State v. Jones

Full title: STATE OF LOUISIANA v. DARRYL JONES

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Jul 7, 2016

2015 KA 0649 (La. Ct. App. Jul. 7, 2016)

Opinion

2015 KA 0649

07-07-2016

STATE OF LOUISIANA v. DARRYL JONES

Ricky J. Babin District Attorney and Donald D. Candell Stephen P. Sheets Assistant District Attorneys Gonzales, Louisiana Counsel for State/Appellee Lieu T. Vo Clark Mandeville, Louisiana Counsel for Defendant/Appellant Darryl Jones

McDONALD, J.

NOT DESIGNATED FOR PUBLICATION

APPEALED FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT IN AND FOR THE OF ASCENSION STATE OF LOUISIANA
DOCKET NUMBER 31,028 HONORABLE JASON VERDIGETS, JUDGE Ricky J. Babin
District Attorney
and
Donald D. Candell
Stephen P. Sheets
Assistant District Attorneys
Gonzales, Louisiana Counsel for State/Appellee Lieu T. Vo Clark
Mandeville, Louisiana Counsel for Defendant/Appellant
Darryl Jones BEFORE: McDONALD, McCLENDON, and THERIOT, JJ. McDONALD, J.

Codefendants, Darryl Jones, Cecil Ray Beals, and Calvin K. Williams, were charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. The trial court denied a motion to sever the codefendants for trial. Defendant Jones entered a plea of not guilty. Following a trial by jury, defendant Jones was found guilty as charged.¹ Defendant Jones was sentenced to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. Defendant Jones now appeals, filing a counseled and a pro se brief. In his counseled brief, he assigns error to the denial of his motion to sever, his right of confrontation, and the sufficiency of the evidence to support his conviction. In his pro se brief, he reasserts his challenge to the sufficiency of evidence, and further assigns error regarding his right to full appellate review, the trial court's jury instructions on specific intent as it relates to principals, the propriety of the State's closing arguments, other crimes evidence, and the trial court's answers to questions from the jury during deliberations. For the following reasons, we affirm the conviction and sentence.

1 Codefendants, Cecil Ray Beals and Calvin K. Williams, were likewise found guilty of second degree murder and have appealed to this Court. State v. Beals, 15-0087 (La. App. 1 Cir. ___/___/___), ___So.3d ___; State v. Williams, 15-0509 (La. App. 1 Cir. ___/___/___), ___So.3d ___. As to the statement of facts, and to the extent that the codefendants have raised similar arguments based on a record that is consistently applicable to each defendant, this Court's opinions for the three cases include largely uniform language.

STATEMENT OF FACTS

On Saturday, January 12, 2013, between 3:30 and 4:00 a.m., Marvin Joe Mayers, who lived on Panama Road in Sorrento, Louisiana, was walking his dog when he heard gunshots and then saw a silver or gray vehicle, with a spoiler on the back and a stripe down the side, speed down the road. He told his girlfriend what he saw and heard before leaving for work that morning. Subsequently, Shawn Dunbar, a driver in the area travelling from Panama Road to LV Road discovered a body, later identified as victim, Gerald G. Wilkins, on the side of the road in a wooded area. Mr. Dunbar immediately reported his discovery to a 911 dispatcher and a nearby resident. At approximately 8:00 a.m., officers of the Ascension Parish Sheriff's Office (APSO) were dispatched to the wooded area on LV Road. Deputy Chris Williams arrived at approximately 8:04 a.m. and noted that it was foggy with low visibility in the area. He secured the scene, called the APSO criminal investigation division (CID), and took statements from Mr. Dunbar and other potential witnesses. Deputy Williams learned that shots had been fired during the early morning hours. When found, the victim's body was positioned face down, partially in the roadside ditch, and partially on the roadway.

APSO CID personnel arrived at the scene at approximately 8:30 a.m. and took photographs. Lieutenant Gerald Whealton, an APSO crime scene investigator, noted that the victim's hands were not scuffed or injured, his shirt was not torn or dirty, nor were his clothes disheveled; thus, Lt. Whealton concluded that the victim had not been involved in a struggle. Lt. Whealton further noted that, while the ground was wet from recent rainstorms, and filthy with dirt and debris that was blown around the area, the victim's shoes were relatively dirt and debris free, indicating that he did not walk to the location where he was found. When the victim's body was turned over, the officers discovered a suspected crack pipe in his left hand, noting that a push rod and a lighter were still clenched in his hand. Additionally, the victim's pants' zipper was down, his genitals were exposed, and the front of his pants were wet, indicating that he was urinating at the time of his murder. The victim was not found with a cell phone, wallet, or any form of identification. The victim's fingerprints were collected and taken to the Louisiana State Police Crime Lab, and the victim was later identified.

Lt. Whealton observed a bullet exit wound to the upper left back area of the victim's head and a bullet entry wound to the lower center back of his head. He noted that the entry wound bled to the left side of the victim's body, over his left shoulder, with a strong stream from the back of the head that decreased down to his neck and dribbled down the left side of his head, suggesting that the victim was on the ground at the time of the shot. He observed a second bullet entry wound behind the victim's right ear, which exited through the victim's forehead. Lt. Whealton noted that the pattern of the blood drippings for this injury suggested that the victim was on the ground at the time of this shot also. He estimated that the bullet recovered from the ground was either a .38 caliber or a 9mm and noted that there were no shell casings found at the scene, indicating that a revolver was probably used in the shooting. Ty Gautreau of the Ascension Parish Coroner's Office pronounced the victim dead when he arrived at the scene. The victim's death certificate was later issued, indicating that the cause of death was gunshot wounds to the head.

During their investigation, the police identified three individuals, defendant Jones, Mr. Williams, and Mr. Beals, who became suspects in the victim's murder. The victim, defendant Jones, Mr. Williams, and Mr. Beals, who lived in defendant Jones' garage, regularly met up at defendant Jones' house, and they were all there the day and evening before the murder. Marvin McGee, an associate of the codefendants who was also at defendant Jones' house that day, and who spent the night there, testified that between 10:30 and 11:00 p.m., he noticed that defendant Jones' vehicle was gone. Mr. McGee also testified that he loaned Mr. Williams one of the two cell phones that he had that night and that defendant Jones' vehicle was gone at some point after he gave Mr. Williams the phone.

Defendant Jones' vehicle, a silver 2000 Chevrolet Impala, matched the description provided by Mr. Mayers, the Sorrento resident who heard the gunshots and saw a vehicle speeding down Panama Road. Records for the cell phone that Mr. Williams had that night showed that the cell phone was initially used in Baton Rouge, was used in Sorrento around the time of the murder, and was then taken back to Baton Rouge. In addition to these cell phone records, surveillance video from a convenience store located 1.4 miles from the murder scene showed that, at 3:38 a.m., Mr. Beals exited defendant Jones' vehicle and entered the store, and an unidentified driver pulled the car around. There appeared to be a passenger in the back seat of the vehicle.

State witness Jeremiah Billingsley knew Mr. Beals and defendant Jones and testified that, while he and Mr. Beals were incarcerated together, Mr. Beals disclosed the facts surrounding the murder. Specifically, Mr. Beals told Mr. Billingsley that, before the murder, the victim had stolen from defendant Jones multiple times. Mr. Beals offered to "take care" of the victim when he first began stealing from defendant Jones, but defendant Jones made it clear that the victim was not to be touched. Mr. Billingsley further testified that Mr. Beals told him that, as the victim continued to steal from defendant Jones, "they" took the victim to Sorrento, and when the victim got out of the car to urinate, "that's when he was taken care of."

COUNSELED ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR

AND PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In counseled assignment of error number three, defendant Jones assigns error to the trial court's denial of his motion for postverdict judgment of acquittal. In his fourth assignment of error, defendant Jones assigns error to the sufficiency of the evidence. In a combined argument on these assignments of error, defendant Jones argues that the State failed to prove beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that he committed second degree murder. Defendant Jones concedes that the State proved that he was associated with the other defendants but argues that there was no evidence that he was involved in the shooting of the victim. Defendant Jones contends that there was undisputed evidence that he was home the entire night and morning before and after the murder. Defendant Jones further contends that, despite testimony concerning cell phone records and calls to his cell phone, there was no evidence that he actually answered his phone or spoke to any of the parties involved in the shooting. Finally, defendant Jones argues that Mr. Billingsley is not a reliable source, noting that there was testimony to show that he was a pathological liar and a white male who hated the fact that the defendant, a black male, was dating his ex-wife.

In his pro se assignment of error number one, defendant Jones argues that the evidence presented by the State proves that he was not involved in the victim's murder. Defendant Jones specifically contends that the evidence does not show that he participated in or instructed anyone to kill the victim. Defendant Jones notes that there was testimony to show that he gave instructions that the victim was not to be touched, regardless of any thefts the victim had committed. Defendant Jones further reiterates Mr. Billingsley's tendency to lie. In arguing that the jury was confused, defendant Jones notes that the jury asked a question during deliberations to verify whether covering up a crime after the fact would constitute aiding and abetting.

