STATE OF LOUISIANA v. MARCUS CHENIER (2025)

FACTS

On the evening of January 23, 2021, in Opelousas, Antonio Livings and his passenger Marcus Chenier, picked up Javon Figaro. Figaro sat in the back seat because Chenier was already in the front passenger seat. Figaro and Chenier were both armed with AR-style weapons. Chenier had a shorter version that Livings referred to as a “pistol,” while Figaro carried a full-length AR-15 rifle.

As they traveled, Livings saw a man walking alone in the area. Chenier instructed Livings to turn, then had Livings drop them off. Both passengers exited the vehicle with their firearms. Livings drove away, but when he stopped at a nearby stop sign, he heard multiple gunshots. He left the area quickly.

Livings went to his grandmother's house but soon received a phone call from his cousin, John Lamb, Jr., who had heard gunshots and wanted to leave the area he was in. Once Livings had picked up Lamb, the latter received a call from Chenier, who wanted to meet in Lawtell. The men drove to an apartment in Lawtell, where they met Chenier and Figaro. The latter pair of men still had their weapons. They were both excited and recounted their shooting of the victim. Also, the men were packing, and they said they would be flying to Las Vegas. A female who Livings did not know had secured the tickets for them.

Meanwhile, Lieutenant Brody Ortego of the Opelousas Police Department was out on patrol and heard gunfire. This led to him finding the victim, Kelly Guidry, prone and bleeding, but at this point still alive. Guidry told Lieutenant Ortego that the men who shot him ran toward an area known as “the Oil Mill.” Ambulance personnel transported the victim to the hospital, but he eventually succumbed to the gunshot wounds. Other police officers were called to the scene, and the investigation began.

Chenier, the defendant in this appeal, and Figaro were jointly charged by a bill of indictment with the second degree murder of Kelly Guidry, a violation of La.R.S 14:30.1. The two were jointly tried, and both were convicted of the charged offense. The defendant was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. He is before this court appealing his conviction, raising two assignments of error.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENTS OF ERROR

1. A new trial should be granted for failure of the state to disclose exculpatory evidence contained in grand jury testimony prior to the trial.

2. A new trial should be granted in this case due to the violation of Marcus Chenier's Sixth Amendment right to confrontation.

A. The trial court erred in allowing hearsay evidence of uncertified boarding passes to be admitted in evidence through the testimony of Detective Harris.

B. After excluding documentary evidence because the state failed to properly disclose it before trial, the trial court erred in allowing a new witness to read the documentary evidence to the jury via Zoom, in violation of the bar against hearsay testimony, and in violation of the confrontation clause in the U.S. Constitution.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant first claims that a new trial should be granted due to the state's failure to disclose exculpatory evidence contained in the grand jury testimony. Defense counsel filed a motion seeking the grand jury testimony of Antonio Livings, the man who drove the defendant and Figaro to the area where the victim was shot. The trial court conducted an in-camera inspection of the transcript and determined that it did not contain exculpatory evidence, and thus, would not be provided to the defense.

During trial, and after Sergeant Brandon Harris of the Opelousas City Police was questioned by both sides regarding his interview of Livings, the state provided the defense with the grand jury testimony it had in its possession. In doing so, the state forwarded a letter to the defense stating that, when preparing for Livings's trial testimony, it had noticed a possible discrepancy between Livings's interview and his grand jury testimony “which was not immediately obvious until now.” Following this disclosure, a conference was held outside the presence of the jury. Defense counsel pointed out discrepancies regarding Livings's familiarity with guns or prior “run ins” with law enforcement regarding guns. Further, grand jury testimony revealed that the defendant's only reason for being in Opelousas was to shoot a video. Defense counsel argued that this would refute the claim that the defendant and Figaro left town because of the murder. Finally, the defense questioned the discrepancy in the identity of Lamb versus John Livings, noting the grand jury testimony mentioned only John Livings. Due to the late disclosure of the grand jury testimony, the defense suggested that if the trial court chose not to dismiss the case with prejudice, it should prohibit the state from introducing evidence of “the subject matter not disclosed.” Other suggestions offered by defense counsel were to strike Livings as a witness or to reopen the cross-examination of Sergeant Harris.

