FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. CR 145966 HONORABLE DAVID MICHAEL SMITH,
Annette Fuller Roach Louisiana Appellate Project COUNSEL FOR
DEFENDANT/APPELLANT: Kevin James Alexander
Honorable Keith A. Stutes Lafayette Parish District Attorney
COUNSEL FOR APPELLEE: State of Louisiana
Michele S. Billeaud Attorney at Law COUNSEL FOR APPELLEE:
State of Louisiana
composed of Billy Howard Ezell, Shannon J. Gremillion, and D.
Kent Savoie, Judges.
KENT SAVOIE JUDGE.
Kevin James Alexander a/k/a Kevin J. Alexander a/k/a James K.
Alexander a/k/a Kevin Alexander, Jr., was found guilty, after
a trial by jury, of one count of aggravated flight from an
officer, a violation of La.R.S. 14:108.1(C), and one count of
aggravated criminal damage to property, a violation of
La.R.S. 14:55. Defendant now appeals his convictions. For the
following reasons, we affirm Defendant's convictions.
AND PROCEDURAL HISTORY
April 22, 2014, the Defendant fired several shots into a home
occupied by thirteen people, which included his four
children. He later led police on a highspeed chase
originating in Lafayette and ending in Calcasieu Parish.
was charged by bill of information filed on June 12, 2014,
with thirteen counts of attempted first degree murder,
violations of La.R.S. 14:27 and La.R.S. 14:30, and one count
of aggravated flight from an officer, a violation of La.R.S.
14:108.1(C). The State amended the bill of information on
April 19, 2017, to add the charge of aggravated criminal
damage to property, a violation of La.R.S. 14:55.
9, 2017, the State severed all thirteen counts of attempted
first degree murder and proceeded to trial by jury on the
charges of aggravated flight from an officer and aggravated
criminal damage to property. The jury found Defendant guilty
of both counts on May 12, 2017. On July 19, 2017, all
thirteen counts of attempted first degree murder were
dismissed by the State.
was held on August 28, 2017. At that time, Defendant was
ordered to serve twelve years at hard labor for aggravated
criminal damage to property. His sentence for aggravated
flight from an officer is unclear. The trial court ordered
the sentences to be served concurrently.
motion for appeal was filed on September 5, 2017, and
subsequently granted by the trial court. On September 6,
2017, Defendant filed a pro se motion for appeal, and that
motion was also granted. Defendant is now before this court
asserting two assignments of error: 1) the evidence is
insufficient to prove beyond a reasonable doubt all of the
elements of the charged offenses; and 2) the trial court
erred in denying the motion for mistrial made on behalf of
the Defendant following the State's opening statement.
For the following reasons, Defendant's convictions are
accordance with La.Code Crim.P. art. 920, all appeals are
reviewed for errors patent on the face of the record. After
reviewing the record, we find two errors patent present.
Defendant received an indeterminate sentence for aggravated
flight from an officer, a violation of La.R.S. 14:108.1.
Louisiana Revised Statutes 14:108.1 provides that a defendant
shall be imprisoned at hard labor for not more than two years
and may be fined not more than two thousand dollars.
Defendant's second conviction was for aggravated criminal
damage to property, a violation of La.R.S. 14:55. That
statute provides that a defendant shall be fined not more
than ten thousand dollars, imprisoned with or without hard
labor for not less than one nor more than fifteen years, or
imposing Defendant's sentences, the judge stated:
THE COURT: Twelve years at hard labor for aggravated flight
from an officer, and you shall be imprisoned at hard labor
for not more than two years and may be fined not more than
$2, 000. With that, he will do a maximum of two years under
1455[sic]. For aggravated criminal damage to property he
shall be fined not more than $10, 000 and imprisoned with or
without hard labor for not less than one nor more than
fifteen years or both for that crime.
. . . .
THE COURT: And it shall be twelve years at hard labor, both
of which shall run concurrent.
appears that the court imposed a twelve-year hard labor
sentence for aggravated criminal damage to property after
stating the penalty range for that offense as provided in
La.R.S. 14:55. However, Defendant's sentence for
aggravated flight from an officer is unclear. Louisiana Code
Article 879 requires the imposition of a determinate
sentence. Accordingly, the sentence for aggravated flight
from an officer is vacated, and the case is remanded for
resentencing on that conviction.
the record before this court does not indicate that the trial
court advised Defendant of the prescriptive period for filing
post-conviction relief as required by La.Code Crim.P. art.
930.8. Thus, the trial court is directed to inform Defendant
of the provisions of Article 930.8 at resentencing. II.
Assignment of Error Number One
first assignment of error, Defendant contends the evidence
admitted at trial was insufficient to prove beyond a
reasonable doubt all of the elements of the charged offenses.
