State of Louisiana v. Jason Lee Lopez

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-722

STATE OF LOUISIANA

VERSUS

JASON LEE LOPEZ

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 3155-21
HONORABLE KENDRICK J. GUIDRY, DISTRICT JUDGE

**********

LEDRICKA J. THIERRY
JUDGE

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Court composed of D. Kent Savoie, Candyce G. Perret, and Ledricka J. Thierry,
Judges.

AFFIRMED.

Stephen C. Dwight
District Attorney
Post Office Box 3206
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

David S. Pipes
Assistant District Attorney
901 Lakeshore Drive
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Douglas Lee Harville
Louisiana Appellate Project
Post Office Box 52988
Shreveport, LA 71135
(318) 222-1700
COUNSEL FOR DEFENDANT/APPELLANT:
Jason Lee Lopez

THIERRY, Judge.

Defendant, Jason Lee Lopez, was convicted of manslaughter, in violation of

La.R.S. 14:31, and racketeering, in violation of La.R.S. 15:1353. He was sentenced

to forty years at hard labor for the manslaughter conviction and twenty years at

hard labor for the racketeering conviction, to run consecutively and without the

benefit of probation, parole, or suspension of sentences. He now appeals his

convictions, alleging that the trial court erred in several respects, specifically, in

that the State failed to prove Defendant would have committed or would have

planned to commit any future crimes in Louisiana, thereby not proving beyond a

reasonable doubt that Defendant was guilty of racketeering; that Defendant’s

constitutional right to confront the witnesses against him was violated when the

State asked substantive questions of Boyd Hagood, who invoked his Fifth

Amendment rights; and that the trial court’s ordering of Defendant to serve the

maximum sentence for manslaughter consecutively to a twenty-year racketeering

sentence was excessive. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On August 2, 2017, the body of Dustin Hammons was found. On January

28, 2021, Defendant, Jason Lee Lopez, was charged with second degree murder of

Dustin Hammons, in violation of La.R.S. 14:30.1, and racketeering, in violation of

La.R.S. 15:1353.

On February 10, 2022, Defendant proceeded to trial. Through the evidence

and testimony, the following facts were adduced. At the time of Hammons’ death,

Defendant was a member of the Aryan Brotherhood of Texas (“ABT”). The ABT

assigned Defendant (also known as “Kasper”) to assist Boyd Hagood (also known

1

as “Lurch”) in his methamphetamine operation in and around Houston, Texas.

Defendant provided services as an enforcer and debt collector, among other things.

The deceased, Hammons, was employed by Hagood as part of the drug distribution

network. Hammons was suspected of stealing from Hagood’s car.

Ashlyn Brown testified at trial. Brown knew Hagood because she lived with

him and Hammons. Brown also knew Defendant, as he would show up to

Hagood’s house and run errands with him. Brown believed the men went out to

pick up money from people, and she admitted to seeing the men together with

drugs.

On August 1, 2017, Brown, Defendant, Hagood, and Hammons traveled

from Texas to Louisiana to allegedly collect money. Brown testified that tensions

escalated on the drive to Louisiana, with Defendant hitting Hammons and taking

Hammons’ phone from him. At one point, Hammons tried to run away on foot

during a stop. He was subdued and put back in the car. Brown stated that after

returning to the car, Hammons begged for his life and asked not to be killed.

Brown also testified that she saw Defendant make Hammons hold his hand and

said, “You’re my bitch.”

Brown testified that the vehicle stopped in a wooded area, and Hagood and

Defendant walked Hammons in the woods. Hammons was forced to remove his

shirt and consume drugs before Hagood and Defendant shot him multiple times.

Brown heard Hammons screaming out “I’m still alive,” followed by a second

series of gunshots. Hagood and Defendant returned to the vehicle without

Hammons. The deceased body of Hammons was discovered the next day on

August 2, 2017, with the autopsy revealing ten gunshot wounds, bruises and

scrapes.

2

Brown testified that she initially did not tell the truth to the police, as she

was scared for her life. She stated she sent a letter to Defendant telling him not to

worry because she was afraid he might hurt her family.

As to Hammons’ phone, which Brown testified had been taken by

Defendant, Detective Travis Lavergne testified that Hammons’ phone had traveled

from Houston into Calcasieu Parish then back to Texas. Lavergne confirmed that

the phone ping locations were consistent with a route taken from Houston to the

location where the victim’s body was found.

