Case Information
*26 Pursuant to State v. Clark , 12-508 (La. 12/19/16), 220 So.3d 583, 662, cert. granted, judgment vacated on other grounds , – U.S. –, 138 S.Ct. 2671, 201 L.Ed.2d 1066 (2018), a party is limited on appeal to arguing the grounds which he stated in his challenge for cause. In Clark , the defendant claimed a prospective juror was biased against him due to his prior record, his desire to represent himself, and because she had family members in law enforcement. The court reviewed the exchange regarding the challenge for cause and noted that the defendant had not argued that the potential juror’s unspecified familial relationship to law enforcement officers was a basis for the challenge; therefore, the court held that ground was not properly preserved for review under La. C.Cr.P. art. 800(A). Id. at 666-67.
In State v. Nelson , 09-807 (La. App. 5 Cir. 3/23/10), 39 So.3d 658, 664, a prospective juror was challenged for cause based on her responses regarding the defendant’s prior convictions, and defense counsel objected. However, on appeal, the defendant argued the prospective juror should have been excused for cause because of her relationships regarding law enforcement. This Court held, “A defendant is limited to the grounds for objection that he articulated in the trial court, and a new basis for the objection may not be raised for the first time on appeal” (quoting State v. Mitchell, 08-136 (La. App. 5 Cir. 1/13/09), 7 So.3d 720, *27 733).
However, in Sagastume , the State also argued that the defendant’s grounds for challenging prospective jurors for cause in his brief on appeal were not those articulated before the trial court, and therefore, his claims were not preserved for appeal. This Court held, “We find that defendant’s grounds for cause as stated on appeal are sufficiently intertwined with defense counsel’s bases for cause articulated during the trial and consequently, his claims were preserved for appeal.” Sagastume , 353 So.3d at 323.
In the instant case, when the defendant challenged Mr. Holmes for cause, he said, “As to Mr. Holmes, during my voir dire , I asked about the presumption of innocence, children. He says that the Defendants would get the same presumption of innocence because of the nature of the charge.” The defendant argued that Mr. Holmes “indicated the State would have less of a burden. He has two small children and the State would start off -- the Defendants would start off with less of a presumption of innocense [sic].”
A review of the above exchange regarding the challenge for cause, indicates that defense counsel did not express prior convictions as a basis when Mr. Holmes was challenged for cause. Further, when defense counsel challenged Mr. Holmes for cause, he did not use any words or phrases that could be intertwined with an issue of prior convictions. Accordingly, we find that the defendant is limited to the grounds for objection that he articulated in the trial court, and prior convictions is a *28 new basis for the objection that may not be raised for the first time on appeal. As such, this claim was not preserved for review.
Juror Fabienne Elien
As to Ms. Elien, while counsel for the defendant did not move to challenge her for cause or assert any reasons as to why Ms. Elien should be removed for cause, counsel for co-defendant asserted, [6] “As to Eilin [sic] Fabienne, I believe the Defense -Ms. Bourgeois’ examination, challenge for cause concerning her response to prior convictions.” The State responded that Ms. Elien stated “that she wouldn’t hold it against them.” The court ruled, “She clearly said just because they were guilty of the prior crimess [sic], they weren’t guilty of the crime right now. Cause is denied.” Counsel for the co-defendant then said, “I have no other *29 Nelson, , and Mitchell supra , the defendant is limited on appeal to arguing the grounds which he stated during trial in his challenge for cause.
When counsel for the co-defendant challenged Ms. Elien for cause, the challenge was “concerning her response to prior convictions.” The State responded, “She did state that she wouldn’t hold it against them.” In denying the challenge, the court pointed out that Ms. Elien “clearly said just because they were guilty of the prior crimess [sic], they weren’t guilty of the crime right now. Cause is denied.” The defendants did not provide additional reasons as to why Ms. Elien should be challenged for cause.
