STATE OF LOUISIANA v. RANDY FLOT (2025)

The defendant, Randy Flot, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. After a trial by jury, he was found guilty as charged. He 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 life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. He now appeals, raising the following assignments of error: (1) the evidence was insufficient to support the verdict; (2) the trial court erred in denying his motion for post-verdict judgment of acquittal; and (3) the trial court erred in denying his motion for mistrial.¹ For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On December 29, 2021, officers from the Baker Police Department (BPD) responded to multiple 911 calls to Redbud Apartments, located at 4201 Groom Road in Baker. Officer Keyira Johnson arrived at the scene where she found a female resident, later identified as Kaniya Butler, crying and holding her boyfriend, the victim, later identified as Taurus Matthews.

Butler indicated the defendant, the father of her children, committed the shooting. The defendant and Butler have two boys, one born January 19, 2021 and one born December 22, 2019. Butler explained that she was in her apartment kitchen when the defendant arrived to pick up their children. The defendant went to the children in the bedroom toward the back of the apartment. Butler overheard a brief verbal confrontation between the defendant and Matthews, followed by gunshots. Matthews suffered two gunshots to his chest. Matthews was transported to the hospital where shortly after he died from his gunshot injuries.

SUFFICIENCY OF THE EVIDENCE

In counseled assignments of error numbers one and two, the defendant argues the State failed to prove beyond a reasonable doubt that he is guilty of second degree murder. He argues the State presented no evidence to refute that he was in fear of physical harm and acted in self-defense.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV, La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654, 660; State v. Thomas, 2019-0409 (La. App. 1st Cir. 10/25/19), 289 So. 3d 1030, 1037.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Currie, 2020-0467 (La. App. 1st Cir. 02/22/21), 321 So. 3d 978, 982.

When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. King, 2023-1192 (La. App. 1st Cir. 09/20/24), 405 So. 3d 678, 686.

Second degree murder is defined, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Because it is a state of mind, specific intent need not be proven as a fact, but may be inferred from circumstances surrounding the offense and the defendant's actions. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Livous, 2018-0016 (La. App. 1st Cir. 09/24/18), 259 So.

3d 1036, 1040, writ denied, 2018-1788 (La. 04/15/19), 267 So. 3d 1130.

A homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” La. R.S. 14:20(A)(l). However, an aggressor may not claim self-defense without showing he first withdrew from the conflict in good faith and in such a manner that his adversary knew or should have known of his intention to withdraw and discontinue the conflict. See La. R.S. 14:21. When self-defense is raised by the defendant, the State has the burden of proving beyond a reasonable doubt the homicide was not perpetrated in self-defense. In reviewing a claim of self-defense on appeal, the issue is whether a rational factfinder, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt the defendant did not kill the victim in self-defense. State v. Brown, 2023-0293 (La. App. 1st Cir. 11/28/23), 380 So. 3d 18, 23.

In this case, Officer Johnson arrived at the scene with Sergeant Simon Kleinpeter of the BPD. Officer Johnson testified that Matthews was responsive when she first arrived on the scene. She asked him if he knew who shot him, but he was unable to talk, as he had difficulty breathing and was coughing up blood. Officer Johnson instructed Sergeant Kleinpeter to secure the scene. Sergeant Kleinpeter testified he immediately secured the scene and was able to keep people from entering the area.

Officer Johnson escorted Butler to a nearby apartment. Officer Johnson subsequently entered Butler's apartment where the shooting took place. Officer Johnson, who was wearing a body camera at the time, observed blood on the right side of the front door and shell casings on the hallway floor and bedroom floor. Butler's children with the defendant, were still in the apartment when Officer Johnson entered. The children were escorted to their mother. The officers observed a long blood trail from the upstairs apartment to downstairs, where Matthews was located when the police arrived.

Lieutenant Jason Fitzpatrick, a crime scene investigator of the East Baton Rouge Parish Sheriff's Office, was also dispatched to the location of the shooting that night. Lieutenant Fitzpatrick testified he had about eleven years of experience in crime scene investigation, involving nearly two thousand crime scenes, and that approximately seventy percent of the scenes involved a shooting. After arriving to the scene, he took photographs and video footage.

