The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
21-173
STATE OF LOUISIANA
VERSUS
TRISTAN ROMERO
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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 15-1357
HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE
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VAN H. KYZAR
JUDGE
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Court composed of Billy Howard Ezell, John E. Conery, and Van H. Kyzar, Judges.
AFFIRMED AS AMENDED AND REMANDED.
Chad M. Ikerd
Louisiana Appellate Project
P. O. Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
Tristan Romero
M. Bofill Duhe
District Attorney
W. Claire Howington
Assistant District Attorney
Iberia Parish
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana
KYZAR, Judge.
Defendant appeals his convictions and sentences for attempted first degree
murder, armed robbery with a firearm, and intimidation of a witness. For the
reasons herein set forth, we amend the conviction for attempted first degree murder
to that of attempted second degree murder, remand for resentencing for this
offense, affirm the conviction and sentence for armed robbery with a firearm, and
affirm the conviction and sentence for intimidation of a witness.
FACTS AND PROCEDURAL HISTORY
Defendant, Tristan Romero!, was charged by bill of information filed on
September 23, 2015, with attempted first degree murder, a violation of La.R.S.
14:27 and La.R.S. 14:30, armed robbery with the use of a firearm, a violation of
La.R.S. 14:64 and La.R.S. 14:64.3, and intimidating a witness, a violation of
La.R.S. 14:129.1. An amended bill was filed on January 14, 2016.
Jury selection began on March 28, 2017. During the trial, it was established
that the victim of the attempted murder and robbery, Thaddeus Davis, was in the
driver’s seat of his car in line at the drive-thru at the Red Barn store in New Iberia,
Louisiana, on May 25, 2015. Defendant and two other men entered Davis’s
vehicle. Defendant demanded Davis’s money, but then shot Davis after he threw
the money out of the car. The bullet struck Davis in the left arm and shoulder area.
The three men then fled, without picking up the money Davis threw on the ground.
Mr. Dana Lopez was also in the drive-thru line at the Red Barn at the time of
the shooting. He was a passenger in the vehicle in front of the one driven by
Davis. Defendant later approached Lopez on the street, picked up a milk crate,
' Defendant is referred to as both Tristan and Triston throughout the record. For the
purposes of clarity, we shall refer to Defendant as Tristan throughout.
?The amended bill further defined armed robbery. The amended bill did not, however,
include the citation for an attempt, as it related to the charge of attempted first degree murder.
told Lopez to keep Defendant’s name out of his mouth, and put the crate down.
Lopez later identified Defendant in a photographic lineup as the person who shot
Davis. Defendant was found guilty as charged on March 29, 2017.
A habitual offender bill was then filed on March 30, 2017. Therein, the
State sought to have Defendant sentenced as a second or subsequent offender on
the charge of armed robbery with a firearm. On July 31, 2017, Defendant was
adjudicated a second offender and sentenced to seventy-five years at hard labor
without benefit of probation, parole, or suspension of sentence for armed robbery
with a firearm. He was also sentenced to fifty years at hard labor without benefit
of probation, parole, or suspension of sentence for attempted first degree murder
and to twenty years at hard labor for intimidation of a witness. All sentences were
to be served concurrently. Defendant, through his counsel, orally moved for
reconsideration of the sentences, which was denied.
Defendant filed a Motion and Order for Appeal on August 31, 2017, which
was granted on September 1, 2017. The record was lodged with this court on
March 12, 2021.3
Defendant is now before this court asserting three assignments of error: 1)
the State failed to prove he was guilty as charged; 2) the convictions for both
attempted first degree murder and armed robbery constitute double jeopardy; and
3) the trial court erred in denying the defense’s Batson challenge.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find there
are two errors patent.
The reason for the lengthy delay in receiving the record on appeal was not disclosed.
2
First, the amended bill of information failed to provide the full citations for
attempted first degree murder. This bill included the citation for first degree
murder, La.R.S. 14:30, but failed to include the citation for the attempt statute,
La.R.S. 14:27. It is noted that the original bill of information actually contained
the proper statutory references. The erroneous citation of a statute in the charging
instrument is harmless error if the error does not mislead Defendant to his
prejudice. La.Code Crim.P. art. 464. Defendant does not allege any prejudice
because of the incomplete citation, and, on review, we find the error harmless.
Next, the record before this court does not indicate that the trial court
advised Defendant of the prescriptive period for filing post-conviction relief as
required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform
Defendant of the provisions of Article 930.8 by sending appropriate written notice
to Defendant within ten days of the rendition of the opinion and to file written
proof in the record that Defendant received the notice. State v. Hutchinson, 18-445
(La.App. 3 Cir. 12/12/18), 261 So.3d 927, writ denied, 19-108 (La. 5/28/19), 273
So.3d 313, cert. denied, U.S. _,1408.Ct. 648 (2019).
DISCUSSION
Sufficiency of the Evidence
In his first assignment of error, Defendant contends the State failed to
sufficiently prove that he was guilty as charged. This assignment is segmented
into three subclaims: (1) the evidence was insufficient to prove he was the shooter;
(2) if the evidence proved he was the shooter, the facts do not support a finding
that he had the specific intent to kill; and (3) the evidence was insufficient to prove
he was guilty of intimidating Lopez into not testifying or giving a statement to
police.
When an appellate court reviews a sufficiency of the evidence
claim, the standard applied 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 proven beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676,
678 (La.1984). This standard has been codified by our legislature in
Louisiana Code of Criminal Procedure article 821, which provides:
“A post verdict judgment of acquittal shall be granted only if the court
finds that the evidence, viewed in a light most favorable to the state,
does not reasonably permit a finding of guilty.”. When circumstantial
evidence is used to prove the commission of the offense, Louisiana
Revised Statute § 15:438 mandates, “assuming every fact to be proved
that the evidence tends to prove, in order to convict, it must exclude
every reasonable hypothesis of innocence.” State v. Neal, 00-0674, p.
9 (La.6/29/01); 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122
S.Ct. 1323, 152 L.Ed.2d 231 (2002). This is not a separate test that
applies instead of a sufficiency of the evidence test when
circumstantial evidence forms the basis of the conviction. State v.
Cummings, 95-1377, p. 4 (La.2/28/96); 668 So.2d 1132, 1134.
Rather, all of the evidence, both direct and circumstantial, must be
sufficient under Jackson to convince a rational juror the defendant is
guilty beyond a reasonable doubt. It is not the function of the
appellate court to assess credibility or reweigh the evidence. /d.
State v. Dorsey, 10-216, pp. 42-43 (La. 9/7/11), 74 So.3d 603, 633, cert. denied,
566 U.S. 930, 132 S.Ct. 1859 (2012).
Detective Walter Kimble testified that he investigated the shooting of
Thaddeus Davis in May 2015, and Defendant was arrested in connection with the
offense. His investigation revealed that Davis was in line in his vehicle ordering
food when he was approached by Defendant, robbed, and then shot. Detective
Kimble searched the area and found a “spent forty round cal” and several one
dollar bills. A copper jacket, which is the “sleeve that basically surrounds a
projective inside of a casing,” was found inside Davis’s car.
Detective Kimble spoke to Davis and Dana Lopez. Lopez, who was a
passenger in a vehicle in line in front of Davis, was shown a photographic lineup
and identified Defendant as the man who shot Davis. The identification occurred
on June 26, 2015, a month and one day after the shooting.
Detective Kimble determined there was video surveillance at the Red Barn.
That video footage was admitted into evidence and played for the jury. At
approximately two minutes and fifteen seconds into the video, a black male in a
white shirt walks toward the parking lot of the Red Barn. At seven minutes, a
black male in a black shirt gets into the front passenger side of a car in the drive-
thru line, occupied up to that time by the driver, later determined to be the victim
Thaddeus Davis. A second black male, who is wearing a white shirt, gets in the
back driver’s side of the same car. A third black male, who is also wearing a black
shirt, subsequently gets in the back passenger seat. The three men in the passenger
seats all eventually get out of the car. After the man seated behind the driver gets
out, he approaches the driver’s door, which was opened at some point, and points a
gun at the driver. The driver throws money out the open back driver’s side door,
the same door the man wearing a white shirt and holding the gun exited. The man
with the gun neither picks up the money nor acknowledges its presence on the
ground. After the man with the gun turns to run, the driver of the car gets out of
the car and runs. He then returns to the car and tries to drive off.
The State then called Thaddeus Davis to testify. He stated that he was in
line at the Red Barn on May 25, 2015, when Defendant opened the back door of
his vehicle, pulled out a gun, and told Davis to give him everything he had. Davis
testified, “I gave him everything I had,” and Defendant then shot Davis in the arm.
Davis identified the driver of the jeep in front of his vehicle seen on the
video by the name “Heavy” and the passenger as Dana Lopez.* In viewing the
video tape of the incident, he again identified Defendant as the person who entered
the vehicle and told him “[t]o give it up.” In response to that demand, Davis stated
he threw his hands in the air and “just threw what I had out my pocket on the
‘Heavy was later identified as Dwight Williams.
5
ground.” Davis was then shot and ran from the vehicle. He stated he did not
threaten Defendant or act violently toward him, and he did not owe Defendant any
money.
