STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 KA 0920
VERSUS
FRANK GARCIA
Judgment Rendered: MAR 0 4 2020
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 12- 15- 0311
Honorable Trudy M. White, Judge Presiding
Hillar C. Moore, III Counsel for Plaintiff/ Appellant District Attorney State of Louisiana Allison Miller Rutzen Assistant District Attorney Baton Rouge, Louisiana
Michael A. Mitchell Counsel for Defendant/ Appellee Baton Rouge, Louisiana Frank Garcia
BEFORE: MCCLENDON, WELCH AND HOLDRIDGE, JJ.
Congas - A wk tf McCLENDON, 7.
Defendant, Frank Garcia, and codefendant, Ernesto Alonso- Llerena, were charged
by grand jury indictment with two counts of first degree murder, violations of LSA- R. S.
14: 30. Defendant entered a plea of not guilty on both counts.' He moved to sever,
arguing, inter aiia, that Alonso- Llerena had made inculpatory statements regarding his involvement in the crimes, and it was anticipated the State would introduce those
statements at trial. See Bruton v. U. S., 391 U. S. 123, 135- 36, 88 S. Ct. 1620, 1627- 28,
20 L. Ed. 2d 476 ( 1968) ( limiting instructions do not cure the " substantial threat to [ a
defendant's] right to confront the witnesses against him" posed by " powerfully
incriminating extrajudicial statements of a codefendant.'. The State stipulated that the
cases should be severed, and the court granted the motion.
Defendant also moved for a change of venue, arguing that inflammatory publicity had saturated the area from which the jury was to be drawn. The State opposed that
motion, arguing any determination of whether actual prejudice existed against defendant
sufficient to warrant a change of venue was premature prior to voir dire. Following a
hearing, however, the motion was granted. The State now appeals, 2 contending in its
sole assignment of error that the district court abused its discretion in granting the
motion to change venue .3 For the following reasons, we reverse the granting of the
motion to change venue and remand for further proceedings.
FACTS
This case is in a pretrial posture, and thus, no trial testimony has been presented
concerning the facts of the offenses. The indictment charges that on or about October
18, 2015, in East Baton Rouge Parish, defendant and Alonso- Llerena, as principals,
committed the first degree murders of Dennis and Suzanne Duplantier.
1 The minutes reflect that defendant was arraigned on two counts of first degree murder and second degree kidnapping. The transcript, however, reflects arraignment only on two counts of first degree murder. When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So. 2d 732, 734 ( La. 1983).
z See LSA- C. Cr. P. art. 9126( 5).
3 The State separately appeals from the granting of the motion to change venue in Alonso- Llerena's case. See State v. Alonso- Lierena, 19- 0921 ( La. App. 1 Cir. _), So. 3d _. 2 MOTION TO CHANGE VENUE
In its sole assignment of error, the State contends the district court abused its
discretion in granting the motion to change venue because defendant's only evidence of potential bias was twenty-five separate local media articles, published in duplicate, over
the course of three years, and a few additional articles that appeared in various national
online publications. The State argues that this court should vacate the district court's
instant ruling, and "[ s] hould circumstances at voir dire persuade defendant to re -urge
the motion to change venue, the [ district] court will be able to render an appropriate,
fully -reviewable ruling at that point."
The right to an impartial jury and a fair trial is guaranteed to every defendant. See U. S. Const. amend. VI; LSA -Const. art. I, § 16; see also LSA- C. Cr. P. art. 797( 2).
To effect this guarantee, the law provides for a change of venue when a defendant
establishes that he or she will be unable to obtain an impartial jury or a fair trial at the place of original venue. State v. Magee, 11- 0574 ( La. 9/ 28/ 12), 103 So. 3d 285, 298,
cert. denied, 571 U. S. 830, 134 S. Ct. 56, 187 L. Ed. 2d 49 ( 2013).
Louisiana Code of Criminal Procedure article 622 provides:
A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.
The second paragraph of Article 622 " overrides the challenge for cause concept"
and is to be " superimposed upon the entire proceeding." See State v. Bell, 315 So. 2d
307, 310 ( La. 1975). In Bell, the court explained:
A change of venue ought to be available even though, individually, each juror is not susceptible to a valid challenge for cause, if the defendant can show that overriding all of these things and superimposed upon all of them he still cannot get a fair trial. The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses will be so affected by the public atmosphere that they will not testify freely and frankly.
3 In exceptional circumstances, prejudice against a defendant may be presumed. See State v. David, 425 So. 2d 1241, 1246 ( La. 1983) ("[ U] nfairness of a constitutional
magnitude will be presumed in the presence of a trial atmosphere which is utterly corrupted by press coverage or which is entirely lacking in the solemnity and sobriety to
which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob."). Otherwise, it is the defendant' s burden to
demonstrate actual prejudice. Magee, 103 So. 3d at 298.
