State Of Louisiana VS Arthur Nicholas, III
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 1808 STATE OF LOUISIANA VERSUS ARTHUR NICHOLAS III Judgment Rendered May 6 2011 On Appeal from the 23rd Judicial District Court In and For the Parish of Ascension Trial Court No 23 209 Honorable Jane Triche Milazzo Judge Presiding Ricky L Babin District Attorney Counsel for Appellee State of Louisiana Donald D Candell Assistant District Attorney Gonzales Louisiana Lieu T Vo Clark Louisiana Appellate Project Counsel for Defendant Appellant Arthur Nicholas III Mandeville Louisiana Arthur Nicholas III Appellant Defendant Angola LA Pro Se BEFORE PARRO GUIDRY AND HUGHES JJ HUGHES J Defendant Arthur Nicholas III was charged by grand jury indictment with first degree murder a violation of LSAR 14 Thereafter the charge was S 30 amended to second degree murder a violation of LSA R 14 S 30 1 Defendant pled not guilty to the amended charge and waived his right to trial by jury Following a bench trial he was found guilty as charged The trial court sentenced the defendant to imprisonment for life at hard labor without benefit of probation parole or suspension of sentence Defendant now appeals arguing in one counseled and one pro se assignment of error that the evidence was insufficient to support his conviction and that the trial court erred in denying his motion for mistrial when a state witness referred to having taken polygraph examinations For the following reasons the defendant conviction and sentence are affirmed s FACTS On Tuesday December 18 2007 Eric Elisar arrived at the apartment of his coworker Mark Waddell in Gonzales Louisiana at approximately 6 a to 45 m pick him up for work When Waddell failed to come outside Elisar approached the apartment and found the front door partially ajar After he went inside and discovered Waddell body lying on the floor of his bedroom Elisar called the s police During their investigation the police recovered a 40 caliber shell casing from the hallway of the apartment An autopsy established that Waddell died from a gunshot to the head which fractured his left cheekbone and proceeded downward damaging the medulla oblongata fracturing his C2 vertebra severing his spinal cord and lodging in his 1 The bill of indictment also charged Michael Edward Jones Kathy Riley and Jerome Bougere III with the same offense However the indictment was later amended to charge Bougere with being an accessory after the fact to murder Subsequently the indictment was amended a second time to reduce the charge against the defendant Jones and Riley to second degree murder A motion to sever was filed on behalf of Michael Jones and granted by the trial court Additionally on the day of trial counsel for the defendant filed an oral motion to sever his case The motion presumably was granted since the defendant was tried alone K neck Based upon an examination of the extracted bullet the state firearms s expert concluded it was fired from the same weapon as the 40 caliber shell casing recovered from the hallway of Waddell apartment s Blood and urine samples taken from the victim revealed a blood alcohol level of 16 and the presence of metabolites for cocaine in his urine Kathy Riley a friend of Waddell stated that she had gone to Waddell s s apartment the weekend before his death as she had on several prior occasions to get high with him on cocaine When they had consumed all the drugs she brought with her on that occasion they called the defendant and Jerome Bougere III to bring over drugs for them to purchase Riley had introduced Waddell to the defendant and Bougere a few weeks earlier so that Waddell could purchase drugs from them In addition to selling drugs together the defendant and Bougere are first cousins When Riley and Waddell ran out of money that weekend the defendant fronted 80 of drugs to Waddell who told the defendant he would pay him on 00 Monday by borrowing money from a coworker Riley eventually left the apartment with the defendant who agreed to give her a ride to a friend house s On the way there he showed her a newlyacquired 40 caliber handgun and he stopped at an area off Ernest Floyd Road in Sorrento to try out the gun firing several rounds from it The defendant then dropped Riley off at her friend house s When Waddell went to work on Monday he apparently attempted to borrow 00 80 from a coworker but was unsuccessful in doing so Sometime between 1 1 p and midnight that Monday evening the defendant went to Bougere 00 m s town house located only a short distance from Waddell apartment s When Bougere opened the door the defendant told him he was going over to rob Waddell and asked if Bougere wanted to come Bougere declined saying he had to go to work in the morning According to Bougere the defendant then parked his car in 3 s Bougere parking spot and walked off accompanied by Michael Jones and Marchand Jones Approximately five minutes later Bougere heard a gunshot Shortly thereafter the defendant knocked on his door and Bougere saw the s defendant two accomplices running toward the car Defendant told him that he had killed Waddell to which Bougere responded that the defendant should leave because he did not want to get involved After the defendant left a visibly upset Bougere returned to his bedroom and told his girlfriend that the defendant had killed a man Kevin Dennie a friend of Waddell stopped by Waddell apartment on his s s way home from work at approximately 11 to 11 p on Monday night 30 45 m Waddell had called him shortly before but Dennie was at work and did not take the call However he was worried about Waddell who had seemed desperate for money and almost suicidal in a conversation they had held a few days earlier On the evening in question Dennie noticed that although the front door to Waddell s apartment was shut the lock was not engaged He banged on the door six to eight times