SALVANT IV v. << (2025)

Defendant, Eddie Salvant, IV, appeals his convictions and sentences for second degree murder in violation of La. R.S. 14:30.1 and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. On appeal, defendant assigns nine errors. For the following reasons, we affirm defendant's convictions and sentences.

PROCEDURAL BACKGROUND

On April 5, 2018, a Jefferson Parish Grand Jury returned a two-count indictment, charging defendant, Eddie Salvant, IV, with second degree murder of Everette Burns in violation of La. R.S. 14:30.1, on November 22, 2017 ¹ and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1.² Defendant was arraigned on April 6, 2018, and pled not guilty. The same indictment also charged co-defendant, Willie H. Battle, with one count of second-degree murder in violation of La. R.S. 14:30.1.³

On June 29, 2020, the State filed a “Motion in Limine to Determine Admissibility of Evidence of Prior Shooting.” The State's motion concerned the admissibility of evidence of a prior shooting, in which Battle was the victim, that occurred on November 13, 2017, approximately nine days before the shooting in the present matter. A hearing was held on October 15, 2020, and trial court granted the State's motion on October 16, 2020.

Defendant and Battle proceeded to trial on January 23, 2023. A twelve-person jury unanimously found defendant and Battle guilty as charged. On February 1, 2023, the trial court sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence as to count one. As to count two, the trial court sentenced defendant to twenty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The sentences were ordered to be served consecutively.

On September 6, 2023, defendant filed a counseled motion for an out-of-time appeal, which the trial court granted on September 12, 2023.

FACTS

On November 22, 2017, Everette Burns was shot outside of Nathan's Discount on Lapalco Boulevard in Gretna. He later died as a result of the injuries he sustained from a gunshot to his abdomen.

During the January 2023 trial, Husan Jaber, an employee of Nathan's Discount, testified to the events he observed on November 22, 2017. He explained that Nathan's Discount is a gas station located within a strip mall which included several other businesses. These businesses were described as a snowball stand, which was next to Nathan's Discount, Boss Cuts, a barbershop which was next to the snowball stand, and a laundromat on the end of the strip mall. On the day of the incident, he was informed by people coming into the store that there were two men outside with hoods on and that one had a gun. Mr. Jaber recalled calling the police then going outside to see what was happening. Once outside the store, he saw two men in hoods fighting with a man in a yellow shirt in front of the snowball stand. He then heard gunshots, which caused him to run back inside the store. The man in the yellow shirt was later identified as the victim, Mr. Burns.

When the police arrived at the scene, Mr. Jaber gave them the store's surveillance videos for the period from 4:00 p.m. through 5:00 p.m. on November 22, 2017. The store's video surveillance system provided several different angles of the crime scene. During Mr. Jaber's testimony, those video recordings were played for the jury. Mr. Jaber identified himself as the man standing by the doorway of Nathan's Discount. The video depicted two individuals whose faces were covered by the hoods of their black sweatshirts. Describing what the video recording captured, Mr. Jaber pointed out that the shorter man was holding a gun in his hand. He testified that he did not see anything in the second man's hand.

Later, Mr. Jaber described viewing two photographic line-ups in a meeting with the police. In the first line-up, he identified defendant as the shorter man he saw after the shooting. He testified that defendant had been a store customer in the past. Mr. Jaber testified that he was unable to identify the second suspect who walked past the store after the shooting from the other photographic line-up presented by the police.

Ali Charlemagne testified he was at Boss Cuts barbershop with his sons on the day of the shooting. While standing in front of the barbershop window speaking to his wife on his cellphone, Mr. Charlemagne saw two black men in hoodies walking, one of whom had a pistol. He then went back into the barbershop to retrieve his two sons and told others in the barbershop, “[T]here's two guys out there with a pistol.” Mr. Charlemagne recalled that he, his sons, and others moved to the back area of the barbershop, and then heard a gunshot.

Roosevelt Malone, III testified he was working at Boss Cuts on November 22, 2017, when the victim came in to get a “shape up.” After Mr. Malone finished his haircut, the victim left to get money from the ATM at Nathan's Discount. As his next client was getting into the barber chair, he heard a gunshot. He then saw the victim get in his car, put it in reverse, and pass out. Mr. Malone recalled running out of the barbershop with Lyndon Miller to keep the car from moving into traffic on Lapalco Boulevard. When he reached the car, he found the victim unconscious in the driver's seat.

As he leaned into the car to shift it to park, Mr. Malone testified, he saw that the victim had been shot and was bleeding from his stomach. Mr. Malone and Mr. Miller removed the victim from his car and tried to stop the bleeding. While waiting for the police to respond to their call, the victim was placed in the back seat of his car and Mr. Miller drove him to Ochsner West Bank. Mr. Malone remained at the scene and waited for the police to arrive. He provided the police with the victim's cellphone. In his trial testimony, Mr. Malone recalled that he did not see a gun on the victim or inside his car.

Lyndon Miller testified that on November 22, 2017, he was at Boss Cuts with his nine-year-old son. While his son was getting his haircut, Mr. Miller heard someone say, “No, not here, not here.” He realized something was going on, so he grabbed his son, and ran into the bathroom. After hearing a gunshot, he covered his son, and others entered the bathroom. He then left the bathroom, and headed towards the front door when he heard Mr. Malone saying, “No, no, no, no.” At that point, he walked to the victim's car, where he saw the victim slumped over in the front seat with a gunshot wound to his stomach. Mr. Miller testified that the victim was not conscious, but still breathing. He removed the victim from the car, placed him on the ground, and applied pressure to his wound.

While the victim was on the ground, Mr. Malone called 9-1-1. Mr. Miller recalled that he and Mr. Malone became impatient with the 9-1-1 operators, so they placed the victim in the backseat of his car and drove to the hospital. Upon arrival at the hospital, he brought the victim into the emergency room and waited for the police to arrive. Mr. Miller testified that he did not see any weapons on the victim or in the car. He also testified that he did not know the victim personally before that day and that he did not see the shooting occur.

Detective Harold Wischan, a homicide investigator with the Jefferson Parish Sheriff's Office (JPSO), testified that Detective Anthony Buttone, the lead investigator, requested his assistance at Ochsner Hospital on November 22, 2017. When he arrived at the Hospital, the victim's car was near the emergency room with the front driver's side and back passenger doors open. The backseat passenger compartment and the clothing inside the car were stained with blood. He also observed the butt of a revolver beneath the floor mat on the driver's side.

Detective Wischan viewed the victim lying on the hospital bed, intubated and unresponsive, suffering from a gunshot wound to the right lower abdomen. The victim was transferred to University Hospital in New Orleans and ultimately died. The hospital retrieved a projectile from the victim's body and gave it to JPSO detectives.

While at the hospital, Detective Wischan was approached by the victim's aunt, Amanda Harris Williams. He asked Ms. Williams if she knew of anyone who would want to harm her nephew. Ms. Williams said she heard Willie Battle had been shot while inside his car, and that “the word on the street” was this shooting was in retaliation for that shooting.

Ms. Williams testified that the victim was her sister's son. She also explained that defendant and Battle are half-brothers who share the same mother, Bertha Garrison. She identified defendant and Battle as her cousins, whom she had known since they were babies. Ms. Williams knew defendant better than Battle based on his close friendship with her deceased son.

Ms. Williams testified that the victim was known by the nickname “Bang” and that he sold drugs. After hearing about the shooting, she and her daughter went to the hospital, where she spoke to the police, providing them with information about the shooting that she heard from the neighborhood and families. She was shown surveillance videos from Nathan's Discount by the police; in two of the video recordings, Ms. Williams identified defendant and Battle. Although she could not see their faces in the video, she explained that she recognized them because one was taller than the other, she lived in the same neighborhood as they did, and that Battle had a “little funny walk to him” like he was “pigeon-toe[d].”

