STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 KA 0287
VERSUS
RIM117., 10
Judgment Rendered: DEC 2 2 2021 14 C' o Appealed from the Twenty-first Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Docket Number 1603119
Honorable Jeffrey S. Johnson, ad hoc
Scott M. Perilloux Counsel for Appellee, Patricia Parker Amos State of Louisiana Brett Sommer Amite, LA
Rachel Yazbeck Counsel for Defendant/Appellant, New Orleans, LA Jordan Cyprian
BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ. WHIPPLE.)C.J.
The defendant, Jordan Cyprian, was charged by grand jury indictment with
second degree murder, a violation of LSA-R.S. 14: 30, 0 He pled not guilty, He
moved to suppress all statements and physical evidence, but the motion was denied
by the trial court. He applied to this court for supervisory relief from the ruling,
but the writ application was also denied. State v. Cyprian, 2019- 0093 ( La. App.
1st Cir. 3/ 6/ 19), 2019 WL 1084231 ( unpublished writ action)? The matter then
proceeded to trial before a jury. On the second day of trial, he moved for a
mistrial, but the motion was denied. He applied to this court and the Louisiana
Supreme Court for supervisory relief from the ruling, but writs were denied. State
v. Cyprian, 2020- 0643 ( La. App. 1st Cir. 7/ 23/ 20), 2020 WL 4218772
unpublished writ action) & 2020- 00937 ( La. 7/ 24/ 20), 300 So. 3d 402. Following
trial, he was found guilty by a unanimous verdict. He was sentenced to life
imprisonment at hard labor without the benefit of probation, parole, or suspension
of sentence. He now appeals, challenging the sufficiency of the evidence, the
ruling on the motion to suppress, and the denial of his motion for mistrial. For the
following reasons, we affirm the defendant' s conviction and sentence.
FACTS
On November 25, 2016, at approximately 1: 30 a.m., the Hammond Police
Department was alerted regarding the shooting of the victim, Stephen Christopher
Vance, on Rue Cannes in the Villa West subdivision ( Villa West). Broken glass and
blood at the scene indicated the victim may have been pushed from a vehicle.
Additionally, a Nissan vehicle key was recovered at the scene. At approximately
Eric Newman was separately charged by grand jury indictment and was convicted of first- degree murder in connection with the same offense. This court affirmed his conviction and ntence. State v. Newman. 2019- 0361 ( La. App. 1st Cir. 9/ 27/ 19), 289 So. 3d 59, writ denied, 2019- 01890 ( La. 1/ 28/ 20), 291 So. 3d 1060. 2Although a pretrial determination does not absolutely preclude a different decision on appeal, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility unless it is apparent, in light of a subsequent trial record, that the determination was patently erroneous and produced an unjust result. State v. Burgess, 2019- 1603 ( La. App. 1st Cir. 9/ 22/ 20), 315 So. 3d 279, 282 n. l, writ denied, 2020- 01189 ( La. 2/ 17/ 21), 310 So. 3d 1148.
2 4: 00 a.m., the victim died. He had suffered a fatal gunshot wound to the right temple
area of his head. The shot was fired less than two feet from his face.
At 5: 33 a.m., the Hammond Police Department was notified by the
Tangipahoa Parish Sheriff's Office that an abandoned Nissan vehicle was located in a
vacant lot off of Old Baton Rouge Highway. The front driver' s side window of the
car was shattered, and there was blood in the car. There were also bloody items on
the ground near the car.. Although the car was wet with dew, its door handles were
dry and clean as if they had been wiped with a towel. The National Crime Index
Computer indicated the registered owner of the car was Thomas Smith. Smith
testified at trial that the victim was his roommate and best friend, and that he allowed
the victim to borrow the vehicle to go to work on November 24, 2016.
Fredenisha Williams, who is the sister of Robert Rheams, III, (a friend of the
defendant) and was also Eric Newman' s girlfriend at the time of the offense, testified
at trial. On Thanksgiving evening in 2016, Williams was in bed with Newman when
the defendant " bust[ ed] in[to] the room." According to Williams, the defendant said
he want[ed] to go on a lick." Williams testified that a " lick" was some kind of
criminal activity. Newman and the defendant then went outside. Subsequently,
Rheams arrived, and all three men left for a couple of hours. When they returned,
Newman was bloody. He also had a phone in his possession that he did not have in
his possession when he left. The next day, Williams heard the defendant arguing
with Newman. According to Williams, the defendant stated he had to let " Money"
know "that it was a body on this gun."
