Judgment rendered February 9, 2022.
No. 54,059-KA
ON REHEARING
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
JERMERA MARQUEZ MAYO Appellant
***** Per Curiam on Rehearing
Originally Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 367583
Honorable Katherine Clark Dorroh, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Mary Constance Hanes
JERMERA MARQUEZ MAYO Pro Se
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
EDWIN L. BLEWER, III TOMMY JAN JOHNSON NANCY F. BERGER-SCHNEIDER Assistant District Attorneys
Before MOORE, STONE, STEPHENS, HUNTER, and GARRETT (Ad Hoc), JJ. PER CURIAM
In our initial opinion, we addressed the arguments raised by defense
counsel. However, Mayo also filed a timely pro se brief which raises
additional arguments. We granted rehearing to address Mayo’s pro se
arguments.
While Mayo’s pro se brief does not fully comply with the
requirements of Rule 2-12.4 of the Uniform Rules of Louisiana Courts of
Appeal, this Court has attempted to ascertain the substance of his arguments
and treat them as having been properly raised.
Sufficiency of the evidence
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the case in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hearold,
603 So. 2d 731 (La. 1992). This standard does not provide an appellate court
with a vehicle for substituting its appreciation of the evidence for that of the
fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517. The
trier of fact makes credibility determinations and may accept or reject the
testimony of any witness. State v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d
1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000).
The appellate court does not assess credibility or reweigh the evidence.
State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442. A reviewing court
affords great deference to a trial court’s decision to accept or reject the
testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App. 2 Cir. 8/30/02), 827 So. 2d 508 writ denied, 02-3090 (La. 11/14/03),
858 So. 2d 422.
In the absence of internal contradiction or irreconcilable conflict with
the physical evidence, one witness’s testimony, if believed by the trier of
fact, is sufficient to support a factual conclusion. State v. Elkins, 48,972 (La.
App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied, 14-0992 (La. 12/8/14), 153
So. 3d 438. This is equally applicable to the testimony of victims of sexual
assault. Id. Such testimony alone is sufficient even when the state does not
introduce medical, scientific or physical evidence to prove the commission
of the offense. Id.
Mayo challenges the sufficiency of the evidence on multiple grounds.
We address each of his arguments in turn and evaluate the evidence as a
whole.
“Coercion” of testimony. Mayo argues that the victim’s testimony
was “coerced” – however, that is a mere conclusory assertion. He provides
no details or specific facts that support this claim, but does argue that the
mere presence of an unidentified woman in the audience during his trial
somehow coerced the victim’s testimony. He makes no specific allegations
regarding how this woman, by her mere presence in the courtroom,
supposedly coerced the victim’s testimony.1 He also argues that the
prosecution was “leading” the victim on direct examination and this
somehow establishes coercion. We have reviewed the victim’s testimony
and see no indication of coercion or inappropriate questioning. The trial
1 Mayo seems to additionally suggest that this unidentified woman’s mere presence invalidated his trial. This argument is without merit. 2 court correctly overruled Mayo’s pro se objection whereby he claimed that
the prosecutor was “leading” the witness.
Identification. Mayo also challenges the victim’s identification of him
as the perpetrator. She identified him as the perpetrator after seeing him in
the courtroom. She testified that she saw him at four different times on the
night of the crime: twice in the house before the incident; once during the
incident, which occurred in the bedroom; and once outdoors after the
incident. That is sufficient identification.
Consistency. Finally, Mayo claims that the victim’s testimony was
inconsistent and therefore incredible. We have reviewed her testimony. It
bears no internal inconsistencies. Nor does it conflict with other evidence in
the record. Mayo’s allegations that materials – which were not introduced
into evidence – contradict the trial testimony do not and cannot weigh
against the sufficiency of the evidence.
Finally, we have reviewed the evidence as a whole and find that it is
sufficient to support Mayo’s conviction. This assignment of error is without
merit.
