State Of Louisiana v. Miranda Cheyenne Gilley ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 KA 1543
STATE OF LOUISIANA
VERSUS
MIRANDA CHEYENNE GILLEY
Judgment Rendered:
JUL 17 2020
Appealed from the
Thirty -Second Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Docket Number 756100
Honorable George J. Larke, Judge Presiding
Joseph L. Waitz, Jr. Counsel for Appellee,
J. Christopher Erny State of Louisiana
Ellen Daigle Doskey
Houma, LA
Cynthia K. Meyer Counsel for Defendant/Appellant,
New Orleans, LA Miranda Cheyenne Gilley
X '.' 7C X9C ?rt' 7C' iC 91" 770
BEFORE: WHIPPLE, C.J., GUIDRY, AND BURRIS,' JJ.
Honorable William J. Burris, retired, is serving pro tempore by special appointment of
the Louisiana Supreme Court.
WHIPPLE, C.J.
The defendant, Miranda Cheyenne Gilley, was charged by grand jury
indictment with second degree murder, a violation of LSA-R.S. 14: 30. 1. She pled
not guilty. Following a jury trial, she was found guilty of the responsive ( lesser
and 'included) offense of manslaughter, a violation of LSA-R.S. 14: 31. She moved
for a post -verdict judgment of acquittal and a new trial, but the motions were
denied. She was sentenced to twenty-three years at hard labor.
The defendant now appeals, briefing the following assignments of error:
1. The evidence is insufficient to support the verdict of manslaughter.
2. The trial court erred in failing to fully instruct the jury on justifiable
homicide.
3. The twenty-three year sentence imposed in this case is excessive.
4. The jury verdict should be declared invalid because the non -unanimous
verdict is contrary to the defendant' s rights to due process and equal protection and
violates the Sixth and Fourteenth Amendments of the United States Constitution.
For the following reasons, we vacate the conviction and sentence and
remand this matter to the district court for further proceedings.
FACTS
On July 11, 2017, the defendant fatally stabbed the victim, Jessica R.
McGehee, at the Belmere Apartments in Terrebonne Parish. The victim was
unarmed. At the time of the incident, the victim had been in a relationship with
William Alexander for approximately three years. Alexander was also seeing the
defendant. Approximately one month before the incident, the victim saw pictures of
Alexander and the defendant on Instagram.
Dr. Yen Van Vr, a forensic pathologist with the Terrebonne Parish Coroner' s
Office, performed the autopsy of the victim. The cause of death was multiple stab
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wounds. At the time of her death, the victim was 24 years old, 63 inches tall, and
weighed 148 pounds. She suffered five stab wounds and two cuts. She was stabbed
in the left cheek, below the left eye, with the wound penetrating approximately one -
and -one- quarter inches. She was also stabbed in the left side of the chest, through a
rib, through the left lung, and into the left side of the heart, with the wound
penetrating three -and -one- quarter inches. Absent immediate surgical intervention,
the likelihood of survival from this wound was " very low." The victim was also
stabbed on the right side of her lower back, with the wound penetrating
approximately two -and -one-half inches. Additionally, the victim was stabbed twice
on the right side of her right buttocks. She also had two incise wounds or cuts on
the back of her left arin. These wounds were consistent with " defensive wounds."
The defendant' s folding " Gerber" knife with a black handle and two -and -one- half
inch blade was capable of inflicting wounds consistent with the victim' s wounds.
Taylor Brown witnessed the incident. He testified that prior to the stabbing,
the defendant looked at him and his friends and stated, "[ ilf you don' t get [ the
victim] away from me, I will stab her." Taylor claimed the victim got on top of the
Taylor
defendant during the incident and was "[ bleating [ the defendant' s] head in."
stated he saw the defendant' s arm swinging in " a backward motion with the knife.
It was like coming back." According to Taylor, after stabbing the victim, the
defendant told her " I just shanked you in your stomach."
Hayes Brown also witnessed the incident. He testified that the defendant
dropped her knife after the first fight, but picked it up prior to the stabbing. Hayes
stated the defendant stabbed the victim before and after they went to the ground.
Prior to the stabbing, Hayes heard the defendant state, " I' m not fighting no more.
I' m going to stab someone." Hayes indicated the victim was 20 to 30 feet away
from the defendant when the statement was made.
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Joseph Wiggins also witnessed the incident. He stated the stabbing occurred
after the defendant and the victim grabbed each other and threw each other around.
