STATE OF LOUISIANA v. DONNELL HASSELL (2026)

Defendant, Donnell Hassell, appeals his convictions and sentences for second degree murder, attempted second degree murder, illegal use of a weapon, and obstruction of justice. For the following reasons, we vacate Defendant's conviction and sentence for the attempted second degree murder of Officer Trevor Abney, affirm his other convictions, and remand this case back to the district court to rule on his motion to reconsider sentence.

FACTUAL AND PROCEDURAL HISTORY

On Friday, October 30, 2020, Officers Trevor Abney and Brooke Duncan were on duty in the French Quarter, patrolling in a marked New Orleans Police Department (“NOPD”) vehicle. That same day, Defendant was touring the city, and, later that afternoon, he hired a pedicab driver to take him back to his hotel. During their patrol, Officers Abney and Duncan came to a stop in their vehicle at the intersection of St. Philip and Bourbon Streets right as the pedicab Defendant was riding in approached. Officer Abney waved at the pedicab driver to continue through the intersection. As the pedicab was passing the officers’ vehicle, Defendant suddenly and inexplicably grabbed his gun and opened fire at the officers in their vehicle. One of the bullets struck Officer Abney in the head, grievously wounding him. Defendant fled the scene but was apprehended by law enforcement shortly thereafter. His gun was found covered by a bush behind a dumpster a few blocks away from the shooting. Defendant was transported to the hospital after one of the officers noticed he experienced seizure-like symptoms while being apprehended.

Officer Abney tragically passed away on April 9, 2023, and the coroner ruled his cause of death to be complications from a remote gunshot wound to the head. At the time of Officer Abney's death, the bullet Defendant had shot at him years earlier remained in his head, lodged near his brain. Defendant was indicted by a grand jury on November 30, 2023, and charged with the following counts:

(1) Count 1, second degree murder of Officer Abney in violation of La. R.S. 14:30.1;

(2) Count 2, attempted second degree murder of Officer Abney in violation of La. R.S. 14:(27)30.1;

(3) Count 3, attempted second degree murder of Officer Duncan in violation of La. R.S. 14:(27)30.1;

(4) Count 4, illegal discharge of a firearm during a crime of violence in violation of La. R.S. 14:94(F); and

(5) Count 5, obstruction of justice in violation of La. R.S. 14:130.1.

Defendant pled not guilty and not guilty by reason of insanity to the charges. His case proceeded to a jury trial on October 22, 2024. At the conclusion of trial, the jury convicted him on all counts. On March 21, 2025, the district court sentenced him to life imprisonment as to Count 1, forty years at hard labor for Counts 2-3, twenty years at hard labor for Count 4, and 40 years at hard labor for Count 5. Defendant timely moved to appeal his convictions and sentences.

ASSIGNMENTS OF ERROR

Defendant raises seven substantive assignments of error on appeal, which are summarized as follows:

1. The evidence was insufficient to support Defendant's guilty verdicts;

2. Defendant's due process rights were violated when the district court excluded certain evidence at trial;

3. Defendant's due process rights were violated by the failure of the district court to transcribe the bench conferences conducted during the trial;

4. Defendant's due process rights were violated by the State withholding exculpatory information about its expert witness;

5. Defendant's due process rights were violated when he was placed in double jeopardy for both the murder and attempted murder of Officer Abney;

6. Defendant's due process rights were violated by the district court's failure to rule on his motion for post-verdict judgment of acquittal and motion to reconsider sentence; and

7. Defendant's sentences are excessive, arbitrary, capricious, and disproportionate to the crimes charged.

ERRORS PATENT

In an eighth assignment of error, Defendant requests this Court perform a review of the record for any errors patent. The appellate court is tasked with reviewing all appeals for any errors patent, which are errors that are discoverable from a mere inspection of the pleadings and proceedings. State v. Robinson, 2021-0254, pp. 20-21 (La. App. 4 Cir. 2/18/22), 336 So. 3d 567, 579-80 (citing La. C.Cr. P. art. 920(2)). Our review of the record reveals two errors patent, which relate to assignments of error five through seven. Therefore, we reserve our discussion of those errors for later in this opinion.

DISCUSSION

Assignment of Error No. 1: Sufficiency of the Evidence

Defendant's first assignment of error asserts that the evidence presented at trial was insufficient to convict him on the various charges, particularly in light of his not guilty by reason of insanity (“NGBI”) and intoxication defenses.

