State of Louisiana v. James E. Ramsdell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1510

STATE OF LOUISIANA

VERSUS

JAMES E. RAMSDELL

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR974-07
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett,
Judges.

CONVICTIONS AFFIRMED. ARMED ROBBERY SENTENCE
AFFIRMED AS AMENDED.

David W. Burton
District Attorney
Richard A. Morton
Assistant District Attorney
Post Office Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
James E. Ramsdell

AMY, Judge.

The defendant was convicted of first degree murder, conspiracy to commit first

degree murder, armed robbery, aggravated burglary, theft of a firearm, and theft of

movable property over five hundred dollars. The trial court vacated the defendant’s

aggravated burglary conviction, and he was sentenced on the remaining charges. The

defendant appeals his armed robbery conviction as a violation of the prohibition

against double jeopardy. Further, he challenges the sufficiency of the evidence used

to convict him of first degree murder. The defendant also argues that the trial court

erred in failing to grant several motions for mistrial. For the following reasons, we

affirm the defendant’s convictions, and affirm the defendant’s sentence for armed

robbery as amended.

Factual and Procedural Background

This matter involves the October 9, 2007, shooting death of John “Jack”

Mayeaux. It is alleged that the defendant, James E. Randall, shot and killed Mr.

Mayeaux, and then, with the help of two accomplices, Terry Clarkson and D.B.1, stole

some of the victim’s movable property, including a four-wheeler, money, several

guns, ammunition, and tools.

The defendant was indicted by a grand jury with first degree murder, a

violation of La.R.S. 14:30; conspiracy to commit first degree murder, violations of

La.R.S. 14:26 and 14:30; armed robbery, a violation of La.R.S. 14:64; aggravated

burglary, a violation of La.R.S. 14:60; theft of a firearm, a violation of La.R.S.

14:67.15; and theft of movable property over $500.00, a violation of La.R.S.

14:67(B)(1). Following a jury trial, the defendant was found guilty as charged.

1
In accordance with Uniform Rules, Courts of Appeal, 5-2, initials will be used to “ensure
the confidentiality of a minor who is a party to or whose interests are the subject matter in the
proceedings[.]”

Following his convictions, the defendant filed a Motion to Set Aside Verdict

of Jury, arguing that his convictions for first degree murder in addition to armed

robbery and armed burglary violated the prohibition against double jeopardy. The

trial court granted the motion and vacated his conviction for aggravated burglary.

The defendant was subsequently sentenced on the remaining convictions as follows:

life imprisonment without the benefit of parole, probation or suspension of sentence

for first degree murder; thirty years imprisonment at hard labor for criminal

conspiracy to commit first degree murder; one hundred four years imprisonment at

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

armed robbery; ten years imprisonment at hard labor without benefit of parole,

probation or suspension of sentence, and a fine of $1,000.00 for theft of firearms, and;

ten years imprisonment at hard labor for theft of movable property over $500.00. The

trial court ordered the sentences to run consecutively.

The defendant appeals, asserting that the trial court erred in failing to grant his

Motion to Set Aside Verdict of Jury regarding his armed robbery conviction, and in

denying his motions for mistrial. The defendant also questions the sufficiency of the

evidence used to convict him of first degree murder.

Discussion

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 one error

patent regarding the sentence imposed for armed robbery.

The trial court sentenced the defendant to serve one hundred four years

imprisonment at hard labor for the armed robbery conviction. At his hearing on the

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Motion to Set Aside the Jury Verdict, the trial court stated that the penalty for “armed

robbery with a firearm carries a maximum of a 104 year sentence with the 99 year

plus the five-year firearm enhancement.”

