STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-1510
STATE OF LOUISIANA
VERSUS
JAMES E. RAMSDELL
**********
APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. CR974-07 HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, Judges.
CONVICTIONS AFFIRMED. ARMED ROBBERY SENTENCE AFFIRMED AS AMENDED.
David W. Burton District Attorney Richard A. Morton Assistant District Attorney Post Office Box 99 DeRidder, LA 70634 (337) 463-5578 COUNSEL FOR APPELLEE: State of Louisiana
Edward Kelly Bauman Louisiana Appellate Project Post Office Box 1641 Lake Charles, LA 70602-1641 (337) 491-0570 COUNSEL FOR DEFENDANT/APPELLANT: James E. Ramsdell AMY, Judge.
The defendant was convicted of first degree murder, conspiracy to commit first
degree murder, armed robbery, aggravated burglary, theft of a firearm, and theft of
movable property over five hundred dollars. The trial court vacated the defendant’s
aggravated burglary conviction, and he was sentenced on the remaining charges. The
defendant appeals his armed robbery conviction as a violation of the prohibition
against double jeopardy. Further, he challenges the sufficiency of the evidence used
to convict him of first degree murder. The defendant also argues that the trial court
erred in failing to grant several motions for mistrial. For the following reasons, we
affirm the defendant’s convictions, and affirm the defendant’s sentence for armed
robbery as amended.
Factual and Procedural Background
This matter involves the October 9, 2007, shooting death of John “Jack”
Mayeaux. It is alleged that the defendant, James E. Randall, shot and killed Mr.
Mayeaux, and then, with the help of two accomplices, Terry Clarkson and D.B.1, stole
some of the victim’s movable property, including a four-wheeler, money, several
guns, ammunition, and tools.
The defendant was indicted by a grand jury with first degree murder, a
violation of La.R.S. 14:30; conspiracy to commit first degree murder, violations of
La.R.S. 14:26 and 14:30; armed robbery, a violation of La.R.S. 14:64; aggravated
burglary, a violation of La.R.S. 14:60; theft of a firearm, a violation of La.R.S.
14:67.15; and theft of movable property over $500.00, a violation of La.R.S.
14:67(B)(1). Following a jury trial, the defendant was found guilty as charged.
1 In accordance with Uniform Rules, Courts of Appeal, 5-2, initials will be used to “ensure the confidentiality of a minor who is a party to or whose interests are the subject matter in the proceedings[.]” Following his convictions, the defendant filed a Motion to Set Aside Verdict
of Jury, arguing that his convictions for first degree murder in addition to armed
robbery and armed burglary violated the prohibition against double jeopardy. The
trial court granted the motion and vacated his conviction for aggravated burglary.
The defendant was subsequently sentenced on the remaining convictions as follows:
life imprisonment without the benefit of parole, probation or suspension of sentence
for first degree murder; thirty years imprisonment at hard labor for criminal
conspiracy to commit first degree murder; one hundred four years imprisonment at
hard labor without the benefit of parole, probation or suspension of sentence for
armed robbery; ten years imprisonment at hard labor without benefit of parole,
probation or suspension of sentence, and a fine of $1,000.00 for theft of firearms, and;
ten years imprisonment at hard labor for theft of movable property over $500.00. The
trial court ordered the sentences to run consecutively.
The defendant appeals, asserting that the trial court erred in failing to grant his
Motion to Set Aside Verdict of Jury regarding his armed robbery conviction, and in
denying his motions for mistrial. The defendant also questions the sufficiency of the
evidence used to convict him of first degree murder.
Discussion
Errors Patent
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find one error
patent regarding the sentence imposed for armed robbery.
The trial court sentenced the defendant to serve one hundred four years
imprisonment at hard labor for the armed robbery conviction. At his hearing on the
2 Motion to Set Aside the Jury Verdict, the trial court stated that the penalty for “armed
robbery with a firearm carries a maximum of a 104 year sentence with the 99 year
plus the five-year firearm enhancement.”
