Opinion
NO. 23-KA-317
12-27-2023
STATE of Louisiana v. John B. MCMILLAN aka "Blair"
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler Juliet L. Clark COUNSEL FOR DEFENDANT/APPELLANT, JOHN B. MCMILLAN IV A/K/A "BLAIR" Mary Constance Hanes
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 20-6497, DIVISION "G", HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler Juliet L. Clark
COUNSEL FOR DEFENDANT/APPELLANT, JOHN B. MCMILLAN IV A/K/A "BLAIR" Mary Constance Hanes
Panel composed of Judges Fredericka Homberg Wicker, John J. Molaison, Jr., and Scott U. Schlegel
MOLAISON, J.
1The defendant, John B. McMillan, AKA "Blair," appeals his conviction of manslaughter and resulting 40-year sentence. For the reasons that follow, the defendant’s conviction and sentence are affirmed.
PROCEDURAL HISTORY
On January 15, 2021, the Jefferson Parish District Attorney filed a bill of information charging the defendant with manslaughter, in violation of La. R.S. 14:31, in the death of Kenneth McMillan, the defendant’s brother. The defendant pled not guilty at arraignment. The case proceeded to trial before a twelve-person jury, and on December 1, 2022, the defendant was found guilty as charged by a unanimous verdict.
At that same time, the trial court found the defendant guilty of the misdemeanor offenses of battery of a police officer and resisting an officer. Those convictions are not part of this appeal.
On December 6, 2022, the State filed a multiple offender bill of information alleging the defendant to be a second-felony offender. The defendant filed a motion for new trial, which was denied on January 19, 2023. On that same date, the defendant waived sentencing delays, and he was sentenced to imprisonment at hard labor for forty years with the sentence to run concurrently with the misdemeanor sentences imposed on that day. On February 2, 2023, a multiple bill hearing was held, after which the defendant was found to be a second-felony offender. Thereafter, the original sentence was vacated and the defendant was resentenced under the multiple bill statute to imprisonment at hard labor for forty years without benefit of suspension of sentence, to run concurrently with any other sentence that the defendant was serving. The trial court denied the defendant’s Motion to Reconsider Sentence. This timely appeal followed.
2 FACTS
The testimony at trial established that on November 15, 2020, emergency responders were called to 2629 Oklahoma Drive in Marrero, the home of the defendant and his brother, Kenneth. It was reported that Kenneth had fallen the day before. Kenneth was found lying on his back on a mattress on the floor. One side of his face was swollen and bruised. His pupils were two different sizes and they were non-reactive to light. Kenneth was transported to West Jefferson Medical Center.
Paramedic Christa Polite testified that this is a sign of a brain injury.
Dr. Alan Velander, who was accepted as an expert in the fields of neurology and neuro-critical care, treated Kenneth at West Jefferson Medical Center. Kenneth arrived at the hospital in a comatose state. CT scans of Kenneth’s brain were taken at 5:28 p.m., which showed a subdural hematoma and a subarachnoid hemorrhage, which led to brain herniation and damage to his brain stem. Dr. Velander could not tell when or how the injury to Kenneth’s brain occurred. On November 17, 2020, Dr. Velander declared Kenneth brain dead. Dr. Velander acknowledged that Kenneth had pre-existing medical conditions, including a blood disorder, hepatitis, tuberculosis, and pancytopenia (low blood count).
Kenneth’s son, Kenneth Sterling McMillan, hereinafter "Sterling," was notified by the hospital that his father was hurt so he called his father’s phone, and the defendant answered. The defendant reported that Kenneth had fallen in the shower. Sterling went to the hospital the next morning, where he encountered the defendant, who Sterling described as acting erratically. Sterling felt that the injury to the left side of his father’s jaw looked "pretty severe" for a single fall.
Sterling explained that he went to the home and looked inside of the shower but did not see any dents or blood. He testified that the defendant then said that Kenneth hit his head on the wall and fell out of the shower. Sterling saw a hole in 3the bathroom wall and he thought that the damage appeared to be old. When he questioned the defendant again about the accident, the defendant got defensive, walked into the bathroom, and said that Kenneth had fallen between the sink and the toilet. Sterling did not see any chips, a loose toilet seat, or blood. Sterling testified that when he contacted Kenneth’s boss, Christopher Fraino, to tell him what happened, Mr. Fraino informed him that he received a text message and photograph from Kenneth on the morning of November 15, 2020.
Sterling obtained his father’s phone from the defendant at the hospital but noticed that the text his father sent to Mr. Fraino had been deleted. After Mr. Fraino sent Sterling the text message and photograph, Sterling called the police and later gave them a statement. Sterling maintained that he talked to his father a few times a week on the phone, and sometimes heard verbal fighting between the defendant and his father. He stated that during the most recent fight, he heard the defendant in an intoxicated state say to Kenneth, "I wall f*cking kill you."