In Defendant’s statement to the police, Defendant said that as far as he

knew, Hagood killed Hammons. Defendant said he never had a weapon nor did he

have any problems with Hammons.

After trial, a jury found Defendant, Jason Lee Lopez, guilty of manslaughter

and racketeering, and the trial court sentenced Defendant to forty years

imprisonment at hard labor for a manslaughter conviction and twenty years of

imprisonment at hard labor for the racketeering conviction. The court denied

Defendant’s motion to reconsider the sentence. Defendant now appeals, raising

three assignments of error.

ANALYSIS

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all criminal appeals are

reviewed for errors patent on the face of the record. After reviewing the record, we

find no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE:

In Defendant’s first assignment of error, he argues the State failed to prove

beyond a reasonable doubt that he was guilty of racketeering. In so doing, he raises

3

issues as to the sufficiency of the evidence regarding racketeering. In State v.

Hearold, 603 So.2d 731, 734 (La.1992), the supreme court held:

When issues are raised on appeal both as to the sufficiency of
the evidence and as to one or more trial errors, the reviewing court
should first determine the sufficiency of the evidence. The reason for
reviewing sufficiency first is that the accused may be entitled to an
acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67
L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in
accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) in the light most favorable to the prosecution,
could not reasonably conclude that all of the essential elements of the
offense have been proved beyond a reasonable doubt. When the
entirety of the evidence, including inadmissible evidence which was
erroneously admitted, is insufficient to support the conviction, the
accused must be discharged as to that crime, and any discussion by
the court of the trial error issues as to that crime would be pure dicta
since those issues are moot.

On the other hand, when the entirety of the evidence, both
admissible and inadmissible, is sufficient to support the conviction,
the accused is not entitled to an acquittal, and the reviewing court
must then consider the assignments of trial error to determine whether
the accused is entitled to a new trial. If the reviewing court determines
there has been trial error (which was not harmless) in cases in which
the entirety of the evidence was sufficient to support the conviction,
then the accused must receive a new trial, but is not entitled to an
acquittal even though the admissible evidence, considered alone, was
insufficient. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102
L.Ed.2d 265 (1988).

This Court in State v. Kennerson, 96-1518, p.5 (La.App. 3 Cir. 5/7/97), 695

So.2d 1367, 1371 reiterated this standard and further explained:

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.

Therefore, the record must show that the State proved all the elements

beyond a reasonable doubt. The Louisiana Racketeering Act is encompassed in

4

La.R.S. 15:1351-1356. Louisiana Revised Statutes 15:1353 details the prohibited

activities. Under La.R.S. 15:1353(C), “[i]t is unlawful for any person employed by,

or associated with, any enterprise knowingly to conduct or participate in, directly

or indirectly, such enterprise through a pattern of racketeering activity.” Under

La.R.S. 15:1352(B), an “enterprise” means “any individual, sole proprietorship,

partnership, corporation, or other legal entity, or any unchartered association, or

group of individuals associated in fact and includes unlawful as well as lawful

enterprises and governmental as well as other entities.”

As indicated in State v. Davenport, 16-223 (La.App 4 Cir. 10/18/17), 316

So.3d 888, writ denied, 17-1950 (La. 10/8/18), 253 So.3d 792, and writ denied, 17-

1947 (La. 10/8/18), 253 So.3d 797, Louisiana appellate courts have looked to

federal jurisprudence interpreting the federal Racketeer Influenced and Corrupt

Organizations Act (RICO) since Louisiana racketeering laws were modeled after

RICO. Referencing the United States Supreme Court, the fourth circuit explained

that an association-in-fact enterprise must have a structure with at least three

features: a purpose, relationships among the associates, and longevity sufficient to

permit the associates to pursue the enterprise’s purpose.

Under La.R.S. 15:1352(A), “racketeering activity” means “committing,

attempting to commit, conspiring to commit, or soliciting, coercing, or intimidating

another person to commit” specific crimes. Some of the specific crimes include:

second degree murder, second degree kidnapping, money laundering,

manufacture/distribution of Schedule II controlled dangerous substances, simple

robbery, and theft, among others. La.R.S. 15:1352. Under La.R.S. 15:1352(C), a

“[p]attern of racketeering activity” is defined as:

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engaging in at least two incidents of racketeering activity that have the
same or similar intents, results, principals, victims, or methods of
commission or otherwise are interrelated by distinguishing
characteristics and are not isolated incidents, provided at least one of
such incidents occurs after August 21, 1992, and that the last of such
incidents occurs within five years after the prior incident of
racketeering.