At trial, the State played a November 28, 2016 recorded statement from the
defendant. The defendant was questioned concerning what he knew about the
murder in Villa West. He stated that on the night of the murder, he was keeping a .45
caliber Ruger handgun for " Money" while he was at work. The gun had two bullets
in it. The defendant became thirsty and decided to go to Circle K. Newman and
3 Little Rob" ( later identified as Rheams) walked with the defendant to Circle K. According to the defendant, Newman wanted to hold the gun, and the defendant gave it to him. Newman kept saying " gotta move." The defendant also claimed Newman
said " we are going to rob somebody," and " cocked" the weapon.
The defendant indicated that after he got a drink and left the Circle K store, he became hungry and went back to the store with Newman and Rheams. The
defendant denied discussing robbing anyone on the way to the store. According to
the defendant, when he exited the Circle K, he discovered Newman and Rheams had left without him. The defendant claimed he then saw Newman. and Rheams in the
victim' s car with the victim. Newman was in the passenger seat. Rheams was seated
behind Newman. The defendant stated he saw Newman pointing a gun at the victim. The defendant then heard a " boom." He claimed Rheams jumped out of the vehicle
and ran off before the gun went off. The defendant also claimed Newman pushed the victim' s body out ofthe vehicle and drove off in the vehicle.
According to the defendant, he then ran back to his home on Klein Road and'
Newman and Rheams were already there " plotting their s---." Newman had the
victim' s phone in his hand. The defendant indicated he told Newman, " man you,
stupid man you kept it." The defendant stated Newman replied " this is my fourth one." Newman and Rheams left approximately five minutes later in the victim' s car with bleach and a towel. The defendant claimed Newman and Rheams subsequently returned with the gun. The defendant stated the weapon had been " cleaned" and
smell[ ed] like bookoo [ sic] bleach." He claimed Rheams subsequently called him and told him " they killed somebody with the gun." The defendant further claimed
Rheams told him to get rid of the weapon. The defendant stated he gave the weapon
back to "Money."
3The record also references " Klein Road" as " Kline Road."
4 SUFFICIENCY OF THE EVIDENCE
In assignment of error number 1, the defendant contends the evidence was
insufficient to support the conviction because the State failed to prove he was a
willing participant in the armed robbery relied upon to make him a principal to the
murder. The defendant argues that his codefendant' testified that he and the
defendant decided not to commit a robbery before they reached the store. He further
argues Eric Newman acted on his own when he flagged down the victim' s car.
Lastly, he argues he did not participate in the destruction of evidence.
A conviction based on insufficient evidence cannot stand, as it violates due
process. See U.S. Const. amend. XIV; La. Const, art. I, § 2. In reviewing claims
challenging the sufficiency of the evidence, this court must consider " 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 beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S. 3071 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 ( 1979); see also LSA-C.Cr.P. art. 821( B); State v. Mussall, 523 So. 2d 1305,
1308- 09 ( La. 1988). The Jackson standard, incorporated in Article 821, is an
objective standard for testing the overall evidence, both direct and circumstantial, for
reasonable doubt. State v. Watts, 2014- 0429 ( La. App. 1st Cir. 11/ 21/ 14), 168 So. 3d
441, 444, writ denied, 2015- 0146 ( La. 11/ 20/ 15), 180 So. 3d 315.
When a conviction is based on both direct and circumstantial evidence, the
reviewing court must resolve any conflict in the direct evidence by viewing that
evidence in the light most favorable to the prosecution. When analyzing
circumstantial evidence, Louisiana Revised Statute 15: 438 provides that, in order to
convict, the fact finder must be satisfied that the overall evidence excludes every
reasonable hypothesis of innocence. The facts then established by the direct evidence
and inferred from the circumstances established by that evidence must be sufficient
The defendant references the testimony of Rheams in connection with this argument. However, Rheams was not a codefendant in this matter.
5 for a rational trier of fact to conclude beyond a reasonable doubt that the defendant
was guilty of every essential element of the crime. Watts, 168 So. 3d at 444.
All persons concerned in the commission of a crime, whether present or
absent, and whether they directly commit the act constituting the offense, aid and
abet in its commission, or directly or indirectly counsel or procure another to commit
the crime, are principals. LSA-R.S. 14: 24. However, the defendant' s mere presence
at the scene is not enough to " concern" him in the crime. Only those persons who
knowingly participate in the planning or execution of a crime may be said to be
concerned" in its commission, thus making them liable as principals. A principal
may be connected only to those crimes for which he has the requisite mental state.
State v. Neal, 2000- 0674 ( La. 6/ 29/ 01), 796 So. 2d 649, 659, cert. denied, 535 U.S.
9401, 122 S. Ct. 1323, 152 L. Ed. 2d 231 ( 2002). However, "[ i] t is sufficient
encouragement that the accomplice is standing by at the scene of the crime ready to
give some aid if needed, although in such a case it is necessary that the principal
actually be aware of the accomplice' s intention." State v. Anderson, 97- 1301 ( La.
