STATE v. WESLEY (2026)

The defendant, Henderson Dwight Wesley, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty. The defendant was found guilty as charged, but the trial court granted the defendant's motion for new trial and set aside the verdict.¹ The State retried the defendant, and the second trial resulted in a mistrial. Following a third trial, the defendant was found guilty as charged by a unanimous jury verdict. The trial court sentenced the defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence.² The defendant now appeals, assigning error to the trial court's denial of his “reverse 404(B)” motion and motion to quash. For the following reasons, we affirm the conviction, amend the sentence, and affirm the sentence as amended.

STATEMENT OF FACTS

On October 8, 2014, Gene Butts went to the home of Ronald Chillis, Jr. (the victim) located in an area known as Four Corners in St. Mary Parish to purchase drugs.³ While Mr. Chillis and Mr. Butts were inside Mr. Chillis's trailer, two men walked down the lane toward Mr. Chillis's trailer. Mr. Butts eventually exited the trailer. When Mr. Butts made it to the driver's side of his vehicle, he bumped into one of the men. The other man, who went around the passenger side of Mr. Butts's vehicle, fired multiple gunshots through the front door of Mr. Chillis's trailer. Mr. Chillis was struck four times, and he died as a result of his injuries. The two men fled the scene on foot. Mr. Butts was not shot, and he remained at the scene. Mr. Butts identified Anthony “Jamal” Loston as the man who he bumped into at his vehicle and identified the defendant as the person who shot Mr. Chillis. Mr. Loston also named the defendant as the shooter.⁴

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the defendant contends the trial court erred in denying the defense's “reverse 404(B)” motion and in allowing the State to present evidence that days before trial the defendant had threatened a prison guard for not giving him an extra breakfast tray.⁵ He asserts he had a right to present his defense.

Constitutional Right to Present a Defense

A criminal defendant has the constitutional right to present a defense. U.S. Const. amends. VI and XIV; La. Const. art. I, § 16; Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). “Fundamental to due process of law is the right to present a defense, and to have it fairly considered by the jury. [E]videntiary rules must yield to the constitutional right to present a complete defense in some instances.” State v. Williams, 2019-00490 (La. 4/3/20), 340 So.3d 761, 765 (per curiam). (Citations omitted).

“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. This right is abridged by evidence rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve.” Id. at 765. (Citations and inner quotations omitted). Nevertheless, the right to present a defense does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Mosby, 595 So.2d 1135, 1138 (La. 1992); State v. Stockstill, 2023-1178 (La. App. 1st Cir. 10/11/24), 2024 WL 4750538, *6 (unpublished), writ denied, 2024-01387 (La. 4/1/25), 403 So.3d 1118.

Reverse 404B Evidence

The Louisiana Fifth Circuit Court of Appeal and federal appellate courts have held that a defendant may introduce evidence of a witness's crimes, wrongs, or acts in the same manner that the prosecution may seek to introduce such evidence, and they refer to this procedure as “reverse 404(B)” evidence. State v. Nguyen, 2025-312 (La. App. 5th Cir. 11/12/25), 427 So.3d 267, 282, writ denied, 2025-01475 (La. 5/12/26), 430 So.3d 1087, petition for cert. docketed, (U.S. July 6, 2026) (No. 26-19); see also United States v. Parrow, 172 F.4th 625, 629 (8th Cir. 2026) (under Fed. R. Evid. art. 404(b), defendant sought to introduce a defense witness's convictions). “In contrast to ordinary other crimes evidence, which is used to incriminate criminal defendants, ‘reverse 404(B)’ evidence is utilized to exonerate defendants.” United States v. Stevens, 935 F.2d 1380, 1402 (3d Cir. 1991). “Such evidence is most commonly introduced by a defendant to show that someone else committed a similar crime or series of crimes, implying that he or she also must have committed the crime in question.” United States v. Williams, 458 F.3d 312, 315-16 (3d Cir. 2006).

The same factors used to analyze 404(B) evidence offered against the defendant apply to reverse 404(B) evidence. Parrow, 172 F.4th at 630. Thus, to be admissible under Article 404(B), evidence of a witness's other bad act must meet two criteria: (1) it must be relevant to an issue other than the witness's character or propensity for criminal activity (which may include plan, knowledge, identity, etc.); and (2) its probative value must outweigh any prejudicial effect, contusion of the issues, misleading of the jury, or undue delay. See La. Code Evid. arts. 403 and 404; State v. Terrio, 2018-421 (La. App. 5th Cir. 8/7/18), 2018 WL 3748409, at *2 (unpublished). A trial court's ruling on the admissibility of other crimes evidence will not be disturbed absent a clear abuse of discretion. State v. Mosby, 595 So.2d 1135, 1139 (La. 1992).

