State of Louisiana v. Simon Lewis

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-357

STATE OF LOUISIANA

VERSUS

SIMON LEWIS

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 118,832
HONORABLE JULES D. EDWARDS, III, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Michael Harson
District Attorney
Patrick D. Magee
Assistant District Attorney
Post Office Box 3306
Lafayette, Louisiana 70502-3306
(337) 232-5170
Counsel for:
State of Louisiana

Mark O. Foster
Louisiana Appellate Project
Post Office Box 2057
Natchitoches, Louisiana 71457
(318) 572-5693
Counsel for Defendant/Appellant:
Simon Lewis

Simon Lewis
In Proper Person
Louisiana State Prison
Main Prison Walnut-3
Angola, Louisiana 70712
Defendant/Appellant

KEATY, Judge.

Defendant appeals his second degree murder conviction, arguing that the

trial court erred in allowing the State to introduce his recorded statement and in

denying his motion for new trial. For the following reasons, Defendant’s

conviction is affirmed.

FACTS AND PROCEDURAL HISTORY

On December 30, 2007, Defendant, Simon Lewis, shot and killed Bernard

Shelvin. On February 7, 2008, Defendant was charged by a grand jury with first

degree murder, a violation of La.R.S. 14:30. Upon the State’s motion, the

indictment was amended to second degree murder, a violation of La.R.S. 14:30.1,

on May 6, 2008. Defendant was convicted by a jury on August 26, 2010. On

October 21, 2010, the trial court imposed the mandatory sentence of life

imprisonment at hard labor without benefit of parole, probation, or suspension of

sentence.

Defendant is now before this court on appeal, asserting that the trial court

erred in allowing the use of his statement at trial and denying his motion for a new

trial.

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 that

there is one error patent.

Defendant was originally indicted by a grand jury with the offense of first

degree murder, in violation of La.R.S. 14:30. The State amended the bill to charge

Defendant with second degree murder, listing the correct statutory citation, La.R.S.

14:30.1. The State later filed a Motion to Amend an Amended Indictment in

which it listed an incorrect statutory citation, La.R.S. ―14:30.1. (2)(a).‖ The

correct statutory provision is La.R.S. 14:30.1(A)(2)(a).

Louisiana Code of Criminal Procedure Article 464 states:

The indictment shall be a plain, concise, and definite written
statement of the essential facts constituting the offense charged. It
shall state for each count the official or customary citation of the
statute which the defendant is alleged to have violated. Error in the
citation or its omission shall not be ground for dismissal of the
indictment or for reversal of a conviction if the error or omission did
not mislead the defendant to his prejudice.

A review of the face of the record shows no indication that this citation error

misled Defendant to his prejudice, and neither the minutes nor the pleadings

indicate that Defendant alleged any prejudice prior to trial. Accordingly, this error

is harmless. See State v. Poche, 05-1042 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225

and State v. Roberts, 06-765 (La.App. 3 Cir. 1/17/07), 947 So.2d 208, writ denied,

07-362 (La. 10/5/07), 964 So.2d 938.

ASSIGNMENT OF ERROR NO. 1 and
SUPPLEMENTAL ASSIGNMENT OF ERROR NUMBER ONE (Pro Se)

By these assignments of error, Defendant argues that the trial court erred in

overruling his objection to the State’s use of his recorded statement given to police

on January 16, 2008. Defendant maintains that the investigating officer, per

departmental protocol, did not record the first two hours of his interview wherein

he made exculpatory statements. Defendant maintains he was entitled to full

disclosure of exculpatory evidence pursuant to La.R.S. 15:450, which provides,

―[e]very confession, admission or declaration sought to be used against any one

must be used in its entirety, so that the person to be affected thereby may have the

benefit of any exculpation or explanation that the whole statement may afford.‖

This issue was addressed by the supreme court in State v. Thibodeaux, 98-

1673 (La. 9/8/99), 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969

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(2000). In Thibodeaux, the defendant maintained that his due process rights were

violated because the officer talked to him while the tape recorder was turned off.

The court held:

[T]here is no due process requirement that a statement given to the
police must be recorded. Nor is there any support in the record for the
Defendant’s claim that a portion of his statement was unrecorded
somehow violated his due process rights or coerced him into giving a
confession. The law does not require the production of non-existent
portions of the confession or portions which cannot be recalled. State
v. Marmillion, 339 So.2d 788, 793 (La.1976). In the absence of proof
to the contrary, the fact that the purported statement of the accused as
testified to by the investigating officer does not consist of a verbatim
reiteration of the conversation between them due to the witness’s
inability to recall or other valid explanation does not violate the rights
of the accused. State v. Lefevre, 419 So.2d 862, 867 (La. 1982).

