STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
dr`
te\ NO. 2021 KA 1116
IU v STATE OF LOUISIANA
VERSUS
JEROME MELLION
Judgment Rendered: APR 0 8 2022
On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. 5130416
Honorable Kelly Balfour, Judge Presiding'
Hillar C. Moore, III Attorneys for Appellee, District Attorney State of Louisiana Stacy L. Wright Assistant District Attorney Baton Rouge, LA
Lieu T. Vo Clark Attorney for Defendant -Appellant, Mandeville, LA Jerome Mellion
Jerome Mellion Defendant -Appellant, Angola, LA In Proper Person
BEFORE: WHIPPLE, C. J., PENZATO, AND HESTER, JJ.
1 Judge Michael R. Erwin, who is now retired, presided over the trial. HESTER, J.
The defendant, Jerome Mellion, was charged by grand jury indictment with
second degree murder, a violation of La. R. S. 14: 30. 1, and attempted second degree
murder, a violation of La. R.S. 14: 27 and 14: 30. 1. He pled not guilty and waived
his right to a trial by jury. Following a bench trial, the defendant was found guilty
as charged. The defendant filed a motion for new trial and a motion for post -verdict
judgment of acquittal, both of which were denied. For the second degree murder
conviction, he was sentenced to life imprisonment at hard labor without benefit of
parole, probation, or suspension of sentence. For the attempted second degree
murder conviction, he was sentenced to thirty years imprisonment at hard labor
without benefit of parole, probation, or suspension of sentence. The sentences were
ordered to run consecutively. The defendant now appeals, designating two
counseled assignments of error and one pro se assignment of error. We affirm the
convictions and sentences.
FACTS
Ms. Wanda Ortiz lived in an apartment in the 3200 block of Plank Road in
Baton Rouge. In the past, she had been in a relationship with the defendant, but that
relationship ended and Ms. Ortiz had a new boyfriend. On one occasion when the
defendant was at Ms. Ortiz' s house, she took money from the defendant and never
gave it back to him. On January 10, 2013, Ms. Ortiz had gotten off of work and was
walking to her apartment when the defendant approached Ms. Ortiz with a knife.
Ms. Ortiz passed by the window of her downstairs neighbors, the Harrises, and
yelled, " Call, call, call." The Harrises heard the cry for help, and Elda Harris called
911. Michael Harris ( hereinafter " Harris"), Elda' s husband, went outside to help
Ms. Ortiz. Harris saw the defendant stabbing Ms. Ortiz. When Harris intervened,
the defendant stabbed him in the upper right chest, just below his neck. Harris
2 retreated. The defendant then turned back to Ms. Ortiz and continued to repeatedly
stab her.
Ms. Ortiz died of her wounds. She had been stabbed 33 times, mostly to the
shoulder, back, neck, and scalp. There were both stabbing -type and incision -type
wounds. Many of the wounds were superficial, but two stab wounds to Ms. Ortiz' s
back were fatal because they punctured her lung cavity, causing her to drown in her own blood. Harris survived and was taken to the hospital where he identified the
defendant as the attacker in a photographic lineup. The defendant was apprehended
a short time later.
The defendant did not testify at trial.
COUNSELED ASSIGNMENTS OF ERROR NOS. 1 and 2
In these related counseled assignments of error, the defendant argues,
respectively, the trial court erred in denying his motion for postverdict judgment of
acquittal, and the evidence was insufficient to support the convictions for second
degree murder and attempted second degree murder. Specifically, the defendant
contends he is guilty of manslaughter because of the presence of the mitigating
factors of sudden passion or heat of blood at the time of the killing.
A conviction based on insufficient evidence cannot stand as it violates Due
Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review
for the sufficiency of the evidence to uphold a conviction is whether or not, 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 beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560
1979). See La. Code Crim. P. art. 821( B); State v. Ordodi, 2006- 0207 ( La.
11/ 29/ 06), 946 So. 2d 654, 660; State v. Mussall, 523 So. 2d 1305, 1308- 09 ( La.