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, the Louisiana Code of Evidence, or other legislation. Evidence which is not relevant is not admissible. La. Code Evid. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403.

Generally, courts may not admit evidence of other crimes for the purpose of proving a person's character or propensity for criminal activity. See La. Code Evid. art. 404(B)(1)(a); State v. Hartley, 2023-0698 (La. App. 1st Cir. 1/23/24), 2024 WL 242792, *4 (unpublished). However, other crimes evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. Code Evid. art. 404(B)(1)(a). The other crimes evidence must tend to prove a material fact genuinely at issue and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Brue, 2009-2281 (La. App. 1st Cir. 5/7/10), 2010 WL 1838383, *6 (unpublished), writ denied, 2010-1317 (La. 1/7/11), 52 So.3d 883.

Herein, the defendant sought to admit testimony from Mr. Loston's former girlfriend Jalicia Broussard and/or law enforcement of Mr. Loston's modus operandi of robbing drug dealers. Louisiana jurisprudence allows the use of other crimes evidence to show modus operandi (i.e., system) as it bears on the issue of identity. Brue, 2010 WL 1838383 at *8. To be admissible, the extraneous offense must meet several tests: (1) there must be clear and convincing evidence of the commission of the other crimes and the subject's connection therewith; (2) the modus operandi employed in both the charged and uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person; (3) the other crimes evidence must be substantially relevant for some other purpose than to show a probability that the subject committed the crime on trial because he is a man of criminal character; (4) the other crimes evidence must tend to prove a material fact genuinely at issue; and (5) the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. Id.

Defendant's Reverse 404(B) Motion

Herein, on the first day of his second trial, February 22, 2022, the defendant filed a “reverse 404(B)” motion requesting to introduce testimony regarding Mr. Loston's arrest for second degree murder and other offenses, stemming from the shooting death of Dominique Lewis in his home on November 5, 2021. In the motion, the defendant argued the Lewis murder would be used to show Mr. Loston's intent, motive, preparation, and plan. The defendant further argued the Lewis murder shows a pattern of conduct by Mr. Loston that established a signature crime. The defendant specifically stated there is competent evidence that Mr. Loston was involved in Mr. Chillis's murder at his home. Mr. Chillis was associated with Mr. Loston, and Mr. Chillis possibly knew Mr. Loston would be coming to his home to buy drugs. The defendant further noted that in the Lewis murder, Mr. Loston allegedly shot and killed Lewis in his home, and that Lewis also expected to meet with Mr. Loston at his home. The defendant argued these facts showed Mr. Loston had a pattern of shooting individuals that he had a relationship with in their homes.⁶

At a pretrial hearing, the State opposed the motion, arguing the defendant failed to meet the evidentiary standards for a “reverse 404(B)” motion. The State argued it failed to see the relevancy of the evidence the defendant sought to introduce and noted Mr. Loston admitted to being at the scene of the instant murder of Mr. Chillis. The defendant argued the evidence was necessary to present a defense to the instant murder.

The trial court denied the “reverse 404(B)” motion. The trial court found “that there has not been enough evidence under 404-B presented by the defense to show that this particular crime was committed.” The trial court noted Mr. Loston had not made an exculpatory statement regarding the 2021 murder. The trial court further noted the defendant failed to specify how he would show the evidence was reliable or trustworthy and pointed out it would conflict with Mr. Loston's privilege against self-incrimination.⁷

Following the February 2022 mistrial and the enrollment of new counsel, the defendant filed subsequent “reverse 404B” motions reasserting the issue. In the motions, the defendant indicated that Mr. Loston had been charged by grand jury indictment for the second degree murder of Dominique Lewis, obstruction of justice for tampering with evidence, and being a convicted felon in possession of a firearm. At a pretrial hearing on August 2, 2022, the defendant introduced Mr. Loston's statement from the Lewis murder, in which Mr. Loston indicated a drug deal was involved in that case. Defense counsel argued the defendant had a right to introduce evidence of Mr. Loston's involvement with the Lewis murder, as it consisted of a signature crime, showing Mr. Loston robs drug dealers. Defense counsel further argued that under La. Code Evid. art. 609.1 and the defendant's right to present a defense, he should be allowed to question Mr. Loston about his charges for the Lewis murder. The trial court again ruled the evidence inadmissible as “reverse 404(B)” evidence, finding the article inapplicable to a defendant seeking to admit other crimes evidence of a witness. However, the trial court noted that if Mr. Loston were to deviate from the testimony he previously presented in the 2017 trial, the court would allow limited evidence regarding Mr. Loston's 2021 arrest, charges stemming from the Lewis murder, and statements Mr. Loston made to Ms. Broussard.⁸

