State v. Warner

¶1Defendant, Tyrone Warner1 (hereinafter referred to as "Defendant"), appeals the jury's verdict finding him guilty of aggravated rape2 and aggravated kidnapping and the district court's March 15, 2018 judgment sentencing him to life imprisonment, without benefit of parole, probation, or suspension of sentence on both counts. Defendant also appeals the district court's judgment assessing prosecution costs and court costs against him in the amount of $ 57,387.00. For the reasons that follow, we affirm, in part, and reverse, in part.

¶2STATEMENT OF THE CASE

¶3On October 27, 2011, Defendant was indicted on one count of aggravated kidnapping, in violation of La. R.S. 14:443 and *76one count of aggravated rape, in violation of La. R.S. 14:424 for the kidnapping and rape of the victim, V.P. (hereinafter referred to as "V.P."),5 that occurred on January 31, 1990. Defendant entered a plea of not guilty. On June 12, 2014, Defendant appeared for a Quatrevingt hearing to challenge the admissibility of the DNA evidence6 , which the district court denied and allowed the introduction of the DNA evidence by the State of Louisiana ("the State"). Thereafter, the State noticed its intent to introduce evidence under La. C.E. art. 412.2,7 which the district court granted. In response, Defendant filed a writ application for supervisory review of the district court's ruling. Both this Court and the Louisiana Supreme Court denied Defendant's writ applications. State v. Warner , 2016-0339, p. 1 (La. App. 4 Cir. 5/18/16), writ denied , 2016-1154 (La. 10/10/16), 207 So. 3d 404.

¶4The jury trial commenced on December 4, 2017, and on December 6, 2017, the jury returned a ten-to-two verdict finding Defendant guilty on both counts of aggravated kidnapping and aggravated rape. On January 26, 2018, the district court denied *77Defendant's motion for a new trial. On March 15, 2018, the district court sentenced Defendant to life imprisonment without the benefit of parole, probation, or suspension of sentence on both counts with credit for time served. The district court also assessed prosecution costs and court costs against Defendant in the amount of $ 57,387.00. Defendant now files this appeal and asserts five (5) assignments of error.

¶5STATEMENT OF FACTS

¶6On January 31, 1990, V.P. was walking home with her infant son on Annunciation Street near the St. Thomas Housing Development in New Orleans, when she was approached by a black male suspect in a vehicle. The suspect brandished a gun and ordered V.P. and her son into the vehicle. The suspect then drove V.P. and her son to the nearby park and forced her to perform oral sex on him. Subsequently, the suspect vaginally raped V.P. After the incident, V.P. underwent a rape examination. The male's DNA produced from the examination was then uploaded to the Combined DNA Index System ("CODIS").

¶7Officer Derrick Williams

¶8At Defendant's trial, the State called Officer Derrick Williams ("Officer Williams"), of the New Orleans Police Department ("NOPD") Sex Crimes Unit, as its first witness to testify to the "other crimes" evidence.8 On direct examination, Officer Williams testified that there was a call of attempted aggravated rape, during the early morning hours of November 2010, at the intersection of Broad Street and Washington Avenue. He explained that he was not the responding officer; however, he had an opportunity to interview the victim at NOPD's office. Based on the information provided during that interview, he was able to obtain an arrest warrant for Defendant, for the charge of attempted forcible rape.

¶9On cross-examination, Officer Williams confirmed that he was made aware of the tenant-landlord relationship between the victim and Defendant. Officer Williams denied knowledge of communications between the parties regarding an invitation for Defendant to come to the victim's apartment for dinner in exchange for rent payment.9 Officer Williams also confirmed that there was no physical evidence or sexual assault kit available to corroborate the victim's allegations.10 However, on re-direct examination, Officer Williams recounted that the victim seemed very matter of fact while explaining the incident. Additionally, he testified that the victim stated there was no penile-vaginal penetration, but Defendant's penis did touch her vagina.

