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State v. Eaglin

Court of Appeals of Louisiana, Third Circuit

March 28, 2018

STATE OF LOUISIANA
v.
KYVONTE LATRELL EAGLIN

          APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. CR-716-15 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

          Alfred F. Boustany, II Boustany Law Firm COUNSEL FOR DEFENDANT-APPELLANT: Kyvonte Latrell Eaglin.

          Michael C. Cassidy District Attorney - 31st JDC Bennett R. LaPoint Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana.

          Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.

          ELIZABETH A. PICKETT, JUDGE

         FACTS

         The defendant, Kyvonte Latrell Eaglin, attended a party at the American Legion Hall in Jennings on August 8, 2015. An altercation broke out, and a group moved outside. The defendant went to his vehicle and retrieved a gun. Shots from one or more firearms were fired, and the victim, Jawon Lennette, was killed.

         The defendant was indicted for second degree murder, a violation of La.R.S. 14:30.1, on December 16, 2015, as a result of the shooting on August 8, 2015, that resulted in the death of Jawon Lennette. Counsel filed a number of pre-trial motions, including a motion for a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999), as adopted by the Louisiana Supreme Court in State v. Foret, 628 So.2d 1116 (La.1993).

         Counsel also filed a motion to declare the defendant indigent and to provide funds to retain a firearms expert. The trial court ruled on October 27, 2016, finding the defendant was indigent. However, the trial court denied the defendant's request to provide funds for him to retain an expert witness, and it denied his request to reopen the Daubert hearing to present new scientific evidence that purportedly refuted the state's expert's testimony. The defendant filed a proffer of the new evidence for purposes of appellate review on November 14, 2016.[1] He also proffered recorded statements of three witnesses.

         The case went to trial on November 15, 2016. The jury rendered the responsive verdict of guilty of manslaughter on November 18, 2016. Although he was tried on a count of second degree murder, in closing argument the state argued the jury should return a verdict of guilt for manslaughter. The defendant filed a motion for new trial on December 6, 2016, which the trial court denied without a hearing. The defendant asked the trial court to reconsider the ruling, but the trial court denied his request on December 14, 2016.

         The trial court sentenced the defendant to twenty years at hard labor on January 30, 2017. The defendant made an oral motion to reconsider his sentence, and the trial court denied it. The defendant timely appealed.

         ASSIGNMENTS OF ERROR

         1. The district judge erred when he denied this indigent defendant's request for funds to hire a firearms expert.

         2. The district judge erred when he allowed the State to argue that the jury should accept the testimony and opinions of the State's firearms expert, because the defendant never called a firearms expert to contradict that testimony.

         3. The district judge erred when he concluded that the State's firearms expert was qualified to testify as a firearms expert, and that she proved that her testing procedure had sufficient scientific validity.

         4. The district judge erred when he refused to allow the defense to re-open the Daubert hearing on the State's firearms expert, after a very recent scientific report was brought to the court's attention, and filed in the record, that cast considerable doubt on the scientific basis for the expert's procedure and conclusion.

         5. The district judge erred when he allowed the State unlimited challenges for cause against all prospective jurors who expressed reservations about a mandatory life sentence for a 17-year old child.

         6. The district judge erred when the defense raised a Batson challenge, and the State did not give adequate or legal reasons for removing African-American jurors.

         7. The district judge erred when he allowed the State to introduce, as evidence of the defendant's "bad character, " a copy of a Facebook photograph of the defendant, who was roughly 13 years old, that falsely portrayed him as a masked armed robber holding a dangerous pistol to the back of a child's head, as though ready to shoot the child, that the judge himself described as "inflammatory."

         8. The district judge erred when he refused to allow the defense to present the testimony of eye witnesses who would have testified that the defendant appeared to have accidentally fired a shot at the alleged victim.

         9. The district judge erred when he refused to allow the defense to impeach the State's witnesses with prior inconsistent statements about how the shooting occurred.

         10. The district judge erred, as a matter of law, when he denied the defendant's motion for new trial, without a hearing.

         11. The district judge erred by failing to properly consider the mitigating factors when imposing the sentence and imposed an excessive sentence.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

         ASSIGNMENT OF ERROR NUMBER THREE[2]

         The defendant argues the trial court erroneously held the state's firearms expert was qualified to testify and that she proved her testing procedure had sufficient scientific validity.

