text:
    STATE of Louisiana, Appellee v. David Jerome MANNING, Appellant
    No. 51,450-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 9, 2017
    LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, JOHN MICHAEL LAWRENCE, Assistant District Attorney, Counsel for Appellee
    Before DREW, STONE, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

This is the second appeal in a matter arising from the 26th Judicial District Court, Bossier Parish, Louisiana. The defendant, David Jerome Manning, pled guilty to possession of methamphetamine, while reserving his right to appeal the trial court's denial of his motion to suppress. In State v. Manning , 50,591 (La. App. 2 Cir. 05/18/16), 196 So.3d 626 (" Manning I "), the trial court's ruling was affirmed. However, because the trial court did not rule on Manning's second motion to suppress, the matter was remanded to the trial court for a determination of whether Manning's plea was conditioned upon waiver of the second motion. Manning maintains his guilty plea, but appeals the trial court's denial of his second motion to suppress. For the following reasons, we affirm the trial court's ruling.

FACTS

The precise facts of this matter are set forth in Manning I . In summary, Manning was stopped after Louisiana State Trooper Nathan Sharbono observed the vehicle Manning was operating cross the white fog line on I-20 in Bossier Parish. Manning had no driver's license to present to Trp.

Sharbono, nor registration paperwork for the vehicle which Manning claimed his sister rented. A criminal records check revealed that Manning and one of his two adult passengers had extensive criminal records. Trooper Sharbono called for the canine unit, which arrived shortly after the call. Manning declined to consent to a search of the vehicle, and the canine unit conducted a free air sniff around the vehicle. The dog alerted on the vehicle, and a subsequent search yielded a plastic bag from under the front passenger seat containing approximately 100 different colored ecstasy pills.

Manning was charged by bill of information with: possession of a Schedule I controlled dangerous substance ("CDS") (methylone), a violation of La. R.S. 40:966(C)(3) ; possession of a Schedule II CDS (methamphetamine), a violation of La. R.S. 40:967(C) ; and, conspiracy to distribute a CDS, a violation of La. R.S. 40:979 and La. R.S. 14:26. He was also charged with improper lane usage and driving under a suspended license.

Manning filed a motion to suppress, challenging the legality of the vehicle stop and subsequent search. After a hearing, based on the totality of the circumstances and the testimony presented, the trial court denied the initial motion to suppress. Thereafter, Manning filed a second motion to suppress, challenging the legality of the search under Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609, 191 L.Ed. 2d 492 (2015).

At a hearing on July 8, 2015, after some argument as to whether Manning was entitled to a hearing on his second motion to suppress, Manning accepted a plea offer, but no ruling was made on the second motion. Manning pled guilty to possession of methamphetamine, a violation of La. R.S. 40:967(C), reserved his right to appeal the denial of his motion to suppress, and the remaining charges were dismissed. He was sentenced, pursuant to the plea agreement, to five years imprisonment at hard labor.

In Manning I , Manning argued that the trial court erred in denying his motion to suppress because Tpr. Sharbono's suspicions of other criminal activity were unfounded. However, Manning did not distinguish between the two separate motions to suppress. In affirming the trial court's denial of the initial motion, this Court stated:

In stopping Manning for the traffic violation, Trp. Sharbono had a right to conduct a routine license and registration check and to engage in conversation with Manning and his passengers. In the trial court's oral reasons for its findings it noted:
Mr. Manning had no identification. He stated he caught a ride to Houston. The rental papers of the car and the person who rented the car was not there. There was no documentation. There was no paperwork on the car or a rental agreement according to Trooper Sharbono's testimony. He did a criminal records check; found that Mr. Manning had several prior arrests. And he believed that based on Mr. Manning's statements and all the surrounding information that there was a possibility that a crime had been committed. He stated he did not know if the car had been stolen, taken across Texas lines without the proper rental agreement. Stated he did not know if there was other possibilities of other crimes.
The trial court found that Trp. Sharbono had objectively reasonable suspicion of the possibility of some sort of other illegal activity in order to justify further detaining Manning. These articulable facts justified calling the canine unit as a means to dispel or confirm his suspicions.
Once the dog alerted the troopers, they had probable cause to search the vehicle.

Manning I , at 632-3.

With respect to the second motion to suppress, Manning I held that Manning could not reserve the right to review of a motion that was never ruled on by the trial court. Id ., at 635. However, the record in that appeal indicated that Manning believed he maintained the right to appellate review of the second motion; therefore, the matter was remanded to the trial court for a determination of whether Manning's plea was conditioned upon waiver of the second motion to suppress. It was also noted that if Manning did not understand he was waiving review of the second motion by pleading guilty, he should be allowed either to withdraw or maintain his plea, and obtain a hearing and ruling on the second motion. Id .

On remand, no new testimony was presented, and the trial court based its ruling on the same evidence that was presented in relation to the initial motion to suppress. The trial court denied the second motion to suppress, Manning maintained his guilty plea, and this appeal followed.

DISCUSSION

In his sole assignment of error, Manning argues the trial court erred in denying his second motion to suppress. Manning claims he was kept on the side of the road while the officer made no effort to write a traffic citation, which, he argues, unreasonably prolonged the traffic stop in order to allow time for the canine unit to arrive. We disagree.

This Court reviews the trial court's ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to findings of law. State v. Delvalle , 46,563 (La. App. 2 Cir. 09/21/11), 73 So.3d 1026. A trial court's denial of a motion to suppress is afforded great weight and will not be set aside unless a preponderance of the evidence clearly favors suppression. State v. Prince, 50,548 (La. App. 2 Cir. 04/13/16), 195 So.3d 6.

In Rodriguez , supra , the officer stopped the defendant's vehicle for driving on the shoulder. The officer completed the traffic stop and issued a citation in about 21 minutes. However, the defendant was detained for an additional eight minutes, waiting for a second officer to arrive in order to conduct a dog sniff of the defendant's car. The Rodriguez court declined to address whether reasonable suspicion of criminal activity justified detaining the defendant beyond completion of the traffic infraction investigation and remanded the case for further proceedings on the issue. In holding that absent reasonable suspicion, police may not extend an otherwise-completed traffic stop in order to conduct a dog sniff, the Supreme Court explained:

Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's "mission"-to address the traffic violation that warranted the stop, and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may "last no longer than is necessary to effectuate that purpose." Authority for the seizure thus ends when tasks tied to the traffic infraction are-or reasonably should have been-completed ....
An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But, he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.

Rodriguez , supra at 135 S.Ct. at 1614-5 (internal citations omitted).

Louisiana C. Cr. P. art. 215.1(D) codifies the directive of the United States Supreme Court in Rodriguez and provides that in conducting a traffic stop "an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity." In stopping a vehicle on reasonable suspicion, an officer has the right to conduct a routine license and registration check and may engage in conversation with the driver and any passenger while doing so. State v. Lee , 46,742 (La. App. 2 Cir. 12/14/11), 79 So.3d 1278. If a police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. State v. Burney , 47,056 (La. App. 2 Cir. 05/23/12), 92 So.3d 1184, writ denied , 2012-1469 (La. 01/11/13), 106 So.3d 548. In order to further detain a suspect, however, the officer must have articulable facts giving rise to a reasonable suspicion of some separate illegal activity that would justify further detention of the suspect. State v. Williams , 47,750 (La. App. 2 Cir. 04/10/13), 112 So.3d 1022, writ denied , 2013-1394 (La. 12/02/13), 126 So.3d 502. In making that determination, the totality of the circumstances must be taken into account. Id . The circumstances must be judged by an objective standard such that the facts available to the officer at the moment of the search or seizure would warrant a man of reasonable caution in the belief that the action taken was appropriate. Lee , supra . There is no bright line rule for when a detention lasts too long, and each instance must be assessed in view of the surrounding circumstances. Id . Factors which may give rise to reasonable suspicion include the demeanor of the suspect and unlikely and inconsistent accounts regarding travels. State v. Miller , 2000-1657 (La. 10/26/01), 798 So.2d 947 ; Lee , supra . Outstanding warrants and criminal records may also be considered in this inquiry. Williams , supra .

