State of Louisiana v. Stacy Tyrone Johnson, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
19-201

STATE OF LOUISIANA
VERSUS
STACY TYRONE JOHNSON, JR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 13232-16
HONORABLE GUY E. BRADBERRY, JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W.
Perry, Judges.

CONVICTION AFFIRMED;
SENTENCE VACATED AND
REMANDED WITH INSTRUCTIONS.

Katherine M. Franks
Louisiana Appellate Project
P. O. Box 220
Madisonville, LA 70447
(225) 485-0076
Counsel for Defendant-Appellant:
Stacy Tyrone Johnson, Jr.

John F. DeRosier
District Attorney
Fourteenth Judicial District
Jacob Johnson
Assistant District Attorney
Elizabeth B. Hollins
Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
Counsel for Appellee:
State of Louisiana

PERRY, Judge.

Defendant, Stacy Tyrone Johnson, Jr., appeals his conviction for first degree

murder, a violation of La.R.S. 14:30. We affirm Defendant’s conviction and remand

to the trial court for resentencing.

FACTS AND PROCEDURE

On Sunday afternoon, June 5, 2016, the Lake Charles City Police were called

to a reported car crash at the intersection of Macy and Hodges Streets, involving

Robert Colston (“Mr. Colston”). T.Z. and J.L., two juvenile witnesses, told the

police that they observed the victim, Mr. Colston, seventy-nine years of age, driving

northbound on Bilbo Street before turning eastbound on Macy Street. According to

these witnesses, they observed a black male juvenile acquaintance, known to them

as Stacy and later identified as Defendant, prior to the accident traveling on a bicycle;

he was cycling westbound on Macy Street and then he was observed turning

southbound on Bilbo Street toward N. Railroad Avenue. Shortly after Defendant

left their sight, the juvenile witnesses heard a single gunshot. T.Z. ran inside to wake

her mother and then called 9-1-1 to report the accident.

As the emergency medical personnel removed Mr. Colston from the truck, it

became apparent he had suffered a gunshot wound in his upper back. About an hour

later, Mr. Coltson died at the hospital. When his personal belongings were

inventoried, it was discovered Mr. Colston had over $1,300.00 in cash on his person.

The police then transported the witnesses to the police station. After looking

at a laptop, the witnesses navigated the internet, where they identified Defendant on

a Facebook page. The witnesses later confirmed that after the shooting on June 5,

at approximately 5:57 p.m., Defendant contacted them via cell phone, advising them

to keep quiet and not to tell anyone about him having been in the area. Defendant,

whose date of birth is January 11, 2000, was then arrested.

A grand jury first indicted Defendant, who was sixteen years of age at the time

of this crime, with second degree murder. Subsequently, the grand jury issued an

amended indictment, charging Defendant with first degree murder. On September

15, 2017, the State filed notice not to seek capital punishment; rather, it sought life

imprisonment at hard labor without the possibility of parole pursuant to La.Code

Crim.P. art. 878.1.

Prior to trial, the State provided notice to use multiple videos—a phone video

taken about two days before the murder which showed Defendant apparently

rehearsing an armed robbery and pretending to shoot someone, and videos from

Facebook posted several months prior to the charged offense, showing him posing

with firearms. After the trial court ruled the State could not introduce this evidence

as either “integral act evidence” or “other crimes evidence,” this Court granted the

State’s writ application, in part, and denied it in part, stating, in pertinent part:

With respect to the “fake shooting” videos, this court finds the
trial court abused its discretion in finding the videos inadmissible where
the State’s theory of the case offered at the hearing on September 19,
2017 is the alleged first degree murder occurred during the commission
of an attempted armed robbery. It is, however, important to note that
this court is merely ruling on the preliminary admissibility of this
evidence. “[T]he admissibility of this [integral act] evidence is always
subject to change if any of these relevant considerations change.” State
v. Taylor, 16-1124, p. 19 (La. 12/1/16), 217 So.3d 283, 296. Should
the trial court find during trial that evidence of an attempted armed
robbery is not at issue, the trial court may exclude the “fake shooting”
videos.

Although the State offered a theory that the murder occurred
during an attempted armed robbery during the September 19, 2017
hearing, it is impossible for this court to determine the exact nature of
the State’s case from the bill of indictment, which simply charges that
Defendant “committed First Degree Murder of Robert Colston, Sr., in
violation of LSA R.S. 14:30.” Additionally, while Defendant has stated
intent is not an issue, but rather identity is the only issue for trial, this
court recognizes “Defendant is not bound by a pre-trial statement that
intent will not be contested.” Taylor, 217 So.3d at 295. In the event
Defendant presents evidence there was an accidental shooting or an
alternative scenario which makes the videos relevant, the State may
introduce the “fake shooting” videos as rebuttal evidence.

