State of Louisiana v. Justin Robert Sizemore

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-529 consolidated with 13-530

STATE OF LOUISIANA

VERSUS

JUSTIN ROBERT SIZEMORE

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 79569
HONORABLE JAMES R. MITCHELL, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J.
David Painter, Judges.

AFFIRMED.

Asa A. Skinner
District Attorney
Drew W. Mason
Assistant District Attorney
Terry W. Lambright
Assistant District Attorney
Post Office Box 1188
Leesville, LA 71496-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

Douglas Lee Harville
Louisiana Appellate Project
400 Travis Street, Suite 1702
Shreveport, LA 71101
(318) 222-1700
COUNSEL FOR DEFENDANT/APPELLANT:
Justin Sizemore

Justin Sizemore
Spruce-3 Main Prison
Louisiana State Prison
Angola, LA 70712
IN PROPER PERSON

AMY, Judge.

The defendant was charged with second degree murder and conspiracy to

commit second degree murder. Ultimately, a jury found the defendant guilty of

both charges. For the defendant’s conviction for second degree murder, the trial

court sentenced the defendant to life imprisonment at hard labor, without benefit of

probation, parole, or suspension of sentence. For the defendant’s conviction for

conspiracy to commit second degree murder, the trial court sentenced the

defendant to twenty-five years at hard labor, to be served consecutively to any

other sentence. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

On the morning of June 14, 2010, a passerby found the body of Christopher

Hoffpauir in a ditch on the side of Garwood Busby Road. According to the State,

the defendant, Justin Robert Sizemore, along with Kristyn Hoffpauir, conspired to

murder Christopher, who was Kristyn’s estranged husband.

The defendant was charged with second degree murder, a violation of

La.R.S. 14:30.1, and conspiracy to commit second degree murder, a violation of

La.R.S. 14:26 and La.R.S. 14:30.1.1 The defendant’s first trial ended in a hung

jury. During the defendant’s second trial, the defense made a motion for a mistrial

on the basis that the State failed to provide the defense with Brady material.

Although it is unclear from the record to what extent the State agreed with the

defense on that issue, the record indicates that, at minimum, the State did not

object to a mistrial. The trial court granted the motion for a mistrial. After the

defendant’s third trial, the jury returned guilty verdicts as to both charges.

1
The defendant’s charges were filed under separate docket numbers. However, the
record indicates that the charges were consolidated for trial. The defendant’s cases were also
consolidated on appeal.

Thereafter, for the defendant’s conviction for second degree murder, the trial

court imposed a sentence of life imprisonment at hard labor, without benefit of

probation, parole, or suspension of sentence. For the defendant’s conviction for

conspiracy to commit second degree murder, the trial court imposed a sentence of

twenty-five years at hard labor, to be served consecutively to any other sentence.

The defendant appeals, asserting as error that:

1. There was insufficient evidence to prove that Justin Robert
Sizemore was guilty beyond a reasonable doubt of the offenses of
second degree murder or conspiracy to commit second degree murder.

2. The loss of exculpatory evidence denied Justin Robert Sizemore
his constitutional right of confrontation and due process.

3. Justin Robert Sizemore’s Double Jeopardy Clause rights were
violated when he was tried after being forced to seek a mistrial by
prosecutorial misconduct that required a mistrial to be declared.

4. The Trial Court erred by imposing an unconstitutionally harsh and
excessive sentence.

The defendant has also filed a pro se brief, assigning as error therein that the

evidence is insufficient to support his convictions; that the State lost exculpatory

evidence which interfered with his rights to confrontation and due process; that his

double jeopardy rights were violated; that there was improper contact with a juror

by persons associated with the prosecution; and that Louisiana’s rules concerning

non-unanimous juries are unconstitutional.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for

errors patent on the face of the record. We find no errors patent which require

correction.

2

Double Jeopardy

The defendant asserts, in both his counseled and pro se briefs, that his

convictions violate the constitutional prohibitions on double jeopardy due to the

mistrial granted in his second trial. The constitutional protections contained in the

United States and Louisiana constitutions protect criminal defendants from

repeated prosecutions for the same offense. U.S. Const. amend. V; La.Const. art. 1

§ 15. The standard concerning the application of the double jeopardy doctrine to

cases involving mistrials was addressed in Oregon v. Kennedy, 456 U.S. 667, 675-

76, 102 S.Ct. 2083, 2089 (1982), wherein the United States Supreme Court stated

that:

Prosecutorial conduct that might be viewed as harassment or
overreaching, even if sufficient to justify a mistrial on defendant’s
motion, therefore, does not bar retrial absent intent on the part of the
prosecutor to subvert the protections afforded by the Double Jeopardy
Clause. . . . Only where the governmental conduct in question is
intended to “goad” the defendant into moving for a mistrial may a
defendant raise the bar of double jeopardy to a second trial after
having succeeded in aborting the first on his own motion.

