State Of Louisiana v. Christopher Nicholls Eason ( 2019 )


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  •                             STATE OF LOUISIANA
    COURT OF APPEAL
    FIRST CIRCUIT
    NO. 2019 KA 0614
    STATE OF LOUISIANA
    VERSUS
    i
    CHRISTOPHER NICHOLLS EASON
    Judgment Rendered:   DEC '   7 2019
    Appealed from the 21" District Court
    In and for the Parish of Tangipahoa
    State of Louisiana
    Case No. 1402849
    Honorable Robert H. Morrison, II, Judge Presiding
    Scott M. Perrilloux                        Counsel for Appellee
    District Attorney                          State of Louisiana
    Patricia Parker Amos
    Assistant District Attorney
    Amite, Louisiana
    Lieu T. Vo Clark                           Counsel for Defendant/Appellant
    Mandeville, Louisiana                      Christopher Nicholls Eason
    Christopher Nicholls Eason                 Defendant/Appellant
    Saint Gabriel, Louisiana                   In Proper Person
    BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
    Lanier, J.
    The defendant, Christopher Eason, was charged by grand jury indictment
    with second degree murder, a violation of La. R.S. 14: 30. 1.              He pled not guilty.
    Following a jury trial,         he   was    found guilty of the responsive offense of
    manslaughter, a violation of La. R.S. 14: 31.          See La. Code Crim. P. art. 814( A)(3).
    He was sentenced to thirty years at hard labor. He now appeals, challenging the
    sufficiency of the evidence, I venue and jurisdiction, his sentence as excessive, and
    the denial of his motions for mistrial and new trial based on alleged juror
    misconduct.'
    For the following reasons, we affirm the defendant's conviction and
    sentence.
    FACTS
    The charred body of the victim, Kimberly Bowman, a white female, was
    recovered from a burned car in Orleans Parish early on October 20,                            2014.
    Examination of the body revealed the victim did not die from smoke inhalation, but
    rather from a fatal gunshot wound through her chest prior to being burned.
    According to expert testimony, the victim survived seconds or minutes after being
    shot, but less than an hour.
    Don Michael Raines testified at trial that he lived at the Contempo Apartments
    in Hammond, and he had sold marijuana to the victim prior to her death. On October
    19, 2014, the victim called " for something," but Raines did not have any drugs to sell.
    In his pro se brief, the defendant claims factual and actual innocence based on an incorrect
    interpretation and reliance on State v. Pierre, 2013- 0873 ( La. 10/ 15/ 13),   
    125 So. 3d 403
     ( per
    curiam) ( which the defendant incorrectly references as "    Pierce").    The defendant does not
    identify any new reliable scientific evidence, eyewitness testimony, or critical physical evidence
    of such persuasiveness that no reasonable juror would have convicted him in light of such
    evidence.   See Pierre, 
    125 So. 3d at 409
    . Instead, also citing Jackson v. Virginia, 
    443 U.S. 307
    ,
    
    99 S. Ct. 2781
    , 
    61 L.Ed. 2d 560
     ( 1979),   the defendant simply alleges there was no scientific,
    eyewitness, or physical evidence to support his conviction, which we therefore construe as a
    challenge to the sufficiency of the evidence to support his conviction.
    2 In pro se assignment of error number three, the defendant argues " THE APPELLATE
    ATTORNEY        PROVIDED        INEFFECTIVE        ASSISTANCE       OF    COUNSEL        BY    NOT
    CHALLENGING THE RETURNED VERDICT OR THE IMPOSED                                 SENTENCE."      The
    defendant reserves this claim for post -conviction relief.
    4
    Raines told the victim " she could come through, somebody would be out there."          The
    victim told Raines to " give her a few minutes"   because she was cashing a check at
    the " money center"   in Walmart.   According to Raines, the defendant was at a dice
    game across the street when Raines yelled to him, " that a girl going to be coming
    through trying to get some smoke, and she was going to pull up across the street."
    Thereafter, Raines heard two gunshots and saw a car speeding off. He believed it
    was the same car the victim had used the previous day when buying drugs from him.
