State of Louisiana v. Sherman R. Holloway

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-460

STATE OF LOUISIANA

VERSUS

SHERMAN R. HOLLOWAY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 91523
HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and D. Kent Savoie, Judges.

AFFIRMED IN PART AND
REVERSED IN PART.

Asa Allen Skinner
District Attorney, 30th Judicial District
Terry Wayne Lambright
First Assistant District Attorney
P. O. Box 1188
Leesville, LA 71446
Telephone: (337) 239-2008
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
Telephone: (337) 491-0570
COUNSEL FOR:
Defendant/Appellant – Sherman R. Holloway

THIBODEAUX, Chief Judge.

This case arises from a mistrial ordered sua sponte by the trial court

because of a legal defect in the proceedings which would have made the verdict

reversible as a matter of law.

Defendant, Sherman Holloway, was charged by bill of information with

first degree rape, a violation of La.R.S. 14:42(A)(3); aggravated kidnapping, a

violation of La.R.S. 14:44; armed robbery, a violation of La.R.S. 14:64; home

invasion, a violation of La.R.S. 14:62.8; and aggravated battery, a violation of

La.R.S. 14:34. After the jury was sworn and testimony had begun, the trial court

noticed that Holloway had been charged with two offenses punishable by life

imprisonment by bill of information rather than a true bill of indictment. Upon this

finding, the trial court declared a mistrial as to all charges.

Holloway was subsequently charged by grand jury indictment with the

aforementioned charges. Holloway filed a Motion to Quash Indictment on the Basis

of Double Jeopardy. After a hearing, the trial court denied Holloway’s motion and

the case proceeded to trial on all charges. Holloway was found guilty of all charges.

Holloway was sentenced to concurrent sentences of life at hard labor without

benefits for first degree rape and aggravated kidnapping; fifty years at hard labor

without benefits for armed robbery; twenty years at hard labor for home invasion;

and, ten years at hard labor for aggravated battery.

On appeal, Holloway asserts that the trial court erred in declaring a

mistrial as to the charges of armed robbery, home invasion, and aggravated battery

as there was no legal defect in charging the crimes by bill of information. Thus,

Holloway contends that his Motion to Quash as to these charges should have been

granted, as the protection against double jeopardy prohibited him from being retried

on those charges. For the following reasons, we find that the trial court erred in

failing to grant Holloway’s Motion to Quash.

I.

ISSUES

We must decide:

(1) whether the trial court erred in declaring a
mistrial as to the charges of armed robbery,
home invasion, and aggravated battery;

(2) whether the retrial of the charges of armed
robbery, home invasion, and aggravated battery
violate the prohibition against double jeopardy;
and,

(3) whether the trial court erred in denying
Holloway’s Motion to Quash.

II.

FACTS AND PROCEDURAL HISTORY

At trial, the victim, T.D.1, testified that she was getting ready for work

on the morning of July 10, 2016, when Holloway knocked on her door and asked if

she needed her grass cut. T.D. stated that she could not afford to pay him, and

Holloway left. A little while later, Holloway again knocked on T.D.’s door and

offered to cut her grass for free. Holloway went to T.D.’s backyard, where she

proceeded to show him the lawnmower. T.D. then returned inside to finish getting

ready for work. A few minutes later, T.D. saw Holloway in her bedroom holding a

knife. Holloway pinned T.D. between the wall and the bed and told her to “drop her

1
In accordance with La.R.S. 46:1844(W), initials are used to preserve the confidentiality
of crime victims who are minors and victims of sex offenses.

2

drawers and lay down on the bed.” When T.D. told Holloway “no,” Holloway

started looking around the room “like he was looking for something to restrain” her.

T.D. was afraid of what would happen, so she did as Holloway said.

