STATE v. DOMINICK III (2026)

Defendant-Appellant, Phillip Dominick, III (“Defendant”), appeals his conviction of second-degree murder pursuant to La. R.S. 14:30.1. For the following reasons, we affirm Defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On the evening of October 30, 2017, Brannon Wilkens, the victim, was traveling in his car with his fiancée, Schwann Burthlong, when he received a telephone call from Milyka Barnes asking for his assistance. After his arrival at Ms. Barnes’ location, the 1600 block of North Villere Street, Mr. Wilkens exited his vehicle and exchanged words with the Defendant regarding a dispute between Ms. Barnes and him. Shortly thereafter, Defendant allegedly walked to the porch, grabbed a gun and shot Mr. Wilkens approximately eight times in his back and torso.

After the shooting, Ms. Burthlong was escorted to police headquarters where she made a statement and indicated that she could identify the shooter from a lineup. The lineup included a photograph of Defendant, yet Ms. Burthlong identified another person as the perpetrator. Detective Michael Poulikis, the lead detective on the homicide investigation, secured the crime scene, collected evidence and later interviewed Ms. Barnes at Tulane Medical Center, (“Tulane”). Detective Poulikis audio recorded the interview in which Ms. Barnes identified Defendant from a photograph, and identified him as the shooter and her cousin. Detective Poulikis obtained an arrest warrant for Defendant, and he was arrested on December 1, 2017.

Case No. 540-073

On February 22, 2018, Defendant was indicted on one count of second-degree murder, a violation of La. R.S. 14:30.1, one count of obstruction of justice, a violation of La. R.S. 14:130.1, and two counts of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. On August 15, 2022, Defendant filed a motion to quash both counts of unlawful possession of a firearm, which the trial court granted. After a two-day trial, the jury was unable to reach a verdict on either charge, and the court declared a mistrial.

Instant matter Case No. 555-638

On September 29, 2022, Defendant was again indicted on charges of second-degree murder, obstruction of justice, possession of a firearm by a convicted felon, and intimidation of a witness, a violation of La. R.S. 14:129.1. On October 31, 2022, the State of Louisiana, (“State”), entered a nolle prosequi in Case No. 540-073, and that case was closed. On November 18, 2022, Defendant filed a motion to quash counts one and two of the indictment arguing that the State's dismissal of Case No. 540-073 had the legal effect of an acquittal pursuant to La. C.Cr. P. art. 693, and the reinstitution of the dismissed charges violated the prohibition against double jeopardy. See State v. Dominick, 23-0066, p. 2 (La. App. 4 Cir. 6/6/23), 368 So.3d 698, 700. The trial court granted Defendant's motion to quash on January 23, 2023. This Court reversed the ruling of the trial court and remanded the case for further proceedings.

On May 23, 2023, Defendant waived his right to a jury trial as to Counts Three (possession of a firearm by a felon) and Four (witness intimidation) only. In December 2024, Defendant moved to quash Counts Three and Four due to improper joinder. The trial court denied Defendant's motion to quash, but severed Counts Three and Four. The trial court ordered that Counts One and Two would proceed to a jury trial while Counts Three and Four would proceed by bench trial. Trial in this matter began on January 14, 2025. On January 16, 2025, the jury convicted Defendant of second-degree murder and acquitted him of obstruction of justice. Later that month, the State dismissed Counts Three and Four.

In May 2025, Defendant filed motions for new trial, and for post-verdict judgment of acquittal, which the trial court denied, and moved for an appeal. The trial court sentenced Defendant to life without parole on June 10, 2025, and on July 11, 2025 the court granted his motion for appeal.

ERRORS PATENT

In accordance with La.Cr.P. art. 920, all appeals are reviewed for errors patent. After a review of the record, we find no errors patent.

ASSIGNMENTS OF ERROR

Defendant asserts nine assignments of error: (1) insufficiency of evidence to sustain his conviction; (2) the trial court committed error in failing to grant Defendant's motion to quash, or sever Counts Three and Four; (3) Defendant's conviction violates Double-Jeopardy; (4) the trial court denied Defendant's motion to strike two jurors for cause in error; (5) the trial court erroneously granted a cause challenge by the State; (6) Defendant's confrontation rights were violated when the State published recorded statements of Ms. Barnes and Ms. Burthlong to the jury; (7) the introduction of other crimes evidence deprived Defendant of his right to a fair trial; (8) trial court committed error in denying Defendant's motion for new trial based on the District Attorney's improper remarks during closing arguments; and (9) the trial court committed error in failing to hold an evidentiary hearing regarding possible prejudicial racial dynamics during jury deliberations.

