State Of Louisiana v. Jerome Mellion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

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te\ NO. 2021 KA 1116

IU
v
STATE OF LOUISIANA

VERSUS

JEROME MELLION

Judgment Rendered: APR 0 8 2022

On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 5130416

Honorable Kelly Balfour, Judge Presiding'

Hillar C. Moore, III Attorneys for Appellee,
District Attorney State of Louisiana
Stacy L. Wright
Assistant District Attorney
Baton Rouge, LA

Lieu T. Vo Clark Attorney for Defendant -Appellant,
Mandeville, LA Jerome Mellion

Jerome Mellion Defendant -Appellant,
Angola, LA In Proper Person

BEFORE: WHIPPLE, C. J., PENZATO, AND HESTER, JJ.

1 Judge Michael R. Erwin, who is now retired, presided over the trial.

HESTER, J.

The defendant, Jerome Mellion, was charged by grand jury indictment with

second degree murder, a violation of La. R. S. 14: 30. 1, and attempted second degree

murder, a violation of La. R.S. 14: 27 and 14: 30. 1. He pled not guilty and waived

his right to a trial by jury. Following a bench trial, the defendant was found guilty

as charged. The defendant filed a motion for new trial and a motion for post -verdict

judgment of acquittal, both of which were denied. For the second degree murder

conviction, he was sentenced to life imprisonment at hard labor without benefit of

parole, probation, or suspension of sentence. For the attempted second degree

murder conviction, he was sentenced to thirty years imprisonment at hard labor

without benefit of parole, probation, or suspension of sentence. The sentences were

ordered to run consecutively. The defendant now appeals, designating two

counseled assignments of error and one pro se assignment of error. We affirm the

convictions and sentences.

FACTS

Ms. Wanda Ortiz lived in an apartment in the 3200 block of Plank Road in

Baton Rouge. In the past, she had been in a relationship with the defendant, but that

relationship ended and Ms. Ortiz had a new boyfriend. On one occasion when the

defendant was at Ms. Ortiz' s house, she took money from the defendant and never

gave it back to him. On January 10, 2013, Ms. Ortiz had gotten off of work and was

walking to her apartment when the defendant approached Ms. Ortiz with a knife.

Ms. Ortiz passed by the window of her downstairs neighbors, the Harrises, and

yelled, " Call, call, call." The Harrises heard the cry for help, and Elda Harris called

911. Michael Harris ( hereinafter " Harris"), Elda' s husband, went outside to help

Ms. Ortiz. Harris saw the defendant stabbing Ms. Ortiz. When Harris intervened,

the defendant stabbed him in the upper right chest, just below his neck. Harris

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retreated.
The defendant then turned back to Ms. Ortiz and continued to repeatedly

stab her.

Ms. Ortiz died of her wounds. She had been stabbed 33 times, mostly to the

shoulder, back, neck, and scalp. There were both stabbing -type and incision -type

wounds. Many of the wounds were superficial, but two stab wounds to Ms. Ortiz' s

back were fatal because they punctured her lung cavity, causing her to drown in her
own blood. Harris survived and was taken to the hospital where he identified the

defendant as the attacker in a photographic lineup. The defendant was apprehended

a short time later.

The defendant did not testify at trial.

COUNSELED ASSIGNMENTS OF ERROR NOS. 1 and 2

In these related counseled assignments of error, the defendant argues,

respectively, the trial court erred in denying his motion for postverdict judgment of

acquittal, and the evidence was insufficient to support the convictions for second

degree murder and attempted second degree murder. Specifically, the defendant

contends he is guilty of manslaughter because of the presence of the mitigating

factors of sudden passion or heat of blood at the time of the killing.

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 or not, 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 La. Code Crim. P. art. 821( B); State v. Ordodi, 2006- 0207 ( La.

11/ 29/ 06), 946 So. 2d 654, 660; State v. Mussall, 523 So. 2d 1305, 1308- 09 ( La.

1988). The Jackson standard of review, incorporated in Article 821, is an objective

standard for testing the overall evidence, both direct and circumstantial, for

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reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15: 438

provides that the factfinder must be satisfied the overall evidence excludes every

reasonable hypothesis of innocence. State v. Patorno, 2001- 2585 ( La. App. 1 st Cir.

