Opinion
NUMBER 2017 KA 0154
09-15-2017
STATE OF LOUISIANA v. RICHARD HUDSON
Scott M. Perrilloux, D.A. Amite, LA Attorney for Appellee State of Louisiana Kevin V. Boshea Metairie, LA Attorney for Appellant Defendant - Richard Hudson
NOT DESIGNATED FOR PUBLICATION
Appealed from the 21st Judicial District Court In and for the Parish of Tangipahoa, Louisiana
Trial Court Number 1300990 Honorable Jeff Johnson, Judge Scott M. Perrilloux, D.A.
Amite, LA Attorney for Appellee
State of Louisiana Kevin V. Boshea
Metairie, LA Attorney for Appellant
Defendant - Richard Hudson BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. WELCH, J.
The defendant, Richard Hudson, was charged by grand jury indictment with first degree murder, a violation of La. R.S. 14:30, and pled not guilty. The trial court denied the defendant's motion to suppress his confession. After a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant's motion for new trial, motion for post-verdict judgment of acquittal, and motion to arrest judgment. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, assigning error to the denial of his motion for mistrial, the denial of his motion for new trial, the non-unanimous jury verdict, the denial of his motion to suppress his confession, the sufficiency of the evidence, and the admission of the eyewitness identification. For the following reasons, we affirm the conviction and sentence.
At arraignment, the State, in the presence of the defendant and his counsel, informed the trial court that it would not be seeking the death penalty in this matter.
STATEMENT OF FACTS
On January 25, 2013, Sergeant Thomas Mushinsky of the Hammond Police Department (HPD) received a 911 call regarding a shooting at an apartment located at 1082 Oak Street, and he responded to the scene. Upon arrival, Sergeant Mushinsky, an HPD patrol officer, located Raphael Garrison (the victim) on the floor in the kitchen area, checked his vital signs, and noted that the victim was unresponsive and had no pulse or heart rate. The officer secured the scene and summoned the detective division to the scene. HPD Sergeant Edwin Bergeron, a detective assigned to the criminal investigations division at the time, responded to the scene at approximately 2:00 p.m., and was briefed by Sergeant Mushinsky before entering the apartment. Sergeant Bergeron immediately began securing the evidence and taking photographs in processing the scene. Along with the victim's body, a handgun on the floor at the victim's waist splatters and pools of blood, five projectiles, nine millimeter shell casings, and .40 caliber shell casings (a combined total of eighteen shell casings) were located on the floor. Sergeant Bergeron further observed what appeared to be damage as the result of bullet holes in the refrigerator and oven door.
According to the autopsy, the victim suffered multiple gunshot wounds to the head and chest, including a fatal entrance wound on the left forehead, through the brain, with the bullet lodged in his neck, and fatal gunshot wounds to his chest and back (eight gunshot wounds to his trunk in total). The spent projectile removed from the victim's neck was among the evidence collected at the autopsy.
Marijuana found at the victim's residence was also introduced at trial, specifically three vacuum-sealed bags containing marijuana, and one sandwich bag containing five bags containing marijuana. The police further located several additional firearms, including two hunting guns, at the victim's residence.
As the scene was being processed, other officers began canvassing the area and came into contact with Reggionne Franklin, who indicated that she was with the victim (her cousin) prior to the shooting. Franklin provided a description of the suspected shooters and was subsequently interviewed at the HPD by Sergeant Bergeron. The police further determined that the suspects were travelling in a small tan four-door vehicle (a Honda Accord) at the time of the shooting. The officers developed the name "Rich" as a suspect in the case based on the information provided by Franklin, and were told that the subject was the last person to call the victim before he was killed. The police obtained the victim's phone records and determined that the last call to his phone came from a number traced to Gwendolyn Hudson, the mother of Richard Hudson (the defendant). Detective George Bergeron then created a photographic lineup including a photograph of the defendant, and Franklin positively identified the defendant.
The vehicle was discovered at Creeks Apartment off of Highway 51 (just outside of the Hammond city limits), two and a half miles or less from the victim's apartment.
After obtaining a warrant for the defendant's arrest, the officers used the same phone number, presumably being used by the defendant, to determine his whereabouts. Based on the records for the usage of the phone, the police believed that the defendant was in New Orleans at the time. They contacted the New Orleans Police Department (NOPD) for assistance in obtaining and executing a search warrant the next day, January 26, 2013, for 3654 Meadow Park Lane in New Orleans, where the defendant was believed to be located. After the residence was secured by the NOPD, HPD officers entered the residence. At the time of the execution of the search warrant, the defendant and his father were present at the residence. In the defendant's bedroom, the police located, among other things, a magazine clip for a .40 caliber handgun, a box of .40 caliber Smith & Wesson bullets, marijuana wrapped in aluminum foil, and a .380 caliber handgun.