Erika K. Segura, a deputy with JPSO testified via Zoom from the United Arab Emirates. At trial, Deputy Segura explained that she was on deployment with the Navy, but was still employed full-time with JPSO. While on duty for the JPSO, she responded to a call on November 14, 2017 regarding a shooting that had occurred the night before at 672 Bannerwood in Gretna. When she arrived at the scene, she saw a gray Nissan Maxima with five bullet holes on the driver's side, and observed shell casings on the ground nearby.

Deputy Segura spoke to Battle, who had reported the shooting in a call earlier that morning. Battle told Deputy Segura that he was asleep in his residence when the shooting occurred. He stated he did not hear any shots fired that night, but saw the damage to his vehicle in the morning. Deputy Segura noted the presence of video cameras at 689 Bannerwood, which was just across the street from the shooting. The property owner was unable to make a copy of the recording, but allowed Deputy Segura to use her JSPO camera to record the surveillance video.

In the video, Deputy Segura observed a vehicle parked in the driveway at 672 Bannerwood. An individual exited the driver's seat, then, a moment later, reentered the vehicle and closed the door. A second individual approached the vehicle from the driver's side, fired rounds into the vehicle, and then fled. The vehicle then backed out of the driveway and also fled the scene. According to Deputy Segura, the video recording content was inconsistent with Battle's statement. In her follow-up conversation with Battle, Deputy Segura testified that he acknowledged being the person in the car when shots were fired. Battle reported that he did not know the identity of the shooter.

Deputy Segura recounted that JPSO had received a call for service concerning shots fired at the same address on the previous evening. The reporting person in that call provided information which was consistent with the video surveillance recording. Deputy Segura concluded her investigation by referring the November 13th incident to JPSO's homicide division; there were no suspects at that time.

Detective Buttone, a JPSO homicide detective, testified that he was the lead investigator in this case. His division received a patrol division notification of an incident at a strip mall located at 403 Lapalco Boulevard and Bannerwood. When the detectives arrived at the scene, they collected a fired cartridge casing between the snowball stand and barbershop. This was the only ballistics evidence found on the scene.

The detectives met with several witnesses who were in the barbershop and near Nathan's Discount. Detective Buttone testified that he learned that the victim had just stepped outside the barbershop when he was shot. Witnesses provided physical descriptions of the perpetrators as two black males, one being a very large, heavy-set individual and the other being a shorter individual, who had a firearm tucked under his arm. No one he spoke to that evening was able to identify the perpetrators.

Detective Buttone testified that he obtained surveillance video from multiple cameras at Nathan's Discount. The video surveillance showed that the victim arrived at the scene approximately half an hour before the shooting. He could then be seen from various cameras walking back and forth to the parking lot multiple times and entering the barbershop. Next, defendant and Battle can be seen walking toward the barbershop. As the victim is leaving the barbershop, he is confronted by defendant and Battle. During his trial testimony, Detective Buttone was able to slow down and zoom in on some of the Nathan's Discount surveillance video recordings, which depicted defendant and Battle confronting the victim and fleeing the scene.

Detective Buttone testified that Detective Wischan responded to the hospital where the victim was taken after the shooting. At the hospital, Detective Wischan spoke to a family member who identified the two men she believed may have been responsible for the shooting, defendant and Battle, both of whom lived nearby on Bannerwood. She also reported a recent shooting involving Battle that occurred on Bannerwood.

After confirming information concerning the November 13 shooting, Detective Buttone learned that defendant and Battle both had a residential address of 672 Bannerwood. Through a database, Detective Buttone ascertained that defendant's height and weight was listed as 5’5” and 165 pounds, while Battle was listed as 6’3” tall and 350 pounds.

Detective Buttone obtained surveillance video recordings made on November 22, 2017 from 689 Bannerwood, which is located across the street from defendant and Battle's residence. The time stamp contained on the recording was incorrect, but Detective Buttone ascertained that the video started at approximately 3:46 p.m. – less than an hour before the murder. The video depicts a gray Nissan Maxima parked at 672 Bannerwood. It then captures images of two men leaving the residence; one being a large, heavyset male, and the other being a very short male. Both are wearing clothing similar to that worn by the suspects observed on the Nathan's Discount video surveillance. Detective Buttone believed that the shorter man with darker sweatpants was defendant.

While showing the jury a map of the area, Detective Buttone indicated that defendant and Battle's residence at 672 Bannerwood was a three-minute drive from Nathan's Discount. In a broadcast of the video recording from 689 Bannerwood during his testimony, Detective Buttone pointed out that the Nissan Maxima arrived at Bannerwood about forty seconds before 4:00 p.m. A person whom he believed to be defendant, is seen getting out of the Nissan Maxima. Next, an individual whom Detective Buttone believed to be Battle, is seen walking out of 672 Bannerwood. Detective Buttone based his identification opinion upon the similarity of clothing observed on the Nathan's Discount surveillance video.

The Bannerwood video surveillance recording captures the Nissan Maxima departing 672 Bannerwood, and heading in the direction of Lapalco Boulevard, at 4:04 p.m. Detective Buttone testified that the victim was shot at approximately 4:40 p.m. He further explained that the Bannerwood video surveillance recording depicts the Nissan Maxima returning to Bannerwood at approximately 4:56 p.m. After the car is parked across the street, the video surveillance records someone running into and out of the residence at 672 Bannerwood. Thereafter, the individual enters the car, which then drives away, but later returns to the residence a short time afterwards.

Based on what he observed, Detective Buttone obtained a search warrant for 672 Bannerwood. During the search, Detective Buttone spoke to Bertha Garrison, defendant and Battle's mother. Initially, she told detectives that she did not know where her sons were, and that she had not seen or spoken to either of them since November 22, 2017. She later changed her statement, stating that she had texted with defendant but had deleted the messages. Ms. Garrison's cell phone was seized, and the contents were downloaded. A digital forensics analysis of her cell phone disclosed a text message dated November 24, 2017 that stated, “How's my son?” The message was sent before the search warrant was executed and before Detective Buttone spoke to Ms. Garrison.

During the search of the residence, defendant and Battle's identification cards were found in their respective rooms. A rifle magazine and a cell phone were found in Battle's room. In defendant's room, the police located a residential video surveillance DVR system and a debit card in his name.

Detective Buttone testified that Donisha Johnson, a relative of the victim, unexpectedly appeared at the detectives’ office to discuss the homicide. She claimed that her family was accusing her of being involved in the homicide. She was not interviewed at this time. Later, Detective Buttone found Ms. Johnson at her place of employment and when they informed that her name appeared in their investigations, she became uncooperative. Detectives asked Ms. Johnson for permission to search her cell phone. In response, she began to manipulate the phone to perform a “hard reset” to erase her data. Detective Buttone then seized the cellphone and placed her under arrest for obstruction of justice.

A digital analysis of Ms. Johnson's phone revealed text messages sent to phone number ***- 3439, which Detective Buttone believed belonged to defendant. The November 14, 2017 text messages between Ms. Johnson and defendant's phones stated the following:

Incoming message from defendant: “Look at the news tonight.”

Outgoing message to defendant: “WTF happened?”

Outgoing message to defendant: “Is y'all okay? Your momma?”

Incoming message from defendant: “Everybody good.”

Incoming message from defendant: “We don't miss.”

Outgoing message to defendant: “Dam, Bro, my nerves bad. I need a pain pill.”

Incoming message from defendant: “They better get their black clothes ready.”

Outgoing message to defendant: “Yes indeed.”

