258 So. 3d 1081
La. Ct. App.2018Background
- Tommie C. Molette (defendant) was indicted for October 8, 2013 Becker Street second-degree murder and attempted second-degree murder; Kevin and Kevias Hicks (co-defendants) were also charged in those counts and additionally charged for an earlier July 13, 2013 Mount Kennedy shooting.
- State presented linked evidence (victim/witness IDs, cell-site analysis, and ballistics tying a 9-mm and a .40 to multiple shootings) showing overlapping actors and a common narrative connecting the July and October incidents.
- At trial, surviving victim Jonquell Neal identified Molette and the Hicks brothers as shooters; ballistics connected casings from Mount Kennedy, the Bridge, and Becker Street.
- Molette moved pretrial (and again at trial) to sever counts and/or defendants arguing prejudice because he was not involved in the July incident; the trial court denied those motions.
- Jury convicted Molette of second-degree murder and attempted second-degree murder; he appealed arguing misjoinder/prejudicial joinder, denial of severance, and related mistrial/new-trial errors.
- The appellate court affirmed, finding (1) the counts and defendants were properly joined or admissibly connected, (2) no showing of prejudice or antagonistic defenses requiring severance, and (3) jury instructions and verdicts demonstrated the jury kept counts separate.
Issues
| Issue | State's Argument | Molette's Argument | Held |
|---|---|---|---|
| Pretrial motion to sever counts (July vs. October shootings) | Counts are of similar character, connected by common scheme/plan (entry to Becker premised on fleeing Mount Kennedy); joinder proper and efficient | Joinder is prejudicial because Molette was not charged in July incident and jury would impermissibly consider evidence of uncharged acts against him | Denied. Joinder proper under La. C.Cr.P. arts. 493/495; evidence linked incidents; jury could segregate evidence; no abuse of discretion |
| Motion to sever defendants | Joint trial warranted because all defendants alleged to have participated in Becker shooting; related incidents admissible in separate trials | Joint trial prejudicial; evidence of Hicks brothers’ unrelated violent acts would taint Molette | Denied. No misjoinder under art. 494; sufficient link between incidents; no antagonistic defenses or shown prejudice |
| Motion for mistrial (after day one testimony) | Jury could compartmentalize; majority of remaining witnesses concerned Becker incident; voir dire and instructions adequate | Emotional/unrelated testimony and graphic exhibits (child victim) prejudiced Molette and jurors appeared hostile | Denied. No trial error producing substantial prejudice; voir dire and limiting instructions mitigated risk |
| Motion for new trial (post-conviction misjoinder claim) | Verdicts reflect jury separated incidents (acquittal on some July counts for Kevin Hicks); no injustice shown | Joinder and 404(b)-type evidence deprived Molette of fair trial | Denied. Motion for new trial requires showing of injustice; judge found no prejudice and verdicts supported that finding |
Key Cases Cited
- State v. Fontenberry, 27 So.3d 904 (La. App. 5 Cir. 2009) (factors to assess prejudice from joinder)
- State v. Prudholm, 446 So.2d 729 (La. 1984) (severance rests in trial court discretion; test for antagonistic defenses)
- State v. Deruise, 802 So.2d 1224 (La. 2001) (weigh prejudice against judicial economy in severance decisions)
- State v. Seay, 521 So.2d 1206 (La. App. 2 Cir. 1988) (acquittal on some charges indicates jury can segregate evidence)
- Zafiro v. United States, 506 U.S. 534 (U.S. 1993) (joinder prejudice when evidence admissible only against co-defendant)
- State v. Williams, 227 So.3d 371 (La. App. 5 Cir. 2017) (no severance when evidence of each offense is simple and distinct)