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Date: 06-18-2020
Case Style:
STATE OF LOUISIANA Vs. ROBERT NEAL GREEN, JR.
Case Number: KA -0019-0544
Judge: Court composed of Judge Roland L. Belsome, Judge Regina BartholomewWoods, Judge Dale N. Atkins
Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
Plaintiff's Attorney: Leon Cannizzaro
Donna Andrieu
Irena Zajickova
DISTRICT ATTORNEY'S OFFICE
Defendant's Attorney:
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Description:
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Kenneth and Lakeitha Joseph (“victims”) were reported missing on February
19, 2014. Nearly a month later, their bodies were recovered from the Intracoastal
Waterway in New Orleans. After a lengthy investigation that brought investigators
to Georgia, Texas, and across southeast Louisiana, the New Orleans Police
Department determined that several people were involved in the double murder
and had conspired to cover up the evidence.
On August 28, 2014, the State charged Horatio Johnson (“defendant”) with
two counts of second degree murder, a violation of La. R.S. 14:30.1; one count of
conspiracy to commit obstruction of justice by tampering with evidence, a
violation of La. R.S. 14:26 and 14:130.1; and one count of obstruction of justice, a
violation of La. R.S. 14:130.1, in connection with the murders of defendant’s
cousin, Kenneth Joseph, and Kenneth’s wife, Lakeitha Joseph.1
Defendant pled not guilty to all charges on September 4, 2014. On January
21, 2017, the trial court denied defendant’s motions to suppress evidence,
identification, and statements. A jury trial was held between August 21 and August
31, 2017. The State presented testimony from several witnesses and introduced
1 Other parties were charged with the same or similar crimes relative to the murders of Kenneth
and Lakeitha Joseph, but the present appeal addresses the charges against Horatio Johnson only.
2
numerous exhibits. After the State rested its case, defense counsel notified the
court that it did not intend to call any witnesses. The jury returned a verdict of
guilty on all counts, with eleven-to-one verdicts for the second degree murder
convictions and the conspiracy to obstruct justice conviction, and a unanimous
verdict to convict for obstruction of justice.
Defendant filed a motion for post-verdict judgment of acquittal and a motion
for new trial, both of which the trial court denied. Defendant was sentenced to life
imprisonment without benefit of parole, probation, or suspension of sentence on
each count of second-degree murder (counts 1 and 2); twenty years for the count of
conspiracy to obstruct justice (count 3); and forty years for obstruction of justice
(count 4), with the sentences to be served consecutively. Defendant now appeals
his convictions. We affirm defendant’s conviction and sentences.
FACTS
Kenneth and LaKeitha Joseph borrowed a Dodge Caravan from Kenneth’s
sister, Ms. Alosia Hayward, on February 18, 2014. When they did not return the
van to Ms. Hayward the following morning, she tried calling them throughout the
day, but she received no response. That evening, she, her mother, and her sister
drove to the victims’ home in Reserve, Louisiana, but neither the van nor the
Josephs were there. The victims’ house had been ransacked. Ms. Hayward stated
that either her mother or her sister reported the Josephs missing to the St. John the
Baptist Parish authorities.
Crime Scene Investigator Scotty Lewis with the St. John the Baptist Parish
Sheriff’s Office testified that he investigated a call of a residential burglary at 530
Homewood Place in Reserve. Lewis spoke with the first responding officer on the
3
scene, photographed the exterior and interior of the residence, and swabbed various
surfaces in the residence for DNA.
Detective Kirsten McAbee of the St. John the Baptist Parish Sheriff’s
Office2
began investigating the victims’ disappearance by entering their names into
the national database of missing persons and posting neighborhood flyers. McAbee
obtained the victims’ cell phone records, which showed that Lakeitha Joseph’s last
outgoing call occurred on the night that she went missing, February 18, 2014.
Detective McAbee’s analysis indicated that Lakeitha’s phone moved from Reserve
to LaPlace to Lutcher and, finally, to Kenner on that same date. McAbee also
obtained a search warrant for defendant’s residence in LaPlace, and a warrant to
search the home of Brittany Martin, defendant’s girlfriend. McAbee confiscated a
Toshiba laptop computer and an iPad from the victims’ residence. McAbee
subsequently learned that the victims’ van was sighted at a Georgia Travelodge
Hotel and that the van was associated with a Travelodge guest named Frank Mike.
In Georgia, Officer James Jackson, Jr. of the Fulton County Police
Department responded to a call of an abandoned Dodge Caravan in the College
Park area on February 27, 2014. Jackson learned that the van had been reported
stolen from LaPlace, Louisiana, and the report bore the notation “missing
endangered person. Hold for latent prints.” Jackson impounded the vehicle for
processing.
Fulton County Police notified Detective McAbee that they had located the
victims’ missing van in College Park, Georgia. The Georgia authorities searched
2 When this investigation began, Detective McAbee was employed by the St. John the Baptist
Parish Sheriff’s Office; however, at the time this matter was tried, she was working for the
Jefferson Parish Sheriff’s Office. Detective McAbee’s name is also spelled “McBee” at various
places in the record.