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. See LSA-C.Cr.P. art. 821(B); State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Hearold, 603 So.2d 731, 734 (La. 1992).

In conducting the review under Jackson, we also must be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." LSA-R.S. 15:438; State v. Wright, 98-0601 (La. App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 and 00-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987).

The crime of second degree murder, in pertinent part, is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1(A)(1). Specific criminal intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanon, 95- 0625 (La. App. 1 Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So.2d 923. Under LSA-R.S. 14:24, all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

Dr. Christopher Tape, an expert in forensic pathology, performed the victim's autopsy. Dr. Tape testified that the victim's cause of death was three gunshot wounds to the head. Two of the gunshot wounds did not break the skull. Specifically, the gunshot wound on the upper left back area of the victim's head was described as a grazing wound that went under the skin, above the bone, and exited close to the entry. Dr. Tape indicated that the gunshot wound that entered at the victim's right ear and exited from the right forehead above the eyebrow may have been inflicted when the victim was on the ground, though there was no definitive proof. This was the second gunshot wound that did not enter the victim's skull. Dr. Tape testified that both of these gunshot wounds were inflicted at a close proximity and had stippling, which is gun powder residue from the barrel of a gun. The fatal gunshot wound, the one that entered the back of the victim's head and fractured his skull with no exit, did not have any stippling, indicating that it was not shot within close proximity like the other two gunshots. Dr. Tape recovered the bullet causing the fatal wound from the victim's skull at the point of the fracture or disruption.

Mr. Mayers, the State witness who lived on Panama Road near the crime scene, testified that he was walking his dog between 3:30 and 4:00 a.m. on January 12, 2013, when he heard three steady gunshots coming from down the road. Mr. Mayers, a former sergeant in the Marine Corps, ascertained that the gunshots were fired from a large caliber weapon. Immediately after the gunfire, he heard a motor "crank up" and observed a silver or gray vehicle with a spoiler on the back and a stripe down the side, speeding down the road, passing him with its lights off. The lights were turned on after the vehicle passed the next house as it sped down the road. Mr. Mayers told his girlfriend what he saw and heard before leaving to go to work. After being shown a photograph of defendant Jones' vehicle, Mr. Mayers confirmed that it resembled the vehicle he saw that morning. During cross examination, Mr. Mayers indicated that the area was not foggy at that time and noted that there were two street lights on.

Mr. McGee, also a State witness, testified that he knew the codefendants, as they all lived in the same Baton Rouge neighborhood, Mayfair, located between Staring Lane and Bluebonnet Boulevard, and Perkins Road and Highland Road. Mr. McGee visited defendant Jones daily. He used nicknames for defendant Jones ("Hooper") and Mr. Williams ("Dirt"), while referring to Mr. Beals by his first name, Cecil. On Friday, January 11, 2013, Mr. McGee was at defendant Jones' house all day doing some indoor painting and spent the night there. Mr. McGee testified that defendant Jones hired him to paint the inside of the house and that he was being paid with cash and drugs. He noted that many different people came to the house throughout the day, including Mr. Beals, Mr. Williams, defendant Jones' girlfriend, defendant Jones' mother, and the victim, whom Mr. McGee referred to as "Budda." He testified that the victim was only there during the day and left before dark. When asked what the visitors did, Mr. McGee stated, "Just coming through, partying or drinking, smoking, whatever, just stopping to visit or whatever." When asked what they were smoking, he specified that it was "[w]eed, dope, cigarettes, smoke."

Mr. McGee had two cell phones with him at defendant Jones' house that day. Mr. Williams asked to borrow one of the cell phones late in the evening. Mr. McGee noted that he gave Mr. Williams the one with a phone number that began with the first three digits of "274." About an hour later, Mr. McGee went into the garage where Mr. Williams and Mr. Beals had been, but neither of the men were present, and defendant Jones' vehicle was gone. Mr. McGee further testified that defendant Jones did not leave the house that night.

Mr. McGee saw Mr. Beals and Mr. Williams again on the morning of Saturday, January 12, 2013, before daylight. At that time, estimated at about 4:00 a.m., Mr. McGee found his borrowed cell phone in the garage and Mr. Beals was back in the garage. Mr. McGee testified that he later gave the cell phone away. Mr. McGee learned about the victim's death later that day. After they were all questioned by the police, defendant Jones asked Mr. McGee to retrieve the phone, bring it to him, and not give it to the police. Mr. McGee told defendant Jones that he gave the phone to someone he called "Skinny," whom he also identified as "Lacey."

On cross examination, Mr. McGee confirmed that the victim often came to defendant Jones' house and that Mr. Beals lived in defendant Jones' garage. As to the relevant time period, Mr. McGee testified that he was at defendant Jones' house and remained awake all night. He testified that defendant Jones stayed in his bedroom that night and that, if defendant Jones had left his bedroom, he would have noticed. Mr. McGee testified that he did not know when defendant Jones retired for the night and noted that, when he tried to wake defendant Jones the next morning, he did not get a response to his knock or phone call and assumed defendant Jones was sleeping. Mr. McGee estimated that it was between 10:30 and 11:00 p.m. when he first noticed that defendant Jones' vehicle was gone, but Mr. McGee did not see the vehicle as it was driven off and did not know who left in the vehicle.

Mr. McGee confirmed that he was using drugs, including crack cocaine, at the time and when asked if he had problems recalling the events, he noted that the incident occurred over a year before the trial. He recalled seeing the victim leave defendant Jones' house on foot. Despite his initial testimony, after reviewing his police statement, Mr. McGee confirmed that the victim could still have been at defendant Jones' house as late as 9:00 p.m., after dark, but confirmed that after the victim left, he noticed that Mr. Beals was gone. Mr. McGee also testified that the victim had enemies, noting that he robbed an individual identified as Justin Thomas ("Roach") and that Mr. Thomas retaliated by shooting at the victim's mother's house. Mr. McGee further confirmed that the victim used counterfeit money to purchase drugs in the past. Mr. McGee denied ever being threatened with charges related to the victim's murder. He confirmed that many people did not like the victim. When further questioned about his drug use and ability to recall things that occurred while he was under the influence, Mr. McGee testified, "Actually, I have a pretty clear recollection under the influence of crack, not weed but crack." He further testified that he used both drugs around the time of the murder and characterized his crack cocaine use as an "everyday thing."

On redirect examination, Mr. McGee was asked to clarify his earlier testimony as to whether defendant Jones was in the car that night. Mr. McGee responded, "I think I said he couldn't have came past me 'cause I was in the kitchen and he would have come through the hallway to get to the car." Mr. McGee acknowledged that he was not in the kitchen the whole time, specifically confirming that he was in the garage and on the back patio at times, and that he would not have seen defendant Jones if he departed during those times and could not confirm for a fact that defendant Jones did not leave that night.

Detective Latonya Sullivan of the APSO CID was dispatched to the scene on LV Road and interviewed Mr. Dunbar and Mr. Mayers. After the victim was identified, Detective Sullivan contacted the victim's mother, Cheryl Wilkins, who provided the victim's cell phone number. Detective Sullivan learned that the victim frequented defendant Jones' house and hung out with defendant Jones and Mr. Williams. APSO Detective Sergeant Mike Bruner collected video footage from several gas stations and restaurants along Highway 22 in Sorrento, near the area of the crime scene. Detective Bruner noted that, coming from Baton Rouge, he would take the I-10 towards New Orleans, exit at Highway 22, and then travel straight down to LV Road to arrive where the victim's body was located. The police identified Mr. Beals and defendant Jones' vehicle from the January 12, 2013 surveillance video at Speedy Junction on Highway 22 at I-10, just 1.4 miles from the crime scene. The vehicle shown in the video was consistent with the class and characteristics of a 2000 Chevrolet Impala and had a spoiler in the back and a black stripe down the side. As Detective Bruner noted, at 3:38 a.m., Mr. Beals walked into the Speedy Junction, stayed in the store for approximately twenty to thirty seconds, and then returned to defendant Jones' vehicle. Detective Bruner further noted that, as Mr. Beals was walking around the gas pumps, the vehicle was pulling around, obviously occupied by a driver; the front passenger seat was empty; and, an "outline" of what appeared to be an occupant was visible in the back seat. When asked if the "outline" could have been something other than a person (such as a bag, hanging clothing, or a car seat), Detective Bruner agreed that it could, but stated that, in his opinion, the outline was of a person.