    Raines called the victim' s phone, but there was no answer.        He then called the
    defendant's phone, and initially, there was also no answer.     Raines, however, kept
    calling both phones.    The defendant eventually answered and was frantic, stating
    she's bleeding, she's bleeding," and then hung up.
    According to Raines, the defendant came to Raines'         apartment    the   next
    morning and told him "[ the victim] upped with a gun and [ the defendant] had to
    shoot her[.]"   The defendant also told Raines that after shooting the victim, the
    defendant drove her to New Orleans and " set the car on fire."     The defendant told
    Raines to dispose of Raines' phone because the victim had called him. Raines denied
    killing the victim.
    Johnny Ray Walker also testified at trial. In October 2014, he was living with
    the defendant, the defendant's girlfriend Elexis Maryland, her brother, and her
    daughter in an apartment in the Contempo Apartments.            Walker had been on
    probation for carnal knowledge of a juvenile. He had failed to report to his probation
    officer, and an arrest warrant was outstanding for him.    Walker testified that on the
    night in question, the defendant told him, "[ the defendant]   was going to go hit a
    lick[,]" which was street talk for " to try to get any means of money,"       or " to   do
    something wrong."      The defendant stated he had an " easy lick" for money from a
    white female.   Walker testified he unsuccessfully tried to dissuade the defendant from
    his plan, both "[ b] ecause it was wrong," and because Walker was afraid of any police
    3
    attention due to his outstanding warrant.              Walker later fell asleep while playing
    games on his phone.
    Walker awoke to his phone ringing. The defendant was on the line and stated
    he " just committed a murder" in the back of the Contempo Apartments.                     The
    defendant further told Walker that he had driven the body to New Orleans and
    burned it in the car.      According to Walker, the defendant told him that " he [ the
    defendant] walked up to the car and tried to rob her or whatever, and he pulled a gun,
    and she pulled a gun, and he shot her."          The defendant then told Walker to let him
    talk to Maryland.       Thereafter, Walker and Maryland drove to New Orleans and
    picked up the defendant.
    Antoine     Schaffer   also   testified   at    trial.   He   and the   defendant were
    associates,"   and the defendant confided in him. Schaffer testified the defendant told
    him " they were      supposed to have a lick." A white lady was " supposed to come
    through to get ...    some weed."    The defendant was supposed to sell the lady drugs,
    but [ the defendant] reached for his gun because he was going to pull a lick."           The
    victim, however, also reached for her gun.             They wrestled and, in the struggle, the
    defendant shot the victim. The defendant pushed the victim over, got into her car and
    left. He drove the car to " some projects" in New Orleans and " burned the car up."
    The defendant then called his girlfriend.
    The defendant also testified at trial.         In 2014, he was living with Maryland in
    the Contempo Apartments in Hammond.                   According to the defendant, during the
    night of October 19, 2014, Raines called him and wanted the defendant to " ride
    somewhere with him."        The defendant met Raines at Raines' apartment and walked
    with him to a car parked about thirty seconds away.             The defendant claimed Raines
    left his phone with his girlfriend and told her to call the defendant if she needed to
    contact Raines.      The defendant testified Raines opened the door of the car, revealing
    a body on the front floor of the vehicle. The defendant claimed he was scared and
    4
    initially refused to get in the vehicle, but eventually got into the vehicle because he
    was afraid Raines would shoot him if he tried to run away.             According to the
    defendant, Raines stated " we have to go somewhere and get rid of the body."         The
    defendant claimed Raines then drove the vehicle to an abandoned building in New
    Orleans.   According to the defendant, once they arrived, he made an excuse to leave,
    stating he was " going to go get some help from somebody."           The defendant then
    borrowed a phone and called Maryland to come and pick him up.             The defendant
    denied murdering the victim. He also denied confessing that he had killed someone
    to Walker and Schaffer.        Analysis of cell site information indicated that Raines'
    phone did not leave the Hammond area between 9: 00 p.m. on October 19, 2014 and
    6: 00 a. m. on October 20, 2014.