When considering the sufficiency of the evidence on appeal, the appellate court is tasked with viewing the evidence in a light most favorable to the prosecution and determining whether a rational trier of fact could have found all the elements of the crime were proven beyond a reasonable doubt. State v. Scott, 2023-0022, p. 8 (La. App. 4 Cir. 8/30/23), 372 So. 3d 42, 50 (quoting State v. Neal, 2000-0674, p. 9 (La. 6/29/01), 796 So. 2d 649, 657); see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court is highly deferential to the findings of the trier of fact and will only impinge upon those findings to the extent necessary to ensure due process. See State v. Armstead, 2014-0036, pp. 11-12 (La. App. 4 Cir. 1/28/15), 159 So. 3d 502, 512 (citations omitted). “Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness's testimony, if believed by the fact finder, is sufficient to support a factual conclusion.” State v. Robinson, 2010-0885, pp. 7-8 (La. App. 4 Cir. 12/21/10), 54 So. 3d 1208, 1213 (citing State v. Marshall, 2004-3139, p. 9 (La.11/29/06), 943 So. 2d 362, 369).

If the circumstances surrounding a crime suggest that a defendant was incapable of distinguishing between right and wrong as a result of a mental disease or defect, then the defendant is exempt from criminal responsibility. La. R.S. 14:14. A defendant is presumed to be sane at the time he commits an offense. State v. Currie, 2000-2284, p. 16 (La. App. 4 Cir. 2/13/02), 812 So. 2d 128, 137 (quotation omitted); see also, La. R.S. 15:432. If a defendant pleads NGBI, he bears the burden of proving his insanity by a preponderance of the evidence. State v. Claibon, 395 So. 2d 770, 772 (La. 1981) (citing La. C.Cr. P. art. 652). The issue of whether a defendant proved he was insane at the time of the offense is a factual determination for the jury to answer after considering all the evidence. E.g. State v. Moore, 568 So. 2d 612, 617 (La. 4th Cir. 1990)(citations omitted). “In reviewing a claim for insufficiency of evidence in an action where an affirmative defense of insanity is raised, this court, applying the standard set forth in Jackson v. Virginia ․, must determine whether under the facts and circumstances of the case, any rational fact finder, viewing the evidence in a light most favorable to the prosecution, could conclude, beyond a reasonable doubt, that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense.” Currie, 2000-2284, p. 17, 812 So. 2d at 138 (quoting State v. Silman, 1995-0154, p. 7 (La.11/27/95), 663 So. 2d 27, 32).

Similarly, a defendant may be exempt from criminal responsibility when he was intoxicated at the time he committed a crime if any of the following are applicable:

(1)The intoxication was involuntary, and the intoxication was the direct cause of the crime; or

(2)The intoxication was voluntary, and the circumstances indicate that the intoxication precluded the presence of specific intent.

See La. R.S. 14:14; see also State v. Clarke, 2021-01460, p. 4 (La. 6/29/22), 345 So. 3d 1015, 1018 (“Voluntary intoxication can only be considered as a defense in cases where specific intent is a necessary element of the crime, and the defendant claims his intoxication precluded the capacity to form that intent.”). Intoxication is an affirmative defense, and the defendant bears the burden of proving his intoxicated condition at the time of the offense through a preponderance of the evidence. See State v. Holmes, 1995-2249, p. 6 (La. App. 4 Cir. 10/29/97), 701 So. 2d 752, 756; see also State v. Keating, 2000-51, p. 6 (La. App. 5 Cir. 10/18/00), 772 So. 2d 740, 744.

With these precepts in mind, we now turn to Defendant's convictions and analyze the evidence presented at trial.

i. Counts 1-3: Second Degree Murder of Officer Abney and Attempted Second Degree Murder of Officers Abney and Duncan

Defendant was convicted of the second degree murder of Officer Abney in violation of La. R.S. 14:30.1. Second degree murder “is the killing of a human being ․ [w]hen the offender has a specific intent to kill or to inflict bodily harm.” La. R.S. 14:30.1(A)(1). The State must prove each of these elements to sustain a conviction for second degree murder. Conversely, the crime of attempted second degree murder only requires the specific intent to kill. State v. Bishop, 2001-2548, p. 4 (La. 1/14/03), 835 So. 2d 434, 437; Scott, 2023-0022, p. 9, 372 So. 3d at 51. “To sustain a conviction for attempted second degree murder, the [S]tate must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim's death.” Bishop, 2001-2548, p. 4, 835 So. 2d at 437 (citation omitted). Specific intent is defined as the “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or his failure to act.” La. R.S. 14:10(1). Specific intent may be formed in an instant, and it can be “inferred from the circumstances surrounding the offense and the conduct of the defendant.” Bishop, 2001-2548, p. 4, 835 So. 2d at 437 (citations omitted); State v. Cousan, 1994-2503, p. 13 (La. 11/25/96), 684 So. 2d 382, 390 (citation omitted).