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With respect to the remaining videos, this court cannot say the
trial court abused its discretion in finding the prejudicial effect
outweighs the probative value to the extent the videos should be
deemed inadmissible as integral act or other crimes evidence under
La.Code Evid. arts. 403 and 404.

[E]ven when the other crimes evidence is offered for a
purpose allowed under Article 404(B)(1), the evidence
must have substantial relevance independent from
showing defendant’s general criminal character and thus
is not admissible unless it tends to prove a material fact at
issue or to rebut a defendant’s defense.

Taylor, 217 So.3d at 292.

Accordingly, the trial court’s ruling that the “fake shooting”
videos are inadmissible is vacated. The State’s writ is denied in all
other respects.

State v. Johnson, 17-851 (La.App. 3 Cir. 9/20/17) (unpublished opinion).

Later, after the trial court interpreted this court’s pre-trial writ ruling to mean

all of the videos were admissible, Defendant sought a writ, seeking clarification of

this Court’s prior writ ruling. In this latter ruling, this Court stated the fake shooting

video was “admissible as integral act evidence in the State’s case-in-chief if the State

offered evidence that the first degree murder occurred during the commission of an

attempted armed robbery of the victim” and could be admissible as rebuttal evidence

if relevant to a defense presented by Defendant; this Court further stated, “the trial

court did not abuse its discretion in ruling the videos of the Defendant taken from

Facebook . . . were not admissible.” State v. Johnson, 17-859 (La.App. 3 Cir.

9/21/17) (unpublished opinion). Ultimately, all of the videos would be admitted at

trial.

A jury trial was held from September 18, 2017 through September 26, 2017.

On September 20, 2017, Defendant moved to quash the petit jury venire or, in the

alternative, sought a subpoena duces tecum and recess to conduct an inquiry into the

jury selection process. In his motion, Defendant voiced concern that over 25% of

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the Calcasieu Parish residents were African American, yet the first thirty-one jury

veniremen called included only two African American females and two African

American males. Finding no merit to Defendant’s motions, the trial court found

Defendant failed to prove “fraud has been practices [sic], or some great wrong

committed that would work irreparable injury to this defendant” under La.Code

Crim.P. art. 419.

A unanimous jury convicted Defendant of first degree murder. On March 14,

2018, the trial court sentenced Defendant as follows:

I understand in this case the gravity in considering what was set
forth in Miller [v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012)] and
Montgomery [v. Louisiana, ___U.S.___, 136 S.Ct. 718 (2016)], and
consider it –and the Court did consider Blakely v. Washington, [545
U.S. 296, 124 S.Ct. 2531 (2004)] and did consider its progeny in
determining the extent to which a juvenile offender would be subject
under R.S. 14:30. And that’s mandatory life without imprisonment –
without benefit of parole or probation.

This Court can only conclude – Mr. Stacy Tyrone Johnson,
would you please stand? This Court can only conclude that after the
U.S. Supreme Court has spoken and the Louisiana legislature has
adopted, although clearly without much guidance, that the mandate set
forth in Miller vs Alabama, Montgomery vs Louisiana, and Blakely vs
Washington, that as a result of this sentence –considering the sentencing
range without an investigation that life imprisonment with the benefit
of parole or probation after 25 years is warranted. As a result, this Court
is going to rule the same.

Defendant now appeals his conviction and sentence, arguing two assignments

of error. First, the trial court erred in denying his motion to quash the jury venire or

alternatively to issue subpoenas duces tecum. Secondly, the trial court erred in

admitting the evidence discussed in the two emergency writs sought during trial

without the State presenting a theory of murder during an attempted armed robbery.

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ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors

patent on the face of the record. We find the trial court’s statement that it was going

to “rule the same” was not sufficient to impose a sentence on Defendant.

Louisiana Code of Criminal Procedure Article 871 provides, in pertinent part,

as follows: “A sentence is the penalty imposed by the court on a defendant upon a

plea of guilty, upon a verdict of guilty, or upon a judgment of guilt.” In the early

case of State v. Burks, 202 La. 167, 172, 11 So.2d 518, 519-20 (1942), prior to the

enactment of our Louisiana Code of Criminal Procedure, “sentence” as used in

criminal law was defined as “the pronouncement by the judge of the penalty or

punishment as the consequence to the defendant of the fact of his guilt.”