Davis admitted to prior convictions for distribution of cocaine, possession of
cocaine, and possession of a schedule IV controlled dangerous substance. He also
admitted he had previously signed an affidavit indicating Defendant did not shoot
him. He testified he executed the affidavit because he did not want to press
charges and then stated Defendant’s mother and girlfriend asked him to sign the
affidavit. The affidavit, which was completed on October 21, 2015, stated,
“TTristan] Romero was not the person that shot me, and rob [sic] me behind the
Red Barn on May 27, 2015.”
Davis was questioned extensively about the affidavit before the jury and
explained his reasoning for its execution. Ultimately, he stated that at the time, he
was out of jail, on the streets, and was approached by Defendant’s mother and
girlfriend, who requested that he sign an affidavit stating that Defendant did not
commit the crime. The following exchange took place at trial between Defendant
and the attorney for the State:
Q. —_-- our deal that he’s talking about was for you to come to court
and tell the truth, correct?
A. Yes, sir.
Q. And the reason you were in jail June of 2016 was because we
did a material witness warrant because you didn’t appear in court for
this trial, correct?
A. Yes, sir.
Q Because you didn’t want to be here --
A. Yes, sir.
Q. _ -- because you’re scared --
A. Yes, sir.
Q. _-- and you’re worried? And so -- and that affidavit you signed
in October of 2015 was because this defendant’s mom and girlfriend
came and asked you to sign this affidavit?
A. — They just -- I just -- I didn’t want -- like when it first happened I
didn’t want to press charges or nothing, you know what I’m saying. |
didn’t want -- you know what I’m saying. I know I forgave so I didn’t
want to press charges or nothing so I felt like that at the same time just
sign the affidavit to see why -- you know what I’m saying because I
felt like, you know what I’m saying, God forgave me for all the things
I did so, you know what I’m saying. I felt like God was going to
forgive him for what he did, you know what I’m saying, so I signed
the affidavit because it was over with. I just didn’t want to press
charges. I felt like that’s the type of stuff that came with the streets so
I just left it alone.
Q. And have I ever asked you to do anything other than tell the
truth?
A. No, sir.
Davis stated that he did not want to be in court because he was concerned for his
safety and that of his family. After the exchange, Davis again identified Defendant
as the man that shot him.
Dana Lopez testified that the Red Barn was a drive-thru convenience store.
He and Dwight Williams were in front of Davis’s vehicle at the Red Bam at the
time of the incident. Lopez was shown the video footage from the drive-thru and
identified himself as the passenger in the Jeep in front of Davis’s vehicle.
testified that he did not see the events depicted on the footage transpire.
After the incident at the Red Barn, Lopez and Defendant had “some words.”
Lopez testified that he was walking his dog when Defendant approached him,
stating:
Tristan walked up and he asked me, he said, “You ‘Thinky.” That’s
my nickname “Thinky.” Everybody call [sic] me “Thinky.” I said,
“Yeah.” He said, “You know who I am?” I said, “No.” He said,
“Well, I’m bout it.” He said, “And keep my name out your mouth.”
7
And that was the end of it. I got [sic] a son that passed away the day
after Thanksgiving of last year and he know [sic] Tristan and he had a
talk with him and then the next time I saw Tristan he said -- we spoke,
he said, “My band [sic],” you know, “we good.” He said he made a
mistake.
Lopez further testified about the encounter:
Well, my dog -- first of all my dog don’t like confrontation so
she was probably like ready to go. So she stood up, and when things
got -- he picked up a milk crate when he walked up and then he said,
“Keep my name out your mouth,” and he put it back down. I walked
off. The next time I see him a couple of days later we was [sic] good.
My son Reginald had talked to him -- [.]
“{H]e told me just simply keep his name out my mouth. Yes, that was after the
incident, but I hadn’t put it together.” This occurred a couple of days after Davis
was shot. Lopez later clarified Defendant identified himself during the encounter
as “Body.”* When asked if he was intimidated by Defendant, Lopez testified that
“[k]eep my name out your mouth” was a phrase that was used while he was
“coming up” and that his anxiety went way up as a result of the encounter. He
went on to state that in hindsight, “I wouldn’t say I was intimidated, but being my
mental issues going on I could hear a pin drop in the next room and get anxious
and overwhelmed and this was a lot going on to say that I didn’t do anything.”
After the milk crate incident, Lopez spoke to Detective Kimble. He
indicated he was “picked up” by Jason Comeaux, who was with the narcotics
department, and had not reported the milk crate incident prior to that time. Lopez
further stated, regarding the milk crate incident, “It’s not -- it’s not a black and
white thing, it’s not clear, so if I can’t express what actually happened and why it
happened.” He then indicated the event occurred, but he did not report it, and he
would not have done so if he had not been picked up.
Lopez explained:
*Defendant’s nickname is Body.
I’m on extreme anxiety medicine. I take Xanax, I take Norcos, | take
Oxycodone .... I take Volumes [sic] and sometimes things like the
dog incident when it happens sometimes it’ll get -- like in my head, in
my mind, itll get way blown out of proportion. I got [sic] extreme
anxiety and I got the paper there to show you Somas, Xanax,
Oxycodone, Hydrocodone for the last three years still on it. I just got
two months ago my doctor to get me off the Xanax and he went from
Xanax 10 to Valuim 5’s and, so I mean, sometimes I’m everywhere.
He stated he took the medication every day, including the day he was in court.
Lopez testified that he spoke to Detective Kimble after he spoke with
Comeaux. Lopez was asked if what he testified to was what he told Detective
Kimble. Lopez responded, “Yeah, but what I told Detective Kimble is what Jason
Comeaux told me to tell Detective Kimble.” Lopez stated that he wrote a
statement for Comeaux, and Comeaux tore it up or threw it in the garbage. Lopez
explained:
It’s not what he wanted to hear, so then I wrote another
statement then Detective Kimble left out [sic] the room with the
statement. Jason Comeaux came back in the room with the statement,
he balled it up and got rid of it. He gave me a new paper and he said
he know [sic] what I want to hear. So he was saying like something
like Two Hundred and Fifty Thousand Dollars ($250,000.00) bond. I
just got out of drug court. I wasn’t on drugs or anything like that and
he was talking about, you know, using my priors against me and -- [.]
Lopez then stated that the incident with the milk crate did in fact occur, and was
further questioned as follows:
Q. But now, I’m hearing you saying that, that didn’t happen, that
the cops told you to say something different? Told you to lie?
A. Oh, no, no. No, no. We was -- they was [sic] telling me the
statement that I was writing about what happened at the stand and the
fact that I said that I didn’t have my glasses on. I’m a welder behind
thirty years, you see I can’t -- I couldn’t identify you night now.
Okay. Now, I didn’t have my glasses on. Whatever my brother said
that cause [sic] me to look back, I looked back into some tinted
windows because I’m on the passenger side and that’s all I saw was
the inside of the car because I didn’t have my glasses on.
Q. What did your brother say that caused you to look?
9
A. 1 don’t recall what he said. He said something like, “Hey” or
“watch it,” or something and then I looked back. But then when I
looked back it was like looking at this black board. I couldn’t see
anything so I looked to the side and I seen [sic] Thaddeus running
holding his arm up. He had been shot. Then there was blood coming
out like a water facet [sic].
Lopez testified that he could not identify Defendant as the person who shot
Davis at the Red Barn. He was asked if he told Detective Kimble that he heard
“Give it up. Give it up.’ ‘I don’t have nothing.” ‘Give it up or I’m going to shoot
you.” ‘I don’t have nothing.’” Lopez said he could not recall. When asked if he
told Detective Kimble that he witnessed “Body” shoot someone, Lopez replied,
“[’ve said a lot of things for a lot of different reasons, yes.” Lopez then stated he
said something like that, but he did not know why.
Lopez later signed an affidavit that a guy, whose name he could not
remember, asked him to sign. He stated he felt intimidated by the guy and was
overwhelmed. Lopez stated he was worried about being in harm’s way. They met
at Brother’s Insurance where the guy told him “that’s my cousin” and if Lopez
signed the affidavit it would help him. Lopez assumed the guy was talking about
Defendant. The affidavit was written by a female whose name he did not know,
but Lopez signed it anyway. He identified the affidavit he signed, which states in
part:
] Dana Lopez was incoherent at the time of the incident that took
place behind the Red Barn drive through on May 25, 2015 and also
coheres [sic] to point Tristan Romero out in a photo line up by
detectives of Iberia Parish Sheriff Department. In regards I do not
wish to participate in the prosecution of an innocent man through the
corruption of Iberia Parish Sheriff Department.
The affidavit was signed a year and a half after the events at the Red Barn.
Lopez further testified that he identified Defendant in a lineup, but it was not
from seeing him at the Red Barn, because he was not able to see him at the Red
10
Barn. He identified Defendant from the “meeting” with the dog and the milk crate,
when Defendant told him to keep his name out of his mouth.
Lopez admitted to having been convicted of distribution and possession of
drugs and had been in and out of rehab. He stated he was strung out on crack
cocaine from age seventeen to the age of thirty-five. He admitted that he had also
shot up cocaine.
Identity as the Shooter
Defendant alleges the evidence was insufficient to prove he was the shooter.
His argument relies on the alleged intimidation of Davis and Lopez by police.