4
the area for the victims, canvassed for witnesses, and obtained a search warrant for
the van.
Ms. Helen Weathers was an expert forensic crime scene investigator for the
Fulton County Police Department in Atlanta, Georgia. On March 1, 2014,
pursuant to a warrant, she processed the 2010 Dodge Caravan. She photographed
the van and examined its exterior and interior, noting that it had recently been
washed, but the tires had not been cleaned and were visibly dirty. The key was in
the ignition; a receipt from LaPlace, Louisiana, was found; and two coffee packets
were seen in the front console. There were reddish stains on the floor board near
the sliding door on the side of the van and on the floor next to the driver’s seat,
large blood stains on and under the second-row and third-row seats and floor mats,
and blood stains behind the side interior paneling. Ms. Weathers swabbed the
interior of the van for DNA evidence and collected other evidence from the van’s
interior, all of which was subsequently transferred to the New Orleans Police
Department (NOPD). Ms. Weathers also obtained guest registration information
and surveillance video from the Travelodge Hotel in College Park, Georgia.
Lakeitha Joseph’s body was recovered from the Intracoastal Waterway in
New Orleans on March 10, 2014. Several days later, on March 22, 2014, the
NOPD retrieved Kenneth Joseph’s body, bound in blue rope with a kettle bell
attached, from the same waterway. The case was now designated as a homicide
investigation.
NOPD Detective Robert Bachelder was present at the scene when both
bodies were retrieved. At trial, Bachelder identified crime lab photographs
showing that the victims’ ankles were bound by rope, and that a thirty-pound
kettlebell was attached to the rope that bound Kenneth Joseph’s ankles.
5
Dr. Erin O’Sullivan, a forensic pathologist with the Orleans Parish
Coroner’s Office, performed an autopsy on the body of Lakeitha Joseph. Ms.
Joseph had suffered a subscapular hemorrhage on the left side of her head, as if she
had been struck; however, Dr. O’Sullivan testified that the blow would not have
caused her death, as there was no accompanying fracture of the skull. Dr.
O’Sullivan noted that the blue rope knotted around the victim’s ankles had caused
abrasions to the skin on the legs. In addition, the victim’s lower right leg was
fractured. Dr. O’Sullivan found no evidence of gunshot or knife wounds. She
stated that Ms. Joseph died of asphyxia by drowning.
Dr. Richard Tracy, another pathologist with the Orleans Parish Coroner’s
Office, performed an autopsy on the body of Kenneth Joseph. Mr. Joseph’s body
had arrived at the Coroner’s Office with a kettlebell and rope attached to his legs.
The body exhibited signs of decomposition, bloating, and discoloration of skin, but
there were no signs of penetrating or blunt force injuries, and no hematomas or
broken bones. Dr. Tracy testified that Orleans Parish Coroner Dr. Rouse classified
the death as a homicide by drowning.
Other parties who had been charged with the disappearance of the Josephs
testified for the State at defendant’s trial. Frank Mike3
testified that he arrived at
his house in New Orleans East on February 19, 2014, to find a silver Dodge
Caravan parked in his driveway by his friend Steven “Future” Bradley.4
Bradley,
3
Frank Mike was convicted of possession of a stolen vehicle in interstate commerce in federal
court. He explained that he was involved in this case pursuant to his agreement to cooperate with
the State and to testify at defendant’s trial. Mike stated that he had been charged as an accessory
after the fact to a homicide, obstruction of justice, and conspiracy to obstruct justice, but after
agreeing to cooperate in the investigation of this case, he was allowed to plead guilty to three
counts of obstruction of justice for which he received a nine-year sentence.
4
Steven Bradley was originally a co-defendant in this case. During the trial of Horatio Johnson,
Bradley’s attorney told the judge that Bradley had been offered use and derivative use immunity,
but defense counsel refused the offer because the immunity document did not offer protection
6
along with Horatio Johnson, Amir “Blue” Ybarra, and an unknown black female
arrived at Mike’s house and moved the van to the back of the house. Bradley gave
Mike permission to drive the van to Atlanta on business, but Bradley instructed
Mike not to put anything in the back of the van because it might be stained by
blood. When Mike opened the van’s door, he saw blood in the back.
Mike testified that he arrived in the Atlanta area on February 20, 2014, and
booked a room at the Travelodge Hotel in College Park for two nights. Mike later
learned that a van just like the one he borrowed from Bradley was connected to a
missing couple from Reserve, Louisiana. During the two days he was in Atlanta,
Mike repeatedly tried to call Bradley. When Bradley finally returned Mike’s calls,
he did so using defendant’s cell phone. Mike decided to abandon the van. He
washed it, vacuumed the inside, wiped down the interior, and parked it at an
apartment complex about a mile from the Travelodge Hotel. Mike and Bradley
later got into a heated argument by cell phone, during which Bradley told Mike
that he had used the van to rob a couple of $200,000.00 and several bricks of
cocaine.