¶10Gina Pineda Murphy

¶11The State's next witness was Gina Pineda Murphy ("Ms. Murphy"), a DNA consultant with a specialty in forensic human DNA testing. Ms. Murphy was formerly *78employed by ReliaGene Technologies ("ReliaGene"), the testing company that received V.P.'s rape kit in May 2005. Ms. Murphy explained that ReliaGene was contracted with the NOPD Crime Laboratory in 2005 to test the backlog of rape kit cases. All of the rape kits that tested positive for seminal fluid were analyzed to obtain DNA profiles. She explained the document handling, standard operating procedure, and testing protocols employed to ensure the integrity of DNA samples and reliability of results. She stated that once the integrity of the samples was determined to be adequate, the samples were assigned a case number and logged into a computer database.11 She explained that those procedures and protocols were properly followed to ensure that the integrity of DNA samples had not been compromised.

¶12She recalled the rape kit, in the present case, contained two samples: (1) an intimate swab from the victim and (2) a victim-known blood stain card, which were tested by two independent analysts. From these results, a report was generated that included the summary of ReliaGene's findings. The initial report was issued in September of 2005. Ms. Murphy recounted that, while Hurricane Katrina ("Katrina") occurred in August of 2005, the laboratory neither received any water damage, nor were any of the samples housed in that facility damaged or harmed.12 She also recounted that the testing of the DNA samples in this case were performed prior to Katrina, and only the generation of the data analysis and final report was needed after Katrina.

¶13Ms. Murphy then explained the DNA test results, asserting that a male DNA profile was developed from the testing of the vaginal swab obtained during V.P.'s rape examination.13 She further explained that, at the time of testing, the donor's identity could not be determined because there were no known samples in CODIS to compare; thus, the profile was uploaded in CODIS to await "a hit." To qualify the integrity of the male DNA profile developed in this matter, Ms. Murphy indicated that the DNA sample tested was neither "contaminated" nor "degraded."14

¶14On cross-examination, Ms. Murphy testified as to the chain of custody of the DNA

¶15*79samples received from V.P.'s rape examination. She indicated that they received the DNA samples from NOPD's Crime Lab, and once it was at the facility, there was an internal chain of custody followed in handling the samples. Defendant indicated that the chain of custody document, introduced as Defense Exhibit 1, did not indicate that the DNA samples were transferred from NOPD's Crime Lab to ReliaGene's facility. To contest this assertion, Ms. Murphy indicated the signature of the agent who transferred the samples was evidenced on the document, even though she admitted the document did not evince the term "transfer" on its face.

¶16On redirect examination, Ms. Murphy indicated that the chain of custody document introduced is a three-page document that contains different rows or lines utilized to document the transfers of the DNA samples. She urged that the documents indicate that the DNA samples were transferred and evinces the time and the agent who completed the transfer.

¶17V.P.

¶18V.P. testified that, on the night of the incident, she was playing cards, with her infant son, at a friend's residence in the St. Thomas Housing Development. At the end of the night, she decided to find the nearest pay phone to call for a ride home because it was very late.15 As she waited at the pay phone, a vehicle pulled up. The suspect brandished a gun and ordered her to "get in." She testified that, once she got into the vehicle, the suspect attempted to force her to perform oral sex. Her infant son, who had been placed in the backseat, was incessantly crying and trying to get in the front seat with her. However, she testified that the driver continuously knocked him down over the seat. The suspect then drove V.P. and her son to a nearby park, where he ordered her to get out of the vehicle. However, due to her son's crying, he brought her back to the vehicle. Once back inside of the vehicle, the suspect ordered her to perform oral sex on him and then vaginally raped her. After the incident was over, the suspect dropped V.P. and her son off on a corner and ordered them out of the vehicle. It was at this time that V.P. used a phone to call her mother to inform her of the rape. V.P. testified that her mother picked her up and drove her to the police station. From there, she was transported to a hospital to receive a rape examination where a vaginal swab was taken.16

¶19V.P. testified that, at that time, she could not provide an accurate description of her attacker because it was dark outside. However, sometime later, she contacted the police to identify a suspect she believed to be her attacker based on a conversation she had with her former boyfriend.17 Based on the description of the man provided by her former boyfriend, she identified her attacker as August Quinn ("Mr. Quinn").18 Subsequently, V.P. decided not to move forward with prosecuting because she was unsure of the identification. 19

¶20*80After the dismissal of the case against Mr. Quinn, V.P.'s case became a cold case.

