STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2023 KA 0332
VERSUS
SHANELL THOMPSON
Judgment Rendered: NOV 0 3 2023
Appealed from the 17th Judicial District Court In and for the Parish of Lafourche State of Louisiana Docket No. 580279 G I
The Honorable Marla M. Abel, Judge Presiding
Kristine Russell Counsel for Appellee, District Attorney State of Louisiana Heather Hendrix Joseph S. Soignet Assistant District Attorney Thibodaux, Louisiana
Jane L. Beebe Counsel for Defendant/Appellant, Addis, Louisiana Shanell Thompson
BEFORE: McCLENDON, HESTER, AND MILLER, JJ.
J M Cl( C n,CL i"` fM[ N d CI YlG' As W- / LCLll / j MILLER, J.
The defendant, Shanell Thompson, was charged by grand jury indictment with
one count of second degree murder, a violation of La. R. S. 14: 30. 1( A)( 1). She pled
not guilty. Following a jury trial, the defendant was found guilty of the responsive
verdict of manslaughter. The trial court denied the defendant' s motions for new trial
and post verdict judgment of acquittal, and sentenced her to thirty years
imprisonment at hard labor.
The defendant now appeals, designating two assignments of error: ( 1) the trial
court' s denial of her motion for mistrial; and ( 2) the trial court' s exclusion of the
victim' s alleged dying declaration in which he identified his assailant as someone
other than the defendant. For the following reasons, we affirm the conviction and
sentence.
STATEMENT OF FACTS
In the early morning hours of September 22, 2018, the victim, Justin Nixon,
returned home from visiting a friend. Nixon lived with the defendant, their eight-
year- old daughter, and the defendant' s mother, Tammy Thompson, in Houma,
Louisiana. The defendant' s great uncle, Richard Thompson, the defendant' s brother,
Earl Henry, Jr. (" EF), and EJ' s girlfriend, Markeisha Folse, were also at the house.
When Nixon returned home that night, the defendant questioned him about
text messages he sent to another woman on the defendant' s phone. They began to
argue and struggle over the defendant' s phone. Nixon, EJ, and the defendant then
had a physical altercation, which resulted in Nixon being stabbed. Thereafter, the
defendant' s mother drove Nixon and the defendant to the hospital.
Nixon passed away from his injuries later that morning. The defendant was
brought in for questioning and advised of her Miranda' rights. During an interview
Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16L. Ed. 2d694( 1966). with Detective Nicholas Pepper, she initially claimed that Nixon was already stabbed
when he returned home. However, she later recanted that statement and admitted to
stabbing Nixon. According to the defendant, she and Nixon fought on her bed until
EJ pushed Nixon off of her. They moved into the kitchen, where she stabbed Nixon
after he tried to punch her again. EJ then called 911 at approximately 12: 43 a.m. The
defendant also disclosed during the interview that Nixon repeatedly said, " She cut
me."
MOTION FOR MISTRIAL
In her first assignment of error, the defendant argues that the trial court erred
in denying her motion for mistrial. Specifically, the defendant contends that the trial
court should have granted a mistrial pursuant to La. C. Cr.P. art. 775 because two of
the victim' s family members wore memorial shirts during the trial while sitting in
the front row of the spectator' s gallery.
Louisiana Code of Criminal Procedure article 775 requires a mistrial on
motion of the defense 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
that should only be declared upon a clear showing of prejudice by the defendant.
State v. Cowart, 2022- 1318 ( La. App. 1St Cir. 6/ 2/ 23), So. 3d , 2023 WL
3862030, * 2. In addition, a trial judge has broad discretion in determining whether
conduct is so prejudicial as to deprive an accused of a fair trial. Id. A reviewing court
in Louisiana should not reverse a defendant' s conviction and sentence unless the
error has affected the substantial rights of the accused. Id.; see La. C. Cr.P. art. 921.