The use of a drug dog as a means of investigation is one way to confirm or dispel the officer's reasonable suspicion. Burney , supra . A dog sniff of the vehicle's exterior surfaces is not a "search" under the meaning of the Fourth Amendment. United States v. Place , 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed. 2d 110 (1983) ; State v. Kalie , 1996-2650 (La. 09/19/97), 699 So.2d 879. However, at the moment the dog alerts to the interior of the vehicle, officers have probable cause to search a vehicle without first obtaining a warrant. Lee , supra .

In assessing the reasonableness of an investigatory detention's duration, the United States Supreme Court has focused on the diligence of the detaining officer(s):

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation and in such cases the court should not indulge in unrealistic second guessing.

United States v. Sharpe , 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed. 2d 605 (1985) ; see also State v. Turner , 2013-0180 (La. 03/1/13), 108 So.3d 753 (finding that a 60-minute detention, while waiting for a canine unit, was reasonable).

Manning I did not specifically address Manning's Rodriguez claim. However, the trial court determined that Trp. Sharbono established additional reasonable suspicion by which to justify Manning's further detention. We agree.

As previously noted in Manning I , Tpr. Sharbono's testimony provided the articulable facts that raised his suspicions of other illegal activity: (1) Manning had no driver's license or paperwork for the vehicle he was driving; (2) upon questioning, Manning related a suspicious account regarding his travel; (3) a criminal background check revealed Manning's extensive criminal history; (4) Manning did not know his passenger's last name; and, (5) Manning's passenger also had a criminal record.

This appeal concerns only Manning's second motion to suppress, which is related to the duration of the traffic stop. The record supports that Trp. Sharbono conducted routine questioning which reasonably raised his suspicions. Once reasonable suspicion is established, the question posed in Rodriguez -extending a traffic stop to allow a dog sniff beyond the reasonable amount of time needed to issue a citation-is no longer applicable. Considering reasonable suspicion was established, we find the trial court did not err in denying Manning's second motion to suppress. This assignment of error is without merit.

CONCLUSION

For the reasons herein, the trial court's ruling denying David J. Manning's second motion to suppress is affirmed. His conviction and sentence are also affirmed.

AFFIRMED.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Phyllis MOORE, Plaintiff-Appellee v. Anna NGUYEN and THT, Inc., Defendant-Appellant
    No. 51,398-CA
    Court of Appeal of Louisiana, Second Circuit.
    August 16, 2017
    THE LAW OFFICE OF JOEL L. PEARCE, By: Joel L. Pearce, Counsel for Appellant
    BROOCKS GREER, ATTORNEY AT LAW, LLC, By: J. Broocks Greer, III, Counsel for Appellee
    Before WILLIAMS, DREW, and MOORE, JJ.
   WILLIAMS, J.

The defendants, Anna Nguyen and THT, Inc., appeal a judgment in favor of the plaintiff, Phyllis Moore. The trial court awarded Moore unpaid wages of $640, penalty wages of $4,799.70 and attorney fees of $3,275. For the following reasons, we reverse and remand with instructions.

FACTS

Phyllis Moore worked as a cook for approximately one year at the Quick Pak Grocery convenience store located in Shreveport. She was paid $160 for three days of work each week, or $53.33 per day. On January 16, 2016, Moore quit the job after working four weeks without pay. In February 2016, the plaintiff, Phyllis Moore, filed a petition for unpaid wages, penalties and attorney fees against the defendants, Anna Nguyen and THT, Inc. Plaintiff chose summary process and a rule to show cause was issued with a hearing scheduled for April 2016. At the hearing, Nguyen stated that she could not speak English well and asked that her son, Tam Hoang, be permitted to assist her. Judge Lattier, the judge to whom the case had been allotted, declined to allow that request and continued the matter to provide time to obtain a certified interpreter.

Subsequently, the matter was tried before Judge Sims. Plaintiff's attorney informed the court that the parties had originally appeared before Judge Lattier, who had granted a continuance. Judge Sims then took a recess to get the file and speak with Judge Lattier. The defendants were not represented by counsel and Nguyen again presented her son as interpreter. After initially objecting to Hoang serving as interpreter for Nguyen, plaintiff waived the objection to proceed with trial. Hoang then took an oath to faithfully interpret the proceedings in an accurate manner and he assisted Nguyen in understanding the questions of plaintiff's attorney during the hearing. After presentation of the evidence, the trial court took the matter under advisement. The trial court rendered judgment awarding plaintiff unpaid wages of $640, penalty wages of $53.33 per day for 90 days, a total of $4,799.70, and attorney fees of $3,275. Defendants appeal the judgment.

DISCUSSION

The defendants contend the trial court erred in hearing a matter assigned to another division within the city court. Defendants argue the judgment is null because they did not consent to have the judge preside over a case that had been assigned to another division.

La. C.C.P. art. 253.1 provides for random assignment of cases to various divisions of the court. Generally, a case that has been assigned to a particular division of the court may not be transferred to another division unless agreed to by all the parties or when the Louisiana Supreme Court has established uniform procedures for reassigning cases. La. C.C.P. art. 253.2. When an interpreter is requested by a non-English-speaking person, who is a principal party in interest in a proceeding before the court, after consultation with the person or his attorney, the court shall appoint a competent interpreter to interpret or translate the proceedings to him. La. C.C.P. art. 192.2.

Random assignment procedures promote fairness and impartiality and reduce the dangers of favoritism and bias. Random assignment becomes meaningless if judges can routinely transfer cases between themselves on a non-random basis. State v. Sprint Communications Co., L.P. , 96-3094 (La. 9/9/97), 699 So.2d 1058.

In this case, the record does not explain why the matter was before Judge Sims rather than Judge Lattier in Division C. A factor may have been that the matter was filed as a summary proceeding and placed on the docket for a rule to show cause. However, this record does not reflect that the correct procedure under Article 253.2 was followed to ensure that the matter was heard by the judge to whom the case was randomly allotted; nor does the record offer an explanation for any deviation from the normal procedure. In addition, the record demonstrates that contrary to the trial court's initial order in this matter, a certified interpreter was not made available to assist these defendants during the proceeding.

Given the apparent procedural irregularities reflected in the record, we are compelled to reverse the judgment and remand this matter for further proceedings conducted in a manner consistent with the procedural rules for random assignment of cases and the appointment of an interpreter. On remand, the trial court is instructed to provide a certified interpreter to assist these defendants during the proceeding as provided by Article 192.2 and by any applicable rules of the Louisiana Supreme Court.

In reaching this conclusion, we pretermit discussion of the assignment of error regarding the reasonableness of attorney fees assessed by the trial court. In addition, considering this court's disposition of the present matter, we decline to award additional attorney fees as sought in the answer to this appeal.