    SUFFICIENCY OF THE EVIDENCE
    In pro se assignment of error number two, the defendant argues the evidence
    was insufficient to support the conviction because " not one of the witnesses were
    testifying on a personal eyewitness account that they saw Defendant pull the
    trigger that ended the life of the victim." The defendant further complains that the
    State failed to present scientific or physical evidence that he killed the victim.
    In cases such as this one, where the defendant raises issues on appeal both as
    to the sufficiency of the evidence and as to one or more trial errors, the reviewing
    court should preliminarily determine the sufficiency of the            evidence,   before
    discussing the other issues raised on appeal. When the entirety of the evidence, both
    admissible and inadmissible, is sufficient to support the conviction, the accused is not
    entitled to an acquittal, and the reviewing court must review the assignments of error
    to determine whether the accused is entitled to a new trial.      State v. Hearold, 
    603 So. 2d 731
    , 734 ( La. 1992);    State v. Smith, 2003- 0917 ( La. App. 1 Cir. 12/ 31/ 03),
    
    868 So. 2d 794
    , 798.
    5
    A conviction based on insufficient evidence cannot stand as it violates Due
    Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review
    for the sufficiency of the evidence to uphold a conviction is whether, viewing the
    evidence in the light most favorable to the prosecution, any rational trier of fact could
    have found the essential elements of the crime beyond a reasonable doubt. Jackson
    v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2789, 
    61 L.Ed.2d 560
     ( 1979).                      See
    also La. Code Crim. P. art. 821( B); State v. Ordodi, 2006- 0207 ( La. 11/ 29/ 06), 
    946 So.2d 654
    , 660.          The Jackson standard of review, incorporated in Article 821, is an
    objective standard for testing the overall evidence, both direct and circumstantial, for
    reasonable doubt.         State v. Mitchell, 2016- 0834 ( La. App. 1 Cir. 9/ 21/ 17), 
    231 So.3d 7101
     731, writ denied, 2017- 1890 ( La. 8/ 31/ 18), 
    251 So. 3d 410
    .
    When a conviction is based on both direct and circumstantial evidence, the
    reviewing court must resolve any conflict in the direct evidence by viewing that
    evidence      in   the    light   most   favorable       to   the   prosecution.   When analyzing
    circumstantial evidence, La. R.S. 15: 438 provides that, in order to convict, the fact
    finder must be satisfied that the overall evidence excludes every reasonable
    hypothesis of innocence.            The facts then established by the direct evidence and
    inferred from the circumstances established by that evidence must be sufficient for a
    rational trier of fact to conclude beyond a reasonable doubt that the defendant was
    guilty of every essential element of the crime. State v. Watts, 2014-0429 ( La. App.
    1 Cir. 11/ 21/ 14), 
    168 So.3d 441
    , 444, writ denied, 2015- 0146 ( La. 11/ 20/ 15), 
    180 So. 3d 315
    .
    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
    0
    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 returned by the jury. 
    Id.
    In this case, there was no objection to the instruction on the responsive
    verdict    of   manslaughter.       The jury's ultimate      reasoning   for returning this
    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 is the killing of a human being when the offender has a
    specific intent to kill or to inflict great bodily harm. La. R. S. 14: 30. 1( A)(1).   Specific
    criminal intent is that state of mind that exists when the circumstances indicate that
    the offender actively desired the prescribed criminal consequences to follow his act
    or failure to act. La. R. S. 14: 10( 1).   Though intent is a question of fact, it need not be
    proven as a fact.      It may be inferred from the circumstances of the transaction.
    Specific intent may be proven by direct evidence, such as statements by a defendant,
    or by inference from circumstantial evidence, such as a defendant's actions or facts
    depicting the circumstances.        Specific intent is an ultimate legal conclusion to be
    resolved by the fact finder. Specific intent to kill may be inferred from a defendant' s
    act of pointing a gun and firing at a person. State v. Henderson, 99- 1945 ( La. App.
    I Cir. 6/ 23/ 00), 
    762 So. 2d 747
    , 751, writ denied, 2000- 2223 ( La. 6/ 15/ 01),         
    793 So. 2d 1235
    .
    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 Raines, Walker, and Schaffer that the defendant shot the victim. 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 a determination of 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
    fact finder's determination of guilt.      State v. Taylor, 97- 2261 ( La. App. 1 Cir.