A Smith & Wesson magazine of the same caliber was located during the execution of the search warrant for the suspect's vehicle located near the scene. The victim's truck, which was parked in the parking lot outside of his apartment, contained a box of nine millimeter, full metal jacket bullets.
The defendant was taken into custody by the NOPD and subsequently transferred to the HPD, on January 28, 2013, where a recorded interview was conducted by Sergeant Bergeron. After being advised of and waiving his Miranda rights, the defendant admitted to being present and armed at the time of the shooting. However, he initially denied personally firing a weapon, specifically stating that Terry Landry, with whom he arrived at the victim's apartment to complete a $1200.00 purchase of a quarter pound of marijuana, shot the victim. However, about midway through the approximately one-hour long interview, the defendant admitted to shooting the victim with a .40 caliber firearm.
See Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 964 (1966).
The Honda Accord located near the victim's residence was registered to the mother of Terry Landry. After the defendant was charged in this case, the police continued with the investigation of Landry, who was not located until approximately one year after the murder. Landry did not testify at the instant trial.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number five, the defendant challenges the sufficiency of the evidence. The defendant argues that without the statements he made during the first and third police interviews, which he argues should have been suppressed (see forthcoming assignment of error number four), the remaining evidence is legally insufficient. The defendant notes that Franklin did not see the shooting or see the defendant or anyone else with a firearm, though she was aware that the victim was normally armed. The defendant further notes that the expert witness in DNA analysis, was unable to locate the defendant's DNA on any of the items submitted for analysis, that he implicated Landry during the second interview, and that the remaining statements were insufficient. The defendant specifically concludes that when viewed in the light most favorable to the State, the "remaining evidence" fails to prove his guilt beyond a reasonable doubt.
We note that the defendant has not raised self-defense on appeal and did not directly assert the same at the trial.
When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. See La. C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Hearold, 603 So.2d 731, 734 (La. 1992).
In conducting the review under Jackson, we also must be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987).
Louisiana Revised Statutes 14:30(A) defines first degree murder, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of armed robbery. Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanon, 95-0625 (La. App. 1st Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So.2d 923. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Delco, 2006-0504 (La. App. 1st Cir. 9/15/06), 943 So.2d 1143, 1146, writ denied, 2006-2636 (La. 8/15/07), 961 So.2d 1160.
Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64(A). Armed robbery is a general intent crime. In general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal. State v. Payne, 540 So.2d 520, 523-24 (La. App. 1st Cir.), writ denied, 546 So.2d 169 (La. 1989).
The State bears the burden of proving those elements, along with the burden to prove the identity of the defendant as the perpetrator. State v. Draughn, 2005-1825 (La. 1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139 (La. 11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). Once the crime itself has been established, a confession alone may be used to identify the accused as the perpetrator. State v. Carter, 521 So.2d 553, 555 (La. App. 1st Cir. 1988). It is the fact finder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. See State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051.
In addition to Franklin, several other witnesses who the police made contact with while canvassing the area after the shooting were separately shown the photographic lineup. Though they did not witness the shooting, Ria Gougis, Delwin Davis, Christian Current, and Kaylin Davis were among the witnesses who were shown the photographic lineup. While attending college in Hammond, Gougis was introduced to the defendant by Delwin Davis, their mutual friend. Before the shooting, they attended a back-to-school party at Club LA in Hammond that Thursday night, January 24, 2013. After the party, the group went to the apartment shared by roommates Delwin Davis and Christian Current. The defendant, Terry Landry, and Kodi Bertrand, who arrived in Hammond together, were staying at Davis's and Current's apartment for a few days.
During the course of the evening, Gougis contacted the victim in order to purchase marijuana. Gougis and Kaylin Davis arranged to meet the victim at his apartment to make the transaction. After the purchase, they returned to Delwin Davis's and Current's apartment to smoke the marijuana. The defendant, who was still at the apartment when Gougis and Kaylin Davis returned with the marijuana, asked Gougis to make arrangements for him to purchase a quarter pound of marijuana. As requested, Gougis called the victim back, this time indicating that someone she knew wanted to purchase marijuana from him. The victim, who did not personally know the defendant, stated that he wanted to conduct the transaction at Gougis's dormitory room. However, the defendant and Landry did not show up at Gougis's dormitory as planned. After waiting a while for the defendant and Landry to arrive, the victim told Gougis that he had to leave and asked for the defendant's telephone number. By this point, it was the early morning hours of Friday, January 25. According to Gougis, the victim and the defendant made other arrangements and she did not see or hear from them again. She indicated that she had no reason to believe that the victim would be killed. She subsequently found out about the killing, was interviewed by the police, and positively identified the defendant as the person who planned the marijuana transaction with the victim before he was killed.
Kaylin Davis also identified the defendant in the photographic lineup. However, by the time of trial, she had trouble remembering that the lineup was conducted. Nevertheless, she again identified the defendant in court. She did not know the defendant before that night.