In State v. Jones, 517 So.2d 402, 406 (La.App. 5 Cir. 1987), writ denied, 522

So.2d 560 (La.1988), overruled on other grounds by State v. Monk, 532 So.2d 1143

(La.1988), the court explained, “The purpose of requiring the defendant’s presence

at sentencing and of pronouncing the sentence in open court is to insure the

defendant is apprised of the punishment imposed, See C.Cr.P. arts. 835, 871 and

comments thereunder.” See also State v. Kinchen, 11-9 (La.App. 3 Cir. 6/8/11), 71

So.3d 344.

In State v. Young, 18-858 (La.App. 3 Cir. 5/15/19), 271 So.3d 422, a case with

a similar sentencing issue, this court reviewed a scenario where the trial court neither

orally stated for the record its reasons for sentence nor the actual sentence; rather, it

merely referenced the written sentencing document. As a result, this court vacated

defendant’s sentence, and on remand, instructed the trial court to pronounce

defendant’s sentence orally in open court and record it in the court minutes as

La.Code Crim.P. art. 871 required.

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Here, the trial court did not pronounce Defendant’s sentence in open court;

rather, it merely referred to Miller, Montgomery, and Blakely, and simply stated

without specificity to Defendant’s conviction, “considering the sentencing range

without an investigation that life imprisonment with the benefit of parole or

probation after 25 years is warranted. As a result, this Court is going to rule the

same.” We find that this was insufficient to comply with our law as the sentencing

colloquy did nothing to ensure Defendant was apprised of the particular punishment

imposed. Accordingly, we vacate Defendant’s sentence, and on remand, the trial

court is instructed that Defendant’s particularized sentence must be pronounced

orally in open court and recorded in the court minutes as required by La.Code

Crim.P. art. 871.

Before addressing Defendant’s assignments of error, we further bring three

additional sentencing errors to the trial court’s attention which must be corrected on

remand for resentencing. First, the trial court must impose the sentence at hard labor

as provided in La.R.S. 14:30(C)(2). Second, because Defendant was under the age

of eighteen when he committed the murder, the trial court is only authorized to

impose Defendant’s sentence with the benefit of parole after serving twenty-five

years. La.Code Crim.P. art 878.1(A) and La.R.S. 15:574.4(E). There is no statutory

authority for the trial court to order Defendant’s sentence to be served with the

benefit of probation. Finally, the trial court must correctly inform Defendant that he

has two years after the conviction and sentence become final to seek post-conviction

relief. La.Code Crim.P. art. 930.8. As this court recently stated in State v. Breaux,

18-771, p. 6 (La.App. 3 Cir. 3/13/19), 269 So.3d 1046, 1051, “Rather than the date

of sentencing in the trial court, the two-year time limitation commences either when

the defendant fails to perfect an appeal, La.Code Crim.P. art. 914, or after a timely

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appeal has been perfected and a judgment has become final, La.Code Crim.P. art.

922.”

ASSIGNMENT OF ERROR NO. 1

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

denying his motion to quash the jury venire without an evidentiary hearing and

without granting subpoenas duces tecum to investigate the jury selection process.

Defense counsel contented was that the jury venire did not contain enough African

Americans to “reflect the racial composition of the parish and the jury list provided

to counsel did not reflect the racial identity of the potential jurors or of those excused

prior to trial.”

The requirements for quashing a general jury venire are provided in La.Code

Crim.P. art. 419, which states, in pertinent part:

A. A general venire, grand jury venire, or petit jury venire shall
not be set aside for any reason unless fraud has been practiced, some
great wrong committed that would work irreparable injury to the
defendant, or unless persons were systematically excluded from the
venires solely upon the basis of race.

In State v. Clark, 12-508, pp. 97-98 (La. 12/19/16), 220 So.3d 583, 662, cert.

granted, judgment vacated on other grounds, ___U.S.___, 138 S.Ct. 2671 (2018),

the supreme court set forth the proof necessary for the granting of a motion to quash

the jury venire, specifically noting that the defendant bears the burden of proving

purposeful discrimination in the selection of jury venires:

This court has long recognized the procedural device for alleging
that “the petit jury venire was improperly drawn, selected or
constituted” is a motion to quash. LSA–C.Cr.P. art. 532(9); State v.
Edwards, 406 So.2d 1331, 1347 (La. 1981); State v. Collins, 359
So.2d 174, 177 (La. 1978). The defendant did not file a motion to quash
on this basis, in accordance with the form or timeliness requirements
set forth in LSA–C.Cr.P. arts. 521, 535(C), and 536, and therefore
waived his objection. LSA–C.Cr.P. art. 535(D); Edwards, 406 So.2d
at 1347; Collins, 359 So.2d at 177.