Defendant points out their reluctance to be involved in the case, noting the State
issued a material witness warrant for Davis, had Davis arrested, and allegedly had
Davis change his story. Additionally, Lopez testified that police tore up at least
one statement because it was not what they wanted to hear, and Lopez could not
see the shooting or identify the shooter. Defendant asserts Lopez identified him
because he was asked to identify him. While conceding that Davis identified him
as the shooter, he argues that the shooter entered the vehicle from behind the
driver’s seat. As for the video footage, Defendant claims it does not show the
shooter’s face. Furthermore, the State failed to collect evidence such as
fingerprints or DNA that could confirm the identity of the shooter. Defendant
asserts the State failed to negate any reasonable probability of misidentification.
Thus, his convictions for attempted first degree murder and armed robbery should
be vacated.
In cases where the key issue is the defendant’s identity as the
perpetrator, rather than whether the crime was committed, the state is
required to negate any reasonable probability of misidentification.
Neal, 00-0674 at 11, 796 So.2d at 658 (citing State v. Smith, 430
So.2d 31, 45 (La.1983)). A positive identification by only one
witness is sufficient to support a conviction. /d.; See State v. Mussall,
$23 So.2d 1305, 1311 (La.1988). A victim’s or witness’s testimony
11
alone is usually sufficient to support the verdict, as appellate courts
will not second-guess the credibility determinations of the fact finder
beyond the constitutional standard of sufficiency. State v. Davis, 02-
1043, p. 3 (La.6/27/03); 848 So.2d 557, 559. In the absence of
internal contradiction or irreconcilable conflict with physical
evidence, one witness’s testimony, if believed by the fact finder, is
sufficient support for a requisite factual conclusion. State v.
Robinson, 02-1869, p. 16 (La.4/14/04); 874 So.2d 66, 79.
Dorsey, 74 So.3d at 633-34.
A review of the video surveillance shows the man who entered Davis’s
vehicle exited the back seat and approached the driver’s door, leaving him face to
face with Davis. It is clear that Davis could see the face of the man who shot him.
Davis made an in-court identification of Defendant as that man. Lopez identified
Defendant in a photographic lineup approximately one month after the incident.
The jury heard the multitude of testimony relating to the credibility of both Davis
and Lopez and chose to believe Davis’s testimony that Defendant was the man
who committed the robbery and attempted murder. Even without the testimony of
Lopez, who stated to Detective Kimble that Defendant shot Davis, the testimony of
Davis alone is sufficient when considered along with the video evidence and
physical evidence. This court cannot second guess the jury’s credibility
determinations. The evidence, viewed in the light most favorable to the
prosecution established beyond a reasonable doubt that Defendant was indeed the
shooter.
Specific Intent
Defendant next contends the facts do not support a finding that he had the
specific intent to kill Davis because Davis was shot in the arm, a non-vital area not
reasonably anticipated to cause death, and Davis was shot only once. Defendant
argues that had the shooter wanted to kill Davis, he had the opportunity to do so.
He alleges Davis was shot out of frustration that only $7.00 was acquired during
12
the robbery.®° Defendant suggests the facts support the lesser offense of aggravated
battery.
In order to convict an individual of first-degree murder,
LA.REV.STAT. § 14:30 provides that the offender must have specific
intent to kill or inflict great bodily harm and be engaged in one of the
enumerated felonies . . . or have the specific intent to kill or inflict
great bodily harm upon more than one person. LA.REV.STAT. §
14:30(A)(3). An attempted first-degree murder requires that the
offender do or omit to do an act for the purpose of and tending
directly toward the accomplishing of his object and have the specific
intent to kill. LA-REV.STAT. § 14:27(A). It is important to note that
specific intent to inflict great bodily harm may support a conviction
for murder, but in order to support a conviction for attempted murder,
only specific intent to kill is sufficient. State v. Hongo, 96-2060, p. 2
(La.12/2/97), 706 So.2d 419, 420.
Specific intent is “that state of mind which exists when the
circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.”
LA.REV.STAT. § 14:10(1). Because specific intent is a state of
mind, it need not be proven as a fact but may be inferred from the
circumstances of the transaction and the actions of the defendant.
State v. Graham, 420 So.2d 1126 (La.1982).
State v. Mitchell, 99-3342, pp. 5-6 (La. 10/17/00), 772 So.2d 78, 82.
“Deliberately pointing and firing a deadly weapon at close range are
circumstances which will support a finding of specific intent to kill.” State v.
Broaden, 99-2124, p. 18 (La. 2/21/01), 780 So.2d 349, 362, cert. denied, 534 US.
884, 122 §.Ct. 192 (2001). Moreover, specific intent can be formed in an instant.
State v. Maxey, 527 $o.2d 551, 555 (La.App. 3 Cir. 1988), writ denied, 541 So.2d
868 (La.1989); State v. Cousan, 94-2503, p. 13 (La. 11/25/96), 684 So.2d 382, 390.
In State v. Tillman, 47,386 (La.App. 2 Cir. 8/8/12), 104 So.3d 480, writ
denied, 12-2035 (La. 1/25/13), 105 So.3d 714, the defendant argued there was no
evidence of specific intent because the victim did not suffer mortal wounds even
®$7.00 was mentioned in opening statements. However, there was no testimony
indicating how much money Davis had or the amount of money police recovered at the scene.
13
though the shots were fired at close range. The second circuit noted that the victim
therein was shot in the left side of his chest and stated:
Although . . . Cortavian survived [his] injuries, the location of these
injuries in the chest area implies that Tillman had an intent to kill his
victim[]. The fact that Cortavian survived the shooting does not
negate specific intent to kill. The simple act of pointing a gun at
Cortavian Baker and firing the gun at him shows specific intent to kill.
Considering these facts, we believe that any rational trier of fact could
conclude that Tillman had specific intent to kill Cortavian.
Id. at 489.
Here, Defendant’s acts in pointing the gun at Davis and firing at close range,
striking him in an area of the body that could have reasonably been fatal, were
sufficient to support the finding of specific intent to kill.
Intimidation of a Witness
Defendant contends the record is clear that he did not commit the crime of
intimidation of a witness. He alleges the State failed to prove the statement to
Lopez was made with the intent to intimidate him. The State asserts that
Defendant’s actions were, at minimum, an attempt to influence Lopez’s testimony
or appearance at trial by force or threat of force.
The crime of intimidation of a witness is defined by La.R.S. 14:129.1(A)(1).
The pertinent provisions of that statute provide:
A. No person shall intentionally:
(1) Intimidate or impede, by threat of force or force, or attempt
to intimidate or impede, by threat of force or force, a witness or a
member of his immediate family with intent to influence his
testimony, his reporting of criminal conduct, or his appearance at a
judicial proceeding;
B. For purposes of this Section the following words shall have
the following meanings:
14
(2) “Witness” means any of the following:
(a) A person who is a victim of conduct defined as a crime
under the laws of this state, another state, or the United States.
(b) A person whose declaration under oath has been received in
evidence in any court of this state, another state, or the United States.
(c) A person who has reported a crime to a peace officer,
prosecutor, probation or parole officer, correctional officer, or judicial
officer of this state, another state, or the United States.
(d) A person who has been served with a subpoena issued under
authority of any court of this state, another state, or the United States,
or
(e) A person who reasonably would be believed by an offender
to be a witness as previously defined in this Section.
The offense requires the State to prove Defendant used force or threats of
force. La.R.S. 14:129.1{A). Our first inquiry in determining whether the State
proved each and every element of intimidation of the witness, Mr. Lopez, beyond a
reasonable doubt, requires us to specifically look to the nature of the threat of force
used. Lopez testified Defendant picked up a milk crate, told Lopez to keep his
name out of his mouth, and put the milk crate down. There was no other testimony
regarding the milk crate or any other acts by Defendant involving the crate,
although Lopez did testify that the event caused him anxiety, as is discussed more
thoroughly below. The sole issue to be resolved is whether Defendant’s words,
Defendant’s actions, or the combination thereof constituted a threat of force, as it is
clear that actual force was not used against Lopez.
After extensive research, we can find no cases with a similar factual
scenario.’ However, we find that Defendant’s words telling Lopez to “keep my
"See State v. Gauthier, 05-1365 (La.App. 4 Cir. 9/27/06), 941 So.2d 642 (written and
verbal threats to kill the victim if she reported abuse to police); State v. Parker, 16-1166, 17-141,
18-432 (La.App. 4 Cir. 12/12/18), 259 So.3d 1112, writ denied, 19-74 (La. 6/3/19), 272 So.3d
543, and writ denied, 19-179 (La. 6/3/19), 272 So.3d 891, and aff'd, 19-28 (La. 10/22/19), 285
So.3d 1041 (confronted victim with a knife at a bar and threatened to kill him); State v. Mayeaux,
570 So.2d 185, 193 (La.App. 5 Cir. 1990), writ denied, 575 So.2d 386 (La.1991) (telephone
15
name out your mouth” and his act of picking up a milk crate under the
circumstances presented here, constituted threats of force. The incident took place
only two days after the shooting at the Red Barn. Thus, viewing the evidence in
the light most favorable to the State, we find the jury could reasonably have found
that the words and actions constituted a threat of force.
This offense also requires the State to prove Defendant had the specific
intent to intimidate Lopez. State v. Johnson, 35,339 (La.App. 2 Cir. 12/7/01), 803
So.2d 358; State v. Parent, 02-835 (La.App. 5 Cir. 12/30/02), 836 So.2d 494, writ
denied, 03-491 (La. 10/31/03), 857 So.2d 472; State v. Becnel, 17-591 (La.App. 5
Cir. 6/27/18), 250 So.3d 1207.