    9/ 25/ 98), 
    721 So. 2d 929
    , 932.     We are constitutionally precluded from acting as a
    thirteenth juror" in assessing what weight to give evidence in criminal cases.           See
    State v. Mitchell, 99- 3342 ( La. 10/ 17/ 00), 
    772 So. 2d 78
    , 83.
    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 jury's verdict also reflects the reasonable rejection of the
    defendant's theory that Raines murdered the victim. An appellate court errs by
    substituting its appreciation of the evidence and credibility of witnesses for that of
    the fact finder and thereby overturning a verdict on the basis of an exculpatory
    hypothesis of innocence presented to, and rationally rejected by, the fact finder.
    0
    See State v. Calloway, 2007- 2306 ( La. 1/ 21/ 09), 
    1 So. 3d 417
    , 418 ( per curiam).
    Further, in accepting a hypothesis of innocence that was not unreasonably rejected
    by the factfinder, 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). We
    cannot say that the jury's determination was irrational under the facts and
    circumstances presented to it. Ordodi, 946 So. 2d at 662.
    We    also   reject the   defendant' s challenge to his conviction based on
    insufficient scientific or physical evidence.    Initially, we note the availability of
    scientific or physical evidence in this matter was limited due to the burning of the
    victim's body and car. Further, the district attorney has broad discretion in both the
    institution and handling of criminal prosecutions.     La. Const. art. V, § 26( B); La.
    R. S. 16: 1( B).   He may decide whom, when, and how to prosecute. La. Code Crim.
    P. art. 61; State v. Walker, 2000- 0334 ( La. App. 1 Cir. 12/ 22/ 00), 
    775 So. 2d 663
    ,
    666, writ denied, 2001- 0235 ( La. 12/ 7/ 01), 
    803 So. 2d 23
    .    The district attorney
    acted within his broad discretion in prosecuting this matter.
    This assignment of error is without merit.
    VENUE AND JURISDICTION
    In pro se assignment of error number one, the defendant argues the trial
    court was an improper venue and lacked jurisdiction to hear the case because the
    victim's body was recovered in Orleans Parish.
    A district court has original jurisdiction over all criminal matters and
    exclusive original jurisdiction of felony cases.     See La. Const. art. V, § 16( A);
    State v. Bell, 2014- 1046 ( La. App. 1 Cir. 1/ 15/ 15),   
    169 So. 3d 417
    , 425.   Every
    person charged with a crime is presumed innocent and entitled to a speedy, public,
    and impartial trial in the parish where the offense or an element of the offense
    occurred, unless venue is changed in accordance with law. La. Const. art. I, § 16.
    Louisiana       Code    of Criminal   Procedure   article   611,   in pertinent part,
    provides:
    A. All trials shall take place in the parish where the offense has
    been committed, unless the venue is changed. If acts constituting an
    offense or if the elements of an offense occurred in more than one
    place, in or out of the parish or state, the offense is deemed to have
    been committed in any parish in this state in which any such act or
    element occurred.
    B.
    If the offender is charged with any criminal homicide
    enumerated in R.S. 14: 29 or any other crime involving the death of a
    human being and it cannot be determined where the offense or the
    elements of the offense occurred, the offense is deemed to have been
    committed in the parish where the body of the victim was found.
    Venue is not an essential element of the crime to be proven by the State at
    trial;   rather,    it   is   a jurisdictional matter to be proven by the State by a
    preponderance of evidence and decided by the court in advance of trial. La. Code
    Crim. P art. 615.         Critically, venue is a factual question and, on appeal, review is
    limited to whether the State submitted some evidence of proper venue.                As such,
    review of the issue on appeal is not concerned with weighing the sufficiency of the
    evidence presented by the State. Finally, a trial court' s ruling on a motion to quash
    is discretionary and should not be reversed absent a clear abuse of discretion.
    State v. Gross, 2018- 1014 ( La. App. 1 Cir. 2/ 25/ 19), 
    273 So. 3d 317
    , 321,             writ
    denied, 2019- 00498 ( La. 9/ 17/ 19), 
    278 So. 3d 972
    .