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Moreover, LSA–C.Cr.P. art. 419(A) provides, “A petit jury
venire shall not be set aside for any reason unless fraud has been
practiced, some great wrong committed that would work irreparable
injury to the defendant, or unless persons were systematically excluded
from the venires solely upon the basis of race.” The burden of proof
rests on the defendant to establish purposeful discrimination in the
selection of grand and petit jury venires. State v. Sheppard, 350 So.2d
615, 651 (La. 1977) (citations omitted). See also State v. Lee, 559
So.2d 1310, 1313 (La. 1990); State v. Loyd, 489 So.2d 898, 903 (La.
1986); State v. Liner, 397 So.2d 506, 516 (La. 1981); State v.
Manning, 380 So.2d 54, 57 (La. 1980). The defendant did not meet
that burden, and the trial court did not err in overruling his improperly
raised, untimely, and unsupported objection without an evidentiary
hearing. This assignment of error is without merit.

Although Defendant contends is that a disproportionately small number of

African Americans appeared in the jury venire, he does not allege fraud or systematic

exclusions. Indeed, although Defendant contends that 25.5% of Calcasieu Parish is

African American, the motion to quash presented to the trial court has no

attachments and thus lacks any evidentiary support for this claim. Furthermore, our

review of the record shows that the motion to quash has numerous unfilled blank

spaces, references a “Mr. Crawford” as the defendant in multiple locations, and

discusses the jury-selection procedure from Caddo Parish throughout, concluding in

the final page of the motion:

In the alternative, this Court should continue this trial for three
days and issue a subpoena duces tecum to Hon. Gary Loftin, Clerk of
Court for the First Judicial District Court, Eugene R. Bryson, Jr., Court
Administrator for the First Judicial District, the Deputy Court
Administrator for the First Judicial District, and the Jury Coordinator
for the First Judicial District to produce: for the petit jury venire
summonsed for this trial week: the jury summonses, the returns of jury
summonses, the record of any discretionary excusals prior to
assignment to courtrooms, the lists of jurors assigned to each section of
this Court.

Indeed, the very last sentence in the motion requests three days for counsel to

“analyze the documents provided by Judge Bryson and make a more complete

showing to this Court on the fair cross-section and equal protection claims made in

this motion.” Despite the inaccuracies contained in Defendant’s motion, we do note,

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however, that the correct individuals involved in the present case are properly

identified at the beginning of the motion to quash. Also, as noted above, there are

numerous blank spaces in the motion, particularly with regard to the percentages of

African Americans in the venire and Defendant’s claim that it is routine:

5) The Census Bureaus’ 2012 estimates for Calcasieu Parish reflect
that African Americans represent 25.5% of the population of adults in
the parish. African American Males represent 12.75% of the
population of adults in the parish. By contrast, of the venire members
whose race is known, only ___% are African American and only ___%
are African American males.

6) This represents a relative disparity of some ___% between the
parish population of African Americans and those represented on the
venire. It also represents a staggering ___% relative disparity between
the parish population of African American males and those represented
on the venire.

7) This is not a one-off vagary of random jury selection in this
parish and district. In the ____trial of __________ conducted in this
courthouse in ________, 201_, only ____% of the venire presented for
voir dire were African American males.

Within Defendant’s motion to quash, he cited the following standard for

establishing a prima facie violation of the right to a petit jury selected from a

representative cross section of his community:

The Supreme Court recently explained the Duren [v. Missouri, 439 U.S.
357, 99 S.Ct. 664 (1979)] test as follows:

To establish a prima facie violation of the fair-cross-
section requirement, this Court’s pathmarking decision in
Duren instructs, a defendant must prove that: (1) a group
qualifying as “distinctive” (2) is not fairly and reasonably
represented in jury venires, and (3) “systematic exclusion”
in the jury-selection process accounts for the
underrepresentation. 439 U.S., at 364, 99 S.Ct. 664; see
supra, at 1387-1388.

Berghuis v. Smith, --- U.S. ---, 130 S.Ct. 1382, 1392 (2010).

We find, after carefully reviewing the record, that Defendant’s motion failed

to actually establish either the second or third requirement, as, aside from an

unsubstantiated claim regarding the results of the 2012 census estimates, it did not

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provide any basis for the claim that African Americans were not fairly represented.