Before the instant trial, Ms. Broussard gave proffered testimony, testified in the presence of the jury at trial, and gave additional proffered testimony outside of the presence of the jury. At trial, in the presence of the jury, Ms. Broussard testified that Mr. Loston wanted to get drugs on the day of the instant murder. When confronted with text messages from Mr. Loston and asked if Mr. Loston wanted her to pay for the drugs, she testified, “I guess.” She further testified that the defendant and Mr. Loston left her house together that day, and that Mr. Loston later told her that the defendant had shot Mr. Chillis.⁹ Thereafter, on proffer only, Ms. Broussard confirmed she previously told police Mr. Loston sold drugs and had a “robbery thing going on with people.”

The defendant contends that most of the evidence indicated Mr. Loston was present and had a gun when Mr. Chillis was shot. The defendant points out that Mr. Loston was the person who gave the police his name and speculates that Mr. Loston told Mr. Butts to do the same. The defendant argues the proffered testimony was “strong evidence” that Mr. Loston was the actual shooter in this case “along with some tall man with dreadlocks.” The defendant further argues that not allowing the jury to hear about Mr. Loston's incarceration for subsequently shooting and killing a drug dealer during a robbery and from Ms. Broussard that Mr. Loston had a robbery thing going on with people “hamstrung” the defendant from presenting his defense.¹⁰

We find the evidence regarding Mr. Loston's charges from the Lewis murder pending at the time of the instant trial and unrelated to the instant case, would have had very little probative value regarding the instant murder.¹¹ The issue, as noted by the defense during the “reverse 404B” hearing, was the identity of the shooter. At the hearing, defense counsel asserted “I'm saying some other unknown — unknown individual that [Mr. Loston] was with, that he hasn't told the cops who it is, that's the murderer.” At trial, the defense theory of the case was Mr. Loston and some unknown tall, black, skinny guy with dreadlocks murdered Mr. Chillis. On appeal, the defendant has slightly shifted his argument by arguing that Mr. Loston committed the murder.¹² The evidence the defendant sought to introduce at trial was being used to show Mr. Loston had a propensity for robbing drug dealers; therefore, he murdered Mr. Chillis. It is undisputed that Mr. Loston was present during the murder of Mr. Chillis, so his identity is not an issue in this case. Therefore, the evidence which only establishes generic similarities between the murder of Mr. Chillis and the Lewis murder has very little probative value. See Williams, 458 F.3d at 314 (finding that the district court correctly excluded evidence of a co-perpetrator's prior conviction when the only purpose for which the defendant, who had been convicted of possession of a firearm by a felon, sought to introduce the co-perpetrator's prior conviction was to show that the co-perpetrator had a propensity to carry firearms).

We further find that any probative value of the evidence at issue was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. See La. Code Evid. art. 403; State v. Nixon, 2017-1582 (La. App. 1st Cir. 4/13/18), 250 So.3d 273, 284-85, writ denied, 2018-0770 (La. 11/14/18), 256 So.3d 290 (this court found no violation of the defendant's right to present a defense by the prohibition of testimony from a witness indicating a potential suspect, who was later eliminated, may have been charged with murder in another case). As the right to present a defense does not require the trial court to permit the introduction of evidence that has so little probative value it is substantially outweighed by other legitimate considerations in the administration of justice, we cannot say the trial court abused its discretion in denying the defendant's “reverse 404B” motion. See Mosby, 595 So.2d at 113 8.

Introduction of Other Crimes Evidence

The defendant also contends the trial court erred in allowing irrelevant and prejudicial other crimes evidence, consisting of testimony that the defendant threatened a prison deputy while incarcerated. Specifically, the defendant contests the admission of the testimony of prison deputy Raneka Clark, indicating the defendant threatened to kill her if she did not give him an extra breakfast tray, stating, “I'm about that life. I will kill you.” The defendant argues the testimony was only admitted to show his bad behavior in jail, was irrelevant, and was highly prejudicial.

