STATE v. POWELL (2026)

The defendant was charged by grand jury indictment with second degree murder, in violation of LSA-R.S. 14:30.1. He pled not guilty, and following a jury trial, was convicted as charged by a unanimous jury. The trial court denied the defendant's motion for post-verdict judgment of acquittal and motion for new trial and sentenced him to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.¹ The defendant now appeals, designating six assignments of error. For the following reasons, we affirm the conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On June 13, 2020, the Baton Rouge Fire Department (the “Fire Department”) responded to reports of a potential fire near Spanish Town Road and North 11th Street. On arrival, the Fire Department located the body of twenty-five-year-old Courtney Lee in an open field accessible by a mostly dirt road connecting Spanish Town Road to North 10th Street. Lee had been shot twice in the head and set on fire. The Fire Department requested the assistance of the Baton Rouge Police Department (“BRPD”), and a homicide investigation ensued. Officers reviewed surveillance footage from a nearby building and identified a vehicle belonging to the defendant, Kim Powell, in the area shortly before the smoke from the fire became visible. Based on the surveillance footage depicting the defendant's car in the area at the time of the fire, the defendant was detained and, after being advised of and waiving his Miranda ² rights, he provided a statement to the police denying any involvement in the murder. Thereafter, he was charged with second degree murder and was convicted by a unanimous jury.

ASSIGNMENT OF ERROR ONE

In his first assignment of error, the defendant argues there was insufficient evidence to support his conviction. Specifically, he alleges the State failed to exclude his hypothesis of innocence that he was not the perpetrator of the homicide.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; LSA-Const. art. I, § 2. 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, any rational trier of fact could have found the State proved the essential elements of the crime and the defendant's identity as the perpetrator of the crime beyond a reasonable doubt. See LSA-C.Cr.P. art. 821(B); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Coleman, 2021-0870 (La.App. 1 Cir. 4/8/22), 342 So.3d 7. 11, writ denied, 2022-00759 (La. 11/21/23), 373 So.3d 460. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). When addressing the sufficiency of the evidence, consideration must be given to the entirety of the evidence, including inadmissible evidence which was erroneously admitted, to determine whether the evidence is sufficient to support the conviction. See Id.

When circumstantial evidence is used to prove the commission of the offense, LSAR.S. 15:438 mandates “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test for evaluating the evidence; rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror the defendant is guilty beyond a reasonable doubt. State v. Cabellero, 2022-0441 (La.App. 1 Cir. 11/4/22), 356 So.3d 389, 394, writ denied, 2022-01777 (La. 4/25/23), 359 So.3d 982. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984); State v. Bessie, 2021-1117 (La.App. 1 Cir. 4/8/22), 342 So.3d 17, 22, writ denied, 2022-00846 (La. 9/20/22), 346 So.3d 802.

Second degree murder is defined, in pertinent part, as a killing of a human being committed “[w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]” LSA-R.S. 14:30.1(A)(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.” LSA-R.S. 14:10(1). 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 Coleman, 342 So.3d at 12. Specific intent is an ultimate legal conclusion to be resolved by the factfinder. Id.

The State bears the burden of proving the elements of the offense, along with the burden of proving the defendant's identity as the perpetrator. When, as in this case, the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051.

At trial, Officer Justin Brister with the BRPD testified he responded to the area around 3:30 p.m. on the day in question, after the Fire Department's response. Officer Brister testified that upon arrival, he noticed fresh tire tracks leaving the field where Lee's body was found, and to his knowledge, none of the responding officers or firefighters had driven down the road. However, Officer Brister testified the tire tracks were never matched to the defendant's vehicle.

Lieutenant Mindy Stewart with the crime scene investigation division of the BRPD testified she arrived at the scene shortly before 5:00 p.m. on the day in question. Her duties involved photographing the scene and the body and fingerprinting to determine the identity of the victim. Lieutenant Stewart observed Lee's body, which was nude, lying face-down in the open field. She testified it appeared Lee had been burned mostly in the genital region. Lieutenant Stewart photographed the fresh tire tracks, but did not make a cast of the tire tracks due to the condition of the ground.

Another BRPD officer in the crime scene investigation division, Captain Keith Wilson, testified the evidence collected from the scene included five receipts found near Lee's body. The receipts were from Pizza Hut in New Orleans and McDonald's. The date June 3, 2020 and the name “Juan Santos” appeared on two receipts and “Nette” on another. Captain Wilson also testified that he took DNA swabs from Lee's body at the scene, including swabs from underneath her fingernails and swabs from her ankles. According to Captain Wilson, the search for evidence was primarily conducted at the burned area of the field.

Nathan Drumm, an investigator with the Fire Department, testified the origin of the fire was Lee's body and that Lee's body was significantly burned in the groin area and the head. Drumm stated he noticed an odor of accelerant, which was later determined to be a heavy petroleum product, such as kerosene, diesel fuel, or charcoal starter. He testified it was plausible that accelerant was put on both burned areas of Lee's body. Later in the investigation, an accelerant dog was requested to sniff the defendant's vehicle, but this yielded a negative result.

Detective Brandon Boudreaux with the BRPD, the lead detective on the case, testified he arrived at the scene at approximately 5:10 p.m. and ordered fingerprinting, leading to Lee's identification and a search of her residence. Detective Boudreaux testified that he also ordered a sexual assault kit, because “most of the damage ․ had been in her groin area.” Detective Boudreaux opined that “whoever did it was potentially trying to destroy evidence.” A search of Lee's house revealed no evidence showing a crime had been committed there. Detective Boudreaux also obtained video surveillance footage from the Louisiana Municipal Association (“LMA”) Building on the corner of North 10th and Spanish Town Road located directly across from the scene.³ Said building had nine exterior cameras.⁴ Detective Boudreaux reviewed the video footage recorded between the hours of 10:00 a.m. and 4:00 p.m., the approximate time frame in which the homicide was believed to have occurred. Said video footage revealed that at approximately 1:58 p.m., a white Ford Expedition drove down Spanish Town Road and entered the western access point to the open field where Lee's body was found; and at approximately 2:03 p.m., proceeded away from the area. At 2:05 p.m., the same white Ford Expedition entered the area for a second time, and then exited at 2:09 p.m. Approximately twenty minutes later, the same vehicle drove down Spanish Town Road, then turned south onto Canal Street which borders the LMA Building. At 2:47 p.m., a black male wearing a black shirt, black shorts, and white sneakers with a white towel covering his head walked down North 10th Street toward Spanish Town Road and then entered the area where Lee's body was found. Detective Boudreaux testified that it looked as though the individual in the video footage had a limp in his right leg and appeared to be slightly bowlegged. At 3:02 p.m., the same black male exited the area walking back toward Spanish Town Road carrying what appeared to be a black plastic bag. As said individual approached the road, smoke was seen coming from where Lee's body was found. At 3:03 p.m., the black male walked southbound on Canal Street and at 3:42 p.m., the Fire Department arrived on the scene.