Text messages from November 24, 2017, two days after the murder, between Ms. Johnson and defendant revealed that he was in Florida. On November 25, 2017, a text was received from defendant on Ms. Johnson's phone that directed her to “erase this.” Detective Buttone testified that the text messages were in fact erased.

Arrest warrants were obtained for defendant and Battle for second degree murder. Battle was arrested by U.S. Marshals in Florida, and his cell phone was seized. Located on his phone was a photograph of the search warrant that was left at his residence with his mother on November 25th. U.S. Marshals located and arrested defendant in Jefferson Parish; two cell phones were seized from him during the arrest.

Detective Buttone testified that there were many deleted items on defendant's and Battle's phones. He described some phones as being regularly used before the homicide and some as being burner phones obtained afterwards.

Dr. Yen Van Vo, who was accepted as an expert in forensic pathology, testified she performed an autopsy on the victim. She opined that the manner of death was homicide, and the cause of death was the sole gunshot wound to his abdomen.

Linda Tran and Jene Rauch were accepted as experts in the examination of firearms. They performed ballistic examinations on the casings and projectiles collected from 672 Bannerwood on November 14, 2017, and the murder scene on November 22, 2017. Both examiners concluded the casings and projectiles were not shot from the revolver found in the victim's vehicle.

A stipulation was entered into by the parties that Donna Quintanilla was an expert in latent print processing and comparison. Ms. Quintanilla testified that she took fingerprints from defendant in the courtroom and identified State's Exhibit 18 as the ten-print fingerprint card. Ms. Quintanilla received a certified conviction packet for defendant from case number 10-1106, in Division “A” in 24th Judicial District Court, for one count of possession of cocaine from February 14, 2011. She compared the fingerprints from the prior conviction to the fingerprints she took from defendant and testified that there was “sufficient detail that were in agreement to effect the identification of” defendant.

ASSIGNMENTS OF ERROR

On appeal, defendant raises nine assignments of error. First, defendant asserts the evidence presented by the State was insufficient to support his conviction for second degree murder and possession of a firearm by a convicted felon. Second, defendant contends he was not convicted by a jury of his peers. Third, defendant asserts the State's opening statement reference to his prior conviction was improper. Fourth, defendant asserts the trial court erred by allowing evidence of the November 13, 2017 shooting. Fifth, defendant argues the trial court erred by rendering of judgment by minute entry without notice. Sixth, defendant contends the trial court erred by allowing Deputy Erika Segura to testify via video conferencing. Seventh, defendant contends Amanda Williams’ identification of defendant and Battle was improper lay opinion testimony. Eighth, defendant asserts his sentences are unconstitutionally excessive. Ninth, defendant argues the cumulative errors at trial warrant reversal of his convictions.

Sufficiency of the Evidence

On appeal, defendant asserts that the evidence presented at trial was insufficient to support his convictions of second degree murder and possession of a firearm by a convicted felon. He argues that the evidence presented at trial was entirely circumstantial and there was no direct evidence of guilt to either the charge of second degree murder or the charge of felon in possession of a firearm. In further support of his assignment of error, defendant points out that a search of his home and cell phone did not reveal evidence of his involvement in the homicide. Additionally, he argues Ms. Williams testimony concerning the “word on the street” was prejudicial. Finally, defendant contends that his text messages with Ms. Johnson do not implicate him or Battle.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct, circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Baham, 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 566, writ denied, 15-40 (La. 3/24/16), 190 So.3d 1189.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Flores, 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122. When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 provides, “[A]ssuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

On appeal, the reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational trier of fact could not have found proof of guilt beyond a reasonable doubt. Baham, supra. The directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact's rational credibility calls, evidence weighing, and inference drawing. State v. Clifton, 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 702. This deference to the fact-finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is contrary to the weight of the evidence. State v. Caffrey, 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297. Further, a reviewing court errs by substituting its appreciation of the evidence and the credibility of witnesses for that of the fact-finder and overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310 So.3d 794, 804. As a result, under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at the trial established guilt beyond a reasonable doubt but whether, upon review of the whole record, any rational trier of fact would have found guilt beyond a reasonable doubt. State v. McKinney, 20-19 (La. App. 5 Cir. 11/4/20), 304 So.3d 1097, 1103.

In its determination of whether any rational trier of fact would have found the defendant guilty, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. Lane, supra. The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, 1233.

Encompassed within proving the elements of an offense is proving the identity of the defendant as the perpetrator. The State is required to negate any reasonable probability of misidentification to carry its burden of proof. State v. Ray, 12-684 (La. App. 5 Cir. 4/10/13), 115 So.3d 17, 20, writ denied, 13-1115 (La. 10/25/13), 124 So.3d 1096. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. Caffrey, supra.

In this case, defendant was convicted of second degree murder in violation of La. R.S. 14:30.1, which is defined as the killing of a human being when the offender: 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, even though the offender has no intent to kill or to inflict great bodily harm. See State v. Lewis, 05-170 (La. App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ denied, 06-757 (La. 12/15/06), 944 So.2d 1277. The written jury charges, signed by the trial judge, reflect that the jury was informed that it could convict defendant under the theory that he had the specific intent to kill or inflict great bodily harm.

Additionally, the jury was instructed as to the definition of principals in the written jury charges. Under La. R.S. 14:24, “[a]ll persons concerned with the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” Only those persons who knowingly participate in the planning or execution of a crime are principals to that crime. State v. Pierre, 631 So.2d 427, 428 (La. 1994); State v. King, 06-554 (La. App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-371 (La. 5/4/07), 956 So.2d 600. Under the law of principals, a person may still be convicted of a crime even if he has not personally fired the fatal shot. State v. Massey, 11-357 (La. App. 5 Cir. 3/27/12), 91 So.3d 453, 463, writ denied, 12-991 (La. 9/21/12), 98 So.3d 332.

Being a principal to the crime is more than mere presence at the scene of the crime. Persons who knowingly participate in the planning and execution of a crime are principles to that crime. Massey, supra. The law of principals requires proof “that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice's intention.” State v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225; State v. Page, 08-531 (La. App. 5 Cir. 11/10/09), 28 So.3d 442, 449, writ denied, 09-2684 (La. 6/4/10), 38 So.3d 299. An individual may only be convicted as a principal for crimes in which he personally has the requisite mental state, and the intent of the accomplice cannot be imputed to the defendant. State v. Williams, 20-46 (La. App. 5 Cir. 12/30/20), 308 So.3d 791, 822, writ denied, 21-0316 (La. 5/25/21), 316 So.3d 2 (citing State v. Chattman, 01-556 (La. App. 5 Cir. 10/30/01), 800 So.2d 1043, 1048, writ denied, 01-3320 (La. 12/19/02), 833 So.2d 332).

In addition to his conviction for second degree murder, defendant was also convicted of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. To support a conviction under La. R.S. 14:95.1, the State must prove beyond a reasonable doubt that defendant had: (1) possession of a firearm; (2) a prior conviction for an enumerated felony; (3) absence of the ten-year statutory period of limitation; and (4) the general intent to commit the offense. With respect to the third element, the State must prove that ten years has not elapsed since the date of completion of the punishment for the prior felony conviction. State v. Woods, 23-41 (La. App. 5 Cir. 11/15/23), 376 So.3d 1144, 1156, writ denied, 23-1615 (La. 5/29/24), 385 So.3d 700.

Defendant argues that his convictions were based solely on circumstantial evidence and that the State failed to prove his identity as the perpetrator of the offenses. He does not contend that a particular element of second degree murder or felon in possession of a firearm were unmet.

