MARC E. JOHNSON, Judge.
Defendant, Jeffery Nelson, appeals his convictions and sentences for second degree murder, felon in possession of a firearm, and conspiracy to commit obstruction of justice claiming insufficient evidence, erroneous denial of his challenges for cause during jury selection, erroneous admission of an officer's testimony on expert matters, and denial of his right to present a defense. For the reasons that follow, we affirm Defendant's convictions and sentences.
Defendant was indicted by a grand jury on February 2, 2012 and charged with the second degree murder of Charles Smith in violation of La. R.S. 14:30.1, felon in possession of a firearm in violation of La. R.S. 14:95.1, and conspiracy to commit obstruction of justice in violation of La. R.S. 14:26 and 14:130.1(A)(2) and/or (A)(3).
The trial court subsequently sentenced Defendant to concurrent sentences of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence for second degree murder; 20 years at hard labor without benefit of probation, parole, or suspension of sentence for felon in possession of a firearm; and 30 years at hard labor for conspiracy to commit obstruction of justice.
Theodore Pierce was murdered outside of a friend's house in Bridge City on January 2, 2011. Co-defendants McClure and Griffin were arrested shortly thereafter and charged with his murder. Pierce's murder was witnessed by Charles Smith, a neighbor, who gave a statement to the police and who identified McClure and Griffin as the shooters in photographic lineups two days after the murder.
In his recorded statement, Smith explained that he witnessed McClure and Griffin, whom he occasionally saw walking around the neighborhood, shoot at Pierce while they were standing in front of a
Smith also told police during his statement that the day after the shooting, McClure drove to his house armed with a gun and confronted him stating, "I heard you talking about, about the, the shooting," to which Smith responded that he had not been talking about anything. Smith stated that he believed his life was in danger because he had witnessed the murder.
At approximately noon on August 17, 2011, the day before a scheduled motion hearing to determine the admissibility of the photographic identifications made by Smith of McClure and Griffin as the shooters in Pierce's murder, Smith was found shot to death in front of his home located on Fourth Street in Bridge City.
Smith's friend, John Stewart, was visiting Smith at his house on Fourth St. when Smith was shot. Stewart testified that while he was in the bathroom, Smith went outside to check the mail, at which time Stewart heard several gunshots. Stewart went to the door, looked out, and saw Smith's feet. He immediately called 9-1-1. When Stewart stepped outside, he saw a young black male with dreadlocks, wearing a black "wife beater," blue shorts, and a black bandana over his head, jump over the fence. Stewart was unable to see the man's face because it was partially covered; hence, Stewart was unable to identify the man from a photographic lineup. At trial, the parties stipulated that at the time of Smith's murder, Defendant was a young black man with dreadlocks.
Colonel Timothy Scanlan, an expert in crime scene reconstruction, testified that the evidence was consistent with a "targeted action," meaning one mobile shooter started shooting from the rear of the residence in a place of cover and then moved forward down the fence line. He opined the evidence was consistent with someone who was waiting to attack Smith when he came out of his home.
Detective Matthew Vasquez of the Jefferson Parish Sheriff's Office (JPSO) investigated Smith's murder. Because Smith was an eyewitness to Pierce's murder and because Smith's murder occurred the day before a hearing set in the Pierce case, Det. Vasquez believed Smith's murder was not a coincidence. Accordingly, Det. Vasquez started to look into McClure's and Griffin's backgrounds and associates. He found that Defendant, McClure's brother, fit the description of Smith's assailant provided by Stewart. Det. Vasquez's focus on Defendant intensified after he listened to recorded phone
Defendant was arrested on unrelated outstanding attachments and questioned about Smith's murder. After being advised of his rights, Defendant gave two taped statements. In his first statement, Defendant denied knowing Smith and was unable to say what he was doing on the day of Smith's murder. Defendant also denied owning a cell phone. When confronted with his cell phone records, Defendant admitted he had lied and ultimately admitted that he used his cell phone to talk to McClure while McClure was in jail.
In his second statement, Defendant claimed he was in Marrero with a friend named "Roy" on the day of Smith's murder and that he did not return to Bridge City until the next day.
During his investigation of Smith's murder, Det. Vasquez listened to "hundreds of hours" of jailhouse phone calls made by McClure and Griffin from the JPCC both before and after Smith's murder.