Detective Boudreaux indicated he could not determine the Ford Expedition's license plate number from the surveillance footage, but noted distinguishing characteristics and emailed a description of the vehicle to law enforcement agencies. Specifically, Detective Boudreaux testified the white Ford Expedition was two-toned with a gray bottom, had damaged running boards on the passenger side, damaged passenger side doors, a sunroof, and unique rims. He added that the front driver and passenger side windows were not tinted. Detective Boudreaux obtained the license plate number for the Ford Expedition from an installed license plate reader in Baton Rouge and discovered it was registered to the defendant, who lived on Topeka Street in Baton Rouge.

On June 17, 2020, Detective Boudreaux drove by the defendant's address and observed a vehicle parked in the driveway with the same distinguishing characteristics as those seen in the video footage. While waiting for a search warrant for the defendant's house and vehicle, Detective Boudreaux and other officers staked out the defendant's house. They watched the vehicle leave the residence and then pull into the parking lot of a neighborhood grocery store, where a Special Weapons and Tactics (SWAT) team detained the defendant. Detective Boudreaux testified he observed that the defendant had a limp in his right leg, appeared to be bowlegged, and had the same build as the individual in the surveillance footage from the LMA Building.

After being detained, the defendant was transported to the BRPD for questioning. The defendant was informed of the homicide investigation. He was shown a photograph of Lee, but stated that he did not know her. Detective Boudreaux showed the defendant a photograph of the defendant's vehicle on the street, and defendant acknowledged that the vehicle was his. Further, the defendant said he was the only person who drove his vehicle and admitted to driving “around” on June 13, 2020. The defendant was wearing a knee brace on his right leg in the interview.

Detective Boudreaux testified while the defendant was being interviewed, law enforcement searched his house where people were present inside the residence, including a woman named Samantha Washington. During the search, law enforcement collected two cell phones, a loaded nine-millimeter handgun, cocaine, syringes, and gas cans. A search was also conducted of the defendant's vehicle, which yielded no relevant evidence. Detective Boudreaux acknowledged there was no proof of any relationship or connection between the defendant and Lee, no phone calls or texts were found to have been exchanged between them, and the tire tread marks were not matched to the defendant's vehicle. Further, the defendant's DNA was not found in Lee's house, nor was Lee's DNA found in the defendant's house. Detective Boudreaux stated that he obtained Lee's telephone records and determined that the last time Lee used her cellular phone to make a call was between 10:00 a.m. and 11:00 a.m. Considering these facts, Detective Boudreaux opined that the defendant encountered Lee later in the day, killed her in an unknown location, and then transported her in his vehicle to the field. However, Detective Boudreaux acknowledged there was no physical evidence to corroborate this theory.

David Robbins, the employer of Lee's boyfriend, Corey Dowels, was called to testify at trial. Robbins testified that Dowels worked for him as an arborist and that they were on a job on June 13, 2020, at a house in White Oaks Landing. Robbins arrived at 8:00 a.m. and Dowels arrived between 9:00 a.m. to 10:00 a.m. on the day she was killed. Robbins indicated that he left the job site between 3:00 p.m. and 4:00 p.m., but he did not know when Dowels left. However, Robbins stated that he knew Dowels did not leave until the job was completed because Dowels’ job was to climb the trees being trimmed.

Dr. William Beau Clark, the coroner for East Baton Rouge Parish, was qualified as an expert in emergency medicine and testified regarding the autopsy performed by Dr. Karen F. Ross, a forensic pathologist. According to Dr. Clark, the cause of Lee's death was two gunshots to the head, with one projectile recovered during the autopsy. Lee's post-mortem toxicology screen revealed a number of drugs, including alprazolam, fentanyl, and marijuana. While Dr. Clark testified the levels of drugs in Lee's system were consistent with overdose levels, the hemorrhages along the paths of the gunshot wounds meant Lee was alive when she was shot. Dr. Clark's office could not determine the precise time of death.

Rusty Day, accepted as an expert in firearms identification, testified he conducted a test fire with the firearm seized from the defendant's house and compared those bullets to a projectile collected from Lee's body during the autopsy. When the State asked Day, “[A]re you one hundred percent certain as you sit in court today that this bullet came from this firearm[,]” he replied, “Yes, ma'am.”

Lieutenant Stewart processed the defendant's vehicle for the presence of blood, and all tests were negative. Additionally, floor mats and moving cloths found in the vehicle were collected and sent to the crime lab for testing, which yielded negative results for the presence of blood. Lieutenant Stewart also lifted fingerprints from the defendant's vehicle and sent them for analysis.

Emily Rabb, an analyst with the Louisiana State Police Crime Lab who was accepted as an expert in fingerprint identification, testified she conducted a fingerprint analysis of thirty-three lifted prints and, of those, twenty-five prints were suitable for comparison. Rabb excluded Lee from nine prints and the remaining prints were inconclusive. Rabb confirmed there were no prints from Lee found in the defendant's vehicle.