Lieutenant Fitzpatrick's video footage shows the exact location of trails of blood, the shell casings, and the bullet strikes to the bedroom mattress and window curtain. Lieutenant Fitzpatrick testified the mattress was two and a half feet off the floor and the bullet strike was right above his knee level. He noted the bullet hole in the mattress was circular or round, indicating it was a “straight-on shot.” Lieutenant Fitzpatrick determined the trajectory of the bullet hole in the mattress showed it was struck from the direction of the door in the front of the bedroom. Lieutenant Fitzpatrick used trajectory rods to display the direction from which an object was shot. He testified the bullet that went through the curtain and out of the window did so in a “tumbling” manner, which he stated indicated the bullet went through something before passing through the window.

Lieutenant Fitzpatrick agreed on cross-examination the shell casings were light and susceptible to being moved around. However, he confirmed there was no indication the crime scene had been compromised in this case. Assuming the scene had not been compromised, based on his experience as a crime scene investigator, the location of the casings, and the determined trajectory, Lieutenant Fitzpatrick determined the casing located in the hallway was fired from the doorway. He further concluded the casing ejected to the right, probably hit the hallway wall, and then came back. He concluded the shooter was likely standing in the middle of the room when the bullet that went through the window was fired, assuming the casing bounced off the wall and came back to the middle of the floor. He confirmed there was blood at the edge of the bed, noting the curve or trail of the blood led to the casing found in the middle of the bedroom floor.²

Lieutenant Bryan Holiday with the BPD testified he interviewed Butler at the scene and again the next day at the BPD. He thereafter obtained a warrant for the defendant's arrest. After the officers sought the assistance of U.S. Marshals, the defendant turned himself into the police.

Dr. William Beau Clark, the East Baton Rouge Parish Coroner, testified as an expert in emergency medicine. Mathews’ cause of death was two gunshot wounds of the upper chest. No fragments were recovered during the autopsy, and Dr. Clark noted there were visible exit wounds and concluded the bullets went through Matthews’ body. One of the gunshot entrance wounds was in the left upper chest wall with an exit gunshot wound on the left side of the upper back. The other gunshot entrance wound was in the right upper chest wall with an exit gunshot wound on the right side of the upper back, centered.

According to the autopsy, the bullet that entered on the left side of the upper chest had a trajectory of “right-to-left front-to-back, and downward.” The bullet that entered on the right side of the upper chest had a trajectory of “right-to-left, front-to-back, and no significant upward/downward deviation.” Thus, based on those findings, Dr. Clark confirmed that one bullet had a downward trajectory, while the other had a straight trajectory. Dr. Clark noted the circular nature of both wounds and the presence of stippling, evidenced by little red dots on the skin around each gunshot wound. Dr. Clark concluded the distance between the muzzle of the gun and Matthews was within the two-foot, intermediate range.³

Butler testified she and the defendant broke up after their second child was born in January of 2021. She later began a romantic relationship with Matthews, who she referred to as “T.J.” The defendant was aware of the relationship, as he would see them together when he picked the children up from Butler's apartment. Butler further testified Matthews would often stay at her apartment, located on the second floor of the complex. On the night in question, Butler got off from work at 8:00 p.m. or earlier, Matthews picked her up, and they went to Butler's apartment to cook dinner. The defendant was scheduled to pick up their children that night. Butler started cooking while Matthews and the children were in the bedroom, as Matthews was playing video games.

Butler explained the night that the defendant came over, she was experiencing stomach pain and had a high temperature due to a stomach condition for which she had previously been hospitalized. She testified that she told the defendant she was “good” and to go to get the children. When the defendant got to the bedroom, Butler could hear him telling Matthews to get off the game and call an ambulance. Butler testified she then heard Matthews say, “What you want to do[?]” Then she heard gunshots. Butler admitted she did not tell the police during her interview about the statement Matthews made just before the gunshots. The defendant left the apartment right after the shooting. Butler described Matthews as being “way bigger” than the defendant. According to Dr. Clark, Matthews weighed two hundred and fifty pounds and measured six feet and one inch long.