On the first day of trial, two individuals entered the courtroom wearing shirts
displaying a photo of the victim and the phrase " Justice for Justin." They were
accompanied by a victim' s advocate employed by the Lafourche Parish District
Attorney' s Office. Defense counsel moved for a mistrial, arguing that the shirts were
worn in an attempt to communicate with and inflame the jury and to compel the
3 jurors to decide the case based on sympathy or passion. In response, the State argued
that the shirts were not prejudicial and were merely an expression of love and grief,
not an accusation of guilt. The trial court denied the motion for mistrial, noting that
mistrial was " too drastic of a remedy."
On appeal, the defendant argues that the victim' s picture, combined with the
message " Justice for Justin," constituted a nonverbal message to the jury that " struck
at the heart of the defense regarding identity." Moreover, the defendant asserts that
the message " Justice for Justin" suggested that justice would not be delivered unless
the defendant was convicted. Because her defense at trial was that her brother, EJ,
stabbed Nixon, the defendant claims she was denied her right to a fair trial.
The defendant contends the instant case is similar to State v. Allen, 2000- 0346
La. App. 411 Cir. 10/ 17/ 01), 800 So. 2d 378, writ denied, 2001- 3086 ( La. 9/ 30/ 02),
825 So. 2d 1188. In Allen, a photograph of the victim was displayed on the
prosecutor' s table during the testimony of several witnesses, over defense objection
and after the court instructed the State to take down the photograph. Id. at 389. In
addition, a witness testified while wearing a shirt " emblazoned" with. a photo of the
victim. Id. at 390. On appeal, the Fourth Circuit stated that wearing the shirt was a
visual message, solely for the purpose to promote pity for the victim and arouse the
passion and prejudice against the defendant for the crime." Id. The court held that
the combination of the prosecutor displaying the victim' s photo and the witness' s
shirt denied the defendant a fair trial. Id.
In State v. Vollentine, 2011- 0353 ( La. App. 1st Cir. 9/ 14/ 11), 2011 WL
4448171, * 5 ( unpublished), writ denied, 2011- 2151 ( La. 2/ 17/ 12), 82 So. 3d 282,
spectators and at least one witness wore shirts bearing pictures of the victim. The
defendant moved for a new trial, arguing that he did not receive a fair trial. The
motion was denied by the trial court. Id. Thereafter, this court held that there was no
clear abuse of discretion in the trial court' s denial of the defendant' s motion for new
4 trial. Id. at * 6. Unlike in Allen, Vollentine' s identity was not at issue, so there was
less potential for prejudice to the defendant from the display of any photographs of
the victim. Id. at * 7. Moreover, the photograph displayed in Allen was displayed by
the State, rather than family and friends of the victim. Id.
We have also reviewed State v. Nelson, 96- 0883 ( La. App. 4th Cir. 12/ 17/ 97),
705 So. 2d 758, 763, writ denied, 98- 0197 ( La. 615198), 720 So. 2d 677, where the
victim' s friends and family wore shirts displaying the victim' s picture. The
spectators wearing the shirts were not readily visible to the jury, and there was no
evidence of any demonstration or outburst of emotion. Id. Holding the shirts were
not inflammatory, the court stated: " If anything inflamed the jury, it was the facts of
the offenses revealed from the witness stand, not the wearing of t -shirts by some
spectators." Id.
Here, we find no clear abuse of discretion in the trial court' s denial of the
motion for mistrial. Despite the defendant' s assertion to the contrary, this case is
distinguishable from Allen and is more analogous to Vollentine and Nelson. In the
instant case, the shirts were worn by the victim' s family and friends, and there was
no display by the State. The shirts were only visible to the jury for about an hour
before the individuals put jackets on over the shirts. Although the spectators sat in
the front row of the gallery, they did not testify nor perform any demonstration, nor
was there an outburst of emotion. See Nelson, 705 So, 2d at 763. In addition, the
victim' s advocate accompanying the family members did not wear any clothing that
identified her as a representative of the Lafourche Parish District Attorney' s Office.
