State of Louisiana v. Demetric Cornell Savoy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-259

STATE OF LOUISIANA

VERSUS

DEMETRIC CORNELL SAVOY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 88862
HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of D. Kent Savoie, Van H. Kyzar, and Ledricka J. Thierry, Judges.

CONVICTION AND SENTENCE AFFIRMED.

Donald D. Landry
District Attorney
Fifteenth Judicial District
Post Office Box 3306
Lafayette, Louisiana 70502
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Elliott C. Cassidy
Assistant District Attorney
Fifteenth Judicial District
Post Office Box 288
Crowley, Louisiana 70526
(337) 788-8831
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Demetric Cornell Savoy

SAVOIE, Judge.

On July 17, 2018, Defendant, Demetric Cornell Savoy, was charged by Bill

of Indictment with the second degree murder of Heather Mouton, in violation of

La.R.S. 14:30.1; unauthorized entry into an inhabited dwelling, in violation of

La.R.S. 14:62.3; and misdemeanor violation of a protective order, in violation of

La.R.S. 14:79(B)(1). On February 17, 2022, an Amended Indictment was filed

that removed the misdemeanor charge, maintaining the charges of second degree

murder and unauthorized entry into an inhabited dwelling.

Trial commenced on June 21, 2022, and on June 23, 2022, Defendant was

found guilty as charged on both second degree murder and unauthorized entry into

an inhabited dwelling. On August 12, 2022, a sentencing hearing was held. At the

start, the trial court heard two defense-filed motions, a “Motion for New Trial,”

and a “Motion for Post-Judgment Verdict of Acquittal.” The trial court denied

both motions and proceeded to sentence Defendant to the mandatory sentence of

life imprisonment without benefits for second degree murder as well as the

maximum sentence of six years at hard labor for unauthorized entry of an inhabited

dwelling. The sentences were ordered to run concurrently to each other.

Defendant now appeals his conviction for second degree murder, raising

four assignments of error: (1) there was insufficient evidence to convict Defendant

of the second degree murder of Heather Mouton; (2) even if the court finds the

State proved Defendant killed Ms. Mouton, a conviction for manslaughter should

be entered; (3) the trial court committed reversible error when it allowed Ms.

Mouton’s statements, made as part of an application for protective order, to be

introduced at trial; and (4) the trial court erred in denying Defendant’s motion to

quash regarding the surveillance video obtained from a neighbor. For the

foregoing reasons, Defendant’s conviction and sentence are affirmed.

FACTS

Defendant was convicted of the murder of Heather Mouton.

At trial, the State’s first witness was Mr. Russell Faulk, who testified that he

retired after thirty-two years with the Acadia Parish Sheriff’s Office. According to

Mr. Faulk, he spent his last ten years as a sergeant in the Civil Division of the

Sheriff’s Office, serving court orders and legal documents. Mr. Faulk testified that

on May 24, 2018, he served Defendant with a restraining order at 7:00 a.m.; the

restraining order had been filed on May 11, 2018, and was set for hearing at the

end of the month. On cross-examination, Mr. Faulk acknowledged that when he

filled out the return showing he served Defendant with the restraining order, he did

not have Defendant sign the return. He later clarified that his standard practice was

to fill out the return information himself and that it was never signed by the person

being served.

During Mr. Faulk’s testimony, State’s Exhibits 1 and 2 were introduced.

State’s Exhibit 1 (in globo) was a packet including Ms. Mouton’s May 11, 2018

“Petition for Protection from Abuse.” The petition described two instances of

recent violence between Defendant and Ms. Mouton, one on May 1, 2018, and the

other on May 10, 2018. According to the petition, on May 1, 2018, they were

leaving an event when Defendant asked to use a phone charger, and Ms. Mouton

gave him attitude about it; while she was driving, Defendant punched her in the

jaw. Upon arriving home, Defendant choked Ms. Mouton and eventually

demanded that she bring him to his truck; however, she was able to lock him out of

the car and leave.

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On May 10, 2018, Defendant followed Ms. Mouton to work, apologized,

and asked her to reconcile. The conversation turned ugly with Defendant asking

Ms. Mouton “if [she] was ready to die & [she] said are you ready to kill me? Lord

knows I’m not ready to die I have to[o] much to live for. [Defendant] said [she]

better not report him or else & [she] went in to work.” She then called law

enforcement, and they took her statement.

The State’s next witness was Ms. Mary Richard, the 911 Director for the

Acadia Parish Communications District. Ms. Richard was called for the sole

purpose of introducing State’s Exhibit 3, a 911 recording entered into evidence

“for the limited purposes of establishing why the police were called and why an

investigation was being opened.”

The State then called Lieutenant Nicholas Penn, the evidence officer and IT

technician for the Crowley Police Department. Lieutenant Penn testified that he

was working patrol on the night Ms. Mouton died and became involved in the

investigation when he was dispatched in reference to the 911 call. Lieutenant Penn

stated that he was the first officer on the scene and found Ms. Mouton in the den,

“face down with a pool of blood near her head.” After the investigating detectives

arrived, Lieutenant Penn spoke with Ms. Mouton’s family and directed other

officers to search for evidence. Lieutenant Penn testified they recovered two .22

shell casings at the murder scene.

