State of Louisiana v. Troy Jordan

STATE OF LOUISIANA * NO. 2021-K-0585

VERSUS *
COURT OF APPEAL
TROY JORDAN *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 21-01840, DIVISION “A”
Honorable William M McGoey, Judge
******
Judge Regina Bartholomew-Woods
******
(Court composed of Judge Regina Bartholomew-Woods, Judge Tiffany Gautier
Chase, Judge Dale N. Atkins)

CHASE, J., CONCURS IN THE RESULT

Michael Ginart
John Ginart
Joyce Young
Nicholas N.S. Cusimano
Law Office of Michael C. Ginart, Jr. & Associates
2114 Paris Road
Chalmette, LA 70043

COUNSEL FOR RELATOR/DEFENDANT

Perry Michael Nicosia
DISTRICT ATTORNEY
Alexis Berges
Ashton J. Liccardi
Assistant District Attorneys
DISTRICT ATTORNEY’S OFFICE
ST. BERNARD PARISH
1101 West St. Bernard Highway
Chalmette, Louisiana 70043

COUNSEL FOR RESPONDENT/STATE OF LOUISIANA

WRIT DENIED
DECEMBER 21, 2021

RBW

DNA

Relator Troy Jordan (“Mr. Jordan”) seeks review of the trial court’s ruling,

which found him guilty of battery of a dating partner and resisting an officer. In

that Mr. Jordan was convicted of two misdemeanor offenses, Mr. Jordan is not

entitled to appellate review; notwithstanding the aforementioned, pursuant to La.

C.Cr.P. art. 912.1(C), Mr. Jordan is entitled to review of his misdemeanor

convictions by application for supervisory review only. For the reasons that

follow, we deny Mr. Jordan’s application for supervisory review.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

On May 24, 2021, Mr. Jordan was charged by bill of information with one

count of battery of a dating partner, a violation of La. R.S. 14:34.9, and one count

of resisting an officer, a violation of La. R.S. 14:108. On June 15, 2021, Mr.

Jordan appeared for arraignment and entered pleas of not guilty. On August 19,

2021, a bench trial was held, and Mr. Jordan was found guilty on both counts. The

following facts were adduced at trial.

On May 14, 2021, the victim, W.F.,1 called 911 to report an incident of

domestic violence. She gave the 911 operator her assailant’s name as Troy Jordan

and stated that he was her “baby’s daddy,” and they were still together. At the

time the victim initiated the call, the victim stated that Mr. Jordan was still present

on the scene. The victim stated that she was pregnant and Mr. Jordan fought her.

She stated he pushed her to the ground, and she had a “hickey” on her head and

arm. She asked for the police to be sent. The victim provided Mr. Jordan’s vehicle

license number and stated that he was leaving. The victim stated Mr. Jordan was

headed towards New Orleans and provided a description of his clothing. The

victim also indicated that Mr. Jordan was in possession of a gun.

Deputy Paul Mitchell (“Deputy Mitchell”) testified that in May 2021 he had

been employed by the St. Bernard Parish Sheriff’s Office for three (3) years as a

deputy patrol officer. On May 14, 2021, Deputy Mitchell was called to the scene

of a domestic disturbance. Deputy Mitchell arrived on the scene approximately

seven (7) to eight (8) minutes after receiving the dispatch. When Deputy Mitchell

came into contact with the victim, Mr. Jordan was not present. Deputy Mitchell

was wearing a body camera when he arrived at the victim’s residence and recorded

the statement the victim gave him. Deputy Mitchell testified, without objection by

Mr. Jordan, that when he first encountered the victim, she said that she and Mr.

Jordan were in a verbal altercation, which escalated to him forcefully shoving her

to the ground. At some point during the altercation, as he was leaving, Mr. Jordan

punched her in the forehead with a closed fist and left the residence. Deputy

Mitchell observed a small knot protruding on the front of the victim’s forehead. At

trial, Deputy Mitchell identified a photograph he took of the victim which depicted

1
To protect the victim’s identity, we use the victim’s initials in this opinion.
2

a superficial injury to the inside of the victim’s right arm. The photographs

showing the victim’s injuries were admitted into evidence.