Under La.R.S. 14:64, the maximum sentence for armed robbery is ninety-nine

years imprisonment at hard labor. However, under La.R.S. 14:64.3, “[w]hen the

dangerous weapon used in the commission of the crime of armed robbery is a firearm,

the offender shall be imprisoned at hard labor for an additional period of five years

without benefit of parole, probation, or suspension of sentence.” To invoke the

provisions of La.R.S. 14:64.3, the statute must be charged in the bill of information

or indictment. State v. Daniels, 03-1621 (La.App. 3 Cir. 5/12/04), 873 So.2d 822, writ

denied, 04-1802 (La.11/24/04), 888 So.2d 227.

In this case, the State did not cite La.R.S. 14:64.3 nor set forth that the crime

of armed robbery was committed with a firearm in the indictment. As noted above,

the first and only time enhancing the armed robbery sentence was mentioned was by

the trial judge, not the State, during the defendant’s post-verdict motion hearing.

Since the trial court cannot trigger enhancement on its own, we find that the trial

court lacked authority to impose the enhanced sentence. The maximum sentence for

armed robbery in this present matter is ninety-nine years imprisonment at hard labor.

La.R.S. 14:64. As such, the trial court’s one hundred four years sentence was

illegally excessive. State v. Jacobs, 08-702 (La.App. 3 Cir. 2/4/09), 2 So.3d 1289.

Accordingly, we reverse the trial court’s inclusion of the five year enhancement and

otherwise affirm the defendant’s sentence for armed robbery as amended.

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Sufficiency of the Evidence

The defendant argues that the evidence adduced at trial was insufficient to

support his first degree murder conviction. In State v. Freeman, 01-997, pp. 2-3

(La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580, a panel of this court discusses the

standard for insufficiency claims as follows:

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 (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 credibilities of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the trier of fact beyond the sufficiency evaluations under the Jackson
standard of review. See Graffagnino, 436 So.2d at 563, citing State v.
Richardson, 425 So.2d 1228 (La.1983).

First, the defendant contends that there was insufficient evidence to establish

beyond a reasonable doubt that he shot the victim. Specifically, the defendant

challenges the credibility of D.B.’s testimony identifying the defendant as the shooter.

He contends that D.B.’s testimony and statements to police were inconsistent.

Here, first degree murder is defined as the killing of a human being when the

offender has the specific intent to kill or to inflict great bodily harm and is engaged

in the perpetration or attempted perpetration of certain felonies including, in this case,

armed robbery and aggravated burglary. La.R.S. 14:30. The State bears of the

burden of proving those elements, along with the burden to prove the identity of

defendant as the perpetrator. State v. Draughn, 05-1825 (La. 1/17/07), 950 So.2d

853.

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The record reveals that D.B. was first questioned by Officers Jeanne Faciane

and Janet Beebe on October 11, 2007. In that interview, D.B. denied having any

knowledge of the victim’s murder. Four days later, D.B. was interviewed a second

time, by different officers, wherein he reported that the defendant shot and killed the

victim. On May 13, 2008, D.B. gave a third statement to Jim McCarty with the

district attorney’s office and again identified the defendant as the shooter.

The defendant argues that D.B. made statements to officers that he closed his

eyes when the victim was shot, but testified at trial that he saw the defendant shoot

the victim. At trial, the following exchange took place on D.B.’s cross-examination

as he was being questioned about the statements he gave police:

Q All right. And do you remember what you said immediately prior
to the shots being fired in Jack’s direction? Do you remember
what you said when they asked you if you saw him shoot Jack?
Do you remember that?

A No, sir.

Q You remember what you said, that you turned around and you
closed our eyes? Do you remember saying that?

A Yes, sir.

Q You’ve said more than one time, didn’t you?

A Yes, sir

Q So you didn’t actually see him shoot Jack the first time, did you,
sir?

A Yes, sir.

Q You did?

A Yes, sir.

Q So you weren’t telling the truth when you told them you turned
around and you closed your eyes?

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A I saw him shoot him the first time, that’s when I turned around.

D.B. admitted in testimony that he lied to police when he gave his initial

statement on October 11, 2007, but related that he subsequently told police the truth

and was telling the truth at this trial. The record reveals that the testimony he

provided at trial was consistent with the second and third statements he provided to

police wherein he related that he saw the defendant shoot the victim and then turned

his head.

