Case Number: 51,672-KA

Judge: Nannette Jolivette Brown

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: JAMES E. PAXTON Counsel
District Attorney

LINDA L. WATSON
MOLLY F. McEACHARN
JOHN D. CRIGLER, JR.
Assistant District Attorneys

Defendant's Attorney: LOUISIANA APPELLATE PROJECT
By: Carey J. Ellis, III

Description: Defendant’s four-day trial began on October 10, 2016. Tensas Parish
Sheriff Ricky Jones testified that around 2:22 p.m. on November 6, 2015,
N.H. frantically ran into the sheriff’s office barefoot, wearing a pink
nightgown and black jogging pants. According to Sheriff Jones and Deputy
Betty Spillman Brown, N.H. was hysterical; she was crying and could barely
talk. The officers observed noticeable bruises on N.H.’s face, neck and arms
and saw that she had bloodshot eyes. N.H. reported that a man who said that
his name was Marcus Brown had forced himself into her home that morning,
tied her up and sexually assaulted her all day. When he went into another
room, she was able to get loose, get her gun, and shoot him when he
returned to the room. Three minutes later, at 2:25 p.m., defendant, Latilo
Lewis, called 911 from N.H.’s home and advised that he had been shot.
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When officers arrived at N.H.’s house, which was about three blocks
from the sheriff’s office, they found defendant sitting in a chair in the living
room. Defendant had a perforating bullet wound to his upper right
abdomen. Paramedic Johnny Ogden determined that defendant’s injury was
critical, and defendant was airlifted to the University of Mississippi Medical
Center in Jackson, Mississippi.
Sheriff Jones testified that the officers went past defendant into N.H.’s
bedroom, where they observed her disheveled bed and drawers pulled out.
The sheriff took photographs of the scene, as did Investigator Mark Guy and
Deputy Bob Stroud. Sheriff Jones testified that they found one live round
and one spent round on the victim’s bed, as well as a projectile on the floor.
He stated that, despite an extensive search for N.H.’s gun, a .380 automatic,
officers were unable to locate the weapon. Deputy Evelyn Guy took
photographs of N.H.’s injuries at the sheriff’s office. Sheriff Jones
identified the photos taken during the investigation during his trial
testimony.
Sheriff Jones testified that, during the course of the investigation,
N.H. told officers that there was $500-$600 missing from her purse. Deputy
Stroud contacted authorities at the University Medical Center in Jackson,
who found $567 in defendant’s possession.
St. Joseph Police Chief Karl Jones also responded to the 911 call
made from N.H.’s house and was there when paramedics arrived. Chief
Jones saw the very distraught victim when he went to the sheriff’s office/jail.
According to Chief Jones, N.H. was crying uncontrollably and appeared to
be in shock. He also noticed bruising at her neck and wrists. Chief Jones
testified that the victim’s brother called him on November 7 and asked
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whether officers had found any money on defendant because N.H. was
missing $500-$600, which she had collected for a church function. Chief
Jones stated that he and his department participated in the search for the
victim’s gun, which went on for several days.
N.H. testified that around 7:30 a.m. on November 6, 2015, she opened
her front door to check the weather so she would know what to wear that
day. When she saw that there was a man crouched down on her porch “like
a lion getting ready to pounce on his prey,” she tried to close the door, but he
forced or “barged” his way into her house. The man grabbed N.H., threw
her on the floor and told her to put her hands behind her back. N.H. refused
and fought back, but the man choked her and she lost consciousness. When
N.H. woke up, her hands were tied behind her back. The man pushed N.H.
into her bedroom and repeatedly raped her as she begged for him to stop.
Over the course of about seven hours, the man continued to rape N.H. as she
was tied to the head of her bed with a belt. N.H. stated that at one point, the
man took money (around $500-$600) from her purse which she had been
saving for her church anniversary. N.H. detailed several conversations she
had with the man, including the fact that the man told her his name was
Marcus Brown.
At one point, the man told her that he was hungry and went into the
kitchen, leaving N.H. tied to the bed. N.H. was able to loosen herself and
get her gun out of a filing cabinet she used as a nightstand located next to the
bed. When the man came back into the bedroom, N.H. was standing on the
bed with the gun pointed at him. N.H. told the man to leave, but he came
closer, so she shot him. Although he was shot, the man lunged at N.H. and
wrestled the gun out of her hand. N.H. testified that the man put the gun to
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her head and said, “Now bitch, you’ll know what it feels like to be shot.”
The man pulled the trigger, but the gun jammed. Another struggle ensued,
and the man tied N.H. to the bed again. She was eventually able to convince
the man to untie her so she could get him medical attention. N.H. left the
house and drove straight to the sheriff’s office. N.H. identified defendant as
the man who repeatedly raped and tried to kill her.
Investigator Michael Huff with the Hinds County Sheriff’s
Department in Jackson, Mississippi, assisted in the investigation of this case
by obtaining search warrants and collecting evidence from defendant while
he was in the hospital in Mississippi. On November 6, 2015, Huff obtained
a search warrant for defendant’s clothing and a DNA sample. Thereafter,
once he received information that defendant allegedly took money from
N.H. during the incident, on November 25, 2015, Huff obtained a second
search warrant for all property possessed by defendant at the time of his
admission to the hospital. As a result, $557 was recovered from defendant.
In a recorded interview, defendant told officers that he was in a
relationship with N.H., which no one else knew about. On the day of the
incident, defendant said that he was spending time with the victim, they had
consensual sex one time, and then N.H. started acting weird and shot him.
Defendant stated that the money found in his belongings was money he got
from selling weed. Defendant denied raping N.H. or putting the gun to her
head. Defendant’s statement that he was in a relationship with N.H. was not
corroborated.
After the incident, N.H. was taken to Riverland Medical Center for a
sexual assault examination. Dr. Rome Sherrod, who collected evidence for
the rape kit, testified that N.H. had bruising on her neck and wrists
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consistent with being restrained, as well as swelling and abrasions to her
vagina, which were consistent with forced or violent sexual activity. Dr.
Jessica Esparza, an expert in forensic DNA analysis, testified that she
conducted DNA testing of the items in the rape kit and the DNA profile
obtained from the sperm from the vaginal swab, cervical swab, and vaginal
washings. Dr. Esparza testified that the DNA profile found on the items in
the rape kit was consistent with the DNA profile obtained from defendant’s
reference sample. According to Dr. Esparza, the probability of finding the
same DNA profile in a randomly selected person other than defendant was
one in 6.11 quadrillion, which is more than the earth’s population.
After all of the testimony and evidence was presented, on the final day
of the four-day trial, defendant managed to escape from his jailers as they
were escorting him to the courthouse from the jail, which is directly behind
the courthouse. Outside the presence of the jury, the trial judge noted that
defendant was still on the loose, and it had come to the judge’s attention that
some of the jurors, who had been looking out the windows in the jury room,
observed defendant as he was running. Defense counsel moved for a
mistrial, arguing that defendant was prejudiced when the jurors saw him in
police custody being escorted by two guards and possibly witnessed his
escape, and that proceeding with the trial in defendant’s absence was in
violation of his right to be present. The trial court denied the motion for
mistrial, noting that the jurors saw defendant in custody of law enforcement
officers in the courtroom all week and the court took “great pains” to ensure
that defendant was in neat, clean, civilian clothing, and that the only
restraints he had on, which were on his legs, allowed him to walk with little
difficulty. Also, the trial court found that because defendant had voluntarily
6