In the instant matter, we find that the State presented sufficient evidence to convict defendant of second degree murder. Mr. Jaber, who was working at Nathan's Discount when the shooting occurred, identified defendant in a photographic lineup, stating that he looked like a customer from his store. Mr. Jaber also testified that the shorter of the two men had a gun in his hand. While he was unable to identify Battle, Mr. Jaber testified that one of the perpetrators was much taller than the other. Records reflected that defendant, who was listed at 5’5”, 165 pounds, was shorter than Battle, who was listed as 6’3”, 350 pounds. Nathan's Discount surveillance video of the shooting corroborated Mr. Jaber's testimony and showed the shorter of the two men with what detectives identified as a firearm in his hand.

Ms. Williams informed Detective Wischan about “the word on the street” about the shooting on November 13, 2017 in which Battle was shot at while seated in his car. She was shown multiple surveillance videos of the November 22, 2017 shooting, and recognized the men in hoods as defendant and Battle. She testified that although she could not see their faces in the surveillance video, she recognized them because one was taller than the other. In another surveillance video of the men from another angle, she again identified defendant and Battle. Ms. Williams explained that she was related to both men and that she has known them since they were babies. She testified that her late son and defendant were longtime friends, and she saw him often. She stated she was able to identify Battle by his “pigeon toed” walk because she had lived in the same neighborhood as both men, which she described as a small community.

Detective Buttone confirmed that there was a shooting that occurred on November 13, 2017, at 672 Bannerwood, that involved Battle as the victim. Detective Buttone was able to obtain surveillance video from the day of the murder from a residence across the street, 689 Bannerwood. The video showed two men exiting the residence located at 672 Bannerwood, wearing the same clothing as the men from the surveillance of the shooting. The surveillance video showed both men entering a gray Maxima, the same car that Battle was sitting in when he was shot at days prior, and traveling on Bannerwood in the direction of Lapalco at approximately 4:04 p.m. on the day of the murder. The surveillance video also showed defendant and Battle returning to 672 Bannerwood shortly after the shooting.

Text messages between Ms. Johnson and defendant on November 14, 2017, showed that defendant likely informed Ms. Johnson of the shooting that occurred the prior evening. Defendant told Ms. Johnson, “[T]hey better get their black clothes ready.” A text message to Ms. Johnson from defendant on November 24, 2017, stated that he was in Florida. A text message sent from defendant to Ms. Johnson on November 25, 2017, stated, “[E]rase this.” Text messages were in fact erased from Ms. Johnson's phone, but were able to be recovered.

Given the evidence presented in this case, particularly, the surveillance videos, and the testimonies of Mr. Jaber and Ms. Williams, we find that the State negated any reasonable probability of misidentification. Accordingly, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support defendant's conviction of second degree murder and possession of a firearm by a convicted felon. This assignment of error is without merit.

Constitutional Right to Jury of Peers

In this assignment of error, defendant asserts his constitutional right to a jury of his peers was violated because there were no persons of color on his jury, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Defendant requests to supplement the record with the voir dire transcript from January 23, 2024. The State responds that defendant does not appear to complain of a Batson violation, but seems to complain of a disproportionate exclusion due to the State's challenges for cause.

The minute entry from voir dire on January 23, 2023 does not reflect that any objections by defense counsel to any jury challenges by the State for cause or to the excusal of jurors by the trial court for cause. La. C.Cr.P. art. 841(A) provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. We find that not only is defendant not entitled to supplementation of the record with the voir dire transcript, but that he is precluded from raising the argument on appeal because it was not preserved when he did not lodge a contemporaneous objection below. This assignment is without merit.

State's Reference to Prior Conviction

In this assignment of error, defendant argues that the trial court erred by failing to grant a mistrial or cautionary jury instruction on the State's opening statement reference to defendant's prior conviction for possession of cocaine. He argues that the reference was prejudicial “as it set the tone for the trial” and the “jury being aware that [he] had a prior conviction.”

The record reflects the following statement by the State in reference to defendant's previous conviction:

And what you're also going to hear is Mr. Salvant has a prior conviction for possession of cocaine. We talked about that in voir dire. And the fact that he had a gun that day, not only did he shoot and is guilty of murder, but he was not allowed to even have a firearm in the first place because of his status as a felon.

As pointed out by the State, defendant was charged with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. One of the elements that the State must prove in order to support a conviction under La. R.S. 14:95.1 is that the defendant had a prior conviction for an enumerated felony. Woods, 376 So.3d at 1156. The prior conviction mentioned by the State in its opening statement is the prior conviction listed in the amended indictment. This assignment of error is meritless.

Admission of Evidence of Prior Shooting

In this assignment of error, defendant argues that the trial court erred when it granted the State's Motion in Limine to Determine Admissibility of Evidence of Prior Shooting which allowed the admission of evidence of an unrelated prior shooting in which Battle was a victim. In its motion, the State asked the trial court to determine the admissibility of the evidence of the November 13, 2017 shooting. Defendant argues that given the lack of connection between the incidents, the admission of the evidence was prejudicial. The State responds that the prior shooting evidence is not subject to the limitations of La. C.E. art. 404(B) in that the evidence was not a “bad act” or “other crime” of defendant. Additionally, the State contends that the restrictions on other crimes evidence in La. C.E. art. 404(B) is inapplicable because the evidence is relevant to both the “story of the crime” and to motive, i.e., retribution for the prior shooting and admissible under La. C.E. arts. 401 and 402.

La. C.E. art. 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La. C.E. art. 402 provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation.”

In deciding the issue of relevancy, the trial court must determine whether the evidence bears a rational connection to the facts at issue in the case. State v. Breaux, 22-581 (La. App. 5 Cir. 5/10/23), 366 So.3d 727, 735. Even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La. C.E. art. 403. Any inculpatory evidence, however, is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Thomas, 19-582 (La. App. 5 Cir. 7/29/20), 300 So.3d 517, 527, writ denied, 20-1503 (La. 3/2/21), 311 So.3d 1053.

The term “unfair prejudice,” as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the fact-finder into declaring guilt on a ground different from proof specific to the offense charged. State v. Frickey, 22-261 (La. App. 5 Cir. 3/1/23), 360 So.3d 19, 50, writ denied, 23-468 (La. 11/8/23), 373 So.3d 59. A district court's ruling on the admissibility of evidence will not be reversed absent an abuse of discretion. State v. Ard, 20-221 (La. App. 5 Cir. 4/28/21), 347 So.3d 1046, 1055.

As pointed out by the State, this Court in State v. Battle, 23-272 (La. App. 5 Cir. 6/17/24), 391 So.3d 130, writ denied, 24-0912 (La. 1/14/25), 398 So.3d 649, discussed the same assignment of error and we found that the evidence of the prior shooting that occurred nine days before the victim was murdered, in which Battle was a victim of, was relevant and more probative than prejudicial. Battle, 391 So.3d at 148. We stated that the shooting, observed through neighborhood surveillance camera footage, occurred at 672 Bannerwood. Deputy Segura observed Battle sitting in his parked car at that location when several gunshots were fired into his driver-side door. 672 Bannerwood was located around the corner from the instant murder scene. The State posited that defendant and Battle believed that the victim was involved in the shooting, as evidenced by Facebook and text messages that were admitted at the State's motion in limine hearing. We concluded that the trial court did not abuse its discretion in admitting the evidence from the shooting.

For the same reasons discussed in Battle, supra, we find the evidence of the prior shooting in which Battle was a victim was relevant to the shooting in the present matter. We further find that the trial court did not abuse its discretion in ruling that the prior shooting evidence was admissible, in this case. Based on the foregoing, this assignment of error is without merit.

