State of Louisiana v. Chadwick McGhee

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-285

STATE OF LOUISIANA

VERSUS

CHADWICK MCGHEE

**********

APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 176957
HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

CONVICTION VACATED.

Charles A. Riddle, III
District Attorney, Twelfth Judicial District Court
Michael F. Kelly
Assistant District Attorney
P. O. Box 1200
Marksville, LA 71351
(318) 253-5815
COUNSEL FOR APPELLEE:
State of Louisiana

Paula C. Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Chadwick McGhee

Chadwick McGhee
Louisiana State Penitentiary
Main Prison - Walnut 4
Angola, LA 70712
PRO SE

GREMILLION, Judge.

In September 2013, the victim, Jessica Guillot, went missing and has never

been found. On November 14, 2013, Defendant, Chadwick McGhee, was charged

by bill of indictment with one count of second degree kidnapping, in violation of

La.R.S. 14:44.1. The bill of indictment also charged four co-defendants with the

same crime: Asa Bentley, Donnie Edwards, Tamika Williams, and Willie Lee

Price, Jr.1

Following a jury trial, Defendant was found guilty of the lesser included

offense of simple kidnapping, in violation of La.R.S. 14:45. At that time, the State

announced its intent to file a habitual offender bill against Defendant. Defense

counsel then objected to the verdict, and court was adjourned.

On October 30, 2014, a hearing was held on Defendant‟s Motion for New

Trial. Defendant argued for a new trial on two grounds: the verdict was contrary

to the law and evidence, and the discovery of new and previously unavailable

evidence regarding the role Tamika Williams played in the entire incident. The

trial court denied the motion.

On November 12, 2014, Defendant was adjudicated a fourth felony offender

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

suspension of sentence. Defendant‟s appeal of that sentence is addressed in the

companion filing bearing docket number 15-286.

Defendant appeals his conviction, raising three assignments of error through

counsel: (1) the evidence was insufficient to support his conviction; (2) the trial

1
The spelling of various names change throughout the transcript, particularly that of
Tamika Williams. As such, we use the spellings of the co-defendants‟ names as they appear on
the bill of indictment.

court erred in denying his motion for new trial; and (3) the trial court erred in

admitting out-of-court statements made by Asa Bentley, a co-defendant, who was

not subject to confrontation. In addition to the assignments of error presented by

counsel, Defendant has filed a pro se brief raising the following assignments of

error: (1) he was denied his right to appellate review and a complete record; (2) he

was denied his right to testify on his own behalf; and (3) his trial counsel provided

ineffective assistance of counsel by failing to object to the introduction of evidence

of other crimes.2 For the following reasons, Defendant‟s conviction is vacated.

FACTS

The State called six witnesses to testify at trial: Laura Stelly, the victim‟s

mother; Cecil Cooper, the victim‟s fiancé; James Crystal; Tamika Williams, one of

the co-defendants; Detective Roland Patterson of the Avoyelles Parish Sheriff‟s

Office; and Detective Jeremiah Honea of the Avoyelles Parish Sheriff‟s Office.

Stelly testified that the last time she saw her daughter was September 7,

2013, when the victim dropped off her daughter, Javaia, with Stelly. Stelly later

reported her daughter missing on September 11, 2013. Stelly also testified that

Bentley came by her house between the time she last saw her daughter and when

she reported her missing. She testified that Bentley was looking for her daughter

because “she had got him for $175.” Stelly testified that, after Bentley came to her

house, she went to her daughter‟s house and found it “turned over” or ransacked.

Finally, Stelly testified that it was not a new occurrence for her daughter to

disappear, but that she always checked on her kids and came home after a few

days.

2
This court treated Defendant‟s first pro se assignment of error as a motion to supplement
the record with a transcript of voir dire and ordered the trial court to provide a copy of the
transcript of voir dire. The trial court complied with that order.

2

On cross-examination, Stelly testified that Bentley came to her house on a

Saturday morning, but that she did not know the specific date. She reaffirmed her

direct testimony that after speaking to Bentley she went to her daughter‟s house

and found it ransacked, yet nonetheless waited a few days before reporting the

victim missing. She also confirmed that her daughter had a drug problem, would

disappear for days at a time, and had been locked up twice for “flipping out.”

