State of Louisiana v. Scott Allen Cooper

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-161

STATE OF LOUISIANA

VERSUS

SCOTT ALLEN COOPER

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 88706A
HONORABLE J. DONALD AARON, JR., DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Glenn B. Gremillion, and Elizabeth A.
Pickett, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Thibodeaux, J., dissents and assigns written reasons.

Michael Harson
District Attorney, 15th JDC
J. Floyd Johnson, ADA
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel for State-Appellee:
State of Louisiana

James L. Brazee, Jr.
Lee Andrew Gallaspy
Brazee, Cormier & Gallaspy
2901 Johnston St., #206
Lafayette, LA 70503
(337) 237-0492
Counsel for Defendant-Appellant:
Scott Allen Cooper

PICKETT, Judge.
FACTS

On December 7, 1997, at approximately 4:00 p.m. the defendant and a friend,

Vince Moore, approached the vehicle of the victim, Earl Zenon, in a parking lot in

Lafayette, Louisiana. According to an eyewitness, Moore went to the driver’s side

and the defendant went to the passenger’s side of the car. The eyewitness testified

that Moore conversed briefly with the victim, then produced a pistol and shot the

victim five times. Moore then jumped into the driver’s seat of the victim’s car,

apparently pushing the victim over, while the defendant jumped into the back seat of

the victim’s car. Moore and the defendant left the shopping center in the victim’s car.

The eyewitness followed them, calling the police with his cell-phone. The authorities

advised the witness not to follow and he desisted. The car and the body of the victim

were later found in a remote area of Evangeline Parish. The car had been set on fire

with the victim in it.

On November 15, 2000, a Lafayette Parish grand jury indicted the defendant,

Scott Cooper, for being a principal to the first degree murder of Earl Zenon in

violation of La.R.S. 14:24 and 14:30. The state subsequently amended the charge to

principal to second degree murder, in violation of La.R.S. 14:24 and 14:30.1. This

matter was tried before a jury who returned a unanimous verdict of guilty as charged.

The defendant subsequently filed motions for post verdict judgment of acquittal

and for a new trial on November 7, 2002. Those motions were heard by the trial court

and denied. The defendant was sentenced to the mandatory term of life without

benefit of parole, probation, or suspension of sentence. The defendant appeals his

conviction.

ASSIGNMENTS OF ERROR

On appeal, the defendant alleges five assignments of error:

1. The jury erred by finding the State had proven beyond a reasonable
doubt all of the essential elements of Principal to Second Degree Murder.

2. The Trial Court erred in denying the Defendant’s Motion for Post
Verdict Judgment of Acquittal and/or Alternatively For a New Trial.

3. The Trial Court erred by not granting the defendant’s motion for
mistrial; the State, having failed to sustain the burden of proof beyond
a reasonable doubt, instead relied on prosecutor’s personal perspective,
aggressive advocacy, jury theatrics and use of prejudicial autopsy
photographs to present a case based on hypothetical speculation. The
prosecutor’s systematic statements as to his theories, which were not
supported by the evidence, violated the defendant’s constitutional rights
of due process and for a fair trial, guaranteed under the United States
Fifth Amendment and Fourteenth Amendment and Article I, §§ 2 and 16
of the Louisiana Constitution of 1974.

4. The Trial Judge erred by permitting a State’s witness, Herbert Zenon,
to testify after witness Zenon violated the rule of sequestration.

5. The Trial Judge erred by not replacing Juror #150, Joseph Floyd
Zeno, when presented with evidence of the appearance of impropriety
and bias on the part of Juror Zeno.

DISCUSSION

The first two assignments of error are related and will be discussed together.

The defendant argues the evidence adduced against him at trial was insufficient to

support his conviction. The test for insufficiency claims is well-settled and is

thoroughly discussed in State v. Kennerson, 96-1528, p.5 (La.App. 3 Cir. 5/7/97), 695

So.2d 1367, 1371:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after 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 proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559
(La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody,
393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the
respective credibility of the witnesses, and therefore, the appellate court
should not second guess the credibility determinations of the triers of

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fact beyond the sufficiency evaluations under the Jackson standard of
review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm
a conviction, however, the record must reflect that the state has satisfied
its burden of proving the elements of the crime beyond a reasonable
doubt.

Second degree murder is proscribed by La.R.S. 14:30.1, which states in

pertinent part:

A. Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great
bodily harm; or

(2)(a) When the offender is engaged in the perpetration or
attempted perpetration of . . . armed robbery . . . even though he has no
intent to kill or to inflict great bodily harm.

These are the provisions of the statute the court read to the jury, at both the

opening and the closing of trial, and argued by the state.

At trial, the state argued the killing was either a specific-intent murder or a

felony-murder, or both. Armed robbery is defined by La.R.S. 14:64(A):

Armed robbery is the taking of anything of value belonging to
another from the person of another or that is in the immediate control of
another, by use of force or intimidation, while armed with a dangerous
weapon.

Also, the state charged that the defendant acted as a principal to the murder.

The law of principals is governed by La.R.S. 14:24:

All persons concerned in the commission of a crime, whether
present or absent, and whether they directly commit the act constituting
the offense, aid and abet in its commission, or directly or indirectly
counsel or procure another to commit the crime, are principals.

The court instructed the jury it could find the defendant guilty of the lesser-

included offense of principal to manslaughter, based upon the underlying offense of

carjacking. The relevant portion of the manslaughter statute, La.R.S. 14:31, states:

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A. Manslaughter is:

....

(2) A homicide committed, without any intent to cause death or
great bodily harm.