Right to Review Based Upon a Complete Record

In this assignment of error, defendant argues that the trial court erred when it granted the State's motion in limine by minute entry. Defendant avers that when the trial court took the matter under advisement with regard to the State's motion in limine, it made no indication that it would rule the next day and did not inform the parties, nor did it suggest when the ruling would occur. He avers that in granting the motion by minute entry, the trial court failed to direct that notice was to be given to him, the State, and Battle. He asserts the trial court's failure to provide notice was prejudicial because it denied him the ability to seek review of the State's motion and exhibits.

In response, the State avers that the motion in limine was thoroughly briefed in writing, argued in open court, and documentation is contained in the record. The State contends that nothing in the trial court's manner of ruling prejudiced defendant's right to appeal; nor has this Court's ability to exercise its appellate jurisdiction on the issue been impaired. The State argues that while lack of notice could have theoretically cost defendant time to seek pretrial supervisory writs, there is no “right” to supervisory review, defendant could have argued that lack of notice constituted extraordinary circumstances, and there is an adequate remedy on appeal because the claim is now being reviewed on appeal. The State further points out that in Battle, supra, this Court has already rejected this claim, observing that Battle failed to show how he was prejudiced absent a written ruling with reasons from the trial court.

As discussed in a previous assignment of error, the State's motion in limine came before the trial court for hearing on October 15, 2020. At the conclusion of the hearing, the trial court took the matter under advisement. On the following day, on October 16, 2020, the trial court granted the State's motion in limine by minute entry.

The record indicates that the ruling on the State's motion in limine was done off the record, and no written reasons appear to be issued with the ruling. The minute entry on October 16, 2020, states,

“The Defendant, EDDIE SALVANT IV, did not appear before the bar of the Court this day. Attorney not present this day. State's Motion in limine to determine admissibility of evidence of prior shooting. - GRANTED.”

The minute entry also indicates next to Court Reporter - “Not done in open court.” The January 18, 2022 minute entry states, “Ruling on 404B Motion set to be heard on January 31, 2022, at 9:30am.” On January 31, 2022, the minute entry states, “404B Motion was GRANTED on October 16, 2020.”

La. Const. Art. I, § 19 provides that no person shall be subjected to imprisonment without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. La. C.Cr.P. art. 843 requires, in all felony cases, the recording of “all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.” A defendant has a right to a complete transcript of the trial proceedings, particularly where, as in this case, appellate counsel did not represent the defendant at trial.

Material omissions from trial court proceedings bearing on the merits of an appeal require reversal; however, a slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal does not require reversal of a conviction. A defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcript. State v. Castleberry, 98-1388 (La. 4/13/99), 758 So.2d 749, 773; State v. Clark, 19-518 (La. App. 5 Cir. 6/24/20), 296 So.3d 1281, 1289, writ denied, 21-62 (La. 3/9/21), 312 So.3d 585. “The materiality of a given omission is measured by the prejudicial effect of the omission on the defendant in accessing the full scope of appellate review[.]” Clark, supra.

In Battle, supra, we denied a similar claim where the defendant similarly argued that his constitutional right to a full appellate review was violated because there was no written order in the record nor reasons for the trial court's ruling granting the same motion in limine. Battle also argued that no one received notice of the ruling. We pointed out that the appellate record contained all relevant pleadings, attachments, minute entries, and a complete transcript of the hearings. Battle, 391 So.3d at 130. We stated that there was neither a provision within the Louisiana Code of Criminal Procedure, nor jurisprudence, which required a court to provide written reasons for judgment in a criminal case. We also stated, “Even in the civil context, the court need only provide written reasons for judgment upon a timely request by a party. La. C.C.P. art. 1917. There was none in this case. An appeal is from the judgment, not the reasons for judgment.” Id. at 150 (citing Allday v. Newpark Square I Off. Condo. Ass'n, Inc., 20-358 (La. App. 5 Cir. 8/18/21), 327 So.3d 566, 573). We found that the defendant had failed to show how he was prejudiced absent a written ruling with reasons from the trial court and that “absence of either the transcript of a judgment rendered in open court, a written judgment, or reasons for judgment on the State's Motion in Limine did not violate defendant's constitutional right to a full appellate review, are inconsequential to our review, meet no prejudice upon defendant, and are otherwise unnecessary.” We further found that the record was sufficient for proper appellate review and that the assignment was without merit. Id.

As in Battle, supra, all pleadings, exhibits, and hearing transcripts are contained in the record before us. We find that the record is sufficient for a proper appellate review and that this assignment is without merit.

Confrontation Clause

In this assignment of error, defendant argues that the trial court erred when it allowed Deputy Segura to testify via Zoom. Defendant argues that the trial court's admission of Deputy Segura's testimony via simultaneous broadcast violated his confrontation rights. Defendant posits that the “efficacy” of Deputy Segura's simultaneously broadcasted testimony must be reviewed through the lens of the Sixth Amendment Confrontation Clause.⁴ He argues that the State failed to meet its burden of proving that Deputy Segura's video testimony was necessary to further an important public policy, as required by Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Defendant points out that Deputy Segura's testimony was not about the crime for which Battle stood trial. As such, defendant argues, her testimony was irrelevant and prejudicial and deprived him of his right to confront adverse witnesses.

The State asserts that an important public policy was met in the instant matter. Deputy Segura was stationed overseas for military duty and would likely be there for over another year. Thus, she was not immediately obtainable for “live” trial testimony. The State also asserts that even assuming arguendo that there was error, such error was harmless. It avers that the testimony was cumulative of other testimony relative to the earlier shooting (testimony from Ms. Williams, Sergeant Picou, and Detective Wischan). It also argues that the shooting was supported by corroborating evidence and that the defense was able to conduct a full and free cross-examination of Deputy Segura.

The State acknowledges that in Battle, supra, this Court found error because the trial court did not conduct the requisite evidentiary procedures to ensure the State could satisfy the requirements of Craig, supra; however, this Court ultimately found the error harmless. The State argues there is no reason to find a different result here. The State also points to Judge Schlegel's concurrence in Battle, supra, which found that there was no error in permitting Deputy Segura to testify via Zoom.

On January 25, 2023, during trial, the State informed the trial court that Deputy Segura was going to be “the Zoom witness.” At a bench conference, defense counsel for Battle placed his objection to the witness testifying via Zoom. Defendant's counsel joined in the objection, stating, “I think it's a violation of my client's right to confrontation.” The State explained that Deputy Segura was on military duty in the United Arab Emirates, had already been there for approximately two years, and would likely be there for over another year. The State then said, “[s]he's the only witness like this so I think that, you know, obviously would be an exception.” The court allowed the witness to testify via Zoom and noted the defense's objection.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. The Confrontation Clause of the Louisiana Constitution specifically and expressly guarantees the accused the right “to confront and cross-examine the witnesses against him.” La. Const. Art. I, § 16; State v. Robinson, 01-273 (La. 5/17/02), 817 So.2d 1131, 1135. Confrontation not only means the ability to confront the witnesses physically, but also to secure for the opponent the opportunity of cross-examination, which is its main and essential purpose. Id. Cross-examination is the principal way to test the believability and truthfulness of the testimony, and it has traditionally been used to impeach or discredit the witness. Id.; State v. Williams, 04-608 (La. App. 5 Cir. 11/30/04), 889 So.2d 1093, 1100, writ denied, 05-81 (La. 4/22/05), 899 So.2d 559.

A violation of a defendant's right to confrontation is subject to a harmless error analysis. State v. Payne, 17-553 (La. App. 5 Cir. 10/17/18), 258 So.3d 1015, 1023, writ denied, 18-1932 (La. 4/15/19), 267 So.3d 1122. An error is harmless when the guilty verdict was surely not attributable to the error. Whether an error is harmless in a particular case depends upon many factors, including the following: (1) the importance of the witness's testimony; (2) whether the testimony was cumulative in nature; (3) whether corroborating or contradictory evidence regarding the major points of the testimony existed; (4) the extent of cross-examination permitted; and (5) the overall strength of the State's case. Id.