Before the shooting, Franklin was in the vehicle with the victim when he received a phone call and when he subsequently met two guys, one of whom she heard referred to as "Rich" and later identified as the defendant. They initially met the victim near his apartment, and subsequently followed the victim as he led them to his apartment. Franklin specifically testified, "We were supposed to meet at the park, but I don't know what transpired over the phone, and the guys told him that they wanted to meet at his house ... instead." Franklin stayed in the car as the victim and the other two individuals, whom she had never seen before that time, entered the victim's apartment. While they were still in the apartment, Franklin went in to use the restroom. She entered the front of the apartment and went straight into the bathroom located near the entry, and no one acknowledged her presence. While in the restroom, Franklin heard the individuals talking before hearing many gunshots fired. She stayed in the bathroom until the gunfire ceased. Once she exited the bathroom, she saw the victim's body on the kitchen floor and called 911. Franklin testified that she was not initially forthcoming with the police regarding the possible involvement of marijuana because she was afraid. In addition to the photographic lineup, Franklin identified the defendant during the trial.
During the HPD recorded interview, the defendant confirmed that the marijuana transaction began outside of the victim's apartment, and that Landry wanted the victim to measure the drugs on a scale before completing the purchase. The defendant admitted he did not have funds to purchase drugs, but indicated that he initially believed that Landry would pay for the drugs. While he denied that they made plans to rob the victim, he admitted that before they entered the victim's apartment, Landry told him, "Man I'm tryin' to get this ... I'm tryin' to come up
right quick," which indicated that he wanted to benefit financially from the victim. When Landry passed the defendant a gun just before they entered the victim's apartment, to hold "just in case," according to the defendant, he then realized that Landry was planning to rob the victim of the drugs. Shortly after they entered the apartment, the victim lifted his shirt to display a firearm located at his waist, presumably to discourage any surprise attacks. The defendant indicated that he was playing with the victim's dogs when Landry began firing his weapon. At that point the defendant also began firing his gun, indicating that he did so because the victim was aiming his gun toward him and Landry.
After the shooting, Current drove the defendant, Landry, and Bertrand to New Orleans while the vehicle that they arrived in Hammond with remained at Davis's and Current's apartment. Before taking them to New Orleans, Current wondered what was going on and questioned the defendant and Landry. Landry indicated that "things went south" and further informed Current that he and the defendant shot the victim. The defendant added that he almost got shot during the incident. Current, who had known the defendant for years, also identified him in the photographic lineup and in court at the trial. Current did not personally know Landry at the time.
Cheryl Swearingen, a forensic scientist at the Louisiana State Police Crime Lab and expert in firearms examination, examined the firearms, bullets, and shell casings in this case. While the other nine millimeter casings were all fired from the same unknown firearm, one nine millimeter cartridge case recovered at the scene was fired from the nine millimeter pistol in evidence. Swearingen further examined seven .40 caliber shell casings collected at the scene and determined that they were all fired from the same unknown firearm. She was unable to determine whether the .40 caliber projectiles were fired from the same firearm.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984). The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932.
The defendant's confession was consistent with the testimony of the other witnesses as to the events that took place culminating in the shooting. Along with the defendant's own detailed confession, Gougis specifically testified to assisting the defendant in setting up a meeting with the victim before the shooting. Despite the victim's attempts to conduct the transaction in a public place, he was successfully persuaded to allow the defendant and Landry to enter his apartment. While Franklin did not see the shooting, she positively identified the defendant as one of the two individuals who entered the apartment with the victim just prior to his killing. Further, Current specifically testified that after the shooting, Landry told him that things did not go as planned and that he and the defendant shot the victim. Current moreover added that the defendant did not contest Landry's statement, but simply added that he was almost struck in the process. Even accepting the defendant's own version of the facts, he admitted during his recorded confession that before he entered the victim's apartment armed with a gun he realized that the robbery was imminent. Based on the evidence presented, the jury could have reasonably concluded that the victim was killed during the perpetration or attempted perpetration of armed robbery, and that the defendant was guilty of first degree murder.
In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 2014-2295 (La. 1/27/16), ___ So.3d ___, ___, 2016 WL 314814 (per curiam). After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of first degree murder and the defendant's identity as the perpetrator. Accordingly, assignment of error number five lacks merit.
JURY MISCONDUCT
In a combined argument for assignment of error numbers one and two based on jury misconduct, the defendant argues that the trial court abused its discretion in denying the motion for mistrial and his subsequent motion for new trial. The defendant argues that he was denied a fair trial due to the jury's exposure to extraneous information, consisting of material from news sources and the Internet disseminated by one juror to fellow members of the jury. The defendant specifically contends that juror Jasmine Maddox disobeyed the trial court's order to avoid any news coverage regarding the case and proceeded to spread information to other selected jurors. The defendant contends that the jury was contaminated due to the exposure of non-admitted, improper evidence to multiple members of the jury. The defendant argues that due to the gravity of the violations and the multiple jurors impacted, the actions of Maddox destroyed the concept of impartiality and created a presumption of prejudice. Contending that at least half of the jurors were exposed to improper evidence, the defendant argues that the evidence of jury bias was deemed significant by the trial court's removal of multiple jurors.