absented himself, the trial could proceed without his presence. Defense
counsel requested that the jurors be gauged to determine if they could still be
fair and impartial, but the court stated that it only intended to tell the jury
that Lewis had chosen not to be present for the remainder of the proceedings
and “leave it at that.” The trial court did so, and the trial resumed.
The jury ultimately found defendant guilty as charged of first degree
rape, guilty of the responsive verdict of attempted second degree murder,
guilty as charged of second degree kidnapping, and guilty of the responsive
verdict of simple robbery. Although his attorney was present, defendant was
not present at trial for the closing arguments, jury instructions, or the reading
of the jury’s verdict.
The defense filed a motion for post-verdict judgment of acquittal,
arguing that the evidence was insufficient, and a motion for new trial, based
on the denial of certain objections to testimony during trial. At a hearing on
October 26, 2016, the trial court denied the post-trial motions.
Defendant waived sentencing delays. After reviewing the pre
sentence investigation report, the trial court sentenced defendant as follows:
life imprisonment at hard labor without benefits for first degree rape; 50
years at hard labor without benefits for attempted second degree murder; 40
years at hard labor, with at least two years without benefits for second
degree kidnapping; and seven years at hard labor for simple robbery. The
trial court ordered the sentences to be served concurrently.
Defendant filed a motion to reconsider sentence, arguing that his
sentences were excessive since he received the maximum sentence for each
offense. The trial court denied the motion at a hearing on December 1,
2016. This appeal followed.
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DISCUSSION
Sufficiency of the Evidence
Although not specifically designated as an assigned error, in the
closing section of his pro se brief, defendant contends that the evidence was
insufficient to support his convictions. According to defendant, the state’s
case against him was based on circumstantial evidence and rested solely on
the victim’s account of the events. Defendant claims that the facts of this
case are “shady” and that it is hard to imagine how he was able to take the
gun from N.H. and attempt to shoot her after she shot him, or that he would
have had time, in the span of three minutes, to hide the gun and take N.H.’s
money from her purse.
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Tate, 01-1658 (La. 05/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905,
124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Sullivan, 51,180 (La.
App. 2 Cir. 02/15/17), 216 So. 3d 175. This standard, now legislatively
embodied in La. C. Cr. P. art. 821, does not provide the appellate court with
a vehicle to substitute its own appreciation of the evidence for that of the
factfinder. State v. Pigford, 05-0477 (La. 02/22/06), 922 So. 2d 517; State v.
Dotie, 43,819 (La. App. 2 Cir. 01/14/09), 1 So. 3d 833, writ denied, 09-0310
(La. 11/06/09), 21 So. 3d 297. The appellate court does not assess the
credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.
10/16/95), 661 So. 2d 442. A reviewing court accords great deference to the
8

