STATE v. PERKINS II (2026)

On November 14, 2023, the defendant, Morris Eugene Perkins, II, was charged by grand jury indictment with one count of first degree rape of a child under the age of thirteen, a violation of La.R.S. 14:42, and one count of pornography involving juveniles, a violation of La.R.S. 14:81.1. The defendant's four-day jury trial began October 20, 2025. On October 23, 2025, a unanimous jury convicted him of both counts.

Subsequently, on November 25, 2025, the trial court sentenced the defendant. The trial court recounted the following facts at sentencing:

[T]he defendant was found guilty by a jury on October the 23rd, 2025, of first degree rape and pornography involving juveniles. The facts on the pornography involving juveniles show that during and after the defendant having had sexual relations with a 12-year-old the defendant took three photo - - photographs of the victim which showed the anus, vagina, and breasts of the victim, who was under the age of thirteen. One of the photographs showed her vagina with male ejaculate over it. The defendant took the photographs and later distributed them to the victim. Add to this fact that he was also convicted of first degree rape of a person under the age of thirteen. Testimony - - testimony also was adduced that this occurred in the rear portion of an SUV, with the defendant's small child crying in the car seat of that same vehicle. The facts of this case and the first degree rape show that you had sexual intercourse with a victim who was under the age of thirteen years. The facts also show that the victim was a longtime friend of your niece.

The trial court sentenced the defendant on count one (first degree rape) to life at hard labor, without benefit of probation, parole, or suspension of sentence, and on count two (pornography involving juveniles) to thirty years at hard labor, without benefit of probation, parole, or suspension of sentence. The trial court specified that first degree rape was a crime of violence and ordered the sentences to run concurrently. Defense counsel noted an objection for the record.

The defendant filed a Notice of Appeal on December 8, 2025, which was granted by the trial court on December 9, 2025. On May 4, 2026, defense counsel filed a brief in this court alleging one assignment of error regarding the sentences imposed.

On August 11, 2026, the defendant filed a pro se supplemental brief alleging four assignments of error—one alleging the trial court erred in replacing a selected juror with an alternate, one alleging error in the polling of the jury, and two alleging ineffective assistance of counsel.

ASSIGNMENTS OF ERROR

COUNSEL FILED ASSIGNMENT OF ERROR:

Under Louisiana jurisprudence, maximum sentences are reserved for the most serious offenses and the worst offenders. Here, the trial court sentenced Appellant to life for one count of First Second [sic] Degree Rape and a concurrent thirty year sentence for one count of Pornography involving Juveniles. Under the circumstances of this case, the sentence imposed is excessive and should be vacated and the case remanded for resentencing.

PRO SE ASSIGNMENTS OF ERROR:

1. The trial court erred in replacing a selected juror, [Juror No. 4] with an alternate [juror], denying Defendant[’]s right to be tried by the jury selected, in violation of the 5th, 6th and 14th amend[ments] to the U.S. Constitution and La. Const. Art. 1, § 13, 16 & 17.

2. The trial court erred when it failed to declare a mistrial on count #2 when the polling slips showed the verdict was non-unanimous (11-1) on count 2, in violation of the 6th and 14th amend[ments] to the U.S. Constitution and La. Const. Art. 1, § 13, 16 & 17.

3. Defendant's Sixth Amendment Right to Counsel was violated when his attorney conceded his guilt, in violation of the 6th and 14th Amend[ments] to the U.S. Constitution and La. Const. Art. 1, § 13, 16 & 17.

4. Counsel was ineffective in A: Failing to object to the court removing [Juror No. 4]; and/or B: Failing to move for a mistrial when the polling showed a non-unanimous verdict, in violation of the 6th and 14th Amend[ments] to the U.S. Constitution and La. Const. Art. 1, § 13, 16 & 17.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are two corrections needed to the minutes.

First, the October 23, 2025 minutes indicate a “verdict of guilty was read.” Uniform Rules—Courts of Appeal, Rule 2–1.5(9) states the minutes shall include the jury's verdict. The trial court is instructed to amend the October 23, 2025, minute entry to set forth the jury's verdict on each count.

Second, the sentencing minutes need to be corrected to accurately reflect the sentencing transcript. According to the sentencing transcript, the trial court stated that count one, first degree rape, was a crime of violence. The minutes of sentencing, however, do not reflect this statement. “[W]hen the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Thus, we instruct the trial court to amend the sentencing minutes to accurately reflect the trial court's statement regarding the first degree rape being a crime of violence.

ASSIGNMENTS OF ERROR

The defendant claims the sentences imposed are excessive. The defendant received a mandatory life sentence for first degree rape and a concurrent thirty-year sentence for pornography involving a juvenile. Both sentences were imposed at hard labor and both imposed without benefit of parole, probation, or suspension of sentence. The defendant argues the following:

At the time of sentencing, he was approximately forty five. (R. 484).At the time of the alleged offense, I.S. was approximately one month shy of turning thirteen, which would have resulted in a different charge and sentence. (R. 447-448). Additionally, I.S. testified to wanting the sexual contact to occur (R. 503) and J.L. testified that I.S. lied about her age. (R. 527). Although purported consent and lack of knowledge are not defenses to the charges, Appellant Perkins submits that they are factors that should have been taken into account in determining the excessiveness of his sentence.

As indicated by the record, the trial court's sentence fails to consider any potential mitigating factors, such as his educational history, family history, age, and other relevant factors. Considering the facts of this case, Appellant argues that a life sentence and concurrent thirty–year sentence without the benefit of parole, probation, or suspension of sentence, are excessive. Thus, Perkins's sentences are excessive and should be vacated.

State's Argument in Brief

Citing cases wherein a downward departure from a mandatory life sentence was declined, the state argues the defendant likewise fails to prove the mandatory life sentence for first degree rape was excessive in this case. The state contends that neither the defendant's lack of knowledge of the victim's age nor the defendant's claim that the victim consented to the sexual intercourse justifies a downward departure from the mandatory life sentence.

As for the thirty-year sentence imposed for pornography involving juveniles, the state contends the defendant makes no specific argument regarding the excessiveness of that sentence. Rather, the state contends, the defendant argues that his sentences, taken together, are excessive. Nonetheless, the state asserts that the thirty-year sentence is less than one third of the maximum possible sentence and cites cases where similar or longer sentences have been affirmed. Finally, the state argues the defendant's failure to file a motion to reconsider sentence limits him to a bare excessiveness claim, requiring proof that the trial court abused its discretion. The state concludes that the defendant fails to prove the trial court abused its discretion by sentencing him to less than one third of the maximum sentence for pornography involving a juvenile under thirteen years old.