A criminal defendant has a Sixth Amendment right to a "fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Louisiana Code of Criminal Procedure article 797 protects a defendant's right to an impartial jury. See also La. Const. art. 1, § 16. It is essential that all facts considered by the jury be presented in the courtroom with the full protection of the defendant's rights to confrontation and due process. State v. Sinegal, 393 So.2d 684, 686-687 (La. 1981). A juror who considers evidence not developed or admitted at trial violates his sworn duty and may be guilty of misconduct. State v. Graham, 422 So.2d 123, 131 (La. 1982); State v. Galliano, 93-1101 (La. App. 1st Cir. 6/24/94), 639 So.2d 440, 445, writ granted in part on other grounds and remanded, 94-2030 (La. 1/6/95), 648 So.2d 911. Therefore, if a reasonable possibility exists that extraneous information considered by the jury affected its verdict, a new trial is mandated. Sinegal, 393 So.2d at 687; Galliano, 639 So.2d at 445.
Louisiana Code of Criminal Procedure article 775 provides for a mistrial when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial. A mistrial is a drastic remedy to be invoked only when the defendant suffers such substantial prejudice that he is deprived of any reasonable expectation of a fair trial. The decision whether to grant or to deny a mistrial lies within the sound discretion of the trial court, and will not be disturbed absent a clear abuse of that discretion. State v. Sanders, 93-0001 (La. 11/30/94), 648 So.2d 1272, 1288-1289, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996); State v. Smith, 430 So.2d 31, 44 (La. 1983). Juror misconduct is not grounds for an automatic mistrial; prejudice must also be established. State v. Ireland, 377 So.2d 299, 301 (La. 1979); State v. Day, 414 So.2d 349, 350 (La. 1982). Thus, a mistrial is not warranted on the basis of a juror's exposure to publicity absent a determination that the juror was actually exposed to the publicity in question and was so impressed by it as to be incapable of rendering a fair and impartial verdict. See State v. Young, 569 So.2d 570, 583 (La. App. 1st Cir. 1990), writ denied, 575 So.2d 386 (La. 1991). The trial court has the discretion to use services of alternate jurors rather than to grant a mistrial upon proper finding that this is the best course of action. La. C.Cr.P. art. 789; State v. Womack, 592 So.2d 872, 882 (La. App. 2nd Cir. 1991), writ denied, 600 So.2d 675 (La. 1992).
According to La. C.Cr.P. art. 851(A), "[t]he motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such injustice is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded." The defendant's motion for new trial falls under La. C.Cr.P. art. 851(B)(4), which provides in pertinent part, that the trial court, on motion of the defendant, shall grant a new trial whenever the defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment. The denial of a motion for a new trial is not subject to appellate or supervisory review of the supreme court, except for error of law. See La. C.Cr.P. art. 858. Generally, a motion for new trial will be denied unless the defendant establishes that he has suffered some injustice. La. C.Cr.P. art. 851; State v. Burrell, 561 So.2d 692, 701 (La. 1990), cert. denied, 498 U.S. 1074, 111 S.Ct. 799, 112 L.Ed.2d 861 (1991). Moreover, whether to grant or deny a motion for new trial rests within the sound discretion of the trial court, and that decision will not be disturbed on appeal absent a clear abuse of discretion. State v. Duvall, 97-2173 (La. App. 1st Cir. 12/28/99), 747 So.2d 793, 797, writ denied, 2000-1362 (La. 2/16/01), 785 So.2d 838.
After the State and the defendant rested in this case, the jury was dismissed for the preparation of the jury charges. At the end of the recess, the trial court judge announced that a bailiff informed him that one of the jurors, Jasmine Maddox, had gone on the internet and looked at the original news account of this case and possibly performed additional research on the case. The trial court offered to discharge Maddox and further offered to bring her in for open court voir dire on the issue. One of the defense attorneys immediately moved to discharge Maddox and to replace her with an alternate and the parties agreed with the motion. The other defense attorney inquired as to whether there was any indication that Maddox shared any information with any of the other members of the jury. Thus, the trial court agreed to individually question Maddox and the rest of the members of the jury.
