STATE OF LOUISIANA v. JAABAR CELESTINE (2017)

The defendant, Jaabar Celestine, was charged by grand jury indictment with second degree murder, a violation of Louisiana Revised Statutes 14:30.1.¹ He entered a plea of not guilty and, following a jury trial, was found guilty of the responsive offense of manslaughter, a violation of Louisiana Revised Statutes 14:31. The defendant filed motions for postverdict judgment of acquittal and new trial, both of which were denied. He was then sentenced to twenty years imprisonment at hard labor. He filed a motion to reconsider sentence, which was denied. The defendant now appeals, alleging four assignments of error. For the following reasons, we affirm the defendant's conviction and sentence.

FACTS

On August 9, 2013, at approximately 12:18 a.m., Houma Police Department Sergeant Rory Olds was advised through dispatch that there was a homicide at 526 Louisa Street in Houma, Louisiana. The victim, Vincent Naquin, lived there with his girlfriend and their young son. Sergeant Olds proceeded to that address, where he found the victim lying dead on the floor with a gunshot wound to his chest. Detectives found drug paraphernalia in the victim's home including digital scales and bags with the residue of what they suspected was marijuana. They also located one .25 caliber shell casing on the victim's kitchen floor and another near the victim's body. A .25 caliber projectile was recovered from the victim's body. The victim's home was equipped with a security system. The security system's surveillance video from the night of the incident shows three subjects entering the residence through the kitchen door. Approximately five minutes after entering, the subjects fled toward the rear of the residence. The police investigation led them to co-defendant, Treyvance Nyiori Fanguy, who was interviewed and admitted his involvement in the incident. After a second interview with Fanguy, Lamont James Nixon, Jr., Kevone Juantia Cook, and “Dut,” (later identified as the defendant), were also developed as suspects. All four suspects were placed under arrest.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, the defendant contends that the evidence presented by the State was insufficient to support the verdict. Specifically, the defendant argues that “the only issue is whether [he] was present at the scene of the crime.” He points out that both he and his girlfriend testified that he was home at the time of the homicide and challenges the reliability of the witnesses who identified him as one of the suspects.

The standard of review for sufficiency of the evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime, and the defendant's identity as the perpetrator of that crime, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Patton, 2010-1841 (La. App. 1st Cir. 6/10/11), 68 So.3d 1209, 1224. In conducting this review, we must also be expressly mindful of Louisiana's circumstantial evidence test, i.e., “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438; State v. Millien, 2002-1006 (La. App. 1st Cir. 2/14/03), 845 So.2d 506, 508-09.

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 State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251 (La. 1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983), the Louisiana Supreme Court recognized the legitimacy of a “compromise verdict,” i.e., a legislatively approved responsive verdict that does not fit the evidence, but which (for whatever reason) the jurors deem to be fair, as long as the evidence is sufficient to sustain a conviction for the charged offense. If the defendant timely objects to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict, the court overrules the objection, and the jury returns a verdict of guilty of the responsive offense, the reviewing court must examine the record to determine if the responsive verdict is supported by the evidence and may reverse the conviction if the evidence does not support the verdict. However, if the defendant does not enter an objection (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury. See State ex rel. Elaire, 424 So.2d at 251; State v. Collins, 2009-2102 (La. App. 1st Cir. 6/28/10), 43 So.3d 244, 251, writ denied, 2010-1893 (La. 2/4/11), 57 So.3d 311, cert. denied, 565 U.S. 818, 132 S.Ct. 99, 181 L.Ed.2d 27 (2011) (“[t]he factfinder has the right to ‘compromise’ between the charged offense and a verdict of not guilty.”). The record in the instant case does not show any objection to the instruction on manslaughter. Accordingly, we will review the sufficiency of the evidence to support second degree murder.

As applicable here, second degree murder is the killing of a human being “[w]hen the offender has a specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1A(1). Specific criminal 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). Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. See State v. Henderson, 99-1945 (La. App. 1st Cir. 6/23/00), 762 So.2d 747, 751, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235. Moreover, specific intent to kill can be implied by the intentional use of a deadly weapon such as a knife or a gun. State v. Templet, 2005-2623 (La. App. 1st Cir. 8/16/06), 943 So.2d 412, 421, writ denied, 2006-2203 (La. 4/20/07), 954 So.2d 158.