Assignment of Error One

Insufficiency of Evidence

Defendant argues that there is insufficient evidence to sustain his second-degree murder conviction. An appellate court reviews a sufficiency of evidence claim “by determining whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that all of the elements of the offense had been proven beyond a reasonable doubt.” State v. Groves, 20-0450, p. 21 (La. App. 4 Cir. 6/10/21), 323 So.3d 957, 971 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).) Thus, under the Jackson standard of review, “the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court.” State v. Williams, 11-0414 (La. App. 4 Cir. 2/29/12), 85 So.3d 759, 771 (citations omitted). That is, an appellate court may not substitute its own judgment for that of the jury. State v. Pigford, 05-0477, p. 6 (La. 2/22/06), 922 So.2d 517, 521. Also, “when the State uses circumstantial evidence to prove the elements of the offense, La. R.S. 15:438 requires that ‘assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.’ ” Williams, 11-0414, pg. 16, 85 So.3d 759, 770 (citations omitted).

La. R.S. 14:30.1(1) defines second-degree murder, in pertinent part, as the killing of a human being when the perpetrator has the specific intent to kill or inflict great bodily harm. Pursuant to La. R.S. 14:10(1), specific intent may be inferred from the circumstances surrounding the charged offense and the defendant's conduct. See State v. Weary, 03-3067, p. 18 (La. 4/24/06), 931 So.2d 297, 311. The Louisiana Supreme Court has held that whenever the crucial issue is that of the defendant's identity, “the state is required to negate any reasonable probability of misidentification.” Id. However, the Court has also held that “a positive identification by only one witness is sufficient to support a conviction.” State v. Neal, 00-0674, p.11 (La. 6/29/01), 796 So.2d 649, 658. Therefore, if the trier of fact makes a credibility determination based on the testimony of one witness, that testimony alone is sufficient for the jury to convict the defendant and the appellate court to affirm said conviction. State v. Wells, 10-1338, p. 5 (La. App. 4 Cir. 3/30/11), 64 So.3d 303, 306 (citations omitted).

To support his argument of insufficient evidence, Defendant highlights the conflict between the out of court statements of Milyka Barnes and Schwann Burthlong. Although Ms. Burthlong was confident that she could identify Mr. Wilkens’ murderer, when she was shown a photographic lineup containing Defendant's photo, she identified a different person. Ms. Barnes, however, hours after the murder of Brandon Wilkens, identified Defendant as her cousin and the shooter during an interview with Detective Poulikis at Tulane. The detective presented her with a confirmation photograph that she signed and dated. Ms. Barnes also reported that she witnessed Defendant grab a gun and shoot Mr. Wilkens. During the interview, she confirmed that she made the identification of her own volition, and was not coerced or threatened by law enforcement. She stated: “No, I wanted to do this.”

Although Ms. Barnes testified at trial that she did not recall the events surrounding the murder because it was a traumatic experience, she acknowledged making the recorded statement to Detective Poulikis, and did not recant her identification. Instead she stated the following:

Q. What happened to Brannon Wilkens?

A. Obviously he's dead.

Q. Why is he dead?

A. Because he was killed.

Q. Who killed him?

A. Y'all have the recording. You can play it.

Later, she admitted that she did not want to testify, but wanted the State to play her audio-recorded statement in lieu of her testimony. She testified that she was afraid at trial because her life was threatened by an unknown person through text messages.

Q. Isn't it true that that person threatened your life?

A. Yeah.

Q. Isn't it true that person said Phillip had chosen to kill you?

A. Wait. Say that again.

Q. Isn't it true that person said that Phillip had chosen to kill you, too, but he didn't?

A. Yeah. All that's in the text messages․

Ms. Barnes also testified that Defendant owed her an apology for ripping people out of her life, including her boyfriend, Mr. Wilkens. Moreover, the trial court allowed the jury to consider her grand jury testimony, in which she stated: “You are talking to [a] woman who just lost her boyfriend at the hands of her cousin, crying.”

While Ms. Barnes’ testimony alone is sufficient to support Defendant's conviction, the State also relied on a host of circumstantial evidence to prove Defendant's identity as the shooter. Defendant also contends that the circumstantial evidence presented by the State does not exclude a reasonable hypothesis of innocence. We do not agree.