On January 15, 2013, defendant Jones met with the police at the East Baton Rouge Violent Crimes Unit and was interviewed. Defendant Jones drove the Impala to the sheriff's office, confirmed that it was his vehicle, and provided his cell phone and home phone numbers. Defendant Jones stated that the victim was at his house the night of January 11, 2013, at 9:00 p.m., that the victim left between 10:00 and 11:00 p.m., and that he never saw the victim again. Defendant Jones also stated that Mr. Beals lived in his garage and often borrowed his vehicle. He confirmed that Mr. Beals and Mr. Williams were at his house that night, as was his girlfriend, Nicole Billingsley, who lived with him. According to Detective Sullivan, defendant Jones denied having any issues with the victim and specifically stated, "I did not kill Budda, I did not send Budda with anyone to get killed." In a subsequent interview with APSO officers, defendant Jones confirmed that the victim was "somewhat of a troublemaker," and that "amongst his friends, he [Jones] gave instructions that [the victim] was not to be touched." He also indicated that he went to bed at approximately 2:00 a.m. on the morning of the murder.

The next day, January 16, 2013, Detective Sullivan interviewed Ms. Billingsley, Mr. Beals, and Mr. McGee. Ms. Billingsley indicated that Mr. Beals often drove defendant Jones' vehicle. Ms. Billingsley further stated that Mr. Beals, Mr. Williams, and Mr. McGee were at defendant Jones' house the day and night before the murder.

In his interview, Mr. Beals stated that he had family in Sorrento but he had not been there since childhood. He confirmed that he often drove defendant Jones' vehicle to make "runs" and to pick up packages and that he drove it on the night in question but did not leave Baton Rouge. Mr. Beals described the victim as a "screw up." When asked if he killed the victim, Mr. Beals stated, "If I would have killed Budda[,] I would have shot him in broad daylight from a distance. I would have not walked up on him from the back and shot him." Notably, at the time Mr. Beals made this statement, details concerning how the victim had been shot had not been made public. During cross examination, Detective Sullivan confirmed that the victim had several enemies. She further confirmed that fingerprints and DNA were collected from defendant Jones' vehicle and acknowledged that the only prints identified belonged to Ms. Billingsley. Detective Sullivan indicated that the vehicle was noted as having been cleaned out and washed.

Detective Sergeant David Baldwin, an APSO investigator, also took part in the police interviews. Detective Baldwin noted that, while Mr. Beals denied being in Sorrento, after he showed him still shots from the Speedy Junction surveillance video footage, including a close-up of himself near the entrance of the store, Mr. Beals confirmed that it was him in the photograph. Mr. Beals further acknowledged that defendant Jones' vehicle was shown in another still shot from the surveillance footage. Mr. Beals, however, still denied being in Sorrento.

Detective Bruner and Detective Sullivan testified regarding the records for the victim's cell phone, other cell phones identified by the investigators as relevant to the case, and the "SIM-con" report from a phone identified as belonging to defendant Jones. The phone records for Shawn Aikens, Mr. Williams' half-brother, were also among the records obtained. Mr. McGee's cell phone, the one he loaned to Mr. Williams the night before the murder, was in the victim's call detail records. For the time period of January 11, 2013, at 5:57 p.m., to January 13, 2013, at 11:21 p.m., in addition to call logs, Detective Bruner obtained text message logs and cellular data logs. The call detail records for defendant Jones' phone were for a similar time range.

On January 11, 2013, at 10:41 p.m., the victim's cell phone was used to call defendant Jones' cell phone utilizing towers in the Mayfair area where defendant Jones' house is located in Baton Rouge. At 1:00 a.m. on January 12, 2013, Mr. McGee's cell phone, in the Mayfair area, was used to call defendant Jones' cell phone, which was in South Baton Rouge at that time. Mr. McGee's cell phone, still in the Mayfair area, was then used to call the victim's cell phone, which was in the Industriplex Park area of Baton Rouge. Specifically, at 1:15 and 1:36 a.m., Mr. McGee's cell phone was used to call the victim's cell phone. At 3:16 a.m., Mr. McGee's cell phone was used to call Shawn Aikens' residence on Panama Road in Sorrento. Again, at 3:17, 3:18, and 3:21 a.m., Mr. McGee's cell phone showed calls to Mr. Aikens' residence. Using a tower near the murder scene, Mr. McGee's cell phone was used to call defendant Jones' cell phone several times between 4:00 and 4:23 a.m., the latter which was in the Mayfair area of Baton Rouge. At 4:24 a.m., Mr. McGee's cell phone had moved from Highway 22 and I-10, north towards Baton Rouge, when it was used to again call defendant Jones' cell phone, which was in Baton Rouge. At 5:16 a.m., the victim's cell phone was back in the Mayfair area, as determined through triangulation data. By 6:14 a.m., when Mr. McGee's cell phone was used to call defendant Jones' cell phone, both phones were in the Baton Rouge/Mayfair area. Thus, the records show that Mr. McGee's cell phone started in Baton Rouge and then travelled to Sorrento around the time of the murder, and back to Baton Rouge, but there was no indication that defendant Jones' cell phone ever left Baton Rouge. Detective Bruner noted that Mr. Beals' phone records were sparse during the relevant time period and there was a lapse in the data, meaning no calls were being placed or received during the relevant time.

As noted by Detective Sullivan, although defendant Jones' cell phone remained in Baton Rouge, his phone records show that, in addition to incoming calls from Mr. McGee's cell phone, defendant Jones had several missed calls from his home number to his cell number, and that outgoing calls were made, and a text message was sent, from his cell phone during the time frame that he claimed to be at home and asleep. Detective Bruner also testified regarding the connection and duration of the phone calls and noted that, while some of the calls to defendant Jones' cell phone were unanswered and thus had a zero-second elapsed timeframe, others, based on the duration, were answered, while still others appeared to have been unanswered, or consisted of messages left on a voicemail.

Ms. Billingsley, defendant Jones' girlfriend, also testified at the trial. Ms. Billingsley began living with defendant Jones after she separated from her ex-husband, Jeremiah Billingsley, and she lived with defendant Jones for approximately three years. She testified that Mr. Beals lived in the garage at defendant Jones' house for approximately two of those three years, that she knew Mr. Beals and Mr. Williams well, and that she also knew the victim, though she was less familiar with him. When asked if the victim ever spent the night at defendant Jones' house, she stated, "He would really stay all night and was smoking, you know, 'cause we'd all be up drinking and smoking." She confirmed that she was living with defendant Jones at the time of the murder and that many people were in and out of defendant Jones' house on the day and night in question. She stated that Mr. Beals and defendant Jones were there but did not recall seeing Mr. Williams or Mr. McGee. Ms. Billingsley confirmed that she had difficulty remembering the night leading up to the murder and that she was constantly drinking and using drugs at the time. She also confirmed that she was reluctant or upset about being interviewed by the police and that she told Mr. Beals that he should be the one to be interviewed, because he did not like the victim and had previously stated one month before the murder that he would "chop off his head with a machete." She later added that Mr. Beals "talks a lot" when asked if she took his statement seriously. Regarding the victim, she added, "But everybody didn't like him . . . he was always loud[] and . . . rude to everyone." She stated, however, that defendant Jones seemed to like the victim and did not have any problems with him. When asked if defendant Jones left that night, she stated, "Not that I know of." She added that she and defendant Jones were in bed together all night. She denied using defendant Jones' telephone that night, and when asked if the phone was ringing that night, she stated that "it was always ringing a lot."

Ms. Billingsley confirmed that her ex-husband, Mr. Billingsley, had in the past falsely accused defendant Jones of threatening to kill him. When further asked about Mr. Billingsley's tendency to lie, she stated, "He got into an accident and half the skull was taken off so he kind of, you know, he's not right a little bit." She described Mr. Billingsley as a "pathological liar" who believes his own lies.

Mr. Billingsley, Ms. Billingsley's ex-husband referenced above, also testified. Mr. Billingsley knew Mr. Beals and defendant Jones but did not know Mr. Williams. Mr. Billingsley confirmed that he suffered brain damage and neurological problems after a work-related accident and had to relearn how to walk and speak after being in a coma for several months. He also confirmed that he had a drug problem in the past. He testified that he had his drug problem under control at the time of the trial and that his mental health was "fine." Mr. Billingsley was incarcerated with Mr. Beals in Ascension Parish after the murder. He testified that he had a conversation with Mr. Beals in which Mr. Beals told him that he was in jail for murder and that "they" were having problems with a guy (the victim) at defendant Jones' house who was stealing "dope" from Ms. Billingsley, stealing from defendant Jones, and being a bully. Mr. Beals stated that he wanted to "take care of him" after the initial incidents, but defendant Jones "said no, don't worry about it." Mr. Beals further told Mr. Billingsley that the victim continued to steal from defendant Jones. Mr. Billingsley specifically testified, "Well, I think a day or a couple days later the guy stole some more from Hooper [Jones]. Him and Cecil - well, Cecil, Dirt or Calvin Williams, whatever his name is, and the victim they left the house." Mr. Beals specifically told Mr. Billingsley that "three people left and two people came back." When asked what happened afterwards, Mr. Billingsley testified that Mr. Beals said "they" went out to Sorrento. Mr. Billingsley added, "[T]hey went down some road down in Sorrento by a bayou or some -- or a boat landing and the guy said he had to use the bathroom to urinate, and when he got out the car that's when he was taken care of." After that, "they" left and went back to defendant Jones' house in Baton Rouge. Mr. Beals told Mr. Billingsley that the weapon would never be found and that the only evidence the police had against them included pictures from a gas station in Sorrento and cell phone signals in the area. On January 29, 2013, while still incarcerated, Mr. Billingsley reported Mr. Beals' statements to the police. Mr. Billingsley denied that he had seen any news or read any information about the murder.