To meet this burden, a defendant must prove more than mere public general
knowledge or familiarity with the facts of the case; he must demonstrate the extent of
prejudice in the minds of the community as a result of such knowledge or exposure to
the case. A defendant is not entitled to a jury entirely ignorant of his case and cannot
prevail on a motion for change of venue simply by showing a general level of public
awareness about the crime; rather, he must show that there exists such prejudice in
the collective mind of the community that a fair trial is impossible. Whether a
defendant has made the requisite showing of actual prejudice is a question addressed
to the district court's sound discretion which will not be disturbed on appeal absent an
affirmative showing of error and abuse of discretion. Id.; see also State v. Gordon,
04- 0633 ( La. App. 1 Cir. 10/ 29/ 04), 896 So. 2d 1053, 1064, writ denied, 04- 3144 ( La.
4/ 1/ 05), 897 So. 2d 600.
Factors relevant to the district court' s determination of whether to order a
change of venue include: ( 1) the nature of pretrial publicity and the particular degree to
which it has circulated in the community; ( 2) the connection of government officials
with the release of the publicity; ( 3) the length of time between the dissemination of
the publicity and the trial; ( 4) the severity and notoriety of the offense; ( 5) the area
from which the jury is to be drawn; ( 6) other events occurring in the community which
either affect or reflect the attitude of the community or individual jurors toward the
defendant; and ( 7) any factors likely to affect the candor and veracity of the
prospective jurors on voir dire. Bell, 315 So. 2d at 311.
In deciding whether to change venue, the district court must extend its focus
beyond the prejudices and attitudes of individual venire persons. The defendant must
E! be allowed to show that, even if it would be possible to select a jury whose members were not subject to a challenge for cause, prejudice or influences exist within the
community at large that would affect the jurors' answers during voir dire or the
witnesses' testimony, or that for any other reason, a fair and impartial trial could not be
obtained in that venue. The district court's ultimate determination must rest on the
community' s attitude toward the defendant. Magee, 103 So. 3d at 299.
At the hearing on the motion to change venue, the State argued it was
premature to address the motion prior to voir dire because there was no way to
determine whether the defendant would be able to obtain an impartial jury or a fair trial at the original place of venue without bringing in prospective jurors to see what was
their mindset. The State set forth that the issue was not only whether prospective
jurors had heard about the case, but also whether they had formed an opinion as to defendant's innocence or guilt.
The defense argued that the court could look at the pretrial publicity ` that has
permeated the public in this case and determine just from that whether or not the
pretrial publicity is such that it would prejudice the jurors — the potential jurors."
Thereafter, the State and the defense stipulated to the introduction of Defense Exhibit
1- news articles in globo. The exhibit consisted of forty-three news articles from The
Advocate, 4 dated between November 18, 2015 and February 6, 2019, discussing the
offenses at issue, indicating that defendant and Alonso- Llerena had been charged with
committing those offenses, or discussing rulings pertaining to the trial of defendant and
Alonso- Llerena.
The defense argued that the pretrial publicity had ' pervaded this environment
and this community in such a way that the court will not be able to be sure and be
confident that we will be able to select a jury that would be fair, unbiased and
impartial." The defense further argued that attempting to select a jury from a pool of
citizens in East Baton Rouge Parish would fail because " there is a pervasive persistent
opinion of guilt within [ sic] regards to both of the accused in this matter. And even
4 Some of the articles were the same story in online and print versions.
5 though there may be stronger feelings as to one or the other, the fact is those feelings will bleed over to the detriment of the other." The defense contended that after the
court read the submitted articles, which were taken from the only widely circulated newspaper in East Baton Rouge Parish and which did not include television media
publicity concerning the crimes, it would come away with the opinion that anyone
exposed to the publicity will be affected by it and will have a very difficult time setting aside the publicity or any prejudice that he or she may have. The defense noted the
submitted articles reflected that the East Baton Rouge Parish District Attorney lived in the same area as the victims and had made comments ' concerning the nature of the
victims, the nature of this crime, ... and therefore has contributed to some extent to
the publicity in this case." The defense also pointed out that the submitted articles
indicated that a police department spokesman had stated, " we think Garcia was
obviously involved with kidnapping and murder of [ the victims], but we don' t want to
speculate as far as his involvement."
The district court noted that the question of change of venue had been on the
docket two or three times before finally being argued. The court stated it had done
extensive research on the issue and had considered " the pros and cons." The court
additionally considered the fact there were two cases being tried, and the possible
impact the Garcia trial, as the lead case, would have on the rights of Alonso- Llerena.
