State Of Louisiana v. Treveon Robinson

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2023 KA 0361

STATE OF LOUISIANA

VERSUS

TREVEON ROBINSON

Judgment Rendered: FEB 2 12024

Appealed from the
18th Judicial District Court
In and for the Parish of Pointe Coupee
State of Louisiana
Docket No. 83, 365 c/w 83, 366

The Honorable J. Kevin Kimball, Judge Presiding

Antonio M. " Tony" Clayton Counsel for Appellee,
District Attorney State of Louisiana
Terri Russo Lacy
Assistant District Attorney
Port Allen, Louisiana

Chad Aguillard
Kristen Canezaron
Nishant Bhushan
Ali Meronek
Assistant District Attorneys
New Roads, Louisiana

Mary Constance Hanes Counsel for Defendant/Appellant,
New Orleans, Louisiana Treveon Robinson

BEFORE; McCLENDON, FESTER, AND MILLER, JJ.

MILLER, J.

The defendant, Treveon Robinson, was charged. by grand jury indictment

with second degree murder (count one), a violation of La. R.S. 14: 30. 1, first degree

feticide ( count two), a violation of La. R.S. 14: 32. 6, attempted second degree

murder ( count three), a violation of La. R.S. 14: 27 and La. R.S. 14: 30. 1, and being

a convicted felon in possession of a firearm or carrying a concealed weapon ( count

four), a violation of La. R.S. 14: 95. 1. 1 He pled not guilty and, after a jury trial,

was found guilty as charged on all four counts. The trial court denied the

defendant' s motion for new trial, and sentenced the defendant to life imprisonment

at hard labor without the benefit of probation, parole, or suspension of sentence on

count one; fifteen years imprisonment at hard labor on count two; fifty years

imprisonment at hard labor without the benefit of probation, parole, or suspension

of sentence on count three; and twenty years imprisonment at hard labor without

the benefit of probation, parole, or suspension of sentence on count four, with each

sentence to be served consecutively.

The defendant now appeals, assigning as error the trial court' s incorrect

application of La. C. Cr.P. art. 401( A)(5) during jury selection and its denial of his

two mations for mistrial. For the following reasons, we affirm the convictions and

sentences.

FACTUAL BACKGROUND

In the early morning hours of February 14, 2019, the victims, Kendell Mingo

and his pregnant girlfriend Aerial Edwards, were asleep on the couch in their

home at 15134 Russell Lane. Mingo awoke to the sound of gunshots and looked

around the house to investigate. When he attempted to wake Edwards, he realized

The defendant was tried simultaneously with his co- defendant, Andre Griffin_ Also
charged in this matter were co- defendants, Nicholas Robinson, Jericho Hamburg, and Darion
Springer.

The record contains various spellings of the names of Kendell Mingo and Aerial
Edwards. The spellings reflected in the grand jury indictment are used herein.
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she had been shot and he subsequently called 911 at approximately 1: 42 a.m. The

bullet struck Edwards in the abdomen and caused a significant amount of blood

loss, killing both her and her unborn child.

Through the course of their investigation, officers with the Pointe Coupee

Parish Sheriff' s Office learned that approximately one week prior to the shooting,

the defendant' s brother, Darion Springer, stole Mingo' s firearm at a bonfire. After

the bonfire, Springer received threatening text messages and phone calls telling

him to return Mingo' s gun. Mingo' s stepbrother, Dequan Guidry, then went to

Springer' s house, allegedly with a gun, and threatened Springer' s mother and

family.

Springer eventually confessed that he was in the vehicle with the individuals

who shot at the residence on Russell Lane. According to Springer, on the night of

February 13, 2019, Springer, Andre Griffin, Nicholas Robinson, Jericho Hamburg,

and the defendant rode around looking to beat up Nigel Gremelsbacker "[ b] ecause

he had stolen something." Unable to locate Nigel, Springer suggested that they

instead look for Mingo, in order to retaliate for Mingo' s brother' s threats against

Springer and his family. They drove down Russell Lane, saw Mingo' s car in front

of the house, and turned around, heading back towards the house. According to

Springer, the defendant, seated in the passenger seat, and Andre Griffin, seated in

the driver seat, then leaned out of the car windows and shot at the house.'

Springer, Hamburg, and Nicholas Robinson were seated in the backseat. Although

Springer tried to shoot, his gun jammed.

Pursuant to the investigation, officers issued arrest warrants for Andre

Griffin, Nicholas Robinson, Darion Springer, Jericho Hamburg, and the defendant.