Proceedings at Sentencing

When asked at the sentencing hearing if she wanted to say anything on the defendant's behalf, defense counsel responded, “No, Your Honor.” After reading the pertinent penalty provisions for both first degree rape and pornography involving juveniles, the trial court stated the following:

The court looks at Code of Criminal Procedure Article 894.1, which is the Sentencing Guidelines, to determine the sentence in Count 2, pornography involving juveniles. The court finds that there is undue risk that during the period of a suspended sentence or probation the defendant will commit another crime. The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution. A lesser sentence will deprecate the seriousness of the defendant's crime. The court - - the court finds that the offender's conduct during the commission of the offense manifested deliberate cruelty to the victim, based on the age of the victim. The offender knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to the extreme youth.

The trial court then recited the facts set forth in the factual basis section of this opinion. Thereafter, the trial court stated: “These acts are reprehensible and make you a menace to society. A person who has sexual intercourse with a 12-year-old is the worst of the worst. And you took pictures of this to memorialize it for you.”

For first degree rape, the trial court imposed the mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. The trial court determined the offense to be a crime of violence. For pornography involving juveniles, the trial court imposed a sentence of thirty years at hard labor, without benefit of parole, probation, or suspension of sentence. Finding the pornography offense was part of the same act or occurrence as the first degree rape, the trial court ordered the sentences to run concurrently. Defense counsel noted the defendant's objection, without stating any argument.

Law and Analysis

To begin, we note that the defendant offered only a general objection to the sentences and failed to file a motion to reconsider sentence. Louisiana Code of Criminal Procedure Article 881.1 provides, in pertinent part:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.

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B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.

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E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Defense counsel offered no argument on the defendant's behalf at sentencing, and neither defense counsel nor the defendant requested a downward departure from the mandatory life sentence for first degree rape or filed a motion to reconsider sentence. Additionally, the objection made by defense counsel at sentencing offered no specific grounds. Thus, under some jurisprudence, the defendant is precluded from appealing his sentences. Recently, this court declined to review an excessive sentence claim, finding it was not properly before the court. State v. White, 23-604 (La.App. 3 Cir. 3/6/24), 381 So.3d 946. There, White failed to file a motion to reconsider sentence and offered only a general objection at sentencing. In addition to citing Article 881.1, this court noted that it does not address issues that were not first presented in the trial court, citing Uniform Rules—Courts of Appeal, Rule 1–3. Id. See also State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356; State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La. 1/31/03), 836 So.2d 59; State v. Duplantis, 13-424 (La.App. 3 Cir. 11/27/13), 127 So.3d 143, writ denied, 14-283 (La. 9/19/14), 148 So.3d 949. Although it went on to consider the sentencing error as an error patent, in State v. Jarrell, 25-1464, p. 2 (La. 6/16/26), ––– So.3d ––––, –––– (2026 WL 1732852), the supreme court stated, “Because defendant did not make or file a motion to reconsider sentence in the trial court, he is precluded from objecting to his sentence on appeal. See La.C.Cr.P. art. 881.1(E).” Considering the specific language of La.Code Crim.P. art. 881.1(E) and the above cases, we decline to address defendant's excessive sentence claim in this case.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

The defendant alleges the trial court erred in replacing selected Juror No. 4 with an alternate juror, denying the defendant the right to be tried by the jury selected. In response, the state contends the claim is waived for lack of contemporaneous objection, and the claim lacks merit.

Proceedings in Trial Court

During her cross-examination of the state's first witness, defense counsel introduced the arrest warrant and police report. Shortly after the exhibits were admitted into evidence and published to the jury, Juror No. 4 alerted the bailiff that she knew a lot of the people mentioned in the exhibits and asked if that was a problem. All of the jurors except Juror No. 4 retired to the jury room. After confirming with Juror No. 4 that she knew several of the people mentioned in the exhibits, the trial court allowed the attorneys to question the juror:

BY MR. BUSH [(the prosecutor)]:

Yes. [Juror No. 4], which individuals do you know?

BY JUROR # 4 ․ :

I know, uh, Mrs. Brumley.

BY MR. BUSH:

Okay.

BY JUROR #4 ․ :

And, then, I don't personally know her granddaughter, but I'm familiar with the family.

BY MR. BUSH:

Okay.

BY JUROR #4 ․ :

And, um, also, the girl's mother, I'm familiar with her.

BY MR. BUSH:

Okay.

BY JUROR #4 ․ :

And I, well, I'm - - I'd heard about the incident and some comments back when it originally happened, so - -

BY MR. BUSH:

So you heard about this case before?

BY JUROR #4 ․ :

Yes, and I didn't realize it till I started reading the names and when I seen the Brumley - - because I am also a Brumley, but we're not related - - I realized what I - - who I was reading about.

Juror No. 4 stated that she could be fair and impartial despite her knowing the family. When defense counsel stated she had no questions, the trial court asked the following questions:

BY THE COURT:

What - - what I want to know is, uh, did you form an opinion prior to this case as to the truth and/or the guilt or innocence of Mr. Perkins?

BY JUROR #4 ․ :

Um, actually, I'd - - I never heard the gentleman's name - -

BY THE COURT:

Okay.

BY JUROR #4 ․ :

- - so, um, I don't think I did. I mean, I have opinions just in general but not of this specific case.

BY THE COURT:

All right. And Mr. Bush asked you and, as you sit here today, do you have continuing contact with any of these people?

BY JUROR #4 ․ :

No.

BY THE COURT:

Okay. When's the last time you've had any contact with any of ‘em?

BY JUROR #4 ․ :

Um, uh, with the grandmother, we were at a birthday party, but it's probably been - - actually, I think it was prior to the incident.

BY THE COURT:

Okay. So, you've not had any contact with the family or talked to them about this incident after it occurred?

BY JUROR #4 ․ :

No.

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BY THE COURT:

And, as we sit here today, do you feel like you can be a fair and impartial juror? You've not formed any, uh, opinions thus far; is that accurate or is that not accurate?

BY JUROR #4 ․ :

That's accurate.

Defense counsel asked if she could ask a follow-up question:

BY MS. BEAIRD [(defense counsel)]:

Um, did - - did you, uh, I thought - - I thought you said and I could have - - just be misunderstanding. But did you say that you had heard the family talking about this incident or something like this incident.

BY JUROR #4 ․ :

Well, I, uh, I have a friend that I work with who is very good friends with the grandmother and I - - through - - I heard about the incident through her.

BY MS. BEAIRD:

Okay. Um, can we find out what she - - she heard about? I - - I don't - - I don't - - um, that's all the questions I have.