factfinder’s decision to accept or reject the testimony of a witness in whole
or in part. State v. Sullivan, supra.
The Jackson standard is applicable in cases involving both direct and
circumstantial evidence. Direct evidence provides proof of the existence of
a fact, for example, a witness’s testimony that he saw or heard something.
State v. Lilly, 468 So. 2d 1154 (La. 1985). Circumstantial evidence provides
proof of collateral facts and circumstances, from which the existence of the
main fact may be inferred according to reason and common experience. Id.
In the absence of internal contradiction or irreconcilable conflict with
physical evidence, one witness’s testimony, if believed by the trier of fact, is
sufficient support for a requisite factual conclusion. This rule applies
equally to the testimony of victims of sexual assault. Such testimony alone
is sufficient, even where the state does not introduce medical, scientific, or
physical evidence to prove the commission of the offense by the defendant.
State v. Lewis, 50,546 (La. App. 2 Cir. 05/04/16), 195 So. 3d 495, writ
denied, 16-1052 (La. 05/01/17), 219 So. 3d 330; State v. Joyner, 50,740 (La.
App. 2 Cir. 06/22/16), 197 So. 3d 724, writ denied, 16-1493 (La. 06/16/17),
219 So. 3d 1111.
First Degree Rape
La. R.S. 14:41 provides, in part:
A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.

