STATE v. BREAUX (2026)

NOTICE OF JUDGMENT AND CERTIFICATE OF MAILING

NOTICE IS HEREBY GIVEN that the attached judgment and written opinion was rendered this date and a copy was mailed to the trial judge, all counsel of record and all parties not represented by counsel as listed above.

FOR THE COURT

Renée R. Simien Clerk of Court

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

25-680

STATE OF LOUISIANA

VERSUS

DARTANYAN KEITHCEL BREAUX

Judgment rendered and mailed to all parties or counsel on November 12, 2026. Applications for rehearing may be filed within the delays allowed by La. Code Civ. P. art. 2166 or La. Code Crim. P. art. 922.

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 9282-23 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

CHARLES G. FITZGERALD JUDGE

Court composed of Charles G. Fitzgerald, Gary J. Ortego, and Wilbur L. Stiles, Judges.

CGF

GJO

WLS

CONVICTION AND SENTENCE AFFIRMED.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

25-680

STATE OF LOUISIANA

VERSUS

DARTANYAN KEITHCEL BREAUX

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 9282-23 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

CHARLES G. FITZGERALD JUDGE

Court composed of Charles G. Fitzgerald, Gary J. Ortego, and Wilbur L. Stiles, Judges.

CONVICTION AND SENTENCE AFFIRMED.

Douglas Daniel Brown The Douglas Brown Law Firm, LLC 725 Westin Oaks Drive Hammond, Louisiana 70404 (985) 310-6900 Counsel for Defendant/Appellant: Dartanyan Keithcel Breaux

Stephen C. Dwight District Attorney David S. Pipes Assistant District Attorney Fourteenth Judicial District 901 Lakeshore Drive, Suite 800 Lake Charles, Louisiana 70601 (337) 437-3400 Counsel for Appellee: State of Louisiana

FITZGERALD, Judge.

Defendant, Dartanyan Keithcel Breaux, appeals his conviction and sentence for aggravated rape.

In June 2023, Defendant was charged by grand jury indictment with aggravated rape. Trial began on April 8, 2025. Two days later, a unanimous jury found Defendant guilty as charged. Three weeks after that, Defendant was sentenced to life imprisonment. Defendant now appeals his conviction and sentence.

On appeal, defense counsel asserts two assignments of error:

[1.] The trial court erred in admitting evidence of acquitted conduct under La.Code Evid. art. 412.2, thereby violating the defendant's right to a fair trial and the finality of prior acquittals.

[2.] The trial court abused its discretion by admitting evidence under Article 412.2 that should have been excluded under La.Code Evid. art. 403 due to unfair prejudice, confusion of the issues, and misleading the jury.

In addition, Defendant asserts six pro se assignments of error:

1. The trial court erred in allowing the State to introduce evidence of uncharged conduct that expanded the theory of prosecution beyond the indictment.

2. The trial court erred in denying a mistrial after the prosecutor referenced [Defendant's] failure to testify.

3. The evidence was insufficient to support the conviction beyond a reasonable doubt.

4. The trial court erred in denying the motion to quash the indictment.

5. The trial court failed to remedy prejudicial external influence arising from media coverage during trial.

6. Trial counsel rendered ineffective assistance by failing to investigate, retain appropriate assistance, and challenge the State's use of uncharged allegations.

LAW AND ANALYSIS

All criminal appeals are initially reviewed for errors patent on the face of the record. La.Code Crim.P. art. 920. After reviewing the record before us, we find no such errors.

Third Pro Se Assignment of Error

This assignment is addressed first because it challenges the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 (La.1992). “The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal[.]” Id. at 734.

A sufficiency-of-the-evidence challenge is reviewed on appeal under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in original). “This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521.

Thus, the appellate court's function is not to assess the credibility of witnesses or to reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. The reviewing court must instead afford great deference to a jury's decision to accept or reject the testimony. State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied, 02-2595 (La. 3/28/03), 840 So.2d 566, and 02-2997 (La. 6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404 (2004). “Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency.” Id. at 626.

