STATE v. VICKERS (2025)

The State of Louisiana charged the defendant, Johnny Vickers, Jr., by bill of information with assault by drive-by shooting (“count one”), a violation of La. R.S. 14:37.1; illegal use of weapons or dangerous instrumentalities (“count two”), a violation of La. R.S. 14:94; and attempted second degree murder (“count three”), a violation of La. R.S. 14:30.1 and La. R.S. 14:27.¹ The defendant entered a plea of not guilty. Following a trial by jury, the defendant was found guilty as charged on each count. The defendant filed a combined motion for post-verdict judgment of acquittal or new trial, which the trial court denied. The trial court sentenced the defendant to five years imprisonment at hard labor on count one, ten years imprisonment at hard labor on count two, and thirty years imprisonment at hard labor on count three, to be served concurrently. He now appeals, assigning error to the admission of other crimes evidence, an alleged violation of his Sixth Amendment right to counsel of choice, the denial of his motion for new trial, and a violation of double jeopardy on his convictions on counts one and two.

STATEMENT OF FACTS

On June 6, 2021, in Darrow, Louisiana, Jeremy Burnett had stopped at his parents’ house on his way to work when he was involved in a shooting incident. Just prior to the shooting, Burnett was driving on I-10, took the Highway 44 exit, and pulled up behind an SUV with a Texas license plate. When the traffic light turned green, the SUV did not move. Burnett honked his horn and proceeded to go around the SUV. Burnett turned on Highway 22, lost sight of the SUV, made another turn, and saw the SUV approaching him from behind. Burnett sped up and noticed the SUV was keeping his pace. Burnett made it to his parents’ house, turned into their driveway, and parked. As Burnett opened his door to exit his vehicle, his window shattered. At that point, Burnett realized he was being shot at. He dove back into his vehicle and covered his head as additional rounds were fired.

When the gunfire ended, Burnett drove after the SUV in an attempt to get the license plate number. As Burnett got close enough to the see the license plate on the SUV, additional gunshots were fired. Burnett stopped his vehicle, typed the license plate number into his cell phone, drove back to his parents’ house, and called the police. Detective Chase Blanchard of the Ascension Parish Sheriff's Office responded to the scene. Burnett gave him the license plate number and a description of the SUV. Detective Blanchard determined the SUV, a Hyundai Tucson, had been rented by the defendant and Betty Vickers. The defendant was then considered a person of interest.

Later that month, the Hyundai Tucson was spotted at the scene of an unrelated incident in Sorrento, Louisiana. On June 25, 2021, the police obtained and executed a search warrant for the Vickers’ family residence. During the search, the police seized several firearms and learned that the defendant was in New Orleans. Thereafter, a warrant was secured for the defendant's arrest. After his arrest, the defendant was advised of his Miranda ² rights and participated in a recorded interview during which he confessed to the instant shooting.³

ASSIGNMENT OF ERROR NUMBER ONE

In his fourth assignment of error, the defendant argues the trial court erred in allowing the State to introduce other crimes evidence. As the defendant notes, after the trial commenced, the State told the trial court it previously filed notice of intent to introduce the defendant's confession, wherein an unrelated incident was also discussed. The defendant notes there was no hearing on the issue, and the State elicited testimony pertaining to extraneous crimes beyond the incident referenced in the defendant's police interview. The defendant also contends his counsel was ineffective in failing to object to the evidence and argues the extraneous evidence contributed to the verdicts.

Louisiana Code of Evidence article 404(B)(1)⁴ provides that evidence of other crimes, acts, or wrongs is generally not admissible because of the substantial risk of grave prejudice to the defendant. It is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. State v. Calloway, 2018-1396 (La. App. 1st Cir. 4/12/19), 276 So.3d 133, 147, writ denied, 2019-00869 (La. 1/20/21), 308 So.3d 1164. To admit other crimes evidence, the State must establish that there is an independent and relevant ⁵ reason for doing so, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act. See La. Code Evid. art. 404(B)(1); State v. Tilley, 99-0569 (La. 7/6/00), 767 So.2d 6, 22, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001). Moreover, at least one of the enumerated purposes in Article 404(B)(1) must have substantial relevance independent from showing the defendant's general criminal character in that it tends to prove a material fact genuinely at issue. State v. Jackson, 2018-0261 (La. App. 1st Cir. 11/2/18), 265 So.3d 928, 939, writ denied, 2018-1969 (La. 4/22/19), 268 So.3d 304.