In the January 6, 2011 phone call from McClure to an unknown male, McClure stated that he's "good" as "[l]ong as the n*gg* don't say nothing." The next day McClure assured his mother that everything was alright "long as nobody don't say nothing." In a call to his brother, Frank, two days later, McClure indicated that the police claimed they had one witness and "n*gg* already know who the witness is."
On January 25, 2011, McClure and an unknown female facilitated a three-way call with Defendant during which McClure stated, "I ain't trippin' ... They don't got no witness ... Well, they got one witness, but ... he ain't coming to court or whatever, woo di woo." Two days later, Defendant asked McClure how he got caught to which McClure responded, "I was acting stupid ... I was acting dumb as a mother-f* *ker son ... I was on the wrong level son."
Four days later, on January 29, 2011, McClure had another three-way call with his friend, Willis Stevenson, and Defendant. During the call, Stevenson told McClure that Griffin had not been to court and that Griffin's attorney said she would be going home in 120 days because the State did not any evidence against her. McClure responded, "Right, yeah cause my lawyer was like `uh you know they got one witness but uh your little brother is on that.' When he told me that, I already know what it was (laughing), ya heard me?" Stevenson then told McClure about a conversation Griffin's father, Terrence Daniels, had with Smith. Specifically, Stevenson said, "T went over there today, cause he was with Scooby ya know what I'm saying. So boy Scooby brought him, n*gg* was at the Fishhook. Ya know what I'm saying, he brought him to the Fishhook, I guess that where he felt comfortable at or whatever." Later at trial, Smith's girlfriend, Margie McKeel, testified about an incident where Smith had told her that Griffin's father had threatened his life, telling Smith that "he better not testify or else there's going to be gunplay."
A few months later, on June 2, 2011, Griffin called an unknown female and told her that her attorney was going to set Griffin's next court date for June 23 but that Griffin told her attorney the date was "too early." Griffin explained that they needed to get their discovery packets. She stated that Defendant "was hollering about ... other lil dude whose name starts with a C, ya heard me. You know who I'm talking about.... I think it's Troy's brother, lives on Fourth Street. I ain't gonna say his name."
Two days later on June 4, 2011, Griffin spoke to a man named Louis Wells and told him to contact Smith's girlfriend,
During another conversation between Griffin and her brother on June 8, 2011, her brother stated, "heard we pulling something off" and that "Lil Jeff [Defendant]" is "all in." Griffin later told her brother to acquire a "b*tch," which was interpreted by Det. Vasquez to be slang for an untraceable firearm.
The next day on June 9, 2011, McClure spoke to Defendant. When Defendant asked McClure whether "Dude" was going to testify, McClure responded "[n]ine out of ten, he ain't going to f*ck with that." He further informed Defendant that Griffin told him that they did not know where "Dude" was and "that's going to work out in my favor."
One month later, on July 8, 2011, McClure spoke to his mother who told him that the discovery packet provided by the State identified Smith as a witness. McClure's mother told him that his next court date was set for August 18, 2011. Three days before Smith's murder, on August 14, 2011, McClure told his friend Stevenson that he received his "paperwork" and that "Dude" was the only person who said something and he was the only reason he was being held. Stevenson then talked to McClure about having spoken to Griffin.
Six hours after Smith was murdered on August 17, 2011, McClure called Defendant and asked him whether he had heard the news about Smith and inquired as to whether it was true. Defendant answered, "[y]eah," to which McClure responded "[w]ell, that's good." Defendant then told McClure that their mother did not want him talking to McClure because the call could be traced "[s]ince that sh*t happen[ed]." McClure responded, "[f]* *k it I ain't going to call at all ... F* *k everybody, I ain't worried about it. I'll be home soon." The next day, Griffin called an unknown male and told him that she was going to be released from jail. She stated, "Oh yeah, that b*tch come from court, I didn't go though, but uh, they had slammed that Dude, you heard me? .. They had slammed that boy." The unknown male responded, "Oh, I had heard about that sh*t."