The defendant, the sole defense witness, testified he only came to Butler's apartment that night to pick up his children, as he routinely did. He testified that when he arrived, Butler was on the floor, in a lot of pain, and was unable to breathe. In response, the defendant used his cell phone to call 911.⁴

The defendant then saw Matthews in the bedroom, on the bed playing a game. The defendant testified he was surprised to see Matthews since Butler was crying for help and seemed to be alone. The defendant told Matthews to get off the game, using explicit language, further telling him Butler needed help. According to the defendant, Matthews then “lunged, charged at” him. The defendant further testified he was scared, believing he was going to “get messed up” and hurt by Matthews, as he was “very much bigger” than the defendant. The defendant testified he weighed one hundred and fifty pounds at most. The defendant testified he was standing next to his son's bed when Matthews lunged at him. The defendant stated he pulled out his gun and shot Matthews. The defendant testified he was scared and did not believe he would make it out of the room before being attacked.

The defendant testified he did not know how many times he fired his gun, stating it happened “so fast.” The defendant denied being angry when he fired his gun, reiterating that he was scared. The defendant confirmed he did not see Matthews with a gun. The defendant testified that after firing his gun, he ran, stating he was in a panic. The defendant admitted he disposed of the gun. The defendant turned himself in to the police on January 18, 2022, after being informed that U.S. Marshals were looking for him.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Williams, 2001-0944 (La. App. 1st Cir. 12/28/01), 804 So. 2d 932, 939, writ denied, 2002-0399 (La. 02/14/03), 836 So. 2d 135. The reviewing court does not determine whether another possible hypothesis has been suggested by the defendant which could explain the events in an exculpatory fashion; rather, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational factfinder could not have found proof of guilt beyond a reasonable doubt. State v. Jones, 2016-1502 (La. 01/30/18), 318 So. 3d 678, 682 (per curiam).

The defendant specifically contends the testimony and evidence show that he shot Matthews during a brief confrontation, when he was feeling threatened with physical harm by “aggressive actions of Mr. Matthews lunging at him.” The defendant argues the presence of stippling marks on Matthews’ bullet wounds indicates the shots were fired from “close range” and supports his claim that he shot Matthews after he lunged at him to attack him. He contends he was much smaller than Matthews and argues it was certainly reasonable for him to believe Matthews posed a physical threat to him.

Based on the testimony and evidence presented at trial, we find the jury acted rationally when it rejected the defendant's claim of self-defense. There was no testimony at trial to support the defendant's claim on appeal that the shots were fired from close range or that the presence of stippling supported the defendant's claim that Matthews was lunging at him when he fired two bullets into Matthews’ chest. To the contrary, the record shows the defendant shot Matthews twice in the upper chest, at an intermediate range, while standing in the doorway of the bedroom. The only evidence that Matthews lunged at the defendant was the defendant's own self-serving testimony, which the jury was free to reject.

The defendant admitted Matthews was unarmed. While the defendant denied being angry when he shot Matthews, he admitted he confronted Matthews about his failure to attend to Butler. Further, the jury could have concluded, after listening to the 911 recordings, refuted his denial of being angry. Moreover, the defendant fled the scene and discarded the gun after the shooting. These actions are inconsistent with the theory of justifiable homicide. See State v. Claiborne, 2011-1605 (La. App. 1st Cir. 03/23/12), 2012 WL 996880, *5 (unpublished), writ denied, 2012-0900 (La. 10/08/12), 98 So. 3d 848. Flight and attempt to avoid apprehension indicate consciousness of guilt, and therefore, are circumstances from which a juror may infer guilt. State v. Southall, 2022-0746 (La. App. 1st Cir. 06/02/23), 369 So. 3d 925, 933, writ denied, 2023-00875 (La. 02/06/24), 378 So. 3d 750. Thus, the jury could have rationally concluded the defendant was the aggressor in this case and therefore unable to claim self-defense. Looking at the evidence in the light most favorable to the State, under the circumstances, the jury could have found beyond a reasonable doubt the defendant did not kill Matthews in self-defense.