CONCLUSION

For the foregoing reasons, the trial court's judgment is reversed and this matter is remanded to the trial court for further proceedings, with instructions to appoint a certified interpreter to assist the defendants. Costs of this appeal are assessed to the appellee, Phyllis Moore.

REVERSED AND REMANDED WITH INSTRUCTIONS.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Cameron Kinte MAYS, Appellant
    No. 51,552-KA
    Court of Appeal of Louisiana, Second Circuit.
    August 16, 2017
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville Counsel for Appellant
    CAMERON KINTE MAYS
    JEFFREY M. LANDRY, Attorney General, JOHN MICHAEL RUDDICK, Assistant Attorney General, Counsel for Appellee
    Before BROWN, DREW, and PITMAN, JJ.
   DREW, J.

A jury convicted Cameron Kinte Mays, as charged, for three crimes;

• Aggravated rape, La. R.S. 14:42 ;
• Aggravated kidnapping, La. R.S. 14:44 ; and
• Possession of a firearm by a convicted felon, La. R.S. 14:95.1.

For the aggravated rape and aggravated kidnapping convictions, he was sentenced on each to life at hard labor, without benefits.

On the firearm conviction, he was sentenced to 20 years at hard labor, without benefits. The three sentences were ordered to be served concurrently.

He appeals. We affirm the convictions and sentences. We remand for compliance with sex offender notification requirements.

FACTS

In 2012, S.K. and her roommate, Emily, were students at Louisiana Tech University, living together in their Robert Street home in Ruston.

On June 3, 2012, the two girls visited a friend in Bastrop, then returned to Ruston in the early evening hours. After watching television, Emily left to go to her sister's home. S.K. fell asleep on the sofa in her den, in the back of the house,

At trial, S.K. testified:

• in the early morning hours, she was awakened by voices in her home;
• she assumed that Emily had returned with her boyfriend;
• she reached for her phone that had been on the coffee table, but it was gone;
• she got up and started toward her bedroom;
• as she walked past the kitchen, someone jumped from behind the cabinets and grabbed her, covering her mouth and putting a gun to her head;
• she could discern two distinct voices of the intruders;
• the man who grabbed her was her height or a little taller, black, and had a bandanna over his face from the nose down;
• while she did not get a clear view of the men, she saw in her peripheral vision that the second man was bigger than the man who grabbed her;
• the second man did not make physical contact with her;
• she was forced to the couch and tied with a cord;
• her head was covered with a blanket;
• when asked for a condom, she directed the man to her bedroom nightstand;
• he took off her shorts and underwear and had sex with her, with penetration;
• she did not fight because she was afraid her attacker would shoot her;
• after the rape, the rapist uncovered her face, showed her an ATM card and asked if it was hers, and she confirmed;
• she was then placed in the passenger seat of her white Mustang;
• the rapist drove and she was the only other person in the car;
• her impression was that, upon leaving her house, the rapist turned left;
• she also later felt the vehicle cross a railroad track;
• he drove her to an abandoned house, where her attacker made her drive to an ATM while he sat in the backseat with the gun to her head;
• she withdrew the maximum allowed, about $500, and gave it to the attacker;
• she was instructed to drive back to her house on Robert Street;
• she was then put back into the passenger's seat, the blanket was again put over her head and her hands were tied behind her back;
• the rapist then drove to an unknown location and exited the car;
• he got back in the car and drove them back to Robert Street, where he again got out of the car;
• he opened the trunk and had no more contact with her;
• she sat in the car for a few minutes;
• when she realized he was gone, she untied herself and ran into the house;
• as her phone was gone, she locked herself in her bedroom;
• she sent a Facebook message to Emily, requesting her to come home; and
• she did not shower between the rape and her later hospital examination.

S.K.'s roommate, Emily, testified:

• when she received this message, she quickly returned to care for S.K.;
• her recollection of the early evening of June 3 matched that of S.K.;
• she left S.K. asleep on the couch and went to her sister's home;
• she received S.K.'s Facebook message at approximately 6:00 a.m.;
• she found their house to be in disarray, with many items missing;
• they drove to the home of her parents and called S.K.'s parents;
• S.K. was taken to the police department and then to the hospital for an exam.

Clint Williams , Deputy Chief of Police of Ruston, testified:

• at the time of these crimes, he was a sergeant in the criminal investigation division of the Ruston Police Department, and was the lead investigator;
• he took many photos at the scene and seized a key chain and other items;
• there were no unknown fingerprints on any surfaces inside the house;
• a key from the seized key chain was later found to fit a padlock at Mays' trailer home, located at 2003 West Alabama in Ruston;
• another key on the seized key chain opened the doors at Mays' mobile home;
• he took fingerprints from the driver's side window of S.K.'s car and matched them with known prints of the defendant;
• he extracted from Mays' cellphone an incriminating text message, which had been sent to Brandon Bonton at 3:54 a.m. on June 4, 2012; and
• the shortest route to Alpine Villa Apartments from Robert Street was a left on Barnett Springs Road and across the railroad tracks, just as S.K. had indicated.

Stephanie Guillot testified that in her capacity as a SANE nurse, she examined S.K. at the hospital; the findings from that exam were consistent with the victim's report of being raped.

Robert Demps testified that he saw Mays at Alpine in the early morning hours of June 4, 2012. Mays was looking for his cousin, Vanessa Mays, with whom Demps lived. Demps saw someone covered with a blanket in the passenger seat of a white Mustang, and heard Mays say: "I wonder if she's thinking about me."

Markeva Daye lived with Robert Demps and Vanessa Mays at Alpine Villa Apartments, where she saw Mays later in the day. She overheard a conversation between Mays and Vanessa, in which Mays said about the victim: "she was thinking about him."

Vanessa Mays testified:

• she received several phone calls from Mays in the early morning hours of June 4, 2012, but she did not answer;
• when she saw Mays at the complex that day, he was talking about S.K. as a girlfriend, wondering if she was thinking about him;
• the key chain with the pink skulls belonged to Mays, and the key on the chain opened the padlock on Mays' trailer;
• a man named Kevin, who had been mentioned in connection with the rape, was a friend of Mays'; and
• she heard Mays say that he had sex with S.K.

Dr. Jessica Esparza , the DNA Technical Leader for the Northwest Louisiana Crime Lab, was qualified as an expert in DNA testing. She testified that the chance of DNA found on the cigarette butt being from someone other than Mays was approximately 1 in 14.9 sextillion.

Richard Beighley , a criminalist with the crime lab, testified that he matched Mays' known fingerprints with prints on the condom wrapper.

Sherree McCain , deputy clerk with the Lincoln Parish Clerk's Office, identified a certified bill of information and minutes showing that Mays pled guilty to simple burglary on December 11, 2007.

Mike Soileau , a deputy for the Lincoln Parish Sheriff, testified that Mays' fingerprints were on the bill of information relative to that burglary.

The jury convicted Mays as charged. This appeal followed.

DISCUSSION

Insufficiency of Evidence

There is no dispute that S.K. was raped and kidnapped by one of the intruders. The defendant, through counsel, challenges the sufficiency of the evidence regarding:

• his identity as the individual who actually raped and kidnapped S.K.
• his alleged possession of a firearm; and
• the fact that the victim never saw either intruder.

In his similar pro se argument, the defendant maintains:

• he merely drove S.K. home after "Kevin" raped and kidnapped her;
• this constitutes a reasonable hypothesis of his innocence;
• the trial court failed to consider that Kevin participated in the crime;
• Kevin could have been the rapist/kidnapper; and
• there is no proof that he ever had the gun in his possession.