According to Wiggins, the defendant and the victim were standing when the
defendant stabbed the victim between five and nine times. Prior to the stabbing,
Wiggins heard the defendant say " something about she was going to get a knife and
stab [ the victim]." Wiggins could not remember if the defendant had a knife on her
at the time she made the statement or if she " ran somewhere and grabbed a knife."
Wiggins testified that prior to the stabbing, " it was nothing but a little scratch fight
really, just pulling hair and throwing each other around and stuff." Wiggins
indicated the victim was " definitely getting the best of [the defendant]." He further
indicated, however, "[ i]t wasn' t no bad -ass whipping, not enough to make you want
to pull out a knife and stab somebody, that' s for sure."
The defendant also testified at trial. She was 23 years old, 62 inches tall and,
at the time of the incident, weighed 105 pounds. On the day of the incident,
Alexander told her he had lied about having ended his previous relationship with the
victim. Thereafter, the defendant messaged the victim on Instagram about
Alexander. After repeated exchanges of messages, the defendant messaged her
telephone number to the victim " so [ the victim] would stop messaging [ the
defendant]." The victim called the defendant, and the defendant put her on
speakerphone so the victim could " go off on [ the defendant]." During the phone
conversation, the defendant' s mother, Miranda Swartz, stated they lived at
Belmere." The defendant denied she invited the victim over for a fight and claimed
that after talking to the victim, she called Alexander and told him, " if [the victim]
showed up, it wasn' t going to be good[.]" The defendant denied stating she was
going to stab the victim.
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According to the defendant, she observed the victim approach Swartz while
she was smoking a cigarette by the stairway. The defendant claimed the victim
screamed at Swartz demanding she tell her the defendant' s whereabouts. The
defendant claimed she went to assist Swartz after the victim began pushing her. The
defendant was carrying a knife on her hip. According to the defendant, she
grab[ bed] [ the victim] and pull[ ed] her off' Swartz, and the victim grabbed the
defendant and threw her on the ground. This fight consisted of hair pulling and
punching, but no stabbing. The women were separated, and the victim and her
friend, Ashley Pitre, walked to Pitre' s car.
The defendant claimed she then saw Pitre running " back up on [ Swartz]" and
saw the victim " running up on [ the defendant]." According to the defendant, she
Pulled" her knife after the victim took her to the ground, was on top of her, and was
hitting her in the head. The defendant testified, "[ a] s 1 pull my knife, i just, just was
swinging it just to try to get [ the victim] off of me." The defendant stated, " I just
didn' t know if it was going to stop. I didn' t know if it was going to be broke up. I -
I was —I was afraid." She denied ever intending for the victim to " come over that
night[,]" denied wanting to kill the victim, and denied intending to kill the victim.
On cross- examination, the defendant indicated she did not recall if she had
her knife out before she went to the ground with the victim. Thereafter, after
reviewing her earlier statement, the defendant conceded it was " possible" she had
her knife out before she and the victim went to the ground.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number 1, the defendant contends the evidence was
insufficient to support the conviction because ( 1) the State failed to prove specific
intent to kill or to inflict great bodily harm; and ( 2) she was swinging the knife to
get the victim off of her and acting in self-defense at the time of the stabbing.
k,
When issues are raised on appeal contesting the sufficiency of the evidence
and alleging one or more trial errors, the reviewing court should first determine the
sufficiency of the evidence. State v. Hearold, 603 So. 2d 731, 734 ( La. 1992); State
y. Duhon, 2018- 0593 ( La. App. 1st Cir. 12/ 28/ 18), 270 So. 3d 597, 609, writ denied,
2019- 0124 ( La. 5/ 28/ 19), 273 So. 3d 315; see also State v. Self, 98- 39 ( La. App. 3rd
Cir. 8/ 19/ 98), 719 So. 2d 100, 101, writ denied, 98- 2454 ( La. 1/ 8/ 99), 734 So. 2d
1229. The reason for reviewing sufficiency first is that the accused may be entitled
to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S. Ct. 970, 67 L.
Ed. 2d 30 ( 1981), if a rational trier of fact, viewing the evidence in accordance with
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 ( 1979), in the
light most favorable to the prosecution, could not reasonably conclude that all of the
essential elements of the offense have been proven beyond a reasonable doubt.