Holloway forced himself into T.D. by penetrating her vagina while he

had a knife in his hand. Holloway put the knife to T.D.’s throat and threatened to

kill her if she did not stop crying. Holloway then forced T.D. to perform oral sex on

him, followed by attempted anal sex. After Holloway ejaculated, he took T.D.’s cell

phone, wallet, and pocketknife. Holloway gave T.D. her wallet and told her to take

him to the ATM, where he wanted T.D. to withdraw $20.00 from her account. T.D.

stated that Holloway made her go out of the house in front of him and that she

complied out of fear for her life. When Holloway went to move his bike, T.D. ran

to her vehicle and drove away. T.D. then went to a friend’s house who was waiting

on her to go to work. T.D. and her friend drove to the police station, and from there

she went to the hospital where a rape kit was performed. T.D. identified Holloway

from a six-person lineup. DNA found near her pubic area was consistent with YS

& R profile of Holloway.

Police officers located Holloway by using technology from AT&T to

“ping” T.D.’s cell phone to an apartment. Holloway was arrested after stating his

name and being read his Miranda Rights. The officers brought Holloway to the

Leesville Police Department where he admitted that he used a knife to threaten T.D.

into having nonconsensual sex and took her cell phone and pocketknife.

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III.

STANDARD OF REVIEW

The decision by the trial court to grant or deny a motion to quash is

solely a question of law. State v. Byrd, 96-2302, (La. 3/13/98), 708 So.2d 401. Thus,

an appellate court reviews the trial court’s ruling under de novo standard. State v.

Ancalade, 14-739, (La.App. 4 Cir. 1/14/15), 158 So.3d 891, writ denied sub nom.

State ex rel. Ancalade v. State, 15-375 (La. 1/8/16), 184 So.3d 691, cert. denied sub.

nom. Ancalade v. Louisiana ___U.S. ___ 136 S.Ct. 2467 (2016). Under this standard

of review, the appellate court does not defer to any factual findings by the trial court.

Id.

IV.

LAW AND DISCUSSION

Louisiana Code of Criminal Procedure Article 591 provides:

No person shall be twice put in jeopardy of life or
liberty for the same offense, except, when on his own
motion, a new trial has been granted or judgment has been
arrested, or where there has been a mistrial legally ordered
under the provisions of article 775 or ordered with the
express consent of the defendant.

Louisiana Code of Criminal Procedure Article 775 Provides:

A mistrial may be ordered, and in a jury case the
jury dismissed, when:

(1) The defendant consents thereto;

(2) The jury is unable to agree upon a verdict;

(3) There is a legal defect in the proceedings which
would make any judgment entered upon a verdict
reversible as a matter of law;

(4) The court finds that the defendant does not have
the mental capacity to proceed;

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(5) It is physically impossible to proceed with the
trial in conformity with the law; or

(6) False statements of a juror on voir dire prevent
a fair trial.

Upon motion of the defendant, a mistrial shall be
ordered, and in a jury case the jury dismissed, when
prejudicial conduct in or outside of the courtroom makes
it impossible for the defendant to obtain a fair trial, or
when authorized by Article 770 or 771.

A mistrial shall be ordered, and in a jury case the
jury dismissed, when the state and the defendant jointly
move for a mistrial.

Since both first degree rape and aggravated kidnapping are punishable

by life imprisonment, they must be charged by grand jury indictment. Louisiana

Constitution Article 1, § 15 and La.Code Crim.P. art. 382. Holloway was originally

charged with these offenses by bill of information. Consequently, a legal defect in

the proceeding which would have made any judgment reversible as a matter of law

existed. State v. Ruple, (La.App. 2 Cir. 1983), 437 So.2d 873. Thus, a mistrial as to

those charges was legally ordered pursuant to La.Code Crim.P. art. 775(3), a retrial

of those offenses was not barred by double jeopardy. La.Code Crim.P. art. 591.

It is not clear, however, whether the mistrial was legally ordered as to

the offenses of armed robbery, aggravated battery, and home invasion, since those

offenses were properly charged by bill of information. Holloway’s appellate counsel

alleges that since there was no “legal defect” as to these charges, Holloway had the

constitutional right to have his trial completed by the jury before which he had been

placed in jeopardy. The State argues that a “partial mistrial” is not sanctioned by

either the Louisiana Code of Criminal Procedure or the Louisiana Supreme Court.