Our law on appellate review of insufficiency claims is well settled.

At the time of these events, the crimes were clearly defined.

The evidence in this horrific case is overwhelming. Each of the three convictions is amply supported by this record, including, inter alia :

• the victim's testimony;
• the defendant's fingerprints found on the condom wrapper;
• the DNA evidence;
• his admission to his cousin that he had sex with the victim; and
• his inculpatory words overheard by Ms. Daye.

While the record indicates that a second intruder was present, S.K. testified that only one man raped her, drove with her, and twice held a gun to her head.

There is no evidence to even remotely suggest that the second intruder, whether it was "Kevin" or someone else, was the man who raped and kidnapped S.K., or who was the only person who was armed. This evidence excludes every reasonable hypothesis of innocence.

ADDITIONAL PRO SE ASSIGNMENTS OF ERROR

Prosecutorial misconduct

Mays claims that the prosecution:

• "completely ignored" that there was another suspect in the house;
• refused to allow him to say the name of "Kevin," who the defendant claims was the second intruder and the actual rapist/kidnapper; and
• submitted false evidence.

Mays cites his direct testimony when he is asked about "Kevin."

At this point, the district attorney's objection of hearsay was sustained. Mays now argues, based on the sustaining of this objection, that he was not allowed to mention "Kevin's" participation in the crime. Mays' arguments are simply not borne out by this record.

It is clear that all parties, including the jury, heard references to the second intruder and all evidence that was not presented identifying Mays as the rapist, kidnapper, and gunman.

Introduction of the audiotape

Immediately prior to trial, the district attorney stated his intention to introduce into evidence a redacted audiotaped telephone conversation between Mays and his sister while Mays was incarcerated at Ouachita Correctional Center. This recording came to the attention of the district attorney shortly before trial. In the 10-minute conversation, Mays states, "I'm not talking about the murder. I'm talking about the kidnapping." There are other portions of the conversation in which Mays references other criminal activity, including drug activity.

The district attorney indicated that the recording would be heavily redacted to eliminate references to any other criminal activity, but would be offered solely for the kidnapping remark. Ruling on the admissibility of the recording was delayed in order for defense counsel to review the recording. The following morning, the matter was again raised, at which time defense counsel informed the trial court that Mays "would like the full version" of the recording to be played. Defense counsel advised the trial court that he had cautioned Mays that the recording would contain inculpatory and prejudicial statements, but Mays insisted. Despite Mays' request, the court ordered references to murder and drugs be redacted. Mays objected and stated that he wanted the references to drugs left in the conversation that would be introduced and played for the jury. The court relented and ultimately agreed that only the reference to murder be redacted, which was against the advice of Mays' counsel. The state did not introduce the recording in its case-in-chief.

Once Mays indicated that he was going to take the stand, his counsel offered the recording into evidence and the district attorney objected on the basis of hearsay. The state argued that because the recording was introduced by the defense, it was being offered for the truth of the matter asserted and was inadmissible hearsay. The trial court sustained the objection. Mays now argues that the recording should have been admitted and the entirety of the conversation played for the jury.

La. C.E. art. 801(D)(2) states:

D. Statements which are not hearsay. A statement is not hearsay if:
***
(2) Personal, adoptive, and authorized admissions. The statement is offered against a party and is:
(a) His own statement, in either his individual or a representative capacity;
(b) A statement of which he has manifested his adoption or belief in its truth; or
(c) A statement made by a person authorized by him to make a statement concerning the subject.

Generally, any out-of-court statement of the accused constitutes hearsay unless subject to an exception. Such statement is admissible as an exception to the hearsay rule when it is an admission against interest. The defendant may not, however, introduce his own self-serving exculpatory hearsay statements. State v. Palmer , 45,627 (La. App. 2 Cir. 1/26/11), 57 So.3d 1099, writ denied , 11-0412 (La. 9/2/11), 68 So.3d 526 ; State v. Taylor , 31,227 (La. App. 2 Cir. 10/28/98), 720 So.2d 447, citing State v. Freeman , 521 So.2d 783 (La. App. 2 Cir. 1988), writ denied , 538 So.2d 586 (La. 1989).

When the district attorney realized that the entirety of the recording would be allowed into evidence, with minor redactions, he elected not to offer it into evidence. Then, the defense attempted to offer the conversation in its entirety. Presumably, Mays believed that the conversation contained exculpatory information. Since he intended to offer his own statement in his defense, in no way could the statement be construed as evidence "offered against him" for purposes of La. C.E. art. 801(D)(2).

A statement is admissible as an exception to the hearsay rule when it is a statement against interest under La. C.E. art. 804(B)(3). The audio evidence certainly could be construed as inculpatory. Thus, the court was presented with the unusual circumstance of a defendant, contrary to advice from counsel, seeking to introduce evidence that would actually help the prosecution. Nevertheless, the hearsay exceptions in art. 804 are operative only when the declarant is unavailable. Ordinarily, a criminal defendant would be considered unavailable as he has a privilege not to testify at trial. However, the defendant was considered available as he elected to testify at trial. As such, the statement was plainly hearsay and, thus, inadmissible. State v. Palmer , supra.

ERRORS PATENT

There is a mandatory fine for convictions of La. R.S. 14:95.1(B).

Although the trial court's failure to impose a mandatory fine results in an illegally lenient sentence, we are not required to remand for imposition of a mandatory fine. State v. Dock , 49,784 (La. App. 2 Cir. 6/3/15), 167 So.3d 1097 ; State v. Fuller , 48,663 (La. App. 2 Cir. 12/11/13), 130 So.3d 960. The state has not complained about the error, and Mays is not prejudiced on this issue.

Aggravated rape is a sex offense under La. R.S. 15:541. Those convicted of a sex offense are required by La. R.S. 15:543 to be provided written notification of the registration and notification requirements, and that an entry be made in the court minutes confirming said written notification.

This was not done. Accordingly, we remand for the trial court to provide the defendant the required written notification as to the sex offender registration requirements and to file written proof of such notice in the record of the proceedings. State v. Wilson , 50,418 (La. App. 2d Cir. 4/6/16), 189 So.3d 513 ; State v. Scott , 42,997 (La. App. 2d Cir. 2/13/08), 975 So.2d 782.

DECREE

The convictions and sentences of Cameron Kinte Mays are affirmed. The case is remanded for compliance with sex offender notification requirements.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      Long after these crimes occurred, but before trial, La. R.S. 14:42, aggravated rape, was amended by Acts 2015, Nos. 184 and 256, to change the name of the offense to first degree rape. Subsection E was added, which explains: E. For all purposes, "aggravated rape" and "first degree rape" mean the offense defined by the provisions of this Section and any reference to the crime of aggravated rape is the same as a reference to the crime of first degree rape. Any act in violation of the provisions of this Section committed on or after August 1, 2015, shall be referred to as "first degree rape". The instant crimes occurred in June, 2012.

      Items seized: (1) key chain with pink skulls on it, found on the couch where S.K. was raped; (2) cigarette butt found in the back yard; (3) hair straightening iron with cord found in S.K.'s car; (4) latent fingerprints lifted from the driver's side window of S.K.'s car; (5) a University of Texas blanket; and (6) an opened and empty condom wrapper found on the floor beside the couch where S.K. was raped.