Maddox admitted to seeing the newspaper account on Facebook after the trial commenced. She further stated that she showed a picture of Landry to two other jurors, who she identified as Norma James and Lawanda Irving. When further questioned, Maddox stated that although she read the newspaper account, she did not share that information with the other jurors and only showed the photograph to James and Irving. The trial court excused Maddox from jury service before questioning the remaining members of the jury. Irving confirmed that Maddox showed her a picture of Landry and further confirmed that she was not exposed to any other information about the case. When asked if what she saw would affect her in any way, Irving indicated that it would. She further explained that she was a Christian and did not want to judge the defendant or be involved in this case due to her personal beliefs and feelings of empathy. Considering her statements, the trial court further excused Irving. When the trial court showed the picture of Landry to juror James, she confirmed that Maddox had shown it to her and that she was not exposed to any additional information, but indicated that seeing the photograph would not have any effect on her ability to be fair and impartial to both sides in this case. Without objection from either side, the trial court allowed James to remain on the jury.
Based on the fact that two jurors had been discharged, one of the defense attorneys moved for a mistrial. After the trial court responded that the two alternates would solve the issue, the defense attorney noted that replacing the two dismissed jurors with the alternates significantly changed the composition of the jury. Conceding that the replaced jurors were minorities, the trial court noted that they were the ones involved and therefore had to be removed. The court further noted that the jury still had remaining minorities, and denied the motion for mistrial. The defense attorney objected to the ruling. The other defense attorney requested that the remaining members of the jury be individually questioned as to their potential exposure and the trial court agreed and proceeded to individually question the remaining members of the jury. Juror Daryan Elston confirmed that he was shown the photograph of Landry, but indicated that he was not exposed to any of the facts or circumstances surrounding the case. He further confirmed that seeing the picture would not have any effect on him. He was allowed to stay on the jury without objection from either side. Juror Mercedes Harvey stated that she was aware that another juror had been privy to information but that she had not been personally exposed to any information or effected in any way. She was allowed to stay on the jury without objection from either side. The other members of the jury each indicated that they had not been exposed to any information or affected in any way. Without objection, the trial court allowed the remaining members of the jury to continue with the case.
At the hearing on the motion for new trial, the defendant asked the trial court to reconsider its ruling. The defense attorney noted that the jurors were allowed to remain in the courtroom after they were questioned and could hear the trial court questioning the other jurors. The defense attorney further noted that three jurors who were exposed to something outside of the court room were allowed to stay on the jury. He argued that the fact that the jury had been exposed to something that was not part of the trial was a problem. Conceding that those jurors indicated that they were not affected, the defense attorney argued that out of an abundance of caution, the defendant was entitled to a new trial. The State argued that the trial court properly handled the issue by dismissing Maddox and Irving, the juror who indicated that she had been effected and had empathy in this case. In denying the motion, the trial court noted that Maddox and Irving had been dismissed and that Irving's feelings were the result of her personal beliefs as opposed to the photograph to which she had been exposed. The trial court further noted that the rest of the jury was questioned at the defense's request, and that the jurors were brought into the courtroom one at a time and only allowed to remain in the courtroom after they were questioned.
We note that the trial court dismissed Maddox and Irving and that the testimony of each of the remaining jurors revealed that neither had formed an opinion as to any facts about the case or defendant's guilt or innocence based on any outside information. Each of these jurors unequivocally assured the trial court that they could decide the case entirely from evidence presented in court during the trial. We are convinced that, although one of the remaining jurors saw the photograph of Landry, and one was aware that Maddox had been exposed to information outside of the courtroom, neither were exposed to any facts or circumstances or so impressed as to be incapable of rendering a fair and impartial verdict. Consequently, the trial court correctly denied the defendant's motion for mistrial. We further find no legal error in the trial court's conclusion. Given the circumstances, the defendant has made absolutely no showing of any prejudicial jury misconduct. Thus, the trial court did not err in denying defendant's motion for new trial. These assignments of error lack merit.
NONUNANIMOUS VERDICT
In assignment of error number three, the defendant argues that La. R.S. 14:30(C), as amended by 2007 La. Acts, No. 125, § 1, effective August 15, 2007, is unconstitutional, because it is inconsistent with La. C.Cr.P. art. 782 and La. Const. art. I, § 17, which both require a unanimous verdict for cases in which punishment may be capital. Noting that the pertinent provision of La. C.Cr.P. art. 782 is identical to La. Const. art. I, § 17, the defendant argues that any variation in the interpretation of the two provisions would be illogical. The defendant contends that the rationale for the requirement of a unanimous verdict is that the crime of first degree murder is so serious as to carry the death penalty, even when the death penalty is not sought. The defendant further contends that La. R.S. 14:30(C) as amended by 2007 La. Acts, No. 125 § 1 lacks a procedural mechanism to provide proper notice that the district attorney is choosing not to seek the death penalty, specifically noting that there is no requirement that a written motion be filed by the district attorney to this effect. For all of the above reasons, the defendant concludes that La. R.S. 14:30(C), 2007 La. Acts, No. 125 § 1 is fatally flawed and that his verdict is improper. Thus, the defendant argues that his conviction should be overturned and the matter remanded for a new trial.
In that regard, the defendant notes that the instant record is devoid of written notice that the district attorney was not seeking a capital verdict.