Mr. Billingsley admitted to previously filing a false police complaint against defendant Jones alleging that defendant Jones tried to kill him. He stated that his trial testimony in this case was truthful and denied holding any grudges against defendant Jones regarding defendant Jones' relationship with his ex-wife. Detectives Sullivan and Baldwin were recalled to confirm that, during their interview with Mr. Billingsley, the details he provided were consistent with the investigation and independently provided by him.

Defense witness Tiesha Johnson, Mr. Williams' girlfriend of nine years and the mother of his child, testified that she was with Mr. Williams on the night of January 11, 2013. She stated that she picked him up from defendant Jones' house between 9:00 and 10:00 p.m., and that they then went to her family's home on Clayton Drive and stayed there until the next morning. The next morning, around 8:00 a.m., she dropped Mr. Williams off in Mayfair.

Detective Sullivan was called again as a defense witness regarding the crime lab report for the DNA and fingerprint analysis of defendant Jones' vehicle. She confirmed that she made notations that Ms. Billingsley could not be excluded from one of the DNA samples from the inside interior of the front passenger door panel. Detective Sullivan noted that the sample along with others was limited.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when 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. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. Thus, an appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Williams, 01-0944 (La. App. 1 Cir. 12/28/01), 804 So.2d 932, 939, writ denied, 02-0399 (La. 2/14/03), 836 So.2d 135.

We note that the defendant's physical presence at the scene of the murder is not a requirement to be convicted as a principal to the crime. LSA-R.S. 14:24. Rather, a person can be "concerned in the commission" of a crime as a principal whether (1) present or absent; (2) he directly commits the act constituting the offense; (3) he aids and abets in the commission of the offense; or (4) he directly or indirectly counsels or procures another to commit the offense. Id. A person who aids and abets another in a crime by participating in the planning or execution of that crime is liable to the same extent as the person who directly commits the crime, and he may be convicted of a higher or lower degree of the crime, depending on the mental element proved at trial. State v. Watson, 397 So.2d 1337, 1342, n.10 (La. 1981), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981); State v. Collins, 09-2102 (La. App. 1 Cir. 6/28/10), 43 So.3d 244, 253, writ denied, 10-1893 (La. 2/4/11), 57 So.3d 311, cert. denied, 132 S.Ct. 99, 181 L.Ed.2d 27 (2011).

The evidence shows that the shooting occurred between 3:30 and 4:00 a.m., on January 12, 2013. Defendant Jones' vehicle was seen speeding away from the area immediately after the shots were fired. Store surveillance further shows that, at 3:38 a.m., defendant Jones' vehicle was at the Speedy Junction located less than two miles from the murder scene. Mr. Beals entered the store as the vehicle was being pulled around by the driver and believed to be occupied by a passenger in the back seat.

While defendant Jones argues that Mr. Billingsley was not credible, the jury heard all of the testimony, including the details Mr. Billingsley provided about the murder, which were consistent with the evidence collected by the police during the investigation. Mr. Billingsley specifically testified that, due to the victim continuously stealing from defendant Jones, he was driven out to Sorrento and murdered when he stepped out of the vehicle to urinate. The jury apparently assessed the witnesses' credibility and chose to accept Mr. Billingsley's testimony.

Thus, the guilty verdict in this case indicates the jury apparently concluded that, after being driven to Sorrento in defendant Jones' vehicle, the victim was murdered, and defendant Jones was a principal and guilty of that murder. The jury could have reasonably interpreted the substantial cell phone usage records in evidence as showing that defendant Jones participated in the murder through repeated contact with the victim and with Mr. Beals and Mr. Williams throughout the hours before and after the victim's murder. The jury's verdict also indicates it rejected defendant Jones' claim that he went to bed at 2 a.m. on the morning of the murder. Further, the jury reasonably could have interpreted defendant Jones' instruction to Mr. Magee to withhold the borrowed cell phone from the police as indicating defendant Jones' guilty knowledge of information contained on that cell phone that implicated him in the murder.

Further, there is no indication that the jury was confused. As agreed by the parties, the trial court properly addressed the jury's question during deliberations regarding "covering up a crime after the fact" by informing them that such acts alone would not constitute aiding and abetting, but instead would constitute accessory after the fact, a nonresponsive offense. Further, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). We are convinced that any rational trier of fact, viewing the evidence presented at trial in the light most favorable to the State, could have found the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that defendant Jones had the specific intent to kill the victim and participated in the commission of the murder. Thus, counseled assignments of error numbers three and four and pro se assignment of error number one lack merit.

COUNSELED ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In a combined argument, defendant Jones contends that Mr. Billingsley's testimony regarding Mr. Beals' confession implicated him in the murder, and he argues that the admission of the confession violated his right of confrontation and provided the trial court with adequate grounds to grant his motion to sever. Defendant Jones contends that, despite the trial court's limiting instruction, portions of Mr. Beals' confession insinuated defendant Jones' involvement in the murder. Defendant Jones notes that while Mr. Billingsley did not testify about defendant Jones' actions, his testimony about the victim's thefts from defendant Jones, and about Mr. Beals asking defendant Jones if he wanted it taken care of, created the implication that defendant Jones was the person who would make the call as to whether the victim should be punished for the thefts. Defendant Jones argues that the limiting instruction prohibiting Mr. Billingsley from testifying as to defendant Jones' actions and statements did not suffice to prevent prejudice. Noting that Mr. Beals did not testify and was not subject to cross examination, defendant Jones argues he was denied his right of confrontation. He cites State v. Butler, 93-1317 (La. App. 1 Cir. 10/7/94), 646 So.2d 925, writ denied, 95-0420 (La. 6/16/95), 655 So.2d 340, in arguing that Mr. Beals' statements to Mr. Billingsley constituted inadmissible hearsay. Defendant Jones further argues that had he been tried separately, Mr. Beals' statement to the "jailhouse snitch" would have constituted inadmissible hearsay at his trial alone. He argues that Mr. Beals' statement was used to bolster an otherwise weak case. Thus, defendant Jones contends that the trial court should have granted his motion to sever to allow him a fair trial unfettered by the prejudicial effect of a non-testifying codefendant's hearsay statements. Motion to Sever

Defendants who are jointly indicted are to be tried together unless the court finds that justice requires a severance. LSA-C.Cr.P. art. 704. The courts have permitted a severance to codefendants whose defenses are antagonistic to each other. Defenses are antagonistic when each defendant intends to exculpate himself by putting the blame for the offense on a codefendant. However, a mere allegation that the defenses are antagonistic is insufficient because convincing evidence of actual antagonism must be present to justify a severance. Where the ends of justice will best be served by a severance, it should be granted. See LSA-C.Cr.P. art. 704, Official Revision Comment (d). An accused is not entitled to a severance as a matter of right; the decision is one resting within the sound discretion of the trial judge. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. Reversal of a conviction for failure to sever where antagonism is shown is not always mandated unless prejudice can be shown. State v. Price, 93-0625, 93-0626 (La. App. 1 Cir. 3/11/94), 636 So.2d 933, 936-37, writs denied, 94-0742 (La. 6/17/94), 638 So.2d 1091 and 94-1566 (La. 10/14/94), 643 So.2d 159. Further, justice does not require severance where only the extent of each defendant's participation in the offense is at issue. State v. Gaskin, 412 So.2d 1007, 1012-13 (La. 1982). Whether justice requires a severance must be determined by the facts of each case. State v. Prudholm, 446 So.2d 729, 741 (La. 1984).

In State v. Bradford, 367 So.2d 745, 747 (La. 1978), the Louisiana Supreme Court recognized the following policies regarding criminal trial joinder:

Where a crime involves more than one actor, the need arises to balance the interest of the State in trial economy against the rights of defendants to separate trials. Joinder expedites the administration of justice, reduces the congestion of the trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve on juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once.

Another policy consideration implicit in the mandate of [LSA-C.Cr.P. art.] 704 that jointly indicted defendants shall be jointly tried is the need to present the whole case at one time where, as here, several defendants

are involved in the same transaction. The State's policy is supported by the general principle that the State decides when, how, and whom to prosecute and should therefore be permitted to join offenders under appropriate circumstances. (Citations omitted.)