On cross-examination, Lieutenant Penn was questioned about certain digital

evidence given his dual role as evidence custodian and “IT guy” for the Crowley

Police Department. Lieutenant Penn testified that although he was aware that

Detectives Comeaux and Gibson interviewed the victim’s juvenile daughter,

Haleigh Patton, he had been unable to find said interview, either in the Axon cloud

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storage they used for maintaining body camera footage or on a physical disc in the

department’s case file.

The State then called Officer Robyn Osborne, a patrol officer with the

Crowley Police Department. According to Officer Osborne, there were already

multiple vehicles at Ms. Mouton’s 1267 Lurose Drive address when she arrived.

Officer Osborne testified she helped escort family members, including some

children, out of the residence. Officer Osborne stated that she was unable to locate

the wound in Ms. Mouton’s head due to Ms. Mouton having a sewn-in hairpiece.

She also stated they located a chicken bone that Ms. Mouton appeared to have been

eating.

Officer Osborne testified that while canvassing the area, a neighbor

informed her that Ms. Isalee Malbrough had security cameras that were aimed

towards 1267 Lurose and might be able to help. According to Officer Osborne,

Ms. Malbrough did not know how to pull up past video; however, Officer Osborne

was able to bring up Ms. Malbrough’s surveillance footage from about 9:00 p.m.

until law enforcement arrived after the shooting. Officer Osborne identified

pictures of the two .22 caliber shell casings that were found in the same room as

Ms. Mouton.

Officer Osborne testified that when she went to Ms. Malbrough’s home, she

was able to help Ms. Malbrough bring up the surveillance footage which showed

the front of 1267 Lurose. Officer Osborne identified State’s Exhibit 18 as a flash

drive containing a portion of the surveillance video Officer Osborne viewed at Ms.

Malbrough’s residence on the night of the shooting.

On cross-examination, Officer Osborne acknowledged that Ms. Malbrough

was having difficulties pulling up the video. Although Officer Osborne testified

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she helped Ms. Malbrough access the footage, she subsequently acknowledged that

she did not actually know how the system worked either. Officer Osborne testified

she watched portions of the surveillance footage from roughly 9:00 p.m. until right

around midnight, when the shooting occurred. Officer Osborne confirmed that

after watching the video, she relayed to Detectives Gibson and Comeaux, as well

as Chief Broussard, that Ms. Malbrough was willing to cooperate, and they just

needed to go to her to get the footage. She also confirmed the video showed a

number of people going in and out of the 1267 Lurose residence.

After reviewing her body camera footage, Officer Osborne acknowledged

telling her superiors that she saw two black males entering the house at 9:09 p.m.

She also recalled seeing a vehicle leave the house and return later. She stated she

observed the vehicle drop off a black male in a white t-shirt, the black male leave,

then later a truck drop off the same black male at the house. Officer Osborne

testified that she was not the individual who recovered footage from Ms.

Malbrough. According to Officer Osborne, she took a DNA swab of the door on

the north side of the home because that was the door people used in the

surveillance footage.

The State’s next witness was Ms. Malbrough, who testified she had lived

across the street from the victim for almost twenty years; she gave her address as

1266 Lurose Drive. On the night Ms. Mouton died, Ms. Malbrough testified she

was sleeping, got up to use the restroom, and heard a commotion outside; law

enforcement came to her door shortly thereafter. Ms. Malbrough testified that she

watched the footage from her surveillance system with law enforcement that night.

Furthermore, Ms. Malbrough testified that State’s Exhibit 18 was a five-minute

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section of the footage she reviewed with Officer Osborne on the night of the

shooting.

State’s Exhibit 18 was then played for the jury over defense counsel’s

objection. The video begins with two people, presumably Mr. and Mrs.

Montgomery, exiting the 1267 Lurose residence and leaving in a truck parked in

front of the home. Shortly thereafter, a black male wearing dark pants and a white

shirt enters the video from the right side, walks up the driveway and into the 1267

Lurose residence. Roughly seventy seconds later, the same black male in a white

shirt runs out the side entrance to the house, the same door he used to enter, then

runs across the front yard of 1267 Lurose heading towards the left side of the

video.

On cross-examination, Ms. Malbrough said she had no idea anything was

going on across the street until law enforcement knocked on her door. Ms.

Malbrough indicated that although she had an application on her phone that

allowed her to review her surveillance footage, she initially had some difficulty

viewing the surveillance footage on her laptop. According to Ms. Malbrough, her

camera records all day, and the video shown was only a portion of the footage she

reviewed with Officer Osborne on the night of the shooting. Ms. Malbrough

testified law enforcement came back to download footage within a few days of the

shooting, but she could not give a more specific timeline.

According to Ms. Malbrough, she was contacted by law enforcement at

work and subsequently went to the police department, signed into her surveillance

account, and allowed them to download the footage they desired. She did not

know, however, how much footage they actually downloaded.