In United States v. Daidone, 471 F.3d 371, 374-75 (2d Cir. 2006), the

federal second circuit noted the requirements to prove a “pattern of racketeering

activity”:

Since the enactment of RICO, this Court has afforded the term
“pattern of racketeering activity” a “generous reading,” United States
v. Indelicato, 865 F.2d 1370, 1373 (2d Cir.1989) (en banc), and has
“interpreted [it] to mean ‘multiple racketeering predicates-which can
be part of a single ‘scheme’-that are related and that amount to, or
threaten the likelihood of, continued criminal activity,' ” United States
v. Reifler, 446 F.3d 65, 91 (2d Cir.2006) (noting that evidence of a
defendant's ties to organized crime is admissible to prove a RICO
offense) (quoting United States v. Coiro, 922 F.2d 1008, 1016 (2d
Cir.1991)). The Supreme Court has held that “to prove
a pattern of racketeering activity a . . . prosecutor must show that
the racketeering predicates are related, and that they amount to or
pose a threat of continued criminal activity.” H.J. Inc., 492 U.S. at
239, 109 S.Ct. 2893. Because Daidone does not challenge continuity,
only relatedness is at issue in this case.

According to the Supreme Court, criminal conduct forms
a pattern of racketeering activity under RICO when it “embraces
criminal acts that have the same or similar purposes, results,
participants, victims, or methods of commission, or otherwise are
interrelated by distinguishing characteristics and are not isolated
events.” Id. at 240, 109 S.Ct. 2893 (internal quotation marks omitted).
This Court has further developed this requirement of “relatedness,”
holding that predicate acts “must be related to each other (‘horizontal’
relatedness), and they must be related to the enterprise (‘vertical’
relatedness).” United States v. Minicone, 960 F.2d 1099, 1106 (2d
Cir.1992). To show that the predicate acts are vertically related to the
RICO enterprise, the government must establish (1) that the defendant
“was enabled to commit the predicate offenses solely by virtue of his
position in the enterprise or involvement in or control over the affairs
of the enterprise,” or (2) that “the predicate offenses are related to
the activities of that enterprise.” Id. (internal quotation marks and
emphasis omitted). One way to show that predicate acts are
horizontally related to each other is to show that each predicate act is
related to the RICO enterprise. United States v. Polanco, 145 F.3d

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536, 541 (2d Cir.1998) (“A predicate act is related to a different
predicate act if each predicate act is related to the enterprise.”).
Accordingly, the requirements of horizontal relatedness can be
established by linking each predicate act to the enterprise, although
the same or similar proof may also establish vertical
relatedness. See id. (establishing horizontal relatedness by showing
predicate acts are related to the enterprise); Minicone, 960 F.2d at
1106 (establishing vertical relatedness by showing predicate offenses
are related to enterprise).

In other words, the State had to prove that Defendant was employed by or

associated with an enterprise and knowingly conducted or participated within the

enterprise through a pattern of racketeering activity, with such activity meaning

committing, attempting to commit, or conspiring to commit specific crimes. The

record shows that the State proved all the elements beyond a reasonable doubt.

First, the evidence clearly showed that Defendant was associated with an

enterprise, namely the ABT. This was established by the witnesses’ testimony and

Defendant’s own admission. Defendant acknowledged that he was a part of the

ABT and worked with Hagood in a methamphetamine operation for the benefit of

Hagood and the ABT. The jury heard testimony from an investigator, John Roscoe,

who said he was very familiar with this gang. He said the ABT was the most

documented gang in Montgomery County, that there were more members in this

county than anywhere else, and that his investigations into this gang had led him

all across Texas as well as the country. Roscoe confirmed the ABT would work

with other outlaw organizations or gangs to complete tasks they were unwilling to

commit. Roscoe testified that the ABT would assign members to be “gopher[s]”

for drug distributors and that ABT also had “blind faith commitments” where

lower-tier gang members had to complete whatever illegal task was asked of them

by their ranking supervisor. Roscoe confirmed the ABT had specific gang tattoos,

and there was testimony that Defendant’s tattoos were consistent with the ABT.

