State of Louisiana v. Scott Allen Cooper

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-456

STATE OF LOUISIANA

VERSUS

SCOTT ALLEN COOPER

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 93636
HONORABLE VALERIE GOTCH GARRETT, DISTRICT JUDGE

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LEDRICKA J. THIERRY
JUDGE

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

REVERSED AND REMANDED.

Alfred F. Boustany, II
Alfred F. Boustany, III
Chase A. Manuel
Boustany Law Firm
421 West Vermilion Street
Lafayette, LA 70501
(337) 261-0225
COUNSEL FOR DEFENDANT-APPELLEE
Scott Allen Cooper

Donald D. Landry, District Attorney
Elliott C. Cassidy, Assistant District Attorney
Fifteenth Judicial District
P. O. Box 288
Crowley, LA 70526
(337) 788-8831
COUNSEL FOR APPELLANT:
State of Louisiana

THIERRY, Judge.

The State of Louisiana appeals a judgment of the trial court granting

Defendant’s Motion for Change of Venue from Acadia Parish to Lafayette Parish.

FACTS AND PROCEDURAL HISTORY

On May 16, 2021, Garrison Gautreaux, a seventeen-year-old male, was found

murdered inside his vehicle in Rayne, Louisiana. An investigation resulted in the

arrest of Defendant, Scott Allen Cooper, and a Co-Defendant, Robert Moreno. Both

were charged with second degree murder.

Judge David Smith was originally alotted the case but recused himself on June

18, 2021. After Judge Smith’s recusal, the case was alotted to Judge Kristian Earles,

who presides over the only other criminal division in Acadia Parish. After increasing

Defendant’s bond, Judge Earles issued an order recusing himself on March 3, 2022.

Upon Judge Earles recusal, the case was randomly assigned to Judge Valerie Gotch

Garrett.

Both Defendants filed motions to change venue in their respective cases.

Defendant Cooper’s Motion for Change of Venue was filed on December 2, 2022.

The motion to change venue alleged that the victim was from a prominent Acadia

Parish family who was related to and/or closely involved with other prominent

families in the area. Specifically, the motion stated that the victim was the godson

of Acadia Parish attorney Scott Stefanski, who along with other family members,

practices law in Crowley, Louisiana. The motion further stated the victim “grew up

in the Stefanski household, with the Stefanski children.” The motion alleged that

due to the “villainization” of Defendant publicly and in social media, the public

perception of Defendant was tainted such that he could not receive a fair trial in the

small, rural parish. Additionally, Defendant alleged that regional and local news

outlets reported, allegedly incorrectly, that Defendant’s conviction for a previous

homicide was overturned due to a technical trial error and that Defendant seemed

remorseful only about the impact the case had on him personally. In addition to

arguing that his case met the factors set forth in State v. Bell, 315 So.2d 307

(La.1975), Defendant contended that this is one of those exceptional circumstances

where prejudice should be presumed. State v. David, 425 So.2d 1241 (La.1983).

The State filed an opposition to Defendant’s motion on January 23, 20232,

arguing a change of venue was not warranted in the present case for either defendant.

The motions to change venue were tried together.

At the hearing on the motion to change venue, counsel for both parties

presented their arguments, and the court took the matter under advisement. On May

11, 2023, the judge issued a lengthy opinion granting the change of venue as to

Defendant Cooper but denying Co-Defendant Moreno’s motion. In the judge’s

ruling, she first noted that the victim, a junior at Notre Dame High School in

Crowley, was very loved by his family, friends, and everyone in the close-knit

community. The small nature and closeness of the community, Judge Garrett stated,

was evidenced by the in-court support shown to the victim’s family, to the point that

Judge Garrett had to reduce the number of people in the courtroom to allow hearings

to be conducted. She explained that the parish is one in which “everyone talks,” and

information that is supposed to remain confidential rarely does. She noted that the

original judge assigned to Defendant’s case set his bond extremely high, then

recused himself. The case was reallotted to another judge, who again increased the

bond amount, then recused himself. Judge Garrett further noted that the victim’s

family instituted a civil action against Defendant, and the judge to whom that case

was initially assigned recused himself as well.

In her ruling, Judge Garrett discussed Defendant’s second argument, that the

views of the community as expressed in comments to Facebook posts by local news
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media and by the Rayne Police Department (evidenced by screenshots of the

posts/comments) indicated a presumption of guilt. The State argued that this

normally occurs in high profile cases, and, at the time of the hearing, nothing had

been reported in the news since June 2021, despite several hearings being held and

bonds reduced. Next, Judge Garrett mentioned Defendant’s argument that the

victim’s relationship with the notable Stefanski family would likely make the

community feel obligated to convict both defendants regardless of the evidence

presented. There was no allegation that this family would influence the jury pool;

rather, as prestigious lawyers and politicians widely known in the community,

arguably their supporters would be inclined to find Defendant guilty. As for

Defendant’s overturned prior conviction, Judge Garrett noted that Defendants

argued that news articles made it sound as though Defendant got off on a

technicality, and the comments on social media reflected a belief that Defendant got

away with murder once and was attempting to do so again. Additionally, Defendant

pointed out that all potential jurors summoned would be exempt from duty for two

years, greatly reducing the available jurors for other trials in the parish.

Both defendants requested a transfer of venue to Lafayette Parish, a place of

higher population. The State contended that the transfer was requested simply for

the defense’s convenience and that any transfer should be to other neighboring

parishes with similar populations. Judge Garrett rejected this argument, noting that

transfer to a similar low population parish would be ineffective. Judge Garrett felt

that Lafayette Parish would be the most judicially efficient due to its proximity to

the original parish and because the Fifteenth Judicial District Court District

Attorney’s main office is located there. In granting the change of venue for all

further proceedings in Defendant’s case to Lafayette Parish, Judge Garrett further

reasoned:
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Mr. Cooper is from this community and has familial ties to this
community. When his prior conviction was overturned, he returned to
this community. In the case of Defendant Cooper, the Court will
specifically take into account the nature of the pretrial publicity, the
severity and notoriety of the offense, the area from which the jury will
be drawn, and the other events occurring in the community which either
affect or reflect the attitude of the community or individual juror toward
the defendant.

The vast majority of pre-trial publicity in this case revolved
around Scott Cooper and his prior criminal case. This Court is very
concerned of [sic] Mr. Cooper’s ability to receive a fair trial due to the
nature of the pre-trial publicity as it relates to articles claiming he “got
off on a technicality.” Through the articles, comments on the articles,
actions in the Courtroom, and overall attitude towards Mr. Cooper
pretrial, this Court believes that the community of persons where his
jury will be pulled from has a prejudice towards him.

As stated above, the test of whether change of venue is required
is whether there can be secured, with reasonable certainty, from citizens
of the parish, a jury whose members will be able to try the case on law
and evidence, uninfluenced by what they may have heard, and who will
give defendant full benefit of any reasonable doubt arising either from
evidence or from the lack thereof. At this time, this Court does not
believe that Mr. Cooper can secure a jury from Acadia Parish, who will
hear this case uninfluenced by the articles and comments made about
him and his past. This Court believes the combination of Mr. Cooper’s
ties with Acadia Parish, his prior criminal history, and the victim’s ties
with this community, gives rise to the granting of Mr. Cooper’s Change
of Venue Motion.

Mr. Cooper has the right to a fair and just trial. This Court
believes that Mr. Cooper can receive that in Lafayette Parish where he
will have the ability to have a jury selected from a larger jury venire
and also from a community of people that are not so invested in his past.