Hearold, 603 So. 2d at 734; Duhon, 270 So. 3d at 609. When the entirety of the
evidence is insufficient to support the conviction, the accused must be discharged as
to that crime, and any discussion of trial error issues as to that crime would be pure
dicta since those issues are moot. However, when the entirety of the evidence is
sufficient to support the conviction, the accused is not entitled to an acquittal, and
the reviewing court must then consider the other assignments of error to determine
whether the accused is entitled to a new trial. If the reviewing court determines that
there has been trial error ( which was not harmless) in cases in which the entirety of
the evidence was sufficient to support the conviction, then the accused will be
granted a new trial, but is not entitled to an acquittal. See Hearold, 603 So. 2d at
734, Duhon, 270 So. 3d at 609.
A conviction based on insufficient evidence cannot stand as it violates Due
Process. See U.S. Const. amend. XIV; La. Const. art. 1, § 2. The constitutional
standard for testing the sufficiency of the evidence, as enunciated in Jackson v.
Virginia, requires that a conviction be based on proof sufficient for any rational trier
of fact, viewing the evidence in the light most favorable to the prosecution, to find
the essential elements of the crime beyond a reasonable doubt. See LSA-C. Cr.P. art.
821( B); State v. Ordodi, 2006- 0207 ( La. 11/ 29/ 06), 946 So. 2d 654, 660. In
conducting this review, we also must be expressly mindful of Louisiana' s
circumstantial evidence test, which states in part, " assuming every fact to be proved
that the evidence tends to prove," every reasonable hypothesis of innocence is
excluded. LSA-R.S. 15: 438; Duhon, 270 So. 3d at 609- 10.
In State ex rel. Elaire v. Blackburn, 424 So. 2d 246, 251 ( La. 1982), cert.
denied, 461 U.S. 959, 103 S. Ct. 2432, 77 L. Ed. 2d 1318 ( 1983), the Louisiana
Supreme Court recognized the legitimacy of a " compromise verdict," i.e., a
legislatively approved responsive verdict that does not fit the evidence, but that
for whatever reason) the jurors deem to be fair, as long as the evidence is
sufficient to sustain a conviction for the charged offense. If the defendant timely
objects to an instruction on a responsive verdict on the basis that the evidence
does not support that responsive verdict, the court overrules the objection, and the
jury returns a verdict of guilty of the responsive offense, the reviewing court must
examine the record to determine if the responsive verdict is supported by the
evidence and may reverse the conviction if the evidence does not support the
verdict. However, if the defendant does not enter an objection ( at a time when the
trial judge can correct the error), then the reviewing court may affirm the
conviction if the evidence would have supported a conviction of the greater
offense, whether or not the evidence supports the conviction of the legislatively
responsive offense rgturned by the jury.
ti
In this case, there was no objection to the instruction on the responsive
verdict of manslaughter. The jury' s ultimate reasoning for returning this
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responsive verdict is unclear, but it is possible that this verdict represented a
compromise." Regardless of the jury' s ultimate reasoning, the evidence
presented at trial was sufficient to convict the defendant of second degree murder.
SECOND DEGREE MURDER
Second degree murder, in pertinent part, " is the killing of a human being ...
w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]"
LSA-R.S. 14: 30. 1( A)( 1). Specific intent is that state of mind which exists when the
circumstances indicate that the offender actively desired the prescribed
consequences to follow his act or failure to act. LSA-R.S. 14: 10( 1). Such state of
mind can be formed in an instant. Specific intent need not be proven as a fact but
may be inferred from the circumstances of the transaction and the actions of the
defendant. State v. Mitchell, 2016- 0834 (La. App. 1st Cir. 9/ 21/ 17), 231 So. 3d 710,
732, writ denied, 2017- 1. 890 ( La. 8/ 31/ 18), 251 So. 3d 410.
Any rational trier of fact, viewing the evidence in the light most favorable to
the State, could find that the evidence proved beyond a reasonable doubt, and to the
exclusion of every reasonable hypothesis of innocence, all of the elements of second
degree murder and the defendant' s identity as the perpetrator of that offense against
the victim. The verdict returned in this matter indicates the jury accepted the
testimony of the State witnesses while rejecting the defendant' s account of the
incident.
The trier of fact is free to accept or reject, in whole or in part, the testimony
of any witness. Moreover, when there is conflicting testimony about factual matters,
the resolution of which depends upon the credibility of the witnesses, the matter is
one of the weight of the evidence, not its sufficiency. The trier of fact' s
determination of the weight to be given evidence is not subject to appellate review.
