Appeal from the Twenty-First Judicial District Court In and
for the Parish of Livingston State of Louisiana, No. 29246
Div. "F", The Honorable Elizabeth P. Wolfe, Judge
Perrilloux District Attorney Greg Murphy Matthew Belser
Charlotte Foster Brad Cascio Assistant District Attorneys
Livingston, LA Attorneys for Appellee State of Louisiana.
L. Beebe New Orleans, LA, Attorney for Defendant-Appellant
Joshua Michael Mitchell.
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
defendant, Joshua Michael Mitchell, was charged by grand jury
indictment with second degree murder, a violation of La. R.S.
14:30.1 (count 1); and obstruction of justice, a violation of
La. R.S. 14:130.1 (count 2). The defendant pled not guilty
and not guilty by reason of insanity to the charges. During
the first trial, the trial court declared a mistrial because
there were references to other crimes evidence in the
defendant's taped confession. The State took writs, which
were denied by this court. The defendant was retried, wherein
he maintained his dual plea of not guilty and not guilty by
reason of insanity. He was found guilty as charged on both
counts. The defendant filed a motion for postverdict judgment
of acquittal, which was denied. For the second degree murder
conviction, the defendant was sentenced to life imprisonment
at hard labor without benefit of parole, probation, or
suspension of sentence; for the obstruction of justice
conviction, he was sentenced to five years imprisonment at
hard labor. The sentences were ordered to run concurrently.
The defendant now appeals, designating three assignments of
error. We affirm the convictions and sentences.
night of February 25, 2013, Brandon Parnell picked up his
friend, the defendant, in his white Chevrolet 2600 van and
they went to Laguna Beach Daiquiris ("the bar") on
Florida Boulevard in Denham Springs. The defendant was still
upset with Brandon because Brandon had stolen the
defendant's gun a few weeks prior to this night. After
hanging out for a while, they left the bar a little after
10:00 p.m. While Brandon was driving around, the defendant
produced a Taurus .38 Special revolver and shot Brandon once
in the head, killing him. The defendant drove the van back to
the house he was staying at on Michelle Street in Denham
Springs and picked up his friend Kristy Hasty. The defendant
also got some bleach from the house.
the night (and early morning of February 26), Brandon drove
around, disposing of the evidence of the killing. The
defendant drove to downtown Baton Rouge, near the U.S.S.
Kidd, where he and Kristy took the clothes off Brandon's
body and bleached the body. Kristy threw the clothes in a
dumpster. The defendant then drove to a wooded area off of
Old Hammond Highway and dumped items from the van that had
blood on them. The defendant then drove to the Blind River
Canal in St. James Parish. The defendant and Kristy threw
Brandon's body in the canal. The defendant then drove to
a car wash on Memory Lane off of Juban Road in Denham
Springs, and washed out the van.
defendant hid out at a residence on Walker North Road in
Walker, until he was apprehended by the police about ten days
later. The defendant was taken to the Livingston Parish
Sheriffs Office and questioned. In a recorded statement, the
defendant admitted that he shot and killed Brandon. The
defendant also provided the detectives detailed information
of his actions following the killing, wherein he tried to
dispose of any evidence of the murder. The defendant's
recorded statement was played for the jury.
defendant testified at trial. The defendant testified that he
was sexually abused as a child. He was also sexually abused
by a teacher's aide at a residential treatment facility
he was staying at when he was an adolescent. According to the
defendant, he shot Brandon because, when they were riding in
the van, Brandon touched the defendant's leg. This sexual
gesture upset the defendant because it reminded him of his
OF ERROR NO. 1
first assignment of error, the defendant argues the trial
court erred in overruling the defendant's objection to
the State's improper argument, and it abused its
discretion in denying the motion for mistrial. Specifically,
the defendant contends his motion for mistrial should have
been granted because, during closing argument, the State
referred to the defendant's ability to call any witness
he wanted, as well as his failure to call a particular
defendant argues in brief the trial court erred in failing to
grant a mistrial for inappropriate comments made by the State
in the opening statement and closing arguments. The first
issue regards the State informing the jury in opening that,
after the defendant killed Brandon, he went home and picked
up his friend Kristy. The defendant then had Kristy help him
get rid of Brandon's clothes and dispose of Brandon's
body. Defense counsel asked for a mistrial because Kristy was
a witness that could not be found and would not be testifying
a trial. According to defense counsel, the State's
mentioning of Kristy was in violation of the defendant's
right to confront witnesses against him. Defense counsel
suggested that this testimony about Kristy was in violation
of the trial court's ruling on a pretrial motion to
exclude statements by certain witnesses. The trial court
found no confrontation violation and denied the motion for
mistrial may be ordered, and in a jury case the jury
dismissed, when there is a legal defect in the proceedings
which would make any judgment entered upon a verdict
reversible as a matter of law. La. Code Crim. P. art. 775(3).