The defendant also refers to other inconsistencies in D.B.’s statements,

regarding who returned the gun to the defendant’s car after the shooting. The record

indicates that in D.B.’s second statement to police he related that after the shooting,

the defendant put the gun back in his car, and then walked towards the victim. In his

third statement, D.B. reported that after the shooting, the defendant gave his gun to

Clarkson and instructed Clarkson to put the gun in the defendant’s car. At trial, D.B.

testified that he was not sure who put the gun back in the defendant’s car.

James Brown also testified that he met the defendant while in Beauregard

Parish Jail. Brown testified that the defendant told him that he was in jail for

murdering “a man named Jack.” Brown further testified that the defendant mentioned

“shooting somebody four times in the chest, twice in the head.”

The record reveals that a search warrant was issued to search the defendant’s

home, based upon the detectives investigation in addition to D.B.’s statements

indicating where some of the victim’s stolen property and the murder weapon were

located. D.B. identified the murder weapon as a gun belonging to the defendant. He

further provided a physical description of the gun, relating that it had a broken clip

which had been repaired with tape. Mark Herford, a detective with the Beauregard

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Parish Sheriff’s Office, testified that he found the gun described by D.B. in the

defendant’s backyard where D.B. had indicated it was buried. The gun and shell

casings found at the murder scene were sent to the crime lab. At trial, Charles R.

Watson, Jr., a forensic scientist at the Louisiana State Police Crime Laboratory,

testified that the casings found at the scene matched the gun seized from the

defendant’s house. John Loftin, the victim’s neighbor, testified that the gun seized

was the same gun he had sold the defendant. In a statement to police, which was

entered into the record, the defendant stated that he owned a .45 Haskell gun but

alleged that it had been stolen a month before the murder. The defendant also

explained that the gun’s clip was broken.

Detective Herford also testified that he searched the defendant’s house, looking

for certain property believed to be stolen from the victim. He stated that he found a

cutting torch and other tools allegedly owned by the victim. He explained that the

cutting torch was freshly painted, which was consistent with D.B.’s statement that he

helped the defendant paint the torches. Detective Herford also recovered other

property allegedly stolen from the victim including a four-wheeler and other tools.

Chief Deputy of the Beauregard Sherrif’s Office, Joe Toler, testified the he recovered

various firearms and ammunition inside the defendant’s home where D.B. indicated

those stolen weapons would be found.

As the fact finder, a jury makes credibility determinations and may, within the

bounds of rationality, accept or reject the witness’s testimony; thus on review, a court

may impinge on the discretion of the fact finder only to the extent necessary to

guarantee the fundamental due process of law. State v. Neal, 00-674 (La. 6/29/01),

796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct 1323 (2002), citing State v.

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Mussall, 523 So.2d 1305 (La.1988). We find that when reviewing the record in a

light most favorable to the State, a rational trier of fact could reasonably conclude that

the defendant shot Mr. Mayeaux. The jury heard D.B.’s testimony identifying the

defendant as the shooter and chose to accept that testimony. The record reveals that

while there appear to be inconsistencies in D.B.’s statements, none of these

inconsistencies involve the identity of the defendant as the shooter or raise the

possibility that someone else committed the crime. “Jurisprudence holds that ‘a jury

may rely on a single witness’s testimony to establish a factual element required to

prove guilt, provided there is no internal contradiction or irreconcilable conflict with

physical evidence.” State v. Clark, 00-818, p. 4 (La.App. 3 Cir. 12/6/00), 780 So.2d

418, 421, writ denied, 01-992 (La. 3/22/02), 811 So.2d 922, quoting State v. Bernard,

98-994, p. 7 (La.App. 3 Cir. 2/3/99), 734 So.2d 687, 691. In brief, the defendant

argues that the physical evidence found in his home “could have easily been planted”

by D.B. or Clarkson. He also asserts that it is “not inconceivable” that his brother,

who was feuding with the victim at the time of his death, was the shooter. However,

the defendant does not point to any evidence in the record to support these allegations

or expose an irreconcilable conflict between the testimony adduced at trial and the

physical evidence. Accordingly, we find that when reviewing the record in a light

most favorable to the State, a rational trier of fact could reasonably conclude that the

defendant shot Mr. Mayeaux.