Mr. Fraino testified that Kenneth worked for him for several years and that Kenneth had talked to him before about him and the defendant fighting. He testified that Kenneth was very sick, had lost a lot of weight, and that Kenneth told him he did not have the strength to fight with the defendant.
Mr. Fraino explained that Kenneth would always let him know if there was an issue preventing him from coming to work. On November 15, 2020, at approximately 6:00 a.m,, Kenneth sent him a text that said, "I’m preoccupied with my little brother’s habits, I should be black-faced because I look like Fat Albert." Kenneth also texted him a photograph of himself, which showed the whole side of his face swollen and "bashed in." Mr. Fraino testified that later on November 15, 42020, he called Kenneth’s phone. The defendant answered and told him that Kenneth slipped and fell in the bathroom. Mr. Fraino recalled immediately telling the defendant that he was "full of f*cking sh*t," and he accused the defendant of punching Kenneth in the face. Mr. Fraino further testified that he told Sterling that he did not believe Kenneth had fallen and he sent a screenshot of Kenneth's photograph to Sterling.
He identified State’s Exhibits 1 and 2 as screenshots of what Kenneth sent to him that morning.
Deputy Nicholas Schlacter, who was accepted as an expert in the field of mobile device forensics, testified that he performed extractions on two cell phones, one belonging to the defendant and the other one belonging to the victim. He further testified that the extraction from the victim’s phone revealed photographs showing the victim with heavy swelling and injury to his face that had been taken and deleted. He stated that one of the photographs was taken on November 15, 2020, at 5:57 a.m. and was later moved to the trash folder.
Detective Kristian Fricke testified that after Sterling was interviewed, the Jefferson Parish Sheriff’s Office obtained a search warrant for the residence at 2926 Oklahoma. When Detective Fricke and other officers went to the residence to execute the search warrant, the defendant opened the door but immediately tried to close it. Detective Fricke prevented the door from being closed by putting himself between the door and the door frame, but the defendant continued to push the door on him. The defendant was eventually subdued and placed in handcuffs. Detective Fricke recalled that the defendant told him that he was a "past MMA fighter" and that he (Detective Fricke) was lucky because he (defendant) was about to "f*ck him up." The defendant was arrested, his cell phone was seized, and a search warrant was obtained for the defendant’s phone.
Dr. Michael Defatta, who performed an autopsy on the victim, was accepted as an expert in the field of forensic pathology. He opined that the victim died as a result of blunt force trauma and that the manner of death was homicide. He stated that the impact was to the left side of the victim’s face. Dr. Defatta testified that the victim had a right subdural hematoma with dense underlying subarachnoid hemorrhage. He testified that he was trained to recognize the difference between an injury caused by a fall and an impact caused by blunt force trauma. He explained that the victim had no contusions to the brain, which led him to 5conclude, with a reasonable degree of medical certainty that the impact to the victim’s head and face did not result from a fall. He further testified that if the victim had fallen in the shower and hit his face, other areas of the body should have been injured but were not.
Liseth Warren testified that the defendant was the father of her two children. She testified that he physically abused her when he was drinking or intoxicated, which she said was almost every day. In April 2016, she called the police after the defendant punched her in the head and tried to strangle her. She identified photographs of the injuries caused by defendant in April 2016. Ms. Warren testified that the defendant and Kenneth did not get along, elaborating that there was resentment on both sides regarding the defendant inheriting their mother’s house and Kenneth being left out of her will.
Louis Baudoin, who lived across the street from the defendant and Kenneth, testified that in October and November 2020, Kenneth told him that he and the defendant were arguing a lot, and Kenneth was worried about the defendant attacking him while he was asleep.
Mr. Baudoin testified that before sunrise on November 15, 2020, he saw Kenneth and the defendant sitting outside. He did not notice bruising or swelling on Kenneth’s face. After 3:00 p.m. that day, the defendant came to his house and reported that Kenneth had fallen and did not want to go to the hospital. Mr. Baudoin asked the defendant if "he had anything to do with it," and the defendant said no. Mr. Baudoin testified that he went to the residence and got no response when he touched Kenneth on the shoulder. He elaborated that he then shoved Kenneth "real hard," after which Kenneth rolled over and said, "Blair, leave me alone," and rolled back over. Mr. Baudoin testified that he saw blood coming 6from Kenneth’s eyes and that half of Kenneth’s face was almost black. Mr. Baudoin called 9-1-1 and stayed with Kenneth until EMS arrived.
"Blair" is defendant’s middle name.
After the State rested, the defense called several witnesses. The defendant testified that he looked up to Kenneth, who was seven years and eight months older than him. When they were children, he and Kenneth had training in mixed martial arts (MMA), tae kwon do, karate, and self-defense. He stated that Kenneth was bigger and stronger than him until Kenneth became ill. The defendant testified that he and Kenneth had gotten into physical altercations through the years, explaining that on one occasion, Kenneth broke his nose and knocked him out. This led to their mother becoming angry at Kenneth, forcing Kenneth and his wife to leave, and writing him out of her will.