(a) When the offender is engaged in the perpetration or attempted
perpetration of any felony not enumerated in Article 30 or 30.1, or of any
intentional misdemeanor directly affecting the person; . . .

Carjacking is defined by La.R.S. 14:64.2(A):

A. Carjacking is the intentional taking of a motor vehicle, as
defined in R.S. 32.1(40), belonging to another person, in the presence of
that person, or in the presence of a passenger, or any other person in
lawful possession of the motor vehicle, by the use of force or
intimidation.

In order to convict a defendant as a principal to specific-intent second degree

murder, the state must prove the defendant had specific intent to kill or to inflict great

bodily harm. State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947,

108 S.Ct. 337 (1987). Under the state’s alternate theory that Moore shot the victim

during an armed robbery, the state had to prove the defendant had the intent to

commit, or directly aid in the commission of, an armed robbery, and a killing resulted.

La.R.S. 14:30.1(A)(2)(a) and La.R.S. 14:24. It is well settled that intent may be

inferred from a defendant’s actions. State v. Recard, 97-754 (La.App. 3 Cir.

11/26/97), 704 So.2d 324.

The State’s first witness was Bill Ortego, an Evangeline Parish deputy at the

time of the offense, who responded to a report by a landowner that something was on

fire on the landowner’s property. Deputy Ortego found the victim’s burning car in a

remote area of Evangeline Parish with the victim’s body in the car. Deputy Ortego

described the location of the vehicle, the condition of the vehicle, and the condition

of the body.

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Detective John Demourelle of the Evangeline Parish Sheriff’s Office also

testified regarding the location and condition of the victim’s car and body. He

testified regarding the recovery of the vehicle identification number (VIN), his

contacts with Lafayette Parish law enforcement, his contact with the victim’s family,

and the initial identification of the body as being that of Earl Zenon. He further

testified as to the extreme remoteness of the area where the burning car was

discovered and his development of information that a man named Danny Smith was

familiar with this remote area.

Sergeant Kelly Gibson of the Lafayette Police Department testified on behalf

of the state. Sergeant Gibson met with officers who responded to the scene in

Evangeline Parish where the victim and his car were found. He took a statement from

Ronald Morton, an eyewitness to the shooting of the victim in Lafayette. He further

organized crime scene searches at the scene of the shooting in Lafayette Parish, and

the site where the body and car were found in Evangeline Parish. Gibson’s

investigation revealed that Vince Moore’s telephone had been used to page the victim

shortly before the shooting. His investigation further revealed that the defendant was

living at Moore’s residence at the time of the shooting. Gibson also took two

statements from the defendant, which will be discussed in greater detail below.

Ronald Morton, who testified on behalf of the state, was an eyewitness to the

shooting in the parking lot in Lafayette Parish. Mr. Morton was sitting in the parking

lot in his vehicle waiting for his brother-in-law who was at Eckerd’s Drugs. His

testimony was, in pertinent part, as follows:

A. Okay. It was December 7th of 19 -- I think 1997. I was at Eckerd’s
Drugs off Pont Des Mouton and Moss Street. I was parked there,
waiting for my brother-in-law at the Eckerd’s Drugs to get some
medicine; and while I was waiting for him in the car, I observed two (2)
young men walking to a certain car. And when they got there, the little

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guy that was in the car rolled the window down -- either rolled it down
or he had power windows, and one of the little guys that was talking to
him shot him, came up with a gun and -- he spoke to him about ten or
fifteen seconds, maybe less than that, and then started firing, shooting the
guy.

Subsequently, Morton testified about the shooting in greater detail:

A. One of them had their hand in their pocket, coat pocket. And the
other, I don*t believe he had his hand in his pocket. But they were
walking together, not saying a word to each other till they got by the car.
And then one of them went around to the passenger’s side, and the other
one stayed by the driver’s side. And the little guy rolled the window
down -- or, like I say, it could have been a power window, it wasn*t all
the way down, and they spoke for about five or ten seconds, and he shot
him five (5) times.

Q. And what, if anything, did the other person do?

A. Well, after the shooting, the person that was on the passenger’s
side -- they both got in the car at the same time after the shooting. After
the little guy shot the other guy, they both jumped into the car.

Q. Was there anything that was obstructing your vision, or did you
have a clear view of everything?

A. I had a clear view. There were no cars in front of me, and it was
a clear day, a clear evening. There was nothing.

Q. After the shooting occurred, did it appear that there was a violent
exchange of words between the two individuals?

A. No, sir. I don*t believe there was no words at all.

Q. Did you see anyone, maybe the person who you saw shoot the
gun, reach over the car to the other person who was on the other side and
make a demand of some sort?

A. No. No, I couldn’t say that because the windows were tinted. You
know, after he got in -- after the little guy got in the car on the
passenger’s side, I couldn’t see him at all after that. But the guy who did
the shooting, the window was still down; so it*s like he forced the guy
he shot over some kind of way to push him out of the way so he could
drive and take the car.

Q. And would it be fair for me to say that immediately after the
shooting, what you observed was the person on the passenger’s side just
jumped in the vehicle without hesitation?

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A. Right. Yes, sir.

Q. What then happened?

A. Then he had problems -- the driver or the shooter had problems
putting the car in gear some kind of way, because it jerked for about
maybe a couple of seconds, and then he got it into reverse and backed
out and went around to the back of the store, to go to the highway.

Q. That would be behind the little strip mall?

A. Right, behind the Eckerd’s Drugs. They have a passage, you
know, like a little street or something in back of the store where you
could pass and get to the highway.

Morton testified he saw a nearby truck pull out at the same time the defendant

and the shooter were “going to the back” in the victim’s car. The truck turned left

going to Moss Street, according to Morton, however Morton did not know where it

went subsequently because he followed the victim’s vehicle and called 911. When he

reached 911 he was told to pull over and he complied.