The State lodges this appeal, contending Judge Garrett erred in granting

Defendant’s Motion for Change of Venue, asserting the following assignment of

error:

The district court was clearly erroneous and abused its judicial
discretion in changing the venue of this case because Cooper did not
present sufficient evidence to meet his burden of proof.

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ANALYSIS

I. Applicable Law.

The right to an impartial jury and a fair trial is guaranteed to every defendant.

See U.S. Const. amend. VI; La.Const. art. I, § 16; see also La.Code Crim.P. art.

797(2). “To effect this guarantee, the law provides for a change of venue when a

defendant establishes that he or she will be unable to obtain an impartial jury or a

fair trial at the place of original venue.” State v. Magee, 11-574, (La. 9/28/12), 103

So.3d 285, 298, cert. denied, 571 U.S. 830, 134 S.Ct. 56 (2013).

Louisiana Code of Criminal Procedure Article 622 addresses change of venue

and provides:

A change of venue shall be granted when the applicant proves
that by reason of prejudice existing in the public mind or because of
undue influence, or that for any other reason, a fair and impartial trial
cannot be obtained in the parish where the prosecution is pending.

In deciding whether to grant a change of venue the court shall
consider whether the prejudice, the influence, or the other reasons are
such that they will affect the answers of jurors on the voir dire
examination or the testimony of witnesses at the trial.

The second paragraph of La.Code Crim.P. art. 622 “overrides the challenge

for cause concept and is to be superimposed upon the entire proceeding.” State v.

Bell, 315 So.2d at 310. In Bell, the court explained:

A change of venue ought to be available even though, individually, each
juror is not susceptible to a valid challenge for cause, if the defendant
can show that overriding all of these things and superimposed upon all
of them he still cannot get a fair trial. The change of venue concept
should operate where the state of the public mind against the defendant
is such that jurors will not completely answer honestly upon their voir
dire, or witnesses will be so affected by the public atmosphere that they
will not testify freely and frankly.

Id. Quoting the Official Revision Comment to La.Code Crim.P. art. 622.

In exceptional circumstances, prejudice against a defendant may be presumed.

State v. David, 425 So.2d 1241. “[U]nfairness of a constitutional magnitude will be

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presumed in the presence of a trial atmosphere which is utterly corrupted by press

coverage or which is entirely lacking in the solemnity and sobriety to which a

defendant is entitled in a system that subscribes to any notion of fairness and rejects

the verdict of the mob.” Id. at 1246. Otherwise, the defendant bears the burden of

showing actual prejudice. State v. Vaccaro, 411 So.2d 415 (La.1982); State v.

Adams, 394 So.2d 1204 (La.1981).

In State v. Bell, 315 So.2d at 311, the Louisiana Supreme Court set forth the

relevant factors in determining whether actual prejudice exists:

(1) the nature of pretrial publicity and the particular degree to
which it has circulated in the community, (2) the connection of
government officials with the release of the publicity, (3) the
length of time between the dissemination of the publicity and the
trial, (4) the severity and notoriety of the offense, (5) the area
from which the jury is to be drawn; (6) other events occurring in
the community which either affect or reflect the attitude of the
community or individual jurors toward the defendant, and (7)
any factors likely to affect the candor and veracity of the
prospective jurors on voir dire.

II. Evidence Presented in Support of the Motion to Change Venue.

In the present case, the murder of the victim occurred on May 16, 2021.

Defendant presented at the hearing on the motion for a change of venue news articles

concerning the murder of the victim, his prior offense, the victim’s obituary,

information released by the Rayne Police Department, and comments made online.

On May 20, 2021, State Representative John Stefanski shared the victim’s

obituary online, adding:

This was a tough day. Garrison was a young man with his entire
life in front of him. I knew him personally and know his entire family.
Garrison’s death makes no sense. I think we are all searching for
answers. What I hope is that the person or persons responsible for his
death are quickly brought to justice. Please pray for the Gautreaux
family. Then pray that we bring closure to his murder and find those
responsible.

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The victim’s obituary and several pictures showing his close connection with

the Stefanski family were also included as evidence submitted in support of the

motion for a change of venue. Messages on the funeral home’s website expressed

condolences to the victim’s family and recounted fond memories of the victim.

On May 19, 2021, updated May 21, 2021, klfy.com reported, “Rayne teenager

found shot to death in parking lot, police asking for help in searching for suspect.”

The article reported that the victim was pronounced dead at the scene, and it was

believed he arrived at the location shortly before he was discovered. The public was

asked to provide any information to the Acadian Parish Crime Stoppers’ tip line.

An online post by kpel965.com (date unknown) included Defendant’s mug

shot and stated that 41-year-old Scott Cooper was arrested following the early

morning murder of a 17-year-old male which was reported by the Rayne Police

Department to have happened on May 16 in Rayne. Seven other law enforcement

agencies assisted the Rayne Police Department, and since the investigation was

ongoing, no further details were released.

On an unknown date, klfy.com reported that Chief Stelly stated that

Defendant, of Church Point, Louisiana, was arrested for the murder of the seventeen-

year-old from Rayne.

On May 22, 2021, an article was posted on evennews.com containing an

updated booking photo under the headline, “Rayne PD release updated booking

photo of Scott Cooper, the 41 year old who murdered a 17 year old.” It reported that

Defendant was arrested for the murder of a 17-year-old male in Rayne in a vehicle

parked in the 100 block of North Polk Street. He was booked into the Acadia Parish

Jail for second degree murder with a $2,000,000.00 bond set.

On May 24, 2021, on wgno.com, KLFY reported that Defendant was

previously convicted and sentenced for a murder charge, but a trial error resulted in
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the case being overturned. The article stated that in December 1997, weeks shy of

Christmas day, five shots rang out in a Lafayette parking lot, and the two suspects

drove to a remote area and set the car on fire. The article reported that “Earl Zenon

was inside of the car when it was set on fire, living out the last moments of his life.”

Defendant was arrested for the crime on November 15, 2000. He was convicted as

a principal to second degree murder and sentenced to life in prison with no chance

of parole. The article stated that Defendant attempted to appeal his conviction for

years, claiming civil rights violations. In January 2007, Defendant was granted post-

conviction relief due to a trial error. He was granted a new trial but on a lesser charge

of principal to obstruction of justice. He pled no contest to that charge in March of

2012 and was sentenced to ten years with credit for time served. The article then

stated, “[o]ver two decades has passed since Earl Zenon was shot and killed.

Another family is now mourning the loss of their son.”

On an unknown date, KATC reported under the headline “Two indicted in

shooting death of teen in Rayne,” mugshots of each defendant with a short article

reporting the defendants’ ages, where they were from, and that they were indicted

by a grand jury for the May 16 shooting of Garrison Gautreaux, a student at Notre

Dame High School. The article stated that the victim was found dead in his parked

vehicle, but no details regarding the incident or motive had been released.

Concluding, the article stated the bond amount ($5,000,000.00) and that Defendant

had previously served time for his part in a 1997 murder. A link was provided to

read more about the earlier case.

On May 26, 2021, an article titled “Murder Suspect Accused in Previous

Homicide,” was released on AcadiaParishToday.com. The article recounted the

facts of the prior murder, further stating that after being unsuccessful in claiming

civil rights violations, Defendant was later successful in getting his conviction
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overturned. Because the victim was still alive at the time the car was set on fire and

Defendant was not in the vehicle at that time, the death in the burning car could not

form the basis for a conviction of accessory after the fact of second degree murder.