B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

La. R.S. 14:42 provides, in part:

9

A. First degree rape is a rape committed upon a person sixtyfive years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:

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

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

Attempted Second Degree Murder
Second degree murder is the killing of a human being when, among
other things, the offender has a specific intent to kill or to inflict great bodily
harm. La. R.S. 14:30.1. Any person who, having a specific intent to commit
a crime, does or omits an act for the purpose of and tending directly toward
the accomplishing of his object is guilty of an attempt to commit the offense
intended; it shall be immaterial whether, under the circumstances, he would
have actually accomplished his purpose. La. R.S. 14:27(A).
To obtain a conviction for attempted second degree murder, the state
must prove the defendant: (1) intended to kill the victim; and (2) committed
an overt act tending toward the accomplishment of the victim’s death. State
v. Bishop, 01-2548 (La. 01/14/03), 835 So. 2d 434. Attempted second
degree murder requires proof of specific intent to kill; proof of specific
intent to inflict great bodily harm is insufficient. State v. Jones, 49,396 (La.
App. 2 Cir. 11/19/14), 152 So. 3d 235, writ denied, 14-2631 (La. 09/25/15),
178 So. 3d 565.
Specific intent is the state of mind which exists when the
circumstances indicate that the offender actively desired the prescribed
criminal consequences to follow his act or failure to act. La. R.S. 14:10(1).
10

As a state of mind, specific intent need not be proved as a fact; it may be
inferred from the circumstances and the actions of the defendant. State v.
Mickelson, 12-2539 (La. 09/03/14), 149 So. 3d 178; State v. Walker, 51,217
(La. App. 2 Cir. 05/17/17), 221 So. 3d 951. The discharge of a firearm at
close range and aimed at a person is indicative of a specific intent to kill or
inflict great bodily harm upon that person. State v. Lloyd, 48,914 (La. App.
2 Cir. 01/14/15), 161 So. 3d 879, writ denied, 15-0307 (La. 11/30/15), 184
So. 3d 33, cert. denied, ___ U.S. ___, 137 S. Ct. 227, 196 L. Ed. 2d 175
(2016). The determination of whether the requisite intent is present is a
question for the trier of fact. Id.; State v. Walker, supra.
Second Degree Kidnapping
Under La. R.S. 14:44.1, second degree kidnapping is the imprisoning
or forcible secreting of any person, wherein the victim is physically injured
or sexually abused.
Simple Robbery
La. R.S. 14:65 defines simple robbery as the taking of anything of
value belonging to another from the person of another or that is in the
immediate control of another, by use of force or intimidation, but not armed
with a dangerous weapon. See State v. Mason, 403 So. 2d 701 (La. 1981)
(acts of violence or intimidation need not be done for the very purpose of
taking the victim’s property; rather, it is enough that he takes advantage of a
situation which resulted from the prior use of force or intimidation; in that
case, an aborted rape attempt).
The evidence presented at trial was sufficient to support all of
defendant’s convictions. N.H. testified that, after defendant forced his way
into her house, he choked her, rendering her unconscious. Defendant tied
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N.H.’s arms to the head of her bed, and over the course of about seven
hours, defendant repeatedly raped N.H. as she begged for him to stop. This
testimony established that defendant engaged in vaginal sexual intercourse
with N.H. without her consent, and that Lewis restricted N.H’s movements
and imprisoned her in her own house.
The jury found N.H.’s testimony credible, and her testimony alone
was sufficient to convict defendant of first degree rape and second degree
kidnapping. As noted above, this Court does not assess the credibility of
witnesses or reweigh evidence. Defendant’s argument that the state’s case
was based solely on N.H.’s testimony is without merit. Consistent with
N.H.’s version of the events, several officers testified that N.H. had bruises
on her neck and wrists. Also, defendant’s DNA was found in several items
from the rape kit performed on N.H. and the doctor that performed the
sexual assault examination on N.H. testified that the bruising, swelling, and
abrasions to N.H.’s vagina were consistent with forced sexual activity.
At trial, N.H. testified that after she shot defendant, he wrestled the
gun out of her hand and said, “Now bitch, you’ll know what it feels like to
be shot,” as he put the gun to her head and pulled the trigger. Fortunately,
the gun jammed. Although no shots were actually fired by defendant,
evidence that defendant pulled the trigger while he held the gun to N.H.’s
head is sufficient to establish that he had the requisite intent to kill, and
therefore, is sufficient to support his conviction for attempted second degree
murder.
N.H. also testified that defendant took money from her purse during
the incident. Pursuant to a search warrant, officers in Jackson, Mississippi,
recovered $557 from defendant’s personal belongings while he was in the
12