State v. Hall, 441 So.2d 429 (La.App. 2 Cir. 11/29/1983) involved an
analogous charge of public intimidation, in violation of La.R.S. 14:122, which
prohibits the use of violence, force, extortionate threats, or true threats, with the
intent to influence the conduct of the person threatened, in relation to his position,
employment, or duty where the person threatened is a public official, public
employee, grand or petit juror, or is a witness, or person about to be called as a
witness upon a trial or other proceeding before any court, board, or officer
authorized to hear evidence or to take testimony. It requires proof of specific
intent to influence the conduct of the person threatened, just as the offense of
intimidating a witness under La.R.S. 14:129.1. Therein, the second circuit set forth
the requirements and law related to the sufficiency of proof of the essential element
of specific intent to influence.
Public intimidation is a specific intent crime [State v. Daniels,
236 La. 998, 109 So.2d 896 (1958) overruled on other grounds 129
threats to kill); Becnel, 250 So.3d 1207 (jail conversations with another indicating the amount of
force to be used to keep person from testifying).
16
So.2d 4 (La.1961)]; thus, proof of specific intent is required as an
essential element of the crime. Specific criminal intent is that state of
mind which exists when the circumstances indicate that the offender
actively desired the prescribed criminal consequences to follow the act
or failure to act. La.R.S. 14:10. The controlling language contained
within La.R.S. 14:122 that requires proof of specific intent is “with
intent to influence his conduct”. See State v. Johnson, 368 So.2d 719
(La.1979). [Compare State v. Duncan, 390 So.2d 859 (La.1980),
concerning the crime of public bribery.] Thus, the statute requires
proof of an intent to produce the consequence of influencing conduct,
and in order to have convicted the defendant the state must have
proved that the defendant had a specific intent, i.e. actively desired, to
influence the conduct of Ms. Williams in relation to her position or
duty as a prospective witness in the theft trial.
Attempted public intimidation is a responsive verdict to the crime
charged. La.R.S. 14:27 provides:
A. Any person who, having a specific intent to
commit a crime, does or omits an act for the purpose of
and tending directly toward the accomplishing of his
object is guilty of an attempt to commit the offense
intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his
purpose.
B. Mere preparation to commit a crime shall not be
sufficient to constitute an attempt; but lying in wait with
a dangerous weapon with the intent to commit a crime, or
searching for the intended victim with a dangerous
weapon with the intent to commit a crime, shall be
sufficient to constitute an attempt to commit the offense
intended.
C. An attempt is a separate but lesser grade of the
intended crime; and any person may be convicted of an
attempt to commit a crime, although it appears on the
trial that the crime intended or attempted was actually
perpetrated by such person in pursuance of such attempt.
[Emphasis added. ]
Thus, by the very definition of an attempt, specific intent is required
to convict of an attempt to commit a crime. In order to attempt to
commit a crime an offender must actively desire to cause the specific
result required by a particular criminal statute [here influence the
conduct of a potential witness] and do or omit an act for the purpose
of and tending directly toward the accomplishing of his object. See
State v. Parish, 405 So.2d 1080 (La.1981).
Intent, absent an admission of such by a defendant, must
necessarily be proven by inferences from surrounding facts and
17
circumstances. State v. Duncan, supra. In all cases where an essential
element of the crime is not proven by direct evidence, La.R.S. 15:438
applies:
The rule as to circumstantial evidence is:
assuming every fact to be proved that the evidence tends
to prove, in order to convict, it must exclude every
reasonable hypothesis of innocence.
As an evidentiary rule, this statute restrains the factfinder in the
first instance, as well as the reviewer on appeal, to accept as proven
all that the evidence tends to prove and then to convict only if every
reasonable hypothesis of innocence is excluded. Whether
circumstantial evidence excludes every reasonable hypothesis of
innocence presents a question of law. State v. Shapiro, 431 $o.2d 372
(La.1982). In applying La.R.S. 15:438, all the facts that the evidence
variously tends to prove on both sides are to be considered,
disregarding any choice by the factfinder favorable to the prosecution.
As a matter of law, the reviewer can affirm the conviction only if the
reasonable hypothesis is one favorable to the state and there is no
extant reasonable hypothesis of innocence. State v. Shapiro, supra.
In the instant case, there is no direct evidence of an essential
element of the crime; that is, whether the defendant acted with the
requisite specific intent to influence Ms. Williams in her conduct as a
potential witness. Thus, it was necessary that the state prove this
element of the crime by circumstantial evidence. The test of the
sufficiency of circumstantial evidence is not whether it produces the
same conviction as the positive testimony of an eyewitness, but
whether it produces moral conviction such as would exclude every
reasonable doubt. The proof ought to be not only consistent with the
defendant’s guilt but inconsistent with any reasonable hypothesis of
innocence. State v. Shapiro, supra.
Our review of the record compels us to conclude that the state
did not meet its burden in this respect. The only testimony presented
on behalf of the state regarding the actual circumstances surrounding
the offense came from the victim and the investigating officer. It was
the testimony of the victim that at no time did anyone ever warn her
not to appear in court or otherwise attempt to influence her actions in
connection with her role as a witness in the city court proceeding.
The stated intent of the threats, as testified to by the victim, was to
cause her to lose her job or to cause her physical harm. The testimony
of the investigating officer was that the threats continued even after
the defendant had pled guilty to the theft charge in city court. Other
evidence clearly establishes that prior to her arrest on the instant
charge, the defendant pled guilty to theft at her first court appearance.
Considering the facts established at trial, while perhaps it might be
concluded that the evidence tends to prove that the defendant acted as
she did in order to influence Ms. Williams’ conduct as a potential
witness, it might equally be concluded that the actions of the
18
defendant were intended to accomplish another purpose, e.g. to punish
or get even with Ms. Williams’ for her actions in connection with
defendant’s arrest for theft. Thus, inferences from the proven facts
developed at trial do not support a finding of moral certainty of the
specific intent required to find guilt of attempted public intimidation.
While we are convinced that the evidence was sufficient to prove
several other crimes that the defendant may have committed in
connection with her behavior toward the victim, the state chose to
prosecute her for the crime of public intimidation, and by its own
evidence did not exclude the reasonable hypothesis that the defendant
acted for purposes of vengeance or retaliation rather than to influence
the conduct of the victim in relation to her duty as a potential witness.
The facts and circumstances surrounding the incidents complained of
coupled with defendant’s plea of guilty to the theft charge simply do
not lead to an inference that these actions were done with the specific
criminal intent to influence within the meaning of La.R.S. 14:122.
The evidence is insufficient as a matter of law under La.R.S. 15:438.
See State v. Daniels, supra.
Accordingly, because the evidence is insufficient to prove this
element of the crime of attempted public intimidation, the defendant’s
conviction and sentence are reversed and she is ordered discharged.
See State v. Shapiro, supra.
Id. at 431-433 (footnote omitted) (alterations in original).
Here, Defendant’s intent to intimidate the witness necessarily requires proof
by circumstantial evidence, as he did not admit his intent. Such can be established
by inferences that logically can be drawn from surrounding facts and
circumstances. Further, the content of the threats a defendant made against the
witness, together with other non-verbal attempts to intimidate, can be reviewed to
determine whether there was the requisite specific intent to intimidate the witness.
State v. Parent, 02-835 (La.App. 5 Cir. 12/30/02), 836 So.2d 494, writ denied, 03-
491 (La. 10/31/03), 857 So.2d 472. The victim’s testimony about his or her
perception from the threatening words or actions can also be considered. /d.
Therein, the victim and others on her behalf testified that the victim was terrified
after the defendant made multiple threats including alternately threatening to slit
her throat, burn down her house, drown her, and kill her son. /d. at 508.
19
After viewing the facts and circumstances presented by the State, including
the language used by Defendant to the witness and his actions in picking up an
object that could have been used to harm Lopez, we conclude that the words used
by Defendant could indeed have been made with the intent to intimidate and
influence Mr. Lopez. The jury heard testimony as to Lopez’s reactions over the
confrontation with Defendant.
Q. Well, I’m not asking you to take it out of context --
A. All right. Well, let me --
Q. -- have I ever asked you to take the stand and saying anything other
than the truth?
A. I just got one statement to make.
Q. Go ahead.
A. Okay. I’m on extreme anxiety medicine. I take Xanax, I take
Norcos, I take Oxycodone, I take -- I got the pamphlet outside. ! take
Volumes and sometimes things like the dog incident when it happens
sometimes it’l] get -- like in my head, in my mind, it’ll get way blown
out of proportion. I got extreme anxiety and I got the paper there to
show you Somas, Xanax, Oxycodone, Hydrocodone for the last three
years still on it. I just got two months ago my doctor to get me off the
Xanax and he went from Xanax 10 to Valium 5’s and, so I mean,
sometimes I’m everywhere.
Q. Okay. And you’ve been taking that --
A. You know, and when things happen -- and when things happen
more so. It’s like this anxiety I get overwhelmed, so that’s why I
wanted to explain.
While Lopez was explaining why he did not report the incident between him
and Defendant after the shooting, he clearly indicates that the incident caused him
anxiety at the time it occurred and had so stated earlier in his testimony. Thus, it
can be inferred from this testimony, along with the fact that the words spoken,
“keep my name out your mouth”, together with Defendant’s actions in picking up
the milk crate at the same time, just after Lopez had witnessed the shooting
20
incident at the Red Barn, that Defendant made the statement with the intent to
influence Lopez to either lie about Defendant’s involvement or not to testify at all.