A mistrial is a drastic remedy which should only be declared
upon a clear showing of substantial prejudice by the
defendant. In addition, a trial judge has broad discretion in
determining whether conduct is so prejudicial as to deprive
an accused of a fair trial. State v. Smith, 418
So.2d 515, 522 (La. 1982). See State v. Berry,
95-1610 (La.App. 1st Cir. 11/8/96), 684 So.2d 439, 449,
writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603.
A reviewing court in Louisiana should not reverse a
defendant's conviction and sentence unless the error has
affected the substantial rights of the accused. See La. Code
Crim. P. art. 921.
the defendant's argument here is baseless, we find no
reason to disturb the trial court's denial of the motion
for mistrial. At the outset, we note that the State did not
violate the trial court's pretrial ruling regarding the
exclusion of statements. About a week before trial on October
15, 2015, one of the issues addressed and ruled on was for a
motion for exclusion of all evidence in violation of the
defendant's right to confrontation. Defense counsel
sought to exclude evidence, particularly "statements or
any mention of their statements through inadmissible
hearsay" of certain witnesses who would not be
testifying at trial, including Kristy. The trial court
granted this motion.
the State mentioned Kristy in its opening statement, it made
no references to any statements by or about Kristy. There was
no reference to any hearsay or anything accusatory said by
Kristy about the defendant and, as such, there was no
confrontation violation of the defendant's right to
confront his accuser. As noted by the trial court in its
ruling denying the motion for mistrial:
And the Motion to Exclude Statements by Witnesses as Hearsay
that we had a ruling on last week, October 15, was against
statements by [Kristy] being offered - thank you - into
evidence or being offered against the defendant. In this
opening statement, Mr. Belser stated that [Kristy] went with
the defendant to clean and dispose of the body, something to
that effect. Her - merely the fact that she was mentioned as
being at the crime scene or being with him is - does not go
against my ruling as to the hearing on those statements by
her that will be offered. There are no statements by her that
will be offered, so the preliminary hearing, I don't find
there's any violation on that in my granting of the
Motion to Exclude Statements by Witnesses Hearsay.
There's no statement by her at this time to exclude.
Underlying that, the fact that she can't be found or
isn't -hasn't been found will not be called and
he's got a right to confront a witness against him,
she's not a witness against him. She's not being
offered as a witness against him. She's just being
mentioned as being at the crime scene with him or right after
the crime scene. So, for those reasons, I'm denying the
the defendant, himself, discussed Kristy's involvement in
helping him dispose of evidence. In his recorded interview
with Lieutenant Brandon Browning, with the Livingston Parish
Sheriffs Office, and Detective Brett Forsythe, with the St.
James Parish Sheriffs Office, the defendant admitted that he
shot and killed Brandon. The defendant then went into detail
about how Kristy rode around with him in the van trying to
decide what to do with the dead body. According to the
defendant, Kristy helped him get rid of Brandon's
clothes, and she helped him dump the body over a bridge, into
water. The defendant's recorded statement was introduced
at trial and played for the jury.
we note that the State's reference to Kristy in its
opening statement was an integral part of its case in proving
the second charge against the defendant, obstruction of
justice (by tampering with evidence). See La. R.S. 14:130.1.
The State addressed these issues when it argued against the
defendant's motion for mistrial:
The [S]tate will not be calling [Kristy]. The only
information that I would be eliciting in regards to [Kristy]
is her participation after the murder was committed and that
comes in through the defendant[']s own statement. The
[S]tate will not be offering any statements made by [Kristy].
So, I don't see [any] confrontation violation here.
the defendant argues that the State made three improper
comments during closing argument, for which the trial court
should have granted a mistrial, namely: the State said the
defense made no attempt to find Kristy; the State said the
defendant had two prior felony convictions, for which he did
not plead not guilty and not guilty by reason of insanity;
and the State said that the defendant was
"well-prepped" for his testimony at trial.