The determination of whether to grant a severance is based on the evidence presented at a pretrial hearing. It is improper to look at the case post trial and to then gauge the trial court's decision on what actually happened and the evidence presented at trial. In reviewing a pretrial motion for severance, the Louisiana Supreme Court, in State v. Lavigne, 412 So.2d 993, 997 (La. 1982), held: "[I]t is incumbent upon us to review the validity of the ruling without regard to whether at trial substantial other evidence was introduced or whether [the defendant's] conviction would have been a certainty irrespective of the joint trial." Trying codefendants together requires careful awareness by both the prosecutor and judge to issues involving evidence that might be admissible against one defendant, but not against another. For instance, a confession by one defendant that implicates a codefendant would not be admissible unless the trials were severed. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

After reviewing the record in this case, we cannot say that defendant Jones' defense was antagonistic to the codefendants' defenses. The codefendants all relied on a defense that someone else committed the murder, while the State's theory and the evidence indicated that they committed the offense as a group and that all three codefendants were culpable as principals. The evidence did not clearly point to one defendant so as to exculpate the other. See State v. Dilosa, 01-0024 (La. App. 1 Cir. 5/9/03), 849 So.2d 657, 669-70, writ denied, 03-1601 (La. 12/12/03), 860 So.2d 1153 (extent of participation of each defendant in the transaction is not grounds for granting a severance). Further, the jury was apparently able to separate the evidentiary implications, as Mr. Beals and Mr. Williams were unanimously found guilty, while defendant Jones was found guilty based on a ten of twelve concurrence. In light of defendant Jones' failure to establish the probability that a codefendant would in fact testify at a separate trial and present exculpatory evidence, we reject his contention that Mr. Beals' statements would have been inadmissible in his trial alone. In that regard, this Court's following findings as to the admissibility of Mr. Billingsley's hearsay testimony disclosing Mr. Beals' statements would be equally applicable to a separate trial of defendant Jones wherein Mr. Beals was unavailable to testify. Right of Confrontation

Louisiana Revised Statute 15:273 provides: "The accused shall have the right to be confronted with the witnesses against him and the depositions of witnesses shall not be evidence either for or against him except as provided by law." Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. LSA-C.E. art. 801(C). One of the primary justifications for the exclusion of hearsay is that the adversary has no opportunity to cross examine the absent declarant to test the accuracy and completeness of the testimony. Butler, 646 So.2d at 929. The Louisiana Supreme Court recognized an exception to the hearsay rule for statements made against the declarant's own penal interest in State v. Gilmore, 332 So.2d 789, 792 (La. 1976). As codified in LSA-C.E. art. 804(B)(3), the exception includes a statement which was, at the time of its making, so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.

In this case, the statements at issue were made by Mr. Beals to Mr. Billingsley while they were both in an Ascension Parish jail. Mr. Beals' statements were certainly self-implicating. However, the trial court ruled that Mr. Billingsley could testify about what Mr. Beals said he did, but not about the actions of defendant Jones or Mr. Williams. In his brief, defendant Jones asserts that "Mr. Billingsley, although he did not testify about Mr. Jones' actions, testified about Mr. Beals telling him that [the victim] had stolen from Mr. Jones and had been bullying people at Mr. Jones' home. Mr. Billingsley also testified that Mr. Beals told him that [the victim] stole from defendant Jones again, and it was after this event that Mr. Beals says he and Mr. Williams took [the victim] for a ride and committed the murder." Nothing in this testimony incriminates defendant Jones. Defendant Jones suggests that these statements create the implication that he was the one to make the call whether the victim should be punished for his actions. Defendant Jones claims these statements were prejudicial because they implicated him in the murder, but he fails to explain how they were so prejudicial.

Third-party testimony concerning statements against penal interest is allowed when the declarant himself is unavailable to testify. State v. Hudson, 361 So.2d 858, 860 (La. 1978). A declarant is "unavailable as a witness" when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. LSA-C.E. art. 804(A). For such statements to be admissible, however, there must be indications that the statements were truly reliable. State v. Rushing, 464 So.2d 268, 273 (La. 1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703 (1986). In State v. Hammons, 597 So.2d 990, 996 (La. 1992), the Louisiana Supreme Court discussed Louisiana's rule as to statements against penal interest. The court stated:

Admission of statements against interest, as a traditional exception to the hearsay rule, is based on necessity and trustworthiness. The unavailability of the declarant requirement generally establishes the need to admit his out-of-court statement. The "against interest" requirement assures some degree of trustworthiness, because a person ordinarily does not make a statement that is disadvantageous to himself without substantial reason to believe that the statement is true. (Internal citations omitted.)

Mr. Beals' statements were undoubtedly against his interest and were corroborated by other evidence; thus they were clearly admissible against Mr. Beals.

As noted, defendant Jones relies on this Court's findings in Butler in arguing that the statements at issue in this case were erroneously admitted. In Butler, 646 So.2d at 926-27, the defendant (Tyrone Butler), Tyrone Gaines, and Carlene Smith were jointly charged with possession of over 400 grams of cocaine and conspiracy to distribute cocaine. A pretrial motion to suppress physical evidence was granted as to Smith, while Gaines was tried with the defendant. Id. at 927, n.1. The cocaine was sent through the United Parcel Service (UPS) in a package with an incomplete Baton Rouge address. Id. at 927. A UPS employee in the loss prevention department was suspicious of the contents and called the narcotics division of the Baton Rouge City Police. Detective Frank Caruso performed a field test on the contents of the box, which indicated that it contained cocaine. Dressed in a UPS uniform, Detective Caruso delivered the package after an unidentified male caller provided an apartment number for the delivery. Tyrone Gaines was arrested after accepting delivery of the package. Id. During the trial, while cross examining Gaines' mother, the State introduced statements by Gaines to the effect that Gaines picked up the package for defendant Butler. Id. at 928-29. The defendant was found guilty as charged while Gaines was acquitted of both charges. Id. at 927, n.1. On appeal, the defendant, among other things, claimed the trial court abridged his right of confrontation by admitting Gaines' hearsay statements. This Court found that the statements were not an unambiguous admission by Gaines that he knowingly engaged in criminal behavior. This Court also concluded that the statements themselves bore no other indicia of reliability. Id. at 929-30. This Court noted that unless the statement is truly against the maker's penal interest, its reliability is suspect. The erroneous admission of the testimony at issue in Butler was harmless, as it was clearly cumulative to, and corroborative of, the in-court testimony of Carlene Smith. Id. at 930-31.

Butler is distinguishable from this case. Here, the testimony at issue involved statements by a codefendant, Mr. Beals, that were clearly self-inculpatory. According to Mr. Billingsley's trial testimony, Mr. Beals, in describing the victim's murder in detail, told Mr. Billingsley that after repeated incidents of theft by the victim, "they" went out to Sorrento and the victim was "taken care of" when he stepped out of the vehicle to urinate. Mr. Billingsley's testimony was highly reliable since the statements divulged corroborated facts and details of the offense that the witness, Mr. Billingsley, would not have personal knowledge or the ability to provide absent the disclosure by the declarant, Mr. Beals. In Butler, the statement by the third party witness exonerated Gaines and directly implicated Butler. Here, there is no such statement concerning defendant Jones. At best, there is a remote, indirect implication of him.

Finally, Mr. Beals was unavailable, pursuant to LSA-C.E. art. 804(A)(1), because he invoked his Fifth Amendment privilege against self-incrimination and refused to testify. In this case, the statements made by Mr. Beals were statements against his interest and Mr. Beals was unavailable to testify; thus Mr. Beals' statements to Mr. Billingsley were admissible under LSA-C.E. art. 804(B)(3) as statements against interest. See State v. Short, 06-1451 (La. App. 3 Cir. 5/16/07), 958 So.2d 93, 96-97, writs denied, 07-1473 (La. 2/1/08), 976 So.2d 714 and 07-1646 (La. 2/1/08), 976 So.2d 715, cert. denied, 555 U.S. 869, 129 S.Ct. 164, 172 L.Ed.2d 119 (2008).

The admission of the statements is also not a violation of defendant Jones' right of confrontation because they are not testimonial. The right of confrontation is inapplicable to non-testimony declarations and admissions by a codefendant. Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Testimonial evidence includes prior testimony at a preliminary hearing, before a grand jury, at a former trial, and statements made during police interrogations. Crawford v. Washington, 541 US. 36, 68, 214 S.Ct. 1354, 1374, 165 L.Ed.2d 1177 (2004). Thus, the testimony at issue did not violate defendant Jones' constitutional right of confrontation. As stated, the above findings as to the admissibility of Mr. Billingsley's hearsay testimony disclosing Mr. Beals' statements would be equally applicable to a separate trial of defendant Jones where Mr. Beals was unavailable to testify. Considering the foregoing conclusions, we find that defendant Jones has not only failed to make a showing of actual antagonism to justify a severance, he has further failed to make a showing of prejudice. Thus, we find no abuse of discretion in the trial court's denial of the motion to sever. Assignments of error numbers one and two lack merit.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

In his second pro se assignment of error, defendant Jones argues that he has been denied the right to full appellate review due to an incomplete and inaccurate record on appeal. Defendant Jones notes that his appellate counsel filed a motion to supplement the appeal record and suspend briefing delays. He further notes that the court reporter certified that the transcript for the proceedings held on May 15, 2014 was incomplete due to a thirteen-minute skip in the recording tape. Defendant Jones further claims that portions of the jury voir dire, bench conferences, and certain testimony were not properly transcribed or recorded. He further adopts the claims made by Mr. Beals on appeal in arguing that there are prejudicial omissions in the record.