1988). The Jackson standard of review, incorporated in Article 821, is an objective
standard for testing the overall evidence, both direct and circumstantial, for
9 reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15: 438
provides that the factfinder must be satisfied the overall evidence excludes every
reasonable hypothesis of innocence. State v. Patorno, 2001- 2585 ( La. App. 1 st Cir.
6/ 21/ 02), 822 So. 2d 141, 144.
Second degree murder is the killing of a human being when the offender has
a specific intent to kill or to inflict great bodily harm. La. R. S. 14: 30. 1( A)( 1). Guilty
of manslaughter is a proper responsive verdict for a charge of second degree murder.
La. Code Crim. P. art. 814( A)(3). Louisiana Revised Statute 14: 31( A)( 1) defines
manslaughter as a homicide which would be either first degree murder or second
degree murder, but the offense is committed in sudden passion or heat of blood
immediately caused by provocation sufficient to deprive an average person of his
self-control and cool reflection. Provocation shall not reduce a homicide to
manslaughter if the factfinder finds that the offender' s blood had actually cooled, or
that an average person' s blood would have cooled, at the time the offense was
committed. The existence of "sudden passion" and " heat of blood" are not elements
of the offense but, rather, are factors in the nature of mitigating circumstances that
may reduce the grade of homicide. State v. Corkern, 2003- 1393 ( La. App. 1st Cir.
9/ 17/ 04), 897 So. 2d 57, 62, writ denied, 2004- 2627 ( La. 2/ 18/ 05), 896 So. 2d 29.
Manslaughter requires the presence of specific intent to kill or inflict great bodily
harm. State v. Hilburn, 512 So. 2d 497, 504 ( La. App. 1st Cir.), writ denied, 515
So. 2d 444 ( La. 1987).
Specific 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). Such state of mind can be formed
in an instant. Specific intent need not be proven as a fact, but may be inferred from
the circumstances of the transaction and the actions of the defendant. The existence
of specific intent is an ultimate legal conclusion to be resolved by the trier of fact.
II State v. Nixon, 2017- 1582 ( La. App. 1st Cir. 4/ 13/ 18), 250 So. 3d 273, 290, writ
denied, 2018- 0770 ( La. 11/ 14/ 18), 256 So. 3d 290.
In his brief, the defendant does not deny that he killed Ms. Ortiz. He argues
that he should have been found guilty of manslaughter instead of second degree
murder. According to the defendant, his killing of Ms. Ortiz was a crime of passion.
Further, the defendant asserts, the fact that she was stabbed 33 times was " indicative
of an emotionally charged offense."
Multiple stab wounds are not necessarily indicative of a killing committed in
sudden passion or heat of blood caused by provocation sufficient to deprive a person
of his self-control and cool reflection. In State v. Johnson, 52, 762 ( La. App. 2nd
Cir. 8/ 14/ 19), 277 So. 3d 1263, 1273, 1279, writ denied, 2019- 01670 ( La. 7/ 17/ 20),
298 So. 3d 176, the victim was stabbed 21 times in the chest, arm, neck, buttock, and
back, with depths of the stab wounds ranging 0. 3 to 10. 5 centimeters. The appellate
court found no evidence in support of a manslaughter verdict. In State v. Ellis,
42, 286 ( La. App. 2nd Cir. 7/ 11/ 07), 961 So. 2d 636, 638- 39, writ denied, 2007- 1641
La. 1/ 25/ 08), 973 So. 2d 753, the victim was stabbed 45 times. Finding no merit to
the defendant' s claim that he should have been convicted of manslaughter, the
second circuit found:
The defendant failed to prove by a preponderance of the evidence that he was provoked to the extent necessary to deprive an average person of his self-control. Even had he been unduly provoked, he should have recovered his senses while lying in wait. In support of his provocation argument, he offered autopsy results revealing that the victim had cocaine in her system. Even if the victim had used every drug known to mankind, she certainly had a right not to be stalked and brutally stabbed to death. The jury heard the evidence and rejected the defendant' s version of the butchering, finding that this was a murder case. We agree. This is not the sort of sudden provocation contemplated by La. R.S. 14: 31. Generally, provocative acts held to rise to the level of mitigating conduct have involved physical threats or actions on the part of the victim. There was no evidence at the crime scene that the victim said or did anything directly to the defendant, other than to plead for mercy. Defendant' s claim of manslaughter is untenable.
