STATE OF LOUISIANA v. TYRONE LENTRELL POPE (2017)

The defendant, Tyrone Lentrell Pope, was charged by grand jury indictment with aggravated rape, a violation of LSA-R.S. 14:42 ¹ (count one) and two counts of armed robbery, violations of LSA-R.S. 14:64 (counts two and three). He entered a plea of not guilty and, following a jury trial, was found guilty as charged on all counts. The defendant was then sentenced to a term of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count one. On counts two and three, on each count, the defendant was sentenced to twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence. The district court ordered that the sentences run consecutively. The defendant now appeals, raising seven assignments of error. For the following reasons, we affirm the defendant's convictions and sentences.

FACTS

During the evening hours of March 22, 2013, the victim, A.L.,² was drinking a margarita and sending text messages to Joshua Roberts, another victim in this case, whom she met on a dating website. Shortly thereafter, Roberts drove to A.L.'s home, and the two sat in Roberts's vehicle and smoked marijuana. The two then drove to a park and got into the back seat of the vehicle. While Roberts and A.L. engaged in consensual sexual intercourse, Roberts saw someone walking near his vehicle. The person, later identified as the defendant, pointed a gun through the cracked window of the back passenger door and ordered the two to exit the vehicle. Both complied, and while pointing his gun toward Roberts, the defendant took cash and a bag of marijuana from Roberts's pockets and ordered him to lie on the ground. The defendant then pointed his gun at A.L. and ordered her to perform oral sex on him. After A.L. did so, the defendant vaginally raped A.L. Thereafter, the defendant took A.L.'s cellular telephone and allowed Roberts to drive away from the scene, but forced A.L. to walk with him to a playground area in the park. Once there, A.L. was again forced to perform oral sex on the defendant. A second man approached, and the defendant ordered A.L. to perform oral sex on him as well. Shortly thereafter, two females approached, and A.L. was able to run out of the park and into a roadway where she flagged down a vehicle. The driver of that vehicle drove A.L. to Baton Rouge General Hospital where a rape examination was conducted. A.L. also spoke to Baton Rouge Police Department detectives while at the hospital. Based on information provided by A.L., the defendant was developed as the suspect and placed under arrest.

SUFFICIENCY OF THE EVIDENCE

In the defendant's seventh assignment of error, he contends that the evidence is insufficient to support a conviction. In cases where a defendant has raised issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal. When the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So. 2d 731, 734 (La. 1992). Accordingly, we will first address the defendant's seventh assignment of error, which challenges the sufficiency of the State's evidence. According to the defendant, A.L. was unable to identify her assailant, Roberts's “reliability is questionable[,]” and the gun described by both victims was not located.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this Court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also LSA-C.Cr.P. art. 821B; State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654, 660; State v. Mussall, 523 So. 2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821B, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So. 2d 141, 144.

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. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So. 2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So. 2d 1157 and 2000-0895 (La. 11/17/00), 773 So. 2d 732.

In the instant case, the defendant does not dispute that A.L. and Roberts were the victims of armed robbery or that A.L. was the victim of aggravated rape. Rather, he asserts that the State failed to adequately prove his identity as the perpetrator of those offenses. As a general matter, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Smith, 430 So. 2d 31, 45 (La. 1983).