2/ 6/ 98), 707 So. 2d 1223, 1225 ( per curiam) ( uq oting 2 W. LaFave, A. Scott,
Substantive Criminal Law, § 6.7, p. 138 ( West 1996)); State v. Clay, 2011- 1974 ( La.
App. l st Cir. 5/ 3/ 12), 2012 WL 1564626, * 2, writ denied, 2013- 0287 ( La. 6/ 14/ 13),
118 So. 3d 1084.
Louisiana Revised Statutes 14: 30. 1, in pertinent part, provides:
A. Second degree murder is the killing of a human being:
2) When the offender is engaged in the perpetration or attempted perpetration of... armed robbery[.]
Louisiana Revised Statutes 14: 64, in pertinent part, provides:
A. 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.
C Rheams testified at trial. At the time of the offense, he was sixteen years old.
Rheams and the defendant had been friends since they were approximately ten years
old. On Thanksgiving Day of 2016, Rheams was visiting relatives at his cousin' s
house. The defendant called Rheams from Rheams' s house and asked Rheams to
meet him there. When Rheams arrived at his home, Newman was also present with
the defendant. Rheams had only known Newman for a couple of months. He stated
that Newman was " tailing" Rheams' s sister.
Newman and the defendant started talking to Rheams about " hitting a lick."
Rheams testified that " hitting a lick" was a reference to " robbing somebody or just
doing something outlaw." Newman wanted to get a car from the robbery. According
to Rheams, the defendant gave Newman a loaded .45 caliber gun.
At approximately midnight, Rheams, Newman, and the defendant began
walking to a nearby Circle K store together. According to Rheams, after leaving the
store, Newman still wanted to " hit a lick," but Rheams and the defendant " wasn' t
messing with it." Rheams, however, answered affirmatively when asked if "the
intent was just to do a robbery" and " that was the intent all night[.]"
Thereafter, at a stop sign going into Villa West, Newman told the defendant to
lay on the side of the road and " act like something was wrong with him" or " act like
he was passed out." Newman then tried to flag down a passing car. The first car that
came to the stop sign did not stop.
The defendant was still lying in the road when a second car, driven by the
victim, stopped. The victim offered to call 911 and handed Newman a bottle of
water. The victim also offered to give Rheams, Newman, and the defendant a ride
to back where [ they were] going." Newman got into the front of the car. Rheams
got into the back of the car. The defendant continued to lay on the ground. After the
victim began driving, Newman told him to put the vehicle into park. The victim
complied. The victim did not comply, however, when Newman told him to get out
7 of the car. The victim told Newman and Rheams that he was going to drop them
back from where he had picked them up. The victim drove out of Villa West. The
victim also told Newman "[ the victim] wasn' t going to give [ Newman] nothing."
Newman replied, " well, you ain' t going to give me nothing, then I' m going to have to
kill you." Rheams claimed he exited the vehicle at this point and heard a gunshot
after Newman and the victim drove off.
Thereafter, Newman returned with the vehicle and threatened Rheams " to get
back in the car." Rheams got into the car and the men drove off. Rheams stated the
defendant "[ came] out from nowhere" and also got into the vehicle. Newman
dropped off Rheams and the defendant at Klein Road Trailer Park, and they walked
to Rheams' s home.
Subsequently, Newman walked into Rheams' s home. Rheams and the
defendant asked Newman why he had killed the victim. Newman did not answer.
The defendant then took back the gun from Newman. Newman asked either Rheams
or the defendant to " clean the car." The defendant gave Newman some towels from
Rheams' s laundry room. Rheams gave Newman some bleach. Thereafter, Rheams
and Newman went back to the car stolen in the robbery. Newman threw items from
the car into the woods. Rheams sprayed bleach on the door handles. Rheams
indicated the defendant' s responsibility was to get rid of the gun.
Thereafter, Rheams and the defendant went to the house of Rheams' s cousin' s
girlfriend. When they returned to Rheams' s house, Newman was burning clothes.
Any rational trier of fact, viewing the evidence presented in this case in the
light most favorable to the State, could find that the evidence proved beyond a
reasonable doubt, and to the exclusion of every reasonable hypothesis of
innocence, that the defendant aided and abetted in the commission of the robbery that
resulted in the victim' s death.