Ineffective assistance of counsel
Generally, “ineffective assistance of counsel claims are more
appropriately addressed in post-conviction proceedings” – rather than direct
appeal. State v. Harris, 2018-1012 (La. 7/9/20) 2020 WL 3867207. We
address each of Mayo’s ineffective assistance of counsel arguments in turn.
Mayo argues that defense counsel provided ineffective assistance at
trial by failing to request a continuance when Mayo’s purported alibi witness
3 failed to appear on the original trial date of August 14, 2020. However, trial
counsel in fact obtained a continuance. On the original trial date, the witness
had been properly subpoenaed, and a writ of attachment was issued upon her
failure to appear. The court did not stay the proceedings, but left evidence
open at the end of the prosecution’s case in chief, and a week later, the trial
was resumed. The alleged alibi witness gave her testimony on August 20,
2020. In no way did trial counsel perform deficiently with regard to the
securing of this witness for testimony. This argument lacks merit and is
rejected. Mayo is hereby barred from raising it again.
Mayo also references materials that were not introduced into evidence
as supposed impeachment evidence regarding an unspecified witness (or
witnesses). However, reading his brief in pari materia, it appears Mayo is
alleging that the victim and the other juvenile witness, in their Gingerbread
House interviews, did not mention the fact that Mayo was wearing an orange
shirt the night of the crime. This court cannot consider materials not
introduced into evidence in an appeal. Therefore, we decline to pass
judgment on this issue in this appeal. State v.
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Judgment rendered February 9, 2022.
No. 54,059-KA
ON REHEARING
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
JERMERA MARQUEZ MAYO Appellant
***** Per Curiam on Rehearing
Originally Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 367583
Honorable Katherine Clark Dorroh, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Mary Constance Hanes
JERMERA MARQUEZ MAYO Pro Se
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
EDWIN L. BLEWER, III TOMMY JAN JOHNSON NANCY F. BERGER-SCHNEIDER Assistant District Attorneys
Before MOORE, STONE, STEPHENS, HUNTER, and GARRETT (Ad Hoc), JJ. PER CURIAM
In our initial opinion, we addressed the arguments raised by defense
counsel. However, Mayo also filed a timely pro se brief which raises
additional arguments. We granted rehearing to address Mayo’s pro se
arguments.
While Mayo’s pro se brief does not fully comply with the
requirements of Rule 2-12.4 of the Uniform Rules of Louisiana Courts of
Appeal, this Court has attempted to ascertain the substance of his arguments
and treat them as having been properly raised.
Sufficiency of the evidence
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the case in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hearold,
603 So. 2d 731 (La. 1992). This standard does not provide an appellate court
with a vehicle for substituting its appreciation of the evidence for that of the
fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517. The
trier of fact makes credibility determinations and may accept or reject the
testimony of any witness. State v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d
1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000).
The appellate court does not assess credibility or reweigh the evidence.
State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442. A reviewing court
affords great deference to a trial court’s decision to accept or reject the
testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App. 2 Cir. 8/30/02), 827 So. 2d 508 writ denied, 02-3090 (La. 11/14/03),
858 So. 2d 422.
In the absence of internal contradiction or irreconcilable conflict with
the physical evidence, one witness’s testimony, if believed by the trier of
fact, is sufficient to support a factual conclusion. State v. Elkins, 48,972 (La.
App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied, 14-0992 (La. 12/8/14), 153
So. 3d 438. This is equally applicable to the testimony of victims of sexual
assault. Id. Such testimony alone is sufficient even when the state does not
introduce medical, scientific or physical evidence to prove the commission
of the offense. Id.
Mayo challenges the sufficiency of the evidence on multiple grounds.
We address each of his arguments in turn and evaluate the evidence as a
whole.
“Coercion” of testimony. Mayo argues that the victim’s testimony
was “coerced” – however, that is a mere conclusory assertion. He provides
no details or specific facts that support this claim, but does argue that the
mere presence of an unidentified woman in the audience during his trial
somehow coerced the victim’s testimony. He makes no specific allegations
regarding how this woman, by her mere presence in the courtroom,
supposedly coerced the victim’s testimony.1 He also argues that the
prosecution was “leading” the victim on direct examination and this
somehow establishes coercion. We have reviewed the victim’s testimony
and see no indication of coercion or inappropriate questioning. The trial
1 Mayo seems to additionally suggest that this unidentified woman’s mere presence invalidated his trial. This argument is without merit. 2 court correctly overruled Mayo’s pro se objection whereby he claimed that
the prosecutor was “leading” the witness.