At the outset, we note that it is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below. In order to do so, a party must raise the issue of unconstitutionality in the trial court, the alleged unconstitutionality must be specially pleaded, and the grounds outlining the basis of unconstitutionality must be particularized. See State v. Hatton, 2007-2377 (La. 7/1/08), 985 So.2d 709, 718-719. In the instant case, the defendant failed to raise his challenge to La. R.S. 14:30(C) in the trial court. Nevertheless, we address this issue to reiterate this court's well-settled position on nonunanimous verdicts.
Louisiana Constitution Article I, § 17(A) provides, in pertinent part, that:
A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.Additionally, La. C.Cr.P. art. 782(A) provides as follows:
Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.Louisiana Revised Statutes 14:30(C) as amended by 2007 La. Acts No. 125, § 1, effective August 15, 2007, provide as follows:
(1) If the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of C.Cr.P. Art[.] 782 relative to cases in which punishment may be capital shall apply.
(2) If the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The provisions of C.Cr.P. Art[.] 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply. [Emphasis added.]
Prior to its amendment in 2007, La. R.S. 14:30(C) provided that the penalty for first degree murder was "death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the determination of the jury." No reference was made to La. C.Cr.P. art. 782, and the district attorney was not given the option of seeking a non-capital verdict, which would allow a verdict to be rendered upon the concurrence of ten of twelve jurors under La. C.Cr.P. art. 782(A). The amendment to La. R.S. 14:30(C) became effective before the instant offense was committed. Thus, pursuant to La. R.S. 14:30(C)(2), as amended by Act 125, the nonunanimous verdict rendered by the jury was proper under La. C.Cr.P. art. 782(A), since the State did not seek a capital verdict herein.
It is well-settled that the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute. La. C.Cr.P. art. 61; State v. Walker, 2000-0334 (La. App. 1st Cir. 12/22/00), 775 So.2d 663, 666, writ denied, 2001-0235 (La. 12/7/01), 803 So.2d 23. In this case, once the district attorney opted to prosecute the offense as a non-capital life imprisonment offense, capital punishment was no longer a possibility. Thus, the constitutional provision regarding a criminal case in which the punishment "may be capital" was no longer applicable. The provisions of La. C.Cr.P. art. 782 relative to cases in which punishment is necessarily confinement at hard labor were triggered. Under La. Const. art. I, § 17(A) and La. C.Cr.P. art. 782(A), in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.
In support of his argument that a unanimous verdict was required, the defendant cites the Louisiana Supreme Court's decision in State v. Goodley, 398 So.2d 1068 (La. 1981). In Goodley, 398 So.2d at 1071, the supreme court held that "a unanimous jury is required in a case where the defendant is being prosecuted under an unamended charge of first degree murder, a capital offense, to render any verdict, notwithstanding the fact that the state may have stipulated that it would not seek the death penalty." Quoting La. Const. art. I, § 17 and La. C.Cr.P. art. 782, the court reasoned:
The Legislature, in enacting the controlling provision herein, relied on the severity of the punishment provided for a crime as the basis for its classification scheme in providing the number of jurors which must compose a jury and the number of jurors which must concur to render a verdict.Goodley, 398 So.2d at 1070-71. Finding the defendant's conviction by a nonunanimous jury invalid, the supreme court set aside the conviction and sentence and remanded the case to the trial court for a new trial.
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Thus, the Legislature determined that for crimes that were so serious as to validly carry the death penalty, certain special procedural rules were additionally required, among which was the requirement of a unanimous jury to render a verdict. This determination is not based on an after the fact examination of what crime the defendant may eventually be convicted of, nor is it based on an after the fact examination of what sentence he receives. Rather, the scheme is based on a determination by the Legislature that certain crimes are so serious that they require more strict procedural safeguards than other less serious crimes. It was determined that in charged capital offenses a unanimous verdict for conviction, not just sentencing, is necessary and there is no attendant provision giving the state the authority to alter that scheme on its own motion by simply stipulating that the death penalty will not be sought in a certain case.
Subsequently, in State v. Bertrand, 2008-2215 (La. 3/17/09), 6 So.3d 738, the Louisiana Supreme Court held nonunanimous jury verdicts were not unconstitutional. It noted that La. C.Cr.P. art. 782 "withstands constitutional scrutiny," and because it refused to assume that the United States Supreme Court's "still valid determination that nonunanimous 12 person jury verdicts are constitutional may someday be overturned." Bertrand, 6 So.3d at 743. Relying on Bertrand, the Fourth Circuit Court of Appeal upheld the constitutionality of nonunanimous jury verdicts in non-capital felony cases in State v. Barbour, 2009-1258 (La. App. 4th Cir. 3/24/10), 35 So.3d 1142, writ denied, 2010-0934 (La. 11/19/10), 49 So.3d 396. The United States Supreme Court denied certiorari in Barbour, thereby declining to address the issue of nonunanimous jury verdicts. Barbour v. Louisiana, 562 U.S. 1217, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011).