The state explained that it provided the grand jury testimony out of an abundance of caution because it was unclear whether Livings's statements to Sergeant Harris and the grand jury testimony conflicted. The state's position with respect to Livings's prior involvement with guns was that the defense could impeach Livings about his prior criminal activity. As for the discrepancy between the identity of Lamb and John Livings, the state's position was that it was not clear that these were different people. Finally, the state pointed out that it had taken no position at trial regarding the reason for the defendant's presence in Opelousas. Thus, the reason for him being there could not have resulted in prejudice. The state pointed out that the defense was free to call Sergeant Harris in its case-in-chief should it feel that anything in Livings's grand jury testimony conflicted with his trial testimony.

The trial court noted the defense still had the opportunity to call Sergeant Harris in its case-in-chief and Livings had yet to testify. Further, the trial court felt the evidence was not exculpatory but that it may be impeachment evidence that the jury “still has the opportunity to hear and consider.” Thus, it denied the defendant's claim regarding a Brady violation. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).

On appeal, defense counsel focuses her argument on the information regarding Lamb and does not present argument regarding Livings's history with guns nor the defendant's reason for being in Opelousas at the time of the murder. She explains that Livings initially denied to interviewers that his cousin Lamb was with him when he went to Jarrell “Rail” Tucker's house prior to the shooting. However, at trial, Livings testified that Lamb was in the car with him, and they went to Rail's house where they saw the victim shortly before the shooting. Sergeant Harris testified that he obtained information that Lamb wanted to kill the victim, but nothing “intelled” him that Lamb committed the crime. Also, Livings told the grand jury that his cousin “John Livings” asked him to pick up the defendant on the evening of the murder, not Lamb. Appellate counsel contends a new trial should be granted because Livings did not mention Lamb's name to the grand jury, initially withheld this name from investigators, and then said Lamb was with him at Rail's house but was not involved in the shooting. Defense counsel argues that the late revelation of this information hampered the defense in that the opening statement, questioning of witnesses, and voir dire would have been conducted differently had this information been provided earlier.

Review of issues regarding nondisclosure of evidence favorable to the accused has been discussed by the supreme court in State v. Brown, 16-998, pp. 129–30 (La. 1/28/22), 347 So.3d 745, 834–35, cert. denied, __ U.S. __, 143 S.Ct. 886 (2023):

In Brady, the Supreme Court held that suppression by the prosecution of evidence favorable to the accused violates a defendant's due process rights where it is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Brady [v. Maryland], 373 U.S. [83] at 87, 83 S.Ct. 1194 [(1963)]. This rule encompasses evidence which could be used to impeach a witness whose reliability or credibility may determine the defendant's guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Knapper, 579 So.2d 956, 959 (La. 1991). Furthermore, it extends to both late disclosure and/or non-disclosure of favorable evidence that significantly impacts the defendant's opportunity to effectively present the evidence or compromises the trial's fundamental fairness. State v. Kemp, 00-2228, p. 7 (La. 10/15/02), 828 So.2d 540, 545.

Nevertheless, as this court has recognized, “not every violation of the broad duty of disclosure constitutes a Brady violation.” [State v.] Brown, 15-2001 at 2 [(La. 2/19/16)], 184 So.3d [1265] at 1266. In fact, Brady and its progeny do not establish a general rule of discoverability: the prosecutor does not breach the constitutional duty to disclose favorable evidence “unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial.” United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 [(1976)]; State v. Bright, 02-2793, 02-2796, p. 6 (La. 5/25/04), 875 So.2d 37, 42.

In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court laid out the three components of a true Brady violation: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler, 527 U.S. at 281-282, 119 S.Ct. 1936.

Relative to the materiality component of a Brady violation, a reviewing court must ascertain not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in the absence of the undisclosed evidence the defendant received a fair trial resulting in a verdict worthy of confidence. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). See also, State v. Strickland, 94-0025, p. 38 (La. 11/1/96), 683 So.2d 218, 234. A Brady violation occurs when the “evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (quoting Bagley, 473 U.S. at 678, 105 S.Ct. 3375). Further, while late disclosure or non-disclosure of exculpatory evidence may deprive the defendant of a fair trial, in both instances the impact on the defense “must be evaluated in the context of the entire record.” Kemp, 00-2228 at 7,828 So.2d at 545.

In State v. Hogg, 54,970, pp. 22–25 (La.App. 2 Cir. 5/3/23), 361 So.3d 577, 590–91 (alteration in original), the second circuit discussed Brady as it relates to La.Code Crim.P. art. 434.1(B):

To establish a Brady violation, the defendant must prove that (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material. Where a defendant fails to establish any one element of Brady, we need not inquire into the other components. See United States v. Runyan, 290 F. 3d 223, 245 (5th Cir. 2002); United States v. Hughes, 230 F. 3d 815, 819 (5th Cir. 2000).