8 Williams testified that the defendant came to her bedroom to get Newman " to
go on a lick." Although Rheams testified that after leaving the store, Newman still
wanted to " hit a lick," while Rheams and the defendant " wasn' t [ sic] messing with
it," Rheams further testified that the defendant gave Newman the gun used in the
robbery, which resulted in the victim' s death, with full knowledge that Newman
wanted to commit a robbery to get a car. Further, the defendant only took back the
gun from Newman after the robbery and murder. He did not leave the scene before
the victim stopped and he did nothing to warn the victim. Instead, the defendant' s
participation by feigning unconsciousness on the side of the road caused the victim to
stop his vehicle and facilitated the criminal acts ultimately resulting in the murder of
the victim. See State v. Smith, 2007- 2028 ( La. 10/ 20/ 09), 23 So. 3d 291, 296 (per
curiam) (" a general principle of accessorial liability [ is] when two or more persons
embark on a concerted course of action, each person becomes responsible for not
only his own acts but also for the acts of the other, including ` deviations from the
common plan which are the foreseeable consequences of carrying out the plan.' The
rule has particular application in cases of felony murder. Thus, a simple burglary
may turn into an aggravated burglary and then escalate further into a second degree
felony murder well beyond the original plan of the defendant or his accomplice who
then unexpectedly kills during commission of the underlying felony offense.)
Citations omitted).
Additionally, the defendant' s argument that he did not participate in the
destruction of evidence is disingenuous. While the defendant may not have
personally " cleaned" the car taken in the robbery and involved in the murder, he
disposed of the weapon used in connection with both of those crimes. Accordingly,
even if the defendant did not intend for the victim to be killed, he is nonetheless
guilty of second degree murder under LSA-R.S. 14:30. 1( A)(2). See State v. Grant,
623 So. 2d 204, 207 (La. App. 2nd Cir.), writ denied, 629 So. 2d 400 ( La. 1993) ("[ a]
9 reasonable juror viewing the evidence in the light most favorable to the prosecution
could have found beyond a reasonable doubt that Grant aided and abetted in the
commission of the robbery that resulted in [the victim' s] death. The jury easily could
have determined that the taking of the car keys was part of the entire incident. Thus,
even if Grant did not intend for the victim to be killed, he is nonetheless guilty of
second degree murder under LSA-R.S. 14: 30. 1( A)(2).").
In reviewing the evidence, we cannot say that the jury' s determination was
irrational under the facts and circumstances presented to them. See State v. Ordodi,
2006- 0207 ( La. 11/ 29/ 06), 946 So. 2d 654, 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). In accepting
a hypothesis of innocence that was not unreasonably rejected by the fact finder, 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. See State v. Mire,
2014- 2295 ( La. 1/ 27/ 16), 269 So. 3d 698, 703 ( per curiam).
This assignment of error lacks merit.
MOTION TO SUPPRESS
In assignment of error number 2, the defendant contends his statements were
the product of evidence obtained during the unlawful stop of Jamonte Felder, a
friend of the defendant. He argues the stop was unlawful because it was
unsupported by any reasonable suspicion to justify the stop. He further argues his
statements were derived from the unlawful stop and are " fruit of the poisonous
10 5 tree.' -)
Initially, we note the defendant cannot assert violation of Felder' s Fourth
Amendment rights. Rights under the Fourth Amendment are personal in nature.
As such, they may be enforced by exclusion of evidence only at the instance of a
person whose own protection was infringed by the search or seizure. It is
axiomatic, however, that the defendant may assert violation of his own Fourth
Amendment rights. State v. Pennison, 99- 0466 ( La. App. 1 st Cir. 12/ 28/ 99), 763
So. 2d 671, 676, writs denied, 2000- 1105, 2000- 2308 ( La. 10/ 27/ 00), 772 So. 2d
122, 658, & 2000- 0298 ( La. 11/ 3/ 00), 772 So. 2d 663.
Louisiana Constitution, Article I, § 5 guarantees that "[ e] very person shall be
secure in his person, property, communications, houses, papers, and effects against
unreasonable searches, seizures, or invasions of privacy." This Article further
guarantees that "[ a] ny person adversely affected by a search or seizure conducted
in violation of this Section shall have standing to raise its illegality in the appropriate court." See Pennison, 763 So. 2d at 677; see also State v. Brown,
2009- 2456 ( La. 5/ 11/ 10), 35 So. 3d 1069, 1. 073 ("[ t]here is no equivalent under
Louisiana constitutional law to the federal rule that one may not raise the violation
of a third person' s constitutional rights." ( Quotation omitted).
The Fourth Amendment to the United States Constitution and Article I, § 5,
of the Louisiana Constitution protect people against unreasonable searches and
seizures. Subject only to a few well-established exceptions, a search or seizure
conducted without a warrant issued upon probable cause is constitutionally
prohibited. Once a defendant makes an initial showing that a warrantless search or
seizure occurred, the burden of proof shifts to the state to affirmatively show it was
See Wong Sun v. United States, 371 U. S. 471, 487- 88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 ( 1963) ("[ w]e need not hold that all evidence is ` fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ` whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."' ( Citation omitted).