See Parent, 836 So.2d 494.
The State met its burden of proving the elements of the charged offense. For
these reasons, Defendant’s conviction and sentence for intimidating a witness are
affirmed.
Double Jeopardy
In his next assignment of error, Defendant contends that his convictions and
sentences for both attempted first degree murder and armed robbery, where the
underlying qualifying felony was stated to be the same armed robbery, amounts to
a violation of the double jeopardy clause of both the U.S. and Louisiana
constitutions. U.S. Const. Amend V; La. Const. art. I, § 15. Further, La.Code
Crim.P. art. 591 provides:
No person shall be twice put in jeopardy of life or liberty for the
same offense, except, when on his own motion, a new trial has been
granted or judgment has been arrested, or where there has been a
mistrial legally ordered under the provisions of Article 775 or ordered
with the express consent of the defendant.
We note that the bill of information and the amended bill merely charged
that Defendant attempted to commit first degree murder. The State did not
specifically allege the manner in which it sought to prove the offense. A review of
the jury instructions reveals the State relied on the enumerated felony of armed
robbery:
On Count 1, attempted first degree murder. To convict Tristan
Romero of attempted first degree murder, you must find that number
one, Tristan Romero actively desired to kill Thaddeus Davis; and
number two, he did something for the purpose of intending directly
toward killing Thaddeus Davis; and three, he was engaged in the
perpetration or attempted perpetration of armed robbery.
2]
As noted by Defendant, the State did not object to this instruction. In brief to this
court, the State acknowledges the jury instructions show the only basis for the
attempted first degree murder was the armed robbery. Thus, the State was limited
to proving attempted first degree murder with the robbery charge. See State v.
Hardyway, 52,513 (La.App. 2 Cir. 2/27/19), 266 So.3d 503, writ denied, 19-522
(La. 10/21/19), 280 So.3d 1156.
Recently, the Louisiana Supreme Court denounced the “same
evidence” test for double jeopardy, leaving the “additional fact” test
found in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed. 306 (1932), as the sole standard for the double jeopardy
analysis. However, the supreme court’s analysis shows that the
prohibition against double jeopardy in a felony-murder situation
remains extant:
In [State ex rel.] Wikberg [v. Henderson, 292
So.2d 505, 508-09 (1974)} the majority, despite stating
that the Blockburger test is not much different than the
test traditionally used in Louisiana, see Wikberg, 292
So.2d at 508-09, engaged in a broader analysis to find
that convicting a defendant for attempted armed robbery
following a conviction for felony-murder arising out of
the same incident violated the prohibition against double
jeopardy. The majority based its conclusion on the belief
that the enumerated felony underlying a felony-murder
charge operates much like a lesser responsive charge
while not technically amounting to such:
Of course, an essential element of the state’s
proof of felony-murder is the commission or
attempted perpetration of the enumerated
felony. The enumerated felony is therefore
a different grade of the same offense (or an
included offense) for double jeopardy
purposes. See C.Cr.P. Art. 596.
In most cases, the lesser grade or included
offense is generically the same as the more
severe crime charge, e.g., armed robbery and
theft. In the case of felony-murder and
felony-manslaughter, however, generically
different offenses such as armed robbery and
murder are combined into a single offense
through a legal fiction, which fiction
relieves the state of proving intent to kill or
inflict great bodily harm. This difference
22
may account for some of the confusion in
the jurisprudence dealing with felony-
murder and double jeopardy.
Wikberg, 292 So.2d at 509. The majority noted that the
legislature enacted Article 596 without the
“responsiveness” requirement of former Article 279 of
the 1928 Code of Criminal Procedure and thereby
“broadened” the protection of the article, which view
may have inspired the statement in [State v.] Steele[, 387
So.2d 1175 (La.1980)] that Louisiana law is “somewhat
broader” than Blockburger. See Wikberg, 292 So.2d at
510. Chief Justice Sanders’ dissent in Wikberg clearly
perceived the majority as utilizing a broader test than
used previously in Louisiana or federal courts. See
Wikberg, 292 So.2d at 513-14. Regardless, the U.S.
Supreme Court subsequently found in Harris v.
Oklahoma, 433 U.S. 682, 97 $.Ct. 2912, 53 L.Ed.2d
1054 (1977) (citations omitted) that “[w]hen . .
conviction of a greater crime, [felony murder], cannot be
had without conviction of the lesser crime, [in this case]
robbery with firearms, the Double Jeopardy Clause bars
prosecution for the lesser crime, after conviction of the
greater one.” Therefore, Harris healed the brief schism
between federal and Louisiana double jeopardy
jurisprudence. The concept that Louisiana must utilize a
second, broader double jeopardy analysis, however, took
root well beyond the context of Article 596 and felony
murder in which it arose.
State v. Frank, 16-1160, pp. 9-10 (La. 10/18/17), 234 So.3d 27, 33.
... When double jeopardy is found, the proper remedy is to vacate the
conviction and sentence for the lesser-punishable offense. State v.
Price, 39,582 (La.App. 2 Cir. 3/23/05), 899 So.2d 633.
State v. Taylor, 19-620, pp. 10-12 (La.App. 3 Cir. 2/5/20), 290 So.3d 1172, 1180-
81 (alterations in original), writ denied, 20-391 (La. 11/18/20), 304 So.3d 420.
When proof of a felony is an essential element of first degree murder, double
jeopardy precludes the conviction and punishment of the defendant for both first
degree murder and the underlying felony. State v. Cox, 07-774 (La.App. 3 Cir.
3/4/09), 4 So.3d 998, writ denied, 08-602 (La.9/4/09), 17 So.3d 948. In the instant
case, Defendant was convicted of attempted first degree murder, where the
underlying predicate offense to complete the crime was armed robbery, or
23
attempted armed robbery. La.R.S. 14:30. Thus, convictions and sentences for
both offenses violate the double jeopardy clauses. In such cases, our resolution on
appeal is typically to vacate the conviction and penalty for the less severe crime.
State v. Doughty, 379 So.2d 1088 (La.1980). However, our courts have not
hesitated to salvage convictions for both the attempted homicide and the
underlying felony, where all the elements of a responsive verdict of the attempted
homicide crime have been established. State v. Holley, 53,405, 53,406, 53,407
(La.App. 2 Cir. 4/22/20), 297 So.3d 180, writ denied, 20-923 (La. 11/10/20), 303
So.3d 1036.
Holley argues that he suffered a double jeopardy violation
because the state prosecuted him for both felony murder based on
aggravated arson and for the underlying felony of aggravated arson.
In opposition, the state argues that the bill charged Holley with
attempted first degree murder based on two independent aggravating
factors — aggravated arson and the killing of more than one person —
so the state could prove either one to reach a conviction. The state
argues that there was no double jeopardy violation because the
evidence was sufficient to establish that Holley acted with specific
intent to kill more than one person, and thus the alternative
aggravating factor (aggravated arson) was unnecessary for a proper
conviction. The prosecution also argues that Holley waived his right
to claim double jeopardy by failing to assert it in a timely motion to
quash.
Holley was charged with attempted first degree murder
pursuant to La. R.S.14:30 and La. R.S.14:27. First degree murder
includes the killing of a human being with the specific intent to kill
two or more persons. La. R.S.14:30(A)(3). First degree murder also
includes the killing of a human being with specific intent to kill while
engaged in aggravated arson. La. R.S.14:30(A\(1). Either way, the
penalty for first degree murder is mandatory life in prison without
probation, parole, or suspension of sentence (unless the prosecution
seeks and obtains the death penalty). The prosecution did not and
could not seek the death penalty in this case because there was no
actual murder, merely attempted murder. Second degree murder
includes the killing of a human being with the specific intent to kill.
La. R.S.14:30.1 (A)(1). The penalty for second degree murder is
mandatory life in prison without parole, probation, or suspension of
sentence. The relevant provision of the attempt statute provides the
same exact penalty for attempted first degree murder and attempted
second degree murder, as follows:
24
[I]f the offense so attempted is punishable by life
imprisonment, he shall be imprisoned at hard labor for
not less than 10 nor more than 50 years without benefit of
parole, probation, or suspension of sentence.
La. R.S. 14:27(D)(1){a).
The Federal Constitution and the Louisiana Constitution
prohibit placing a person twice in jeopardy for the same offense. U.S.
Const. Amend V; La. Const. art. I, § 15; La. C. Cr. P. art. 591; State v.
Hardyway, 52,513 (La. App. 2 Cir. 2/27/19), 266 So. 3d 503, 512,
writ denied, 19-00522 (La. 10/21/19), 280 So. 3d 1156. The
guarantee against double jeopardy provides three central
constitutional protections: (1) protection against a second prosecution
for the same offense after acquittal; (2) protection against a second
prosecution for the same offense after conviction; and (3) protection
against multiple punishments for the same offense. State v. Crandell,
05-1060 (La. 3/10/06), 924 So. 2d 122.
In Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76
L. Ed. 306 (1932), the U.S. Supreme Court set out a precise rule of
law to determine whether a double jeopardy violation has occurred.