Deputy Schlacter testified that in May 2020, Kenneth sent Sterling a text message that said, "I lost it for a second, Blair threatened to kill me. Before I knew him I had him. I began my sanity when I looked into his eyes and realized who I was about to kill. Suddenly, I almost killed my little brother."
The defendant testified that after Kenneth was released from prison in 2019, Kenneth sent him a text saying that he was homeless, which the defendant ignored. The defendant said that later that night, one of Kenneth's "drug associates," whom the defendant had met many times, tried to run him off the road while he was riding his bicycle. The defendant eventually allowed Kenneth to move in with him because before her death, his mother asked him to make up with Kenneth, and because he wanted to re-establish the trust and brotherly relationship they once had. He recalled that everything went well at first, but as time went on, Kenneth began to badger him about his share of the house.
With respect to Kenneth being injured, the defendant testified that on November 14, 2020, he and Kenneth woke up and smoked marijuana. Kenneth began hounding him about "signing the house over," and they got into a loud, angry argument. The defendant testified that he went into his room and locked the door, after which Kenneth banged on the wall. The door then flew open and 7Kenneth came "at him" and tried to place him in a chokehold. The defendant testified that he defended himself by "thrusting" to Kenneth’s chest area, and Kenneth then flew through the bedroom door into the hallway. The defendant testified that Kenneth "reached for his dagger that was on his side," after which the defendant punched Kenneth three times in the jaw area, thereby causing injury to Kenneth’s face. He further testified that Kenneth dropped the "knife," that he grabbed Kenneth in a bear hug, that he asked Kenneth to stop, that they both calmed down, and that they smoked marijuana again. The defendant stated that this altercation occurred between 9:00 and 10:00 a.m. on November 14, 2020.
Deputy Schlacter testified that Kenneth sent Sterling a text message that read, "I carry a custom-made dagger now." He later testified that on February 23, 2020, Kenneth told Sterling, "I carry a custom-made knife now."
The defendant testified that Kenneth subsequently took oxycodone because his jaw hurt and then watched television for the rest of the day. Kenneth had no other symptoms other than a hurt jaw. The defendant further testified that after 8:00 p.m. on that same date, Kenneth went to take a shower or a bath. The defendant heard Kenneth fall in the bathtub so he went down the hall and saw Kenneth sitting on the side of the bathtub. Kenneth said that he had slipped in the bathtub and hit his head but he was alright.
The defendant testified that the next morning, on November 15, 2020, he heard Kenneth leave and then return at approximately 8:30 a.m. with coffee, which they both drank. He testified that Kenneth started "looking bad" later that day. He elaborated that Kenneth became dizzy and held his head, after which the defendant told Kenneth he needed to be checked out. Kenneth did not want to do that because he feared that his parole would be revoked for fighting. The defendant testified that later, he ran across the street to ask Mr. Baudoin for help, explaining that he could not use his own phone because he had no minutes and there was a 8problem with the battery. He also maintained that he could not use Kenneth’s phone because he was "not good with smartphones."
The defendant testified that when he and Mr. Baudoin went into Kenneth’s room, Kenneth was leaning over the garbage can. He was afraid Kenneth was going to fall, so he laid Kenneth back in bed, and Kenneth said, "Blair, leave me alone." Mr. Baudoin called 9-1-1 and Kenneth was taken to the hospital. The defendant admitted that he did not tell EMS or Sterling about the fight between him and Kenneth. He denied deleting Kenneth’s text message to Mr. Fraino, stating that Kenneth was paranoid and would always delete his messages.
The defendant admitted that he was convicted in 1983 of possession of PCP, in 1984 of simple robbery, in 1987 of conspiracy to possess unregistered firearms, in 1989 of simple criminal damage to property, and in 2016 of domestic abuse strangulation and resisting arrest. He admitted that in 2016, he slapped Ms. Warren and bruised her face but denied beating her regularly. Michelle Melaneon testified that she had known the defendant and Kenneth since she was a young girl. She said that the defendant looked up to Kenneth, and the defendant did whatever Kenneth wanted him to do. Kenneth was bigger in height and weight than defendant and much "bigger boned." She never saw them fight or box, but she had seen Kenneth "manhandling" the defendant more than once. Ms. Melancon maintained that Kenneth was the dominant one and that the defendant never stood up to Kenneth. Kenneth was aggressive and she was afraid of him. She never knew the defendant to beat up anyone.
The record indicates that the defendant also had a conviction of "conspiracy to possession with the intent of shooting marijuana."
Walter Guy testified that he and the defendant had been friends since the mid-1990s and he saw the defendant two or three times a week. Mr. Guy avoided Kenneth. The defendant did whatever Kenneth told him to do. Mr. Guy testified 9that one time Kenneth was outside of his home using loud, foul language. When he asked Kenneth to leave, Kenneth got aggressive, so the defendant had to force Kenneth to leave.