A.L. testified that on March 22, 2013, while she and Roberts were having consensual sexual intercourse in the backseat of his vehicle, Roberts stated that he “saw something.” Immediately thereafter, someone “put [a] gun through the window.” A.L. identified the person who put the gun through the window as the defendant and described the gun as a revolver with a long barrel. She further stated that the gun was “rusty” and had a wooden handle. According to A.L.'s testimony, she was completely naked, and she stayed inside of the vehicle, but Roberts exited. The defendant ordered Roberts to lie face-down on the ground and to not look at the defendant's face. The defendant then pointed his gun at A.L, and ordered her to perform oral sex on him. She complied, but was “scared.” The defendant then ordered A.L. to turn around on the seat, and he raped her vaginally. A.L. explained, “I didn't want him to try to shoot me or nothing like that if I had mis-cooperated [sic] because who was I to know if that gun had bullets in it or not. So, I just did everything he told me to do.” Afterward, the defendant asked to whom the vehicle belonged, and A.L. told him that it belonged to Roberts. The defendant asked if either of them had a cellular telephone, and Roberts indicated that A.L. had one. A.L. testified that she gave the defendant her cellular telephone, but when he told her to enter the passcode, A.L. “played like [she did not] know what the password was.” The defendant then put the cellular telephone inside his pocket. Thereafter, the defendant pointed his gun toward Roberts and took the items inside of Roberts's pockets. A.L. testified that she asked the defendant to let Roberts go. Before Roberts left the park, A.L. collected her clothing from his vehicle and the defendant told Roberts, “If any polices [sic] or anything come to this park, I'm going to knock y'all off the map[.]” Once Roberts drove off, the defendant grabbed A.L.'s right arm and forced her to walk to a playground area of the park, sit in a toy boat, and perform oral sex on him a second time. A.L. was able to put her shirt and pants back on, but was not wearing underwear at the time. Her underwear was later located in the toy boat in the playground. A second man entered the park, and the defendant gave his gun to the second man, who forced A.L. to perform oral sex on him. A.L. then heard yelling and saw two women enter the park. When the defendant and the second man saw the women walking up, they left the boat area. A.L. heard one of the women say, “Do you know who that is? Do you know who that is? That girl live [sic] in this house right there.” A.L. used that opportunity to crawl out of the boat, run out of the park, and flag down a vehicle. The driver of that vehicle transported A.L. to the hospital.

According to A.L., she looked the defendant in the face during the incident and thought that he looked like someone she had seen before in her neighborhood. A.L. explained that she and her mother walked to stores near their home, and she had seen the defendant before at a house at the end of her street. A.L. also testified that one of the two women who entered the park was the defendant's girlfriend and that she had seen the defendant at his girlfriend's house, which is across the street from A.L.'s house. A.L. did not know the defendant's name, but pointed out what she believed to be his house to Baton Rouge Police Department Detective Glenn Eymard. Thereafter, A.L. was shown a six-person photographic lineup. She chose image number three, who was not the defendant, as the offender. At trial, A.L. explained that when she looked at the lineup, there were two men that she thought looked alike, image number three and image number five, who was the defendant. In court, A.L. identified the defendant as the person who raped her and stole her cellular telephone. She testified that she did not recognize the second man, nor had she seen him before the night of the offenses.

Roberts's account of the offenses is similar to that of A.L.'s. According to his testimony, while the two were sitting in the backseat of his vehicle, he saw someone looking through his vehicle's window. The person stuck a gun, which Roberts described as a black revolver with a wooden handle, through the window and told them to get out or he would shoot. Roberts unlocked the door and exited his vehicle. According to Roberts, the defendant searched the vehicle, but Roberts “ain't really had nothing.” The defendant took cash and a bag of marijuana from Roberts, then ordered him to the ground, pointed his gun at him, and told Roberts not to look at him. Roberts testified that at that point, the defendant raped A.L., then forced her to perform oral sex. According to Roberts's testimony, the defendant asked Roberts if A.L. was his girlfriend and, when Roberts responded that she was not, the defendant told Roberts that he could leave. Roberts saw the defendant “take [A.L.] with him,” but chose to leave the park and return to his house. Roberts did not contact the police, but was interviewed and shown a six-person photographic line-up on March 23, 2013, wherein he identified the defendant as the person who stole money and marijuana from his pockets and raped A.L. Roberts explained that he had not seen the defendant before the date of the offenses, but recognized him by the type of glasses that he was wearing.

