State of Louisiana Versus Jerman Neveaux ( 2023 )

STATE OF LOUISIANA NO. 23-K-147
VERSUS FIFTH CIRCUIT
JERMAN NEVEAUX COURT OF APPEAL
STATE OF LOUISIANA
April 25, 2023
Linda Wiseman
First Deputy Clerk
IN RE JERMAN NEVEAUX
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NANCY A. MILLER,
DIVISION "I", NUMBER 16-4029
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson
WRIT GRANTED; RULING VACATED; REMANDED FOR
FURTHER PROCEEDINGS
On March 22, 2023, relator Jerman Neveaux sought supervisory review with
this Court of the trial court’s February 2, 2023 judgment, which granted the State’s
notice of intent to use La. C.Cr.P. art. 404(B) evidence at the trial of this capital
matter. Trial is currently scheduled for August 2023.
After this writ application was filed and prior to this Court’s consideration of
the merits of the Article 404(B) ruling, the Supreme Court ruled upon another writ
application in this matter relative to rulings by the trial court and this Court which
denied relator’s Motion to Recuse Judge Nancy Miller. The Motion to Recuse was
the second such motion filed in this case and was reurged on August 30, 2022
following the newly enacted amendment to La. C.Cr.P. art. 671(B) to include a
new and objective ground to recuse a judge. The trial court denied the second
motion to recuse on October 27, 2022; this Court denied writs. See State v.
Neveaux, 22-604, unpub. (La. App. 5 Cir. 1/5/23).
In its ruling, the Supreme Court found that Judge Miller should be recused
from this matter under the newly enacted La. C.Cr.P. art. 671(B), specifically
stating:
Writ granted. Under the unique circumstances presented in this first
degree murder prosecution, which seeks the death penalty, we reverse
the rulings of the lower courts. The decedent was a Jefferson Parish
Sheriff’s Officer. The district court judge is married to a JPSO
sergeant, who knew the decedent, and assisted in directing the traffic
at the scene of the alleged crime. The judge is uncertain, but may
have attended the decedent’s funeral. We find, based on an objective
evaluation, it can be reasonably and substantially expected the judge
would be unable to conduct the proceedings in a fair and impartial
manner. Considering these unique facts, the interests of justice and
Code of Criminal Procedure art. 671(B) require recusal. We remand
for reallotment.
State v. Neveaux, 23-00183 (La. 3/28/23), 2023 WL 2661108. The case has since
been realloted to a new trial judge.
In light of the above Supreme Court recusal ruling, relator filed a
supplemental application in the above-captioned matter asking this Court to vacate
the judgment of February 2, 2023, rather than considering the merits of the trial
court’s ruling on the Article 404(B) evidence. The State filed a response. While
not conceding any error in Judge Miller’s February 2, 2023 ruling, the State
recognized that Judge Miller’s ruling should be vacated.
La. C.Cr.P. art. 673 provides:
A judge has full power and authority to act, even though a ground for
recusal exists, until he is recused, or a motion for his recusal is filed.
The judge to whom the motion to recuse is assigned shall have full
power and authority to act in the cause pending the disposition of the
motion to recuse.
The theory of recusation is based upon public policy, for it is applied not
only for the protection of the litigants, but generally to see that justice is done by
an impartial court. It is, therefore, for the sake of appearance to the general public
as well as protection against the acts themselves that a judge be prohibited from
any activity in a case in which he has been recused. State v. Price, 274 So.2d 194,
197 (La. 1973).
The current writ application is in a similar procedural posture to that in State
v. Seward, 365 So.2d 827 (La. 1978), in that a judge appears to have made rulings
between the time a motion to recuse the judge was initially denied and the time the
recusal was ultimately granted by the Supreme Court. Therein, the high court
stated:
Writ granted. The ruling on the motion to recuse is reversed, and the
recusal is granted. Accordingly, the ruling on the motion to suppress
is vacated and set aside and it is ordered that the motion be heard
before the judge to whom it is re-allotted. Our ruling is without
prejudice to the relator’s right to move to set aside any other ruling of
the recused judge.
Further, in the Supreme Court’s ruling in Neveaux, 2023 WL 2661108, the
court stated that “it can be reasonably and substantially expected the judge would
be unable to conduct the proceedings in a fair and impartial manner.”
Accordingly, under the unique circumstances presented in this first degree
murder prosecution, which seeks the death penalty, and in light of the Supreme
Court’s ruling in Neveaux, 2023 WL 2661108, the February 2, 2023 ruling on the
merits of the Article 404(B) motion is hereby vacated. The matter is remanded for
further proceedings.
Gretna, Louisiana, this 25th day of April, 2023.
JGG
FHW
RAC
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
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I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 04/25/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:
23-K-147
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Nancy A. Miller (DISTRICT JUDGE)
Darren A. Allemand (Respondent) Thomas J. Butler (Respondent)
Elliott T. Brown (Relator)
MAILED
Christine M. Lehmann (Relator) Honorable Paul D. Connick, Jr.
Attorney at Law (Respondent)
636 Baronne Street District Attorney
New Orleans, LA 70113 Twenty-Fourth Judicial District
200 Derbigny Street
Gretna, LA 70053
.
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~t -i::;tine M. Lehmann
Attorney at Law
636 Baronne Street
1'.Tt::w· Orleans, LA 70113
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