Louisiana Constitution article I, §19 guarantees defendants a right of appeal "based upon a complete record of all the evidence upon which the judgment is based." Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal. See State v. Boatner, 03-0485 (La. 12/3/03), 861 So.2d 149, 153; State v. Robinson, 387 So.2d 1143 (La. 1980) (reversal required when the record failed to contain the testimony of a state and defense expert witness); State v. Ford, 338 So.2d 107 (La. 1976) (reversal required when the record was missing the testimony of four state witnesses and the voir dire of prospective jurors).

Louisiana Code of Criminal Procedure article 843 provides:

In felony cases, in cases involving violation of an ordinance enacted pursuant to R.S. 14:143(B), and on motion of the court, the state, or the defendant in other misdemeanor cases tried in a district, parish, or city court, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

The Louisiana Supreme Court has never articulated a per se rule either requiring or exempting the recording of bench conferences from the scope of Article 843. However, in State v. Hoffman, 98-3118 (La. 4/11/00), 768 So.2d 542, 586-87, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 227 (2000), the Court interpreted Article 843's requirement that "objections" and "arguments" be recorded as applying only to objections made in open court and the arguments of counsel in closing, because only these objections and arguments rise to a level of materiality sufficient to invoke Article 843. Similarly, LSA-Const. art. I, §19's command to record "evidence" does not encompass bench conferences -- at least, not ones that do not satisfy the materiality requirements of Article 843.

Further, inconsequential omissions from or slight inaccuracies in the record do not require reversal. See State v. Goodbier, 367 So.2d 356, 357 (La. 1979) (reversal not required when the record does not include a transcript of the voir dire examination and the court reporter's affidavit indicates that counsel made no objections during voir dire). Finally, a defendant is not entitled to relief due to an incomplete record absent a showing of prejudice based on the missing portions of the transcripts. See Hoffman, 768 So.2d at 587 (where the defendant could point to no specific prejudice, the failure to record bench conferences did not constitute reversible error); State v. Castleberry, 98-1388 (La. 4/13/99), 758 So.2d 749, 772-73, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999) (absence from the record of four unrecorded bench conferences did not deny defendant effective appellate review); State v. Brumfield, 96-2667 (La. 10/20/98), 737 So.2d 660, 669-70, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999) (the trial court's failure to have each bench conference and ruling properly transcribed was not reversible error when the defendant failed to show that he was prevented from presenting any relevant evidence and failed to establish that any prejudice resulted from their absence in the record).

Here, defendant Jones notes several instances during the voir dire examination where the transcript notes an "inaudible" oral transmission. However, in each of those instances, the omissions are clearly immaterial. For example, the first voir dire omission defendant Jones cites occurred as follows during a colloquy with the trial court and prospective jurors regarding their occupations:

THE COURT:
What sort of self-employment?

MS. COLE:
I work for (inaudible) Gauthier, I was his nanny, now I'm still his housekeeper.

There were no objections or indications that the parties in the courtroom were unable to hear the prospective juror.

The second voir dire omission defendant Jones cites involved the age of a prospective juror when he was disciplined by his grandparents who accused him of stealing a bicycle along with his cousin. Specifically, the defense attorney asked, "How old were you?" The response of the prospective juror is noted as "inaudible." There was no objection before the defense counsel proceeded to ask the prospective juror who it was that falsely accused him of stealing, to which he responded, "cousin." As confirmed by this Court's review of the record, defendant Jones cites several other similarly inconsequential omissions of the voir dire transcript wherein a word or phrase was noted as "inaudible" during immaterial responses that did not lead to objection by the parties.

Regarding defendant Jones' claims as to the bench conferences that took place during the trial, from the context of the trial transcript it is clear that he has again failed to make any showing of prejudice. The first conference cited by defendant Jones was fully recorded and transcribed for the record and involved a defense objection to testimony based on lack of proper foundation. The other bench conferences defendant Jones cites all took place prior to a break or adjournment and apparently involved discussions regarding time management.² Defendant Jones cites other portions of the record that he contends involve misquotes or inaccuracies but has failed to provide a plausible argument in support of his claims, and we find no error or prejudice based on our review of those portions of the record. Considering the foregoing conclusions and for the reasons fully expressed in State v. Beals, 15-0087 (La. App. 1 Cir. ___/___/___), ___ So.3d ___, regarding assignment of error three therein, we find that defendant Jones has failed to show that there are any material omissions or that he was prejudiced based on any omissions or inaccuracies of the appellate record. Pro se assignment of error number two lacks merit.

2 Defendant Jones also cites record page number 1420 in his claim regarding a string of bench conferences; but, the record in this appeal ends at page 1414 and there is no corresponding page in the codefendants' appellate records.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

In his third pro se assignment of error, defendant Jones argues that the trial court erred in denying his request for special jury instructions on specific intent as it relates to principals. Defendant Jones argues that the jury did not understand the law, noting that during deliberations the jury asked to review Mr. Billingsley's testimony, a copy of Mr. Billingsley's statement to Detective Sullivan, and clarification as to whether covering up a crime after the fact constituted aiding and abetting.³ Defendant Jones argues that he was prejudiced, specifically contending that a proper instruction on specific intent as it relates to principals would have led the jury to finding him not guilty.

3 Regarding the jury's request to review Mr. Billingsley's testimony and interview, as the parties agreed, the trial court instructed the jury to rely on its memory. As to the inquiry regarding "covering up a crime after the fact," the parties agreed to inform the jury that such actions would constitute accessory after the fact and that said crime would not be a responsive verdict to the charge of second degree murder.

Louisiana Code of Criminal Procedure article 802 requires the trial court to charge the jury as to the law applicable to the case. The State and the defendant have the right to submit special written charges for the jury. LSA-C.Cr.P. art. 807. It is the trial court's duty to give a requested jury charge when it does not require qualification, limitation, or explanation and is not included in the general charges or in another special charge to be given, if it is wholly correct and pertinent to the case. State v. Powell, 94-1390 (La. App. 1 Cir. 10/6/95), 671 So.2d 493, 497, writ denied, 95-2710 (La. 2/9/96), 667 So.2d 529. When considering an allegedly improper jury instruction, a reviewing court must determine whether it is "reasonably likely" that the jury applied the challenged instruction improperly, not whether it is possible that the jury misapplied the instruction. State v. Smith, 91-0749 (La. 5/23/94), 637 So.2d 398, 403, cert. denied, 513 U.S. 1045, 115 S.Ct. 641, 130 L.Ed.2d 546 (1994). In analyzing jury instructions, our cases caution against taking certain phrases out of context of the charge as a whole. The test articulated is whether, taking the instruction as a whole, reasonable persons of ordinary intelligence would understand the charge. State v. West, 568 So.2d 1019, 1023 (La. 1990). Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Thomas, 10-220 (La. App. 5 Cir. 11/9/10), 54 So.3d 678, 686, writs denied, 2010-2758 (La. 4/25/11), 62 So.3d 89 and 10-2752 (La. 5/20/11), 63 So.3d 974.

An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. West, 568 So.2d at 1022, citing State v. Holmes, 388 So.2d 722, 726 (La. 1980). In Holmes, the court cited this instruction with approval in the context of first degree murder:

The law as to principals reads as follows: All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime are principals. One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of crime depending on the mental element proved at trial. The first degree murder statute, with which this defendant is charged, requires proof of

specific intent on the part of this defendant. I have previously read to you the definition of specific criminal intent.

Holmes, 388 So.2d at 727. Specific intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1); State v. Kohler, 434 So.2d 1110, 1119 (La. App. 1 Cir. 1983).

Herein, defendant Jones' attorney asked the trial court to review the jury instruction found proper by this Court in Kohler, and to supplement the prepared instruction "so that the jury understands that you cannot find someone guilty of murder, a specific intent crime, as a principal without also having the specific intent contained in that evidence related to being a principal." The trial court noted that the parties previously discussed the jury instructions and that an amendment was made as a result of a request by defendant Jones' attorney.⁴ The trial court further stated, "If I gave every correct instruction that has ever been given on a case, it would be thick as that document over there. There are a lot of correct instructions. I've given these instructions before in second degree murder cases, the same instructions I'm giving today." The trial court noted the defense objection for the record and the following relevant statements were included in the jury instructions:

4 Specifically, the trial court added the word "knowingly" to the following portion of the jury instructions on the law of principals: "All persons knowingly concerned in the commission of a crime."