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Roscoe further testified that members of the ABT have identifying marks,

subscribe to white supremacy and the racist writings of Davis Lane, and adhere to

a motto about securing the gang’s existence. Roscoe testified that the ABT’s motto

is to “secure the existence of our people and a future for white children.” Roscoe

testified that he came into contact with members of this gang through normal

criminal activity such as thefts, assaults, robberies, burglaries, and other criminal

activities.

It is our opinion that the State presented clear evidence of the structure and

purpose of the ABT. The testimony showed that the members would follow the

orders of their superiors to achieve their common goal. The record reflects that the

State presented sufficient evidence detailing the ABT’s relationship among

associates and their plans for longevity, including committing crimes to acquire

funds. The testimony established that Hagood oversaw various underlings,

including Hammons, and would direct them to make runs. These runs consisted of

acquiring drugs, exchanging drugs for money, or picking up money owed to the

gang. The evidence revealed and Defendant acknowledged that he worked with

Hagood for the benefit of the ABT. The various text messages showed that Hagood

and Defendant were working together to achieve those goals. For these reasons,

the State properly established that the ABT was an “enterprise” and that Defendant

was associated with this enterprise.

Second, Defendant admitted to committing one of the specific crimes

suggestive of a pattern of racketeering activity. Defendant concedes that he was

assigned to assist Hagood in his methamphetamine operation in and around

Houston, Texas. Additionally, the evidence showed that Hagood and Defendant

kidnapped Hammons when they placed him in the vehicle, ordered him back into

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the vehicle after stopping, attacked him while he was in the vehicle, and brought

him to Louisiana where he was ultimately killed.1 During the course of this drive,

Defendant physically took Hammons’ phone from him, and there was testimony

that Defendant was armed with a handgun. The State also established the required

elements for second degree kidnapping under La.R.S. 14:44.1, since Hammons

was brought into Louisiana, made to get out of the car, and shot repeatedly.2

The final requirement is that the two incidents of racketeering activity must

be interrelated, involve similar intents, methods of commission, victims, principals,

or otherwise be interrelated. In the instant case, there was evidence that Hammons

was directly involved in the drug distribution operation and either stole drugs and

other items from Hagood or became aware of certain activities involving the

disappearance of another drug runner who allegedly stole drugs. Hagood believed

his drug operation was impacted or compromised because of Hammons’ actions,

so Hagood and Defendant responded by kidnapping and killing him. These

instances of racketeering activity are not isolated instances but rather are related

and a cause and effect of each other. Thus, the State presented sufficient evidence

of racketeering.

1
Under La.R.S. 14:26, criminal conspiracy is defined as:

[T]he agreement or combination of two or more persons for the specific purpose
of committing any crime; provided that an agreement or combination to commit a
crime shall not amount to a criminal conspiracy, unless in addition to such
agreement or combination, one or more of such parties does an act in furtherance
of the object of the agreement or combination.
2
Under La.R.S. 14:44.1, relevant to this instant case, kidnapping is:

(1) The forcible seizing and carrying of any person from one place to another.
(2) The enticing or persuading any person to go from one place to another.
(3) The imprisoning or forcible secreting of any person.
(4) The forcible seizing of any corrections officer or any other official or
employee of an adult or juvenile correctional or detention facility for any
period of time whatsoever.

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Despite all of the evidence supporting Defendant’s racketeering conviction,

Defendant sets forth an argument based on the location of future crimes. Defendant

claims that the State failed to prove he would have committed or would have

planned to commit any future crimes in Louisiana; therefore, the State failed to

prove he was guilty of racketeering. While Defendant submits he is a member of

the ABT, he said his involvement in such was limited to Texas, except for the one

day in Louisiana when Hammons was killed. Defendant asserts the State presented

no evidence that he and Hagood stayed in Louisiana for any length of time beyond

that necessary to drive Hammons from the Louisiana-Texas border to where

Hammons was killed and then drive back to the border. Defendant argues the State

presented no evidence that he had any other business or personal connection to

Louisiana, that he had been to Louisiana before Hammons’ murder, or that there

was any reason to believe he would have returned to Louisiana in the future had he

not been arrested.