When the trial court asked defense counsel what her thought was, she stated:

BY MS. BEAIRD:

I am upset because I really like this juror, but I feel like if she's heard about some of the facts of the case beforehand, we kind of asked everybody that, and I feel like if we were in voir dire and we found that out, that we would have gotten her out either for cause or for using a peremptory challenge. So, I think we might should look at the alternate, out of an abundance of caution, because this is such a big deal and you know it's gonna be reviewed, I mean, no matter what happens, you know.

The state also stated its opinion:

BY MR. BUSH:

Your Honor, um, even though she said she can be fair and impartial, and Ms. Brumley I do not intend to call her as a witness, the state has a duty as well to keep the record clear, um, and the defendant does have a constitutional right, um, so I will join in that we should replace her with Alternate #1.

The defendant claims the error in replacing Juror No. 4 was made more egregious by the fact that the alternate juror chosen as a replacement (Alternate No. 1) stated that he knew Randy Kennedy, a former police officer who had charges brought against him in connection with this victim. Melissa Welch of the Louisiana State Police testified that she obtained an arrest warrant for Randy Kennedy related to the victim in this case. When asked why Randy Kennedy was not charged with first degree rape, Ms. Welch explained that there was no sexual contact but only a shared photograph of Mr. Kennedy's penis and sexually explicit text messages.

Before Alternate No. 1 was accepted as Juror No. 4's replacement, the trial court and attorneys questioned him as follows:

BY THE COURT:

All right, [Alternate No. 1], you can be seated. While you were reviewing the exhibit, you raised your hand and I - - I sent my bailiff to you and he informed myself and the attorneys that you know, I believe, Randy Kennedy; is that correct?

BY [ALTERNATE NO. 1]:

Yes, sir.

BY THE COURT:

All right. What we're going to do is, I'm going to allow each of the attorneys to ask you some questions regarding that and then I may ask some follow-up questions regarding that relationship to determine whether or not, um, you can be fair and impartial in this - - in this case because that's new information that was not, uh, not divulged yesterday. So, Mr. Bush, you have some questions for [Alternate No. 1]?

When the state asked Alternate No. 1 if he knew the current case was State versus Morris Eugene Perkins, II, not State versus Randy Kennedy, Alternate No. 1 replied, “Yes, sir․ That's correct.” As for how he knew Mr. Kennedy, Alternate No. 1 replied:

BY [ALTERNATE NO. 1]:

So, he and my uncle were a detective for the Vernon Parish Sheriff's Department for a long time together. So, um, we spent time, off and on, with - - with Randy. He would be around the house and stuff like that so we - - we were very familiar. We know him. Didn't really hang out with him outside the - - my uncle, but, um, I am familiar with - - with Randy.

Alternate No. 1 stated that he was not familiar with the defendant's case and had mentioned Mr. Kennedy because his brother told him that Randy had been arrested for “something to deal with, um, a juvenile or whatever.” Alternate No. 1 stated that he could serve as a juror if called to be. Finally, defense counsel had no questions and stated that she was “good with him” and accepted him. After being administered the oath of a juror, Alternate No. 1 became Juror No. 4.

The defendant notes that another juror, Juror No. 8, was questioned about her acquaintance with one of the students involved in one of the reports. The juror stated that she knew one of the students mentioned in a report but stated there was no problem with her continuing to be a fair and impartial juror. The defendant notes that neither the state nor defense counsel had a problem with Juror No. 8 remaining on the panel.

The fifth circuit addressed a similar case and found the issue was waived by lack of a contemporaneous objection:

Defendant argues in his second assignment of error that the trial court erred in granting the State's post-swearing challenge for cause to Juror Michel Wren based on a remote, indirect familial connection to a co-defendant. He contends that Mr. Wren's statements did not demonstrate bias or an inability to be impartial, that the State's basis for removal was speculative, and that no new information arose after the jury was sworn to permit removal under La. C.Cr.P. art. 789. According to defendant, the improper removal of a qualified juror violated his right to a fair trial.

The voir dire transcript reflects that Mr. Wren affirmed that he could be fair and impartial, follow the law as instructed, and decide the case based solely on the evidence presented. The transcript does not show that Mr. Wren was asked during voir dire whether he knew defendant or whether he had any familial relationship with him. The parties accepted him as a juror and he was sworn.

On January 7, 2025, the second day of trial and after opening statements, co-defendant's counsel advised the court during a bench conference that he had just learned of a possible familial connection involving Mr. Wren, and that Mr. Wren had not previously disclosed any such relationship. The state explained that the relationship was by marriage and involved a possible marital connection between Tatum and someone in Mr. Wren's family. The court discussed calling Mr. Wren to address the issue.

The trial court advised Mr. Wren that it had learned he might be related to someone in Tatum's family, and asked him to explain the relationship. Mr. Wren stated that his sister had a child with a man named “Tatum” and that he was unsure whether that individual was related to co-defendant Tatum. He denied that this circumstance would affect his ability to weigh the evidence or render a fair and impartial verdict. Mr. Wren further stated that he had seen the individual in the courtroom the previous day, but he did not speak to him. He denied recognizing any of the individuals present that day as family members, denied any prior knowledge of the case, and again affirmed that he could decide the case fairly and impartially based solely on the evidence.

In response to questioning by co-defendant's counsel, Mr. Wren explained that the individual was his nephew, whom he saw only at holidays or family functions, and denied any animosity or close relationship. Defense counsel stated that he had no questions. After Mr. Wren left the bench, co-defendant's counsel stated that he had no motion, but observed that had this information been disclosed earlier, it would have been addressed during voir dire.

On the third day of trial, after three witnesses had testified, the court revisited the issue. The prosecutor explained that Mr. Wren had been identified as a potential relative of Tatum and that the issue was brought to the state's attention late on the second day of trial. The prosecutor acknowledged that Mr. Wren stated he could remain fair and impartial but argued that, given the seriousness of the charge and the possibility of a mandatory life sentence, asking him to render a verdict against a possible family member raised concerns regarding impartiality. The state requested that Mr. Wren be removed for cause, noting that an alternate juror was available. Co-defendant's counsel deferred to the court. Defense counsel stated that defendant did not take a position, but he noted for the record that Mr. Wren only realized the possible connection after recognizing someone in the gallery and did not act deceptively. The trial court granted the state's request, explaining that removal was in the best interest of the court, the parties, and Mr. Wren, and ordered that an alternate juror replace him.