Furthermore, the motion did not address any other cases or otherwise establish

“systematic exclusion.” Instead, Defendant’s motion attempted to rely upon Scott

v. Schedler, 11-926, (E.D. La. 1/22/13) (unpublished opinion), which found the

Louisiana Secretary of State, the Department of Health and Hospitals, and the

Department of Children and Family Services were in violation of the National Voter

Registration Act and issued an injunction directed to Tom Schedler, in his capacity

as Secretary of State. We note, however, that as of June 15, 2016, the injunction

against Secretary Schedler has been vacated. See Scott v. Schedler, 826 F.3d 207

(5th Cir. 2016). Furthermore, we find that even if Louisiana’s failure to comply with

the National Voter Registration Act could be considered sufficient to meet

Defendant’s burden of proving “systematic exclusion” under Duren, 439 U.S. 357,

the motion still failed to establish that African Americans were not fairly and

reasonably represented.

Defendant’s motion to quash also raised an Equal Protection claim and noted:

41) The Supreme Court has articulated a framework for establishing
whether such a discriminatory purpose exists in the context of jury
selection in a criminal case:

The first step is to establish that the group is one that is a
recognizable, distinct class, singled out for different
treatment under the laws, as written or as applied. . . . Next,
the degree of underrepresentation must be proved, by
comparing the proportion of the group in the total
population to the proportion called to serve as grand
jurors, over a significant period of time. . . . Finally, a
selection procedure that is susceptible of abuse or is not
racially neutral supports the presumption of discrimination
raised by the statistical showing.

Castaneda v. Partida, 430 U.S. 482, 494-495 (1977) (citations
omitted).

Again, Defendant’s motion failed to establish the degree of

underrepresentation. As such, we find the trial court was correct to deny the motion

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to quash the jury venire, particularly in light of La.Code Crim.P. art. 419(A)’s

requirement that Defendant prove fraud, irreparable harm to Defendant, or exclusion

based solely on race.

Defendant now relies upon State v. Cannon, 19-590 (La. 4/18/19), 267 So.3d

585, for support that his motion to quash the jury venire should have been granted.

In Cannon, the supreme court stated the following:

Stay lifted. Writ granted. Defendant has shown that, under the system
employed in East Baton Rouge Parish, persons born after June 2, 1993,
otherwise qualified to serve on the jury, were never given an
opportunity to serve, because their names were excluded from the
general venire as a result of a significant error in the process by which
the general venire was composed. That exclusion resulted in a general
venire that was improperly constituted under Code of Criminal
Procedure articles 401 et seq. and Louisiana Constitutional Articles I, §
3 (“No person shall be denied the equal protection of the laws.”) and V,
§ 33 (“A citizen of the state who has reached the age of majority is
eligible to serve as a juror within the parish in which he is domiciled.”).
Accordingly, we grant defendant’s application to reverse the rulings of
the courts below, grant defendant’s motion to quash the general venire,
and remand to the district court for further proceedings so that a petit
jury can be chosen from a general venire that is selected according to
law. See State v. Jacko, 444 So.2d 1185 (La. 1984); State v. Procell,
332 So.2d 814 (La. 1976).

Id. at 585-86. In his concurring opinion, Justice Guidry stated:
Given the unique posture and circumstances of this case, I agree
that commencing jury selection from a newly constituted venire is
prudent, both out of an abundance of caution and to prevent a possible
waste of judicial resources. Notwithstanding, this court, in my view,
has not been directed to any constitutional provision or jurisprudence,
whether federal or state, that would mandate quashing the general jury
venire because of a software glitch that unintentionally excluded
potential jurors born after June 2, 1993, and I withhold my judgment on
that issue.

Id. at 586.

From the outset, we observe that Defendant has failed to state what prejudice

he believes he suffered by the trial court’s denial of his motion to quash or alternative

motion for subpoena duces tecum. Furthermore, because this court has already

upheld the validity of the jury selection process in Calcasieu Parish, Defendant in

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fact suffered no prejudice. State v. Edwards, 19-461 (La.App. 3 Cir. 6/21/19)

(unpublished opinion). The Cannon decision was based upon a computer glitch that

categorically excluded anyone born after June 2, 1993, because the East Baton

Rouge Parish database from which jurors were called for jury duty had not updated

in nearly a decade. This court considered a similar claim directly involving

Calcasieu Parish in. A majority of this court issued the following ruling:

WRIT GRANTED AND MADE PEREMPTORY: The State seeks
review of the trial court’s June 18, 2019 ruling granting Defendant’s
motion to quash the jury venire. In his written “Motion to Quash The
Venire,” Defendant alleged that the software used in Calcasieu Parish
to pull eligible venire persons from the voter registration database is
updated once every three years. Because any individual that registered
to vote since the last update would be excluded from the jury venire,
Defendant alleged that this process resulted in the exclusion of those
individuals, namely those individuals ages eighteen, nineteen, and
twenty. Relying upon State v. Cannon, 19-590 (La. 4/18/19), 267 So.3d
585, the trial court found the process used in Calcasieu Parish excluded
a cognizable group of individuals and granted the motion to quash the
jury venire in its division only.