Defendant raises four issues on appeal: (1) the sufficiency of the evidence; (2) the denial of challenges for cause as to four prospective jurors; (3) the admission of Det. Vasquez's testimony interpreting the jailhouse phone calls of McClure and Griffin on the basis he was not qualified as an expert; and (4) the denial of his right to
Defendant challenges the sufficiency of the evidence on the basis the State failed to prove his identity as the perpetrator of the crimes. He claims that the only evidence linking him to the murder of Smith is the erroneously admitted testimony of Det. Vasquez during which he identified various jailhouse phone calls between Defendant, McClure and Griffin allegedly conspiring to kill Smith. He contends that several reasonable hypotheses of innocence were presented and not validly considered by the jury.
The standard of review for determining the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt, but rather whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. State v. Flores, 10-651 (La.App. 5 Cir. 5/24/11); 66 So.3d 1118, 1122.
In this case, Defendant was convicted of the second degree murder of Smith, felon in possession of a firearm, and conspiracy to commit obstruction of justice. Defendant does not contest that the State failed to prove any of the essential statutory elements of the crimes for which he was convicted,
Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Ray, 12-684 (La. App. 5 Cir. 4/10/13); 115 So.3d 17, 20, writ denied, 13-1115 (La.10/25/13); 124 So.3d 1096. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.
In this case, Defendant's identity as the shooter was established by circumstantial evidence. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05); 904 So.2d 830, 833. It is long established that where circumstantial evidence forms the basis of a conviction, the circumstances must be so clearly proven that they point not merely to the possibility or probability of guilt but to the moral certainty of guilt. State v. Shapiro, 431 So.2d 372, 385 (La. 1982). The rule as to circumstantial evidence is "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438. This is not a separate test from the Jackson standard but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99); 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00); 753 So.2d 208. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.
To preserve the role of the fact-finder, i.e., to accord the deference demanded by Jackson, the Louisiana Supreme Court has further subscribed to the general principle in cases involving circumstantial evidence that when the factfinder at trial reasonably rejects the hypothesis of innocence advanced by the defendant, "that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt." State v. Captville, 448 So.2d 676, 680 (La.1984). A reasonable alternative hypothesis is not one "which could explain the events in an exculpatory fashion," but one that "is sufficiently reasonable that a rational juror could not `have found proof of guilt beyond a reasonable doubt.'" Id. (quoting Jackson, supra).
In State v. Mack, 13-1311 (La.5/7/14); 144 So.3d 983, the Louisiana Supreme Court found circumstantial evidence establishing that the defendant had threatened the victim, coupled with a web of cell phone calls among the defendant, an alleged accomplice/shooter, and an unknown third party, was sufficient to support the defendant's conviction for second degree murder.
In Mack, the defendant was convicted as being a principal to murder based on circumstantial evidence consisting of cell phone records that tied the defendant's cell phone number to that of the shooter and an unknown third party. The evidence showed that the defendant, who had intervened in an argument between the victim and one of the victim's friends, used his cell phone to orchestrate the victim's demise after exchanging words with the intoxicated victim and warning him "[y]ou know, I'm Sam Mack. You know what I could have done to you." After the defendant admonished the victim, the defendant used his cell phone to make a call or to text. The defendant then walked away and was not seen again that evening. Hours later, the victim was shot by someone other than the defendant. The victim's friends identified the shooter, who was later arrested and found to be in possession of the murder weapon and a cell phone with the defendant's number
The Fourth Circuit reversed the defendant's conviction finding that the State's case rested wholly on circumstantial evidence that "did not exclude that another logical inference, other than to procure murder, could be drawn from these phone calls." The dissent noted that it would be "an extraordinary coincidence if it was not all interrelated — [the shooter's] otherwise unexplained arrival on the scene within twenty minutes of the last phone call between the two cell phones and his otherwise unexplained brutal execution of the victim within the same twenty minute period."