Summary of the Record Evidence

The victim, S.R., testified that she was twenty-three years old and living in Lake Charles on July 3, 1988.¹ Early that morning, she observed Defendant enter her home through a window. She did not know him, so she ran to the front door and screamed. But Defendant grabbed her, threw her to the ground, and punched her in the face at least four or five times.

Defendant then dragged S.R. into the bathroom. Here is S.R.’s account of what happened next:

[T]here was a first attempt and I think my body just shut down and there was -- I mean it wasn't happening, and so at that point [Defendant] wet his mouth, he was right there by the sink, and moistened things up and at that point he was able to enter me.

S.R. testified that the rape lasted for five to ten minutes, during which she was fully penetrated. When Defendant left, S.R. called her family and went to the hospital. She did not remember getting in the car or the drive to the hospital because she was exhausted and traumatized.

When asked on cross-examination if she could verify the accuracy of what a deputy had written in his incident report, S.R. explained:

Well, I remember when I read that, that was accurate. Now, the blacking out part, you know, I don't know if I truly blacked out, but I remember everything that happened to me. I remember the penetration, I remember being raped. I remember him coming through the window. I remember his three-stripe Adidas tennis shoe coming in first. I remember being dragged into the bathroom and all the situations on that sheet that that officer wrote. I do remember all of that.

Theresa Taft was the emergency room nurse who performed the rape examination of S.R. After explaining how the examination was conducted, Ms. Taft recalled that S.R.’s vagina “was very irritated and then whenever [the doctor] put the speculum in the vagina this hair was just there. It was course and black and stood way out.” Ms. Taft also identified photographs of S.R. that were taken during the examination. The photographs show a bruised eye; a swollen and bloodied lip; and a swollen face and cheeks. They also show bruising on S.R.’s breast, hand, and leg, along with bruising and abrasions on her elbows, forearm, and back. Ms. Taft described S.R. as being in shock, traumatized, and exhausted.

In 2023, Detective Cory Myers was assigned to reopen the investigation of this case, which had begun in 1988, after information was received from the crime lab about a DNA match. After interviewing Defendant, Detective Myers obtained a search warrant to obtain Defendant's DNA through buccal swabs. The swabs were introduced into evidence. In addition, Defendant's recorded interview, in which he denied all accusations, was played for the jury and admitted into evidence.

Monica Quaal testified next. She was qualified as an expert in the field of forensic DNA analysis. Ms. Quaal initially provided the jury with some background information:

In 2023 -- there has been a large initiative in the DNA community for cold cases, especially with rape kits that were untested during these years when there wasn't DNA available. So there has been additional grant funds. There has been a big push in our community to start testing these kits that have been stored and that we could still get DNA from. So I started a project with CPSO at that time and this was one of the cases that we started with.

She then discussed the testing method and procedures that were utilized. According to Ms. Quaal, the major contributor profile obtained from S.R.’s anal swab was consistent with Defendant's buccal swab. She explained: “In that anal swab, that profile, [Defendant] was the major contributor, which means there was more of his DNA present in that sperm fraction than the victim's or whoever is the minor contributor.”

Sufficiency of the Evidence—Aggravated Rape

As previously stated, Defendant challenges the sufficiency of the State's evidence to support a conviction for aggravated rape.

In 1988, which is when the offense occurred, La.R.S. 14:42 defined aggravated rape as follows:

A. Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:

(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.

(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

To summarize, S.R. testified that an unknown man broke into her house through her window, punched her in the face repeatedly when she tried to escape, dragged her into the bathroom, and penetrated her for five to ten minutes. Immediately thereafter, S.R. went to a hospital and submitted to a rape examination. The results of that examination, including the photographs taken in conjunction therewith, corroborated her testimony. Additionally, enough semen was detected in the victim's anal swab to generate a DNA profile, and that profile ultimately matched Defendant's DNA profile.

Thus, in viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found proof beyond a reasonable doubt that Defendant was guilty of aggravated rape.