Herein, after voir dire, the State informed the trial court it previously filed a “404 (b) motion” to put the defendant on notice that his confession contains a discussion about another incident.⁶ The State further noted it sent a copy of the motion to defense counsel, and defense counsel agreed that the State sent the motion to him. At trial, Detective Blanchard testified the SUV involved in the instant shooting was later spotted at the scene of a subsequent shooting at a residence in Sorrento. The State also played the defendant's recorded interview during which he confessed to the instant offenses and the shooting in Sorrento, stating he believed someone who previously robbed him at gunpoint was in the house when he fired the gunshots. Additionally, during the interview, the evidence recovered during the execution of the search warrant for the Vickers’ residence was detailed. As the defendant notes, Detective Blanchard also testified regarding the narcotics and guns that were found during the search of the Vickers’ residence and testified he was informed the defendant had been arrested at the airport in New Orleans “for a fight.” As the defendant further notes, the guns were shown to the jury.

Defense counsel did not request a hearing or object to the above evidence. A contemporaneous objection is required to preserve an error for appellate review. La. Code Crim. P. art. 841(A); see also La. Code Evid. art. 103(A)(1). Due to his failure to enter a contemporaneous objection, the defendant has waived review of any alleged error regarding the trial court's admission of other crimes evidence. State v. Sajna, 2023-0893 (La. App. 1st Cir. 9/20/24), ––– So.3d ––––, ––––, 2024 WL 4248425, *5, writ denied, 2024-01290 (La. 2/19/25), 400 So.3d 926.

The defendant claims his counsel was ineffective in failing to object to the other crimes evidence. A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings in the trial court where a full evidentiary hearing may be conducted, unless the record permits definitive resolution on appeal.⁷ The investigation of strategy decisions requires an evidentiary hearing and, therefore, cannot possibly be reviewed on appeal. Further, under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, that must be made before and during trial rest with an accused and his attorney. The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. State v. Anderson, 2022-0587 (La. App. 1st Cir. 12/22/22), 357 So.3d 845, 854-55, writ denied, 2023-00352 (La. 9/6/23), 369 So.3d 1267.

We note defense counsel conceded he was given pretrial notice of the State's intent to introduce other crimes evidence. The record also reflects the defendant was given pretrial discovery. Thus, there is no indication the defendant was unaware that his recorded confession contained references to the other shooting incident and the evidence recovered during the execution of the search warrant for the Vickers’ residence. Moreover, we note a defense counsel's decision of whether to object to the introduction of evidence may be strategic. State v. Anderson, 2023-0271 (La. App. 1st Cir. 11/3/23), 2023 WL 7270839, *4 (unpublished), writ denied, 2023-01591 (La. 5/21/24), 385 So.3d 241. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant argues the trial court committed a structural error in denying his right to counsel of choice. He notes he informed the trial court his family had funds to hire private counsel and that his appointed counsel led him to believe his charges would be dropped. As the defendant further notes, when the defendant stated he would not remain in court for the trial, his appointed counsel informed the trial court that the defendant may have been experiencing a mental dysfunction or deficit. The defendant argues that his last-minute attempt to hire counsel was, therefore, justified.

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. State v. Reeves, 2006-2419 (La. 5/5/09), 11 So.3d 1031, 1055, cert. denied, 558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009). The Supreme Court has found structural error requiring reversal, and a violation of the Sixth Amendment, when a criminal defendant has been denied his right to retained counsel of choice. Id. at 1056. The Louisiana Constitution ensures similar rights to the assistance of counsel for a criminal defendant as those arising under the federal constitution. Id. Generally, a person accused in a criminal trial has the right to counsel of his choice. Id. at 1057.