Whether the State suppressed evidence depends on whether it had the obligation to disclose the evidence, in this case, Haddox-Barragan's grand jury testimony. In an effort to balance the competing interests of Brady and the secrecy of grand jury proceedings, the Louisiana Supreme Court in State v. Trosclair, 443 So. 2d 1098 (La. 1983), created a limited exception to grand jury secrecy, holding that the indispensable secrecy of grand jury proceedings must not be broken except where there is a compelling necessity. Id.; see also State v. Taylor, 18-0192 (La. App. 4 Cir. 5/23/18), 247 So. 3d 1192, writ denied, 18-1045 (La. 11/20/18), 256 So. 3d 989, and State v. Francis, 18-1395 (La. 9/21/18), 252 So. 3d 875. The party seeking disclosure of grand jury testimony bears the burden to show a compelling necessity for breaking the indispensable secrecy of grand jury proceedings, and must demonstrate a particularized need that outweighs the need for continued secrecy. Trosclair, supra. The defendant must show that, without the material, his case would be greatly prejudiced or that an injustice would be done. Id.

In 2012, the legislature enacted La. C. Cr. P. art. 434.1(B), which sets forth the only statutory exception to grand jury secrecy that specifically allows for the disclosure of grand jury testimony to a defendant by directing a district attorney to “disclose to the defendant material evidence favorable to the defendant that was presented to the grand jury.” Thus, the courts have limited authority to allow for the disclosure of grand jury testimony to a defendant. Taylor, supra.

In-camera inspection by the trial judge is a proper means of accommodating the secrecy of the grand jury while protecting a defendant's constitutional rights of confrontation and due process. Taylor, citing State v. Peters, 406 So. 2d 189 (La. 1981). A trial court may act upon a specific request stated with particularity and review grand jury transcripts in camera to determine if information contained therein is favorable to the accused and material to guilt or punishment. Francis, supra, citing State v. Higgins, 2003-1980 (La. 4/1/05), 898 So. 2d 1219. If disclosure is permitted, it must be closely confined to the limited portion of the material for which there is particularized need. Francis, supra, citing Trosclair, supra. In any event, disclosure is left to the sound discretion of the trial court whose ruling will not be reversed absent an abuse of that discretion. Francis, supra, citing Higgins, supra.

In Taylor, supra, the district court ordered the State to provide it with a copy of the grand jury transcript for an in-camera review in order for it to fully consider the defendant's motions to quash, which included several arguments such as prosecutorial misconduct, improper grand jury instructions, and an inconsistency in the victim's statement. Following review, the court ordered the State to disclose the full grand jury transcript to the defendant, ruling that the defendant's need for the transcripts outweighed the interest in grand jury secrecy. Id. The Fourth Circuit granted the State's writ and found that a review of the record and the sealed grand jury transcript revealed that the transcript did not include any “material evidence favorable” to the defendant pursuant to La. C. Cr. P. art. 434.1(B). It held that, “Because 434.1(B) evidence is the only evidence the legislature has authorized for the breaking of the indispensable secrecy of grand jury proceedings and this grand jury transcript does not include any Article 434.1(B) evidence, the district court's decision to disclose the transcript was either based an [sic] erroneous application of the law or a clearly erroneous assessment of the sealed grand jury transcript itself.” Id. at p. 7, 247 So. 3d at 1196-7.

In Francis, supra, the district court granted in-camera review of grand jury testimony, then ordered that the State furnish full transcripts of the grand jury testimony of the cooperating former codefendants, because it found that their testimony contained material that could be used to impeach these witnesses if they testified at trial. The Louisiana Supreme Court granted the State's writ and held that the district court abused its discretion in ordering disclosure of the grand jury testimony, holding that, while the evidence may be useful in impeaching witnesses if the State calls them to testify at trial, it is not material evidence favorable to the defendant, as required to justify breaking grand jury secrecy in accordance with the jurisprudence, Trosclair and Higgins, and La. C. Cr. P. art. 434.1(B). Id.