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However, in State v. Diggs, 43,740, pp. 7-9 (La.App. 2 Cir. 12/10/08),

1 So.3d 673, 678-79, writ denied, 09-141 (La. 10/2/09), 18 So.3d 101 (footnote

omitted), the second circuit stated the following regarding “partial mistrials”:

Neither the state nor the defense has set forth any
legal authority allowing (or disallowing) the granting of
the partial mistrial-that is, the granting of a mistrial on
some by not all of the counts charged in the indictment.
The state cites cases in which the trial court has granted a
mistrial on some but not all of the counts in instances when
the jury has been unable to agree on a verdict under La. C.
Cr. P. art. 775(2). See State v. McCain, 583 So.2d 160
(La.App. 3d Cir. 1991), writ denied, 588 So.2d 1115 (La.
1991).

In State v. Mitchell, 319 So.2d 357, 358-359 (La.
1975), the court discussed the trial court’s power to grant
partial relief when there were several grounds in the
motion to quash. It reasoned:

Article 3 of the Louisiana Code of Criminal
Procedure provides:

“Where no procedure is specifically
prescribed by this Code or by statute the court
may proceed in a manner consistent with the
spirit of the provisions of this Code and other
applicable statutory and constitutional
provisions.”

As to the court’s authority, Article 17 provides in
part:
“A court possesses inherently all
powers necessary for the exercise of its
jurisdiction and the enforcement of its law
orders, including authority to issue such writs
and orders as may be necessary or proper in
aid of its jurisdiction. . . . ”

In State v. Edwards, 287 So.2d 518 (La. 1973), in
interpreting the Code of Criminal Procedure in an instance
where it was silent, this Court stated:

“The provisions of our Code of Criminal Procedure
are intended ‘to provide for the just determination of
criminal proceedings.’ They are to be construed ‘to secure
simplicity in procedure, fairness in administration, and the

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elimination of unjustifiable delay.’” La.Code Crim. Proc.
art. 2.

***

“Where the law is silent in such cases, the inherent
authority of the court would permit a rule of reason
requiring the proceedings to be conducted with dignity and
in an orderly and expeditious manner. La.Code
Crim.Proc. art. 17.”

Harmless Error

Harmless error analysis begins with the premise that
the evidence is otherwise sufficient to sustain the
conviction if viewed from the perspective of a rational
factfinder and asks whether beyond a reasonable doubt the
error could not have contributed to the verdict actually
returned. See State v. Haddad, 1999-1272 (La.2/29/00),
767 So.2d 682, U.S. cert. denied. The inquiry, in other
words, is not whether, in a trial that occurred without error,
a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial
was surely attributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

As argued by the state, it was permissible, but not
required for all four offenses to be joined in the same
indictment under La. C. Cr. P. art. 493. Furthermore, La.
C. Cr. P. art. 495.1 allows for the severance of joined
offenses and separate trials when it appears that a
defendant is prejudiced by joinder. Clearly, there was
little chance or prejudice here because the defendant was
tried before a judge only. It would stand to reason that
since all four counts were not required to be joined in the
same indictment, the trial court had the power to grant
partial relief in a case such as the one sub judice, where
the Louisiana Code of Criminal Procedure is silent on the
procedure to be followed. Furthermore, any error would
have been harmless because the guilty verdict actually
rendered in this trial was surely unattributable to the error.
Sullivan v. Louisiana, supra. The evidence of the
defendant’s guilt presented at trial was clearly sufficient.
No trial occurred in the denial of a full mistrial.

The second circuit again addressed the validity of a “partial mistrial” in

State v. Higginbotham, 46,975 (La.App. 2 Cir. 4/25/12), 122 So.3d 1, rehearing

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granted (June 22, 2012), writ denied, 12-1718 (La. 5/24/13), 116 So.3d 658.