Ellis, 961 So. 2d at 640 ( citations omitted).
5 In State v. Jackson, 34, 076 ( La. App. 2nd Cir. 12/ 6/ 00), 774 So. 2d 1046,
1050- 1053, the defendant stabbed his girlfriend' s mother, who survived the attack.
When the girlfriend intervened, the defendant stabbed her, killing her. Despite the
defendant' s claim of manslaughter, the defendant' s conviction for second degree
murder was affirmed. See also State v. Watson, 2015- 392 ( La. App. 3rd Cir.
10/ 7/ 15), 175 So. 3d 1192, 1194, 1201, writ denied, 2015- 2046 ( La. 11/ 7/ 16), 208
So. 3d 897; State v. Vercher, 2014- 1211 ( La. App. 3rd Cir. 5/ 6/ 15), 162 So. 3d 740,
744- 46, writ denied, 2015- 1124 ( La. 5/ 20/ 16), 191 So. 3d 1065.
The defendant' s claim herein that his stabbing of Ms. Ortiz was caused by
provocation sufficient to deprive him ofhis self-control is unavailing. Ernest Taylor,
a witness for the State, testified that he was a prisoner at East Baton Rouge Parish
Prison where he met the defendant, who had been incarcerated there shortly after he
killed Ms. Ortiz. Taylor' s testimony established the following. While in the parish
prison, he and the defendant became friends, then intimately involved. The
defendant told Taylor that at the time he killed Ms. Ortiz, they were not in a
relationship, but the defendant still went to her house and spent nights with her.
During one of those visits, the defendant discovered he was missing $ 80. 00. Ms.
Ortiz admitted that she took the money. Ms. Ortiz' s boyfriend at that time called the
defendant and told him that they would pay the money back. They arranged a place
to meet, but Ms. Ortiz and her boyfriend did not show up. The defendant called Ms.
Ortiz several times, but she did not answer her phone. The defendant went to Ms.
Ortiz' s apartment, and Ms. Ortiz' s boyfriend called the police. At this point, the
defendant decided to kill Ms. Ortiz' s boyfriend. The defendant put a knife in a tree
near Ms. Ortiz' s apartment and waited for her boyfriend. However, Ms. Ortiz got
off the bus that day without her boyfriend. The defendant decided he would talk to
Ms. Ortiz. He approached Ms. Ortiz, and she indicated that she did not want to talk
to him. The defendant told her that if she made a noise and someone came out, he
0 would stab her. Ms. Ortiz screamed and the defendant stabbed her. A neighbor
intervened, and the defendant stabbed him. The defendant then continued to stab
Ms. Ortiz. After Ms. Ortiz stopped struggling or moving, the defendant went to an
abandoned house down the street where he left Ms. Ortiz' s bag ( a backpack) that she
had with her when she got off the bus. The defendant then caught a bus back to his
residence and changed his bloody clothes.
A reduction of second degree murder to manslaughter requires that the killing
be committed in sudden passion or heat of blood immediately caused by provocation
sufficient to deprive an average person of his self-control and cool reflection. La.
R.S. 14: 31( A)( 1). While the defendant was upset that Ms. Ortiz had taken $ 80. 00
from him, days had passed between the taking and the killing. There was nothing in
the scenario, as described by Taylor, to suggest that Ms. Ortiz did anything to
provoke the defendant when he approached her with a knife. The defendant told Ms.
Ortiz not to make a noise or he would stab her. The neighbors heard Ms. Ortiz yell,
Call, call, call." Whether the defendant stabbed her before or after she yelled this
is not clear. Regardless, it is clear the defendant followed through on his threat of
stabbing her. The defendant stabbing his victim to death because she screamed for
her life is not the type of provocation contemplated by La. R.S. 14: 31. See Ellis,
961 So. 2d at 640. That is, nothing in the moments leading up to the stabbing
established that the defendant had been provoked by Ms. Ortiz such that a
reasonable person in the defendant' s position would have lost his self-control. See
State v. Tran, 98- 2812 ( La. App. 1st Cir. 11/ 5/ 99), 743 So. 2d 1275, 1292, writ
denied, 99- 3380 ( La. 5/ 26/ 00), 762 So. 2d 1101. Mere words or gestures will not
reduce a homicide from murder to manslaughter. State v. Mitchell, 39,202 ( La.