Detective Boudreaux instructed the coroner's office to complete a sexual assault kit during Lee's autopsy. Lisa Barrett from the Louisiana State Police Crime Lab was accepted as an expert in DNA screening and analysis. She testified that she analyzed the sexual assault kit swabs by performing three tests used to detect the presence of sperm: (1) an acid phosphate test; (2) a test for P30 protein; and (3) a visual inspection looking for swimmers. The vaginal, anal, and oral swabs tested positive for acid phosphate but negative for P30 protein. Further, no sperm was seen. Barrett then did an extraction for DNA on the samples.

Stacy Williams from the Louisiana State Police Crime Lab was qualified as an expert in DNA analysis.⁵ Initially, Williams conducted Y-chromosome Short Tandem Repeat (YSTR) testing on Lee's vagina! swab, which contained the highest quantity of DNA, from the sexual assault kit. Williams testified that because there was an insufficient amount of male DNA for Short Tandem Repeat (STR) analysis of the swabs taken from Lee's sexual assault kit, YSTR testing was used as it targets only the Y chromosome in male DNA. The results of the YSTR testing of Lee's vaginal swab showed that the defendant and all males from his paternal lineage could not be excluded as the contributor of the male DNA. Williams further testified Lee's DNA was not found in the defendant's vehicle nor was there any testable DNA found on the firearm seized from the defendant's house.

Williams explained that after a program called TrueAllele was incorporated into the crime lab, she had the opportunity to “revisit” some of the evidence.⁶ The swabs taken from Lee's ankles had the highest quantity of DNA, and therefore Williams used TrueAllele to analyze those samples. Williams testified the DNA from the swab of Lee's left ankle was a mixture of three contributors, but no other conclusion could be made due to the limited nature of the sample. Williams explained since there were three contributors and a low amount of DNA, it was impossible to completely isolate the three DNA profiles from the sample. The TrueAllele results, however, showed it was 47.8 billion times more likely the defendant's DNA was a contributor to the three-person mixture of DNA found on Lee's left ankle, and 1.37 billion times more likely the defendant's DNA was a contributor to the mixture of DNA on Lee's right ankle. The defendant was determined to be the “prevalent contributor” in both samples.

Michael Pezzelle, a retired police officer, was accepted as an expert in call detail records analytics. Pezzelle testified he was given cell phone data extracted from the phones of Lee, Dowels (Lee's boyfriend), and the defendant. Pezzelle mapped the cell phone usage according to the cell tower utilized, but acknowledged he could not say for certain the exact location of any given phone within the cell tower range. Pezzelle stated that the last outgoing activity on Lee's phone was at 9:50 a.m., and all incoming activity after that time appeared to route to voicemail. Pezzelle concluded that Lee's phone was likely moving by foot between 10:30 a.m. and 11:00 a.m. Pezzelle testified that both Lee and defendant's phones were in the same general area along Plank Road around 11:46 a.m. Pezzelle explained that in evaluating the phone records, he found several occasions during the day in question that Lee and defendant's phones were “co-located.” Pezzelle testified that Lee's phone moved south from the Plank Road area to the Spanish Town area at approximately 1:46 p.m. According to Pezzelle, at 5:10 p.m., Lee and defendant's phones both moved toward the LSU campus and then moved to the Mississippi River Bridge. Pezzelle stated that he believed the phones were traveling together at that point in time. Pezzelle explained that at 6:54 p.m., Lee's phone remained stationary near the Mississippi River bridge and defendant's phone began moving away from the area. Pezzelle testified Lee's phone was last connected to a network at 7:30 p.m. near the Mississippi River Bridge. Pezzelle admitted that there are a number of different factors that could cause a phone to no longer connect to a network, including that it was turned off, powered down, or physically damaged.

On appeal, the defendant argues the State failed to prove he committed the homicide as there was no known connection between defendant and Lee. The defendant asserts the State failed to prove he was the man seen on foot leaving the field after the fire was set, and he notes there were no eyewitnesses who saw him with Lee, no phone records proving they were together, and no forensic evidence that placed him with Lee. The defendant contends the circumstantial evidence failed to exclude every reasonable hypothesis of innocence, specifically that someone else murdered Lee.

Motive is not an element of the crime. Why the defendant chose to kill Lee, with whom he had no determinable connection, is of no consequence so long as the State can prove the defendant killed her with the specific intent to kill or to inflict great bodily harm. The only hypothesis of innocence advanced by the defendant on appeal is the same hypothesis offered at trial, that someone else killed Lee. Given the guilty verdict returned in this case, the jury clearly rejected this hypothesis, leaving this court to evaluate only whether the jury's rejection was reasonable. We find that it was.

Louisiana Revised Statutes 15:438 does not establish a stricter standard of review than the more general rational juror's reasonable doubt formula enunciated by Jackson; rather, the circumstantial evidence rule serves as a helpful evidentiary guide for jurors. State v. Major, 2003-3522 (La. 12/1/04), 888 So.2d 798, 801. The requirement that jurors reasonably reject the hypothesis of innocence advanced by the defendant in a case of circumstantial evidence presupposes that a rational rejection of that hypothesis is based on the evidence presented, not mere speculation. See State v. Quinn, 2019-00647 (La. 9/9/20), 340 So.3d 829, 834, cert. denied, ––– U.S. ––––, 141 S.Ct. 1406, 209 L.Ed.2d 139 (2021); see also State v. Schwander, 345 So.2d 1173, 1175 (La. 1977). The Jackson standard does not allow an appellate court to substitute its own appreciation of the facts for that of the factfinder. State v. Crawford, 2014-2153 (La. 11/16/16), 218 So.3d 13, 26. It is not the province of the reviewing court to assess witness credibility or reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442, 443. In State v. Davis, 92-1623 (La. 5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 LEd.2d 359 (1994), the supreme court explained:

In circumstantial evidence cases, this court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, this court, evaluating the evidence in the light most favorable to the prosecution, determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). LSA-R.S. 15:438; State v. Captville, 448 So.2d 676, 678 (La. 1984); State v. Rosiere, 488 So.2d 965 (La. 1986).