Accordingly, the spectators wearing the memorial shirts were not offensive and did
not draw an inordinate amount of attention to themselves. See Vollentine, 2011 WL
4448171 at * 7.
Further, although the defendant made an issue of the identity of the perpetrator
by arguing that EJ was responsible, the defendant confessed to stabbing Nixon hours
5 after his death. After the incident, witnesses told police the defendant stabbed Nixon.
When questioned by detectives, EJ did not provide any information to suggest that
he was the perpetrator rather than the defendant. The jury could easily conclude that
the defendant was responsible for killing Nixon based on her own confession, the
evidence, and the corroborating statements of witnesses. Therefore, the trial court' s
denial of the motion for mistrial was not error, and this assignment lacks merit.
DYING DECLARATION
In her second assignment of error, the defendant argues that the trial court
erred by excluding evidence of the victim' s alleged dying declaration wherein he
identified his assailant as someone other than the defendant. The defendant contends
that by excluding this statement, the trial court impermissibly impaired her right to
present a defense.
A criminal defendant has the constitutional right to present a defense. See
U. S. Const. amend. VI; La. Const. art. I, § 16; Chambersy. Mississippi, 410 U.S.
284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 ( 1973). If a witness was in aposition
to offer testimony that might have substantially helped the particular defense
asserted by the defendant, an erroneous exclusion of the offered testimony may be
prejudicial. See State v. Jarreau, 96- 1480 ( La. App. 1st Cir. 3127197), 692 So. 2d 33,
35, writ denied, 97- 1122 ( La. 10113197), 703 So. 2d 612. See also State v.
Shoemaker, 500 So. 2d 385, 389 ( La. 1987). In compelling circumstances, the
defendant' s right to present a defense allows admission of hearsay evidence. See
State v. Rubin, 2015- 1753 ( La. 11/ 6/ 15), 183 So. 3d 490, 491 ( per curiam); State v.
Nixon, 2017- 1582 ( La. App. 1 st Cir. 4113118), 250 So. 3d 273, 279- 80, writ denied,
2018- 0770 ( La. 11114118), 256 So. 3d 290. Constitutional guarantees, however, do
not assure the defendant the right to admit any type of evidence, only that which is
deemed trustworthy and has probative value. State v. Governor, 331 So. 2d 443, 449
La. 1976); Nixon, 250 So. 3d at 280.
G Hearsay is defined as " a statement, other than one made by the declarant
while testifying at the present trial or hearing, offered in evidence to prove the truth
of the matter asserted." La. C. E. art. 801( C). Hearsay is not admissible except as
otherwise provided by law. La. C.E. art. 802. Louisiana Code of Evidence article
804, in pertinent part, provides:
B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
2) Statement under belief of impending death. A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.
A statement is admissible as a dying declaration if made when the declarant
is conscious of his condition and aware of his approaching demise. State v. Verrett,
419 So. 2d 455, 457 ( La. 1982); State v. Davis, 2014- 1128 ( La. App. 1" Cir. 316115),
2015 WL 996193, * 7 ( unpublished), writ denied, 2015- 0614 ( La. 314116), 188 So.
3d 1055. The necessary state of mind may be inferred from the facts and
circumstances surrounding the making of the declaration, and the victim need not
express this belief in direct terms. Davis, 2015 WL 996193 at * 7. While there is no
absolute rule to determine with certainty whether the declarant, at the time of making
his statement, really expected to die, courts look to whether the wound was fatal and
whether the declarant died shortly after making his statement. Id. When these two
circumstances are present, courts have uniformly held that the declarant really
believed death was impending and thus admitted his statement as a dying
declaration. Id.