For the first time on appeal, defendant argues that the trial court erred in removing Mr. Wren from the jury and replacing him with an alternate. The trial court has the discretion to utilize the service of an alternate juror, rather than to grant a mistrial, upon a proper finding that this is the best course of action. State v. Franklin, 21-531 (La. App. 5 Cir. 5/11/22), 341 So.3d 1237, 1246, writ denied, 22-857 (La. 10/18/22), 348 So.3d 733. In State v. Marshall, 410 So.2d 1116 (La. 1982), the Louisiana Supreme Court held that the trial court correctly discharged a juror who, after being sworn, was determined to be “not impartial,” as “unable to perform or disqualified from performing” her duty under La. C.Cr.P. art. 789.

As shown above, defense counsel did not lodge a contemporaneous objection to the removal of Mr. Wren and expressly stated that defendant would not take a position on the issue. The contemporaneous objection rule, La. C.Cr.P. art. 841(A), provides: “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence,” and further requires that a defendant state the grounds for the objection. A defendant is limited on appeal to those grounds articulated at trial. State v. Snyder, 12-896 (La. App. 5 Cir. 10/9/13), 128 So.3d 370, 377, writ denied, 13-2647 (La. 4/25/14), 138 So.3d 643.

Defendant failed to preserve this claim for appellate review. See also State v. Blue, 24-737 (La. App. 4 Cir. 8/21/25), 431 So.3d 108 (finding juror-removal claim unpreserved where defense counsel failed to lodge a contemporaneous objection to the juror's removal). This assignment of error lacks merit.

State v. Augustus, 25-296, pp. 36–38 (La.App. 5 Cir. 2/25/26), 432 So.3d 292, 319–20.

In the present case, defense counsel not only failed to object to the removal of Juror No. 4 but agreed that she should be replaced out of an abundance of caution. Acknowledging that no contemporaneous objection was made to Juror No. 4's removal, the defendant claims there are exceptions to the contemporaneous objection rule. First, the defendant cites State v. Ratcliff, 416 So.2d 528 (La.1982), and claims the error should be addressed since he argues his counsel was ineffective for failing to object to Juror No. 4's removal. The defendant alleges ineffective assistance of counsel in Assignment of Error No. 4; thus, we will address the claim in that assignment. Another exception asserted by the defendant applies when a defendant's due process rights are substantially prejudiced and another applies when the error substantially undermines the fact-finding process. The defendant claims he had a constitutional right to be tried by the jury initially chosen.

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 La. Code Crim. P. art. 920(2); State v. Arvie, 505 So.2d 44, 47 (La. 1987); State v. Howard, 2018-0317 (La. App. 1st 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.

State v. Charpentier, 24-89, p. 4 n.4 (La.App. 1 Cir. 12/6/24) (unpublished opinion) (2024 WL 5000492), writ denied, 25-26 (La. 4/15/25), 406 So.3d 420.

The defendant fails to prove the alleged error in removing Juror No. 4 cast substantial doubt on the reliability of the fact-finding process in this case. Accordingly, we find the defendant's claim is waived for lack of a contemporaneous objection.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

The defendant contends the trial court erred in failing to declare a mistrial on count two when the polling slips showed the verdict was non-unanimous on that count. The state responds that the defendant failed to object when the trial court re-polled the jury, which showed the verdict was unanimous.

Proceedings in Trial Court

The jury foreperson agreed that the verdict read was the jury's verdict. The defendant requested polling. After inspecting the polling slips, the trial court stated:

BY THE COURT:

All right, [Juror No. 3], I'm gonna ask that this be passed to you and if you would write “yes” or “no” out beside each, Count 1 and 2, please. I mean, I know you circled it, but I would ask if you could write that, either “yes” or “no,” out beside Count 1 and Count 2.

Upon receiving the polling form from Juror No. 3, the trial court stated that it was going to have to send the jury back because the verdict was not unanimous. The trial court spoke with counsel out of the jury's presence and stated the following:

BY THE COURT:

All right, we are back, in session. Let the record reflect that the defendant is present with his counsel, the State is present. We are here out of the presence of the jury. After discussions with the attorneys in the side room, I think we are in agreement that this may in fact be a clerical mistake as opposed to a non-unanimous verdict. So, what the court is going to do is, we're going to bring the jury in and we are going to repoll the jury. I'm going to give each and every one of ‘em a new verdict sheet, uh, polling of the jury, to have them fill out whether or not that is or is not their verdict.

Both the state and defense counsel agreed to the trial court's procedure and stated they had no objection. The trial court then called the jury back into the courtroom and instructed them as follows:

BY THE COURT:

All right, let the record reflect - - y'all can be seated. Let the record reflect that the jury is present. What we're going to do, and it could very well be that the court did not clarify what I was asking you to do, so, what we are going to do is, we are going to redistribute - - distribute the polling forms to each and every one of you. And I am going to ask that you would, out beside Count 1 and Count do [sic] - - 2, write either “yes” or “no.” “Yes,” if that was your verdict that was read, and - - and/or “no,” if it was not your verdict. I will ask that you sign, date that, and then after you have done that, we will collect those again.

After the polling forms were collected by the bailiff and reviewed by the court, the trial court allowed the attorneys to view the polling slips. The trial court stated that the polling slips reflected a unanimous verdict. The polling slips are in the record and reflect the jury's verdict was unanimous as to each count. The parties adjourned without any objection.

Defendant's Argument in Pro Se Brief

Citing La.Code Crim.P. art. 812, the defendant contends the trial court had only two options when the polling slips indicated a non-unanimous verdict—remand the jury for further deliberation or declare a mistrial. The defendant argues:

Failing to send the jurors back for further deliberations does nothing to ensure that Juror [#3] ․ changed her mind from “not guilty” to “guilty” as a result of her concurrence with that of her fellow jurors during further deliberations or as a result of the pressure from the trial court's repolling of the jury.

The defendant asks this court to reverse his conviction and remand for a new trial.

State's Response

The state contends the claim is barred from consideration since defense counsel failed to object. Furthermore, the state contends the claim has no merit, citing cases where repolling of the jury was upheld on appeal.

Analysis

Louisiana Code of Criminal Procedure Article 812 states the following regarding the polling of the jury, in pertinent part:

A. In all cases, the court shall order the clerk to poll the jury if requested by the state or the defendant. The poll shall be conducted in writing by applying the procedures of Paragraph B of this Article and shall be done in open court.

B. (1) In cases in which a verdict was reached, the procedure for the written polling of the jury shall require that the clerk hand to each juror a separate piece of paper containing the name of the juror and the words “Is this your verdict?” Each juror shall write on the slip of paper the words “Yes” or “No” along with his signature. The clerk shall collect the slips of paper, make them available for inspection by the court and counsel, and record the results.