Defendant directs this court’s attention to State v. Ficklen, 17-995, p. 11

(La.App. 3 Cir. 5/2/18), 247 So.3d 1075, 1082, where this court recognized that the

legislative intent behind racketeering laws was to prohibit and punish conduct that

“amount[s] to or pose[s] a threat of continued criminal activity.” Defendant notes

that in the indictment, the State alleged he engaged in racketeering by committing

crimes of conspiracy to distribute methamphetamine, conspiracy to commit money

laundering, conspiracy to commit second degree kidnapping, conspiracy to commit

simple robbery, conspiracy to commit second degree murder, and theft of property

having value of less than $1,000.00. Defendant argues that no distribution of

methamphetamine or money laundering was alleged to have occurred in Louisiana,

to have been anticipated over a period of time in Louisiana, or to have been

10

planned in Louisiana. Defendant submits that the State arguably offered proof of a

conspiracy to commit armed robbery, second degree murder, and kidnapping

which occurred in Louisiana; however, Defendant asserts there was no evidence

that these crimes lasted or were expected to last for more than one day. Defendant

argues there was no evidence that he would have committed any future crimes in

Louisiana had he not been arrested. For these reasons, Defendant argues the State

failed to prove beyond a reasonable doubt that he was guilty of racketeering. Thus,

he claims his sentence must be vacated.

To the contrary, the State argues Defendant’s assignment of error is without

merit because the commission or intent to commit “future crime” in a specific

location is not an element of the crime of racketeering. The State notes it alleged

that Defendant, while working as part of a criminal enterprise known as the ABT,

committed or conspired to commit various criminal acts sufficient to constitute

racketeering in violation of the Louisiana Racketeering Act. The State argues that,

under La.Code Crim.P. art. 611, if any act or event constituting part of the

racketeering occurred in Calcasieu Parish, then the entire racketeering crime is

deemed to have occurred in Calcasieu Parish, including the actions taken and those

contemplated to be taken in Texas.3

The State further notes that Defendant’s reliance on Ficklen, 247 So.3d

1075, is misplaced, as that court noted that while federal jurisprudence interpreting

racketeering law did envision a pattern of racketeering activity existing over a

period of time, such was in the context of distinguishing the pattern of activity

3
Louisiana Code of Criminal Procedure Article 611 provides that, “If acts constituting an
offense or if the elements of an offense occurred in more than one place, in or out of the parish or
state, the offense is deemed to have been committed in any parish in this state in which any such
act or element occurred.”

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from the enterprise itself. The State argues that no jurisprudence suggested a

geographical limitation to the pattern of racketeering behavior or that the mandates

of La.Code Crim.P. art. 611 would not apply.

The State further asserts Defendant acknowledged the State presented

evidence of conspiracy to commit robbery, murder, and kidnapping within

Louisiana. The State suggests Defendant made no attempt to claim that his

activities with Hagood did not constitute a pattern of racketeering activity or that

the ABT was not an “enterprise” under the statute. The State posits that Defendant

ignores the fact that since at least one element occurred in Calcasieu Parish, the

entire racketeering crime is deemed to have occurred in Louisiana. Therefore, the

State argues that when viewing the evidence in the light most favorable to the

prosecution, it is clear that a rational trier of fact could have found every element

of the racketeering charge to have been proven beyond a reasonable doubt.

When viewing the racketeering offense as a whole, one of the incidences

occurred in Texas while the other occurred in Louisiana. Pursuant to La.Code

Crim.P. art. 611, we find that since one part of the offense occurred in Louisiana,

the entire offense is deemed to have occurred in Louisiana.

Furthermore, this court previously made a ruling in this case on a similar

issue. In State v. Lopez, 22-76 (La.App. 3 Cir. 2/8/22) (unpublished opinion), this

court found the trial court erred in granting the defense’s motion to quash the

racketeering charge based on the same or similar arguments:

WRIT GRANTED AND MADE PEREMPTORY: The State seeks
review of the trial court’s February 7, 2022 ruling on Defendant’s
“Motion to Quash Indictment for Lack of Jurisdiction.” The trial court
granted the motion in part and denied the motion in part as to the
racketeering charge against Defendant. Louisiana Code of Criminal
Procedure Article 611 states, in pertinent part: “If acts constituting an
offense or if the elements of an offense occurred in more than one

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place, in or out of the parish or state, the offense is deemed to have
been committed in any parish in this state in which any such act or
element occurred.” The trial court found it had jurisdiction over some
elements of the racketeering offense. Considering this finding in
accordance with La.Code Crim.P. art. 611, the trial court is deemed to
have jurisdiction over the entire offense. Accordingly, the trial court
erred in failing to deny Defendant’s motion to quash in its entirety.