In this case, the trial court followed proper procedure in conducting an in-camera review of Livings's grand jury testimony. Initially, the court found the testimony contained no exculpatory evidence, and the defendant was not entitled to said testimony. When the issue was revisited, the trial court found that any information was impeachment material, not exculpatory, which, under Francis, would not entitle the defendant to the transcripts. Since the defendant was not legally entitled to receive the transcripts at all, there was no Brady violation. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant contends that a violation of his right to confrontation warrants a new trial. He argues that during Sergeant Harris's testimony, copies of boarding passes for the defendant's and Figaro's January 24, 2021, flight from Houston to Las Vegas were introduced into evidence over the defense's objection and that they were both hearsay and uncertified records. Sergeant Harris had received the documents from Lieutenant Scott Hartenstein, a Jefferson Parish Sheriff's Deputy, who worked at the New Orleans airport, the airport from which Sergeant Harris believed the defendant and Figaro had departed. On appeal, the defendant maintains the hearsay and uncertified records argument, contending that the boarding passes were hearsay and not a record of regularly conducted business activity. He notes that neither Sergeant Harris nor Lieutenant Hartenstein were custodians of the records.

At trial, Sergeant Harris recounted Livings's statement that, while at the Cherry Blossom apartments in Lawtell, the defendant and Figaro discussed the shooting and disposal of the firearms. They then made plans to leave the area and travel to Las Vegas. Sergeant Harris testified that at some point, tickets were purchased, but he did not recall if Livings told him or whether he simply assumed that defendant and Figaro departed from the New Orleans airport. Sergeant Harris testified that he reached out to Lieutenant Hartenstein, who was assigned to the New Orleans airport. Lieutenant Hartenstein informed Sergeant Harris that the defendant and Figaro flew from Houston to Las Vegas, and Lieutenant Hartenstein provided Sergeant Harris with the flight information. This information was provided by the state to the defense well in advance of trial.

Prior to Sergeant Harris’ testimony, in anticipation of a defense objection, a hearing was held in chambers to discuss the admissibility of certified records the state had received from Spirit Airlines the week of trial. The state sought admission of these records, identified as State Exhibit 45, as self-authenticating certified records of a regularly conducted business activity in accordance with La.Code Evid. art. 902(11).¹ Defense counsel contended that he did not have an issue with the authenticity of the record; rather, he had an issue with foundation.

The prosecutor explained that she issued a subpoena to Spirit Airlines, and the records provided in response were printed and provided to defense counsel upon receipt. Defense counsel indicated that he received the records on April 15, 2024, the first day of trial. The prosecutor explained that she provided the certification page for the records to the defense the following day when she received it from Spirit Airlines. As mentioned above, in advance of trial, she had provided the defense copies of boarding passes Sergeant Harris received from Lieutenant Hartenstein, thus giving the defense notice regarding the flight. Because the defense was provided a copy of the boarding passes long before trial, the state contended that the new records from Spirit were simply “the full certified copies of those records supporting those tickets[.]” The state's position was that the required notice of La.Code Evid. 902(11) had been provided.

Having read the investigative report during pretrial proceedings, the trial court acknowledged its awareness of the airline ticket “issue.” However, defense counsel explained that what was provided pre-trial was only a partial page of what appeared to be an Expedia receipt, leaving open many questions he planned to ask Lieutenant Hartenstein should he testify at trial. This varied vastly from the Spirit Airlines records the state sought to introduce. Argument regarding the required affidavit not being notarized was also presented.

Although not a ruling per se, the trial court shared its thoughts on what would be allowed during Harris's testimony:

THE COURT: I have an issue with the fact that Brandon Harris has put in his investigative report, which I read, that this is part of the information he gathered in connection with his investigation. So, there's -- Judge Doucet has this on his desk, coincidently, but I -- I can go get some research. But this is -- this is essentially, look, I don't know what site this is, I'll get you the site later, but, you know, a law enforcement officer may testify about information provided by another individual without it constituting hearsay if it is offered to explain the course of the police investigation and the steps leading to the defendant's arrest. A law enforcement officer's testimony about statements made to him by other persons involved in the case in order to explain their actions are not hearsay. Instead, these statements often fall under the res gestae, or gestae, exception and are admissible not to prove the truth of the statement being made but rather to explain the sequence of events leading to the arrest of the defendant.

So, I'm going to tell you and the reason I made that disclosure at the beginning because I think Brandon can testify about the tickets to the extent that -- that's not a great site, but I'll get you –

․

So, it -- anyway, I mean, I came into this trial thinking that Brandon would be able to testify as to the tickets, or to the airline issue and would be able to testify how he learned that information from others. So, that's why I'm sort of -- not that I want to punt, but, I guess, I don't know what other term to use, defer ruling for right now maybe to see how it comes in or how the State attempts to use it in Brandon Harris's testimony, because again, I don't know their strategy, I don't know what they have in their file or what they don't have in their file.

