State v. Johnson

• Decision Date: 04 December 2019
• Docket Number: 19-201
• Citation: 286 So.3d 493
• Parties: STATE of Louisiana v. Stacy Tyrone JOHNSON, Jr.
• Court: Court of Appeal of Louisiana — District of US

286 So.3d 493

STATE of Louisiana

v.Stacy Tyrone JOHNSON, Jr.

19-201

Court of Appeal of Louisiana, Third Circuit.

December 4, 2019

Katherine M. Franks, Louisiana Appellate Project, P. O. Box 220, Madisonville, LA 70447, (225) 485-0076, Counsel for Defendant-Appellant: Stacy Tyrone Johnson, Jr.

John F. DeRosier, District Attorney, Fourteenth Judicial District, Jacob Johnson, Assistant District Attorney, Elizabeth B. Hollins, Assistant District Attorney, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437-3400, Counsel for Appellee: State of Louisiana

Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W. Perry, Judges.

PERRY, Judge.

Defendant, Stacy Tyrone Johnson, Jr., appeals his conviction for first degree murder, a violation of La.R.S. 14:30. We affirm Defendant's conviction and remand to the trial court for resentencing.

FACTS AND PROCEDURE

On Sunday afternoon, June 5, 2016, the Lake Charles City Police were called to a reported car crash at the intersection of Macy and Hodges Streets, involving Robert Colston ("Mr. Colston"). T.Z. and J.L., two juvenile witnesses, told the police that they observed the victim, Mr. Colston, seventy-nine years of age, driving northbound on Bilbo Street before turning eastbound on Macy Street. According to these witnesses, they observed a black male juvenile acquaintance, known to them as Stacy and later identified as Defendant, prior to the accident traveling on a bicycle; he was cycling westbound on Macy Street and then he was observed turning southbound on Bilbo Street toward N. Railroad Avenue. Shortly after Defendant left their sight, the juvenile witnesses heard a single gunshot. T.Z. ran inside to wake her mother and then called 9-1-1 to report the accident.

As the emergency medical personnel removed Mr. Colston from the truck, it became apparent he had suffered a gunshot wound

in his upper back. About an hour later, Mr. Colston died at the hospital. When his personal belongings were inventoried, it was discovered Mr. Colston had over $1,300.00 in cash on his person.

The police then transported the witnesses to the police station. After looking at a laptop, the witnesses navigated the internet, where they identified Defendant on a Facebook page. The witnesses later confirmed that after the shooting on June 5, at approximately 5:57 p.m., Defendant contacted them via cell phone, advising them to keep quiet and not to tell anyone about him having been in the area. Defendant, whose date of birth is January 11, 2000, was then arrested.

A grand jury first indicted Defendant, who was sixteen years of age at the time of this crime, with second degree murder. Subsequently, the grand jury issued an amended indictment, charging Defendant with first degree murder. On September 15, 2017, the State filed notice not to seek capital punishment; rather, it sought life imprisonment at hard labor without the possibility of parole pursuant to La.Code Crim.P. art. 878.1.

Prior to trial, the State provided notice to use multiple videos—a phone video taken about two days before the murder which showed Defendant apparently rehearsing an armed robbery and pretending to shoot someone, and videos from Facebook posted several months prior to the charged offense, showing him posing with firearms. After the trial court ruled the State could not introduce this evidence as either "integral act evidence" or "other crimes evidence," this Court granted the State's writ application, in part, and denied it in part, stating, in pertinent part:

With respect to the "fake shooting" videos, this court finds the trial court abused its discretion in finding the videos inadmissible where the State's theory of the case offered at the hearing on September 19, 2017 is the alleged first degree murder occurred during the commission of an attempted armed robbery. It is, however, important to note that this court is merely ruling on the preliminary admissibility of this evidence. "[T]he admissibility of this [integral act] evidence is always subject to change if any of these relevant considerations change." State v. Taylor , 16-1124, p. 19 (La. 12/1/16), 217 So.3d 283, 296. Should the trial court find during trial that evidence of an attempted armed robbery is not at issue, the trial court may exclude the "fake shooting" videos.