A rational trier of fact could find from the evidence presented that the defendant shot Lee twice in the head, and from that evidence, that the defendant had the specific intent to kill or to inflict great bodily harm. The scenario presented by the defense involving misidentification was possible, but not so probable that a rational juror would necessarily have a reasonable doubt as to the defendant's guilt. See State v. Trahan, 2011-1609 (La. 7/2/12), 97 So.3d 994, 999-1000 (per curiam).

While the defendant argues the police “immediately zeroed in on” him as a suspect after seeing his vehicle near the field where Lee's body was discovered, Detective Boudreaux testified he continued working the case even after the defendant was arrested. The defendant's vehicle was searched and processed; a forensic search was conducted on the defendant's cell phone; Dowels, Lee's live-in boyfriend, was interviewed and provided a DNA sample; and the last person to speak to Lee on her cell phone was interviewed. Detective Boudreaux testified the vehicle in the surveillance footage had the same distinctive characteristics as the vehicle owned by the defendant. He observed the vehicle parked at the defendant's residence, and the defendant drove the vehicle to the neighborhood grocery store the day he was detained by police. Detective Boudreaux testified that he observed the defendant to have a similar appearance as the individual in the video surveillance footage. Detective Boudreaux also opined that based upon his observations, both the defendant and the individual appearing in the surveillance footage walked with a limp and appeared to be slightly bow-legged.

Rusty Day testified bullets fired from the firearm seized from the defendant's house matched the projectile recovered from Lee's head during the autopsy. A sexual assault kit was also collected during the autopsy and was analyzed at the crime lab. Williams testified that YSTR analysis on DNA samples targets the male DNA only and that the YSTR profile would be the same in a male's paternal lineage. While it is possible that another male from the defendant's paternal lineage was the contributor to the sample taken from Lee's vaginal swab, based on totality of the evidence submitted at trial, it is highly unlikely.

An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). After a thorough review of the record, we are convinced a rational trier of fact, viewing the evidence in the light most favorable to the State, could find the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant's identity as the perpetrator. Accordingly, this assignment of error lacks merit.

ASSIGNMENTS OF ERROR TWO AND THREE

In his second assignment of error, the defendant argues the trial court erred in accepting Stacy Williams as an expert in TrueAllele technology. In assignment of error three, the defendant argues the trial court failed its gatekeeping function by not holding a Daubert hearing to determine the admissibility of the TrueAllele report. The defendant also argues the trial court failed to meaningfully engage in an assessment of Williams’ knowledge, skill, experience, training, or education as required for expert qualification under LSA-C.E. art. 702.

Preliminary questions concerning the competency or qualification of a person to be a witness or the admissibility of evidence shall be determined by the trial court. See LSA-C.E. art. 104(A). At the time of trial, LSA-C.E. art. 702 provided, in pertinent part:⁷

(1) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(2) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(3) The testimony is based on sufficient facts or data;

(4) The testimony is the product of reliable principles and methods; and

(5) The expert has reliably applied the principles and methods to the facts of the case.

Expert testimony, as generally with other evidence, is subject to the balancing test of LSA-C.E. art. 403. See Comment (f) to Article 702. Relevant evidence is evidence which tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence that is not relevant is not admissible. See LSA-C.E. art. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time. LSA-C.E. art. 403.

Generally, the test of competency of an expert is the expert's knowledge of the subject about which he is called upon to express an opinion. A combination of specialized training, work experience, and practical application of the expert's knowledge can combine to demonstrate that the person is an expert; a person may qualify as an expert based upon experience alone. Once an expert has been found qualified, the trier of fact is entitled to assess credibility and accept or reject the opinion of the expert in light of the expert's qualifications and the facts that form the basis of his or her opinion. The trial court is vested with wide discretion in determining the competence of an expert witness, and its ruling on the qualification of the witness will not be disturbed absent an abuse of discretion. State v. Sturdivant, 2023-1193 (La.App. 1 Cir. 9/26/24), 405 So.3d 756, 760; see also Comment (d) to LSA-C.E. art. 702 (“Broad discretion should be accorded the trial judge in his determination as to whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert.”).

In State v. Foret, 628 So.2d 1116, 1123 (La. 1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony. Under the adopted standard, the trial court is required to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 2002-1188 (La. 5/20/03), 846 So.2d 697, 700-01. To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Louisiana Supreme Court suggested the following general observations set forth in Daubert are appropriate: (1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the methodology is generally accepted by the relevant scientific community. Chauvin, 846 So.2d at 701.

Thus, Louisiana has adopted Daubert's requirement that in order for technical or scientific expert testimony to be admissible under LSA-C.E. art. 702, the scientific evidence must rise to a threshold level of reliability. Chauvin, 846 So.2d at 701; Foret, 628 So.2d at 1123. Daubert's general “gatekeeping” applies not only to testimony based upon “scientific” knowledge, but also to testimony based on “technical” and “other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226, 234. The trial court may consider one or more of the four Daubert factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Kumho Tire, 526 U.S. at 141, 119 S.Ct. at 1171. Rather, the law grants a trial court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations. Id., 526 U.S. at 142, 119 S.Ct. at 1171.

In this case, the State filed a notice of intent to use a DNA expert at trial on April 19, 2022. The notice provided as follows: “Stacy Williams's testimony will be based on the evidence collected and submitted to the Louisiana State Crime Laboratory involving DNA Analysis and the report done based on her examination. The State seeks to have her qualified as an expert in DNA analysis.” Her attached resume detailed her education, experience, professional affiliations, and trainings. Williams testified she had recently undergone training in TrueAllele technology, explaining she had watched videos, listened to lectures, took a competency test and written tests, and had completed her training in March 2022. Defense counsel stipulated to Williams being qualified as an expert in DNA analysis, but objected to qualifying her as an expert in DNA interpretation. Specifically, defense counsel argued: “She doesn't even have her proficiency test results back yet. This is a brand new type of system that she just started working with. This is going to be her first time testifying ever about it. And it's probably the first time she has ever used it in the case.”⁸ Defense counsel also argued that this violated the defendant's right to confrontation. The State argued that defense counsel did not raise that objection before trial while acknowledging the TrueAllele report was produced three days before trial. Defense counsel then noted that he had received the report only the Friday before trial and had “never seen anything like this before ․ I got it Friday ․ I'm just making the objection now.” The court overruled the objection.⁹

In challenging the trial court's ruling, the defendant notes Williams had never been qualified as an expert in TrueAllele before, there was no Daubert hearing, and the TrueAllele technology was new. However, there is no indication in the record the defendant requested a Daubert hearing. Further, the defendant did not assert the lack of a Daubert hearing as grounds for his objection to Williams testifying as an expert, nor did he raise questions regarding methodology or reliability, instead only objecting on the grounds of her qualifications.