11 justified under one of the narrow exceptions to the rule requiring a search warrant.
LSA-C.Cr.P. art. 703( D); State v. Lowery, 2004- 0802 ( La. App. 1st Cir. 12/ 17/ 04),
890 So. 2d 7117 717- 18, writ denied, 2005- 0447 ( La. 5/ 13/ 05), 902 So. 2d 1018.
The right of law enforcement officers to stop and interrogate one reasonably
suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215. 1, as well as
both federal and state jurisprudence. TeM v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 ( 1968); Lowery, 890 So. 2d at 718. Louisiana Code of Criminal
Procedure article 215. 1( A) codifies the United States Supreme Court' s
authorization of protective searches for weapons in Terry and provides: "[ a] law
enforcement officer may stop a person in a public place whom he reasonably
suspects is committing, has committed, or is about to commit an offense and may
demand of him his name, address, and an explanation of his actions." Lowery, 890
So. 2d at 718.
Reasonable suspicion to stop is something less than the probable cause
required for an arrest, and the reviewing court must look to the facts and
circumstances of each case to determine whether a detaining officer had sufficient
facts within his knowledge to justify an infringement of the suspect' s rights.
Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from
trial. In order to assess the reasonableness of an officer' s conduct, it is necessary
to balance the need to search or to seize against the harm of invasion. Id.
The totality of the circumstances must be considered in determining whether
reasonable suspicion exists. The detaining officers must have knowledge of
specific, articulable facts, which, if taken together with rational inferences from
those facts, reasonably warrant the stop. Public safety requires some flexibility for
police officers to investigate and prevent crime. In reviewing the totality of the
circumstances, the officer' s past experience, training and common sense may be
considered in determining if his inferences from the facts at hand were reasonable.
12 Deference should be given to the experience of the officers who were present at the
time of the incident. 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. Id.
Prior to trial, the defendant moved to suppress all statements and physical
evidence in the possession of the State he alleged were obtained in violation of his
due process rights.
Tangipahoa Parish Sheriff' s Office Detective Lindell Bridges testified at a
pretrial hearing on a motion to reveal the confidential informant.' On weekends,
Detective Bridges provided security at North Oaks Medical Center. On Monday,
November 28, 2016, he was sitting by the emergency -room door when he was
approached by a man. The man told Detective Bridges that he wanted to talk about
a murder in Hammond. The man said " it was a young black male by the name of
Money with tattoos on his neck and his hands." The man further stated Money
lived in the Klein Road area. Detective Bridges advised Detective Chase Zaffuto,
a ten-year veteran of the Hammond Police Department, of the man' s statements.
Detective Zaffuto was the lead investigator in the victim' s homicide
investigation. After receiving information from Detective Bridges, Detective
Zaffuto searched social media for the nickname " Money."' He learned Felder used
Money" as his Facebook name. Detective Zaffuto also recognized the Klein Road
Trailer Park in Felder' s profile picture. Klein Road was off Old Baton Rouge
Highway and " not far from where the homicide occurred." Additionally, Felder' s
pacebook profile picture was a picture of himself and the defendant. Detective
Zaffuto was familiar with the defendant due to his "[ p] revious dealings through the
Hammond Police Department."
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. State v. Chopin, 372 So. 2d 1222, 1223 n.2 ( La. 1979). 7The transcript also references this nickname as " Mone."
13 Additional research on Facebook revealed that shortly after the murder, the
defendant was on Facebook communicating with Felder' s girlfriend - Sabrina
Kemp. The defendant told Kemp he needed to talk to her and it was urgent and
important. Kemp told the defendant she had to pick up Felder from work.
The police proceeded to the Klein Road Trailer Park to locate Felder and
Kemp. They had information about the particular vehicle Kemp drove.
Thereafter, the police saw the vehicle coming out of the trailer park and signaled it
to stop. Felder and Kemp were in the vehicle. Kemp consented to assisting police
with their inquiries at the police station. Felder was arrested on traffic citations for
no driver' s license."
The police obtained a consent to search the vehicle that Kemp had been
driving from Kemp' s mother, the owner of the vehicle. They also obtained a
search warrant for the vehicle. Felder' s cell phone was recovered from the vehicle.
After being advised of her Miranda' rights, Kemp indicated she initially
transported the murder weapon from the Klein Road Trailer Park to her house.
When she realized, however, that she still had the murder weapon in the car, she
brought it back" to Felder. The weapon was never recovered.
After being advised of his Miranda rights, Felder was questioned concerning
what he knew about the murder of the victim. Felder advised the police that after
he finished work, he met with his friend - the defendant. Felder confirmed that the
defendant was in Felder' s profile picture. Felder also had another profile picture
with the defendant in which Felder had a gun in his pocket or waistband. Felder
indicated the gun in the picture was the murder weapon. Additionally, Detective
Zaffuto was able to confirm that Felder lived in the Klein Road Trailer Park.