DISCUSSION

Exclusion of Prospective Jurors

Although Springer testified that the defendant fired shots at the house, Hamburg testified
that the defendant' s gun jammed.

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In his first assignment of error, the defendant argues that the trial court erred

in applying an incorrect version of La. C.Cr.P. art. 401( A)(5) during jury selection

to exclude prospective jurors with prior felony convictions.

An accused in a criminal case is constitutionally entitled to a full and

complete voir dire examination and to the exercise of peremptory challenges. La.

Const. art. I, § 17( A). The purpose of voir dire examination is to determine

prospective jurors' qualifications by testing their competency and impartiality and

discovering bases for intelligent exercise of cause and peremptory challenges. State

v. Mills, 2013- 0573 ( La. App. I" Cir. 8/ 27/ 14), 153 So. 3d 481, 486, writs denied,

2014- 2027 ( La. 5122115), 170 So. 3d 982 and 2014- 2269 ( La. 9118/ 15), 178 So. 3d

139. The question of a juror' s qualifications is addressed to the sound discretion of

the trial judge. Therefore, the trial court' s rulings will not be disturbed unless a

review of the voir dire as a whole indicates an abuse of that discretion. State v.

Folse, 2018- 0152 ( La. App. V" Cir. 9121118), So. 3d , 2018 WL 45204653

6, writ denied, 2018- 1740 ( La. 4/ 22119), 268 So. 3d 296.

Louisiana Code of Criminal Procedure article 401 sets forth the general juror

qualifications with regard to citizenship, residence, age, ability, and criminal

history. Prior to its amendment in 2021, La. C.Cr.P. art. 401( A)(5) provided that,

in order to qualify to serve as a juror, a person must "[ n] ot be under indictment for

a felony nor have been convicted of a felony for which he has not been pardoned

by the governor." See 2010 La. Acts, No. 438, § 1. The statute was amended in

August of 2021 and now provides:

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.
La. C. Cr.P. art. 401( A)( 5); 2021 La. Acts, No. 121, § 1.

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The matter proceeded to trial by jury on March 28, 2022. During jury

selection, the trial court recited the juror qualifications, referencing the prior

version of La. C. U.P. art. 401( A)(5). A prospective juror, Joseph Stoute, stated

that he was convicted of a felony ten years prior. The trial court believed that

Stoute needed an actual pardon from the governor to serve, as provided under the

previous version of La. C. Cr.P. art. 401(. A)( 5), but deferred excusing Stoute until

the issue could be more thoroughly researched..

On appeal, the defendant contends that the record does not mention Stoute

again, and that he seemed to have been dismissed from the jury based on the

court' s erroneous statement of the current law. However, the record reflects that

Stoute was eventually seated on the fourth jury panel. Because a jury was selected

and sworn from jury panels one, two, and three, the parties never reached jury

panel four during voir dire. Therefore, Stoute was not prevented from serving as a

juror based on his status as a convicted felon, and the defendant was not prejudiced

by the trial court' s initial error. Accordingly, this assignment of error is without

merit.

Motions for Mistrial

In his second and third assignments of error, the defendant argues that the

trial court erred in denying his two motions for mistrial. Initially, he complains

that the State announced in front of the jury that it was calling Nicholas Robinson

to testify even though the State knew the witness planned to invoke his privilege

against self-incrimination. Finally, the defendant contends that he was prejudiced

when Sergeant Perry Lambert testified regarding the contents of a destroyed

surveillance videotape.

Louisiana Code of Criminal Procedure article 775 requires a mistrial upon

motion of the defense when " prejudicial conduct in or outside the courtroom

makes it impossible for the defendant to obtain a fair trial[.]" A mistrial is a drastic

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remedy that should only be declared upon a clear showing of prejudice by the

defendant. State v. Cowart, 2022- 1318 ( La. App. 1st Cir. 6/ 2/ 23), 369 So. 3d 887,

890. The determination of whether a mistrial should be granted is within the sound

discretion of the trial court, and the denial of a motion for mistrial will not be

disturbed on appeal absent an abuse of discretion. State v. Dardar, 2021- 0860,

2021- 08611 2021- 0862 ( La. App. 1st Cir. 2125122), 340 So. 3d 1110, 1119, writ

denied, 2022- 00533 ( La. 5124122), 338 So. 3d 1192.