      "It's done like a gangsta. Then took the bitch on a ride in her Mustang blindfolded. Brought her to Alpine, let Rob see the shit. Got the TV, huge. Let my dude get. I'd arrest to help him. Erase this. Not a game."

      "SANE" is an acronym for Sexual Abuse Nurse Examiner.

      The standard of review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bryant , 12-233 (La. 10/16/12), 101 So.3d 429 ; State v. Steward , 51,006 (La. App. 2 Cir. 1/11/17), 213 So.3d 1174. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson , 14-0945 (La. 6/30/15), 172 So.3d 616 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/6/09), 21 So.3d 297.
      The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Kelly , 15-0484 (La. 6/29/16), 195 So.3d 449 ; State v. Taylor , 47,400 (La. App. 2 Cir. 7/18/12), 103 So.3d 405, writ denied , 12-1898 (La. 3/8/13), 109 So.3d 355.
      A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Robinson , 02-1869 (La. 4/14/04), 874 So.2d 66 ; State v. Freeman , 50,282 (La. App. 2 Cir. 4/13/16), 194 So.3d 1. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Reed , 14-1980 (La. 9/7/16), 200 So.3d 291 ; State v. Steward , supra ; State v. Kidd , 45,638 (La. App. 2 Cir. 11/3/10), 55 So.3d 90. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence. State v. Joyner , 50,740 (La. App. 2 Cir. 6/22/16), 197 So.3d 724, and citations therein; State v. Johnson , 96-0950 (La. App. 4 Cir. 8/20/97), 706 So.2d 468, writ denied , 98-0617 (La. 7/2/98), 724 So.2d 203. This is equally applicable to the testimony of sexual assault victims. State v. Steward , supra ; State v. Joyner , supra ; State v. Seaton , 47,741 (La. App. 2 Cir. 4/10/13), 112 So.3d 1011, writ denied , 13-1056 (La. 11/15/13), 125 So.3d 1102.
      Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts. State v. Rose , 50,861 La. App. 2 Cir. 9/28/16, 206 So.3d 1102. When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 provides that "assuming every fact to be proved that the (circumstantial) evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." State v. Rose , supra ; State v. Jones , 00-980 (La. App. 5 Cir. 10/18/00), 772 So.2d 788, 791. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Rose , supra. When the direct evidence is viewed in accordance with Jackson, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Id.

      In pertinent part:
      La. R.S. 14:42, Aggravated rape
      A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
      (1) ***
      (2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
      (3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
      La. R.S. 14:44, Aggravated kidnapping
      Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender's actual or apparent control:
      (1) The forcible seizing and carrying of any person from one place to another; or
      (2) *** ; or
      (3) The imprisoning or forcible secreting of any person.
      La. R.S. 14:95.1, Possession of a firearm *** by a person convicted of certain felonies
      A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

      The following exchange took place:
      Q: Were you [at S.K.'s house] by yourself?
      A: No, sir, I was not.
      Q: How many other people were with you?
      A: I had one other person I was with, friend named Kevin. Associate, really, named Kevin.
      Q: What was your relationship with this person?
      A: Me and Kevin used to smoke weed together. You know, hang out in the apartments, sell weed together. That's how I met him. I actually met him from the apartments while I was hanging over at Alpine so we were real good associates.
      Q: Can you tell me what you were doing at Robert Street?
      A: Well. To be honest, I went to go steal. Late one night, Kevin told me that "man, listen, we got a lick."

      The latter portion of the CD includes Mays talking about "twin," a/k/a "Kevin," a/k/a "KO," and Mays' assertion that Kevin was actually a confidential informant and told the police about Mays' involvement with the attack on S.K. Mays tells his sister that Kevin was with him during the attack, but states that he had no intention of bringing Kevin's involvement out because the state would have to prove Mays' guilt, which he thought the state could not do. Mays continually says that Kevin was with him during the crimes, but not until the very end of the recording does he imply that the other person "did this." The conversation is inculpatory, as it includes references to a murder and his drug use and sales. He also says at the beginning of the conversation that he was facing 15 charges and was looking at the death penalty.

      The felon-in-possession of a firearm statute requires a fine of from $1,000 to $5,000.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Gregory Lynn JOHNSON, Appellant
    No. 51,652-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    GREGORY LYNN JOHNSON, Pro Se
    JAMES E. STEWART, SR., District Attorney, Ann Arbor, MI, BRITNEY A. GREEN, Mansfield, TOMMY JAN JOHNSON, Shreveport, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, GARRETT, and STONE, JJ.
   STONE, J.

The defendant, Gregory Lynn Johnson, was convicted by a unanimous jury of second degree murder and sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Johnson now appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On June 27, 2013, officers with the Shreveport Police Department ("SPD") responded to a 911 call from a residence located at 609 Central Street in Shreveport, Louisiana. Officers found Walter Howard ("Walter") just inside the front door lying in a pool of blood with an apparent gunshot wound to the chest. Walter was transported to the hospital, where he was pronounced dead.

On August 15, 2013, Gregory Lynn Johnson ("Johnson") was indicted by a grand jury for the second degree murder of Walter. On November 3, 2016, a jury unanimously found Johnson guilty as charged. Johnson received the mandatory sentence of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Johnson now appeals.

Appellate counsel argues there was insufficient evidence to support the conviction. Johnson filed a pro se brief arguing insufficiency of the evidence, as well as the violation of his Fifth Amendment right against self-incrimination and Sixth Amendment right to confront and cross-examine an adverse witness. Johnson also argues the trial court erred by lodging an incomplete appellate record.

DISCUSSION

Sufficiency of the Evidence

The standard of appellate review for a sufficiency of the evidence claim is 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate, 2001-1658 (La. 05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter, 42,894 (La. App. 2 Cir. 01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086 ; State v. Robinson , 50,643 (La. App. 2 Cir. 06/22/16), 197 So.3d 717, 719, writ denied , 2016-1479 (La. 05/19/17), 221 So.3d 78. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Dotie, 43,819 (La. App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/06/09), 21 So.3d 297 ; State v. Robinson, supra .

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases 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 inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983) ; State v. Speed, 43,786 (La. App. 2 Cir. 01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/06/09), 21 So.3d 299 ; State v. Robinson, supra .

Direct evidence provides proof of the existence of a fact, for example, a witness' testimony that he saw or heard something. State v. Lilly , 468 So.2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id . When the state relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove and the circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Lilly , supra ; State v. Robinson , 47,437 (La. App. 2 Cir. 11/14/12), 106 So.3d 1028, writ denied , 12-2658 (La. 05/17/13), 117 So.3d 918.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen , 36,180 (La. App. 2 Cir. 09/18/02), 828 So.2d 622, writs denied , 2002-2595 (La. 03/28/03), 840 So.2d 566, 2002-2997 (La. 06/27/03), 847 So.2d 1255, cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The appellate court neither assesses the credibility of witnesses nor reweighs evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason , 43,788 (La. App. 2 Cir. 02/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913 ; State v. Hill , 42,025 (La. App. 2 Cir. 05/09/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529.

When a jury reasonably and rationally rejects the exculpatory hypothesis of innocence offered by a defendant's own testimony, an appellate court's task in reviewing the sufficiency of the evidence under the Due Process Clause is at an end unless an alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Calloway , 2007-2306 (La. 01/21/09), 1 So.3d 417 ; State v. Matthews , 50,838 (La. App. 2 Cir. 08/10/16), 200 So.3d 895 ; State v. Walker , 51,217 (La. App. 2 Cir. 05/17/17), 221 So.3d 951.

