State of Louisiana v. Jason Lee Short

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1451

STATE OF LOUISIANA

VERSUS

JASON LEE SHORT

**********
APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, DOCKET NO. 05-0736
HONORABLE LEO BOOTHE, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders and Michael G. Sullivan,
Judges.

AFFIRMED.

J. Rodney Messina
256 East Boulevard
Baton Rouge, LA 70802
(225) 343-9422
COUNSEL FOR DEFENDANT/APPELLANT:
Jason Lee Short

Bradley R. Burget, Assistant District Attorney
Seventh Judicial District
4001 Carter Street, Suite 9
Vidalia, LA 71373
(318) 336-5526
COUNSEL FOR APPELLEE:
State of Louisiana

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of April 5, 2005, Jason Lee Short and Joseph

Loncar allegedly left Short’s residence to rob a crack dealer. En route, they spotted

the victim, Richard Cupstid, walking down Roundtree Road in Concordia Parish.

Cupstid was struck by Short’s vehicle. He was then beaten and robbed. Short and

Loncar then got back in the vehicle and exited Roundtree Road onto U.S. Highway

84/65. Within minutes, they re-entered Roundtree Road and headed back to Short’s

residence, where they again saw the victim. Cupstid was then shot in the head at

close range and left on the side of the roadway. Cupstid died as a result of his

injuries.

On June 1, 2005, the State filed an indictment charging the Defendant, Jason

Lee Short, with second degree murder, in violation of La.R.S. 14:30.1. A jury trial

was held and Defendant was found guilty of second degree murder. Defendant was

subsequently sentenced to life imprisonment without benefit of probation, parole, or

suspension of sentence.

Defendant is now before the court asserting three assignments of error.

Defendant contends the trial court erred in denying his objection to the hearsay

statements made by an unavailable co-perpetrator, the trial court erred in denying his

motion for mistrial, and the trial court erred in allowing Investigator Jimmy Darden

to testify as an expert without being tendered as such.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant contends the trial court erred in

denying his objection to the hearsay statements made by the unavailable co-

perpetrator Joseph Loncar. These statements were introduced into evidence via the

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testimony of Angela Mapp and Keysha Freeman, which Defendant argues is in direct

violation of his Sixth Amendment right.

On May 22, 2006, Defendant filed a Motion in Limine, seeking to prohibit the

State from eliciting testimony from several named witnesses regarding statements

Joseph Loncar made to them about the events on the night of April 5, 2005. At a

hearing, the trial court granted the motion “to the extent that any direct criminal

activity will be excluded.” The trial court later clarified that if, during their

testimony, witnesses testified regarding what Loncar said the Defendant did, that

testimony would not be admissible.

At trial, Loncar exercised his Fifth Amendment privilege against self-

incrimination and was declared unavailable to testify. The State later called Keysha

Freeman and Angela Mapp to testify. Freeman was questioned as follows:

Q. Did Mr. Loncar make any statements to you?

A. He told me - -

Q. Just, did he make some statements to you?

A. Yes, sir.

Q. Did he indicate to you that he had robbed somebody?

A. Yes, sir.

Q. Did he indicate to you that he robbed somebody with a gun?

A. I’m not sure if he robbed him with a gun, but I remember hearing
him saying something about pistol whipping.

Q. Did he pistol whip somebody?

A. He said that a pistol whipping took place.

Q. Now, did he tell you how this occurred whether he was in a
vehicle or not?

A. Yes, sir.

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Q. Did he tell you whether he was the driver of the vehicle or
passenger of the vehicle?

A. He said he was on the passenger side.

Q. Did he tell you that someone may have been run over?

A. Yes, sir.

Q. Did he tell you whether or not this occurred before or after the
robbery?

....

Q. Did Mr. Loncar indicate whether or not the running over of
somebody occurred prior to the robbery or after the robbery?

A. I believe it was after.

Q. After?

A. Yes, sir.

Q. According to what Mr. Loncar told you?

A. Yes, sir.

Q. Did Mr. Loncar tell you whether or not he shot anyone?

A. No, sir.

Q. He didn’t tell you anything or he told you he did not shoot
someone?

A. He told me he did not shoot anyone.

Q. The only information you have is what Mr. Loncar told you?

A. Yes, sir.

Angela Mapp was then questioned as follows:

Q. Did Mr. Loncar eventually tell you why he wanted you to come
to Vidalia and pick him up?

A. Yes, sir, he did.

Q. Did he tell you whether or not he was involved in a robbery?

A. Yes, he did.

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Q. Did he tell you that he robbed a person?

....