Detective Eymard testified at trial that he interviewed A.L. and Roberts. The detective explained that Roberts described the suspect as a man in his twenties and wearing glasses. Roberts also stated that the suspect had a light complexion, an average build, and was 5' 8” or 5' 9” tall. The detective stated that A.L.'s description was “basically the same” but she added that the suspect had twists in his hair. According to the detective, A.L. told him that she was approached by a man she knew from the neighborhood. The man, whose name she did not know, gave her a name of the suspect, “Tyrone,” and asked her not to involve the police. Detective Eymard gave the address of the house pointed out by A.L. to an analyst and asked her to find out if a man named “Tyrone” lived at that address. The following morning, A.L. found her cellular telephone in the mailbox at her house. Based on the results of that search, the detective was able to get the defendant's name. Two photographic line-ups were then prepared and shown to A.L. and Roberts. The detective testified that although A.L. circled image number three, she stated that she was debating between images number three and five and did not choose image number five because the hairstyle was different. The defendant was not located at his house or his girlfriend's house, but the defendant's girlfriend allowed detectives to search her home. Pursuant to their search, detectives located a revolver with a wooden handle wrapped inside of a sock underneath a pillow in one of the bedrooms. The weapon matched the description given by A.L. and Roberts in that it was a revolver with a wooden handle; however, the weapon found was chrome. The defendant ultimately turned himself in.

Forensic analysis was conducted by a DNA analyst at the Louisiana State Police Crime Lab. A piece of hair taken from the pubic hair combings of A.L. during her rape examination contained a DNA profile consistent with a mixture of DNA from at least two individuals, and A.L. and the defendant could not be excluded as contributors to the profile. The statistical probability that the DNA found on the hair belonged to the victim and any other African-American person in the population was one in 1.01 trillion.

Portions of recorded telephone calls placed by the defendant on April 13, 2015, while he was incarcerated, were admitted into evidence at trial and played for the jury. In the recordings, the defendant expresses concern that A.L. appeared for court that day. Prior to that date, A.L. had not appeared at any of the defendant's court dates.

The defendant's mother testified that she has another son who also lives in her residence. Two photographs of the defendant's brother were introduced into evidence.

The defendant's argument for reasonable doubt regarding his identity as the offender is based largely on A.L.'s misidentification of him on the six-person photographic lineup that she was shown and the fact that the gun described by A.L. and Roberts was not the same color as that found in the defendant's girlfriend's home. The defendant also questions the reliability of Roberts's testimony.

The verdicts rendered against defendant indicate that the jury accepted the victims' testimony and rejected the defense theories to the contrary. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So. 2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So. 2d 126 (La. 1987). No such hypothesis exists in the instant case.

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 of innocence presented to, and rationally rejected by, the trier of fact. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam). The jury heard, and rejected, the defendant's theory of innocence. We cannot say that the jury's determination was irrational under the facts and the circumstances presented to it. The defendant could not be excluded as a contributor to the DNA profile obtained from the hair taken from A.L.'s pubic hair combings. Moreover, both victims unequivocally testified that the defendant was the offender. See Ordodi, 946 So. 2d at 662.

After a thorough review of the record, we find that the evidence supports the jury's verdicts. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was the individual who committed the aggravated rape of A.L. and the armed robberies of A.L. and Roberts.

This assignment of error is without merit.

BATSON CHALLENGE

In four related assignments of error, the defendant challenges the district court's ruling on his Batson challenge.³ Specifically, the defendant argues in his first four assignments of error that: (1) the district court did not address the merits of his Batson challenge; (2) the district court did not address whether he made a prima facie showing of discrimination; (3) the district court failed to require the State to provide race-neutral reasons for its peremptory challenges; and (4) the district court failed to address what race-neutral reasons may have caused the prosecutor's peremptory challenges. The defendant specifically contends that the State systematically excluded African-Americans from the jury.