On cross-examination, Mr. Morton was questioned about the statement given

to police within two days of the shooting incident. He testified as follows:

Q. Now the other person with the shooter, did he appear to be angry
at any time?

A. Not to my recollection, no, sir.

Q. Were you focused on him at all, or were you focused on the
shooter?

A. Well, I was focused on both of them as they approached the car,
but after the shooting went on, I was focused mostly on the shooter.

Q. And you testified that as the two of them approached the car, one
had their hands in their pocket. Was that the shooter?

A. Yes.

Q. And they walked up to the car as if there was nothing unusual,
nothing bothering them?

A. Right, you know, like a Sunday walk.

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Q. They didn’t appear to be nervous at that time?

A. Not walking to the car.

Q. Now after the shots were fired, how did the shooter appear to you?

A. Enraged.

Q. How did the other person with him appear?

A. Well, he seemed nervous, very nervous.

Q. He hadn’t been nervous before, but he was nervous then; is that
correct?

A. Right. When they were going it was, like I said, a Sunday walk.
You know, both of them was calm until the shooting. And after the
shooting, the -- who are you asking about, the shooter or the other guy?

Q. The other guy.

A. Well, when he went around the car, when he approached around
the car, he looked a little bit nervous then.

Q. After the shooting did he appear to be in shock?

A. In a sense. You know, they both jumped in the car at the same
time. You know, it was like a rush.

Q. Do you recall giving the statement to the detective that we were
talking about, where you said he paused like he was in shock, and “he
was stunned, and then he jumped in the car?”

A. Most probably I did say that.

On redirect, Morton said, “If he was in shock, you know, I couldn’t really say

right off.”

Then, on re-cross, the following colloquy occurred:

BY MR. BRAZEE:

Q. Just a couple follow-up questions, Mr. Morton. You gave a
statement on December 9th of 1997, didn’t you?

A. It was -- I think it was a Monday. If it was a Monday, then I think
it was the 9th.

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Q. And that was two (2) days after the incident?

A. One (1) day after -- no, no, it was two (2) days, because yeah, I
went fishing Monday.

Q. And everything was pretty fresh in your mind at that time?

A. Oh, yeah.

Q. And we’re five years later now, aren’t we?

A. Yes, sir.

Q. And at that time you did tell the detectives or the detective that
was interviewing you that Mr. Cooper was like he was in shock, he was
stunned, and then he jumped in the car, didn’t you?

A. Yes, sir.

Contrary to the dissenting opinion, nowhere in his testimony does Morton testify that

the defendant’s reaction was one of “surprise.”

As previously noted, Sgt. Gibson took two statements from the defendant

regarding this incident. On April 7, 1998, the defendant came in voluntarily and gave

a statement. On April 8, 1998, the defendant’s mother called Sgt. Gibson and advised

him that the defendant was in jail and wanted to give another statement. Sgt. Gibson

picked the defendant up at the jail and he gave a second statement. Both statements

were recorded. The tapes of the interviews were played for the jurors who were also

provided a transcript of the tapes to follow.

In his first statement, the defendant stated that Vince Moore wanted some

marijuana, so the defendant paged the victim, who was a friend of his. Driven by

Danny Smith, they proceeded to the Winn-Dixie parking lot to meet the victim, but

when they got to the victim’s car, Moore immediately shot him. The defendant told

Sgt. Gibson he did not know Moore was carrying a gun and that he ran back to

Smith’s truck, which he described as being “dark, dark blue, it’s almost black” and left

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with him. When asked his opinion of why Moore shot the victim, the defendant stated

Moore wanted the “big bag” of “weed” the victim had in his car. The defendant stated

Moore told him this at some point after the shooting. He stated Moore also told him

that he had burned the victim’s car and other evidence.

In his second statement, given the day after the first statement, the defendant

presented a different version. The defendant stated he and Moore were both at the

driver’s side of the victim’s car, then, immediately after shooting the victim, Moore

shouted for him to get into the car. According to the defendant, he got in the back

seat, and they drove to Moore’s residence. Later in the statement, the defendant said

he got into the car on the “passenger side.” This discrepancy was not explained.

Once at his residence, Moore handed the bag of marijuana to his brother, Josh.

According to the defendant, Josh was very upset to see the victim’s dead body. The

defendant also stated Moore retrieved a blanket from the residence. Smith arrived at

some point, and the defendant got into his truck. Smith then led Moore to a field in

Evangeline Parish. Once at the field, Moore drove to the back of it. The defendant

stated that as he and Smith pulled up behind him, Moore jumped out of the car which

was already on fire. The defendant was not sure how the fire started, but speculated

Moore might have lit the blanket he had retrieved from the house, or might have lit

one of the car’s seats. Moore got into Smith’s truck and they drove back to Moore’s

residence. According to the defendant, Moore gave half the bag of “weed” to Smith.

He kept the other half. The defendant stated he had smoked some of it.

Forensic pathologist Dr. Emil Laga testified regarding the cause of death. Laga

testified that he performed the autopsy on December 8, 1997. Laga found two bullets

in the victim’s skull which he described as “killing bullets,” because of their path and

location. He testified either bullet would ultimately result in the victim’s death. Due

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to the paths of the bullets, Laga testified the victim must have been looking to the right

when they were fired. Laga found a non-fatal bullet that had entered the torso. Laga

further testified that the evidence indicated the victim was still alive when the car was

set on fire. Laga testified that the victim’s blood contained traces of carbon

monoxide, cyanide, and isobutyl alcohol. He explained the carbon monoxide and

cyanide were both by-products of material burning in the car. The isobutyl alcohol

indicated a solvent had been used as an accelerate for the fire. He further testified that

the presence of these three substances in the blood stream indicated the victim inhaled

them during the fire. On cross-examination, Laga specifically stated the bullet

wounds would have killed the victim, not immediately, but over a period of time.