Q. Did he indicate to you whether or not he used a gun in the crime
that he committed of robbery?

A. Yes, sir, he did.

Q. Did he tell you whether or not he beat the person that he robbed?

A. Yes, sir, he did.

Q. Did he tell you that there was a vehicle used in this crime?

A. Yes, sir.

Q. Did he tell you whether or not he was the driver or the passenger
of this vehicle.

A. He said he was in the passenger’s side.

Q. Did he tell you whether or not somebody was shot?

A. Yes, sir, he did.

Q. Did he indicate whether or not he shot that person?

A. He said he did not shoot this person.

Q. Did he indicate whether or not the robbery and the beating that he
inflicted on this person occurred before or after this person was run
over?

A. He said before.

Q. He said a robbery occurred?

A. A robbery occurred -- well, a beating, a robbery and then the boy got run
over.

Q. And the shooting occurred after that?

A. Yes, sir.

Defendant asserts for any statement Loncar made to be admissible at trial, the

statement must qualify as an exception to the hearsay rule set out in La.Code Evid.

art. 804(B). Defendant argues none of the exceptions in Article 804(B) were met.

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Defendant additionally asserts the statements made by Loncar were not statements

against interest, as alleged by the State, because they were statements against the

interests of the Defendant and not those of Loncar. The Defendant then asserts the

statements made by Loncar were testimonial in nature; thus, falling under the purview

of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).

Louisiana Code of Evidence Article 804 provides, in pertinent part, as follows:

B. Hearsay exceptions. The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:

....

(3) Statement against interest. A statement which was at the time
of its making so far contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject him to civil or criminal liability, or
to render invalid a claim by him against another, that a reasonable man
in his position would not have made the statement unless he believed it
to be true. A statement tending to expose the declarant to criminal
liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the
statement.

In State v. Burns, 32,904, pp. 8-9 (La.App. 2 Cir. 2/1/00), 750 So.2d 505, 511,

the second circuit discussed statements against interest as follows:

The Louisiana Supreme Court has recognized an exception to the
hearsay rule for statements made against the declarant’s own penal
interest. State v. Gilmore, 332 So.2d 789 (La.1976). Third-party
testimony concerning such statements is allowed when the declarant
himself is unavailable to testify. State v. Hudson, 361 So.2d 858
(La.1978). In order for such statements to be admissible, however, there
must be indications that the statements are truly reliable. State v.
Rushing, 464 So.2d 268 (La.1985), cert. denied, 476 U.S. 1153, 106
S.Ct. 2258, 90 L.Ed.2d 703 (1986). In Rushing, the court stated that the
assumption is that a person would not normally admit to the commission
of a crime if it were not true, but unless the statement is truly against the
declarant’s penal interest, its reliability is suspect.

In State v. Lucky, 96-1687 (La. 4/13/99), 750 So.2d 801, the Louisiana

Supreme Court stated:

Moreover, the hearsay exception for declarations against
penal interest “does not allow admission of

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non-self-inculpatory statements by accomplices, even if
they are made within a broader narrative that is generally
self-inculpatory.” Williamson v. United States, 512 U.S.
594, 600-01, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994).
Accordingly, only the self-inculpatory parts of an
accomplice’s confession should be admitted.

Loncar was considered unavailable, pursuant to La.Code Evid. art. 804(A)(1),

because he invoked his Fifth Amendment privilege against self-incrimination and

refused to testify. State v. Alexander, 03-167 (La.App. 3 Cir. 9/10/03), 854 So.2d

456. The statements made by Loncar to Freeman and Mapp were against his interest,

as he indicated he was involved in the beating and robbing of Cupstid and was

present when Cupstid was run over and shot. The statements made by Loncar were

statements against his interest and Loncar was unavailable to testify, thus Loncar’s

statements to Freeman and Mapp were admissible under Article 804(B)(3) as

statements against interest.

Defendant also asserts the testimony of Freeman and Mapp was inadmissible

because it fell under the purview of Crawford v. Washington, 541 U.S. 36, 124 S.Ct.

1354 (2004), which bars the use of testimonial out-of-court statements at trial unless

the witness is unavailable and the defendant had an opportunity to cross-examine that

witness. In Crawford, the Supreme Court stated that its ruling applied to testimonial

evidence, which applied, at a minimum, to prior testimony at a preliminary hearing,

before a grand jury, or at a former trial, and to police interrogations.

The statements made by Loncar to Freeman and Mapp are not considered

testimony at a preliminary hearing, before a grand jury, or at a former trial nor

statements made during police interrogation. As noted in State v. Miller, 95

Conn.App. 362, 896 A.2d 844 (2006), cert. denied, 279 Conn. 907, 901 A.2d 1228

(2006), the statements at issue are the sort of remarks to an acquaintance that the

Crawford court proclaimed to be nontestimonial. The court in Miller, went on to

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state that “[t]he courts of this land, both federal and state, are in agreement that

statements made to friends in unofficial settings do not constitute testimonial

hearsay.” Id. at 384 (citations omitted). Accordingly, we find that the statements

made by Loncar to Freeman and Mapp are non-testimonial, and their admission did

not violate the ruling in Crawford. Therefore, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant contends the trial court erred

when it denied his motion for mistrial when the victim’s father made accusations in

the form of an outburst that consequently disrupted the court proceedings.

