FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 520-726,
SECTION "I" Honorable Karen K. Herman, Judge
A. Cannizzaro, Jr. District Attorney Kyle Daly Assistant
District Attorney PARISH OF ORLEANS DISTRICT ATTORNEY'S
OFFICE COUNSEL FOR APPELLEE, STATE OF LOUISIANA.
Hogan HOGAN AND HOGAN COUNSEL FOR DEFENDANT/APPELLANT,
composed of Judge Daniel L. Dysart, Judge Madeleine M.
Landrieu, Judge Marion F. Edwards, Pro Tempore
F. Edwards Judge.
Orleans Parish jury convicted Kenneth "Bud" Jones,
as charged, of two counts of attempted second degree murder
and one count of being a felon in possession of a firearm,
resulting from a drive-by shooting. The trial judge sentenced
him to twenty-five years on each count of attempted second
degree murder, and twenty years on the remaining count. After
Mr. Jones admitted his status as a second felony offender,
the trial judge vacated the previous sentences and
resentenced him to one hundred years on each count of
attempted second degree murder and twenty years on the felon
in possession of a firearm count.
Jones now appeals and raises six assignments of error
pertaining to his convictions and one assignment of error in
relation to his sentences. After reviewing his arguments, the
record, and applicable law, we affirm the defendant's
convictions and sentences. We explain our decision in greater
begin with a recitation of the facts in this case, as adduced
by the prosecution at trial, as well as the relevant
2009, concerned with an increase in drug-related violence,
the Federal Bureau of Investigation ("FBI")
launched the Ninth Ward Initiative, a joint task force
comprised of various federal and local law enforcement
agencies, including the Bureau, the New Orleans Police
Department ("NOPD"), and the Louisiana State
Police. Over the course of its investigation, the FBI
identified two rival groups from the Lower Ninth Ward, the
Back of Town and the Park Boys, which were primarily
responsible for the drug trade and related violence in the
area. The victims in this case, Merlin Smothers and Jeremiah
Harris, are associated with the Park Boys, and the defendant,
Kenneth "Bud" Jones, is associated with Back of
November 22, 2011, Merlin and Mr. Harris were driving in New
Orleans when a blue Monte Carlo pulled up behind them and an
individual standing through the sunroof began shooting at
them with an assault rifle. Mr. Harris was shot in the neck
but survived; Merlin was unharmed. The Monte Carlo was
spotted at the scene and attempted to flee from police. After
a brief chase, the Monte Carlo crashed and police apprehended
the driver, Eugene Brashears, who was the only person in the
vehicle at that time. Police collected two red hats from the car
but did not find a gun. The driver was not charged as the
both Merlin and Mr. Harris gave statements to NOPD
investigators that the shooter was a black male with a red
hat, neither identified the shooter to police and no suspect
was arrested at that time.
subsequently arrested Merlin and Mr. Harris in the course of
a drug trafficking investigation. In an apparent attempt to
curry favor with federal prosecutors, both men identified
"Bud, " the defendant, as the shooter on November
22, 2011. Merlin disavowed those statements at the
defendant's trial, claiming he never implicated Mr. Jones
as the shooter in this or any other crime. Mr. Harris
maintained that his statements to the FBI were correct and
that Mr. Jones was the person who shot him.
December 2, 2011, the NOPD conducted aerial and ground
surveillance on the defendant's associates in the hopes
of locating Mr. Jones. In the course of surveillance, NOPD
officers identified from aerial recordings a person who they
believed to be the defendant, riding with another person in a
white Dodge pickup truck. Officers followed the truck, and
observed an occupant hastily exit the vehicle carrying what
appeared to be an assault rifle. Investigators subsequently
retrieved a discarded AK-47 from the area. Forensic testing
revealed Mr. Jones to be the major contributor of DNA
material on the firearm and ballistics testing confirmed that
the casings found were fired from the recovered
jury indicted Mr. Jones for two counts of attempted second
degree murder and one count of possession of a firearm as a
Jones raises seven assignments of error in this appeal.
First, he claims the trial judge erred by overruling a
Batson challenge lodged by the defense.
Relatedly, he claims that the trial judge erred by sustaining
the prosecution's reverse Batson challenge.