Here, the record reflects that, after the defendant’s first trial but before his

second trial, one of the Vernon Parish detectives interviewed Jody Thibeaux. 2

During that interview, Mr. Thibeaux told the detective that he had heard that a

loaded gun had been found in Kristyn’s bedroom at least three years before

Christopher’s murder. However, the detective failed to put that information in his

report, and the record indicates that it was not provided to the defendant. On the

eighth day of the second trial, the defense learned that the State had information

concerning Kristyn’s previous possession of a handgun. Based on the State’s

failure to disclose what it contended was clearly Brady material, the defense

2
Mr. Thibeaux’s last name is also spelled as “Thibodeaux” in the record.

3

moved for a mistrial. Although it is unclear from the record to what extent the

State conceded that there was a Brady violation, it appears that, at minimum, the

State did not object to the trial court’s grant of the mistrial.3

Before the defendant’s third trial, the defense filed a motion to quash on the

basis that the State intentionally provoked a mistrial and that the prosecution was

now barred by double jeopardy. The defendant argued that the State was in bad

faith in failing to provide the Brady material and that the State engaged in a

“continuing course of conduct” by repeatedly failing to provide Brady material.

After a hearing, the trial court found that the evidence did not support a conclusion

that the State intended to provoke a mistrial or that the defendant had suffered any

prejudice as a result of the grant. Accordingly, the trial court denied the

defendant’s motion.

Even if the State’s actions could be construed as overreaching or

harassment, the defendant still had to prove that the State intended to provoke the

mistrial. Our review of the record reveals that the defendant failed to do so. Thus,

we find no manifest error in the trial court’s factual determination that there was

insufficient evidence to prove that the State intended to provoke a mistrial and that

the defendant did not suffer any prejudice as a result of the mistrial. See State v.

Williams, 478 So.2d 983 (La.App. 4 Cir. 1985), writs denied, 483 So.2d 1019

(La.1986), and 488 So.2d 1029 (La.1986), compare with State v. Elzey, 05-562

(La.App. 4 Cir. 1/11/06), 923 So.2d 182, writ denied, 06-395 (La. 9/15/06), 936

So.2d 1253.

3
According to the record, the State did not object to the defendant’s motion for mistrial.
Subsequently, at the hearing on the motion to quash, the State disagreed with the defendant’s
assertion that the State had previously conceded that the failure to provide the defense with the
information constituted a Brady violation.

4

Thus, we find no merit to the defendant’s arguments in this regard.

Sufficiency of the Evidence

In both his counseled and pro se briefs, the defendant contends that the

evidence was insufficient to support his convictions.

It is well-settled that the evidence is sufficient to support the
conviction when any rational trier of fact, in viewing the evidence in
the light most favorable to the prosecution, could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); 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 this court will not second-guess the
credibility determinations of the trier of fact beyond our sufficiency
evaluations under the Jackson standard of review. See State v.
Richardson, 425 So.2d 1228 (La.1983).

State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983). Further, the

reviewing court should give great deference to the jury’s decision to accept or

reject a witness’ testimony, in whole or in part. State v. Grace, 10-1222 (La.App.

3 Cir. 4/6/11), 61 So.3d 812, writ denied, 11-961 (La. 10/21/11), 73 So.3d 382.

As relevant herein, second degree murder is defined as “the killing of a

human being: (1) When the offender has a specific intent to kill or to inflict great

bodily harm[.]” La.R.S. 14:30.1(A). Conspiracy is defined in La.R.S. 14:26(A)

as:4

the agreement or combination of two or more persons for the specific
purpose of committing any crime; provided that an agreement or
combination to commit a crime shall not amount to a criminal
conspiracy unless, in addition to such agreement or combination, one
or more of such parties does an act in furtherance of the object of the
agreement or combination.

4
We note that the legislature amended La.R.S. 14:26 in 2013 to renumber its subsections.
However, the amendment does not change the substance of La.R.S. 14:26. See 2013 La. Acts
220, effective June 11, 2013.