Invocation of Fifth Amendment Right

In all criminal cases, a person has a privilege against self-incrimination and

shall [ not] be compelled to give evidence against himself" La. Const. art. I, § 16;

U.S. Const. amend. V; La. R. S. 15: 276. Claims of privilege are preferably

determined outside the presence of the jury since the jury may give undue weight

to such a claim. See State v. Wille, 559 So. 2d 13211 1337 ( La. 1990). It is

impermissible for either the prosecution or the defense to knowingly call a witness

who will assert a privilege, solely for the purpose of impressing upon the jury the

fact that the privilege is being claimed. See State v. Haddad, 99- 1272 ( La.

2129/ 00), 767 So. 2d 682, 686, cert. denied, 531 U. S. 1070, 121 S. Ct. 757, 148

L.Ed. 2d 660 ( 2001); State v. Victores, 486 So. 2d 897, 899- 900 ( La. App. Is' Cir.

1986). Moreover, " when the State knows that a witness will exercise a valid

privilege, it is reversible error to require the witness to exercise his privilege in

front of the jury." State v. Day, 400 So. 2d 622, 624 ( La. 1981); State v. Trosclair,

584 So. 2d 270, 280 ( La. App, 1st Cir.), writ denied, 585 So. 2d 575 ( La. 1991).

Throughout the trial, Nicholas Robinson was identified as one of the

individuals involved in the shooting on Russell Lane. During a bench conference,

defense counsel informed the trial court that Nicholas Robinson' s attorney was in

the courtroom and expressed a concern that the State would call his client to the

stand, knowing that he planned to invoke his Fifth Amendment right against self -

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incrimination. The trial judge stated that if the State knew that Nicholas Robinson

was invoking his right to remain silent, there was no reason to do so before the

jury. The State reassured that they would inform the court before they called him

to the stand.

At the conclusion of Jericho Hamburg' s testimony, and notwithstanding

previous assurances to the contrary, the State called Nicholas Robinson to the stand

in front of the jury. Defense counsel immediately requested a " sidebar" and a

bench conference was held where he raised an objection outside of the hearing of

the jury. Defense counsel argued that the State knew Nicholas was going to assert

his Fifth Amendment privilege. Nicholas' s attorney confirmed that Nicholas

would invoke his privilege and that he had previously informed the State that

Nicholas would do so. Defense counsel moved for a mistrial based on Nicholas

being " parad[ ed]" through the courtroom during another witness' s testimony to

suggest to the jury that Nicholas' s invocation of his right not to testify was an

indication of his guilt, thereby prejudicing the defendant. Relying on State v.

Edwards, 419 So. 2d 881 ( La. 1982), the trial court denied the motion, reasoning

that although the State called his name, Nicholas was not sworn in as a witness, nor

4
did he invoke his privilege in front of the jury.

Based upon our review of the record, we find that the defendant failed to

demonstrate prejudice such that a mistrial was necessary, and that the trial court

did not abuse its discretion in denying the defendant' s motion. Although the State

improperly called Nicholas to testify knowing that he would invoke his Fifth

Amendment privilege, the defendant' s substantial rights were not affected. See La.

C. Cr.P. art. 921. Once the trial court determined that Nicholas would invoke his

4I Edwards, the Louisiana Supreme Court held that a defendant could not compel
witnesses to invoke their Fifth Amendment rights before the jury, in order for the trier of fact to
draw an inference from the invocation. The court noted that it was clear from the record that the
defendant was aware that the witnesses would not offer any testimony, and the defendant wished
to call them solely for the purpose of having them invoke their privilege in front of the jury.
Edwards, 419 So. 2d at 891- 93.

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privilege, he was properly sworn in and questioned outside the presence of the

jury. Because Nicholas did not exercise his privilege in front of the jury, the jury

could not " draw evidentiary inferences from the fact that [ he] claimed the

privilege." See Wille, 559 So. 2d at 1337- 38; State v. Walker, 2022- 695 ( La. App.

3"" Cir. 4/ 19/ 23), 363 So. 3d 1265, 1271. Therefore, the trial court correctly

disallowed Nicholas from taking the stand and exercising his privilege against self-

incrimination in the presence of the jury. See Haddad, 767 So. 2d at 686; Edwards,

419 So. 2d at 892; see also Victores, 486 So. 2d at 899- 900.

Because the trial court intervened prior to Nicholas invoking his right

against self-incrimination within the presence of the jury, we cannot conclude that

the State' s improper conduct made it impossible for the defendant to have a fair

trial. See La. C. Cr.P. art. 775; State v. Gerard, 96- 366 ( La. App. 51h Cir. 11114/ 96),

685 So. 2d 253, 256- 59; cf. Day, 400 So. 2d at 625. Accordingly, the trial court

did not abuse its discretion in denying the defendant' s motion for mistrial, and this

assignment of error is without merit.