In reversing the Fourth Circuit, the supreme court agreed with the dissent and reinstated the defendant's conviction, finding that the jurors had "an evidentiary basis for rationally rejecting the primary hypothesis of innocence advanced by the defense and the alternative hypothesis as well, for which there existed absolutely no evidence, that someone else recruited [the shooter] to take advantage of the situation and to murder the intoxicated [victim]." Mack, 144 So.3d at 990. The supreme court noted that the question for the court of appeal was whether "the various alternative hypotheses advanced by the defendant on appeal, and in this Court, did not simply offer a possible exculpatory explanation but were so reasonable that rational jurors would necessarily have looked past [the dissent's] `extraordinary coincidence' if all the calls were not interrelated and found a reasonable doubt of defendant's guilt." Id. The supreme court concluded that the State's theory of the prosecution was consistent overall with the evidence introduced at trial, while the defense hypotheses lacked any evidentiary basis. Thus, after giving deference to the trier of fact's resolution of conflicting inferences, the supreme court held that the evidence was sufficient to convince a rational trier of fact beyond a reasonable doubt that the defendant was a principal to the victim's murder. Mack, 144 So.3d at 991.
In this case, as in Mack, Defendant's convictions were based primarily on circumstantial evidence. On appeal, Defendant argues that he proposed "several reasonable hypothesis (sic) of innocence" that were not validly considered by the jury; however, he does not set forth what these "reasonable hypotheses" are.
Here, the jury was presented with Smith's statement and grand jury testimony in which he conveyed a fear for his life based on his witnessing Pierce's murder and his identification of McClure and Griffin as the shooters. Smith and his girlfriend, McKeel, also indicated that Smith's life was threatened on more than one occasion, both by McClure and by Griffin's father. Det. Vasquez further testified as to numerous jailhouse phone calls made by McClure and Griffin while incarcerated which set forth their plan to defeat their pending murder charges by killing the only witness against them. Defendant's participation in this conspiracy was established through various recorded jail conversations.
Specifically, Defendant's knowledge that McClure and Griffin killed Pierce was established via a conversation between Defendant and McClure in the month after the murder in which Defendant asked McClure, "how in the hell you got caught?" Additionally, there were several discussions between Defendant and McClure about Smith being the only eyewitness. Defendant's recruitment as the gunman was established during a three-way phone
The testimony at trial further established that one month before Smith's murder, McClure was informed by his mother that the State officially named Smith in discovery as a witness and that McClure's next court date was set for August 18, 2011. Smith was murdered on August 17, 2011. Additionally, six hours after Smith's murder, McClure spoke to Defendant who confirmed that Smith had been killed. Upon hearing the news of Smith's death, McClure stated "[w]ell, that's good," and later told Defendant, "I'll be home soon." Defendant then advised McClure that their mother did not want them talking on the phone because the call could be traced "since that s* * * happen[ed]." Defendant further warned McClure that they had to be careful about "Renata" because he heard that she was going to tell the police that they "did that s* * *." The day after Smith's murder, Griffin stated, "them b*tches going to release me Monday" because "[t]hey had slammed that dude."
The jurors also heard the testimony of the only witness to Smith's murder, John Stewart, a friend of Smith's who was at his house at the time Smith was murdered. Stewart testified that although he could not see the shooter's face because it was partially covered with a bandana, he observed a young black male with dreadlocks jump over the fence immediately after hearing shots being fired. Defendant fit this general description as established by the parties' stipulation that at the time of Smith's murder defendant was a young black man with dreadlocks. Colonel Scanlan also testified that the physical evidence at the scene was consistent with a "targeted action," and that the pattern of gunfire was also consistent with someone awaiting the opportunity to attack Smith as he exited his home.
Defendant's cell phone records placed him in the area of Smith's residence at the time of his murder and show that he left the area soon after the murder. In his statement to the police, Defendant stated he would "do anything for his brother."
Defendant admitted to being in possession of his cell phone at the time of Smith's murder; however, the alibi he gave police regarding his whereabouts at the time of the murder was directly contradicted by his cell phone records. Specifically, Defendant told the police that he was nowhere near Bridge City on the day Smith was murdered but rather was at his friend "Roy's" house in Marrero; but, his cell phone records placed him in the area of the murder at the time in question. When confronted with these inconsistencies, Defendant made an unprompted comment to Det. Vasquez expressing his knowledge of
Based on the evidence presented, we find the jurors had an evidentiary basis for rationally rejecting the primary alibi hypothesis of innocence advanced by Defendant, which was lacking in evidentiary support, and in accepting the State's theory of prosecution, which was consistent with the overall evidence introduced at trial. Accordingly, we find that viewing the evidence in the light most favorable to the prosecution, a rational juror could have found Defendant's identity as the perpetrator in the crimes of second degree murder of Smith, felon in possession of a firearm,
Defendant next argues that the trial court erred in denying his challenges for cause as to four prospective jurors: Marguerite Rankin, Maley Morris, Janis Britson, and Sheree Caminita. He maintains these prospective jurors' responses during voir dire rendered them incapable of putting aside their beliefs and/or relationships in order to enable them to follow the law, thus rendering them incapable of being fair and impartial.