6/ 21/ 02), 822 So. 2d 141, 144.

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). Guilty

of manslaughter is a proper responsive verdict for a charge of second degree murder.

La. Code Crim. P. art. 814( A)(3). Louisiana Revised Statute 14: 31( A)( 1) defines

manslaughter as a homicide which would be either first degree murder or second

degree murder, but the offense is committed in sudden passion or heat of blood

immediately caused by provocation sufficient to deprive an average person of his

self-control and cool reflection. Provocation shall not reduce a homicide to

manslaughter if the factfinder finds that the offender' s blood had actually cooled, or

that an average person' s blood would have cooled, at the time the offense was

committed. The existence of "sudden passion" and " heat of blood" are not elements

of the offense but, rather, are factors in the nature of mitigating circumstances that

may reduce the grade of homicide. State v. Corkern, 2003- 1393 ( La. App. 1st Cir.

9/ 17/ 04), 897 So. 2d 57, 62, writ denied, 2004- 2627 ( La. 2/ 18/ 05), 896 So. 2d 29.

Manslaughter requires the presence of specific intent to kill or inflict great bodily

harm. State v. Hilburn, 512 So. 2d 497, 504 ( La. App. 1st Cir.), writ denied, 515

So. 2d 444 ( La. 1987).

Specific intent is that state of mind which 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). Such state of mind can be formed

in an instant. Specific intent need not be proven as a fact, but may be inferred from

the circumstances of the transaction and the actions of the defendant. The existence

of specific intent is an ultimate legal conclusion to be resolved by the trier of fact.

II

State v. Nixon, 2017- 1582 ( La. App. 1st Cir. 4/ 13/ 18), 250 So. 3d 273, 290, writ

denied, 2018- 0770 ( La. 11/ 14/ 18), 256 So. 3d 290.

In his brief, the defendant does not deny that he killed Ms. Ortiz. He argues

that he should have been found guilty of manslaughter instead of second degree

murder. According to the defendant, his killing of Ms. Ortiz was a crime of passion.

Further, the defendant asserts, the fact that she was stabbed 33 times was " indicative

of an emotionally charged offense."

Multiple stab wounds are not necessarily indicative of a killing committed in

sudden passion or heat of blood caused by provocation sufficient to deprive a person

of his self-control and cool reflection. In State v. Johnson, 52, 762 ( La. App. 2nd

Cir. 8/ 14/ 19), 277 So. 3d 1263, 1273, 1279, writ denied, 2019- 01670 ( La. 7/ 17/ 20),

298 So. 3d 176, the victim was stabbed 21 times in the chest, arm, neck, buttock, and

back, with depths of the stab wounds ranging 0. 3 to 10. 5 centimeters. The appellate

court found no evidence in support of a manslaughter verdict. In State v. Ellis,

42, 286 ( La. App. 2nd Cir. 7/ 11/ 07), 961 So. 2d 636, 638- 39, writ denied, 2007- 1641

La. 1/ 25/ 08), 973 So. 2d 753, the victim was stabbed 45 times. Finding no merit to

the defendant' s claim that he should have been convicted of manslaughter, the

second circuit found:

The defendant failed to prove by a preponderance of the evidence that
he was provoked to the extent necessary to deprive an average person
of his self-control. Even had he been unduly provoked, he should have
recovered his senses while lying in wait. In support of his provocation
argument, he offered autopsy results revealing that the victim had
cocaine in her system. Even if the victim had used every drug known
to mankind, she certainly had a right not to be stalked and brutally
stabbed to death.
The jury heard the evidence and rejected the defendant' s version
of the butchering, finding that this was a murder case. We agree. This
is not the sort of sudden provocation contemplated by La. R.S. 14: 31.
Generally, provocative acts held to rise to the level of mitigating
conduct have involved physical threats or actions on the part of the
victim. There was no evidence at the crime scene that the victim said
or did anything directly to the defendant, other than to plead for mercy.
Defendant' s claim of manslaughter is untenable.

Ellis, 961 So. 2d at 640 ( citations omitted).

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In State v. Jackson, 34, 076 ( La. App. 2nd Cir. 12/ 6/ 00), 774 So. 2d 1046,

1050- 1053, the defendant stabbed his girlfriend' s mother, who survived the attack.