¶21V.P. testified that a few years ago, she was contacted by a Detective, who notified her that Defendant was her attacker based on DNA evidence obtained from CODIS.20 She informed the Detective that she neither knew Defendant, nor did she ever have a consensual sexual relationship with him. At trial, she maintained that she did not know him and could not make an identification.21

¶22On cross-examination, V.P. recalled that she gave the police the following description of her attacker: a black male with a mustache, about 5'8?-5'9? and approximately 160-180 pounds. She further admitted that she initially identified someone else as her attacker. However, she recounted that she "had a change of heart" in moving forward with the prosecution due to uncertainty surrounding the identification. Again, the defense asked if V.P. knew Defendant, which she vehemently denied.

¶23On re-direct examination, V.P. stated that it was not until her name was revealed in opening statements that Defendant asserted a story that her sister testified on Defendant's behalf in an unrelated criminal matter.22 V.P. also urged that her purpose for testifying in this matter was to prevent a crime, of this degree, from being committed against another person.

¶24Dr. David Ross

¶25The State called Dr. David Ross ("Dr. Ross") as its next witness. Dr. Ross, an Emergency physician, performed V.P.'s rape examination on the night of January 31, 1990. Dr. Ross explained that he was an emergency medicine resident at Charity Hospital at that time. One of his duties included performing examinations, documenting physical evidence, and collecting evidence of patients who presented as victims of sexual assault; thus, he was the doctor who received V.P. upon her arrival at the hospital and generated her sexual assault evaluation report.23 He memorialized that V.P. provided a statement that she was "forced at gunpoint in a car and raped vaginally and orally multiple times." Further, he indicated V.P. had not showered or douched prior to the examination.24

¶26*81He also referenced that the document indicated that V.P. was "aloof but cooperative, distant" during the evaluation, which he stated is not an uncommon response of sexual assault victims. He also documented that V.P.'s underwear had been torn and that the examination revealed that V.P. possibly had body fluid on her "right buttocks."25 Dr. Ross testified that V.P. did not exhibit any signs of intoxication. Moreover, he indicated that sperm was found in V.P.'s vagina, but no evidence of any physical injuries. However, he indicated that the lack of physical injuries is not a dispositive factor that negates a sexual assault occurred. He explained that it is not uncommon that the vagina of a victim does not evince trauma due to the organ's resilience, especially if a victim has given birth. Lastly, V.P.'s clothing, along with the vaginal swabs from the examination, was collected, packaged, and sealed and turned over to NOPD.26

¶27Sergeant Francis Jarrott

¶28The State then called Sergeant Francis Jarrott ("Sgt. Jarrott") of NOPD's Cold Case Sex Crime Unit to testify. He explained that he became involved with the instant case upon receipt of the CODIS match notification letter27 in 2011 indicating a DNA match between a sexual assault investigation and Defendant. After receiving this notification, he applied for a search warrant to obtain a buccal swab from Defendant to confirm the CODIS match with the Louisiana State Police Crime Lab ("the State Police"). In May of 2011, a buccal swab of the inner cheek of Defendant's mouth was obtained and mailed to the State Police for confirmation. In October of 2011, the State Police confirmed that the DNA obtained from Defendant's buccal swab matched the DNA profile from V.P.'s rape kit. Sgt. Jarrott also noted that the State Police provided a crime lab report that provided a statistical analysis of the DNA profile. He provided the report which indicated that the chance of another person with the exact same DNA profile as the one contained in V.P.'s rape kit was 1 in 8.5 billion.28

¶29Anne Montgomery

¶30Next, the State called Ms. Anne Montgomery ("Ms. Montgomery"), who was *82qualified by the district court as an expert in the field molecular biology and DNA analysis. She was employed by the NOPD Crime Lab from 2001 until 2007. She provided that she was hired as a professional contractor by the City of New Orleans and tasked with setting up a DNA lab in NOPD's Crime Lab. She described the process in which DNA profiles are indexed from the local and state levels to the federal combined DNA index system, which is CODIS.29

¶31She noted that the federal government had concerns about the volume of sexual assault kits throughout the United States that had not been analyzed or processed due to personnel shortages. Thus, in response, the National Institute of Justice developed a grant program to provide states with funding to reduce the volume of sexual assault backlog kits. Using these federal grant funds, Ms. Montgomery was able to pay private labs to process NOPD's backlogged rape kits. She recounted that this project began in 2003 and NOPD used two labs to process these kits. ReliaGene was the primary lab NOPD utilized.