Deputy Mitchell confirmed that the entirety of his interaction with the victim

was recorded on his body-worn camera. Deputy Mitchell’s body camera footage

was offered into evidence.2 Deputy Mitchell stated that based on the victim’s

statement that Mr. Jordan struck her before he fled, he prepared a warrant for Mr.

Jordan’s arrest. Under cross examination, Deputy Mitchell affirmed that the victim

said she “went at” Mr. Jordan because he had done something “sneaky.”

Following the testimony of Deputy Mitchell, the State asserted that the 911

call made by the victim was admissible under the business records exception and

the excited utterance exceptions to the hearsay rule. Defense counsel stipulated to

the admissibility of the 911 call made on May 14, 2021.

Deputy Jules Martin3 (“Deputy Martin”) was the next witness to testify.

Deputy Martin stated that in May 2021 he had been employed by the St. Bernard

Sheriff’s Office for four (4) years. On May 17, 2021, he was dispatched to 208

West Genie Street. This call related back to the domestic disturbance call that

occurred a few days earlier, on May 14, 2021. Mr. Jordan and the victim were

both at 208 West Genie Street when Deputy Martin arrived. Deputy Martin ran a

criminal history on Mr. Jordan and determined there was an active warrant for his

arrest. When Deputy Martin first attempted to place Mr. Jordan under arrest,

2
Deputy Mitchell’s body camera footage depicts exactly what he testified to. The victim tells
Deputy Mitchell that she was pregnant and that she and her boyfriend had an altercation. She
further tells Deputy Mitchell, while pointing to her injuries, that he fought her and hit her in the
head. Also, during the footage, the victim can be heard telling someone on the phone the
following: “I hate to do it to him (Mr. Jordan), but I had to call the police. I’m tired of it. He
done [sic] put his hands on me again. I can’t do it with him no [sic] more.” She also told the
caller that Mr. Jordan pushed her to the ground and punched her in the head.
3
The writ application reveals two different spellings of the deputy’s name, Jules and Jewels. We
have used the spelling that appears in the trial court minutes.
3

Deputy Martin advised him that there was a warrant for his arrest. When Deputy

Martin proceeded to make the arrest, Mr. Jordan resisted. Mr. Jordan would not

surrender his hands to be handcuffed. A brief struggle ensued. Eventually, Mr.

Jordan was handcuffed and placed under arrest. Deputy Martin stated that the

struggle and arrest were recorded on his body-worn camera.4

At trial, Deputy Martin recalled speaking with the victim on May 17, 2021.

When Deputy Martin asked the victim about the events of May 14, 2021, the

victim denied that Mr. Jordan touched her. The victim stated that nothing

happened. The May 17, 2021 footage, captured on Deputy Martin’s body-worn

camera, was played for the trial court. Defense counsel restated the objection to

the videos because the victim was not available to testify; however, the trial court

found the videos admissible. Per the stipulation, the 911 call placed on May 17,

2021, was played for the trial court.

Keena Vancourt (“Ms. Vancourt”), the victims’ coordinator with the St.

Bernard Parish District Attorney’s Office, was the next witness to testify. Ms.

Vancourt stated that she had contact with the victim in this case. Ms. Vancourt

testified that the victim appeared at Ms. Vancourt’s office a few times to ask that

the charges be dropped. Ms. Vancourt explained to the victim that the district

attorney’s office had a no-drop policy and advised her that when the case proceeds

to trial, she would be needed to testify. Ms. Vancourt stated that at the previous

trial setting, the victim did, in fact, appear to testify. The victim had been served to

appear at the trial on August 19, 2021, but did not appear. Ms. Vancourt had made

several unsuccessful attempts to talk to the victim since the July trial court date.

