State Of Louisiana v. Christopher Nicholls Eason

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.

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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

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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

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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.

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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

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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.

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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

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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).

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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

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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

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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;

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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

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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

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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.

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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.

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