Felder subsequently used his cell phone to call the defendant from the police
station. Thereafter, the defendant agreed to come to the police department for
Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1642, 16 L.Ed.2d 694 ( 1966).
14 questioning.
After being advised of his Miranda rights, the defendant provided the police
with the names of Rheams and Newman. The defendant indicated Newman was
the shooter" in the victim' s homicide.
After obtaining permission to question Rheams from his mother, the police
took a statement from him concerning his and the defendant' s involvement in the
victim' s homicide.
Newman was brought in for questioning and, after being advised of his
Miranda rights, was questioned about the homicide of the victim. Further,
Detective Zaffuto obtained DNA buccal swabs from the defendant, Rheams, and
Newman.
At the conclusion of the suppression hearing, defense counsel argued Felder
was stopped " without any probable cause." Counsel claimed the stop was actually
an arrest, and thus, everything following the illegal stop, particularly information
concerning the involvement of the defendant in the homicide of the victim, should
be suppressed as fruit of the poisonous tree. The State argued that at the time of
the traffic stop, the police reasonably believed Felder was a suspect in the
investigation of, or had information concerning, the homicide of the victim. The
trial court denied the motion to suppress, citing the entirety of the circumstances.
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- 81. 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.
Whether an anonymous tip establishes reasonable suspicion to conduct an
investigatory stop is considered under the totality of the circumstances. The
15 sufficiency of an anonymous tip under Terry is determined by the reliability of its
assertion of illegality and not just its tendency to identify a determinate person. State
v. Boss, 2004-457 ( La. App. 5th Cir. 10/26/04), 887 So. 2d 581, 586. "[ I]f a tip has a
relatively low degree of reliability, more information will be required to establish the
requisite quantum of suspicion than would be required if the tip were more reliable."
Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301
1990); State v. Lane, 2009- 179 ( La. App. 5th Cir. 9/29/09), 24 So. 3d 920, 924, writ
denied, 2009- 2360 ( La. 5/ 21/ 10), 36 So. 3d 226.
The anonymous caller' s ability to predict the suspect' s future behavior goes
towards reliability, as it demonstrates inside information and a special familiarity
with the suspect' s affairs. Boss, 887 So. 2d at 586. Predictive ability is not always
necessary; a non -predictive tip coupled with police corroboration or independent
police observation of suspicious activity can provide the police with the requisite
reasonable suspicion to detain a suspect. State v. Triche, 2003- 149 ( La. App. 5th Cir.
5/ 28/ 03), 848 So. 2d 80, 85, writ denied, 2003- 1979 ( La. 1/ 16/ 04), 864 So. 2d 625;
Lane, 24 So. 3d at 924.
In the instant matter, we find no error or abuse by the trial court in denying the
motion to suppress. The seizure at issue was a reasonable intrusion on Felder' s
privacy. While Felder was arrested on outstanding citations after the stop; the police
needed only reasonable suspicion to legally stop the vehicle in which he was riding.
The totality of the circumstances provided the police with reasonable suspicion that
Felder was involved with criminal conduct. The police had knowledge of specific,
articulable facts, which, if taken together with rational inferences from those facts,
reasonably warranted the stop of Felder. Detective Bridges was personally advised
that " a young black male by the name of Money with tattoos on his neck and his
hands" was involved in a murder in Hammond. Detective Bridges was further
advised that " Money" lived in the Klein Road area. Detective Zaffuto learned
16 Felder used " Money" as his Facebook name. Further, Detective Zaffuto
recognized the Klein Road Trailer Park in Felder' s profile picture. Klein Road was
located off Old Baton Rouge Highway and was " not far from where the homicide
occurred." Additionally, the defendant was in Felder' s Facebook profile picture.
Detective Zaffuto was familiar with the defendant due to his "[ p]revious dealings
through the Hammond Police Department." Social media also indicated that
shortly after the murder, the defendant was on Facebook communicating with
Felder' s girlfriend, Kemp. The defendant told Kemp he needed to talk to her and it
was urgent and important. Considering these facts, the trial court did not err in
denying the defendant' s motion to suppress.
This assignment of error also lacks merit.
MOTION FOR MISTRIAL
In assignment of error number 3, the defendant contends the trial court erred
in denying his motion for mistrial due to the Covid- 19 pandemic and the inability
to safely conduct a jury trial that comported with state and federal Covid- 19
guidelines without distracting the jurors and prejudicing the outcome of the trial.
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. Juror misconduct is not grounds for an automatic mistrial;
prejudice must also be established. State v. Eason, 2019-0614 ( La. App. 1st Cir.