[I]n order to convict the defendants of second degree murder you must find that the defendants killed Gerald Wilkins and that the defendants acted with a specific intent to kill or inflict great bodily harm.

Now the case of each defendant and the evidence pertaining to that defendant should be considered separately and individually. The fact that you may find one of the defendants guilty or not guilty should not control your verdict as to any other defendant.


* * *
Now we'll talk about criminal intent. Criminal intent may be specific or general. Specific criminal intent is that state of mind which exists when the circumstances indicate that the defendants actively desired the prescribed criminal consequences to follow from the act or failure to act. Whether criminal intent is present must be determined in light of ordinary experience. Intent is a question of fact that may be inferred from the circumstances. You may infer that the defendants intended the natural and probable consequences of their acts. The definition[s] of some crimes require specific criminal intent while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. And this is a specific criminal intent crime.

Now we'll talk about principals. All persons knowingly concerned in the commission of a crime are principals and are guilty of the crime charged if, whether present or absent, they directly commit the act constituting the crime, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.

So let's analyze what I've told you, ladies and gentlemen. If you find that the State has proved beyond a reasonable doubt that any of the defendants individually did in fact commit the offense charged, your verdict should be guilty of second degree murder as to that defendant individually.
...

The trial court also instructed the jury as to the elements of the charged and responsive offenses, noting which offenses required proof of specific intent to kill or to inflict great bodily harm, including second degree murder and manslaughter, with no such requirement as to the responsive offense of negligent homicide. The trial court closed the instructions with, "If the State has failed to prove beyond a reasonable doubt that any of the defendants are guilty of second degree murder or of the lesser offenses of manslaughter and negligent homicide, then your verdict should be not guilty as to that defendant."

Based on our careful review of the charges given, we find that it was unnecessary for the trial court to include any additional language. The trial court's instruction properly and adequately summarized the law. We find, taking the instruction as a whole, reasonable persons of ordinary intelligence would understand the charge as to the requirement of proof of specific intent on the part of each individual defendant. Thus, we cannot say that it is reasonably likely that the jury applied the challenged instruction in an unconstitutional manner. Pro se assignment of error number three lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth pro se assignment of error, defendant Jones cites portions of the State's closing arguments that he claims were lies and not representative of any testimony or evidence. Defendant Jones contends that it is undisputed that he never left Baton Rouge on the night of the murder and notes that the State specifically indicated during its closing argument that he and the codefendants left Baton Rouge and went to Ascension Parish to commit the offense. Defendant Jones further notes that the State suggested that the victim used Mr. McGee's cell phone on the night in question⁵ and contends that the State falsely asserted that the codefendants took items from the victim after he was shot (identifying personal effects, namely his cell phone and wallet). Defendant Jones also argues that the prosecutor improperly vouched for several witnesses and expressed a personal opinion in stating that the murder would not have been committed if defendant Jones did not aid the other defendants by providing the vehicle. Defendant Jones argues that the State's case against him was weak and that if not for the prejudicial, impermissible statements by the prosecutor, he would have been acquitted.

5 Considering the context, this reference by defendant Jones includes an apparent error in which the prosecutor mistakenly used the victim's name in attempting to refer to Mr. Williams, whom was referenced repeatedly throughout the record, including other parts of the State's closing, as having borrowed Mr. McGee's cell phone on the night of the murder.

Prosecutors are afforded broad latitude in choosing opening and closing arguments and trial tactics. See State v. Martin, 539 So.2d 1235, 1240 (La. 1989); State v. Copeland, 530 So.2d 526, 545 (La. 1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989); State v. Patton, 10-1841 (La. App. 1 Cir. 6/10/11), 68 So.3d 1209, 1221. Louisiana Code of Criminal Procedure article 774 confines the scope of argument to "evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case." As a general rule, the prosecutor may not use closing argument to express his personal opinions about the defendant when his opinion is expressed in a manner that the jury may understand has been formed from evidence outside of the record. State v. Procell, 365 So.2d 484, 489 (La. 1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979). However, such an opinion is permissible if the prosecutor refers to, or it is apparent that his opinion is based on, the evidence of record. Procell, 365 So.2d at 489. The trial court has broad discretion in controlling the scope of the opening and closing arguments. State v. Prestridge, 399 So.2d 564, 580 (La. 1981). Even if the prosecutor exceeds permissible bounds, the court will not reverse a conviction if not "thoroughly convinced" that the impermissible argument influenced the jury and contributed to the verdict. See State v. Martin, 93- 0285 (La. 10/17/94), 645 So.2d 190, 200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995); Patton, 68 So.3d at 1221.

It is well settled law that the prosecutor "has the right to press upon the jury any view of the case arising out of the evidence - the Supreme Court is bound to credit jurors with common intelligence, conscientiousness, and sense of duty." State v. Alexander, 215 La. 245, 40 So.2d 232, 234 (1949). Further, an argument with regard to the credibility of a witness is proper where the credibility of the witness is in question and the facts bearing on the witness' credibility appear in the record. See Procell, 365 So.2d at 489. We note that the jury in this case was properly instructed on its role as the ultimate trier of fact and that statements by the State, defense attorneys and judge were not to be considered evidence in the case. We find that the comments referred to by defendant Jones in his pro se brief did not fall outside of the proper scope of a closing argument. Moreover, we are not thoroughly convinced that any of the prosecutorial comments at issue influenced the jury or contributed to the verdict. Thus, pro se assignment of error number four lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FIVE

In his fifth pro se assignment of error, defendant Jones argues that the trial court erred in allowing the State to present inadmissible other crimes evidence without notice or a pretrial hearing under State v. Prieur, 277 So.2d 126, 128 (La. 1973). Defendant Jones contends that the jury heard evidence that he ran a crack house, sold and used drugs, made runs to drop off packages, and that partying at his house involved drug use and alcohol consumption. He argues that the evidence against him was weak and that the other crimes evidence was used to "muddy the water and make things appear ugly."

It is well settled that courts may not admit evidence of other crimes to show the defendant as a person of bad character who has acted in conformity with his bad character. Evidence of other crimes, wrongs or acts committed by the defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant. To admit other crimes evidence, the State must establish that there is an independent and relevant reason for doing so, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act. See LSA-C.E. art. 404(B)(1); State v. Tilley, 99-0569 (La. 7/6/00), 767 So.2d 6, 22, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001). Further, at least one of the enumerated purposes in Article 404(B)(1) must have substantial relevance independent from showing defendant's general criminal character in that it tends to prove a material fact genuinely at issue.

Additionally, the probative value of the other crimes evidence must outweigh its prejudicial effect. LSA-C.E. art. 403. Separate and apart from the showing of relevancy and prejudice, the State must also prove the defendant committed the other acts and satisfy the requirements set forth in Prieur and Article 404(B)(1), i.e., upon request by the defendant, the State must provide the defendant with notice before trial that it intends to offer prior crimes evidence. State v. Garcia, 09-1578 (La. 11/16/12), 108 So.3d 1, 39, cert. denied, ___ U.S. ___, 133 S.Ct. 2863, 186 L.Ed.2d 926 (2013).

In Garcia, the Court used the following gatekeeping analysis and an abuse of discretion standard in reviewing the admission of other crimes evidence:

Logically, it falls to the trial court in its gatekeeping function to determine the independent relevancy of [evidence of other crimes, wrongs, or acts] and balance its probative value against its prejudicial effect. Upon finding such relevance, the court must then balance all the pertinent factors weighing in favor of and against its admissibility. In this analysis, the court seeks to answer the question: Is this evidence so related to the crime on trial or a material issue or defense therein that, if admitted, its relevancy will outweigh the prejudicial effect, which the defendant will necessarily be burdened with?

The trial court's answer to this question and its corresponding ruling on the admissibility of the additional other crimes evidence will not be disturbed absent an abuse of discretion.

Garcia, 108 So.3d at 39 (citations omitted).

Here, defendant Jones specifically notes the following line of questioning by the State during cross examination of Mr. McGee:

Q. And what would all these people do that would come to Hooper's house throughout the day?

A. Just coming through, partying or drinking, smoking, whatever, just stopping to visit or whatever.

Q. And you said partying, what does that mean?

At this point, defendant Jones' attorney objected and a bench conference was held where the defense argued that the State's question was designed to elicit testimony containing other crimes evidence as to drug use. The State in part noted other witnesses would testify that the victim stole drugs from defendant Jones, arguing that such theft was the motive for the instant crime. After the defense noted that there had been no notice or Prieur hearing on the issue, the State noted that the defense had access to the same police reports and statements as the State. The trial court overruled the defense objection and allowed the witness to answer the question as follows: "Drinking, smoking, listen to music, party." When asked what was being smoked, the witness further testified, "[w]eed, dope, cigarettes, smoke." While defendant Jones does not cite any other specific examples to support his claim, he generally contends that the jury heard testimony indicating that he was "running a crack house, selling drugs, doing drugs, allowing others to do drugs at his house."