An appellate court will not reweigh the evidence to overturn a factfinder' s
determination of guilt. We are constitutionally precluded from acting as a
thirteenth juror" in assessing what weight to give evidence in criminal cases. The
fact that the record contains evidence which conflicts with the testimony accepted
by the trier of fact does not render the evidence accepted by the trier of fact
insufficient. See State v. Nixon, 2017- 1582 ( La. App. 1 st Cir. 4/ 13/ 18), 250 So. 3d
273, 291, writ denied, X018- 0770 ( La. 11/ 14/ 18), 256 So. 3d 290.
JUSTIFIABLE HOMICIDE
A homicide is justifiable when committed in self-defense by one who
reasonably believes that she is in imminent danger of losing her life or receiving
great bodily harm and that the killing is necessary to save herself from that danger.
LSA-R.S. 14: 20( A)( 1). However, a person who is the aggressor or who brings on a
difficulty cannot claim the right of self-defense unless she withdraws from the
conflict in good faith and in such a manner that her adversary knows or should know
that she desires to withdraw and discontinue the conflict. LSA-R.S. 14: 21.
When self-defense is raised as an issue by the defendant, the State has the
burden of proving, beyond a reasonable doubt, that the homicide was not
perpetrated in self-defense. The issue is whether or not a rational factfinder,
viewing the evidence in the light most favorable to the prosecution, could have
found beyond a reasonable doubt that the defendant did not kill the victim in self-
defense. State v. Patorno, 2001- 2585 ( La. App. 1st Cir. 6/ 21/ 02), 822 So. 2d 141,
147. Further, when a case involves circumstantial evidence, and the jury
reasonably rejects the hypothesis of innocence presented by the defendant' s own
testimony, that hypothesis falls, and the defendant is guilty unless there is another
hypothesis which raises a reasonable doubt. State v. Captville, 448 So. 2d 676,
680 ( La. 1984).
The State argued the defendant acted as the aggressor because she brought a
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knife to the fight with the victim. The State urged the jury to reject the
defendant' s claim of self-defense, noting the defendant stabbed the unarmed
victim five times and cut her twice. The State pointed out the defendant inflicted a
fatal stab wound to the victim that was two -and -one- half inches deep and traveled
through skin, muscle, bone, lung, and into the victim' s heart. The State also
pointed out that if the defendant' s account of the incident had been accurate, "[ the
defendant would] be full of blood," but she testified she did not change clothes
between the stabbing and her interview with the police, and the video of the
interview showed no blood on her clothes.
In finding the defendant guilty, the jury rejected the claim of self-defense and
concluded that the use of deadly force under the particular facts of this case was
neither reasonable nor necessary. It was undisputed that the defendant stabbed the
unarmed victim five times and cut her twice, with the fatal wound penetrating the
victim' s body to a depth of three -and -one- quarter inches and striking her heart. The
fact that the defendant stabbed the victim in the chest with a knife indicates a
specific intent to kill or to inflict great bodily harm. A rational juror could have
reasonably concluded that the killing was not necessary to save the defendant from
the danger envisioned by LSA-R.S. 14: 20( 1) and/ or that the defendant had
abandoned the role of defender and taken on the role of an aggressor and, as such,
was not entitled to claim self-defense. See also State v. Tran, 98- 2812 (La. App. 1 st
Cir. 11/ 5/ 99), 743 So. 2d 1275, 1291, writ denied, 99- 3380 ( La. 5/ 26/ 00), 762 So. 2d
1101. See LSA-R.S. 14: 21.
In reviewing the evidence, we cannot say that the jury' s determination was
irrational under the facts and circumstances presented to them. See Ordodi, 946
So. 2d at 662. An appellate court errs by substituting its appreciation of the
evidence and credibility of witnesses for that of the fact finder and thereby
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overturning a verdict on the basis of an exculpatory hypothesis of innocence
presented to, and rationally rejected by, the jury. State v. Calloway, 2007- 2306
La. 1/ 21/ 09), 1 So. 3d 417, 418 ( per curiam). To otherwise accept a hypothesis of
innocence that was not unreasonably rejected by the fact finder, a court of appeal
impinges on a fact finder' s discretion beyond the extent necessary to guarantee the
fundamental protection of due process of law. See State v. Mire, 2014- 2295 ( La.
1/ 27/ 16), 269 So. 3d 698, 703 ( per curiam).