When asked if the wounds would have caused him to “appear[] to have been dead,”

Dr. Laga responded that the victim would have been breathing and noted “breathing

is one of the signs that you are still alive.”

Herbert Zenon, Jr., the victim’s brother, testified for the state. He established

that the defendant was acquainted with the victim and that he had seen them together

in the past.

The state’s final witness was Vincent Moore, the shooter, who had previously

pled guilty to the offense and had been sentenced. Moore acknowledged being a

member of a gang known as the “Baby Blue Crips.” He acknowledged being the

defendant’s best friend and that the defendant knew the victim. He denied knowing

the victim himself. He further denied any knowledge of or participation in the crime.

Moore was hostile to the state and verbally combative throughout his testimony.

As previously noted, when the issue of the sufficiency of the evidence is raised

on appeal, the critical inquiry of the reviewing court is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could

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have found the essential elements of the crime proven beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). After reviewing the

evidence presented at trial under the Jackson standard of review we find there is

sufficient evidence to establish the essential elements of the crime of principal to

second degree murder.

The jury was presented evidence that the defendant set up the meeting between

himself, Vince Moore, and the victim. The defendant arrived at the Winn-Dixie

parking lot with Vince Moore, the shooter, and they approached the victim together.

Evidence was presented that when they approached the vehicle the shooter went to the

driver’s side and the defendant walked around the back of the car to the passenger’s

side. The testimony of the eyewitness to the shooting was that the two appeared very

calm as they approached the vehicle, the defendant looking a bit nervous when he

“approached around the car.” The shooter was at the car window, at the most, for

fifteen seconds when he pulled the gun from his pocket and shot the victim five times.

The evidence showed he shot the victim twice in the back of the head, suggesting the

victim’s head was turned toward the defendant when he was shot. The eyewitness

testified that when the shooting occurred the defendant appeared stunned, but further

testified that the shooter jumped into the driver’s seat and the defendant jumped into

the back passenger seat at the same time, without hesitation. He heard no words

spoken between them. According to the defendant’s statement when he left the

parking lot, he and the shooter, Vince Moore, took the victim’s car back to Moore’s

house. The medical testimony established the victim was still alive at that time. The

jury heard evidence that the defendant and the shooter were met at Moore’s house by

Danny Smith, the same individual who had taken them to the parking lot where the

shooting occurred. The defendant got into the truck with Smith and accompanied him

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as he led Moore, still driving the victim’s car, with the victim still alive, to a remote

area of Evangeline Parish where the car was set on fire with the victim, who was still

alive, inside it. The jury heard evidence that the marijuana taken from the victim was

divided between Moore and Smith, and that the defendant also shared in the use of the

marijuana.

After examining the evidence presented, in a light most favorable to the

prosecution, we conclude a rational trier of fact could have found the elements of

principal to second degree murder proven beyond a reasonable doubt.

The appellant argues that the evidence is insufficient to prove the defendant had

the requisite intent to commit the offense as the state failed to establish any specific

intent on the part of the defendant to kill or inflict great bodily harm on the person of

Earl Zenon. We find no merit in this argument.

Specific intent is a state of mind and can be proved directly as a fact or may be

inferred from the circumstances of the transaction and the actions of the defendant.

State v. Turner, 626 So.2d 890 (La.App. 3 Cir. 1993), writ denied, 93-3182 (La.

4/4/94), 635 So.2d 1122. Considering the evidence as a whole as set forth above, we

find a rational trier of fact could have found the state proved the defendant had a

specific intent to kill Earl Zenon or inflict great bodily harm upon him. The defendant

set up the meeting. He accompanied the shooter to the scene. When the shooting

occurred, he neither tried to stop it nor even said anything to the shooter which would

indicate he was surprised. Instead, he immediately jumped into the vehicle with the

shooter, no words having passed between them, and went back to the shooter’s house

with him in the victim’s car with the victim still alive. He then accompanied the

shooter, and the same man who took them to the scene of the shooting, to Evangeline

Parish to dispose of the car and the victim. Subsequent to the disposal of the car and

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victim, the defendant accompanied the shooter back to the shooter’s house where they

smoked marijuana that had been taken from the victim. The argument that the state

failed to sufficiently prove the element of intent is without merit.

Further, we find the state produced sufficient evidence under the Jackson

standard of review to establish their alternate theory, that the defendant was a

principal to the offense of second degree murder, by proving the defendant was a

participant in the armed robbery of Earl Zenon and that Mr. Zenon was killed in the

course of that armed robbery.

Having determined there was sufficient evidence to affirm the verdict of the

jury, we find no valid ground for the trial court to have granted the defendant’s

Motion for Post Verdict Judgment of Acquittal and/or Alternatively For a New Trial.

We find no error in the denial of these motions.

In his third assignment of error the defendant argues the trial court should have

granted mis motion for a mistrial because of improper statements by the prosecutor.

Defense counsel moved for a mistrial during closing arguments, arguing the state

impermissibly commented on the defendant’s failure to testify and made an improper

reference to a possible plea bargain. After hearing argument on the motion, the trial

court denied the motion.

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

Upon motion of a defendant, a mistrial shall be ordered, and in a
jury case the jury dismissed, when prejudicial conduct in or outside the
courtroom makes it impossible for the defendant to obtain a fair trial, or
when authorized by Article 770 or 771.