On April 3, 2014, after learning that the victims’ bodies had been recovered,
Mike spoke to NOPD Detective Ryan Vaught and identified photos of Bradley and
defendant, whom he knew as “Horatio.”
Mr. Donald Silva, a former bail bondsman and friend of Bradley, testified
that he told the police that Bradley had confessed to him that the Josephs were
lured to a recording studio in the 2400 block of David Drive where they were
from prosecution for federal crimes. Consequently, Bradley’s counsel advised the court that
Bradley would invoke his Fifth Amendment privilege and refuse to testify in this case. The trial
court addressed Bradley, who emphatically refused to answer any of the State’s questions.
Bradley informed the judge that he would assert his Fifth Amendment privilege to every question
and indicated that he understood he would be held in contempt of court. No substantive
testimony was elicited from Bradley at trial.
7
beaten to death by Steven Bradley, Amir “Blue” Ybarra, and defendant. Silva
testified that Bradley and Ybarra transported the victims’ bodies in a van and
dumped them in the Intracoastal Waterway, as defendant had instructed. Silva
added that the motive for the murders was a large sum of money. On crossexamination, Silva confirmed that he was not present when the murders occurred
and that he had learned of the murders from Bradley.
Ms. Brittany Martin also was charged with the second degree murders of
Kenneth and Lakeitha Joseph, but she pled guilty to obstruction of justice in
exchange for the State’s agreement to dismiss the second-degree murder charges
against her.5
At defendant’s trial, Ms. Martin described defendant as her boyfriend,
indicating that they began their romantic relationship about two years before the
murders. Ms. Martin said that she was in love with defendant and thought that they
would marry. She testified that on February 18, 2014, she received a telephone call
from defendant asking her to meet him at a recording studio on David Drive. From
the studio, she accompanied defendant to a warehouse near the airport where
Kenneth and Lakeitha Joseph met them. The Josephs arrived at the warehouse in a
van and stood outside talking to defendant. She and defendant then drove back to
the recording studio in her Toyota Scion while the Josephs followed in their van.
Defendant and Kenneth Joseph entered the studio while she and Lakeitha Joseph
remained in their respective vehicles. Twenty minutes later defendant exited the
studio and summoned Ms. Martin and Lakeitha Joseph into the studio to hear
Kenneth Joseph rapping. Lakeitha entered the dark studio followed by defendant
and Ms. Martin, at which point defendant began to strangle Lakeitha Joseph. Ms.
5 At the time of defendant’s trial, she was awaiting sentencing.
8
Martin screamed and ran outside, then returned to the studio because she thought
she had left her car key. When she realized her car key was in her back pocket, she
exited the studio and drove to a gas station on Veterans Boulevard where she sat
and drank a soda. She stated that she did not call the police because she was in
shock and was not thinking clearly. Defendant called her and asked her to return to
the studio, and she complied.
When she returned, defendant greeted Ms. Martin outside. Defendant reentered the studio, but she remained in her car. She claimed that she did not call
the police at that time because she feared what defendant might do to her family.
When she told defendant she was leaving, he got into the car with her. They drove
to a retail store where she purchased a knife for protection and hid it in her bra. She
drove back to the recording studio and defendant went inside while she sat in her
car. Fifteen minutes later they drove to defendant’s residence in LaPlace where he
washed and changed his clothes and shoes. He packed the items that he had been
wearing in a plastic bag, which he put in the trunk of her car. They drove to a
deserted area so defendant could burn the bag. After burning the bag of clothing,
they drove to the Walmart in Kenner, arriving about 1:00 a.m. Defendant took her
car key and made her enter the store with him. Defendant purchased rope, a
kettlebell, gloves, articles of clothing, and degreaser. They checked out at the selfserve register using Ms. Martin’s American Express card and returned to the
recording studio. Ms. Martin remained in her car as the defendant entered the
studio with the items purchased at Walmart.
Ms. Martin noticed that the Joseph’s van was still parked in the back of the
studio. About twenty minutes later, defendant exited the studio accompanied by
Bradley and “Blue,” who drove the victims’ van to the front door, where the men
9
loaded two large items into the back of the van. Ms. Martin thought the items were
the victims’ bodies.
According to Ms. Martin, Steven Bradley and “Blue” drove the van, with
defendant and Ms. Martin following in Ms. Martin’s Scion, to New Orleans East,
where the victims’ bodies were tossed into the water. They then went to LaPlace
for gas, but Ms. Martin’s credit card was declined. Bradley and Blue later met Ms.
Martin and defendant and traveled to Baton Rouge to Bradley’s mother’s house;
they all then went to “Box’s” house and cleaned the van’s interior and exterior.
