State of Louisiana v. Jermera Marquez Mayo

Judgment rendered February 9, 2022.

No. 54,059-KA

ON REHEARING

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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STATE OF LOUISIANA Appellee

versus

JERMERA MARQUEZ MAYO Appellant

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Per Curiam on Rehearing

Originally Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 367583

Honorable Katherine Clark Dorroh, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Mary Constance Hanes

JERMERA MARQUEZ MAYO Pro Se

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

EDWIN L. BLEWER, III
TOMMY JAN JOHNSON
NANCY F. BERGER-SCHNEIDER
Assistant District Attorneys

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Before MOORE, STONE, STEPHENS, HUNTER,
and GARRETT (Ad Hoc), JJ.

PER CURIAM

In our initial opinion, we addressed the arguments raised by defense

counsel. However, Mayo also filed a timely pro se brief which raises

additional arguments. We granted rehearing to address Mayo’s pro se

arguments.

While Mayo’s pro se brief does not fully comply with the

requirements of Rule 2-12.4 of the Uniform Rules of Louisiana Courts of

Appeal, this Court has attempted to ascertain the substance of his arguments

and treat them as having been properly raised.

Sufficiency of the evidence

The standard of appellate review for a sufficiency of the evidence

claim is whether, after viewing the case in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hearold,

603 So. 2d 731 (La. 1992). This standard does not provide an appellate court

with a vehicle for substituting its appreciation of the evidence for that of the

fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517. The

trier of fact makes credibility determinations and may accept or reject the

testimony of any witness. State v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d

1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000).

The appellate court does not assess credibility or reweigh the evidence.

State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442. A reviewing court

affords great deference to a trial court’s decision to accept or reject the

testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.

App. 2 Cir. 8/30/02), 827 So. 2d 508 writ denied, 02-3090 (La. 11/14/03),

858 So. 2d 422.

In the absence of internal contradiction or irreconcilable conflict with

the physical evidence, one witness’s testimony, if believed by the trier of

fact, is sufficient to support a factual conclusion. State v. Elkins, 48,972 (La.

App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied, 14-0992 (La. 12/8/14), 153

So. 3d 438. This is equally applicable to the testimony of victims of sexual

assault. Id. Such testimony alone is sufficient even when the state does not

introduce medical, scientific or physical evidence to prove the commission

of the offense. Id.

Mayo challenges the sufficiency of the evidence on multiple grounds.

We address each of his arguments in turn and evaluate the evidence as a

whole.

“Coercion” of testimony. Mayo argues that the victim’s testimony

was “coerced” – however, that is a mere conclusory assertion. He provides

no details or specific facts that support this claim, but does argue that the

mere presence of an unidentified woman in the audience during his trial

somehow coerced the victim’s testimony. He makes no specific allegations

regarding how this woman, by her mere presence in the courtroom,

supposedly coerced the victim’s testimony.1 He also argues that the

prosecution was “leading” the victim on direct examination and this

somehow establishes coercion. We have reviewed the victim’s testimony

and see no indication of coercion or inappropriate questioning. The trial

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Mayo seems to additionally suggest that this unidentified woman’s mere presence invalidated his
trial. This argument is without merit.
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court correctly overruled Mayo’s pro se objection whereby he claimed that

the prosecutor was “leading” the witness.

Identification. Mayo also challenges the victim’s identification of him

as the perpetrator. She identified him as the perpetrator after seeing him in

the courtroom. She testified that she saw him at four different times on the

night of the crime: twice in the house before the incident; once during the

incident, which occurred in the bedroom; and once outdoors after the

incident. That is sufficient identification.

Consistency. Finally, Mayo claims that the victim’s testimony was

inconsistent and therefore incredible. We have reviewed her testimony. It

bears no internal inconsistencies. Nor does it conflict with other evidence in

the record. Mayo’s allegations that materials – which were not introduced

into evidence – contradict the trial testimony do not and cannot weigh

against the sufficiency of the evidence.

Finally, we have reviewed the evidence as a whole and find that it is

sufficient to support Mayo’s conviction. This assignment of error is without

merit.

Ineffective assistance of counsel

Generally, “ineffective assistance of counsel claims are more

appropriately addressed in post-conviction proceedings” – rather than direct

appeal. State v. Harris, 2018-1012 (La. 7/9/20) 2020 WL 3867207. We

address each of Mayo’s ineffective assistance of counsel arguments in turn.

Mayo argues that defense counsel provided ineffective assistance at

trial by failing to request a continuance when Mayo’s purported alibi witness

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failed to appear on the original trial date of August 14, 2020. However, trial

counsel in fact obtained a continuance. On the original trial date, the witness

had been properly subpoenaed, and a writ of attachment was issued upon her

failure to appear. The court did not stay the proceedings, but left evidence

open at the end of the prosecution’s case in chief, and a week later, the trial

was resumed. The alleged alibi witness gave her testimony on August 20,

2020. In no way did trial counsel perform deficiently with regard to the

securing of this witness for testimony. This argument lacks merit and is

rejected. Mayo is hereby barred from raising it again.

Mayo also references materials that were not introduced into evidence

as supposed impeachment evidence regarding an unspecified witness (or

witnesses). However, reading his brief in pari materia, it appears Mayo is

alleging that the victim and the other juvenile witness, in their Gingerbread

House interviews, did not mention the fact that Mayo was wearing an orange

shirt the night of the crime. This court cannot consider materials not

introduced into evidence in an appeal. Therefore, we decline to pass

judgment on this issue in this appeal. State v. Harris, supra.

Prosecution’s disclosure of impeachment evidence

Mayo alleges that the prosecution withheld the recordings of the

Gingerbread House interviews of the victim and the other juvenile witness,

as well as documents reflecting statements they made to investigating police

officers. He claims these recordings constitute exculpatory evidence and/or

impeachment evidence against the testimony of victim. However, elsewhere

in his brief, Mayo admits that he was allowed to watch the recorded

Gingerbread House interviews prior to trial. Therefore, Mayo’s accusation

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that the prosecution withheld evidence is false per his own brief to this court.

This argument lacks merit and is rejected. Mayo is hereby barred from

raising it again.

However, to the extent, if any, the prosecution failed to disclose other

evidence which is materially exculpatory, Mayo is not precluded from

pursuing that issue through postconviction proceedings.

Accusation of judicial bias

Mayo makes conclusory accusations of bias against the trial judge.

Mayo’s complete failure to point out any specific grounds for his accusation

is fatal to this argument. Moreover, the trial judge’s refusal to allow Mayo to

disrupt the proceedings does not constitute bias or “vindictiveness.” A trial

judge has the duty, right, and power to maintain decorum in proceedings

over which she presides. The trial judge’s exclusion of Mayo from the trial

was quite appropriate in light of his recalcitrant disruption of the

proceedings.

CONCLUSION

Mayo’s conviction and sentence are AFFIRMED.

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