First Assignment of Error

In this assignment, defense counsel asserts that the trial court erred in admitting evidence of acquitted conduct under La.Code Evid. art. 412.2.

“[A] trial court's ruling on admissibility of evidence under La.Code Evid. art. 412.2 is reviewed for abuse of discretion.” State v. Cormier, 24-318, p. 13 (La.App. 3 Cir. 12/4/24), 403 So.3d 618, 627.

Louisiana Code of Evidence Article 412.2 states in relevant part:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

The Louisiana Supreme Court addressed the application of La.Code Evid. art. 412.2 in State v. Cotton, 00-850, pp. 10–11 (La. 1/29/01), 778 So.2d 569, 577–78 (second alteration in original):

As the U.S. Supreme Court has explained, an offer of evidence of a defendant's prior bad acts for 404(B) purposes does not constitute an attempt to prosecute the defendant for those prior bad acts. In United States v. Felix, 503 U.S. 378, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992), the U.S. Supreme Court further explained the rule of Dowling [v. United States, 493 U.S. 342, 110 S.Ct. 668 (1990),] and its operation in the 404(B) context. There, defendant committed federal drug offenses in both Oklahoma and Missouri. He was first tried and convicted in federal court in Missouri for attempting to manufacture an illegal narcotic; some evidence of the Oklahoma offenses was introduced in the Missouri trial. He was then tried and convicted in federal court in Oklahoma for conspiracy and substantive offenses related to his drug activities in that state. In holding that Felix's double jeopardy rights had not been violated, the Court explained its holding in Dowling:

The primary ruling of Dowling was our conclusion that the collateral-estoppel component of the Double Jeopardy Clause offered Dowling no protection despite his earlier acquittal, because the relevance of evidence offered under Rule 404(b) was governed by a lower standard of proof than that required for a conviction. But it is clear that we would not have had to reach the collateral-estoppel question if the mere introduction, pursuant to Rule 404(b), of evidence concerning the Henry robbery constituted a second prosecution of that crime for purposes of the Double Jeopardy Clause. Underlying our approval of the [prior acquittal] evidence in Dowling is an endorsement of the basic, yet important, principle that the introduction of relevant evidence of particular misconduct in a case is not the same thing as prosecution for that conduct.

Id. at 386–87, 112 S.Ct. at 1383 (emphasis added). The Felix Court made clear that the introduction of evidence of relevant prior bad acts under article 404(B) does not amount to a prosecution for those acts. It is for this reason that the double jeopardy protection does not apply when the State seeks to introduce acquittal evidence as other crimes evidence under article 404(B).

Similarly, the distinction between Ashe [v. Swenson, 397 U.S. 436, 90 S.Ct. 1189 (1970),] and Dowling was explained in Charles v. Hickman, 228 F.3d 981 (9th Cir.2000), as follows:

Dowling did not alter Ashe so much as it introduced a new perspective on the meaning of the “ultimate fact” decided in the first trial. Instead of meaning that certain acts did not happen, an acquittal means that they were not proved beyond a reasonable doubt. If an act that could have been proved to a lesser degree than that required for conviction is for some reason probative in a subsequent trial, it need not be excluded because of the prior acquittal.

Id. at 986 (quoting United States v. Seley, 957 F.2d 717, 723 (9th Cir.1992)). The Fifth Circuit Court of Appeals has stated the “rule” of Dowling as follows:

In the aftermath of Dowling, collateral estoppel bars the introduction of evidence in a subsequent proceeding only if the facts “necessarily determined” in the first trial were determined under the same burden of proof applicable in the subsequent trial․ A general verdict of acquittal “necessarily determines” only that the evidence was insufficient to prove each element of the offense beyond a reasonable doubt; therefore, collateral estoppel bars relitigation only of facts that must be proven beyond a reasonable doubt.

United States v. Brackett, 113 F.3d 1396, 1401, n. 9 (5th Cir.1997).