Because of an error in recording the testimony of two State witnesses, the defendant

requested a mistrial as to all of the offenses for which he was on trial—malfeasance

in office, felony theft, and public contract fraud. Higginbotham, 122 So.3d at 7. The

trial court, however, granted a partial mistrial as to the public contract fraud charge

only. On appeal, the defendant argued that because the partial mistrial ruling was

made after the State had presented all of its evidence as to public contract fraud, the

State directly violated La.Code Crim.P. art. 770(2) which provides:

Upon motion of defendant, a mistrial
shall be ordered when a remark or comment,
made within the hearing of the jury by the
judge, district attorney, or a court official,
during the trial or in argument refers directly
or indirectly to:

....

(2) Another crime committed or
alleged to have been committed by the
defendant as to which evidence is not
admissible;

....

An admonition to the jury to disregard the remark
or comment shall not be sufficient to prevent a mistrial. If
the defendant, however, requests that only an admonition
be given, the court shall admonish the jury to disregard the
remark or comment but shall not declare a mistrial.

Id. at 12.

In Higginbotham, the second circuit originally agreed with the

defendant, finding that a partial mistrial was not recognizable by either Louisiana’s

criminal code or the Louisiana Supreme Court:

From this review, we find that the state’s entire case
for public contract fraud could not be sufficiently
withdrawn from the jury’s consideration by the

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admonition given by the trial court. The evidence of the
crime involving Higginbotham’s surreptitious conduct for
the municipal purchases from his person business was
highly prejudicial to his asserted defense for the two
crimes for which he as convicted. Additionally, a total
measure for a harmless error analysis cannot be given
because of the same reason which caused the partial
mistrial, the incomplete transcript. Moreover, a partial
mistrial is not recognized in the criminal code apparently
for the same policy expressed in Article 770(2), which in
mandatory terms requires a complete mistrial. The
Louisiana Supreme court has never sanctioned a partial
mistrial in its prior rulings, and therefore, we conclude that
the mandate from the legislature under Article 770(2) must
be followed in this unique setting and that the convictions
must be reversed.

Id. at 17.

The second circuit granted rehearing, however, to revisit the court’s

finding that a partial mistrial was clear error. The court cited its prior opinion in

Diggs, where the court held that the trial court had the power to grant a partial

mistrial even though the law was silent as to that issue. The court in Higginbotham

further found that because of the overwhelming evidence of guilt as to the counts for

which the defendant was convicted, the jury’s verdicts were surely attributable to

any error in granting a partial mistrial.

As in Diggs, it was permissible, but not required, for all five of

Holloway’s offenses to be joined in the same indictment under La.Code Crim.P. art.

493. Thus, the trial court should have declared a partial mistrial as to the offenses

that were improperly charged by bill of information (first degree rape and aggravated

kidnapping) and allowed trial to proceed as to the charges properly charged by bill

of information (armed robbery, aggravated battery, and home invasion).

Consequently, the mistrial declared as to the offenses of armed robbery, aggravated

battery, and home invasion were not “a mistrial legally ordered under the provisions

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of Article 775.” La.Code Crim.P. art. 591. Therefore, Holloway’s second trial

violated his protection against double jeopardy as to armed robbery, aggravated

battery, and home invasion, unless the mistrial was ordered with Holloway’s express

consent. La.Code Crim.P. art 591. According to La.Code Crim.P. art. 775(1), a

mistrial is lawful if made with a defendant’s consent. We must now discuss whether

Holloway consented to the declaration of the mistrial as to all charges in the first

trial.

At trial, the court stated that the mistrial ruling had been discussed with

counsel in chambers. When the trial judge stated that a mistrial must be ordered

because of the State’s failure to properly charge first degree rape and aggravated

kidnapping, he then asked both the State and defense counsel if they agreed that

mistrial was the proper procedure. The State responded that it acknowledged the

decision of the court, and defense counsel responded, “Understood, Judge.” No

objection was made to the mistrial until defense counsel filed the motion to quash.