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The State then called Ms. Cassandra Mouton, the victim’s aunt. Ms.

Cassandra testified that on May 24, 2018, she was at 1267 Lurose at the home of

her sister Mrs. Jackie Montgomery. According to Ms. Cassandra, Mrs.

Montgomery was cooking while Ms. Mouton was playing music through her

phone. Ms. Cassandra testified a number of people were at 1267 Lurose: Ms.

Mouton, Mrs. Montgomery, Mr. James Montgomery, and Ms. Mouton’s friend

Ashley, whom they all called “Hallee Berry.” Ms. Cassandra also testified that her

daughter Kennedy was present, along with Ms. Mouton’s daughter Haleigh, and

Ms. Mouton’s sons Demetric Savoy, Jr., (“DJ”), and Halen Mouton. According to

Ms. Cassandra, they were all at 1267 Lurose for a few hours; however, Ms.

Cassandra testified she believed she left around 10:30 p.m. as she had to work the

following morning.

Ms. Cassandra testified that she returned to her sister’s home after midnight

because she was informed that Ms. Mouton was hurt. According to Ms.

Cassandra, when she got to the house, Mrs. Montgomery was “out of it,” walking

around in circles stating, “he killed my baby.” Ms. Cassandra testified they called

911, for the second time, and the operator told her to turn Ms. Mouton on her back;

after taking a chicken bone out of Ms. Mouton’s mouth, Ms. Cassandra was

turning her over when law enforcement arrived and had the family exit the house.

According to Ms. Cassandra, Ms. Mouton’s body was in the den between the sofa

and the television. Ms. Cassandra testified Ms. Mouton and her children were

living with Mrs. Montgomery because Ms. Mouton was afraid of Defendant and

“was scared she was going to get hurt.”

The State’s next witness was Mrs. Jacqueline (“Jackie”) Mouton

Montgomery, the victim’s mother. Mrs. Montgomery testified she still lived at

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1267 Lurose along with her husband James and her three grandchildren, Halen

Mouton, Haleigh Patton, and DJ. According to Mrs. Montgomery, on the night of

May 24, 2018, they had a small get together at her house, and Mrs. Montgomery

cooked fried chicken. Mrs. Montgomery testified that Defendant was not at the

house and was not allowed at the house because she did not want him there and

because Ms. Mouton had a restraining order against him.

Mrs. Montgomery testified that a little before midnight, she left the house to

get cigarettes from the drive-through convenience store near her house; she

returned about ten to fifteen minutes later. At that point, her granddaughter was at

the door screaming, and Mrs. Montgomery entered her house to find Ms. Mouton

on the floor of the den, dead.

The State’s next witness was the victim’s daughter, Haleigh Patton, who was

fifteen when she testified. According to Ms. Patton, on the night her mother was

killed, she was in her room in bed on her phone when Defendant came into the

room, pulled her covers off, and asked where Ms. Mouton was. Ms. Patton

testified Defendant had been her stepfather, that she saw him every day while her

mother was married to him, and that she was positive it was Defendant who came

into her room. She described his attire that night as “[a] white shirt, like, some

dark colored jeans, and some boots.” After telling Defendant she did not know

where her mother was, Ms. Patton testified he left the room. According to Ms.

Patton, Defendant was in her room for no more than twenty or thirty seconds. Ms.

Patton testified she waited a couple of minutes after Defendant left her room to get

up and go to the bathroom, at which time she saw her mother on the floor. She

then locked herself in the bathroom and texted her aunt. She clarified she texted

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her Aunt Cassandra and told her Defendant was in the house and her mother was

on the floor.

Ms. Patton testified she was in the bathroom between three and five minutes

before she went to the kitchen to call another aunt, at which time she heard Mrs.

Montgomery return. Ms. Patton testified that she heard her mother fall while she

was in her room. According to Ms. Patton, when her grandmother turned on the

lights, she saw her mother “on the floor with blood coming out of her head.”

On cross-examination, Ms. Patton testified that Ms. Mouton used her phone

frequently to communicate with her children and her friends, including her friend

Hallee, with whom Ms. Mouton had been hanging out the night she died. Ms.

Patton testified Hallee was the only friend Ms. Mouton had been with that night.

Ms. Patton did not recall telling law enforcement the night of the shooting that she

did not hear anything after Defendant left her room or that she was sleeping when

Defendant came into her room. Ms. Patton testified she did not see a gun when

Defendant came into her room.

The State then called Dr. Terry Welke, the Calcasieu Parish Coroner, who

was accepted as an expert in forensic pathology. Dr. Welke testified that he

performed an autopsy on Heather Mouton at 1:45 p.m. on May 25, 2018. He found

two gunshot wounds on the right side of Ms. Mouton’s head, noting “[o]ne was

above the ear, and one was slightly above and in front of the right ear.” Dr. Welke

stated there were no exit wounds, and he removed two projectiles from Ms.