The State then called Cecil Cooper, the victim‟s fiancé, to testify. He

testified that he and the victim had been dating and living together for about three

years, that they had a daughter together named Javaia, and that he was aware of the

victim‟s drug problem. He testified that the victim would sometimes disappear,

but never for more than a night. He stated that the last time he saw the victim was

September 6, 2013, after work. They were going to watch a movie, but he fell

asleep, and she was not home when he woke up the next morning.

Cooper testified that on Saturday, September 7, 2013, he was sent home

from work early, but did not have a car, so he was waiting on a ride home when

Bentley and Defendant came by and agreed to give him a ride home. He identified

Defendant in court. Cooper began giving testimony as to what both Bentley and

Defendant said while they were driving him home. Cooper testified that Defendant

kept repeating that something had happened and Cooper‟s “girl [was] down bad for

what she did.” Cooper stated that he took Defendant‟s comment about “[his] girl”

to mean the victim. Cooper also testified that Bentley then told him that the victim

had stolen Bentley‟s cocaine, and that someone was going to pay. Cooper stated

that he told Bentley he would call the cops, went into his house to find it

ransacked, and at that point Bentley fled the scene, hitting a car that was in

Cooper‟s yard in the process. Finally, he stressed that although the victim would

3

often disappear for a night, she was never gone multiple days, and that he had not

heard from her since September 6, 2013.

On cross-examination, Cooper mostly affirmed his prior testimony and

acknowledged that he knew that the victim had a drug problem and was still using

drugs when she went missing.

The State then called James Crystal, who testified that he saw the victim by

a shed where he was living, on September 7 or 8, 2013, and that he texted Bentley

so that Bentley could get “his stuff back,” meaning the cocaine that the victim had

stolen. Crystal identified Defendant in court, stating that Defendant was with

Bentley when he came to the shed looking for the victim. Crystal then gave

testimony that a Mexican individual came to the shed, left, and Bentley and

Defendant left shortly thereafter. On cross-examination, he reiterated that the

victim was gone before anyone got to the shed.

The State then called Tamika Williams, a co-defendant. Williams admitted

to having a drug problem that has lasted for a couple years, primarily cocaine and

pills. Williams stated that she knew both Bentley and Defendant, whom she

identified in court. She testified that she had been in a sexual relationship with

Bentley, who was also her cocaine dealer. Williams stated that she had known

Defendant for over thirteen years, that she saw Bentley on a daily basis, and that

Defendant was almost always with Bentley. She testified that she knew the victim

because the victim‟s son had the same father as Williams‟ two daughters.

Williams described a phone conversation she had with Bentley on

September 7, 2013, where Bentley told her the victim had stolen money and

cocaine from him the night before, that he wanted it back, and that if he found the

victim he was going to kill her. She then described an incident where she was

4

riding with Bentley, they saw the victim on a back road, and he jumped out and

chased the victim but was unable to catch her.

Williams then testified that a few nights later, Bentley picked her up at her

apartment in Simmesport, and they drove along Louisiana Highway One towards

Mansura. She testified that Bentley was speaking to his brother, Willie Price, and

that they met up with Price in front of the Y-Not-Stop in Mansura. Williams stated

that Price, Donnie Edwards, Defendant, and the victim were all in the same car,

and that Price and Edwards dragged the victim out of the car and handed her over

to Bentley, who dragged her to the Dodge Durango in which he and Williams had

driven to Mansura. According to Williams, Defendant did not move or get out of

the car during this time.

Williams testified that after throwing the victim into the back of the

Durango, Bentley positioned himself on top of her. She further stated that Bentley

began choking the victim, telling her that he wanted his money back or he was

going to kill her, and the victim kept begging him not to kill her. Williams stated

that Edwards began driving the Durango, and that they were following Price back

towards Simmesport. She described hearing choking sounds and what sounded like

someone being hit, but said that she did not see anything because she was texting

her sister and did not look in the back. She stated that the sounds continued for

about ten or fifteen minutes, that she heard the sound of glass breaking, and then

smelled something funny, “[l]ike somebody went to the bathroom on their self.”