An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 01/21/09), 1 So. 3d 417, 418 (per curiam). Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, the elements of second degree murder. Therefore, we find no error in the trial court's denial of the defendant's motion for post-verdict judgment of acquittal. Counseled assignments of error numbers one and two are without merit.

MOTION FOR MISTRIAL/DOYLE VIOLATION

In counseled assignment of error number three and the sole pro se assignment of error, the defendant argues the trial court erred in denying his motion for mistrial, as the State, while cross-examining the defendant and during rebuttal closing arguments, made impermissible references to his post-arrest silence. The defendant argues the State violated his Fifth Amendment right to remain silent and his due process rights, denying him a fair trial.

The United States Supreme Court has held that an accused's post-arrest silence is “insolubly ambiguous.” Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976). Specifically, the Supreme Court in Doyle stated,

The warnings mandated by [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)], as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights.

Doyle, 426 U.S. at 617, 96 S.Ct. at 2244. Because a jury is apt to draw inappropriate inferences from the fact that a defendant chose to remain silent, “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings” violates the Due Process Clause of the Fourteenth Amendment. Doyle, 426 U.S. at 619, 96 S.Ct. at 2245.

As specified by the Louisiana Supreme Court in State v. George, 1995-0110 (La. 10/16/95), 661 So. 2d 975, 980, “Doyle condemns only ‘the use for impeachment purposes of [the defendant's] silence at the time of arrest, and after receiving Miranda warnings[.]’ ” “[T]he prosecutor may not use the fact of an accused's exercise of his constitutional right to remain silent, after he has been advised of this right, solely to ascribe a guilty meaning to the silence or to undermine by inference an exculpatory version related by the accused for the first time at trial.” State v. Arvie, 505 So. 2d 44, 46 (La. 1987) (footnote omitted). Thus, in the case of pre-arrest silence, in which “[t]he failure to speak occur[s] before the petitioner [is] taken into custody and given Miranda warnings,” and in which “no governmental action induce[s] petitioner to remain silent,” “the fundamental unfairness present in Doyle is not present[.]” Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86 (1980). Neither Doyle specifically, nor the Due Process Clause generally, bars the inquiry. Jenkins, 447 U.S. at 239-41, 100 S.Ct. at 2129-30; State v. Pernell, 2010-0369 (La. App. 1st Cir. 09/10/10), 2010 WL 3526487, *3 (unpublished).

Moreover, it is not every mention of the defendant's post-arrest silence that is prohibited by Doyle. An oblique and obscure reference to the defendant's post arrest silence, where the examination did not stress the right to remain silent or attempt to elicit testimony regarding the defendant's failure to respond to police questioning does not constitute reversible error. See State v. Mosley, 390 So. 2d 1302, 1305-1306 (La. 1980). Further, a brief reference to post-Miranda silence does not mandate a mistrial or reversal where the trial as a whole was fairly conducted, the proof of guilt is strong, and the State made no use of the silence for impeachment. State v. Estrada, 2009-1458 (La. App. 1st Cir. 09/10/10), 2010 WL 3527552, *2 (unpublished), writ denied, 2011-1900 (La. 04/27/12), 86 So. 3d 622.

Additionally, the Doyle proscription against referring to a defendant's postMiranda silence is not without exceptions. The State is allowed reference to the defendant's post-arrest silence when the line of questioning is an attempt to summarize the extent of the police investigation and is not designed to exploit the defendant's failure to claim his innocence after his arrest in an effort to impeach his testimony or attack his defense. Estrada, 2010 WL 3527552 at *2. Likewise, an exception to Doyle exists when the evidence of post-arrest silence is relevant to rebut a defense-raised assertion that the arresting officer failed to properly investigate, or that the defendant actively cooperated with the police when arrested. State v. Bell, 446 So. 2d 1191, 1194 (La. 1984); Estrada, 2010 WL 3527552 at *2. Moreover, it is well settled that where one side has gone partially into a matter on examination-in-chief, the other side may go fully into it on cross-examination. State v. Crotwell, 2000-2551 (La. App. 1st Cir. 11/09/01), 818 So. 2d 34, 43.