The record reflects that Ms. Burthlong testified that immediately prior to the shooting the victim was speaking to a man he called “Phil.” Charles Dionne, an NOPD crime analyst, testified that he analyzed the cellphone data from Defendant's phone which placed him in the area of the murder shortly before it occurred. Furthermore, Detective Pouilkis testified that he observed a red sedan parked at the residence where Defendant was arrested that was similar to the getaway car seen in video footage after the murder. Considering the totality of the evidence and viewing in the light most favorable to the State, we find any rational jury could find Defendant guilty beyond a reasonable doubt. This assignment of error lacks merit.

Assignment of Error Two

Failure to Sever Counts Three and Four

Defendant asserts that the trial court committed prejudicial error when it denied his motion to quash and failed to sever Counts Three (possession of a firearm) and Four (witness intimidation). He argues that since he waived a jury trial for Counts Three and Four, these counts were triable by a different mode than Counts One and Two. La. C.Cr.P. art. 493 ¹ permits the joinder of offenses provided they are triable by the same mode of trial. State v. Breaux, 24-00737, p. 2 (La. 5/9/25), 408 So.3d 899, 902. The State argues that Defendant's misjoinder claim is baseless and should be dismissed.

A review of the record reflects that the information given to the jury was limited to Counts One (second-degree murder) and Two (obstruction of justice) during the reading of the grand jury indictment, and in their jury instructions. Moreover, the jury only rendered verdicts as to Counts One and Two, finding Defendant guilty of second-degree murder and acquitting him of obstruction of justice.

Defendant also argues that the inclusion of Counts Three (possession of a firearm) and Four (witness tampering) during trial of Counts One and Two resulted in the admission of inadmissible evidence of witness tampering. Defendant referred specifically to text messages the State introduced in which an unknown person accused Ms. Barnes of being “a rat.” The State discussed those text messages during her testimony, voir dire, and in closing argument. The introduction of the text messages into evidence alone is not proof that the trial court tried Count Four simultaneously with Counts One and Two. As discussed more fully in assignment of error seven, the trial court allowed the texts messages into evidence because it deemed them independently admissible as to Counts One and Two.

All right. Based on everything I heard this morning, Court is going to allow this 404(B) evidence to come in. But again, Mr. Dominick has elected for that to be heard by a judge and I'm going to make the decision on it. So the jury won't get instructions on jury tampering. It's not to say you can't talk about it. You can talk about it all you want, Mr. Creel, so long as it's deemed admissible when it comes in. But I will be making the decision as to his guilt or innocence as it relates to that count as well as the 95.1” (Emphasis added).

The above excerpt from the transcript of the hearing and the Minute Entry ² reflect that the trial court did sever Counts Three and Four. The trial judge also indicated that while all Counts would be tried in a single trial, Counts One and Two were subject to trial by jury and Counts Three and Four were subject to a bench trial. Defendant does not dispute that that the jury received any instructions as to Counts Three and Four. It is also undisputed that the State dismissed Counts Three and Four after the jury returned a guilty verdict on the second-degree murder charge. This assignment of error lacks merit.

Assignment of Error Three

Double Jeopardy

As noted above, Defendant's first trial resulted in a hung jury, and the trial court declared a mistrial. Defendant asserts that since the State entered a nolle prosequi, dismissed the case and re-indicted Defendant on the same charges after the mistrial, his subsequent conviction violates the Double Jeopardy Clause of the United States Constitution. “The Fifth Amendment to the United States Constitution and Article I, § 15 of the Louisiana Constitution prohibit placing a person twice in jeopardy of life or limb for the same offense.” State v. Dominick, 23-0066, p. 4 (La. App. 4 Cir. 6/6/23), 368 So.3d 698, 701. La. C.Cr. P. art. 591 also provides, in pertinent part, that no person shall be subject except to double jeopardy where there has been a legal mistrial pursuant to La. C.Cr.P. art. 775.³

The State avers that double jeopardy has been previously addressed by this Court such that the “law of the case” doctrine applies. This doctrine applies to all prior rulings of an appellate court or the Supreme Court in the same case, as well as to the same parties of the case when the former decision was rendered. State v. Garrison, 16-0257, p. 6 (La. App. 4 Cir. 3/29/17), 215 So.3d 333, 336 (citations omitted). “Courts of appeal generally refuse to reconsider their own rulings of law on a subsequent appeal in the same case.” State v. Golden, 11-0735, p. 13 (La. App. 4 Cir. 5/23/12), 95 So.3d 522, 531. This Court has previously stated that it would not reverse its pretrial determinations unless the defendant can produce new evidence showing that the decision was patently erroneous and produced an unjust result. State v. Robertson, 13-1403, p. 4 (La. App. 4 Cir. 4/9/14), 136 So.3d 1010, 1012.