We agree with these characterizations of Dowling's holding. Thus, under Dowling, the fact of a prior acquittal does not automatically prevent the State from introducing in a subsequent trial, under La.Code Evid. art. 404(B), evidence of a defendant's prior acts for which he was acquitted if the required standard of proof of the prior act is less than that required for conviction. In the instant case, the State's burden to prove defendant's prior bad acts under La.Code Evid. art. 404(B) is obviously lower than the State's burden of beyond a reasonable doubt required to convict a defendant; therefore, the constitutional protections against double jeopardy do not preclude the admission of evidence relating to the prior crimes of which defendant has been acquitted.

The application of La.Code Evid. art. 404 was also at issue in State v. Davis, 22-266 (La.App. 4 Cir. 5/18/22), 340 So.3d 1186, writ denied, 22-963 (La. 7/15/22), 342 So.3d 310. As the fourth circuit explained:

It is not necessary, for purposes of article 412.2 testimony, for the defendant to have been charged, prosecuted, or convicted of the ‘other acts’ described. State v. McClendon, 17-0160, p. 17 (La. App. 4 Cir. 9/27/17), 228 So.3d 252, 263 (citing State v. Dale, 50,195, p. 11 (La. App. 2 Cir. 11/18/15), 180 So.3d 528, 536); see also State v. Cox, 15-0124, p. 12 (La. App. 4 Cir. 7/15/15), 174 So.3d 131, 138. The State need only prove the prior acts by a preponderance of the evidence, not beyond a reasonable doubt as required to obtain a conviction. Cox, 15-0124, p. 13, 174 So.3d at 138 (citing State v. Scoggins, 10-0869, p. 11-12 (La. App. 4 Cir. 6/17/11), 70 So.3d 145, 152-53).

Id. at 1187–88.

Similarly, in State v. Cormier, 403 So.3d 618, the defendant argued that videos showing a prior sexual assault should not have been admitted because the prosecution failed to show that the videos evidenced modus operandi. This court disagreed: “[B]ecause the videos were introduced under La.Code Evid. art. 412.2, this argument lacks merit as the State does not need to show the situations are similar the way it would have needed to do to introduce the videos under La.Code Evid. art. 404.” Id. at 626.

To sum up, although prior acts of sexually assaultive behavior need not be similar for admissibility under La.Code Evid. 412.2, they most certainly are here. For example, in the case before us, Defendant was accused of entering the victim's residence through a window, striking her until she was unconsciousness, raping her, leaving his DNA inside her, evading capture for years, and denying knowing the victim in police interviews. Likewise, in Defendant's earlier case, he was accused of entering the victim's residence while disguised as a housing authority representative, striking and strangling her, raping her, leaving his DNA inside her, evading capture for years, and denying knowing the victim in police interviews.

Even still, Defendant argues that because he was acquitted in the earlier case, the State was precluded from using any of that evidence to show his prior acts of sexually assaultive behavior. But again, because an acquittal only means that a crime was not committed beyond a reasonable doubt, it has no bearing on whether the crime was committed by a preponderance of the evidence.

Put simply, the trial court did not abuse its discretion by admitting the subject acquittal evidence under La.Code Evid. art. 412.2.

Second Assignment of Error

In this assignment, defense counsel argues that the trial court abused its discretion by admitting evidence that was unduly prejudicial and misleading to the jury under La.Code Evid. art. 403. However, this objection was not made in the trial court. There is nothing in the record to suggest that Defendant sought to exclude evidence on this ground.

Consequently, this assignment of error has not been preserved for our review. See, e.g., State v. Taylor, 12-345 (La.App. 4 Cir. 6/26/13), 118 So.3d 65, writ denied, 13-1830 (La. 2/28/14), 134 So.3d 1169.

First Pro Se Assignment of Error

In this assignment, Defendant asserts that he was denied due process when the State was allowed to introduce evidence of a prior sexual assault under La.Code Evid. art. 412.2. Defendant specifically argues that the other crimes evidence deprived him of “fair notice of the nature and cause of action and a meaningful opportunity to defense.” But this argument is being made for the first time on appeal.