but received no response He left thinking that Waddell was sleeping A few days after Waddell murder Riley was once again riding in a car s with the defendant and remarked that it was funny that Waddell was killed with a 40 caliber gun on the Monday that he was supposed to pay the defendant who happened to own a 40 caliber gun Defendant hit her in the face cutting her lip He told her not to tell anyone about the gun or that he knew Waddell While he was telling her this he took out the gun and brandished it in a threatening manner Thereafter Riley took detectives to the area in Sorrento where the defendant earlier had test fired the gun and they recovered six shell casings from that location The state firearms expert determined that the shell casings were fired s from the same gun that killed Waddell C After the defendant was arrested for the instant offense he telephoned Bougere from jail and asked him to pick up his clothes and things from his apartment in Baton Rouge because he and his wife Jessica Nicholas were beefing s Defendant wife gave the clothes to Bougere in a plastic trash bag After arriving home he found there was also a gun in the bag s Bougere girlfriend told him to get it out of the house because of their children so he called his exwife and asked her to keep it until the defendant was released Bougere then put the gun in a shoebox and brought it to his exwife house in Donaldsonville s Subsequently after Bougere also was arrested in connection with the instant matter he directed the police to where the gun a 40 caliber semiautomatic Beretta handgun was hidden at his exwife house Testing at the State Police Crime s Laboratory confirmed that the gun was the murder weapon It also established that the six shell casings recovered by the police in Sorrento were fired from the same gun Additionally a partial DNA profile was obtained from a contact swab collected from the gun DNA analysis revealed that the defendant could not be excluded as a possible contributor to the DNA found on the gun and the probability of the DNA profile coming from a randomly selected individual other than the defendant was approximately 1 in 1 million 04 Moreover the defendant admitted to the police that he owned a 40 caliber Beretta and that he had fired it in the presence of Riley in the area where the police recovered the six shell casings However he claimed that after he had a falling out with Bougere in early December he left the gun at Bougere town house s SUFFICIENCY OF THE EVIDENCE In his sole counseled assignment of error the defendant contends the evidence was insufficient to support his conviction for second degree murder Specifically he argues that the only direct evidence of his involvement in the murder was the selfserving testimony of Bougere an admitted drug dealer with a 47 propensity for lying Defendant argues this propensity is demonstrated by the fact that Bougere admitted to maintaining relationships with three women at the same time and lying to them all Additionally Bougere admitted that when initially questioned by the police he told them that Riley had accompanied the defendant to s Bougere town house on the night of the murder although that was a lie Bougere testified at trial that he did not know why he had lied about Riley being present but that he had made a mistake in doing so Defendant asserts that Bougere also was lying about when and how he acquired possession of the murder weapon At trial Bougere testified that the defendant telephoned him from jail and asked him to pick up the defendant s clothes from his wife with the clothes When Bougere did so he found the gun in the plastic bag Although he testified that he could not recall the date this occurred there was testimony from a detective that Bougere told him he picked up the gun on December 20 2007 Further his exwife told the police that she saw the shoebox that contained the gun on December 20 2007 Thus the defendant contends it is clear that Bougere lied about how and when he came into possession of the gun since the defendant was not arrested until December 29 2007 Finally the defendant asserts that Bougere had a clear motive to lie considering that he had made a deal with the state to testify against the defendant in exchange for a reduction of the charge against him from first degree murder to accessory after the fact to murder Defendant suggests still another motive might be that he shot Bougere in the shoulder years earlier because of a disagreement they had over a woman Defendant notes that one of the women Bougere was involved with Christina Williams told the police Bougere wanted to get the gun from the defendant wife so that he could use it to set the defendant up for the s murder 0 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 trieroffact could have found the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 S 99 S 2781 2789 61 L 560 1979 See also LSAC art 821 Ct 2d Ed P Cr B State v Ordodi 20060207 p 10 La 11 946 So 654 660 06 29 2d The Jackson v Virginia standard of review incorporated in LSA C art 821 is an P Cr objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence LSAR 15 S 438 provides that in order to convict the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence State v Patorno 2001 2585 p 5 La App 1 Cir 6 822 So 141 144 02 21 2d When a case involves circumstantial evidence and the trieroffact reasonably rejects the hypothesis of innocence presented by defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Moten 510 So 55 61 La App 1 Cir writ denied 514 So 126 2d 2d La 1987 Louisiana Revised Statutes 14 provides in pertinent part that 1 30 A Second degree murder is the killing of a human being 1 When the offender has a specific intent to kill or to inflict great bodily harm or 2 When the offender is engaged in the perpetration or armed robbery first degree robbery attempted perpetration