“The applicable rule is that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one, is
whether each of [the statutes that define a crime charged] requires
proof of a fact which the other does not.” Blockburger v. United
States, supra. (Emphasis added). Louisiana’s separate “same
evidence” test is no longer used in determining whether a double
jeopardy violation exists. State v. Frank, 16-1160 (La. 10/18/17), 234
So. 3d 27.
Double jeopardy bars separate punishment of lesser included
offenses once the defendant is convicted of the greater offense. State
v. Price, 39,582 (La. App. 2 Cir. 3/23/05), 899 So.2d 633. The double
jeopardy clause prohibits prosecution for both a felony murder and the
underlying felony. State v. Thomas, 50,929 (La. App. 2 Cir. 8/10/16),
201 So. 3d 263, 278, writ denied, 16-1642 (La. 9/6/17), 224 So. 3d
980. To remedy a violation of double jeopardy, the reviewing court
normally vacates the conviction and sentence of the less severely
punishable offense, and affirms the conviction and sentence of the
more severely punishable offense. Price, supra.
In Thomas, supra, cited by the defense, this Court found that
the prosecution for second degree felony murder and the underlying
felony of aggravated burglary constituted a double jeopardy violation
because there was insufficient evidence to support a finding of second
degree murder based on specific intent. /d. In State v. Hardyway,
supra, the defendant was charged with attempted first degree murder,
based on armed robbery, and separately, armed robbery. The bill of
information and the jury instructions listed only the enumerated
25
felony of armed robbery to support the offense for attempted first
degree murder, thereby making armed robbery a required element of
the offense. This Court held that because the armed robbery provided
the sole basis for the attempted first degree murder conviction, the
prosecution and conviction for both felonies constituted a double
jeopardy violation.
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000), held that the Sixth Amendment right to a jury trial
requires that every fact which is essential to the punishment imposed
upon the defendant (other than prior convictions) must be proven to a
jury beyond a reasonable doubt, as reflected by the verdict. In
Apprendi, the defendant was convicted of a crime which carried a
sentencing range of 5 to 10 years. After the conviction, but before
sentencing, the prosecution moved under the New Jersey hate crime
law to increase the penalty range to 10 to 20 years. The New Jersey
procedure for sentencing enhancement under the hate crime statute
allowed the matter to be tried by a judge, and prescribed a
preponderance of the evidence burden of proof. The United States
Supreme Court found this scheme unconstitutional because it deprived
Apprendi of his Sixth Amendment right to have the jury determine
whether or not the State had proven (beyond a reasonable doubt) his
violation of the hate crime statute, a fact which if so proven would
increase the limits of the applicable sentencing range.
In this case, Holley was charged with attempted first degree
murder in that he attempted to kill a human being: (1) with specific
intent to kill while engaged in aggravated arson; and/or (2) with the
specific intent to kill more than one person. The verdict forms for
each count of attempted first degree murder, which are contained in
the record, do not specify whether the jury found Holley guilty on
each count of attempted first degree murder by reason of his specific
intent to kill while engaged in aggravated arson, his specific intent to
kill more than one person, or both. Accordingly, the verdict form
does not preclude the possibility that the jury found Holley guilty of
attempted first degree murder only by reason of his specific intent to
kill while engaged in aggravated arson. This, coupled with the fact
that Holley was also convicted and sentenced for aggravated arson,
clearly creates the possibility that Holley’s convictions for attempted
first degree murder and aggravated arson violated the prohibition
against double jeopardy. Thus, given Holley’s aggravated arson
conviction, the combination of Holley’s jury trial and double jeopardy
rights requires that, for a valid conviction of attempted first degree
murder, the jury verdict had to state or necessarily imply that the jury
found that Holley had the specific intent to kill more than one person.
U.S. Const. Amend. V & VI; Crandell, supra; Apprendi, supra. The
jury verdict form did not do so.
The state contends that we should nonetheless affirm Holley’s
convictions and sentences for both attempted first degree murder and
ageravated arson because the evidence was sufficient to support a jury
26
verdict for attempted first degree murder based on specific intent to
kill more than one person. Doing so would violate Holley’s Sixth
Amendment right to a jury verdict finding each essential element of
the offense proven beyond a reasonable doubt. Apprendi, supra.
The prosecution also argues that Holley waived the right to
claim double jeopardy by failing to do so in a timely motion to quash.
This argument is without merit because double jeopardy is a
“jurisdictional defect,” and therefore cannot be waived even via
unqualified guilty plea. State v. Dubaz, 468 So.2d 554 (La. 1985). If
the defendant cannot waive double jeopardy via unqualified guilty
plea, he cannot waive it by pleading not guilty but failing to raise the
issue in a timely motion to quash.
However, we find that the protection against double jeopardy
and the right to a jury verdict on each element of the offense, in this
case, can be satisfied without reversing any of Holley’s convictions,
but instead reducing his convictions for attempted first degree murder
to attempted second degree murder. As charged in Holley’s amended
bill of indictment, attempted second degree murder ts a lesser
included offense of attempted first degree murder.
Therefore, the jury’s verdict finding Holley guilty of attempted
first degree murder necessarily included findings that the prosecution
proved beyond a reasonable doubt every element of attempted second
degree murder, without necessity of a finding of aggravated arson.
Moreover, the punishment for attempted second degree murder and
attempted first degree murder is exactly the same: 10 to 50 years of
imprisonment at hard labor without probation, parole, or suspension
of sentence. La. R.S. 14:27(D)(1)(a). Accordingly, we reduce
Holley’s convictions for attempted first degree murder to convictions
for attempted second degree murder. Holley’s sentencing exposure
remains completely unchanged.
Id. at 184-87 (alterations in original).
In this case, the jury was instructed as to the charged offense, attempted first
degree murder, and the responsive verdicts thereto, including attempted second
degree murder, in pertinent part, as follows:
On Count I. attempted first degree murder. To convict Tristan
Romero of attempted first degree murder, you must find that number
one, Tristan Romero actively desired to kill Thaddeus Davis; and
number two, he did something for the purpose of intending directly
toward killing Thaddeus Davis; and three, he was engaged in the
perpetration or attempted perpetration of armed robbery. If you are
not convinced beyond a reasonable doubt that Tristan Romero is
guilty of attempted first degree murder you must consider whether the
27
State has proved beyond a reasonable doubt that Tristan Romero is
guilty of attempted second degree murder. Attempted second degree
murder. To convict Tristan Romero of attempted second degree
murder you must find that number one, he actively desired to kill
Thaddeus Davis; and number two, he did something for the purpose of
intending directly towards killing. If you’re not convinced beyond a
reasonable doubt that Tristan Romero is guilty of attempted second
degree murder you must consider whether the State has proven
beyond a reasonable doubt that Tristan Romero is guilty of attempted
manslaughter.
The common elements of attempted first degree murder and attempted
second degree murder are findings that the accused actively desired to kill the
victim, and that the accused did something for the purpose of intending directly
toward the killing of the victim. Thus, proof of the first two elements of attempted
first degree murder in this case necessarily meets the burden of proof for the
responsive verdict of attempted second degree murder. We have already
concluded that the State adequately established that Defendant was the shooter,
and that he intended to kill his victim, Mr. Davis. Accordingly, the jury’s verdict
that Defendant is guilty of attempted first degree murder necessarily included
findings that the prosecution proved beyond a reasonable doubt every element of
the responsive verdict of attempted second degree murder, without the necessity of
a finding of armed robbery. We also note that the potential sentence for each of
the crimes of attempted second degree murder and attempted first degree murder
are the same: 10 to 50 years of imprisonment at hard labor without probation,
parole, or suspension of sentence. La. R.S. 14:27(D)(1)(a). Accordingly, we
amend the verdict and reduce Defendant’s conviction of attempted first degree
murder to attempted second degree murder, such that the plea of double jeopardy is
inapplicable. As such, Defendant’s sentence for the attempted first degree murder
conviction is vacated and the matter remanded for sentencing on the conviction for
attempted second degree murder.
28
The Batson Challenge
In his third assignment of error, Defendant contends the trial court erred in
denying his Batson challenge.’ Defendant alleges the court cut off the objection at
the first stage of the analysis and, thus, the record does not include a race-neutral
reason from the State for striking juror Theresa Sigue. He asserts that the reasons
given by the defense—pattern and lack of questioning of Mrs. Sigue by the State—
easily met the low threshold burden of prima facie proof to move past the first step
in the Batson process. Therefore, he urges, the trial court erred, and a new trial
should be ordered.
Under Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712
(1986)] and its progeny, the defendant challenging the peremptory
strike must first establish a prima facie case of purposeful
discrimination. Second, if a prima facie showing is made, the burden
shifts to the State to articulate a neutral explanation for the challenge.
Third, the trial court then must determine if the defendant has carried
the ultimate burden of proving purposeful discrimination. Batson,
476 U.S. at 94-98, 106 §.Ct. at 1721-1724; Johnson v. California, 545
U.S. 162, 168, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129 (2005); State v.
Givens, 99-3518, p. 5 (La.1/17/01), 776 So.2d 443, 448.