Mr. Guy testified that the defendant had sobered up and was "doing great" until Kenneth moved in with him. The defendant then started drinking again. Mr. Guy stated that the defendant was scared of Kenneth and was concerned that Kenneth wanted him to sell the house and give Kenneth some money.
Irvin Ockman testified that he had known the defendant, who worked for him, for approximately twenty years. The defendant came to his house sometimes to get away from Kenneth because Kenneth was bullying him. One day he saw the defendant with a black eye and a cut. When questioned, the defendant told him that he and Kenneth had "got into it." Mr. Ockman testified that he noticed changes in Kenneth’s behavior after he was diagnosed with cancer, namely, that Kenneth was "bullying more than he was before." Mr. Ockman asserted that Kenneth was mean, vicious, unreasonable, and controlling.
Kamarel Cranor testified that the defendant was her friend and neighbor. She met Kenneth when he got out of prison but did not interact with him very much. She remained in contact with the defendant after she moved away, and they talked on the phone almost daily. She had heard arguments between the defendant and Kenneth while on the phone. Ms. Cranor explained that when Kenneth first got out of prison, there were no arguments; however, as time passed, there were frequent arguments between the defendant and Kenneth. She maintained that the defendant was never violent or aggressive toward her and that she had never seen the defendant aggressive toward anyone.
Detective Fricke testified in rebuttal that neither a "custom dagger" nor anything of that nature was recovered from the residence. However, he pointed out 10that he did not search the house until November 19, 2020, the date he was notified that a crime may have occurred there.
ASSIGNMENT OF ERROR NUMBER ONE
[1] In his first assignment of error, the defendant argues that he received ineffective assistance of counsel when his trial counsel failed to introduce evidence to support his claim of self-defense, specifically, a video exhibit showing that his bedroom door had a broken latch. He contends that this exhibit would have supported the defendant’s claim that he punched his brother in the face in self-defense when his brother came into his bedroom and attacked him. The defendant concludes that the jury apparently rejected his claim of self-defense when it found him guilty of manslaughter based on the simple battery. The defendant points out that in a motion for new trial, trial counsel asserted that he had rendered ineffective assistance of counsel at trial because he was so exhausted that he forgot to introduce the video, which was already on his laptop on the lectern.
The defendant maintains that the burden was on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. He contends that the outcome of the trial would have been different but for trial counsel’s failure to introduce the evidence in question. Accordingly, the defendant concludes that this Court should vacate the conviction and sentence and remand for a new trial. Alternatively, the defendant argues that if this Court decides that the record is inadequate to address this claim, this Court should remand for an evidentiary hearing.
In response, the State argues that the trial court did not err by denying the motion for new trial based upon the allegation that trial counsel was ineffective with regard to alleged video evidence. The State notes that at the hearing, trial counsel did not seek to admit or proffer the alleged video evidence and did not attempt to proffer testimony regarding the circumstances under which it was 11alleged to have been recorded, its authenticity, or its relevance. As such, the State submits that the record is inadequate for appellate review of the defendant’s claim that he received ineffective assistance of counsel and that the claim should be relegated to post-conviction proceedings under La. C.Cr.P. arts. 924-930.8.
Additionally, the State argues that the trial court properly denied the motion for new trial as it pertained to the unsupported allegations of alleged video evidence as they were insufficient to establish the elements necessary to prevail on a claim of ineffective assistance of counsel. Also, the State contends that a remand for an evidentiary hearing is unwarranted based upon these allegations. The State asserts that the defendant did not attempt to introduce evidence at the hearing, nor object to the trial court’s ruling based upon the argument that was presented.
The record indicates that the trial set for July 11, 2022, was continued to September 26, 2022 at the request of defense counsel. On September 15, 2022, oral notice was given that trial was set on November 28, 2022. On November 22, 2022, the defendant filed another Motion for Continuance, asserting that he received additional discovery from the State on that date and needed time to review those records. He also asserted that he had requested a subpoena duces tecum for medical records in October and that despite repeated assurances from the custodian of records, there was no return on that request. Defense counsel stated that he would need time to review those records as well. On November 28, 2022, a hearing was held on the motion, during which trial counsel argued that he would not be able to give effective assistance of counsel to the defendant unless he had information that he had not been able to obtain through no fault of his own. After hearing arguments of counsel, the trial court denied the Motion for Continuance with extensive reasons, pointing out, among other things, that there was a 12mechanism in place when subpoenaed records were not received and that trial counsel did not take the next step in that process. The trial began on November 29, 2022. On December 1, 2022, the defendant testified regarding his self-defense claim. The defendant explained that he and Kenneth got into a loud, angry argument over the house and he went to his room and locked the door. He asserted that the door then flew open and Kenneth came at him. The defendant testified that Kenneth tried to place him in a chokehold, he defended himself by "thrusting" to Kenneth’s chest area, and that Kenneth then flew through the bedroom door into the hallway. The defendant testified that Kenneth reached for his dagger that was on his side, after which he punched Kenneth three times in the jaw area, thereby causing injury to Kenneth’s face. He further testified that Kenneth dropped the "knife," and that they both calmed down.