Id. at 923-24.

In the instant case, Detective Craig Mouton, the investigating officer,

testified that the interview in question was conducted using the Lafayette Police

Department’s protocol for interrogating a suspect. Defendant was placed in a

structured interview room and was advised of his rights pursuant to Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), with an ―advice of rights‖ form.

Detective Mouton then conducted a ―pre-interview‖ to determine what Defendant

was going to say. Detective Mouton maintained that Defendant gave his statement

freely and voluntarily and was not threatened. The entire interview lasted two and

a half hours from start to finish.

On cross-examination, Detective Mouton confirmed that Defendant signed

the ―advice of rights‖ form at 10:22 a.m., and his recorded statement began at

12:24 p.m., lasting about twenty-five minutes. According to Detective Mouton,

once he and Defendant went through all the facts of the case, he began Defendant’s

recorded statement which contained the information relevant to the case.

Defendant had the opportunity to say whatever he wanted to say in his recorded

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statement. Detective Mouton denied offering any deals or making any promises

before commencing the recorded statement. He also denied forcing, coercing, or

tricking the Defendant into saying something.

In light of the ruling in Thibodeaux, Detective Mouton was not required to

record the entirety of his interview with Defendant. Further, Detective Mouton

testified at trial about the conversation with Defendant that occurred prior to the

time the recorded statement was conducted. The unrecorded portion of the

Defendant’s interview is not included within the State’s requirement to fully

disclose exculpatory evidence as required by La.R.S. 15:450. Accordingly, this

assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2 and
SUPPLEMENTAL ERROR FOR CONSIDERATION (Pro Se)

By this assignment of error, Defendant argues that the trial court erred in

denying his motion for a new trial. Defendant asserts that after sentencing, he

learned that a juror, who had not been sequestered during the trial, went to the

crime scene at night and reported his findings to the jury the following day.

The record reflects that Defendant filed a motion for new trial on

November 12, 2010. The motion was denied without a hearing on November 17,

2010. In its handwritten reasons for denying the motion, the trial court stated that

the motion did not comply with La.Code Crim.P. arts. 853 and 855.

Louisiana Code of Criminal Procedure Article 853 provides, in pertinent part,

that a motion for a new trial must be filed and disposed of prior to sentencing

unless the motion is based on ground three of Article 851, which mandates

granting the motion for new trial when there is discovery of new and material

evidence that would have probably changed the verdict or judgment of guilty. In

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that event, the motion must be filed within one year following the verdict or

judgment.

The requirements of a motion for new trial based on the discovery of a

prejudicial error or defect in the proceedings after the verdict or judgment are set

forth in La.Code Crim.P. art. 855 which reads:

A motion for a new trial based on ground (4) of Article 851
shall contain allegations of fact sworn to by the defendant or his
counsel, showing:

(1) The specific nature of the error or defect complained of; and

(2) That, notwithstanding the exercise of reasonable diligence
by the defense, the error or defect was not discovered before or during
the trial.

Ground four of La.Code Crim.P. art. 851 mandates granting the motion for new

trial when ―[t]he defendant has discovered, since the verdict or judgment of guilty,

a prejudicial error or defect in the proceedings that, notwithstanding the exercise of

reasonable diligence by the defendant, was not discovered before the verdict or

judgment[.]‖

In State v. Veal, 296 So.2d 262 (La.1974), the supreme court found that the

defendant’s motion for a new trial was insufficient because it did not comply with

La.Code Crim.P. art. 855. The motion provided, ―[s]ince the rendition of this

verdict by the jury, facts have come to the attention of the Court-appointed

attorneys herein that indicate possible jury influence by those officials in charge of

the jury.‖ Id. at 265. The trial court found that the general allegation of influence

with no supporting facts or attestation of reasonable diligence failed to meet the

requirements of La.Code Crim.P. art. 855. See also State v. Herrod, 412 So.2d 564

(La.1982).

In the instant case, Defendant’s motion for a new trial was filed twenty days

after he was sentenced. Defense counsel indicated in the motion that he believed
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Jurors 29 and 151 had information that the jury may have engaged in conduct

detrimental to Defendant’s trial. Defendant’s motion, which claimed that there

was a prejudicial error or defect in the proceeding after the verdict, did not contain

allegations of fact showing the nature of the error or defect. Additionally, the

motion did not indicate that the error or defect was not discovered before or during

trial, notwithstanding the exercise of reasonable diligence. As Defendant’s motion

failed to state specific allegations of influence with supporting facts or a statement

of reasonable diligence, he has not met the requirements of La.Code Crim.P. art.

855. Accordingly, this assignment of error lacks merit.

DECREE

Defendant’s conviction is affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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