The purpose of a Daubert hearing is to determine the reliability of an expert's methodology, not whether the expert has the proper qualifications to testify. State v. Lamonica, 2009-1366 (La.App. 1 Cir. 7/29/10), 44 So.3d 895, 901, writ denied, 2010-2135 (La. 2/18/11), 57 So.3d 331. It is the responsibility of the opposing party to explore the factual basis for the opinion and, thus, determine its reliability. Leard v. Schenker, 2006-1116 (La. 6/16/06), 931 So.2d 355, 357 (per curiam). When the objecting party fails to request an evidentiary “gatekeeping” hearing under the rationale of Daubert, his objections to the admissibility of an expert witness's testimony under Daubert are not preserved for appeal. Harris v. State ex rel. Dept of Transp. and Development, 2007-1566 (La.App. 1 Cir. 11/10/08), 997 So.2d 849, 868, writ denied, 2008-2886 (La. 2/6/09), 999 So.2d 785. Accordingly, the defendant's failure to move for a Daubert hearing or object on the grounds of a lack thereof results in a waiver of those issues on appeal. See State v. Lofton, 2008-0747 (La.App. 1 Cir. 9/12/08), 2008 WL 4190572, *3 (unpublished), writ denied, 2008-2661 (La. 5/22/09), 9 So.3d 140; see also LSA-C.E. art. 103(A)(1); LSA-C.Cr.P. art. 841.

Moreover, given Williams’ education, training, and experience in DNA analysis, we find the trial court did not abuse its discretion in qualifying her as an expert witness and allowing her to testify on the evidence at issue at trial. Under LSA-C.E. art. 702, Williams’ specialized knowledge and experience was sufficient to qualify her to testify as an expert in the tendered field. Accordingly, these assignments of error are without merit.

ASSIGNMENT OF ERROR FOUR

In his fourth assignment of error, the defendant contends his Fifth Amendment right to remain silent was violated when the jury viewed the recorded statement he made to the police. We find this argument was not preserved for review.

After he was brought to the police station on June 17, 2020, the defendant provided a statement to law enforcement and answered the detective's questions for several minutes before stating: “I don't know her, I didn't do anything, and so being this is a homicide, I ain't got too much else to say. So, I'm just gonna keep my mouth shut.” The defendant later stated, “No, what I'm saying is this is a homicide, and it's best for me to just keep my mouth closed.”

Prior to trial, the State filed a notice to use the defendant's statement at trial. The defendant filed a motion to suppress his statement, arguing he was detained without probable cause and, thus, evidence obtained from his statement was fruit of the poisonous tree. The motion did not allege his statement should be suppressed as a result of his invocation of his right to remain silent nor did defense counsel make that specific argument at the motion to suppress hearing. The trial court denied the motion to suppress, and this court denied his writ application seeking supervisory review of the ruling. State v. Powell, 2021-0831 (La.App. 1 Cir. 10/12/21), 2021 WL 4740932 (unpublished), writ denied, 2021-01692 (La. 1/12/22), 330 So.3d 621.

On appeal, the defendant relies on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), to argue his constitutional rights were violated by the jury's viewing of his statement in which he invoked his right to remain silent. We find, however, the U.S. Supreme Court's holding in Doyle has no application to this case. In Doyle, the U.S. Supreme Court held that a defendant's right to due process is violated when a prosecutor impeaches a defendant's exculpatory story, told for the first time at trial, by cross-examining him about his failure to have told the story after receiving Miranda warnings at the time of his arrest. Doyle, 426 U.S. at 619, 96 S.Ct. at 2245. Use of a defendant's post-arrest silence in such manner violates due process. Id. The defendant herein did not testify at trial, and the use of his statement was not used to impeach him.

Rather, we find the defendant is actually challenging the admissibility of his statement. A new basis or ground for the motion to suppress cannot be articulated for the first time on appeal. State v. Howard, 2018-0317 (La.App. 1 Cir. 9/21/18), 258 So.3d 66, 81, writ denied, 2018-1650 (La. 5/6/19), 269 So.3d 692. Moreover, there was no objection lodged by the defendant when the recorded statement was played for the jury at trial. Under LSA-C.Cr.P. art. 841(A), a contemporaneous objection is required to preserve an error for appellate review. The purpose of the contemporaneous objection rule is to allow the trial judge the opportunity to rule on the objection and thereby prevent or cure an error. State v. Kitts, 2017-0777 (La.App. 1 Cir. 5/10/18), 250 So.3d 939, 960. Irregularities or errors cannot be availed of on appeal if they are not objected to at the time of the occurrence.¹⁰ State v. Lampley, 2018-0402 (La.App. 1 Cir. 11/2/18), 265 So.3d 799, 813, writ denied, 2018-1965 (La. 4/8/19), 267 So.3d 612. Accordingly, we find that because the defendant did not object at the time of the alleged error, this assignment of error is not preserved for appellate review.

ASSIGNMENT OF ERROR FIVE

In his fifth assignment of error, the defendant argues the trial court erred in granting the State's challenges for cause of three prospective jurors. Because the State used eleven peremptory challenges, the defendant asserts the trial court's erroneous rulings effectively provided the State with more peremptory challenges than allowed by law.¹¹

Louisiana Code of Criminal Procedure article 800(B) provides: “The erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.” The State or the defendant may challenge a juror for cause on the ground that he is not impartial, whatever the cause of his partiality; however, a juror's opinion or impression as to the guilt or innocence of the defendant is not itself sufficient ground of challenge, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence. See LSA-C.Cr.P. art. 797(2). Additionally, the State or the defendant may challenge a juror for cause on the ground that he will not accept the law as given to him by the court. See LSA-C.Cr.P. art. 797(4).