The defendant sought supervisory review of the trial court's ruling. This Court denied the writ application, finding no abuse of discretion in the trial court’s denial of his motion to continue the trial. State v. McMillan, 22-K-552 (La. App. 5 Cir. 11/29/22) (unpublished writ disposition).
During closing argument, the prosecutor stated the following with respect to the door:
So again, we’ve already got our first issue with the Defendant’s version of the event because Mr. Kenneth fully admitted that he knew he didn’t have a stake at the house. Second, after that he put in [sic] foot down, said he wasn’t going to sign it, went inside and locked his door. And then Kenny, all crazed on his cancer medication, kicked it in. And did JPSO or anyone else note damage to the door frame to the victim’s room - - or to the Defendant’s room? Nope. Kicking a locked door, you're going to see damage. Already we have a problem.
****
So what happens next? Oh, well, I thrust him through the door. Again, not through the doorway, that’s why I asked the question twice to make sure it was clear. I said, through the door? And he said through the door, yes. Door opens in, if you’re pushing someone through the door it would have to go out, which again door wouldn’t be on it’s [sic] hinges, there would be damage to the door. So again, the story does not match the physical evidence.
13There was no objection to this argument.
In the Motion for New Trial filed on December 14, 2022, trial counsel argued, among other things, that the defendant received ineffective assistance of counsel at trial as a direct result of the trial court’s repeated denial of the defense motions for continuance. Trial counsel asserted that perusing and organizing the last-minute supplemental discovery, preparing and filing writs seeking continuances and stays, and simultaneously preparing for trial required hours of work, above and beyond simply preparing for trial alone. He also asserted that as a result, defense counsel appeared at trial exhausted and inadequately prepared.
In this motion, trial counsel also pointed out that co-counsel, Ms. DeNicholas, had fever and was getting two to four hours of sleep per night. He maintained that by the time the first defense witness took the stand, he had been working without a break for more than fourteen hours on four and a half hours of sleep. Trial counsel argued that this was not a situation conducive to effective assistance of counsel and defense counsel’s exhaustion had a profound effect on the quality of the defendant's defense. Trial counsel stated that he was constantly straggling to focus his thoughts on the tasks at hand. He provided that the most telling example was, despite having his laptop on the lectern to present video evidence essential to the defense, he was so exhausted he could not even remember preparing that evidence until after the trial was over.
Also, in this motion, trial counsel argued that the State presented "facts" contrary to the evidence during its closing argument. Trial counsel asserted that the most troubling moment in the State’s closing argument was when the State ridiculed the defendant’s testimony that the victim had broken into his locked bedroom, even though the State was in possession of evidence corroborating the defendant’s testimony. Trial counsel stated that several days before trial, he provided the State with a video taken by a defense witness of the door in question 14being pushed open without resistance due to the damaged latch. Trial counsel asserted that it was this video that he, in his state of exhaustion, had failed to remember to present to the jury, even though the video was in his laptop, at the lectern.
At the hearing on the motion for new trial, defense counsel argued with respect to the video:
Mr. McMillan testified he pushed the victim through a door. Mr. Grate said, "That’s ridiculous. He pushed him through a closed door?" He never said it was a closed door. And, yet, that’s what the jury heard. Mr. McMillan testified that the victim broke his door down even though it was locked. Mr. Grate made much of that. "That’s ridiculous." Mr. Grate also knew that there was video of that same door being pushed open easily with two fingers because the latch was broken. Anyone could have pushed that door open. He knew that evidence existed, and yet he ridiculed the whole idea.
The prosecutor responded to claims regarding the video:
As far as their contention that I mischaracterized facts based on a video I was provided by defense, I did receive a video that was not time or date stamped of someone pushing open the door that was purported to be the defendant’s door. But, again, without a time or date stamp, it proves nothing. For as all I am aware, somebody broke that lock three weeks after the homicide and then took a video of it. So I did not contradict any facts that were in my knowledge. It was not a fact. I received a video that was unsubstantiated in any way. And so, therefore, I did not include that in my reasoning for the basis of my closing argument.
The defendant’s trial counsel responded:
As far as the broken lock, the video was not dated-stamped. And this goes back to my exhaustion and lightheadedness during trial. One of the defense witnesses, we are told, went into the house and took video of the door to show that the lock was actually defective or broken and it was easily broken into. I had that video in my laptop. I prepared it so when I was going to directly examine the defense witness, I could have him identify the video that he took, tell us when he went in the house and what he saw and play the video for the jury. I was so exhausted I completely forgot that my laptop was up there on the podium ready to go. It wasn’t until after trial was over and we were packing up Mr. Grate said, "Hey, isn’t that your laptop? What’s it doing up there?" And I realized oh, I’m so lightheaded, I didn’t even see my own laptop up there. I could not present or did not present key evidence to the jury because I had been working that many hours and was light-headed and barely functioning. And as standard practice - everyone I’m sure knows this - - when an attorney 15examines or cross-examines a witness, they always come back to their table and ask co-counsel "What did I miss?" I came back to the table. Ms. DeNicholas is exhausted and sick. She was running a fever through the whole trial. No one said anything. We were not in a condition to do a lengthy trial.