         Daubert, 509 U.S. 579, "set forth a means for determining reliability of expert scientific testimony and answered many questions as to proper standards for admissibility of expert testimony." Foret, 628 So.2d at 1121. When considering reliability, the trial court should first perform "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93. Illustrative, not exclusive, factors bearing on that assessment include whether the theory or technique can be and has been tested, whether it has been subjected to peer review and publication, "the known or potential rate of error . . . and the existence and maintenance of standards controlling the technique's operation, " and general acceptance of the theory or technique in the scientific community. Id. at 594. This gatekeeping function "applies not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge." Kumho Tire, 526 U.S. at 141. The inquiry must be applied to the facts of each particular case. Id.

         Our supreme court adopted a three-part inquiry to determine the admissibility of expert testimony in Cheairs v. State ex rel. Department of Transportation & Development, 03-680 (La. 12/3/03), 861 So.2d 536. Quoting from the Eleventh Circuit's opinion in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562 (11th Cir.1998), cert. denied, 528 U.S. 812, 120 S.Ct. 309, and cert. denied, 528 U.S. 812, 120 S.Ct. 47 (1999), the court held expert testimony is proper when:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Cheairs, 861 So.2d at 542. The Daubert evaluation applies to the second of these prongs. Id.

         The trial court heard the defendant's Daubert motion on September 21, 2016. The state offered Michelle Cazes as its firearms analysis expert.[3] Ms. Cazes worked at the Louisiana State Police Crime Laboratory in crime scene and firearms analysis. She began her college studies at Southeastern Louisiana University, majoring in accounting. However, when Our Lady of the Lake College in Baton Rouge began offering a degree in forensic science, Ms. Cazes transferred and obtained her degree in that field.

         After graduation, Ms. Cazes was accepted into a two-year training process with a Bureau of Alcohol, Tobacco, and Firearms (ATF) training academy. During the first phase of the program, she did research and wrote papers. In the second phase, she spent four months in Maryland "doing hands on exercises and training." The third phase gave her "mock evidence to work up like casework." She returned to Maryland for the fourth phase to "testify in like a mock trial." She received a certificate and has completed a competency and proficiency test each year

         An outside company administers annual tests to evaluate Ms. Cazes's competency at the crime lab. Ms. Cazes has not given any wrong answers in any of the tests; she testified, "I've had all the correct answers." Ms. Cazes previously qualified as an expert forensic firearm analyst in four different Louisiana courts. At the time of the Daubert hearing, Ms. Cazes was in the process of becoming certified in firearm analysis with the Association of Firearm and Tool Mark Examiners (AFTE). She was already certified in crime scene analysis. Additionally, the crime lab is accredited by AFTE and falls under its protocol.

         Ms. Cazes's method of analysis is to examine, compare, and reach a conclusion regarding evidence. Everything is verified. By doing the analysis this way, "developing the class characteristics, individual detail, and then the conclusion, every one [sic] would also come up with the same thing[]" because her procedures are generally accepted in the scientific community.

         According to Ms. Cazes, the procedures have also been subjected to peer review, published in peer-reviewed journals, and shown to be reliable. Validation studies over the past fifty years have shown the ability to "distinguish between two firearms [and] the markings between them[.]" When "anything falls in the threshold or the gray area[, ] and it doesn't meet the threshold for identification, " Ms. Cazes's practice is to "err on the side of caution" and give a result of inclusive.

         In this case, Ms. Cazes received one live cartridge, one mushroom copper-jacketed bullet, two nine-millimeter cartridge cases (fired rounds), and three .40 caliber cartridge cases for analysis. She was able to identify the fired bullet as a nine-millimeter caliber. The same bullet was tested for DNA at the crime lab.

         Ms. Cazes compared the two nine-millimeter cartridge cases to each other and determined they were "fired in the same unknown firearm." Additionally, "the jacketed hollow point cartridge . . . was microscopically compared to the cartridge case . . . and was determined to have been cycled through the same action of the same unknown firearm." Ms. Cazes found the markings on the nine-millimeter cases and the live round to be "similar as far as they showed the same . . . class characteristics and then some - the same individual detail."