We echo this opinion and find Defendant’s first assignment of error lacks

merit.

ASSIGNMENT OF ERROR NUMBER TWO:

In Defendant’s second assignment of error, he argues his constitutional right

to confront the witnesses against him was violated when the State asked

substantive questions of Hagood, who repeatedly refused to answer any questions.

Hagood could not invoke his Fifth Amendment rights because the State

granted him immunity pursuant to La.Code Crim.P. art. 439.1. 4 State v. Lopez, 22-

82 (La.App. 3 Cir. 2/10/22) (unpublished opinion). Defendant argues the State

knew Hagood would invoke his Fifth Amendment rights but still persisted to

question him. Because of this, Defendant argues his counsel was forced to attempt

to engage in substantive questioning to try to undo the harm caused by the State’s

strategic questioning. Defendant claims that since his right to confront the

witnesses was violated, his convictions and sentences must be reversed and

vacated.

As a preliminary matter, the State claims that defense counsel did not

preserve this issue for review under La.Crim. Code P. art. 841, as Defendant’s

4
Under La.Code Crim.P. art. 439.1(C):

The witness may not refuse to comply with the order on the basis of his privilege
against self-incrimination, but no testimony or other information compelled under
the order, or any information directly or indirectly derived from such testimony or
other information, may be used against the witness in any criminal case, except a
prosecution for perjury, giving a false statement or otherwise failing to comply
with the order.

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objections related to the trial court’s interruption of Mr. Hagood’s answers, rather

than seeking limiting instruction, admonition, or mistrial due to the Fifth

Amendment issue. However, viewing the record in its entirety, we find that the

defense counsel’s objections were sufficient to preserve this issue on appeal.

In support of this assignment of error, Defendant cites several cases,

including State v. Berry, 324 So.2d 822, 830 (La.1975), cert. denied, 425 U.S. 954,

96 S.Ct. 1731 (1976), where the supreme court recognized “[i]t is improper

conduct for either the prosecution or the defense to knowingly call a witness who

will claim a privilege, for the purpose of impressing upon the jury the fact of the

claim of the privilege.” Defendant also directs this court’s attention to State v.

Laviolette, 06-92, p. 14 (La.App. 5 Cir. 9/26/06), 943 So.2d 527, 535, writ denied,

06-2585 (La. 5/18/07), 957 So.2d 149, in which the fifth circuit noted that it is

reversible error when the “‘the Government makes a conscious and flagrant

attempt to build its case out of inferences arising from use of the testimonial

privilege[.]’”

The State, in turn, points this court to State v. Smith, 96-261 (La.App. 3 Cir.

12/30/96), 687 So.2d 529, writ denied, 97-314 (La. 6/30/97), 696 So.2d 1004, and

Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151 (1963). In Namet, the supreme

court held that reversible error can occur when a party “makes a conscious and

flagrant attempt to build its case out of inferences arising from use of the

testimonial privilege” or when “inferences from a witness’ refusal to answer added

critical weight to the prosecution’s case in a form not subject to cross-examination,

and thus unfairly prejudiced the defendant.” Id. at 186-87.

In this case, the record shows that Mr. Hagood refused to answer any

question by either side, resulting in findings of contempt of court and a jail

14

sentence. Mr. Hagood never invoked invoked his Fifth Amendment rights in the

presence of the jury; instead, he simply refused to answer any question asked by

either side. The State was put on notice at a pre-trial hearing that Hagood indicated

he would refuse to answer questions, but the district attorney did not believe that

Hagood could assert the privilege in light of the immunity. Thus, there is no

evidence that the district attorney acted improperly.

Furthermore, Hagood’s refusal to testify did not unfairly prejudice

Defendant nor did it add critical weight to the State’s case. The State only asked

Hagood a handful of questions, while the defense asked over one hundred

questions on a wide variety of topics, involving many facets of Hagood’s

operations. Only one of the State’s questions referenced Defendant: “Mr. Hagood,

you recall sending a text message to [Defendant], also known as Kasper, that

Hammons was on his last leg right before you killed him?” The text message

referred to was ultimately introduced into evidence through the testimony of the

detectives who obtained a warrant for these messages and actually reviewed them.