In State v. Draughn, 2005-1825 (La. 1/17/07), 950 So. 2d 583, 600, cert. denied, 522 U.S. 1012, 128 S. Ct. 537, 169 L. Ed. 2d 377 (2007), the proper reviewing process for a Batson claim, as described by the Supreme Court, was set forth as follows:

A defendant's Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. 476 U.S., at 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Id. at 97-98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible[;]” so long as the reason is not inherently discriminatory, it suffices. Purkett v. Elem. 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Batson, supra, at 98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, supra, at 768, 514 U.S, 765, 115 S.Ct. 1769, 131 L.Ed.2d 834.

To establish a prima facie showing for a Batson challenge, the defendant must show: (1) the defendant's challenge was directed at a member of a cognizable group; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the prosecutor struck the venire person on account of being a member of that cognizable group. See Batson, 476 U.S. at 96, 106 S. Ct. at 1723. Without an inference that the prospective jurors were stricken because they are members of the targeted group, the defendant is unable to make a prima facie case of purposeful discrimination and his Batson challenge expires at the threshold. State v. Sparks, 88-0017 (La. 5/11/11), 68 So. 3d 435, 468, cert. denied sub nom., El-Mumit v. Louisiana, 566 U.S. 908, 132 S. Ct. 1794, 182 L. Ed. 2d 621 (2012). For a Batson challenge to succeed, a racially discriminatory result is not sufficient; instead, the result must be traced to a racially discriminatory purpose. State v. Dorsey, 2010-0216 (La. 9/7/11), 74 So. 3d 603, 615, cert. denied, 566 U.S. 930, 132 S. Ct. 1859, 182 L. Ed. 2d 658 (2012).

The district court plays a unique role in the dynamics of voir dire, for it is the court that observes firsthand the demeanor of the attorneys and venire members, the nuances of questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. State v. Juniors, 2003-2425 (La. 6/29/05), 915 So. 2d 291, 318, cert. denied, 547 U.S. 1115, 126 S. Ct. 1940, 164 L. Ed. 2d 669 (2006); State v. Myers, 99-1803 (La. 4/11/00), 761 So. 2d 498, 502. A reviewing court owes the district court judge's evaluations of discriminatory intent great deference and should not reverse such evaluations unless they are clearly erroneous. Hernandez v. New York, 500 U.S. 352, 365, 111 S. Ct. 1859, 1869, 114 L. Ed. 2d 395 (1991).

In the instant case, prior to voir dire, the district court described and had both parties sign an order detailing the procedure it required for challenging prospective jurors. According to the court's instructions, after voir dire of the panel of petit jurors, counsel for the State and the defendant were to approach the bench and make their challenges for cause simultaneously. The court would hear arguments and rule on the challenges. After a ruling was made on those challenges, the court would provide each party peremptory challenge sheets. The parties would then return to their counsel tables and exercise peremptory challenges in writing on the sheets provided by the court. The court requested that counsel return to the bench and tender their sheets to the court simultaneously, The court would address the challenges of the State and then the defendant, and that process would continue until the jury and alternates were selected.

The jury was selected from two panels, each containing twenty-one potential jurors. Panel one included thirteen African-American and eight white prospective jurors. Of those African-American jurors, the State challenged seven for cause. Three of the State's challenges for cause were granted. The State then used a total of six peremptory challenges, all on African-American jurors. Four of those peremptory challenges were used on jurors the State challenged for cause. The defendant challenged one African-American juror for cause, but his challenge was denied. The defendant then exercised six peremptory challenges, including one on the African-American juror that he challenged for cause and five on white jurors. From the first panel, two African-American and three white jurors were selected to serve. Thereafter, panel two was brought in for voir dire.