         She further microscopically compared the three .40 caliber cartridge cases and determined they had been fired from "the same unknown Glock or Glock-type firearm." She examined breech, chamber, extractor, ejector, and feed marks. The .40 caliber cases seemed to be fired from the same weapon; they "had the same firing pin shape, size, and then the individual detail." Ms. Cazes's findings were twice-verified, once in technical review and again in administrative review. She believed there was no rate of error. The protocol uses pattern matching. Ms. Cazes explained:

[Y]ou want the patterns to line up identical[ly]. If they're slightly off or completely off - if they're slightly off but you have some that line up, then that - like I said, that would go in the inconclusive area. If they exactly line up, that would be the identification. And then if they're totally off or just totally different class characteristics, then that would be the elimination.

         The bullet found with the victim's blood on it was fired from a nine-millimeter firearm, but Ms. Cazes could not say it was fired from the same weapon as the other cases. She testified it would require the gun or another bullet from it to make that comparison. Because no firearms were recovered in this case, and she could not identify the firearm from which that bullet was fired, she concluded two or three weapons could have been fired at the scene.[4] The trial court found Ms. Cazes's methodology was accepted under the Daubert standard, and it accepted her as a forensic firearm analyst. The state proved her educational background in the field of forensic science, a specific in-depth training program in forensic science, and her proficiency in the field, verified by annual competency tests. The defendant submitted nothing to show she was not qualified to testify as an expert in forensic firearms analysis in this case.

         We find that the state presented sufficient evidence to satisfy the standards of Daubert, 509 U.S. 579, and of Cheairs, 861 So.2d 536. Ms. Cazes testified her methodology was verified, accepted in the scientific community, subjected to peer review, and shown to be reliable. Others doing the same analysis would reach the same conclusion because of these standard procedures. This assignment of error lacks merit.

         ASSIGNMENT OF ERROR NUMBER FOUR

         The defendant contends the district court erred when it refused to re-open the Daubert hearing after the defendant brought a recent scientific report to the court's attention and filed it into the record. He alleges the report cast considerable doubt on the scientific basis for Ms. Cazes's procedure and conclusion.

         In this assignment of error, the defendant states the law allows a trial court to review and reconsider an interlocutory ruling prior to final judgment if substantial justice is served. The defendant contends this applies to the report he submitted to the court. The defendant makes no argument. He cites only one case, Ryan v. State Farm Mutual Automobile Insurance Co., 10-961, 10-962 (La.App. 1 Cir. 12/22/10), 68 So.3d 563, writ denied, 11-172 (La. 4/1/11), 60 So.3d 1250. That case merely states "a trial judge may, at his discretion, change the substance or the result of interlocutory rulings." Id. at 566.

         The defendant's brief fails to identify how the trial court abused its discretion in failing to reopen the Daubert hearing. The brief notes, "This request was addressed at [Record] Pages 199-209; 220-234; [and] 715-731." However, the defendant may not incorporate arguments made in the trial court into his appellate brief by reference. Bennett v. Hughes, 03-1727 (La.App. 4 Cir. 5/26/04), 876 So.2d 862, writ denied, 04-1599 (La. 6/30/04), 877 So.2d 122. Such a reference is insufficient to constitute briefing of this assignment of error. Uniform Rules- Courts of Appeal, Rule 2-12.4; Theriot v. Bourg, 96-466 (La.App. 1 Cir. 2/14/97), 691 So.2d 213, writ denied, 97-1151 (La. 6/30/97), 696 So.2d 1008.

         The defendant's reply brief, however, argues knowledge of scientific information casting doubt on the validity of an expert's qualifications, procedure, or opinion requires the trial court to reopen the Daubert hearing. Failure to reopen it, the defendant contends, is an abuse of the trial court's discretion.

         Uniform Rules-Courts of Appeal, Rule 2-12.6, requires a reply brief to be "strictly confined to rebuttal of points urged in the appellee's brief." Where a reply brief "goes beyond mere rebuttal and attempts to raise a new legal argument[, ]" an appellate court should not address the new issues. McGregor v. Hospice Care of Louisiana in Baton Rouge L.L.C., 09-1355, 09-1356, p. 9 (La.App. 1 Cir. 2/12/10), 36 So.3d 281, 287 n.2, writ denied, 10-832 (La. 5/28/10), 36 So.3d 258.