Louisiana Code of Criminal Procedure Article 770 provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a
remark or comment, made within the hearing of the jury by a judge,
district attorney, or a court official, during the trial or in argument, refers
directly or indirectly to:

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....

(3) The failure of the defendant to testify in his own defense.

We have reviewed the closing argument by the state. We find any references

made by the state as to what the defendant did or did not say were all references to the

statements given to the Lafayette Police which were admitted at trial. The state made

no reference to the fact the defendant did not testify on his own behalf. The trial court

did not err by denying a mistrial on this ground.

The defendant further objected to remarks made during rebuttal argument that

referenced a possible plea bargain that had been offered to the defendant. During

closing arguments defense counsel made the following statement.

And I almost couldn’t believe it when I heard a few minutes ago, when
Mr. Johnson said no, he wouldn’t deal with a homicidal killer. But they
did, didn’t they? They cut a deal with him. They allowed him to plead
guilty to a lesser offense of manslaughter in return for a fixed sentence.
So then guess what? Vince Moore, this homicidal maniac, described in
exactly those terms by the D.A., will someday be eligible for parole, and
yet the...

MR. JOHNSON: Your Honor, may we approach the bench?
[THERE WAS A DISCUSSION AT THE BENCH BETWEEN THE
COURT AND ALL COUNSEL.]

BY MR. BRAZEE: [Continuing] And yet, the way Scott is charged, if
you find him guilty of being a principal to second degree murder, it’s life
imprisonment with no eligibility for parole, ever. Is there any justice in
that?

On rebuttal argument, the prosecutor discussed the plea agreement with Vince

Moore and then stated as follows:

So does that mean Scott did not get an equal opportunity? Scott made
the choice to let you make the choice of whether or not he was involved
in second degree murder. We didn’t have to be here today. Scott had an
alternative; Scott chose not to take it. And in not taking it, Scott’s
lawyers want you to set it right for Scott. That’s not your job...

Later in the argument he argued:

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Ladies and gentlemen, they want you to throw your common sense and
reason out the window. They want you to have sympathy for Scott
because Scott helped me to convict Vince Moore, and in having
sympathy for him, mandate that you give him a lesser sentence than
Vince Moore. And maybe that’s right, but that’s something you have to
decide. But Scott had that opportunity. Scott could have given himself
less. Scott didn’t have to put this case in your lap. And because Scott
chose to do that, you didn’t have to feel sorry for him...”

A contemporaneous motion for a mistrial was made by defense counsel. After

hearing argument the trial court denied the motion.

Louisiana Code of Criminal Procedure Article 774 provides:

The argument shall be confined to evidence admitted, to the lack of
evidence, to conclusions of fact that the state or defendant may draw
therefrom, and to the law applicable to the case.

The argument shall not appeal to prejudice.

The state’s rebuttal shall be confined to answering the argument of the
defendant.

The state argued to the trial court that the defendant opened the door for

argument pertaining to a possible plea agreement by suggesting in closing argument

that Vince Moore was given an opportunity to plead to a lesser offense while the

defendant was not. The state argued it had the right to respond to this argument. We

agree. On rebuttal, the state had the right to answer the defendant’s argument. State

v. Castille, 590 So.2d 755 (La.App 3 Cir.), writ denied, 597 So.2d 1025 (La.1992);

State v. Smith, 445 So.2d 521 (La.App 3 Cir.), writ denied, 449 So.2d 1346 (La.1984).

Even if the comment by the prosecutor was considered improper rebuttal, the

court must be thoroughly convinced that the remarks influenced the jury and

contributed to the verdict before a case will be reversed on the grounds of improper

argument. State v. Barrow, 410 So.2d 1070 (La.), cert. denied, 459 U.S. 852, 103

S.Ct. 115 (1982); State v. Jarman, 445 So. 2d 1184 (La.1984). The trial court, after

hearing argument by counsel, declined to grant the mistrial. After reviewing the

16

record as a whole, and the arguments of counsel, we are not convinced that the

prosecutor’s remarks, made in response to defense counsel’s arguments, influenced

the jury or contributed to the verdict. We find no error in the trial court’s denial of the

motion for a mistrial. This assignment of error lacks merit.

In the defendant’s fourth assignment of error, the appellant argues that the trial

judge erred by allowing Herbert Zenon to testify after he violated the rule of

sequestration. During the course of the trial, the trial court brought Mr. Zenon into

the court room and questioned him on the record as to whether he had violated the rule

of sequestration. The trial court established that he had not discussed his testimony

or the facts of the case with anyone. The trial court admonished Mr. Zenon not to

discuss anything about the case with anyone. The trial court clearly acted properly

and within its discretion by admonishing the witness. There was no objection to the

court’s actions by defense counsel. Mr. Zenon was later called as a witness. There

was no request by defense counsel at anytime that his testimony be excluded because

of a violation of the sequestration order. The defendant did object to certain questions

posed to Mr. Zenon on the basis that his response would necessarily be hearsay. That

objection was sustained by the court. The objection had nothing to do with whether

Mr. Zenon should have been allowed to testify. No such objection was ever made.

This assignment of error lacks merit.

In his final assignment of error, the defendant argues the trial judge erred by not

replacing Juror #150, Joseph Floyd Zeno, when presented with evidence of the

appearance of impropriety and bias on his part. It is clear from the record that the

court was presented no evidence of any bias on the part of Mr. Zeno. The court was

presented with an unsubstantiated rumor that Mr. Zeno might somehow be related to

the victim. The source of the rumor was never made clear. The court properly

17

questioned Mr. Zeno, established the rumor was untrue, and that there was no bias or

prejudice on Mr. Zeno’s part in any regard. This assignment of error lacks merit.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors

patent on the face of the record. After reviewing the record, we find two.