Second degree murder is defined by La. R.S. 14:30.1, in pertinent part, as the "killing of a human being" when the offender has "a specific intent to kill or to inflict great bodily harm." Specific intent is the 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). As a state of mind, specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. State v. Kahey , 436 So.2d 475 (La. 1983) ; State v. Lensey , 50,242 (La. App. 2 Cir. 11/18/15), 182 So.3d 1059, 1062, writ denied , 2015-2344 (La. 03/14/16), 189 So.3d 1066. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Lloyd , 48,914 (La. App. 2 Cir. 01/14/15), 161 So.3d 879, writ denied , 15-0307 (La. 11/30/15), 184 So.3d 33. The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar , 414 So.2d 741 (La. 1982) ; State v. Lloyd, supra.

At Johnson's trial, the state presented the jury with the following evidence and testimony. Katrina Sims ("Sims") testified that, on June 27, 2013, she made the initial 911 call to report witnessing Walter being shot by a man named "Greg." Sims testified she was in a relationship with Walter's brother, Johnny Howard ("Johnny"), and had been staying at the brothers' residence at 609 Central Street for a couple of months prior to the shooting. Sims testified she was aware that Walter made his living selling drugs and admitted to being a drug user herself. Sims professed to using drugs on the day of the shooting but claimed she was still in her "right mind" and able to "see things clearly."

Sims testified that on June 27, 2013, between 2:00 and 3:00 a.m., she was dropped off at 609 Central Street by a friend. As Sims walked up to the house, she saw Johnson standing on the front porch of the house talking to Walter, who was standing inside the house between an opened wooden door and a locked screen door with burglar bars. Sims greeted Johnson as she walked up to the porch. Sims had known Johnson for about a year from the neighborhood, and they had previously done drugs together. Walter opened the screen door for Sims and locked it after she entered the house. Sims stated Walter usually made drug deals through the locked screen door.

Upon entering the house, Sims testified she overheard the men arguing over a drug transaction. Johnson said, "Man, you going to have to do better than this, man, hey, man, what is this." Walter responded, "Man, just fuck it, give me my shit, man, I got to get up early in the morning, man, I got to go to Kansas City, I got to go out of town, so give me my shit." Sims testified she saw Walter open the door and Johnson place three packages of "rock" into Walter's hands. Thereafter, the men started "tussling." Sims described Walter as the bigger man in stature and strength compared to Johnson. Sims testified she did not initially see a gun but subsequently saw Johnson produce a silver pistol. Sims did not see Walter with a weapon.

Sims stated when Walter saw the gun, he grabbed the wooden door and pushed it shut. As Walter leaned against the door to hold it shut, Sims testified that she heard several gun shots. She also heard Walter moaning. After witnessing the shooting, Sims said she ran to the back of the house and hid under a bed. While under the bed, Sims called 911 to report the shooting and named Johnson as the shooter. The 911 call was played for the jury. Sims testified the person she identified as the shooter in the 911 call was the same person sitting in the courtroom, Johnson. Once officers arrived at the scene, Sims spoke with SPD Officer Zachary Johnson ("Officer Johnson"), whom she knew from the neighborhood. Sims testified she told Officer Johnson that "Greg just shot Walter." In an interview conducted by SPD Detective Joshua Mayfield ("Detective Mayfield") at the police station, Sims stated she witnessed Johnson shoot Walter. She also identified Johnson as the shooter in a photographic lineup.

Johnny, Walter's older brother, testified that on the morning of the shooting, he was awakened by Johnson knocking on his bedroom window looking for Walter. He had known Johnson for several years. Johnny testified he told Johnson that Walter was asleep. Johnson then told Johnny to wake up Walter because he had "$50 for him." After waking Walter up, Johnny testified he saw Walter walk to the front door where Johnson was standing. Soon after returning to bed, Johnny heard "squabbling" between Walter and Johnson and then gun shots. Upon hearing the gun shots, Johnny got out of bed and crawled down the hallway toward the front door. Johnny found Walter lying down and saying, "I've been shot, man. He shot me." Johnny immediately called 911. Like Sims, Johnny went to the police station to give a statement and identified Johnson in a photographic line-up as the last person he saw talking to Walter.

During cross-examination, Johnny admitted to talking with Michael Holmes ("Holmes"), the defense's private investigator, and stating Sims was not in the house when Walter was shot. However, Johnny testified he later learned he was mistaken and Sims was in the house during the shooting. Johnny testified he went back to bed after Walter went to the front door and would not have known if Sims subsequently entered the house. Johnny explained there were multiple people at the residence on the morning of the shooting because they were all traveling later that day to a family reunion in Kansas City.

Corporal Johnson testified he responded to a report of a shooting at 609 Central Street on June 27, 2013. Corporal Johnson grew up in the same neighborhood as Walter and Johnson and had known them since he was a child. Upon arriving at the scene, Corporal Johnson stated he was approached by a hysterical Sims who told him "Greg just shot Walter." Corporal Johnson knew she was referring to Greg Johnson, who he encountered less than a block away from Walter's residence the night prior to the shooting. After speaking with Sims, Corporal Johnson stated he and several other officers left the scene to locate Johnson at his residence, which was in close proximity to Walter's residence. However, they were unsuccessful in locating him.

Justin Glover ("Glover") became a witness following a letter he wrote from jail to the Caddo Parish District Attorney in 2013 about his knowledge of the shooting. Glover testified he knew both Walter and Johnson, and had visited with Johnson at his house prior to the shooting. Glover testified he left Johnson's house with him and witnessed Johnson walking in the direction of Central Street where Walter lived. Later that day, Glover encountered Corporal Johnson who stated they were looking for Johnson because he had killed Walter. Thereafter, Glover testified he met with Johnson again in Johnson's yard. According to Glover, Johnson was accompanied by two young men, and they all had guns. Glover testified he informed Johnson that Corporal Johnson was looking for him, and Johnson responded by telling everyone to leave. Glover saw Johnson give his gun to one of the young men and ask the young man to put the guns in a ditch near Johnson's house. Glover testified Johnson then told him that he thought he killed Walter.

SPD Corporal Erick Ardoin ("Corporal Ardoin") was involved in the apprehension of Johnson hours after the shooting. Corporal Ardoin testified that, on the day of the shooting, he received a call from a confidential source that Johnson was located at 1543 Hollywood Avenue. Armed with a warrant to arrest Johnson, Corporal Ardoin testified that a team of officers surrounded the house and obtained permission from an occupant to enter. Corporal Ardoin, along with other officers, entered the house looking for Johnson. Corporal Ardoin stated they eventually found Johnson hiding in a closet. After a brief struggle, Corporal Ardoin was able to arrest Johnson and bring him into custody.

Detective Mayfield was the homicide detective on the case. Detective Mayfield, along with SPD Sergeant Eric Farquhar ("Sergeant Farquhar"), examined the crime scene and identified six shell casings near the location where the shots were fired. During his testimony, Sergeant Farquhar identified photographs of the evidence found at the scene, including shell casings, bullet markings and trajectory, and blood-splattered magazines and a $100 bill near the front door.