Officer Testimony Regarding Contents of Destroyed Video

Louisiana Code of Evidence article 1002 requires the original document to

prove the contents therein. However, under La. C. E. art. 1004( 1), the original of a

recording is not always required to prove its contents, and other evidence of the

contents of the recording is admissible if all originals are lost or have been

destroyed, unless the proponent lost or destroyed them in bad faith. See State v.

Hines, 2011- 2082 ( La. App. l' Cir. 618112), 2012 WL 2061513, * 5 ( unpublished).

At trial, the defendant' s theory was that Kendal Mingo had many enemies

who could have committed the shooting on Russell Lane, " particularly" Nigel

Gremelsbacker. Mingo and Nigel both admitted that there was " bad blood"

between the two of them. Prior to the shooting, Mingo allegedly pulled a gun on

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Nigel and created an online video where he threatened to kill Nigel.' Sergeant

Perry Lambert, with the Pointe Coupee Parish Sheriffs Office, testified that

although Nigel was initially a suspect in the shooting, he was eventually excluded

based on information obtained through the investigation, including interviews,

phone records, and surveillance videos.

Defense counsel then asked for a sidebar, noting that he never received any

video surveillance in discovery. The State indicated that shortly before Sergeant

Lambert was called to testify, he provided information to the State that he obtained

surveillance video footage during his investigation and this video footage was

stored on a hard drive, which was inadvertently dropped and destroyed by another

officer, At this point the defendant moved for a mistrial. After a hearing on the

matter, the trial court denied the defendant' s motion for a mistrial, finding that the

State did not purposefully destroy or withhold the surveillance footage. The trial

court further ruled that Sergeant Lambert could testify as to what the surveillance

footage showed.

The surveillance videos at issue depicted a vehicle, in which Nigel was a

passenger, within the vicinity of Russell Lane around the time of the shooting.

However, given the time that Nigel passed in front of a residence on Cline Drive,

and the distance between Cline Drive and Russell Lane, Sergeant Lambert

determined that Nigel would not have been able to travel from Cline Drive to

Russell Lane and commit the shooting, based on the time that Mingo called 911.

Accordingly, in conjunction with other corroborating evidence, Sergeant Lambert

excluded Nigel as a suspect.

On appeal, the defendant argues, citing Johnson, 704 So. 2d at 1274- 75, that

the trial court erred in relying upon Sergeant Lambert' s testimony that there was no

Mingo denied that either of these events occurred. However, Nigel told police that

Mingo pulled a gun on him, and police showed him the video of Mingo threatening him.
Springer also confirmed the existence of the video.

0J

bad faith on the part of the State, rather than hearing testimony from someone with

personal knowledge of the videos' destruction. The defendant further contends

that he was prejudiced by Sergeant Lambert' s testimony explaining how he

excluded Nigel as a suspect based on the surveillance videos.

Louisiana courts have consistently allowed officers to testify in the place of

playing taped video or audio recordings to the jury, where the defendant does not

suffer prejudice as a result of the video not being produced. See, e. g., Hines, 2012

WL 2061513 at * 5- 6 ( finding no error in allowing the officers' testimony

regarding contents of defendant' s lost recorded statement where defendant' s

counsel had the opportunity to cross- examine the officers and there was no finding

of bad faith); State v. Craft, 2012- 0076 ( La. App. 3' Cir. 1013112), 99 So. 3d 1108,

1114, writ denied, 2012- 2389 ( La. 4119113), 111 So. 3d 1029 ( finding no error in

allowing the officers' testimony regarding contents of unavailable video recordings

where defendant' s counsel had the opportunity to cross- examine the officers and

the jury heard testimony of those who witnessed defendant' s confession); State v.

McGuffie, 42, 069 ( La. App. 2nd Cir. 811107), 962 So. 2d 1111, 1117, writ denied,

2007- 2033 ( La. 2/ 22/ 08), 976 So. 2d 1283 ( finding no error in allowing the

officer' s testimony regarding contents of defendant' s lost recorded statement

where defendant' s counsel had the opportunity to cross- examine the officer, the

State disclosed tapes were missing prior to trial, and there was no finding of bad

faith).

