STATE OF LOUISIANA VERSUS JEROME MELLION
NO. 2021 KA 1116
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
APR 0 8 2022
On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. 5130416 Honorable Kelly Balfour, Judge Presiding1
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
Jeromе Mellion Angola, LA Defendant-Appellant, In Proper Person
BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.
The defendant, Jerome Mellion, was charged by grand jury indictment with second degree murder, a violation of
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 dеfendant 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 belоw 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
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, аnd 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
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.
Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal сonsequences to follow his act or failure to act.
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, buttoсk, 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 revеaling 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 untenablе.
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.
Thе 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 thе following. While in the parish prison, he and the defendant became friends, then intimately involved. The defendant told Taylor that at the time he killed Ms. Ortiz, they were not in a relationship, but the defendant still went to her house and spent nights with her. During
A reduction of second degree murder to manslaughter requires that the killing be 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 testimony is an issue of credibility. The only evidence of any alleged immediate provocation came from Taylor‘s testimony. In finding the defendant guilty of second degree murder, it is clear the judge rejected any such testimony. See State v. Byes, 97-1876 (La. App. 4th Cir. 4/21/99), 735 So.2d 758, 764, writ denied, 99-1559 (La. 11/5/99), 751 So.2d 231. It was the defendant who had to establish that the mitigating factors of sudden passion or heat of blood were present
The factfinder can accept or reject the testimony of any witness. To resolve conflicting testimony relative to factual matters, the factfinder must make credibility determinations and weigh the evidence. State v. Eby, 2017-1456 (La. App. 1st Cir. 4/6/18), 248 So.3d 420, 426, writ denied, 2018-0762 (La. 2/11/19), 263 So.3d 1153. See also State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 700 (per curiam). The Jackson standard of rеview does not permit a reviewing court to substitute its own appreciation of the evidence for the factfinder‘s, assess the credibility of witnesses, or reweigh evidence. See State v. McGhee, 2015-2140 (La. 6/29/17), 223 So.3d 1136, 1137 (per curiam); State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam). Thus, in the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness‘s testimony, if believed by the factfinder, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict based on an exculpatоry hypothesis of mitigatory circumstances presented to it, and rationally rejected. Eby, 248 So.3d at 426-27.
It is clear from the guilty verdict that the trial judge rejected the theory that the defendant was so angry when he stabbed Ms. Ortiz to death that he was deprived of his self-control and cool reflection. Questions of provocation and time for cooling аre for the factfinder to determine under the standard of the average or ordinary person with ordinary self-control. If a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act. State v. Leger, 2005-0011 (La. 7/10/06), 936 So.2d 108, 171, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The trial judge‘s verdict finding the defendant guilty of second degree murder was necessarily a rеjection of any of the responsive verdicts, including manslaughter. See
After a thorough review of the record, we find that the evidence supports the guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyоnd a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the second degree murder of Ms. Ortiz. See Calloway, 1 So.3d at 418.
Regarding the attempted second degree murder conviction, the only argument the defendant asserts in brief is that when Harris tried to intervene, he (the defendant) “amidst his fit оf rage, stabbed him one time.”
To sustain a conviction for attempted second degree murder, the State must prove that the defendant intended to kill the victim and committed an overt act
Despite the claim herein, Taylor‘s testimony contradicts the defendant‘s “fit of rage” theory. Taylor testified that the defendant told him that when Harris came outside to help Ms. Ortiz, the defendant wanted to kill Harris by stabbing him in the heart. The defendant told Taylor that he did not want to leave any eyewitnesses behind. Accordingly, the trial judge rationally concluded that the defendant had the specific intent to kill Harris and that he was guilty of the attempted second degree murder of Harris. See Eby, 248 So.3d at 426-27; Calloway, 1 So.3d at 422.
These counseled assignments of error are without merit.
PRO SE ASSIGNMENT OF ERROR
In his sole pro se assignment of error, the defendant accuses the trial judge of being racist and argues that the trial judge should have been recused from hearing the case.
A trial judge shall be recused when he “[i]s biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduсt a fair and impartial trial....”
A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after thе facts are discovered, but prior to verdict or judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675. (Emphasis added).
There was no timely filed motion to recuse in the instant matter. In fact, no motion to recuse has ever been filed. Accordingly, there is nothing for this court to review.
The pro se assignment of error is without merit.
CONVICTIONS AND SENTENCES AFFIRMED.
HESTER, J.