Upon review of the law and the jurisprudence, we find there is no conflict between La. R.S. 14:30 and La. Const. art. I, § 17(A). When the legislature amended La. R.S. 14:30, a hybrid capital/non-capital first degree murder statute was created. As amended, La. R.S. 14:30(C), now allows for either a capital or non-capital first degree murder charge. We find that the 2007 legislative amendment to the first degree murder statute does not violate La. Const. art. I, § 17(A). The amendment reflects a conscious effort by the legislature to avoid offending the constitution and to modify the penalty provisions of the first degree murder statute so as to avoid conflict with the holding in Goodley. State v. Bishop, 2010-1840 (La. App. 1st Cir. 6/10/11), 68 So.3d 1197, 1205, writ denied, 2011-1530 (La. 12/16/11), 76 So.3d 1203.
The legislative amendment at issue does not deprive the defendant of the constitutional requirement of a unanimous verdict. A unanimous verdict is still required when the State opts to prosecute under La. R.S. 14:30(C)(1), the capital verdict portion of the hybrid statute. By creating La. R.S. 14:30(C)(2), which allows for a non-capital verdict prosecution, the legislature created the "attendant provision" mentioned in Goodley, by which the State is vested with the discretion of pursuing a violation of the first degree murder statute as a capital offense or as a non-capital life imprisonment offense. In Goodley, the court noted, "if the state does not want to meet the unanimous verdict requirement mandated in prosecutions of capital crimes, it can re-charge the defendant with a non-capital crime." Goodley, 398 So.2d at 1071. By amending the first degree murder statute, the legislature created the non-capital crime alternative to a prosecution under La. R.S. 14:30(C)(1), an option that did not exist prior to the amendment. Bishop, 68 So.3d at 1205; see also State v. Mizell, 2005-2516 (La. App. 1st Cir. 6/9/06), 938 So.2d 712, 716. Accordingly, La. R.S. 14:30(C), as amended by 2007 La. Acts, No. 125 § 1 effective August 15, 2007, does not conflict with the provisions of La. Const. art. I, § 17(A). Further, we note that the defendant was given notice in open court at arraignment that the State would not be seeking the death penalty in this case and does not on appeal argue that he did not receive such notice. Thus, we find no impropriety in the nonunanimous verdict in this case. This assignment of error lacks merit.
MOTION TO SUPPRESS CONFESSION
In assignment of error number four, the defendant contends that the trial court erred in denying his motion to suppress the confession. The defendant notes that while Detective Bergeron's hearing testimony indicates that he orally advised the defendant of his Miranda rights before the initial interrogation (at the defendant's residence), he did not articulate what rights were provided or whether the defendant understood and knowingly waived those rights. He notes that he did not incriminate himself during the second interview (at NOPD), instead indicating that Landry was the shooter. Regarding the third interrogation (at HPD), the defendant claims that Detective Bergeron did not recall how any Miranda warnings were explained to the defendant and testified that it did not appear that the defendant understood his rights. The defendant further notes that neither Detective Gemar nor Officer Banquer could provide any assistance as to what took place in Hammond. With respect to the first and third police interviews, the defendant contends that there is insufficient evidence that he understood and knowingly waived his Miranda rights.
As to the second police interview, which took place at the NOPD, the defendant contends that he implicated Landry during that interview. As agreed prior to trial, the interview at the NOPD was not introduced at trial and is not being raised on appeal. --------
The Fifth Amendment to the United States Constitution and article I, § 13 of the Louisiana Constitution protect persons against self-incrimination without first being advised of the right to remain silent and the right to assistance of counsel. A defendant adversely affected may move to suppress any statement from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. C.Cr.P. art. 703(A). Generally, before a confession may be admitted into evidence, the State has the burden of affirmatively showing that it was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements, or promises. La. R.S. 15:451; La. C.Cr.P. art. 703(D); State v. Simmons, 443 So.2d 512 (La. 1983); State v. West, 408 So.2d 1302 (La. 1982); State v. Dewey, 408 So.2d 1255 (La. 1982). The State must specifically rebut a defendant's allegations of misconduct. State v. Gradley, 97-0641 (La. 5/19/98), 745 So.2d 1160, 1166; State v. Vessell, 450 So.2d 938 (La. 1984). Furthermore, if the statement was made during custodial interrogation, the State must show that the defendant was advised of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Petterway, 403 So.2d 1157 (La. 1981); State v. Sonnier, 379 So.2d 1336 (La. 1979).