[2–4] Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. Casimer, 12-678 (La. App. 5 Cir. 3/13/13), 113 So.3d 1129, 1141. To prove ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland test, the defendant must show: (1) that counsel’s performance was deficient; that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. State v. Dabney, 05-53 (La. App. 5 Cir. 6/28/05), 908 So.2d 60, 63. The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or "a trial whose result is reliable." Strickland, supra; State v. Serio, (La. App. 5 Cir. 1994), 641 So.2d 604, 607, writ denied, 94-2025 (La. 12/16/94), 648 So.2d 388. To prove prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Woods, 20-73 (La. App. 5 Cir. 9/9/20), 303 So.3d 403, 408-09, writ denied, 21-27 (La. 2/17/21), 310 So.3d 1150.
[5–7] Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Where the record does not 16contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La. C.Cr.P. arts. 924-930.8. State v. Hoppens, 13-948 (La. App. 5 Cir. 4/23/14), 140 So.3d 293, 301, writ denied sub nom. State ex rel. Hoppens v. State, 14-1856 (La. 9/11/15), 176 So.3d 414.
La. C.Cr.P. art. 851 provides the grounds for a new trial in pertinent part:
Trial counsel did not state which provision of Article 851 his motion was based on. Nevertheless, a review of the record reveals that Article 851(B)(2) and (5) are applicable to the instant case.
A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
****
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.
****
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.
[8, 9] Pursuant to La. C.Cr.P. art. 851, a motion for a new trial is based upon the supposition that an injustice has been done to the defendant, and unless such injustice is shown, the new trial motion shall be denied no matter upon what allegations the motion is grounded. State v. Paul, 15-501 (La. App. 5 Cir. 1/27/16), 185 So.3d 188, 198. A trial judge’s ruling on a motion for new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Richoux, 11-1112 (La. App. 5 Cir. 9/11/12), 101 So.3d 483, 490, writ denied, 12-2215 (La. 4/1/13), 110 So.3d 139.
The record in this case contains sufficient evidence to fully address the claim of ineffective assistance of counsel. In order to prevail on this claim, under the 17 Strickland test, the defendant must show: (1) that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. State v. Dabney, supra. A thorough review of the record in this case indicates that even if trial counsel’s performance was deficient, the record does not show that the outcome of the trial would have been different.
Evidence of the defendant’s self-defense claim was presented to the jury at trial. The jury heard the defendant’s testimony that he punched Kenneth in self-defense because Kenneth was coming at him and had a knife or a dagger on his side. The jury also heard Deputy Schlacter’s testimony that Kenneth sent a text message to Sterling, on February 23, 2020, saying, "I carry a custom-made knife now." However, the defendant did not tell Mr. Baudoin, EMS, hospital staff, or the victim’s son that he punched Kenneth in self-defense; rather, the defendant told them that Kenneth had fallen. The evidence presented to the jury indicates that although Kenneth may have been bigger than defendant in the past, at the time of this altercation, Kenneth was sick and had lost a lot of weight. Further, there was no evidence that the defendant sustained any injuries during this fight with Kenneth.
The record reflects that the jury was instructed on the law pertaining to self-defense.
Additionally, the defendant testified that he and Kenneth calmed down after the fight and that he stayed in the house with Kenneth for the rest of the day. Further, even if the video of the broken latch had been admitted into evidence, the video was not date or time-stamped. As such, it would have been unclear based on the video whether the latch was broken at the time of this altercation. A thorough review of all of the evidence, leads us to conclude that the video of the broken latch would not have made any difference in the outcome of the trial. Also, even 18though trial counsel did not lodge a contemporaneous objection during the State’s closing argument regarding the broken latch, the jury was instructed that the statements and arguments made by the lawyers are not evidence. Accordingly, we find no merit to the argument that the defendant received ineffective assistance of counsel or that the trial court erred in denying the motion for new trial.
ASSIGNMENT OF ERROR NUMBER TWO
[10] In his second assignment of error, the defendant argues that the enhanced sentence of forty years for manslaughter is excessive under the circumstances, contending that he was found guilty of manslaughter based on committing a misdemeanor battery. The defendant argues that the forty-year sentence is in effect a life sentence and is so disproportionate that it shocks "our sense of justice." The defendant contends that the trial court erred by failing to individualize the sentence to defendant under La. C.Cr.P. art. 894.1.