After cleaning it, Bradley and “Blue” drove the van back to Frank Mike’s house in
New Orleans. After the men spoke with Mike, Ms. Martin drove them back to the
recording studio. According to Ms. Martin, defendant and “Blue” got manicures to
remove the blood from under their nails; she drove to Wendy’s for food and then
drove defendant home.
Ms. Martin continued her romantic relationship with defendant until May 7,
2014, when she surrendered to the police. Sometime before turning herself in,
however, Ms. Martin and defendant drove to Texas where they purchased two
thirty-pound kettlebells.
6 Defendant instructed Ms. Martin to take them to her
home and, if anyone asked, she should say that she used them to exercise. Ms.
Martin testified that when she left defendant, he warned her to keep quiet.
Under cross-examination, Ms. Martin stated that she met defendant while
she was a correctional officer. Attempting to refute Ms. Martin’s assertion that she
did not go to the police because she feared the consequences from defendant,
counsel for defendant elicited testimony that between February 18, 2014, and April
9, 2014, Ms. Martin was researching engagement and wedding rings, honeymoon
6
The police seized the kettlebells when they searched Ms. Martin’s home.
10
destinations, and car and real estate prices in and around the New Orleans area.
She also said she accompanied defendant to visit his family in Texas on March 30,
2014, where they celebrated her birthday. Defense counsel also confronted Ms.
Martin with romantic letters that she sent defendant while both she and defendant
were incarcerated on these charges. Defense counsel posited that Ms. Martin
accused defendant of the murders in retaliation for reneging on his promise to
marry her, but Ms. Martin denied that assertion.
Marvin Buendia testified that he and defendant were friends, and that he had
done some graphic design work for defendant’s business and for Ms. Martin’s
business. Around April 25, 2014, Buendia drove defendant to an apartment on
Houma Boulevard and then drove home. Defendant returned to Buendia’s house
accompanied by Ms. Martin; they spent the night at Buendia’s house. The
following morning, defendant asked Buendia to take a ride with him, and
defendant, Buendia, and Ms. Martin drove to a Walmart in Texas. Defendant told
Buendia to purchase a thirty-pound kettlebell, which defendant had placed in a
specific location in the store. They traveled to another Walmart where defendant
and Buendia repeated the routine, and then returned to Buendia’s residence, where
defendant and Ms. Martin spent the night. A few days later, defendant told
Buendia that if anyone asked, he should say that defendant spent the night of
February 18, 2014, at Buendia’s house.
Warren Chambliss was employed as an asset protection manager at the
Walmart Store in Kenner in 2014. He retrieved a self-checkout transaction receipt
dated February 19, 2014, for the purchase of two kettlebells, two fleece hoodies,
three pairs of gripping gloves, utility line, two pairs of men’s shoes, and degreaser,
which he turned over to NOPD Detective Rob Barrere. Chambliss also produced
11
store video surveillance of Brittany Martin and defendant purchasing these items
and exiting the store on February 19, 2014, at 12:33 a.m. The purchase was made
with Brittany Martin’s American Express card.
Detective Barrere assisted Detective Ryan Vaught, the lead investigator in
this case, by canvassing the victims’ neighborhood in Reserve for witnesses and
surveillance video. Barrere learned that a next-door neighbor had heard loud
knocking at the victims’ residence the night they had gone missing; the neighbor
looked outside and noticed that the victims’ van was missing. Barrere also learned
that the Kenner Walmart carried the same kettlebell as the one found attached to
the male victim’s body. Barrere viewed store surveillance video and identified Ms.
Martin and defendant purchasing two 30-pound kettlebells and the other items.
NOPD Commander Nicholas Gernon was a homicide sergeant in March
2014. Gernon assigned Detective Ryan Vaught to lead the investigation into the
death of Lakeitha Joseph. Gernon also participated in the search of Brittany
Martin’s residence in LaPlace on May 7, 2014, while Detective Vaught
simultaneously led the team that searched defendant’s Van Arpel Drive home.
Gernon verified that two kettlebells, blue rope, gloves, cleaning supplies, a firearm,
and ammunition were confiscated from Ms. Martin’s bedroom.
Lead investigator Detective Vaught was present when Lakethia Joseph’s
body was found on March 10, 2014. Vaught conducted door-to-door canvassing of
the victims’ neighbors and learned that a disturbance was reported at the victims’
residence in the early morning of February 18, 2014. He also discovered that
Lakethia Joseph was last seen in her sister-in-law’s 2012 Dodge Caravan, which
was subsequently recovered and forensically processed by Georgia State
authorities.