Identification. Mayo also challenges the victim’s identification of him
as the perpetrator. She identified him as the perpetrator after seeing him in
the courtroom. She testified that she saw him at four different times on the
night of the crime: twice in the house before the incident; once during the
incident, which occurred in the bedroom; and once outdoors after the
incident. That is sufficient identification.
Consistency. Finally, Mayo claims that the victim’s testimony was
inconsistent and therefore incredible. We have reviewed her testimony. It
bears no internal inconsistencies. Nor does it conflict with other evidence in
the record. Mayo’s allegations that materials – which were not introduced
into evidence – contradict the trial testimony do not and cannot weigh
against the sufficiency of the evidence.
Finally, we have reviewed the evidence as a whole and find that it is
sufficient to support Mayo’s conviction. This assignment of error is without
merit.
Ineffective assistance of counsel
Generally, “ineffective assistance of counsel claims are more
appropriately addressed in post-conviction proceedings” – rather than direct
appeal. State v. Harris, 2018-1012 (La. 7/9/20) 2020 WL 3867207. We
address each of Mayo’s ineffective assistance of counsel arguments in turn.
Mayo argues that defense counsel provided ineffective assistance at
trial by failing to request a continuance when Mayo’s purported alibi witness
3 failed to appear on the original trial date of August 14, 2020. However, trial
counsel in fact obtained a continuance. On the original trial date, the witness
had been properly subpoenaed, and a writ of attachment was issued upon her
failure to appear. The court did not stay the proceedings, but left evidence
open at the end of the prosecution’s case in chief, and a week later, the trial
was resumed. The alleged alibi witness gave her testimony on August 20,
2020. In no way did trial counsel perform deficiently with regard to the
securing of this witness for testimony. This argument lacks merit and is
rejected. Mayo is hereby barred from raising it again.
Mayo also references materials that were not introduced into evidence
as supposed impeachment evidence regarding an unspecified witness (or
witnesses). However, reading his brief in pari materia, it appears Mayo is
alleging that the victim and the other juvenile witness, in their Gingerbread
House interviews, did not mention the fact that Mayo was wearing an orange
shirt the night of the crime. This court cannot consider materials not
introduced into evidence in an appeal. Therefore, we decline to pass
judgment on this issue in this appeal. State v. Harris, supra.
Prosecution’s disclosure of impeachment evidence
Mayo alleges that the prosecution withheld the recordings of the
Gingerbread House interviews of the victim and the other juvenile witness,
as well as documents reflecting statements they made to investigating police
officers. He claims these recordings constitute exculpatory evidence and/or
impeachment evidence against the testimony of victim. However, elsewhere
in his brief, Mayo admits that he was allowed to watch the recorded
Gingerbread House interviews prior to trial. Therefore, Mayo’s accusation
4 that the prosecution withheld evidence is false per his own brief to this court.
This argument lacks merit and is rejected. Mayo is hereby barred from
raising it again.
However, to the extent, if any, the prosecution failed to disclose other
evidence which is materially exculpatory, Mayo is not precluded from
pursuing that issue through postconviction proceedings.
Accusation of judicial bias
Mayo makes conclusory accusations of bias against the trial judge.
Mayo’s complete failure to point out any specific grounds for his accusation
is fatal to this argument. Moreover, the trial judge’s refusal to allow Mayo to
disrupt the proceedings does not constitute bias or “vindictiveness.” A trial
judge has the duty, right, and power to maintain decorum in proceedings
over which she presides. The trial judge’s exclusion of Mayo from the trial
was quite appropriate in light of his recalcitrant disruption of the
proceedings.
CONCLUSION
Mayo’s conviction and sentence are AFFIRMED.