The defendant also asserts, in the alternative, that even if it were to be found

that he was involved in the murder of Mr. Mayeux, there was insufficient evidence

to establish that he intended to rob Mr. Mayeux or burglarize his home because the

“robbery/burglary was an afterthought, and took place after Mayeaux was dead.”

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At trial, D.B. testified that the night before the murder, the defendant said “we

should kill Jack.” He further testified that the defendant expressed that he wanted to

kill Mr. Mayeaux “because he wanted his stuff.” D.B. related that after the defendant

shot Mr. Mayeaux, he, Clarkson, and the defendant entered Mr. Mayeaux’s house and

stole several firearms and money. D.B. stated that the men stole cash from Mr.

Mayeaux and $300.00 in quarters from Mr. Mayeaux’s home.

“Louisiana jurisprudence does not distinguish between the armed robbery

which occurs before the killing of the victim and the robbery of the victim whom the

defendant has already killed.” State v. Goodley, 01-77, p.10 (La. 6/21/02), 820 So.2d

478, 484. Rather, the determination of whether a murder was committed in the

perpetration of a certain felony is whether the murder and the felony form a

continuous transaction without a significant break of events. Id. Here, on review of

the evidence, the record supports a determination that Mr. Mayeaux’s murder

facilitated the robbery and burglary. D.B. testified that the defendant desired to kill

Mr. Mayeaux to effectuate a taking of his belongings. Further, D.B.’s testimony

indicates that there was no significant break in the chain of events between the time

the shots were fired and the men left Mr. Mayeaux’s property.

This assignment of error lacks merit.

Double Jeopardy

The defendant asserts that his constitutional guarantees prohibiting double

jeopardy were violated by his convictions and sentences for both first degree murder

and armed robbery. He contends that because armed robbery was the predicate

offense used to convict him of first degree murder, multiple punishments were

imposed for what was a single criminal act.

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The defendant first raised the double jeopardy issue in a Motion to Quash the

Predicate Offenses of Armed Robbery and Aggravated Burglary. The trial court

denied the motion and the defendant took supervisory writs to this court. The writ

was denied stating that the defendant had an adequate remedy on this issue on appeal.

State v. Ramsdell, 09-994 (La.App. 3 Cir. 8/18/09)(an unpublished writ opinion).

Following his convictions, the defendant filed a Motion to Set Aside Verdict of Jury,

asserting that his convictions for armed robbery, aggravated burglary, and first degree

murder violated his protection against double jeopardy. At the hearing on the motion,

the trial court explained that the State was allowed to proceed under alternative

underlying predicate offenses for the first degree murder charge because the

protection against double jeopardy did not apply until the defendant has been

sentenced. However, the trial court noted that “it would be error for me today to

sentence him to both first-degree murder and armed robbery and aggravated

burglary.” Because the defendant was found guilty of both armed robbery and

aggravated burglary, the trial court stated that the proper remedy was to vacate the

defendant’s conviction for the less severely punishable offense, aggravated burglary.2

Accordingly, the trial court vacated the defendant’s conviction for aggravated

burglary.

The Double Jeopardy provisions in the state and federal constitutions protect

a defendant from both a second prosecution for the same offense and multiple

2
The punishment for aggravated burglary is imprisonment for not less than one nor more
than thirty years. La.R.S. 14:60. The punishment for armed robbery is imprisonment at hard labor
for not less than ten years and for not more than ninety-nine years, without benefit of parole,
probation, or suspension of sentence. La.R.S. 14:64.