5

Additionally, we note that La.R.S. 14:26(B) specifically permits prosecution for

both conspiracy and the completed underlying crime. See also State v. Alexander,

43,796 (La.App. 2 Cir. 1/14/09), 2 So.3d 1168, writ denied, 09-368 (La. 11/6/09),

21 So.3d 299.

The State’s primary witness was Kristyn Hoffpauir. Kristyn testified that, in

the late hours of June 13, 2010, she had arranged to meet Christopher at his

parents’ house. She and the defendant travelled from Rapides Parish together, and,

according to her testimony, the defendant put a gun in the car before they left. On

the way, the defendant struck an ice chest in the middle of the road. Kristyn

testified that, after the defendant checked the damage to the front end of the car,

she and the defendant continued on to Garwood Busby Road in Vernon Parish,

where they discussed whether the defendant would come with her to pick up

Christopher. According to Kristyn, they eventually decided that the defendant

would wait on Garwood Busby Road and that Kristyn would get Christopher and

return to Garwood Busby Road.

Kristyn stated that, when she came back with Christopher, they both got out

of the car. The defendant then emerged from his hiding place and shot Christopher

repeatedly. The forensic pathologist’s testimony indicated that at least two of

Christopher’s wounds would have been fatal, and one of them likely caused

instantaneous death. According to Kristyn, the defendant retrieved as many spent

shell casings as he could find, but he later stated that he had not gotten all of them.

Leaving Christopher’s body behind, the pair returned to Rapides Parish, stopping

for drinks at a drive-thru. Further, Kristyn testified that the defendant disposed of

the gun that he had used to shoot Christopher and of the clothes they were wearing

when the murder occurred. Other testimony indicated that, although Kristyn led

6

investigators to the creek where the defendant disposed of the gun, investigators

were unable to locate the murder weapon.

Kristyn denied that she knew that the defendant was going to kill

Christopher. However, she admitted that she had pled guilty to manslaughter,

conspiracy to commit manslaughter, and obstruction of justice in connection with

Christopher’s murder.5 Additionally, Shayna LeBlanc testified that on the evening

of Christopher’s death, Kristyn had begged her to babysit for Kristyn’s young son

and to keep her cell phone. Ms. Leblanc testified that Kristyn told her that “they”

were going to “beat up Chris.”

However, there was also evidence indicating that there were inconsistencies

in Kristyn’s testimony and that Kristyn had previously offered several versions of

the events surrounding Christopher’s murder. She originally denied being

involved. Later, she stated that the defendant had hidden in the trunk of the car

and had gotten out through the back seat. One of the investigators testified that,

because of the car’s design, it was physically impossible for the defendant to exit

the trunk through the back seat. For some time, Kristyn maintained that the

defendant hid in the trunk and got out of the trunk once they arrived at Garwood

Busby Road.

Further, Kristyn denied that she knew about Christopher’s $400,000.00 life

insurance policy which named her as the beneficiary. However, Jody Thibeaux

testified that Kristyn had told him that she was the beneficiary of a large life

insurance policy on Christopher. Mr. Thibeaux also testified that on June 14,

5
Kristyn was sentenced on those charges after the defendant’s trial. Her convictions and
sentences were affirmed in State v. Hoffpauir, 12-862 (La.App. 3 Cir. 2/6/13), 107 So.3d 146,
and State v. Hoffpauir, 12-865 (La.App. 3 Cir. 2/6/13), 107 So.3d 146.

7

2010, Kristyn told him that she had killed Christopher but that he thought it was a

lie. Additionally, the defense offered evidence that, several years before

Christopher’s murder, family members found a loaded gun in Kristyn’s bedroom.

Additional testimony and evidence corroborated portions of Kristyn’s

testimony. Investigators testified that they retrieved a red convertible from the

defendant’s father’s garage. The investigators testified that the car had front end

damage, including broken lights, and that the car appeared to have been “wiped

down.” However, they were able to identify what they considered to be possible

blood spatter on the car, and some of those samples tested positive for “mammal

blood.” Further, they located the damaged ice chest on the highway, as well as

pieces that appeared to match the convertible’s broken turn signal and fog light.

The defendant chose to testify. The defendant denied conspiring with

Kristyn to murder Christopher and denied that he was present at the murder scene.