Defendant's argument regarding the sufficiency of the murder convictions is two-fold. First, he argues that the State failed to prove he had the specific intent to kill Officers Abney and Brooke. However, the record is replete with evidence that Defendant had the specific intent to kill the officers.

At trial, the State introduced surveillance footage depicting Defendant before, during, and after the commission of the crime. In one video, the jury could see Defendant in the pedicab and the NOPD cruiser housing Officers Abney and Brooke. The police cruiser slowed down, and the pedicab driver waved at the cruiser before continuing through the intersection. As the pedicab rolls past the police cruiser, Defendant pulls out a gun, points it directly at the vehicle, and fires.

Officer Duncan's testimony aligned with what the jury saw in the surveillance footage. She testified that she was riding as a passenger in the police cruiser with Officer Abney on the day of the shooting. Their cruiser stopped at the intersection of St. Philip and Royal Streets, and Officer Abney waved at a pedicab to pass through the intersection. As the pedicab was in the middle of the intersection, Officer Duncan testified she witnessed Defendant yank a gun out of his waistband, point it at the police cruiser they were in, and begin shooting. She noted that Defendant took a stance that military and law enforcement personnel are trained to use to assist with aiming. Alexander Bigbie was driving Defendant in the pedicab the day of the shooting and testified at trial. He confirmed that as he drove through the intersection, he witnessed Defendant fire into the front windshield of the police cruiser. Finally, Dr. Sarah DeLand, Defendant's expert witness, reviewed the video at trial and admitted that Defendant appeared to have aimed directly at the police cruiser—and nowhere else—before shooting. Taking all this evidence into account, the jury was reasonable in finding that Defendant had the specific intent to kill the officers when he pointed his gun directly at the police cruiser and opened fired.

Despite the above, Defendant argues that the State failed to prove he was not insane or intoxicated at the time he shot the officers, thus lacking the ability to distinguish right from wrong and to form the specific intent to kill. Yet, as noted earlier, the law presumes all offenders are sane at the time of an offense, and the defendant—not the State—bears the burden of rebutting that presumption through a preponderance of the evidence. Similarly, an intoxication defense also requires a defendant to prove his intoxication by a preponderance of the evidence.

Throughout the trial, Defendant focused his defense on a theory that his actions were the result of an adverse effect from conflicting drugs in his system that caused him to slip into a state of delirium. The jury viewed video footage of Defendant voluntarily smoking marijuana prior to the shooting. Defendant introduced the testimonies of toxicology expert Dr. Patricia Williams and forensic psychiatry expert Dr. Sarah DeLand. Both experts opined that the medications Defendant took to treat his PTSD adversely reacted with the marijuana smoke he inhaled earlier in the day. However, both also agreed that, in reviewing the surveillance footage, Defendant did not act erratically prior to the shooting. More notably, although both doctors hypothesized that Defendant had an adverse reaction to the drugs in his system, neither had treated him on the day of the shooting.

Mr. Bigbie, the pedicab driver Defendant hired, testified that he was accustomed to interacting with erratic and intoxicated people in the French Quarter, and he did not notice anything concerning in his interaction with Defendant. Officer Jean-Paul Baptiste responded to the shooting and chased Defendant through the French Quarter as he fled the scene. Officer Baptiste testified that Defendant was not running erratically and that he appeared to be “running with a purpose, like he was trying to get away.” Sgt. Clinton Givens, the lead investigator, also testified that Defendant's firearm was later found hidden behind a dumpster in the area, and its placement suggested that he had put it there intentionally.

Here, there is conflicting evidence in the record regarding Defendant's mental state on the day of the shooting, and the resolution of that conflict fell squarely within the purview of the jury. Furthermore, lay testimony about a defendant's actions both before and after the crime may provide a rational basis for rejecting a medical opinion that the defendant was legally insane when he committed the offense. State v. Hatch, 2024-160, p. 4 (La. App. 3 Cir. 11/20/24), 411 So. 3d 718, 722. In considering the evidence in a light most favorable to the prosecution, we do not find that the jury erred in rejecting Defendant's insanity and intoxication defenses.

Next, Defendant alternatively argues that the State failed to prove that the bullet he shot into Officer Abney's head had caused his death nearly two-and-a-half years later. Dr. Christopher Tape, who conducted Officer Abney's autopsy, was the only witness to opine on Officer Abney's cause of death. He noted that the bullet lodged in Officer Abney's brain was close to “a number of vital structures” that helped regulate the body. After considering a number of other causes and reviewing Officer Abney's medical records, Dr. Tape concluded that Officer Abney died as a result of complications from a remote gunshot wound to the head. While Dr. Tape admitted there were other factors that could have contributed to Officer Abney's death, his ultimate finding was that “but for the bullet within [Officer Abney's] head[,]” Officer Abney would still be alive.