A review of the above exchange regarding the challenge for cause indicates that the defendant did not raise burden of proof or the State’s burden to prove guilt beyond a reasonable doubt, as a basis for Ms. Elien’s challenge. Therefore, this ground was not properly preserved for review.
ASSIGNMENT OF ERROR NUMBER TWO
The trial court erred in denying the motion for severance.
DISCUSSION
On appeal, the defendant argues that the trial court erred in failing to sever his trial from that of the co-defendant. He contends that he was prejudiced when his co-defendant’s attorney alleged that the defendant was the abuser and “counsel argued unequivocally that Mr. Burciaga was the monster who sexually assaulted A.H., not someone named David, who may not even exist.” The State responds *30 that the Motion to Sever was properly denied as an unsupported allegation of antagonistic defenses. The State also asserts that the defendant did not make an objection to his co-defendant’s statements in closing; therefore, this issue is not preserved for review pursuant to La. C.Cr.P. art. 841(A).
La. C.Cr.P. art. 704 provides the following regarding severance: Jointly indicted defendants shall be tried jointly unless: (1) The state elects to try them separately; or
(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.
Whether justice requires a severance must be determined by the facts of each case. State v. Hayden , 09-954 (La. App. 5 Cir. 5/11/10), 41 So.3d 538, 543. A defendant is not entitled to a severance as a matter of right, but the decision is one resting within the sound discretion of the trial court. State v. Prudholm, 446 So.2d 729, 741 (La. 1984); State v. Jackson, 03-883 (La. App. 5 Cir. 4/27/04), 880 So.2d 841, 851, writ denied , 04-1399 (La. 11/8/04), 885 So.2d 1118. The ruling on a motion to sever is within the sound discretion of the trial court and will not be overturned unless it is manifestly erroneous and injurious to the defendant. State v. Tennart , 352 So.2d 629, 634 (La. 1977), cert. denied , 435 U.S. 945, 98 S.Ct. 1529, 55 L.Ed.2d 543 (1978); State v. Molette , 17-697 (La. App. 5 Cir. 10/17/18), 258 So.3d 1081, 1089, writ denied , 18-1955 (La. 4/22/19), 268 So.3d 304.
A severance is necessary if the defenses of the co-defendants are mutually antagonistic to the extent that one co-defendant attempts to blame the other, causing each defendant to defend against both his co-defendant and the State. Prudholm, 446 So.2d at 741; State v. Hicks , 17-696 (La. App. 5 Cir. 10/17/18), 258 So.3d 1039, 1049, writ denied , 18-1938 (La. 4/15/19), 267 So.3d 1123. The *31 defendant bears the burden of proof in a motion to sever. State v. Coe , 09-1012 (La. App. 5 Cir. 5/11/10), 40 So.3d 293, 301, writ denied , 10-1245 (La. 12/17/10), 51 So.3d 17. A “mere unsupported allegation” that defenses will be antagonistic is not sufficient to require a severance. Prudholm, ; Hicks supra . Furthermore, the fact that each defendant has pointed a finger at the other does not make defenses automatically antagonistic. Prejudice must be shown if defendants are to receive separate trials. State v. Williams, 416 So.2d 914, 916 (La. 1982).
In State v. Holmes , 12-579 (La. App. 5 Cir. 5/16/13), 119 So.3d 181, 197, writ denied , 13-1395 (La. 1/10/14), 130 So.3d 318, this Court stated:
In reviewing a pre-trial motion for severance, the Louisiana Supreme Court provided the following in State v. Lavigne, 412 So.2d 993, 997 (La. 1982): “It is incumbent upon us to review the validity of the ruling without regard to whether at trial substantial other evidence was introduced or whether his conviction would have been a certainty irrespective of the joint trial.” La. Prac.Crim. Trial Prac. § 14:25 (4th ed.) explains the following regarding the differences in review depending on the timing of the motions for severance: …If the motion is made pretrial and denied, the appellate court may not consider the weight of the evidence or the certainty of the defendant’s conviction in a separate trial in assessing the validity of the trial court’s ruling. (internal footnotes omitted) (emphasis as found in original).