When the girlfriend intervened, the defendant stabbed her, killing her. Despite the

defendant' s claim of manslaughter, the defendant' s conviction for second degree

murder was affirmed. See also State v. Watson, 2015- 392 ( La. App. 3rd Cir.

10/ 7/ 15), 175 So. 3d 1192, 1194, 1201, writ denied, 2015- 2046 ( La. 11/ 7/ 16), 208

So. 3d 897; State v. Vercher, 2014- 1211 ( La. App. 3rd Cir. 5/ 6/ 15), 162 So. 3d 740,

744- 46, writ denied, 2015- 1124 ( La. 5/ 20/ 16), 191 So. 3d 1065.

The defendant' s claim herein that his stabbing of Ms. Ortiz was caused by

provocation sufficient to deprive him ofhis self-control is unavailing. Ernest Taylor,

a witness for the State, testified that he was a prisoner at East Baton Rouge Parish

Prison where he met the defendant, who had been incarcerated there shortly after he

killed Ms. Ortiz. Taylor' s testimony established the following. While in the parish

prison, he and the defendant became friends, then intimately involved. The

defendant told Taylor that at the time he killed Ms. Ortiz, they were not in a

relationship, but the defendant still went to her house and spent nights with her.

During one of those visits, the defendant discovered he was missing $ 80. 00. Ms.

Ortiz admitted that she took the money. Ms. Ortiz' s boyfriend at that time called the

defendant and told him that they would pay the money back. They arranged a place

to meet, but Ms. Ortiz and her boyfriend did not show up. The defendant called Ms.

Ortiz several times, but she did not answer her phone. The defendant went to Ms.

Ortiz' s apartment, and Ms. Ortiz' s boyfriend called the police. At this point, the

defendant decided to kill Ms. Ortiz' s boyfriend. The defendant put a knife in a tree

near Ms. Ortiz' s apartment and waited for her boyfriend. However, Ms. Ortiz got

off the bus that day without her boyfriend. The defendant decided he would talk to

Ms. Ortiz. He approached Ms. Ortiz, and she indicated that she did not want to talk

to him. The defendant told her that if she made a noise and someone came out, he

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would stab her. Ms. Ortiz screamed and the defendant stabbed her. A neighbor

intervened, and the defendant stabbed him. The defendant then continued to stab

Ms. Ortiz. After Ms. Ortiz stopped struggling or moving, the defendant went to an

abandoned house down the street where he left Ms. Ortiz' s bag ( a backpack) that she

had with her when she got off the bus. The defendant then caught a bus back to his

residence and changed his bloody clothes.

A reduction of second degree murder to manslaughter requires that the killing

be committed in sudden passion or heat of blood immediately caused by provocation

sufficient to deprive an average person of his self-control and cool reflection. La.

R.S. 14: 31( A)( 1). While the defendant was upset that Ms. Ortiz had taken $ 80. 00

from him, days had passed between the taking and the killing. There was nothing in

the scenario, as described by Taylor, to suggest that Ms. Ortiz did anything to

provoke the defendant when he approached her with a knife. The defendant told Ms.

Ortiz not to make a noise or he would stab her. The neighbors heard Ms. Ortiz yell,

Call, call, call." Whether the defendant stabbed her before or after she yelled this

is not clear. Regardless, it is clear the defendant followed through on his threat of

stabbing her. The defendant stabbing his victim to death because she screamed for

her life is not the type of provocation contemplated by La. R.S. 14: 31. See Ellis,

961 So. 2d at 640. That is, nothing in the moments leading up to the stabbing

established that the defendant had been provoked by Ms. Ortiz such that a

reasonable person in the defendant' s position would have lost his self-control. See

State v. Tran, 98- 2812 ( La. App. 1st Cir. 11/ 5/ 99), 743 So. 2d 1275, 1292, writ

denied, 99- 3380 ( La. 5/ 26/ 00), 762 So. 2d 1101. Mere words or gestures will not

reduce a homicide from murder to manslaughter. State v. Mitchell, 39,202 ( La.

App. 2nd Cir. 12/ 15/ 04), 889 So. 2d 1257, 1263, writ denied, 2005- 0132 ( La.