¶32As it relates to the instant matter, Ms. Montgomery discussed the samples retrieved from V.P., testifying to the procedures employed by the NOPD Crime Lab in verifying the results from the raw data. Ms. Montgomery also provided insight as to the procedures utilized to ensure that the proper protocols were followed by ReliaGene. She recalled that the male DNA profile obtained from V.P.'s vaginal swabs were uploaded in CODIS in 2010.

¶33Further, she documented the general chain of custody of transferring DNA samples from NOPD Crime Lab to ReliaGene, noting that when a sample was relinquished from one lab to another, there was always documentation of who relinquished it and who received it. In this case, V.P.'s vaginal swabs were transferred by NOPD to ReliaGene prior to the occurrence of Hurricane Katrina, and noted that the swabs remained in the custody of ReliaGene until the NOPD Crime Lab was operational following the storm.30 ReliaGene processed and signed off on this case in September 2005. The information was in the CODIS database from 2006 until 2011 when the DNA profile was matched to Defendant. Moreover, Ms. Montgomery opined, from the statistical data provided in the DNA profile issued by the State Police, that "to a reasonable degree of scientific certainty and to the exclusion of others, barring an identical twin, that [Defendant was] the donor of that profile."31

¶34Phillip Simmers

¶35Phillip Simmers ("Mr. Simmers"), a DNA analyst at the Louisiana State Crime Lab, was also called by the State to testify. Mr. Simmers, qualified by the court in *83DNA analysis, testified that, in 2011, he compared the biological evidence contained on the buccal swab from Defendant to the DNA profile uploaded from the CODIS database. From this comparison, he determined that the profiles were identical and belonged to Defendant. Mr. Simmers opined that the DNA profile, which originated from a mixture of the DNA of V.P. and that of Defendant, was 8.54 billion times more likely to be observed from a mixture of V.P.'s DNA and Defendant's DNA, than if it had originated from the victim and an unrelated, random individual.32

¶36Defendant

¶37After the State rested its case, Defendant took the witness stand in his own defense. He testified that he was first made aware of the identity of V.P. in the State's opening statement. Upon this revelation, he immediately informed his defense attorney that he knew V.P. He also testified that he informed his defense counsel that her sister had testified for him in an unrelated case in 1990. He adamantly denied raping V.P. and insisted that he never committed sexual assault on anyone.33

¶38On cross-examination, when questioned as to why he did not assert the defense of consent prior to trial, he explained that V.P.'s name was redacted from all reports of the incident and indictment and he had not known her identity until opening statements.34 He further provided that V.P. lived in his former neighborhood and he had engaged in consensual sex with her at her residence, in return he provided payment for her services. He also stated that the two had engaged in consensual sexual relationships more than once, but did not remember if the pair had engaged in consensual sex the night of the incident at issue. Moreover, Defendant did not affirm that he disputed the integrity of the DNA evidence as being contaminated or compromised; rather, he asserted his omission of guilt for this crime.

¶39DISCUSSION

¶40Errors Patent

¶41A review of the record does not reveal any errors patent.35

¶42Assignments of Error

¶43Defendant asserts the following assignments of error:

(1) Whether the evidence presented at trial was insufficient to support the jury's verdict of guilty on any count;

*84(2) Whether the district court erred in not granting Defendant's motion for new trial;

(3) Whether Defendant's right of effective assistance of counsel, pursuant to Sixth Amendment to the United States Constitution, was violated;

(4) Whether the provision of the Louisiana Constitution allowing non-unanimous jury verdicts violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and is entitled to retroactive application of changes in Louisiana Constitutional Law;

(5) Whether Defendant's right against cruel and unusual punishment and excessive fines, pursuant to the Eighth Amendment to the United States Constitution, was violated by the district court when assessing prosecution costs.

For the reasons that follow, we find that Defendant's fifth assignment of error is meritorious. However, we find the remaining assignments of error lack merit.

¶44Assignments of Error No. 1 and No. 2

¶45In Defendant's first assignment of error, he argues that the evidence presented at trial was insufficient to support the jury's guilty verdict. Consequently, in his second assignment of error, Defendant argues the district court erred in denying his motion for a new trial. For ease of discussion, we address both assignments of error together in this section.

¶46The Louisiana Supreme Court, in State v. Brown , set forth the standard for evaluating a claim of insufficient evidence, stating that:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, 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 all of the elements of the crime had been proved beyond a reasonable doubt."