Thus, Defendant faced a less severe charge of principal to obstruction of justice. He

subsequently entered a no contest plea and was sentenced to ten years in prison with

credit for time served.

On May 27, 2021, KATC news disseminated online an article titled “Man

accused in Rayne teen’s death served time for part in 1997 murder.” This article

provided brief facts of the present case. It went on to state that court records show

this was not the first time Defendant had been accused in connection with a fatal

parking lot shooting. The article provided details concerning the 1997 murder,

naming Vince Moore as the shooter and Defendant as a principal. After being shot

in a drugstore parking lot, the victim, Earl Zenon, was later found in his burned

vehicle, with the subsequent autopsy indicating that he was still alive when the fire

started. The autopsy also revealed the victim was shot in the back of the head,

“indicating he was probably looking out the passenger window – where Cooper was

standing – when he was shot.” After his arrest, Defendant told police that Moore

shot Zenon because he wanted the “big bag of weed” that Zenon had. He denied

knowing that Moore was going to shoot Zenon. Defendant also provided details of

what occurred after the shooting. The men drove the victim’s car to a house where

they picked up a blanket. They then drove to Point Blue where Moore set the car on

fire with Zenon in it, still alive. They drove back to Lafayette, where they smoked

Zenon’s marijuana. Defendant was indicted and convicted as a principal to second

degree murder. After serving approximately seven and one-half years at the

Louisiana State Penitentiary, Defendant’s conviction was vacated due to statements

made by the prosecutor. The new trial was delayed due to pending allotment
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lawsuits, and in 2011, after the original charge was dismissed, Defendant pled no

contest to a charge of principal to obstruction of justice. Although Defendant did

not admit to knowing Moore was going to kill the victim, he did admit to arranging

the purchase of marijuana from the victim. In sentencing Defendant, the judge said

that the only thing Defendant seemed remorseful about was the impact the case had

on his own personal circumstances. At sentencing it was noted that Defendant

(seventeen years old at the time of the offense) was married, a father of five children,

employed, and a regular church attendee. He was sentenced to ten years and six

months but served only four additional days due to credit for time served. The article

reported Defendant was released from probation in April 2015.

On May 21, 2021, the Rayne Police Department posted on its Facebook page

that Chief Stelly announced Defendant’s arrest for the May 16, 2021 murder of a 17-

year-old male after various agencies assisted in the investigation. A week later, on

May 28, 2021, the Department posted an article concerning the arrest of Co-

Defendant Robert Moreno. The article named the agencies that assisted with the

investigation, and Chief Stelly stated that, like all murders, this was a tragedy for the

family and the community. There were 172 reactions to this post and 106 comments.

Approximately six or seven of the sixteen pages of comments contained a back and

forth “rant” between two individuals. A few comments mentioned that this was not

the first time Defendant had killed, with one mentioning that he previously shot

someone and set their vehicle on fire. Another comment mentioned that those

proven guilty should receive the death penalty, and another suggested a rope hung

over a branch at the courthouse square would work. A few others mentioned that the

defendants needed to “rot” and that they did not deserve to live. While some

comments reminded people to not judge until the evidence was presented, others

were extremely supportive of the victim’s family and questioned why others were
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supportive of the defendants. Most of the remaining comments expressed gratitude

to the investigative agencies and concern for the victim’s family.

On May 28, 2021, KLFY reported online that Co-Defendant Moreno had been

arrested and charged with second degree murder, listing very limited facts of the

case. Under this article appeared another article titled “Man accused of murdering

Rayne teenager let off of previous murder charge.” That article simply stated, “Last

week, Scott Cooper, 41, of Church Point, was arrested in connection for the murder.”

The mugshot of Defendant followed.

On May 28, 2021, updated July 7, 2021, nola.com published a picture of

Defendant with a caption stating that he was arrested for second degree murder after

a seventeen-year-old boy, identified by friends and family as Garrison Gautreaux, a

junior at Notre Dame High School in Crowley, was shot and killed in Rayne on May

16.

On June 24, 2021, the Advocate released an online article titled “Two men

indicted on murder charges in death of 17-year-old Garrison Gautreaux,” briefly

stating that Scott Cooper of Church Point and Robert Moreno of Houston were each

indicted for second-degree murder in the death of Garrison Gautreaux who was

found suffering from a gunshot wound to the chest in a vehicle around 1:00 a.m. on

May 16. The victim, a student at Notre Dame High School in Crowley died at the

scene. Each defendant was being held on $5,000,000.00 bond.

Another online article originally posted by “News 15 Staff” on May 16, 2021,

was updated June 24, 2021. The article first reported that, according to Rayne Police

Chief Carroll Stelly, officers were called to the scene of a parking lot in the 100

block of North Polk Street at 1:08 a.m. where they found an unresponsive male in a

truck. The victim was pronounced dead at the scene and was identified by Notre

Dame High School of Acadiana Parish as Garrison Gautreaux, one of their students.
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No further details were given. A second updated article stated that according to

Chief Stelly, Defendant was arrested for the murder and Moreno, from Houston, was

also charged. On June 24, 2021, the post was updated to report that a grand jury

handed down an indictment against both defendants for second degree murder. On

the following page appears a post by Notre Dame High School stating:

Our hearts are heavy today as we mourn the passing of Notre Dame
junior, Garrison Gautreaux. Our thoughts and prayers are with his
family and friends during this difficult time.

In times like these, it seems as though words often fall short as we
struggle to wrap our minds around tragedy. However one thing that we
as a Notre Dame family know how to do well is run to Our Lady, the
patroness of our school, in our hurt and in our suffering, and ask her to
be near to us[.]

In another article posted June 24, 2021, KLFY reported online under the

headline “Pair indicted by Acadia Parish grand jury for May murder in Rayne,” that

Defendant and Moreno were indicted on charges of second degree murder and were

both jailed with a $5,000,000.00 bond each. The article reported that Defendant was

previously convicted of murder, but the conviction was overturned when a district

court found he was denied his right to confront a witness against him. A new trial

was granted for the charge of principal to obstruction of justice, but Defendant

entered a no contest plea and received a ten-year prison sentence.

On June 27, 2021, AcadiaParishToday.com reported the two defendants

(pictures included) had been indicted in the May shooting of the Rayne teen. The

article gave a brief factual account of the murder, then stated Defendant had been

arrested within the week of the murder. The following week, Moreno was arrested,

and both defendants were charged with second degree murder and each with a

$5,000,000.00 bond. The article defined indictment and second degree murder,

adding that if convicted, the defendants faced life sentences without benefits.

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Also introduced at the venue hearing were court minutes dated June 18, 2021,

showing that Judge Smith denied motions for bond reduction for each defendant and

then recused himself; a recusal order by Judge Earles recusing himself from both

defendants’ cases on his own motion “due to presiding over prior criminal

proceedings;” and a recusal order by Judge Privat recusing himself from the civil

lawsuit filed by the victim’s family against Co-Defendant Moreno due to Judge

Privat’s family connection with the victim. Specifically, Defendant noted that all of

the Acadia Parish judges were recused from the criminal matter.

III. Relevant Jurisprudence.

In State v. Lee, 05-2098 (La. 1/16/08), 976 So.2d 109, cert. denied, 555 U.S.