Under La.R.S. 14:64, the maximum sentence for armed robbery is ninety-nine
years imprisonment at hard labor. However, under La.R.S. 14:64.3, “[w]hen the
dangerous weapon used in the commission of the crime of armed robbery is a firearm,
the offender shall be imprisoned at hard labor for an additional period of five years
without benefit of parole, probation, or suspension of sentence.” To invoke the
provisions of La.R.S. 14:64.3, the statute must be charged in the bill of information
or indictment. State v. Daniels, 03-1621 (La.App. 3 Cir. 5/12/04), 873 So.2d 822, writ
denied, 04-1802 (La.11/24/04), 888 So.2d 227.
In this case, the State did not cite La.R.S. 14:64.3 nor set forth that the crime
of armed robbery was committed with a firearm in the indictment. As noted above,
the first and only time enhancing the armed robbery sentence was mentioned was by
the trial judge, not the State, during the defendant’s post-verdict motion hearing.
Since the trial court cannot trigger enhancement on its own, we find that the trial
court lacked authority to impose the enhanced sentence. The maximum sentence for
armed robbery in this present matter is ninety-nine years imprisonment at hard labor.
La.R.S. 14:64. As such, the trial court’s one hundred four years sentence was
illegally excessive. State v. Jacobs, 08-702 (La.App. 3 Cir. 2/4/09), 2 So.3d 1289.
Accordingly, we reverse the trial court’s inclusion of the five year enhancement and
otherwise affirm the defendant’s sentence for armed robbery as amended.
3 Sufficiency of the Evidence
The defendant argues that the evidence adduced at trial was insufficient to
support his first degree murder conviction. In State v. Freeman, 01-997, pp. 2-3
(La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580, a panel of this court discusses the
standard for insufficiency claims as follows:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the 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 ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983).
First, the defendant contends that there was insufficient evidence to establish
beyond a reasonable doubt that he shot the victim. Specifically, the defendant
challenges the credibility of D.B.’s testimony identifying the defendant as the shooter.
He contends that D.B.’s testimony and statements to police were inconsistent.
Here, first degree murder is defined as the killing of a human being when the
offender has the specific intent to kill or to inflict great bodily harm and is engaged
in the perpetration or attempted perpetration of certain felonies including, in this case,
armed robbery and aggravated burglary. La.R.S. 14:30. The State bears of the
burden of proving those elements, along with the burden to prove the identity of
defendant as the perpetrator. State v. Draughn, 05-1825 (La. 1/17/07), 950 So.2d
853.
4 The record reveals that D.B. was first questioned by Officers Jeanne Faciane
and Janet Beebe on October 11, 2007. In that interview, D.B. denied having any
knowledge of the victim’s murder. Four days later, D.B. was interviewed a second
time, by different officers, wherein he reported that the defendant shot and killed the
victim. On May 13, 2008, D.B. gave a third statement to Jim McCarty with the
district attorney’s office and again identified the defendant as the shooter.
The defendant argues that D.B. made statements to officers that he closed his
eyes when the victim was shot, but testified at trial that he saw the defendant shoot
the victim. At trial, the following exchange took place on D.B.’s cross-examination
as he was being questioned about the statements he gave police:
Q All right. And do you remember what you said immediately prior to the shots being fired in Jack’s direction? Do you remember what you said when they asked you if you saw him shoot Jack? Do you remember that?
A No, sir.
Q You remember what you said, that you turned around and you closed our eyes? Do you remember saying that?
A Yes, sir.
Q You’ve said more than one time, didn’t you?
A Yes, sir
Q So you didn’t actually see him shoot Jack the first time, did you, sir?
Q You did?
Q So you weren’t telling the truth when you told them you turned around and you closed your eyes?