In our prior decision, this Court held the following:

Here after a mistrial was declared, the jury was dismissed, and Defendant was subject to retrial by a different jury. Therefore, the State's dismissal and reindictment did not implicate Defendant's right under La. C.Cr.P. art. 693 to have his case completed by the jury originally impaneled to hear it. Accordingly, we find that Defendant's argument lacks merit.

Dominick, 23-0066, p. 6, 368 So.3d at 702. We find that Defendant has not advanced any new evidence demonstrating that this Court's prior decision was patently erroneous.⁴ Therefore, we decline to reconsider our previous decision. This assignment of error lacks merit.

Assignments of Error Four and Five

Defense Challenge to Juror 21

Defendant argues that the trial court erred in denying his cause challenge for Juror 21 because the juror's initial answers during voir dire indicated that she believed that Defendant should testify. The State asserts that Juror 21 ultimately stated that she could follow the law and would not hold Defendant's decision not to testify against him. La. C.Cr.P. art. 797 provides the means by which a party can challenge a juror for cause.⁵

The deprivation of a peremptory challenge constitutes a substantial violation of a defendant's constitutional and statutory rights. State v. Juniors, 03-2425, pp. 7-8 (La. 6/29/05), 915 So.2d 291, 304. Therefore, reversal of a defendant's conviction and sentence is required if he uses all twelve peremptory challenges, and the trial court's erroneous ruling on a cause challenge results in the loss of one of defendant's peremptory challenges. Id. The Louisiana Supreme Court has also held that the “appellate court should accord great deference to the district court's ruling on a challenge for cause, which is necessarily, based in part on the court's personal observations during questioning.” State v. Mickelson, 12-2539, p. 12 (La. 9/3/14), 149 So.3d 178, 186-187. The trial court is granted broad discretion in ruling on challenges for cause and will be reversed only if the voir dire as a whole demonstrates an abuse of discretion. Id. at 187.

Defense counsel asked Juror 21 if she would be more likely to vote guilty if Defendant failed to testify, to which she replied, “[w]ith everything else in mind, everything presented, yes.” Shortly thereafter, the court conducted the following colloquy with Juror 21 in chambers:

Defense Counsel:

Earlier you had stated that you would want to hear from the defendant, right—do you still feel that way?

Juror 21:

I mean, yes, I feel like it would be beneficial. It's not-it's not something that I need to determine if somebody is guilty or not guilty, but I feel like it would be beneficial for the defense.

Defense Counsel:

Okay. So, would you hold it against the defendant if he didn't testify?

Juror 21: No.

After this discussion in chambers, the trial court denied Defendant's cause challenge explaining that Juror 21 “clearly did not need [Defendant's testimony].” She asserted that she would not hold Defendant's ability to testify against him. After a review of the record, we find no abuse of discretion when the trial court denied Defendant's cause challenge as to Juror 21.

Defense Challenge to Juror 52

Defendant also argues that the cause challenge for Juror 52 should have been granted because her employment as a social worker with the NOPD's victim witness assistance rendered her unable to fairly judge Defendant's case. A prospective juror's relationship with law enforcement or the district attorney is not automatically grounds for exclusion by a cause challenge. State v. Connolly, 96-1680, p. 12 (La. 7/1/97), 700 So.2d 810, 818. If a juror's responses as a whole reveal facts from which “bias, prejudice, or inability to render a fair judgment may be reasonably inferred” should a challenge for cause be granted. State v. Jones, 474 So.2d 919, 927 (La.1985).

A defendant made a similar argument in State v. Manning, 03-1982, p. 34 (La. 10/19/04), 885 So.2d 1044, 1080, in which a juror knew several witnesses at trial due to his employment with the Shreveport Police Department. In Manning, the juror stated that he could base his decision about the defendant's guilt or innocence on the evidence presented. Id. He also asserted that he had not spoken with any of the witnesses about the case and could remain impartial. Id. The Court then ruled that the fitness of a prospective juror, including law enforcement, should be decided on a case by case basis pursuant to the factors present in La. C. Cr. P. art. 797. Id.