4
Deputy Martin’s body camera footage depicts the struggle between Mr. Jordan and Deputy
Martin, as well as Mr. Jordan trying to escape arrest by running back towards the house.
4

Ms. Vancourt indicated that she sent the victim a letter reminding her of the trial

court date, she also called her, and she left her voice messages as well as text

messages. A week before trial, the victim appeared at Ms. Vancourt’s office and

again asked if she could drop the charges. The victim was advised, again, of the

no-drop policy and was asked to appear in the trial court the following week. Ms.

Vancourt attempted to reach the victim the day before trial, as well as the day of

trial; however, the victim failed to appear.

At trial, defense counsel submitted the Brady5 domestic violence statement

which reads:

NOW INTO COURT through the undersigned counsel
(Assistant District Attorney) comes the State of
Louisiana, which provides through this pleading The
Following:
1.
Troy Jordan
- Defendant didn’t hit her
- Disagreement that was verbal -> accusing him of doing
something
- Defendant trying to leave
- Victim stood in front of door
- Victim opened door and when it flew open it hit her on
the head (forehead)
- Defendant never opened the door
- Victim told police that he hit her with his fists out of
anger, [s]he said wrong story because she was angry with
him

Following argument from both sides, the trial court found Mr. Jordan guilty

of the two (2) following misdemeanors: battery of a dating partner and resisting

arrest. Thereafter, Mr. Jordan was sentenced to thirty (30) days in jail for the

battery of a dating partner offense. In addition, a fine of $300 was imposed, along

with court costs and his mandatory participation in a twenty-six (26)-week, court-

monitored domestic abuse intervention program. Further, upon his release from

5
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
5

incarceration, Mr. Jordan would be required to serve nine (9) months of probation.

As to the resisting an officer charge, Mr. Jordan was sentenced to ten (10) days

incarceration, which sentence was to run concurrently with the sentence imposed

for battery of a dating partner conviction. No costs were assessed. Mr. Jordan

now seeks this Court’s supervisory review of his convictions and sentences.

DISCUSSION

Mr. Jordan raises three (3) assignments of error: (1) whether the trial court

erred by allowing the body-camera footage of the victim’s encounter with the

deputies to be admitted into evidence; (2) whether the trial court erred by admitting

the 911 calls into evidence; and (3) whether there was sufficient evidence

submitted at trial to convict relator of resisting an officer.6

Admissibility of Body-Camera Footage

Mr. Jordan argues on supervisory review that the trial court erred by finding

the body camera footage of the victim’s encounter with the deputies admissible

into evidence. At trial, Mr. Jordan objected to the introduction of the body camera

footage on the basis of hearsay as the State intended to introduce the video for the

purpose of establishing what the victim said. The trial court ruled that it needed to

see the body camera footage first before it could determine whether an exception to

the hearsay rule would permit its admittance into evidence.

Defense counsel argued that there were no exigent circumstances because it

had been over seven (7) minutes since the dispatch call went out and that Mr.

Jordan was not present on the scene. The State argued the evidence was

admissible under the present sense impression exception to the hearsay rule; and

6
When a defendant has been convicted of a misdemeanor offense, like in the instant case, the
Court does not conduct an errors patent review under its supervisory jurisdiction. See State v.
Morales, 13-1148, p. 2, n. 2 (La. App. 4 Cir. 1/22/14), 133 So.3d 144, 145, n. 2.
6

therefore, the victim did not need to be available to testify. The trial court found

that the fact that the video was made approximately nine (9) minutes after the

event, enabled the video to be admitted under the exception of present sense

impression. The trial court found nine (9) minutes after the event occurred was

“immediately thereafter” and admitted the video. The body camera video was

played for the judge. Following the video, defense counsel maintained that

“clearly” the video did not depict an excited situation. The trial judge reasoned

that since it was admitted under the present sense impression exception to the rules

prohibiting the admission of hearsay, the victim did not need to be excited.

Louisiana Code of Evidence article 803 sets forth the exceptions to the

hearsay rule. La. C.E. art. 803(1) provides:

The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
(1) Present sense impression. A statement describing or
explaining an event or condition made while the
declarant was perceiving the event or condition, or
immediately thereafter.