The group of people excluded from the jury venire under the
process used in the present case encompasses those persons who have
registered to vote since the last update, whether the registration is
because of age, moving into the parish, or for some other unknown
reason. Thus, the group is not limited to persons who are the ages of
eighteen, nineteen, and twenty. Additionally, both state and federal
cases have declined to find a group of eighteen to twenty-year-old
persons to be a cognizable community group. State v. McKinney, 302
So.2d 917 (La.1974); State v. Taylor, 303 So.2d 169 (La.1974); and
Johnson v. McCaughtry, 92 F.3d 585 (7th Cir. 1996), cert. denied, 519
U.S. 1034, 117 S.Ct. 596 (1996). Even if considered a cognizable
community group, Defendant has not established that the temporary
exclusion of this group from the jury venire because of an established
process is an unreasonable means of accomplishing the orderly
administration of justice. See Hamling v. United States, 418 U.S. 87,
94 S. Ct. 2887 (1974).

Finally, we find Cannon is distinguishable from the present case.
In Cannon, persons born after June 2, 1993, otherwise qualified to serve
on the jury, were never given the opportunity to serve based on a
significant error in the process by which the general venire was
composed. On the contrary, in the present case individuals who have
registered to vote since the last update are temporarily excluded from
jury service because of a properly functioning process – a process that
has not been proven to be an unreasonable means of accomplishing the

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orderly administration of justice. See Hamling, 418 U.S. 87.
Accordingly, the trial court’s ruling granting Defendant’s motion to
quash is reversed, and the case is remanded for further proceedings
consistent with this decision.

Id.

Given this court’s prior ruling that the Calcasieu Parish process of selecting

jurors accomplishes the orderly administration of justice and is valid, in addition to

Defendant’s highly deficient motion to quash and failure to allege any prejudice, we

find Defendant’s assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

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

erred in admitting a video and Facebook photos without first presenting evidence

that an armed robbery was intended. Specifically, Defendant contends the trial court

failed to require the State to introduce evidence of an armed robbery before

introducing the evidence, in violation of this court’s rulings in docket numbers 17-

851 and 17-859. Defendant notes that the video and photos were introduced after

this court’s initial ruling in 17-851 but before our clarification in 17-859.

This court’s rulings regarding admissibility of the “fake shooting” video

essentially established that the State could introduce the video if it presented a theory

that Defendant murdered Mr. Colston during an attempted armed robbery. During

opening statements, the State told jurors:

You’ll learn that this was a crime of opportunity. This was a
crime that happened to an old man known to Mr. Johnson, an old man
that traveled along the road where Mr. Johnson lived, very often, an old
man that was known to carry large amounts of money. And evidence
is going to show that he had more than $1,000 in cash on him when he
was killed. And, again, like I said, Mr. Colston owned rental houses.
He would go to collect rent.

Additionally, Sergeant Franklin Fondel, one of the lead detectives on the case,

testified:

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In my investigation, I knew from time-to-time that he [Mr.
Colston] would go around and collect rent money. I learned that in my
investigation. But I never - - you know, that would probably have him
with a large amount of cash with him going around from time-to-time
and collecting rent money from his tenants.

Furthermore, when asked if he had any theory on Defendant’s intent, Sergeant

Fondel stated “the motive would have been as of a robbery.” Following this court’s

clarification ruling in docket number 17-859, defense counsel moved for a mistrial

based upon the State’s presentation of the “fake shooting” video:

As the Court originally ruled, it’s highly prejudicial evidence,
and it makes a difference even - - now, we have seen no evidence of a
robbery or an attempted robbery at this point other than what can be
inferred in a very attenuating way that here’s a man who was known to
carry cash, and he perished of a gunshot wound and the damage and the
loss of blood from that. But that’s in - - other than that it’s just
innuendo. They don’t have any armed robbery evidence in the record
before the jury gets to see this highly prejudicial evidence which we
now know the Court of Appeals was saying would have been premature
to admit.