A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. A trial court is accorded great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion. State v. Clemmons, 2014-1372 (La.App. 1 Cir. 9/21/15), 2015 WL 5546953, *7 (unpublished), writ denied, 2015-1969 (La. 11/18/16), 213 So.3d 385.

The record reflects the State utilized eleven peremptory challenges. Therefore, to show reversible error, the defendant must prove the trial court erroneously excused two or more jurors for cause.

 Prospective Juror Rachel Lew

The first juror at issue is Rachel Levy, who was on the first panel of prospective jurors. Levy indicated she “might” have a problem with the defendant not testifying because she “would like to see his side of the story.” When defense counsel asked for reasons why a defendant might not testify, Levy said a guilty person would not want to incriminate himself and a person might feel his testimony would not make a difference at trial. Later, Levy was again asked if she would hold it against the defendant if he decided not to testily, and she answered: “Yes and no.” Levy said she understood defense counsel's points but still wanted to hear the defendant's side of the story, though she would “be able to get past it” if he did not testify. The State challenged Levy for cause, and the trial court granted the challenge for cause without objection.¹²

As the defendant acknowledges on appeal, he did not lodge an objection to the trial court's ruling. As such, he does not have the right to question this ruling on appeal. Louisiana Code of Criminal Procedure article 841(A) provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” The record reflects that defense counsel failed to object after the court granted the State's challenge for cause as to Levy. Thus, by failing to contemporaneously object to the trial court's granting of the challenge for cause, the defendant waived any claims on appeal regarding the challenge at issue. See State v. Todd, 2009-0430 (La.App. 1 Cir. 9/11/09), 2009 WL 3155090, *1 (unpublished), writ denied, 2009-2170 (La. 4/9/10), 31 So.3d 380.

 Prospective Juror Madelyn Redmond

The next prospective juror at issue is Madelyn Redmond, who sat on the second panel of prospective jurors. When asked if she could be a fair and impartial juror, Redmond stated her reluctance to convict absent “a hundred percent certainty that someone is guilty.” After the judge stated “that the law doesn't require one hundred percent certainty[,]” Redmond responded she would still require one hundred percent certainty “[f]or something like this,” and said it would be hard for her knowing a conviction would result in a life sentence. Later, when the panel was discussing motive and premeditation, Redmond indicated she would need to know why the crime was committed. Defense counsel explained that the oath jurors take requires them to apply the law as instructed by the court and questioned Redmond as follows:

Q. So the question I have for you, Ms. Redmond, is that if you are selected to be on this final -- this final venire, final jury would you uphold that oath?

A. I mean, yes.

Q. By the law.

A. I would have to, but I would not - I don't think I would be able to lay my head down at night until I would know like a hundred percent sure. But if I had to do it I could do it.

Q. Okay.

A. But not at the expense of me thinking well[,] what if I was wrong.

The State challenged Redmond for cause, arguing that she needed evidence of motive and premeditation to convict and that she required the State to meet a higher burden of proof than provided by law. Defense counsel contended Redmond was rehabilitated as reflected by her promise to uphold the juror's oath and argued her answers seemed to indicate she did not want to serve on the jury. The trial court granted the challenge for cause, and defense counsel objected to the ruling.

We find no abuse of discretion in the trial court's ruling. Redmond indicated she would not, or could not, accept the standard of proof beyond a reasonable doubt and would instead require the State to prove beyond any doubt. We disagree with the defendant that Redmond was rehabilitated in the colloquy referenced above. She never abandoned her original position that she would not convict absent one hundred percent certainty. Redmond stated she would follow the law as provided by the court and would uphold her oath as a juror, but her answers were never unconditional or unqualified. Upon reviewing the voir dire in its entirety, we find the trial court did not abuse its discretion in granting the State's challenge for cause of Redmond.

 Prospective Juror James McKisson

The final prospective juror at issue is James McKisson, who sat on the third panel of prospective jurors. McKisson also expressed difficulty with the reasonable doubt standard when asked if anything prevented him from being fair and impartial. Specifically, McKisson opined the standard was “too lax” and he would need to know that the defendant “hundred percent did it.” McKisson told the prosecutor he thought the analogies used by the State to explain the legal principles were not representative of the seriousness of the case. When asked if he would be a good fit for the case, McKisson said he did not know. Later, the following colloquy occurred between the State and McKisson:

Q. As we keep talking I keep hearing you say get to that hundred percent. Do you feel like you need that from us to be able to convict?

A. It would be helpful.

Q. Well, you keep bringing it up like you need that, and I want to make sure that you understand the burden of proof that we have to do. It is not beyond all certainty.

A. Right.

Q. But you keep bringing up that you need that in the way that your brain works. Do you feel like this is not something that maybe is - that you can adhere to?

A. I mean -

Q. Because of those wants. I mean, it is nothing embarrassing about it.

A. Right. I mean, I guess in that case I would prefer it. I don't -- I don't know a hundred percent if I could - I don't know if I can say myself if 98 percent would be good enough, or you know, oh, well, 75 percent, yeah, now I have to assume the other 25 percent. So there is, in my mind, there is a 25 percent chance that he didn't do it. So that's - I guess that goes -- I guess that brings up the whole topic of a hundred percent. I guess in my mind I do need the hundred percent.

Q. Okay.

A. Because it sounds like I just keep bringing up numbers, and that's what the judge said no when I was like, well, I just keep doing it and

Q. Well, proof beyond all doubt.

A. Right.

Q. Proof beyond an absolute certainty. What you are describing what you would want is that in some way?

A. Uh-huh.

Defense counsel attempted to rehabilitate McKisson, and McKisson agreed he was upset because it sounded as though the State was “going to take the day off” without proving their case. The State challenged McKisson for cause, arguing his responses to its questions were to the point of being antagonistic and belligerent and he refused to accept the standard of proof. The trial court, in granting the cause challenge, remarked McKisson was combative and the court was concerned he might have adopted an inherent position due to the disagreement. Defense counsel objected.