of even though he has no second degree robbery simple robbery intent to kill or to inflict great bodily harm Defendant does not contest that a second degree murder occurred in the instant case Rather he argues there was no direct evidence other than Bougere s testimony that he shot and killed Waddell Where the key issue raised by the defense is the defendant identity as the perpetrator rather than whether or not the s fd crime was committed the state is required to negate any reasonable probability of misidentification State v Johnson 992114 p 4 La App 1 Cir 12 800 00 18 2d So 886 888 writ denied 2001 0197 La 12 802 So 641 01 7 2d After a thorough review of the record we are convinced the evidence supports the guilty verdict returned by the trial court The state presented evidence that Waddell owed the defendant money that was due on the day he was murdered and that Waddell had attempted unsuccessfully to borrow money from a coworker that day Further Bougere testified that the defendant came by his town house shortly before midnight on that evening and told him he was going to rob Waddell soon after which Bougere heard a gunshot According to Bougere the defendant then came back and told him he had murdered Waddell Dale Evans who was living with Bougere at the time testified that Bougere appeared upset when he returned to the bedroom after talking to the defendant and that he told her the defendant had killed a man although she was not certain whether he was joking She also testified that she heard what sounded like fireworks or black caps going off that night She testified that Bougere did not leave the town house after he arrived home about 7 or 8 p that evening 30 00 m Bougere also testified that he acquired possession of the murder weapon a 40 caliber Beretta handgun when he picked up a bag of the defendant s possessions and found the gun inside the bag Defendant admitted to the police that he owned such a gun and had test fired it in the area of Sorrento where the police recovered the six shell casings The state firearms expert concluded the s bullet that killed Waddell the shell casing recovered from Waddell hallway and s the six shell casings recovered in Sorrento were all fired from the same gun Further the state presented testimony from an expert DNA analyst that the defendant could not be excluded as a possible contributor to the DNA found on the murder weapon Bougere however was excluded as a possible contributor N The state also presented evidence of the defendant extreme reaction when s Riley commented that Waddell was killed with the same caliber gun that the defendant owned on the same day he was supposed to pay the defendant Defendant reacted violently assaulting Riley and demanding in a threatening manner that she remain silent both about the gun and about the fact that he knew Waddell Since the defendant waived a jury trial the trial court was the trier in fact of this case The trial court heard all of the testimony and viewed all of the evidence presented to it at trial including the details of the agreements the prosecution made with Bougere and Riley in exchange for their testimony Defense counsel had the opportunity to fully cross examine the state witnesses on all aspects of their testimony including their credibility and motivation for testifying The trial court also heard the defendant closing arguments specifically attacking Bougere s s credibility After hearing all of the evidence including testimony as to prior lies and inconsistent statements made by Bougere the trial court found the defendant guilty of the instant offense In doing so the trial court clearly rejected the s defendant theory that someone other than the defendant fired the gunshot that killed Waddell and accepted the state evidence establishing that the defendant s was the person who shot and killed Waddell The trier of is free to accept or reject in whole or in part the testimony fact of any witness An appellate court will not assess the credibility of witnesses or reweigh the evidence to overturn a trierof determination of guilt s fact State v Lofton 96 1429 p 5 La App 1 Cir 3 691 So 1365 136869 writ 97 27 2d 2d denied 97 1124 La 10 701 So 97 17 2 1331 We are constitutionally At trial Riley testified she had been advised by the district attorney office that the murder s charge against her would be dismissed for lack of evidence Additionally it was agreed that in exchange for her testimony she would plead guilty on unrelated charges of possession of a Schedule 11 drug possession of drug paraphernalia issuing worthless checks and unauthorized use of a movable and would be released for the time she had already served in jail which she calculated was approximately thirtyfour months precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases See State v Mitchell 993342 p 8 La 10 00 17 772 So 78 83 2d As previously noted the finding of guilt in this case indicates the trial court accepted the testimony of the state witnesses and rejected the defense theory that s someone other than the defendant killed Waddell See State v Andrews 94 0842 p 7 La App 1 Cir 5 655 So 448 453 We cannot say that the 95 2d trial court determination was irrational under the facts and circumstances s presented to it See Ordodi 946 So at 662 2d An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the trieroffact and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the trieroffact See State v Calloway 2007 2306 pp 1 2 La 1 1 So 417 418 per 09 21 3d curiam Thus we are convinced that viewing all of the evidence in the light most favorable to the state any rational trieroffact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was guilty of second degree murder This assignment of error lacks merit MOTION FOR MISTRIAL In a sole pro se assignment of error the defendant contends the trial court erred in denying his motion for mistrial