State v. Mellion

• Decision Date: 08 April 2022
• Docket Number: 2021 KA 1116
• Citation: 342 So.3d 41
• Parties: STATE of Louisiana v. Jerome MELLION
• Court: Court of Appeal of Louisiana — District of US

342 So.3d 41

STATE of Louisiana

v.Jerome MELLION

NO. 2021 KA 1116

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: APRIL 08, 2022

Hillar C. Moore, III, District Attorney, Stacy L. Wright, Assistant District Attorney, Baton Rouge, LA, Attorneys for Appellee, State of Louisiana

Lieu T. Vo Clark, Mandeville, LA, Attorney for Defendant-Appellant, Jerome Mellion

Jerome Mellion, Angola, LA, Defendant-Appellant, In Proper Person

BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.

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 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 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. 1st 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. 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).

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 of his 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...