In Battle, supra, Battle argued the same assignment of error. In Battle, we discussed our previous decisions in State v. Luckey, 16-494 (La. App. 5 Cir. 2/8/17), 212 So.3d 1220, 1228, writs denied, 17-432 (La. 10/27/17), 228 So.3d 1225, and 17-617 (La. 10/27/17), 228 So.3d 1234; State v. Hoff, 18-693 (La. App. 5 Cir. 2/19/19) (unpublished writ disposition), writ granted in part, 19-475 (La. 6/26/19), 275 So.3d 871; and State v. Hamed, 21-167 (La. App. 5 Cir. 8/18/21), 326 So.3d 375. We found that the trial court erred in allowing Deputy Segura to testify via Zoom, thus violating defendant's Sixth Amendment Confrontation Clause rights. Battle, 391 So.3d at 155. In Battle, we stated:

The State failed to meet its burden of proof to show an adequate assurance of both of these requirements by a preponderance of evidence, and the trial court failed to establish conditions such as those laid out by the court in Hoff, supra to insure the reliability of the video conferenced testimony and the protection of the defendant's right to full cross-examination.

Id.

Ultimately, however, we found that the error was harmless. Id. Through Deputy Segura's testimony, the State was able to present evidence pertaining to its theory of defendant's motive for the murder of the victim and to complete the story of the crime with her testimony regarding the prior shooting and her testimony was corroborated by the shell casings she located and the surveillance video from 689 Bannerwood, which she recorded. Id. Additionally, the record indicated that defense counsel was able to extensively cross-examine her, notwithstanding the fact that she appeared via Zoom. Id. There were no technical issues that limited her testimony, and no issues were raised while she testified. Id.

Aside from Deputy Segura's testimony, the State presented significant evidence of defendant's guilt. Video surveillance from Nathan's Discount showed two men fitting the descriptions of defendant and Battle, hitting the victim before he was shot. Mr. Jaber identified defendant as one of the two men, and witnessed defendant in possession of a handgun. Ms. Williams, who was familiar with both men, identified Battle and defendant from video surveillance. Further, video surveillance recorded on November 22, 2017 from 689 Bannerwood showed defendant and Battle leaving their home wearing the same clothing as depicted in the surveillance video from Nathan's Discount and returning to their home shortly after the murder. Text messages between defendant and Ms. Johnson revealed defendant's “thinly veiled intent” to respond to the shooting of his brother on November 13, 2017.

Considering the foregoing, we come to the same conclusion, in the instant matter, as we did in Battle, i.e., that the trial court erred in allowing Deputy Segura to testify via Zoom, thereby violating defendant's Sixth Amendment Confrontation Clause rights. Id. However, given the other evidence presented by the State which supported its theory, including the testimonies of Mr. Jaber, Ms. Williams, Detective Wischan, and the surveillance video, we also find that any violation of defendant's rights to confrontation was harmless error surely unattributable to the guilty verdict.

Amanda Harris Williams Testimony

In this assignment of error, defendant asserts that the trial court erred when it permitted Amanda Harris Williams to give her lay opinion testimony identifying Eddie Salvant and Willie Battle in surveillance video. Defendant argues that Ms. Williams did not witness the shooting and was not a neutral party because she told Detective Wischan that defendant and Battle shot the victim in retaliation for an unrelated shooting involving Battle. Defendant avers that the trial court erroneously allowed her to testify and offer the lay opinion on the ultimate issue of fact in the instant case—the identity of the two suspects.

Citing State v. Wheeler, 416 So.2d 78 (La. 1982), and State v. Montana, 421 So.2d 895 (La. 1982), defendant argues that Louisiana law does not permit any opinion testimony tantamount to finding the defendant guilty of the crime charged. Defendant posits that Ms. Williams’ testimony in the instant matter is factually distinguishable from the scenario presented in State v. Berniard, 14-341 (La. App. 4 Cir. 3/4/15), 163 So.3d 71, writ denied, 15-678 (La. 2/26/16), 187 So.3d 468. Unlike the facts presented in Bernard, defendant argues that Ms. Williams was not a concerned citizen who recognized defendant and Battle, but was the victim's aunt whose conversation with law enforcement started the entire investigation into defendant and Battle.

Defendant also contends that Ms. Williams failed to demonstrate a sufficient personal knowledge to justify identifying the men in the video as defendant and Battle. He argues the testimony was speculative at best and its inclusion is reversible error. The State responds that Ms. Williams did not opine to the guilt or innocence of defendant, but only the identity and that she was not an expert witness. The State points out that La. C.E. art. 701 governs “lay witness” testimony and argues that pursuant to the requirements of La. C.E. art. 701, Ms. Williams’ identifications of defendant and Battle were rationally based on her perception, and it was helpful to a clear understanding of a determination of a fact at issue.

At a bench conference when Ms. Williams was called to the stand during trial, defense counsel for Battle objected to her anticipated testimony of the identification she made of defendant from surveillance video. The State informed the court that Ms. Williams was shown the surveillance video shortly after the shooting and that she identified Battle and defendant by their height and weight and because she had known them since they were children. The court overruled the objection, stating that it was a question of fact, that Ms. Williams was subject to cross-examination, and that the jury could decide on the weight they would give her testimony.

The testimony of a lay witness in the form of opinions or inferences, who is not testifying as an expert, is limited to those opinions or inferences that are rationally based on the perception of the witness and are helpful to a clear understanding of the testimony or the determination of a fact in issue. La. C.E. art. 701; State v. Keller, 09-403 (La. App. 5 Cir. 12/29/09), 30 So.3d 919, 930-31, writ denied, 10-267 (La. 9/17/10), 45 So.3d 1041. The general rule is that a lay witness is permitted to draw reasonable inferences from his or her personal observations. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, 1033.

A reviewing court must ask two pertinent questions to determine whether the trial court properly allowed lay opinion testimony: (1) was the testimony speculative opinion evidence or simply a recitation of or inferences from fact based upon the witness's observations; and (2) if erroneously admitted, was the testimony so prejudicial to the defense as to constitute reversible error. State v. Nelson, 14-252 (La. App. 5 Cir. 3/11/15), 169 So.3d 493, 507, writ denied, 15-685 (La. 2/26/16), 187 So.3d 468. Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. Id. (citing La. C.E. art. 704; State v. Higgins, 03-1980 (La. 4/1/05), 898 So. 2d 1219, 1234). In other words, the fact an opinion or inference embraces an ultimate issue in a case does not preclude its admissibility. Id. (citing La. C.E. art. 704 Comment (c); State v. King, 99-1279 (La. App. 5 Cir. 4/25/00), 760 So.2d 540, 543, writs denied, 00-1452, 00-1498 (La. 3/16/01), 787 So.2d 298).

The trial court is vested with much discretion in determining which opinion testimony shall be received into evidence as lay or expert testimony. Id. (citing State v. Friday, 10-2309 (La. App. 1 Cir. 6/17/11), 73 So.3d 913, 922, writ denied, 11-1456 (La. 4/20/12), 85 So.3d 1258). The admissibility of opinion testimony, whether lay or expert, must be relevant and is subject to the balancing test set forth in La. C.E. art. 403. Unless otherwise provided by law, all relevant evidence is admissible at trial. La. C.E. art. 402. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La. C.E. art. 401. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or waste of time. La. C.E. art. 403. The determination concerning relevancy of evidence is within the discretion of the trial judge whose rulings will not be disturbed in the absence of an abuse of discretion. State v. Magee, 05-171 (La. App. 5 Cir. 10/6/05), 916 So.2d 1178, 1183, writs denied, 06-461, 06-464 (La. 9/22/06), 937 So.2d 377 (citing State v. Winfrey, 97-427 (La. App. 5 Cir. 10/28/97), 703 So.2d 63, 75, writ denied, 98-264 (La. 6/19/98), 719 So.2d 481).