Therefore, finding ` the integrity of the process" to be the most important consideration,
the district court granted the motion.
Although we are certainly mindful of the discretion afforded the district court in
this area, for the following reasons, we find the district court erred and abused its
discretion by granting the motion to change venue.
The defendant relied solely upon news articles to attempt to establish that the
state of the public mind against him was such that jurors would not completely answer
honestly upon their voir dire or witnesses would be so affected by the public 5 atmosphere that they would not testify freely and frankly. However, no polling or
5 See Bell, 315 So. 2d at 311 ( factor ( 7)). survey information was offered into evidence by defendant. Compare State v. Felde,
382 So. 2d 1384, 1387 ( La. 1980) ("[ t]estimony was presented by two experts in poll
taking who indicated to the court that potential jurors would tend not to be truthful
during voir dire."); State v. Montz, 06- 1068 ( La. App. 4 Cir. 2/ 28/ 07), 954 So. 2d 190,
191, vacated and trial court ruling changing venue reinstated, 07- 0653 ( La. 11/ 21/ 07),
968 So. 2d 727 ( per curiam) ( pollster testified that, based on two polls, " it was highly
unlikely that the defendants would receive a fair trial in Orleans Parish."); State v.
McKnight, 95- 1486 ( La. App. 1 Cir. 12/ 15/ 95), 665 So. 2d 768, 771, vacated and trial
court ruling changing venue reinstated, 96- 0176 ( La. 4/ 19/ 96), 671 So. 2d 933
professor and expert in the area of psychology and in the designing and conducting of
surveys testified " comments made by the people surveyed in Livingston Parish showed
hostility toward defendant.").
Additionally, factual articles have less potential for prejudice than invidious or
inflammatory articles. See State v. Clark, 02- 1463 ( La. 6/ 27/ 03), 851 So. 2d 1055,
1071, cert. denied, 540 U. S. 1190, 124 S. Ct. 1433, 158 L. Ed. 2d 98 ( 2004) ("[ c] ourts
must distinguish, however, largely factual publicity from that which is invidious or
inflammatory, as they present real differences in the potential for prejudice."). In this
case, the news articles relied upon by defendant were factual, rather than invidious or 6 inflammatory. In an article from 2015, Alonso- Llerena is described as " a Cuban
national who has permanent legal residency in the United States." The fact that
n] either defendant speaks English" and that they were " Spanish- speaking" is
referenced in certain articles, but only in the context of explaining the presence of, or
request for funding for, interpreters. Various articles set forth that the victims were
robbed, beaten, kidnapped, and strangled" and that their bodies were discovered in
the back seat of their pickup truck in Hammond. However, no details, and particularly
no pictures, concerning these facts are included.'
6 See Bell, 315 So. 2d at 311 ( factor ( 1) " nature of pretrial publicity.").
Although the defense argued that one of the articles stated that " Garcia was obviously involved with kidnapping and murder of [ the victims], but we don' t want to speculate as far as his involvement[,]" we
can find no such article in the evidence submitted by defendant. In fact, some of the articles simply set forth the fact that the safe inside the home of the victims was found " open, with cash missing" and that 7 Further, the articles also spanned a period of over three years.$ Forty-three
articles concerning a double homicide over such an extended period are less indicative
of a hostile public atmosphere against defendant to overwhelm prospective jurors and witnesses than a media blitz. See State v. Lee, 05- 2098 ( La. 1/ 16/ 08), 976 So. 2d 109,
133 & 136, cert. denied, 555 U. S. 824, 129 S. Ct. 143, 172 L. Ed. 2d 39 ( 2008)
defendant was not the subject of media coverage for a prolonged period of time,
where approximately sixteen months passed between arrest and trial and over 5000
pages of printed media and newscast transcripts were filed into evidence).
Additionally, the trial court ruled upon the challenge to venue prior to voir dire.
Clearly, the court was not required to postpone ruling upon the motion until after voir
dire.9 However, the number of jurors excused for cause, if any, may further illuminate whether prejudice against defendant existed in the public mind. As stated by the
supreme court, " courts have examined the number of jurors excused for cause for
having fixed an opinion as another gauge of whether prejudice exists in the public
mind.... [ I] n a community where the majority of prospective jurors will openly admit to
a disqualifying prejudice, the reliability of other juror's assurances that they are
impartial and have no preconceived notion may be drawn into question." Clark, 851
So. 2d at 1071.