The defendant claimed that Kristyn lied to him about the purpose of their late-night

trip to Vernon Parish. His version of the events of June 13-14, 2010, was

substantially similar to Kristyn’s, until the point at which their car struck the ice

chest. The defendant claimed that when he got out to check the damage and to

attempt to speak with the driver of another vehicle that had stopped, Kristyn got

into the driver’s seat of the car and drove off, leaving him stranded on the side of

the road with no phone and no wallet. According to the defendant, Kristyn

returned approximately thirty minutes later, and he noticed nothing odd about her

appearance or behavior thereafter.

In State v. Hollins, 08-1033, p. 4 (La. 6/26/09), 15 So.3d 69, 71-72

(footnotes and citations omitted), the supreme court addressed convictions based

on accomplice testimony, stating:

8

In Louisiana, as a general principle of law, a conviction may be
sustained on the uncorroborated testimony of a purported accomplice,
although the jury should be instructed to treat such testimony with
great caution. However, where there is material corroboration of the
accomplice’s testimony, the cautionary accomplice instruction is not
required.

After reviewing the evidence in the light most favorable to the prosecution,

we conclude that the jury could have found the essential elements of both second

degree murder and conspiracy to commit second degree murder beyond a

reasonable doubt. With regard to the second degree murder charge, the evidence,

most notably Kristyn’s testimony, was sufficient to support a conclusion that the

defendant shot Christopher Hoffpauir multiple times, causing his death. We note

that “the act of aiming a lethal weapon and discharging it in the direction of the

victim supports a finding by the trier of fact that the defendant acted with specific

intent to kill.” State v. Lawson, 08-123, p. 10 (La.App. 5 Cir. 11/12/08), 1 So.3d

516, 524.

With regard to the conspiracy charge, although Kristyn denied that she had

any knowledge that the defendant was going to shoot Christopher, we note that it is

within the jury’s fact-finding authority to accept or reject a witness’ testimony in

whole or in part. Knowing that Kristyn was still awaiting sentencing, the jury

could have rejected Kristyn’s denial of her involvement as an attempt to downplay

her culpability for Christopher’s death. Further, there is additional evidence which

is sufficient to support a conclusion that Kristyn and the defendant agreed to

murder Christopher and took steps to execute their plan, including testimony

concerning Kristyn’s previous knowledge of the life insurance policy, testimony

concerning Kristyn’s statement that “they” were going to “beat up” Christopher,

testimony concerning Kristyn and the defendant’s agreement that the defendant

9

would wait for Kristyn to bring Christopher back to an isolated rural road in the

middle of the night, and testimony that the defendant procured a gun immediately

before he and Kristyn drove to Vernon Parish.

Accordingly, we find no merit to the defendant’s arguments concerning the

sufficiency of the evidence.

Spoliation of Exculpatory Evidence

The defendant also alleges that his constitutional due process protections

were violated by the State’s failure to preserve allegedly exculpatory evidence in

the form of text messages contained on Kristyn’s cell phone.

The record indicates that on July 16, 2010, Kristyn was arrested by Vernon

Parish Sheriff’s deputies. Her cell phone was taken into evidence at that time.

Detective Steven Moss testified that when he examined the phone on that date,

there were approximately ten text messages on the phone, none of which appeared

pertinent to the investigation or to have any evidentiary value. According to

Detective Moss, everything before June 14, 2010, was deleted. He declined to

speculate who had deleted the messages “other than possibly Kristyn herself prior

to her arrest.” At some later date, when the investigators attempted to examine the

phone and its contents again, the texts were no longer on the phone. Detective

Moss testified that he later learned that Kristyn had activated a setting on her

phone which purged her text messages after 30 days and that after doing some

research, he concluded that he would be unable to retrieve them. Although the

State concedes that a certain number of text messages were lost, it is unclear from

the record exactly how many were deleted.

“Spoliation of the evidence” is a term used to refer to intentional destruction

of evidence for the purpose of preventing an opposing party from using the

10

evidence. State v. Crossley, 48,149 (La.App. 2 Cir. 6/26/13), 117 So.3d 585. If

spoliation is established, there is a presumption that the evidence would have been

detrimental to the destroying party’s case. Id. However, if the destruction is

adequately explained, the presumption does not apply. Id. “In criminal cases, an

appellant is not deprived of his due process rights based on the state’s failure to

preserve potentially exculpatory evidentiary material unless bad faith is

demonstrated.” State v. Goosby, 47,772, pp. 13-14 (La.App. 2 Cir. 3/6/13), 111

So.3d 494, 503, writ denied, 13-760 (La. 11/1/13), __ So.3d __. See also Arizona

v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988).