We find the other crimes evidence was improperly admitted in this case. However, that does not end our inquiry since the erroneous admission of other crimes evidence is a trial error subject to harmless error analysis. See State v. Piper, 2018-1796 (La. App. 1st Cir. 9/27/19), 287 So.3d 13, 21. The test for determining whether an error is harmless is whether the verdict actually rendered in this case “was surely unattributable to the error.” Id. (citing Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182 (1993)). Considering the entirety of the evidence in this case, we find any possibility the jury was prejudiced by Deputy Clark's testimony would be so remote as to render the verdict surely unattributable to the testimony.

As stated, we find no clear abuse of discretion by the trial court in precluding character evidence of the State's witness, Mr. Loston. Further, even though the admission of Deputy Clark's testimony was erroneous, the error was harmless beyond a reasonable doubt. See State v. Marcel, 2015-1805 (La. App. 1st Cir. 6/3/16), 2016 WL 3126440, at 8, writ denied, 2016-1196 (La. 5/26/17), 221 So.3d 855; La. Code Crim. P. art. 921. Accordingly, we find assignment of error number one lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In assignment of error number two, the defendant argues the trial court erred in denying his motions to quash for “untimely prosecution” filed in August and October of 2020. The defendant notes the State had one year from the date the Louisiana Supreme Court denied the State's writ application following the trial court's ruling granting the defendant a new trial to commence retrial pursuant to La. Code Crim. P. art. 582. He contends that he did not initiate or benefit from any of the intervening delays.

A motion to quash is the proper vehicle to assert that the time limitation for the commencement of trial has expired. See La. Code Crim. P. art. 532(7). When a defendant brings an apparently meritorious motion to quash based on prescription, the State bears a heavy burden of demonstrating either an interruption or a suspension of the time limitation such that prescription will not have tolled. State v. Rome, 93-1221 (La. 1/14/94), 630 So.2d 1284, 1286; State v. Reed, 2016-1201 (La. App. 1 st Cir. 4/12/17), 218 So.3d 729, 731. The trial court cannot give the State “the benefit of the doubt,” on the issue of prescription but must require the State to prove suspension or interruption of the time delays if the prosecution takes place beyond the statutory delays. See State v. Morris, 99-3235 (La. 2/18/00), 755 So.2d 205 (per curiam).

When a trial court rules on a motion to quash, factual and credibility determinations should not be reversed on appeal in the absence of a clear abuse of the trial court's discretion. However, a trial court's legal findings are subject to a de novo standard of review. State v. Brooks, 2020-0454 (La. App. 1st Cir. 2/19/21), 320 So.3d419, 422.

Louisiana Code of Criminal Procedure article 578(A)(2) provides that no trial in a non-capital felony case shall be commenced after two years from the date of the institution of the prosecution. However, when a defendant obtains a new trial or there is a mistrial, the State must commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, or within the period established by Article 578, whichever is longer. La. Code Crim. P. art. 582(A). The period of limitation established by Article 582 shall be interrupted by any of the causes stated in Article 579. Where such interruption occurs, the State must commence the new trial within one year from the date the cause of interruption no longer exists. La. Code Crim. P. art. 583.

The prescriptive periods to commence trial may be interrupted, as noted above, or they may be suspended. An interruption of prescription occurs when a defendant cannot be tried because his presence for trial cannot be obtained by legal process, or for “any other cause beyond the control of the [S]tate[.]” La. Code Crim. P. art. 579(A)(2); see State v. Brown, 451 So.2d 1074, 1079 (La. 1984). Once the cause of interruption no longer exists, the periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists. La. Code Crim. P. art. 579(B).

In contrast, La. Code Crim. P. art. 580(A) provides that when a defendant files a preliminary plea, the time limits set forth in Article 578 are suspended until the ruling of the court; but in no case shall the State have less than one year after the ruling to commence the trial. “Preliminary pleas include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars.” State v. Joseph, 2025-00206 (La. 1/28/26), 427 So.3d 699, 703 (per curiam).¹³ (Internal quotations omitted). “Joint motions to continue are also included as preliminary pleas, but motions to reduce bond, motions for speedy trial, and motions to continue status conferences that do not affect the trial date are not.” Id. (Emphasis omitted).