12
Vaught arrived in Georgia on March 19, 2014, to examine the van and view
the surveillance video from the Travelodge Hotel in College Park. Ms. Helen
Weathers assisted Vaught’s investigation in Georgia by obtaining the guest
registration information from the Travelodge where the van had been seen. With
DNA evidence recovered from the interior of the van, Vaught identified the driver
of the van at that time as Frank Mike.7
Vaught returned to New Orleans on March 22, 2014, the day that Kenneth
Joseph’s body was recovered. Vaught resumed the investigation and learned that
Mr. Joseph’s body had been bound with rope and anchored with a thirty-pound
kettlebell to submerge it. Subsequent investigation proved that two kettlebells and
blue rope similar to that found on the victims’ bodies, plus two fleece hoodies,
three pairs of latex gloves, fishing line, utility line, two pairs of men’s shoes, and
degreaser were purchased from the Walmart in Kenner on February 19, 2014, with
Brittany Martin’s credit card, and the transaction was captured on Walmart’s
surveillance video.
7
Prior to the testimony of Detective Vaught, the State stipulated to the following facts regarding
the forensic investigation:
Forensic scientist Julia Kirk tested a swab taken from the right of the rear seat of the
victims’ van which indicated one contributor, Lakethia Joseph. Two swabs taken from the gear
shift showed one contributor, Frank Mike. One piece of carpet floor panel from the left rear of
the van showed one contributor, Kenneth Joseph. Two swabs taken from a stain on the carpet
floor panel from the left rear area of the van showed two contributors, Kenneth Joseph and
Lakethia Joseph. Ms. Kirk did not identify any DNA profiles from which defendant could be
identified as the contributor.
Forensic scientist Stacey Williams took DNA swabs from the victims’ residence,
including from the dresser drawer handles, which were consistent with being a mixture of DNA
from one major contributor and two minor contributors. Kenneth Joseph could not be excluded
as the major contributor. No conclusions could be drawn regarding the minor contributor. The
DNA profile obtained from the swab of the second bedroom light switch was consistent with
being a mixture of DNA from two individuals, one major contributor and one minor contributor.
Kenneth Joseph could not be excluded as the major contributor.
Forensic scientist Kacie Amarello tested for latent fingerprints, but no identification was
made from two latent prints lifted from one of the coffee packets retrieved from the victims’ van,
and no latent prints could be developed on the kettlebell weight or blue rope found on Kenneth
Joseph’s body.
13
The search of Frank Mike’s residence yielded items of clothing that Mike
was seen wearing in the Travelodge surveillance video. When Vaught spoke to
Mike after the search, Mike admitted that he had driven the victims’ van to
Georgia; identified himself in the Travelodge surveillance video; and subsequently
identified a photo of Steven Bradley as the person who lent him the van. Further,
Mike identified a picture of defendant as one of the people present when Mike
received the van from Bradley.
Following an interview and photo identification by Bradley, Vaught
obtained arrest warrants for defendant, Ms. Martin and Amir “Blue” Ybarra and
also placed Bradley under arrest. From the suspects, Vaught learned that the
victims were lured to the recording studio in the 2400 block of David Drive, where
they met their demise. The search of defendant’s residence on May 7, 2014,
produced two iPhones. And when the recording studio was searched on May 21,
2014, Vaught confiscated a bottle of degreaser that matched one of the items Ms.
Martin and defendant had purchased at the Kenner Walmart on February 19, 2014.8
Vaught testified that throughout this investigation and prior to the arrest of
Brittany Martin, he received information suggesting that Martin was in danger of
receiving bodily harm from the defendant. Vaught obtained a trap and trace
warrant for Martin’s cell phone, and with the help of the U.S. Secret Service, he
intercepted Martin returning to New Orleans from Baton Rouge. Vaught informed
her of the threat to her safety and seized her cell phone. Vaught obtained “phone
dumps” (digital forensics extraction reports) of the cell phones belonging to
8 Detective Vaught explained that at the time the studio was searched, floors and walls were
being replaced and the interior was being painted. The studio had been transferred to a new
lessee, who was informed by Amir Ybarra, the previous lessee, that the building was moldy and
should be cleaned with bleach and renovated before being used. Because of the renovations,
crime lab personnel were unable to obtain any biological evidence from the site.
14
defendant, Ms. Martin, Steven Bradley, and Frank Mike, including subscriber
identification, incoming/outgoing calls, photographs, Instagram and text messages,
and cell tower information. Through the use of cell phone tower information in
conjunction with static license plate readers and credit card statements, Vaught was
able to verify the February 2014 travel information, including pertinent time
frames, and the location of evidence-burn areas and body disposal. Moreover,
Vaught supplied exhaustive testimony concerning the cell phone calls made by and
between defendant, Martin, Bradley and Mike around the time of the murders.
Vaught interviewed Ms. Martin three times in January 2015, and Martin
showed Vaught the locations where defendant burned or destroyed evidence, in
Manchac and Baton Rouge, and where the bodies had been disposed near
Chalmette.
ERRORS PATENT
Our review of the record revealed no errors patent.
LAW AND ANALYSIS
Defendant asserts three assignments of error: (1) the trial court erred in
denying defendant’s motion for post-verdict judgment of acquittal based on the
insufficiency of evidence presented by the State; (2) this Court erred when it
reversed the trial court’s decision to grant a mistrial due to Brittany Martin’s
reference to defendant’s prior conviction for manslaughter, in violation of the trial
court’s order; and (3) the non-unanimous “guilty” verdicts are unconstitutional,
and defendant is entitled to have his case retried. We address each of these
assignments of error in turn.