         The defendant's original brief did not allege an abuse of discretion by the trial court. While it argued the trial court could have reopened the Daubert hearing, it did not state why it should have. We do not consider the arguments advanced in the reply brief as proper rebuttal argument.

         We consider this assignment of error abandoned. See Bennett, 876 So.2d. 869.

         ASSIGNMENT OF ERROR NUMBER ONE

         The defendant contends the trial court erred by denying his request for funds to hire a firearms expert. Once again, the defendant refers to his numerous filings in the trial court to explain his need for a firearms expert. Our courts do not allow this practice. Uniform Rules-Courts of Appeal, Rule 2-12.4; Theriot, 691 So.2d 213.

         Further, none of the motions to which the defendant's appeal brief refers requested funding except "Defendant's Motion for Declaration of Indigency, and for Funds for a Forensic Firearms Expert, " filed on October 18, 2016. That motion sought funding to refute Ms. Cazes's expert testimony "that in her scientific opinion the bullets and/or cartridge casings were cycled through the action and/or fired from the same unknown firearm."

         The defendant's appellate brief states, "We also know now that the bullet casings may have fingerprints on them, and that evidence can be obtained with the assistance of a firearms expert." That issue was not brought before the trial court. Rather, counsel for both parties questioned Ms. Cazes at the Daubert hearing about her methodology of comparing bullets and casings. She concluded two or possibly three firearms were present at the scene. Again at trial, she testified to the possibility of three guns firing the bullet fragment and cartridge casings.

         Well into her trial testimony, during cross-examination, Ms. Cazes was asked for the first time about fingerprints being set into bullets when they are fired. This issue was not raised before that point. Ms. Cazes testified fingerprints could be obtained from a live round or from casings "picked up after the firing process[.]" She was questioned about whether body salts could etch fingerprints into a casing when a gun was fired. She testified that as a firearms expert she does not test for fingerprints and further testing for that process was not performed by the lab in this case because it was not requested.

         This court may not consider the defendant's request to fund an expert to testify about whether fingerprints can be etched on fired casings because the issue was not raised in the trial court. The defendant never asked the trial court anything about funding for such tests. Although his brief states we "know now" about this possibility, he identifies no source of that knowledge or how or when he became aware of it. No expert testified regarding this possibility or whether this actually occurs. Defense counsel discussed the theory with Ms. Cazes at trial:

Q. . . . . Somebody loading bullets will probably finger the bullets in order to load them into a cylinder or a magazine, right? They might touch it.
A. Yes, sir.
Q. And so by touching them, it leaves tiny quantities of salty sweat with each time they touch it, right?
A. Yes.
Q. All right. And then when the bullet is fired away from its casing, there's tremendous heat and instantly transfers that salty sweat to the metal. It vaporizes the moisture, and it sets the salts for those prints. Does that make sense?
A. Yes, sir.
Q. Okay. And the salts become molten and a chemical reaction with metal etches of the fingerprints are permanently into the casing?
A. Yes, sir.
Q. Makes sense.

         This colloquy is nothing more than counsel's testimony, not questioning, about a theory not established by any evidence other than Ms. Cazes's one word responses. If the defendant wanted to establish this possibility, which seems to indicate that it might be possible, and obtain the concomitant tests, he could have asked the trial court to fund the hiring of this type of expert. He did not, and he may not raise the issue on appeal. Uniform Rules-Courts of Appeal, Rule 1-3.

         The defendant's appellate brief, however, correctly argues the Fourteenth Amendment guarantees him a fair opportunity to present a defense. To obtain funding for an expert witness, the defendant must show "a need for the funding by establishing with a reasonable degree of specificity what type of expert is needed and the purpose for which the expert is required." State v. Lee, 05-2098, p. 41 (La. 1/16/08), 976 So.2d 109, 137, cert. denied, 555 U.S. 824, 129 S.Ct. 143 (2008). He must also show "it is more likely than not the expert assistance will be required to answer a serious issue or question raised by the State's or defense's theory of the case, and that denial would result in an unfair trial." Id. If a defendant meets that burden, "the trial court is to order the state to provide those funds." Id. The trial court's denial is subject to review under an abuse of discretion standard. Id.