824, 129 S.Ct. 143 (2008), a murder case involving a notorious Louisiana serial

killer, the Louisiana Supreme Court, in upholding the denial of a motion for change

of venue, first discussed the nature of pre-trial publicity. In doing so, the court noted

that the defendant filed over 5,000 pages of printed reports and transcripts published

between 2002 and 2004 concerning the South Louisiana serial killer. Additionally,

all but two of the one hundred twenty-five potential jurors stated they were at least

vaguely familiar with the case. Only thirty-two percent (32%), or forty of the jurors,

were excused for cause due to their exposure to publicity/opinions concerning the

case. The defendant challenged sixteen jurors for cause, which, if all were granted,

would have brought the percentage of cause challenges to forty-four percent (44%).

The court acknowledged that the media coverage was extensive from arrest through

trial, and prior to trial, the defendant was tried and convicted for the second degree

murder of another victim which was reported in the media. The supreme court noted,

“[d]espite media coverage of a defendant’s conviction in another case, such coverage

does not constitute prejudice as long as the coverage is solely factual and not

inflammatory.” Id. at 135. The record showed that the selected jurors assured the
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court that they were able to decide the case based solely on evidence presented, and

the trial court repeatedly admonished them not to view media coverage during voir

dire and trial. Next, in considering the comments of government officials, the

supreme court noted that comments of government officials were not included in

many pretrial articles. Comments made by the East Baton Rouge Parish District

Attorney’s Office involved procedure and court proceedings, and statements by law

enforcement were inconsistent, especially as to the killer’s profile. As to length of

time between comment and trial, the court noted that the defendant was arrested in

May 2003, and his trial began in September 2004. Most of the investigation focused

on other suspects. Thus, the defendant was not subjected to media coverage for a

prolonged period, and publicity did not start until he was identified and arrested.

Next, the supreme court addressed the severity and notoriety of the offense

noting that although extreme, when compared with similar first degree murder

convictions, the facts were, unfortunately, not dissimilar from those previously

reviewed by the court. Addressing the area from which the jury was drawn, the court

noted that East Baton Rouge Parish had a population of 412,852, and the jury pool

summoned was 1,300, which was larger than average. Over ninety-eight percent

(98%) of the jurors polled had some knowledge of the case, but any who knew

parties or witnesses were excused. As for other community events that affected the

community attitude, most of the jurors stated they did not change their lifestyle while

the serial killer was still on the loose. The defendant pointed out that 26,000 tips

were received, but he failed to specify how many were from East Baton Rouge Parish

nor how the tips established community bias. Finally, considering factors that likely

affect the candor and veracity of prospective jurors, the supreme court noted that the

jurors appeared to answer truthfully when asked about the defendant’s guilt. Those

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with a pre-existing opinion stated they could put it aside and consider only the

evidence presented.

Ultimately, the supreme court held that a change of venue was unnecessary:

In summation, considering that less than one-third of the
prospective jurors were excused because of their inability to put aside
their pre-trial exposure, defendant fails to demonstrate in the context of
the other Bell factors that the undoubtedly high press coverage of the
investigation was sufficient to alter the “candor and veracity” of the
jurors’s answers during voir dire examination. In fact, several jurors
expressed their lack of enthusiasm for serving on the jury, despite their
willingness to do so if called upon. The ever-changing profile of the
serial killer, and the public perception of rampant mistakes in the
investigation during the search for the serial killer would work as much
in favor of defendant as the publicity would work against him. As we
have previously observed, “the mere existence of any preconceived
notion as to the guilt or innocence of the accused, without more, is
insufficient to rebut the presumption of the juror’s impartiality.” State
v. Clark, [02-1463 (La. 6/27/03),] 851 So.2d [1055] at 1071[, cert.
denied, 540 U.S. 1190, 124 S.Ct. 1433 (2004)]. Defendant fails to show
the existence of pretrial publicity was such that it would color the
jurors’ voir dire responses to the point of making them unreliable and
that he was therefore deprived of his right to trial by a fair and impartial
jury. After carefully reviewing the record of this matter, defendant
failed to show the trial court abused its discretion in denying his motion
for a change of venue.

Id. at 137.

In State v. Magee, 103 So.3d 285, when assessing the nature and degree of

pretrial publicity in a murder case, the court noted the defendant filed over 200 pages

of newspaper articles, online public comments, television coverage transcripts, and

multiple DVDs of major local media recordings. For approximately two months

after the crimes, the murders were covered on the front page of news sites on

multiple dates, and some of the media coverage during that time was emotionally

charged. Despite the extensive media coverage, voir dire, conducted twenty-eight

months after the shooting, showed that after those excused due to various reasons

(some of which were opinions as to the defendant’s guilt), fifty-seven percent (57%)

of those remaining had no independent knowledge of the facts. Most of the forty-

15

three percent (43%) who had some knowledge of the case had only a vague

recollection of events, which was mostly factual. Those who served on the jury

assured the court they could decide the case based on the evidence presented at trial.

In addressing the connection of government officials to publicity, the defendant

noted that the district attorney made statements to the press regarding the

gruesomeness/brutality of the incident. Comments to the press were also made by

the sheriff. Additionally, the press was allowed to film the defendant, handcuffed

and in prison garb, when he was brought into and out of the courtroom for his 72-

hour hearing. The court noted that all comments by public officials occurred before

June 11, 2007, when the defendant pled not guilty and the court imposed a gag order,

which occurred twenty-eight months before trial. The court found the evidence did

not support the defendant’s claim that a hostile environment prevented him from

receiving a fair trial. Next, in assessing the length of time between publicity and the

trial, the court referred to the two years that elapsed between the initial media flurry

and the trial. The court reviewed voir dire, noting that the prospective jurors were

cautioned against exposing themselves to coverage of the trial, reminding them that

their decisions must be based on what was presented in the courtroom. Defense

counsel was afforded the opportunity to question each juror individually as to their

exposure to media coverage, and those who indicated they would be unable to put

aside pretrial publicity were excused. As for severity and notoriety of the offense,

the court acknowledged that the case was extreme but noted it received no more

notoriety than other capital cases. The court then noted that the 2000 United States

Census showed St. Tammany Parish had a population of 191,268, and 500 were

summoned for the jury pool. Only forty-three percent (43%) had heard something

about the case, and only eleven percent (11%) were removed for having formed an

opinion about the defendant’s guilt.
16

Next, as for other community events that may affect or reflect the attitude of

the jurors toward the defendant, the court noted that although some of the pretrial

publicity focused on the community’s reaction to the crimes, this occurred

approximately twenty-eight months before trial. Further, the court noted that the

public attention given to the victims and to the larger issue of domestic violence after

the crimes did not equate to venire bias, especially considering the percentages

discussed above.

Finally, the court addressed factors likely to affect the candor and veracity of

prospective jurors. As support for his argument, the defendant noted that when

asked to characterize the consensus of the community as to the appropriate

punishment for the defendant, a prospective juror responded, “The death penalty.

I’m just being honest.” Id. at 304. The defendant also argued that the trial court

used an inadequate jury questionnaire and restricted voir dire questioning on the

issue of juror bias. However, the supreme court rejected the defendant’s argument

because the record did not show any limitation placed on defense counsel’s ability

to question potential jurors regarding their knowledge and/or bias. The court held

that the defendant failed to prove the existence of an overriding prejudice in the

community that prevented a fair trial, noting the record revealed the judge and both

attorneys assessed each potential juror’s ability to disregard any factual knowledge

of the case and weigh the evidence presented. The court found no abuse of discretion

in the trial court’s denial of the motion for a change of venue.