It is well established that “a new ground for an objection cannot be presented for the first time on appeal.” State v. Andrews, 24-295, p. 26 (La.App. 3 Cir. 12/11/24), 404 So.3d 770, 790. Thus, this assignment of error lacks merit.

Second Pro Se Assignment of Error

Defendant asserts in this assignment that the trial court erred by denying a mistrial after the State referred to Defendant's failure to testify during closing argument. Defendant contends that the trial court was mandated to declare a mistrial under La.Code Crim.P. art. 770(3). The State disagrees, arguing that Defendant waived his right to a mandatory mistrial under the unique facts of this case.

“We review the denial of a motion for mistrial under the abuse of discretion standard of review.” State v. Hernandez, 17-803, p. 5 (La.App. 3 Cir. 3/7/18), 241 So.3d 1053, 1057.

Louisiana Code of Criminal Procedure Article 770 states in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

․

(3) The failure of the defendant to testify in his own defense; or

․

An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

On the morning of April 9, 2025, just before opening statements were to begin, defense counsel informed the court that Defendant wanted to give his own opening statement. At this point, the trial court turned to Defendant for clarification. After all, a few days earlier, on the first morning of jury selection, the trial court asked Defendant if he intended on representing himself at trial, noting that he had acted as his own counsel at various stages of the case. Defendant said no, explaining that his stand-by counsel would fully represent him. So why was Defendant now asking to make his own opening statement? When pressed by the trial court, Defendant stated that “nobody else can testify from 1988. I got to do it for myself.”

Thereafter, there was an extensive colloquy between the trial court and Defendant about his request and the issues it presented. During this conversation, Defendant agreed to limit his self-representation to the opening statement. In other words, Defendant agreed that he would not personally examine witnesses or present a closing argument. The trial court then addressed with Defendant the general procedure for opening statements. Next, the court addressed guidelines to limit the scope of Defendant's opening statement. Defendant's understanding of these guidelines is reflected in his response to the trial court: “You made some boundaries, Judge Ritchie, to where basically saying I can speak on what I think the evidence will show. I'm not going to cross that line.”

The State, however, was not convinced:

[THE STATE]:

Well, to be clear, Judge, if [Defendant] elects to do his own opening statement essentially that's him giving testimony without cross. So the State will be arguing that at the closing argument or rebuttal. If there is any inadmissible evidence that comes up, any hearsay, we're going to be objecting. So I'm just saying this out loud so [Defendant] is aware of what the State will be saying. The State most likely in its opening will say that defense believes that there's a break in the chain of custody. So if he wants to argue there's a break in the chain of custody we're fine with that. My concern is, Judge, I don't want him to necessarily not be able to do an opening statement and this come back on appeal. So if he's going to do an opening statement I agree with the guidelines that the Court has set before him as long as [Defendant] stays within those guidelines.

THE COURT:

Well, and I think he just agreed to do that and I think what he just articulated about what he agreed to do I think is -- would work out I think very reasonably well.

Ultimately, the trial court ruled that Defendant would be allowed to give an opening statement without waiving his right to counsel for the other aspects of trial. In other words, the trial court permitted a hybrid representation with Defendant, on the one hand, acting as co-counsel for the purpose of making his opening statement and with defense counsel, on the other hand, examining all witnesses and presenting a closing argument. The jury was then seated in the courtroom and trial commenced.

Here is a portion of Defendant's opening statement to the jury:

My name is Dartanyan Breaux. This is about a case in 1988 that involved an aggravated rape case. I was in the United States military, United States Air Force, 13 hours away. I want to stress, and I want to thank Judge Ritchie again, I wanted to stress and talk to you all about statements of the case.

It was 1988 and I wish you could keep that year in your head, 1988. As a matter of fact, all the people that were involved in the case, the first officer there to speak with the witness, the second officer there to speak with the witness, are dead. The doctor that examined the witness is dead. It's a 37-year-old cold case.