Similarly, Juror 52 stated that she would be able to be fair and unbiased even though she worked for NOPD, and that she could vote not guilty if there was reasonable doubt. She acknowledged that she worked in some capacity with the trial judge's brother, but she did not directly report to him and his affiliation with the case would not impact her outlook. The trial judge denied the cause for challenge finding that her employment itself was not a basis for exclusion from the jury, and also noted that Juror 52 had no contact with any of the victims in the present case. After a review of the record, we do not find that Juror 52's responses revealed bias, prejudice or the inability to render a verdict according to the law. This assignment of error lacks merit.

Cause Challenge for Juror 51

Defendant argues that the trial court abused its discretion when it granted the State's challenge for cause based on Juror 51's bias against the mandatory life sentence for second-degree murder. The State argued that it struck Juror 51 because her statement that she would be unable to render a guilty verdict rendered her unfit to serve on the jury. La. C.Cr.P. art. 798(1), in pertinent part, permits the State to challenge a juror for cause who is “biased against the enforcement of the statute charged to have been violated[.]”

During voir dire, the State asked the prospective jurors if they could not vote guilty because a conviction in Defendant's case would carry a mandatory life sentence. Juror 51 responded that she could not vote guilty either if the State proved guilt beyond a reasonable doubt, or if she were a hundred percent certain of Defendant's guilt. After questioning from the defense, Juror 51 stated that she would think about if she could return a guilty verdict. She did commit to look at the evidence without any preconceived notions, but never equivocally stated that she could return a guilty verdict. The trial judge did not recall Juror 51 stating she could return a guilty verdict and granted the State's cause challenge, noting the defense's objection for the record. A review of Juror 51's responses as a whole reflects that she was predisposed against returning a guilty verdict because the offense charged carried a mandatory life sentence. We find that the trial judge did not abuse his discretion in granting the State's challenge for cause pursuant to La. C. Cr. P. art. 798(1). This assignment of error lacks merit.

Assignment of Error Six

Confrontation Clause

Defendant asserts that his Confrontation Clause rights enshrined in the Sixth Amendment were violated when the State attempted to refresh the recollection of Milyka Barnes and Schwann Burthlong with their pre-trial statements regarding the murder of Brannon Wilkens. The State counters that Defendant's confrontation rights were not violated as both Ms. Barnes and Ms. Burthlong testified at trial and were subject to cross-examination.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right․to be confronted with the witnesses against him․” U.S. Const. Amend. 6. See State v. Horton, 24-0458, pp. 21-22 (La. App. 4 Cir. 7/24/25), 431 So.3d 88, 105. This clause prohibits the “admission of testimonial statements of a witness who did not appear at trial and the defendant had [ ] a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 52-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004).

Although Ms. Barnes testified that she could not recall the events of the victim's murder, the State attempted to refresh her recollection pursuant to La. C.E. arts. 803(5)⁶ and 612(B)⁷ by playing her recorded statement taken the night of the murder over the Defendant's objection on confrontation grounds. When confronted with her prior statement, Ms. Barnes testified that she could not recall the details about the murder. She reported that the trauma of the murder caused her to have a miscarriage and she suffered from Post-Traumatic Stress Syndrome and dissociative amnesia.

Ms. Burthlong acknowledged that she made a pre-trial statement to the police about Mr. Wilkens's murder, but the trauma from that event, her daughter's death, and the eight years that passed between the murder and her trial testimony affected her memory. The State also tried to refresh her recollection pursuant to La. C.E. arts. 803(5) and 612(B) with her statement. Defense counsel objected ⁸ and a bench conference was conducted. After reviewing her statement, she recalled that Mr. Wilkens was speaking with someone named “Phil” prior to his murder.

This Court recently addressed the same argument in Horton, 24-0458, pp. 21-22, 431 So.3d at 105, and held that a witness with memory issues who testified at trial and was subject to cross-examination did not violate the Confrontation Clause. Since the defendants in Horton had the opportunity to confront their accuser, a violation of the Confrontation Clause of the Sixth Amendment did not occur. Id. The same is true here. Despite their memory issues, Ms. Barnes and Ms. Burthlong were present at trial, testified and were subject to cross-examination. Counsel for defense cross-examined Ms. Barnes, and declined to cross-examine Ms. Burthlong. Based upon the applicable law, we find no violation of Defendant's confrontation clause rights. This assignment of error has no merit.