Louisiana Code of Criminal Procedure article 770, with its mandatory mistrial provisions, does not apply to references to a defendant's post-arrest silence by the prosecutor or by witnesses, but only applies to references to a defendant's failure to testify at trial. State v. Kersey, 406 So. 2d 555, 560 n.2 (La. 1981); State v. Verdin, 2022-1178 (La. App. 1st Cir. 09/07/23), 2023 WL 5767592, * 10 (unpublished), writ denied, 2023-01319 (La. 03/12/24), 381 So. 3d 53. Louisiana Code of Criminal Procedure article 771 governs the proper remedy where references are made to a defendant's post-arrest silence. The Louisiana Supreme Court has indicated that under La. Code Crim. P. art. 771, when the prosecutor or a witness makes a reference to a defendant's post-arrest silence, the trial court is required, upon the request of the defendant or the State, to promptly admonish the jury. Verdin, 2023 WL 5767592 at *10.

Closing arguments in criminal cases shall be confined to evidence admitted, the lack of evidence, conclusions of fact that may be drawn therefrom, and to the law applicable to the case; and the State's rebuttal shall be confined to answering the defendant's argument. See La. Code Crim. P. art. 774. The trial court has broad discretion in controlling the scope of closing arguments, and we will not reverse a conviction on the basis of improper closing argument unless thoroughly convinced the remarks influenced the jury and contributed to the verdict. Credit should be given to the good sense and fair-mindedness of the jurors who have seen the evidence and heard the arguments. See State v. Carter, 2024-0069 (La. App. 1st Cir. 11/13/24), 405 So.3d 952, 963.

Herein, the defendant argues the State's use of his post-arrest silence and failure to relay his self-defense claim to the police prior to trial surely contributed to the jury's verdict. As noted, the instances occurred during the State's cross-examination of the defendant and during the State's rebuttal closing arguments. According to the record, defense counsel, prior to the remarks at issue by the State, attacked the thoroughness of the police investigation in this case. First, during the opening statement, defense counsel argued the defendant was brought to court based on “partial information.” Defense counsel specifically stated, “the police never bothered to try and find that 9-1-1 tape before they arrested Randy.” In fact, the District Attorney's Office never knew that 9-1-1 tape even existed until they decided to indict․” Defense counsel added, “That tape was discovered by the police 18 months after the indictment.”

Subsequently, the following colloquy took place during defense counsel's cross examination of Lieutenant Fitzpatrick:

Q. Okay. What about if the crime scene where the -- there w any measurements of heights or distances or anything like that?

A. No.

Q. Okay. Is that unusual to record distances? For instance, you said at one point that how far off the ground was the bullet hole in the curtain, and you said four, four-and-a-half feet, if I had to guess.

A. Correct.

Q. Because you don't know, because there wasn't measurements done.

A. Correct.

Q. And that's the same as in the mattress. There weren't measurements, so you're saying, you know, it was about at your knee and it could have been --

A. Right.

Q. We don't have a height of the mattress measurement, correct?

A. Correct.

Q. And we don't have a height of the -- I mean, a distance of the shells from the bed; is that correct?

A. Okay.

Q. Or, from the door?

A. From the bed or the door, no.

Q. There's no distances reported?

A. Correct.

While cross examining Lieutenant Holiday, defense counsel again criticized the police for not seeking to obtain the 911 calls earlier, particularly the call made by the defendant.

As the defendant asserts on appeal, while cross examining the defendant, the State later raised the defendant's lack of a statement before trial as follows:

Q. Okay. So, you've been able to see everything, know what all the evidence is, and then give your statement, because this is the first time you've ever spoken about this, right?