․ I have been incarcerated since April 19th of 2023. I have a wife, 37 years, and she mentioned that I was gonna have somebody say that I was gonna be somewhere else from where I was. The alleged incident happened at 5 a.m. in the morning. My wife would know where I was at 5 a.m. in the morning. I have -- at that time of the incident I shall say I had a 11-month-old baby and around 5 a.m., that's my first son, at 5 a.m. that morning my wife would've known if I was there or not. I was stationed 13 hours away from Lake Charles at the time and back then some of you might be able to remember, some of you may not, the speed limit was 50, 55. It wasn't 65, 70.

Thereafter, the State presented its case-in-chief followed by the defense-in-chief. Although the defense did call Defendant's wife as a witness, Defendant did not testify. The trial then moved to closing arguments.

Among other things, defense counsel stated during his closing argument that “Mr. Breaux, my client, said he wasn't there and he didn't do it[.]” Later in his argument, defense counsel reminded the jury that “Mr. Breaux didn't testify, but you heard him speak. I mean he spoke to you in opening, but I'm talking about he spoke to the detectives about this case and answered their questions[.]” Defense counsel then cautioned the jury as follows:

So I trust all of you have agreed, you know, when you took your juror's oath that you wouldn't hold it against the defendant what the law doesn't allow you, which is if he maintains his right to remain silent. Criminal defense attorneys for many reasons usually prefer that their clients don't take the stand. There are exceptions, but when someone has gone on video and answered every question that the detectives ask them, that is not as necessary as it might otherwise be. My hope is that you are satisfied that he did speak and you have something to consider there.

Thereafter, the State presented a rebuttal argument to the jury, which included the following comments:

The only reason why [Defendant] gave you an opening statement is because he didn't want to get on that stand and get crossed. That's why. He evaded cross examination. So he tried to give you his testimony in his opening statement and what did he say? Because this is one thing I do agree with him on. He said listen to the facts and that's what I asked you to do this morning or yesterday morning. Listen to the facts and examine the evidence. The fact is --

At this point, defense counsel objected, stating that “[i]t's a reference to a defendant not taking the witness stand and that is strictly prohibited.” Here is the exchange that followed:

[THE STATE]:

Judge, if may I respond. Whenever we had the discussion with [Defendant] doing his own opening I said out loud this is essentially a testimony without cross. I'm saying it out loud so [Defendant] can know what we will argue in closing argument. That's what I said yesterday.

[DEFENSE COUNSEL]:

I may have more outside the presence of the jury.

THE COURT:

Well, I was just going to say if y'all want to approach the bench for a second.

[BENCH CONFERENCE BEGINS]

THE COURT:

Well, the problem is it's a slippery slope. I mean you cannot reference -- I mean it can't be obvious that he didn't testify and so you've got to be very, very careful when you're talking about the fact that he didn't testify and so when you make that comment you're on dangerous ice, you know, and we get through this whole trial and then you made that comment is very, very -- I mean just because you said that -- just because you made that comment with him in opening statement, I mean I limited him and I think you -- I gave him parameters. He didn't go outside those parameters, but it wasn't -- I mean now if you were going to only speak to what he said in opening statement, I mean I think that's fair game, but I don't think you can say, yeah, but he didn't take the stand because he didn't want to be cross-examined. You can't do that.

[THE STATE]:

Yes sir.

THE COURT:

Because that's directly talking about his failing to take the -- you know, I mean you're directly saying or talking about him not testifying.

[THE STATE]:

Yes sir.

THE COURT:

I mean, you know, it's -- so --

[THE STATE]:

I can -- I will emphasize the fact that he has the right not to take the stand and you cannot hold that against him and I will move on.

THE COURT:

Well, I'm just trying to think. What was the context of what you said?

[THE STATE]:

I was going into listen -- because in opening he said listen to the facts and I was about to start saying I agree with him, listen to the facts. The fact is, and then I'll start giving the facts. So it was like my segway, I guess you would say.

THE COURT:

But I think you went a step too far in saying that's why he didn't take the stand.

[THE STATE]:

Uh-huh.

THE COURT:

So, you know, I think you -- so I think that, you know, it's fair to talk about, you know, what he said in opening statements --

[THE STATE]:

Yes sir.