Panel two included eight African-American prospective jurors, twelve white prospective jurors, and one Native-American prospective juror. The State challenged two African-American jurors for cause, but both challenges were denied. The State then exercised a total of five peremptory challenges to remove African-American prospective jurors, including the two it challenged for cause. The defense exercised four peremptory challenges to remove the Native-American prospective juror and three white prospective jurors. Prior to exercising the rest of the peremptory challenges, the following colloquy occurred:

[Defense counsel]: If we would ask for a Batson challenge would that have to come after the whole panel - when we finish the whole panel?

[Court]: No. You can ask for it any time if you think there's a prima facia [sic] - evidence of the violation.

[Defense counsel]: Well, within the first panel that we've been picking so far I don't see -

[Court]: The one we're doing now -

[Defense counsel]: Yes.

[Court]: - or the one yesterday?

[Defense counsel]: Previous - No, just today.

[Court]: Okay, number two. Yes, sir?

[Defense counsel]: I think that the prosecutor is eliminating all of the black people on the jury. And I would ask that she make a prima -

[Court]: And I'm looking at yours and you're eliminating all the white members from the jury. So, I mean, which way are we going to go with that? I know she keep [sic] number 1, Abanda. You keep [sic] so far Beyt, Lemoine. 4

[Defense counsel]: I need to look at the list. I don't think I've eliminated all the white jurors.

[Court]: I mean, so far we have backstrikes still to go. But right what I see when I look at -

[Defense counsel]: I keep the two last -

[Court]: I know but the only people that you've gotten rid of is white people and you're saying the only people she's gotten rid of is black people. So how are we going to cut that?

[Defense counsel]: I just want to ask - if she wants to ask for a Batson challenge also, a reverse Batson challenge, then I -

[Court]: Are you asking for that?

[The State]: Not at this time.

[Court]: I mean, based on what I see - I know she keep [sic] Abanda and so I'm not - I'm going to wait and see how things proceed with the rest of them, okay?

[Defense counsel]: All right.

The parties then exercised their remaining peremptory challenges. The State used one challenge on an African-American prospective juror, and the defendant used one on a white prospective juror. At that point, there were twelve provisionally accepted jurors. The defendant then used a backstrike on a white prospective juror. Neither the State nor the defense objected to the two prospective jurors left being chosen as alternates. The court then stated, “That works out. All right. So juror number one is Alexander. Based on what I'm seeing, I don't see there to be any reason for a Batson challenge when I look at panels one and two for either side.” Defense counsel responded, “Yes Sir” and asked the court to note its objection.

Because the district court found no pattern, i.e., that the defense failed to make a prima facie case that the State based its peremptory challenges on race, the three-step analysis ended at that point. Our inquiry, then, is whether the district court erred in finding that the defendant failed to present a prima facie case of purposeful discrimination. See Draughn, 950 So. 2d at 602.

The defendant, as an African-American, is a member of a cognizable racial group. The State exercised peremptory challenges to remove six other members of the defendant's racial group from the panel two venire. While the defendant may rely on the fact that peremptory challenges, by reason of the fact that they may be subjectively based, constitute a jury selection practice which may allow those who intend to discriminate to do so, the defense failed to raise any other relevant evidence that would support an inference of discrimination. The mere invocation of Batson when minority prospective jurors are peremptorily challenged in the trial of a minority defendant does not present sufficient evidence to lead to an inference of purposeful discrimination. Such an automatic finding would preclude the need for the first Batson step in the trial of any defendant who was a member of a cognizable racial group whenever a peremptory challenge was raised to a prospective juror who was also a member of that racial group. Without further argument or reasons presented by the defense, the district court had nothing from which to draw an inference of purposeful discrimination. Draughn, 950 So. 2d at 603.

