STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

DOCKET NUMBER 2023 KA 0886

STATE OF LOUISIANA

VERSUS

REYHANE TYRONE McKNIGHT JUL 2 4 2024 Judgment Rendered: ____ _

ON APPEAL FROM THE T\IVENTY-SECOND JUDICIAL DISTRICT COURT, DIVISION I IN AND FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA DOCKET NUMBER 596307-1

HONORABLE REGINALD T. BADEAUX, III, JUDGE PRESIDING

Gwendolyn K. Brown Attorney for Defendant-Appellant Louisiana Appellate Project Reyhane Tyrone McKnight Baton Rouge, Louisiana

J. Collin Sims Attorneys for Appellee District Attorney State of Louisiana Butch Wilson Assistant District Attorney Covington, Louisiana

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.

GREENE, l.

The State charged the defendant, Reyhane Tyrone McKnight, with armed robbery

with a firearm ( count I), a violation of La. R.S. 14:64 and 14:64.3, and possession of a firearm by a convicted felon ( count II), a violation of La. R.S. 14:95.1. The defendant pied not guilty. After a trial, the jury found the defendant guilty as charged. The trial court

denied his motion for new trial and his motion for post verdict judgment of acquittal. The

State then filed a habitual offender bill of information as to count I, and the defendant

denied the allegations therein. After a hearing, the trial court adjudicated the defendant a

fourth-felony habitual offender and sentenced him to life imprisonment at hard labor,

without the benefit of probation or suspension of sentence on count I. As to count II, the

trial court sentenced the defendant to a concurrent sentence of 20 years imprisonment at

hard labor, without the benefit of parole, probation, or suspension of sentence and fined

him $ 1,000.00. 3 The defendant now appeals, designating five assignments of error. For

the following reasons, we affirm the convictions and habitual offender adjudication, vacate

the sentence in part, vacate an order imposing a financial obligation, and remand with

instructions.

FACTS

On October 8, 2017, at approximately 9:35 p.m., Amber Macey was working alone at

a Shell gas station in Slidell, Louisiana. While Ms. Macey was sitting behind the register, an

individual wearing a mask and carrying a gun entered the store, walked up to her, and told

her to give him the money or he would kill her. The perpetrator took all of the cash inside

the register and left the store. Ms. Macey then locked the door and called 911.

Detective Timothy Crabtree with the St. Tammany Parish Sheriff's Office reviewed

the store's surveillance footage and obtained a description of the suspect and his clothing,

The bill of information identified the predicate conviction for count II as defendant's July 31, 2008 conviction nd for simple robbery, Docket No. 435984, 22 Judicial District Court, Parish of St. Tammany, State of Louisiana.

The instant case involves a retrial. The defendant was initially found guilty as charged by a non-unanimous jury verdict. In light of Ramos v. Louisiana, 590 U.S. 83, 140 S.Ct. 1390, 206 L.Ed.2d 583 ( 2020), the trial court granted the defendant's motion to vacate sentence and motion for arrest of judgment and then granted him a new trial.

The defendant's fourth-felony habitual offender status is based on the following three prior convictions in the 22 nd Judicial District Court: ( 1) an October 27, 2006 conviction for attempted distribution of a Schedule II controlled dangerous substance, Docket No. 417749; ( 2) an August 4, 2008 conviction for simple robbery, Docket No. 435984; and ( 3) a March 24, 2011 conviction for possession of a Schedule I controlled dangerous substance, Docket No. 496971. which was determined to be a blue hoodie, black pants, American flag boxer shorts, and

black Vans shoes. Detective Crabtree also observed a customer, later identified as Thaddeus

Victor, who was in the store shortly before the robbery. When questioned by officers, Mr.

Victor stated that after he left the store, he saw the defendant outside.

Using the information obtained from the surveillance footage and Mr. Victor's

statement, Detective Crabtree obtained an arrest warrant for the defendant, as well as a

search warrant for the house where he was residing at the time. Black Vans shoes and a

firearm were recovered from the home and the defendant was wearing American flag boxer

shorts when arrested, all of which matched the suspect's attire in the surveillance footage

and corroborated Mr. Victor's statement.