THE COURT:

-- but I think that, you know -- I don't know, do you want me to emphasize to them in addition to her to say something herself?

[DEFENSE COUNSEL]:

I think that's one of the choices that the Court has and my client has asked me to move for a mistrial, and I do so, but the Court can either grant it or can give a curative instruction. It's his preference, of course, you know, would be a mistrial.

THE COURT:

Well, I understand that, but at the same I think based on the way this trial has gone and I think with you acknowledging several things in this case, you know your client giving his own opening statement, you acknowledging your client had been convicted of DWI, you're acknowledging several things that normally don't get said. You're acknowledging you're a public defender. You're acknowledging --you and your client both acknowledging that he's been in jail this entire time and so the way the trial has gone, I mean, I don't see that as being unduly prejudicial and something that can't be cured with an instruction. So I mean I'm going to give a curative instruction to them right now and I'm also going to ask the State to emphasize that -- you know, to say that, well, you know, maybe to say that -- well, you know, maybe to backtrack on that.

[THE STATE]:

Uh-huh, I can do that.

THE COURT:

But then if you want to just -- if you were to reiterate -- you know, if you want to say, look, he gave an opening statement and he asked you to do this or whatever, I mean you can do that.

[THE STATE]:

Yes sir.

THE COURT:

Or you can even comment on what he said in opening statement.

[THE STATE]:

Yes sir.

THE COURT:

You can even say he made some comments in opening statement and he wasn't under oath. You can even say that too.

[THE STATE]:

Yes sir.

THE COURT:

I mean you can even say, look, he attempted to say something in opening statement that wasn't accurate because I mean that's another reason I'm not going to grant a mistrial because he did try to get some things out in opening statement that he would not have been able to do otherwise.

So that's another reason I don't think it's appropriate to grant a mistrial, and so that is why that I think this case is different and I think that's why the State made that comment --

[THE STATE]:

Uh-huh.

THE COURT:

-- but I think that's always a dangerous thing. I have seen cases reversed because of comments made by prosecutors about the defendant not testifying and that's why I think it's always dangerous to go there and so I think -- but anyway for those reasons I'm going to deny the mistrial, motion for mistrial, and I'm going to just say that, you know -- did you officially object?

[DEFENSE COUNSEL]:

Yes. I need to register my objection for the record.

THE COURT:

Okay, yeah. All right, the objection -- well, I'm just going to sustain the objection to -- I'll say the objection to referencing the defendant not testifying. I'll say that to the -- I'll deny the motion for mistrial. I'm just going to say that -- because of the unique situation involving him giving that statement, his opening statement, I'm going to say, look, that he -- you know, that it's appropriate -- it's okay for you to reference that, but I'm just going to say -- but no reference to him not testifying. I'm just going to say that because he has an absolute right not to testify and it can't be held against him. I'm going to say that.

[THE STATE]:

Okay.

[BENCH CONFERENCE ENDS]

THE COURT:

All right, ladies and gentlemen, this is a little unusual situation. I'm going to sustain the objection to any reference to [Defendant] not testifying because, as you know, as we've discussed many times, he has the absolute right not to testify or put on any evidence at all and that cannot be held against him; however, this was an unusual situation because he did give an opening statement, his own opening statement, and so the State is allowed to comment on his opening statement and things that he may have said during his opening statement. So to that extent this was an unusual situation, but I just need to caution you that anything related to -- any comments -- and the State recognized that any reference to -- you're to ignore or I'm striking any reference to and you're to ignore any reference to the fact that the defendant did not testify. You cannot hold that against him, all right, and the State will proceed.

“The purpose behind the rule embodied in article 770(3) is to prevent attention from being drawn to the fact that the defendant has not testified in his own behalf.” State v. Fullilove, 389 So.2d 1282, 1284 (La.1980).

One year earlier, in State v. Marcello, 375 So.2d 94, 96 (La.1979), the supreme court held that because “Article 770 specifically directs that a mistrial be granted when the prosecution refers directly or indirectly to defendant's failure to testify, the trial judge was required to grant the motion, and his refusal to do so constituted reversible error.”