5 A I saw him shoot him the first time, that’s when I turned around.
D.B. admitted in testimony that he lied to police when he gave his initial
statement on October 11, 2007, but related that he subsequently told police the truth
and was telling the truth at this trial. The record reveals that the testimony he
provided at trial was consistent with the second and third statements he provided to
police wherein he related that he saw the defendant shoot the victim and then turned
his head.
The defendant also refers to other inconsistencies in D.B.’s statements,
regarding who returned the gun to the defendant’s car after the shooting. The record
indicates that in D.B.’s second statement to police he related that after the shooting,
the defendant put the gun back in his car, and then walked towards the victim. In his
third statement, D.B. reported that after the shooting, the defendant gave his gun to
Clarkson and instructed Clarkson to put the gun in the defendant’s car. At trial, D.B.
testified that he was not sure who put the gun back in the defendant’s car.
James Brown also testified that he met the defendant while in Beauregard
Parish Jail. Brown testified that the defendant told him that he was in jail for
murdering “a man named Jack.” Brown further testified that the defendant mentioned
“shooting somebody four times in the chest, twice in the head.”
The record reveals that a search warrant was issued to search the defendant’s
home, based upon the detectives investigation in addition to D.B.’s statements
indicating where some of the victim’s stolen property and the murder weapon were
located. D.B. identified the murder weapon as a gun belonging to the defendant. He
further provided a physical description of the gun, relating that it had a broken clip
which had been repaired with tape. Mark Herford, a detective with the Beauregard
6 Parish Sheriff’s Office, testified that he found the gun described by D.B. in the
defendant’s backyard where D.B. had indicated it was buried. The gun and shell
casings found at the murder scene were sent to the crime lab. At trial, Charles R.
Watson, Jr., a forensic scientist at the Louisiana State Police Crime Laboratory,
testified that the casings found at the scene matched the gun seized from the
defendant’s house. John Loftin, the victim’s neighbor, testified that the gun seized
was the same gun he had sold the defendant. In a statement to police, which was
entered into the record, the defendant stated that he owned a .45 Haskell gun but
alleged that it had been stolen a month before the murder. The defendant also
explained that the gun’s clip was broken.
Detective Herford also testified that he searched the defendant’s house, looking
for certain property believed to be stolen from the victim. He stated that he found a
cutting torch and other tools allegedly owned by the victim. He explained that the
cutting torch was freshly painted, which was consistent with D.B.’s statement that he
helped the defendant paint the torches. Detective Herford also recovered other
property allegedly stolen from the victim including a four-wheeler and other tools.
Chief Deputy of the Beauregard Sherrif’s Office, Joe Toler, testified the he recovered
various firearms and ammunition inside the defendant’s home where D.B. indicated
those stolen weapons would be found.
As the fact finder, a jury makes credibility determinations and may, within the
bounds of rationality, accept or reject the witness’s testimony; thus on review, a court
may impinge on the discretion of the fact finder only to the extent necessary to
guarantee the fundamental due process of law. State v. Neal, 00-674 (La. 6/29/01),
796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct 1323 (2002), citing State v.
7 Mussall, 523 So.2d 1305 (La.1988). We find that when reviewing the record in a
light most favorable to the State, a rational trier of fact could reasonably conclude that
the defendant shot Mr. Mayeaux. The jury heard D.B.’s testimony identifying the
defendant as the shooter and chose to accept that testimony. The record reveals that
while there appear to be inconsistencies in D.B.’s statements, none of these
inconsistencies involve the identity of the defendant as the shooter or raise the
possibility that someone else committed the crime. “Jurisprudence holds that ‘a jury
may rely on a single witness’s testimony to establish a factual element required to
prove guilt, provided there is no internal contradiction or irreconcilable conflict with
physical evidence.” State v. Clark, 00-818, p. 4 (La.App. 3 Cir. 12/6/00), 780 So.2d
418, 421, writ denied, 01-992 (La. 3/22/02), 811 So.2d 922, quoting State v. Bernard,
98-994, p. 7 (La.App. 3 Cir. 2/3/99), 734 So.2d 687, 691. In brief, the defendant
argues that the physical evidence found in his home “could have easily been planted”
by D.B. or Clarkson. He also asserts that it is “not inconceivable” that his brother,
who was feuding with the victim at the time of his death, was the shooter. However,
the defendant does not point to any evidence in the record to support these allegations
or expose an irreconcilable conflict between the testimony adduced at trial and the
physical evidence. Accordingly, we find that when reviewing the record in a light
most favorable to the State, a rational trier of fact could reasonably conclude that the
defendant shot Mr. Mayeaux.