Williams said she was then dropped off at her apartment, where she picked up her

child and went to her mother‟s house in Odenburg.

Once she arrived at her mother‟s home, Williams received a call from

Bentley, and shortly thereafter Bentley, Edwards, Price, and Defendant arrived at

5

Williams‟ mother‟s house in the Durango. Williams stated that Defendant had his

head down “like he was crying or sad or something,” and that Bentley told him,

“You know anything I tell you to do you do it.” At that point, all of the males left,

and Williams went inside.

Williams further testified that the following day, Bentley took her to a

nearby field where he claimed he had dumped the victim‟s body, but Williams got

scared and refused to go see the body. Bentley told her he had to move the body.

She then testified that she first contacted the police, pretending to be her friend

Benita Robinson, and told them that “Tamika knew what happened.” Williams

also admitted that the first time she was interviewed, she lied about having been in

the Durango because she was afraid she would get in trouble.

On cross-examination, Williams again admitted that she had previously been

convicted of forgery and that she lied to the police during her initial interactions,

giving a false name when she called and pretending she was not present during the

incident between Bentley and the victim. She also admitted that during her first

interview with the police, she never indicated that Defendant was even present

during the incident. Williams admitted that she had no idea how the victim ended

up in the car with the Defendant and the other before being dragged to the

Durango, what happened after she was returned to her apartment, and again

admitted she did not actually see what had happened in the Durango.

After defense counsel pointed out that Williams had reached an agreement

with the State to testify against all of her co-defendants in exchange for being

released from incarceration after her co-defendants‟ trials were finished, the State‟s

rebuttal consisted of having Williams confirm that the plea agreement called for

“truthful testimony.”

6

The State then called Detective Roland Patterson of the Avoyelles Parish

Sheriff‟s Office. Detective Patterson stated that he was involved in the interview

of Defendant, whom he identified in open court. Detective Patterson then testified

that prior to the interview, Defendant was read his rights and signed the “Standard

Miranda form” indicating that he understood his rights, which had been read to

him, and that he chose to waive those rights in order to give a statement. Finally,

he stated that prior to Defendant‟s interview, no threats or promises were made to

Defendant.

The State then called Detective Jeremiah Honea of the Avoyelles Parish

Sheriff‟s Office. Detective Honea testified that the victim‟s body was never found.

He further stated that the Durango that Williams spoke of at length during her

testimony had been sent to Baton Rouge for forensic tests, and that no forensic

evidence was found inside the car. Detective Honea then described five

photographs of the vehicle and stated that Tomeka Mason, Bentley‟s live-in

girlfriend and the owner of the Durango, had filed a report with the Simmesport

Police Department on September 10, 2013, regarding the vehicle having been

vandalized.

Detective Honea stated that their “break” in the case came when Williams

called in pretending to be Benita Robinson and told police that Williams had

information about the victim. Like Detective Patterson, Detective Honea identified

Defendant in open court and testified that he interviewed Defendant and that

Defendant signed a waiver of his rights prior to the interview.

The State moved to admit Defendant‟s prior interview into evidence, but

defense counsel objected on the basis that it was not freely and voluntarily given.

The trial court recessed the jury to determine if the interview was freely and

7

voluntarily given, while under the impression that the interview contained a

confession. After the jury was returned to the courtroom, the trial court informed

them that the video was not a confession, but merely an interview Defendant gave

to detectives, and that they should give whatever weight they felt it deserved, as

they would any other witness. The entire interview was then replayed for the jury.

The interview contained a long story told by Defendant to Detectives

Patterson and Honea in which Defendant claimed he saw the victim at a barbecue

around the time she disappeared, that he saw her leave the barbecue, and that he

had not seen her since. He specifically denied ever being in a car with her in the

Mansura area. He stated everything was “cool,” that he had no knowledge of the

victim taking anything from Bentley, and that people asked him the next day if he

had seen the victim. Defendant stated that he had ridden in a car with Price before

but just for errands. Defendant vehemently denied any knowledge of why Bentley

was looking for the victim, claiming that Bentley never told him why he was

looking for her.

