unlawful exclusion of grand jurors of defendant’s race
How later courts described this case
- unlawful exclusion of grand jurors of defendant’s race
- lack of an impartial trial judge
- reversal required when judge has financial interest in conviction, despite lack of indication that bias influenced decisions
- a total deprivation of the right to counsel
Written by the judges who cited it.
The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
23-189 consolidated with 23-190
STATE OF LOUISIANA
VERSUS
JORDAN D. JOHNSON
**********
APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NOS. 18-4175, 18-4175A
HONORABLE KATHY A. JOHNSON, DISTRICT JUDGE
**********
WILBUR L. STILES
JUDGE
**********
Court composed of Candyce G. Perret, Jonathan W. Perry, and Wilbur L. Stiles,
Judges.
AFFIRMED.
Holli Ann Herrle-Castillo
Louisiana Appellate Project
P.O. Box 2333
Marrero, LA 70073
(504) 345-2801
COUNSEL FOR DEFENDANT/APPELLANT:
Jordan D. Johnson
Bradley R. Burget
District Attorney
Karla Shirley-McHand
Assistant District Attorney
Seventh Judicial District
301 Bushley S., 3rd floor
Harrisonburg, LA 71340
(318) 744-5232
COUNSEL FOR APPELLEE:
State of Louisiana
Jordan D. Johnson
Louisiana State Prison
17544 Tunica Trace
Angola, LA 70712
IN PROPER PERSON
STILES, Judge.
On December 15, 2021, a jury unanimously found Defendant Jordan D.
Johnson guilty of second degree murder, a violation of La.R.S. 14:30.1, and
possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. On
January 25, 2022, the district court sentenced Defendant to life imprisonment for
second degree murder and twenty years at hard labor for possession of a firearm by
a convicted felon.
Defendant now appeals, assigning two errors through counsel. He has also
filed a pro se brief assigning multiple errors. For the reasons set forth below, we
affirm Defendant’s convictions and sentences. 1
FACTS AND PROCEDURAL HISTORY
The current charges stem from a shooting that happened at a party venue
known as the “Suga Shack” in Jonesville, Louisiana, on December 15, 2018. A party
was held at the Suga Shack on the night of December 14, which both the victim and
Defendant attended. While Defendant rapped, the victim was among the partygoers
who danced. The victim bumped into Defendant, which precipitated a fight.
Defendant pulled out a gun and shot the victim multiple times. Medical testimony
revealed that the victim suffered six gunshot wounds, five of which inflicted fatal
damage. Defendant fled to Natchez, Mississippi, where he was apprehended by law
enforcement around noon on December 15, 2018.
On April 22, 2019, a Catahoula Parish Grand Jury indicted Defendant for
second degree murder, a violation of La.R.S. 14:30.1, and possession of a firearm
by a convicted felon, a violation of La.R.S. 14:95.1, in two separate bills under
1
Due to the fact that Defendant was charged under two docket numbers at the district court
level, he was assigned two docket numbers on appeal. These cases remain consolidated.
separate docket numbers. On November 9, 2021, the district court ordered that the
cases be consolidated.
The parties selected a jury on December 13, 2021. Said jury began hearing
evidence on December 14, 2021, and found Defendant guilty of both charges on
December 15, 2021. On January 25, 2022, the district court sentenced Defendant to
life imprisonment for second degree murder and twenty years at hard labor for
possession of a firearm by a convicted felon.
Defendant appeals his convictions and sentences. Counsel filed an appellant
brief asserting two assignments of error:
1. The trial court erred in excusing a juror under the former version of
La. C.Cr.P. art. 401(5).
2. The trial court erred in failing to grant the defense’s motion for
mistrial, or alternatively, dismiss juror Ti Jolly.
Defendant also filed a pro se brief, asserting multiple errors.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, this court reviews all appeals
for errors patent on the face of the record. After reviewing the record, we find no
errors patent.
PRO SE ASSIGNMENT OF ERROR NO. 1
In Defendant’s first pro se assignment of error, he alleges there is a defect in
the indictment. We will address this assignment first, as he alleges a lack of
jurisdiction. Defendant claims “[t]he State of Louisiana Court has nothing to do with
this case.” He also complains that “[t]here was no presentment to the Federal
Magistrate.” It is unclear from his brief why Defendant thinks that Louisiana lacks
jurisdiction or why he believes this should be a federal matter.
2
Defendant is certainly aware of the indictments in this case, as he has attached
copies of them to his pro se brief. He includes a handwritten note on the indictment
for second degree murder in which he reiterates his argument that a federal grand
jury or a federal magistrate should have been involved. Again, he provides no clear
argument to support his claim. Although Defendant repeatedly includes the term
“parens patriae” in his argument, this legal concept typically arises in civil or
juvenile cases in which the State exercises its inherent authority to protect the weak,
e.g., children. See, e.g., State ex rel. A.J., 09-477 (La. 12/1/09), 27 So.3d 247; State
ex rel. D.J., 01-2149, (La. 5/14/02), 817 So.2d 26; and State ex rel. J.A., 99-2905
(La. 1/12/00), 752 So.2d 806. Defendant does not explain what the principle has to
do with him or how it supports federal authority over his state felony. The first two
cases he cites in his brief are Supreme Court cases from the 1930s that address New
Deal-era matters. He also mentions “falsifying records,” but this appears to be part
of his overall claim that the State usurped jurisdiction from the federal government.