…

...Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. (internal citations omitted).

¶472003-0897, p.22 (La. 4/12/05), 907 So.2d 1, 18.

¶48"If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all of the evidence most favorable to the prosecution must be adopted." State v. Hickman , 2015-0817, p. 9 (La. App. 4 Cir. 5/16/16), 194 So.3d 1160, 1166 (quoting State v. Green , 588 So.2d 757, 758 (La. App. 4th Cir. 10/29/1991) ). Further, " '[w]here the key issue is identification, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof.' " State v. Hutsell , 2017-0112, p. 17 (La. App. 4 Cir. 4/18/18), 241 So.3d 542, 552 (quoting State v. Scott , 2015-0778, p. 10 (La. App. 4 Cir. 6/29/16), 197 So.3d 298, 305 ).

¶49Here, Defendant contends that the State failed to establish that he was the perpetrator who raped V.P. To support this assertion, he asserts two arguments. First, Defendant argues that V.P. never identified him as her perpetrator, but instead identified another man. He also argues V.P.'s initial description of her attacker does not match him. Second, he argues that the State did not negate every *85reasonable hypothesis of innocence, averring that the State did not consider that he had a consensual sexual relationship with V.P.

¶50At trial, the jury heard testimony from V.P. who vividly narrated the events that took place the night of the incident, recounting that Defendant forced her into his vehicle at gunpoint and forced her to perform oral sex before vaginally raping her. She also recalled the fear and degradation she experienced during this incident and the cruel treatment her infant son was subjected to at the hands of Defendant. Dr. Ross also testified that V.P. came to the hospital the night of the incident to receive a rape examination; thus, confirming that the vaginal swabs were taken the night of the incident.

¶51The jury also heard the un-refuted testimony of the State's DNA experts, Ms. Montgomery and Mr. Simmers, who eliminated any uncertainty regarding Defendant's DNA profile that was extracted from the vaginal swabs taken from V.P. In fact, Ms. Montgomery opined that scientific evidence exists as to the reasonable certainty that the DNA extracted was Defendant's DNA. Mr. Simmers corroborated her testimony by stating the report evidenced that the DNA profile, which originated from a mixture of the DNA of V.P. and that of Defendant, was 8.54 billion times more likely to be observed from a mixture of V.P.'s DNA and Defendant's DNA, than if it had originated from V.P. and an unrelated, random individual.

¶52As to Defendant's assertion that V.P. initially identified another man as her attacker, V.P. did not negate this fact; however, she vehemently insisted that she did not move forward with the prosecution because could not affirmatively assert that this man was her attacker. Further, as to V.P.'s initial description of her attacker, she maintained that, despite giving a description to the police, she could not identify her attacker. Notably, however, V.P.'s initial description is similar to that of the Defendant. Comparable to V.P.'s initial description, the record before us reflects that Defendant is a black male, approximately 200 pounds, and 5'11?.36

¶53As to Defendant's assertion that he had a consensual sexual relationship with V.P., she adamantly denied knowing Defendant or ever having a consensual sexual relationship with him. She also urged that this incident was rape; that it was not a consensual sexual incident. Thus, viewing all of the evidence in a light most favorable to the prosecution, a rational trier of fact could have found, beyond a reasonable doubt, that the State proved that Defendant was guilty of this crime. The factfinder's credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Hunter , 2018-0206, p. 4 (La. App. 4 Cir. 8/22/18), 252 So.3d 1053, 1058 (citing State v. Gibson , 2015-1390, p. 5 (La. App. 4 Cir. 7/6/15), 197 So.3d 692, 696. Thus, we find Defendant's first assignment of error lacks merit.

¶54In his second assignment of error, Defendant argues the district court erred in denying his motion for new trial. Defendant's motion for new trial alleged: (1) the insufficiency of the evidence to support the convictions; (2) the discovery of new evidence; (3) the State violated its ethical obligation by not identifying the victim; and (4) error in the denial of the defense motion for continuance urged during trial.

¶55We previously considered and disposed of Defendant's assertion of insufficiency of evidence. We have determined that it lacks *86merit. Thus, we now consider the other points raised by Defendant's motion for new trial.

¶56La. C.Cr.P. art. 851(A), which sets forth the grounds for a new trial, states, in pertinent part, that:

A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.