The following occurred during the testimony of Bobby Beard:

Q. Any conversations or any statements by these two individuals?

A. When they walked in, Joe said, “You’re a crazy mother f_ _ _er,”
or something like that and Jason said, “I’m a real mother f_ _ _er, boy,”
and went on. I just kept laying on the couch.

UNIDENTIFIED SPEAKER:

I’m sure he knows what he was.

THE COURT:

All right. Sir -- you have to remove this gentleman.

MR. MESSINA:

Your Honor, can we approach?

THE COURT:

Surely.

UNIDENTIFIED SPEAKER:

He’s really an animal.

THE COURT:

Sir.

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UNIDENTIFIED SPEAKER:

(Inaudible)

THE COURT:

All right. Remove that gentleman too. There will be no demonstrations
made. Remove the gentleman in the checkered shirt, not to come back
in. The other gentleman either and anybody else that wants to leave.
We’ll have no outbursts in the courtroom. I want both those gentlemen
held.

....

Ladies and gentlemen of the jury, totally disregard anything that
is not evidence that has nothing to do with this trial. The Court will deal
with that in another venue. Carry on, Mr. Burget.

Defense counsel subsequently moved for a mistrial. The parties then stipulated

that the victim’s father was the man who made the initial outburst. Then, Defendant’s

father responded with his own outburst. The trial court offered to poll the jury, if the

parties agreed. The parties did not ask for the jury to be polled; thus, the trial court

denied the motion.

“Upon motion of a defendant, a mistrial shall be ordered, and in
a jury case the jury dismissed, when prejudicial conduct inside or
outside the courtroom makes it impossible for the defendant to obtain a
fair trial.” La.C.Cr.P. art. 775. Mistrial is a drastic remedy, and is
warranted only when the defendant has suffered substantial prejudice
such that he cannot receive a fair trial. State v. Bates, 495 So.2d 1262
(La.1986); State v. Wingo, 457 So.2d 1159 (La.1984). The
determination of whether actual prejudice has occurred, and thus
whether a mistrial is warranted, lies within the sound discretion of the
trial judge, and this decision will not be overturned on appeal absent an
abuse of that discretion. State v. Sanders, 93-0001 (La.11/30/94), 648
So.2d 1272; Wingo, 457 So.2d at 1166.

State v. Wessinger, 98-1234, p. 24 (La. 5/28/99), 736 So.2d 162, 183, cert. denied,

528 U.S. 1050, 120 S.Ct. 589 (1999), superceded by statute on other grounds.

Defendant argues the unexpected outburst prejudiced him and the trial court’s

instruction to ignore the outburst did not undo that prejudice. He also alleges the

statements made by the victim’s father indicated how he felt about Defendant and

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implied his opinion regarding Defendant’s guilt.

In Wessinger, 736 So.2d 162, the defendant argued the trial court erred when

it declined to declare a mistrial when the victim’s mother broke out into tears after the

victim’s sweater was introduced into evidence and when there was an outburst in the

courtroom after the tape of the victim’s 911 call was played for the jury. Upon

hearing the tape of his daughter’s last moments, the victim’s father shouted out “son

of a bitch.” Id. at 183. The defendant then moved for a mistrial, which was denied.

The supreme court found the trial court had not abused its vast discretion in denying

the mistrial. Additionally, the defendant did not demonstrate how these outbursts

could have prejudiced him to such a degree that a mistrial was warranted. The court

then stated the following: “Again, we must credit the jurors with the good sense and

fair-mindedness to see these outbursts for what they were, the natural and irrelevant

expression of human emotion, and not let the outbursts influence their decision on

defendant’s penalty.” Id.

Based on the supreme court’s decision in Wessinger and the fact the trial court

instructed the jury to disregard the outbursts, we find the trial court did not abuse its

discretion in denying Defendant’s motion for mistrial. Accordingly, this assignment

of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, Defendant contends the trial court erred in

allowing the State to permit Investigator Jimmy Darden to testify as an expert without

being tendered as such.

In brief to this court, Defendant argues Darden offered testimony without being

tendered as an expert witness. Specifically, Darden testified it was “physically

impossible” for the evidence to corroborate Defendant’s testimony. Darden also

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testified as to the victim’s state of mind and he testified as to what he believed

occurred on the night in question. Defendant asserts that each of these statements are

Darden’s opinion.