Reviewing the transcript of voir dire as a whole, we find the trial court did not abuse its discretion in granting the State's challenge for cause of McKisson. We must give deference to the trial court's firsthand observations of McKisson's tone of voice, body language, facial expression, eye contact, and attention. The trial court had the benefit of observing McKisson's demeanor and hearing his responses firsthand and was in a better position to determine whether he could be impartial in this case. See State v. Dorsey, 2010-0216 (La. 9/7/11), 74 So.3d 603, 625, cert. denied, 566 U.S. 930, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012). Based upon the totality of the circumstances, we find the trial court properly granted the State's challenge for cause of McKisson because of his stated difficulty rendering an impartial verdict according to the law and evidence and the combative nature of his responses during voir dire. See LSA-C.Cr.P. art. 797(2). Furthermore, even if the trial court's ruling on this challenge for cause was erroneous, any such error is not reversible. The erroneous allowance to the State of a challenge for cause does not afford the defendant a ground for complaint unless the effect of such ruling is the exercise by the State of more peremptory challenges than the number to which it is entitled by law. LSA-C.Cr.P. art. 800(B); State v. Thomas, 589 So.2d 555, 566 (La.App. 1 Cir. 1991).

Accordingly, we find the trial court did not err in granting the State's challenges for cause of Redmond and McKisson, and the defendant's argument regarding Levy was not preserved for review. This assignment of error is meritless.

ASSIGNMENT OF ERROR SIX

In his sixth assignment of error, the defendant argues the trial court erred in denying his motion for new trial, which was based on the exclusion of jurors with felony convictions from serving on his jury.

The grounds for a new trial are set forth in LSA-C.Cr.P. art. 851, in pertinent part, as:

A. The motion for a 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 upon what allegations it is grounded.

B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:

* * *

(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.

The denial of a motion for a new trial is not subject to appellate or supervisory review except for error of law. LSA-C.Cr.P. art. 858. The decision on a motion for new trial rests within the sound discretion of the trial judge. We will not disturb this ruling on appeal absent a clear showing of abuse. The merits of such a motion must be viewed with extreme caution in the interest of preserving the finality of judgments. Generally, a motion for new trial will be denied unless injustice has been done. See LSA-C.Cr.P. art. 851; State v. Austin, 2011-2150 (La.App. 1 Cir. 6/8/12), 2012 WL 2061531, *7 (unpublished), writ denied, 2012-1595 (La. 2/8/13), 108 So.3d 77.

Louisiana Code of Criminal Procedure article 401 sets forth general juror qualifications with regard to citizenship, residence, age, ability, and criminal history. Prior to its amendment in 2021, LSA-C.Cr.P. art. 401(A)(5) provided that, to qualify to serve as a juror, a person must “[n]ot be under indictment for a felony nor have been convicted of a felony for which he has not been pardoned by the governor.” See Acts 2023, No. 438, § 1. The Article was amended in August 2021 to provide, in pertinent part:

A. In order to qualify to serve as a juror, a person shall meet all of the following requirements:

* * *

(5) Not be under indictment, incarcerated under an order of imprisonment, or on probation or parole for a felony offense within the five-year period immediately preceding the person's jury service.

LSA-C.Cr.P. art. 401(A)(5); see Acts 2021, No. 121, § 1.

The defendant filed a motion for new trial, challenging the composition of the jury venire and specifically alleging the 19th Judicial District Court: (1) failed to notify affected persons of their right to serve in a jury pool; and (2) failed to amend its jury qualification questionnaire to determine whether a person meets the eligibility requirement. Therefore, according to the defendant, the jury was improperly drawn, and his constitutional right to an impartial trial was violated. He asserted a new trial was mandated by LSA-C.Cr.P. art. 851(B)(4) as this error was not, and could not have been with reasonable diligence, discovered prior to the verdict.¹³

At a hearing on the motion for new trial, the defendant called Mona Collins, the jury coordinator for the 19th Judicial District Court, to testify. Collins testified she mailed questionnaires to potential jurors before summoning those qualified. According to Collins, if a person indicated on the questionnaire that they were not qualified under LSA-C.Cr.P. art. 401, she would disqualify them. The State and defense stipulated that the juror questionnaire used in August 2022 quoted the old version of LSA-C.Cr.P. art. 401(A)(5). See Acts 2010, No. 438, § 1. Following extensive argument, the trial court denied the motion for new trial based in part on the defendant's failure to file a motion to quash prior to trial.

On appeal, the defendant argues the clerk's systemic exclusion of convicted felons who are otherwise allowed by LSA-C.Cr.P. art. 401(A)(5) to serve as jurors infringed upon his Sixth Amendment right to a trial by an impartial jury, and specifically was in violation of the requirement that a jury must be from a representative cross-section of the community. In opposition, the State argues the defendant's motion was legally deficient because he failed to set forth a prima facie violation of the Sixth Amendment's cross-section requirement. Therefore, according to the State, the defendant's motion was properly denied.

The proper procedural vehicle for alleging that the general or petit jury venire was improperly drawn, selected, or constituted is a motion to quash. LSA-C.Cr.P. art. 532(9). A motion to quash based on the ground that the petit jury venire was unconstitutionally drawn should be filed in writing prior to the beginning of the jury selection. See LSA-C.Cr.P. arts. 521, 532(9), and 535(C); see also State v. Smith, 2017-1333 (La.App. 1 Cir. 2/21/18), 2018 WL 1007350, *4 (unpublished), writ denied, 2018-0405 (La. 2/18/19), 265 So.3d 771. A defendant who does not file a motion to quash on the ground the jury venire was improperly drawn, selected, or constituted in accordance with the timeliness and form requirements set forth in the Louisiana Code of Criminal Procedure waives his objection. State v. Tipton, 2024-0078 (La.App. 1 Cir. 12/10/24), 404 So.3d 730, 734; see also State v. Brown, 2016-0998 (La. 1/28/22), 347 So.3d 745, 798, cert. denied, ––– U.S. ––––, 143 S.Ct. 886, 215 L.Ed.2d 404 (2023).