In State v. Garcia, 19-920 (La.App. 1 Cir. 3/4/20), 300 So.3d 406, as in the

present case, a motion to change venue hearing was held and granted prior to voir

dire. In support of the motion, the defendant submitted twenty-five local news

articles published in duplicate over three years, as well as a few national articles to

establish that the public would not be able to answer honestly during voir dire
17

because of the atmosphere. The state asserted the issue was premature in that voir

dire had not begun so the mindset of prospective jurors had not been examined. The

motion for change of venue was granted, and the first circuit reversed, finding the

trial court abused its discretion:

The defendant relied solely upon news articles to attempt to
establish that the state of the public mind against him was such that
jurors would not completely answer honestly upon their voir dire or
witnesses would be so affected by the public atmosphere that they
would not testify freely and frankly. However, no polling or survey
information was offered into evidence by defendant. Compare State v.
Felde, 382 So.2d 1384, 1387 (La. 1980) (“[t]estimony was presented
by two experts in poll taking who indicated to the court that potential
jurors would tend not to be truthful during voir dire.”); State v. Montz,
06-1068 (La.App. 4 Cir. 2/28/07), 954 So.2d 190, 191, vacated and trial
court ruling changing venue reinstated, 07-653 (La. 11/21/07), 968
So.2d 727 (per curiam) (pollster testified that, based on two polls, “it
was highly unlikely that the defendants would receive a fair trial in
Orleans Parish.”); State v. McKnight, 95-1486 (La.App. 1 Cir.
12/15/95), 665 So.2d 768, 771, vacated and trial court ruling changing
venue reinstated, 96-0176 (La. 4/19/96), 671 So.2d 933 (professor and
expert in the area of psychology and in the designing and conducting of
surveys testified “comments made by the people surveyed in
Livingston Parish showed hostility toward defendant.”).

Additionally, factual articles have less potential for prejudice
than invidious or inflammatory articles. See State v. Clark, 02-1463
(La. 6/27/03), 851 So.2d 1055, 1071, cert. denied, 540 U.S. 1190, 124
S.Ct. 1433, 158 L.Ed.2d 98 (2004) (“[c]ourts must distinguish,
however, largely factual publicity from that which is invidious or
inflammatory, as they present real differences in the potential for
prejudice.”). In this case, the news articles relied upon by defendant
were factual, rather than invidious or inflammatory. In an article from
2015, Alonso-Llerena is described as “a Cuban national who has
permanent legal residency in the United States.” The fact that
“[n]either defendant speaks English” and that they were “Spanish-
speaking” is referenced in certain articles, but only in the context of
explaining the presence of, or request for funding for, interpreters.
Various articles set forth that the victims were “robbed, beaten,
kidnapped, and strangled” and that their bodies were discovered in the
back seat of their pickup truck in Hammond. However, no details, and
particularly no pictures, concerning these facts are included.

Further, the articles also spanned a period of over three years.
Forty-three articles concerning a double homicide over such an
extended period are less indicative of a hostile public atmosphere
against defendant to overwhelm prospective jurors and witnesses than
a media blitz. See State v. Lee, 05-2098 (La. 1/16/08), 976 So.2d 109,
18

133 & 136, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39
(2008) (“defendant was not the subject of media coverage for a
prolonged period of time,” where approximately sixteen months passed
between arrest and trial and over 5000 pages of printed media and
newscast transcripts were filed into evidence).

Additionally, the trial court ruled upon the challenge to venue
prior to voir dire. Clearly, the court was not required to postpone ruling
upon the motion until after voir dire. However, the number of jurors
excused for cause, if any, may further illuminate whether prejudice
against defendant existed in the public mind. As stated by the supreme
court, “courts have examined the number of jurors excused for cause
for having fixed an opinion as another gauge of whether prejudice exists
in the public mind.... [I]n a community where the majority of
prospective jurors will openly admit to a disqualifying prejudice, the
reliability of other juror’s assurances that they are impartial and have
no preconceived notion may be drawn into question.” Clark, 851 So.2d
at 1071.

News articles in 2015 stated:

Police believe Alonso[-Llerena], who was a landscaper for
the Duplantiers and lived above a barn on their property,
beat his employers until they allowed him access to the
safe, according to a warrant. He then strangled the couple,
who were discovered bound, and transported them with
Garcia to the Hammond truck stop, police allege. The gas
station's surveillance footage of two additional vehicles,
along with cell tower evidence linked Alonso[-Llerena]
and Garcia to the crime. It’s unclear the exact role Garcia
played in the couple's death.

Later articles set forth that “[i]nvestigators have said they believe
Garcia and Alonso[-Llerena] went into the home and beat the couple to
get the information needed to open the safe. Blood was found in several
rooms, according to police.” In a November 19, 2015 article (reported
online November 20, 2015), East Baton Rouge Parish District Attorney
Hillar Moore, III is quoted as saying, “[t]here were two people (in the
Duplantiers’ home), and we suspect it was these two.” In a February 5,
2016 article, Moore is quoted as stating, “[b]ased on the evidence I have
heard, this is the proper indictment.”

To the extent that the East Baton Rouge Parish District Attorney
and the police contributed to the publicity concerning the case, there
was no allegation of, much less any evidence of, a strategy by
government officials to prejudice the public mind against defendant
with the release of publicity. Compare Bell, 315 So.2d at 308 & 311
(defendants, indicted for having incited and participated in a riot in
which five people died and a television reported was severely beaten,
alleged that “the district attorney had prepared a bill of information
charging the defendants with the attempted murder of Bob Johnson, the
19

television newsman who remained comatose, which he would file
shortly prior to the selection of the jury to further gain publicity and
prejudice the public mind.”). Further, prejudice, if any, to defendant
from the comments of government officials would diminish between
the reporting of the comments and the start of the trial still to commence
in this matter.

The murders involved in this case, like any other first-degree
murders, were severe offenses that generated notoriety. Motions for
change of venue, however, have been denied in other first-degree
murder cases of similar or greater notoriety. See Lee, 976 So.2d at 115-
17, 123 n.8, 129, & 132 (recent graduate of the LSU MBA program
stabbed 81 times, raped, and murdered by the South Louisiana Serial
Killer who, approximately one month before trial in East Baton Rouge
Parish (EBRP) was convicted in West Baton Rouge Parish (WBRP) of
the second-degree murder of another victim and news coverage of the
WBRP trial had flooded EBRP); State v. Manning, 03-1982 (La.
10/19/04), 885 So.2d 1044, 1057-59, 1086 & 1103-04, cert. denied, 544
U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005) (defendant engaged
in the perpetration of an aggravated burglary, armed robbery, and
second-degree kidnapping when he killed the sixty-two-year-old
female victim by slashing her throat, fracturing her skull, and fracturing
twelve of her ribs); State v. Hoffman, 98-3118 (La. 4/11/00), 768 So.2d
542, 548-50, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d
277 (2000) (victim kidnapped, robbed, raped, and murdered “execution
style” by her parking garage valet).

We also note that at the time of the 2010 Census, East Baton
Rouge Parish had a population of 440,171. The size of the jury pool to
be summoned is unknown at this time, but given the large population
of East Baton Rouge Parish, the likelihood of a dearth of qualified
prospective jurors is minimal.

Therefore, considering the evidence submitted by defendant, and
in light of the factors set forth in Bell, we find that defendant fell short
of demonstrating prejudice in the public mind such that a fair trial
would be impossible. Accordingly, this assignment of error has merit.

Id. at 410–13 (footnotes omitted). In Garcia, the ruling granting the motion to

change venue was reversed, and the case was remanded for further proceedings.

In State v. Henry, 446 So.2d 1308 (La.App. 2 Cir. 1984), the second circuit

reversed the trial court’s granting of a change of venue where the media publicity

occurred in or prior to May 1983, and the trial did not occur until after January 1984.