Defendant cites La.Code Evid. art. 701, which states that if a witness is not

testifying as an expert, his testimony is limited to opinions that are rationally based

on the perception of the witness and are helpful to a clear understanding of his

testimony or the determination of a fact at issue. Defendant argues Darden should not

have been allowed to testify regarding the Defendant’s credibility or to the placement

of the body. Additionally, he urges Darden was not eligible to testify as to the

sequence of events because those facts were unknown. Defendant then asserts that

Darden testified as to the order of events stating, “[h]e was hit by the vehicle first.”

Additionally, Darden testified about whether Defendant was truthful. Defendant

states that pursuant to La.Code Evid. art. 704 an expert witness shall not express an

opinion as to the guilt or innocence of the accused. Defendant further argues since

Darden was not qualified as an expert, yet was treated as one by the Court, his

opinions concerning the guilt or innocence of the Defendant should not be allowed.

By testifying as to what he believed to have happened on the night in question,

“Darden approaches that exact opinion through his assessment of the scene and of

Short’s credibility.”

Lastly, Defendant argues Darden could not extrinsically attack his credibility

pursuant to La.Code Evid. art. 607, since Darden went beyond the inconsistent

statements made by the Defendant and focused on “other aspects of Short’s statement

to which Darden was not privy to as a lay witness.”

Physical Impossibility

During his testimony, Darden testified as follows: “That’s where the damage

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is done. There’s no way that he’s going to strike him and put all the evidence in this

ditch. It’s physically impossible. I have, we, there’s no one that will concur with

that.” We note that defense counsel did not object to Darden’s testimony. Thus,

Defendant waived his right to seek review of the issue based on his lack of

contemporaneous objection. La. Code Crim.P. art. 841. Therefore, the issue is not

properly before this court.

Sequence of Events

The Defendant asserts Darden improperly testified as to the order of events and

quotes the following: “He was hit by the vehicle first.” At trial, Darden was asked

the following:

Q. Through your investigations, interviews with other suspects, did
you make a determination of whether the robbery occurred first or rather
the striking of Mr. Cupstid occurred first, through what you discerned
through witnesses and conversation, statements?

A. He was hit by the vehicle first.

There was no objection following this testimony. Accordingly, Defendant waived his

right to seek review of the issue based on his lack of contemporaneous objection

under La.Code Crim.P. art. 841, and the issue is not properly before the court.

State of Mind

Defendant asserts that Darden testified as to the state of mind of the victim.

The page numbers cited by the Defendant in regard to this testimony are incorrect,

and our review of the record does not indicate that Darden testified as to the victim’s

state of mind.

Credibility

Defendant next asserts that Darden should not have been allowed to testify

regarding Defendant’s credibility. Darden did discuss Defendant’s truthfulness

several times during his testimony. The trial court sustained Defendant’s objections

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concerning his truthfulness, stating “I think he can testify to what he saw and that sort

of thing. But I’m not going to allow him to give a conclusion about the truthfulness

of something of that particular one focused question.”

Defendant also cites particular pages of the trial transcript in support of this

claim; however, there is no testimony on the referenced pages wherein Darden

commented on his credibility. Defendant has not properly pointed out what

additional testimony he wants this court to review; therefore, we decline to further

address his complaints. Uniform Rules–Courts of Appeal, Rule 2-12.4.

Events that Occurred

Defendant contends Darden was improperly allowed to testify as to what he

believed occurred on the night in question. When Darden began to testify as to what

he thought occurred on that night, defense counsel objected on the basis that Darden’s

testimony called for speculation. The State then asserted that Darden was talking

about what he thought happened. The objection was overruled.

Louisiana Code of Evidence Article 701 discusses the admissibility of opinion

testimony from lay witnesses, as follows:

If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or inferences
which are:

(1) Rationally based on the perception of the witness; and

(2) Helpful to a clear understanding of his testimony or the
determination of a fact in issue.

Based on Article 701, it was permissible for Darden to give his opinion as a lay

witness, if his opinion was based on his perceptions of the scene and was helpful to

a clear understanding of his testimony or a fact at issue. “A law officer may testify

as to matters within his personal knowledge acquired through experience without first

being qualified as an expert.” State v. Gibson, 97-108, p. 5 (La.App. 3 Cir. 4/30/97),

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693 So.2d 286, 291, citing State v. Lowery, 609 So.2d 1125, 1128 (La.App. 2

Cir.1992), writ denied, 617 So.2d 905 (La.1993). Defendant’s objection at trial was

based solely on the fact that Darden was testifying as to “the way he thinks it

happened” and not on the basis that he was testifying as an expert and had not been

qualified as such. Defendant did not object on the grounds that Darden failed to set

forth what personal observations he based his testimony. Darden was the

investigating officer, and therefore, we find that his “thoughts” and conclusions

resulted from his observations and evidence gathered at the scene. Accordingly, this

assignment lacks merit.

DECREE

For the foregoing reasons, Defendant’s conviction is affirmed.

AFFIRMED.

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