Opinion
No. 54,059-KA
11-17-2021
STATE of Louisiana, Appellee v. Jermera Marquez MAYO, Appellant
LOUISIANA APPELLATE PROJECT, By: Mary Constance Hanes, New Orleans, Counsel for Appellant JERMERA MARQUEZ MAYO, Pro Se JAMES E. STEWART, SR. District Attorney, EDWIN L. BLEWER, III, Shreveport, TOMMY JAN JOHNSON, Shreveport, NANCY F. BERGER-SCHNEIDER, Assistant District Attorneys, Counsel for Appellee
LOUISIANA APPELLATE PROJECT, By: Mary Constance Hanes, New Orleans, Counsel for Appellant
JERMERA MARQUEZ MAYO, Pro Se
JAMES E. STEWART, SR. District Attorney, EDWIN L. BLEWER, III, Shreveport, TOMMY JAN JOHNSON, Shreveport, NANCY F. BERGER-SCHNEIDER, Assistant District Attorneys, Counsel for Appellee
Before MOORE, STONE, and HUNTER, JJ.
STONE, J.,
This criminal appeal arises from the First Judicial District Court, the Honorable Judge Katherine Dorroh presiding. The defendant, Jermera Marquez Mayo ("Mayo"), was charged with sexual battery of a victim under the age of 13 years. Mayo elected a bench trial, and was convicted as charged. The trial court sentenced him to 30 years of incarceration at hard labor with the first 25 years to be served without possibility of parole. Mayo now appeals, and asserts that the trial court erred: (1) in denying his motion to represent himself at trial; and (2) in removing him from the courtroom during the trial. For the reasons stated herein, we affirm Mayo's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
We decline to recite the factual details of Mayo's commission of the offense because they are unimportant to the issues presented on appeal.
However, we do note that a video recording of the victim's forensic interview at the Child Advocacy Center ("Gingerbread House") was introduced at trial.
On the day trial was scheduled to begin, Mayo made an oral motion to represent himself (and later referred to his attorney as a "clown" who was trying to "railroad" him). The trial court believed that Mayo's oral motion was a veiled attempt to delay his trial, but still questioned Mayo to determine whether he was capable of representing himself. In colloquy with the court, he admitted that he had a GED as his highest formal education. The trial court denied Mayo's motion for self-representation. Mayo voiced his opinion that the ruling was "bullshit," and continually spoke out of turn, interrupting the attorneys, the judge, and the minute clerk alike.
Additionally, throughout the proceedings, Mayo repeatedly addressed the trial judge as "Ms. Dorroh" despite being corrected
Slightly later in the proceedings, it became apparent that Mayo's purported alibi witness had not appeared to testify, despite having been subpoenaed. Mayo insisted that his counsel had improperly subpoenaed the witness; the trial court examined the subpoena, found that it was valid, and issued a writ of attachment for the witness. Mayo persisted in interrupting the colloquy between the judge and the attorneys, and eventually the trial court warned Mr. Mayo that he would be removed from the courtroom if he did not "calm down."
Mayo allowed the state to examine its first witness without disruption. However, he became disruptive yet again during the testimony of the State's second witness—the victim. The prosecution was questioning the witness regarding the details of Mayo's sexual battery of her, and Mayo screamed an objection that the prosecution was "leading" the witness. The court overruled his objection, and instructed Mayo to be quiet and allow his attorney to do his job. He disregarded the court's admonition, and continued assert that the prosecutor was leading the witness.
The court then advised Mayo that he would be removed from the trial if he did not refrain from disrupting the proceedings. The court recessed the trial, and had Mayo removed from the courtroom to give him a chance to compose himself. Upon resumption of the proceedings, the trial court stated that she could hear Mayo's screaming and yelling as she reentered the courtroom. The trial court again implored Mayo to settle down, and warned him that he would be removed from the trial if he continued to disrupt the proceedings. Mayo stated that he would not calm down, and would keep disrupting the proceedings. In this diatribe, he asked to be removed from the courtroom numerous times, and stated that he would not comply with the court's instruction to stop yelling and disrupting the proceedings. The trial court had Mayo removed from the courtroom and again recessed the trial to allow defense counsel to speak with Mayo in another attempt to calm him. After a 10-minute recess, defense counsel returned and indicated that he had "no luck." At that point, the trial judge proceeded with the trial without Mayo in the courtroom. Afterwards, the trial judge took the matter under advisement and eventually rendered a guilty verdict.