The defendant also asserts, in the alternative, that even if it were to be found
that he was involved in the murder of Mr. Mayeux, there was insufficient evidence
to establish that he intended to rob Mr. Mayeux or burglarize his home because the
“robbery/burglary was an afterthought, and took place after Mayeaux was dead.”
8 At trial, D.B. testified that the night before the murder, the defendant said “we
should kill Jack.” He further testified that the defendant expressed that he wanted to
kill Mr. Mayeaux “because he wanted his stuff.” D.B. related that after the defendant
shot Mr. Mayeaux, he, Clarkson, and the defendant entered Mr. Mayeaux’s house and
stole several firearms and money. D.B. stated that the men stole cash from Mr.
Mayeaux and $300.00 in quarters from Mr. Mayeaux’s home.
“Louisiana jurisprudence does not distinguish between the armed robbery
which occurs before the killing of the victim and the robbery of the victim whom the
defendant has already killed.” State v. Goodley, 01-77, p.10 (La. 6/21/02), 820 So.2d
478, 484. Rather, the determination of whether a murder was committed in the
perpetration of a certain felony is whether the murder and the felony form a
continuous transaction without a significant break of events. Id. Here, on review of
the evidence, the record supports a determination that Mr. Mayeaux’s murder
facilitated the robbery and burglary. D.B. testified that the defendant desired to kill
Mr. Mayeaux to effectuate a taking of his belongings. Further, D.B.’s testimony
indicates that there was no significant break in the chain of events between the time
the shots were fired and the men left Mr. Mayeaux’s property.
This assignment of error lacks merit.
Double Jeopardy
The defendant asserts that his constitutional guarantees prohibiting double
jeopardy were violated by his convictions and sentences for both first degree murder
and armed robbery. He contends that because armed robbery was the predicate
offense used to convict him of first degree murder, multiple punishments were
imposed for what was a single criminal act.
9 The defendant first raised the double jeopardy issue in a Motion to Quash the
Predicate Offenses of Armed Robbery and Aggravated Burglary. The trial court
denied the motion and the defendant took supervisory writs to this court. The writ
was denied stating that the defendant had an adequate remedy on this issue on appeal.
State v. Ramsdell, 09-994 (La.App. 3 Cir. 8/18/09)(an unpublished writ opinion).
Following his convictions, the defendant filed a Motion to Set Aside Verdict of Jury,
asserting that his convictions for armed robbery, aggravated burglary, and first degree
murder violated his protection against double jeopardy. At the hearing on the motion,
the trial court explained that the State was allowed to proceed under alternative
underlying predicate offenses for the first degree murder charge because the
protection against double jeopardy did not apply until the defendant has been
sentenced. However, the trial court noted that “it would be error for me today to
sentence him to both first-degree murder and armed robbery and aggravated
burglary.” Because the defendant was found guilty of both armed robbery and
aggravated burglary, the trial court stated that the proper remedy was to vacate the
defendant’s conviction for the less severely punishable offense, aggravated burglary.2
Accordingly, the trial court vacated the defendant’s conviction for aggravated
burglary.
The Double Jeopardy provisions in the state and federal constitutions protect
a defendant from both a second prosecution for the same offense and multiple
2 The punishment for aggravated burglary is imprisonment for not less than one nor more than thirty years. La.R.S. 14:60. The punishment for armed robbery is imprisonment at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. La.R.S. 14:64.