After consideration, we find that Defendant fails to raise any recognizable
legal basis for relief. This assignment of error lacks merit.
PRO SE ASSIGNMENT OF ERROR NO. 3
In his third pro se assignment of error, Defendant appears to allege that the
state court lacked jurisdiction over him because he is Native American. We address
this assignment here because, like the previous assignment, it asserts the state court
lacked jurisdiction over him. Defendant cites nothing in the record to show that he
is Native American. In fact, he does not cite to the record at all in this portion of his
argument. Uniform Rules—Courts of Appeal, Rule 2–12 12.4(B)(3) provides, “The
court may not consider the argument on an assignment of error or issue for review
if suitable reference to the specific page numbers of the record is not made.”
3
Furthermore, our survey of the record has revealed no references to Defendant being
Native American. Defendant is identified at various points in the record and
throughout the testimony at trial as a “black male” or an “African-American male.”
As there is nothing in the record to support this assignment, we find that it
lacks merit.
PRO SE ASSIGNMENT OF ERROR NO. 8
Having discussed the pro assignments that appear to challenge jurisdiction,
we now address Defendant’s challenge to the sufficiency of the evidence. Such an
argument must be addressed before other non-jurisdictional assignments because a
finding of insufficiency would require Defendant’s acquittal. State v. Hearold, 603
So.2d 731 (La.1992).
The analysis for sufficiency claims is well-settled:
When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after 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 proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v.
Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d
559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order
for this Court to affirm a conviction, however, the record must reflect
that the state has satisfied its burden of proving the elements of the
crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
The jury convicted Defendant of second degree murder, a violation of La.R.S.
14:30.1, which states, in pertinent part, “A. Second degree murder is the killing of a
4
human being: (1) When the offender has a specific intent to kill or to inflict great
bodily harm[.]”
Multiple eyewitnesses identified Defendant as the man who shot the victim
multiple times. Lakisica Bowman, Damon Price, Jasmine Davis, Shyonna Jones,
Lakia Weatherspoon, Devonte Lloyd, and Jada Griggs all identified Defendant as
the shooter through their testimony at trial. Dr. Christopher Tape, a forensic
pathologist, testified that the victim was shot six times, and that any one of five of
those gunshots would have been fatal.
Our review indicates that Defendant’s argument lacks clarity. He appears to
attack the credibility of an unnamed State witness, claiming “one witness change
[sic] her statement to help the prosecutor.” However, as stated in Kennerson,
reviewing courts will not second-guess a fact-finder’s credibility determination.
Also, the argument ignores the plethora of eyewitnesses produced by the State. Even
if the unnamed witness’s credibility was somehow shown to be vulnerable, there
were several other witnesses who named Defendant as the culprit. Defendant also
complains that hearsay was improperly used against him, but even inadmissible
hearsay will not void a conviction in a Jackson analysis. Hearold, 630 So.2d 731.
Thus, the argument regarding Defendant’s second degree murder conviction lacks
merit.
The jury also convicted Defendant of possession of a firearm by a convicted
felon, a violation of La.R.S. 14:95.1(A)(footnote omitted), which states, in pertinent
part:
It is unlawful for any person who has been convicted of, or has been
found not guilty by reason of insanity for, a crime of violence as defined
in R.S. 14:2(B) which is a felony or simple burglary, burglary of a
pharmacy, burglary of an inhabited dwelling, unauthorized entry of an
inhabited dwelling, felony illegal use of weapons or dangerous
5
instrumentalities, manufacture or possession of a delayed action
incendiary device, manufacture or possession of a bomb, or possession
of a firearm while in the possession of or during the sale or distribution
of a controlled dangerous substance, or any violation of the Uniform
Controlled Dangerous Substances Law which is a felony, or any crime
which is defined as a sex offense in R.S. 15:541, or any crime defined
as an attempt to commit one of the above-enumerated offenses under
the laws of this state, or who has been convicted under the laws of any
other state or of the United States or of any foreign government or
country of a crime which, if committed in this state, would be one of
the above-enumerated crimes, to possess a firearm or carry a concealed
weapon.
Eyewitnesses to the shooting testified at trial that Defendant had a gun in his
hand. Juan McDonald, a corrections officer from Mississippi, testified that in 2016,
Defendant pled guilty to three counts of aggravated assault in that state. According
to McDonald, Defendant shot into a car and wounded three men. Defendant does not
refute McDonald’s testimony in his sufficiency claim, although in parts of the pro
se brief he mentions the murder weapon was not recovered. The evidence discussed
above is sufficient to support Defendant’s conviction for possession of a firearm by
a convicted felon. Thus, this assignment of error lack merit.
ASSIGNMENT OF ERROR NO. 1
In his first counsel-filed assignment of error, Defendant argues that the district
court incorrectly applied a previous version of the relevant statute to excuse a venire
member from jury service. Generally, the issue of juror qualification is reviewed for
abuse of discretion. State v. Folse, 18-153 (La.App. 1 Cir. 9/21/18), 258 So.3d 188,
writ denied, 18-1743 (La. 4/22/19), 268 So.3d 300.
