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State v. Mitchell

Court of Appeals of Louisiana, First Circuit

September 21, 2017


         On 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 Presiding.

          Scott Perrilloux District Attorney Greg Murphy Matthew Belser Charlotte Foster Brad Cascio Assistant District Attorneys Livingston, LA Attorneys for Appellee State of Louisiana.

          Jane L. Beebe New Orleans, LA, Attorney for Defendant-Appellant Joshua Michael Mitchell.


          HOLDRIDGE, J.

         The 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.


         On the 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.[1] The defendant also got some bleach from the house.

         Throughout 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.

         The 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.

         The 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 past.


         In his 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 witness.

         The 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.

         A 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.

         Because 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.

         When 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 motion[.]

         Moreover, 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.

         Finally, 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.

         Next, 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.

         Louisiana 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 admissible."

         Louisiana Code of Criminal Procedure article 771 provides, in pertinent part:

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.

         Closing 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.

         The 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).

         In its 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 Stormy[2]and 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.

         During 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.

         In 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.

         While 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.

         The 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.[3]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.

         When 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.

         Accordingly, 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.

         The 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.

         The 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 609.1.

         In denying the motion for mistrial, the trial court made the following findings:

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 ...

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