“A trial court’s ruling on the admissibility of evidence is reviewed for an

abuse of discretion.” State v. Wright, 11-0141, p. 10-11 (La. 12/6/11), 79 So.3d

309, 316; State v. Cosey, 97-2020, p. 13 (La. 11/28/00), 779 So.2d 675, 684.

In State v. Ditcharo, 98-1374, p. 10 (La. App. 5 Cir. 7/27/99), 739 So.2d

957, 963, the Fifth Circuit Court of Appeal found that a statement made five (5)

minutes after an incident occurred fell within the exception of present sense

impression. Additionally, in State v. Morgan, 45,110 (La. App. 2 Cir. 4/14/10), 34

So.3d 1127, the defendant was charged with rape of an 89-year-old woman. The

defendant objected to testimony regarding the statement the victim made to a

friend after the friend arrived at the victim’s home. Id., 45,110, p. 28, 34 So.3d at

7

1143-44. In her conversation with her friend, the victim described the traumatic

event. The victim’s friend arrived within ten (10) to fifteen (15) minutes from the

time she received the victim’s frantic call. The Second Circuit found the

statements made fell within the excited utterance and present sense impression

exceptions to the hearsay rule.

In the matter sub judice, the victim’s initial statement to Deputy Mitchell

was made seven (7) to eight (8) minutes after the alleged abuse took place. The

video reflects that the victim was sitting in her vehicle talking to another individual

on the phone as she was interviewed by Deputy Mitchell. Therefore, we find no

abuse of the trial court’s discretion in allowing the video footage from Deputy

Mitchell’s body camera into evidence under the exception of present sense

impression since her statements were made soon after the event occurred.

The 911 Calls

Mr. Jordan argues next that the trial court erred by admitting the 911 calls

into evidence. While he argues that admitting the 911 calls into evidence was

error, this Court notes that Mr. Jordan stipulated that the 911 calls were admissible

into evidence under the business records and excited utterance exceptions to the

hearsay rule.7 However, even without Mr. Jordan’s stipulation, the 911 calls would

have still been admissible.

In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224

(2006), the U.S. Supreme Court explained:

Statements are nontestimonial when made in the course
of police interrogation under circumstances objectively

7
See State v. Simmons, 00-35, p. 4 (La. App. 5 Cir. 7/25/00), 767 So.2d 860, 861-62 (finding
defendant acquiesced to the admission of a police report based on defendant’s stipulation) (“A
stipulation has the effect of withdrawing a fact from issue and disposing wholly with the need for
proof of that fact”).
8

indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the
interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.

Id., 547 U.S. at 822, 126 S.Ct. at 2273-74. “A 911 call, …at least the initial

interrogation conducted in connection with a 911 call, is ordinarily not designed

primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current

circumstances requiring police assistance.” Id., 547 U.S. at 827, 126 S.Ct. at 2276.

The Davis Court reasoned that in that case the victim was “speaking about events

as they were actually happening, rather than ‘describ[ing] past events’” and that,

“[a]lthough one might call 911 to provide a narrative report of a crime absent any

imminent danger, [the victim’s] call was plainly a call for help against bona fide

physical threat.” Id. (emphasis in the original). Further, the purpose of the

questions posed by the 911 operator was to “resolve the present emergency, rather

than simply learn…what [] happened in the past.” Id. (emphasis in the original).

Finally, the victim’s answers were “frantic” and “provided over the phone, in an

environment that was not tranquil, or even (as far as any reasonable 911 operator

could make out) safe.” Id.

In the present case, the victim was clearly upset during the 911 call on May

14, 2021. When the victim initiated the call and was speaking to the 911 operator,

Mr. Jordan was still present on the scene. The victim related the ongoing domestic

violence situation. Since her statements to the 911 operator were an attempt to

seek aid in an ongoing emergency, requiring police assistance, they were not

testimonial and therefore admissible as excited utterances.