In the instant case, the Motion to Sever was filed on April 4, 2022, prior to trial, and the defendant alleged “conflicting and antagonistic defenses,” but did not elaborate or give details specifying the conflicting and antagonistic defenses. At the hearing on the motion, the court asked if one defendant is going to point the *32 finger at the other defendant, and counsel for the co-defendant responded, “If I have to I will. And I just don’t know how this is going to develop. But that is a very big possibility.” Counsel for the defendant responded, “I think that very much depends on how it develops. And then I think the strategy will be dependent upon the testimony of the alleged victim… But I do think the defenses are going to diverge and potentially be antagonistic.”
In written reasons for denying the motion, the trial court stated: At the hearing on defendants’ Motion to Sever, it was argued: that Mr. Burciaga, a relative of A.H. who resided therewith, is alleged to have regularly committed sexual battery upon A.H. during the period of time alleged in the bill of information; Mr. Gabriel, a family acquaintance, is alleged to have committed sexual battery upon A.H. on a single occasion during the period of time alleged in the bill of information; it is not alleged that the defendants acted in concert or aided each other, or had any knowledge of the acts of the other; at trial, Mr. Gabriel will argue that A.H. is confused and/or mistaken about Mr. Gabriel due to the multiple batteries committed by Mr. Burciaga.
Based on the foregoing, the Court does not have a sufficient factual basis to determine if the defendants’ defenses will be mutually antagonistic or prejudicial. The burden is on the mover, and while the matter was well argued, no evidence was presented.
For the foregoing reasons, IT IS HEREBY ORDERED that the defendants’ Motion to Sever is hereby DENIED.
This Court has consistently found that the trial court does not err by denying a motion to sever where defendants allege mere unsupported allegations that defenses will be antagonistic. In Holmes , the defendant argued in his *33 motion to sever that he “believed his co-defendant would present a defense directly contradictory to his defense, suggesting that they would be antagonistic defenses.” This Court held that the defendant failed to offer evidence in support of his pre- trial motions for severance, he only made general representations that the defenses presented at trial would be antagonistic, and the conclusory statements alone were insufficient to satisfy his burden regarding the severance. Id . Similarly, in Coe , , 40 So.3d at 302, both defendants denied any involvement in the incident and did not blame the other. This Court found that the defendant failed to demonstrate how he was prejudiced by the denial of the severance. In State v. Williams , 16-417 (La. App. 5 Cir. 8/30/17), 227 So.3d 371, 395, writ denied, 17- 1663 (La. 9/14/18), 252 So.3d 483, neither the defendant nor the co-defendant blamed one another for the respective crimes for which they were charged. This Court found that the defendant had not shown how he was prejudiced by the lack of a severance.
In this case, during the hearing on the Motion to Sever, both defense counsels alleged that the defenses were possibly and potentially antagonistic. In denying the motion, the court stated in part, “The burden is on the mover, and while the matter was well argued, no evidence was presented.” Our review of the transcript of the motion hearing indicates that the trial court was correct - no *34 evidence was presented to support the statements that the defenses were “possibly and potentially antagonistic.” Accordingly, we find that the defendant’s unsupported allegation that the defenses would be antagonistic was not sufficient to require a severance, and the trial court did not err by denying the Motion to Sever.
In addition, on appeal the defendant alleges that he was prejudiced when the co-defendant’s counsel alleged that the defendant was the abuser and said, “There’s a monster. I’m going to tell you, there’s a monster, okay. I’m not going to elaborate on that; but there’s a monster, right? And who is David? Is there even a David?”
The transcript indicates that during closing argument, the co-defendant’s counsel stated:
Look, I get it. Their investigation is supposed to get the bad guy, right? That’s what they’re supposed to do, right? You send them to the CAC. You send them to the doctor, and you make sure you got the right guy. But if you don’t have the right guy, where is the right guy?