hospital. This evidence is sufficient to support defendant’s conviction for
simple robbery.
Considering the evidence in a light most favorable to the prosecution,
the evidence was sufficient for the jury to conclude beyond a reasonable
doubt that defendant was guilty of first degree rape, attempted second degree
murder, second degree kidnapping, and simple robbery. This assignment of
error is without merit.
Denial of Mistrial
The defense argues that the trial court should have granted a mistrial
when the jurors saw defendant escape from custody on the last morning of
trial. Noting that a defendant should not be seen shackled or handcuffed,
defendant’s attorney claims that this incident infringed upon defendant’s
presumption of innocence. The defense argues that this prejudicial conduct
outside the courtroom, along with the fact that defendant was absent from
the balance of the proceedings, denied defendant his right to a fair and
impartial trial. Also, defendant’s attorney complains that, although a request
was made to gauge whether the jurors could still be impartial, the trial court
declined to do so.
Regarding mistrials, La. C. Cr. P. art. 775 provides, in pertinent part:
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

Mistrial is a drastic remedy which is authorized only where substantial
prejudice will otherwise result to the accused. State v. Roberson, 46,697
(La. App. 2 Cir. 12/14/11), 81 So. 3d 911, writ denied, 12-0086 (La.
04/20/12), 85 So. 3d 1270. The determination of whether actual prejudice
13

has occurred lies within the sound discretion of the trial court and will not be
disturbed on appeal absent an abuse of that discretion. State v. Authier,
46,903 (La. App. 2 Cir. 04/25/12), 92 So. 3d 494, writ denied, 12-1138 (La.
11/02/12), 99 So. 3d 662.
Even if a mistrial was warranted, the failure to grant a mistrial would
not result in an automatic reversal of the defendant’s conviction, but would
be a trial error subject to the harmless error analysis on appeal. State v.
Givens, 99-3518 (La. 01/17/01), 776 So. 2d 443; State v. Roberson, supra.
Trial error is harmless where the verdict rendered is “surely unattributable to
the error.” State v. Wilson, 50,589 (La. App. 2 Cir. 05/18/16), 196 So. 3d
614, writ denied, 16-1102 (La. 05/12/17), 221 So. 3d 72.
A defendant cannot complain that prejudicial conduct requires a
mistrial when the alleged prejudice stems from the defendant’s own
obstructive conduct which is met by a reasoned and ordered reaction by the
trial court to maintain orderly procedure. State v. Tyler, 607 So. 2d 910 (La.
App. 2 Cir. 1992), writ denied, 612 So. 2d 97 (La. 1993).
Absent exceptional circumstances, a defendant before the court should
not be shackled, handcuffed, or garbed in any manner destructive of the
presumption of innocence or detrimental to the dignity and impartiality of
the judicial proceedings. State v. Odenbaugh, 10-0268 (La. 12/06/11), 82
So. 3d 215. However, the momentary use of restraints for the limited
purpose of transporting the accused does not mandate a mistrial. State v.
Thornton, 36,757 (La. App. 2 Cir. 01/29/03), 836 So. 2d 1235, writ denied,
03-0861 (La. 10/31/03), 857 So. 2d 474; State v. Jones, 31,613 (La. App. 2
Cir. 04/01/99), 733 So. 2d 127, writ denied, 99-1185 (La. 10/01/99), 748 So.
2d 434.
14

La. C. Cr. P. art. 831 establishes a defendant’s due process right to be
present at every stage of the trial when his absence might frustrate the
fairness of the proceeding. However, the provisions of La. C. Cr. P. art. 831
are not absolute. State v. Landrum, 35,053 (La. App. 2 Cir. 09/26/01), 796
So. 2d 94, writ denied, 03-0493 (La. 02/20/04), 866 So. 2d 823. La. C. Cr.
P. art. 832 provides an exception for when the defendant voluntarily absents
himself:
A. A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present or if the right to counsel has been waived and:

(1) He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to be present during the trial[.]