During the jury selection process, venireman Earnest Barnes revealed that he
had a felony conviction that had not been pardoned. The district court excused him,
which would have been correct under the version of La.Code Crim.P. art. 401 that
existed prior to August 1, 2021. The pre-2021 version read:
6
A. In order to qualify to serve as a juror, a person must:
....
(5) Not be under indictment for a felony nor have been convicted
of a felony for which he has not been pardoned by the governor.
The current version of La.Code Crim.P. art. 401, which became effective August 1,
2021, states, in pertinent part:
A. In order to qualify to serve as a juror, a person shall meet all
of the following requirements:
....
(5) Not be under indictment, incarcerated under an order of
imprisonment, or on probation or parole for a felony offense within the
five-year period immediately preceding the person’s jury service.
Since the trial in this matter began in December 2021, the newer version of
the Code article was clearly in effect. Procedural provisions apply to proceedings
after their effective date. See State v. Brossette, 163 La. 1035, 113 So. 366 (1927);
see also State v. Tucker, 22-735 (La.App. 3 Cir. 5/31/23), 368 So.3d 187. Thus, the
district court erred by failing to make a further inquiry into Mr. Barnes’ felony
conviction. Applying the wrong version of the Code article was an error.
The State observes that Defendant’s trial counsel failed to raise a
contemporaneous objection, and thus argues that the issue was not preserved for
appeal pursuant to La.Code Crim. P. art. 841. See also La.Code Crim.P. art. 800.2
2
Louisiana Code of Criminal Procedure Article 841, cited by Defendant, states, in
pertinent part:
An irregularity or error cannot be availed of after verdict unless it was objected to
at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary.
It is sufficient that a party, at the time the ruling or order of the court is made or
sought, makes known to the court that action which he desires the court to take, or
of his objections to the action of the court, and the grounds therefor.
Article 800 provides similarly but focuses strictly on challenges for cause.
7
Defendant, however, asserts the error was structural in nature. This court has
explained:
Generally, only errors that are structural may be reviewed in the
absence of contemporaneous objection. State v. Hongo, 96-2060
(La.12/2/97), 706 So.2d 419. A structural error is one that, “by its very
nature, impacts the entire framework of the trial from beginning to end,
without reference to any other trial consideration.” State v. Langley, 06-
1041, pp. 12-13 (La.5/22/07), 958 So.2d 1160, 1168, cert. denied, 552
U.S. 1007, 128 S.Ct. 493, 169 L.Ed.2d 368 (2007).
State v. Day, 14-708, p. 4 (La.App. 3 Cir. 12/23/14), 158 So.3d 120, 125.
In a footnote, the supreme court has explained:
A “structural” error is a “defect affecting the framework within
which the trial proceeds, rather than simply an error in the trial process
itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265,
113 L.Ed.2d 302 (1991), reh’g denied, May 20, 1991. The United States
Supreme Court has recognized structural errors only in a “very limited
number of cases.” Johnson v. U.S., 520 U.S. 461, 468, 117 S.Ct. 1544,
1550, 137 L.Ed.2d 718 (1997), citing Gideon v. Wainwright, 372 U.S.
335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (a total deprivation of the right
to counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749
(1927) (lack of an impartial trial judge); Vasquez v. Hillery, 474 U.S.
254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (unlawful exclusion of grand
jurors of defendant’s race); McKaskle v. Wiggins, 465 U.S. 168, 104
S.Ct. 944, 79 L.Ed.2d 122 (1984) (the right to self-representation at
trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31
(1984) (the right to a public trial); Sullivan v. Louisiana, 508 U.S. 275,
113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (erroneous reasonable-doubt
instruction to jury).
State v. Brown, 18-1999, p. 18 (La. 9/30/21), 330 So.3d 199, 222 n.13, cert. denied,
__ U.S. __, 142 S.Ct. 1702 (2022).
Defendant cites several Supreme Court cases which focused their discussions
on harmless error rather than structural error, but which acknowledged that “there
are some constitutional rights so basic to a fair trial that their infraction can never be
treated as harmless error[.]” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824,
827–28 (1967). See also Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045 (1987),
and Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237 (1989).
8
In the context of the current analysis, we observe that the Chapman court
treated a prosecutor’s comments on the defendant’s failure to testify as subject to a
harmless-error analysis. Ultimately, the Supreme Court held the error was not
harmless. The Gray court held that the improper exclusion of jurors from a jury in a
death-penalty case could not be harmless, at least regarding the sentence. The
Supreme Court reversed the death sentence and remanded the case. In Gomez, the
Supreme Court held the error before it could not be harmless, as a federal magistrate
had acted without jurisdiction by conducting voir dire.
We have found no structural-error case analogous to the present one, but we
find that the present error was not of the type which affected the whole framework
of the case. Defendant argues the district court failed to comply with the current law
and that the court’s error effectively gave the State an additional peremptory
challenge. However, the State points out that it used only three of its available twelve
peremptory challenges. Thus, the error did not have the practical effect that
Defendant alleges.
While we have not found a case on point regarding the current error, we note
that in the late 1970s, the supreme court affirmed the denial of a defendant’s motion
in arrest of judgment and/or motion for new trial, which was based upon the petit
jury foreman’s possible prior conviction for possession of marijuana. Apparently,
the defendant had knowledge of the possible conviction at the time of jury
deliberation but failed to object or move for a mistrial prior to the verdict.
