State Of Louisiana v. Ronald Dean Bandy ( 2020 )

NOT DESIGNATED FOR PUBICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 KA 1056
STATE OF LOUISIANA
VERSUS
RONALD DEAN BANDY
Judgment Rendered: JUL* 0 12020
Appealed from the
Twenty -First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Docket Number 903019
Honorable Elizabeth P. Wolfe, Judge Presiding
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Scott M. Perrilloux Counsel for Appellee,
Patricia Parker Amos State of Louisiana
Zachary T. Daniels
Amite, LA
Bertha M. Hillman Counsel for Defendant/Appellant,
Covington, LA Ronald Dean Bandy
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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.
Defendant, Ronald Bandy, was charged by grand jury indictment with first
degree murder, a violation of LSA-R.S. 14. 30. He pled not guilty. After a trial by
jury, defendant was found guilty as charged. The trial court imposed a sentence of
life imprisonment at hard labor, to be served without the benefit of probation,
parole, or suspension of sentence. Defendant now appeals. For the following
reasons, we affirm defendant' s conviction and sentence.
STATEMENT OF FACTS
In the early morning hours of August 23, 2009, Anthony and Grace Lamonte
were at their home in Hammond, Louisiana. Anthony heard footsteps on the
porch, but after investigating, found nothing and went back to sleep. Later, both
Anthony and Grace were awakened by the sound of a crash, which Anthony
initially thought was an accident on the road outside. Anthony got out of bed,
opened the bedroom door, and saw three unknown men standing in his house and
heard people talking outside. He and Grace shouted at the men to leave.
However,, the men started shooting at them. Anthony was shot in the chest above
the heart and lung, and Grace was killed. After unsuccessfully struggling to dial
911, Anthony was able to use the speed dial function on his phone to call his
daughter, who in turn called for help.
Prior to that night, the Lamontes had given John Lamonte, their adult son
who lived with them at the time, a truck for his use. John suffered from a serious
drug addiction that his parents knew about, and they often tried to help him out.
John occasionally loaned out his vehicle for drugs; specifically, John testified that,
in July 2009, he loaned the truck to Robae Austin for this purpose. In the process
of loaning the truck to Austin, John drove Austin, who was armed, to John' s
parents' house to allow Austin to drive off with the truck. Sometime later, Austin
returned to the Lamonte residence with someone riding in the passenger seat.
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Although John then drove them to another location, he was never able to
conclusively identify the man with Austin. John noticed that both men were in a
hurry to be dropped off at the new location. Soon after, police questioned John
about the transaction. Less than one month after the truck loan, Grace was
murdered when John' s parents were shot in their home. At defendant' s trial, John
testified that although he could not be " a hundred percent" sure in his
identification, he believed it was defendant who was the passenger in the truck.
Following the shootings, an investigation at the Lamonte home revealed
fingerprints on a piece of broken glass. The fingerprints were subsequently
determined to belong to Jarris Monroe. When they arrived at Monroe' s apartment
in Metairie, Louisiana, investigators did not find Monroe. However, they did find
Monroe' s roommate, Benny Flowers, whom they questioned. Because of
Flowers' s responses to the initial questioning, the investigators asked Flowers to
submit to a formal interview, which he did. Subsequent to Flowers' s interview, in
which he identified people at the scene of the Lamonte shootings, he was arrested
and arrest warrants were issued for defendant, Monroe, Alice Walker, and Justin
Walker. Following a third interview with Flowers, the police learned that a young
female driving a green Mustang, who was later identified as Danielle Peters, was
also present at, or may have witnessed, the Lamonte shootings.
Flowers, Peters, and Justin Walker testified at defendant' s trial. Each were
present in or near the Lamonte home at the time of the shootings. Each described
defendant as being outside the house during the shootings. Flowers testified
defendant drove him and Monroe to the Lamonte house, gave Monroe a gun, and
later asked Monroe if he " took care of that for me" upon Monroe' s return from the
Lamonte house after the couple had been shot. Moreover, Flowers received a
phone call from defendant while he was being interviewed, which the police
overheard. Defendant informed Flowers that the police were looking for Monroe
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for the murder that had happened last night." Only John testified about the " loan"
of the truck to Austin.
ASSIGNMENT OF ERROR: MISTRIAL
In his sole assignment of error, defendant contends the trial court erred in
denying his motion for mistrial on the basis of John' s statements that he loaned his
truck to Austin and that he testified at Austin' s trial for an unspecified other
offense.