4/ 29/ 05), 901 So. 2d 1063. See State v. Charles, 2000- 1611 ( La. App. 3rd Cir.

5/ 9/ 01), 787 So. 2d 516, 519, writ denied, 2001- 1554 ( La. 4/ 19/ 02), 813 So. 2d 420

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an argument alone will not be sufficient provocation to reduce a murder charge to

manslaughter). See also State v. Landry, 2019- 0486 ( La. App. 1st Cir. 2/ 21/ 20),

297 So. 3d 8, 13- 14, 18.

Provocation testimony is an issue of credibility. The only evidence of any

alleged immediate provocation came from Taylor' s testimony. In finding the

defendant guilty of second degree murder, it is clear the judge rejected any such

testimony. See State v. Byes, 97- 1876 ( La. App. 4th Cir. 4/ 21/ 99), 735 So. 2d 758,

764, writ denied, 99- 1559 ( La. 11/ 5/ 99), 751 So. 2d 231. It was the defendant who

had to establish that the mitigating factors of sudden passion or heat of blood were

present at the time of the killing, and he failed to do so. See State ex rel. Lawrence

v. Smith, 571 So. 2d 133, 136 ( La. 1990); State v. LeBoeuf, 2006- 0153 ( La. App.

1st Cir. 9/ 15/ 06), 943 So. 2d 1134, 1138, writ denied sub nom., State ex rel. LeBoeuf

v. State, 2006- 2621 ( La. 8/ 15/ 07), 961 So. 2d 1158. See also Patterson v. New

York, 432 U.S. 197, 206- 07, 97 S. Ct. 2319, 23251 53 L.Ed.2d 281 ( 1977). The

defendant did not testify at trial, nor did any witness testify for the defense. As such,

the defendant failed to prove any mitigating factors when he stabbed Ms. Ortiz to

death.

The factfinder can accept or reject the testimony of any witness. To resolve

conflicting testimony relative to factual matters, the factfinder must make credibility

determinations and weigh the evidence. State v. Eby, 2017- 1456 ( La. App. 1st Cir.

4/ 6/ 16), 248 So. 3d 420, 426, writ denied, 2018- 0762 ( La. 2/ 11/ 19), 263 So. 3d 1153.

See also State v. Mire, 2014- 2295 ( La. 1/ 27/ 16), 269 So. 3d 698, 700 ( per curiam).

The Jackson standard of review does not permit a reviewing court to substitute its

own appreciation of the evidence for the factfinder' s, assess the credibility of

witnesses, or reweigh evidence. See State v. McGhee, 2015- 2140 ( La. 6/ 29/ 17),

223 So. 3d 1136, 1137 ( per curiam); State v. Calloway, 2007- 2306 ( La. 1/ 21/ 09), 1

So. 3d 417, 422 ( per curiam). Thus, in the absence of internal contradiction or

irreconcilable conflict with the physical evidence, one witness' s testimony, if

believed by the factfinder, is sufficient to support a factual conclusion. State v.

Higgins, 2003- 1980 ( La. 4/ 1/ 05), 898 So. 2d 1219, 1226, cert. denied, 546 U.S. 883,

126 S. Ct. 1821 163 L.Ed.2d 187 ( 2005). An appellate court errs by substituting its

appreciation of the evidence and credibility of witnesses for that of the factfinder

and thereby overturning a verdict based on an exculpatory hypothesis of mitigatory

circumstances presented to it, and rationally rejected. Eby, 248 So. 3d at 426- 27.

It is clear from the guilty verdict that the trial judge rejected the theory that

the defendant was so angry when he stabbed Ms. Ortiz to death that he was deprived

of his self-control and cool reflection. Questions of provocation and time for cooling

are for the factfinder to determine under the standard of the average or ordinary

person with ordinary self-control. If a man unreasonably permits his impulse and

passion to obscure his judgment, he will be fully responsible for the consequences

of his act. State v. Leger, 2005- 0011 ( La. 7/ 10/ 06), 936 So.2d 108, 171, cert.

denied, 549 U.S. 1221, 127 S. Ct. 1279, 167 L.Ed.2d 100 ( 2007). The trial judge' s

verdict finding the defendant guilty of second degree murder was necessarily a

rejection of any of the responsive verdicts, including manslaughter. See La. Code

Crim. P. art. 814( A)(3); State v. Leon, 93- 2511 ( La. 6/ 3/ 94), 638 So. 2d 220, 222

per curiam).