The State presented a strong case against Defendant with ample evidence against

him, as the case against Defendant was made through Defendant’s own confession

as well as the testimony of witnesses who observed the various acts he committed.

As to whether Hagood’s refusal to testify deprived Defendant of his right of

confrontation, there was simply no testimony upon which to confront the witness.

Hagood did not provide any information upon which the defense could have cross-

examined him; nevertheless, the trial court allowed the defense to ask whatever

questions counsel wished.

Thus, we find no merit to Defendant’s argument.

ASSIGNMENT OF ERROR NUMBER THREE:

15

In Defendant’s final assignment of error, he argues that the maximum forty-

year sentence for manslaughter, along with the consecutive twenty-year sentence

for racketeering, are excessive. Defendant asserts his sentences should be vacated

and that this court should remand for resentencing.

In order for a sentence to violate La.Const. art. I, § 20, “the penalty must be

so grossly disproportionate to the severity of the crime as to shock our sense of

justice or that the sentence makes no measurable contribution to acceptable penal

goals and, therefore, it is nothing more than needless imposition of pain and

suffering.” State v. Hammock, 97-1164, p. 5 (La.App. 3 Cir. 4/1/98), 711 So.2d

756, 758, writ denied, 98-1143 (La. 9/25/98), 726 So.2d 11; see also State v.

Campbell, 404 So.2d 1205 (La.1981). This Court has held, that “in reviewing the

defendant’s sentences, the appellate court should consider the nature of the crime,

the nature and background of the offender, and the sentences imposed for similar

crimes.” State v. Soileau, 13-770, 13-771, p. 5 (La.App. 3 Cir. 2/12/14), 153 So.3d

1002, 1005, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261; see also State v.

Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-433 (La.

6/25/99), 745 So.2d 1183.

As to the nature of the crime, there is no doubt that Defendant was convicted

of a cruel act. During sentencing, the trial court stressed that the killing of

Hammons was a cowardly, brutal, and senseless act. The trial testimony revealed

that Hammons screamed he was still alive, but the men went back and fired more

rounds to finish him off. There was other testimony that the men forced Hammons

to ingest drugs before making him remove his shirt and walk off into the woods

where he was shot. In considering the sentencing guidelines, the trial court stated

that anything less than a prison sentence would belittle the seriousness of the

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crimes. The trial court noted Defendant’s lack of remorse for his part in the killing

as well as Defendant’s response during his statement that he was refuting whether

there was blood in the vehicle. The trial court found that the public needed to be

protected from Defendant, and we agree.

Defendant also had a prior felony conviction in Texas, indicating that the

present crimes before the court are not an outlier.

In comparing the sentences for similar crimes, it is clear that Defendant’s

sentence was appropriate. There are multiple examples of maximum sentences for

manslaughter being affirmed on appeal, even in cases of first offenders or guilty

pleas. See State v. Hebert, 12-228 (La.App. 3 Cir. 6/13/12), 94 So.3d 916, writ

denied, 12-1641 (La. 2/8/13), 108 So.3d 78; State v. Reder, 19-373, 19-431

(La.App. 3 Cir. 12/18/19), 286 So.3d 644, writ denied, 20-216 (La. 7/24/20), 299

So.3d 74; State v. Ayala, 17-1041 (La.App. 3 Cir. 4/18/18), 243 So.3d 681.

As to the consecutive nature of Defendant’s sentences, we find no merit in

Defendant’s arguments. Under La.Code Crim.P. art. 883, if a defendant is

convicted of two or more offenses based on the same action or common scheme,

then the imprisonment shall be served concurrently unless the court directs

otherwise. Other sentences are to be served consecutively, unless the court

expressly directs otherwise. The trial court found that the two convictions (the

manslaughter and the racketeering charge) were separate and apart, and thus under

La.Code Crim.P. art. 883, it was entirely appropriate for the trial court to sentence

Defendant consecutively rather than concurrently. Furthermore, as discussed

above, Defendant engaged in a substantive history of violent, criminal acts as a

part of his racketeering activity, and the death of Hammons was cruel and brutal.

We find no merit in this assignment of error.

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DECREE

For the foregoing reasons, Defendant Jason Lee Lopez’s convictions and

sentences are affirmed.

AFFIRMED.

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

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