When a party timely files a writ of review with the supreme court, the judgment of the appellate court from which the writ of review is sought becomes final when the supreme court denies the writ. See La. Code Crim. P. art. 922(D); State v. Revish, 2019-01732 (La. 10/20/20), 340 So.3d 864, 869.

Based on our review of the record, we find the defendant's motions to quash were premature and properly denied by the trial court. The record shows the following events occurred between the date the defendant was convicted (September 15, 2017) and the filing of the defendant's motions to quash (August 7, 2020 and October 2, 2020):

• On September 15, 2017, the defendant was found guilty of second degree murder by a nonunanimous jury verdict.

• On May 10, 2018, the trial court granted the defendant's motion for new trial.

• On November 20, 2018, the ruling on the motion for new trial became final when the supreme court denied the State's application for writ of review.

• On September 11, 2018, January 4, 2019, and April 3, 2019, the defendant filed pro se motions for a bench trial and for a speedy trial.

• On December 10, 2018, the defendant's case was set for trial on April 1, 2019.

• On January 7, 2019, presiding Judge Curtis Sigur recused himself due to his relationship with both the Wesley and Chillis families and the matter was reassigned to Judge Suzanne de Mahy.

• On January 18, 2019, Judge de Mahy set the trial for July 15, 2019.

• On March 15, 2019, Judge de Mahy recused herself as she had previously represented the defendant. The matter was re-allotted.

• On May 7, 2019, the defendant's pro se motions for a bench trial and for a speedy trial were withdrawn, and on motion of the State, Judge Keith Comeaux set the trial for August 19, 2019.

• On August 13, 2019, the parties entered into a joint continuance of trial and trial was rescheduled to November 18, 2019.

• On November 18, 2019, neither the defendant nor his attorney appeared for trial. The State moved to continue the case until February 18, 2020.

• On February 18, 2020, the State moved to continue the defendant's trial until June 1, 2020.

• On March 13, 2020, the defendant filed a pro se “Motion for Writ of Habeas Corpus.” The trial court denied the defendant's motion that same day.14

• On May 22, 2020, the defendant filed a second pro se “Motion for Writ of Habeas Corpus.” The trial court denied the defendant's motion that same day.

• On June 1, 2020, the case was called for trial, during a time when the Louisiana Supreme Court ordered that no jury trials were to commence before June 30, 2020, as a result of the COVID-19 pandemic, and on the motion of the Court, the defendant's trial was continued until August 10, 2020. The Louisiana Supreme Court issued a series of orders suspending all jury trials from March 16, 2020 through June 30, 2020. (Order #s 2020-4, 2020-5, 2020-7, 2020-10, 2020-12, 2020-15). State v. Stevens, 2022-746 (La. App. 3d Cir. 4/5/23), 364 So.3d 560, 564-65.

• On July 9,2020, the State filed a motion and order for attorney status conference, indicating that numerous attempts to contact defense counsel had been unsuccessful. The motion also indicated the notice of fixing for the August 10, 2020 trial date was returned as undeliverable.

• On July 15, 2020, the matter was called for an attorney status conference. The State informed the court that defense counsel of record failed to answer calls or text messages and was ineligible to practice law, according to the Louisiana State Bar Association. The State moved to continue the case. The trial court referred the matter to the Public Defender's Office for the appointment of defense counsel and ordered the trial continued and re-fixed for October 26, 2020.

• On August 7, 2020, and October 2, 2020, the defendant filed pro se motions to quash, in part arguing the State failed to timely commence trial.

• On October 7, 2020, the trial court heard arguments and denied the defendant's motion to quash. On November 9, 2020, the defendant filed a counseled motion to reconsider the ruling on his motion to quash, which the trial court also denied on December 21, 2020.15

In the instant case, the trial court's ruling granting the defendant's motion for new trial became final on November 20, 2018. See La. Code Crim. P. art. 922(D). Therefore, the State had one year from that date, until November 20, 2019, to commence trial. See La. Code Crim. P. art. 582. The matter did not proceed to trial on or before November 20, 2019. Thus, the defendant's motions to quash, filed on August 7th and October 2nd of 2020, had merit on their face. See La. Code Crim. P. art. 578(A)(2). As such, the State had the burden of demonstrating either an interruption or a suspension of the time limitation. See Rome, 630 So.2d at 1286.