The parties to crimes are classified as principals and accessories after the fact. La. R.S. 14:23. Principals are all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime. La. R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals. An individual may be convicted as a principal only for those crimes for which he personally has the requisite mental state. See State v. Pierre, 93-0893 (La. 2/3/94), 631 So.2d 427, 428 (per curiam). The State may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. State v. Smith, 513 So.2d 438, 444-45 (La. App. 2nd Cir. 1987). One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. Holmes, 388 So.2d 722, 726 (La. 1980).

Where the key issue is the defendant's identity as the perpetrator of the crime, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification to carry its burden of proof. State v. Johnson, 99-2114 (La. App. 1st Cir. 12/18/00), 800 So.2d 886, 888, writ denied, 2001-0197 (La. 12/7/01), 802 So.2d 641. Positive identification by even one witness may be sufficient to support a conviction. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Davis, 2000-2685 (La. App. 1st Cir. 11/9/01), 818 So.2d 76, 80.

The trier of fact is free to accept or reject, in whole or in part, any witness's testimony. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the witnesses' credibility, the matter is one of the weight of the evidence, not its sufficiency. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the accepted evidence insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). The verdict rendered in this case indicates that the jury credited the testimony of the State's witnesses against the defendant and rejected the defendant's testimony and attempts to discredit those witnesses.

Prior to opening statements, the parties stipulated that: (1) on August 8, 2013, the victim was shot in his home during the commission of an attempted armed robbery and died as the result of a gunshot wound; (2) scientific analysis reports prepared by the Louisiana State Police Crime Lab shall be admitted into evidence without necessity of testimony of the scientist who conducted the tests; (3) on July 23, 2013, Nixon received a traffic citation while driving the 1994 white Cadillac DeVille later found burned in a marsh off Falgout Canal Road on August 10, 2013; and (4) Doug Phillips lived behind the victim and, if called, would testify:

A. At the time of the robbery and shooting of the victim, he was in his home and heard what sounded like a gunshot, and he heard some ruckus that sounded like someone screaming from the [victim's] house.

B. He then grabbed his .38 caliber gun and went outside where he saw three people jump his chain-link fence and [run] through his yard.

C. Although he could not see the faces of the three persons, it appeared as though one of them had a gun.

D. He fired one shot into the ground as a warning shot, but the three people continued running and jumped into a white four-door Cadillac. He then fired two more shots into the front passenger compartment of the car aiming for the tires in an attempt to disable the vehicle.

E. The car sped off and took a left turn on Maxine Street.

F. There were at least four people in the car. Also, he saw someone standing around the car prior to the three others reaching the vehicle.

On August 10, 2013, around 3:15 a.m., detectives received a report of a vehicle burning on Falgout Canal Road. The vehicle had been set on fire, and a brick was found on the gas petal. There was a bullet hole found in the vehicle's quarter panel as well as in one of its hubcaps. The vehicle was registered to Jeffrey Walker, who sold it to Nixon.

The victim's girlfriend, Krissan Fuselier, testified that the victim sold marijuana. On the night of the incident, she and the victim were home with their son and a few of the victim's friends. After she put their son to bed, she smoked marijuana with the victim and his friends. She later went to sleep and the victim and his friends stayed up playing video games. As she laid down around 11:00 or 11:30 p.m., she heard a “ruckus” in the front room. She exited the bedroom and saw the victim standing in the comer of the kitchen holding up his hands while two men pointed guns toward him. A third man grabbed her and forced her into the living room where the victim's friends were hiding. That person, who also had a gun, told her that if she moved, he would “blow [her] f***ing head off.” Fuselier heard the men asking the victim, “Where is the stuff and where is the money[?]” She then heard two shots. The three men then ran out of the house. Fuselier was unable to see the faces of the three men, but provided law enforcement with names of some potential suspects who she knew owed money to the victim. Fuselier admitted that she posted a comment on Facebook stating, “I hate a pathetic, trashy, piece of shit, Lazy, selfish, crazy, disgusting, can't take care of his kid, can't even be around his kid, immature ass dude called [baby daddy]. [L]iterally wish I could kill him and get away with the shit.” However, she clarified that although the post was made just days before the incident, she did not plan to kill the victim and remembers that the victim actually saw and asked her to delete the post. Fuselier and the victim's friends who were at his home on the night of the incident were interviewed and after law enforcement spoke with them, detectives decided that Fuselier's Facebook post had no bearing on the shooting.