10

punishments for the same criminal act. U.S. Const. amend. V; La.Const. art. 1, § 15;

State v. Doughty, 379 So.2d 1088 (La.1980). When proof of a felony is an essential

element of first degree murder, double jeopardy precludes the conviction and

punishment of the defendant for both murder and the underlying felony. State v. Cox,

07-774 (La.App. 3 Cir. 3/4/09), 4 So.3d 998, writ denied, 08-602 (La. 9/4/09), 17

So.3d 948. However, an accused who commits separate and distinct offenses during

the same criminal episode or transaction may be convicted and sentenced for each

offense without violating the prohibition against double jeopardy. State v. Williams,

05-1338 (La.App. 3 Cir. 3/1/06), 924 So.2d 1159, writ denied, 06-1471 (La.

12/15/06), 944 So.2d 1284.

As explained above, in this case, the State prosecuted and charged the

defendant with first degree murder based upon the underlying offense of armed

robbery or aggravated burglary. While in brief the defendant contends that the jury

based its first degree murder conviction on the underlying offense of armed robbery,

the jury’s intent in rendering its verdict, specifically which offense it attributed to

fulfill the elements of first degree murder, cannot be discerned from the record before

us. Nevertheless, the convictions can be upheld if there is sufficient evidence to

support either theory. Cox, 4 So.3d 998. Here, it is clear that the defendant’s

protection from double jeopardy was violated when he was convicted and sentenced

to first degree murder, armed robbery, and aggravated burglary. However, the trial

court imposed the proper remedy by vacating the conviction and sentence for

aggravated burglary, the less severely punishable offense. Doughty, 379 So.2d 1088;

State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990); Cox, 4 So.3d 998; State v.

11

Pittman, 95-382 (La.App. 5 Cir. 10/1/96), 683 So.2d 748; State v. Head, 598 So.2d

1201 (La.App. 5 Cir. 1992).

Additionally, the record supports a determination that under the facts of this

case, armed robbery and first degree murder were separate and distinct offenses and

thus do not violate double jeopardy. Here, first degree murder requires proof of the

specific intent to kill or cause great bodily harm, whereas armed robbery does not.

La.R.S. 14:30; La.R.S. 14:64; See also Blockburger v. United States, 284 U.S. 299,

52 S.Ct. 180 (1932); State v. Williams, 07-931 (La.2/26/08), 978 So.2d 895. Further,

the defendant could have been convicted of first degree murder without any proof that

an armed robbery occurred.

This assignment is without merit.

Motions for Mistrial

The defendant assigns error to the trial court’s denial of several motions for

mistrial made as a result of prospective jurors’ comments in the presence of the jury

venire. According to La.Code. Crim.P. art. 775(6), a mistrial may be ordered when

“[f]alse statements of a juror on voir dire prevent a fair trial.” In State v. Carmouche,

01-405, p. 20 (La. 5/14/02), 872 So.2d 1020, 1035 (citations omitted), the supreme

court stated:

The “prejudicial conduct” may include remarks of veniremen during
voir dire. However, mistrial is a drastic remedy that is warranted only
when the defendant has suffered substantial prejudice such that he
cannot receive a fair trial. A trial court need not order a new trial absent
a showing that comments made by a prospective juror affected other
jurors or prejudiced the defendant. The determination of whether actual
prejudice has occurred lies within the sound discretion of the trial judge,
and this decision will not be overturned on appeal absent an abuse of
that discretion. In deciding the correctness of the trial court’s voir dire
rulings, a reviewing court considers the entirety of the voir dire record.

12

First Motion for Mistrial

The defendant’s first motion for mistrial was raised during voir dire. Counsel

for the defendant explained to the trial court that his secretary heard a prospective

juror, who had been already been released, tell the victim’s daughter “in a tone that

could be heard by the venire, ‘I knew your father, I’m sorry this happened.’” The

defendant moved for a mistrial, asserting that the comment inflamed the jury against

the defendant and thus was detrimental or prejudicial to his case. In response, the

trial court stated “I’m going to deny the motion for a mistrial, unless you can prove

to me a juror or all the jurors were actually prejudiced in some way towards the

defendant, Mr. Ramsdell.”