Assignment of Error Seven

Other Crimes Evidence

Defendant contends that the improper introduction of other crimes evidence–text messages to Ms. Barnes, firearms seized from Defendant's home and the homicide of Michael Schwann–deprived him of the right to a fair trial. An appellate court reviews the admissibility of character evidence under an abuse of discretion standard. State v. Hunter, 22-0742, p. 8 (La. App. 4 Cir. 7/6/23), 371 So.3d 108, 115. Absent an abuse of discretion, the trial court's ruling on the admissibility of evidence will not be disturbed on appeal. State v. Randolph, 16-0892, p. 7 (La. App. 4 Cir. 5/3/17), 219 So.3d 425, 431. La. C. E. art. 404(B)(1) provides:

B. Other crimes, wrongs, or acts; creative or artistic expression. (1)(a) Except as provided in Article 412 or as otherwise provided by law, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

While a defendant's prior bad acts may be relevant and admissible pursuant to La. C.E. art. 404(B), the trial court must weigh the probative versus prejudicial value of the evidence before it can be admitted. See La. C.E. art. 403; See also State v. Rose, 06-0402, p. 12-13 (La. 2/22/07), 949 So.2d 1236, 1243-44.

Text messages

Prior to trial, the State filed a notice of intent to offer evidence of other crimes according to La. C.E. art. 404(B) and indicated that it planned to introduce text messages sent to Ms. Barnes from an unknown number. In its brief to this Court, the State acknowledged that it customarily files 404(B) notices for the admission of evidence that exceeds the article's scope. Defendant did not file an objection to this notice.

During Ms. Barnes’ testimony, the trial court granted the State permission to treat her as a hostile witness after she failed to recall the events surrounding the murder of Brannon Wilkens. The prosecutor asked Ms. Barnes if she was afraid to testify for her safety. She answered: “ ․I said I was afraid of Derbes and I was afraid of whoever text my phone.” The State then introduced the text messages to contextualize her trial testimony, and to establish that Ms. Barnes’ trial testimony differed from her grand jury testimony and pre-trial statement due to her fear.

When the State first introduced the text messages, the Defendant did not lodge a contemporaneous objection. See La. C.Cr.P. art. 841(A).⁹ Once the text messages were published to the jury, Defendant lodged an objection on hearsay grounds, not on 404(B) grounds. Thus, Defendant failed to preserve this issue for appeal. State v. Green, 10-0454, p. 22 (La. App. 4 Cir. 3/16/11), 62 So.3d 229, 242 (holding that a defendant is limited on appeal to the grounds objected to at trial). Defendant is therefore precluded from asserting this argument for the first time on appeal.¹⁰ Moreover, the State conceded in its brief to this Court that text messages were not evidence of crimes committed by Defendant. This argument lacks merit.

Firearms

The State did not file a pre-trial notice that it intended to introduce the firearms seized at the time of Defendant's arrest.¹¹ He argues that their introduction was highly prejudicial because the State failed to prove through DNA evidence or fingerprints that he possessed the weapons. The State counters that evidence was admissible to establish that Defendant swapped the murder weapon for another gun after the shooting, but prior to the execution of the search warrant. The State also asserts that no notice was required pursuant to La. C.E. art. 404(B)(1) because the firearms were admissible as an integral act of the crime.

Evidence of other crimes may be introduced at trial when it relates to conduct, formerly known as res gestae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” La. C.E. art. 404(B)(1). See also State v. Taylor, 01-1638, p. 10 (La. 1/14/03), 838 So.2d 729, 741. Res gestae events are deemed admissible because they are so closely connected to the charged crime, that the State could not fairly present its case without reference to them. Id. Moreover, the jurisprudence has held that other crimes evidence admissible under the res gestae exception is not subject to notice requirements. State v. Brown, 03-1616, p. 10 (La. App. 4 Cir. 3/31/04), 871 So.2d 1240, 1247.

At a pre-trial hearing, the trial court ruled on the admissibility of the guns, and permitted the State to introduce evidence of Defendant's gun possession. The court stated: “But if you want to talk about Mr. Dominick had a gun, he fired a gun, whatever you're going to say, I think that's fair game because he's proving—he has to say that to prove the second-degree murder count.” Defendant's argument that he suffered prejudice from lack of notice that it would introduce firearms fails, as the trial court ruled on their admissibility prior to trial. The record reflects that the trial court admitted the firearm evidence pursuant to the res gestae exception, as the firearm evidence was essential to prove the charged offense of second-degree murder. This argument lacks merit.