Co-defendant Nixon's ex-girlfriend, Jasmine Westbrook, testified at trial. Westbrook explained that she and Nixon had been in a relationship for ten years. The night after the murder, Nixon started crying and told her that something bad had happened. Nixon admitted that he was the person who shot the victim and told Westbrook that four people were involved. Although he admitted that four people were involved, Nixon asked Westbrook not to tell law enforcement that the defendant, who was his first cousin, was one of the four people involved because law enforcement was only looking for three individuals and already had his name and that of Cook and Fanguy. When Westbrook was interviewed, she identified Cook and Nixon on still shots printed from the surveillance video footage, but stated that she did not know the defendant. However, prior to trial, when she spoke with the district attorney, she had a new boyfriend and was ready to tell the truth, which she stated, “had to come out.” At that time, she admitted that when she originally spoke with detectives, she was not telling the truth and lied to protect the defendant because he was her friend. At trial, Westbrook identified Cook, Nixon, and the defendant and noted that the defendant was the third person who entered the victim's house and was wearing a green mask. She explained that she had no doubt that the third person was the defendant because of “his walk, his build. That's [the defendant]. I've known him all my life.”

On the night of the incident, Trent Dehart was playing cards with Nixon and Cook. Dehart testified that Nixon asked if he could borrow his gun to “hit a lick” on the east side and that he gave the .25 caliber gun to Nixon. Dehart recognized Cook in pictures posted on Facebook the following day, and questioned both Cook and Nixon about their involvement. According to Dehart, Cook denied any involvement, but Nixon, who appeared nervous, told Dehart that he was a “f***ing gangster.” Dehart explained that when he was interviewed by law enforcement, he stated that he gave the gun to “Nut,” who was also known as Nixon. However, he claimed that detectives “had it mixed up” and thought he said that he gave the gun to “Dut,” who was also known as the defendant. Dehart testified that he knew Nixon, Cook, and the defendant from school. He identified the defendant on the surveillance video and stated that he knew it was the defendant “by the walk,” which he described as the “Dut walk,” and “by the body feature.” Dehart concluded that “without a doubt” the three individuals on the surveillance video were Nixon, Cook, and the defendant.

At trial, the State introduced into evidence a video of the defendant's statement. In his statement, the defendant claimed that on the night of the homicide, he was at his home washing his mother's laundry. He denied being with Nixon at any time that day and going to Louisa Street. The defendant said that around 11:15 p.m. that night, he removed clothes from the washing machine, placed them in the dryer, and woke up his younger brother to use the bathroom. He claimed that he finished washing clothes around midnight and watched television with his girlfriend who had been watching television in the back room. The defendant stated that his girlfriend was awake when he went to the back room to watch television with her at midnight.

The State also introduced into evidence a recording of a telephone call made by the defendant from jail on the Monday following his Friday arrest. During the call to his mother's house, the defendant spoke with his younger sister and asked her to take care of their mother and younger brother for him. He then apologized for not “being there” and stated that he “probably [was not going to] be coming home for a little while.” He asked her to go to school and make their mother proud because he “f***ed up.” He then repeatedly told his younger sister that he “messed up” and that he would “probably be an old man, a[n] old, old man in here. Probably ain't never gonna get out.” During the telephone call, the defendant also spoke with his girlfriend, began crying, and stated, “I don't know when I'll be coming home.” He told his girlfriend, “I [sic] probably gonna have to do life.”