On cross-examination, Detective Honea again testified that the Durango in

question was tested for evidence, and no evidence was found. He also admitted

that despite searching multiple other vehicles, there is no forensic evidence linking

Defendant, or any of the co-defendants, to the case. He admitted that the entire

investigation was based on what they were told by Williams, noting that her

testimony and information has changed as time has progressed. Finally, he

admitted that the only evidence, other than Williams‟ testimony, that any incident

ever occurred between Simmesport and Mansura was the broken window in

Mason‟s car, which was reportedly vandalized.

8

On re-direct, Detective Honea testified that when Mason reported the car

vandalized, she told him that Bentley had been driving the car the night before. At

that point, the State rested its case. Closing arguments were presented. After the

State concluded its argument, defense counsel moved for a mistrial on the basis of

La.Code Crim.P. art. 770(2), which mandates a mistrial on the grounds of

introduction of “other crimes” evidence. The trial court denied this motion

because evidence related to the ransacked house had been introduced without

objection during trial.

ASSIGNMENT OF ERROR NUMBER ONE AND
PRO SE ASSIGNMENT OF ERROR NUMBER TWO

Counsel‟s first assignment of error, and Defendant‟s second pro se

assignment of error, is that the evidence was insufficient to support Defendant‟s

conviction for simple kidnapping, in violation of La.R.S. 14:45. Simple

kidnapping is defined as “The intentional and forcible seizing and carrying of any

person from one place to another without his consent.” La.R.S. 14:45(A)(1).

The analysis for an insufficient evidence claim is well settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however, the
record must reflect that the state has satisfied its burden of proving the
elements of the crime beyond a reasonable doubt.

9

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant argued that the evidence, when viewed in the light most favorable

to the State, shows only that he was present when Bentley and the other individuals

actually committed the kidnapping of the victim. The State responded that

Defendant was convicted as a principal to the kidnapping. Since no evidence was

ever presented during trial that Defendant forcibly seized or carried the victim, the

jury‟s verdict of guilty of simple kidnapping appears to agree with the State‟s

argument that Defendant was convicted as a principal.

Under La.R.S. 14:24, “[a]ll persons concerned in the commission of a crime,

whether present or absent, and whether they directly commit the act constituting

the offense, aid and abet in its commission, or directly or indirectly counsel or

procure another to commit the crime, are principals.” As stated, no evidence was

introduced that established that Defendant personally committed the offense, or

that he counseled or procured another to commit the crime. As such, Defendant

could only be a principal if the State proved that he did “aid and abet” in the

commission of the offense. See La.R.S. 14:24.

“[A]n individual may only be convicted as a principal for those crimes for

which he personally has the requisite mental state.” State v. Brooks, 505 So.2d 714,

717 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337 (1987). Additionally,

“[i]t is not enough to find merely that his coconspirator or accomplice had the

necessary mental state, since this intent cannot be inferred to the accused.” State v.

Holmes, 388 So.2d 722, 726 (La.1980). As previously noted by the supreme court,

this court “must evaluate the evidence in a light most favorable to the [S]tate and

determine whether [a] possible alternative hypothesis is sufficiently reasonable

that a rational juror could not have found proof of guilt beyond a reasonable

10

doubt.” State v. Mitchell, 99-3342, p. 7 (La. 10/17/00), 772 So.2d 78, 83 (citing

State v. Davis, 92-1623, (La. 5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975,

115 S.Ct. 450 (1994)). We find that the State has failed to prove the mental intent

necessary to find Defendant guilty of simple kidnapping.

Viewing the evidence presented at trial in a light most favorable to the State,

it is apparent that the State presented evidence which showed the intent of co-

defendants Bentley, Edwards, and Price to kidnap the victim. Under La.R.S.

14:11, “in the absence of qualifying provisions, the terms „intent‟ and „intentional‟

have reference to „general criminal intent.‟” As such, simple kidnapping is a

general intent crime. The question in this case is whether the State proved beyond

a reasonable doubt that Defendant, the only defendant actually on trial, had the

necessary intent to be a principal to that kidnapping. Since the Holmes court

prohibits inferring the intent of one co-defendant to another, the State must prove

that Defendant had the intent to aid or abet in the kidnapping of the victim. The

State has failed to meet this burden of proof.