A. Yes, ma’ am.

Q. You had never spoke to law enforcement.

A. No, ma'am.

Q. Okay. Even after you hired Mr. [Damico], you never gave a statement?

A. No, ma'am.

Defense counsel then objected, arguing the prosecutor improperly challenged the defendant's right to remain silent, and moved for a mistrial.⁵ owever, we note defense counsel did not request to promptly admonish the jury.

The trial court denied the motion for mistrial but instructed the prosecutor to move on from that line of questioning. Before doing so, the prosecutor immediately thereafter stated, “[t]oday is the first time you've ever told this story.” The defendant agreed, replying, “Yes, ma'am.” The defendant entered another objection when the prosecutor subsequently asked the defendant, “If you were defending yourself, why are you just now telling the story today?” The defendant explained he “was scared.” During closing, defense counsel criticized Lieutenant Fitzpatrick's failure to make a diagram of the crime scene, to take measurements regarding bullet holes, shell casings, and trajectory angles, or to document such information in his report.

Thereafter, the prosecutor again raised the issue in her rebuttal closing arguments, stating, “we didn't know for sure that Randy Flot called 9-1-1 until Stephen Martinez looked at his Verizon reports ․ How did we not know that Randy ever called 9-1-1? ․ Because guess what? Randy never made a statement.” Defense counsel again objected and moved for a mistrial. The trial court again denied the motion for mistrial, citing State v. Marshall, 2013-2007 (La. 12/09/14), 157 So. 3d 563 and State v. Morris, 2004-120 (La. App. 3d Cir. 06/09/04), 876 So. 2d 247, writ denied, 2004-1641 (La. 11/19/04), 888 So. 2d 193.

The prosecutor raised the issue once more in her rebuttal, specifically stating, “Flight, in this case, is consciousness of guilt. He knew what he did was wrong, he knew it wasn't justified. If Randy is telling the truth, why did he not give his statement of self-defense before today? Because he wanted the opportunity to see all the evidence.” The trial court noted the defendant's objection. The defendant did not request an admonishment after the objections and motions for mistrial.

In Marshall, the defendant was charged with second degree murder, and a jury convicted him of manslaughter. Marshall, 157 So. 3d at 563. The defendant therein testified he shot the victim in self-defense as the victim rushed at him in a jealous rage with a revolver held in his hand. On cross-examination, the State confronted the defendant with his failure to remain at the scene and give his self-defense account to the police, and for again failing to relay his claim of self-defense after his arrest. Marshall, 157 So. 3d at 565. On appeal, the majority concluded the prosecutor violated the defendant's constitutional rights under Doyle. However, the Louisiana Supreme Court found the Doyle violation harmless considering “overwhelming evidence on one side and with a totally implausible self-defense claim offered by a three-time felony offender on the other” and reinstated the conviction. Marshall, 157 So. 3d at 569.

In Morris, 446 So. 2d 1191, 1193-94 (La. 1984), the court explained that “when a defendant attacks the thoroughness of a police investigation ․ the usual prohibition against the State referring to the defendant's post-arrest silence is not in effect.” Morris, 876 So.2d at 258. The defendant therein was convicted of second degree battery. At trial, he testified he hit the victim in self-defense and that she was armed with a screwdriver. Id., 876 So. 2d at 248-50. During closing arguments, the State contended the police would have looked for a screwdriver had they heard about it. The State added, “And I'm going to tell you it never existed ․ [b]ecause if it existed he would have said, hey why are you taking me to jail. She attacked me. Let me show you the screwdriver.” Id, 876 So. 2d at 251. The court found the State made a more than brief reference to the defendant's post-arrest silence, in an effort to impeach his credibility. However, the court noted the defendant repeatedly attacked the thoroughness of the police investigation in that case, particularly during the cross-examination of the detective who conducted the crime scene investigation. The court found when defense counsel attacked the thoroughness of the police investigation, he “opened the door” regarding the defendant's post-arrest silence. Morris, 876 So. 2d at 255-58.