The Sixth Amendment to the United States Constitution guarantees the accused the right to trial by an impartial jury. State v. Munson, 12-327 (La.App. 5 Cir. 4/10/13); 115 So.3d 6, 12, writ denied, 13-1083 (La.11/22/13); 126 So.3d 476. Further, La. Const. Art. I, § 17 guarantees the accused the right to full voir dire examination of prospective jurors and the right to challenge those jurors peremptorily.
Jurors may also be challenged for cause based on those grounds set forth in La.C.Cr.P. art. 797. A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Campbell, 06-286 (La.5/21/08); 983 So.2d 810, 858, cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008). A trial court's ruling on a challenge for cause will only be reversed where it appears, upon review of the voir dire examination as a whole, that the trial court's exercise of its discretion has been arbitrary or unreasonable, resulting in prejudice to the accused. State v. Lee, 93-2810 (La.5/23/94); 637 So.2d 102, 108; State v. Passman, 345 So.2d 874, 880 (La.1977).
In order to prove reversible error warranting reversal of a defendant's conviction, the defendant must show (1) the erroneous denial of a challenge for cause; and (2) the use of all of his peremptory
Under La.C.Cr.P. art. 799, a defendant is entitled to 12 peremptory challenges in the trial of offenses punishable necessarily by imprisonment at hard labor. In this case, the charged offenses of second degree murder, felon in possession of a firearm and conspiracy to commit obstruction of justice all require punishment by imprisonment at hard labor;
In this assignment of error, Defendant argues the trial court erred in allowing Det. Vasquez to testify as a lay witness as to his interpretations of the meanings of various recorded jailhouse conversations and the slang used therein and the identity of the speakers in the phone calls. Defendant contends Det. Vasquez's interpretive testimony was the only evidence linking him to Smith's murder and to the conspiracy. Thus, Defendant maintains the admission of this evidence was not harmless error.
At trial, numerous taped jailhouse phone calls made using McClure's and Griffin's assigned PIN numbers were introduced into evidence and played for the jury during the testimony of Det. Vasquez. At the beginning of Det. Vasquez's testimony, Griffin's attorney made a preemptive objection to Det. Vasquez's interpretation of the phone calls, including his decipherment of the "code" the speakers may have been using.
After a weekend recess, the matter was discussed in further detail prior to the continuance of Det. Vasquez's testimony. Defense counsel's main objection was to Det. Vasquez's anticipated interpretation of the term "b*tch," as used by Griffin in one of the phone calls, to mean a firearm. The trial court ruled that Det. Vasquez would be prohibited from interpreting Griffin's state of mind or her intent at the time of her statement, but that he would be permitted to explain to the jury what he has come to know the term "b*tch" to mean based on his many years of experience on the street as a police officer. The trial court determined Det. Vasquez's testimony in this regard did not require him to be qualified as an expert.
Det. Vasquez then proceeded to testify that he listened to "hundreds of hours" of recorded jailhouse phone calls made by McClure and Griffin to individuals outside the jail. Det. Vasquez testified that the defendants used lots of "code talk" and nicknames in their conversations. He explained that he was able to identify the various individuals participating in the telephone conversations based on listening to hours of phone calls and hearing names mentioned during the calls which identified the person being spoken to. Det. Vasquez stated that in those circumstances where he could not identify the speaker, he referenced the speaker as "unknown male" or "unknown female." He admitted on cross-examination that he was not a voice expert, but stated that he had come to learn the various voices after listening to the "hours and hours" of phone calls and corresponding PIN numbers.