Third, Mr. Jones alleges that the failure to record eighteen
bench conferences violates his constitutional rights to a
complete appellate record. Next, he argues that the trial
court erred by allowing the prosecution to introduce
prejudicial other crimes evidence. Fifth, he claims that the
evidence was insufficient to support his convictions. Sixth,
Mr. Jones claims the prosecutor's remarks in closing
argument, which referenced the lack of a confession, violated
his constitutional right against self-incrimination. Finally,
the defendant argues that his concurrent 100-year sentences
are constitutionally excessive.
address each assignment of error in the Parts that follow.
Part, we begin by addressing Mr. Jones's sufficiency of
evidence claim. See State v. Marcantel, 00-1629 (La.
4/3/02), 815 So.2d 50, 55 ("When issues are raised on
appeal as to the sufficiency of the evidence and as to one or
more trial errors, we first determine the sufficiency of the
evidence.") (citing State v. Hearold, 603 So.2d
731, 734 (La. 1992)).
standard of review for sufficiency of evidence applicable to
criminal convictions is set forth in Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). The inquiry requires a reviewing court to determine
"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, 443 U.S. at 319.
are several key principles to a sufficiency review. First, we
examine all the evidence considered by the jury,
including evidence which may have been erroneously admitted.
See Hearold, 603 So.2d at 734. Second, all the
evidence is viewed in the light most favorable to the
prosecution. See Jackson, 443 U.S. at 319; State
v. Clements, 15-0630, p. 7 (La.App. 4 Cir. 5/4/16), 194
So.3d 712, 717. Thus, we may consider all reasonable
inferences from the evidence which the fact-finder could have
made. See id.
as a reviewing court, we are highly deferential to the
findings of the trier of fact. See Jackson, 443 U.S.
at 319; State v. Armstead, 14-0036, p. 11 (La.App. 4
Cir. 1/28/15), 159 So.3d 502, 512. A jury may accept as true
the testimony of any witness, even a single witness, and find
such testimony sufficient to establish each essential element
beyond a reasonable doubt. See Clements, at p. 7,
194 So.3d at 717. And, we will only tread on a
jury's presumed acceptance of a witness's testimony
when that testimony is implausible or clearly contrary to the
evidence. See State v. Mussall, 523 So.2d 1305, 1311
(La.1988); Armstead, at p. 12, 159 So.3d at 512.
See also State v. Macon, 06-481, p. 8, 957 So.2d
1280, 1285 ("A reviewing court may impinge on the
factfinding function of the jury only to the extent necessary
to assure the Jackson standard of review.").
Jones was convicted of two counts of attempted second degree
murder and one count of being a felon in possession of a
firearm. The prosecution had to therefore prove that Mr.
Jones had the specific intent to kill the victims,
demonstrated by commission of an overt act that tends toward
the accomplishment of the victims' death. See
La. R.S. 14:30.1; La. R.S. 14:27. Additionally, the
prosecution had to prove that Mr. Jones 1) possessed a
firearm; 2) was previously convicted of an enumerated felony;
3) possessed the firearm within ten years of the previous
conviction; and 4) had the general intent to commit the
crime. See La. R.S. 14:95.1; State v.
Scott, 13-0321, p. 8 (La.App. 4 Cir. 2/26/14), 136 So.3d
the evidence in the light most favorable to the prosecution,
we find that any rational trier of fact could conclude that
Mr. Jones was guilty beyond a reasonable doubt of two counts
of attempted second degree murder and of being a felon in
possession of a firearm.
Harris testified that in 2013, he entered into a plea bargain
with federal authorities, pleading guilty to distribution of
heroin and conspiracy to distribute heroin in exchange for
leniency during sentencing. He testified that the "No. 1
rule" of the plea bargain was that he "tell the
truth, nothing but the truth" at trial. Mr. Harris
stated that if he was not truthful about this incident (and
others), the plea bargain would be void.
Harris testified that when the shooting started on November
22, 2011, he turned to look behind him and saw
"Bud" standing outside of the sunroof of a car
firing at them with an AK-47. He described Mr. Jones as
wearing a red hat and stated that he was "100 percent
sure" that the defendant was the shooter. Mr. Harris
stated there was nothing obstructing his view of Mr. Jones.
He admitted that he had been drinking cough syrup to get high
only a short time prior, but denied that it had impaired his
ability to identify his shooter. Mr. Harris testified that he
did not reveal the defendant's identity when questioned
by the NOPD because he wanted to retaliate against Bud
without police involvement. He stated that Merlin was also
aware Mr. Jones was the perpetrator.
prosecution presented evidence that Back of Town and Park
Boys were engaged in a long-running deadly feud. It likewise
demonstrated that Mr. Jones aligns with Back of Town, while
the victims align with Park Boys. Further, the evidence
showed that Mr. Jones had attempted to kill Merlin in a prior
incident and had warned Mr. Harris to "watch who you are
around." Coupled with the defendant's act of
shooting an AK-47 several times into the victims'
vehicle, we find that the prosecution presented sufficient
evidence of specific intent to kill and demonstrated an overt
act in furtherance of the victim's death.