         The defendant's motion sought funding to hire an expert to refute Ms. Cazes's testimony "that in her scientific opinion the bullets and/or cartridge casings were cycled through the action and/or fired from the same unknown firearm[, ]" based on the report by the President's Council of Advisors on Science and Technology (PCAST) dated September 2016. The report was entered into evidence at trial as Exhibit D-3. Pertinent portions of the report were filed into the record as part of "Defendant's Motion for Declaration of Indigency, and for Funds for a Forensic Firearms Expert" on October 18, 2016. The trial court denied that motion.

         The defendant's motion argued the report showed Ms. Cazes's methodology to be invalid in spite of having had the expert's report for seven months. The defendant filed the motion just a few weeks prior to the scheduled trial on November 15, 2016. At the hearing of the motion on October 27, 2016, the defendant's counsel repeatedly told the trial court he was not seeking a continuance of the trial. However, at the hearing three weeks before the scheduled trial, defense counsel refused to answer the trial court's question as to whether he had an expert in mind. The trial court tried several ways to obtain an answer to that question:

THE COURT: My question to you, have you consulted a firearm's [sic] expert since March? Have you consulted one at this point in time? Yes or no? A simple question.
MR. BOUSTANY: Judge -
THE COURT: A simple question.
MR. BOUSTANY: What I do representing the defendant, I think -
THE COURT: You're requesting a firearm's [sic] expert from this Court so you have to tell me whether you have one or not, okay? Because you want me to pay you for it.
MR. BOUSTANY: I can't have one if [Defendant] can't afford it. I can't expect a firearm expert to consult with me when I don't pay them. That's why we are here. I have to pay the firearm's [sic] expert.
THE COURT: So you're telling me you do not have a firearm's [sic] expert and you have not contacted on[e] or sought one out since March?
MR. BOUSTANY: No, I'm not telling you that. No, I'm not telling you that.
Counsel told the trial court his unidentified expert:
would testify that the casings that the [S]tate's expert said she looked at and they looked like they had similar markings and as a result she gave an opinion that they would have been fired from the same gun even though the gun was not recovered, and that she has a zero error rate, that testimony is what we need an expert for. It is that testimony itself that we will need an expert.

         The defendant received Ms. Cazes's expert report in March of 2016. As previously noted, he did not seek funding for his own expert until approximately seven months later. At the hearing of the motion, defense counsel told the trial court:

And so the [S]tate's position appears to be that the casings that were found came from only one gun, and that gun had to be the defendant's gun, and that means that the defendant shot the alleged - the victim.

         To the contrary, the state's expert testified at the hearing she believed, based on her examination of the casings recovered from the scene, using pattern matching methodology, that at least two and possibly three guns were present.

         The defendant seeks to challenge Ms. Cazes's qualifications and methodology based solely on this new report. Daubert and Kumho Tire set the standard for determining the reliability and admissibility of expert testimony, and that standard may not be added to, subtracted from, or altered by an advisory report.

         Further, the question the defendant wanted an expert to answer was whether the casings Ms. Cazes examined were fired from the same gun. Specifically, he said he wanted an expert to say there was more than one gun fired at the scene. Ms. Cazes answered that question favorably to the defendant. She testified at the Daubert hearing and at trial about the possibility of three guns being present at the scene. The jury heard her testify she could not determine whether the bullet fragment recovered that had the victim's DNA was fired from the same gun as the casings because she did not have a gun to examine. Thus, the defendant did not show how a firearms expert would have aided him in the defense of his case, and the trial court did not err in denying the motion.

         ASSIGNMENT OF ERROR NUMBER TWO

         The defendant contends the trial court erred by allowing the state to tell the jury in its closing argument that it should accept the testimony and opinions of the state's firearms expert when he never called a firearms expert to contradict that testimony, and his motion to fund such an expert was denied.

         During the state's closing rebuttal argument, counsel said:

Mr. Boustany, the defendant, [sic] got up here and - and he gave his opinion about how this stuff got there, and how the shots were fired and everything. Did you hear one defense expert get up there and say what he said? There was no defense testimony that supported Mr. Boustany's statements about how these shots were fired (indicating) and how that stuff got there. Not one expert witness called by the defense. There was no evidence of that.

         Defense counsel requested a sidebar conference where he pointed out the defendant had no obligation to present any evidence, and the burden was on the state. He asked "that [the state] not make that argument, " and he asked for a jury instruction to disregard counsel's remarks.