Det. Vasquez testified that of the 17 discs of recorded phone calls, he found seven of the discs to be relevant to the investigation of the present case. The pertinent phone conversations were transcribed and played for the jury. One of the key phone calls was on June 8, 2011 between Griffin and her brother, wherein Griffin used the term "b*tch" several times. Det. Vasquez explained that in his nine years as a police officers and the "countless" cases he has investigated, he has become familiar with the use of various slang terms used by individuals who live in the communities he patrols within Jefferson Parish. He testified that he has heard the term "b*tch" used in a variety different contexts, and that in the context of the phone call at issue the term referred to an untraceable gun.
The testimony of a lay witness in the form of opinions or inferences, who is not testifying as an expert, is limited to those opinions or inferences that are rationally based on the perception of the witness and are helpful to a clear understanding of the testimony or the determination of a fact in issue. La. C.E. art. 701; State v. Keller, 09-403 (La.App. 5 Cir. 12/29/09); 30 So.3d 919, 930-31, writ denied, 10-267 (La.9/17/10); 45 So.3d 1041. A law officer may testify as to matters within his personal knowledge acquired through experience without first being qualified as an expert. See State v. LeBlanc, 05-885 (La.App. 1 Cir.2/10/06); 928 So.2d 599, 603. However, only experts are allowed to give opinion testimony in areas of specialized knowledge.
"Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact." La. C.E. art. 704; State v. Higgins, 03-1980 (La.4/1/05); 898 So.2d 1219, 1234, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). In other words, the fact an opinion or inference embraces an ultimate issue in a case does not preclude its admissibility. La. C.E. art. 704, Comment (c); State v. King, 99-1279 (La.App. 5 Cir. 4/25/00); 760 So.2d 540, 543, writs denied, 00-1452 and 00-1498 (La.3/16/01); 787 So.2d 298. The trial court is vested with much discretion in determining which opinion testimony shall be received into evidence as lay or expert testimony. State v. Friday, 10-2309 (La.App. 1 Cir. 6/17/11); 73 So.3d 913, 922, writ denied, 11-1456 (La.4/20/12); 85 So.3d 1258.
Upon review, we find the trial court did not err in allowing Det. Vasquez to testify as a lay witness under La. C.E. art. 701 as to inferences regarding the contents of the recorded phone conversations based on his own observations and experiences. In State v. Decay, 01-192 (La.App. 5 Cir. 9/13/01); 798 So.2d 1057, 1072-74, writ denied, 01-2724 (La.8/30/02); 823 So.2d 939, this Court found a trooper's testimony interpreting "slang" in a telephone conversation to be permissible lay testimony under La. C.E. art. 701, despite the defendant's argument that expert testimony was required and that the trooper had not been qualified as an expert. The trooper in Decay interpreted the defendant's statement, "I be trying to get me about two, bra," to mean that the defendant wished to buy two kilograms of cocaine. This Court determined that the trooper's testimony was to inferences made based on his observations and his experience of being a State trooper for seven years.
Additionally, in State v. Jefferson, 04-1960 (La.App. 4 Cir. 12/21/05); 922 So.2d 577, 596-97, writ denied, 06-940 (La.10/27/06); 939 So.2d 1276, the defendant objected to a detective's identification of an eyewitness' voice on a 9-1-1 recording. The detective testified that he recognized the witness' voice based on the time he spent with him during his interview and investigation of the case. The Fourth Circuit found the detective's opinion regarding the identification of the voice was rationally based on his perception and was helpful to a determination of a fact in issue regarding the phone call, thereby satisfying the requirements of La. C.E. art. 701.
Furthermore, we are persuaded by King v. United States, 74 A.3d 678 (D.C. 2013), cited by the State, which interprets the Federal Rules of Evidence upon which La. C.E. art. 701 is based.
The appellate court explained that lay testimony is that which "results from a process of reasoning familiar in everyday life," whereas "an expert's testimony results from a process of reasoning which can be mastered only by specialists in the field." King, 74 A.3d at 682 (internal citations omitted). The court concluded that the "reasoning process employed to interpret the street language was the everyday process of language acquisition" and that the officers "did not use any special training or scientific or other specialized professional knowledge to form their opinions about the meaning of the language used by the individuals in this case." Id. at 683.