    Prior to trial, the defendant moved to quash,           alleging the court lacked
    jurisdiction due to improper venue.            At the hearing on the motion, the State
    presented testimony from Tangipahoa Parish Sheriffs Office Detective Dale
    Athmann.      Detective Athmann testified the autopsy of the victim indicated she died
    from a gunshot wound, rather than from being burned. Further, Adrian Guidry
    provided information that the murder had taken place in Tangipahoa Parish and
    that information was corroborated by Raines.          The trial court denied the motion to
    quash, referencing " evidence         presented that the trail of events leading up to the
    10
    alleged crime ...     commenced in Tangipahoa Parish."           There was no clear abuse of
    discretion in the denial of the motion to quash.'
    This assignment of error is without merit.
    EXCESSIVE SENTENCE
    In pro se assignment of error number four, the defendant argues " the sentence
    imposed by the trial court is excessive and a wrongful imposition of pain and
    suffering."    He claims he " received a communication from the judge and his court
    appointed attorney that he would probably receive a sentence of 8 — 12 years."                 He
    further claims " there was not sufficient evidence to sentence Defendant to thirty years
    of his life for riding in a vehicle."
    We address this assignment of error, even in the absence of a timely motion to
    reconsider     sentence   or   a   contemporaneous       objection,   because     the   defendant
    complains in pro se assignment of error number three that counsel was ineffective
    by not challenging ...     the imposed sentence."       See State v. Allen, 2005- 1622 ( La.
    App. 1 Cir. 3/ 29/ 06), 
    934 So. 2d 146
    , 155.
    A claim of ineffectiveness of counsel is analyzed under the two pronged test
    developed by the United States Supreme Court in Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L.Ed.2d 674
     ( 1984).          In order to establish that his trial
    attorney    was    ineffective,    the   defendant   must   first   show   that   the   attorney' s
    performance was deficient, which requires a showing that counsel made errors so
    serious that he was not functioning as counsel guaranteed by the Sixth Amendment.
    Secondly, the defendant must prove that the deficient performance prejudiced the
    defense.    This element requires a showing that the errors were so serious that the
    defendant was deprived of a fair trial; the defendant must prove actual prejudice
    3 Indeed, even if the victim survived until entering Orleans Parish, Tangipahoa Parish was still a
    proper venue for this matter because the defendant shot the victim in Tangipahoa Parish at the
    outset of a continuous chain of events that, under this theory, led to her death in Orleans Parish.
    See La. Code Crim. P. art. 611( A); State v. Bordelon, 2007- 0525 ( La. 10/ 16/ 09), 
    33 So. 3d 842
    ,
    863 n. 7 ( per curiam).
    11
    before relief will be granted. It is not sufficient for the defendant to show that the
    error had some conceivable effect on the outcome of the proceeding. Rather, he must
    show that but for the counsel' s unprofessional errors, there is a reasonable probability
    the outcome of the trial would have been different.           Further, it is unnecessary to
    address the issues of both counsel' s performance and prejudice to the defendant if the
    defendant makes an inadequate showing on one of the components.                  Allen, 934
    So.2d at 155.
    Article I, Section 20 of the Louisiana Constitution prohibits the imposition of
    excessive punishment.
    Although a sentence may be within statutory limits, it may
    violate a defendant' s constitutional right against excessive punishment and is subject
    to   appellate   review.    A sentence is constitutionally excessive if it is grossly
    disproportionate to the severity of the offense or is nothing more than a purposeless
    and needless imposition of pain and suffering. A sentence is grossly disproportionate
    if, when the crime and punishment are considered in light of the harm done to
    society, it shocks the sense of justice. A district court is given wide discretion in the
    imposition of sentences within statutory limits, and the sentence imposed by it should
    not be set aside as excessive in the absence of manifest abuse of discretion. State v.
    Forrest, 2016- 1678 ( La. App. 1 Cir. 9/ 21/ 17), 
    231 So. 3d 865
    , 872, writ denied,
    2017- 1683 ( La. 6/ 15/ 18), 
    257 So. 3d 687
    .
    The Louisiana Code of Criminal Procedure sets forth items that must be
    considered by the district court before imposing sentence.       See La. Code Crim. P. art.
