State of Louisiana v. Rasheed McClebb

STATE OF LOUISIANA * NO. 2024-K-0522

VERSUS *
COURT OF APPEAL
RASHEED MCCLEBB *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 557-316, SECTION “C”
Honorable Benedict J. Willard, Judge
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Sandra Cabrina Jenkins,
Judge Nakisha Ervin-Knott)

Brady Minnow Smith
Orleans Public Defenders
2601 Tulane Avenue, Suite 700
New Orleans, LA 70119

COUNSEL FOR DEFENDANT/RELATOR, RASHEED MCCLEBB

Jason Williams
District Attorney
Brad Scott
Chief of Appeals
Thomas Frederick
Assistant District Attorney
Parish of Orleans
619 South White Street
New Orleans, LA 70119

COUNSEL FOR RESPONDENT, STATE OF LOUISIANA

WRIT GRANTED; RELIEF DENIED
September 16, 2024

TFL
SCJ Relator, Rasheed McClebb (“Mr. McClebb”), seeks review of the trial
NEK
court’s July 26, 2024 denial of his Motion to Quash the Bill of Indictment in

advance of his second trial after a mistrial. For the following reasons, we find Mr.

McClebb did not preserve the issue for review. Accordingly, the writ is granted,

but relief is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 9, 2023, an Orleans Parish Grand Jury indicted Mr. McClebb on

the charge of second-degree murder, in violation of La. R.S. 14:30.1. On July 8,

2024, a jury trial commenced. The July 10, 2024 transcript of the trial proceedings

reflects that the trial court declared a mistrial “based upon the fact that we’ve been

attempting to get a verdict in this matter now for five and a half hours, I’m going to

declare a mistrial. This case is over with.”

On July 26, 2024, the parties appeared before the court for a pre-trial

conference, wherein Mr. McClebb filed a Motion to Quash the Bill of Indictment

on the grounds that a retrial in the matter “would place him twice in jeopardy, in

violation of the Louisiana and U.S. [C]onstitutions.” The trial court, without

issuing reasons, denied Mr. McClebb’s Motion to Quash the Bill of Indictment.

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STANDARD OF REVIEW

In State v. Butler, 14-1016, p. 3 (La. App. 4 Cir. 2/11/15), 162 So. 3d 455,

459, this Court set forth the standard for reviewing a district court’s ruling on a

motion to quash as follows:

The standard of review that we apply in reviewing
a district court’s ruling on a motion to quash varies based
on the types of issues presented. When solely legal
issues are presented, … we apply a de novo standard of
review. State v. Olivia, [20]13–0496, pp. 2–3 (La. App.
4 Cir. 3/26/14), 137 So.3d 752, 754; State v. Schmolke,
[20]12–0406, p. 4 (La. App. 4 Cir. 1/16/13), 108 So.3d
296, 299; see also State v. Hamdan, [20]12–1986, p. 6
(La.3/19/13), 112 So.3d 812, 816 (noting that “[o]n
appeal from the trial court’s ruling on a motion to quash,
the trial court’s legal findings are subject to
a de novo standard of review”). In contrast, when mixed
issues of fact and law are presented … we apply an abuse
of discretion standard. State v. Hall, [20]13–0453, pp.
11–12 (La. App. 4 Cir. 10/9/13), 127 So.3d 30, 39
(citing State v. Tran, [20]12–1219, p. 2 (La. App. 4 Cir.
4/24/13), 115 So.3d 672, 673, n. 3) (explaining that “[i]n
reviewing rulings on motions to quash where there are
mixed questions of fact … a trial judge’s ruling on a
motion to quash is discretionary and should not be
disturbed absent a clear abuse of discretion”); State v.
Love, [20]00–3347, pp. 9–10 (La.5/23/03), 847 So.2d
1198, 1206 (“[b]ecause the complementary role of trial
courts and appellate courts demands
that deference be given to a trial court's discretionary
decision, an appellate court is allowed to reverse a trial
court judgment on a motion to quash only if that finding
represents an abuse of the trial court’s discretion”).