Whether a showing of voluntariness has been made is analyzed on a case-by-case basis with regard to the facts and circumstances of each case. State v. Benoit, 440 So.2d 129, 131 (La. 1983). The trial court must consider the totality of the circumstances in deciding whether a confession is admissible. State v. Hernandez, 432 So.2d 350, 352 (La. App. 1st Cir. 1983). Testimony of the interviewing police officer alone may be sufficient to prove a defendant's statements were freely and voluntarily given. State v. Maten, 2004-1718 (La. App. 1st Cir. 3/24/05), 899 So.2d 711, 721, writ denied, 2005-1570 (La. 1/27/06), 922 So.2d 544. In determining whether the ruling on the defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979).
A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones, 2001-0908 (La. App. 1st Cir. 11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (La. 4/21/03), 841 So.2d 791. Correspondingly, when a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-281. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751.
At the motion to suppress hearing on July 10, 2015, Sergeant Bergeron testified as to the statements provided by the defendant at his residence in New Orleans, and after he was transported to HPD. Sergeant Bergeron indicated that after a search warrant on the defendant's phone was obtained, the phone was located in New Orleans through a ping/triangulation service in New Orleans. HPD contacted the NOPD and Detective Andrew Packer assisted them in locating the defendant and in obtaining a search warrant for the defendant's residence at Meadow Park Lane in New Orleans. On January 26, 2013, NOPD executed the search warrant while HPD waited outside and entered after the defendant was secured. Detective Bergeron specifically testified, "After they secured the residence and Mr. Hudson was secured, I spoke with him briefly, Mirandized him, and he stated he understood his rights." He further noted that he and the defendant spoke in general and that the defendant said he was in Hammond earlier that day but that he was not involved in any type of shooting.
The defendant was transported to NOPD by Detective Gamar while NOPD Detective Packer and Detective Bergeron completed the search of the New Orleans residence and secured evidence. After completing the search, Sergeant Bergeron went to the NOPD homicide division and monitored the interview conducted by Detective Gamar, during which Landry was implicated as a suspect. Detective Bergeron stated that he may have briefly conversed with the defendant while at NOPD. Two days later, January 28, 2013, the defendant was released to HPD and transported to Hammond. Sergeant Bergeron interrogated the defendant at the Hammond Criminal Investigative Division's Office. At the outset, Sergeant Bergeron advised the defendant of his rights and gave him a copy of the HPD rights form. Sergeant Bergeron testified that he could not recall the specific order of process but believed that he read the rights out loud and asked the defendant if he understood his rights and asked him about his educational level. He noted that the defendant advised that he had one year of college.
Detective Bergeron further confirmed that the defendant did not appear to be under the influence of any substance. When then asked if the defendant appeared to understand everything, Detective Bergeron responded, "[H]e didn't." He further confirmed that no one threatened or coerced the defendant, or promised him anything in exchange for his statement. Additionally, he confirmed that the defendant did not at any point ask for an attorney or request that the interview be ceased. Finally, Detective Bergeron confirmed that the entire interview was recorded and that the defendant signed the waiver of rights form.
We find Detective Bergeron's response, "[H]e didn't" was an apparent inadvertence. After a careful review of the record, including the recorded interview and the testimony presented at the hearing and the trial, we find that the trial court did not abuse its discretion in denying the motion to suppress the defendant's statements. The testimony at the hearing on the motion to suppress, the waiver form, and the audio recording clearly establish that the defendant was fully advised of his Miranda rights and that he executed a written waiver of those rights. Thus, the trial court did not abuse its discretion by finding that the State affirmatively showed the defendant's statements were free and voluntary and were not the result of fear, duress, intimidation, menace, threats, inducements, or promises. We find no merit in this assignment of error.
ADMISSIBILITY OF PRETRIAL IDENTIFICATION
In the final assignment of error, the defendant argues that the trial court erred in admitting a positive witness identification although the witness failed to testify at trial. The defendant notes that while Tyra Green was not called as a witness, her identification statement and the photographic lineup conducted prior to the trial was admitted into evidence and published to the jury.
As noted by the trial court in this case, the defendant did not object when the pretrial lineups, including the one conducted of Green, were admitted into evidence on the second day of trial. The objection came on the third day of the trial after the State and the defense rested, well after the evidence was introduced. An evidentiary issue is not preserved for appellate review, unless a contemporaneous objection to the evidence was entered. See La. C.E. art. 103(A)(1). Because the defendant failed to contemporaneously object to the introduction of the lineup, the challenge to its admission was not preserved for appeal. Furthermore, as also indicated by the trial court, we are convinced that the evidence of Green identifying the defendant was merely cumulative of the unchallenged photographic identifications made by Franklin, Bertrand, Davis, Current, and Gougis, and their trial testimony and in-court identifications. The defendant's confession was played to the jury and the witnesses' account of the events were corroborated by the defendant's confession. Considering these circumstances, the guilty verdict rendered in this case was unattributable to any trial error that may have occurred as a result of the admission of Green's photographic identification. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); La. C.Cr.P. art. 921. We find no merit in the final assignment of error.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.