Even if the State, which has yet to be demonstrated that they can
or will, even if the State now brings evidence of an armed robbery or
an attempted armed robbery, the damage is done because the jury now
looks at - - the risk is too great that the jury has already [been] greatly
influenced before they saw anything that the State will contend is
evidence of an armed robbery, and they might be more inclined to
consider marginal evidence as being credible evidence of an armed
robbery. The cart was before the horse.

The State argued Sergeant Fondel’s testimony was at least circumstantial

evidence and thus satisfied this court’s instruction that the State could introduce the

video “if the State offered evidence that the first degree murder occurred during the

commission of an attempted armed robbery of the victim, Robert Colston, Sr.”

Johnson, 17-859. The trial court then denied the mistrial request, specifically

finding Sergeant Fondel’s testimony was sufficient to justify introduction of the

video.

We find that based on the jury instructions, it is clear the State argued as a

theory of the case Mr. Colston was murdered during an attempted armed robbery.

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In particular, we note the jury instructions include the following definition of first

degree murder: “First degree murder is the killing of a human being when the

offender acted with a specific intent to kill or to inflict great bodily harm and in

addition the offender was engaged in the commission or attempted commission of

armed robbery.” The instructions then define armed robbery and attempt before

informing the jury that the State must prove Defendant killed Robert Colston, Sr.

and that either Mr. Colston was over sixty-five years old or the murder occurred

when Defendant “was engaged in the commission or attempted commission of

armed robbery.” Additionally, the State argued during closing arguments that

Defendant could be guilty of murder under two separate theories, noting it would be

sufficient to find either that Defendant was attempting to rob Mr. Colston or simply

that Mr. Colston was over the age of sixty-five.

The jurisprudence is clear that the State is allowed to argue alternative theories

of a crime. In State v. Harmon, 13-1211, pp. 20-21 (La.App. 3 Cir. 6/4/14), 139

So.3d 1195, 1208-09, writ denied, 14-1309 (La. 2/6/15), 158 So.3d 814 (emphasis

added), this court discussed the State’s argument that a murder could be second

degree murder either as felony murder or specific intent murder:

In this case, the defendant was convicted of second degree
murder, a violation of La.R.S. 14:30.1. For the jury to have convicted
the defendant of that offense, it had to have found that the state
established beyond a reasonable doubt that the defendant killed Ms.
Wood and that he either had the specific intent to kill her or inflict great
bodily harm or that he committed the offense during the commission of
another felony, including aggravated or forcible rape. Id. The record
does not indicate the finding on which the jury based its verdict.

In State v. Patorno,01–2585 (La.App. 1 Cir. 6/21/02), 822 So.2d
141, the trial court instructed the jury that it could either find that the
defendant charged with second degree murder had the specific intent to
kill or inflict great bodily harm on the victim or that he killed the victim
during the perpetration of a listed felony. After his conviction, the
defendant argued on appeal that ten jury members required to convict
“may not have reached the necessary agreement to support a second
degree murder conviction under the same theory” based on the

15

evidence and the jury instructions. Id. at 148. The first circuit held that
“a jury is not constitutionally required to agree on a single theory to
convict a defendant where it is instructed as to alternate theories.
Thus, a conviction can be upheld if there is sufficient evidence based
on either of the alternate theories with which the jury is charged.” Id.
at 149 (citations omitted).

Here, the record does not indicate the theory under which the jury
convicted the defendant of second degree murder. If the verdict was
based on felony murder, the only evidence at trial pertaining to rape
was the autopsy report. Thus, the autopsy report would be the basis for
more than proof of the fact and cause of death. However, evidence
other than the autopsy report was sufficient to show that the killer had
the specific intent to kill the victim or inflict great bodily harm on the
person of Ms. Wood. The jury convicted the defendant of the offense
and, based on the holding in Patorno, 822 So.2d 141, we find that
evidence was sufficient for the jury to convict him on the specific intent
theory of the offense. Thus, while we find that the trial court erred in
allowing the coroner’s report to be introduced into evidence, we find
this to be harmless error. We find no merit in this assignment of error.

In the present case, we find that the State’s use of the “fake shooting” video

complied with this court’s orders in docket numbers 17-851 and 17-859, as there

was testimony presented invoking robbery as the motive for the shooting. Under

La.Code Evid. art. 404(B), evidence of other crimes, wrongs, or bad acts may be

admissible for purposes:

[S]uch as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, of the nature of any such evidence
it intends to introduce at trial for such purposes, or when it relates to
conduct that constitutes an integral part of the act or transaction that is
the subject of the present proceeding.