The record reflects that the defendant did not contemporaneously object to the

trial court’s ruling, and under La.Code Crim.P. art. 841, “[a]n irregularity or error

cannot be availed of after verdict unless it was objected to at the time of occurrence.”

Accordingly, we will not address the merits of the defendant’s argument with regard

to this motion, as it is not properly before this court for the first time on appeal.

Second Motion for Mistrial

The second motion for mistrial was based upon several statements made by

prospective jurors during voir dire. The record reveals that prospective juror number

178 related to the trial court that, during a break, he heard a female prospective juror

make a comment that the defendant “looked guilty.” Another prospective juror,

number 5, explained to the trial court that he heard the same comment made “five or

six times” by three to four different prospective jurors. Lastly, counsel for the

defendant stated to the trial court that another prospective juror “indicated that

someone talked about the hanging jail and that in the olden days they would hang

13

them.” The defendant made a motion for mistrial, asserting that it would be

impossible to obtain a fair and impartial trial considering those discussions amongst

the prospective jurors.

The State opposed the motion, contending that all of the prospective jurors

stated to the trial court that if they had heard such statements, it made no impact on

how they would serve as jurors if selected. Accordingly, the State maintained that

there was no evidence of prejudice to support the motion for mistrial.

The trial court denied the motion, stating that it was clear that some prejudicial

statements were made in and/or outside the courtroom, but the question was whether

the statements made it impossible for the defendant to obtain a fair trial. The trial

court explained that it questioned six prospective jurors about the prejudicial

comments; three indicated they had not overheard anything inappropriate, and three

indicated that they had overheard something, but the comments had not influenced

their opinions or ability to remain fair and impartial in the case.

The trial court denied the motion and stated that it believed the appropriate

remedy would be to admonish the jury venire to disregard any remarks it may have

heard. It added that it would also instruct the jury venire as to the presumption of

innocence and try to assure that the jurors had an appropriate understanding. The trial

court further stated that it would give both the State and the defendant an opportunity

to individually voir dire any of the tentatively accepted jurors.

The record reveals that although the defendant objected to the court’s ruling,

he did not provide an explanation of how the prospective jurors’ remarks affected the

jury venire or prejudiced the defendant. The voir dire record as a whole does not

support a finding that the trial court abused its discretion in denying the defendant’s

14

motion for mistrial. See Carmouche, 872 So.2d 1020. The record reveals that the

prospective jurors who actually heard the comments responded in the affirmative that

their ability to serve as fair and impartial jurors had not been compromised. The

defendant further does not provide evidence to the contrary.

Third Motion for Mistrial

Lastly, prior to seating the jury, the defendant reurged his motion for mistrial,

citing the same grounds as in his second motion for mistrial, and further stating that

two prospective jurors indicated that they heard comments contrary to the trial court’s

admonishment. The record does not indicate what the comments were, however, it

does indicate that those two prospective jurors were released from serving on the jury.

The trial court denied the motion for mistrial, stating that in addition to showing

prejudicial conduct, the Defendant had to show that the conduct made it impossible

to obtain a fair trial. Through the questioning of the prospective jurors, the trial court

concluded that “it is abundantly clear” ... “that Mr. Ramsdell’s right to a fair trial is

not impinged by any comments that were made.”

Because the defendant cited no ground other than those urged previously, we

find that based upon the forgoing reasons, the record does not support a finding that

the trial court abused its discretion in denying the defendant’s third motion for

mistrial.

Accordingly, this assignment of error is without merit.

DECREE

For the foregoing reasons, the defendant’s convictions are affirmed. The

defendant’s armed robbery sentence is affirmed as amended.

CONVICTIONS AFFIRMED. ARMED ROBBERY SENTENCE AFFIRMED
AS AMENDED.

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