The district court's ruling regarding whether there was any discriminatory intent in the State's peremptory challenges is reviewed with great deference. Hernandez, 500 U.S. at 365, 111 S. Ct. at 1869. The district court was in the best position to observe the overall voir dire proceedings. Prior to the defendant's Batson challenge, three African-Americans had been selected to serve on the jury. As noted by the district court, the defendant exercised a peremptory challenge to remove a member of his own racial group. The final jury was comprised of four African-American jurors, eight white jurors, and two white alternate jurors. Moreover, the nature of the case itself presented no overt racial overtones. Both the two victims and the defendant were from the same cognizable racial group. Based on the circumstances of this case, including our review of the totality of the voir dire, we do not find error in the district court's conclusion that the defendant failed to present a prima facie case of purposeful discrimination. Thus, no further inquiry is required and the subsequent steps of the Batson analysis need not be performed. See Draughn, 950 So. 2d at 605.

These assignments of error are without merit.

HEARSAY

In his fifth assignment of error, the defendant argues that the district court improperly allowed hearsay evidence into the trial, in violation of the defendant's right to a fair trial. Specifically, he contends that copies of telephone calls that he made from the jailhouse while incarcerated were improperly admitted because the custodian of records did not testify at trial “to verify the authenticity of the records, the jail calls are hearsay and should have been excluded under [Louisiana Code of Evidence article] 801.” The defendant's argument focuses on the fact that East Baton Rouge District Attorney's Office, Violent Crimes Unit, investigator Chuck Smith, who testified at trial about the recordings, was not an employee of the East Baton Rouge Parish Sheriff's Office or Century Link, the company that administers the jailhouse telephone software.

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. LSA-C.E. art. 901A. With some exceptions, all relevant evidence is admissible at trial. LSA-C.E. art. 402. “Relevant evidence” is that which tends 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. LSA-C.E. art. 401. Relevant evidence may be excluded at trial if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403.

Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. LSA-C.E. art. 801C. Hearsay is not admissible except as otherwise provided by the Code of Evidence or other legislation. LSA-C.E. art. 802. We find that the statements were properly admitted under the exception to the hearsay rule for party admissions pursuant to LSA-C.E. art. 801D(2)(a), which provides that a statement is not hearsay if the statement is offered against a party and is his own statement. See State v. Lilly, 2012-0008 (La. App. 1st Cir. 9/12/12), 111 So. 3d 45, 56-57.

Moreover, records of regularly conducted business activity are not excluded by the hearsay rule. See LSA-C.E. art. 803(6). Louisiana Code of Evidence article 803(6) provides:

(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term “business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph. [Emphasis added.]

To exclude business records from the hearsay rule and render them admissible, Article 803(6) requires the court to determine from testimony of either the “custodian or other qualified witness” that: (1) the record was made at or near the time of the event; (2) the record was made either by, or from information transmitted by, a person with knowledge; (3) the record was made and kept in the course of a regularly conducted business activity; (4) it was the regular practice of that business activity to make and keep such records; (5) the recorded information was furnished to the business either (a) by a person who was routinely acting for the business in reporting the information; or (b) in circumstances under which the statement would not be excluded by the hear say rule; and (6) neither sources of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Moreover, the witness laying the foundation for the admissibility of business records need not have been the preparer of the records; however, the witness must be familiar with and able to testify from personal knowledge about the record-keeping procedures of the entity whose business records are sought to be introduced. It is essential that a custodian or other qualified witness explain the record-keeping procedures of the business and thus lay the foundation for the admissibility of the records. Juniors, 915 So. 2d at 326-27. The defendant argues that the recordings were inadmissible because Smith was not the custodian of the records, and, as such, had “no way of being able to verify” and authenticate the records. We disagree.

The State called Smith to testify at trial. According to his testimony, Smith accessed telephone calls made from the jailhouse as part of his job. Another investigator accessed recordings of suspicious calls made on April 13, 2015, through April 15, 2015, and brought it to Smith's attention. Smith listened to the recordings and looked at the numbers that were dialed. Smith testified that all of the calls made that day were made using the defendant's inmate personal identification number, the person making the calls sounded the same on each call, and the caller identified himself as “Tyrone” on each call. At that point, defense counsel objected stating, “He works for the D.A.'s office. We're just objecting he [sic] not the custodian - I don't think he's the custodian of records for the jail phone calls, is he? They have to lay a foundation to get the jail phone calls –.” The court clarified, “So your objection is lack of foundation?” Defense counsel replied in the affirmative. The district court instructed the State to lay a foundation and noted that if there was still an objection, defense counsel would need to approach the bench.