This Court in Battle, supra, upheld the admission of this evidence, finding no error in the trial court's ruling permitting Ms. Williams’ lay opinion testimony. We found that the testimony was based upon nuances drawn from her observations of, and familiarity with, defendant and Battle. In Battle, we stated that her testimony was helpful in the identification of the defendant. Battle, supra.⁵

Ms. Williams testified that both defendants were her cousins, and she had known both defendants since they were babies because their mother was her neighbor. She testified that she knew defendant better than Battle because defendant and her late son were close friends, and defendant went to her house often. She was able to identify both men in the surveillance video because of their statures and because Battle walked pigeon-toed. She was able to identify them again when she saw surveillance of the men from another area.

As we did in Battle, supra, we find no error in the trial court's ruling permitting Ms. Williams’ lay opinion. Her testimony was based upon inferences from her observations of knowing defendant and Battle personally. Although Ms. Williams may not have seen either of the men's faces in the surveillance video, the jury heard Ms. Williams’ testimony. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and the credibility of the witnesses will not be reweighed on appeal. Lane, supra; Gonzalez, supra.⁶

Excessive Sentence

In this assignment of error, defendant contends that both the consecutive nature of his sentences and the twenty-year sentence for his conviction of La. R.S. 14:95.1 are excessive. He argues that he was already sentenced to a mandatory life sentence for the second degree murder conviction and the consecutive twenty-year sentence was not justified. Additionally, defendant contends that the trial court failed to comply with the requirements of La. C.Cr.P. art. 894.1 because it did not state any reasons for imposing a consecutive twenty-year sentence. Defendant does not challenge his sentence as to his conviction for second degree murder.

At the sentencing hearing on February 1, 2023, the victim's mother gave a victim impact statement. She stated that four days after her birthday and a day before Thanksgiving, the defendants took something from her that changed her and her family's life forever. She expressed that no mother should ever have to endure the pain she felt that day and that she will feel for the rest of her life. She stated defendant and Battle were extended family, and they were not raised the way they were acting now. She stated her son had to bury his big brother. She explained she felt bad for the defendants’ mother and loved her. She expressed that nothing could take away the pain of a mother's love for her children. She asked defendant and Battle to make peace with this and ask God for forgiveness. She stated she would forgive them and wanted them to have peace and learn.

Before imposing sentence, the trial court stated it presided over the case and that it was convinced beyond any doubt that the two brothers killed their own cousin. The trial court sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence for the crime of second degree murder. As to count two, felon in possession of a firearm, the trial court sentenced defendant to twenty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The court ordered the sentences to run consecutively. Defense counsel objected “to the excessiveness of the sentence.”

La. C.Cr.P. art. 881.1(B) provides that a motion for reconsideration of sentence “shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.” La. C.Cr.P. art. 881.1(E) provides that “failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.”

This Court has held that the failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for unconstitutional excessiveness. State v. McKinney, 19-380 (La. App. 5 Cir. 12/26/19), 289 So.3d 153, 166. This Court has also held that when the consecutive nature of sentences is not specifically raised in the trial court, then the issue is not included in the review for unconstitutional excessiveness, and the defendant is precluded from raising the issue on appeal. State v. Rodgers, 16-14 (La. App. 5 Cir. 10/26/16), 202 So.3d 1189, 1200, writs denied, 16-2189 (La. 9/15/17), 225 So.3d 479, and 16-2093 (La. 1/29/18), 235 So.3d 1104. Additionally, this Court has held that when the specific grounds for objection to the sentences, including alleged non-compliance with La. C.Cr.P. art. 894.1, are not specifically raised in the trial court, then these issues are not included in the bare review for unconstitutional excessiveness, and the defendant is precluded from raising these issues on appeal. Clark, 296 So.3d at 1291.

As to the consecutive nature of his sentences, this issue was not preserved for review on appeal.

In State v. Perilloux, 21-448 (La. App. 5 Cir. 12/20/23), 378 So.3d 280, 317, writ denied, 24-104 (La. 9/4/24), 391 So.3d 1055, cited by the State, the defendant argued that his four consecutive sentences were cruel, unusual, and excessive. This Court found that defendant did not object to the imposition of consecutive sentences at sentencing, in his written motion to reconsider sentence, or at the hearing on his motion to reconsider. As such, this Court found that the issue was not preserved for review on appeal and limited its review to unconstitutional excessiveness.

In the instant matter, defendant did not file a motion to reconsider sentence, nor did he specifically object to the consecutive nature of the sentences. Defense counsel only objected generally to the excessiveness of the sentence. Accordingly, our review is limited to whether the sentence is unconstitutionally excessive.

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense, or imposes needless and purposeless pain and suffering. State v. Adams, 23-427 (La. App. 5 Cir. 4/24/24), 386 So.3d 676, 683.

According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice, while recognizing the trial court's wide discretion. Adams, supra. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Kelson, 23-274 (La. App. 5 Cir. 12/27/23), 379 So.3d 779, 784-85.

In determining a sentence, a trial court should consider the defendant's personal history such as age, family ties, marital status, health, employment record, as well as his prior criminal record, seriousness of the offense and the likelihood of rehabilitation in determining an appropriate sentence. Adams, 386 So.3d at 686. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion when imposing a sentence. State v. Barnes, 23-208 (La. App. 5 Cir. 12/27/23), 379 So.3d 196, 204, writ denied, 24-136 (La. 9/24/24), 392 So.3d 1141.

Defendant only challenges his sentence as to count two, possession of a firearm by a convicted felon. At the time the offense was committed,⁷ La. R.S. 14:95.1 provided that whoever was found guilty “shall be imprisoned at hard labor for not less than five nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.” Defendant was subject to a range of five to twenty years imprisonment at hard labor with the imposition of a fine. The trial court sentenced defendant to the maximum term of imprisonment of twenty years.

Considering the nature of the crime and the background of defendant, the record reflects that the crime was committed in the course of defendant committing the second degree murder of the victim. Possession of the firearm was not only connected to the death of the victim, but also posed a substantial risk to the public.

Additionally, the record also reflects that defendant had a previous conviction for possession of cocaine in 2011. Defendant's criminal history precluded him from possessing a firearm. The record reflects that defendant was thirty-two years old at the time of the offense, and it does not reflect that he showed any remorse for his actions or that he took any responsibility for his actions.

The third factor requires consideration of sentences imposed for similar crimes by this Court and other courts. “Although a comparison of sentences imposed for similar crimes may provide guidance, “[i]t is well settled that sentences must be individualized to the particular offender and to the particular offense committed.’ ” State v. Boudreaux, 11-1345 (La. App. 4 Cir. 7/25/12), 98 So.3d 881, 891, writ denied, 12-1907 (La. 11/9/12), 100 So.3d 841. While comparisons with similar cases are useful in themselves and set the stage, the focus of sentence review remains on the character and propensities of the offender and the circumstances of the offense. State v. LeBlanc, 09-1355 (La. 7/6/10), 41 So.3d 1168, 1173.