ASSIGNMENT OF ERROR NUMBER 1
15
In his first assignment of error, the defendant argues that the trial court erred
in denying his motion for post-verdict judgment of acquittal based on the
insufficiency of evidence presented by the State. Defendant complains that his
convictions were based solely upon the testimony of criminals, drug dealers, and
the woman he scorned.
A post-verdict judgment of acquittal “shall be granted only if the court finds
that the evidence, viewed in a light most favorable to the state, does not reasonably
permit a finding of guilty.” La. C.Cr.P. art. 821(B); State v. Thibodeaux, 98-1673,
p. 12 (La. 9/8/99), 750 So. 2d 916, 926; State v. Simmons, 2007-0741, p. 15 (La.
App. 4 Cir. 4/16/08), 983 So. 2d 200, 208 (“A motion for post verdict judgment of
acquittal raises the question of the sufficiency of the evidence.”). This standard “is
similar to the standard for appellate review of the sufficiency of evidence to
support a defendant’s conviction that the court must determine whether, viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the defendant guilty beyond a reasonable doubt.” State v.
Williams, 2004-1377, pp. 7-8 (La. App. 4 Cir. 12/1/04), 891 So. 2d 26, 30.
This Court reiterated the applicable standard of review for sufficiency of the
evidence challenges in State v. Rapp, 2014-0633, pp. 5-6 (La. App. 4 Cir. 2/18/15),
161 So. 3d 103, 108 (quoting State v. Marcantel, 2000-1629, p. 8 (La. 4/3/02), 815
So. 2d 50, 55):
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, a rational trier of fact could conclude that
the State proved the essential elements of the crime
beyond a reasonable doubt. See LSA–C.Cr.P. art.
821; State v. Hampton, 98-0331, p. 13 (La. 4/23/99), 750
So. 2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct.
504, 145 L.Ed.2d 390 (1999). Pursuant to Jackson v.
16
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979), the standard of review is an objective standard
for testing the overall evidence, both direct and
circumstantial, for reasonable doubt. Louisiana Revised
Statute 15:438 provides that the fact finder, when
analyzing circumstantial evidence, must be satisfied the
overall evidence excludes every reasonable hypothesis of
innocence. State v. Mitchell, 99-3342, p. 7 (La.
10/17/00), 772 So. 2d 78, 83.
Additionally, “[i]n the absence of internal contradiction or irreconcilable
conflict with the physical evidence, one witness’s testimony, if believed by the
trier of fact, is sufficient to support a factual conclusion.” State v. Williams, 2011-
0414 p. 18 (La. App. 4 Cir. 2/29/12); 85 So. 3d 759, 771. “Under the Jackson [v.
Virginia] standard, the rational credibility determinations of the trier of fact are not
to be second guessed by a reviewing court” because “a factfinder’s credibility
determination is entitled to great weight and should not be disturbed unless it is
contrary to the evidence.” Id.
Two of the four counts upon which defendant was convicted were for
second-degree murder. Under La. R.S. 14:30.1, second-degree murder is defined as
the killing of a human being “when the offender has a specific intent to kill or to
inflict great bodily harm.” To prove second degree murder, “the state
must prove the killing of a human being either with specific intent or when the
offender is engaged in one of the listed crimes.” State v. White, 2014-0397, p. 17
(La. App. 4 Cir. 7/29/15), 174 So. 3d 177, 189. “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).
The State’s evidence in this case amply supports defendant’s conviction on
two counts of second degree murder. Brittany Martin testified that she saw
17
Kenneth Joseph enter the recording studio with the defendant, and a few moments
later she witnessed defendant lure Lakeitha Joseph into the studio. Martin testified
that defendant began strangling Lakeitha Joseph in Martin’s presence. Moments
later, Martin accompanied defendant to the Kenner Walmart where he purchased
kettlebells, rope, gloves and cleaning products. Martin returned to the recording
studio with defendant and observed Amir “Blue” Ybarra and Steven “Future”
Bradley place two large objects in the back of the victims’ van. Martin testified
that the objects were each the size of a human body. Martin then accompanied
defendant to his residence where he changed clothes and bagged the clothing he
had been wearing. Ybarra and Bradley drove the van, followed by Martin and
defendant in Martin’s car, to a deserted area in New Orleans East where they
tossed the victims’ bodies in the waterway.
Donald Silva also testified that Steven Bradley had confessed his
participation in the murders, corroborating Brittany Martin’s testimony that
defendant had choked Lakeitha Joseph and that he had beaten the victims with bar
stools.
The medical evidence presented at trial established that the victims died by
drowning. The forensic pathologists testified about rope binding the bodies at the
time they were retrieved from the Intracoastal Waterway with a kettlebell attached
to Mr. Joseph’s ankles.