Mouton’s head during the autopsy. Although Dr. Welke made it clear he was not a

firearms expert, he identified the bullets removed from Ms. Mouton’s head as

being fired from a “small caliber” weapon consistent with a .22 caliber pistol or a

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similar caliber. Dr. Welke testified that Ms. Mouton’s cause of death was two

gunshot wounds to the head and described the death as a homicide.

On cross-examination, Dr. Welke noted that among Ms. Mouton’s tattoos

was a heart with the name “Jeremy” written inside of it, located on her “left upper

frontal chest.” The State then recalled Officer Penn to confirm that the shell

casings recovered from the crime scene were .22 shells. The State then rested its

case-in-chief.

The first witness called by defense counsel was Deputy Kade Patin, a ten-

year veteran of the Acadia Parish Sheriff’s Office. Deputy Patin testified that in

the early hours of May 25, 2018, he and Deputy Randy Chaisson, of the Acadia

Parish Sheriff’s Office, arrested Defendant in west Crowley. At some point after

the arrest, Officer David Taylor, of the Crowley Police Department, arrived as

well. Deputy Patin testified that he believed they arrived around 1:30 a.m.

According to Deputy Patin, they found Defendant behind a fence and took

him into custody without incident. After reviewing his body camera footage,

Deputy Patin acknowledged Defendant was arrested wearing a plaid shirt and blue-

jeaned shorts. The arrest occurred near Defendant’s residence roughly an hour

after Ms. Mouton’s death.

Defense counsel then called Captain Michael Luke Fontenot, a Criminal

Investigations Division supervisor with the Evangeline Parish Sheriff’s Office and

former detective with the Crowley Police Department. Captain Fontenot testified

that he helped prepare the applications for search warrants in this case even though

Detective Steve Comeaux was the lead detective. According to Captain Fontenot,

he participated in the execution of search warrants for 618 Spann Avenue and 1106

West Sixth Street, addresses associated with Defendant. Captain Fontenot testified

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they were looking for firearms, clothing, and DNA evidence. Captain Fontenot did

not believe law enforcement recovered any evidence from either location. Captain

Fontenot stated that he prepared an additional search warrant for the victim’s

cellphone; after the search warrant was granted, the phone was brought to the

Lafayette Parish Sheriff’s Office for a forensic search.

Captain Fontenot testified that in April 2021, while he was still with the

Crowley Police Department, he was tasked with locating an interview between

Haleigh Patton and Detective Comeaux; however, the video could not be found.

Captain Fontenot testified he found no evidence the interview was intentionally

deleted; he simply found nothing related to the instant case.

The defense then recalled Lieutenant Nicholas Penn. Lieutenant Penn

testified the only footage he knew was recovered from Ms. Malbrough’s

surveillance camera was the five-minute clip previously played for the jury;

Lieutenant Penn was unaware of who recovered that footage from Ms. Malbrough

for the Crowley Police Department. Lieutenant Penn testified that when he spoke

with Ms. Patton, she told him she did not hear anything out of the ordinary after

speaking to Defendant the night of the murder.

Defense counsel then called Chief Jimmy Broussard of the Crowley Police

Department. Chief Broussard testified the case against Defendant was led by

Detective Steve Comeaux with assistance from Detective Chad Gibson. Chief

Broussard testified that in his sixteen years in law enforcement, he had never

utilized a gunshot residue test nor seen an officer use such a kit. He testified

gunshot residue tests were difficult and costly, so the prior chief had instructed

officers not to use them. Based on body camera footage, Chief Broussard

acknowledged that Officer Taylor requested permission to do a gunshot residue

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test but noted that “[s]omeone said no.” Chief Broussard testified that he was

unaware who was assigned the case once Detective Comeaux left the department.

Defense counsel then called Lieutenant Blake Soileau, the Human Resources

Director for the Lafayette Parish Sheriff’s Office. Lieutenant Soileau testified that

he had roughly fourteen years of total experience in law enforcement, including

time working in the Lafayette Parish Sheriff’s Office in the intelligence

department, specifically focused on digital forensics. Lieutenant Soileau testified

that he spent months doing on-the-job training in digital forensics with members of

the Attorney General’s Office. According to Lieutenant Soileau, he analyzed

roughly two hundred to three hundred cellphones while doing digital forensics for

the Lafayette Parish Sheriff’s Office. Lieutenant Soileau was subsequently

accepted as an expert in the field of “phone forensic analysis.”

According to Lieutenant Soileau, the sheriff’s office primarily used a

software called Cellebrite, which allowed them to connect a phone to a computer

via USB cable so the software could download a copy of the information on the

phone. Lieutenant Soileau noted the program copied incoming and outgoing

phone calls, text messages, photographs, etc. Lieutenant Soileau testified the

phone extraction was done on June 1, 2018.

Defense counsel then called Ms. Choi Nguyen, a forensic DNA analyst for

the Acadiana Criminalistics Laboratory. Ms. Nguyen was accepted by the court as

an expert witness in the field of forensic DNA analysis. In the instant case, Ms.