when Bougere referred during his testimony to having taken two polygraph examinations Defendant argues this inadmissible testimony was prejudicial because Bougere testimony was crucial s to the state case and his credibility was questionable given the numerous s inconsistencies and lies in his statements to the court During direct examination of Bougere the prosecutor questioned him as to why the trial court should believe his trial testimony when Bougere admitted 10 having lied on prior occasions The following exchange occurred between the prosecutor and Bougere Q Are you telling this judge the truth A Yes sir Q Did you go in that house with Arthur Nicholas A No I was at home with my girl Me and her stayed in the house 1 t ain never went across there Q So you understand that you have access you right here re indicating Okay You end up with the gun you got three ve women you lying all over the place 1 want you to tell this judge why she ought to believe you You got the deal You got out ofjail A I was juggling the women and I was I was selling the dope but I ain never killed nobody I ain that wasn me you know I t t t that what I s s that what happened That all I can you know took two lie detector tests to prove that I wasn there and I t Emphasis added At this point defense counsel objected and the trial court sustained the objection before counsel could state the grounds thereof Defense counsel then moved for a mistrial due to the inadmissible reference to the polygraph tests Defense counsel particularly noted that the trial court had earlier granted without objection from the defendant a motion in limine filed by the state to exclude any reference to polygraph tests Defense counsel further argued that the prosecutor s line of questioning led to the outburst by the witness The prosecutor responded that the inadmissible reference was an unexpected unsolicited response not intentionally elicited by him The trial court denied the motion on the basis that the reference was an unsolicited response that had occurred during a bench trial The prosecutor then asked the trial court to admonish itself to disregard the statement and the trial court stated that it would give the statement no weight in its deliberations It is well established that polygraph test results or any reference to a witness taking such a test are inadmissible for any purpose at the trial of guilt or innocence 11 in a criminal case whether intended as substantive evidence or as relating to the credibility of a witness However an impermissible reference to a polygraph test constitutes reversible error only if there is a reasonable possibility that the error complained of might have contributed to the conviction See LSA C art P Cr 921 State v Legrand 20021462 pp 1011 La 12 864 So 89 98 cert 03 3 2d denied 544 U 947 125 S 1692 161 L 523 2005 S Ct 2d Ed Since the defendant motion for mistrial in this case is based on a state s witness making a reference to his polygraph tests rather than to remarks or comments made by a judge district attorney or court official the provisions of LSAC art 770 are not applicable herein See State v Pooler 96 1794 p P Cr 37 La App 1 Cir 5 696 So 22 48 writ denied 971470 La 11 97 9 2d 97 14 703 So 1288 2d Nor is LSAC art 771 applicable P Cr 2 This provision provides permissive grounds for a mistrial when a prejudicial remark or comment is made by a witness or person other than the judge district attorney or a court official and the trial court is satisfied that an admonition is not sufficient to assure the defendant a fair trial However Article 771 is designed to guard against improprieties that occur in the presence of a jury Therefore it cannot provide grounds for a mistrial in a bench trial See State v Marshall 359 So 78 83 2d La 1978 State v Marshall 479 So 598 604 La App 1 Cir 1985 2d The only provision that could provide a basis for mistrial in this instance is LSAC art 775 which sets forth additional permissive grounds for mistrial P Cr including situations where prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial The determination of whether or not a mistrial should be granted under Article 775 is within the sound discretion of the trial court The trial court ruling will not be disturbed on appeal s absent an abuse of discretion State v Young 569 So 570 583 La App 1 2d Cir 1990 writ denied 575 So 386 La 1991 2d IN Mistrial is a drastic remedy which is only authorized where substantial prejudice will otherwise result to the accused Pooler 696 So at 45 Further 2d an unsolicited statement is not chargeable to the state solely because it was in direct response to questioning by the prosecutor Although a prosecutor might have more artfully formulated the question that provoked a witness response s where the remark was not deliberately obtained by the prosecutor to prejudice the rights of the defendant it is not the basis for a mistrial See Pooler 696 So at 2d C IJ In the instant case the single reference by Bougere to the fact that he had taken two polygraph tests did not prejudice the defendant bench trial s The trial court concluded the impermissible reference by Bougere was an unsolicited response Moreover the trial court specifically stated it would not consider that testimony during its deliberations By virtue of its training and knowledge of the law the trial court was fully capable of disregarding the inadmissible reference to the polygraph tests See State v Anderson 2002273 La App 5 Cir 7 02 30 824 So 517 521 writ denied 20022519 La 6 847 So 1254 2d 03 27 2d See also State v Lewis 359 So 123 125 La 1978 Under such circumstances 2d the defendant right to a fair trial was not prejudiced We find no error or abuse s of discretion in the trial court denial of the motion for mistrial s This assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED 13
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