The newspaper articles were factual in nature. Although the two isolated television

coverages were more troublesome, there was no proof of a widespread viewing or
20

influence caused thereby. There was no proof that the state participated in the

distribution/broadcasting of the publicity. The court further found that the offense,

although serious, was not particularly severe or notorious to the extent to render a

change of venue necessary. The court concluded:

Applying these facts to the principles enunciated in the
jurisprudence concerning such motions, we conclude that the trial judge
abused his discretion in ordering a change of venue. We are particularly
compelled to arrive at this conclusion when we consider carefully the
written reasons for the ruling of the trial court. There was a limited
amount of evidence presented on behalf of the defendant at the hearing.
Our interpretation of the trial court’s reasons leads us to find that the
evidence presented at the hearing did not form the basis for its ultimate
decision to grant the motion. It is obvious that the trial court was
ultimately swayed by two rather vaguely explained incidents that
occurred outside of the record subsequent to the hearing and which
seemed to concern the propriety of the court’s action rather than any
grounds which have been set forth as a basis for a change of venue
under the Code of Criminal Procedure or the jurisprudence. First of all,
because these considerations are outside of the record, they cannot form
the basis for a change of venue because they are not based on evidence
presented at the hearing or at any other stage of the proceedings. See
State v. Williams, 397 So.2d 1287 (La.1981). Furthermore, it appears
that the overriding consideration in the trial court’s mind was the
protection of the public from false and misguided representations and
the protection of the integrity of the judicial system. While these are
commendable considerations on the part of a judge in the conduct of
his judicial function, they are not the controlling considerations in a
determination of whether a defendant is entitled to a change of venue.
The controlling consideration properly is whether prejudice, influence
or other factors are such that they will affect the answers of the jury on
voir dire and the testimony of the witnesses in such a manner that the
defendant is unable to obtain a fair and impartial trial. In reality, we are
of the opinion that should a trial court allow what are described as two
“frivolous and unfounded statements” occurring outside of the record
to mandate a change of venue the resulting effect of such a ruling would
be to in fact allow such isolated statements to “cast an undue reflection
on the integrity of the judicial system” rather than to protect the
integrity of the judicial system from such irresponsible actions.

Nevertheless, we are cognizant of the fact that the defendant’s
fundamental constitutional guarantee of an impartial jury and a fair trial
should be staunchly protected. Accordingly, in the event that we have
misjudged the situation in our review of the limited facts available to
us in this record or in the event of further publicity or occurrences which
result in adverse publicity to the defendant prior to trial, we simply
vacate the ruling of the trial court and remand with instructions to the
trial court to defer ruling thereon until after the voir dire of prospective
21

jurors in case difficulty is encountered in obtaining an unbiased jury.
See State v. Goodson, 412 So.2d 1077 (La.1982); State v. Rodrigue,
supra. The voir dire of the prospective jurors should be conducted in
accord with the standard proposed by the American Bar Association’s
Standards Relating to Fair Trial and Free Press § 8-3.5 (1980) and the
procedures set forth in State v. Goodson, supra.

Id. at 1312–13.

In State v. Montz, 06-1068 (La.App. 4 Cir. 2/28/07), 954 So.2d 190, vacated

and trial court ruling changing venue reinstated, 07-653 (La. 11/21/07), 968 So. 2d

727 (per curiam), the state appealed the trial court’s ruling changing venue prior to

it conducting a voir dire of jurors. The fourth circuit found the trial court abused its

discretion:

In this case, a voir dire of potential jurors has not yet been
conducted. Rather, the sole testimony presented at the motion hearing
was that of the defendants’ pollster who concluded that, based on two
polls taken on behalf of the defendants, it was highly unlikely that an
impartial jury could be empaneled in Orleans Parish. Mr. Walker
testified that his polls showed that a (1) a high percentage of people saw
the videotape and were familiar with the incident; (2) a majority of
blacks polled think the incident was racially motivated; (3) the fact that
70% of the blacks polled said they could be fair jurors was problematic
in light of the 59% who said they thought the bouncers were guilty.

Clearly, such polls are beneficial to defense counsel in
determining whether to file a motion for change of venue. However,
poll results and the pollster’s subsequent conclusion does [sic] not
constitute an adequate substitute for the voir dire of potential jurors. We
find no jurisprudence wherein a poll served as the primary basis for a
change of venue or where such judgment was reached without an
examination in court of potential jurors and we decline this opportunity
to establish such a precedent. Additionally, we find that the trial court’s
other reasons for granting the motion for change of venue do not rise to
the level of prejudice required by La.Code Crim. Proc. art. 622.
Accordingly, we find that the trial court’s judgment granting the
defendants’ motion prior to conducting a voir dire of potential jurors
was, in effect, premature and an abuse of discretion. Therefore, we
reverse the judgment and remand the matter to the trial court for further
proceedings.

Id. at 192.

On review, the supreme court disagreed, holding:

22

The judgment of the court of appeal is vacated and the ruling of the
district court is reinstated. The trial court’s ruling on a motion to change
venue “is a question addressed to the court’s sound discretion which
will not be disturbed on appeal absent an affirmative showing of error
and abuse of discretion.” State v. Wilson, 467 So.2d 503, 512 (La.1985).
We find no abuse of discretion or manifest error in the trial court’s
ruling. See State v. McKnight, 95-1486, p. 7 (La.App. 1st Cir.12/15/95),
665 So.2d 768, 773 (reversing trial court’s grant of motion to change
venue; in the absence of a mock voir dire or an actual voir dire
examination, defendant failed to show actual prejudice in the collective
mind of the community on the basis of a survey conducted of 30
persons); rev’d 96-0176 (La.4/19/96), 671 So.2d 933-34 (reinstating
order changing venue; no manifest error or abuse of discretion apparent
in trial court’s ruling).

State v. Montz, 968 So.2d 727. We do note that in Montz the defendant introduced

a poll that indicated it was unlikely an unbiased jury could be empaneled in Orleans

Parish, which distinguishes it from the present case where no polling data was

introduced.

Likewise, in State v. McKnight, 95-1486 (La.App. 1 Cir. 12/15/95), 665 So.2d

768, vacated and trial court ruling changing venue reinstated, 96-176 (La. 4/19/96),

671 So. 2d 933, the first circuit found the trial court erred in granting a change of

venue. The victim, a baby, went missing on July 15, 1994. Introduced at the hearing

were fourteen editions (dated July 17, 1994, to January 19, 1995) of the local

newspaper which was distributed twice a week with an average distribution of 9,903

copies. Each edition included one or more articles about the incident ranging from

factual accounts of the search efforts, the arrests, the status of court proceedings, as

well as statement by authorities that the defendant may be arrested for first degree

murder due to evidence of her participation in the child’s death and disposal of the

body. The articles also included extensive discussion of the mysterious death of a

different baby left in the defendant’s care approximately two years earlier. In

addition to the articles, the defendant introduced videotapes from three local

television stations, including fifty-eight broadcasts about the case dating from July

23

15, 1994, through January 26, 1995. Brief press conference footage was contained

on the tape from one station, while the other two stations had more extensive

coverage of the search, discovery of the victim’s body, the funeral, the arrests of the

defendant and her boyfriend, and the subsequent court proceedings. Some footage

showed the defendant in prison clothing and her prison cell. The broadcasts referred

to information received from the District Attorney’s Office and the Sheriff’s Office,

indicating they had reason to believe the defendant was involved and her charges

may be upgraded to first degree murder if additional evidence was found. One report

indicated that the District Attorney stated that the investigation of the death of the

baby two years earlier was being reopened. Finally, the broadcasts contained

interviews of the defendant’s boyfriend and his mother, who both blamed the

defendant for the death of both babies. One report mentioned that authorities were

investigating the possibility that the victim had been molested prior to his death, and

one indicated the defendant twice failed a polygraph test.