App. 2nd Cir. 12/ 15/ 04), 889 So. 2d 1257, 1263, writ denied, 2005- 0132 ( La.
4/ 29/ 05), 901 So. 2d 1063. See State v. Charles, 2000- 1611 ( La. App. 3rd Cir.
5/ 9/ 01), 787 So. 2d 516, 519, writ denied, 2001- 1554 ( La. 4/ 19/ 02), 813 So. 2d 420
7 an argument alone will not be sufficient provocation to reduce a murder charge to
manslaughter). See also State v. Landry, 2019- 0486 ( La. App. 1st Cir. 2/ 21/ 20),
297 So. 3d 8, 13- 14, 18.
Provocation testimony is an issue of credibility. The only evidence of any
alleged immediate provocation came from Taylor' s testimony. In finding the
defendant guilty of second degree murder, it is clear the judge rejected any such
testimony. See State v. Byes, 97- 1876 ( La. App. 4th Cir. 4/ 21/ 99), 735 So. 2d 758,
764, writ denied, 99- 1559 ( La. 11/ 5/ 99), 751 So. 2d 231. It was the defendant who
had to establish that the mitigating factors of sudden passion or heat of blood were
present at the time of the killing, and he failed to do so. See State ex rel. Lawrence
v. Smith, 571 So. 2d 133, 136 ( La. 1990); State v. LeBoeuf, 2006- 0153 ( La. App.
1st Cir. 9/ 15/ 06), 943 So. 2d 1134, 1138, writ denied sub nom., State ex rel. LeBoeuf
v. State, 2006- 2621 ( La. 8/ 15/ 07), 961 So. 2d 1158. See also Patterson v. New
York, 432 U.S. 197, 206- 07, 97 S. Ct. 2319, 23251 53 L.Ed.2d 281 ( 1977). The
defendant did not testify at trial, nor did any witness testify for the defense. As such,
the defendant failed to prove any mitigating factors when he stabbed Ms. Ortiz to
death.
The factfinder can accept or reject the testimony of any witness. To resolve
conflicting testimony relative to factual matters, the factfinder must make credibility
determinations and weigh the evidence. State v. Eby, 2017- 1456 ( La. App. 1st Cir.
4/ 6/ 16), 248 So. 3d 420, 426, writ denied, 2018- 0762 ( La. 2/ 11/ 19), 263 So. 3d 1153.
See also State v. Mire, 2014- 2295 ( La. 1/ 27/ 16), 269 So. 3d 698, 700 ( per curiam).
The Jackson standard of review does not permit a reviewing court to substitute its
own appreciation of the evidence for the factfinder' s, assess the credibility of
witnesses, or reweigh evidence. See State v. McGhee, 2015- 2140 ( La. 6/ 29/ 17),
223 So. 3d 1136, 1137 ( per curiam); State v. Calloway, 2007- 2306 ( La. 1/ 21/ 09), 1
So. 3d 417, 422 ( per curiam). Thus, in the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness' s testimony, if
believed by the factfinder, is sufficient to support a factual conclusion. State v.
Higgins, 2003- 1980 ( La. 4/ 1/ 05), 898 So. 2d 1219, 1226, cert. denied, 546 U.S. 883,
126 S. Ct. 1821 163 L.Ed.2d 187 ( 2005). An appellate court errs by substituting its
appreciation of the evidence and credibility of witnesses for that of the factfinder
and thereby overturning a verdict based on an exculpatory hypothesis of mitigatory
circumstances presented to it, and rationally rejected. Eby, 248 So. 3d at 426- 27.