Jones cites Merlin's trial testimony, wherein he denied
identifying the defendant as the shooter to the FBI, to
support his argument that the evidence is insufficient. Two
FBI agents, however, Agent Christopher DiMenna and Agent
Crystal Bender, testified that Merlin implicated Mr. Jones as
the shooter in this incident, in addition to several others.
Agent DiMenna also testified that he took a statement from
Mr. Harris implicating the defendant as the shooter. As noted
above, witness testimony will be upheld unless it is
implausible or clearly contrary to the evidence. See
Mussall, 523 So.2d at 1311; Armstead, at p. 12,
159 So.3d at 512. Clearly, the jury found Mr. Harris's
testimony and the testimony of the FBI agents more credible
than that of Merlin Smothers. We see no reason to disturb
the conviction for possession of a firearm by a convicted
felon, the defense stipulated that Mr. Jones had a prior
felony conviction for possession of cocaine in 2008, which is
an enumerated offense under the statute and well within the
ten-year cleansing period. See La. R.S. 14:95.1 A.
Thus, the prosecution only needed to prove that Mr. Jones
possessed the firearm. See State v. Gaubert,
15-0774, p. 9 (La.App. 4 Cir. 12/9/15), 179 So.3d 982, 988-89
("In general intent crimes, criminal intent necessary to
sustain a conviction is shown by the very doing of the acts
which have been declared criminal.") (internal quotation
marks omitted) (citing State v. Oliphant, 12-1176,
p. 12 (La. 3/19/13), 113 So.3d 165, 172).
evidence at trial revealed that on December 2, 2011, the NOPD
conducted an aerial and ground surveillance operation in an
attempt to locate Mr. Jones. A person matching the
defendant's description was seen riding in a white Dodge
pickup with one other person. Based on the recorded aerial
surveillance, the two subjects then ran from the vehicle
carrying what appeared to be an assault rifle. NOPD
subsequently recovered an AK-47 from the area. Forensic
testing revealed Mr. Jones as the major contributor of DNA on
the firearm, with a one in 10.5 quintillion probability that
the DNA came from a person other than the defendant.
Moreover, ballistics analysis matched the casings recovered
from the scene to the firearm with Mr. Jones's DNA.
Jones points out that no one, law enforcement or otherwise,
positively identified him as being present or carrying an
assault rifle on December 2nd. He also cites testimony given
by Jonathan Alexander, an associate of Mr. Jones and a member
of Back of Town, where Mr. Alexander testified that he was in
possession of the firearm that day, and that it belonged not
to the defendant, but to his friend Chris Williams, who is
now deceased. He further testified that Mr. Jones was not
present with him that day. On cross-examination, Mr.
Alexander admitted that, at the time of trial, he was charged
with second degree murder and that he and Mr. Jones were
housed in the same tier at Orleans Parish Prison.
acknowledge that Mr. Jones was not definitively identified as
having actually possessed the recovered AK-47 on December 2,
2011. We find, however, the fact that his DNA was found on
the firearm as the major contributor, and that the same
firearm was linked to the instant shooting where he was
identified as the perpetrator, is sufficient to satisfy the
essential element of possession.
now to address the defendant's Batson claims.
voir dire of the first jury panel, the defense raised a
Batson challenge, based on the prosecutor's use
of peremptory challenges to strike "thus far four
African-Americans out of five" from the jury pool. The
following colloquy then occurred:
The Court: What is your response?
Mr. Napoli [prosecutor]: My first response
would be that there is two African-Americans that we are
going to keep on the Jury. The second response would be that
of all the cuts used by Defense counsel, they are all on
white Jurors. The third response, as to Ms. Hills, Judge, is
that, first, she is an educator and is-I had some concern
when I asked her about her prior Jury service. First she
didn't say anything, and then she couldn't give us
any details about the type of crime, when it took place or
anything like that.-
The Court: I will note for the record that
of the five challenges the State has exercised, one of them
is a white male. So, per se, it is not satisfied and I accept
the State's response as to ...