Defendant argues that the State failed to prove his identity
as the shooter who committed aggravated criminal damage to
property and the elements of aggravated flight from an
When reviewing the sufficiency of the evidence to support a
conviction, Louisiana appellate courts are controlled by the
standard enunciated by the United States Supreme Court in
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). See State v. Captville, 448
So.2d 676, 678 (La.1984). That standard dictates that to
affirm the conviction the appellate court must determine that
the evidence, viewed in the light most favorable to the
prosecution, was sufficient to convince a rational trier of
fact that the State proved all elements of the crime beyond a
reasonable doubt. State v. Johnson, 03-1228, p. 4
(La.4/14/04), 870 So.2d 995, 998; Captville, 448
So.2d at 678. Further, when the conviction is based on
circumstantial evidence, La. R.S. 15:438 sets forth the rule
that "assuming every fact to be proved that the evidence
tends to prove, in order to convict, [the circumstantial
evidence] must exclude every reasonable hypothesis of
innocence." However, La. R.S. 15:438 does not establish
a stricter standard of review than the more general rational
juror's reasonable doubt formula; rather it serves as a
helpful evidentiary guide for jurors when evaluating
circumstantial evidence. State v. Toups, 01-1875, p.
3 (La.10/15/02), 833 So.2d 910, 912; State v. Chism,
436 So.2d 464, 470 (La.1983). When evaluating circumstantial
evidence, the trier of fact must consider
the circumstantial evidence in light of the direct evidence,
and vice versa, [and] the trier of fact must decide what
reasonable inferences may be drawn from the circumstantial
evidence, the manner in which competing inferences should be
resolved, reconciled or compromised; and the weight and
effect to be given to each permissible inference. From facts
found from direct evidence and inferred from circumstantial
evidence, the trier of fact should proceed, keeping in mind
the relative strength and weakness of each inference and
finding, to decide the ultimate question of whether this body
of preliminary facts excludes every reasonable hypothesis of
innocence. Chism, 436 So.2d at 469.
Finally, constitutional law does not require the reviewing
court to determine whether it believes the witnesses or
whether it believes that the evidence establishes guilt
beyond a reasonable doubt. State v. Mussall, 523
So.2d 1305, 1309 (La.1988). Rather, the fact finder is given
much discretion in determinations of credibility and
evidence, and the reviewing court will only impinge on this
discretion to the extent necessary to guarantee the
fundamental protection of due process of law.
Johnson at pp. 4-5, 870 So.2d at 998; Toups
at p. 3, 833 So.2d at 912.
State v. Major, 03-3522, pp. 5-7 (La. 12/1/04), 888
So.2d 798, 801-02 (alterations in original).
Britney Ardoin testified that, as the result of two 911 calls
placed on April 22, 2014, she was dispatched to the 100 block
of Newport Street. The calls were received from a cell phone
that was pinging off a cell tower in that general area. The
male caller identified himself as Kevin Alexander. The man
was crying and said he was tired and somebody was going to
die. Corporal Ardoin testified that Defendant also said,
"'What if I kill some kids, then y'all are gonna
[sic] hear me, and I will show you how dangerous I can
be.' 'Y'all will be too late, because y'all
are always late.' 'Shots fired, multiple people
down.'" As a result of the calls, police canvased
an hour after the 911 calls, Corporal Ardoin was dispatched
to 515 Orchid Drive in relation to shots being fired. That
call also concerned Kevin Alexander. The cell tower used to
make the previous two 911 calls was less than one mile from
the Orchid Drive residence.
the residence, Corporal Ardoin saw bullet holes on the
exterior of the home near two bedrooms. Corporal Ardoin
believed six rounds were found in the master bedroom, where
Robert and Margaret Bob had been sleeping. Four bullets
entered a second bedroom. Four people had been sleeping
therein, including three of Defendant's children.
shooter was not present when police arrived, and police found
nothing on the ground outside the home that indicated who the
perpetrator was. Additionally, there was no video
surveillance. As a result of information provided by the
victims, police later went to an address in the 2200 block of
Ardoin was questioned about the bedroom shown in State's
Exhibit 4, which depicted what looked like a blanket of some
sort on the window of the second bedroom. When asked whether
it looked "like it's kind of taped or tied down,
maybe," Corporal Ardoin responded, "Yes." She
then indicated that there may have been a sheet over the
window. Corporal Ardoin indicated the master bedroom also had
a sheet over the window.
Ardoin testified that there were periodically random
shootings in the neighborhood.
Thaddeus Sices was also dispatched to 515 Orchid Drive. Upon
his arrival, he was met by Corporal Ardoin. Sergeant Sices
found thirteen .45 caliber spent shell casings approximately
three to six feet away from the residence outside the two
bedrooms. Four spent .45 caliber rounds were found inside the
Sices was shown Defense Exhibits 2 and 3, which were
photographs taken inside the master bedroom depicting various
items on the floor and the bed and the window coverings. He
took the photographs before anything inside the room was
moved. Things were subsequently moved so police could look
for spent rounds. He did not attempt to look out the window
of the master bedroom.
Sices testified that the yard at the residence was "a
little dark." He did not know the proximity of the
closest street light and did not see a porch light.