․

I mean, so, I guess, from this documents [sic] a pass would have been printed. But all of this is indicative of the fact that corroborative evidence of Mr. Livings and his statements to Brandon that they took a flight out the next morning from Houston and went to Vegas. And that's what these show. It's a flight from Houston to Vegas the next morning on flight 3022, Spirit Airlines. And that's -- and it's [sic] talks about where they were sitting and it gives you the time. And the boarding passenger information, they say what they say. But this is information Brandon had that he can talk about in the course of his investigation firming up, you know, information given to him by Livings.

Defense counsel argued that even if tickets were purchased and boarding passes printed, it did not mean that the defendant and Figaro boarded the plane. The trial court took the matter under advisement, then ruled:

I've got enough, hearing closed. I've already tipped my hand that this may not be an issue depending on what Mr. -- what Sergeant Harris says. And I've already tipped my hand -- I've read it in the investigative report, I know it's part of his investigation. I'm giving him some leeway to testify about the flight. And then if Mr. Hoffenstein, or whatever his name is, comes tomorrow and if they need him tomorrow, you know, we'll see what he says then, too. I don't know, you know, I have a little bit of an issue, I understand the 905 procedure, not 905 --

․

․ 902.11. I understand all that and this is a criminal, you know, this is a criminal trial, I know y'all had -- you didn't have this specific record, but you had notice that this specific issue was on the table. And I'm struggling with that and I'm kind of waiting to see how the State approaches Brandon Harris's testimony. You know, everything he did, I mean, he didn't have these records when he did his investigation, but he had other information when he did his investigation. I mean, so - -

Defense counsel argued:

So, some of the information that he had, Judge, and this kind of goes to our point without tipping our hand, is that Livings told him they drove to New Orleans and flew to Las Vegas, okay. Now, that's why he called Hartenstein, who is in Jeff Parish as opposed to calling somebody in Houston. He had misinformation. This 21, 2021, it's 2014 (sic), did they not have ample time to get certified records and share them with us, 2024, you get my point, three years, all right. Did they not have ample time to -- to do what they needed to do to lay a proper foundation, to provide us with authenticated records, other than a printout from somebody's computer. And what I'm hearing is that this person probably won't be here tomorrow. But definitely not going to be here today before Brandon testifies about his printout. I mean, I have a big issue. We're prepared to deal with Brandon talking about what Hofferstein [sic] might have told him, okay, but there's a reason that the State is now feeling like, oh gosh, we need to tie up our loose ends and put in certified records. And then presenting it to us at the last minute with uncertified records, per Louisiana law, all right, at the last minute is just not fair. It's trial by ambush, it's causing us to have to maybe adjust our strategies at the last minute. Judge, it's not right. We wouldn't be allowed to do this.

(Second alteration added.)

Sergeant Harris was then called as a witness. During his testimony, the trial court allowed the state to offer the certified records from Spirit Airlines as State's Proffer 1. State's Proffer 2 was the joint stipulation regarding discovery entered by the state and defense on December 13, 2021, and January 3, 2022. State Proffer 3 was a two-page document showing seat assignments for Figaro and the defendant on a flight from Houston to Las Vegas. It indicated that the boarding passes were printed and that the two boarded the plane at approximately 7:52 a.m. on January 24, 2021. Payment for the tickets was reflected as well. Chenier Proffer 1 was a five-page document, two pages of which were duplicates of State Proffer 3. It appears to also contain information regarding a February 15, 2021 flight boarded by the defendant and another individual. Finally, Chenier Proffer 2 was the state's subpoena for the Spirit Airlines records and the response thereto.

The court issued the following ruling:

Secondly, this is my ruling. I reviewed the records, everything except Chenier 2. I don't think I need that to make my ruling. Here, this is Chenier -- State Proffer 1 and State Proffer 2, so you have everything.

Second thing I want -- second point I want to make very, very clear is this ruling right now applies only to the document that is currently in the note of evidence for this hearing as State Proffer 1, which is the document that purports to be the certified records obtained pursuant to the subpoena duces tecum that I signed on Monday. Only affects those written records with that certification page.