Michael Schwann

Defendant argues that Milyka Barnes’ testimony regarding the homicide of Michael Schwann, a possible witness to the shooting, was prejudicial and improper 404(B) evidence because the State elicited the testimony and implied that his death was connected to the murder of Brannon Wilkens. The State argues the testimony about Michael Schwann was not other crimes evidence, but testimony first elicited by Defendant on cross-examination, thus proper for redirect examination. We agree.

On cross-examination, Defense counsel asked Ms. Barnes whether she reported to the grand jury about another witness to the murder. She affirmed that her wheelchair-bound cousin, who is now deceased, was also at the murder scene. She also admitted that she did not give her cousin's name or contact information, or the information of other people at the scene to the police. On re-direct examination, the State then queried Ms. Barnes about whether she described to the grand jury how her cousin died. Initially, she denied telling the grand jury that he was killed because he was going to testify.

The State then attempted to refresh her recollection with her grand jury testimony in which she identified her deceased cousin as Michael, and stated that he was killed because he was speaking to police and possibly would testify at trial. After being confronted with this testimony, Ms. Barnes admitted that she volunteered the information about Michael's murder to the grand jury stating: “[y]eah, because he dead. He got shot. He dead. So y'all didn't protect him, just like y'all didn't protect me.”

A review of the record reflects that it was defense counsel who first “opened the door” to testimony about Mr. Schwann during the cross-examination of Ms. Barnes. “Once the defense opens the door in cross examination on a subject it becomes a proper subject for redirect.” State v. Hugle, 11-1121, p. 23 (La. App. 4 Cir. 11/7/12), 104 So.3d 598, 615 (citations omitted). “The defense may not approach a prohibited area ․ and then close the door to clarification by the State.” State v. Steward, 483 So.2d 155, 157 (La. App. 4 Cir. 1986). Accordingly, Ms. Barnes’ testimony was not offered as proof of Defendant's other crimes, but a clarification of her grand jury testimony. After a review of the record, the trial court did not abuse its discretion in allowing the text messages, the firearm evidence and the testimony about Michael Schwann into evidence. This assignment of error has no merit.

Assignment of Error Eight

Motion for New Trial based on Prosecutorial Misconduct in Closing Arguments

Defendant contends that the trial court erroneously denied his motion for new trial based on the prosecutor's improper remarks during closing arguments. Defendant asserts that the State directly attacked defense counsel, attacked his trial strategy, and disparaged the Defendant in violation of his due process rights. The State argues that its closing remarks were permissible because of the wide latitude afforded to attorney's during closing arguments. Pursuant to La C.Cr.P. art. 851, “a motion for new trial is based on the supposition that injustice has been done the defendant, and unless such is shown to have been the case, the motion shall be denied, no matter what allegations it is grounded.”¹² The merits of a motion for new trial should be viewed with caution in order to preserve the finality of judgments. State v. D.D., 18-0891, p. 68 (La. App. 4 Cir. 12/27/19), 288 So.3d 808, 856 (citations omitted). An appellate court will not disturb a ruling on a motion for new trial absent an abuse of discretion. State v. Gordon, 13-0495, p. 21 (La. App. 4 Cir. 7/16/14), 146 So.3d 758, 771 (citations omitted).

La. C.Cr.P. art. 774 provides:

The argument shall be confined to the evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state's rebuttal shall be confined to answering the argument of the defendant.

The trial court has vast discretion in determining the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La. 1981). A prosecutor is barred from making personal attacks on defense counsel or his strategy. State v. Manning, 03-1982, p. 75 (La. 10/19/04), 885 So.2d 1044, 1108 (citations omitted). However, Louisiana jurisprudence affords prosecutors wide latitude in choosing closing argument tactics. State v. Allen, 12-1757, p. 2 (La. App. 4 Cir. 10/9/13), 126 So. 3d 675, 678. See also State v. Martin, 539 So.2d 1235, 1240 (La. 1989).

Even assuming that remarks were inappropriate, a conviction will not be reversed due to an improper remark during closing argument unless the court is thoroughly convinced that remark influenced the jury and contributed to the verdict. Much credit should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence and heard the arguments, and have been instructed by the trial judge that arguments of counsel are not evidence.