Self-representation
The Sixth Amendment of the United States Constitution grants the defendant in a criminal prosecution the right to assistance of professional legal counsel for his defense against the charges. Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed. 2d 799 (1963). A defendant may waive the right to assistance of counsel and represent himself; to be valid, such a waiver must be knowingly, understandingly, and intelligently made. State v. Conner, 49,351 (La. App. 2 Cir. 11/19/14), 152 So. 3d 209. Courts must indulge every reasonable presumption against the waiver of counsel. State v. Mingo , 51,647 (La. App. 2 Cir. 9/27/17), 244 So. 3d 629, 639, writ denied , 2017-1894 (La. 6/1/18), 243 So. 3d 1064. However, an inappropriate denial of the right to self-representation is not subject to harmless error analysis. Rather, it is a structural error that requires automatic reversal. McKaskle v. Wiggins , 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).
We recently upheld a trial court's denial of a criminal defendant's motion to represent himself raised on the date set for trial in State v. Mingo , supra , wherein we stated:
Once the trial date has arrived, the question of withdrawal of counsel rests with the discretion of the trial court, and the court's ruling will not be disturbed in the absence of a clear showing of an abuse of discretion. Generally, a defendant's request to represent himself may be properly denied if the defendant makes such a request for the first time immediately prior to trial. (Internal citations omitted).
In this case, the trial court did not abuse its discretion in denying Mayo's motion to represent himself. The transcript of the proceedings amply demonstrates that Mayo lacked the knowledge and the composure necessary to represent himself. This assignment of error lacks merit and is rejected.
Removal from trial
The Sixth Amendment to the United States Constitution grants a criminal defendant the right "to be confronted with the witnesses against him." Furthermore, in a felony trial, the defendant's presence is generally required at every important step in the proceedings. To that end, La. C.Cr.P. art. 831 states:
[A] defendant charged with a felony shall be present at all of the following:
...
(4) At all times during the trial when the court is determining and ruling on the admissibility of evidence.
(5) ...[I]n trials without a jury, at all times when evidence is being adduced.
(6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.
However, La. C.Cr.P. art. 832 provides two exceptions to the defendant's right to be present:
A. A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present...and either of the following occur:
(1) He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to be present during the trial.
(2) After being warned by the court that disruptive conduct will cause him to be removed from the courtroom, he persists in conduct which justifies his exclusion from the courtroom. (Emphasis added).
The trial court's decision to proceed with trial without the presence of the defendant is subject to abuse of discretion review. State v. Lewis , 51,672 (La. App. 2 Cir. 11/15/17), 245 So. 3d 233.
Mayo emphatically refused to comply with the court's instruction for him to stop being disruptive in the trial. He repeatedly stated that he would continue to disrupt the trial, and requested numerous times that the trial court remove him from the courtroom. The trial court did not abuse its discretion in removing Mayo from the trial. This assignment of error is rejected.
We have reviewed the entire record and found no errors patent.
CONCLUSION
Mayo's conviction and sentence are AFFIRMED. ON REHEARING
PER CURIAM
In our initial opinion, we addressed the arguments raised by defense counsel. However, Mayo also filed a timely pro se brief which raises additional arguments. We granted rehearing to address Mayo's pro se arguments.
While Mayo's pro se brief does not fully comply with the requirements of Rule 2-12.4 of the Uniform Rules of Louisiana Courts of Appeal, this Court has attempted to ascertain the substance of his arguments and treat them as having been properly raised.
Sufficiency of the evidence
The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the case in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ; State v. Hearold , 603 So. 2d 731 (La. 1992). This standard does not provide an appellate court with a vehicle for substituting its appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So. 2d 517. The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Casey , 99-0023 (La. 1/26/00), 775 So. 2d 1022, cert. denied , 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000). The appellate court does not assess credibility or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So. 2d 442. A reviewing court affords great deference to a trial court's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam , 36,118 (La. App. 2 Cir. 8/30/02), 827 So. 2d 508 writ denied, 02-3090 (La. 11/14/03), 858 So. 2d 422.
In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Elkins , 48,972 (La. App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied , 14-0992 (La. 12/8/14), 153 So. 3d 438. This is equally applicable to the testimony of victims of sexual assault. Id . Such testimony alone is sufficient even when the state does not introduce medical, scientific or physical evidence to prove the commission of the offense. Id .