As the trial court noted, various circumstances suspended the deadline, including the joint continuance on August 13, 2019, which gave the State an additional year, or until August 13, 2020, in which to bring the case to trial. See Brooks, 838 So.2d at 782. Prior to that date, on July 15, 2020, the trial court ordered a continuance after being informed by the State that the defendant's attorney of record failed to answer calls or text messages, and he was ineligible to practice law according to the Louisiana State Bar Association.¹⁶ The trial court referred the case to the Public Defender's Office for the appointment of counsel and ordered the trial continued and reset for October 26, 2020. As held below, the July 15, 2020 delay in order to obtain counsel for the defendant was to the defendant's benefit and suspended the time limitations period to July 15, 2021.¹⁷ Thus, the defendant's motions to quash, filed on August 7, 2020, and October 2, 2020, were filed before the deadline to commence the defendant's second trial. Accordingly, we find no error or abuse of discretion in the trial court's rulings denying the defendant's motions to quash or his subsequent motion to reconsider.

To the extent that the defendant argues that the trial court should have granted the motions to quash because the instant trial did not commence until August 29, 2022, we note the defendant failed to refile or reurge his motion to quash in connection with the instant trial. Specifically, the defendant filed pro se motions to quash on August 7, 2020, and October 2, 2020, in part arguing the State failed to timely commence retrial after he was granted a new trial. On October 7, 2020, the trial court denied the defendant's motions to quash, and on December 21, 2020, the trial court denied his motion to reconsider the ruling. The defendant proceeded to retrial, which commenced on February 22, 2022, and resulted in a mistrial, granted on February 25, 2022. The defendant did not refile or reurge his motion to quash prior to the February retrial or the instant trial, which commenced on August 29, 2022.

Since the defendant failed to refile or reurge his motion to quash in connection with the instant trial, we conclude that the motion should be deemed abandoned and, therefore, not properly before this Court. See State v. Griffin, 540 So.2d 1144, 1147 (La. 1989).¹⁸ Accordingly, any right of dismissal based on the timeliness of the commencement of the instant trial was waived. See La. Code Crim. P. art. 581; see also State v. Nelson, 2024-55,547 (La. App. 2d Cir. 8/28/24), 399 So.3d 126, 140 (the defendant's failure to refile his motion to quash after it was dismissed for his failure to appear at a contradictory hearing on the motion precluded the trial court from subsequently granting the motion to quash); State v. Wisham, 2014-1394 (La. App. 1st Cir. 7/29/15), 2015 WL 4556989, *8 (unpublished), writ denied, 2015-1623 (La. 9/16/16), 206 So.3d 202 (timeliness claim waived where the defendant did not file a motion to quash before trial).

PATENT ERROR

Pursuant to La. Code Crim P. art. 920(2), all appeals are reviewed for errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. In our review, we have found no reversible errors. However, as previously noted, the sentencing transcript reveals that the trial court failed to provide that the life sentence was to be served at hard labor, as mandated by La. R.S. 14:30.1(B).¹⁹ Louisiana Code of Criminal Procedure article 920(2) authorizes consideration of such an error on appeal. Further, La. Code Crim. P. art. 882(A) authorizes the appellate court to correct an illegal sentence on review. Thus, because a correction of the illegally lenient sentence does not involve sentencing discretion, this court has the authority to simply amend the sentence. State v. Reed, 2024-0368 (La. App. 1st Cir. 5/13/25), 417 So.3d 710, 721. Out of an abundance of caution and in the interest of judicial economy, we hereby amend the sentence by providing it be served at hard labor.

Further, the record reflects the trial court failed to properly advise the defendant of the prescriptive period for applying for post-conviction relief, as required by La. Code Crim. P. art. 930.8(D). The trial court initially advised the defendant that he had “two years within which to file for post-conviction relief.” The State then inquired, “And, Judge, just so the record's clear, it's two years since -- from when the sentence is final?” The trial court then replied, “Yeah. From the day the sentence is final, which I think starts his thirty days from today's date ․ Okay? Unless an appeal -- it's thirty days -- thirty days after the final judgment on appeal.”

The trial court's failure to properly advise the defendant of the limitation period has no bearing on the sentence. State v. Bell, 2023-1138 (La. App. 1st Cir. 5/31/24), 391 So.3d 54, 59 n.1, writ denied, 2026-00163 (La. 3/25/26), 428 So.3d 683. Nevertheless, out of an abundance of caution, we note for the record and advise the defendant that La. Code Crim. P. art. 930.8(A) generally provides that no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. Code Crim. P. arts. 914 or 922.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED.