In Johnson, the defendant argued the trial court erred in allowing testimony

regarding the contents of a store' s surveillance videotape, which was erased prior

to trial. Johnson, 704 So. 2d at 1273. Three officers testified that they viewed the

videotape on the night of the incident, and the store owner testified that the

videotape was inadvertently recorded over the next day. Id. The trial court found

that there was no bad faith on the part of the State, and defense counsel conducted

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an extensive cross- examination of each witness. Id. at 1274. The appellate court

concluded that the officers' testimony, combined with the corroborating testimony

of the store owner, was reliable and therefore admissible. Id. at 1274- 75.

Based on the record before us, we cannot conclude that the trial court erred

in allowing Sergeant Lambert to testify regarding the contents of the surveillance

videos. In the instant case, the trial court specifically found that the videos were

not destroyed in bad faith by the State, and there is nothing in the record to suggest

otherwise. Although the defendant contends that the trial court should have also

heard testimony from someone with personal knowledge of the videos' destruction,

like in Johnson, the trial court was not required to do so. Where " testimony shows

that the original is not available and there is no bad faith by the [ S] tate[,]" the

production of the original evidence is not required. See Johnson, 704 So. 2d at

1274. Therefore, Sergeant Lambert' s testimony alone was sufficient for the trial

court to determine that there was no bad faith on the part of the State. See State in

the Interest of J. D., 154 So. 3d at 730- 31 ( trial court properly allowed investigating

officer to testify regarding contents of surveillance videotape not produced at trial,

where officer, although not involved in video' s unavailability, was thoroughly

cross- examined).

Finally, we find no abuse of discretion in the trial court' s denial of the

motion for mistrial. A mistrial is a drastic remedy that should only be declared

upon a clear showing of prejudice by the defendant. See La. C. Cr.P. art. 775;

Cowart, 369 So. 3d at 890. Herein, the defendant failed to show that he suffered

any prejudice as a result of the original video not being produced. Defense counsel

thoroughly cross- examined Sergeant Lambert on his recollection of the videotapes,

as well as played for the jury portions of interviews, wherein Sergeant Lambert

specifically discussed the contents of the videos. Whether the videotapes may

have been more reliable than Sergeant Lambert' s testimony goes to the weight,

11

rather than the admissibility, of the evidence. See Hines, 2012 WL 2061513 at * 6;

McGuffie, 962 So. 2d at 1117. Furthermore, Sergeant Lambert' s testimony was

merely cumulative of previously admitted testimony, which confirmed that Nigel

was in the vicinity of Russell Lane prior to the time of the shooting, but ultimately

excluded him as a suspect.' Defense counsel likewise elicited testimony that Nigel

and Mingo had ongoing problems, which included violent threats and physical

altercations involving a gun. Therefore, the defendant was able to present his

defense that Nigel was the shooter, and Sergeant Lambert' s reliance on the

surveillance videos in his exclusion of Nigel as a suspect did not prejudice the

defendant.

Accordingly, this assignment of error is without merit.

Patent Error

Pursuant to La. C. Cr.P. art. 920( 2), an appellate court is limited in its review

to errors discoverable by a mere inspection of the pleadings and proceedings

without inspection of the evidence. State v. Kimble, 2023- 0176 ( La. App. 1st Cir.

9121123), So. 3d , 2023 WL 6158506, * 6. After a careful review of the

record, we have found one patent error.

On count four, the trial court failed to impose the mandatory fine of not less

than one thousand dollars nor more than five thousand dollars. La. R. S.

14: 95. 1( B). Accordingly, the defendant' s sentence, which did not include the

mandatory fine, is illegally lenient. However, since the sentence is not inherently

prejudicial to the defendant, and neither the State nor the defendant has raised this

6Sergeant Lambert testified that:

B] ased on the interviews that we received from multiple individuals just
to name them, not to say anything in interview, but Ms. Harley, Ms. Hailey, Ms.
Alexis, Mr. Nigel himself, and Mr. Quan, we were able to put him in a certain
location at a certain time. They gave us a time frame at which time they parted.

And based on information from the phone records and also videos that we
had obtained, we were able to exclude Mr. Nigel Gremelsbacker as being able to
be on Russell lane at the time of the shooting, thereby excluding him from being a
suspect.

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sentencing issue on appeal, we decline to correct this error. See Kimble, 2023 WL

6158506 at * 6.

CONCLUSION

For the above and foregoing reasons, the defendant' s convictions and

sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

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