We find that there was no error in the trial court’s admission of the “fake

shooting” video. Despite Defendant’s claim that introduction of the video was pre-

textual because the prosecutor acknowledged armed robbery was not necessary for

this to be a first degree murder, there is no precedent that suggests the existence of

a stronger alternate theory automatically makes the pursuit of a weaker theory

“pretextual.” As noted above, the State may argue multiple theories of a crime.

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Defendant also contends the trial court erred when it allowed photos taken

from Facebook which depicted Defendant with firearms to be introduced after

initially declaring them too prejudicial. Defendant contends this court’s rulings in

docket numbers 17-851 and 17-859 denied “the State the right to use the videos from

Facebook.” To the contrary, we find the language in both rulings was simply that

the trial court did not abuse its discretion in ruling the Facebook videos/photos were

too prejudicial under La.Code Evid. art. 403. As recently reiterated by the supreme

court in State v. Coleman, 14-402, p. 39 (La. 2/26/16), 188 So.3d 174, 205, cert.

denied, ___ U.S. ___, 137 S.Ct. 153 (2016), “The trial court has broad discretion in

weighing the probative versus prejudicial value of evidence under La. C.E. art. 403,

and its ruling on the admissibility of evidence pursuant to La. C.E. art. 404B(1) will

not be disturbed absent an abuse of discretion.”

The Facebook images were introduced during the cross-examination of

Defendant’s brother, Brandale Johnson. Defense counsel first asked Mr. Johnson

whether he saw Defendant with a firearm specifically .the day Mr. Colston was shot.

On cross-examination, defense counsel objected to the State asking Mr. Johnson

about two photographs that depicted Defendant with a gun, arguing “I only ever

asked this witness about that day and that occasion.” The State correctly noted it is

not limited on cross-examination to matters upon which defense counsel questioned

a witness. The trial court overruled the objection, “I think this door was clearly

opened when this witness was called. This is in direct contravention. He’s

impeaching this witness as to his testimony. It’s clearly appropriate cross-

examination. I deny the objection and allow him to proceed.”

Mr. Johnson identified State’s Exhibit 54 as a photograph of him and

Defendant “playing with fake guns.” Our review of the record shows that this

photograph is a selfie taken by Mr. Johnson with Defendant behind him holding a

17

gun toward the camera. He acknowledged the photo was taken some time around

June 2016. Mr. Johnson then denied seeing Defendant carry guns, claiming any

testimony that Defendant frequently carried guns was false. Mr. Johnson then

acknowledged State’s Exhibit 55 was a selfie Defendant took, using the phone of

Mr. Johnson’s girlfriend. The photograph showed Defendant holding a real gun.

Although Defendant again complains that trial counsel only asked Mr.

Johnson about Defendant carrying a gun on the day of the shooting, the State was

correct that defense counsel’s questions do not control the State’s cross-examination.

Under La.Code Evid. art. 611(B), “A witness may be cross-examined on any matter

relevant to any issue in the case, including credibility.” As previously noted by the

fourth circuit, “A trial court’s ruling admitting/permitting the introduction of

evidence carries with it an implicit conclusion that the trial court found the probative

value of the evidence was not substantially outweighed by the danger of unfair

prejudice, as per La. C.E. art. 403.” State v. Cox, 15-124, p. 10 (La.App. 4 Cir.

7/15/15), 174 So.3d 131, 137, writ denied, 15-1557 (La. 10/10/16), 207 So.3d 407.

Although prior to trial the court initially ruled the photographs in question

were inadmissible, it nonetheless has the authority to change its ruling regarding

admissibility as the circumstances change during trial. Indeed, this court noted in

its ruling on the “fake shooting” video in docket number 17-851 that our ruling was

only preliminary, and that circumstances during trial might alter the admissibility of

any given evidence. Given that Mr. Johnson stated he had not seen his brother carry

guns, we cannot say the trial court abused its discretion in allowing the State to

introduce photographic evidence that Defendant had previously carried guns. See

Coleman, 188 So.3d 174.

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In light of the above, we find the trial court did not err when it admitted either

the “fake shooting” video or the photographs of Defendant holding a gun. Therefore,

we find Defendant’s assignment of error is without merit.

DISPOSITION

We affirm Defendant’s conviction. We vacate Defendant’s sentence and

remand this matter to the trial court for resentencing in accordance with the

foregoing instructions.

CONVICTION AFFIRMED; SENTENCE VACATED AND
REMANDED WITH INSTRUCTIONS.

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