Thus, under La. C. Cr. P. art. 832, a defendant may waive his right to
be present by voluntarily absenting himself from the trial. In the case of a
defendant who voluntarily absents himself from trial, the next inquiry is
whether the defendant’s attorney was present at every stage of the
proceeding. If so, the defense attorney’s presence is sufficient to satisfy the
due process requirements of La. C. Cr. P. arts. 831 and 832. State v. Bolton,
408 So. 2d 250 (La. 1981); State v. Landrum, supra.
The trial court did not abuse its discretion in denying defendant’s
motion for mistrial or in continuing with the trial in defendant’s absence.
During the trial, defendant was not forced to wear prison attire, nor was he
visibly restrained. Although several jurors may have seen defendant escape
from the custody of his jailers as he was being transported to the courthouse,
the use of restraints for the purpose of transporting the defendant does not
15

require a mistrial. Defendant cannot complain of alleged prejudice arising
from his own obstructive conduct.
Furthermore, because of his escape, defendant voluntarily absented
himself from the courtroom, thereby waiving his right to be present for the
conclusion of his trial. Defendant’s attorney was present at all stages of the
proceedings. There is no indication that defendant’s absence from the trial
for closing arguments, jury instructions, or the reading of the jury’s verdict
altered the outcome of the trial. This Court will not allow a defendant to
manipulate and frustrate the speedy trial and prosecution of criminal cases
by absenting himself from a trial which has already commenced whenever
he chooses to do so. State v. Landrum, supra.
Defendant failed to demonstrate any prejudice arising from his escape
or absence from the conclusion of trial. As noted above, the evidence
presented at trial was sufficient to support defendant’s convictions. This
assignment of error is without merit.
Excessive Sentence

Noting that defendant received maximum sentences for each of his
convictions, the defense contends that defendant’s sentences are excessive,
primarily because the trial court relied on defendant’s criminal history and
failed to consider the mitigating factors.
At the sentencing hearing, defendant made a brief statement,
apologizing to everyone for his behavior. The victim, N.H., then made a
statement, explaining that the rape, the attempt to kill her, and being held in
her own house for over seven hours was “pure hell,” which she relives every
day. N.H. stated that she is scared to open her door or leave her house, and
16

opined that defendant does not have respect for the law or others and is a
definite harm to people in the community.
The trial court outlined the facts of this case, noting that defendant
brutally raped N.H. numerous times over a period of several hours during
which she was held hostage in her own home and tied to the bed. The trial
court further noted that the gun fortunately jammed when defendant tried to
shoot N.H. in the head, and that defendant robbed N.H. of $557. Also, the
trial court noted that N.H. has required two hospitalizations as a direct result
of this horrific crime, and continues to suffer debilitating mental and
physical infirmities.
As to his personal history, the trial court noted that defendant has four
children (ages 22, 17, 6, and 5) with three different mothers, and has had
many seasonal jobs during his adult life. In addition, the trial court took
note of defendant’s long criminal history and classification as a fourth
felony offender. The trial court observed that defendant has a juvenile
record1 and has convictions for aggravated battery (reduced from attempted
first degree murder), simple burglary, and unauthorized entry of an inhabited
dwelling. The trial court also stated that defendant has numerous other
misdemeanor convictions, and numerous charges against him have been
dismissed pursuant to plea agreements, many of these incidents having
involved violent crimes against the person. The trial court further noted that
defendant has pending charges of sexual battery (against a 14-year-old),
simple criminal damage to property, unauthorized entry of an inhabited
dwelling, the home of the juvenile he allegedly assaulted, flight from an

