr. Robinson. See Green, 94-0887 at 28-29, 655 So.2d at 290. Moreover, a review of the entire voir dire transcript fails to reveal any evidence that the use of peremptory strikes by the prosecutor was motivated by impermissible considerations. See Handon, 2006-0131 at 7, 952 So.2d at 59. Accordingly, we find no abuse of discretion by the trial court in its denials of defendant’s Batson challenges regarding this prospective juror.

MOTION FOR NEW TRIAL

Defendant contends that the trial court erred in denying his motion for new trial, which was predicated on claims that the verdicts were contrary to law and evidence and that a new trial was required to serve the "ends of justice.” Defendant’s “ends of justice” argument echo those he raised throughout most of the assignments of error.

A trial judge’s duty in evaluating a new trial motion brought under La. Code Crim. P. art. 851(B)(1) or La. Code Crim. P. art'851(B)(5) is to put itself in the position of a juror. See State v. McKinnies, 2013-1412, p. 9 (La. 10/15/14), 171 So.3d 861, 869. Article 858 of the Code of Criminal Procedure limits our review of the trial court’s ruling on the new trial motion: “In reviewing the granting or the refusal to grant a new trial, neither the appellate nor the supervisory jurisdiction of the ■ Supreme Court may be invoked, except for error of law.” See Id. This court will attach great weight to- the exercise of the trial-judge’s discretion. Id.

The trial court’s decision.to deny the motion for new trial on the claim that the verdict was contrary to law and evidence was one that required it to act as a juror and reweigh the evidence, which this court is constitutionally precluded from doing. See State v. Mitchell, 99-3342, p. 8 (La. 10/17/00), 772 So.2d 78, 83. Defendant has shown no error of law in the trial court’s denial on this ground, and we have already found sufficient evidence to support the convictions. Additionally, with the exception of the mistrial issue raised in his fourth assignment bf error, we have already found these duplicative new trial “ends of justice” issues to be -meritless on legal grounds. With respect to that assignment of error, raising the mistrial issue in the motion for new trial does, not cure defendant’s failure to object to this issue at trial. See State v. Moody, 2000-0886, pp. 4-5 (La. App. 1 Cir. 12/22/00), 779 So.2d 4, 8, writ denied, 2001-0213 (La. 12/7/01), 803 So.2d 40 (failure to file motion to suppress and to object to identification at trial not revived by motion for new trial). Defendant has shown no legal error in the trial court’s denial of his motion for new trial on any “ends of justice” grounds.

PATENT ERROR

As requested by defendant in his final assignment of error and routinely performed on appeal, this court has conducted an independent review of the entire record in this matter, including a review for patent error under La. Code Crim. P. art 920(2). We note no such errors.

CONVICTIONS AND SENTENCES AFFIRMED.

Crain, J. concurs

      . In his reply brief, defendant raised the issue of double jeopardy for the first time. We note that defendant’s double jeopardy argument exceeded the allowable scope of a reply brief argument. See Uniform Rules — Louisiana Courts of Appeal, Rule 2-12.6. Moreover, defendant sets forth only generalized statements concerning the same evidence test in his reply brief and offers no real briefing on this issue. Nonetheless, based on our review of the record, we find that defendant’s convictions do not constitute double jeopardy.

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

      . The record reflects that defendant lodgdd a second Batson objection on á juror stricken-from the second- panel of prospective jurors, but he does not challenge the denial of that objection on appeal.