(quoting State v. Trepagnier, 14-0808, p. 5, n.3 (La. App. 4 Cir. 11/19/14), 154 So.

3d 670, 673).

MISTRIAL

Mr. McClebb contends, “[b]ecause the district court’s sua sponte declaration

of a mistrial—without any request from the parties and without a manifest

necessity—flaunted both federal and state constitutional law, re-trying [him] for

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the offense alleged in count 1 of the [b]ill of [i]ndictment would constitute double

jeopardy.” Thus, Mr. McClebb contends that the trial court erred in denying his

motion to quash in advance of his second trial for the same offense.

Both the United States and the Louisiana
Constitution afford double jeopardy protection; the Fifth
Amendment to the United States Constitution and Article
I, § 15 of the Louisiana Constitution prohibit the
government from twice placing a person in jeopardy for
the same offense. Double jeopardy protection is codified
in La. C.Cr.P. Art. 591, which provides that “[n]o person
shall be twice put in jeopardy of life or liberty for the
same offense, except, ... where there has been a mistrial
legally ordered under the provisions of Article 775.”

State v. Copelin, 16-0264, p. 8 (La. App. 4 Cir. 12/7/16), 206 So. 3d 990, 996.

Louisiana Code of Criminal Procedure Article 775 provides, in pertinent part: “A

mistrial may be ordered, and in a jury case the jury dismissed, when: (2) The jury

is unable to agree upon a verdict.”

As reflected in the trial transcript, neither party objected to the ordered

mistrial, nor did either party submit a motion seeking a twenty-four hour stay of

proceedings to allow for the filing of an emergency writ application pursuant to the

provisions of La. C.Cr.P. art. 775.1, which provides:

If a judge orders a mistrial, then upon motion of either
the state or the defendant, the court shall order an
automatic twenty-four-hour stay of all proceedings in
which either the state or the defendant may take an
emergency writ application to the appropriate reviewing
courts with appellate jurisdiction, including the Louisiana
Supreme Court. The jury shall not be released pending
the stay unless both the state and defendant agree to
release the jury.

Mr. McClebb asserts that even though he failed to object or, for that matter,

seek a twenty-four hour stay of the proceedings to allow for the filing of an

emergency writ, he “did not waive his right to invoke a double jeopardy claim.”

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Mr. McClebb relies upon State v. Joseph, 434 So. 2d 1057, 1060 (La. 1983),

wherein the Supreme Court reiterated its finding in an earlier decision “that the

failure of the defendant to object to a mistrial which he had not sought and from

which he [had] not benefited was inconsequential since once a mistrial is declared

the trial is over.” Further, Mr. McClebb cites State v. DeGrate, 634 So. 2d 965,

968 (La. App. 2 Cir. 3/30/94), a case in which the Second Circuit stated: “[T]he

absence of a contemporaneous objection does not bar a subsequent plea of double

jeopardy when the first trial ends in a mistrial by the district judge’s own motion,

and when the motion does not benefit the accused.” However, Mr. McClebb’s

reliance on this jurisprudence is misplaced.

In State v. Copelin, a similar factual situation was presented. The trial court

declared a mistrial in the defendant’s first trial and defendant did not object to the

court’s action nor did he seek relief pursuant to La. C.Cr.P. art. 775.1. Copelin,

16-0264, p. 6, 206 So. 3d at 995. Thereafter, the defendant filed a motion to quash

contending that any effort to retry him constituted a violation of his protection

against double jeopardy. Id., 16-0264, p. 2, 206 So. 3d at 993.