News articles in 2015 stated:
Police believe Alonso[- Llerena], who was a landscaper for the Duplantiers and lived above a barn on their property, beat his employers until they allowed him access to the safe, according to a warrant. He then strangled the couple, who were discovered bound, and transported them with Garcia to the Hammond truck stop, police allege. The gas station' s surveillance footage of two additional vehicles, along with cell tower evidence linked Alonso[- Llerena] and Garcia to the crime. It's unclear the exact role Garcia played in the couple' s death.
a] large amount of cash and a number of unspecified items believed stolen from the home were discovered in Garcia' s house in Hollywood, Florida."
8 See Bell, 315 So. 2d at 311 ( factors ( 1) " the particular degree to which [ the pretrial publicity] has circulated in the community" and ( 3)).
9 In her concurring opinion in Montz, Chief Justice Johnson noted, "[ t] here seems to not be a bright line rule to give trial courts guidance as to when the motion for change of venue must be decided. The result is that the defendant who is required to wait for voir dire examination before winning a change of venue, is prejudiced when compared to the defendant who won the change of venue, pre- trial." Montz, 968 So. 2d at 728- 29. 8 Later articles set forth that "[ i] nvestigators have said they believe Garcia and Alonso[- Llerena] went into the home and beat the couple to get the information needed
to open the safe. Blood was found in several rooms, according to police." In a
November 19, 2015 article ( reported online November 20, 2015), East Baton Rouge
Parish District Attorney Hillar Moore, III is quoted as saying, "[ t] here were two people in the Duplantiers' home), and we suspect it was these two." In a February 5, 2016
article, Moore is quoted as stating, "[ b] ased on the evidence I have heard, this is the
proper indictment."
To the extent that the East Baton Rouge Parish District Attorney and the police contributed to the publicity concerning the case, there was no allegation of, much less
any evidence of, a strategy by government officials to prejudice the public mind against
defendant with the release of publicity. 10 Compare Bell, 315 So. 2d at 308 & 311
defendants, indicted for having incited and participated in a riot in which five people
died and a television reported was severely beaten, alleged that ' the district attorney had prepared a bill of information charging the defendants with the attempted murder
of Bob Johnson, the television newsman who remained comatose, which he would file
shortly prior to the selection of the jury to further gain publicity and prejudice the public
mind."). Further, prejudice, if any, to defendant from the comments of government
officials would diminish between the reporting of the comments and the start of the trial
still to commence in this matter.
The murders involved in this case, like any other first-degree murders, were
severe offenses that generated notoriety." Motions for change of venue, however,
have been denied in other first-degree murder cases of similar or greater notoriety.
See Lee, 976 So. 2d at 115- 17, 123 n. 8, 129, & 132 ( recent graduate of the LSU MBA
program stabbed 81 times, raped, and murdered by the South Louisiana Serial Killer
who, approximately one month before trial in East Baton Rouge Parish ( EBRP) was
convicted in West Baton Rouge Parish ( WBRP) of the second- degree murder of another
10 See Bell, 315 So. 2d at 311 ( factor ( 2)).
11 See Bell, 315 So. 2d at 311 ( factor ( 4)).
L victim and news coverage of the WBRP trial had flooded EBRP); State v. Manning,
03- 1982 ( La. 10/ 19/ 04), 885 So. 2d 1044, 1057- 59, 1086 & 1103- 04, cert. denied, 544
U. S. 967, 125 S. Ct. 1745, 161 L. Ed. 2d 612 ( 2005) ( defendant engaged in the
perpetration of an aggravated burglary, armed robbery, and second- degree kidnapping when he killed the sixty -two-year-old female victim by slashing her throat, fracturing her skull, and fracturing twelve of her ribs); State v. Hoffman, 98- 3118 ( La. 4/ 11/ 00),
768 So. 2d 542, 548- 50, cert. denied, 531 U. S. 946, 121 S. Ct. 345, 148 L. Ed. 2d 277
2000) ( victim kidnapped, robbed, raped, and murdered ' execution style" by her
parking garage valet).
We also note that at the time of the 2010 Census, East Baton Rouge Parish had
a population of 440, 171. 12 The size of the jury pool to be summoned is unknown at
this time, but given the large population of East Baton Rouge Parish, the likelihood of a
dearth of qualified prospective jurors is minimal.
Therefore, considering the evidence submitted by defendant, and in light of the
factors set forth in Bell, we find that defendant fell short of demonstrating prejudice in the public mind such that a fair trial would be impossible. Accordingly, this assignment
of error has merit.
CONCLUSION
For these reasons, we reverse the granting of the motion to change venue and
remand for further proceedings.
GRANTING OF MOTION TO CHANGE VENUE REVERSED; REMANDED FOR FURTHER PROCEEDINGS.
iz https:// www. census. gov/ guickfacts/ eastbatonrouaeparishlouisiana. See Bell, 315 So. 2d at 311 factor ( 5)). 10