Code of Criminal Procedure articles 770 and 771 govern
improper comments made during closing arguments and authorize
the trial court to correct a prosecutor's prejudicial
remarks by ordering a mistrial or admonishing the jury, at
the defendant's request. Louisiana Code of Criminal
Procedure article 770(2) mandates a mistrial, upon motion of
a defendant, when a remark or comment is made by the district
attorney within the hearing of the jury during the trial or
in argument and refers directly or indirectly to
"[a]nother crime committed or alleged to have been
committed by the defendant as to which evidence is not
Code of Criminal Procedure article 771 provides, in pertinent
In the following cases, upon the request of the defendant or
the state, the court shall promptly admonish the jury to
disregard a remark or comment made during the trial, or in
argument within the hearing of the jury, when the remark is
irrelevant or immaterial and of such a nature that it might
create prejudice against the defendant, or the state, in the
mind of the jury:
(1) When the remark or comment is made by the judge, the
district attorney, or a court official, and the remark is not
within the scope of Article 770 ...
In such cases, on motion of the defendant, the court may
grant a mistrial if it is satisfied that an admonition is not
sufficient to assure the defendant a fair trial.
arguments in criminal cases should be restricted to the
evidence admitted, to the lack of evidence, to conclusions of
fact that may be drawn therefrom, and to the law applicable
to the case. Further, the State's rebuttal shall be
confined to answering the argument of the defendant.
See La. Code Crim. P. art. 774. Prosecutors are
allowed wide latitude in choosing closing argument tactics.
See State v. Draughn, 2005-1825 (La. 1/17/07), 950
So.2d 583, 614, cert. denied, 552 U.S.
1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). The trial judge
has broad discretion in controlling the scope of closing
arguments, and this court will not reverse a conviction on
the basis of improper closing argument unless thoroughly
convinced that the remarks influenced the jury and
contributed to the verdict. See State v. Prestridge,
399 So.2d 564, 580 (La. 1981). See also Draughn, 950
So.2d at 614.
trial court in the instant matter instructed that opening
statements and closing arguments were not evidence. Much
credit should be accorded to the good sense and
fairmindedness of jurors who have seen the evidence and heard
the argument, and have been instructed by the trial judge
that arguments of counsel are not evidence. See State v.
Mitchell, 94-2078 (La. 5/21/96), 674 So.2d 250, 258,
cert, denied, 519 U.S. 1043, 117 S.Ct. 614, 136
L.Ed.2d 538 (1996).
rebuttal closing argument, the State said it could not find
Kristy and that the defendant never tried to find her.
Specifically, the State argued:
Here's what I find funny about what his statement to
Stormyand what she says happened and also to what
he tells Detective Browning about talking to Stormy as well,
is he never tells Stormy about any of this. He wants you to
believe that he told [Kristy] that about all - he said the
unwanted sexual advances by Brandon Parnell, but never tells
Stormy even though he says in his statement to Detective
Browning she was like his sister. Awfully convenient that he
would tell [Kristy], the one person we cannot find. I also
find it convenient that and interesting that the [S]tate has
put forth evidence for you that we have attempted to try to
find [Kristy], but the defense hasn't. Have you heard any
testimony from the defense where they've tried to find
this witness who could back up what [the defendant] is trying
to get you to believe? No; you haven't.
trial, Detective Ben Bourgeois, with the Livingston Parish
Sheriffs Office, testified that they tried to find Kristy,
but could not locate her. The defendant argues in brief that
what the State said in closing argument about Kristy assumed
facts not in evidence, and that, since the State could not
locate her and would not be calling her to testify, its
argument inappropriately shifted the burden of proof.
denying the defendant's motion, the trial court ruled:
Detective Ben Bourgeois's testimony addressed the fact
the [S]tate attempted to find [Kristy] and the argument that
the defendant did not try to find her is simply argument. It
wasn't a fact in evidence, but it was an argument as to
what the evidence did or did not show. I'm going to deny
that finding it's not prejudicial to the defendant so
that he cannot receive a fair trial.