    894. 1.    The district court need not recite the entire checklist of Article 894. 1, but the
    record must reflect that it adequately considered the guidelines.           In light of the
    criteria expressed by Article 894. 1,      a review for individual excessiveness should
    consider the circumstances of the crime and the district court' s stated reasons and
    factual basis for its sentencing decision.     Remand for full compliance with Article
    12
    894. 1 is unnecessary when a sufficient factual basis for the sentence is shown.
    Forrest, 231 So. 3d at 872.
    As applicable here, whoever commits manslaughter shall be imprisoned at
    hard labor for not more than forty years.                 La. R.S. 14: 31( B).    The defendant was
    sentenced to thirty years at hard labor.
    In sentencing the defendant, the trial court noted it had considered the
    factors relative to imposition of sentence and " the extreme nature of certain — of
    the circumstances involved in this case."                 The court further noted it had reviewed
    the presentence investigation report and " mitigation,"                  and added, "    I do take into
    account the fact that I'm not apprised of any prior felony convictions."
    A thorough review of the record reveals the trial court adequately considered
    the criteria of Article 894. 1 and did not manifestly abuse its discretion in imposing
    the sentence herein.          See La. Code Crim. P.              art.   894. 1( A)(3), ( B)( 6), ( B)( 9)   9
    13)( 10), ( 13)( 18), ( 13)( 21), ( 13)( 28).    Further, the sentence imposed was not grossly
    disproportionate to the severity of the offense, and thus, was not unconstitutionally
    excessive.     Additionally, the instant record contains no evidence of a sentencing
    agreement for " a sentence of 8 — 12 years."                Only matters contained in the record
    can be reviewed on appeal.            State v. Lavy, 2013- 1025 ( La. App. 1 Cir. 3/ 11/ 14),
    
    142 So. 3d 1000
    , 1007, writ denied, 2014- 0644 ( La. 10/ 31/ 14), 
    152 So. 3d 150
    . We
    also reject the claim that the defendant was sentenced to thirty years at hard labor
    for " riding    in a vehicle."         To the contrary, the defendant was sentenced for
    murdering the victim.
    In regard to the defendant's ineffective assistance of counsel claim for failing
    to preserve review of the sentence for excessiveness,                       we   note,   even assuming
    arguendo,      defense counsel performed deficiently in failing to timely move for
    reconsideration      of the    sentence,        the defendant suffered no prejudice from the
    deficient performance because this court considered the defendant's excessive
    13
    sentence argument in connection with the ineffective assistance of counsel claim.
    See Allen, 934 So. 2d at 157.
    This assignment of error is without merit.
    JURY MISCONDUCT
    The defendant combines counseled assignments of error numbers one and two
    for argument.   He contends the trial court erred in denying the motions for mistrial
    and new trial because there was jury misconduct.             He argues removing Juror
    Matthew Stogner " did not solve the problem that there was the possibility that several
    other jurors may have seen or read articles that contained extraneous information not
    heard during trial testimony."
    A criminal defendant has a Sixth Amendment right to a fair trial by a panel of
    impartial, indifferent jurors.    Louisiana Code of Criminal Procedure article 797
    protects a defendant's right to an impartial jury. See also La. Const. art. I, § 16. It is
    essential that all facts considered by the jury be presented in the courtroom with the
    full protection of the defendant's rights to confrontation and due process.          A juror
    who considers evidence not developed or admitted at trial violates his sworn duty and
    may be guilty of misconduct.         Therefore,   if a reasonable possibility exists that
    extraneous information considered by the jury affected its verdict, a new trial is
    mandated.     State v. Hudson, 2017- 0154 ( La.       App.   1   Cir. 9/ 15/ 17),   
    2017 WL 4082424
    , at * 6, writ denied, 2017- 1735 ( La. 6/ 1/ 18), 
    243 So. 3d 1065
    .