1 No further information regarding defendant’s juvenile history was provided.
17

officer, criminal trespass, introduction of contraband into a penal institution,
and simple escape.
The trial court found that, although good cause could be found to
order defendant’s sentences to be served consecutively, it would not do so
because of the mandatory life sentence for first degree rape. Also, in
explaining the impact of defendant’s actions in escaping from custody
during trial, the trial court noted an emotional moment in the courtroom
when defendant’s mother was consoled by a member of the victim’s family.
The court also pointed out that defendant had not shown any remorse until
that day, which the court hoped was sincere.
The trial court did not abuse its discretion in sentencing Lewis. The
trial court reviewed the pre-sentence investigation report and adequately
considered the appropriate factors set forth in La. C. Cr. P. art. 894.1.
Although the defense claims that the trial court failed to consider the
mitigating factors, the defense failed to identify any such factors or establish
how they outweigh the aggravating circumstances in this case.
The imposed maximum sentences are not constitutionally excessive.
Considering the facts of this case and defendant’s extensive criminal history,
the sentences imposed by the trial court neither shock the sense of justice nor
are they grossly disproportionate to the severity of the offenses of
conviction. State v. Dorthey, 623 So. 2d 1276 (La. 1993); State v. Lewis,
49,138 (La. App. 2 Cir. 06/25/14), 144 So. 3d 1174.
Ineffective Assistance of Counsel
In this pro se assignment of error, defendant argues that he received
ineffective assistance of counsel on several grounds. The state did not
respond to this pro se assignment of error.
18

Claims of ineffective assistance of counsel are more properly raised in
an application for post-conviction relief in the trial court because it provides
the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930.
State v. Moore, 48,769 (La. App. 2 Cir. 02/26/14), 134 So. 3d 1265, writ
denied, 14-0559 (La. 10/24/14), 151 So. 3d 598; State v. Eiskina, 42,492
(La. App. 2 Cir. 09/19/07), 965 So. 2d 1010. However, when the record is
sufficient, allegations of ineffective assistance of trial counsel may be
resolved on direct appeal in the interest of judicial economy. Id.
The right of a defendant in a criminal proceeding to the effective
assistance of counsel is mandated by U.S. Constitutional Amendment VI.
State v. Wry, 591 So. 2d 774 (La. App. 2 Cir. 1991). A claim of
ineffectiveness of counsel is analyzed under the two-prong test developed in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
First, to establish that his attorney was ineffective, the defendant must
show that counsel’s performance was deficient. This requires a showing that
counsel made errors so serious that he was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that counsel’s deficient performance prejudiced his defense and
that, but for counsel’s unprofessional errors, there is a reasonable probability
the outcome of the trial would have been different. Strickland, supra; State
v. Reese, 49,849 (La. App. 2 Cir. 05/20/15), 166 So. 3d 1175, writ denied,
15-1236 (La. 06/03/16), 192 So. 3d 760.
A reviewing court must give great deference to trial counsel’s
judgment, tactical decisions, and trial strategy, strongly presuming he has
exercised reasonable professional judgment. State v. Smith, 49,356 (La.
19

App. 2 Cir. 11/19/14), 152 So. 3d 218, writ denied, 14-2695 (La. 10/23/15),
179 So. 3d 597. A defendant making a claim of ineffective assistance of
counsel must identify certain acts or omissions by counsel which led to the
claim; general statements and conclusory charges will not suffice.
Strickland, supra; State v. Reese, supra.
The filing and pursuit of pre-trial motions is squarely within the ambit
of the attorney’s trial strategy, and counsel is not required to engage in
efforts of futility. State v. Jones, 49,396 (La. App. 2 Cir. 11/19/14), 152 So.
3d 235, writ denied, 14-2631 (La. 09/25/15), 178 So. 3d 565.
If the record is arguably insufficient to resolve this matter on appeal,
this claim would be more appropriately raised in an application for post
conviction relief, where a full evidentiary hearing may be ordered.
However, on the record before us, defendant’s claims of ineffective
assistance of counsel are without merit. There is no evidence that
defendant’s attorney failed to conduct an adequate investigation into the
facts of this case or failed to interview witnesses. To the extent that Lewis
complains that the evidence was insufficient to support his convictions, that
claim is without merit, as discussed above.
Defendant also claims that his attorney was ineffective in failing to
file a motion to suppress based on the warrantless search of his personal
belongings at the hospital. However, at trial, Investigator Huff testified that
he obtained a search warrant for defendant’s personal belongings after it was
discovered that defendant allegedly took money from N.H. during the
incident. The sum of $557 was recovered during a search and seizure
conducted pursuant to the warrant, and defendant has failed to allege any
other facts which would require suppression of the money. Defendant has
20