Dr. Long Jin ("Dr. Jin") was stipulated as an expert in the area of forensic pathology. Dr. Jin conducted Walter's autopsy and determined the cause of death was a gunshot wound to the left chest. Dr. Jin concluded the manner of death was a homicide. Carla White ("White"), a firearms expert with the North Louisiana Crime Lab in Shreveport, testified she examined six fired 9mm shell casings from the scene of the shooting, a bullet from the scene, and the bullet taken from Walter's body. Based on her examination, White concluded the six shell casings were all fired from one weapon and the two bullets were both fired from one weapon. After learning the shell casings found at the scene came from the same gun, Detective Mayfield concluded it was unlikely there was more than one shooter.

Detective Mayfield testified he interviewed Sims and Johnny after the shooting and corroborated their trial testimony. Detective Mayfield testified Sims identified Johnson as the shooter and Johnny identified Johnson as the man at the house looking for Walter minutes before the shooting. Additionally, Detective Mayfield testified he interviewed Glover in 2015 about the letter he wrote to the district attorney. Detective Mayfield corroborated Glover's trial testimony, and stated he searched the ditch by Johnson's house but did not recover anything. Since it had been a couple of years since the shooting, Detective Mayfield testified he did not expect to recover any physical evidence from the ditch. He also tried to track down the two young men that Glover stated were with Johnson. However, Glover did not know their names, and Detective Mayfield was unable to determine their identities.

On cross-examination, the defense pointed out Glover stated in his letter that Johnson was not the person who shot Walter. However, Detective Mayfield responded Glover was not at Walter's home at the time of the shooting, and thus, could not have firsthand knowledge of who actually killed Walter. Moreover, during Glover's cross-examination, Glover stated he did not believe Johnson was the shooter, because the two young men Johnson was with that morning "had a reputation for doing things like that" and "Greg ain't never had a reputation like that." Glover reiterated that he saw Johnson with a gun after the shooting and that Johnson stated he thought he killed Walter.

After the state rested its case, the defense presented the testimony of Holmes. The private investigator testified he interviewed Johnny, on or about August 12, 2016. A recording of the interview was played for the jury. In the interview, Holmes testified Johnny told him that Sims was not in the house at the time of the shooting and that he only saw Sims after the shooting. On cross-examination, Holmes admitted he did not ask Johnny any follow-up questions, such as how many people were in the house, if he had searched any of the rooms to locate Sims, or whether Sims had made a 911 call immediately after the shooting.

The defense next presented the testimony of Johnson's wife, Betty Johnson ("Betty"). At the time of the shooting, Betty was living in Savannah, Georgia. Betty testified she had never known Johnson to own a weapon, she forbade him from having a weapon in the house, and she had no reason to believe he had a weapon on the day of the shooting. On cross-examination, Betty admitted she had no firsthand knowledge of whether or not Johnson had a weapon on the day of the shooting.

Johnson elected to testify on his behalf. On the morning of the shooting, Johnson testified he was walking on Central Street, near Walter's house, when he saw a car pull up and a man and a woman get out of the car. The occupants of the car were standing in Walter's yard when Johnson approached the house. Johnson saw the woman enter the house and noticed the man was still in the yard standing at the corner of the house. Johnson testified he stepped onto the porch and rang the doorbell, noticing that the door to the house was slightly ajar. According to Johnson, Walter came to the door and asked him what he needed. Johnson told Walter that he had a $100 bill. Johnson testified he put the $100 bill on the door and Walter "went to peeling off some-some drugs."

Johnson testified he told Walter someone was standing at the end of his house, and Walter told him not to worry about it because the man was with the woman. Johnson stated he got his drugs and left. While walking down the street away from the house, Johnson said he heard gun shots and ran to an apartment complex nearby and "hit a piece of the drug." Thereafter, Johnson stated he saw the same car that had dropped the woman off at Walter's house "coming off Central Street." Johnson testified he knew Sims but did not see or speak to her on the morning of the shooting. Johnson admitted he did not see the face of the woman who got out of the car but that the woman could have been Sims.

Johnson also denied seeing Glover or having a gun on the day of the shooting. Johnson said he did have a conversation with Glover after the shooting while they were imprisoned together. Johnson denied concealing a weapon, hiding a weapon in a ditch, or having anyone else hide a weapon in a ditch. The week of the shooting, Johnson testified he found out he had an arrest warrant for failing to register as a sex offender. Johnson stated he hid after the shooting because he heard sirens nearby and did not want to go to jail for his failure to register as a sex offender.

After a thorough review of the record, we find the evidence presented at trial was sufficient to convict Johnson of the second degree murder of Walter. The evidence shows Walter was shot in the chest while inside the door of his home. The evidence placed Johnson outside the door of the home at the time of the shooting. The evidence established Walter was a drug dealer and Johnson was a known drug user. Sims testified she arrived at the home while Walter was executing a drug transaction with Johnson from inside the door. She stated the men began arguing and Johnson attempted to enter the home armed with a pistol. Sims testified Walter tried to close the door on Johnson by leaning his weight against the door but shots rang out and Walter dropped to the floor. Sims identified Johnson numerous times as the shooter.

The physical evidence presented by the state supported Sims' testimony. At least six 9mm shell casings, fired from the same gun, were found at the crime scene. Three shell casings were found on the front porch by the door where Johnson was seen immediately before the shooting. The physical evidence demonstrated that the 9mm bullets penetrated the door at a trajectory that would likely hit a person on the other side of it. The forensic evidence revealed Walter was killed by a 9mm bullet to the chest.

While Johnson argues Sims' testimony is unreliable because she was using drugs on the day of the shooting, it is not the duty of this court to assess Sims' credibility. Sims stated she was in her "right mind" at the time of the shooting, and the jury's decision to accept her testimony is entitled to great deference. Eason, supra . Furthermore, the majority of Sims' testimony was corroborated by other witnesses. Johnny placed Johnson on the front porch of the house, with Walter standing on the other side of the door, inside the home. Johnny testified that, while in bed, he heard the men arguing immediately before hearing gun shots. Thereafter, Johnny saw Walter lying on the ground near the front door saying the words, "he shot me." Additionally, Glover testified he saw Johnson after the shooting with a gun and that Johnson stated he thought he killed Walter.

In his pro se brief, Johnson asserts all the witness testimony presented by the state was impeached and therefore, standing alone, could not be used to support his conviction. However, Johnson fails to identify any specific witness testimony that was allegedly impeached. The jury clearly found the witness testimony credible and Johnson's exculpatory hypothesis of innocence unpersuasive. Furthermore, the state presented adequate physical evidence to support the witness testimony. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found Johnson had the specific intent to kill or inflict great bodily harm to Walter on the morning of June 27, 2013. Accordingly, the jury's decision will not be disturbed on appeal.

Doyle Violation

In Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that the use for impeachment purposes of the defendant's silence at the time of arrest and after receiving Miranda warnings violates the Due Process Clause of the Fourteenth Amendment. The decision in Doyle rests on the premise that Miranda warnings render the subsequent silence of the defendant "insolubly ambiguous," and thereby make later use of that silence to impeach his or her exculpatory testimony at trial fundamentally unfair. State v. Richards , 99-0067 (La. 09/17/99), 750 So.2d 940 ; State v. Grant , 47,365 (La. App. 2 Cir. 09/20/12), 105 So.3d 81, writ denied , 2012-2279 (La. 04/05/13), 110 So.3d 1073 ; State v. Mansfield , 50,426 (La. App. 2 Cir. 02/24/16), 190 So.3d 322, 326.