Smith explained that he was granted access to the recordings as part of his duties at the Violent Crimes Unit and has access twenty-four hours a day. According to Smith, he accesses recordings of the jailhouse telephone calls daily by using a username and password given to him by the sheriff's office. Smith completed an online training course to learn how to use the software, and if he has any issues with the software, he contacts Century Link directly. He stated that he testified regarding jailhouse telephone calls approximately six times in the previous two years.

In order to access the defendant's calls, Smith searched the system for “Tyrone Pope.” He testified that he was able to verify that the calls were made by the defendant based on his use of his personal identification number, identifications of himself, and the content of the telephone calls, including vague facts of the instant case and the fact that the people that he called referred to him during the calls as “Tyrone.” The State then introduced the original copy of the telephone calls copied from the system, which Smith had initialed. Defense counsel objected to its introduction, stating, “I still think that he's not the custodian of records. I think the sheriff's office would be responsible for getting these disk [sic] in. I think that a person employed by the D.A.'s office is an appropriate [sic] person to lay the foundation for jail phone calls.” The court allowed the recordings to be admitted, and they were played for the jury. The defendant spoke to his girlfriend in one phone call and is given a number for “James” by her that he subsequently called. In the recording with James, the defendant expresses concern over the fact that the victim appeared for court. Prior to that day, the victim had not appeared at any of the defendant's court dates.

Based on our review of the record, we find that the State provided a proper foundation at trial. The recordings were properly authenticated. As recognized by the State one method of authenticating evidence is testimony by a witness with knowledge that “the matter is what it is claimed to be.” State v. Falkins, 2012-1654 (La. App. 4th Cir. 7/23/14), 146 So. 3d 838, 854-855. Smith testified that he had access to the recording system twenty-four hours a day and accessed it daily using his username and password provided by the sheriff's office. Copies of the recordings were copied onto a disc and initialed by Smith. Each of the calls on the disc were made using the defendant's personal identification number, and the caller identified himself as “Tyrone.” One of the numbers dialed was the defendant's girlfriend, and the other number dialed was one given to the defendant by his girlfriend during their conversation.

This assignment of error is also without merit.

EXCESSIVE SENTENCE

In his sixth assignment of error, the defendant argues that the sentences imposed by the district court are excessive. A thorough review of the record indicates that the defendant did not make or file a motion to reconsider sentence based on any specific ground following the district court's imposition of the sentences. Under LSA-C.Cr.P. arts. 881.1E and 881.2A(1), the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. See State v. Mims, 619 So. 2d 1059 (La. 1993) (per curiam). The defendant, therefore, is procedurally barred from having this assignment of error reviewed because he failed to file a motion to reconsider sentence after being sentenced. See State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So. 2d 1141 (en banc per curiam). Accordingly, this assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.

Since the statements made in the jailhouse calls were offered against the defendant as his own statements, I agree they were properly admitted as exceptions to the hearsay rule under La. C.E. art. 801D(2)(a). Therefore, I concur.

FOOTNOTES

1.   The title of this provision was amended to “first degree rape” by 2015 La. Acts No. 184, § 1 and 2015 La. Acts No. 256, § 1, but these amendments did not materially alter the substance of the provision. Because the instant offense took place prior to August 1, 2015, we refer to it by its previous title. See LSA-R.S. 14:42E.

2.   The female victim herein will be referenced by initials only. See LSA-R.S. 46:1844W.

3.   Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

4.   Abanda is African-American; Beyt and Lemoine are both white.

WHIPPLE, C.J.

Chutz, J. concurs with reasons