(2) If a sufficient number of jurors as required by law to reach a verdict answer “yes” the clerk shall so inform the court. Upon verification of the results, the court shall order the clerk to record the verdict and order the jury discharged. If an insufficient number required to find a verdict answer “Yes,” the court may remand the jury for further deliberation, or the court may declare a mistrial in accordance with Article 775. The polling slips may be placed under seal upon order of the court, which shall state the specific reasons for placing the polling slips under seal. If so ordered the polling slips shall not be released to the public without a subsequent order of the court authorizing their release. If the court orders the release of the polling slips, the names of the jurors shall be redacted.

The defendant claims the trial court should have either remanded the jury for further deliberations or ordered a mistrial when it noticed the polling issue. As with the defendant's previous pro se assignment of error, there was not only a failure to object to the alleged error in the trial court, there was also an agreement by both counsel as to the procedure followed by the trial court.

In State v. Armstrong, 23-414 (La.App. 3 Cir. 4/24/24), 387 So.3d 792, writs denied, 24-582, 24-657 (La. 2/19/25), 400 So.3d 924, this court addressed a similar error. In Armstrong, one of the jurors stated, “I'm just not sure,” when the jury was instructed to circle either yes or no on the polling slips. Id. at 806. The trial court told the juror to “ ‘[j]ust please answer the question ․ on your polling slip.’ ” Id. The defendant interjected, “This is crazy.” Id. When the polling slips were returned, they were reviewed by counsel and found by the court to be in proper form. Id. On appeal, Armstrong claimed that when the juror expressed uncertainty, the trial court should have either ordered the jury to continue deliberating or accept a hung jury. Id. Armstrong argued that the trial court's method coerced the juror into making a decision on the spot and changing her vote. Id.

Citing State v. Lamb, 458 So.2d 996 (La.App. 3 Cir. 1984), the court in Armstrong stated that “[t]his court has found that the failure to contemporaneously object to the procedure used to poll the jury prohibited review of the issue on appeal.” Armstrong, 387 So.3d at 806. Noting Armstrong's argument that his statement “ ‘this is crazy’ ” should be considered a pro se objection, this court addressed the issue further.

Addressing a similar issue in State v. James, 99-1858, pp. 5-9 (La.App. 3 Cir. 5/3/00), 761 So.2d 125, 129–31, writ denied, 787 So.2d 1010 (La. 2001), this court stated:

․ Defendant argues that the trial court erred in interrogating a juror regarding her “no” vote during the written polling of the jury, in violation of La.Code Crim.P. art. 812. The State responds that defense counsel failed to make a contemporaneous objection to the trial court's polling procedure and, alternatively, that any error was harmless.

At the close of deliberations, the six-person jury presented its verdict forms for each charge. The trial court then ordered that the jury be polled in writing. On the charge of unauthorized entry of an inhabited dwelling, the written poll revealed a unanimous vote for conviction. On the charge of second degree battery, however, Juror Braden[ ] indicated on her polling card that she did not vote to convict. Under La.Code Crim.P. art 782(A), the concurrence of all six jurors is required to render a verdict in this case.

․

Q. I have asked all of the jurors to complete this card and write out was that their verdict. Did they concur with that verdict at the time the vote was reached as a yes or a no. And your card said no.

A. Yes, sir.

Q. Is that correct?

A. Yes, sir.

Q. Alright. At the time that ya'll a [sic] took a vote on the guilty of Second Degree Battery you voted no?

․

A. We talked about it and I felt like there was no proof saying that he actually did do it. But I felt out voted, so that's why we agreed on the yes.

Q. Okay. And at the conclusion of your deliberation and votes did you eventually vote yes, then?

A. Yes, sir.

․

Q. So, in preliminary discussions and please, it's unusual and I don't want to misstate anything for the record. Do I understand that in preliminary discussion that you disagreed for the record and now, at this point when ya'll [sic] finally voted you had stated yes, is that right?

A. Yes, sir.

Q. Okay.

THE COURT: I'll let that be noted for the record. And thank you very much. You can have a seat. I'm going to order that the jury polling cards be sealed and made a part of the record. Be put in an envelope along with the ․ not sealed, but made part of the record with the responsive verdict forms.

(Emphasis added.)

․

The trial court did not comply with [ ] article [812] because it questioned one juror in open court rather than remanding the entire panel for further deliberation or declaring a mistrial. The appellate record contains an incomplete transcript of the trial court proceedings, but a minute entry indicates that a bench conference was held immediately before Juror Braden was interrogated and that defense counsel later objected to the verdict as illegal. In State v. Bannister, 97-48, p. 11 (La.App. 4 Cir. 1/27/99), 726 So.2d 1135, 1142, the appellate court presumed that defense counsel had entered a contemporaneous objection to the trial court's improper polling procedures, “given the several bench conferences and obviously thorough argument on point.” Similarly, we find that present defense counsel adequately preserved this issue for appellate review.

In Bannister, 726 So.2d at 1141, the trial court determined that the results of a written poll did not reflect a legal verdict, at which time a juror blurted out, “I have the tally right here ․ you all have to vote the same way–you all voted upstairs.” The trial court stopped that juror, repeated its instructions, and polled the entire panel again. After two bench conferences, the trial court polled the jury a third time before it pronounced a legal verdict. The appellate court noted the error of not returning the panel for deliberation, but found it harmless, as the record did not indicate that the comments of the juror influenced any of the others to change their votes. In State v. Amato, 96-606 (La.App. 1 Cir. 6/30/97), 698 So.2d 972, writ denied, 97-2626 (La. 2/20/98), 709 So.2d 772, one juror wrote “no” on a written ballot, but after questioning from the trial court stated that he probably misunderstood the written form and that he meant to respond “yes.” Additionally, the jury foreman stated that the vote was unanimous at the time the verdict was reached. The appellate court found no error where “the record show[ed] beyond a reasonable doubt that the verdict on Count 1 was unanimous.” Id. at 688-89 [988–89].

In the present case, Juror Braden readily admitted that she voted to convict during deliberations. Although she may have initially expressed some doubt, she changed her mind and voted with the majority. The record does not reveal that she was pressured into changing her vote, other than she was “out voted.” Although proper procedure would have been to remand for further deliberation, we do not find that noncompliance with Article 812 was reversible error in this case. By questioning Juror Braden, the trial court did determine that all six jurors voted to convict Defendant of second degree battery. This assignment of error lacks merit.

In the present case, as in James, the trial court's actions were not coercive but were simply an effort to clarify the return of a proper verdict by asking Ms. Johnson to indicate what her vote was. The record does not support a finding that Ms. Johnson was coerced to change her vote. We find that this assignment of error has no merit.

Id. at 806–08 (alterations in original).