9

Resisting an Officer

In his third assigned error, Mr. Jordan avers there is insufficient evidence to

support his conviction for resisting an officer. At trial, Deputy Martin testified that

he when came into contact with Mr. Jordan, he advised Mr. Jordan that there was a

warrant for his arrest. As Deputy Martin attempted to handcuff him, Mr. Jordan

struggled and would not allow his hands to be placed in handcuffs. Louisiana

Revised Statute 14:108(A) provides in relevant part:

Resisting an officer is the intentional interference with,
opposition or resistance to, or obstruction of an
individual acting in his official capacity and authorized
by law to make a lawful arrest, lawful detention, or
seizure of property or to serve any lawful process or
court order when the offender knows or has reason to
know that the person arresting, detaining, seizing
property, or serving process is acting in his official
capacity.

In reviewing whether the evidence presented in a case is sufficient to support

a conviction, the appellate court is governed by the standard set forth in the United

States Supreme Court decision of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979). The standard is whether, after viewing the evidence in the

light most favorable to the prosecution, a rational trier of fact could have found all

of the essential elements of the offense proven beyond a reasonable doubt. Id., 443

U.S. at 319, 99 S.Ct. at 2789. A sufficiency of evidence review does not require a

court to “‘ask itself whether it believes that the evidence at the trial established

guilt beyond a reasonable doubt.’” State v. Mussall, 523 So.2d 1305, 1309 (La.

1988) (quoting Jackson, 443 U.S. at 334, 99 S.Ct. at 2797 (Stevens, J. concurring))

(emphasis in original). “The inquiry requires the reviewing court to ask whether…

the trier of fact interpreting all of the evidence in this manner could have found the

10

essential elements of the crime beyond a reasonable doubt.” Id., 523 So.2d at

1309-10 (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789).

The “‘reviewing court is not called upon to decide whether it believes the

witnesses or whether the conviction is contrary to the weight of the evidence.’”

State v. Carter, 18-0072, p. 14-15 (La. App. 4 Cir. 10/10/18), 257 So.3d 776, 787

(quoting State v. Smith, 600 So.2d 1319, 1324 (La. 1992)). A reviewing court is

neither “permitted to second guess the rational credibility determinations of the

fact finder at trial, nor is [it] required to consider the rationality of the thought

processes employed by a particular fact finder in reaching a verdict.” State v.

Kelly, 15-0484, p. 3 (La. 6/29/16), 195 So.3d 449, 451. “It is not the function of an

appellate court to assess credibility or reweigh the evidence.” Id., 15-0484, p. 3-4,

195 So.3d at 451 (citing State v. Stowe, 635 So.2d 168, 171 (La. 1994)).

As the body camera footage depicts, Deputy Martin advised Mr. Jordan that

there was a warrant for his arrest and that he was under arrest. Thus, Mr. Jordan

was subject to lawful arrest. Upon hearing that he was under arrest, Mr. Jordan

wrestled away from the deputy, began running back towards the house and refused

to allow himself to be handcuffed. Because Mr. Jordan would not allow Deputy

Martin to handcuff him and a struggle ensued, he was guilty of resisting arrest.

Therefore, the trial court did not err in finding sufficient evidence to sustain the

conviction.

CONCLUSION

Based on the foregoing reasons, we find the trial court did not err in

allowing the body camera footage into evidence under the present sense impression

exception to the hearsay rule. Likewise, we find no error in the trial court’s

admitting the 911 calls into evidence considering Mr. Jordan stipulated to their
11

admissibility. Even still, the victim was attempting to seek aid in an ongoing

emergency, requiring police assistance. Thus, the statements were admissible as

excited utterances. Finally, the testimony of Deputy Martin as well as the body-

camera footage established sufficient evidence for the trial court to find Mr. Jordan

guilty of resisting a police officer beyond a reasonable doubt.

DECREE

Based on all the aforementioned, we deny Mr. Jordan’s application for

supervisory review.

WRIT DENIED

12