Motive evidence reveals the state of mind or emotion that influenced the defendant to desire the result of the charged crime. To have independent relevance, the motive established by the other crimes evidence must be more than a general one, such as gaining wealth, which could be the underlying basis for almost any crime; it must be a motive factually peculiar to the victim and the charged crime. State v. McArthur, 97-2918 (La. 10/20/98), 719 So.2d 1037, 1041.⁶ Here, references to drug activity and repeated thefts by the victim committed against defendant Jones related to drugs or drug transactions was independently relevant to the crime on trial, a defense, and/or material issue, i.e., motive, so that the relevancy of the evidence outweighed its prejudicial effect. Therefore, we find that the trial court did not abuse its discretion in admitting the testimony at issue. Thus, pro se assignment of error number five is without merit.

6 McArthur is superseded by LSA-C.E. art. 412.2 only with respect to other crimes evidence of sexually assaultive behavior. See State v. Wright, 11-0141 (La. 12/6/11), 79 So.3d 309, 316-17.

PRO SE ASSIGNMENT OF ERROR NUMBER SIX

In his final pro se assignment of error, defendant Jones contends that the trial court erred when it sent the jury answers to their questions during deliberation. Defendant Jones argues that the trial court did not properly address the jury's concerns and should have called the jury back into open court to address the questions regarding Mr. Billingsley. Defendant Jones contends that the trial court should have simply said "yes or no" when the jury asked if covering up a crime after the fact constituted aiding or abetting. Defendant Jones argues that the trial court's response confused the jury, which resulted in him being found guilty as charged.

In accordance with LSA-C.Cr.P. art. 793(A), a juror must rely upon his memory in reaching a verdict and shall not be permitted to refer to notes or to have access to any written evidence. While testimony shall not be repeated to the jury, upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict. The general rule as expressed by Article 793 is that the jury is not to inspect written evidence except for the sole purpose of a physical examination of the document itself to determine an issue that does not require the examination of the verbal contents of the document. State v. Perkins, 423 So.2d 1103, 1109-10 (La. 1982); State v. Rodriguez, 476 So.2d 503, 508 (La. App. 1 Cir. 1985).

As previously noted, the jury made three inquiries during deliberations. First, the jury asked to review Mr. Billingsley's testimony; secondly, the jury asked to review a copy of Mr. Billingsley's statement to Detective Sullivan; and finally, the jury asked the following question, "Is covering up a crime after the fact aiding and abetting?"⁷ As the parties agreed, the trial court instructed the jury to rely on its memory regarding its request to review Mr. Billingsley's testimony and police statement. As to the inquiry regarding "covering up a crime after the fact," we have previously noted that the parties agreed to inform the jury that such actions would constitute accessory after the fact and that said crime would not be a responsive verdict to the charge of second degree murder.

7 While defendant Jones contends on appeal that the jury should have been brought back into the courtroom "to hear" Detective Sullivan's taped statement of Mr. Billingsley, there is no indication that a recorded statement was ever admitted into evidence or played for the jury and during the trial Detective Sullivan was allowed to review written statements to refresh his memory.

The parties agreed and there were no objections regarding the trial court's responses to the jury questions. All three defense attorneys orally affirmed their approval of informing the jury to rely on its memory as to the Mr. Billingsley's testimony and statement and of the answer to the jury's question on aiding and abetting. Indeed, the defense attorneys assisted in devising the response to the question. Specifically, counsel for defendant Jones stated, "Accessory after the fact does not mean principal -- ." Mr. Beals' counsel then interrupted, adding, "Accessory after the fact is not a responsive verdict." The trial court subsequently inquired, "Any objection to my putting on there that would be accessory after the fact?" Defendant Jones' counsel responded, "Only insofar as we're telling them that that's not the crime he's charged with -- not the crime charged or responsive verdict." Thus, the trial court added the portion informing the jury that accessory after the fact is not a charge or a responsive verdict in this case and again asked if there were any objections to which there were none.

A contemporaneous objection is necessary to preserve an issue for appellate review. See LSA-C.Cr.P. art. 841. Defendant Jones failed to preserve the issue raised in this assignment of error for appeal. Not only were there no objections, the State and defense expressly agreed and helped devise the response to the jury's question. Further, we note the jury's request to review the Mr. Billingsley's testimony and police statement is clearly prohibited by LSA-C.Cr.P. art. 793. Under the circumstances, we find no error. Pro se assignment of error number six lacks merit.

CONCLUSION

For the foregoing reasons, Darryl Jones' conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED. THERIOT, J., dissenting with reasons.

I respectfully dissent from the majority. While we must adhere to the standard of Jackson v. Virginia and view the evidence in the light most favorable to the prosecution, I find the record and evidence are insufficient to reasonably conclude that all the elements of the offense have been proven against Jones beyond a reasonable doubt. The evidence in this case is largely circumstantial in nature, and, if it is all taken to be true, it does not exclude every reasonable hypothesis of innocence.

The State's primary witness, Mr. Billingsley, stated that Mr. Beals told him that he had offered to "take care" of the victim for Jones. Jones clearly declined that offer, saying "no, don't worry about it," and that the victim was not to be touched. This statement shows a lack of intent to kill the victim on the part of Jones. The record is clear that Jones did not accompany Beals, Williams, and the victim to Sorrento, where the crime occurred.

Although evidence was admitted to show numerous phone calls and texts were made to Jones's cell phone on the night of the offense, phone records show that these calls and texts were not answered. Ms. Billingley's testimony corroborates this conclusion, since she stated that she was present with Jones throughout the night, and that Jones's phone "rang a lot." She did not testify that Jones ever answered the phone.

As stated in State v. Williams, 804 So.2d at 939, we, as a reviewing court, are not to reweigh evidence to overturn the fact finder's determination of guilt; however, it is not necessary to reweigh the evidence in the instant case to find that Jones is not guilty of second degree murder. We must find that a reasonable factual basis for the finding of the trial court does not exist in the record. See State v. Crisp, 33,615 (La. App. 2 Cir. 8/31/00), 767 So.2d 163, 165. Viewing the evidence in the light most favorable to the prosecution, it is apparent that Mr. Billingsley never testified that Jones authorized, agreed to, or sanctioned the murder.

The majority speculates on what might have been the jury's reasoning upon reaching its verdict, and that the jury must have rejected Jones' hypothesis that he did not instruct Beals or Williams to harm the victim. That, however, is testimonial fact and not a hypothesis. Mr. Billingsley stated through admissible hearsay testimony that Jones told Beals he did not want the victim to be touched. The majority also misinterprets the unanswered texts and calls to Jones's phone as "contact." There is no evidence to convince a reasonable person beyond a reasonable doubt that Jones answered or read any calls or texts prior to or during the commission of the offense.

I find the record clearly established that Jones was aware of the murder the following morning. After learning of what Beals and Williams had done, Jones instructs Mr. Magee to withhold the cellphone that was borrowed on the drive to Sorrento from the police. While this act could implicate Jones as an accessory after the fact, it does not implicate him as a principal to second degree murder.

Anyone concerned in the commission of a crime, whether present or absent, and whether he directly commits the act constituting the offense, aids and abets in its commission, or directly or indirectly counsels or procures another to commit the crime, is a principal to that crime. La. R.S. 14:24. In the instant case, Jones was not present during the commission of the offense. He neither intentionally aided and abetted in its commission. While it is true that Beals and Williams used Jones's car to commit the murder, there is no evidence in the record that Jones authorized them to use it to carry out the murder. The record is void of evidence that Jones gave any counsel to Beals or Williams, directly or indirectly, in the commission of the crime. Again, it was Jones's specific instructions to Beals to not touch the victim, after Beals had offered to "take care" of him.

In contrast, an accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial conviction, or punishment. La. R.S. 14:25. The evidence indicates that Jones was not aware of the murder until the morning after it was committed. Upon learning of the murder, he harbored both Beals and Williams in his home. He also concealed information about the murder on Mr. Magee's cell phone from the police, and one can reasonably conclude he actively desired that Beals and Williams avoid arrest, and that he was substantially certain it would result from his assistance. See State v. Newton, 2012-0511 (La. App. 3 Cir. 2/13/13), 129 So.3d 20, 22, citing State v. Chism, 436 So.2d 464 (La. 1983). The important distinction that makes Jones an accessory after the fact and not a principal in the instant case is that he committed his act after the underlying felony occurred. See State v. Munson, 2012-0327 (La. App. 5 Cir. 4/10/13), 115 So.3d 6, 16, writ denied, 2013-1083 (La. 11/22/13), 126 So.3d 476 (emphasis added).

Accessory after the fact is not a listed responsive verdict of second degree murder. La. C.Cr.P. art 814(3). The evidence proves beyond a reasonable doubt that Jones is guilty of accessory after the fact, but since it is not a responsive verdict to the offense for which he was charged, I believe the proper verdict in the instant case is "not guilty."