neither shown that a motion to suppress should have been granted nor that
his attorney was deficient in failing to file a motion to suppress.
As to defendant’s claim that his attorney was ineffective in failing to
obtain independent expert witnesses, defendant does not set forth a specific
reason why such experts were necessary or allege that the state’s expert
testimony was incomplete or suspect in any way. Mere conclusory
statements are insufficient to establish a claim of ineffective assistance of
counsel. Defendant failed to show that his attorney was deficient in failing
to obtain expert witnesses, or that the testimony of such witnesses would
have changed the outcome of this case. Defendant failed to meet his burden
of proving that he received ineffective assistance of counsel.
ERROR PATENT REVIEW
Pursuant to La. C. Cr. P. art. 920, all appeals are reviewed for errors
patent on the face of the record. Our review of the record reveals four errors
patent. First, defendant’s sentence for second degree kidnapping is
indeterminate. The sentencing provision for second degree kidnapping
requires that at least two years of the sentence be served without parole,
probation, or suspension of sentence. La. R.S. 14:44.1(C). The trial court
sentenced defendant to 40 years at hard labor “with at least two years to be
served without benefit of parole, probation, or suspension of sentence.” A
trial court is required to impose a determinate sentence. La. C. Cr. P. art.
879; State v. Thompson, 50,025 (La. App. 2 Cir. 09/30/15), 178 So. 3d 1058.
The trial court failed to clearly state a determined term for the restriction
from benefits, as the words “at least” do not convey a specific length of
time. Id. Accordingly, we vacate defendant’s sentence for second degree
21

kidnapping and remand the matter to the trial court for resentencing. See
State v. Thompson, supra.
Second, the trial court minutes incorrectly state that defendant’s
sentence for simple robbery is to be served “without the benefit of parole or
suspension of sentence.” The sentencing transcript shows that the trial court
did not restrict any benefits as to that sentence. When the transcript and the
court minutes conflict, the transcript prevails. State v. Lynch, 441 So. 2d
732 (La. 1983). See also La. R.S. 14:65(B). On remand, the trial court is
ordered to correct the court minutes to accurately reflect that defendant’s
sentence for simple robbery was imposed with no restriction of benefits.
Third, the trial court did not properly inform defendant of the sex
offender registration and notification requirements outlined in La. R.S.
15:543. First degree rape is defined as a sex offense under La. R.S. 15:541.
La. R.S. 15:543 requires that the trial court notify a defendant convicted of a
sex offense, in writing, of the registration and notification requirements, and
that an entry be made in the court minutes stating that the written
notification was provided to the defendant.
On remand, the trial court is to provide the appropriate written notice
to defendant of the sex offender registration requirements and file written
proof of such notice into the record of these proceedings. State v. Wilson,
50,418 (La. App. 2 Cir. 04/06/16), 189 So. 3d 513, writ denied, 16-0793 (La.
04/13/17), 218 So. 3d 629; State v. Scott, 42,997 (La. App. 2 Cir. 02/13/08),
975 So. 2d 782.

Outcome: For the foregoing reasons, defendant’s convictions are affirmed.
Defendant’s sentences for first degree rape, attempted second degree
murder, and simple robbery are affirmed. Defendant’s sentence for second
degree kidnapping is vacated, and the matter is remanded to the trial court
for resentencing. The trial court is instructed to correct the court minutes
and comply with the sex offender notification requirements.

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