Additionally, the court noted the defendant failed to demonstrate reasonable
diligence because he did not question the prospective juror during voir dire on the
subject matter at issue. State v. O’Blanc, 346 So.2d 686, 692 (La.1977).
9
In State v. Jones, 03-829 (La.App. 4 Cir. 12/15/04), 891 So.2d 760, writ
denied, 05-124 (La. 11/28/05), 916 So.2d 140, the fourth circuit found no error in
the denial of a motion for new trial where the defendant argued he did not know
about a juror’s prior conviction of aggravated burglary (the juror had received a first
offender pardon). The defendant admitted he had not asked about prior convictions
during voir dire. The trial court found the juror was qualified to serve because of the
first offender pardon. The fourth circuit found the defendant failed to show the trial
court erred in finding the juror was qualified to serve. Additionally, in response to
the defendant’s argument that having the juror in question on his jury prejudiced him
and violated his right to a fair trial, the fourth circuit found the defendant failed to
show that he was prejudiced by having the juror seated.
We also note a federal case, Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617
(1986), in which the Supreme Court affirmed the lower federal courts’ decisions to
overturn a murder conviction because African-Americans had been systematically
excluded from the grand jury. The court explained:
When constitutional error calls into question the objectivity of
those charged with bringing a defendant to judgment, a reviewing court
can neither indulge a presumption of regularity nor evaluate the
resulting harm. Accordingly, when the trial judge is discovered to have
had some basis for rendering a biased judgment, his actual motivations
are hidden from review, and we must presume that the process was
impaired. See Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71
L.Ed. 749 (1927) (reversal required when judge has financial interest
in conviction, despite lack of indication that bias influenced decisions).
Similarly, when a petit jury has been selected upon improper criteria or
has been exposed to prejudicial publicity, we have required reversal of
the conviction because the effect of the violation cannot be ascertained.
See Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339
(1976) (per curiam); Sheppard v. Maxwell, 384 U.S. 333, 351–352, 86
S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966). Like these fundamental
flaws, which never have been thought harmless, discrimination in the
grand jury undermines the structural integrity of the criminal tribunal
itself, and is not amenable to harmless-error review.
10
Vasquez, 474 U.S. at 263–64.
The case cited in Vasquez for the Court’s “improper criteria” remark is a per
curiam opinion issued in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399 (1976). In
Davis, the improper criterion was related to the death penalty; specifically, a juror
was removed for cause because they expressed a reluctance to impose a death
sentence. The Davis court reversed the conviction, finding the failure of the court to
determine whether the juror should be removed for cause fell under the standard
established in Witherspoon v. State of Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770,
1777 (1968), which held “that a sentence of death cannot be carried out if the jury
that imposed or recommended it was chosen by excluding veniremen for cause
simply because they voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction.”
In the instant case, the death penalty was not an issue. Additionally, the juror
in Davis was removed for cause, leading the court to wonder if the action served to
improperly give the State an additional peremptory challenge it would not have
otherwise been entitled to use. That is not an issue in the case sub judice; as
mentioned earlier, the State did not use its full allotment of peremptory challenges.
Finally, while the Vasquez court noted a similarity between a grand jury and a petit
jury, it also specifically noted the importance of the grand jury:
Nor are we persuaded that discrimination in the grand jury has
no effect on the fairness of the criminal trials that result from that grand
jury’s actions. The grand jury does not determine only that probable
cause exists to believe that a defendant committed a crime, or that it
does not. In the hands of the grand jury lies the power to charge a greater
offense or a lesser offense; numerous counts or a single count; and
perhaps most significant of all, a capital offense or a noncapital
offense—all on the basis of the same facts. Moreover, “[t]he grand jury
is not bound to indict in every case where a conviction can be obtained.”
United States v. Ciambrone, 601 F.2d 616, 629 (CA2 1979) (Friendly,
J., dissenting). Thus, even if a grand jury’s determination of probable
11
cause is confirmed in hindsight by a conviction on the indicted offense,
that confirmation in no way suggests that the discrimination did not
impermissibly infect the framing of the indictment and, consequently,
the nature or very existence of the proceedings to come.
Vasquez, 474 U.S. at 263 (alteration in original).
The petit jury whose composition Defendant attacks lacks the power of the
grand jury, particularly the power or authority to charge a greater offense than
requested. Finally, and perhaps most importantly, in the present case, Defendant
does not allege that discrimination against a protected class occurred. In Vasquez,
the defendant did allege discrimination. In that context, the Court noted, “When
constitutional error calls into question the objectivity of those charged with bringing
a defendant to judgment, a reviewing court can neither indulge a presumption of
regularity nor evaluate the resulting harm.” Id. (emphasis added).
Finally, while the issue before the Supreme Court in Vasquez involved a
violation of a constitutional right, the issue before the court in the instant case
involves an exclusion that violates a statute of criminal procedure, not an exclusion
that violates a constitutional right. Put simply, racial discrimination is considered an
inherently wrong practice that justifies invalidating a criminal trial. In the instant
case, a juror was removed from a jury venire due to his status as a convicted felon,
not because of his race. Because a petit jury does not hold the same power as a grand
jury and because the exclusion violated a statutory right rather than a constitutional
one, we find that a violation of La.Code Crim.P. art. 401(A)(5) is not a structural
error, is amenable to harmless error analysis, and is also subject to the
contemporaneous objection rule.