Mayo challenges the sufficiency of the evidence on multiple grounds. We address each of his arguments in turn and evaluate the evidence as a whole.
"Coercion" of testimony. Mayo argues that the victim's testimony was "coerced" – however, that is a mere conclusory assertion. He provides no details or specific facts that support this claim, but does argue that the mere presence of an unidentified woman in the audience during his trial somehow coerced the victim's testimony. He makes no specific allegations regarding how this woman, by her mere presence in the courtroom, supposedly coerced the victim's testimony. He also argues that the prosecution was "leading" the victim on direct examination and this somehow establishes coercion. We have reviewed the victim's testimony and see no indication of coercion or inappropriate questioning. The trial court correctly overruled Mayo's pro se objection whereby he claimed that the prosecutor was "leading" the witness. Identification. Mayo also challenges the victim's identification of him as the perpetrator. She identified him as the perpetrator after seeing him in the courtroom. She testified that she saw him at four different times on the night of the crime: twice in the house before the incident; once during the incident, which occurred in the bedroom; and once outdoors after the incident. That is sufficient identification.
Mayo seems to additionally suggest that this unidentified woman's mere presence invalidated his trial. This argument is without merit.
Consistency. Finally, Mayo claims that the victim's testimony was inconsistent and therefore incredible. We have reviewed her testimony. It bears no internal inconsistencies. Nor does it conflict with other evidence in the record. Mayo's allegations that materials – which were not introduced into evidence – contradict the trial testimony do not and cannot weigh against the sufficiency of the evidence.
Finally, we have reviewed the evidence as a whole and find that it is sufficient to support Mayo's conviction. This assignment of error is without merit.
Ineffective assistance of counsel
Generally, "ineffective assistance of counsel claims are more appropriately addressed in post-conviction proceedings" – rather than direct appeal. State v. Harris , 2018-1012 (La. 7/9/20), ––– So.3d ––––, 2020 WL 3867207. We address each of Mayo's ineffective assistance of counsel arguments in turn.
Mayo argues that defense counsel provided ineffective assistance at trial by failing to request a continuance when Mayo's purported alibi witness failed to appear on the original trial date of August 14, 2020. However, trial counsel in fact obtained a continuance. On the original trial date, the witness had been properly subpoenaed, and a writ of attachment was issued upon her failure to appear. The court did not stay the proceedings, but left evidence open at the end of the prosecution's case in chief, and a week later, the trial was resumed. The alleged alibi witness gave her testimony on August 20, 2020. In no way did trial counsel perform deficiently with regard to the securing of this witness for testimony. This argument lacks merit and is rejected. Mayo is hereby barred from raising it again.
Mayo also references materials that were not introduced into evidence as supposed impeachment evidence regarding an unspecified witness (or witnesses). However, reading his brief in pari materia, it appears Mayo is alleging that the victim and the other juvenile witness, in their Gingerbread House interviews, did not mention the fact that Mayo was wearing an orange shirt the night of the crime. This court cannot consider materials not introduced into evidence in an appeal. Therefore, we decline to pass judgment on this issue in this appeal. State v. Harris, supra .
Prosecution's disclosure of impeachment evidence
Mayo alleges that the prosecution withheld the recordings of the Gingerbread House interviews of the victim and the other juvenile witness, as well as documents reflecting statements they made to investigating police officers. He claims these recordings constitute exculpatory evidence and/or impeachment evidence against the testimony of victim. However, elsewhere in his brief, Mayo admits that he was allowed to watch the recorded Gingerbread House interviews prior to trial. Therefore, Mayo's accusation that the prosecution withheld evidence is false per his own brief to this court. This argument lacks merit and is rejected. Mayo is hereby barred from raising it again.
However, to the extent, if any, the prosecution failed to disclose other evidence which is materially exculpatory, Mayo is not precluded from pursuing that issue through postconviction proceedings.
Accusation of judicial bias
Mayo makes conclusory accusations of bias against the trial judge. Mayo's complete failure to point out any specific grounds for his accusation is fatal to this argument. Moreover, the trial judge's refusal to allow Mayo to disrupt the proceedings does not constitute bias or "vindictiveness." A trial judge has the duty, right, and power to maintain decorum in proceedings over which she presides. The trial judge's exclusion of Mayo from the trial was quite appropriate in light of his recalcitrant disruption of the proceedings.
CONCLUSION
Mayo's conviction and sentence are AFFIRMED .