         The trial court responded, "Okay. This - this is the way I look at it: He can make the argument that's your presentation. It's just your opinion." Defense counsel agreed. The trial court then told counsel, "But you can't say the defendant did not put on any evidence." Again, defense counsel agreed. When defense counsel again requested an instruction, the trial court told the jury, "Ladies and gentlemen of the jury, the defendant - again, the defendant does not have to put on any evidence, okay. Also, the statements of the attorneys is [sic] not evidence." Defense counsel lodged no objection and made no further mention regarding the issue.

         This assignment of error lacks merit. Defense counsel stopped the state's closing argument, requested the sidebar, and agreed with what the trial court told the state's counsel. He requested a special instruction to the jury, and he got it. The defendant has identified no erroneous conduct by the trial court regarding this issue.

         ASSIGNMENT OF ERROR NUMBER FIVE

         The defendant contends the trial court erred by allowing the state unlimited challenges for cause against all prospective jurors who expressed reservations about a mandatory life sentence for a seventeen-year-old child. In other words, he argues too many potential jurors were excused because they may have been unable to convict a minor who would be sentenced to mandatory life in prison.

         In Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012), the United States Supreme Court held mandatory life imprisonment without the possibility of parole for defendants under the age of eighteen at the time of the offense violated the federal constitutional prohibition on cruel and unusual punishment. The defendant here was seventeen years old at the time of this offense.

         During voir dire, the state told prospective jurors the sentence for a defendant convicted of second degree murder is mandatory life in prison. When one potential juror asked whether such a defendant would be eligible for parole, both the state and the trial court told the potential juror the law required life without benefit of probation, parole, or suspension of sentence.

         Defense counsel did not contemporaneously object to this misstatement of the law during that particular discussion. When the state requested specific potential jurors be excused for cause, only then did defense counsel state, outside the presence of the venire, "actually the U.S. Supreme Court has said you can't give a juvenile life[.]" This statement by defense counsel is also not a correct statement of law. Even then, he did not object to what was told to the venire. Rather, he objected to the state's causal challenge, stating, "I don't think that [the potential juror] has said that if the Court instructed him that he would have to apply the law that he could not apply the law." His objection does not address the misstatement of the law.

         Later in voir dire, the state again asked the panel whether the fact the defendant would receive life imprisonment with a guilty verdict would prevent the jurors from returning such a verdict. Again, defense counsel did not object. He did not assign the erroneous statement of the law as error in his appellate brief. Indeed, had he done so, this court would be prohibited from considering such an assignment pursuant to La.Code Crim.P. art. 841 because counsel made no contemporaneous objection.

         The defendant's argument is unreasonably circular. Presumably, he would have wanted to seat people on the jury who could not convict him of second degree murder because they did not want him sentenced to mandatory life. The reason those potential jurors thought the defendant would receive a life sentence resulted from the trial court's and the state's erroneous portrayal of the law. The defendant did not object to that erroneous portrayal nor did he ask any questions regarding this issue during his questioning of potential jurors. Had he done so and had the trial court correctly instructed the jury on the law, those potential jurors who were released for cause for that reason may have been able to fairly convict the defendant as charged, knowing of the possibility of parole. Defense counsel, however, never actually made an objection on the record and never asked for a corrected instruction.

         The defendant's reply brief erroneously states the defendant asked the trial court to correctly instruct the jury on the penalty for second degree murder before the trial, and the trial court gave the wrong instruction. The record reflects no such request. The trial court again advised the jury immediately before opening statements and during jury instructions before they retired, that second degree murder carried a mandatory life sentence with no possibility for parole. The defendant entered no objection. In fact, when asked, he specifically said he had no objection to the jury instructions. As shown above, he merely argued against the state's challenges for cause.

         The reply brief further argues "all of the prospective jurors heard the wrong law, and all had to commit to following that unconstitutional law. None should have been seated in the first place. All the defendant could do was to try to remove the worst of the jurors . . . ." The defendant did not make this argument in his original appellate brief. He may not raise new arguments in his reply. Uniform Rules-Courts of Appeal, Rule 2-12.6.

         Further, the defendant used only eleven of his twelve peremptory challenges. This assignment of error does not complain that the defendant had to use his peremptory challenges in order to exclude "the worst of the jurors"; it complains that the state was allowed to remove too many jurors ...


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