In State v. Lawson, 338 So.2d 627 (La.1976), the supreme court found

that the defendant’s failure to object to the mistrial as improper constituted an

acquiescence to the mistrial which, therefore, waived any complaint that the court-

ordered mistrial violated his double jeopardy rights.

Subsequently, the supreme court distinguished Lawson in State v.

Simpson, 371 So.2d 733 (La.1979). In Simpson, the trial court declared a mistrial

sua sponte after a State witness testified. The trial court explained that the jury may

have been left with the impression that the witness was lying about his prior

convictions. According to the supreme court, the record indicated no response to

the mistrial was made by either the defendant or his attorney. The court in Simpson

discussed the issue as follows:

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In the instant case, the defense contends that the
defendant did not consent to the mistrial, apparently on the
basis of the absence in the record of any specific
agreement to that effect. The State in turn argues that the
defendant did consent to the ruling or, in the alternative,
that the trial judge was authorized to grant the mistrial sua
sponte because “a legal defect in the proceeding (the
allegedly improper questions asked by the defense
attorney). . . would make any judgment entered upon the
verdict reversible as a matter of law.” C.Cr.P. 775(3). We
note at the outset that this latter provision is inapplicable
to the instant situation—a judgment acquitting the
defendant would not be appealable, and a conviction
certainly would not be reversed on the basis of questions
asked by defense counsel. Therefore, it is clear that the
trial judge was not authorized to declare a mistrial on his
own motion, and, as a result, the defendant’s consent was
necessary to the proper granting of the mistrial. The
question raised, therefore, is whether this consent must be
“the express consent of the defendant” of Article 591.

Although Article 775 provides that a mistrial may
be granted and the jury dismissed when “(t)he defendant
consents thereto,” it does not further define consent.
However, comment (e) to this article states that it must be
considered in light of Article 591, in which “the express
consent of the defendant” is required for the ordering of a
mistrial (emphasis added). The record of the first trial
reveals only that the defense pursued a line of questioning
which the State found objectionable, and that, after a
bench conference, the trial judge ordered a mistrial to
which ruling the defense did not object. Clearly, the
express consent required by Article 591 cannot be found
in the record before the court.

Id. at 737 (footnote omitted).

In Simpson, the supreme court noted the result in Lawson was correct

since the defense attorney brought the objectionable question (which led to the

mistrial) to the attention of the trial judge and was not satisfied with an admonition

by the trial judge. Additionally, as the party aggrieved by the objectionable question,

the defense benefitted from the mistrial. The supreme court then explained why the

reasoning in Lawson could not be applied to the case before it:

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Nevertheless, the reasoning underpinning the
Lawson decision cannot be applied to the case at hand.
Comment (d) to Article 775 states that a defendant must
object to an improper mistrial and reserve a bill of
exceptions or be considered to have acquiesced in the
court’s ruling. In essence the comment is a statement that
the provisions of Article 841 (as originally enacted) apply
to a mistrial situation, and that the general legislative
policy requiring contemporaneous objection to any
irregularity and reservation of a bill of exceptions must be
followed.

However, it is apparent that contemporaneous
objection and reservation of a bill are not applicable to a
plea of double jeopardy. As originally drafted, Article 841
did not require a bill to be reserved for “a ground for arrest
of judgment under Article 859 . . .,” one of which is double
jeopardy. Moreover, it is clear that requiring a
contemporaneous objection to an improperly granted
mistrial does not advance the purpose of the rule, which is
to put the trial judge on notice of the alleged irregularity
and to provide him with the opportunity to correct the
problem during trial. State v. Dupre, 339 So.2d 10
(La.1976); State v. Charles, 326 So.2d 335 (La. 1976).
When a mistrial is declared, the jury is dismissed.
(Compare the effect of granting a motion for acquittal,
even when erroneously granted. State v. Hurst, 367 So.2d
1180 (La. 1979). Unless the defendant anticipates the
declaration of a mistrial, the trial ends without the
opportunity to object. See United States v. Jorn, [400 U.S.
470, 91 S.Ct. 547 (1971)]. Therefore, comment (d) is not
a complete statement of the law; it must be considered
with comment (e), and can apply only to mistrials granted
for the defendant’s benefit. United States v. Jorn, supra;
Note, 32 La.L.Rev. 145 (1971).