To counter the State’s argument that defendant failed to preserve his double

jeopardy claim by failing to object and failing, under the provisions of La. C.Cr.P.

art. 775.1, to seek immediate review of the trial court’s mistrial ruling, defendant,

relying on Joseph, supra, along with State v. Simpson, 371 So.2d 733 (La. 1979),1

averred that he was not required to object or seek relief pursuant to Article 775.1.2

1 In Simpson, 371 So. 2d at 738, the Supreme Court, in determining an objection to a mistrial was

not necessary, noted: “When a mistrial is declared, the jury is dismissed …. Unless the
defendant anticipates the declaration of a mistrial, the trial ends without the opportunity to
object.”
2 In Copelin, this Court noted that Degrate, supra, a 1994 opinion from the Second Circuit,

likewise provided that a defendant’s failure to raise an objection at the time the mistrial was

4

In rejecting defendant’s argument, this Court reasoned:

Read together, the Simpson and Joseph cases have
the untenable effect of making the declaration of a
mistrial insusceptible to review and thus create a
predicament under which an aggrieved party must
anticipate the declaration of a mistrial. Stated otherwise,
these cases hold that a trial court’s declaration of a
mistrial is an immediate, irrevocable disposition that
cannot be undone or recalled. By enacting Article 775.1,
which became effective in 2004 (La. Acts 2004, No. 413
§ 1), the Louisiana Legislature, in effect, abrogated the
holdings in Simpson and Joseph.

By imposing an automatic stay when invoked,
Article 775.1 precludes a trial court from simultaneously
granting a mistrial and dismissing the jury and thereby
depriving the aggrieved party from seeking appellate
review. Indeed, the apparent purpose for enacting Article
775.1 was to create a procedural device for the aggrieved
party to preserve the status quo pending an appellate
court’s ruling on the issue. An aggrieved party’s remedy
is not to seek reconsideration of the issue before the trial
court; rather, their remedy is to request a twenty-four
hour automatic stay of the proceedings—thereby
delaying the release of the jury—in order to file an
emergency writ application with the appropriate appellate
court and, if necessary, the Louisiana Supreme Court.

The Louisiana Supreme Court has repeatedly held
that an irregularity or error cannot be availed of after the
verdict unless it was objected to at the time it occurred;
and, as enacted, Article 775.1 preserves the
contemporaneous objection rule with respect to the
declaration of a mistrial. See La. C.Cr.P. art. 841; State v.
Lanclos, 07-0082 (La. 4/8/08), 980 So.2d 643.

Contrary to Mr. Copelin’s contention, if he had
invoked Article 775.1, the district court could not have
simultaneously granted a mistrial and discharged the
jury. If he had invoked Article 775.1, it would have
resulted in an automatic stay; the district court would
have been mandated to instruct the jury that its ruling
granting the mistrial was not final. As a result, the jury
would have been ordered to return the next day for the
appellate court's ruling on the emergency writ. Given Mr.

declared does not bar a subsequent plea of double jeopardy. See Copelin, 16-0264, p. 12 n.6,
206 So. 3d at 999 n.6.

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Copelin failed to object or to invoke the appropriate
remedy provided for by Article 775.1, we find the
assignment of error was not preserved for review.

Copelin, 16-0264, pp. 14-15, 206 So. 3d at 1000. See also State v. Lewis, 19-0448,

p. 7 (La. App. 4 Cir. 2/12/20), 292 So. 3d 945, 951 (“Following Copelin, we find

that Defendant failed to seek emergency review of the district court’s mistrial order

in accordance with La. C.Cr.P. art. 775.1, and therefore, waived his right to

proceed to trial with the dismissed jury. Defendant’s original and supplemental

assignments of error one [in which he argued that the second mistrial was illegal

and that further prosecution was violative of his protection against double

jeopardy] lack merit.”). Thus, in the absence of an objection, Mr. McClebb did not

preserve the issue for review. Accordingly, relief is denied.

DECREE

For the above-mentioned reasons, we find Mr. McClebb failed to preserve

the issue for review. As such, we grant the writ, but deny relief.

WRIT GRANTED; RELIEF DENIED

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