In Bell, the case upon which the court relied in Morris, the Louisiana Supreme Court concluded that the State's reference to the defendant's post-arrest silence was neither a violation of his Fifth Amendment rights, fundamentally unfair, nor a deprivation of his Fourteenth Amendment due process rights, stating that:

In this case since defense counsel suggested to the jury that the state had failed to investigate the matter, and implied that, had it been investigated properly, the forgery charges would not have been brought against the defendant, the state was allowed to respond by asking the defendant and the investigating officers whether or not they tried to determine the defendant's involvement by questioning him at the time of his arrest. The defendant may not tell the jury that the state's case is the result of improper investigation without allowing the state to try to show the jury that the investigation was indeed thorough, or at least sufficiently thorough as to include inquiries of the defendant in order to get leads which might verify, or dispute, defendant's noninvolvement.

Bell, 446 So.2d at 1194.

In this case, the State did not specifically point to the defendant's silence after being advised of his Miranda rights. Nonetheless, we consider whether the State's references to the defendant's post-arrest silence fall under a Doyle exception. As detailed herein, defense counsel early on in his opening statement, while cross-examining the police, and in his closing remarks, criticized the police for failure to conduct a proper investigation, seemingly implying proper measurements and the defendant's 911 call would have altered the State's case and that the charge was based on “partial information.” As previously explained, when a defendant attacks the thoroughness of a police investigation, pursuant to Bell, the usual prohibition against the State referring to the defendant's post-arrest silence is not in effect. Specifically, when defense counsel attacked the thoroughness of the police investigation in this case, he opened the door regarding the defendant's post-arrest silence. Thus, we find the State's remarks with respect to the defendant's post-arrest silence were not in violation of Doyle.

PATENT ERROR REVIEW

This court routinely reviews criminal appeals for patent error. Our review is pursuant to La. Code Crim. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in assignments of error and “error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La. Code Crim. P. art. 920(2). In this case, our review has revealed the existence of two patent sentencing errors. Initially, we note the record reflects that the defendant's combined motion for post-verdict judgment of acquittal or new trial was filed on December 4, 2023, and denied at the sentencing hearing the next day, on December 5, 2023, immediately before the sentence was imposed. Louisiana Code of Criminal Procedure article 873 mandates that a sentence shall not be imposed until at least twenty-four hours after a motion for new trial, or in arrest of judgment, is overruled, unless “the defendant expressly waives” the required delay. There was no express waiver by the defendant in this case. Accordingly, the trial court erred by sentencing the defendant immediately after denying the motion for new trial.⁶

However, in State v. Augustine, 555 So. 2d 1331, 1333-34 (La. 1990), the Louisiana Supreme Court indicated that a failure to observe the twenty-four hour delay provided in Article 873 will be considered harmless error where the defendant could not show that he suffered prejudice from the violation. See also State v. White, 404 So. 2d 1202, 1204-05 (La. 1981). In Augustine, the Supreme Court concluded that prejudice would not be found if the defendant had not challenged the sentence imposed and the violation of the twenty-four hour delay was merely noted on patent error review. Augustine, 555 So.2d at 1334.

In the instant case, the issue was neither assigned as error, nor has the defendant challenged his sentence or alleged any prejudice resulting from the court's failure to delay sentencing. Moreover, the trial court lacked sentencing discretion in this case, as the sentence of life imprisonment at hard labor was mandatory pursuant to La. R.S. 14:30.1(B). Accordingly, any error in the trial court's failure to observe the twenty-four hour delay is harmless beyond a reasonable doubt and does not require a remand for resentencing. See State v. Seals, 95-0305 (La. 11/25/96), 684 So. 2d 368, 380, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Landry, 2019-0486 (La. App. 1st Cir. 02/21/20), 297 So. 3d 8, 22.

Secondly, the record reflects that after imposing the sentence, the trial court advised the defendant he has “two years from today's date to apply for post-conviction relief.” However, a defendant generally has two years “after the judgment of conviction and sentence has become final” to seek post-conviction relief. La. Code Crim. P. art. 930.8(A). The prescriptive period does not initially begin to run until the judgment of conviction and sentence have both become final under La. Code Crim. P. art. 914 or La. Code Crim. P. art. 922.