B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:

…

(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

¶57This Court, in State v. Brown , articulates that, "[i]n order to obtain a new trial based on newly discovered evidence, the defendant must show: (1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of trial was not due to the defendant's lack of diligence; (3) the evidence is material to the issues at trial; and (4) the evidence is of such a nature that it would probably have changed the verdict of guilty." 2000-2520, p. 8 (La. App. 4 Cir. 11/21/01), 801 So.2d 1196, 1201 (citing State v. Bright , 1998-0398, pp. 25-6 (La. 4/11/00), 776 So.2d 1134, 1149 ). As the fact finder, "[t]he trial court has much discretion in ruling on a motion for new trial." State v. Baker , 2000-2520, p. 9 (La. App. 4 Cir. 11/21/01), 801 So.2d 1196, 1202 (citing State v. Cureaux , 98-0097 (La.App. 4 Cir. 5/26/99), 736 So.2d 318, 321 ). "Review of the trial court's ruling is limited to determining whether the trial court abused its discretion." Id.

¶58Here, as to Defendant's assertion of newly discovered evidence, he must be able to meet the four-prong test provided by this Court in Baker . Baker , 2000-2520, p.8, 801 So.2d at 1202 (citing State v. Bright , 1998-0398, pp. 25-6 (La. 4/11/00), 776 So.2d 1134, 1149 ). In support of the first prong of the test, Defendant provided affidavits from his fiancé37 and brother38 , attesting that Defendant and V.P. knew each other, had a consensual sexual relationship, and that V.P. lived near Defendant. However, this "newly discovered evidence" was discovered during trial. According to Defendant's own testimony, he learned of the identity of V.P., during the State's opening statement. The Louisiana Supreme Court established, in State v. Bright , that newly discovered evidence must be discovered after trial. 1998-0398, pp. 25-6 (La. 4/11/00), 776 So.2d 1134, 1149. Thus, the first prong of the test to obtain a new trial based on newly discovered evidence was not met. Moreover, based on the testimony and DNA evidence presented at trial, it cannot be said that Defendant's alleged additional witnesses *87would have produced a different verdict. The jury heard Defendant's assertion regarding a prior relationship with V.P. at trial, and based on its verdict, did not find Defendant's testimony to be credible.

¶59Further, we reject Defendant's third assertion that the State violated its ethical obligations by withholding the victim's full name from defense counsel prior to trial. The record does not reflect that defense counsel objected to the State's discovery redactions pursuant to La. C.Cr. P. art. 729.7.39 Defendant, also, did not present any evidence that the State knew that he and V.P. knew each other and failed to disclose this evidence.

¶60We also reject Defendant's fourth allegation. The record reflects that the district court indicated that it would not make a decision on Defendant's motion for continuance when it was urged by the defense counsel. The defense counsel never re-urged its request for continuance. Thus, Defendant's assertion that the district court denied its motion of continuance is erroneous.

¶61Based on the aforementioned, we find that the district court did not abuse its discretion in denying Defendant's motion for a new trial. Thus, we find this assignment of error also lacks merit.

¶62Assignment of Error No. 3

¶63In Defendant's third assignment of error, he argues that his right to effective assistance of counsel, pursuant to the Sixth Amendment of the United States Constitution, was violated.

¶64Generally, ineffective-assistance-of-counsel claims are more properly raised in an application for post-conviction relief, where the district court can conduct a full evidentiary hearing on the matter if warranted. State v. Leonard , 2018-0142, pp. 20-21 (La. App. 4 Cir. 12/26/18), 262 So.3d 378, 391 (citing State v. Leger , 2005-0011, p. 44 (La. 7/10/06), 936 So.2d 108, 142 ). A narrow exception to this general rule exists "where the record contains evidence sufficient to decide the issue, and it is raised on appeal by an assignment of error, courts may consider the issue in the interest of judicial economy." State v. Paulson , 2015-0454, p. 9 (La. App. 4 Cir. 9/30/15), 177 So.3d 360, 367 (See alsoState v. Potter , 591 So.2d 1166 (La. 1990) ). However, we do not find that the record provides sufficient evidence to ascertain whether Defendant's ineffective assistance of counsel claim is meritorious. He can raise it in a post-conviction relief application.

¶65Thus, we pretermit discussion of this assignment of error.