Finally, Defendant argues that Dr. Tape's autopsy method and determination of cause of death were refuted by his expert, Dr. Williams. However, this is a mischaracterization of Dr. Williams’ testimony. Dr. Williams disagreed with Dr. Tape's statement that the femoral artery blood draw he performed during the autopsy was “the gold standard” for a postmortem toxicology analysis, but she admitted that it was an area that could be used for such an analysis. Although Dr. Williams testified that the anti-depressants in Officer Abney's system at the time of his death should not have been mixed, she never offered an opinion as to his cause of death.

The State is not required to prove that a defendant's conduct was the sole cause of a victim's death in a homicide case, only that the defendant's actions were a contributing cause or substantial factor in bringing about the victim's death. E.g. State v. Cuccia, 2005-0807, p. 27 (La. App. 4 Cir. 3/15/06), 933 So. 2d 134, 155 (citation omitted); see also State v. Hampton, 46,363 p. 7 (La. App. 2 Cir. 5/18/11), 69 So. 3d 614, 618; see also State v. Nolan, 2004-360, pp. 12-13 (La. App. 3 Cir. 9/29/04), 882 So. 2d 1246, 1254. Dr. Tape definitively found that the bullet in Officer Abney's brain contributed to his death, and the jury credited his testimony. Therefore, there was sufficient evidence to find that Defendant caused Officer Abney's death, and this argument is without merit.

ii. Count 4: Illegal Use of a Weapon

Defendant was also charged and convicted of illegally using a weapon in violation of La. R.S. 14:94(F). “To convict a defendant for illegal use of a weapon during a crime of violence, the State must prove: (1) that the defendant intentionally, or through criminal negligence, discharged a firearm, (2) that it was foreseeable that it may result in death or great bodily harm to a human being, and (3) that the defendant did so while committing [or] attempting to commit ․ a crime of violence.” State v. Contreras, 2017-0735, p. 9 (La. App. 4 Cir. 5/30/18), 247 So. 3d 858, 867 (citation omitted). Attempted second degree murder is a crime of violence. See La. R.S. 14:2(B)(3).

All the elements are met here. Namely, as discussed above, the evidence showed that Defendant intentionally shot his firearm directly at Officers Abney and Duncan in an attempt to kill the officers. Further, the jury reasonably rejected Defendant's NGBI and intoxication defenses. Therefore, we find the evidence sufficient to convict Defendant with the illegal use of a weapon.

iii. Count 5: Obstruction of Justice

Defendant's final conviction was for obstruction of justice. Obstruction of justice is defined as the “[t]ampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding.” La. R.S. 14:130.1(A)(1). As already stated, specific intent is defined as the “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or his failure to act.” La. R.S. 14:10(1). “Specific intent need not be proven as fact but may be inferred from the circumstances of the transaction and the actions of the defendant.” State v. Harvey, 2021-0730, p. 10 (La. App. 4 Cir. 5/25/22), 345 So. 3d 1043, 1050 (citation omitted). A defendant meets the specific intent requirement for obstruction of justice if he knew that “an act reasonably may affect a potential or future criminal proceeding.” State v. Powell, 2015-0218, p. 11 (La. App. 4 Cir. 10/28/15), 179 So. 3d 721, 728 (citing State v. Jones, 2007-1052, p. 9 (La. 6/3/08), 983 So. 2d 95, 101)(internal quotations omitted). Moving evidence from a crime scene is sufficient to convict a defendant of obstruction of justice if the State can show the defendant had the requisite intent and knowledge to distort the investigation. Id.

Here, the State introduced into evidence pictures showing the location where the police recovered Defendant's firearm. The gun was not at the scene of the crime or on Defendant's person when he was apprehended. It was found further down St. Philip St. The pictures depict the firearm behind a dumpster covered by the branches of a bush. Given the circumstances surrounding the gun's placement, and in viewing the evidence in a light most favorable to the prosecution, the jury reasonably determined that Defendant intended to distort the criminal investigation when he hid the gun, and the evidence was sufficient to convict him of obstruction of justice.¹

Assignment of Error No. 2: Evidentiary Rulings

Defendant's second assignment of error challenges various evidentiary rulings made by the district court. Specifically, Defendant challenges the district court's rulings on his NGBI and intoxication defenses; its ruling on the State's hearsay objections during Sgt. Given's cross-examination; and its rulings made in relation to Dr. Tape's testimony. We will review each in turn under the abuse of discretion standard. E.g. State v. Wright, 2011-0141, pp. 10-11 (La.12/6/11), 79 So. 3d 309, 316 (“A trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion.”).