The record shows the defendant did not move to quash the petit jury venire by oral or written motion nor did he object to convicted felons being excluded from the venire. Therefore, we find the defendant failed to properly raise his challenge to the jury venire's composition. Thus, any potential grounds for a motion were waived. See LSAC.Cr.P. art. 535(D); Tipton, 404 So.3d at 734. This assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we find that all six of the defendant's assignments of error lack merit. Accordingly, we hereby affirm the defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

I concur with the majority opinion. I write separately to address the defendant's arguments that the trial court erred in accepting Stacy Williams as an expert in TrueAllele technology and failed in its gatekeeping function by not holding a Daubert hearing to determine the admissibility of the TrueAllele report.

Regarding Ms. Williams’ qualifications, the record shows that she completed her TrueAllele training in March of 2022, approximately five months before the defendant's trial. As of August 12, 2022, the day she testified at trial, Ms. Williams had not yet received the results of her TrueAllele proficiency test and she had never testified as an expert about TrueAllele technology in an actual case. Her supervisor, Paul Berry, testified that he had received notice the week before trial that Ms. Williams passed the proficiency test but he had not yet told her. Under these circumstances, I question the trial court's qualification of Ms. Williams as an expert in TrueAllele technology; however, under this Court's applicable standard of review, I cannot say the trial court abused its wide discretion in determining Ms. Williams’ competence as such.

Regarding the lack of a Daubert hearing regarding the admissibility of the TrueAllele report, I am constrained to concur with the majority's conclusion that the defense's failure to move for a Daubert hearing resulted in a waiver of that issue on appeal. Despite the State's continuing duty under La. C.Cr.P. art. 729.3 to prompt/y disclose discoverable evidence, when the State produces incredibly inculpatory and potentially unreliable evidence at the eleventh-hour, it appears the State has no duty to prove its reliability. Rather, under caselaw cited by the majority, it appears it is the defendant's obligation to challenge the reliability of the evidence by specifically moving for a Daubert hearing or a continuance, and, if he fails to do so, the issue is waived on appeal.

In this case, the State produced the damaging TrueAllele report to the defense on the Friday before the start of trial on Monday. When Ms. Williams testified at trial, defense counsel objected to the admissibility of the TrueAllele report, because he had never seen TrueAllele technology before and would have no opportunity to cross-examine a representative from Cybergenetics, the company that developed the TrueAllele software. Notably, the trial court acknowledged that the State's late disclosure of the report made it “difficult if not impossible at this junction” for the defense to call its own expert, but the trial court overruled the defense's objection, accepted Ms. Williams as an expert in DNA analysis, and allowed her to testify as to the TrueAllele report results. Arguably, this could be characterized as trial by ambush. However, because the defense could have filed a motion for a Daubert hearing or continuance before Ms. Williams testified, and failed to do so, he apparently waived the issue for appeal.

FOOTNOTES

1.   The transcript reveals that the trial court did not specify the sentence was to be served at hard labor but, rather, committed the defendant to the Department of Corrections. It is well-settled that a sentence committing a prisoner to the Department of Corrections is necessarily at hard labor. State v. Lawson, 2004-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 621 n.2; see also Rochon v. Blackburn, 97-2799 (La.App. 1 Cir. 12/28/98), 727 So.2d 602, 604. Thus, no corrective action is warranted.

2.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3.   The surveillance footage was compiled and admitted into evidence at trial.

4.   Detective Boudreaux testified he observed very little traffic in the area because the LMA Building was closed on the day that Lee's body was found. He testified that he saw only one vehicle drive down the road leading to the field where Lee's body was burned - the defendant's vehicle.

5.   Although defendant argues the trial court erred in accepting Stacy Williams as an expert in TrueAllele technology, the record reflects that Williams was accepted as an expert in DNA analysis, not as an expert in TrueAllele.

6.   Unlike traditional DNA testing, TrueAllele is a “computer software program called probabilistic genotyping.”

7.   LSA-C.E. art. 702 was amended by Acts 2024, No. 88.

8.   Paul Berry, the forensic DNA technical leader for the Louisiana State Police Crime Lab, testified he received notice that Williams had passed the TrueAllele proficiency test the week prior to trial. However, he had not yet had the opportunity to tell Williams that she passed.

9.   We find nothing in the record to indicate that defense counsel requested a trial continuance in response to the TrueAllele report, which was not provided until the Friday before trial.

10.   If an alleged error is so significant that it violates a fundamental right, then to preserve the requirements of due process, the error is reviewable on appeal even absent a contemporaneous objection. See LSA-C.Cr.P. art. 920(2); State v. Arvie, 505 So.2d 44, 47 (La. 1987); State v. Howard, 2018-0317 (La.App. 1 Cir. 9/21/18), 258 So.3d 66, 84 n.8, writ denied, 2018-1650 (La. 5/6/19), 269 So.3d 692. To meet the exception to the contemporaneous objection requirement, the error must cast substantial doubt on the reliability of the fact-finding process. Howard, 258 So.3d at 84 n.8. That standard is not met here.

11.   In accordance with LSA-C.Cr.P. art. 799, “each defendant shall have twelve peremptory challenges, and the state twelve for each defendant” when the offense is punishable by death or necessarily by imprisonment at hard labor.

12.   The State challenged Levy for cause based on its argument that she would require the State to prove motive. The trial court agreed with the State, recalling Levy had trouble understanding the distinction between motive and intent and, further, that Levy would hold it against the defendant if he did not testify.

13.   During voir dire, the trial court made the following misstatements of law: “I need to ask some questions that were probably already asked of you downstairs, but I just want to make sure before we get going too far. First, to the group, and just raise your hand if you have a positive answer to this question. ․ Is anyone under indictment for a felony [or] having been convicted of a felony for which he or she has not been pardoned? No hands raised.” No objection was lodged by the defendant.

McCLENDON, C.J.

Greene, J. concurs with reasons. Stromberg, J. concurs for reasons assigned by Judge Greene.