FOOTNOTES

1.   The trial court's ruling granting the new trial was premised upon La. Code Crim. P. art. 851(B)(1) in that the verdict was contrary to the law and evidence. The State sought supervisory review of the trial court's ruling granting the new trial. This court and the supreme court denied review. State v. Wesley, 2018-1186 (La. App. 1st Cir. 10/11/18), 2018 WL 4944424 (unpublished), writ denied, 2018-1837 (La. 11/20/18), 256 So.3d 997.

2.   The trial court did not impose the sentence at hard labor.

3.   The incident was caught on video by the surveillance system of Ronald Chillis, Sr., who lived in the main house on the property, near his son's trailer. The surveillance footage was blurry, and the subjects were not identifiable from the footage.

4.   Mr. Loston refused to testify at the instant trial. Therefore, he was declared an unavailable witness, and his testimony from the September 2017 trial was read into the record.

5.   Though previously addressed on supervisory review, this assignment of error presents an issue of first impression on appeal in this court—the denial of a “reverse 404B” motion. See e.g. State v. Wesley, 2022-0894 (La. App. 1st Cir. 8/25/22), 2022 WL 3681288, writ granted, 2022-01312 (La. 8/27/22), 344 So.3d 647. However, while not styled a “reverse 404B” motion, this court has addressed similar arguments on appeal pertaining to the defendant's right to present a defense. See State v. Guillory, 2012-0702 (La. App. 1st Cir. 12/21/12), 2012 WL 6681817, *11 (unpublished), writ denied, 2013-0216 (La. 8/30/13), 120 So.3d 258 (wherein the trial court granted the State's motion in limine to exclude evidence that the victim's associate committed other crimes, wrongs, or acts that proved he murdered the victim in that case; this court found that the murder therein did not bear strikingly similar characteristics to the “signature” crime murders committed by the victim's associate); see also State v. Phillips, 2023-0243 (La. App. 1st Cir. 9/28/23), 376 So.3d 880, 889.

6.   The trial court initially heard arguments on the date the motion was filed. As an additional similarity among the murders, defense counsel noted that after each murder Mr. Loston made contact with a girlfriend to have them assist him in concealing the murder. At that time, the trial court took the matter under advisement.

7.   The trial court further considered the language of La. Code of Evid. arts. 607, 608, 609, and 609.1, and indicated that the defendant was attempting to circumvent those rules. Although La. Code Evid. art. 607(C) permits a party to attack the credibility of a witness by examining him concerning any matter having a reasonable tendency to disprove the truthfulness of his testimony, this grant is necessarily subject to the relevancy balance of La. Code Evid. art. 403 and to the limitation set forth in La. Code Evid. art. 608(B), generally precluding inquiry into particular acts, vices, or courses of conduct to attack character for truthfulness. State v. Estay, 2006-1903 (La. App. 1st Cir. 3/23/07), 2007 WL 866202, *3 (unpublished). Louisiana's Code of Evidence specifically provides that every witness in a criminal case subjects himself to examination relative to his criminal convictions, and that evidence of an arrest, arrest warrant, indictment, prosecution, or acquittal may not be used to impeach the witness's general credibility. See La. Code Evid. art. 609.1; State v. Mills, 2018-0047 (La. App. 1st Cir. 9/24/18), 259 So.3d 1045, 1046, writ denied, 2018-1686 (La. 4/15/19), 267 So.3d 1128. However, this does not mean a witness may never be questioned about arrests or pending charges. Id.

8.   The defendant sought an application for a writ of review in this court. This court granted the writ application and reversed the trial court's ruling denying relator's “Reverse 404B Motion.” State v. Wesley, 2022-0894 (La. App. 1st Cir. 8/25/22), 2022 WL 3681288, *1 (unpublished). Thereafter, the State sought a writ of certiorari with the Louisiana Supreme Court, which granted the State's application for writ of review and reversed this court, as follows:It is well settled that the trial court is accorded great discretion in evidentiary rulings and, absent a clear abuse of that discretion, rulings regarding the relevancy and admissibility of evidence will not be disturbed on appeal. Here, a clear abuse of trial court's great discretion in evidentiary matters is not apparent. The court of appeal's ruling is reversed and the trial court's ruling is reinstated. Defendant will have an adequate remedy on appeal if convicted.[Quotations and case citations omitted]. State v. Wesley, 2022-01312 (La. 8/27/22), 344 So.3d 647.

9.   On cross-examination, Ms. Broussard further testified that she at one point received a phone call in which the defendant threatened to kill her and Mr. Loston.