10 punishments for the same criminal act. U.S. Const. amend. V; La.Const. art. 1, § 15;
State v. Doughty, 379 So.2d 1088 (La.1980). When proof of a felony is an essential
element of first degree murder, double jeopardy precludes the conviction and
punishment of the defendant for both murder and the underlying felony. State v. Cox,
07-774 (La.App. 3 Cir. 3/4/09), 4 So.3d 998, writ denied, 08-602 (La. 9/4/09), 17
So.3d 948. However, an accused who commits separate and distinct offenses during
the same criminal episode or transaction may be convicted and sentenced for each
offense without violating the prohibition against double jeopardy. State v. Williams,
05-1338 (La.App. 3 Cir. 3/1/06), 924 So.2d 1159, writ denied, 06-1471 (La.
12/15/06), 944 So.2d 1284.
As explained above, in this case, the State prosecuted and charged the
defendant with first degree murder based upon the underlying offense of armed
robbery or aggravated burglary. While in brief the defendant contends that the jury
based its first degree murder conviction on the underlying offense of armed robbery,
the jury’s intent in rendering its verdict, specifically which offense it attributed to
fulfill the elements of first degree murder, cannot be discerned from the record before
us. Nevertheless, the convictions can be upheld if there is sufficient evidence to
support either theory. Cox, 4 So.3d 998. Here, it is clear that the defendant’s
protection from double jeopardy was violated when he was convicted and sentenced
to first degree murder, armed robbery, and aggravated burglary. However, the trial
court imposed the proper remedy by vacating the conviction and sentence for
aggravated burglary, the less severely punishable offense. Doughty, 379 So.2d 1088;
State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990); Cox, 4 So.3d 998; State v.
11 Pittman, 95-382 (La.App. 5 Cir. 10/1/96), 683 So.2d 748; State v. Head, 598 So.2d
1201 (La.App. 5 Cir. 1992).
Additionally, the record supports a determination that under the facts of this
case, armed robbery and first degree murder were separate and distinct offenses and
thus do not violate double jeopardy. Here, first degree murder requires proof of the
specific intent to kill or cause great bodily harm, whereas armed robbery does not.
La.R.S. 14:30; La.R.S. 14:64; See also Blockburger v. United States, 284 U.S. 299,
52 S.Ct. 180 (1932); State v. Williams, 07-931 (La.2/26/08), 978 So.2d 895. Further,
the defendant could have been convicted of first degree murder without any proof that
an armed robbery occurred.
This assignment is without merit.
Motions for Mistrial
The defendant assigns error to the trial court’s denial of several motions for
mistrial made as a result of prospective jurors’ comments in the presence of the jury
venire. According to La.Code. Crim.P. art. 775(6), a mistrial may be ordered when
“[f]alse statements of a juror on voir dire prevent a fair trial.” In State v. Carmouche,
01-405, p. 20 (La. 5/14/02), 872 So.2d 1020, 1035 (citations omitted), the supreme
court stated:
The “prejudicial conduct” may include remarks of veniremen during voir dire. However, mistrial is a drastic remedy that is warranted only when the defendant has suffered substantial prejudice such that he cannot receive a fair trial. A trial court need not order a new trial absent a showing that comments made by a prospective juror affected other jurors or prejudiced the defendant. The determination of whether actual prejudice has occurred lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion. In deciding the correctness of the trial court’s voir dire rulings, a reviewing court considers the entirety of the voir dire record.
12 First Motion for Mistrial
The defendant’s first motion for mistrial was raised during voir dire. Counsel
for the defendant explained to the trial court that his secretary heard a prospective
juror, who had been already been released, tell the victim’s daughter “in a tone that
could be heard by the venire, ‘I knew your father, I’m sorry this happened.’” The
defendant moved for a mistrial, asserting that the comment inflamed the jury against
the defendant and thus was detrimental or prejudicial to his case. In response, the
trial court stated “I’m going to deny the motion for a mistrial, unless you can prove
to me a juror or all the jurors were actually prejudiced in some way towards the
defendant, Mr. Ramsdell.”