To establish a prima facie case, the defendant must show: (1)
the prosecutor’s challenge was directed at a member of a cognizable
group; (2) the challenge was peremptory rather than for cause; and (3)
relevant circumstances sufficient to raise an inference that the
prosecutor struck the venireperson on account of his being a member
of that cognizable group. Batson, 476 U.S. at 96, 106 S.Ct. at 1723;
Givens, 776 So.2d at 449. This three-prong showing by the defendant
gives rise to “the necessary inference of purposeful discrimination” by
the prosecutor. State v. Duncan, 99-2615, p. 12 (La.10/16/01), 802
So.2d 533, 544 (quoting Batson, 476 U.S at 96, 106 S.Ct. at 1723),
cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002)).
“The inference is ‘necessary’ because if such an inference cannot be
drawn from the evidence presented by the defendant, he is unable to
make a prima facie case of purposeful discrimination and his Batson
challenge expires at the threshold.” Duncan, 802 So.2d at 544
(quoting State v. Green, 94-0887, p. 28 (La.5/22/95), 655 So.2d 272,
290 n. 24). If the trial court determines the defendant failed to
establish the threshold requirement of a prima facie case (step one),
then the analysis is at an end and the burden never shifts to the
® Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986).
29
prosecutor to articulate neutral reasons (step two). Duncan, 802 So.2d
at 544.
In Batson, the Court provided two illustrative examples of
factors the trial court should consider in deciding whether a defendant
has made the requisite showing. A “pattern” of strikes against a
cognizable group of jurors in the particular venire might give rise to
an inference of discrimination. Similarly, the prosecutor’s questions
and statements during voir dire examination and in exercising
challenges may support or refute an inference of discriminatory
purpose. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. The Court did
not formulate any particular requirements for determining whether a
defendant established a prima facie case. Rather, the Court expressed
confidence in the trial judges’ ability to determine the establishment
of a prima facie case. /d. Thus, the determination of the type and
quantum of proof necessary to establish a prima facie case was left to
the lower courts. Duncan, 802 So.2d at 545. However, the
establishment of a prima facie case is not to be so onerous that a
defendant would have to persuade the judge—on the basis of all the
facts, some of which are impossible for the defendant to know with
certainty—that the challenge was more likely than not the product of
purposeful discrimination. Johnson v. California, 545 U.S. at 170,
125 S.Ct. at 2417. A defendant satisfies Batson’s first step by
producing evidence sufficient to permit the trial judge to draw an
inference that discrimination occurred. /d.
State v. Sparks, 88-17, pp. 37-40 (La. 5/11/11), 68 So.3d 435, 468-70, cert. denied,
566 U.S. 908, 132 S.Ct. 1794 (2012).
[W]hat factors does the trial judge consider in evaluating whether
racial discrimination occurred? Our precedents allow criminal
defendants raising Batson challenges to present a variety of evidence
to support a claim that a prosecutor’s peremptory strikes were made
on the basis of race. For example, defendants may present:
* statistical evidence about the prosecutor’s use of
peremptory strikes against black prospective jurors as
compared to white prospective jurors in the case;
* evidence of a prosecutor’s disparate questioning and
investigation of black and white prospective jurors in
the case;
¢ side-by-side comparisons of black prospective jurors
who were struck and white prospective jurors who
were not struck in the case;
30
* a prosecutor’s misrepresentations of the record when
defending the strikes during the Batson hearing;
¢ relevant history of the State’s peremptory strikes in
past cases; or
¢ other relevant circumstances that bear upon the issue
of racial discrimination.
Flowers v. Mississippi, US. , 139 S.Ct. 2228, 2243 (2019).
During jury selection, the State peremptorily challenged Theresa Sigue.
Defense counsel then made a Batson challenge, alleging the State asked no
questions to determine that Sigue would not be a fit juror and the only basis for the
challenge was that she was an African American. The State noted defense counsel
was required to make a prima facie showing that there was a pattern of
discrimination on the basis of race. The following exchange ensued:
BY MR. BURTON [defense counsel]:
Well, Your Honor, to respond to that he’s accepted one
and he’s challenged every other one -- every other African
American that’s on the jury venire and he -- that is the prima
facie showing that this actual juror, potential juror, was asked
no questions by the State to elicit any response to say that she
wouldn’t be a qualified juror.
BY THE COURT:
Let me look and see who we have now.
BY MR. VINES [the prosecutor]:
Judge, his indication that I only accepted two is not
correct.
BY MR. BURTON:
Accepted one.
BY MR. VINES:
That I only accepted one is not correct. Not only Ms.
Wilkins Jones, but I accepted Myra Rochon.
BY MR. BURTON:
31
You challenged her afterwards.
BY MR. VINES:
I didn’t challenge her, she brought up information to us
that she ended up being challenged for cause on the basis of.
BY MR. BURTON:
Oh, I’m sorry, I’m thinking of the other one that you got
on a backstrike.
BY MR. VINES:
I accepted Ms. Rochon and she brought information to
the Court’s attention about a protective order and indicated that
she could not perform her duty. I had accepted her prior to that.
BY MR. BURTON:
Your Honor, at this point of the jury she has been
removed for cause, that means that he’s only accepted one
African American on the jury, every other African American
has been challenged that who has been available to sit.
BY MR. VINES:
That’s an incorrect statement.
BY THE COURT:
That’s not -- there’s Ms. Dugas.
BY MR. BURTON:
She’s off because I -- she’s not a qualified juror, Your
Honor.
BY THE COURT:
] understand.
BY MR. VINES:
Ms. Rochon is no longer --
BY THE COURT:
Ms. Rochon is the one that came to us after she was
qualified with concerns about the protective order.
32
BY MR. BURTON:
Correct.
BY THE COURT:
At the present time I show Ms. Wilkins Jones as our only
African American on here.
BY MR. BURTON:
That’s correct.
BY THE COURT:
That’s out of, how many? Forty-two. Twenty-one in the
first panel, twenty-one in the second panel, we had ten African
Americans. Of those Mr. Milton was excused having been a
convicted felon. Next we had Ms. Rochon who came up with
cause because of her protective order. Then we had Ms. Dugas
BY THE COURT:
... 1’m going to get to Ms. Jefferson. Ms. Dugas was not
qualified, so that’s three that were removed for cause or for not
qualified. We had Ms. Decuir that I granted [a] cause
challenge[] on, so that’s four. We had Ms. Smothers that I
granted a cause challenge, that’s five. We’re on Ms. Sigue at
this time. So my calculations of the ten African Americans,
either five were disqualified or removed for cause which means
we only had one accepted. The other four appear to have been
challenged by the State. If my calculations are correct and Mr.
Burton’s argument is that Ms. Sigue was not questioned by the
State a [sic] to the ability to be fair in this matter, although the
Court did ask all the questions that it needed to ask.
BY MR. VINES:
That’s not the law[,] what the standard is.
BY THE COURT:
I understand. I’m speaking out loud. I’m trying to reach
a decision on this. Mr. Burton, at this time I’m not willing to
accept your Batson challenge.
BY MR. BURTON:
33
Note my objection for the record, Your Honor.
BY THE COURT:
I certainly shall. Let the record show I considered this in
detail, counted all the African Americans that were on the
pending list.
The State went on to provide reasons for its challenges to four prospective jurors.
Defendant clarified his argument.
A review of the record indicates that during voir dire, Ms. Sigue was
questioned by the judge as to her name and occupation and that of her spouse. The
court subsequently asked general questions to all prospective jurors seated at that
time and asked that jurors raise their hands if they had a response. Ms. Sigue did
not respond to those questions. The State directly asked prospective jurors if they
could accept the law and apply the law as given and not hold it to a higher standard
than given. The transcript indicates Ms. Sigue was directly asked this question by
the State, and no response was given.
Defendant contends the trial court’s erroneous ruling stopped the parties
from completing the record. Thus, he urges that this court cannot fully know what
response the State would have offered and whether the defense could have met its
burden of persuasion to show the alleged reasons were not race-neutral. Defendant
contends that because four of five African Americans were challenged by the State,
and Ms. Sigue was not asked any questions by the State, “there was prima facie
evidence to at least inquire further into race-neutral reasons from the State.” Of
course, the record reflects that Ms. Sigue was asked general questions by the court,
both attorneys, and was asked at least one direct question by the State’s attorney.
Defendant further contends that the State did not understand the Batson
process because the State initially stated Defendant had to show a pattern of
34
discrimination, and jurisprudence indicates that is not the only way to prove a
prima facie case of discrimination. Moreover, Defendant argues that the proof
offered by the defense was sufficient in that it presented a pattern and noted the
lack of questioning by the prosecution. Defendant contends this evidence was
sufficient for the trial court to draw an inference of discrimination. Defendant
claims that because the State did not give a race-neutral reason for striking Ms.
Sigue, we do not know if it was due to her lack of response to the one question she
was asked. Additionally, several prospective jurors who gave no response served
on the jury. As to pattern, Defendant asserts ten of forty-two prospective jurors
were African American. Five of those African Americans were struck for cause,
and one of the other five served on the jury. Defendant asserts striking four of the
five shows a pattern.
In State v. Thibodeaux, 20-91 (La.App. 3 Cir. 3/17/21), 313 So.3d 445, the
defendant alleged that during jury selection the State had used peremptory
chailenges to strike five or six African Americans, which constituted a pattern.
The trial court denied the Batson challenge, finding it was difficult to say that
African Americans were being excluded when “[w]le got five blacks out of
eleven{.]” /d. at 463. This court found the defendant’s “simple assertion of the
number of black jurors stricken” was not sufficient to meet the first step of the
Batson analysis. /d. at 465.