The defendant's girlfriend, Asia Butler, testified that she was with the defendant on the night of the murder. The defendant testified and denied being present at the victim's home or in the vehicle with the co-defendants on the night of the murder. He explained that he lived at his mother's home with his two younger siblings and that on the night of the murder, he was at home doing laundry. On cross-examination, the defendant explained that the reason he repeatedly stated that he “f***ed up” during his jailhouse telephone call to his sister the Monday after his Friday arrest was because he “messed up” by not telling the detectives what they “wanted to hear,” and was imprisoned “for nothing.” The defendant claimed that he thought he would be released after answering the detective's questions. The State asked the defendant about the discrepancy between Butler's testimony that she slept from 10:00 p.m. on the night of the murder until 8:00 a.m. the next morning and his statement that he went to sleep at midnight because they were watching television. The defendant maintained that the timeframe he gave in his statement was correct and that Butler was probably “dozing.”

After a thorough review of the record, we are convinced that any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of even the greater offense of second degree murder. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). 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 that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984). No such hypothesis exists in the instant case.

This assignment of error is without merit.

JAILHOUSE TELEPHONE CALL

In his second assignment of error, the defendant argues that the district court erred by allowing the State to introduce into evidence a recording of a telephone call he made while incarcerated. Specifically, the defendant contends that the recording was irrelevant and more prejudicial than probative.

With some exceptions, all relevant evidence is admissible at trial. La. 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. La. 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. La. 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. La. C.E. art. 801C. Hearsay is not admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802.

Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La. 1983). As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id; see also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilty on a ground different from proof specific to the offense charged.”); State v. Rose, 2006-0402 (La. 2/22/07), 949 So.2d 1236, 1244.

During the recording introduced into evidence by the State, the defendant spoke with his younger sister and Butler. While speaking to his younger sister, the defendant states that he “probably [was not going to] be coming home for a little while.” He asked his younger sister to take care of his mother and younger brother for him and apologized for not “being there.” He repeatedly told his sister that he “f***ed up” and “messed up.” He advised that he would “probably be an ․ old man in here. Probably ain't never gonna get out.” The defendant also spoke to Butler, and began crying. He told Butler “I don't know when I'll be coming home” and that he was “probably gonna have to do life.”

The statements made by the defendant during the telephone call, although prejudicial, were highly probative of his involvement in the incident and their probative value outweighed the danger of any unfair prejudice. Moreover, we find that the statements were properly admitted under the exception to the hearsay rule for party admissions pursuant to La. 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. 9/21/12), 111 So.3d 45, 56-57, writ denied, 2012-2277 (La. 5/31/13), 118 So.3d 386. Accordingly, this assignment of error is without merit.

HEARSAY STATEMENT

In his third assignment of error, the defendant complains that the district court erred in ruling that if defense counsel attempted to impeach Westbrook regarding her prior inconsistent statement, the door would be open for the State to offer a statement made by Nixon to Westbrook implicating the defendant.

Prior to calling Westbrook to testify, the State informed the court that the defense and it had “somewhat of a legal quandary.” According to the State, it sent a letter to defense counsel notifying her that although Westbrook lied about not knowing the defendant and being unable to identify him in the still photographs taken from the surveillance video when she was originally interviewed, prior to trial, Westbrook admitted that she did know the defendant and identified him as one of the three suspects shown in the still photographs. She told the State that she lied because Nixon asked her to do so. The State pointed out that the defense would most likely introduce evidence that the defendant was not identified during Westbrook's original interview and then attempt to attack Westbrook's credibility as a witness by using a prior inconsistent statement. The State went on to argue that should the defense introduce the still photographs into evidence to attack Westbrook's credibility, it would “have the right to now support her credibility by use of whatever means that I can do and which would allow her to explain why she did give false information to the police which is only fair.” The State opined that Westbrook's explanation as to why she lied may involve hearsay or a statement against interest of Nixon that may also implicate the defendant.

The defense stipulated that Nixon was an unavailable witness. Thereafter, the State noted that Nixon's statement was admissible as a statement against interest and that it intended to illicit that information from Westbrook “but not in any way implicate [the defendant].” According to the State, “if [Westbrook's] credibility is attacked, either extrinsically with the use of those photographs or intrinsically by bringing up a prior inconsistent statement to the police, I believe the door is completely open, and I have the absolute right to bolster her credibility.”