The testimony and evidence offered at trial demonstrates that defendant
possessed the specific intent to kill the victims and, when viewed in the light most
favorable to the prosecution, establishes that a rational factfinder could have
determined that defendant was guilty on two counts of second-degree murder.
18
Defendant was also found guilty of La. R.S. 14:130.1, [o]bstruction of
justice, which provides, in pertinent part:
A. The crime of obstruction of justice is any of the
following when committed with the knowledge that
such act has, reasonably may, or will affect an actual
or potential present, past, or future criminal
proceeding as hereinafter described:
(1) Tampering with evidence with the specific intent
of distorting the results of any criminal
investigation or proceeding which may reasonably
prove relevant to a criminal investigation or
proceeding. Tampering with evidence shall include
the intentional alteration, movement, removal, or
addition of any object or substance either:
(a) At the location of any incident which the
perpetrator knows or has good reason to believe
will be the subject of any investigation by state,
local, or U.S. law enforcement officers; ...
The knowledge requirement of La. R.S. 14:130.1(A) is met if the perpetrator
merely knows that an act “reasonably may” affect a “potential” or “future”
criminal proceeding. State v. Jones, 2007-1052, p. 9 (La. 6/3/08), 983 So. 2d 95,
101. “The defendant must also have tampered with evidence ‘with the specific
intent of distorting the results’ of a criminal investigation.” State v. Powell, 2015-
0218, p. 11 (La. App. 4 Cir. 10/28/15), 179 So. 3d 721, 728 (quoting La. R.S.
14:130.1(A)(1)). However, “nothing beyond ‘movement’ of the evidence is
required by the statute if accompanied by the requisite intent and knowledge.” Id.
(citing Jones, 2007-1052, p. 10 (La.6/3/08), 983 So. 2d at 101).
Some of defendant’s efforts to obstruct justice and destroy evidence include:
1) binding and weighting the victims’ bodies with rope and kettlebells to prevent
discovery; 2) burning the clothes he wore at the time of the killings, and
purchasing additional clothing and cleaning products; 3) cleaning the interior of the
19
victims’ van and disposing of its contents; 4) having his hands manicured to
destroy trace and/or blood evidence; 5) enlisting Marvin Buendia’s assistance in
purchasing two “substitute” kettlebells, and 6) instructing Brittany Martin to lie to
the police and say that she used the replacement kettlebells for exercise. This
evidence sufficiently establishes a basis upon which the factfinder could
reasonably determine that defendant was guilty of obstructing justice in violation
of La. R.S. 14:130.1.
Regarding defendant’s challenge to the sufficiency of the evidence for the
charge of conspiracy to obstruct justice, criminal conspiracy under La. R.S. 14:26
requires an agreement or combination of two or more persons for the specific
purpose of committing any crime, an act in furtherance of the object of the
agreement or combination, and specific intent.
Accepting Brittany Martin’s testimony as true, a rational juror could have
concluded that the State proved beyond a reasonable doubt a conspiracy to commit
obstruction of justice among defendant, Steven Bradley, and Amir Ybarra, for
acting in concert to dispose of the victims’ bodies and the van. The jury also could
have found conspiracy to obstruct justice between defendant and Martin in
conjunction with the Walmart purchases and the burning of defendant’s clothes.
Although defendant argues that there is no physical evidence linking him to
these crimes and further suggests that much of the testimony against him came
from criminals or from the woman he scorned, video surveillance captures
defendant and Ms. Martin purchasing kettlebells like those tethered to the victims’
bodies in the water, and cleaning products, some of which were recovered from the
recording studio. Moreover, defense counsel thoroughly cross-examined the
State’s witnesses to expose their criminal backgrounds and any motives for
20
blaming defendant for these crimes. Despite the unfavorable light that defense
counsel cast on the State’s witnesses, the jury accepted their testimony as true and
convicted defendant on all four counts.
“[I]t is not the function of the appellate court to reassess the credibility of
witnesses or to reweigh the evidence; the reviewing court’s function is to
determine the constitutional sufficiency of the evidence presented.” State v. Scott,
2012-1603, p. 11 (La. App. 4 Cir. 12/23/13), 131 So. 3d 501, 508 (citing State v.
Johnson, 619 So. 2d 1102, 1109 (La. App. 4
th Cir. 1993)). “Credibility
determinations, as well as the weight to be attributed to the evidence, are soundly
within the province of the trier of fact.” Id. (citing State v. Brumfield, 93-2404 (La.
App. 4 Cir. 6/15/94), 639 So. 2d 312, 316). “Moreover, conflicting testimony as to
factual matters is a question of weight of the evidence, not sufficiency. Such a
determination rests solely with the trier of fact, who may accept or reject, in whole
or in part, the testimony of any witness.” Id. (citing State v. Jones, 537 So. 2d
1244, 1249 (La. App. 4th Cir. 1989)). “Absent internal contradiction or
irreconcilable conflict with the physical evidence, a single witness’s testimony,
if believed by the fact finder, is sufficient to support a factual conclusion.” State v.