10.   Mr. Loston refused to testify at trial, was held in contempt, declared unavailable, and his 2017 trial testimony was read to the jury.

11.   We also note the defendant failed to show how the proposed evidence, even if admitted, could support a theory that Mr. Loston alone committed the instant murder. “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La. R.S. 14:24. Further, under the law of principals, all persons involved in the commission of a crime are equally culpable; therefore, a person may be convicted as a principal to murder even if he did not personally inflict the fatal wound. State v. Cabellero, 2022-0441 (La. App. 1st Cir. 11/4/22), 356 So.3d 389, 395, writ denied, 2022-01777 (La. 4/25/23), 359 So.3d 982. Herein, the jury was instructed on the law of principals and could have easily determined the defendant was guilty as a principal to the instant murder, regardless of whether or not he was the shooter. Thus, the defendant failed to demonstrate that the proposed “reverse 404(B)” evidence had a tendency to negate his guilt. See Stevens, 935 F.2dat 1405.

12.   The defendant is limited on appeal to the grounds he articulated below, and a new basis for a claim, even if it would be meritorious, cannot be raised for the first time on appeal. State v. West, 2018-0868 (La. App. 1st Cir. 5/31/11), 277 So.3d 1213, 1217.

13.   The provisions of La. Code Crim. P. art. 582 must be read and applied together with La. Code Crim. P. arts. 578, 580, 581, and 583. State v. Falkins, 395 So.2d 740, 741 (La. 1981).

14.   In the “Motion for Writ of Habeas Corpus,” the defendant contended that his confinement was illegal because of the State's failure to commence a new trial in a timely manner in violation of La. Code Crim. P. art. 582. He asserted the trial court had jurisdiction under La. Code Crim. P. art. 701, which sets forth the time period in which the State has to file a bill of information or indictment, which is based on the nature of the offense and whether the defendant has been continued in custody since his arrest. See La. Code Crim. P. art. 701. Article 701 also provides for the right to a speedy trial. See La. Code Crim. P. art. 701(D).

15.   In denying the motion to quash, as the State argued, the trial court considered the January 7, 2019, and March 15, 2019, recusals by presiding judges and the “disappearance” of defense counsel “beyond the control of the State,” thereby interrupting the time limitation and causing it to run anew from the date of the hearing. In denying the defendant's motion to reconsider the ruling on the motion to quash, the trial court cited the COVID-19 related proclamations, which suspended the time limitation in this case. The trial court also clarified that the July 15, 2020 delay in obtaining counsel for the defendant was to the defendant's benefit but suspended the time limitations period to July 15, 2021, rather than causing an interruption.

16.   The defendant's attorney of record did not appear for the attorney status conference, but the defendant was present via Zoom.

17.   See Brooks, 838 So.2d at 783-84 (the supreme court found that the trial court's continuance, for the purpose of allowing a defendant time to substitute counsel, constituted a preliminary plea within the scope of La. Code Crim. P. art. 580). In Brooks, the court reasoned that the trial court's continuance, made solely to accommodate the defense and effectuate the defendant's right to counsel, suspended prescription because the State's ability to prosecute was affected until the matter of the defendant's representation was settled. Id. Cf. Revish, 340 So.3d at 870 (distinguishing its case from that of Brooks because defendant Revish in no way benefitted from the court's continuance).

18.   In Griffin, before the defendant's first trial, he filed a “Motion For Authority To Record Conversation.” After a hearing, the trial court denied the motion. Griffin, 540 So.2d at 1146. Subsequently, the defendant's case was transferred to another parish. After the transfer, defense counsel filed a motion to re-urge all motions filed in the original parish. Before the second trial commenced, the trial judge set a hearing date to consider pre-trial motions. During the hearing that followed, defense counsel did not urge the “Motion For Authority To Record Conversation” at that time. On appeal, this court noted the record clearly established that before the second trial, the trial court did not consider the “Motion For Authority To Record Conversation,” and the defendant did not re-urge the motion. This court concluded that since defendant failed to have the trial court rule upon the motion in connection with the second trial, the motion should be deemed abandoned and, therefore, not properly before the court. Id. at 1147.

19.   The sentencing minutes and commitment order indicate the sentence was imposed at hard labor. However, when the minutes and commitment order conflict with the sentencing transcript, the transcript prevails. See State v. Lynch, 441 So.2d 732, 734 (La. 1983).

FIELDS, J.

Penzato, J., concurs