i. Evidentiary rulings related to Defendant's NGBI and intoxication defenses

Defendant first alleges that the district court prohibited him from introducing evidence related to his NGBI and intoxication defenses. Defendant directs our attention to an alleged ruling that was made during the jury conference. Yet, a review of the jury conference transcript reveals no evidentiary rulings were made. Defendant does not allege error with any other specific ruling, and only makes a general argument that the district court barred him from presenting evidence. However, this argument is soundly refuted by the record, which shows defense counsel making arguments about and presenting evidence to support the theory that Defendant was in a state of delirium during the shooting. Therefore, we find this argument meritless.

ii. Hearsay objections

Defendant next contests the district court's hearsay rulings that were made during the cross-examination of Sgt. Givens. Prior to trial, the State filed a “Notice of Intention to Use Confession or Statement Pursuant to Code of Criminal Procedure Article 767 and 768.” Ultimately, the State did not use these statements during the presentation of its case. During his cross-examination of Sgt. Givens, defense counsel attempted to question Sgt. Givens regarding certain statements Defendant made. The State objected on the basis of hearsay, and the district court sustained those objections. On appeal, Defendant argues, without citing any legal authority, that he was “impermissibly prevented from attacking any aspect of Sgt. Givens’ investigation that was even remotely related to [Defendant's] statement or show that Sgt. Givens[’] investigation actually corroborated [Defendant's] statement.”²

The Louisiana Code of Evidence defines hearsay as “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. 801(C). “Hearsay evidence is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability.” State v. Morgan, 2023-0534, pp. 5-6 (La. App. 4 Cir. 10/6/23), 376 So. 3d 280, 284 (citation omitted). During Sgt. Givens’ cross-examination, Defense counsel asked the following two questions to which the State objected:

[Defense Counsel]: Okay and you [Sgt. Givens] don't recall [Defendant] telling you that he couldn't go to Jackson Square because it was locked?

[State's Counsel]: I'm going to object again, judge. This is hearsay. It's his own client's statement.

․

[Defense Counsel]: You were unable to locate that video?

[Sgt. Givens]: Based on what he stated in his statement, no.

[Defense Counsel]: What was that statement you just mentioned?

[State's Counsel]: Objection, this calls for hearsay.

The Defendant did not testify at trial and was not subject to cross-examination, making the statements he gave to Sgt. Givens hearsay. Therefore, the district court did not err in sustaining those exceptions. On appeal, Defendant implies that he should have been able to use those statements because the State noticed its intent to rely on his statements, despite ultimately not doing so at trial. Defendant does not cite any legal authority to support this argument, and this Court has been unable to find any authority supporting his position. The purpose of La. C.Cr. P. arts. 767 and 768 is to “allow adequate time for preparation of the defense, as well as to avoid certain problems that had been attendant to mentioning of confessions or inculpatory statements in the [S]tate's opening statement.” State v. Parker, 436 So. 2d 495, 499 (La. 1983) (citation omitted). The State giving Defendant notice that it may use his statements does not require it to do so.

Even assuming for the sake of argument that Defendant should have been allowed to question Sgt. Givens about his statements, Defendant has failed to show how his case was prejudiced by the exclusion of those statements. “The erroneous admission of evidence is subject to the harmless error analysis.” State v. Thomassie, 2016-0370, p. 11 (La. App. 4 Cir. 12/21/16), 206 So. 3d 311, 317 (citations omitted); see also La. C.Cr. P. art. 921 (prohibiting the appellate court from reversing a lower court's erroneous ruling unless the ruling affected the defendant's substantial rights); La. C.E. art. 103(A)(“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected ․”). An error is deemed harmless if the guilty verdict is “surely unattributable” to that error. State v. Higginbotham, 2011-0564, p. 3 (La. 5/6/11), 60 So. 3d 621, 623 (citation omitted). Outside of his one conclusory statement, Defendant does not explain how the exclusion of this line of questioning would have affected his verdict, and in considering all the evidence presented at trial, we do not find that the district court abused its discretion in sustaining the State's hearsay objections or that its ruling affected Defendant's substantial rights. As such, this argument is meritless.

iii. Evidentiary rulings relating to Dr. Tape

Finally, Defendant challenges the rulings the district court made in relation to evidence about Dr. Tape and his work. The majority of the objections sustained by the district court related to the relevancy of the testimony defense counsel attempted to elicit from Dr. Tape. Relevant evidence is defined as 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. C.E. art. 401. Irrelevant evidence is not admissible at trial. La. C.E. art. 402.