12/ 27/ 19), 293 So. 3d 61, 74.
Following the selection of the jury on the first day of trial, the presiding judge
became ill. Prior to the commencement of the second day of trial, the judge advised
17 the Judicial Administrator that based on his condition, he did not feel he would be
able to preside over the second day of trial. The judge did not know when, based
upon his illness, he would be able to return. The Judicial Administrator contacted
Judge Jeffrey S. Johnson and inquired whether he would be available to preside over
the trial. Judge Johnson agreed to preside over the trial. Thereafter, the Louisiana
Supreme Court appointed Judge Johnson as an ad hoc judge in the matter.
At the beginning of the second day of trial, before the jury entered the
courtroom, Judge Johnson stated he did not know the diagnosis of the original
judge' s illness. Judge Johnson had no reason to believe or disbelieve the judge had
Covid- 19. Judge Johnson stated, "[ i] t' s my appreciation that the judge' s blood
pressure was high and that he has an appointment this morning in order to address
that issue."
The defense moved for a mistrial. The defense argued that given the fact that
the State was in Phase II of the Covid- 19 pandemic, the judge' s illness would distract
the jurors.', } 0 The defense argued that under Phase II, less than fifty people should 1 be in a room and they should be six feet apart.' The defense further claimed that
jury selection was noncompliant with the Phase II mandate and a mistrial was
appropriate because the prejudice to the defendant outweighed any concerns that the
State had in regard to its witnesses, its time, its finances, or its other resources.
In regard to the jury selection process, Judge Johnson initially noted the
defense failed to object to the Covid- 19 protocol. The court also noted that all jurors
9Between June 4, 2020 and September 10, 2020, Louisiana was in Phase Il under the White House Coronavirus Task Force guidelines on reopening the economy. 74 JBE 2020 & 117 JBE 2020. The defense moved for a mistrial on July 22, 2020. OThe defense also moved for a mistrial on the basis that Judge Johnson, who was serving in an ad hoc capacity, had to be randomly allotted. Judge Johnson denied the motion for mistrial on that basis. The defendant does not assign error to the denial of the motion for mistrial on the basis of failure to randomly allot Judge Johnson to the case. Thus, the issue of whether or not Judge Johnson was required to be randomly allotted to preside over the case is not before this court. See LSA-C. Cr.P. art. 920. Under Phase II, all individuals were advised to avoid groups of any size that did not allow for social distancing. Additionally, with the exception of critical infrastructure, crowd sizes were limited to no more than 50% of total occupancy as determined by the State Fire Marshal. 74 JBE 2020.
18 and the prior judge wore masks during jury selection. The court further noted the
trial judge sits at " his chambers" in the courtroom, which are removed from the jury
and the witnesses. The court denied the motion for mistrial asserted on the basis of
noncompliance with Phase II during jury selection.
Thereafter, Judge Johnson advised the jury:
The original judge] is not here today because he' s ill. I do not know what his illness is. I know that he is not here today and that he has a doctor' s appointment, I believe, probably as we speak. But that I' m going to be here to handle these matters.
Judge Johnson then individually questioned each juror and each alternate juror
in the absence of the other jurors. The questioning concerned whether, given their
awareness of Covid- 19, and without any assumption that the earlier presiding judge
had that illness, would the judge' s absence distract the juror such that he or she
would be unable to hear the case and make a decision based on the testimony of the
witnesses. Each juror and each alternate juror indicated either that the judge' s
absence would not distract them to the extent they could not perform their duties as a
juror (or alternate juror) or that, given their knowledge of his absence, they could still
perform their duties as a juror (or alternate juror).
Additionally, Judge Johnson asked juror 1 if she still thought she could be fair
and impartial and make a decision in the case. She answered affirmatively. Judge
Johnson asked juror 2 if the original judge' s absence would interfere with her ability
to hear and decide the case, and she responded that the judge made no difference.