Defense counsel's agreement and, thus, lack of objection to the trial court's polling procedure prevents the defendant from raising the error on appeal. La.Code Crim.P. art. 841. Even if the issue were to be addressed, however, the trial court's procedure in this case was not coercive but was an effort to clarify the jury's verdict.

Accordingly, we find this assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

The defendant asserts that his Sixth Amendment right to counsel was violated when his attorney conceded his guilt in opening and closing arguments.

Proceedings in Trial Court

Defendant cites the following portion of his counsel's opening statement:

Are we gonna sit here today and lie about there being sexual contact that didn't happen? No, it happened. But my client thought this girl was 17, and, further than thinking she was 17, she told him she was 17. This girl, who has a history of lying, told somebody she was 17. The law says that lack of knowledge of a person's age doesn't - - is not a defense in - - in a - - this type of sexual case. However, I challenge you to think about not knowing someone's age as a defense and somebody telling you specifically that they are 17 years old.

The defendant also cites the following argument in his defense counsel's closing:

Um, in this case, the crime does not fit the punishment here. I told you, in the opening, that there was sexual contact. And there was sexual contact. However, that sexual contact does not warrant life without parole. Randy Kennedy - - Deputy Randy Kennedy - - was arrested for indecent behavior with a juvenile. The young woman stated, in her interview, that she stroked his penis, in the garage, after her parents sent her down there to get money and food. She indicated, in her interview, that she had do it [sic] - - been doing that, sending pictures and text messages with him for about a year and a half. And if we're saying, yeah, she was 12 at the time, that means whenever she was doing things with Randy Kennedy, she was ten or 11. But that wasn't first degree rape. We didn't even arrest him for that because that was the investigator[’]s discretion. In fact, she said it was her discretion, when she sat here on the stand. And she said, point blank, that there was no physical contact between [the victim] and Randy. Did she not watch the same interview that we all watched? Stroked his penis - - I'm sorry, stroked his dick for about a minute. Andrew Flora arrested for felony carnal knowledge. He had sex with [the victim] the same night. That wasn't first degree rape. He had possession of the same images. That wasn't possession of child pornography. But that was Detective Welch's discretion. There's no evidence to support - - oh, I do have another thing. How would a 12-year-old have a preference for black cock, if she hadn't already had it?

Defendant's Argument in Pro Se Brief

The defendant claims his counsel's admission of guilt over his plea of “not guilty” violated his Sixth and Fourteenth Amendment constitutional rights. Additionally, the defendant contends that his counsel argued legally unavailable defenses by comparing the state's treatment of him to its treatment of two other persons with whom the victim had sex and by arguing that the victim told him she was seventeen. Finally, the defendant claims the error is a structural error and reviewable despite the lack of a contemporaneous objection.

State's Argument in Brief

The state replies that the ineffective assistance of counsel claim must be raised on post-conviction relief and contends the defendant failed to prove his counsel erred or that he was prejudiced. Furthermore, the state contends that in the two main cases cited by the defendant—McCoy v. Louisiana, 584 U.S. 414, 138 S.Ct. 1500 (2018), and State v. Horn, 16-559 (La. 9/7/18), 251 So.3d 1069—the defendants repeatedly objected to defense counsel's strategy of admitting guilt at trial. To the contrary, the state contends, the defendant in the present case provides no evidence that he voiced any objection to his trial counsel's admission of sexual contact with the victim.

As for the defendant's claim that his counsel argued legally unavailable defenses by comparing the state's treatment of him to its treatment of two other persons with whom the victim had sex and by arguing that the victim told him she was seventeen, the state asserts that the defendant proved no error. According to the state, “Despite the fact that neither argument constitutes a defense to the defendant's sexual involvement with a minor, counsel could have reasonably submitted both arguments in an attempt to mitigate the verdict and sentence in the case.” Accordingly, the state contends the defendant fails to prove his counsel's actions were not valid trial strategy.

Jurisprudence and Analysis

In McCoy, 584 U.S. at 417–18, the United States Supreme Court held:

We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands. With individual liberty—and, in capital cases, life—at stake, it is the defendant's prerogative, not counsel's, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the state to prove his guilt beyond a reasonable doubt.

The Louisiana Supreme Court applied McCoy in Horn, 251 So.3d at 1077, holding: “Defense counsel's decision to concede Mr. Horn was guilty of second-degree murder or manslaughter over Mr. Horn's objections resulted in a structural error requiring this court to vacate defendant's conviction and sentence.”

A federal district court in the Middle District of Louisiana found McCoy inapplicable when the record showed no explicit objection by a defendant to his attorney's concession of guilt:

The Court finds that Perry has failed to demonstrate a viable McCoy claim because, in this Court's view, and in that of most courts across the nation, McCoy requires an explicit objection by a defendant, on the record or in the presence of the trial judge, to his attorney's concession of guilt. Federal district courts within the Fifth Circuit have interpreted McCoy to require an explicit objection on the record to sustain a McCoy claim.

For example, in Cope v. Vannoy, [18-CV-1445-P (W.D. La. 2019) (unpublished opinion) (2019 WL 8918835),] Cope was convicted by a jury of first-degree murder and sentenced to life imprisonment. After his appeal was denied, he moved for post-conviction relief, arguing, among several other claims, that the alleged confession of guilt by his trial counsel violated his constitutional rights under McCoy. Although the District Court for the Western District of Louisiana held that Cope's McCoy claim was not exhausted as required by state law, it also distinguished McCoy as follows:

The Supreme Court observed that McCoy “opposed [counsel's] assertion of his guilt at every opportunity, before and after trial, both in conference with his lawyer and in open court.” McCoy, 138 S.Ct. at 1509. McCoy's objection was clearly stated and persistent. But here, there is no indication in the record that Cope ever objected to his attorney's strategy. In fact, Cope does not state when he supposedly objected to the strategy. At no point during opening statement, closing argument, or during recesses, did Cope voice any objection to his attorneys’ arguments or theories. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;” that is, a petitioner “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland 466 U.S. [668] at 689, 104 S.Ct. 2052 (citing Michel v. State of La., 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

In Gonzalez v. Lumpkin, [(20-CV-190) (S.D. Tex. Jan. 28, 2022) (unpublished opinion) (2022 WL 509038), report and recommendation adopted, 20-CV-190 (S.D. Tex. Feb. 18, 2022) (unpublished opinion) (2022 WL 508323), opinion withdrawn, 20-CV-190 (S.D. Tex. Feb. 25, 2022) (unpublished opinion) (2022 WL 1088405), and report and recommendation adopted, 20-CV-190 (S.D. Tex. Apr. 8, 2022) (unpublished opinion) (2022 WL 1063614)] the District Court for the Southern District of Texas addressed a 28 U.S.C. § 2254 motion challenging Gonzalez's state court murder conviction. In his opening argument, Gonzalez's attorney told the jury: “The evidence is going to show the following: that my client, if he did anything, he stole from that man [Bentancourt] after someone killed him; okay.” In his motion, Gonzalez claimed that he saw the objective of his defense as making it clear “that he was not guilty of any action that related [to] the murder or robbery of Bentancourt.” Further, he claimed that “his counsel's admission[s] were contrary to his objective of admitting nothing.”

