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State v. Mitchell

Court of Appeals of Louisiana, First Circuit

September 21, 2017


         On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. 09-14-0338 The Honorable Michael R. Erwin, Judge Presiding.

          Hillar C. Moore, III District Attorney Dylan C. Alge Assistant District Attorney Baton Rouge, Louisiana, Appellee, State of Louisiana.

          Bertha M. Hillman Covington, Louisiana, Defendant/ Appellant, Corderrius Dashon Mitchell.


          PENZATO, J.

         Defendant, Corderrius Dashon Mitchell, was charged by grand jury indictment with attempted armed robbery, a violation of La. R.S. 14:27 and 14:64, and with second degree murder, a violation of La. R.S. 14:30.1.[1] He pled not guilty. Prior to trial, the state dismissed the charge of attempted armed robbery. Following a jury trial, defendant was found guilty as charged of second degree murder. Thereafter, the trial court sentenced defendant to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging two assignments of error concerning issues related to the jury. For the following reasons, we affirm the conviction and sentence.


         On the evening of December 16, 2011, Fausto David Ortiz Herrera, a Honduran citizen, was shot and killed on Tracy Avenue in East Baton Rouge Parish. Around the time of the shooting, the victim's brother saw two black males in the area, but he did not recognize them.

         Shortly after the time of the shooting, East Baton Rouge Parish Sheriffs Deputy Kevin Davis was responding to a suspicious vehicle complaint on Sunnybrook Drive, which dead ends near a wooded area bordering Tracy Avenue. As Deputy Davis turned onto Sunnybrook Drive, he saw the suspicious vehicle driving toward him with its lights off. When Deputy Davis activated his emergency lights, the vehicle sped away and led Deputy Davis on a brief chase down Joor Road, before ultimately stopping on Crestaire Drive. At the dead end of Crestaire Drive, the vehicle stopped and its occupants fled on foot, evading capture that evening. During an inventory of the abandoned vehicle, Deputy Davis found a bill of sale and Louisiana ID with defendant's name on them. Detectives discovered that defendant's residence was located on Courtland Drive, only a couple of blocks away from where the vehicle was abandoned.

         Brendin Sanders testified at trial that he was with defendant on the day and evening of the shooting. Sanders described that he and defendant met up with Reshaud Johnson, Keandre "Kiki" Collins, and David Betz. These five men spent part of the evening riding around together and smoking marijuana. Sanders testified at trial that at some point, one of the others started talking about performing a "lick, " or a robbery, on a "Mexican." Sanders stated that defendant drove his vehicle to a dead end in a neighborhood off of Joor Road. Sanders testified that the other four men exited the vehicle and went into the nearby woods while he waited in the car. Sanders stated that he had seen Betz with a gun, and he saw defendant hand Collins a gun. After the four others were gone for "fifteen to twenty-five minutes, " defendant and Betz returned to the vehicle. Sanders testified that almost immediately after defendant and Betz reentered the car, a police vehicle approached and activated its lights, at which point defendant began to drive the car away. Sanders stated that he jumped out of the vehicle before it reached Joor Road. Sanders indicated that he later spoke with defendant, who asked Sanders to call defendant's mother and tell her that somebody had stolen his car. Sanders testified that he did not "really" know who the shooter was, but he told a detective he believed that Collins was the shooter because he "heard that."

         The state presented evidence at trial that defendant's mother lied to the police about his whereabouts and made a false report of defendant's car being stolen. Defendant's mother admitted that she lied "to protect [her] son" and that she did not know where defendant was or who he was with on the night of the shooting. The state also introduced a video recording of a meeting that defendant had with his mother, grandmother, and uncle in the interrogation room of the police station. The video reflects that during this meeting, one of defendant's family members allowed him to use a cell phone to call another family member and request an alibi for the night of the incident, defendant did not testify at trial.

         JURY ISSUES

         In his only two assignments of error, defendant raises issues concerning the jury. In his first assignment of error, defendant contends that the trial court unlawfully placed time restraints on jury deliberations. In his second assignment of error, defendant argues that the trial court erred in dismissing a seated juror based upon comments she made during trial, replacing her with the alternate juror, and allowing the jury to deliberate without first making a determination regarding whether the other jurors had been tainted by the dismissed juror's remark. Because the first assignment of error is better addressed in light of the second, we address the second assignment of error first.

         Dismissal of Juror

         Following a lunch break on the last day of trial, the trial court went on the record outside of the presence of the jury and stated:

In light of the information that I received that Juror No. 209, Sylvia Davis, has indicated to Juror No. 40, I believe, that the justice system treats black people different, and that her son was beaten half to death by a police officer, and she sued the police department and won her case, and she didn't tell me that during voir dire. Not that I specifically asked that question, but I would assume as an algebra teacher, she's educated enough to know that that's the kind of information we would need to make a decision as to whether or not she could be a fair and impartial juror. And had the state - I don't think there's a way to bring her in and allow the defense to question her as to whether or not she could still be fair and impartial. First of all, because I don't think she can be with this information; and secondly, but if we do that and somehow she claims she can be fair and impartial and let her go back in the jury room, she would know where the information came from and it would make for a very contentious jury atmosphere that I don't think we need to get into. And had the state known of this information or I had known of this ...

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