Judge Johnson asked juror 3 if she could hear the case and make a decision despite
the fact that the original judge was not present. She answered affirmatively. Judge
Johnson asked juror 4 if he would be fair and do his job just as his oath was taken
during jury selection. He answered affirmatively. Judge Johnson asked juror 5 if the
absence of the judge would distract her from being fair to the defendant. She
answered negatively. Judge Johnson asked juror 6 if she could still move forward
19 and do her job. She answered affirmatively. Judge Johnson asked juror 7 if the
judge' s absence would weigh on him in such a way that he could not be fair to the defendant or the State. He answered negatively. Judge Johnson asked juror 7 if he
felt that he could go forward and do his job. He answered affirmatively. Judge
Johnson asked juror 8 if the " possibility of circumstance" would affect her in any
way. She answered negatively. Judge Johnson asked juror 10 if she felt that she
could still hear the evidence and make a decision based on the evidence. She
answered affirmatively. Judge Johnson asked juror 10 if she felt that she could be
fair to the defendant. She answered affirmatively. Judge Johnson asked juror 11 if
the information concerning the judge' s absence would distract him so that he could
not be fair to the defendant or to the State. He answered negatively. Judge Johnson
further asked juror 11 if he felt he could fulfill his oath and be fair and make a
decision based on the evidence in light of the circumstances. He answered
affirmatively. Judge Johnson asked juror 12 if he believed he could be fair to the
defendant and to the State. He answered affirmatively. Judge Johnson asked
alternate juror 1 if she thought she could be fair to both the defendant and the State if
she were placed into the jury to make a decision. She answered affirmatively. Judge
Johnson asked alternate juror 2 if he felt he could be fair to both the defendant and
the State with respect to hearing the case in light of all of the circumstances,
including the most recent development. He answered affirmatively.
Following the questioning of the jurors and alternate jurors, the defense argued
it still believed there were grounds for a mistrial. The defense claimed it thought
Judge Brian Abels' s absence would negatively impact the jurors' ability to render a
fair decision and would distract the jurors. The trial court disagreed with defense
counsel, noting the court " did not hear even an inkling of that possibility being an
issue." The trial court denied the motion for mistrial based on the absence of Judge
Abels.
Pi On appeal, the defendant argues the answers given to Judge Johnson by the jurors were insufficient to demonstrate their ability to be fair and impartial. The
defendant claims the answers " were given under the immediate stress of processing
the nature of Judge Abels[' s] mysterious illness in addition to questioning if they
themselves had been exposed to the Covid- 19 virus the day prior."
There was no clear abuse of discretion in the denial of the motion for mistrial
based on the absence of Judge Abels. Judge Johnson made a credibility
determination in accepting the responses of the jurors and alternate jurors. See State
v. Dorsey, 2010- 0216 ( La. 9/ 7/ 11), 74 So. 3d 603, 627, cert. denied, 566 U.S. 930,
132 S. Ct. 1859, 182 L. Ed. 2d 658 ( 201.2) ("[ d] eference is given to the trial court' s
determination because the trial judge has the benefit of seeing the facial expressions
and hearing the vocal intonations of the members of the jury venire as they respond
to questions by the parties' attorneys, which are not readily apparent at the appellate
level where review is based on a cold record."); see also State v. Rieckmann, 2014-
1441 ( La. App. ist Cir. 9/ 18/ 15), 2015 WL 5515017, * 4 ("[ t]he credibility of
witnesses will not be reweighed on appeal."); State v. Nolan, 503 So. 2d 1186, 1190
La. App. 3rd Cir.), writ denied, 507 So. 2d 226 ( La. 1987) ("[ i]t is conceded in the
majority of criminal proceedings that only one judge will preside over the trial.
However, the fact that more than one judge does preside is not deemed a mandatory
ground for mistrial anywhere in the Code of Criminal Procedure. There is nothing
which would necessarily prejudice a defendant in having two judges preside over his
trial, especially in the instant case where the first judge stepped down after just the
first day of voir dire.")
This assignment of error is without merit.
REVIEW FOR ERROR
This court routinely reviews criminal appeals for patent error. LSA-C. Cr.P.
art. 920. Our review has revealed the existence of a patent sentencing error in this
21 case. The defendant filed motions for new trial and in arrest ofjudgment which were
denied by the trial court. The trial court erred by immediately sentencing the
defendant without waiting twenty-four hours after the denial of the post -trial motions,
as required by LSA-C. Cr.P. art. 873. The record reflects no waiver of this time
period by the defendant. Nevertheless, in State v. Au u stine, 555 So. 2d 1331, 1333-
34 ( La. 1990), the Louisiana Supreme Court indicated that a failure to observe the
twenty-four hour delay provided in Article 873 will be considered harmless error
where the defendant could not show that he suffered prejudice from the violation.
See State v. White, 404 So. 2d 12029 1204- 05 ( La. 1981). The court in Augustine
concluded that prejudice would not be found if the defendant had not challenged the
sentence imposed and the violation of the twenty-four hour delay was merely noted
on patent error review. Augustine, 555 So. 2d at 1334. In the instant case, the
defendant has not assigned error to the trial court' s failure to observe the twenty-four
hour delay, nor has he contested the sentence imposed. Under these circumstances,
this patent sentencing error is harmless. See State v. Biibo, 97- 2189 ( La. App. 1 st
Cir. 9/25/ 98), 719 So. 2d 1134, 1140- 41, writ denied, 98- 2722 ( La. 2/ 5/ 99), 737 So.
2d 747.
CONVICTION AND SENTENCE AFFIRMED.