In the instant case, the State was not clearly entitled
to a mistrial. Although the prosecution may have believed
its case prejudiced by the defense questions put to Ursin,
its remedy was redirect examination to rehabilitate the
witness and rebut the inferences arising from the cross-
examination. Nevertheless, the trial judge granted a
mistrial, for the prosecution’s benefit, without obtaining
the “express consent” of the defendant. By aborting the
proceedings without the defendant’s consent and without
his interest in mind, the trial judge impermissibly deprived
the defendant of his right to have his trial completed by the
jury before which he had been placed in jeopardy. We

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therefore conclude that the trial judge was in error to deny
the defendant’s plea of double jeopardy.

Id. at 738-39 (footnote omitted).

In State v. Albert, 430 So.2d 1279 (La.App. 1 Cir.), writ denied, 433

So.2d 711 (La.1983), the court found Albert’s silence to a trial judge’s sua sponte

mistrial was deemed as consent when the trial court asked defense counsel if he had

any objections, and defense counsel replied that he had none. In State v. DeGrate,

25732 (La.App. 2 Cir. 3/30/94), 634 So.2d 965, writ denied, 94-1362 (La. 10/7/94),

644 So.2d 630, however, the second circuit found the defendant’s silence did not

constitute consent to a trial court’s sua sponte mistrial when the mistrial did not

benefit the defendant.

More recently, in State v. Copelin, 16-264 (La.App. 4 Cir. 12/7/16), 206

So.3d 990, writ denied, 17-47 (La. 9/29/17), 227 So.3d 286, the court found that the

defendant failed to preserve his double-jeopardy claim involving the trial court’s sua

sponte mistrial when he neither objected to the mistrial nor invoked the automatic

stay provided for in La.Code Crim. P. art. 775.1. That article provides:

If a judge orders a mistrial, then upon motion of
either the state or the defendant, the court shall order an
automatic twenty-four-hour stay of all proceedings in
which either the state or the defendant may take an
emergency writ application to the appropriate reviewing
courts with appellate jurisdiction, including the Supreme
Court. The jury shall not be released pending the stay
unless both the state and defendant agree to release the
jury.

In this case, however, Holloway had already filed a motion to sever the

offenses. The trial court denied Holloway’s motion and proceeded with the first trial

before ordering a mistrial on its own motion. Thus, it is reasonable to conclude that

Holloway did not benefit from the mistrial as to all of the offenses. Rather, had the

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trial court proceeded as to only the offenses properly charged by bill of information,

Holloway would have received the benefit of at least a partial severance. Here, we

find Holloway’s lack of objection should not be considered acquiescence or consent

to the mistrial. Therefore, without Holloway’s consent to the mistrial and without a

legal basis for granting the mistrial as to the offenses that could be tried by bill of

information, the retrial of those offenses in the second trial violated the principle of

double jeopardy. Thus, Holloway’s motion to quash should have been granted as to

the offenses of armed robbery, home invasion, and aggravated battery.

Although there was a legal defect in the first trial as to the charges of

first degree rape and aggravated kidnapping, there was no legal defect in the first

trial as to the charges of armed robbery, home invasion, and aggravated battery. We

find that a partial mistrial could have been declared as to the charges of first degree

rape and aggravated kidnapping, so that the first trial could have proceeded as to the

charges of armed robbery, home invasion, and aggravated battery. Therefore,

Holloway’s convictions for armed robbery, home invasion, and aggravated battery

are reversed.

V.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s convictions of first

degree rape and aggravated kidnapping, and reverse the convictions of armed

robbery, home invasion, and aggravated battery.

AFFIRMED IN PART AND REVERSED IN PART.

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