The defendant contends that the trial court gave no reasons when imposing the sentence and it is unclear whether the trial court took into account the defendant’s age prior to sentencing, pointing out that the defendant was fifty-five years old at the time of the offense and fifty-nine years old at the time of sentencing. The defendant states that he was very young when he committed most of the prior offenses. He admits that the most serious offense was the 2016 conviction for domestic abuse strangulation, however, he was addicted to alcohol and prescription opioids at that time. The defendant argues that he was doing well until Kenneth moved into the house and started bullying him. He contends that the trial court should have taken into consideration at sentencing that many of his problems were a direct result of his addiction to alcohol and prescription drugs, and the trial court should have taken into account whether he had ever been given the help he needs to overcome these problems.
19The defendant argues that the trial court should have considered that the sentencing range for manslaughter (zero to forty years) was meant to apply to offenses under La. R.S. 14:31(A)(1), where the homicide was committed in sudden passion or heat of blood, and not under La. R.S. 14:31(A)(2)(a), which is based in the instant case on the defendant’s commission of a simple battery.
The State responds that the enhanced sentence of forty years is not excessive, and is one-half of the maximum sentence that could have been imposed. The State argues that the record supports the sentence imposed, pointing out that the defendant killed his brother, that the instant offense was defendant’s third conviction for a crime of violence, and that the severity of his offenses increased over the years, with his most violent offenses having been committed in recent years. It further argues that considering the nature of the crime, the nature and background of defendant, and the sentences imposed for similar crimes, the defendant’s forty-year sentence for manslaughter as a second-felony offender with multiple prior convictions, including convictions for crimes of violence, is neither excessive nor an abuse of discretion.
At the sentencing hearing on January 19, 2023, the prosecutor read a lengthy victim impact statement from the victim’s son, Sterling, into the record. Sterling stated that his father was the greatest influence in his life, was always there for him, and he was sad that he would never be able to communicate with his father again. Sterling stated that the defendant had taken the life of the man who loved the defendant and always took care of him. The trial judge then sentenced the defendant to imprisonment at hard labor for forty years without providing reasons.
At the multiple bill hearing, after the defendant was adjudicated a second felony offender, the trial judge vacated the original sentence and resentenced defendant under the multiple bill statute to imprisonment at hard labor for forty years without providing reasons. The defendant’s trial counsel subsequently 20argued his motion to reconsider sentence, making the same arguments raised on appeal, including that a forty-year sentence was essentially a life sentence due to the defendant’s age. The prosecutor responded that the sentence was one-half of the maximum. Following arguments of counsel, the trial judge said that he considered counsel’s arguments and the law in this area, after which he denied the motion to reconsider sentence, pointing out that the sentence was less than the maximum.
Although the record reflects that defense counsel orally objected to the sentence and filed a written motion to reconsider sentence, he did not specifically raise the issue of the trial judge’s lack of compliance with La. C.Cr.P. art. 894.1. When the specific grounds for objection to the sentence, including alleged noncompliance with La. C.Cr.P. art. 894.1, are not specifically raised in the trial court, then these issues are not included in the bare review for constitutional excessiveness, and the defendant is precluded from raising these issues on appeal. See State v. Esteen, 18-392 (La. App. 5 Cir. 12/19/18), 262 So.3d 1064, 1069, writ denied, 19-214 (La. 4/22/19), 268 So.3d 300.
[11, 12] The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. Article I, § 20 of the Louisiana Constitution also prohibits cruel and unusual punishment but further explicitly prohibits excessive punishment. State v. Diaz, 20-381 (La. App. 5 Cir. 11/17/21), 331 So.3d 500, 519, writ denied, 21-1967 (La. 4/5/22), 335 So.3d 836. A sentence is considered excessive, even when it is within the applicable statutory range, "if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime." State v. Dixon, 17-422 (La. App. 5 Cir. 3/14/18), 241 So.3d 514, 523, writ denied, 18-542 (La. 2/11/19), 263 So.3d 415. In reviewing a sentence for excessiveness, the appellate court must consider the 21punishment and the crime in light of the harm to society, and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. State v. Ramirez, 22-92 (La. App. 5 Cir. 11/2/22), 353 So.3d 902, 908; Diaz, supra.
[13–15] A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion when imposing a sentence. Diaz, 331 So.3d at 519-20. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Diaz, 331 So.3d at 520. The review of sentences under La. Const. art. 1, § 20 does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is most appropriate in a given case. State v. Corea-Calero, 22-117 (La. App. 5 Cir. 12/28/22), 355 So.3d 697, 701.
[16] An appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D); Corea-Calero, supra. In reviewing a trial court’s sentencing discretion, the reviewing court should consider the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts. However, there is no requirement that specific matters be given any particular weight at sentencing. Diaz, supra.