An indigent defendant's right to choose his defense counsel, however, only allows the defendant to retain the attorney of choice if the defendant can manage to do so. The right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. Id. A defendant's right to choose an attorney must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage of the proceedings. The trial court's ruling on this issue will not be disturbed absent a clear showing of abuse of discretion. State v. Batiste, 2022-0725 (La. App. 1st Cir. 5/24/23), 2023 WL 3615508, *2 (unpublished), writ denied, 2023-00883 (La. 4/16/24), 383 So.3d 153.

The record reflects the trial court appointed Allen Davis of the Public Defender's Office to represent the defendant on December 6, 2021, prior to preliminary examination and other pretrial proceedings. The defendant's trial commenced on August 15, 2023. On the second day of trial, specifically after voir dire was complete and just prior to preliminary instructions to the jury, Davis informed the trial court it had just come to his attention that the defendant wished to terminate his representation and to retain private counsel. Defense counsel further informed the trial court that another attorney was present to represent the defendant as a second chair attorney.

The trial court then questioned the defendant directly, at which point the defendant informed the trial court that his family said they would provide him with a private attorney. The trial court in response informed the defendant the time had passed for him to retain counsel, noting it was the second day of trial, and the case had been pending since 2021. The defendant then informed the trial court that Davis told him his charges would be reduced and there would be no trial. The trial court noted there had been several pretrial proceedings and appearances during which the defendant never indicated he wanted private counsel.

In denying the request, the trial court stated it believed the defendant's request was a delay tactic and reiterated that the second chair counsel was present in addition to appointed defense counsel, Davis. The defendant was discontent with the trial court's ruling and repeatedly indicated he no longer wished to be present, stating, “You can tell them to take me back to the jail then.” The trial court ultimately honored the defendant's requests to leave.

There is no evidence the defendant sought to inform the trial court of his desire to retain private counsel prior to the second day of trial. Moreover, there is no evidence in the record to indicate Davis was unprepared or unwilling to represent the defendant. Considering the record before us, we cannot say the defendant exercised his right to retain counsel of choice in a reasonable time, manner, or stage of the proceedings, nor can we say there was any showing that the defendant was denied access to private counsel or that he attempted to retain such counsel prior to the commencement of trial.⁸ Accordingly, we find no abuse of discretion by the trial court in this case. Thus, assignment of error number two is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the defendant argues the trial court erred in denying his motion for new trial. He contends that he was tried and convicted in absentia due to mental illness and a poor relationship with his counsel. He notes his competency was in question prior to trial and argues the trial court erred in denying his motion for new trial without further inquiry into his ability to voluntarily waive his presence at trial.

A defendant charged with a felony has a right to be present in a trial by jury at all proceedings when the jury is present, unless the defendant voluntarily absents himself. La. Code Crim. P. art. 831(A)(6); State v. Richardson, 2006-0250 (La. App. 1st Cir. 11/3/06), 2006 WL 3113056, *3 (unpublished). A defendant initially present for the commencement of trial ⁹ shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present, and he voluntarily absents himself after the trial has commenced. La. Code Crim. P. art. 832(A)(1).

As addressed in our discussion of the defendant's second assignment of error, on the second day of trial, after voir dire was complete, the defendant informed the trial court he wished to replace his counsel. After his request was denied, he informed the trial court he no longer wished to be present. The trial court asked the defendant if he wanted a few minutes to think about it, and the defendant declined, insisting he wanted to go back to jail and adding, “There's nothing to think about.” The trial court stated it would give the defendant a few minutes to think about it, and the defendant stated he still felt the same way.

The record further reflects the defendant was subsequently removed from the courtroom, at which point defense counsel noted the defendant had been subjected to a sanity review and while he was found competent to stand trial, sanity is a “fluid issue[,]” further noting the defendant may have, at that time, been experiencing “some type of mental dysfunction or deficit of his mental faculties.” The trial court disagreed, finding the defendant's behavior was based on discontent regarding his trial and did not pose a reason to reevaluate his competency at that time.