Called in support of the motion was a local college professor accepted as an

expert in psychology and the designing/conducting of surveys. She conducted an

informal survey of graduate students from three area parishes and found those from

Livingston Parish were more opinionated and knowledgeable of the case than those

of the other parishes. A more formal survey of people previously called for jury

duty in St. Tammany and Livingston Parishes was conducted with nearly ninety-

seven percent (97%) of the people surveyed in Livingston Parish having knowledge

of the case; twenty of the thirty people believed the defendant was responsible for

the child’s death. Only twenty-one percent (21%) of those in St. Tammany Parish

had knowledge of the case with no one naming the defendant as the person

responsible; seventy-seven percent (77%) did not know who was responsible. After

evaluating the results of the survey and reviewing newspaper articles and television
24

broadcasts on the case, the expert concluded it would be impossible for defendant to

receive a fair trial in Livingston Parish. The trial court granted the motion to change

venue from Livingston Parish. In reversing, the first circuit concluded:

Applying these precepts, we conclude that the defendant has
failed to show there is either actual or presumed prejudice against her
to the degree a fair trial is impossible. As there has not yet been either
a mock voir dire or an actual voir dire examination, it is impossible to
decide at this point whether actual prejudice against the accused exists
on the part of prospective jurors in Livingston Parish. See Wilson, 467
So.2d at 512–14; Goodson, 412 So.2d at 1080. Although the survey
shows the Livingston Parish respondents were overwhelmingly
familiar with the case, the survey alone of only 30 possible jurors does
not establish actual prejudice in the collective minds of the community.
Voir dire will establish whether prospective jurors can lay aside their
impressions or opinions and render a verdict based on the evidence
presented in court.

We also find that this is not a case in which prejudice may be
presumed. The record demonstrates only one courtroom disturbance,
occurring during the hearing on motions, when a witness testified about
the victim’s face having deteriorated as a result of maggots. The court’s
comments indicate the disruption subsided quickly. Although we
reverse the trial court’s ruling, we notice that law enforcement officers
and prosecutors released publicity about the case (through press
conferences and interviews, including several on-camera interviews),
indicating their belief defendant participated in the child’s murder
(something for which she was not charged) and fueling speculation
defendant was involved in the death of the other child. However, we
find the trial atmosphere has not been utterly corrupted by the press
coverage. See Goodson, 412 So.2d at 1080–81. Additionally, defendant
failed to present sufficient testimony establishing the extent of the
publicity. There was no evidence concerning the viewership or ratings
of the television stations or the population of Livingston Parish. See
Clark, 442 So.2d at 1132–33.

....

Thus, we conclude that the record before us does not support the
trial court’s determination that defendant could not have a fair and
impartial trial in Livingston Parish. See Bennett, 527 So.2d at 1128.
Accordingly, the ruling granting the motion for change of venue is
vacated. We are influenced in our decision by the fact that by the time
our judgment is final almost one and one-half years will have elapsed
since the crime and the period of intense publicity following the crime.
In all probability, the force of the publicity will have been spent before
the time the case is set for trial. See State v. Rodrigue, 409 So.2d 556,
560 (La.1982). Nevertheless, in case we have misjudged the situation
in our independent review of the facts, or in the event of further
25

unnecessary release of publicity, the trial court is instructed to defer
ruling on the motion until after conducting either a “mock” voir dire or
the actual voir dire. See Rodrigue, 409 So.2d at 560; State v. Baldwin,
388 So.2d 679, 682 n. 2 (La.1980). See also Bell, 315 So.2d at 311–12.

Id. at 773.

As in Montz, the supreme court disagreed and reversed:

The judgment of the court of appeal is vacated and the ruling of the
district court is reinstated. The trial court’s ruling on a motion to change
venue “is a question addressed to the court’s sound discretion which
will not be disturbed on appeal absent an affirmative showing of error
and abuse of discretion.” State v. Wilson, 467 So.2d 503, 512 (La.), cert.
denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985). We find
no abuse of discretion or manifest error in the trial court’s ruling.

State v. McKnight, 96-176 (La. 4/19/96), 671 So.2d 933, 933–34.

I. Analysis of Law and Jurisprudence to the Facts of this Case.

We note voir dire has not yet occurred in this matter, which renders some of

the analysis utilized in the above cases inapplicable; however, they, along with the

Bell factors, lend guidance. Although we note the trial court was not legally required

to wait until after voir dire to rule on the motion, the number of jurors excused for

cause due to an opinion about Defendant’s guilt or innocence certainly would have

shed more light on the level of prejudice in the public mind. However, as can be

seen from Montz and McKnight, the decision to rule on the motion despite the

absence of a mock voir dire or an actual voir dire examination, cannot provide the

basis for reversal of the trial court’s judgment. That can only happen if we find the

trial court abused its discretion in finding actual prejudice existed such that a fair

and impartial trial in Acadia Parish was not possible.

We find the present case is not one in which prejudice should be presumed.

Based on the record before this court, it has not been shown that the “trial atmosphere

. . . is utterly corrupted by press coverage or . . . is entirely lacking in the solemnity

and sobriety to which a defendant is entitled in a system that subscribes to any notion

26

of fairness and rejects the verdict of the mob.” David, 425 So.2d at 1246. Thus,

Defendant bore the burden of proving actual prejudice.

The court in State v. Garcia, 300 So.3d at 409, discussed the burden a

defendant must meet to demonstrate actual prejudice:

To meet this burden, a defendant must prove more than mere
public general knowledge or familiarity with the facts of the case; he
must demonstrate the extent of prejudice in the minds of the community
as a result of such knowledge or exposure to the case. A defendant is
not entitled to a jury entirely ignorant of his case and cannot prevail on
a motion for change of venue simply by showing a general level of
public awareness about the crime; rather, he must show that there exists
such prejudice in the collective mind of the community that a fair trial
is impossible. Whether a defendant has made the requisite showing of
actual prejudice is a question addressed to the district court’s sound
discretion which will not be disturbed on appeal absent an affirmative
showing of error and abuse of discretion.

Although we recognize the discretion given to the trial court’s judgment in

this area, we find the trial court abused its discretion by granting the motion to

change venue.

Considering first the nature of pretrial publicity and the degree to which it

circulated in the community, as discussed above, most of the coverage of this murder

and Defendant’s prior conviction circulated in the few months following the murder.

Defendant introduced seven online articles from different sources. A review of these

articles reveals the coverage was factual in nature with very little being written that

could reasonably be considered inflammatory. It is also relevant to note that the last

of these articles was published on June 27, 2021, nearly two years prior to the trial

court’s ruling in this case. The details regarding Defendant’s prior offense were

arguably the most inflammatory of the articles, because it detailed the facts that the

victim in that prior case was alive when his car was set on fire, and although

Defendant did not set the fire, he was present. A review of that article reveals it was

factual in nature and set forth that Defendant was originally convicted as a principal

27

to second degree murder and sentenced to life in prison with no chance of parole.