COMPETENCY TO TESTIFY

In his first assignment of error, the defendant argues the trial court erred by finding Thaddeus Victor competent to testify as a witness. On February 25, 2019, before the

original trial in this matter, the defendant raised Mr. Victor's competency to testify. The trial

court held a competency hearing, determined that Mr. Victor was competent to testify, and

proceeded to trial. Later, the defendant filed a combined motion to vacate sentence and

motion for arrest of judgment pursuant to Ramos v. Louisiana, 590 U.S. 83, 140 S.Ct. 1390,

206 L.Ed.2d 583 ( 2020). The trial court granted the motions, vacated the sentence imposed,

and granted the defendant a new trial.

The defendant's second trial began on September 26, 2022, during which the

defendant did not re-urge the issue of Mr. Victor's competency before or during trial. He

now seeks review of the trial court's ruling from the first trial on Mr. Victor's competency to

testify.

Louisiana Code of Criminal Procedure article 857 provides that "[ t]he effect of

granting a new trial is to set aside the verdict or judgment and to permit retrial of the case

with as little prejudice to either party as if it had never been tried." Official Revision

In assignments of error numbers four and five, the defendant assigns error to the trial court's denial of his motions for new trial and post verdict judgment of acquittal. Other than a passing reference, the defendant failed to develop any argument in support of these assignments of error. A mere statement of an assigned error in brief without argument or citation of authority does not constitute briefing. State v. Jarvis, 2021-1181 La. App. 1 Cir. 2/25/22), 340 So.3d 1137, 1141-42. This Court may consider as abandoned any assignment of error that has not been briefed. See Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4(B)( 4).

Accordingly, we consider these assignments of error abandoned.

Comment ( a) to La. C.Cr.P. art. 857 clarifies that the article " continues the sound rule of

Art[icle] 515 of the 1928 Code of Criminal Procedure, that the slate is wiped clean when a

new trial is granted."

This concept that a new trial grants a defendant a "clean slate" is established. See

State v. Graham, 375 So.2d 374 (La. 1979) ( per curiam); State v. Lee, 346 So.2d 682, 684

La. 1977). Consistent with this concept, when a new trial is granted, both the State and

the defendant may seek to introduce new evidence not previously introduced at the

defendant's first trial. See Graham, 375 So.2d at 374; State v. Williams, 2023-0137 ( La.

App. 1 Cir. 9/15/23), 2023 WL 6001101, * 2 (unpublished), writ denied, 2023-01417 ( La.

3/12/24), 381 So.3d 54. Further, at a new trial, either party may seek to limit evidence that

was previously admitted at the first trial. See Williams, 2023 WL 6001101 at *3. As either

party may seek to introduce new evidence in a second trial, it follows that certain pretrial

evidentiary motions and rulings may be necessary. Further, when a new trial is granted, a

court is not bound by a prior pre-trial ruling or judgment rendered in connection with the

first trial. Thus, the second trial is a new and separate trial, not a later stage of the first

trial. Therefore, the "law of the case" doctrine does not apply. Williams, 2023 WL 6001101

at *2.

Herein, after being granted a new trial, the defendant did not re-urge the issue of

Mr. Victor's competency to testify. Accordingly, the defendant has failed to adequately

preserve this issue for appeal. See La. C.Cr.P. art. 841; Williams, 2023 WL 6001101 at *3.

This assignment of error is not reviewable on appeal.

LIMITATION OF CROSS-EXAMINATION AND IMPEACHMENT

In his second assignment of error, the defendant argues the trial court abused its

discretion and violated his constitutional right of confrontation by limiting his cross-

examination of and prohibiting his impeachment of Mr. Victor. 5 In all criminal prosecutions,

the accused is entitled to confront and cross examine the witnesses against him. See U.S.

The defendant references his assignments of error numbers four and five in the subtitle of his argument regarding assignment of error number two and in a single sentence at the end of that argument. However, as similarly noted in footnote 4, a mere statement of an assigned error in brief without argument or citation of authority does not constitute briefing. State v. Jarvis, 340 So.3d at 1141-42. This Court may consider as abandoned any assignment of error that has not been briefed. See Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4(6)(4). The defendant failed to develop any argument in support of assignments of error four and five. Accordingly, we consider these assignments of error abandoned.