The district court stated that the matter should have been brought up in a motion in limine. It further noted that the fact that Westbrook lied would be brought up by the defense and “it would be only fair to allow the State then to – I'll call it rehabilitate or explain, explain herself. ․ It's going to be up to the jury to decide the believability and credibility of the witness. So I think it does open the door if the Defense lawyer goes in that direction.” Defense counsel noted her objection for the record.

On direct examination, Westbrook testified that Nixon, crying, told her that “something bad happened.” He admitted shooting the victim and told her that four people were involved. The State then showed the surveillance video from the night of the incident at the victim's home to Westbrook and asked her to identify the individuals in the video. Westbrook identified Cook, Nixon, and the defendant. She testified that she could identify the defendant because she had known him her whole life and knew his walk and build.

Out of the presence of the jury and during cross examination, defense counsel noted that she filed a motion in limine after the district court's ruling because her client “still desires for me to go forward with the testimony; even though it will open up the door to the district attorney coming back and getting that information in.” The following colloquy then occurred:

[Court]: Okay. Mr. Celestine, do you understand that?

[The defendant]: Yes, I do.

[Court]: You understand what your lawyer has told you?

[The defendant]: Yes, sir.

[Court]: Okay. And you actually are the one that you asked her to do that; am I correct?

[The defendant]: Yes, sir.

[Court]: Okay. You know what you're doing then?

[The defendant]: Yes, sir. I ain't got no choice.

[Court]: And she advised you that the State may then be able to bring damaging testimony –

[The defendant]: I know she does not know about it because she clearly stating lying [sic] on the stand and say I had anything to do with anything. So I'm declaring my rights.

[Court]: Okay, all right. As long as you know what you're doing.

The jury was then returned to the courtroom and the defense counsel continued cross examination. During cross examination, Westbrook testified that she changed her original story and that the reason she originally denied knowing the defendant was because Nixon told her that the detectives involved only had three names.

“A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true” is not excluded by the hearsay rule if the declarant is unavailable as a witness. See La. C.E. art. 804B(3). As noted, the parties stipulated that Nixon was unavailable. (R. 963). The statement made by Nixon to Westbrook was against his interest, as he admitted shooting the victim. Thus, Nixon's statement to Westbrook was admissible under Article 804B(3) as a statement against interest.

The defendant argues that the district court erred in ruling that any questions asked on cross examination by the defense regarding Westbrook's credibility may open the door for the State to introduce Nixon's statement which implicated the defendant. However, the only testimony elicited from Westbrook by the State regarding what Nixon told her was that he was the shooter and that four people were involved. The State did not elicit Nixon's request that Westbrook refrain from telling law enforcement officers that the fourth person involved was the defendant. Rather, the defense elicited that testimony pursuant to the defendant's request. Prior to doing so, the court questioned the defendant and confirmed that he was knowingly eliciting that testimony. Moreover, Westbrook's identification of the defendant in the still photographs taken from the surveillance video was corroborative of that of Dehart. Accordingly, this assignment of error is without merit.

EXCESSIVE SENTENCE

In his last assignment of error, the defendant argues that the sentence imposed by the district court is unconstitutionally excessive. Specifically, he argues that the twenty-year sentence imposed by the district court amounts to cruel and unusual punishment “based on the lack of credible evidence in the instant case[.]”

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454. The district court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the district court to consider when imposing sentence. While the entire checklist of La. C.Cr.P. art. 894.1 need not be recited, the record must reflect the district court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569.

The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The district court judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the district court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. In this context, a district court abuses its sentencing discretion only when it contravenes the prohibition of excessive punishment in Louisiana Constitution Article I, § 20, i.e., when it imposes punishment disproportionate to the offense. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

Louisiana Revised Statutes 14:31(B) provides that “[w]hoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.” Prior to imposing the twenty-year sentence, the district court pointed out that after hearing the defendant's version of events and deliberating for less than two hours, the jury returned a verdict of manslaughter. It further noted that it considered the defendant's age and record prior to imposing the sentence.