Nguyen noted she tested a swab from the side door of the victim’s home and the

two recovered cartridge casings. According to Ms. Nguyen, there were no

recoverable DNA profiles on the cartridges, although the door swab contained a

partial DNA profile. Ms. Nguyen testified she was provided with two DNA

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reference samples, one for Haleigh Patton and one for Defendant; both individuals

were excluded as potential contributors to the partial DNA profile located on the

swab taken from the side door.

On cross-examination, Ms. Nguyen clarified the lack of DNA on the

cartridge cases was common because the heat of the gunshot often burns off any

DNA. Ms. Nguyen noted UV light, bleach, and ethanol could all destroy DNA as

well.

The trial court then read into the record the following stipulation reached by

the State and defense counsel: “Former Detective Steve Comeaux testified at a

previous hearing that Haleigh Patton was woken up by Demetric Savoy pulling her

covers back.” At that point, the defense rested its case, and the parties proceeded

to closing arguments.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we find there

are no errors patent.

LAW AND DISCUSSION

I. Assignment of Error Number One

In his first assignment of error, Defendant contends the State presented

insufficient evidence to convict him of the second degree murder of his estranged

wife, Heather Mouton. Defendant specifically challenges the credibility of

Haleigh Patton, the victim’s then eleven-year-old daughter, who placed Defendant

in the house looking for Ms. Mouton immediately before Ms. Mouton was shot

twice in the head. The analysis for insufficient-evidence claims is well settled:

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

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

In the instant case, Defendant was charged with second degree murder, in

violation of La.R.S. 14:30.1(A)(1), which relevantly defines second degree murder

as the killing of a human being “[w]hen the offender has a specific intent to kill or

to inflict great bodily harm[.]”

Defendant contends the evidence against him is insufficient because there

were numerous people at the residence the night Ms. Mouton was murdered; he

was excluded as the source of the partial DNA profile found on the side door; Ms.

Patton testified she did not see him armed with any kind of weapon; and Ms.

Patton’s testimony about whether she was asleep when Defendant entered her

room and whether she heard anything afterwards was different at trial than it was

the night of the shooting. For the following reasons, we disagree that the evidence

was insufficient.

This case is based almost entirely on circumstantial evidence:

“Generally, direct evidence consists of testimony from a witness who
actually saw or heard an occurrence, proof of the existence of which is
at issue[.]” State v. Lilly, 468 So.2d 1154, 1158 (La.1985).

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Circumstantial evidence, however, “consists of proof of collateral
facts and circumstances from which the existence of the main fact
may be inferred according to reason and common experience.” Id.

In State v. Major, 03–03522, p. 6 (La. 12/1/04), 888 So.2d 798,
801–02, the supreme court explained that:

when the conviction is based on circumstantial
evidence, La. R.S. 15:438 sets forth the rule that
“assuming every fact to be proved that the evidence tends
to prove, in order to convict, [the circumstantial
evidence] must exclude every reasonable hypothesis of
innocence.” However, La. R.S. 15:438 does not establish
a stricter standard of review than the more general
rational juror’s reasonable doubt formula; rather it serves
as a helpful evidentiary guide for jurors when evaluating
circumstantial evidence. State v. Toups, 01–1875, p. 3
(La.10/15/02), 833 So.2d 910, 912; State v. Chism, 436
So.2d 464, 470 (La.1983). When evaluating
circumstantial evidence, the trier of fact must consider

the circumstantial evidence in light of the
direct evidence, and vice versa, [and] the
trier of fact must decide what reasonable
inferences may be drawn from the
circumstantial evidence, the manner in
which competing inferences should be
resolved, reconciled or compromised; and
the weight and effect to be given to each
permissible inference. From facts found
from direct evidence and inferred from
circumstantial evidence, the trier of fact
should proceed, keeping in mind the relative
strength and weakness of each inference and
finding, to decide the ultimate question of
whether this body of preliminary facts
excludes every reasonable hypothesis of
innocence.

Chism, 436 So.2d at 469.

State v. Richardson, 16-107, pp. 5–6 (La.App. 3 Cir. 12/28/16), 210 So.3d 340,

346–47 (alterations in original).

In the instant case, as noted by Defendant in his brief, Ms. Patton’s

testimony was the only evidence that definitively placed him inside the house at

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the time of Ms. Mouton’s death. No one could identify Defendant as the

individual who entered the residence shortly before Ms. Mouton’s death and fled

the scene immediately thereafter, there was no physical evidence that could place

Defendant in the residence, no murder weapon was found, and law enforcement

never recovered any clothing that matched what the individual on the security

footage was wearing. Despite this, we find the State’s evidence is sufficient to

support Defendant’s conviction. While Defendant correctly notes Ms. Patton’s

testimony that she was awake when Defendant came in her room differed from

what she told Detective Comeaux the night of the murder, it does not affect her

identification of Defendant. While Ms. Patton may have only been eleven years

old when her mother was murdered, she was very familiar with Defendant.