Defendant contests the district court's refusal to allow him to question Dr. Tape about his termination from the St. Tammany Parish Coroner's Office or about allegations regarding his expertise made by his former supervisor during traversal. On appeal, Defendant argues that Dr. Tape's curriculum vitae (“CV”) omitted the fact that he was fired from his position at the St. Tammany Parish Coroner's Office shortly after he performed Officer Abney's autopsy. Defendant did not object to the introduction of the CV when it was originally offered at trial. During traversal, defense counsel asked Dr. Tape if he had been terminated from his position as coroner, and he admitted that he was terminated. The district court only limited defense counsel's questions about the reasons for the termination. In objecting to the question, the State noted that the question was outside the scope of traversal and fell more in line with cross-examination, and the district court agreed. However, defense counsel did not question Dr. Tape about the matter on cross-examination. Also during traversal, defense counsel attempted to question Dr. Tape about allegations regarding his expertise made against him by his former supervisor in an unrelated case. Dr. Tape admitted that the supervisor—Dr. Robert Sigillito—testified against him, but he clarified that the court had found Dr. Sigillito to not be credible. When defense counsel attempted to ask Dr. Tape about Dr. Sigillito's allegations against him, the State objected. In sustaining the objection, the district court noted that the allegations were irrelevant to the traversal.

We do not find that the district court abused its discretion by preventing Defendant from questioning Dr. Tape about his termination or the accusations made by his former supervisor during traversal. Both subjects were beyond the scope of traversing his expertise as a forensic pathologist and thus were irrelevant, particularly in light of the fact Dr. Tape admitted that he had been terminated and that he had not been disqualified in the prior proceeding despite his supervisor's testimony against him. Even if any alleged error occurred, outside of a blanket statement that the omission of this line of questioning hampered his defense, Defendant fails to show how it actually affected the outcome of the trial.

Similarly, Defendant challenges the district court's limitation of certain questions on cross-examination. The first of these were questions related to a press release from the St. Tammany Parish Coroner's Office. A day after Officer Abney's death, but prior to his autopsy, the St. Tammany Parish Coroner's Office released a press statement that Officer Abney's cause of death was classified as a homicide. Dr. Tape testified that the classification was based on his preliminary examination. However, he stated that he did not authorize a press release and that the questions about the propriety of said release should be directed to the person in charge. Defense counsel continued to question Dr. Tape about the propriety of the press release, and the State objected to the relevancy of the question, which the district court sustained. Defense counsel also questioned Dr. Tape about Officer Abney's use of antidepressants and nicotine. Dr. Tape testified that he did not know whether the two drugs could be taken together, but he did affirm that taking them together would not result in death. When the defense sought to question Dr. Tape further about this, the State objected, and the district court sustained the objection.

Again, we do not find the district court abused its discretion in sustaining the State's objections. Dr. Tape had answered defense counsel's questions about the two matters multiple times. The district court did not prevent Defendant from presenting a defense by precluding repetitive questions. Even if so, Defendant fails to show how the exclusion of those repetitive questions affected the jury's verdict, particularly in light of the fact the jury had already heard Dr. Tape's answers. Therefore, this assigned error is meritless.

Assignment of Error No. 3: The Omission of Bench Conferences from the Record

Defendant alleges in his third assignment of error that his due process rights were violated because the complete record of the trial was not transcribed in his case. Defendant argues that the record is incomplete because none of the bench conferences between the district court judge and counsel were transcribed, and his objections were not preserved for review. The Defendant correctly observes that the record does not contain the bench conferences held during the middle of the trial. Yet, we disagree that these omissions warrant reversal.

Article I, Section 19 of the Louisiana Constitution provides, “No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.” All proceedings conducted in a felony trial must be transcribed. See State v. Chambers, 2016-0712, p. 20 (La. App. 4 Cir. 2/15/17), 212 So. 3d 643, 655 (quoting La. C.Cr. P. art. 843). “A criminal defendant has a right to a complete transcript of the trial proceedings, particularly where counsel on appeal was not counsel at trial.” State v. Landry, 1997-0499, p. 3 (La. 6/29/99), 751 So. 2d 214, 215 (citation omitted). Still, in order to warrant a reversal or new trial, the omission of the transcribed record must affect the substantial rights of the defendant. Chambers, 2016-0712, p. 20, 212 So. 3d at 655 (quoting La. C.Cr. P. art. 921). An inconsequential omission that is immaterial to a determination of the appeal will not warrant a reversal or remand; a defendant must show he was prejudiced by the missing portions of the record to be entitled to relief. State v. Campbell, 2006-0286, p. 99 (La. 5/21/08), 983 So. 2d 810, 872-73 (citations omitted).