At trial, the defendant wished to pursue the theory of third -party guilt,
asserting that her brother, EJ, was the one who stabbed Nixon. In connection with
this theory of innocence, the defendant called her mother, Tammy Thompson, as a
witness. Tammy testified that after Nixon was stabbed, he walked towards Tammy
7 and said, "[ H] e didn' t have to stab me, he didn' t have to stab me."' While she drove
Nixon and the defendant to the hospital, Nixon was awake, alert, and talking to the
defendant. According to Tammy, Nixon' s last words in the car were, "[ H] e didn' t
have to stab me." This time, the State objected based on hearsay. The State argued
that it was unknown whether the victim knew he was dying at that time. Defense
counsel then attempted to lay a foundation, and Tammy stated that Nixon was
seriously injured and knew that he was seriously injured. Defense counsel again
asked Tammy what the last thing Nixon said was, and the State again objected. The
trial court sustained the objection and told Tammy that she could not testify as to
what Nixon said.' No reason for sustaining the objection was given, therefore the
trial court did not state a belief as to whether the testimony was trustworthy or
probative or whether a proper foundation had been laid. Neither did the trial court
instruct the jury to disregard the statement.
Outside the presence of the jury, defense counsel proffered the excluded
statement into evidence. Tammy stated that, while on the way to the hospital, Nixon
repeatedly said, " he didn' t have to stab me." The only men in Tammy' s house at the
time of the crime were her uncle, Richard, and her son, EJ. Since EJ was in the room
where Nixon and the defendant were fighting, she assumed Nixon meant EJ when
Nixon said " he."
As noted above, a statement is admissible as a dying declaration if made when
the declarant is conscious of his condition and aware of his approaching demise.
Davis, 2015 WL 996193 at * 7. During her interview with Detective Pepper, the
defendant stated that after Nixon was stabbed, he repeatedly said, " She cut me."
When the first deputy arrived just eight minutes after the 911 call, Tammy, Nixon,
2 The State did not object to this statement.
3 The trial judge stated "[ o] verruled[,]" but it appears that she was referring to defense counsel' s argument, not the objection, because further testimony was not allowed.
0 and the defendant were already on the way to the hospital. By early morning, Nixon
was deceased. Dr. Yen Van Vo, the forensic pathologist who performed Nixon' s
autopsy, confirmed that Nixon' s cause of death was a single stab wound to the chest.
The wound lacerated his left lung, esophagus, and aorta, and caused extensive blood
loss. Although Nixon did not expressly state that he thought he was going to die, his
statements indicate that he was aware that he had been stabbed. Finally, his wound
was clearly fatal, as he died within hours of making the alleged statement.
Due to the magnitude of the victim' s injuries, the victim' s awareness of his
condition, the circumstances surrounding the declaration, and the victim' s
subsequent death, we find a basis for finding that the victim was in fact, and believed
himself to be, near death and, therefore, his statement to Tammy Thompson was a
dying declaration. See Davis, 2015 WL 996193 at * 7; State v. Lucas, 99- 1524 ( La.
App. Pt Cir. 5112100), 762 So. 2d 717, 724. Accordingly, we find thatit would have
been error to exclude Tammy Thompson' s testimony. However, the record reveals
that her testimony was not entirely excluded. The testimony was presented to the
jury and argued by counsel for the State and the defense. Tammy may not have been
allowed to elaborate, but the jury was told of the dying declaration.
A trial error does not provide grounds for reversal of a defendant' s conviction
and sentence unless it affects substantial rights of the accused. See La. C. CrR art.
921; La. C. E. art. 103( A); State v. Young, 2020- 01041 ( La. 5113121), 320 So. 3d
356, 361 ( per curiam); State v. Magee, 2011- 0574 ( La. 9128/ 12), 103 So. 3d 285,
318, cert. denied, 571 U. S. 830, 134 S. Ct. 56, 187 L. Ed. 2d 49 ( 2013), Under the
harmless -error test of Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828,
17 L. Ed. 2d 705 ( 1967), the question is whether it appears " beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained." State
v. Burton, 2019- 01079 ( La. 6130/ 21), 320 So. 3d 1117, 1123 ( per curiam). In
Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed.. 2d 182 1993), the Supreme Court clarified that the inquiry " is not whether, in a trial that
occurred without the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was surely unattributable to
the error." Burton, 320 So. 3d at 1123.