Taking another tack, Defendant briefly argues that a contemporaneous
objection was not needed because the error is clear from the face of the record
12
pursuant to La.Code Crim.P. art. 920, i.e., an error patent discoverable by a mere
inspection of the pleadings without an inspection of the evidence. We note that the
error alleged is not one that this court typically recognizes as an error patent.
Additionally, it requires examination of the voir dire transcript. In an error patent
analysis, this court does not typically examine transcripts, pursuant to La.Code
Crim.P. art. 920: “The following matters and no other shall be considered on appeal:
. . . (2) An error that is discoverable by a mere inspection of the pleadings and
proceedings and without inspection of the evidence.” In finding that this court had
exceeded the statutory limits of an error patent review, the Louisiana Supreme Court
stated:
To reach its result, the court of appeal went beyond an examination of
the face of the record, and expanded its review into the entire record,
including the trial testimony, the trial court’s extensive reasons for
judgment, as well as numerous comments made by the trial court in
post trial hearings in an effort to decipher and explain the court’s
sentence. Such actions are proscribed by Article 920(2).
State v. Kelly, 15-484, p. 12 (La. 6/29/16), 195 So.3d 449, 457.
In light of La.Code Crim.P. art. 920 and Kelly, we find that the error at issue
is not an error patent. Having concluded that the error is neither a structural error nor
an error patent, we find that La.Code Crim.P. art. 841 applies, and, thus, a
contemporaneous objection was required to preserve the issue for appeal.
In arguing for recognition of an error despite the lack of contemporaneous
objection, Defendant states that La.Code Crim.P. art. 921 “provides when an error,
defect, irregularity, or variance affects the substantial right of the accused, a
judgment or ruling shall be reversed by an appellate court.” As the State observes,
this is a misleading paraphrase of the article’s language, which states: “A judgment
or ruling shall not be reversed by an appellate court because of any error, defect,
13
irregularity, or variance which does not affect substantial rights of the accused.”
As we find that this issue was not preserved for review due to the lack of a
contemporaneous objection, this assignment of error lacks merit.
ASSIGNMENT OF ERROR NO. 2
In his second counsel-filed assignment of error, Defendant argues the district
court erred by denying his motion for mistrial and his alternative request to dismiss
juror Tillman “Ti” Jolly. The juror personally researched the general functions of a
trial court on his computer at home and printed out some information on the subject.
Jolly approached the district court’s secretary with the document, seeking
permission to share it with other jurors. The secretary responded in the negative,
took the document from Jolly, and delivered it to the judge. When the matter was
discussed in open court, Defendant moved for a mistrial, arguing that Jolly had
violated the court’s instructions.
As both parties acknowledge, mistrial is a remedy only for serious matters.
The supreme court has explained, “A mistrial is a drastic remedy warranted only
when an error at trial results in substantial prejudice to the defendant which
effectively deprives him of a fair trial. State v. Edwards, 420 So.2d 663 (La.1982).”
State v. Groves, 23-46, p. 1 (La. 1/13/23), 352 So.3d 962, 962. “The denial of a
mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518,
p. 12 (La.1/17/01), 776 So.2d 443, 454.” Brown, 330 So.3d at 254.
Before discussing the matter on the record, the trial court judge questioned
Jolly in chambers and determined that he had researched only the general functions
of court, not anything specific to the present case. The trial court explained in open
court that another juror, Stevison, had initiated a conversation with Jolly regarding
the mechanics of Louisiana jury trials, specifically whether the trial court or whether
14
the jurors would sentence Defendant if found guilty. Stevison had lived in Texas,
which may have different trial procedures. In response to Stevison’s inquiry, Jolly
did his own research on the matter. Apparently, the court’s interview with Jolly was
not recorded. However, it appears that Defendant’s trial counsel and a representative
of the State were present. Defense counsel agreed on the record that Jolly had not
discussed the facts of the case with Stevison. He argued, however, that Jolly had
violated the court’s instruction not to discuss the case and moved for a mistrial. The
district court noted that Jolly had not discussed the facts of the case with anyone and
denied the motion.
In its initial instructions to the jury, the trial court stated:
THE COURT:
But I do want to go over this with you. The reason I’m doing this is in
Concordia, we went all the way through a jury trial, and I told them at
the end, don’t read the newspaper, don’t go on your computer. This one
lady went home and had her husband read the newspaper to her. So we
had to declare a miss trial [sic]. So, I’m going to just read this section
to you. You have to decide the evidence based -- the case based on the
evidence that you hear in the Courtroom. Don’t consult any materials
outside. Don’t go on your internet and search anything. Don’t try and
find any newspaper articles to look at before you hear this case. Don’t
go on your computer trying to look anything up. Don’t try and go into
any law dictionaries or anything. And, don’t talk about this between
yourselves at all until I tell you you are free to go to the -- into the Jury
Room. Because -- don’t talk about your husband -- talk to your
husbands or your wives and say, What do you think? Don’t do any of
that, because -- until I tell you that you are free to consider it, you’re
not supposed to consider it at all or discuss it with anybody, not even
your spouses. . . .
Thus, the trial court’s instruction presented the jury with a broad prohibition against
research. However, as the State points out, juror research or experimentation does
not necessarily require reversal. In State v. Graham, 422 So.2d 123 (La.1982), some
jurors conducted their own blood-coagulation experiment. The defendant sought a
new trial, which the district court denied. The supreme court determined that reversal
15
was not required, as there was no reasonable possibility that the experiment had an
effect on the verdict. Id.