¶66Assignment of Error No. 4

¶67In Defendant's fourth assignment of error, he argues La. Const. Art. I § 17, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.40 He further argues *88that, since La. Const. Art. I § 17 has been amended, the provision should be retroactively applied in this matter; averring that the ten-to-two jury verdict should be vacated.

¶68La. Const. Art. 1 § 17 states, in pertinent part, that:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case for an offense committed prior to January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case for an offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict. (Emphasis added).

¶69Louisiana follows the general rule that "a constitutional provision or amendment has prospective effect only, unless a contrary intention is clearly expressed therein." State v. Cousan , 1994-2503, pp. 17-18 (La. 11/25/96), 684 So.2d 382, 392-393. Further, La. C.Cr. P. art. 782 provides that the amendment to La. Const. Art. I § 17 requiring unanimous juries does not have retroactive effect.

¶70The crime in this instant case occurred in January 1990 and Defendant was convicted in December 2017, both of which were prior to January 1, 2019. The Louisiana Supreme Court has not ruled that non-unanimous jury verdicts for crimes committed prior to January 1, 2019, as unconstitutional.41

¶71Thus, we find this assignment of error lacks merit.

¶72Assignment of Error No. 5

¶73In Defendant's fifth and final assignment of error, he argues that his Eighth Amendment right to the United States Constitution was violated when the district court assessed $ 57,387.00 in prosecution costs and court costs against him. Defendant argues that assessment of the prosecution costs and court costs essentially punishes him for exercising his right to a trial, and will inadvertently impact his family and heirs. Thus, he contends that the assessment of the prosecution costs and court costs, along with his sentence, constitutes an excessive sentence. We agree.

¶74The Supreme Court of the United States established that the Eighth Amendment provides that, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Taken together, these Clauses place 'parallel limitations' on 'the power of those entrusted with the criminal-law function of government.' "

¶75*89Timbs v. Indiana , --- U.S. ----, 139 S.Ct. 682, 687, 203 L.Ed.2d 11 (2019). Moreover, "[t]he Eighth Amendment's Excessive Fines Clause is incorporated under the Fourteenth Amendment's Due Process Clause, and thus enforceable against the States..." Id.

¶76In Louisiana, it is a well-established rule that, while a "trial court has broad discretion to impose costs in this context, the discretion is not unlimited. The Louisiana Constitution limits a court's power to impose fines and costs when those costs are excessive or unreasonable." State v. Griffin , 2014-1214, p. 8 (La. 10/14/15), 180 So.3d 1262, 1269. To constitute an excessive sentence, a court must find that "the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and therefore, is nothing more than the needless imposition of pain and suffering. " (Emphasis added.) Id. , p. 8, 180 So.3d at 1270 (citing State v. Guzman , 1999-1753, p. 15 (La. 5/16/00), 769 So.2d 1158, 1166. "These limitations on a trial court's discretion protects defendants from excessive or unreasonable penalties." Id.

¶77This issue was addressed in State v. Rideau, 2005-1470 (La. App. 3 Cir. 11/2/06), 943 So.2d 559. In Rideau , the defendant appealed the district court's denial of his motion to vacate an order assessing court costs and indigent defense against him in the amount of $ 127, 905.45. The Louisiana Court of Appeal, Third Circuit ("Third Circuit") granted the defendant's motion and vacated the district court's order. The Third Circuit reasoned that "the total amount of costs [the defendant] has been ordered to pay is grossly disproportionate to any court costs ever imposed on any criminal defendant in this State, indigent or non-indigent, who has served the maximum term of imprisonment." Id. , 2005-1470, p. 20, 943 So.2d at 572. Defendant, in this present case, was convicted of one count of aggravated kidnapping, in violation of La. R.S. 14:44, and one count of aggravated rape, in violation of La. R.S. 14:42, and received the maximum sentence on both counts.42

¶78We find this case very instructive in the instant matter. In the district court's ex proprio order, pursuant to La. C.Cr. P. art. 887(A), it ordered that Defendant pay all of the costs associated with the prosecution and proceedings, upon a determination that Defendant was financially able to do so.43 (Emphasis added). The State provided an itemized list of prosecution expenses amounting to $ 57,100.00. The statutory court costs amounted to $ 287.00. All of these fees were assessed against Defendant, totaling $ 57,387.00.