The evidence introduced at trial showed that, while the defendant initially
claimed that Nixon arrived home already stabbed, she later recanted that statement.
In her interview with police on the day of Nixon' s death, the defendant confessed to
stabbing Nixon and did not implicate her brother, EJ, in the crime. Moreover, the
investigation did not suggest that EJ committed the crime. After the crime occurred,
Detective Pepper took the statements of the defendant' s great uncle, Richard, and
EJ' s girlfriend, Markeisha Folse. Both Richard and Markeisha indicated that the
defendant stabbed Nixon, and Markeisha stated that the defendant asked her to clean
up the blood at the scene. Detective Elizabeth Leon was present when EJ and
Markeisha were questioned, and she did not learn any information that would
implicate EJ, but instead learned information that implicated the defendant as the
perpetrator. Finally, Dr. Yen Van Vo did not observe any physical evidence, such as
bruises, scratches, or swelling, on Nixon' s hands that would indicate he punched
someone prior to his death. The lack of physical evidence on Nixon' s hands suggests
that he was not involved in a serious physical altercation before his death, as the
defendant described.
After a thorough review of the record, we find that even if the trial court erred
in limiting Tammy' s testimony, that error was harmless. While the trial court
eventually sustained the hearsay objection, the statement had already been made and
heard by the jury. After the trial court' s ruling, the jury was not admonished to
disregard the statement. Further, the contested statement was cumulative of previous
testimony by Tammy to which the State did not object. Finally, the State drew
attention to Tammy' s statement on cross- examination, and both the State and
10 defense counsel referenced Tammy' s testimony during closing arguments.
Therefore, we cannot conclude that the defendant was prejudiced by the limits the
trial court put on her testimony.
Moreover, the State' s evidence presented at trial provided overwhelming
support for the jury' s guilty verdict of manslaughter. Considering the defendant' s
own confession, forensic evidence, and the testimony in this case, it was clear to the
jury that one person, the defendant, was guilty, and Tammy' s cumulative testimony
of third -party guilt would have no bearing on the outcome of this case. See Holmes
v. South Carolina, 547 U.S. 319, 3305 126 S. Ct. 1727, 1734, 164 L. Ed. 2d 503
2006). Accordingly, the jury' s guilty verdict rendered in this case is surely
unattributable to any error resulting from the defendant' s inability to present the
victim' s statement as a defense. See State v. Casey, 99- 0023 ( La. 1126100), 775 So.
2d 1022, 1033, cert. denied, 531 U.S. 540, 121 S. Ct. 104, 148 L. Ed. 2d 62 ( 2000).
Therefore, there are no grounds for the reversal of the defendant' s conviction
and sentence, and both assignments of error are without merit.
CONVICTION AND SENTENCE AFFIRMED.
11 STATE OF LOUISIANA
DOCKET NUMBER
2023 KA 0332
McClendon, J., agreeing in part and concurring in part.
I agree with the majority that there was no abuse of the trial court's discretion in
denying defendant's motion for a mistrial. However, the majority also found that the
victim' s statement to Tammy Thompson was admissible as a dying declaration and that
the trial court erred in excluding the testimony. I disagree. I do not believe, under the
particular facts of this case, that the victim' s statement would qualify as a " statement
under belief of impending death." See LSA- C. E. art. 804( B)( 2).
Therefore, I would not have found any abuse of the trial court's discretion in
excluding the victim' s statement, thereby negating the necessity of the majority's
harmless error analysis. Accordingly, I respectfully agree in part and concur in part.