The State's argument, I understand both arguments, and I don't want to waste a whole lot of time going into great detail about my analysis. But I understand the State's argument that you signed a joint stipulation to accept open file discovery. The joint stipulation says that you acknowledge, the defendants acknowledge that any all [sic] documents produced in open file discovery may be used or attempted to be admitted at trial. The State then argues that the two pages that are State's Proffer – I'd have to see them again, but State's Proffer 3 - - can I see that just to be sure?

․

․ One, two -- 2 is the joint stip, 3 is the two pages. Does -- the State's argument is that the two pages produced in open file as State Exhibit -- as State Proffer 3 should have given the defendant notice that they intended to make use of the, I'm going to just call it airline information and that all they're doing is essentially substituting the certified copy for essentially the same substantive information as State Proffer 3. The problem I have is the very last line of Louisiana Code of Evidence Article 902(11) and it's just I'm the type of person, it's just very hard for me to ignore the plain language of the article. It says, “Before the trial or hearing, the proponent shall give an adverse party reasonable written notice of the intent to offer the record and shall make the record and certification available for inspection so the party has a fair opportunity to challenge it.” Although I think I can look at it and -- and probably discern that some of the content is the same, the two documents are just not the same. So, the document -- in the sense that the document that was provided in open file discovery does have some information that appears to be duplicated in Chenier -- Chenier Proffer, I mean, in the Chenier Proffers. But the exact documents that the State is now attempting to introduce as State Proffer 1, do have additional information that was not contained in State Proffer 3. Additionally, this is the first time the certification -- the fact that the certification page came electronically, separately, whatever, none of that really bothers me, we've -- you know, you've done that a million times, I know you've done that and I did it a million times where we slap the certification page on hospital records and what have you and telephone records. That doesn't bother me because that statute she cited in Title 13, we call [sic] know that. But, but the problem is the plain language of 902(11) states the exact record the State is attempting to offer was not available before trial and the exact certification page the State is attempting to use to get past authentication was not available before trial. And for that reason, that one document, State Proffer 1, will not be admitted at this time.

During trial, Sergeant Harris testified that he received information from Lieutenant Hartenstein regarding the defendant's flight. Prior to the admission of State Exhibit 45 (the two pages of flight information provided to the defense in pre-trial discovery), defense counsel objected on the grounds of hearsay and because the records were uncertified. The court overruled the objection for the same reasons it had earlier discussed.

The defendant is correct in his assertion that Exhibit 45, introduced during Sergeant Harris’ testimony, did not fall within the hearsay exception of regularly conducted business activity in that Sergeant Harris was not a custodian of the records. See La.Code Evid. art. 803(6). Any error in its admission is harmless error, however, considering the information contained therein was also subsequently elicited through the testimony of Mark Pietz of Spirit Airlines.

The defendant additionally contends that, despite the trial court's exclusion of State Proffer 1, the trial court allowed Mr. Pietz to testify via Zoom and to read to the jury the documents previously excluded. Our interpretation of the trial court's ruling regarding State Proffer 1 was that it did not prohibit the introduction of the certified Spirit Airlines records by means other than the self-authentication provision contained in La.Code Evid. art. 902(11). Further, Mr. Pietz did not read the documents. He was questioned about the records which he had provided in response to the state's subpoena, and there was no objection to the way in which his testimony was presented. Thus, any error was waived. See La.Code Crim.P. art. 841(A). Further, the defense cross-examined Mr. Pietz.

As for Mr. Pietz's appearance via Zoom, to preserve a confrontation claim for appellate review, a defendant must make a contemporaneous objection to any alleged violation of the right to confrontation. See La.Code Crim.P. art. 841(A); State v. Vallo, 13-1369 (La. 1/10/14), 131 So.3d 835. The record revealed no objection to Mr. Pietz testifying via Zoom. Thus, the issue is waived.

CONCLUSION

The defendant's conviction and sentence are affirmed.

AFFIRMED.

FOOTNOTES

1.   Louisiana Code of Evidence Article 902 provides, in pertinent part:Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:․(11) Certified records of a regularly conducted business activity in criminal cases. In criminal cases, the original or a copy of a record of a regularly conducted business activity that meets the requirements of Article 803(6), as shown by a certification of the custodian or another qualified person, and that complies with Louisiana law, including R.S. 13:3733 through 3733.2, or a rule prescribed by the Louisiana Supreme Court. Before the trial or hearing, the proponent shall give an adverse party reasonable written notice of the intent to offer the record and shall make the record and certification available for inspection so that the party has a fair opportunity to challenge it.

ELIZABETH A. PICKETT CHIEF JUDGE