You know, it seems like their whole process here or their whole presentation to you is who is David. Who is David? We don't know if there is a David. First of all, we don’t know if there is a David. There’s a monster. I’m going to tell you there’s a monster, okay. I’m not going to elaborate on that; but there’s a monster, right? And who is David? Is there even a David? One thing we do know, for sure, one thing we do know for sure that is not the David. We know that is not the David. We know that because I.H. looked in this courtroom and said no, he’s not here. And A.H. had looked around the courtroom and said no, he’s not there. And the investigator, lead investigator said, I don’t know how we got the name of David Gabriel.
There was no objection by the defendant to the above statements regarding a monster. As argued by the State on appeal, the contemporaneous objection rule applies to closing argument. In State v. Hilliard , 52,652 (La. App. 2 Cir. 8/14/19), 278 So.3d 1065, writ denied , 19-1701 (La. 7/24/20), 299 So.3d 68, the defendant argued that the prosecutor made improper statements during closing argument. Because the defendant’s trial counsel did not make a contemporaneous objection to the alleged improper comment, the court held that the defendant was precluded from raising a claim related to it on appeal. Id . at 1081.
La. C.Cr.P. art. 841 provides that “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” This rule has two purposes: (1) to require counsel to call an error to the judge’s attention at a time when the judge may correct the error; and (2) to prevent defense counsel from “sitting on” an error and gambling unsuccessfully on the verdict, and later resorting to appeal on an error that might have been corrected at trial. State v. Ruiz , 06-1755 (La. 4/11/07), 955 So.2d 81, 87; State v. Havies, 22-133 (La. App. 5 Cir.
12/22/22), 355 So.3d 677, 688, writ denied , 23-76 (La. 9/19/23), 370 So.3d 463. To preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. State v. Lyons , 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, 40, writ denied sub nom . State ex rel . Lyons v. State , 14-481 (La. 11/7/14), 152 So.3d 170. Accordingly, this alleged error was not preserved for appellate review.
Moreover, the co-defendant’s statements do not allege that the defendant was the “monster” or the abuser. When read in context, the co-defendant was conceding that someone, a monster, committed the offenses, and the monster was *36 not “David.” Furthermore, even if the co-defendant had pointed a finger at defendant, it does not make the defense automatically antagonistic. Holmes .
In Williams , supra, 416 So.2d 914, each defendant blamed the other defendant, and the court held, “In a sense, Williams’ defense is antagonistic to Barnes’, and vice versa, inasmuch as each pointed a finger at the other, but this does not make the defenses automatically antagonistic. Prejudice must be shown if the defendants are to receive separate trials.” Id . at 915-16.
In sum, even if the denial of the motion to sever was properly preserved for appellate review, the defendant has not shown that he was prejudiced by the denial of the motion to sever, nor has he shown that he was prejudiced by the statements made in closing arguments. This assignment of error lacks merit.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux , 312 So.2d 337 (La. 1975); and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). The review reveals no errors patent in this case.
CONCLUSION
For the foregoing reasons, the defendant’s conviction of sexual battery of a juvenile under the age of thirteen in violation of La. R.S. 14:43.1, and sixty-five- year sentence as a second felony offender is affirmed.
AFFIRMED
[6] La. C.Cr.P. art. 842 provides that where the co-defendant objects, the objection is presumed to have been made by all defendants on trial unless the contrary appears. State v. Massey , 11-358 (La. App. 5 Cir. 3/27/12), 97 So.3d. 13. causes.” When counsel for the defendant was asked if there was anyone else for cause, she said, “No, Judge.” On appeal, the defendant argues that Ms. Elien would not require the State to prove guilt beyond a reasonable doubt. The State responds that the defendant did not refer to the State’s burden of proof when he challenged Ms. Elien for cause at trial. As noted above with prospective juror Holmes, pursuant to Clark ,