Although the State offered a theory that the murder occurred during an attempted armed robbery during the September 19, 2017 hearing, it is impossible for this court to determine the exact nature of the State's case from the bill of indictment, which simply charges that Defendant "committed First Degree Murder of Robert Colston, Sr., in violation of LSA R.S. 14:30." Additionally, while Defendant has stated intent is not an issue, but rather identity is the only issue for trial, this court recognizes "Defendant is not bound by a pre-trial statement that intent will not be contested." Taylor , 217 So.3d at 295. In the event Defendant presents evidence there was an accidental shooting or an alternative scenario which makes the videos relevant, the State may introduce the "fake shooting" videos as rebuttal evidence.

With respect to the remaining videos, this court cannot say the trial court abused its discretion in finding the prejudicial effect outweighs the probative value to the extent the videos should be deemed inadmissible as integral act or other crimes evidence under La.Code Evid. arts. 403 and 404.

[E]ven when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence must have substantial relevance independent from showing defendant's general criminal character and thus is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense.

Taylor , 217 So.3d at 292.

Accordingly, the trial court's ruling that the "fake shooting" videos are inadmissible is vacated. The State's writ is denied in all other respects.

State v. Johnson , 17-851 (La.App. 3 Cir. 9/20/17) (unpublished opinion).

Later, after the trial court interpreted this court's pre-trial writ ruling to mean all of the videos were admissible, Defendant sought a writ, seeking clarification of this Court's prior writ ruling. In this latter ruling, this Court stated the fake shooting video was "admissible as integral act evidence in the State's case-in-chief if the State offered evidence that the first degree murder occurred during the commission of an attempted armed robbery of the victim" and could be admissible as rebuttal evidence if relevant to a defense presented by Defendant; this Court further stated, "the trial court did not abuse its discretion in ruling the videos of the Defendant taken from Facebook ... were not admissible." State v. Johnson , 17-859 (La.App. 3 Cir. 9/21/17) (unpublished opinion). Ultimately, all of the videos would be admitted at trial.

A jury trial was held from September 18, 2017 through September 26, 2017. On September 20, 2017, Defendant moved to quash the petit jury venire or, in the alternative, sought a subpoena duces tecum and recess to conduct an inquiry into the jury selection process. In his motion, Defendant voiced concern that over 25% of the Calcasieu Parish residents were African American, yet the first thirty-one jury veniremen called included only two African American females and two African American males. Finding no merit to Defendant's motions, the trial court found Defendant failed to prove "fraud has been practices [sic], or some great wrong committed that would work irreparable injury to this defendant" under La.Code Crim.P. art. 419.

A unanimous jury convicted Defendant of first degree murder. On March 14, 2018, the trial court sentenced Defendant as follows:

I understand in this case the gravity in considering what was set forth in Miller [v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ] and Montgomery [v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) ], and consider it –and the Court did consider Blakely v. Washington , [542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ] and did consider its progeny in determining the extent to which a juvenile offender would be subject under R.S. 14:30. And that's mandatory life without imprisonment – without benefit of parole or probation.

This Court can only conclude – Mr. Stacy Tyrone Johnson, would you please stand? This Court can only conclude that after the U.S. Supreme Court has spoken and the Louisiana legislature has adopted, although clearly without much guidance, that the mandate set forth in Miller vs Alabama, Montgomery vs Louisiana, and Blakely vs Washington , that as a result of this sentence –considering the sentencing range without an investigation that life imprisonment with the benefit of parole or probation after 25 years is warranted. As a result, this Court is going to rule the same.

Defendant now appeals his conviction and sentence, arguing two assignments of error. First, the trial court erred in denying his motion to quash the jury venire or alternatively to issue subpoenas duces tecum. Secondly, the trial court erred in admitting the evidence discussed in the two emergency writs sought during trial without the State presenting a theory of murder during an attempted armed robbery.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. We find the trial court's statement that it was going to "rule the same" was not sufficient to impose a sentence on Defendant.

Louisiana Code of Criminal Procedure Article 871 provides, in pertinent part, as follows: "A sentence is the penalty imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty, or upon a judgment of guilt." In the early case of State v. Burks , 202 La. 167, 172, 11 So.2d 518, 519-20 (1942), prior to the enactment of our Louisiana Code of Criminal Procedure, "sentence" as used in criminal law was defined as "the pronouncement by the judge of...