Having determined that the evidence was sufficient to support the
defendant' s conviction such that she is not entitled to an acquittal, we next look to
the defendant' s contention that her conviction based upon a non -unanimous jury
verdict is invalid and unconstitutional.
CONSTITUTIONALITY OF NON -UNANIMOUS VERDICT
In assignment of error number 4, the defendant argues the non -unanimous
verdict to convict her of manslaughter violated her rights under the Sixth and
Fourteenth Amendments to the United States Constitution.
A written jury poll was conducted in this matter, and the polling results were
sealed.' See LSA-C. Cr.P. art. 812. The jury voted I I to I to convict the defendant
of manslaughter.
In the recent decision of Ramos v. Louisiana, — U. S. , 140 S. Ct.
1390, 1397, 206 L. Ed. 2d 583 ( 2020), the United States Supreme Court overruled
Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 ( 1972), and held
that the right to a jury trial under the Sixth Amendment of the United States
Constitution, incorporated against the States by way of the Fourteenth Amendment
of the United States Constitution, requires a unanimous verdict to convict a
2Following the lodging of the record in this court, this court granted the defendant' s
motion to supplement the record with the jury polling slips. Thus, the results of the jury poll are
part of the record.
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defendant of a serious offense. The Ramos Court further noted that its ruling
applied to those defendants convicted of felonies by nonunanimous verdicts whose
cases are still pending on direct appeal. 3 Ramos, 140 S. Ct. at 1406. Thus, where
the defendant' s conviction was not final when Ramos was decided, the holding of
Ramos applies. State v. Bueso, 2019- 01675 ( La. 6/ 22/ 20) So. 3d , 2020 WL
3446149 ( citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L.
Ed. 2d 649 ( 1987)).
Accordingly, assignment of error number 4 has merit. The conviction and
sentence must be vacated, and this case is remanded to the district court. Our
disposition of this assigrunent of error renders assignments of error numbers 2 and 3
moot.
CONVICTION AND SENTENCE VACATED; REMANDED.
In Crehan v. Louisiana, _ U. S. _ S. Ct. L. Ed. 2d ( 2020), 2020 WL
1978930, Justice Alito concurred in the judgment with the understanding that in cases in which the
United States Supreme Court grants, vacates, and remands in light of Ramos, " the [ United States
Supreme Court] is not deciding or expressing a view on whether the question was properly raised
below but is instead leaving that question to be decided on remand." In Crehan, this court noted the
defendant made " a pro forma challenge to the constitutionality of his non -unanimous guilty
verdict." State v. Crehan, 2018- 0746 ( La. App. 1st Cir. 1115/ 18), 2018 WL 5785479 at * 9,
unpublished), writ denied, 2018- 2024 ( La. 4/ 15/ 19), 267 So. 3d 1124. We are aware that a
constitutional challenge may not be considered by an appellate court unless it was properly pleaded
and raised in the district court below. Vallo v. Gavle Oil Co., Inc., 94- 1238 ( La. 11/ 30/ 94), 646 So.
2d 859, 864- 65. Further, while there is no single procedure for attacking the constitutionality of a
statute, it has long been held that the unconstitutionality of a statute must be specially pleaded and
the grounds for the claim particularized. First, a party must raise the unconstitutionality in the
district court; second, the unconstitutionality of a statute must be specially pleaded; and third, the
State v. Hatton, 2007-
grounds outlining the basis of unconstitutionality must be particularized.
2377 ( La. 7/ 1/ 08), 985 So. 2d 709, 719.
In the instant case, the defendant failed to follow the proper procedure for preserving her
challenge to the nonunanimous verdict in this matter. However, "[ w] hile the general rule is that a
litigant cannot raise the unconstitutionality of a statute or ordinance unless its unconstitutionality is
specially pleaded and the grounds particularized, several exceptions to this rule have been
See
recognized, including ... where the statute has been declared unconstitutional in another case."
Spooner v East Baton Rouge Parish Sheriff Department, 2001- 2663 ( La. App. Ist Cir. 11/ 8/ 02),
835 So. 2d 709, 711; see also State v. Smith, 2009- 100 ( La. App. 5th Cir. 8125109), 20 So. 3d 501,
506, writ denied, 2009- 2102 ( La. 4/ 5/ 10), 31 So. 3d 357. Accordingly, in light of the holding in
Ramos this claim is properly before this court.
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