The language of La.Code Crim.P. art. 873 requires a delay of at least twenty-

four hours between the denial of a motion for new trial or a motion in arrest of

judgment and sentencing. Court minutes indicate the defendant’s Motion for Post

Verdict Judgment of Acquittal and Alternatively, for a New Trial was denied just prior

to his sentencing. There is no indication in the minutes that the defendant waived the

sentencing delay, but the sentencing transcript is not contained in the record.

However, any error would be harmless as the defendant received a mandatory life

sentence. See State v. Porter, 99-1722 (La.App. 3 Cir. 5/3/00), 761 So.2d 115; State

v. Williams, 617 So.2d 557 (La.App. 3 Cir.), writ denied, 623 So.2d 1331 (La.1993).

Second, the defendant was not informed of the two-year time limit for filing

post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court

should be directed to inform the defendant of the provisions of Article 930.8 by

sending appropriate written notice to the defendant within ten days of the rendition of

this opinion and to file written proof that the defendant received the notice in the

record of the proceedings. See State v. Fontenot, 616 So.2d 1353 (La.App. 3 Cir.),

writ denied, 623 So.2d 1334 (La.1993); State v. Courtney, 99-1700 (La.App. 3 Cir.

5/3/00), 761 So.2d 112.

DECREE

The defendant’s conviction is affirmed. The case is remanded to the trial court

18

solely for the purpose of instructing the trial court to comply with La.Code Crim.P.

art. 930.8.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

19

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-161

STATE OF LOUISIANA

VERSUS

SCOTT ALLEN COOPER

THIBODEAUX, J., dissenting.

This case at best is one of circumstantial evidence. “When circumstantial

evidence is used to prove the commission of the offense, La.Rev.Stat. 15:438 requires

that ‘assuming every fact to be proved that the evidence tends to prove, in order to

convict, it must exclude every reasonable hypothesis of innocence.’” State v.

Bridgewater, 00-1529, p. 2 (La. 1/15/02), 823 So.2d 877, 909-910 (on rehearing),

cert. denied, ___ U.S. ___, 123 S.Ct. 1266 (2003). The scenario demonstrated by the

State’s evidence falls short of proving beyond a reasonable doubt either of the State’s

theories: (1) that Defendant specifically intended to kill the victim, or (2) that

Defendant intended to participate in, aid, or abet an armed robbery, during which the

victim was killed. Similarly, the evidence does not prove Defendant intended to

participate in a carjacking, during which the victim was killed.

The facts advanced by the State demonstrate that Defendant could well

have intended to consummate an illegal drug transaction, with no intent to rob or kill

the victim. The evidence adduced by the State did not exclude such a hypothesis.

Significantly, the lone eyewitness testified Defendant appeared to be shocked when

the shooting occurred, while the shooter appeared to be enraged.

In Bridgewater, a jury convicted defendant of first degree murder, and

he received a death sentence. On review, the supreme court quickly disposed of the

theory that the defendant actually shot any of the victims. Proceeding to the theory

that he was a principal to specific-intent felony-murder, the court observed:

As a general rule, “liability [as a principal] will not
flow merely from a failure to intervene;” however, “silence
in the face of a friend’s crime will sometimes suffice when
the immediate proximity of the bystander is such that he
could be expected to voice some opposition or surprise if
he were not a party to the crime.” 2 Wayne R. LaFave and
Austin W. Scott, Jr.,Substantive Criminal Law §
6.7(a)(1986)(Emphasis supplied). Defendant’s statement
that he was in the Beaugh’s garage when the fatal shots
were fired places him outside the “immediate proximity” of
the double homicide and inside the general rule precluding
a finding of liability as a principal based solely on a passive
failure to intervene in a friend’s criminal acts.

Our finding that the evidence is insufficient to
establish defendant’s liability as a principal is buttressed by
the state’s failure to present any evidence establishing
defendant’s specific intent to kill. No one testified that
defendant had anything more than a broken BB gun;
indeed, as noted, it was defendant who conceded that much.
Ms. Menard, the neighbor, observed no weapons on either
of the suspicious pair. This lack of evidence that defendant
even was armed with a functional weapon reduces the
state’s circumstantial case to a request that the jury engage
in speculation based merely upon “guilt by association.”
Pierre, 93-0893 at p. 6, 631 So.2d at 429.

Accordingly, we reject the state’s contention that the
jury reasonably could have found defendant liable as a
principal based merely on his failure to prevent Jacobs from
committing the double homicide. We hold that the state
failed to exclude a reasonable hypothesis of innocence--that
defendant was merely present--and, for that reason, we
reverse defendant’s conviction of first degree murder and
death sentence.

Id. at 891.

2

In State v. Pierre, 93-0893 (La. 2/3/94), 631 So.2d 427, the defendant

was charged with second degree murder in connection with the rape of a thirteen-year-

old victim. The jury returned a lesser verdict of manslaughter.

In reversing the jury’s verdict, the supreme court stated:

The trial court properly instructed the jury according
to these principles and jurors labored long and hard over
the course of two days to apply them. In the end, however,
rational jurors could only speculate about the defendant’s
role in Alexander’s death. To the extent that the defendant
could directly implicate Jones in the rape and murder of the
victim, Jones’s advice to him in the Avoyelles Parish Prison
not to talk with Thomasie may have signalled nothing more
than an attempt to influence and silence an eyewitness to
the crime. The defendant’s admissions to Thomasie placed
him on the scene, and the details he provided about the rape
of Alexander and the bludgeons used to kill him spoke for
the reliability of those statements. Nevertheless, only
Thomasie’s notes made on January 7, 1992, provided any
evidence that the defendant had been inside the abandoned
house when the victim was raped. Thomasie’s trial
testimony contradicted those notes, and all of the evidence
available to the jury placed the defendant in the van at the
time the victim was brought outside wrapped in what
became a shroud.