The State also cites State v. Eason, 19-614 (La.App. 1 Cir. 12/27/19), 293
So.3d 61, in which some jurors had apparently noticed that the local newspaper had
information about the trial at issue. The trial court denied the defendant’s motion for
mistrial, and the first circuit found no abuse of discretion. The appellate court stated
that the defendant failed to show the jurors were “incapable of rendering a fair and
impartial judgment.” Id. at 77. We note that the trial court did grant a defense motion
to remove a juror who acknowledged he had read a newspaper story about the case
at issue. Id.
In the present case, after the trial court denied Defendant’s motion for mistrial,
Defendant moved to remove Jolly from the jury. The trial court responded that the
jury had not violated its instructions and that Jolly had simply researched the role of
juries and courts. The court then denied the motion. In contrast to the juror in Eason,
Defendant did not read or research details regarding the case at issue. In light of
Graham and Eason, we find the trial court did not abuse its discretion by denying
Defendant’s motion for mistrial.
Although doing so within the context of bias, this court addressed the issue of
juror removal in State v. Wilson, 01-625, pp. 8-11 (La.App. 3 Cir. 12/28/01), 806
So.2d 854, 861–62 (first alteration in original), writ denied, 02-323 (La. 9/13/02),
827 So.2d 1121:
In his third assignment of error, Defendant claims the trial court
erred when it failed to remove for cause juror Geneva Comeaux. After
being sworn in, Ms. Comeaux informed the trial court that she knew
Robin Matte, a witness for the State. Ms. Matte’s sister apparently lived
with her grandmother but would stay at Ms. Comeaux’s house four or
five days a week. Ms. Comeaux’s familiarity with Ms. Matte, the
16
Defendant says, raised the possibility that the juror would be partial to
the State.
The Fourth Circuit recently analyzed a similar scenario:
Following Officer Belisle’s testimony, a conference was held
outside the presence of the jury. The court stated that during the
questioning of Officer Belisle one juror, Ms. Fentress, stated that she
thought she might know the officer from possibly going to high school
with him. The court indicated that when asked if she had any contact
with him since high school, Ms. Fentress stated no. Further, she
indicated she could be fair and impartial in the case. The court indicated
that both parties were present when the discussion with the juror took
place.
During the conference, counsel for Weaver noted that prior to voir
dire the State had indicated the names of the officers it intended to call.
Included among the names given was that of Officer Belisle. Yet, the
juror failed to mention that she might know Officer Belisle.
Accordingly, counsel moved to excuse the juror. The court denied the
motion.
Our courts have addressed the issue of whether a juror should be
excused when it is discovered during the trial that a juror knows or is
related to a witness or victim.
In State v. Miller, 95-857 (La.App. 3 Cir. 1/31/96), 670 So.2d 420[,]
defendant argued the trial court erred in refusing to remove a juror who
admitted she had recently been told that she was related to the victim.
On the third day of trial, the juror approached the trial court about a
telephone call she received from her aunt the night before. A hearing
was held in the trial judge’s chambers with the juror, the attorneys, the
trial judge, and the minute clerk being present. The juror stated that her
aunt told her that the victim’s grandfather and her father were first
cousins. She also stated that she never visited with these family
members when she was growing up so she did not know any of them.
The court noted that the juror did not know of the relation during voir
dire, nor did she know the victim personally. The trial court stated in
court that the juror indicated that the relation would not affect her
verdict and decided not to remove the juror from the jury. On appeal,
the appellate court concluded that the trial court did not abuse its
discretion in refusing to remove the juror because (1) she did not
personally know the victim nor did she know of the relationship prior
to the phone call; and (2) she informed the trial court that this would
not affect her verdict.
In State v. Holland, 544 So.2d 461 (La.App. 2 Cir.1989), writ
denied, 567 So.2d 93 (La.1990)[,] the court was confronted with the
problem of deciding whether to excuse a juror who discovered, after
17
the trial had commenced, she might be related to the victim. A juror
informed the judge that on the previous evening his daughter had
informed him that she received a telephone call from a person who
identified himself as a venireman who had been excused. The caller
told her that his grandfather was related to the victim and that he [the
venireman] believed he was related to the daughter. After informing the
judge of the call, the juror testified that he did not know whether he was
in fact related to the excused venireman nor was he aware of the degree
of kinship between the venireman and the victim. The juror stated that
even if he were in some way related to the excused venireman (and thus
the victim), it would not affect him or the process of his decision
making. He stated that he could be fair and impartial. In upholding the
trial court’s refusal to excuse the juror, the court delineated the standard
to be used in determining if a juror should be excused based on a
relationship with a witness or the victim as follows:
A trial judge is granted great discretion in determining whether
to seat or reject a juror for cause, and such rulings will not be disturbed
without a showing of an abuse of that discretion. State v. Jones, 474
So.2d 919 (La.1985). Disclosure during the trial that a juror knows or
is related to a witness or the victim is not sufficient to disqualify a juror
unless it is shown that the relationship is sufficient to preclude the juror
from arriving at a fair verdict. State v. Peterson, 446 So.2d 815
(La.App. 2d Cir.1984). The connection must be such that one must
reasonably conclude that it would influence the juror in arriving at a
verdict. State v. Hodgeson, 305 So.2d 421 (La.1974). (emphasis added.)