Defendant had been Ms. Patton’s stepfather, they had lived together while

Defendant was married to Ms. Mouton, and he was the father of Ms. Patton’s

younger brother. Ms. Patton testified she was positive Defendant was the person

who entered her room.

Ms. Patton’s testimony established Defendant was inside the residence

shortly before Ms. Mouton was murdered; furthermore, there was no evidence that

he was still in the home when Mrs. Montgomery returned from the convenience

store shortly thereafter. As such, the jury, when viewing the evidence in the light

most favorable to the prosecution, could have found the State excluded every

reasonable hypothesis of innocence, thereby proving that Defendant had to be the

individual who shot Ms. Mouton in the head twice then fled the home.

While Defendant makes much of the fact that law enforcement never found

clothing that matched what the individual in the surveillance footage was wearing,

the fact remains Defendant was not arrested until an hour later, at his residence.

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The jury could have easily assumed Defendant changed and disposed of his

clothing in the hour between Ms. Mouton’s death and Defendant’s arrest. Finally,

Defendant has failed to put forward any reasonable hypothesis of innocence in his

brief, aside from a comment that “many individuals entered and exited the home of

Mrs. Montgomery that evening, any one of whom could have shot Ms. Mouton.”

The jury was shown evidence that Defendant had threatened to kill Ms. Mouton if

she reported him to law enforcement, he learned on the day of the shooting that she

had done just that, and Ms. Patton testified Defendant was in the home at the exact

time her mother was murdered. As such, the State disproved the idea that one of

the people who had been at the house earlier in the evening killed Ms. Mouton.

Ms. Patton testified as to what Defendant was wearing when he entered the home.

Video shows a person, who was wearing that same clothing, enter the house after

Mrs. Montgomery left and then flee the home less than two minutes later. As such,

a rational juror could have reasonably found the State refuted any reasonable

hypothesis of innocence.

II. Assignment of Error Number Two

In his second assignment of error, Defendant contends that even if this court

finds he killed Ms. Mouton, it should find him guilty of the lesser, included offense

of manslaughter. The following seems to be Defendant’s basis for this claim:

This volatile relationship seems to reveal that Mr. Savoy was
still enamored with Ms. Mouton. They had a young son together who
was now four years old. Mr. Savoy could not let go. It is quite
possible he learned Ms. Mouton was dating other people, as Crowley
is not a big city. In addition, H[aleigh ]P[atton] testified that on the
night her mother was murdered, her mother was out with a “friend.”

Manslaughter is appropriately defined by La.R.S. 14:31(A)(1) as:

A homicide which would be murder under either Article 30
(first degree murder) or Article 30.1 (second degree murder), but the

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offense is committed in sudden passion or heat of blood immediately
caused by provocation sufficient to deprive an average person of his
self-control and cool reflection. Provocation shall not reduce a
homicide to manslaughter if the jury finds that the offender’s blood
had actually cooled, or that an average person’s blood would have
cooled, at the time the offense was committed[.]

However, this court has previously stated that “an argument alone is not

sufficient provocation to support a verdict of manslaughter.” State v. Johnson, 06-

623, p. 11 (La.App. 3 Cir. 11/2/06), 941 So.2d 696, 704, writ denied, 06-3024 (La.

9/14/07), 963 So.2d 995. As noted by this court in Johnson, “In reviewing the

Defendant’s claim, this court must determine ‘if a rational trier of fact, viewing the

evidence in the light most favorable to the prosecution, could have found the

mitigating factors were not established by a preponderance of the evidence.’” Id at

702 (quoting State v. Hamilton, 99-523, p. 7 (La.App. 3 Cir. 11/3/99), 747 So.2d

164, 168). In the present case, it was impossible for a rational trier of fact to find

Defendant established mitigating factors by a preponderance of the evidence. At

trial, defense counsel questioned multiple witnesses about two men the victim may

have been in a relationship with; however, no evidence was introduced to indicate

the victim was in a relationship with either of those men at the time of her death.

Ms. Cassandra Mouton testified that while she knew Terry Wilson, she did not

know Ms. Mouton was in a relationship with him. She also recognized the name

Jeremy Young, put to her by defense counsel, but stated that he was Ms. Mouton’s

“high school sweetheart.” Additionally, Mrs. Montgomery testified that Jeremy

Young and Ms. Mouton had not been in a relationship since high school, although

she stated Ms. Mouton and Mr. Wilson had been in a relationship in the year

before Ms. Mouton died.

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While Defendant references Ms. Patton’s testimony that her mother may

have been with “a friend,” it was clear from Ms. Patton’s testimony that the friend

was a female acquaintance with whom Ms. Mouton was close friends. There was

no evidence presented to support the suggestion that Defendant killed Ms. Mouton

in “sudden passion” or in “heat of blood,” particularly given their previous

argument was two weeks before Ms. Mouton was murdered.

We find Defendant’s assignment of error lacks merit. Defendant failed to

prove the existence of any “sudden passion” or “heat of blood” mitigating factors.