Const. amend. VI; La. Const. art. I, §16. Cross examination is the primary means by which

to test the believability and truthfulness of testimony, and it provides an opportunity to

impeach or discredit witnesses. State v. Alexander, 2021-1346 ( La. App. 1 Cir. 7 1 / 3/22),

344 So.3d 705, 719-20, writ denied, 2022-01262 ( La. 11/8/23), 373 So.3d 62.

A party may cross examine a witness on any matter relevant to any issue in the case,

including credibility. La. C.E. art. 611(B). Generally, to attack a witness's credibility, a party

may examine him concerning any matter having a reasonable tendency to disprove the

truthfulness or accuracy of his testimony. See La. C.E. art. 607(C); State v. Robinson, 2001-

0273 ( La. 5/17/02), 817 So.2d 1131, 1135. One of the main methods of attack upon a

witness's credibility is to show a defect in his capacity to observe, remember, or recount

matters. Mental abnormality, either at the time of observing the facts or at the time of

testifying, will be provable on cross examination or by extrinsic evidence, as bearing on

credibility. Robinson, 817 So.2d at 1135.

In the instant case, the defendant sought to cross examine Mr. Victor at trial as to

his mental capacity to correctly recount the events of October 8, 2017. Specifically, the

defendant intended to impeach Mr. Victor through extrinsic evidence in the form of court

minutes from Mr. Victor's own criminal proceedings, wherein he was declared incompetent

to stand trial in 2010 and 2014. The State objected and noted the trial court had found Mr.

Victor competent to testify before the first trial, which was different from competency to

proceed in his own criminal case. The State further argued the defendant's sole purpose in

questioning Mr. Victor as to his mental capacity was to embarrass him. The defendant then

argued the evidence was admissible to show Mr. Victor's defect of capacity.

The trial court granted the State's objection, noting the State had pointed out in its

opening statement that it had a witness who was intellectually disadvantaged, and " anybody

who] has seen Mr. Victor so far, of normal comprehension, would understand that he has

to struggle to maintain focus, et cetera." The trial court further stated the evidence had no

impeachment value, because Mr. Victor had not been convicted of the offenses in his

criminal proceedings. The trial court then told the defendant he could question Mr. Victor

as to his mental competency, after which the defendant objected to the trial court's ruling

and proffered the exhibits.

On appeal, the defendant argues the trial court erred in limiting his cross examination

of Mr. Victor and in denying him the opportunity to present the proffered extrinsic evidence,

the court minutes from Mr. Victor's own criminal proceedings. He further claims the trial

court prohibited him from asking any questions to challenge Mr. Victor's competency.

Based on the record before us, we find the trial court did not abuse its discretion in

finding the extrinsic evidence inadmissible. As stated, a party may attack a witness's

credibility to show a defect in capacity, either through cross examination or extrinsic

evidence. See La. C.E. arts. 607(C) and ( D)(l); Robinson, 817 So.2d at 1135. However,

generally, only offenses for which the witness has been convicted are admissible upon the

issue of his credibility, and no inquiry is permitted into matters for which there has only

been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an

acquittal. La. C.E. art. 609.l(B). Because Mr. Victor was not convicted of the offenses with

which the defendant attempted to impeach his credibility, the evidence was inadmissible.

Therefore, the trial court properly excluded the evidence.

Furthermore, we agree the defendant was allowed to cross examine Mr. Victor as to

his mental competency. Contrary to the defendant's assertion, the trial court did not limit

his cross examination of Mr. Victor; the trial court merely precluded him from introducing

the extrinsic evidence of Mr. Victor's prior criminal proceedings as a means of impeachment.

The trial court specifically noted the defendant could still ask questions regarding Mr. Victor's

competency, such as his level of education. Nevertheless, after the defendant proffered the

exhibits and resumed questioning, he did not ask any questions regarding Mr. Victor's mental

competency. Therefore, we conclude the trial court did not limit the defendant's cross

examination. This assignment of error is without merit.

PROHIBITION OF IMPEACHMENT

In his third assignment of error, the defendant argues the trial court erred in

prohibiting him from impeaching Detective Crabtree. 6

In prohibiting the defense from impeaching Detective Crabtree, the defendant argues the trial court further erred in denying his motion for new trial ( assignment of error number four) and his motion for post-verdict judgment of acquittal ( assignment of error number five). However, as previously noted, the defendant did not raise these issues before the trial court in either motion. A new basis for objection cannot be raised for the first time on appeal. La. C.Cr.P. art. 841; Creel, 2014 WL 7332121 at *4. Therefore, these assignments of error are not properly before this Court.