State v. Holland, 544 So.2d at 465.
Significantly in the matter subjudice, [sic] Ms. Fentress only stated
that she might possibly have known Officer Belisle from high school.
If in fact she attended the same high school as the officer, it is apparent
that her acquaintance with the officer was very slight, as she apparently
did not recognize his name during the voir dire. Additionally, when
making the motion to excuse Ms. Fentress, defense counsel noted that
the State, “may have massacred” Officer Belisle’s name during voir
dire. If so, it is quite possible that Ms. Fentress did not recognize the
officer’s name because of the way the prosecutor pronounced the name.
Regardless of the reason for the delayed realization that she might have
known the officer from high school, Ms. Fentress indicated to the
district judge that she could be fair and impartial. Under these
circumstances, it cannot be said that the district court abused its
discretion by denying Weaver’s motion to excuse this juror. This
assignment of error is without merit.
State v. Weaver, 99-2177, pp. 5-7 (La.App. 4 Cir. 12/6/00); 775 So.2d
613, 617–618. (Footnote omitted).
In light of the above authorities, the trial court did not err by
18
refusing to remove juror Comeaux. Therefore, the assignment lacks
merit.
In light of Wilson and the cases cited therein, we find the that the trial court in
the present case did not abuse its discretion. As mentioned earlier, Defendant’s
counsel acknowledged that Jolly stated he had not researched the facts of the case.
Thus, there is no showing that Jolly was unable to reach a fair, impartial verdict.
Defendant also notes that the district court’s interview of Jolly was not
recorded. However, he acknowledges that despite the general entitlement of a
complete record on appeal, conferred by the state constitution, a defendant is only
entitled to relief upon a demonstration of prejudice.
Both parties cite this court’s discussion in State v. Chesson, 03-606, p. 17
(La.App. 3 Cir. 10/1/03), 856 So.2d 166, 178–179, writ denied, 03-2913 (La.
2/13/04), 867 So.2d 686:
While observing that La. Const. art. I, § 19 ensures the right to
an appeal based upon a complete record of the evidence on which a
judgment is based, the Louisiana Supreme Court has explained that
“inconsequential omissions or slight inaccuracies do not require
reversal, as an incomplete record may nonetheless be adequate for
appellate review.” State v. Deruise, 98-0541, p. 11 (La.4/3/01), 802
So.2d 1224, 1234, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151
L.Ed.2d 208 (2001). Furthermore, “a defendant is not entitled to relief
because of an incomplete record absent a showing of prejudice based
on the missing portions of the transcripts.” Id.
Defendant has failed to show, or even suggest, how the
unrecorded nature of the two bench conferences prejudiced his case.
They do not appear to be based on any objection by counsel.
Accordingly, this portion of the assignment lacks merit.
Defendant’s appellate counsel notes that he was not present for the in-
chambers interview. However, this fact does not demonstrate prejudice. Defendant’s
trial counsel was present for the interview and acknowledged that Jolly did not
research the facts of the present case. As discussed in the context of Defendant’s
19
other arguments, he has failed to show that he was prejudiced by Jolly’s research of
the general workings of the trial court system.
For the reasons discussed above, this assignment of error lacks merit.
PRO SE ASSIGNMENT OF ERROR NO. 2
Defendant further appears to argue that a search warrant issued against him
was invalid because it rested on an invalid identification of him as the shooter. His
argument, however, lacks clarity and is interspersed with references to the allegedly
improper grand jury proceedings. Defendant also questions the credibility of some
of the State’s witnesses, but does so in the context of his argument against the
warrant.
Defendant filed a motion to suppress at the trial court, but that motion focused
on discovery issues, rather than any search warrant. Due to the lack of a motion to
suppress any search warrant in this case, the issue was not preserved for review.
State v. Guillory, 20-353 (La.App. 3 Cir. 5/12/21), 318 So.3d 368. Defendant again
fails to include pertinent record references, which is necessary pursuant to Uniform
Rules—Courts of Appeal, Rule 2–12.4(B)(3).
For the reasons discussed, this assignment of error lacks merit.
PRO SE ASSIGNMENT OF ERROR NO. 4
Defendant also suggests that he was a victim of malicious prosecution but lists
only possible legal issues without providing argument. He further references
malicious prosecution in relation to his argument that Louisiana did not have
jurisdiction over this case. Defendant’s actual argument regarding why this would
be the case; he simply lists a string of federal cases and a pair of federal rules without
actually developing an argument. Thus, as Defendant has failed to give this court
20
anything to review, he has failed to meet the requirements of Uniform Rules—
Courts of Appeal, Rule 2–12.4(A)(9) and (B)(4), which provide:
A. The brief of the appellant shall contain, under appropriate
headings and in the order indicated:
....
(9) the argument, which shall contain:
(a) appellant’s contentions, with reference to the specific page
numbers of the record and citations to the authorities on which the
appellant relies;
(b) for each assignment of error and issue for review, a concise
statement of the applicable standard of review, which may appear in the
discussion or under a separate heading placed before the discussion;
and
(c) for each assignment of error and issue for review which
required an objection or proffer to preserve, a statement that the
objection or proffer was made, with reference to the specific page
numbers of the record[.]