This is highlighted by Defendant’s inability to state what circumstance actually

caused such a reaction. Instead, he argued to this court that due to the volatile

nature of their relationship, “[i]t is quite possible he learned” Ms. Mouton was in

another relationship and suggested Ms. Mouton was on a date with another man

based on Ms. Patton’s testimony. In short, Defendant presented no evidence to

support the claim that mitigating factors existed.

III. Assignment of Error Number Three

Having challenged the sufficiency of the State’s evidence in his first two

assignments of error, Defendant contests the admissibility of certain evidence in

his third assignment of error. Specifically, Defendant contends “[t]he trial court

erred in denying Defendant’s Motion in Limine regarding statements Ms.

Mouton made while seeking protective orders, accusing Mr. Savoy of

domestic violence.” Defendant argues the statements made by Ms. Mouton in her

applications for protective orders “were testimonial, as well as hearsay, and had to

be excluded under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).”

Furthermore, he contends the State’s argument that the information is admissible

under the forfeiture by wrongdoing provision of La.Code Evid. art. 804(B)(7). In

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Crawford, 541 U.S. at 68 (footnote omitted), the Supreme Court was clear that the

protections of the Sixth Amendment apply to prior testimonial statements:

Where nontestimonial hearsay is at issue, it is wholly consistent
with the Framers’ design to afford the States flexibility in their
development of hearsay law—as does [Ohio v.] Roberts, [448 U.S. 56,
100 S.Ct. 2531 (1980),] and as would an approach that exempted such
statements from Confrontation Clause scrutiny altogether. Where
testimonial evidence is at issue, however, the Sixth Amendment
demands what the common law required: unavailability and a prior
opportunity for cross-examination. We leave for another day any
effort to spell out a comprehensive definition of “testimonial.”
Whatever else the term covers, it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former
trial; and to police interrogations. These are the modern practices with
closest kinship to the abuses at which the Confrontation Clause was
directed.

The forfeiture by wrongdoing exception to the general prohibition against

hearsay is set forth in La.Code Evid. art. 804(B)(7):

(a) Forfeiture by wrongdoing. A statement offered against a
party that has engaged or acquiesced in wrongdoing that was intended
to, and did, procure the unavailability of the declarant as a witness.

(b) A party seeking to introduce statements under the forfeiture
by wrongdoing hearsay exception shall establish, by a preponderance
of the evidence, that the party against whom the statement is offered,
engaged or acquiesced in the wrongdoing.

In Giles v. California, 554 U.S. 353, 128 S.Ct. 2678 (2008), the Supreme

Court ruled the forfeiture by wrongdoing exception required a showing that the

defendant had acted to prevent the victim from testifying. Specifically, the Court

stated:

The manner in which the rule was applied makes plain that
unconfronted testimony would not be admitted without a showing that
the defendant intended to prevent a witness from testifying. In cases
where the evidence suggested that the defendant had caused a person
to be absent, but had not done so to prevent the person from
testifying—as in the typical murder case involving accusatorial
statements by the victim—the testimony was excluded unless it was
confronted or fell within the dying-declarations exception. Prosecutors
do not appear to have even argued that the judge could admit the

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unconfronted statements because the defendant committed the murder
for which he was on trial.

Id. at 361–62.

At the hearing on the its motion, the State acknowledged its burden of

proving by a preponderance of the evidence that Defendant killed Ms. Mouton to

make her unavailable as a witness. The State then argued that in the information

provided by the victim on May 11, 2018, she stated that on May 10, 2018,

Defendant asked her if she was ready to die and told her she better not report him

or else. The State also argued:

I think the only reasonable interpretation of that is that he was gonna
[sic] kill her, because he punched her in the jaw on May 1 st, he
threatened her on May 10th, he was served on May 24th, and he killed
her on May 25th. And the Forfeiture by Wrongdoing Statute says it’s
not hearsay - - it’s an Exception to the Hearsay Rule if you are the
reason that she is not on the stand and you intended it to be that way.
And that’s exactly what we have here.

Ultimately, the trial court ruled the petition was admissible under the

forfeiture by wrongdoing exception. An important aspect of the State’s argument

was its invocation of State v. Moran, 16-868 (La.App. 3 Cir. 5/3/17), 218 So.3d

749, writ denied, 17-1000 (La. 4/16/18), 239 So.3d 831. In Moran, the defendant

was charged with the first degree murder of his wife. The trial court held that Mrs.

Moran’s prior statements to law enforcement (that the defendant had choked her

and then threatened to kill her if she reported him) were admissible under the

forfeiture by wrongdoing exception. Despite the fact that Defendant threatened to

kill Ms. Mouton if she reported him, and she turned up dead the day he was given

notice that she had reported him, Defendant argued that Moran supported his claim

that the forfeiture by wrongdoing exception was inapplicable. This court held:

Mr. Moran’s intent is established by his words and actions
before and after the killing. After Mr. Moran choked his wife, he

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threatened to kill her and himself if she reported him to the police.
Ms. Moran called 911 and told the dispatcher Mr. Moran choked and
threatened her. Ms. Moran also stated that Mr. Moran overheard her
talking to the dispatcher, opened the door, and threatened her again.
He then hid under the house as officers arrived and attempted to
secure the home, waited until the officers left, kicked in the door, and
fulfilled his promise to kill his wife.