[17, 18] When determining the sentence to be imposed, a trial judge is not limited to considering only a defendant’s prior convictions, but may properly review all prior criminal activity. State v. Arceneaux, 19-472 (La. App. 5 Cir. 1/29/20), 290 So.3d 313, 316, writ denied, 20-324 (La. 5/14/20), 296 So.3d 608. The sentencing court may rely on sources of information usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. Id.; See also State v. Myles, (La. 1994), 638 So.2d 218, 219. These 22matters may be considered even in the absence of proof the defendant committed the other offense. Arceneaux, supra.
The defendant in this case was convicted of manslaughter under La. R.S. 14:31(A)(2)(a), which provides:
The record reflects that the jury was instructed that in order to convict defendant of manslaughter, it had to find that defendant killed the victim with or without the intent to cause death or great bodily harm and that defendant was engaged in the perpetration or attempted perpetration of any felony not enumerated in article 30 or 30.1 or of any intentional misdemeanor directly affecting the person to wit: simple battery.
A. Manslaughter is:
****
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person[.]
La. R.S. 14:31(B) provides for a sentence at hard labor of "not more than forty years." As a second-felony offender with an underlying manslaughter conviction, the defendant was exposed to a sentencing range of thirteen and one-third years to eighty years. See La. R.S. 15:529.1(A)(1).
In State v. Loston, 03-977 (La. App. 1 Cir. 2/23/04), 874 So.2d 197, writ denied, 04-792 (La. 9/24/04), 882 So.2d 1167, the defendant was convicted of manslaughter and received a forty-year sentence as a second-felony offender. On appeal, the defendant argued that his sentence was excessive because his prior criminal history was minor and because he acted in response to the physical threat presented by the victim. However, the appellate court upheld the sentence, pointing out that the jury rejected the defense of justification and that the State presented evidence of numerous prior criminal offenses, including aggravated offenses against the person.
23In State v. Gaines, 52,536 (La. App. 2 Cir. 2/27/19), 266 So.3d 948, writ denied, 19-773 (La. 9/17/19), 279 So.3d 379, the defendant was convicted of manslaughter and sentenced to fifty years imprisonment as a second-felony offender. In that case, the defendant shot and killed his live-in girlfriend. On appeal, he argued that his sentence was excessive. The appellate court found that the sentence was not excessive, pointing out that although the sentence likely amounted to a life sentence due to the defendant’s age, the sentence imposed did not shock the sense of justice, nor was it grossly disproportionate to the severity of the offense.
In this case, the evidence reflects that Kenneth, the victim, was very sick and had lost a lot of weight. Nevertheless, the defendant admitted that during an altercation, he punched Kenneth in the face three times. The evidence indicates that this caused significant swelling and braising and led to Kenneth’s death. The defendant did not tell EMS, hospital staff, Mr. Baudoin, or Sterling that he struck Kenneth in the face during a physical altercation. Rather, the defendant only reported that Kenneth’s injuries were caused by a fall in the bathtub. At trial, the defendant admitted that he punched his brother but claimed that it was in self-defense. Lying or purposeful misrepresentations reasonably raise the inference of a "guilty mind" and has been recognized as indicative of an awareness of wrongdoing. State v. Dyson, 16-1571 (La. App. 1 Cir. 6/2/17), 222 So.3d 220, 234, writ denied, 17-1399 (La. 6/15/18), 257 So.3d 685 (citing State v. Captville, 448 So.2d 676, 680 n.4 (La. 1984)). Dr. Defatta, who performed the autopsy, testified that the injury which caused the victim’s death was not the result of a fall.
Additionally, the defendant has an extensive criminal history, which included crimes of violence. The defendant admitted he was convicted in 1983 of possession of PCP, in 1984 of simple robbery, in 1987 of conspiracy to possess unregistered firearms, in 1989 of simple criminal damage to property, and in 2016 24of domestic abuse strangulation and resisting arrest. Ms. Warren, the mother of the defendant’s children, testified that the defendant physically abused her on a daily basis. Also, the trial judge found the defendant guilty of battery of a police officer and resisting an officer in this case.
A review of the record in its entirety leads us to conclude that although the defendant was almost fifty-nine years old at the time of sentencing, and therefore, his sentence effectively amounts to a life sentence, the sentence does not shock the sense of justice, nor was it grossly disproportionate to the severity of the offense. See Gaines, supra. Contrary to the defendant’s assertion, La. R.S. 14:31(B) provides for a maximum sentence of forty years on the underlying manslaughter conviction regardless of which section of the statute he was charged under. Further, the defendant received a forty-year enhanced sentence, which is one-half of the maximum eighty-year sentence that he could have received. Additionally, we note that the jury could have found the defendant guilty of the responsive verdict of negligent homicide, which provides for a lower sentence; however, the jury chose not to do so. The record supports the sentence imposed. Accordingly, we find that the trial judge did not abuse his discretion by imposing this sentence.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The review reveals no errors patent in this case that require corrective action.
CONCLUSION
For the foregoing reasons, the defendant’s conviction for manslaughter in violation of La. R.S. 14:31, and forty-year sentence as a second felony offender are affirmed.
AFFIRMED