Like the Cope court, the Gonzalez court distinguished McCoy:

The Supreme Court has held that “[w]hen a client expressly asserts that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” McCoy v. Louisiana, [548] U.S. [414], 138 S. Ct. 1500, 1509, 200 L.Ed.2d 821 (2018) (emphasis original). This is in contrast to cases where the defendant never asserts any such objective; the Sixth Amendment is not violated if the client never disavows or protests a lawyer's decision to strategically admit guilt. Florida v. Nixon, 543 U.S. 175, 188, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). Thus, the Sixth Amendment is violated only when the defendant specifically instructs counsel not to concede any portion of guilt and counsel disregards the client's wishes. McCoy, 138 S. Ct. at 1504. Indeed, in McCoy, the defendant “vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt,” and his objections were noted on the record. McCoy, 138 S. Ct. at 1505.

As the Supreme Court has stated, albeit in a slightly different context, the Court should not grant collateral relief based solely on “post hoc” assertions from a defendant about his true intentions during trial. Lee v. U.S., [582] U.S. [357], 137 S. Ct. 1958, 1967, 198 L.Ed.2d 476 (2017). Rather, courts “should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.” Id.

Earlier this year, in State v. Brown, [(16-998) (La. 1/28/22), 347 So.3d 745,] the Louisiana Supreme Court addressed a McCoy claim brought by a defendant whose trial counsel “essentially conceded guilt for second degree murder in his opening and closing statements.” The Brown court easily distinguished the facts of McCoy from those in Brown, specifically regarding Brown's failure to explicitly object to his counsel's defense strategy:

In McCoy, the defendant “vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt.” McCoy, 138 S.Ct. at 1505. However, in this case, there is little indication that defendant objected to the admission of guilt, which is defendant's choice; rather, it appears he objected to trial strategy, which is in counsel's purview. Defendant's objections to counsel arguably stem from a lack of communication and discussion between him and Marinoff, rather than from disagreement as to a specific objective, such as the decision to concede guilt for second degree murder. However, it is unclear whether defendant ever had the opportunity “to insist that counsel refrain from admitting guilt,” McCoy, 138 S.Ct. at 1505, if he was truly as blind to counsel's strategies as he claimed․ Ultimately, without defendant's explicit objection to an admission of guilt and with little evidence that defendant objected to something more than a lack of communication with counsel, this claim fails.

United States v. Perry, 13-57, pp. 6–7 (M.D. La. Aug. 10, 2022) (unpublished opinion) (2022 WL 3273279) (1st–5th, 7th alterations in original) (footnotes omitted).

After discussing cases interpreting McCoy in the same way, the court in Perry stated:

Based on the record before the Court, the fact that Perry never made his objection known to this Court, on or off the record, during trial or sentencing, and the reasoning and analyses in the jurisprudence discussed above interpreting McCoy, the Court concludes that Perry has failed to preserve a viable McCoy claim. There is simply nothing in the record demonstrating that, contemporaneous with the times Unglesby conceded Perry's guilt during opening and closing statements, Perry explicitly objected to Unglesby's trial strategy. There is nothing in the record showing that this Court was put on notice of Perry's objection at trial, and Perry never moved to represent himself or be appointed new counsel. It is undisputed that Perry never raised this issue on appeal.

Id. at p. 9.

Likewise, the record in the present case is void of any objection made by the defendant concerning his trial counsel's admission of sexual contact between the defendant and the victim. Thus, the defendant has failed to preserve a viable McCoy claim.

The defendant also claims his counsel was ineffective for arguing legally unavailable defenses by comparing the state's treatment of him to its treatment of two other persons with whom the victim had sex and by arguing that the victim told him she was seventeen. We agree with the state that this claim is one of trial strategy. This court has stated the following regarding an ineffective assistance of counsel claim regarding trial strategy:

To establish an ineffective assistance of counsel claim, a petitioner must show that: (1) his defense counsel's performance was deficient, which requires a showing that counsel's errors were so serious that he failed to function as that “counsel” guaranteed by the Sixth Amendment; and (2) the deficient performance so prejudiced the defense that the defendant was deprived of a fair trial, which is one “whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Both showings must be made before it can be found that the defendant's conviction “resulted from a breakdown in the adversary process that render[ed] the trial result unreliable.” Id. The proper standard for attorney performance is not perfect assistance. Rather, it is “reasonably effective assistance” of counsel. Id.

An accused cannot prove ineffective assistance of counsel by merely making allegations of ineffectiveness. Instead, “the accused must couple these allegations with a specific showing of prejudice.” State v. James, 95-962, p. 5 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465 (emphasis in original). In order to determine whether the alleged ineffectiveness prejudiced the defendant, the defendant “must show that but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different.” State v. Jones, 33,657, p. 11 (La.App. 2 Cir. 8/23/00), 765 So.2d 1191, 1199, writ denied, 00-2779 (La. 6/29/01), 794 So.2d 825.

In State v. McKinney, 19-380, pp. 9-10 (La.App. 5 Cir. 12/26/19), 289 So.3d 153, 162, the fifth circuit held:

In order to prevail, the accused must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; specifically, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. An alleged error that is within the ambit of trial strategy does not establish ineffective assistance of counsel because “opinions may differ on the advisability of such a tactic.” State v. Singleton, 05-634 (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 811, writs denied, 06-1208 (La. 11/17/06), 942 So.2d 532 and 08-2386 (La. 1/30/09), 999 So.2d 753.

Defendant argues that neither of his two public defenders provided effective representation.

․

․ Defendant asserts that his counsel's failure to take appropriate action is not trial strategy, that his counsel's performance was deficient, and that this deficiency prejudiced him.

Defendant makes general assertions about his counsels’ lack of preparation but does not specifically identify any exculpatory evidence that they were unable to uncover because they had insufficient time to prepare for trial. Defendant also makes a generalized claim that his attorneys did not spend sufficient time with him, but the record reflects that Defendant's attorneys met with him several times and explored a possible insanity defense. Defendant has not provided any information as to what he would have told his attorneys had they spent more time with him.