Thus, the trial court failed to adequately advise the defendant of the prescriptive period for seeking post-conviction relief. However, the trial court's failure to properly advise the defendant has no bearing on the sentence and is not grounds to reverse the sentence or remand for resentencing. State v. Hollins, 2023-0785 (La. App. 1st Cir. 03/19/24), 387 So. 3d 641, 652, writ denied, 2024-00487 (La. 10/1/24), 393 So. 3d 865. Out of an abundance of caution and in the interest of judicial economy, we instead advise the defendant La. Code Crim. P. art. 930.8 generally provides that no application for postconviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. Code Crim. P. arts. 914 or 922.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of the defendant, Randy Flot.

CONVICTION AND SENTENCE AFFIRMED.

FOOTNOTES

1.   In addition to the counseled brief raising the above assignments of error, the defendant filed a pro se brief in which he solely addresses the denial of his motion for mistrial.

2.   Erin Warner Campbell, a firearms examiner with the East Baton Rouge Parish Sheriff's Office and Louisiana State Police Crime Lab, testified as an expert in firearms examination. Campbell examined two cartridge cases and a spent bullet submitted to the lab in this case. She testified the cartridge cases and spent bullet were .40 Smith & Wesson caliber, and that the cartridge cases were fired from the same unknown firearm. Although she did not have a firearm in order to make a definitive match, she further determined that the bullet had the same class and characteristics as the cases, and was likely fired from a Glock type firearm.

3.   Dr. Clark explained that when a gun is fired, in addition to the bullet or projectile, gunpowder is fired out of the barrel. When the burning and unburnt gunpowder hits the skin, it creates the little red stippling marks. Dr. Clark further testified gunshot wounds can be described based on the distance the muzzle of the gun was from the person who was struck and divided into three categories. The first category, a near or contact wound, means the muzzle of the gun actually was near the skin or almost touching the skin when the person was struck. In those circumstances, oftentimes the muzzle makes a visible imprint on the skin. On the other end of the spectrum is a distant gunshot wound, which would be greater than two feet away. A distant gunshot wound would not have the stippling pattern present in the abovementioned category, an intermediate wound.

4.   Stephen Martinez, then-employed with the Louisiana State Police Cyber Crimes Unit, analyzed the defendant's cell phone records and testified that the defendant's cell phone was used to call 911 at 10:08 p.m. on December 29, 2021. The duration of the call was 77 seconds. During the 911 call, which was authenticated by Stacy Hannon with the City of Baton Rouge, EMS Communications and played during the trial, the defendant can be heard requesting an ambulance, stating he came to get his children, and that “she's on the floor and she can't breathe.” Butler can be heard crying out, and at the end of the recording the defendant can be heard accosting someone about playing a game and telling them “she's on floor she can't breathe.”

5.   While the State in its brief argues, in part, that the defendant failed to preserve the issue raised herein, impermissible references to his post-Miranda silence, we disagree. In light of the fact that defense counsel's repeated objection was expressly based on the State's references to the defendant's “right to remain silent[,]” the Miranda warning contemplated by the Court in Doyle, we find the issue was preserved on appeal.

6.   We note La. Code Crim. P. art. 873’s clear and unambiguous language does not require the same delay after the denial of a motion for post-verdict judgment of acquittal. Thus, a trial court's failure to apply La. Code Crim. P. art. 873’s twenty-four-hour sentencing delay between the denial of a motion for post-verdict judgment of acquittal and sentencing is neither a patent error nor a valid basis to vacate a sentence when assigned as error. State v. Stalls, 2023-0829 (La. App. 1st Cir. 09/26/24), 405 So. 3d 786, 797 (en banc), writ denied, 2024-01276 (La. 4/23/25), 406 So. 3d 1177.

BALFOUR, J.

Penzato, J. concurs