    Louisiana Code of Criminal Procedure article 775 provides for a mistrial when
    prejudicial conduct in or outside the courtroom makes it impossible for the defendant
    to obtain a fair trial.   A mistrial is a drastic remedy to be invoked only when the
    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. Juror misconduct is not grounds for an automatic mistrial;
    14
    prejudice must also be established. Thus, a mistrial is not warranted on the basis of a
    juror's exposure to publicity absent a determination that the juror was actually
    exposed to the publicity in question and was so impressed by it as to be incapable of
    rendering a fair and impartial verdict.     The trial court has the discretion to use the
    services of alternate jurors rather than to grant a mistrial upon a proper finding that
    this is the best course of action. 
    Id.
    The motion for a new trial is based on the supposition that injustice has been
    done the defendant, and, unless such injustice is shown to have been the case, the
    motion shall be denied, no matter upon what allegations it is grounded.           La. Code
    Crim. P. art. 851( A). The court, on motion of the defendant, shall grant a new trial
    whenever the court' s ruling on an objection made during the proceedings shows
    prejudicial error.   See La. Code Crim. P. art. 851( B)( 2).   The denial of a motion for a
    new trial is not subject to appellate or supervisory review of the supreme court,
    except for error of law. See La. Code Crim. P. art. 858.       Whether to grant or deny a
    motion for new trial rests within the sound discretion of the trial court, and that
    decision will not be disturbed on appeal absent a clear abuse of discretion. Hudson,
    
    2017 WL 4082424
    , at * 7.
    During the presentation of the State' s case on the last day of trial, outside of the
    presence of the jury, the court advised the State and the defense that Juror Eva
    Francois had reported that " one of our other jurors somehow has done some research
    on the Internet."    The court had Juror Francois brought into the courtroom by herself
    and   sworn.   Juror Francois indicated that another juror had stated, " I        probably
    shouldn't have done it, but I Googled something."           Juror Francois further stated,
    e] verybody wasn't in there at the time. It was only a few people.       She just said she
    had Googled something."         Juror Francois added, " I just heard her     say something
    about a previous case that was mentioned.         Something like that."   The State and the
    defendant were permitted to question Juror Francois, and the State asked her, "[ d] id
    15
    you hear anything from her conversation in any way at all that would change your
    opinion in any way or direct you in any way?"              Juror Francois answered, "[ o] h,
    absolutely not, ...   because I feel like you should be totally open- minded because this
    is so important."
    Thereafter, the court had each juror individually brought into the courtroom,
    sworn, and made available for questioning by the court and the parties concerning
    whether they had any information concerning the allegation of a juror " Googling" or
    Internet checking" on the case.          Juror Kennasha Barnes answered the question
    negatively,   but indicated    she    had "   glanced"   at yesterday's newspaper at her
    grandfather's house.    She testified nothing she saw or read in any way influenced her
    opinion in the case because she " didn't really read [ the article]."      She stated other
    jurors had said " how they saw it on the news and the newspaper, and I just mentioned
    that I saw it in the newspaper.       I didn't read anything."   She indicated she had no
    knowledge, outside the presence of the courtroom,            of any facts whatsoever that
    would affect the case of the State or the defendant positively or negatively.
    Juror Danita Maxsween was also unaware of any juror doing independent
    research about the case.    She indicated, however, "[ s] omeone went to a convenience
    store to get something and happened to notice the front page that just said something
    about a trial being conducted."      She also reported that "[ s] omeone spoke this morning
    about the case was on the news."          She indicated nothing she had heard from the
    jurors in question had positively or negatively swayed her opinion about the case.
    Juror Victoria Sarafinis was also unaware of any juror doing independent
    research about the case.      In regard to whether any juror had been exposed to the
    newspaper article, she indicated, one or two of the jurors " heard it was on the front
    page.    That was it."      Juror Sarafinis indicated she had no outside information
    whatsoever that would influence her decision in any way for either side.
    Q.
    Juror Arthur Shilling was also unaware of any juror doing independent
    research about the case.        In regard to whether any juror had been exposed to the
    newspaper      article,   he indicated Juror Stogner had stated his wife " was reading
    something,"     and Juror Stogner told her " he didn't want to know about it or
    whatever[.]"     Juror Shilling stated, "[ Juror Stogner] wasn't directly speaking that. It
    was just a comment.        I don't think he was addressing anybody."   When asked if there
    was any outside influence whatsoever that would influence him in any way for or
    against either side, Juror Schilling answered, "[ a] bsolutely not."