Jurors had no direct or circumstantial evidence that
the defendant counseled or procured the others to kill
Alexander, or that he participated in the actual murder.
Thomasie’s testimony made clear that the defendant used
the all-inclusive “they” even when referring in context to
Courtney and Jones. Jurors knew from the extent of his
self-contradiction and the testimony of David Antoine and
Pierre Taylor that Jones lied in his trial testimony when he
denied any involvement in the murder. Even if jurors
disobeyed the court’s cautionary instructions about the
proper use of Jones’s prior inconsistent statements,
however, they could find no reliable answers in those
statements about the degree of the defendant’s involvement,
if any. Jones testified at Hill’s trial that the defendant
opened the back door of his van when Hill and Courtney
emerged from the abandoned house with the victim’s body.
In his statement of August 31, 1991, which broke the case,
however, Jones indicated that Hill was the one who opened
the rear door and that the defendant had remained in the
front seat of the van, staring fixedly out of the windshield
while the victim was then beaten to death on old Highway
1.

3

The due process standard of review in Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979), preserves the role of the jury as the factfinder in the
case but it does not allow jurors “‘to speculate if the
evidence is such that reasonable jurors must have a
reasonable doubt.’” State v. Mussall, 523 So.2d 1305, 1311
(La.1988) [quoting 2 C. Wright, Federal Practice &
Procedure, Criminal 2d § 467 (2d ed. 1982) ]; see also State
v. Lubrano, 563 So.2d 847 (La.1990). A jury’s finding that
the accused aided and abetted in the commission of the
crime therefore “cannot be ‘mere speculation based upon
guilt by association.’” State v. Schwander, supra, 345
So.2d at 1175 [quoting State v. Williams, 310 So.2d 513,
515 (La.1975)]. The evidence at trial did not prove beyond
a reasonable doubt that the defendant specifically intended
to kill the victim so as to make him a principal in the crime.

Id. at 428-29.

State v. Peters, 553 So.2d 1026 (La.App. 4 Cir. 1989), a first degree

robbery case, while superficially similar to this case, is instructive. Language in the

court’s Jackson review upheld the defendant’s conviction as a principal because he

had been seen in the gunman’s company before the crime, approached the scene with

the gunman and did not intervene, got into the victims’ truck with the gunman, and

was still in the truck with the gunman when police apprehended them approximately

an hour after the offense. However, the case is distinguishable because the defendant

acted as a lookout and distracted one of the victims. Id. at 1027-28. In the present

case, the State theorized Defendant distracted the victim, as the two fatal bullets

entered near the back of the victim’s skull. However, the State offered no proof

Defendant acted to make the victim turn his head.

Also, State v. Johnson, 440 So.2d 197 (La.App. 3 Cir. 1983), writ denied,

444 So.2d 1240 (La.1984), is worth noting. This court reviewed the defendant’s

conviction as a principal to armed robbery of a curb market. Defendant did not enter

the store during the robbery, but he entered it with the two active participants in the

robbery, three or four times before the offense. A witness saw him with the two

4

accomplices, lurking behind some bushes near the store, less than thirty minutes

before the robbery. Shortly after the robbery, he retrieved some of the accomplices’

clothing from the bushes and was seen running near the store with something in his

arms. He took the clothing to one of the accomplices’ homes, then drove the other

men to another location. Id. at 198-99, 201. Johnson is distinguishable from the

present case because of the evidence regarding the defendant’s activity with the active

participants before the robbery.

In surveying other jurisprudence related to the law of principals, I note

that surprise, or the lack thereof, is sometimes mentioned as a factor in determining

whether a defendant is a principal. See, e.g., Bridgewater, 823 So.2d at 891. As

already noted, the lone eyewitness in this case stated Defendant appeared surprised

by Moore’s shooting the victim. In contrast, the shooter, Moore, appeared to be

enraged.

More generally, courts reviewing principals cases look to evidence of

actions preceding a given offense, during the offense, and after the offense. Often, the

state is able to show a defendant helped plan the offense at issue, or knew of the plan

before the offense, and elected to participate. See, e.g., Peters, 553 So.2d 1026, and

Johnson, 440 So.2d 197. In situations of second degree murder, pursuant to armed

robbery, the state can often at least show that a defendant accompanied the eventual

killer, while knowing the other person was armed.

In the present case, the State proved little regarding events before the

shooting. Although the State showed Defendant paged the victim shortly before the

offense, the Defendant’s statement explained that he contacted the victim to buy

drugs. The State also showed the Defendant accompanied the shooter to the scene of

the crime although no evidence was introduced to show his knowledge of the events

about to unfold or even knowledge that Moore was armed.
5

Regarding what happened during the offense, the State proved Defendant

got into the car and left with Moore immediately after the shooting. However, as

already noted, the same eyewitness who provided the above information also

acknowledged that Defendant looked surprised when Moore shot the victim. At best,

what the State presented did not advance its case.

What the State proved regarding events after the shooting was more

detailed, although still unclear on some points. After the offense, Defendant shared

in the proceeds, as he acknowledged smoking some of the marijuana Moore took from

the victim. Sharing in contraband can be an indication that a defendant acted as a

principal. State v. LeBlanc, 94-0282 (La. 6/3/94), 637 So.2d 489. However, in

LeBlanc, the prosecution also presented evidence regarding the various defendants’

actions before and during the offense at issue. In LeBlanc, the defendant not only

shared in the proceeds, but also was present in the getaway car, and later bragged

about his participation. Thus, the court upheld his armed robbery conviction and

sentence. However, the court set aside his attempted murder conviction as the

evidence did not prove specific intent. The short opinion mentioned the murder was

“apparently spontaneous,” but did not elaborate. Id. at 489-90.