Allen, 12-1757, p. 2, 126 So.3d at 678.

During rebuttal argument, the State accused defense counsel of telling the jury a false story, stating: “[d]efense got up there and lied to you.” The defense immediately objected and the trial court sustained the objection. Although we find that these remarks by the State during its closing were impermissible personal attacks, they do not constitute reversible error. Considering the evidence jury reviewed in rendering its verdict, and the court's instruction to the jury that arguments of counsel are not evidence, the record does not reflect that prosecutor's remarks influenced the jury and contributed to the verdict. This assignment of error lacks merit.

Assignment of Error Nine

Allegations of Juror Misconduct

Defendant alleges that it alerted the trial court during the hearing on the motion for new trial to potential prejudicial racial dynamics that likely influenced jury deliberations, and the trial court committed error in failing to set the matter for an evidentiary hearing. The State argues that the issue of juror misconduct was not raised in Defendant's motion for new trial, was not a part of the trial record and should not be considered by this Court on appeal. At the hearing on the motion for new trial, Defense counsel conceded that the allegations of prejudicial racial dynamics, “as an evidentiary matter none of that is before the Court factually.” Yet in his brief to this Court, Defendant suggests that the trial court should have held an evidentiary hearing although the issue was not properly before the trial court. We do not agree.

La. C.Cr. P. art. 920 limits the scope of appellate review to errors designated in the assignment of errors and errors discoverable “by a mere inspection of the pleadings and proceedings without inspection of the evidence.” Further, the Louisiana Supreme Court has held that an evidentiary hearing is necessary only after well-pleaded allegations of prejudicial juror misconduct demonstrate violations of the defendant's constitutional rights. See State v. Graham, 422 So.2d 123, 131 (La. 1982). Thus, mere allegations of juror misconduct are not enough to garner review by this Court. Presently, we find the record insufficient to address Defendant's claims of juror misconduct. Thus, Defendant's claims should be addressed by a timely filed application for post-conviction relief in the trial court. See La. C.Cr. P. art. 930.8. This assignment of error lacks merit.

DECREE

For the foregoing reasons, we affirm Defendant's sentence of second-degree murder and his conviction.

AFFIRMED

FOOTNOTES

1.   La. C.Cr. P. art. 493 provides: Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

2.   According the December 19, 2024, Minute Entry: “Counts 3, Rs 14 95.1-Severance Granted (Judge Trial) Count 4, Witness Tampering—Severance Granted.”

3.   La. C.Cr. P. art. 775(2) states that a mistrial may be ordered when a “jury is unable to agree upon a verdict.”

4.   We also note that the Louisiana Supreme Court denied Defendant's writ application on the issue of double jeopardy. See State v. Dominick, 23-00929 (La. 6/25/24), 386 So.3d 1083.

5.   La. C.Cr.P. art. 797, provides:(1) The juror lacks a qualification required by law;(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;(4) The juror will not accept the law as given to him by the court; or(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.

6.   La. C.E. art. 803(5) provides:A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence and received as an exhibit but may not itself be taken into the jury room. This exception is subject to the provisions of Article 612.

7.   La. C.E. art. 612(B) states:In a criminal case, any writing, recording, or object may be used by a witness to refresh his memory while testifying. If a witness asserts that his memory is refreshed he must then testify from memory independent of the writing, recording, or object. If while testifying a witness uses a writing, recording, or object to refresh his memory an adverse party is entitled, subject to Paragraph C, to inspect it, to examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

8.   The trial transcript does not name the objection lodged by defense counsel.

9.   La. C.Cr. P. art. 841(A) states, in pertinent part: “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”

10.   Both the State and Defendant concede in their briefs to this Court that the text messages were not evidence of other crimes pursuant to La. C.E. art. 404(B) as they were not sent to Ms. Barnes by the Defendant. Defendant also acknowledges in his brief to this court that the text messages “had an independent basis for admissibility.”

11.   At trial, Detective Poulikis testified that none of the weapons recovered from the home where Defendant was arrested were used in the murder of Brannon Wilkens.

12.   Pursuant to La. C.Cr. P. art. 851, the grounds for a motion for new trial are as follows: B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:(1) The verdict is contrary to the law and the evidence.(2) The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment.(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.(6) The defendant is a victim of human trafficking or trafficking of children for sexual purposes and the acts for which the defendant was convicted were committed by the defendant as a direct result of being a victim of the trafficking activity.

Judge Monique G. Morial