The defendant subsequently filed a motion to reconsider sentence, and a hearing was held on his motion. At the hearing, the defendant argued that his sentence was excessive because he had no prior record, all but one of his drug tests were negative, and because he originally was not implicated in the offense. The defendant also pointed out that he was very close with his family, assisted with his two younger siblings, and had an alibi. He complained that his co-defendant, Cook, entered a plea of guilty and was sentenced to fifteen years imprisonment. The district court denied the motion to reconsider sentence. Prior to entering its denial, the court opined that the evidence was overwhelming and that the defendant implicated himself during the jailhouse telephone call.

Despite the defendant's arguments, the evidence was sufficient to support his conviction. The court presided over the trial and noted that before imposing the sentence, it did consider the defendant's age as well as his lack of a criminal record. A thorough review of the record reveals that the district court adequately considered the criteria of La. C.Cr.P. art. 894.1 and did not manifestly abuse its discretion in imposing the sentence herein. See La. C.Cr.P. art. 894.1(B)(28) and B(33). Additionally, the sentence imposed was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive. Based on the foregoing, we find that the district court did not abuse its discretion in imposing a mid-range sentence of twenty years. Accordingly, this assignment of error is without merit.

For the foregoing reasons, the defendant's conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

I agree in every respect except the finding that Celestine's second assignment of error lacks merit. I find that, because the statements made during Celestine's jailhouse phone call lacked probative value, the trial court's admission of those statements unfairly prejudiced Celestine. However, I also find that the admission of the phone call constitutes harmless error because of the weight of other evidence against Celestine.

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. Although generally admissible, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. La. Code Evid. arts. 402 and 403. Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La. 1983). The term “unfair prejudice,” as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. State v. Wright, 2011-0141 (La. 12/6/11); 79 So.3d 309, 318 (citing State v. Rose, 2006-0402 (La. 2/22/07); 949 So.2d 1234, 1244).

In the present case, the statements made during the jailhouse phone call contain little to no probative value. The phone call included the following relevant statements:

(1) I probably [won't] be coming home for a while.

(2) I f***ed up ․ I messed up.

(3) I'll probably be an old man ․ in here. Probably [won't] get out.

(4) I don't know when I'll be coming home.

(5) I'm probably [going to] have to do life.

While the majority finds that these statements were highly probative of Celestine's involvement in the incident, I disagree. The statements made during the phone call were vague and make no specific reference to the crime itself. Although the defendant had the opportunity to explain his statements at trial, any probative value contained within these statements is substantially outweighed by the risk of unfair prejudice. Accordingly, the jailhouse phone call should not have been admitted by the trial court.

Despite this improper admission, I find that this error was harmless. Appellate courts should not reverse convictions for errors unless the accused's substantial rights have been violated. State v. Johnson, 94-1379 (La. 11/27/95); 664 So.2d 94, 100. In Louisiana, the test for whether an error was harmless is not whether, in a trial that occurred without the error, a guilty verdict surely would have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Id. (citing Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)).

Although the admission of the jailhouse phone call was improper, the evidence presented at trial supports Celestine's conviction. Specifically, two individuals testified at trial that Celestine was the third person in the surveillance video. Jasmine Westbrook, the ex-girlfriend of co-defendant Lamont James Nixon, Jr., testified that although she originally lied at Nixon's request, she recognized Celestine in the video because of his “walk” and his “build.” Westbrook further testified that she had known Celestine her entire life. Additionally, Trent Dehart, a friend of Celestine's, identified Celestine in the surveillance video because of Celestine's “walk” and “body features”. Considering these two witnesses and the similarities of their testimony, I find that Celestine's guilty verdict was unattributable to the admission of the jailhouse phone call.

For these reasons, I respectfully concur.

FOOTNOTES

1.   Kevone Juantia Cook, Treyvance Nyiori Fanguy, and Lamont James Nixon, Jr., were charged by the same bill of information with the same offense. Cook entered a guilty plea, and Nixon and Fanguy were tried separately.

WELCH, J.

Theriot, J. concurs with reasons