This assigned error is similar to the one raised in State v. McElveen, wherein the defendant objected to the fact that a “large number” of bench conferences were not recorded. 2010-0172, p. 101 (La. App. 4 Cir. 9/28/11), 73 So. 3d 1033, 1095. Therein, this Court noted that, while there is no per se rule about recording bench conferences, the constitutional mandate that evidence be recorded does not encompass bench conferences that do not satisfy the materiality requirements of La. C.Cr. P. art. 843. Id. at pp. 101-02, 73 So. 3d at 1095-96 (first citing State v. Deruise, 1998-0541, p. 14 (La. 4/3/01), 802 So. 2d 1224, 1236 and then citing State v. Hoffman, 1998-3118, pp. 49-50 (La. 4/11/00), 768 So. 2d 542, 586). Ultimately, the McElveen court held that the defendant had not shown specific prejudice relating to the district court's failure to transcribe the bench conferences. Id. at p. 102, 73 So. 3d at 1096.

At the conclusion of trial and while the jury was deliberating, the district court judge allowed the parties to place the arguments they made during the bench conferences on the record. The judge stated that she had taken notes during their conferences and went through the objections she had written down. Both the defense and the State placed their arguments on the record during that time, and the judge explained why she ruled the way she had. Defense counsel took advantage of this opportunity and even reminded the judge of an objection he had raised in regards to Dr. Tape's qualifications. Given this, we do not find that Defendant's rights were substantially affected by the bench conferences not being transcribed. Defendant had the opportunity to place his objections on the record at the conclusion of the trial, thus preserving the objections he felt were material to his defense. Furthermore, Defendant fails to point to any specific prejudice in his appellate brief or explain how his rights were substantively affected by the lack of a record for the bench conferences. As reflected in our analysis of his second assignment of error, this Court was able to conduct a thorough review of certain objections even without the benefit of reviewing the bench conferences. See generally State v. Castleberry, 1998-1388, p. 29 (La. 4/13/99), 758 So. 2d 749, 773 (finding that the content of the unrecorded bench conferences was ascertainable from the context of the record). Therefore, we find this assignment of error lacks merit.

Assignment of Error No. 4: Exculpatory Evidence

Defendant's fourth assignment of error alleges that the State withheld material, exculpatory evidence about its expert witness, Dr. Tape. This evidence consists of undisclosed autopsy reports wherein Dr. Tape allegedly made egregious errors and false statements, among other things that Dr. Tape's former supervisor, Dr. Sigillito, had contained in a laptop.

The State's suppression of evidence favorable to a defendant violates the defendant's due process rights if that evidence is material to his guilt or punishment. State v. Johnson, 2009-0259, p. 10 (La. App. 4 Cir. 9/16/09), 22 So. 3d 205, 211 (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). The State has a duty to disclose exculpatory evidence, and that duty extends to evidence that could impeach a witness “when the reliability or credibility of that witness may determine guilt or innocence.” Id. (citation omitted). Yet, a new trial is only warranted if the undisclosed evidence is material. State v. Wells, 2011-0744, p. 10 (La. App. 4 Cir. 4/13/16), 191 So. 3d 1127, 1138 (citing Giglio v. U.S., 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). Additionally, a defendant has a duty to conduct his own investigation in preparation for trial, and the State does not have a duty to turn over information which the defendant already possesses or could have obtained through reasonable diligence. State v. Johnson, 2016-0480, p. 8 (La. App. 4 Cir. 10/12/16), 229 So. 3d 610, 616 (citation omitted).

A claim that the State withheld exculpatory evidence is best addressed during post-conviction proceedings, wherein “an evidentiary hearing may be conducted to develop a sufficient record on the issues raised.” State v. Neal, 2000-0674, p. 14 (La. 6/29/01), 796 So. 2d 649, 660. Defendant raises this claim on his direct appeal, where we are deprived of a full evidentiary record analyzing the undisclosed evidence, its relation to the guilty verdict, and the parties’ actions in the discovery of this evidence. Accordingly, we pretermit discussion on this assigned error and preserve it for Defendant to raise on post-conviction review.

Assignment of Error No. 5: Double Jeopardy

We now turn to Defendant's argument that his convictions of second degree murder and attempted second degree murder violate his right not to be placed in double jeopardy.

In their appellate briefs, the parties argue over whether this Court should apply the Blockburger 3 test or the broader “same evidence” test to determine whether Defendant has been placed in double jeopardy. Notwithstanding the fact the “same evidence” test is no longer applicable,⁴ we find neither is necessary to conclude that Defendant's due process rights were violated by being charged and convicted of the murder and attempted murder of the same victim arising from the same criminal episode. The State argues in its brief that this Court should not consider “other double jeopardy principles” outside of the two tests raised by Defendant, but we are bound to do so because double jeopardy violations constitute an error patent. E.g. State v. Roe, 2013-1434, p. 39 (La. App. 4 Cir. 10/8/14), 151 So. 3d 838, 862 (citations omitted).