¶79La. C.Cr. P. art. 887(A) provides, in pertinent part, that:

A. A defendant who is convicted of an offense or is the person owing a duty of support in a support proceeding shall be liable for all costs *90of the prosecution or proceeding, whether or not costs are assessed by the court, and such costs are recoverable by the party or parties who incurred the expense...

¶80"The phrase 'costs of prosecution or proceeding' as it appears in La.Code Crim.P. art. 887(A) does not express an intent by the legislature to authorize the recoupment of 'every' costs incurred by the State in maintaining the judicial system. (Emphasis added.) Rideau , 2005-1470, p. 18, 943 So.2d at 571. Moreover, "when court costs are imposed in felony convictions cases, these costs rarely exceed $ 1,500.00..." Id. , 2005-1470, p. 21, 943 So.2d at 572.

¶81While we acknowledge the district court's discretion in this matter, we must distinguish that the court's power to impose costs and fines are limited. Griffin , p. 8, 180 So.3d at 1269. We impart that the exercise of a district court's discretion must remain equitable even though Defendant is not an indigent person. "Due process commands the even-handed treatment in the application and enforcement of laws." Rideau , 2005-1470, p. 24, 943 So.2d at 574-5. Again, we note that Defendant is serving the maximum sentence for both convictions. Thus, we find the imposition of all of the prosecution costs, in the amount of $ 57,100.00, against Defendant to be constitutionally prohibited, as cruel and unusual punishment, as contemplated by the Eighth Amendment to the United States Constitution, in light of the fact that he was sentenced to the maximum sentence allowed by law-life imprisonment.

¶82As to the court costs, we find these costs are permissible, because they are reasonable and not excessive as contemplated by La. C.Cr. P. art. 887(A). See also Griffin , 2014-1214, p. 13, 180 So.3d at 1272-3, wherein the court stated "so long as the defendant has sufficient notice of the imposition of such costs, and as long as the costs are reasonable and not excessive, costs of prosecution...may be imposed upon convicted defendants, as set forth in the articles." Id. , 2014-1214, p. 14, 180 So.3d at 1273. Here, the court records reflect that Defendant did receive sufficient notice of the imposed costs and was afforded a contradictory hearing. We do not find the imposition of the statutory court costs in the amount of $ 287.00 to be excessive.

¶83Accordingly, we find the district court abused its discretion when it assessed all prosecution costs against Defendant. Thus, we reverse the district court's ruling regarding the imposition of prosecution costs in the amount of $ 57,100.00. However, the district court retains the authority to enforce the statutory court costs associated with these proceedings in the amount of $ 287.00.

¶84CONCLUSION

¶85For the aforementioned reasons, the district court's judgment assessing prosecution costs against Defendant in the amount of $ 57,100.00 is reversed, but the statutory court costs assessed against Defendant are affirmed. Defendant's conviction and sentence are affirmed.

¶86AFFIRMED, IN PART, AND REVERSED, IN PART

¶87BELSOME, J., CONCURS IN PART AND DISSENTS IN PART

¶88BELSOME, J., CONCURS IN PART AND DISSENTS IN PART

¶89I respectfully concur in the majority opinion, except as to the reversal of the prosecutorial costs.

¶90Before assessing prosecutorial costs, the trial court issued an ex proprio motu order notifying the parties of his intent to assess *91the defendant the costs of prosecution pursuant to La. C.Cr.P. art 887.1 The court ordered the District Attorney to compute the costs and submit its assessment to the defendant and the court. After a hearing, the trial court assessed $ 57,387.00 in costs, including prosecutorial and court costs.

¶91A review of the transcript from the hearing reflects that the trial court recognized the Defendant's ability to pay the costs of prosecution. In particular, the Defendant owned several pieces of real estate worth approximately $ 300,000.00, and posted a $ 150,000.00 property bond. Moreover, the Defendant was convicted of aggravated kidnapping and aggravated rape, which are violent crimes. Although the assessment may be high, under these circumstances, I do not find that the trial court abused its discretion by assessing costs against the Defendant. SeeState v. Griffin , 14-1214, p. 6 (La. 10/14/15), 180 So.3d 1262, 1268 (where the Louisiana Supreme Court found that it was within the discretion of the trial court to impose a broad category of costs on a convicted criminal defendant pursuant to article 887(A) ). Therefore, I would affirm the trial court's judgment in its entirety.