At trial, the defendant sought to cross examine Detective Crabtree regarding a

statement Ms. Macey made to him during an interview. The defendant asked Detective

Crabtree whether he recalled Ms. Macey stating an individual named Doug was acting

suspicious, to which Detective Crabtree testified he did not remember. The defendant then

attempted to impeach Detective Crabtree's testimony via the interview to show Ms. Macey

identified a man named Doug and stated she could not rule him out as the perpetrator of

the robbery. The State objected and argued the defendant was not trying to impeach

Detective Crabtree but, rather, Ms. Macey, who had testified before Detective Crabtree. The

trial court then granted the objection.

After a thorough review of the record, we find the defendant failed to adequately

preserve this issue for appeal. To preserve the right to seek appellate review, a party must

state an objection contemporaneously with the occurrence of an alleged error, as well as

the grounds for that objection. See La. C.Cr.P. art. 841(A). Further, to preserve the right

to appeal a trial court ruling that excludes evidence, a defendant must make the substance

of the evidence known to the trial court. See La. C.E. art. 103(A)(2). Herein, after the trial

court granted the State's objection, the defendant did not object to the trial court's ruling

prohibiting his impeachment of Detective Crabtree, nor did he proffer the evidence at

issue. Accordingly, the defendant has waived review of any alleged error due to his failure

to contemporaneously object. See State v. Lobato, 603 So.2d 739, 748-49 (La. 1992); State

v. Daigle, 2013-1588 (La. App. 1 Cir. 3/21/14), 2014 WL 1167137, * 2 (unpublished). This assignment of error is not reviewable on appeal.

PATENT ERROR

Pursuant to La. C.Cr.P. art. 920(2), this Court routinely conducts a review of all

appeals for error discoverable by mere inspection of the pleadings and proceedings and

without inspection of the evidence. State v. Anthonr, 2023-0117 (La. App. 1 Cir. 11/3/23),

378 So.3d 766, 775. After a careful review of the record, we have found three patent errors.

As to count I, armed robbery with a firearm, the trial court sentenced the defendant

to life imprisonment at hard labor, without the benefit of probation or suspension of

sentence, pursuant to the defendant's adjudication as a fourth-felony habitual offender.

However, when the dangerous weapon used in the commission of an armed robbery is a

firearm, La. R.S. 14:64.3(A) requires that the trial court impose an additional consecutive

sentence of five years at hard labor, without benefit of parole, probation, or suspension of

sentence. A defendant convicted of armed robbery and sentenced under the Habitual

Offender Law remains subject to the additional five-year penalty for using a firearm in an

armed robbery. See State v. King, 2006-1903 (La. 10/16/07), 969 So.2d 1228, 1232; State

v. Bonit, 2005-0795 ( La. App. 1 Cir. 2/10/06), 928 So.2d 633, 642-43, writ denied, 2006- 1211 ( La. 3/16/07), 952 So.2d 688. In this case, the trial court did not further enhance the

defendant's habitual offender sentence under La. R.S. 14:64.3, and, therefore, the

defendant's sentence is illegally lenient. However, neither the defendant nor the State

raised this issue on appeal, and this lack of enhancement is not prejudicial to the defendant.

Therefore, we decline to correct this error. See State v. Bunch, 2012-0431 ( La. App. 1 Cir.

2/22/13), 2013 WL 675542, * 1, n.4 (unpublished), writ denied, 2013-0632 (La. 10/11/13),

123 So.3d 1217.

On count II, possession of a firearm by a convicted felon, the trial court imposed a

mandatory fine of $1,000. See La. R.S. 14:95.l(B). And, at an earlier hearing, on the

State's motion, and pursuant to La. C.Cr.P. art. 887, the trial court also ordered the

defendant to pay $835.80 in costs incurred by the State for bringing an out-of-town witness

to trial. However, before imposing the $1,000 fine and ordering the $835.80 cost payment,

the trial court did not conduct a hearing under La. C.Cr.P. art. 875.1, which deals with the

trial court's imposition of fines, fees, and restitution as part of sentencing. Louisiana Code

of Criminal Procedure article 875. l(C) pertinently states:

1) Notwithstanding any provision of law to the contrary, prior to ordering the imposition or enforcement of any financial obligations as defined by this Article, the court shall conduct a hearing to determine whether payment in full of the aggregate amount of all the financial obligations to be imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents ....