Defendant argues this court' s ruling on a pretrial writ application filed by
the State limited such testimony to three specific witnesses: Flowers, Monroe, and
Peters. Defendant contends that because John could not positively identify
defendant as the passenger with Austin upon his return, the admission of the
testimony was more prejudicial than probative, and only served to confuse the jury.
In response, the State contends that the fact of John loaning his truck to
Austin was res gestae of the instant offense, and that it would be impossible for the
State to prove the alleged offense without reference to another crime occurring.
The State argues that the trial court did not abuse its considerable discretion in
allowing testimony that did not implicate defendant in the unspecified other crime.
The State additionally alleges that it would be absurd to interpret this court' s pre-
trial ruling to mean that other people could testify about this underlying fact,
namely, that John lent his car to Austin, but not John himself was prohibited from
testifying to that fact.
As defendant notes in his brief, the underlying basis of defendant' s
assignment of error has already been subject to pretrial litigation in this court. In
March 2011, the State gave notice of its intent to use evidence of other crimes
committed by defendant pursuant to LSA-C.E. art. 404( B). The State noted that it
intended to offer, as part of its case -in -chief, evidence of defendant' s participation
in two other murders that occurred in July 2009, predating the Lamonte shootings.
The State noted that the purpose of introducing such evidence was to show
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defendant' s motive, intent, and absence of mistake or accident in the murder of
Grace Lamonte. Several Prieur'- hearings were held regarding the State' s motion.
After the trial court ruled that all evidence from the other two murders would be
excluded, the State sought writs. This court found that because defendant had not
been " indicted, tried or convicted of the two prior murders," the trial court " did not
abuse its discretion by denying the State' s request to admit the evidence of these
murders at relator' s trial." State v. Bandy, 2015- 1690 ( La. App. 1st Cir. 1/ 12/ 16)
unpublished writ action).
Defendant then filed eight motions with the trial court, including a motion in
limine to exclude any references to the previous two homicides by trial witnesses.
After conducting additional hearings, the trial court granted defendant' s motion
prohibiting testimony about the other murders. The State again sought writs. This
court found that because the State had to establish as an element of the charged
offense that defendant committed the murder upon a victim who was a family
member of a witness to a crime, the State was entitled to introduce testimony that
an unnamed offense occurred, and that John was a witness thereto. State v. Bandy,
2016.0127 ( La. App. 1st Cir. 1/ 29/ 16) ( unpublished writ action), writ denied,
2016- 0649 ( La. 5/ 27/ 16), 192 So. 3d 739. In ruling on the State' s application for
writs, this court noted specifically that State witnesses Flowers, Monroe, and
Peters should be allowed to testify regarding John lending his truck to Austin and
the truck' s involvement in the previous two homicides.
The trial record reflects that in response to a State question on direct
examination, John acknowledged that he testified against Austin in another trial.
The offense for which Austin was tried was not mentioned. The fact that John
previously testified against Austin was reiterated during John' s cross- examination.
See State v. Prieur, 277 So. 2d 126 ( La. 1973),
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No other witness testified as to any details regarding John " loaning" the truck to
Austin.
At the conclusion of John' s testimony, defense counsel initially sought to
enter an objection on the record to John' s testimony that Austin had a gun during
their truck loan transaction. That objection soon expanded into a contention that it
was improper to allow any reference by John to Austin being tried for some other
offense. Defendant opined that "[ ijt doesn' t take much for a jury to put together
two -and -two, gun murder." Defendant argued that there was a clear instruction
from this court in its initial writ action that no testimony regarding any other
murders would be permitted to be introduced at defendant' s trial. Because of the
allegedly improper testimony, defendant sought a mistrial.
The State responded that John only said that he testified against Austin as a
witness in the trial of an unnamed offense. The trial court agreed with the State
that the reference was consistent with this court' s second writ action and was not
an improper reference to the specific information prohibited by the first writ
opinion. The trial court also observed that the gun reference " didn' t go far, as far
as talking about homicide or murder[.]" In sum, the trial court found that this
testimony did not preclude or render impossible defendant' s ability to obtain a fair
trial, and therefore a mistrial was not warranted.
Louisiana Code of Criminal Procedure article 775 provides for a mistrial
when prejudicial conduct in or outside the courtroom makes it impossible for
defendant to obtain a fair trial. A mistrial is a drastic remedy to be invoked only
when defendant suffers such substantial prejudice that he is deprived of any
reasonable expectation of a fair trial. The decision whether to grant or to deny a
mistrial lies within the sound discretion of the trial court, and will not be disturbed
absent a clear abuse of that discretion. State v. Eason, 2019- 0614 ( La. App. 1st
Cir. 12/ 27/ 19), So. 3d, 2019 WL 7207307, * 8; see also, State v.