we find no reason to disturb the trial court's denial of
the motion for mistrial regarding the State's comment on
the unavailability of Kristy, it must be pointed out that the
State's reason for mentioning this in closing argument
was not improper for the following reasons.
defendant testified at trial on direct examination that when
he was younger he had been sexually abused by his sister,
step-grandfather, and a teacher's aide at a residential
treatment facility he had stayed at. When the defendant was
riding with Brandon on the way to Laguna Beach Daiquiris (the
bar), they began talking about the gun Brandon had stolen
from the defendant a few weeks before. According to the
defendant, Brandon told the defendant that there were other
ways he (Brandon) could pay the defendant back. The defendant
took Brandon's comment as a sexual suggestion. The
defendant testified that when he was riding in the van on the
way to the bar, he felt overpowered by Brandon.After going to the
bar, they got back in the van and just drove around.
According to the defendant, Brandon looked at the defendant
and grabbed his (the defendant's) left thigh. The
defendant "flashed out, " retrieved a gun from
under his sweater, and shot Brandon. Later on direct
examination, the defendant testified that he told Kristy
everything regarding killing Brandon. According to the
defendant, Kristy was the only person whom he told about what
exactly had happened that night.
the defendant confessed to killing Brandon during his
recorded interview with the police, he never mentioned most
of what he testified to at trial regarding why he came to
kill Brandon. That is, the defendant stated in his interview
that when hanging out with Brandon at the bar, he (the
defendant) started getting angry again over Brandon stealing
his gun. The defendant continued in his statement that when
they left the bar and began riding around, the defendant got
himself, in effect, so worked up over his gun being stolen,
that he shot Brandon. In this interview, the defendant
mentioned nothing about feeling overpowered by Brandon; he
said nothing about any sexual suggestions or gestures by
Brandon; he said nothing about Brandon touching his leg when
they were in the van; he said nothing about past sexual
abuse. In other words, it is only at trial that the defendant
for the first time suggests that he shot Brandon because of
an unwanted sexual advance and his unresolved issues due to
his past sexual abuse.
since there was no one else to testify to verify anything the
defendant said at trial regarding why he killed Brandon,
defense counsel sought on direct examination to establish
that Kristy knew "everything" and she knew
"exactly" why the defendant killed Brandon. As
defense counsel knew, however, Kristy could not be located
and would not be testifying at trial.
State's reference to Kristy in rebuttal closing argument,
thus, was to point out the discrepancy between what the
defendant told the police and what the defendant testified to
at trial regarding the reason why he killed Brandon. The
State made clear it attempted to locate Kristy, but could not
find her. In pointing out that there was no evidence that the
defense sought to find the one witness who could corroborate
the defendant's story of why he killed Brandon, the State
was implying that the defendant had the same subpoena power
as the State. See State v. Uloho, 2004-55 (La.App.
5th Cir. 5/26/04), 875 So.2d 918, 927-28, writs
denied, 2004-1640 (La. 11/19/04), 888 So.2d 192,
2008-2370 (La. 1/30/09), 999 So.2d 753. Moreover, even if
improper, the State's remarks in rebuttal clearly did not
contribute to the verdict or make it impossible for the
defendant to obtain a fair trial. See La. Code Crim. P. art.
775; Uloho, 875 So.2d at 928.
next comment by the State in closing argument for which the
defendant sought a mistrial was that the defendant had two
prior convictions for sexual battery and simple burglary. The
State argued that the defendant did not plead insanity for
either of these convictions. Defense counsel argued that
under La. Code Evid. art. 609.1, the only information
permitted concerning prior convictions is the date, name, and
charge and, as such, the State exceeded the scope of Article
denying the motion for mistrial, the trial court made the
The fact the defendant never pled to not guilty by reason of
insanity on the two prior charges was brought out in
argument. I'm looking at 609.1 of the Code of Evidence.
Code 609.1, Code of Evidence, says that only the date of
conviction and the name of the charge is admissible as
evidence. Now, it doesn't say as evidence in the code,
but as evidence. And I continually say what the [S]tate says
and defense say in opening and closing arguments is not
evidence. It's not something that I rule on admissibility
of. That's an argument by the attorney, not testimony.
Defendant is, I mean, the [S]tate is entitled to argue the
fact that he didn't plead not guilty by reason of
insanity on those two. This was a separate thing. I don't
find it prejudices the defendant to the extent that ...