After a thorough review of the record, we find that the evidence supports the

guilty verdict. We are convinced that viewing the evidence in the light most

favorable to the State, any rational trier of fact could have found beyond a reasonable

doubt, and to the exclusion of every reasonable hypothesis of innocence, that the

defendant was guilty of the second degree murder of Ms. Ortiz. See Calloway, 1

So. 3d at 418.

X

Regarding the attempted second degree murder conviction, the only argument

the defendant asserts in brief is that when Harris tried to intervene, he ( the defendant)

amidst his fit of rage, stabbed him one time."

To sustain a conviction for attempted second degree murder, the State must

prove that the defendant intended to kill the victim and committed an overt act

tending toward the accomplishment of the victim' s death. La. R. S. 14: 27; 14: 30. 1.

Although the statute for the completed crime of second degree murder allows for a

conviction based on " specific intent to kill or to inflict great bodily harm," La. R.S.

14: 30. 1, attempted second degree murder requires specific intent to kill. State v.

Huizar, 414 So. 2d 741, 746 ( La. 1982). Specific intent may be inferred from the

circumstances surrounding the offense and the conduct of the defendant. La. R.S.

14: 10( 1); State v. Bishop, 2001- 2548 ( La. 1/ 14/ 03), 835 So. 2d 434, 437.

Despite the claim herein, Taylor' s testimony contradicts the defendant' s " fit

of rage" theory. Taylor testified that the defendant told him that when Harris came

outside to help Ms. Ortiz, the defendant wanted to kill Harris by stabbing him in the

heart. The defendant told Taylor that he did not want to leave any eyewitnesses

behind. Accordingly, the trial judge rationally concluded that the defendant had the

specific intent to kill Harris and that he was guilty of the attempted second degree

murder of Harris. See Eby, 248 So. 3d at 426-27; Calloway, 1 So. 3d at 422.

These counseled assignments of error are without merit.

PRO SE ASSIGNMENT OF ERROR

In his sole pro se assignment of error, the defendant accuses the trial judge of

being racist and argues that the trial judge should have been recused from hearing

the case.

A trial judge shall be recused when he "[ i] s biased, prejudiced, or personally

interested in the cause to such an extent that he would be unable to conduct a fair

and impartial trial...." La. Code Crim. P. art. 671( A)( 1). There is a presumption that

10

a trial judge is impartial, and in order to obtain a recusation based on bias, prejudice,

and personal interest, the party seeking the recusation must establish more than

conclusory allegations. State v. Boudreaux, 95- 153 ( La. App. 5th Cir. 9/ 20/ 95),

662 So. 2d 22, 27- 28, writ denied, 96- 0840 ( La. 5/ 30/ 97), 694 So.2d 233. The failure

to file a written motion to recuse waives this error. State v. Crothers, 278 So. 2d

129 14 ( La.), cert. denied, 414 U.S. 1096, 94 S. Ct. 731, 38 L.Ed. 2d 555 ( 1973); State

v. Anderson, 96- 1515 ( La. App. 3rd Cir. 4/ 29/ 98), 714 So. 2d 766, 768, writ denied,

98- 1374 ( La. 10/ 9/ 98), 726 So. 2d 25.

Louisiana Code of Criminal Procedure article 674 provides:

A party desiring to recuse a trial judge shall file a written motion
therefor assigning the ground for recusation. The motion shall be filed
prior to commencement of the trial unless the party discovers the facts
constituting the ground for recusation thereafter, in which event it shall
be filed immediately after the facts are discovered, but prior to verdict
or judgment. If a valid ground for recusation is set forth in the motion,
the judge shall either recuse himself, or refer the motion for hearing to
another judge or to a judge ad hoc, as provided in Article 675.
Emphasis added).

There was no timely filed motion to recuse in the instant matter. In fact, no

motion to recuse has ever been filed. Accordingly, there is nothing for this court to

review.

The pro se assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.

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