While La. Code Crim. P. art. 831 provides for a defendant's due process right to be present at every stage of the trial when his absence might frustrate the fairness of the proceeding, the provisions of Article 831 are not absolute. State v. Robertson, 2006-0037 (La. App. 1st Cir. 9/20/06), 943 So.2d 1181, 1185, writ denied, 2006-2391 (La. 4/27/07), 955 So.2d 683. Based on our review of the instant record, we find it was reasonable for the trial court to resume trial upon finding the defendant voluntarily absented himself. The defendant appeared with defense counsel at pretrial proceedings, was present with him during voir dire and, thus, the defendant was present when the trial commenced. Despite being asked to reconsider his decision to leave, the defendant repeatedly informed the trial court he wished to leave the courtroom and return to jail. There is nothing in the record to suggest the defendant did anything other than voluntarily absent himself. Defense counsel was present at every stage of the trial, and his presence was sufficient to satisfy the due process requirements of La. Code Crim. P. arts. 831 and 832. See State v. Bolton, 408 So.2d 250, 257-58 (La. 1981); State v. Brown, 2021-0625 (La. App. 1st Cir. 2/16/22), 2022 WL 472966, *5 (unpublished). Considering the foregoing, we find no merit in assignment of error number three.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, the defendant argues his convictions on counts one and two constitute a violation of his constitutional protection against double jeopardy. He argues the evidence necessary to prove an assault by drive-by shooting would also support a conviction of illegal use of a weapon. He contends his conviction of assault by drive-by shooting, the less severely punishable offense, should be vacated.

The federal and state constitutions both guarantee that no person shall twice be put in jeopardy of life or liberty for the same offense. U.S. Const, amend. V; La. Const. art. I, § 15. Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also multiple punishments for the same criminal act. U.S. Const, amend. V; La. Const, art. 1, § 15; La. Code Crim. P. art. 591. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); State v. Frank, 2016-1160 (La. 10/18/17), 234 So.3d 27, 33-34 (finding protections against double jeopardy fall within the analytical framework set forth in Blockburger, and Louisiana courts need apply only that framework in analyzing questions of double jeopardy); State v. Burgess, 2019-1603 (La. App. 1st Cir. 9/22/20), 315 So.3d 279, 285, writ denied, 2020-01189 (La. 2/17/21), 310 So.3d 1148. Under the Blockburger test, the applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.

Thus, the Blockburger test focuses on the statutory elements of the offenses, not on their application to the facts of the specific case before the court or on the actual evidence presented at trial. Therefore, the question under Blockburger is not whether this violation of a certain criminal statute also constituted a violation of a second criminal statute, but whether all violations of the former constitute violations of the latter. Burgess, 315 So.3d at 285.

The offense of assault by drive-by shooting is defined as “an assault committed with a firearm when an offender uses a motor vehicle to facilitate the assault.” La. R.S. 14:37.1(A). By its very definition, an assault is an essential element of the offense. State v. Presley, 99-802 (La. App. 3d Cir. 3/1/00), 758 So.2d 308, 309. An assault is defined in La. R.S. 14:36 as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” An attempt, defined in La. R.S. 14:27(A), is committed by any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object. A battery is defined in La. R.S. 14:33 in pertinent part as, the “intentional use of force or violence upon the person of another[.]” The term drive-by shooting means the “discharge of a firearm from a motor vehicle on a public street, highway, or interstate highway with the intent either to kill, cause harm to, or frighten another person.” La. R.S. 14:37.1(C).

In a prosecution for illegal use of weapons or dangerous instrumentalities, as charged in this case, the State was required to prove the defendant: (1) intentionally or in a criminally negligent manner discharged a firearm; (2) from a vehicle located on a public road or highway; (3) at a time and place where it was foreseeable that death or great bodily harm might occur to a human being; and (4) that the defendant had the intent to injure, harm, or frighten a human being. La. R.S. 14:94 (A) & (E). Illegal use of a weapon is a general intent crime. See La. R.S. 14:94(A) & (E); La. R.S. 14:11; State v. Lyons, 2018-0280 (La. App. 4th Cir. 3/29/18), 241 So.3d 1153, 1158, writ denied, 2018-0510 (La. 4/5/18), 240 So.3d 182.