Sices indicated that police got calls regarding gunfire in
the neighborhood, which involved "shooting in the air or
something like that."
Asher Reaux was also dispatched to respond to the Newport
Street area regarding suspicious circumstances. His testimony
regarding the statements made by a caller stating he was
Kevin Alexander confirmed the testimony of Corporal Ardoin.
Officer Reaux indicated those calls came from phone number
later responded to a call from 515 Orchid Drive. The caller
stated that Kevin Alexander was in the backyard shooting at
the house. Upon his arrival, Officer Reaux observed bullet
holes to the residence. He was informed that the shooter was
in a black truck registered to one of the victims. Police
were then given the name of the street on which the suspected
shooter's mother lived.
Reaux subsequently asked dispatch to patch him through to the
cell phone number from which the first two 911 calls were
made. Defendant answered the call, and Officer Reaux asked
Defendant to meet him at the police department. Defendant
initially agreed but called back to report that he would not
show up. During those calls, Defendant was upset and angry
and mentioned a situation with his kids. Officer Reaux
subsequently went to the Moss Street address. Officer Reaux
saw a black truck that was registered to one of the victims
in the driveway of the Moss Street address. Officer Reaux
parked a street over and subsequently saw the truck leave the
Reaux and Eaton pursued the truck in patrol units, which were
marked with the word "Police", with their emergency
lights and sirens activated. As Officer Eaton was pursuing
Defendant, he informed dispatch that: "he was driving in
excess of 100 as he was headed towards Pont de Mouton. And he
advised that, I think he ran the red light at Moss and Ponte
de Mouton as they turned left on Pont de Mouton to go towards
the Thruway." Officer Eaton followed Defendant to Pont
de Mouton, at which time Officer Reaux caught up with them.
Defendant drove over 100 miles per hour on Moss Street, and
the posted speed limit was believed to be 40 miles per hour.
From Pont de Mouton, Defendant turned onto the Thruway,
driving toward Interstate 10. At that time, Officer
Eaton's vehicle overheated. Defendant subsequently turned
onto Interstate 10 and headed west, with only Officer Reaux
pursuing him. Dispatch subsequently contacted Officer Reaux
and informed him that Defendant called and stated, "if
we don't stop chasing him, he's going to kill
somebody with his truck, he's going to run somebody off
the road, he's going to kill himself." Defendant
also stated that his children were with him, and "he was
going to wreck the truck and kill them" if police did
not stop chasing him.
Reaux further testified that during the chase, Defendant
would "stop really hard trying to get me to rear-end
him," and he would take off again. The Defendant was
also running cars off the road. Officer Reaux stated that
Defendant "was swerving from lane to lane going off the
road on both sides and the cars were, you know, going off in
the median to avoid him as he was coming up behind
them." Defendant was driving over 100 miles per hour at
that time. Officer Reaux testified that when Defendant stated
he was going to kill someone, "that's when he
started going towards other drivers and, you know, they were
pulling off the road to get away from him." The chase
finally ended in Iowa in Calcasieu Parish after State Police
laid out spike strips that blew Defendant's tires.
truck was searched after Defendant was arrested, and police
found an empty .45 caliber pistol magazine on the floorboard
of the driver's side. However, the clip was not mentioned
in Officer Reaux's report.
cross-examination, Officer Reaux indicated there were no red
lights between Moss Street and Interstate 49. However, there
was one at Interstate 49. There were also no red lights
between I-49 and Calcasieu Parish. There were no stop signs
on the route either. Officer Reaux's report stated
Defendant was swerving toward other vehicles but did not
state other vehicles ran off the road due to Defendant's
actions. He testified that he thought he wrote Defendant
"swerved violently towards other vehicles." He
further testified, "They went off to the side of the
road, pulled off into the median some of them, just went off
the roadway on both sides to get out of the way."
Reaux indicated that the cell phone used by Defendant was
registered to Latonya Johnson.
Kurowski, an employee of the Acadiana Criminalistics
Laboratory, was accepted as an expert in forensic DNA
analysis as a forensic chemist. Kurowski tested a swab taken
from the bottom of the magazine found inside the truck. A
partial DNA profile was found on the swab, and Kurowski
concluded, in the absence of identical twins, that Defendant
was the source of the partial profile. She was at least 99.9
percent certain that this DNA profile would not be seen in a
sample of 300 million selected unrelated individuals. She was
also 99.9 percent certain Defendant could not be excluded as
a possible source of the partial profile.
Bob testified that Defendant had previously lived with her
family for a year and dated her daughter Teesha. However, he
was not living with them at the time of the offenses. Teesha
had four children with Defendant.
April 22, 2014, Margaret was awakened by gunfire and bullets
entering her bedroom. Her son Kenneth came into her room to
ask if she and her husband were okay, and he peeped through
the window and looked outside. Margaret did not see who fired
the shots. Margaret indicated that the room in which her
daughter Teesha and her children were sleeping was
Kenneth's room. Margaret stated Defendant had passed in
front of her ...