Here, the evidence supports the trial court’s conclusion that there was no

evidence of bad faith on the part of the officers and that the defendant was

therefore not deprived of his due process rights. The testimony was that some of

the text messages at issue had already been deleted when the investigators took

Kristyn’s cell phone into evidence. Further, Detective Moss testified that the few

text messages that were on the cell phone were lost because the investigators were

unaware that the phone had an “auto-delete” setting engaged.

Thus, we find no merit to the defendant’s arguments in this regard.

Excessive Sentence

In his counseled brief, the defendant alleges that his sentences were

unconstitutionally excessive. He contends that the trial court failed to adequately

consider the mitigating factors, including the defendant’s age, work history,

disability, and military service.

The sentence for second degree murder is life imprisonment at hard labor

without the benefit of parole, probation, or suspension of sentence. La.R.S.

14:30.1(B). Mandatory sentences are presumed to be constitutional. State v.

11

Richards, 12-1354 (La.App. 3 Cir. 6/5/13), 114 So.3d 639 (citing State v. Johnson,

97-1906 (La. 3/4/98), 709 So.2d 672). In order for a departure from the mandatory

sentence to be warranted, the defendant must show that he is somehow

exceptional; i.e., that his unusual circumstances result in a sentence that is not

“meaningfully tailored to the culpability of the offender, the gravity of the offense,

and the circumstances of the case.” Id. at 642 (quoting State v. Boutte, 10-928

(La.App. 3 Cir. 3/9/11), 58 So.3d 624, writ denied, 11-689 (La. 10/07/11), 71

So.3d 314). Further, where the sentence is mandatory, the trial court need not

justify its sentence using the factors iterated in La.Code Crim.P. art. 894.1. Id.

Here, the defendant was sentenced to life imprisonment at hard labor,

without the benefit of probation, parole, or suspension of sentence. Having offered

no evidence that he is exceptional for the purposes of sentencing, we find no merit

to his excessive sentence claim with regard to his conviction for second degree

murder.

With regard to the conspiracy conviction, the sentencing provisions of

La.R.S. 14:26 state:

Whoever is a party to a criminal conspiracy to commit any
crime shall be fined or imprisoned, or both, in the same manner as for
the offense contemplated by the conspirators; provided, however,
whoever is a party to a criminal conspiracy to commit a crime
punishable by death or life imprisonment shall be imprisoned at hard
labor for not more than thirty years.

The appellate review of excessive sentence claims was discussed by a panel

of this court in State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01),

779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331. The

panel stated that:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject
any person to cruel or unusual punishment.” To constitute an

12

excessive sentence, the reviewing court must find the penalty so
grossly disproportionate to the severity of the crime as to shock our
sense of justice or that the sentence makes no measurable contribution
to acceptable penal goals and is, therefore, nothing more than a
needless imposition of pain and suffering. State v. Campbell, 404
So.2d 1205 (La.1981). The trial court has wide discretion in the
imposition of sentence within the statutory limits and such sentence
shall not be set aside as excessive absent a manifest abuse of
discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746
So.2d 124, writ denied, 00-0165 (La. 6/30/00); 765 So.2d 1067. The
relevant question is whether the trial court abused its broad sentencing
discretion, not whether another sentence might have been more
appropriate. State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957,
cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Further, an appellate court should take several factors into account when

reviewing excessive sentence claims. A panel of this court addressed those factors

in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ

denied, 03-562 (La. 5/30/03), 845 So.2d 1061, stating:

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an appellate court
may consider several factors including the nature of the offense, the
circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes. State v. Smith, 99-0606 (La. 7/6/00); 766 So.2d 501. While a
comparison of sentences imposed for similar crimes may provide
some insight, “it is well settled that sentences must be individualized
to the particular offender and to the particular offense committed.”
State v. Batiste, 594 So.2d 1 (La.App. 1 Cir. 1991). Additionally, it is
within the purview of the trial court to particularize the sentence
because the trial judge “remains in the best position to assess the
aggravating and mitigating circumstances presented by each case.”
State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, 958.

Because the second degree murder charge carries a mandatory life sentence,

the maximum sentence for the defendant’s conspiracy to commit second degree

murder conviction was thirty years. See La.R.S. 14:26. The defendant was

sentenced to twenty-five years at hard labor to be served consecutively to any other

sentence.

13

The record reveals that the defendant’s crimes were serious and violent.

According to the testimony and evidence, the defendant, in concert with his

accomplice, conspired to lure the victim to a remote location where the defendant

shot the victim multiple times.