Ultimately counsel's chosen strategy was unsuccessful, but “[t]he choice of what defense to employ is perhaps the hallmark of the type of act for which Strickland requires that judicial scrutiny be highly deferential and for which there is a strong presumption that the decision was a function of reasonable professional judgment.” State v. Stallworth, 08-1389, pp. 10-11 (La.App. 4 Cir. 4/29/09), 11 So.3d 541, 547, writ denied, 09-1186 (La. 1/29/10), 25 So.3d 829. “It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. This court finds that Defendant's general assertion that his attorneys were unprepared is insufficient to satisfy the two-pronged Strickland test for establishing ineffective assistance of counsel.

․

Lastly, Defendant argues that his counsel failed to establish and argue the defense of voluntary intoxication, which would have negated the specific intent required for attempted first degree murder.

․

․

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983).

As indicated from the case law above, there is a strong presumption that counsel's conduct falls within the range of reasonable professional assistance and trial strategy. However, we find that this claim regarding the intoxication defense is relegated to post-conviction relief where a full evidentiary hearing can be conducted. At such a hearing, Defendant's counsel will be able to testify about their strategy and their decisions regarding the witnesses.

State v. Deville, 22-350, pp. 17–23 (La.App. 3 Cir. 11/23/22), 354 So.3d 99, 112–15.

In State v. Mosley, 25-1214, p. 3 n.3 (La. 5/19/26), 437 So.3d 650, 652, n.3 (per curiam), the supreme court cited Deville and stated the following regarding the relegation of trial strategy claims to post-conviction relief:

Since evaluating defendant's ineffective assistance of counsel claim requires evidence of the defense's intended trial strategy, the claim would be more properly addressed on collateral review, where an evidentiary hearing would allow defendant the opportunity to show whether persuasive evidence of his intoxication was excluded at trial by counsel's failure to preserve the defense. See, e.g., State v. Deville, 2022-0350 (La. App. 3 Cir. 11/23/22), 354 So.3d 99 (relegating to post-conviction relief an ineffective assistance of counsel claim for failure to raise an intoxication/specific intent defense, as a full evidentiary hearing was needed for counsel to testify regarding trial strategy); see generally State v. Burkhalter, 428 So.2d 449, 456 (La. 1983); State v. Seiss, 428 So.2d 444, 449 (La. 1983).

Likewise, the defendant's ineffective assistance of counsel claims regarding his counsel's trial strategy is relegated to post-conviction relief, where a full evidentiary hearing can be held as to defense counsel's trial strategy.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

In this assignment, the defendant argues his counsel was ineffective for failing to object to the trial court's removal of Juror No. 4 and replacing her with Alternate No. 1 without exploring Alternate No. 1's potential for bias (Pro Se Assignment of Error Number One) and for failing to move for a mistrial when the polling showed a non-unanimous verdict (Pro Se Assignment of Error Number Two). For the reasons discussed in the previous assignment of error, these decisions fall within the realm of trial strategy and are relegated to post-conviction relief.

The defendant also claims his counsel erred in failing to object to the trial court's limit of the number of back strikes and for failing to object to the trial court's decision to alternate which party would go first in tendering the jurors for challenges. The trial court stated the following in the present case:

All right, just - just so I'll make everybody clear, there are 12, each - - each side has 12 peremptory challenge[s] during the voir dire. I will allow one back strike at the end and the way I'm going to do this, I'm going to alternate who goes first, beginning with the - - with the state.

․

BY THE COURT:

One. Yeah, at the - - at the very end, I will ask at the end whether there are any backstrikes and then we will go from there, if there are. Once we're on the last panel.

Defendant cites La.Code Crim.P. art. 788, which states:

A. After the examination provided by Article 786, a prospective juror may be tendered first to the state, which shall accept or challenge him. If the state accepts the prospective juror, he shall be tendered to the defendant, who shall accept or challenge him. When a prospective juror is accepted by the state and the defendant, he shall be sworn immediately as a juror. This Article is subject to the provisions of Articles 795 and 796.

B. If the court does not require tendering of jurors, it shall by local rule provide for a system of simultaneous exercise of challenges.

The defendant cites section (a) of the Official Revision Comment, which states that Article 788 “has considerable value to a defendant.” The comment further explains that, “Because the state is forced to choose first, the defendant may be saved the loss of a peremptory challenge.” The defendant claims his counsel should have known the law and objected to these two decisions by the trial court and claims his counsel's failure to object prejudiced him by putting him at a disadvantage throughout voir dire.

Neither the state nor the defendant chose to exercise any back strikes when asked by the trial court. Thus, the defendant fails to show how he was prejudiced by the trial court's limit of the number of back strikes.

As for the trial court's decision to alternate between the state and the defendant as to who “goes first,” it appears from the voir dire transcript that the trial court alternated who first exercised the peremptory challenges. Defense counsel did not object to this process. Therefore, the defendant is prevented from raising the error on appeal. La.Code Crim.P. art. 841. Furthermore, the defendant's brief states that the defense used ten peremptory challenges. Our review of the minutes confirms this number of challenges. In State v. Plaisance, 00-1858, p. 34 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1196, writ denied, 02-1395 (La. 11/27/02), 831 So.2d 270, cert. denied, 538 U.S. 1038, 123 S.Ct. 2084 (2003), the court found Plaisance's failure to exhaust his peremptory challenges prevented him from showing he was prejudiced by the procedure used by the trial court in alternating the tender of jurors: “As voir dire in the instant case concluded with the defendant having five unexercised peremptory challenges, he has failed to show that his constitutional right to peremptorily challenge jurors was prejudiced by the alternating tender procedure employed by the trial court.” Likewise, the defendant fails to prove prejudice in the present case.

Accordingly, the defendant's claim of ineffective assistance of counsel as to the trial strategy of his trial counsel should be relegated to post-conviction relief. In all other respects, this assignment of error lacks merit.

PRO SE REQUEST FOR ERROR PATENT REVIEW

Finally, the defendant asks this court to review the record for errors patent. As required by La.Code Crim.P. art. 920, this appellate record has been reviewed for errors patent.

CONCLUSION

The defendant's convictions and sentences are affirmed. We instruct the trial court to amend the October 23, 2025 minute entry to set forth the jury's verdict as to each count. Additionally, we instruct the trial court to amend the sentencing minute entry to accurately reflect the trial court's statement regarding the first degree rape being a crime of violence. Consistent with this court's discussion, the defendant's claims regarding the ineffective assistance of his counsel are relegated to post-conviction relief since they relate to trial counsel's use of trial strategy.

CONVICTIONS AND SENTENCES AFFIRMED. REMANDED WITH INSTRUCTIONS.

PICKETT, Chief Judge.