However, as Justice Dennis noted in his dissent in Marcello, La.Code Crim.P. art. 770 “establishes a statutory remedy designed to protect the defendant's right to remain silent and right against self-incrimination. Since the constitutional rights which the remedy is designed to protect are subject to knowing, intelligent and voluntary waiver, it necessarily follows that the remedy is also subject to such a waiver.” Id. at 97 (Dennis, J., dissenting) (citations omitted). That is precisely what happened in our case and that is why the trial court did not err in denying Defendant's request for mistrial.

As stated earlier, Defendant here gave his own opening statement, which was nothing more than unsworn testimony disguised as a statement. This is what the State warned against. This is also why the trial court articulated guidelines to limit the scope of Defendant's opening statement. Defendant knew the limitations: “You made some boundaries, Judge Ritchie, to where basically saying I can speak on what I think the evidence will show. I'm not going to cross that line.” Well, Defendant did cross that line. And he did so knowingly and intentionally, even to the point of acknowledging to the jury that he had waived certain rights: “The law does give the accused in a criminal trial some protections, but I'm gonna give away two of those right now because I think to maintain a pretense would be an insult to your intelligence.”

In the end, it seems clear to us that when Defendant stood before the jury and gave his version of events—as opposed to telling the jury what he thought the evidence would show—he voluntarily, knowingly and intelligently waived the remedy of a mistrial, especially considering the discussions between the trial court and both parties immediately before opening statements, defense counsel's statement to the trial court that a curative instruction was sufficient, and defense counsel's closing remarks that Defendant “said he wasn't there and didn't do it” and that Defendant “didn't testify, but you heard him speak.”

This assignment of error is therefore without merit.

Fourth Pro Se Assignment of Error

Defendant asserts in this assignment that the trial court erred by denying his motion to quash. Defendant specifically argues that “the charging instrument failed to provide adequate notice of the theory ultimately presented at trial” and that it should have been quashed for that reason. However, the record before us does not show that any motion to quash asserting such grounds was filed in the trial court. Nor does the record show a denial by the trial court of any such motion. Hence, this assignment is not properly before us.

Fifth Pro Se Assignment of Error

In this assignment, Defendant asserts that the trial court failed to remedy a prejudicial external influence caused by a false report issued by local media stating that Defendant had been found guilty prior to the end of trial. Defendant argues that “the court was required to take meaningful steps to ensure that the jury was not exposed to [this] prejudicial outside information.”

In response, the State acknowledges that a local news outlet published the inaccurate story on its website the night before the jurors began their deliberation. The State then points to the record, showing that the trial court did address the issue with both parties the next morning. And when the trial court suggested asking the jurors if they were aware of the story, defense counsel agreed that there was no point in raising that issue with them.

Because no objection was made in the trial court, this assignment of error was not preserved for appeal.

Sixth Pro Se Assignment of Error

In his final assignment, Defendant asserts that he was denied effective assistance of counsel. He specifically argues that his trial counsel failed to investigate critical aspects of the case, failed to retain appropriate experts or investigators, and failed to object to the admission and use of uncharged allegations.

The supreme court addressed this type of challenge in State v. Turner, 25-209, pp. 2–3 (La. 3/6/26), 429 So.3d 179, 182:

[W]hen a defendant alleges ineffective assistance of counsel, the defendant must meet the burden created by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a defendant show that defense counsel was constitutionally ineffective and that the defendant suffered prejudice because of the attorney's ineffective performance.

As we explained in State v. Celestine, 11-1403, p. 9 (La.App. 3 Cir. 5/30/12), 91 So.3d 573, 579, “General statements and conclusory allegations will not suffice to prove a claim of ineffective assistance of counsel.”

In sum, Defendant's claim of ineffective assistance of counsel is based entirely on general statements and conclusory allegations, meaning that this assignment is without merit.

DISPOSITION

Defendant's conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

FOOTNOTES

1.   The victim's initials are used in accordance with La.R.S. 46:1844(W).