In Thibodeaux, this court relied on Dorsey, 74 So.3d 603. In Dorsey, the
supreme court was called up to determine if the defendant established a prima facie
case of purposeful discrimination. The court addressed the issue:
In this case, the defense claims it established a prima facie case
of discrimination numerically because the state used peremptory
challenges to strike five of seven prospective black jurors (71%) and
only six of twenty-seven prospective white jurors (22%), thereby
striking black jurors at a rate of more than three times that of white
35
jurors. The district court clarified there were eight prospective black
jurors available for jury selection and the state had challenged five,
one was excused by the defense, one was selected for the jury, and
one was available as an alternate. The district court then found the
defense had established a prima facie case of purposeful
discrimination and ordered the state to provide race-neutral reasons
for striking the jurors. The state objected to the court’s order and
asked the court to articulate its reasons for finding a prima facie case
of discrimination so the state could make an informed decision
regarding whether it would seek appellate review. Before the court
could do so, however, the state argued it only struck five out of eight
black jurors, thereby lowering the percentage of black jurors struck
from 71% to 62.5%. The state further claimed it struck every juror
who rated himself as a “four” on the state’s five-point scale,
regardless of race, indicating a preference towards imposing a life
sentence. When the court asked whether this was the state’s race
neutral reason, the state responded “it is a component of it,” but
further explained, “that is not a race neutral reason, that is a correction
of the factual basis set for the prima facie case.” Throughout its
objection, the state repeatedly emphasized it was not providing its
race neutral reasons for the strikes. After hearing the state’s
explanation, the court set aside its previous order and denied the
Batson challenge, finding there was no systematic pattern of exclusion
based upon race.
Upon review, we find no abuse of discretion in the district
court’s ruling. As the state noted, this Court has held bare statistics
are insufficient to support a prima facie case of discrimination. State
v. Duncan, 99-2615, p. 22 (La.10/16/01)}, 802 So.2d 533, 550 (citing
United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990)). In
Duncan, the defendant argued racial discrimination could be inferred
from the record, which showed that the state had struck 84% of the
prospective black jurors and only 12% of the prospective white jurors,
using five of its eight peremptory challenges to strike black jurors.
This Court held, “there is not a per se rule that a certain number or
percentage of the challenged jurors must be black in order for the
court to conclude a prima facie case has been made out.” 99-2615 at
22, 802 So.2d at 549-50. However, the Court explained “such number
games, stemming from the reference in Batson to a ‘pattern’ of
strikes, are inconsistent with the inherently fact-intense nature of
determining whether the prima facie requirement has been satisfied.”
99-2615 at 22, 802 So.2d at 550. This Court further held it ts
important for the defendant to come forward with facts, not just
numbers alone, when asking the district court to find a prima facie
case. /d. (citing Moore, 895 F.2d at 485). Consequently, in Duncan
this Court held the defendant’s reliance on bare statistics to support a
prima facie case of race discrimination was misplaced.
Applying Duncan to the instant case, we hold the defendant’s
reliance upon statistics alone does not support a prima facie case of
race discrimination. The record reveals the state struck 62% of the
36
prospective black jurors and about 22% of the prospective white
jurors, using roughly the same number of strikes to excuse members
of each race. Although there is a disparity in the state’s use of its
peremptory challenges, defendant failed to present any facts to
support a prima facie case of purposeful discrimination, as required in
Duncan. The defense correctly asserts Johnson v. California held a
prosecutor’s refusal to provide race-neutral reasons provides
additional support for a prima facie case of discrimination, noting:
In the unlikely hypothetical in which the
prosecutor declines to respond to a trial judge’s inquiry
regarding his justification for making a strike, the
evidence before the judge would consist not only of the
original facts from which the prima facie case was
established, but also the prosecutor’s refusal to justify his
strike in light of the court’s request. Such a refusal would
provide additional support for the inference of
discrimination raised by a defendant’s prima facie case.
545 U.S. 162, 171, n. 6, 125 S.Ct. 2410, 2417, 162 L.Ed.2d 129
(2005). It is clear from the above language, however, a prosecutor’s
refusal is not sufficient to raise an inference of discrimination, but
may provide further support when a defendant has a/ready set forth
sufficient facts to establish a prima facie case. In this case, the state
did not object to the district court’s order to provide race-neutral
reasons for its peremptory challenges, but rather requested
clarification for the factual basis of the prima facie case. We find the
state’s request for clarification was motivated by a desire for the court
to make a more complete record of the basis upon which the order
was made before deciding whether to seek appellate review or provide
its race-neutral reasons. Thus, we find the state’s request provides no
support for defendant’s claim of discrimination.
While a pattern of racial strikes was arguably present here and
in Duncan, since the state used five of its eight peremptory challenges
to strike prospective black jurors, this Court further held in Duncan a
pattern of strikes is only one of the multiple factors that can be
considered in making this fact-intense determination. 99-2615 at 24,
802 So.2d at 551. This Court explained, “[i]ndeed, while Batson cites
a ‘pattern of strikes’ as an example of the type of evidence that can
give rise to an inference of discrimination, another equally significant
example Batson cites is the voir dire.” /d. In State v. Jacobs, this
Court rejected a similar attempt by the defendant to rely on bare
statistics to show the trial court abused its discretion in failing to find
a prima facie case of discrimination. 99-0991, pp. 6-7 (La.5/15/01);
803 So.2d 933, 940. After reviewing the voir dire in each case, this
Court found the jurors struck by the state were predictable targets for
peremptory challenge for reasons other than race and therefore, the
challenges were not exercised in a discriminatory manner. Duncan,
99-2615 at 25, 802 So.2d at 551; Jacobs, 99-0991 at 7, 803 So.2d at
940.
37
Id. at 616-18 (footnote omitted) (alteration in original).
Based on the cases cited herein, simply referencing the number of African
American jurors struck by the State was not sufficient to meet the first step of the
Batson analysis. While it was stated that there were originally ten prospective
African American jurors on the first two panels, before five were excused as
lacking qualification or for cause, there is no evidence of the racial makeup of the
venire as a whole, the racial makeup of the judicial district, or any such other
information as to make any statistical analysis meaningful. Such an analysis is
further confounded by the State’s position, and the trial court’s acceptance thereof,
that it indeed accepted Ms. Rochon, who was later excused for cause by the court
after she brought to the attention of the court a ground for disqualification.
At the time of his Batson challenge, Defendant also asserted the State asked
Ms. Sigue a single question. In Alex v. Rayne Concrete Serv., 05-1457, 05-2344,
05-2520, p. 21 (La. 1/26/07), 951 So.2d 138, 154, the supreme court addressed the
questioning of prospective jurors.
[A]lthough there is no requirement that a litigant question a
prospective juror during voir dire, the jurisprudence holds that the
lack of questioning or mere cursory questioning before excluding a
juror peremptorily is evidence that the explanation is a sham and a
pretext for discrimination. Miller—El [v. Dretke], 545 U.S. [231] at
246, 125 S.Ct. [2317] at 2328 [(2005)], quoting Ex parte Travis, 776
So.2d 874, 881 (Ala.2000); State v. Collier, 553 So.2d [815] at 823, n.
11 [(La.1989)], citing In re Branch, 526 So0.2d 609 (Ala.1987). The
purpose of voir dire examination is to develop the prospective juror’s
state of mind not only to enable the trial judge to determine actual
bias, but to enable counsel to exercise his intuitive judgment
concerning the prospective jurors’ possible bias or prejudice. Trahan
v. Odell Vinson Oil Field Contractors, Inc, 295 So.2d 224, 227
(La.App. 3 Cir.1974). It is evident in the context of Batson/Edmonson
that trial and appellate courts should consider the quantity and quality
of either party’s examination of the challenged venire member and to
view the use of this tool as a means for the judiciary to ferret out sham
justifications for peremptory strikes.
The State is not required to question prospective jurors, as noted in Alex.
However, this case is clearly distinguishable from A/ex because the trial court
asked questions of the panel Ms. Sigue was part of. In addition, counsel for both
sides addressed the jury and posed general questions to all, asking for individual
responses. The State asked at least one direct question of Ms. Sigue, to which she
gave no response. Additionally, A/ex involved phase two of the Batson analysis,
and the proceedings at hand did not proceed past the first prong. Moreover, the
justifications presented by the State for its use of peremptory strikes were not
considered by the trial court.
All arguments other than those regarding the number of African American
jurors stricken and the lack of questioning have not been considered as they were
not presented to the trial court at the time Defendant’s Batson challenge was made.
Uniform Rules—Courts of Appeal, Rule 1-3.
For these reasons, we find that this assignment of error lacks merit.
DECREE
The Defendant’s conviction and sentence for attempted first degree murder
is reduced and amended to attempted second degree murder, in violation of La.R.S.
14:27 and La.R.S. 14:30.1. The case is remanded for sentencing on the amended
conviction for attempted second degree murder. The convictions and sentences for
armed robbery with a firearm and intimidating a witness are affirmed. The trial
court is directed to inform Defendant of the provisions of La.Code Crim.P. art.
930.8 by sending appropriate written notice to Defendant within ten days of the
rendition of this opinion and to file written proof in the record that Defendant
349
received the notice, or to do so in open court upon sentencing Defendant for
the second degree murder conviction.
AFFIRMED AS AMENDED AND REMANDED FOR SENTENCING
WITH INSTRUCTIONS.
40