While the crime of assault by drive-by shooting requires proof of an assault, either by showing the specific intent to use force or violence upon the person of another (and the commission of an act in furtherance of that goal) or the intentional placing of another in reasonable apprehension of receiving a battery, neither fact is required to commit the crime of illegal use of a weapon or dangerous instrumentality by discharge of a firearm from a motor vehicle upon a highway with the intent to injure, harm, or frighten another. Further, the offense of illegal use of a weapon or dangerous instrumentality by discharge of a firearm from a motor vehicle upon a highway with the intent to injure, harm, or frighten another requires proof that the shooting took place at a time and place where it was foreseeable that death or great bodily harm might occur, a fact not required to commit the crime of assault by drive-by shooting. See La. R.S. 14:11; 14:27(A); 14:33; 14:36; 14:37.1(A) & (C); 14:94 (A) & (E).

Based on the foregoing, we find the crimes of assault by drive-by shooting and illegal use of a weapon or dangerous instrumentality by discharge of a firearm from a motor vehicle upon a highway with the intent to injure, harm, or frighten another are two separate and distinct offenses, requiring separate and distinct evidence for conviction. Each offense required proof of an additional fact not required by the other offense. Therefore, applying the Blockburger “same elements” test, we do not find that the defendant's prosecution, convictions, and sentencing for both crimes violated double jeopardy. We find no merit in assignment of error number four.

PATENT ERROR

Under La. Code Crim. P. art. 920(2), an appellate court is limited in its review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. State v. Kimble, 2023-0176 (La. App. 1st Cir. 9/21/23), 376 So.3d 869. After a careful review of the record, we have found a patent error. On count three, the trial court failed to impose the necessary restrictions to probation, parole, and suspension of sentence as mandated by La. R.S. 14:27(D)(3) and La. R.S. 14:30.1(B). When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of a sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence. La. R.S. 15:301.1(A).

Therefore, under this self-activating provision, the defendant's sentence on count three is amended to be thirty years at hard labor, without benefit of probation, parole, or suspension of sentence. See State v. Vaughn, 2021-0521 (La. App. 1st Cir. 5/23/24), 2024 WL 2762189, at *5 (unpublished). We therefore affirm the defendant's sentence as amended, and remand to the trial court for correction of the minutes and the order of commitment.

CONVICTIONS AFFIRMED; SENTENCES ON COUNT I AND II, AFFIRMED; AND SENTENCE ON COUNT III AMENDED AND AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF THE MINUTES AND COMMITMENT ORDER.

FOOTNOTES

1.   The State nol prossed additional offenses it initially charged the defendant with in this case. The remaining offenses were not renumbered. Though not numbered as such in the bill of information, in distinguishing the offenses, we reference the convictions as counts one, two, and three.

2.   Prior to any questioning, the person must be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).”

3.   During his confession, the defendant claimed Burnett fired shots back at him. However, Burnett testified he was unarmed.

4.   Herein, the statute is denoted consistently with the version in effect at the time of the offenses (prior to amendment by 2023 La. Acts No. 3 54, § 1 (eff. Aug 1, 2023)). State v. Parker, 2003-0924 (La. 4/14/04), 871 So.2d 317, 322 (“law in effect at the time of the commission of the offense is determinative of the penalty which is to be imposed upon the convicted defendant”).

5.   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. Code Evid. art. 401.

6.   As the defendant notes in his appeal brief, the State's notice of intent to introduce crimes, wrongs, or acts committed pursuant to La. Code Evid. art. 404(B) was not originally in the record on appeal. However, on December 20, 2024, this court issued an order to the trial court to supplement the record. Thus, the State's motion is now in the record.

7.   The defendant would have to satisfy the requirements of La. Code Crim. P. art. 924, et seq. in order to receive such a hearing.

8.   We note the trial court found defense counsel's assertion that the defendant was suffering from mental dysfunction baseless.

9.   A jury trial commences when the first prospective juror is called for examination. La. Code Crim. P. art. 761.

HESTER, J.