2) The defendant or the court may waive the judicial determination of a substantial financial hardship required by the provisions of this Paragraph. If the court waives the hearing on its own motion, the court shall provide reasons, entered upon the record, for its determination that the defendant is capable of paying the fines, fees, and penalties imposed without causing a substantial financial hardship.

Louisiana Code of Criminal Procedure article 875.l(B) defines "financial obligations"

as " any fine, fee, cost, restitution, or other monetary obligation authorized by this Code or

by the Louisiana Revised Statutes of 1950 and imposed upon the defendant as part of a

criminal sentence, incarceration, or as a condition of the defendant's release on probation

or parole." In the instant case, the trial court did not conduct a hearing to determine whether

the aggregate amount of all financial obligations (the $1,000 fine and $ 835.80 cost payment)

would cause substantial financial hardship to the defendant or his dependents, nor did it

waive judicial determination of such. Further, the defendant did not explicitly or implicitly

waive his right to a hearing. While this requirement is relatively new, becoming effective

August 1, 2022, La. C.Cr.P. art. 875.1 is clear that a trial court must conduct a hearing prior

to imposing any fine, fee, cost, restitution, or other monetary obligation as part of the

defendant's sentence. Because the trial court failed to comply with La. C.Cr.P. art. 875.1,

we vacate the fine and cost payment imposed on the defendant and remand the case to the

trial court for a hearing in compliance with La. C.Cr.P. art. 875.1 and for resentencing.

Accord State v. Tucker, 2022-735 ( La. App. 3 Cir. 5/31/23), 368 So.3d 187, 199-202; and

State v. Gant, 54,837 (La. App. 2 Cir. 1/11/23), 354 So.3d 824, 832.

Finally, the trial court incorrectly advised the defendant that the time period for filing

an application for post conviction relief was three years from the time his sentence becomes

final.7 However, a defendant generally has two years "after the judgment of conviction and

sentence has become final" to seek post conviction relief. La. C.Cr.P. art. 930.8(A).

Nevertheless, the trial court's failure to correctly advise the defendant of the prescriptive

period has no bearing on the sentence and is not grounds to reverse the sentence or remand

for resentencing. Further, there is no remedy for an individual defendant who is not told of

the limitations period. Accordingly, we decline to remand for resentencing for this error.

See State v. LeBoeuf, 2006-0153 (La. App. 1 Cir. 9/15/06), 943 So.2d 1134, 1142-43, writ

denied, 2006-2621 ( La. 8/15/07), 961 So.2d 1158. Out of an abundance of caution and in

the interest of judicial economy, we advise the defendant that La. C.Cr.P. art. 930.8

generally provides that no application for post conviction relief, including applications which

seek an out-of-time appeal, shall be considered if filed more than two years after the

While the minutes are silent, the transcript reflects the trial court advised the defendant of the three-year time period as noted. When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). judgment of conviction and sentence have become final under the provisions of La. C.Cr.P.

arts. 914 or 922. Id. at 1143.

CONCLUSION

For the foregoing reasons, we affirm the defendant's convictions and habitual

offender adjudication. We affirm his sentence on count I. We affirm his sentence on count

II insofar as it sentences him to a concurrent 20 year imprisonment at hard labor, without

the benefit of parole, probation, or suspension of sentence. We vacate his sentence on

count II insofar as it included the imposition of a $1,000 fine without a hearing to determine

if the fine would impose a substantial hardship. We also vacate the order requiring the

defendant to pay $ 835.80 in costs to the State. We remand this matter to the trial court for

a hearing in compliance with La. C.Cr.P. art. 875.1 and for resentencing on count II.

CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE ON COUNT I AFFIRMED; SENTENCE ON COUNT II AFFIRMED IN PART, AND VACATED IN PART; FINANCIAL OBLIGATION IMPOSED PURSUANT TO LOUISIANA CODE OF CRIMINAL PROCEDURE ARTICLE 887 VACATED; REMANDED FOR HEARING IN COMPLIANCE WITH LOUISIANA CODE OF CRIMINAL PROCEDURE ARTICLE 875.1 AND FOR RESENTENCING AS TO COUNT II.