State v. Mitchell

• Decision Date: 21 September 2017
• Docket Number: 2016 KA 0834
• Citation: 231 So.3d 710
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE of Louisiana v. Joshua Michael MITCHELL

231 So.3d 710

STATE of Louisiana
v.
Joshua Michael MITCHELL

2016 KA 0834

Court of Appeal of Louisiana, First Circuit.

SEPTEMBER 21, 2017

Scott Perrilloux, District Attorney, Greg Murphy, Matthew Belser, Charlotte Foster, Brad Cascio, Assistant District Attorneys, Livingston, LA, Attorneys for Appellee, State of Louisiana

Jane L. Beebe, New Orleans, LA, Attorney for Defendant–Appellant, Joshua Michael Mitchell

BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

HOLDRIDGE, J.

The defendant, Joshua Michael Mitchell, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1 (count 1); and obstruction of justice, a violation of La. R.S. 14:130.1 (count 2). The defendant pled not guilty and not guilty by reason of insanity to the charges. During the first trial, the trial court declared a mistrial because there were references to other crimes evidence in the defendant's taped confession. The State took writs, which were denied by this court. The defendant was retried, wherein he maintained his dual plea of not guilty and not guilty by reason of insanity. He was found guilty as charged on both counts. The defendant filed a motion for postverdict judgment of acquittal, which was denied. For the second degree murder conviction, the defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; for the obstruction of justice conviction, he was sentenced to five years imprisonment at hard labor. The sentences

231 So.3d 716

were ordered to run concurrently. The defendant now appeals, designating three assignments of error. We affirm the convictions and sentences.

FACTS

On the night of February 25, 2013, Brandon Parnell picked up his friend, the defendant, in his white Chevrolet 2600 van and they went to Laguna Beach Daiquiris ("the bar") on Florida Boulevard in Denham Springs. The defendant was still upset with Brandon because Brandon had stolen the defendant's gun a few weeks prior to this night. After hanging out for a while, they left the bar a little after 10:00 p.m. While Brandon was driving around, the defendant produced a Taurus .38 Special revolver and shot Brandon once in the head, killing him. The defendant drove the van back to the house he was staying at on Michelle Street in Denham Springs and picked up his friend Kristy Hasty.¹ The defendant also got some bleach from the house.

Throughout the night (and early morning of February 26), Brandon drove around, disposing of the evidence of the killing. The defendant drove to downtown Baton Rouge, near the U.S.S. Kidd, where he and Kristy took the clothes off Brandon's body and bleached the body. Kristy threw the clothes in a dumpster. The defendant then drove to a wooded area off of Old Hammond Highway and dumped items from the van that had blood on them. The defendant then drove to the Blind River Canal in St. James Parish. The defendant and Kristy threw Brandon's body in the canal. The defendant then drove to a car wash on Memory Lane off of Juban Road in Denham Springs, and washed out the van.

The defendant hid out at a residence on Walker North Road in Walker, until he was apprehended by the police about ten days later. The defendant was taken to the Livingston Parish Sheriff's Office and questioned. In a recorded statement, the defendant admitted that he shot and killed Brandon. The defendant also provided the detectives detailed information of his actions following the killing, wherein he tried to dispose of any evidence of the murder. The defendant's recorded statement was played for the jury.

The defendant testified at trial. The defendant testified that he was sexually abused as a child. He was also sexually abused by a teacher's aide at a residential treatment facility he was staying at when he was an adolescent. According to the defendant, he shot Brandon because, when they were riding in the van, Brandon touched the defendant's leg. This sexual gesture upset the defendant because it reminded him of his past.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues the trial court erred in overruling the defendant's objection to the State's improper argument, and it abused its discretion in denying the motion for mistrial. Specifically, the defendant contends his motion for mistrial should have been granted because, during closing argument, the State referred to the defendant's ability to call any witness he wanted, as well as his failure to call a particular witness.

The defendant argues in brief the trial court erred in failing to grant a mistrial for inappropriate comments made by the State in the opening statement and closing

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arguments. The first issue regards the State informing the jury in opening that, after the defendant killed Brandon, he went home and picked up his friend Kristy. The defendant then had Kristy help him get rid of Brandon's clothes and dispose of Brandon's body. Defense counsel asked for a mistrial because Kristy was a witness that could not be found and would not be testifying a trial. According to defense counsel, the State's mentioning of Kristy was in violation of the defendant's right to confront witnesses against him. Defense counsel suggested that this testimony about Kristy was in violation of the trial court's ruling on a pretrial motion to exclude statements by certain witnesses. The trial court found no confrontation violation and denied the motion for mistrial.

A mistrial may be ordered, and in a jury case the jury dismissed, when there is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law. La. Code Crim. P. art. 775(3). A mistrial is a drastic remedy which should only be declared upon a clear showing of substantial prejudice by the defendant. In addition, a trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. State v. Smith, 418 So.2d 515, 522 (La. 1982). See State v. Berry, 95-1610 (La. App. 1st Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603. 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. See La. Code Crim. P. art. 921.

Because the defendant's argument here is baseless, we find no reason to disturb the trial court's denial of the motion for mistrial. At the outset, we note that the State did not violate the trial court's pretrial ruling regarding the exclusion of statements. About a week before trial on October 15, 2015, one of the issues addressed and ruled on was for a motion for exclusion of all evidence in violation of the defendant's right to confrontation. Defense counsel sought to exclude evidence, particularly "statements or any mention of their statements through inadmissible hearsay" of certain witnesses who would not be testifying at trial, including Kristy. The trial court granted this motion.

When the State mentioned Kristy in its opening statement, it made no references to any statements by or about Kristy. There was no reference to any hearsay or anything accusatory said by Kristy about the defendant and, as such, there was no confrontation violation of the defendant's right to confront his accuser. As noted by the trial court in its ruling denying the motion for mistrial:

And the Motion to Exclude Statements by Witnesses as Hearsay that we had a ruling on last week, October 15, was against statements by [Kristy] being offered—thank you—into evidence or being offered against the defendant. In this opening statement, Mr. Belser stated that [Kristy] went with the defendant to clean and dispose of the body, something to that effect. Her—merely the fact that she was mentioned as being at the crime scene or being with him is—does not go against my ruling as to the hearing on those statements by her that will be offered. There are no statements by her that will be offered, so the preliminary hearing, I don't find there's any violation on that in my granting of the Motion to Exclude Statements by Witnesses Hearsay. There's no statement by her at this time to exclude. Underlying that, the fact that she can't be found or isn't—hasn't been found will not be called and he's got a right to confront a witness against him, she's not

231 So.3d 718

a witness against him. She's not being offered as a witness against him. She's just being mentioned as being at the crime scene with him or right after the crime scene. So, for those reasons, I'm denying the motion[.]

Moreover, the defendant, himself, discussed Kristy's involvement in helping him dispose of evidence. In his recorded interview with Lieutenant Brandon Browning, with the Livingston Parish Sheriff's Office, and Detective Brett Forsythe, with the St. James Parish Sheriff's Office, the defendant admitted that he shot and killed Brandon. The defendant then went into detail about how Kristy rode around with him in the van trying to decide what to do with the dead body. According to the defendant, Kristy helped him get rid of Brandon's clothes, and she helped him dump the body over a bridge, into water. The...