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Weary, 2003- 3067 ( La. 4/ 24/ 06), 931 So. 2d 297, 321, cert. denied, 549 U.S. 1062,
127 S. Ct. 682, 166 L. Ed. 2d 531 ( 2006).
A mistrial is warranted under LSA-C. Cr.P. art. 770 when certain remarks are
considered so prejudicial and potentially damaging to a defendant' s rights that
even jury admonition could not provide a cure. The comment must be within
earshot of the jury and must be made by a judge, district attorney, or other court
official. State v. Edwards, 97- 1797 ( La 7/ 2/ 99), 750 So. 2d 893, 906, cert. denied,
528 U.S. 1026, 120 S. Ct. 542, 145 L. Ed. 2d 421 ( 1999). Ambiguous or obscure
references to other crimes made without explanation or elaboration do not
prejudice a defendant. State v. Caminita, 2016- 0121 ( La. App. 1st Cir. 9/ 16/ 16),
203 So. 3d 1100, 1106, writ denied, 2016- 2045 ( La. 9/ 6/ 17), 224 So. 3d 988.
To trigger a mandatory mistrial, a remark must unmistakably point to
evidence of another crime. A mistrial is not required if the remark only " arguably"
points to a prior crime. Edwards, 750 So. 2d at 906; see also State v. Barnes,
2013- 576 ( La. App. 3d Cir. 12/ 11/ 13), 127 So. 3d 1070, 1075, writ denied. 2014-
0043 ( La. 6/ 13/ 14), 140 So. 3d 1188 ( to warrant a mistrial, the imputation must
unambiguously point to defendant and defendant bears the burden of proving that a
mistrial is warranted); State v. Clark, 2005- 652 ( La. App. 5th Cir. 2/ 14/ 06), 924
So. 2d 282, 289, writs denied, 2006- 0622 ( La. 10/ 13/ 06), 939 So. 2d 372 & 2006-
1175 ( La. 1/ 12/ 07), 948 So. 2d 138 ( citing Edwards, 750 So. 2d at 906, a comment
must not " arguably" point to a prior crime; to trigger mandatory mistrial pursuant
to LSA-C. Cr.P. art. 770( 2), the remark must " unmistakably" point to evidence of
another crime); State v. Chambers, 99- 678 ( La. App. 3d Cir. 1/ 19/ 00), 758 So. 2d
231, 236, writ denied, 2000- 0551 ( La. 9/ 22/ 00), 768 So. 2d 600 ( reference to
defendant having an alias may be reference to another crime, but to warrant
mistrial under LSA-C. Cr.P. art. 770, there must be a distinct or recognizable
reference to another crime alleged to have been committed by defendant).
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As an initial matter, defendant is correct that in the second writ action this
court did list the names of three people permitted to reference the fact that John
loaned" the truck to Austin, and that John was not one of them. However,
defendant errs in assuming this court' s ruling was intended to be an exhaustive list.
The underlying fact that John loaned his truck to be used in a subsequent crime is
what defendant was attempting to exclude in the original motion in limine. This
court found that testimony that John loaned his truck to be used in another crime,
regardless of who testified to it, and within all other evidentiary limits, was
admissible. The State was entitled to establish the necessary element of the
charged offense, namely that John was a witness in a criminal prosecution and that
his mother, Grace, died as a consequence. Put simply, there is no better witness to
what John observed than John.
Additionally, even assuming arguendo that the statement was inadmissible,
we are unable to find defendant was prejudiced to such a degree as to warrant the
extreme remedy" of a mistrial. As defendant notes in his brief, the jury was
unclear as to how John and defendant were " associated." John testified about his
interactions with Austin, and only tenuously identified defendant as possibly the
person accompanying Austin upon his return. Furthermore, John did so in
response to defense counsel' s question on cross- examination. There is nothing in
the record showing the State improperly referenced defendant' s alleged
involvement in the two murders. John' s testimony was that he testified at the trial
of a third party. This testimony was proper to establish the element of the charged
offense. Other witnesses, such as Flowers and Peters, were the witnesses used by
the State to implicate defendant in the murder of Grace. In sum, while there was
reference to an " other crime,"
there was nothing presented to the jury suggesting
that defendant was responsible for it. Accordingly, we find no merit to defendant' s
assignment of error.
CONVICTION AND SENTENCE AFFIRMED.
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