The record reflects that the defendant did not contemporaneously object to the
trial court’s ruling, and under La.Code Crim.P. art. 841, “[a]n irregularity or error
cannot be availed of after verdict unless it was objected to at the time of occurrence.”
Accordingly, we will not address the merits of the defendant’s argument with regard
to this motion, as it is not properly before this court for the first time on appeal.
Second Motion for Mistrial
The second motion for mistrial was based upon several statements made by
prospective jurors during voir dire. The record reveals that prospective juror number
178 related to the trial court that, during a break, he heard a female prospective juror
make a comment that the defendant “looked guilty.” Another prospective juror,
number 5, explained to the trial court that he heard the same comment made “five or
six times” by three to four different prospective jurors. Lastly, counsel for the
defendant stated to the trial court that another prospective juror “indicated that
someone talked about the hanging jail and that in the olden days they would hang
13 them.” The defendant made a motion for mistrial, asserting that it would be
impossible to obtain a fair and impartial trial considering those discussions amongst
the prospective jurors.
The State opposed the motion, contending that all of the prospective jurors
stated to the trial court that if they had heard such statements, it made no impact on
how they would serve as jurors if selected. Accordingly, the State maintained that
there was no evidence of prejudice to support the motion for mistrial.
The trial court denied the motion, stating that it was clear that some prejudicial
statements were made in and/or outside the courtroom, but the question was whether
the statements made it impossible for the defendant to obtain a fair trial. The trial
court explained that it questioned six prospective jurors about the prejudicial
comments; three indicated they had not overheard anything inappropriate, and three
indicated that they had overheard something, but the comments had not influenced
their opinions or ability to remain fair and impartial in the case.
The trial court denied the motion and stated that it believed the appropriate
remedy would be to admonish the jury venire to disregard any remarks it may have
heard. It added that it would also instruct the jury venire as to the presumption of
innocence and try to assure that the jurors had an appropriate understanding. The trial
court further stated that it would give both the State and the defendant an opportunity
to individually voir dire any of the tentatively accepted jurors.
The record reveals that although the defendant objected to the court’s ruling,
he did not provide an explanation of how the prospective jurors’ remarks affected the
jury venire or prejudiced the defendant. The voir dire record as a whole does not
support a finding that the trial court abused its discretion in denying the defendant’s
14 motion for mistrial. See Carmouche, 872 So.2d 1020. The record reveals that the
prospective jurors who actually heard the comments responded in the affirmative that
their ability to serve as fair and impartial jurors had not been compromised. The
defendant further does not provide evidence to the contrary.
Third Motion for Mistrial
Lastly, prior to seating the jury, the defendant reurged his motion for mistrial,
citing the same grounds as in his second motion for mistrial, and further stating that
two prospective jurors indicated that they heard comments contrary to the trial court’s
admonishment. The record does not indicate what the comments were, however, it
does indicate that those two prospective jurors were released from serving on the jury.
The trial court denied the motion for mistrial, stating that in addition to showing
prejudicial conduct, the Defendant had to show that the conduct made it impossible
to obtain a fair trial. Through the questioning of the prospective jurors, the trial court
concluded that “it is abundantly clear” ... “that Mr. Ramsdell’s right to a fair trial is
not impinged by any comments that were made.”
Because the defendant cited no ground other than those urged previously, we
find that based upon the forgoing reasons, the record does not support a finding that
the trial court abused its discretion in denying the defendant’s third motion for
mistrial.
Accordingly, this assignment of error is without merit.
DECREE
For the foregoing reasons, the defendant’s convictions are affirmed. The
defendant’s armed robbery sentence is affirmed as amended.
CONVICTIONS AFFIRMED. ARMED ROBBERY SENTENCE AFFIRMED AS AMENDED.