Mr. Moran’s arguments that he did not kill his wife with the
intent to make her unavailable to testify are unconvincing. First, the
language of La.Code Evid. art. 804(B)(7) does not mandate that there
must be a case pending against Mr. Moran at the time of the killing to
utilize the forfeiture by wrongdoing provision. Additionally, the facts
of Giles [v. California], 554 U.S. at 353, 128 S.Ct. 2678 [(2008)],
does not indicate there was a charge pending for the prior domestic
abuse allegation or any other criminal act where the victim was
expected to testify.

Id. at 758.

Following Moran, we find the statements made by Ms. Mouton in her

applications for protective orders were admissible under the forfeiture by

wrongdoing exception to the hearsay rule. Like Moran, Defendant threatened to

kill Ms. Mouton if she reported him to police; like Moran, the victim was killed

shortly after Defendant learned she had reported him to police. Although

Defendant contends there were no pending criminal charges against him and the

most he could have been facing was a misdemeanor, the Moran court dismissed

that argument, and so do we.

IV. Assignment of Error Number Four

In his fourth and final assignment of error, Defendant contends “[t]he trial

court erred in denying Mr. Savoy’s Motion to Quash the excerpt of

surveillance video (S-18) obtained from Ms. Isalee Malbrough.” On June 4,

2021, Defendant filed a “Motion to Quash or in the Alternative Motion to Exclude

Surveillance Video and Motion for Sanctions Pursuant to La. C. Cr. P. Art 729.5,”

in which Defendant sought to have video evidence, recovered from the

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surveillance system of the victim’s neighbor, Ms. Isalee Malbrough, excluded from

use at trial after police failed to preserve any of the video evidence beyond a five-

minute time frame between 11:56 p.m. and 12:01 a.m. on the night of Ms.

Mouton’s murder. Defendant contended that the video, based on information

obtained from Officer Osbourne’s body camera, showed multiple suspects enter

and leave the victim’s residence throughout the night of the murder, including

during the time frame of the midnight shooting. A hearing on the motion was held

on August 5, 2021, at which time the trial court denied the motion.

None of the arguments put forth by Defendant in this assignment of error are

actually related to the hearing on the motion to quash; rather, they all relate to the

in-trial objection raised by counsel to the admissibility of the video. At that time,

the trial court ruled, “I’ll admit it conditioned upon facts, on the fact that she

testifies that this is accurately depicted of [sic] what she saw that night on the same

video, that it is a portion of the same video, you know.” Testimony established

that, on the night of Ms. Mouton’s murder, both Officer Osborne and Ms.

Malbrough watched the surveillance footage. At trial, both Officer Osborne and

Ms. Malbrough identified the video entered as State’s Exhibit 18 as a portion of the

video they reviewed from Ms. Malbrough’s security system on the night of the

murder.

Defendant also argues there was a failure to establish a chain of custody of

the video given that testimony from Detective Comeaux at the hearing on the

motion to quash conflicted with Ms. Malbrough’s statement at trial that someone

from law enforcement came to her and retrieved a copy of the video. However, as

this court has previously stated, “[A]ny defect in the chain of custody goes to the

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weight of the evidence, not its admissibility.” State v. Celestine, 11-1403, p. 8

(La.App. 3 Cir. 5/30/12), 91 So.3d 573, 579.

Defendant argues the State failed to lay a foundation for introduction of the

evidence based on La.Code Evid. art. 901(A), which states, “The requirement of

authentication or identification as a condition precedent to admissibility is satisfied

by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” Defendant also cites State v. Rice, 17-446, pp. 2–3 (La.

6/29/17), 222 So.3d 32, 33, which states:

Such evidence may come in the form of testimony by a witness with
knowledge that the matter is what it is asserted to be; indications
of the item’s distinctive characteristics, including its contents,
substance, internal patterns, and other distinctive characteristics; or
evidence describing the process or system used to produce the item
and showing that the process or system produces an accurate result.

In Rice, the supreme court held the testimony of a witness that he had

designed the system and setting forth the details regarding how the system worked

was sufficient to render the video footage admissible. Defendant contends the lack

of such detailed information in the instant case renders the video obtained from

Ms. Malbrough’s security footage inadmissible. We disagree.

As stated in Rice, the evidence sufficient to find a video admissible “may

come in the form of testimony by a witness with knowledge that the matter is what

it is asserted to be[.]” Id. There is no evidence to suggest the video is not footage

from the night of the murder, showing the front of Ms. Mouton’s residence. In

short, Defendant did not argue that the video was not what it purported to be, but

rather he argued that it was not complete.

We find that the evidence presented at trial, namely the testimony of two

witnesses who viewed the footage the night of the murder confirming the video

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was from that night, was sufficient to prove the video was what the State purported

it to be: a clip of security footage from the night of the shooting. As such, this

assignment of error lacks merit.

DECREE

Defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

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