“Both the Fifth Amendment to the United States Constitution and Article 1, § 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense.” State v. Mahogany, 2017-0377, p. 26 (La. App. 4 Cir. 7/26/17), 225 So. 3d 489, 507; see also La. C.Cr. P. arts. 591 and 596. “The guarantee against double jeopardy provides three central constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense.” State v. Holley, 53,405, pp. 6-7 (La. App. 2 Cir. 4/22/20), 297 So. 3d 180, 185 (citing State v. Crandell, 2005-1060 (La. 3/10/06), 924 So. 2d 122). Double jeopardy protections also extend to a “separate punishment of lesser included offenses once the defendant is convicted of the greater offense.” Id. at p. 7, 297 So. 3d at 186 (citation omitted); La. R.S. 14:5 (“An offender who commits an offense which includes all the elements of other lesser offenses, may be prosecuted for and convicted of either the greater offense or one of the lesser and included offenses.”)(emphasis added). A lesser included offense is “one in which all essential elements are also essential elements of the greater charge, such that evidence sufficient to support a conviction of the charged offense necessarily supports a conviction on the lesser offense.” State v. Jones, 2015-0123, p. 37 (La. App. 4 Cir. 12/2/15), 182 So. 3d 251, 276 (citing State v. Manning, 2003-1982, p. 65 (La. 10/19/04), 885 So. 2d 1044, 1101).

Here, Defendant was convicted of both the second degree murder and attempted second degree murder of Officer Abney. Attempted second degree murder is a lesser included offense of the crime of second degree murder. La. R.S. 14:27(C)(“An attempt is a separate but lesser grade of the intended crime ․”). Therefore, he cannot be convicted and sentenced for both. The appellate courts remedy a double jeopardy violation by vacating the sentence and conviction of the less severely punishable offense and affirming the conviction and sentence of the more severely punishable offense. E.g. State v. Parker, 2015-1013, p. 8 (La. App. 4 Cir. 6/22/16), 195 So. 3d 1242, 1247 (citation omitted); see also Holley, 53,405, p. 7, 297 So. 3d at 186. As such, we vacate Defendant's conviction and sentence for the attempted second degree murder of Officer Abney.

Assignments of Error Nos. 6-7: Motion for Post-Verdict Judgment of Acquittal and Motion to Reconsider Sentence

Lastly, in his sixth assignment of error, Defendant argues that the district court erred in failing to rule on his motion for post-verdict judgment of acquittal and motion to reconsider sentence. A review of the record reveals that the district court denied Defendant's motion for post-verdict judgment of acquittal during a February 21, 2025 hearing. However, Defendant correctly notes that the district court did not rule on his motion to reconsider sentence. This constitutes a patent error as it is procedurally improper for an appellate court to review a defendant's sentence prior to the district court ruling on a motion to reconsider sentence. State v. Jones, 2015-0839, pp. 2-3 (La. App. 4 Cir. 12/30/15), 184 So. 3d 822, 824 (citations omitted). Given this, we cannot consider Defendant's seventh assignment of error challenging his sentence. Instead, we must remand this matter back to the district court to rule on his motion to reconsider sentence, preserving his right to challenge his sentence at a later date.

DECREE

For the foregoing reasons, we affirm Defendant's convictions for the second degree murder of Officer Abney, attempted second degree murder of Officer Duncan, illegal use of a weapon, and obstruction of justice. We vacate Defendant's conviction and sentence for the attempted second degree murder of Officer Abney. Finally, we remand this case for the district court to rule on Defendant's motion to reconsider sentence.

AFFIRMED IN PART; VACATED IN PART; REMANDED

FOOTNOTES

1.   On appeal, Defendant takes issue with Sgt. Givens’ comment that the gun appeared to have been placed behind the dumpster intentionally. However, Defendant did not raise an objection to this statement at trial. It is well-settled that “[a] new basis for objection cannot be raised for the first time on appeal.” State in Interest of C.H., 2021-0516, p. 18 (La. App. 4 Cir. 1/26/22), 335 So. 3d 451, 462 (citation omitted); see also La. C.Cr. P. art. 841(A) (“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”).

2.   The Court and attorneys had a bench conference off the record regarding the State's hearsay objection. When the district court judge allowed the parties to place their trial objections on the record at the conclusion of trial, defense counsel did not raise this issue before the court for transcription.

3.   Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

4.   See State v. Frank, 2016-1160, p. 10 (La. 10/18/17), 234 So. 3d 27, 33-34.

Judge Nakisha Ervin-Knott