The State presented evidence from two separate witnesses that Defendant

was with Bentley when he was looking for the victim. Viewing the testimony of

both Cooper and Crystal in the light most favorable to the State, the testimony

established that Defendant knew Bentley was looking for the victim, but fails to

identify how Defendant would have known that Bentley intended to kidnap and

possibly do physical harm to her. Cooper testified that Bentley told him

“somebody was going to have to pay [Bentley] his money, that somebody was

going to get hurt.” This is the only testimony that could possibly have provided

proof that Defendant knew Bentley intended to harm the victim, a statement that

11

could easily have been seen as an attempt to intimidate her fiancé into paying

Bentley for the cocaine he claimed the victim stole from him.

Williams testified that Bentley told her on multiple occasions that he was

going to kill the victim if he found her; however, those conversations took place

between Williams and Bentley, with no evidence that Defendant had any

knowledge of them at all. Williams also testified that when Edwards and Price

handed the victim over to Bentley in Mansura, Defendant never moved to help, he

remained in the other car while Bentley allegedly choked the victim to death in the

back of his girlfriend‟s Durango, and he “had his head down like he was crying or

sad or something.”

The State argues that it proved that Defendant had the intent to provide aid

to Bentley during the kidnapping because, after the incident took place, Bentley

made a comment to Defendant that “Whatever I tell you to do, you do it.”

However, when asked whether that comment was made in a joking fashion or if it

was a threat, Williams‟ response was, “It wasn‟t in no [sic] joking way.”

Additionally, there is no indication what the “it” Bentley referred to actually was.

Louisiana courts have frequently held that mere presence during a crime does not

make an individual a principal to the crime; however, it is sufficient

encouragement that the accomplice is standing by ready to give some aid if

needed, provided the principal is actually aware of the accomplice‟s intention. See

State v. Acker, 12-1116 (La.App. 3 Cir. 4/3/13), 111 So.3d 535; State v. Anderson,

97-1301 (La. 2/6/98), 707 So.2d 1223; State v. Mason, 10-284 (La.App. 5 Cir.

1/11/11), 59 So.3d 419, writ denied, 11-306 (La. 6/24/11), 64 So.3d 216. The

State, therefore, relies on what appears to be a threat from Bentley to Defendant to

12

support its argument that Defendant was a principal to the kidnapping of the

victim.

While the State may have proven the co-defendants had the intent and

performed the actions which would constitute kidnapping the victim, it failed to

prove that Defendant was guilty of anything other than being in the same place as

his friend, Bentley. At most, the State proved that Defendant was present when the

victim was kidnapped and failed to stop the kidnapping or report it to authorities,

so-called misprision of a felony. However, while misprision may be unsavory, it

ceased to be a crime in Louisiana after 1942. See State v. Jackson, 344 So.2d 961

(La.1977), disavowed on other grounds by State v. Chism, 436 So.2d 464

(La.1983).3

In conclusion, the evidence presented at trial, when viewed in the light most

favorable to the State as required by Jackson, failed to prove that Defendant had

the requisite intent to kidnap the victim.4 As Louisiana law does not entertain the

notion of “guilt by association,” Defendant‟s conviction is vacated as having been

supported by insufficient evidence. See State v. Schwander, 345 So.2d 1173

(La.1977) (citing State v. Williams, 310 So.2d 513, 515 (La.1975).

3
Misprision is now only a crime in relation to treason. La.R.S. 14:114.
4
Defendant was initially charged with second degree kidnapping, and the jury was
additionally informed of responsive verdicts of attempted second degree kidnapping, simple
kidnapping, and attempted simple kidnapping. All of these crimes require the general criminal
intent to forcibly seize and carry a person from one place to another without her consent. Failure
to prove that intent with regard to simple kidnapping would therefore render it impossible for the
State to have proved any of the other responsive verdicts.

13

REMAINING ASSIGNMENTS OF ERROR

Because Defendant‟s conviction is vacated, Defendant‟s remaining

assignments of error, both counsel-filed and pro se, are rendered moot and need not

be addressed.

DECREE

Defendant‟s conviction is vacated.

CONVICTION VACATED.

14