The article then noted Defendant was granted post-conviction relief due to a trial

error. He was granted a new trial but on a lesser charge of principal to obstruction

of justice. He then pled no contest to that charge in March 2012 and was sentenced

to ten years with credit for time served. One article discussing the prior offense did

conclude with the statement that “[o]ver two decades has passed since Earl Zenon

was shot and killed. Another family is now mourning the loss of their son.” While

that comment does involve some degree of editorializing, it certainly is not a

commentary on Defendant’s guilt or innocence or not factual in nature. Counsel for

Defendant both in brief and at oral argument strongly implored that the community

would believe that Defendant “got off on a technicality” from his prior offense and

“killed again.” The State notes the phrase “got off on a technicality” is never used

and the word “technicality” was used only one time in a May 26, 2021 online article.

In our view, the first Bell factor, the nature of the pretrial publicity and the degree to

which it circulated in the community, does not weigh in favor of granting the change

of venue in this case.

As for the second factor, the connection of government officials with the

release of the publicity, as discussed above, information was released by the Rayne

Police Department, and it was factual in nature. The information quoted from the

police chief in the media was factual in nature. Clearly, this factor did not support a

change of venue, and the trial court noted in its reasons that it did not consider this

factor.

As for the length of time between the publicity and trial, we note trial is

currently set for November 2, 2023, and the information released was in early to

mid-2021. Obviously, it is unknown what will be released between now and the

time of trial, however there is no basis to argue this factor favors the granting of a
28

change of venue. The trial court noted in its reasons that it did not consider this

factor.

The fourth Bell factor concerns the severity and notoriety of the offense. The

facts of this case, while severe and notorious due to the youth of the victim and his

connection to those well known in the community, are unfortunately not unlike those

previously reviewed by this court.1 State v. Kirklin, 21-550 (La.App. 3 Cir. 2/23/22)

(unpublished opinion) (2022 WL 534255), writ denied, 22-449 (La. 6/15/22), 339

So.3d 644 (defendant approached the minor victim (a recently estranged friend) from

behind as he rode his bike past the defendant’s house and shot him multiple times);

State v. Jackson, 15-393 (La.App. 3 Cir. 11/4/15), 179 So.3d 753, writ denied, 15-

2191 (La. 5/2/16), 206 So.3d 877 (two-year-old victim died from duodenal

perforation at the hands of the defendant). Unquestionably, this case does not have

the notoriety of State v. Lee, 976 So.2d 109 (involving the notorious South Louisiana

Serial Killer) and State v. Manning, 03-1982 (La. 10/19/04), 885 So.2d 1044, cert.

denied, 544 U.S. 967, 125 S.Ct. 1745 (2005) (where the defendant engaged in the

perpetration of an aggravated burglary, armed robbery, and second-degree

kidnapping and killed a sixty-two-year-old female victim by slashing her throat,

fracturing her skull, and fracturing twelve of her ribs) where motions to change

venue were denied. As to any evidence presented as to the notoriety of the offense,

the trial court did reference the public comments made to some of the articles;

however, there is no way of knowing if any of the specific comments noted by the

trial court were made by residents of Acadia Parish. Thus, considering it was

Defendant’s burden to establish this factor with something more than speculation, it

does not support changing venue from Acadia Parish.

1
This was the analysis employed in Lee, 976 So.2d 109 and Magee, 103 So.3d 285.

29

Next, the fifth Bell factor considers the area from which the jury would be

drawn. Acadia Parish had a population of 57,576 per the April 1, 2020 Census,

which makes it the eighteenth most populous parish in Louisiana. Obviously,

Lafayette Parish has a greater population, with 241,753 residents according to the

2020 Census. Clearly, Lafayette Parish would offer a larger jury pool to choose

from, however, that alone is not sufficient to warrant a change of venue. The written

reasons rendered by the trial court reveal it drew several conclusions in determining

Defendant could not receive a fair and impartial trial in Acadia Parish. It referred to

Acadia Parish as a “small, close knit community” and “a parish where the phrase

‘everybody talks’ is true; information that is supposed to remain confidential,

typically will not remain as such.” These conclusions were not supported by any

evidence adduced at trial and were speculative by the trial court. The trial court did

note that it felt the need to halt court proceedings “on occasion” due to the number

of people attending. One of these proceedings, a bond reduction hearing, was held

on the one-year anniversary of the victim’s death, which certainly could explain the

emotional impact that event, on that date, may have had on family and friends. We

agree with the State that it was erroneous for the trial court to assume the behavior

of approximately one hundred emotionally invested people would mirror that of a

parish of nearly 60,000 residents.

As for the sixth Bell factor, other events occurring in the community affecting

or reflecting the attitude of the community toward Defendant, we note the coverage

of Defendant’s prior offense arguably had a negative impact; but the extent simply

is unknown. The attitude of the community (even assuming the comments were

made by residents of Acadia Parish) was reflected in Facebook comments and some

were inflammatory; however, as with the news/media coverage, the comments were

made well in advance of trial. Additionally, Defendant argued the fact that Judges
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Smith and Earles recused themselves from this criminal case reflects a prejudice

against him. There was no indication as to why Judge Smith recused himself; while

Judge Earles issued a Recusal Order stating that he recused himself based on

“presiding over prior criminal proceedings which renders him unable to conduct a

fair and impartial trial.” The record indicates Judge Earles presided over

proceedings involving Defendant’s prior conviction. As the State notes, Defendant

did not call either judge to testify as to the reasons for recusal. Judge Scott Privat

also recused himself from a civil action filed by the victim’s family. Judge Privat

mentioned a close relationship with the victim’s family and that he was a member

of the “Notre Dame Community.” Although the recusals are a matter of public

record, Defendant did not provide evidence or anything other than speculation that

these judge self-recusals were indicative of any parish-wide bias against Defendant.

The State also notes it introduced into evidence the court minutes demonstrating that

Judge Michelle Breaux, who had replaced Judge Privat, denied a motion to change

venue in the civil action. The trial court did not reference this factor in the reasons

for judgment.

Finally, as for any factors likely to affect the candor and veracity of the

prospective jurors, the fact that the victim and his family are connected to prominent

people in the community may affect the candor of the prospective jurors in Acadia

Parish, but without voir dire, it is difficult to know the extent. The trial court also

stated in its reasons that it did not consider this factor.

As in Garcia, we find the trial court abused its discretion in that Defendant

failed to prove prejudice in the public mind such that a fair trial would be impossible

in Acadia Parish. The articles and news coverage presented at the hearing were from

within the first several months of the crime in 2021, and were mostly factual, not

inflammatory. Moreover, no polling evidence was offered, and there was no
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testimony from any witness to substantiate the trial court’s conclusion that “the

community of person’s where [Defendant’s] jury will be pulled from has a prejudice

towards him.” The law is clear that the burden is on the Defendant seeking a change

of venue to demonstrate the extent of prejudice in the minds of the community as a

result of such knowledge or exposure to the case.

Accordingly, considering the evidence submitted by defendant, viewed in

light of the factors set forth in Bell, we find Defendant did not meet his burden of

demonstrating prejudice in the public mind such that a fair trial in Acadia Parish

would be impossible. Therefore, the trial court erred in granting the change of

venue.2

DECREE

For the foregoing reasons, the judgment of the trial court granting the motion

for change of venue is reversed. This case is remanded for further proceedings.

REVERSED AND REMANDED.

2
As we noted earlier in this opinion, there is no legal requirement for the trial court to
conduct voir dire before ruling on a motion for a change of venue. Similarly, we are aware of no
legal impediment that prevents Defendant from re-urging/re-filing a new motion to change venue
should voir dire reveal a perceived level of bias in the jury pool once it commences.
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