Similarly, the cases of State v. [C.] Williams, 01-1650 (La. 11/10/02),

831 So.2d 835; State v. Logan, 36,042 (La.App. 2 Cir. 6/14/02), 822 So.2d 657; State

v. Magee, 00-2816 (La.App. 1 Cir. 10/10/01), 809 So.2d 452; State v. [M.] Williams,

34,359 (La.App. 2 Cir. 5/9/01), 786 So.2d 203, writ denied, 01-2275 (La. 5/10/02),

815 So.2d 835; State ex rel. K.G., 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716;

State v. [E.] Williams, 33-201 (La.App. 2 Cir. 5/15/00), 758 So.2d 1003, writ denied,

00-1784 (La. 4/27/01), 791 So.2d 111; State v. Shaw, 27,892 (La.App. 2 Cir. 4/3/96),

672 So.2d 237 and State v. Stokes, 26,003 (La.App. 2 Cir. 6/22/94), 639 So.2d 395,

writ denied, 94-1880 (La. 11/11/94), 644 So.2d 387, all considered defendants’ act of
6

sharing in proceeds or contraband from an offense as a factor in the La.R.S. 14:24

analysis. However, as in LeBlanc, each of these cases included evidence of the

various defendants’ involvement before and/or during the offenses at issue.

As already noted, the present case lacks evidence Defendant knew

beforehand that a murder, robbery, or carjacking was to take place. During the

offense, he showed signs of surprise; immediately after the shooting, he got into the

victim’s car and left with the shooter. This is the sum of the evidence regarding

Defendant’s actions before and during the offense. Therefore, it is easily

distinguishable from the cases just cited.

Some jurisprudence also considers such post-offense factors as a

defendant’s failure to aid the victim, or to call the police. See, e.g., State v. Hayes, 01-

736 (La.App. 5 Cir. 12/26/01), 806 So.2d 816, writ denied, 02-0263 (La. 10/25/02),

827 So.2d 1169; State v. Saylor, 01-451 (La.App. 5 Cir. 11/27/01), 802 So.2d 937,

writ denied, 01-3406 (La. 10/04/02), 826 So.2d 1122; State v. Cazenave, 00-183

(La.App. 5 Cir. 10/31/00), 772 So.2d 854, writ denied, 00-3297 (La. 10/26/01), 799

So.2d 1151. However, these cases are distinguishable because, in each of them, there

was direct evidence the defendant acted as a getaway driver. Thus, unlike any of the

cases cited thus far, the evidence in this case focused upon Defendant’s actions after

the offense.

As already noted, the evidence in this case supports a logical inference

that Defendant intentionally aided in the hiding of the victim’s car and body. Since

Laga’s testimony indicated the victim was still alive when the fire began, the question

arises whether Defendant could be guilty of felony-murder pursuant to the victim’s

burning death. Neither of Defendant’s statements demonstrated that he knew Moore

would attempt to destroy the car. The circumstances indicate Defendant knew Moore

7

was going to conceal the evidence, but not that Moore was going to burn it. There is

no evidence Defendant manifested an intent to kill.

As to Moore, the shooting and subsequent burning formed one

continuous transaction; the facts indicate he intentionally shot the victim, then made

an effort to destroy the evidence. See, e.g. State v. Goodley, 01-0077 (La. 6/21/02),

820 So.2d 478. However, as to Defendant, it would not be one continuous offense

because he was not proven to be a principal to the initial offense, i.e., the shooting and

armed robbery. Defendant did not form criminal intent until after the

shooting/robbery. Thus, the most he would be guilty of would be principal to a killing

while he was acting as an accessory after the fact; in other words a felony-

manslaughter. However, this was not the crime charged, nor argued to the jury.

Further, accessory after the fact would not have been available as a

responsive verdict. La.Code Crim.P. art. 814 does not list accessory as a responsive

verdict to murder or manslaughter. Accessory is defined by La.R.S. 14:25, which

states in pertinent part:

An accessory after the fact is any person who, after
the commission of a felony, shall harbor, conceal, or aid the
offender, knowing or having reasonable ground to believe
that he has committed the felony, and with the intent that he
may avoid or escape from arrest, trial, conviction, or
punishment.

Considering the definition of a principal, the elements of an accessory

charge do not present a lesser-included grade of a charge as a principal. Accessory

clearly does not arise until after a felony has been committed; thus, it is an entirely

separate offense, rather than a lesser grade of the offense. For this reason, a reduced

verdict of accessory after the fact would not have been appropriate below, and is not

available on appeal. The Louisiana Supreme Court has observed:

Defendant was charged as a principal to the crime of
second degree murder committed during an armed robbery.
8

The only responsive verdicts to second degree murder are
guilty, guilty of manslaughter and not guilty. Accessory
after the fact is a separate and distinct crime. While the
definition of principal is relevant to the crime charged, that
of accessory after the fact is not.

State v. Stacy, 96-0221, p. 5 (La. 10/15/96), 680 So.2d 1175, 1178.

Thus, the victim’s death in the burning car would not form the basis for

a conviction in this case.

For the reasons discussed, the State failed to prove the elements of the

crime beyond a reasonable doubt. Thus, the conviction and sentence should be

vacated and set aside.

For the foregoing reasons, I dissent.

9