It is clear from the guilty verdict that the trial judge rejected the theory that
the defendant was so angry when he stabbed Ms. Ortiz to death that he was deprived
of his self-control and cool reflection. Questions of provocation and time for cooling
are for the factfinder to determine under the standard of the average or ordinary
person with ordinary self-control. If a man unreasonably permits his impulse and
passion to obscure his judgment, he will be fully responsible for the consequences
of his act. State v. Leger, 2005- 0011 ( La. 7/ 10/ 06), 936 So.2d 108, 171, cert.
denied, 549 U.S. 1221, 127 S. Ct. 1279, 167 L.Ed.2d 100 ( 2007). The trial judge' s
verdict finding the defendant guilty of second degree murder was necessarily a
rejection of any of the responsive verdicts, including manslaughter. See La. Code
Crim. P. art. 814( A)(3); State v. Leon, 93- 2511 ( La. 6/ 3/ 94), 638 So. 2d 220, 222
per curiam).
After a thorough review of the record, we find that the evidence supports the
guilty verdict. We are convinced that viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found beyond a reasonable
doubt, and to the exclusion of every reasonable hypothesis of innocence, that the
defendant was guilty of the second degree murder of Ms. Ortiz. See Calloway, 1
So. 3d at 418.
X Regarding the attempted second degree murder conviction, the only argument
the defendant asserts in brief is that when Harris tried to intervene, he ( the defendant)
amidst his fit of rage, stabbed him one time."
To sustain a conviction for attempted second degree murder, the State must
prove that the defendant intended to kill the victim and committed an overt act
tending toward the accomplishment of the victim' s death. La. R. S. 14: 27; 14: 30. 1.
Although the statute for the completed crime of second degree murder allows for a
conviction based on " specific intent to kill or to inflict great bodily harm," La. R.S.
14: 30. 1, attempted second degree murder requires specific intent to kill. State v.
Huizar, 414 So. 2d 741, 746 ( La. 1982). Specific intent may be inferred from the
circumstances surrounding the offense and the conduct of the defendant. La. R.S.
14: 10( 1); State v. Bishop, 2001- 2548 ( La. 1/ 14/ 03), 835 So. 2d 434, 437.
Despite the claim herein, Taylor' s testimony contradicts the defendant' s " fit
of rage" theory. Taylor testified that the defendant told him that when Harris came
outside to help Ms. Ortiz, the defendant wanted to kill Harris by stabbing him in the
heart. The defendant told Taylor that he did not want to leave any eyewitnesses
behind. Accordingly, the trial judge rationally concluded that the defendant had the
specific intent to kill Harris and that he was guilty of the attempted second degree
murder of Harris. See Eby, 248 So. 3d at 426-27; Calloway, 1 So. 3d at 422.
These counseled assignments of error are without merit.
PRO SE ASSIGNMENT OF ERROR
In his sole pro se assignment of error, the defendant accuses the trial judge of
being racist and argues that the trial judge should have been recused from hearing
the case.
A trial judge shall be recused when he "[ i] s biased, prejudiced, or personally
interested in the cause to such an extent that he would be unable to conduct a fair
and impartial trial...." La. Code Crim. P. art. 671( A)( 1). There is a presumption that
10 a trial judge is impartial, and in order to obtain a recusation based on bias, prejudice,
and personal interest, the party seeking the recusation must establish more than
conclusory allegations. State v. Boudreaux, 95- 153 ( La. App. 5th Cir. 9/ 20/ 95),
662 So. 2d 22, 27- 28, writ denied, 96- 0840 ( La. 5/ 30/ 97), 694 So.2d 233. The failure
to file a written motion to recuse waives this error. State v. Crothers, 278 So. 2d
129 14 ( La.), cert. denied, 414 U.S. 1096, 94 S. Ct. 731, 38 L.Ed. 2d 555 ( 1973); State
v. Anderson, 96- 1515 ( La. App. 3rd Cir. 4/ 29/ 98), 714 So. 2d 766, 768, writ denied,
98- 1374 ( La. 10/ 9/ 98), 726 So. 2d 25.
Louisiana Code of Criminal Procedure article 674 provides:
A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675. Emphasis added).
There was no timely filed motion to recuse in the instant matter. In fact, no
motion to recuse has ever been filed. Accordingly, there is nothing for this court to
review.
The pro se assignment of error is without merit.
CONVICTIONS AND SENTENCES AFFIRMED.