A defendant's due process rights are violated when a prosecutor impeaches a defendant's exculpatory story, told for the first time at trial, by cross-examining him about his failure to have told the story after receiving Miranda warnings at the time of his arrest. State v. Marshall , 2013-2007 (La. 12/09/14), 157 So.3d 563.

The Doyle proscription against referring to a defendant's post-arrest silence is not without exceptions. The state is allowed to reference the defendant's post-arrest silence when the evidence of post-arrest silence is relevant to rebut a defense-raised assertion that the arresting officers failed to properly investigate or that the defendant actively cooperated with the police when arrested. State v. Bell , 446 So.2d 1191 (La. 1984) ; State v. Harrison , 46,325 (La. App. 2 Cir. 05/18/11), 69 So.3d 581 ; State v. Mansfield, supra.

A Doyle violation is characterized as a trial error which is subject to a harmless error analysis. The harmless error inquiry is "whether the guilty verdict actually rendered in this trial was surely unattributable to the error." State v. Marshall, supra ; State v. Harrison, supra ; State v. Mansfield, supra . A Doyle violation that is not harmless under this harmless error test constitutes reversible error. State v. Mansfield, supra.

After Johnson was arrested and brought to the police station, Detective Mayfield testified he advised Johnson of his rights and Johnson signed a rights form. A copy of the rights form was admitted into evidence over defense counsel's objection. At the police station, Detective Mayfield testified he made a reference to Johnson about knowing Walter and the Howard family for about 20 years, and Johnson voluntarily commented he had known them "his whole life."

At trial, defense counsel claimed Johnson's Fifth Amendment right was violated by the admission of Johnson's rights form that stated "asked for a lawyer." According to defense counsel, the admission of the rights form placed in front of the jury the fact that Johnson refused to talk to police. In his pro se brief, Johnson contends the state elicited police officer testimony of his post-Miranda silence to infer guilt in violation of Doyle. We disagree.

A Doyle violation occurs when the state uses a defendant's post-Miranda silence to impeach his exculpatory testimony. However, Johnson testified at trial and was never questioned about his post-Miranda silence. Furthermore, it is reasonable to conclude the state admitted Johnson's rights form to show Johnson provided the comment voluntarily and not as evidence against him. At trial, Detective Mayfield never discussed whether Johnson waived his rights, or otherwise invoked his right to remain silent. Detective Mayfield only referenced a voluntary, post-Miranda statement provided by Johnson, which is not a Doyle violation.

Nonetheless, even if Detective Mayfield's testimony and the admission of the rights form was a Doyle violation, it is harmless error. As stated above, the corroborated testimony of Sims, along with the physical evidence, was sufficient to support Johnson's conviction.

Confrontation Clause Violation

In his pro se brief, Johnson argues the trial court violated his Sixth Amendment right to confront and cross-examine Corporal Ardoin, a witness against him. During Corporal Ardoin's direct examination, he testified that Johnson attempted to evade arrest by hiding in someone else's home. Once Johnson was found, Corporal Ardoin testified he struggled with Johnson, who was uncooperative and resisted arrest. On cross-examination, defense counsel attempted to show that, at the time of his arrest, Johnson had two outstanding warrants, one being for his failure to register as a sex offender. The state objected on the basis that defense counsel was soliciting potential La. C. E. art. 404(B) information which was not related to the case and the admission of which might cause a mistrial. The trial court sustained the objection.

Johnson claims he evaded and resisted arrest because of the arrest warrant for failure to register as a sex offender, which predated the arrest warrant for Walter's murder. Johnson argues evidence regarding the arrest warrant for failure to register as a sex offender was relevant in light of the following jury instruction requested by the state: "Evidence of flight, concealment, and attempt to avoid apprehension is relevant. It indicates consciousness of guilt and, therefore, is one of the circumstances from which the jury may infer guilt." Johnson contends the trial court erred by sustaining the state's objection and preventing defense counsel from cross-examining Corporal Ardoin about Johnson's previous warrant.

The Confrontation Clause of the Sixth Amendment provides that in "all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Sixth Amendment safeguards the defendant's right to confront his accusers and to subject their testimony to rigorous testing in an adversary proceeding before the trier of fact. California v. Green , 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ; State v. Dukes , 46,029 (La. App. 2 Cir. 01/26/11), 57 So.3d 489, writ denied , 11-0443 (La. 03/02/12), 83 So.3d 1033.

Confrontation errors are subject to a harmless error analysis. See Delaware v. Van Arsdall , 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) ; State v. Robinson , 01-0273 (La. 05/17/02), 817 So.2d 1131 ; State v. Cope , 48,739 (La. App. 2 Cir. 04/09/14), 137 So.3d 151, writ denied , 14-1008 (La. 12/08/14), 153 So.3d 440 ("The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt."). Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness's testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. Delaware v. Van Arsdall, supra ; State v. Cope, supra .

The trial court erred by not allowing defense counsel to cross-examine Corporal Ardoin about his knowledge of Johnson's previous arrest warrant. The information would have supported Johnson's assertion that he avoided arrest for failing to register as a sex offender and not because he killed Walter. Nevertheless, the error was harmless. Johnson was allowed to testify that he avoided arrest because of the previous arrest warrant, and absent Corporal Ardoin's testimony, the evidence was sufficient to support Johnson's conviction.

Designation of the Record

In his pro se brief, Johnson asserts the appellate record does not contain a transcript of voir dire, opening statements, closing arguments, and all bench conferences. Johnson contends he could not thoroughly prepare his appeal without the missing transcripts.

In a motion for appeal and designation of the record granted by the trial court, Johnson's counsel requested the inclusion of "the entire transcript of the trial" in the appellate record. In preparation of filing a pro se brief, Johnson timely requested a copy of the appellate record, which was shipped to him. Soon after, Johnson filed a motion to supplement that appellate record with the missing transcripts, noting his counsel had requested the "entire transcript." In his motion, Johnson argued there are issues which must be addressed on appeal, "as there were objections lodged during the course of jury selection, or in the alternative, defense counsel should have objected to errors." This court denied Johnson's motion to supplement.

A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal does not cause reversal of a defendant's conviction. State v. Magee , 2011-0574 (La. 09/28/12), 103 So.3d 285, 335 ; State v. Hollins , 2011-1435 (La. App. 4 Cir. 08/29/13), 123 So.3d 840, 873, writ denied , 2013-2555 (La. 04/25/14), 138 So.3d 642. An incomplete record may be adequate for appellate review. State v. Castleberry, 98-1388 (La. 04/13/99), 758 So.2d 749, 773 ; State v. Hollins, supra. Absent a showing of prejudice based on the missing portions of the transcripts, a defendant is not entitled to relief on the basis of an incomplete record. State v. Castleberry, supra ; State v. Hollins, supra.

We find the record was adequate for appellate review. Johnson failed to specify any errors which occurred during voir dire, openings statements, closing arguments, or the bench conferences, and the record does not indicate defense counsel made any objections during those proceedings. Consequently, we cannot find Johnson was prejudiced by the missing transcripts.

CONCLUSION

For the foregoing reasons, Gregory Lynn Johnson's conviction and sentence are affirmed.

AFFIRMED.

      Sergeant Farquhar also identified a photograph of a piece of paper that had the name "Greg" on it with a phone number. Detective Mayfield called the phone number on the paper and learned that the number belonged to another Greg that worked at a lawnmower shop.

      White concluded that all the shell casings and bullets were definitely 9mm. However, she testified that, without the handgun, she could not determine if the bullets and shell casings were fired from the same gun.