    Juror Melanie Giangrosso was also unaware of any juror doing independent
    research about the case.        In regard to whether any juror had been exposed to the
    newspaper      article,   she indicated, she had "[   h] eard somebody say that they —
    somebody told them that they saw a murder trial in Hammond or whatever, but that
    was it."    She indicated she had no outside information whatsoever that would
    influence her decision for or against either side.      She further indicated none of her
    fellow jurors had expressed to her that they had any outside information that would
    influence them for or against either side.
    Juror Matthew Stogner stated he had heard that " people"           were " pulling   up
    newspapers" because some of the jurors were getting text messages that " this is in the
    Hammond Daily Star." He testified, however, he was not aware of any jurors talking
    about any details or things that have been said or things that are supposed to have
    been fact or not.     Juror Stogner stated he read the newspaper daily and had read the
    article concerning the case. The article did not affect him by influencing his opinion
    one way or another.
    The defense moved for a mistrial arguing that the defendant would be unable
    to receive a fair trial due to the actions of and failure to obey the instructions of the
    jury." The State responded that it did not appear any jurors were discussing facts or
    conclusions of the case and no determinations were made or outside influences
    17
    exerted that would cause the jurors to draw a conclusion contrary to the court's order
    as to what is the law.
    The trial court denied the motion for a mistrial and noted the objection of the
    defense to the ruling. The court found that while some of the jurors may have been
    exposed to the fact that there was an account about the trial in the local newspaper, it
    did not find that the account influenced them or provided any information that would
    have influenced them.      Thereafter, the defense moved to strike Juror Stogner from
    the jury. The court granted the motion.
    The court introduced into the record only a copy of The Daily Star newspaper
    from the previous day. The headline on the first page was " Murder trial underway[.]
    Attorney points to discrepancies in testimony[.]" The article described the defendant
    as sitting " apparently unfazed"     by the testimony he heard on the first day of his
    second-degree murder trial.        The article indicated the defendant was accused of
    murdering the victim in a " botched drug deal."      It went on to state, "[ t]he case took an
    interesting, if not an inaccurate, turn when Don Raines, 36 of Hammond, was called
    to the stand. Raines is currently awaiting a murder charge on a separate case."
    Prior to sentencing, the defense moved for a new trial, claiming prejudicial
    conduct had occurred during the trial and " justice would be met by granting a new
    trial."   The defense argued Juror Stogner had read an article about the trial and the
    article involved evidence not brought out at trial, specifically, " the prior convictions
    of Adrian Guidry, a witness who did not have the opportunity to testify during trial."'
    The defense claimed Juror Stogner had " spoke about reading or seeing the article
    with other jurors."
    The State responded that the court had " meticulously" examined each juror to
    gauge the impact, if any, of the newspaper article and only one juror was removed.
    The State noted each juror had stated under oath that he or she had not received any
    4 Adrian Guidry was not mentioned in the newspaper article introduced into the record.
    18
    outside influence and had not been influenced in any way to vote for or against either
    side.
    The trial court denied the motion for new trial. The court noted that once the
    information concerning a juror conducting independent research was discovered, it
    went through a process that adequately showed there was no tainting of the jury by
    the juror who disregarded the court's instructions with respect to media. The court
    found " I did not determine and will not determine that the jurors were tainted to the
    point that a new trial should be granted for that."
    There was no clear abuse of discretion in the denial of the motion for mistrial.
    Juror Stogner was removed from the jury, and while other jurors may have been
    exposed to the publicity in question, the defendant failed to establish that they were
    so impressed by it as to be incapable of rendering a fair and impartial verdict. There
    was also no clear abuse of discretion in the denial of the motion for new trial. The
    defendant failed to show that the denial of the motion for mistrial resulted in injustice
    to him.
    These assignments of error are without merit.
    CONVICTION AND SENTENCE AFFIRMED.
    19
    

Document Info

Docket Number: 2019KA0614

Filed Date: 12/27/2019

Precedential Status: Precedential

Modified Date: 10/22/2024