In this case, Det. Vasquez testified as to his opinion of the meaning of certain "slang" words in the recorded phone calls based on his personal experiences and observations. Specifically, Det. Vasquez stated that his knowledge was gained from his nine years of experience as a police officer and the "countless" cases he has investigated in the community. He explained that he has come to understand the meaning of various slang terms through his contact with and interviewing of various individuals during his employment as a police officer. He further explained that he was able to identify the various individuals in the phone calls from listening to "hundreds of hours" of phone calls involving the defendants and his investigation into the case.
Thus, we conclude that Det. Vasquez's opinion was properly admitted as lay testimony that resulted from his observations and experiences as a police officer. We find his opinions resulted from the "process of reasoning familiar in everyday life," as opposed to "a process of reasoning which can be mastered only by specialists in the field." Further, Det. Vasquez's testimony provided the jury with relevant factual information about the investigation, including the meanings of terms used in the conversations and the identification of the individuals referenced during the phone calls.
Defendant argues that he was denied his right to present a defense as to the conspiracy charge. Specifically, he claims that the defense was not allowed to cross-examine Det. Vasquez on the evidence of a conspiracy presented by the State.
Both the Sixth Amendment of the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Lirette, 11-1167 (La.App. 5 Cir. 6/28/12); 102 So.3d 801, 813, writ denied, 12-1694 (La.2/22/13); 108 So.3d 763. This right does not require a trial court to permit the introduction of evidence that is inadmissible, irrelevant, or has so little probative value that it is substantially outweighed by other legitimate
Defendant's counsel was the first to cross-examine Det. Vasquez, and he completed his cross-examination without any objections by the State. Det. Vasquez was next cross-examined by McClure's counsel. During his cross-examination, defense counsel asked, "Now you alluded to conspiracy. What is conspiracy, Detective?" The State objected and the trial court sustained the objection on the basis it was "a question of law for the Court to define for the jury, not for any witness." The record shows defense counsel continued to question Det. Vasquez about the jailhouse phone calls covering over 34 pages of the transcript. The State subsequently made three more objections: one as to the form of one of defense counsel's question, which resulted in defense counsel rephrasing the question; one which was overruled and had no effect; and one which the State admitted was in error and had no effect. Griffin's counsel completed the cross-examination of Det. Vasquez. During his questioning, the State objected once to the admission of evidence pertaining to an urban dictionary, resulting in a proffer of the evidence. Defense counsel then questioned Det. Vasquez as to the meaning of certain words using the Oxford Dictionary.
It is unclear how Defendant was prevented from presenting a defense on the conspiracy charge. The defense cross-examined Det. Vasquez extensively about the jailhouse phone calls, even re-playing some of the calls in their entirety to the jury. None of the trial court's rulings prevented Defendant from fully cross-examining Det. Vasquez regarding the jailhouse phone calls, or conspiracy evidence, and the identity of the speakers and the meaning of the conversations. Accordingly, we find no merit to this assignment of error.
Upon review of the record for errors patent under La.C.Cr.P. art. 920, we note the following errors that require corrective action.
First, the State of Louisiana Uniform Commitment Order reflects the date of adjudication as September 9, 2013; however, the record reflects that the date of adjudication was actually August 14, 2013. Additionally, the Uniform Commitment Order does not set forth the offense date for each of Defendant's convictions. Specifically, the second degree murder and felon in possession of a firearm were committed on August 17, 2011, and the conspiracy to commit obstruction of justice was committed on or between January 3, 2011 and August 17, 2011. Furthermore, the Uniform Commitment Order does not reflect Defendant's life sentence imposed on the second degree murder conviction, but rather reflects his sentence as "0 yr/0 m/ 0d."
Second, there is a discrepancy between the transcript and the commitment.
Accordingly, we remand the matter for correction of the commitment and the State of Louisiana Uniform Commitment Order as noted above, and the Clerk of Court for the 24th Judicial District Court is ordered to transmit the original of the corrected commitment and Uniform Commitment Order to the officer in charge of the institution to which Defendant has been sentenced and the Department of Corrections' legal department. See State v. Long, 12-184 (La.App. 5 Cir. 12/11/12); 106 So.3d 1136, 1142.
For the foregoing reasons, Defendant, Jeffery Nelson's, convictions and sentences are hereby affirmed. The matter is remanded for the correction of the commitment and the Uniform Commitment Order as instructed above.