In State v. Wilson, 14-551 (La. App. 5 Cir. 1/28/15), 167 So.3d 903, 906, the defendant received the maximum sentence of twenty years imprisonment for possession of a firearm by a convicted felon. He was also convicted of second degree murder. This Court explained that because the statutory maximum recently changed from fifteen years to twenty years, there was a lack of jurisprudence where the defendant was sentenced to the maximum of twenty years, but considerable case law upholding the maximum sentence of fifteen years for felon in possession of a firearm where the defendant had prior convictions. Id. at 915. This Court upheld the sentence, finding that the defendant had a prior conviction for possessing a firearm while in possession of cocaine. Id.

In State v. Contreras, 17-735 (La. App. 4 Cir. 5/30/18), 247 So.3d 858, writ denied, 18-1172 (La. 12/17/18), 259 So.3d 341, the defendant received the maximum sentence of twenty years for possession of a firearm by a convicted felon, among other convictions and sentences. The defendant had a prior conviction for involuntary manslaughter in Georgia. The court found that the trial judge did not abuse its broad discretion in sentencing the defendant. Id. at 872.

In Caffrey, supra, the defendant was convicted of violating La. R.S. 14:95.1 and sentenced to fifteen years at hard labor without the benefit of parole, probation, or suspension of sentence. Id. At the time, this was the maximum period of incarceration permitted by La. R.S. 14:95.1. This Court found that the sentence was not unconstitutionally excessive, taking into account the defendant's prior conviction for possession of cocaine and his guilty pleas to possession of cocaine and possession of marijuana on the same date that he pled guilty to being a felon in possession of a firearm. Id. at 204.

Defendant's unlawful possession of a firearm ultimately resulted in the murder of the victim. The nature of the offense is egregious. Accordingly, we find that the trial court did not abuse its discretion by imposing the twenty-year maximum term sentence for defendant's conviction of possession of a firearm by a convicted felon. The record adequately supports defendant's sentence and indicates that the sentence is not excessive. This assignment of error is without merit.

Cumulative Errors

In his final assignment of error, defendant avers that the record contained “multiple cumulative and compounded errors” such that he should receive a new trial. The State responds that all of defendant's claims are without merit.

The combined effect of assignments of error, none of which warrant reversal on its own, does not deprive a defendant of his right to a constitutionally fair trial. State v. Seals, 09-1089 (La. App. 5 Cir. 12/29/11), 83 So.3d 285, 354, writ denied, 12-293 (La. 10/26/12), 99 So.3d 53.⁸

In State v. Holliday, 17-1921 (La. 1/29/20), 340 So.3d 648, the Louisiana Supreme Court recognized that although it had often reviewed cumulative error arguments, it had continually rejected them and instead had consistently found that harmless errors, however numerous, do not aggregate to reach the level of reversible error. The Supreme Court further stated that other courts have reached the same conclusion in addressing this issue.

In State v. Tassin, 11-1144 (La. App. 5 Cir. 12/19/13), 129 So.3d 1235, 1264, writs denied, 14-284, 14-287 (La. 9/19/14), 148 So.3d 950, this Court stated:

The Louisiana Supreme Court has noted that the “cumulative error” doctrine has lost favor in the Louisiana courts. State v. Manning, 03-1982 (La. 10/19/04), 885 So.2d 1044, 1110, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005). This Court has held that the combined effect of assignments of error, none of which warrant reversal on its own, does not deprive a defendant of his right to a constitutionally fair trial. State v. Seals, 83 So.3d at 354.

Id.

In the instant case, we find that after reviewing defendant's arguments on appeal, defendant is not entitled to reversal on any of the grounds as presented in his assignments of error. See State v. Chester, 19-363 (La. App. 5 Cir. 2/3/21), 314 So.3d 914, 994, writ denied, 21-350 (La. 6/8/21), 317 So.3d 321. This final assignment has no merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990).

Our review of the record shows that the trial judge failed to impose the mandatory fine required by La. R.S. 14:95.1(B). At the time the offense was committed,⁹ La. R.S. 14:95.1(B) required a fine of not less than one thousand dollars nor more than five thousand dollars to be imposed. While an appellate court has the authority to correct an illegal sentence, this authority is permissive rather than mandatory. La. C.Cr.P. art. 882.

In this case, trial court imposed consecutive life and twenty-year sentences for second-degree murder and felon in possession of a firearm. It is apparent from the record that defendant will be incarcerated for the rest of his life. Though the imposition of fines and costs are mandatory, the trial court is vested with the authority to dispense with imposition of a fine if it is found to cause substantial financial hardship to the defendant or his dependents. Considering the circumstances presented in this case, we decline to correct this illegal sentence and find the trial court's failure to impose the mandatory fine or conduct a hearing on defendant's ability to that fine to be harmless error.

DECREE

For the foregoing reasons, we affirm defendant's convictions and sentences for second degree murder and possession of a firearm by a convicted felon.

AFFIRMED

FOOTNOTES

1.   Count one of the bill of indictment.

2.   In count two, the State alleged that on or about November 22, 2017, defendant violated La. R.S. 14:95.1 in that he had in his possession a firearm, after having been previously convicted of the crime of possession of cocaine between 28 to 200 grams, in violation of La. R.S. 40:967(F), in case number 489967 in Division “G” in Orleans Parish Court. On January 23, 2023, before trial began, the State amended the previous conviction listed in the indictment for count two to “Possession of Cocaine, in violation of 40:967(C)” in case number 10-1106 in Division “A” in the 24th Judicial District Court.

3.   Defendant and Battle were tried together. Battle's appeal was before this Court. See State v. Battle, 23-272 (La. App. 5 Cir. 6/17/24), 391 So.3d 130, writ denied, 24-0912 (La. 1/14/25), 398 So.3d 649.

4.   Defendant cites to La. R.S. 15:502 in his brief as an example of a statute that provides a legislatively recognized exception to a defendant's right to face-to-face confrontation. Defendant states, however, that the statute does not apply to Deputy Segura, as she is not a witness in one of the categories recognized by the statute. He states that Deputy Sergura's testimony must be reviewed “through the lens of the Sixth Amendment Confrontation Clause.”

5.   In Battle, this Court cited to Berniard, supra. In Berniard, the defendant argued that the trial court erred by admitting prejudicial and irrelevant testimony by a detective and another witness to offer opinion testimony on the ultimate issue of fact in the case, which was the identity of the shooter. Id. Like in the instant matter, the defendant argued that Louisiana law did not permit any opinion testimony tantamount to finding the defendant guilty of the crime charged, citing Wheeler, supra and Montana, supra. The fourth circuit stated that contrary to the defendant's assertion, La. C.E. art. 703 stated, “[T]estimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact.” Berniard, 163 So.3d at 89.In Battle, this Court also cited to United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008), cert. denied, 555 U.S. 1117, 129 S.Ct. 942, 173 L.Ed.2d 142 (2009), a case interpreting the Federal Rules of Evidence, upon which La. C.E. art. 701 is based, the court approved the trial court's admission of a probation officer's identification testimony wherein the officer identified defendant as the perpetrator of a bank robbery, as seen in surveillance video. While the defendant there argued that jurors could have reviewed the surveillance footage and determined for themselves whether he was the robber, the reviewing court found that the probation officer's familiarity with the defendant made her identification helpful to the jury as she had a greater appreciation of the defendant's normal appearance. Id. at 1171-72.

6.   As discussed, the State presented other evidence linking defendant to the murder, including Mr. Jaber's testimony and surveillance video of the shooting that showed defendant's and Battle's activity at 672 Bannerwood before and after the shooting.

7.   See State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 520.

8.   See also State v. Turner, 16-1841 (La. 12/5/18), 263 So.3d 337, 407; State v. Campbell, 16-341 (La. App. 5 Cir. 12/28/16), 210 So.3d 508, 514 n.12.

9.   See Sugasti, supra.

MARCEL, J.