....
B.
....
(4) All assignments of error and issues for review shall be
briefed. The court may deem as abandoned any assignment of error or
issue for review which has not been briefed.
See Uniform Rules—Courts of Appeal, Rule 2–12.4(B)(3).
For these reasons, this assignment of error lacks merit.
PRO SE ASSIGNMENT OF ERROR NO. 5
In this pro se assignment of error, Defendant asserts that his trial counsel was
ineffective. Ineffectiveness of counsel requires a showing of both a deficient
performance by counsel and prejudice to the defendant’s case. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
21
One of Defendant’s complaints is that his trial counsel failed to file a notice
of appeal or file an appeal brief. Although Defendant filed a pro se motion and
obtained this appeal himself, the Louisiana Appellate Project has since filed the
merits brief discussed above. Given the existence of the counsel-filed merits brief,
Defendant has not been prejudiced by his trial counsel’s apparent inaction.
Defendant also complains that his trial counsel prevented him from testifying.
This argument is better suited to the post-conviction relief process, where the record
can be developed further, as the tactical consultation regarding whether to testify
was a matter between trial counsel and Defendant and, thus, does not appear in the
record currently before this court. As this court has explained:
Sorting out these competing, and possible conflicting defense
theories or strategies will necessitate information regarding
communications between Defendant and his trial counsel. Since
attorney and client communications are necessarily outside this record,
we find that this issue should properly be relegated to the post-
conviction relief process, wherein the parties will be able to further
develop the record. State v. Miller, 99-192 (La.9/6/00), 776 So.2d 396,
cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001).
State v. Kidd, 22-227, pp. 9–10 (La.App. 3 Cir. 9/14/22), 348 So.3d 243, 249, writ
denied, 22-1596 (La. 1/25/23), 354 So.3d 9.
Defendant also argues that his trial counsel failed to present mitigating
evidence and failed to properly challenge the credibility of the State’s witnesses.
These contentions should also be relegated to the post-conviction relief process to
give the parties an opportunity to develop the record. We note that Defendant has
made no record citations to support or illustrate his current arguments.
Defendant’s argument regarding the lack of an appeal lacks merit. The
remainder of his ineffective assistance of counsel claims are relegated to the post-
conviction relief process.
22
PRO SE ASSIGNMENT OF ERROR NO. 6
Defendant includes a page with his pro se brief that may assert a federal
Fourteenth Amendment violation. However, the page simply includes a list of
possible violations without complete sentences. To the extent this might be
considered an assignment of error, it lacks merit pursuant to Uniform Rules—Courts
of Appeal, Rule 2–12.4.
PRO SE ASSIGNMENT OF ERROR NO. 7
Defendant also appears to argue a violation under Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194 (1963), i.e., non-disclosure by the State of exculpatory
evidence. However, he makes no demonstration that such evidence actually exists.
Defendant claims the State made a leniency deal to obtain perjured witness
testimony, but he offers only his bare claim that this occurred. As with the rest of his
pro se brief, Defendant provides no record references. In addition, he fails to provide
record page references, as required by Uniform Rules—Courts of Appeal, Rule 2–
12.4(B)(3). Furthermore, Defendant seems to be focused on a lone witness. Thus,
even if this allegation were true, the State would still have a number of witnesses
who testified that he was the killer, as shown under the sufficiency of evidence
review above.
For these reasons, this assignment of error lacks merit.
PRO SE ASSIGNMENT OF ERROR NO. 9
In another argument, which we will treat as a ninth assignment of error for the
sake of organized review, Defendant appears to claim that the jury instruction failed
to inform the jury that he was innocent until proven guilty. At trial, the trial court
gave the following instruction to the jury:
23
The Defendant is presumed to be innocent until each element of the
crime necessary to constitute his guilt is proven beyond a reasonable
doubt. The defendant is not required to prove that he is innocent. Thus,
the Defendant begins the trial with a clean slate. The burden is upon
the State to prove the Defendant’s guilt beyond a reasonable doubt. In
considering the evidence, you must give the Defendant the benefit of
every reasonable doubt arising out of the evidence or lack of evidence.
If you are not convinced of the guilt of the Defendant beyond a
reasonable doubt, you must find him not guilty. . . .
As the jury instruction did in fact inform the jury that Defendant was innocent until
proven guilty, this argument lacks merit.
PRO SE ASSIGNMENT OF ERROR NO. 10
Defendant also seemingly alludes to purported prosecutorial misconduct, but
makes no substantive argument that would permit review. He merely makes bare
claims of various actions of misconduct regarding witnesses, such as witness
coaching. Moreover, the arguments are devoid of record page references. This
assignment lacks merit. See Uniform Rules—Courts of Appeal, Rule 2–12.4(A)(9)
and (B)(3).
PRO SE ASSIGNMENT OF ERROR NO. 11
In his final pro se argument, Defendant argues that his convictions violate the
federal Tenth Amendment. Defendant provides no record references, no legal
citations, and does not cite the text of the Amendment. This final argument lacks
merit. See Uniform Rules—Courts of Appeal, Rule 2–12.4(A)(9) and (B)(3).
DECREE
For all of the reasons discussed above, we affirm Defendant’s convictions and
sentences. Defendant’s claims of ineffective assistance of counsel are relegated to
post-conviction relief.
AFFIRMED.
24