In addressing the circumstances of the offender, we observe that the trial

court adequately considered the sentencing factors contained in La.Code Crim.P.

art. 894.1. The trial court found that the defendant was twenty-five years old, had

worked but was then unemployed, was not married and had no children, and was in

the Marine Corps for a short period of time. The record indicates that the

defendant was discharged from the Marine Corps for medical reasons. Further,

although the defendant characterizes himself as “disabled,” the trial court found

that he was in excellent health. The trial court also noted that the defendant had no

history of drug or alcohol abuse and had a prior misdemeanor conviction.

Finally, with regard to sentences in comparable cases, in State v. Texada, 99-

1009 (La.App. 3 Cir. 2/2/00), 756 So.2d 463, writ denied, 00-2751 (La. 6/29/01),

794 So.2d 824, a panel of this court upheld a thirty-year sentence for conspiracy to

commit first degree murder. We note that the defendant in that case was charged

with multiple other felonies and had a prior criminal record. Additionally, the

defendant in Texada ordered his associates to carry out the shooting that resulted in

charges. See also State v. Leger, 04-1467 (La.App. 3 Cir. 6/1/05), 907 So.2d 739,

writ denied, 05-2263 (La. 4/17/06), 926 So.2d 509, cert. denied, 549 U.S. 910, 127

S.Ct. 245 (2006). Here, although the defendant’s criminal record was much less

significant than the defendant in Texada’s, the record indicates that the defendant

did more than direct his co-conspirators to carry out the murder and that he

actually fired the shots.

14

Our review of the record indicates that the defendant’s twenty-five year

sentence neither shocks our sense of justice nor fails to make a meaningful

contribution to acceptable penal goals. Accordingly, we conclude that the trial

court did not abuse its discretion in imposing the defendant’s sentence for

conspiracy to commit second degree murder. The defendant’s arguments

regarding the excessiveness of his sentences are without merit.

Jury Tampering Allegations

In his pro se brief, the defendant contends that unknown persons spoke with

members of the jury while his trial was in recess. The defendant speculates that

these people were friends or members of the victim’s family and that they

improperly influenced the jury. The defendant also contends that the Vernon

Parish Sheriff’s deputy who was accompanying the jurors should have reported the

improper contact to the trial court.

This issue was not presented to the trial court, and the appellate record

contains no evidence concerning this alleged incident. 6 There is not sufficient

evidence in the record for this court to address the defendant’s claims. Thus, this

issue would be more properly considered in an application for post-conviction

relief where an evidentiary hearing can be conducted. See State v. Stringer, 06-800

(La.App. 3 Cir. 12/6/06), 949 So.2d 464, writ denied, 07-04 (La. 9/14/07), 963

So.2d 996.

6
The defendant submitted an affidavit from James Bear concerning the alleged incident.
However, we note that this affidavit was not submitted into the record, and the appellate court
cannot review evidence that is not in the record on appeal or receive new evidence. See Reese v.
Dresser Valve Indus., 10-241 (La.App. 3 Cir. 10/6/10), 48 So.3d 406.

15

Non-unanimous Jury Verdicts

Finally, the defendant asserts that La.Code Crim.P. art. 782, which permits

non-unanimous jury verdicts, is unconstitutional. The record indicates that the

defendant filed a motion to this effect, which was denied by the trial court.

We observe that the Louisiana supreme court rejected this contention in

State v. Bertrand, 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738. Therein, the

Louisiana Supreme Court addressed the United States Supreme Court’s holding in

Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628 (1972), which found that non-

unanimous jury verdicts were permissible in noncapital cases. Finding Apodaca to

be “well-settled law[,]” the Louisiana supreme court reiterated that La.Code

Crim.P. art. 782 withstands constitutional scrutiny. Bertrand, 6 So.3d at 742.

Applying the supreme court’s holding in Bertrand, 6 So.3d 738, we find no

error in the trial court’s rejection of the defendant’s motion in this regard.

Additionally, we observe that the record indicates that the jury verdict in this

matter was unanimous.7

Accordingly, we find no merit to the defendant’s argument in this regard.

DECREE

The convictions and sentences of the defendant, Justin Robert Sizemore, for

one count of second degree murder and one count of conspiracy to commit second

degree murder are affirmed.

AFFIRMED.

7
We acknowledge that the jury verdict sheet has notations that may support a conclusion
that the verdict was not unanimous. However, according to the trial transcript, the jurors, when
polled, indicated that their verdict was unanimous.

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