De Gruy, 2016-0891, p. 11 (La. App. 4 Cir. 4/5/17), 215 So. 3d 723, 729-730
(citing State v. Marshall, 2004-3139, p. 9 (La. 11/29/06), 943 So. 2d 362, 369).
Having reviewed the substantial amount of evidence and testimony in this
case, we find it sufficient to support defendant’s conviction on all four counts.
Viewing the evidence in a light most favorable to the State, the trial court therefore
correctly denied defendant’s request for a post-verdict judgment of acquittal.
Defendant’s first assignment of error has no merit.
ASSIGNMENT OF ERROR NUMBER 2
21
During trial, counsel for the defense elicited a statement from Brittany
Martin that referenced another crime for which defendant had been jailed. The
exchange occurred as follows:
Q. … So that day, you put your hand on the Bible, court
reporter says, do you swear to tell the whole truth and
nothing but the truth?
A. Yes.
Q. Because perjury, apparently doesn’t bother you, does
it?
A. Yes, it does.
Q. Didn’t that day, did it?
A. Because Horatio told me to say that I use [kettlebells]
to exercise, or pretty much I was a loose end, which
means I’m going to be killed. I have every reason to fear
a person who’s been in jail before for manslaughter.
The trial court admonished the jury to “disregard the last comment.” Defense
counsel moved for a mistrial, which the trial court granted. The State sought
supervisory review, and this Court reversed, finding that the trial court lacked
authority to grant a mistrial under either La. C.Cr.P. art. 775 or La. C.Cr.P. art.
771. State v. Johnson, 2017-0717, p. 6 (La. App. 4 Cir. 8/27/17), 226 So. 3d 1178,
1182.
Defendant contends that this Court erred when it reversed the trial court’s
grant of a mistrial, arguing that the trial court was in the best position to determine
whether admonishing the jury was sufficient to guarantee defendant a fair trial.
Defendant suggests the trial court did not abuse its discretion in declaring a
mistrial, thus, this Court should not have overturned that ruling.
22
Defendant’s second assignment of error invites this Court to reconsider its
prior opinion, but that opinion is now the law of the case.
9
“Under the law-of-thecase doctrine, an appellate court will not reverse its pretrial determinations unless
the defendant presents new evidence tending to show that the decision was patently
erroneous and produced an unjust result.” State v. Garrison, 2016-0257, p. 6 (La.
App. 4 Cir. 3/29/17), 215 So. 3d 333, 337-38, writ denied, 2017-0695 (La.
11/5/18), 255 So. 3d 1055 (quoting State v. Golden, 2011-0735, p. 13 (La.App. 4
Cir. 5/23/12), 95 So.3d 522, 531). Defendant has failed to set forth any additional
credible evidence demonstrating the prejudice that he allegedly suffered as a result
of Ms. Martin’s statement. Finding no error in our prior ruling, we decline to
revisit it.
Finally, we have already established that the State introduced substantial
evidence of defendant’s guilt on all four counts, and any alleged error as a result of
Ms. Martin’s statement regarding defendant’s prior conviction is harmless. See
9
In State v. McElveen, 2010-0172, p. 24 n.8 (La. App. 4 Cir. 9/28/11), 73 So. 3d 1033, 1054 n.8,
this Court explained:
The “law of the case” doctrine applies to all prior rulings or
decisions of an appellate court or the Supreme Court in the same
case, not merely those arising from the full appeal
process. See Pumphrey v. City of New Orleans, 2005–0979
(La.4/4/06), 925 So. 2d 1202. This policy applies to parties who
were parties to the case when the former decision was rendered
and who thus had their day in court. The reasons for the “law of
the case” doctrine is to avoid relitigation of the same issue; to
promote consistency of result in the same litigation; and to
promote efficiency and fairness to both parties by affording a
single opportunity for the argument and decision of the matter at
issue. Day v. Campbell–Grosjean Roofing and Sheet Metal
Corp., 260 La. 325, 256 So. 2d 105 (1971). This doctrine is not an
inflexible law; thus appellate courts are not absolutely bound
thereby and may exercise discretion in application of the doctrine.
It should not be applied where it would accomplish an obvious
injustice or where the former appellate decision was manifestly
erroneous.
23
State v. Lyles, 2003-0141, p. 11 (La. App. 5 Cir. 9/16/03), 858 So. 2d 35, 46 (“an
improper reference to other crimes is subject to harmless error review … [t]he test
for determining harmless error is whether the verdict actually rendered in that case
was surely unattributable to the error.”). This assignment of error has no merit.
ASSIGNMENT OF ERROR NUMBER 3
In a final assignment of error, defendant argues that because his convictions
for second degree murder and conspiracy to obstruct justice were rendered by nonunanimous jury verdicts, those convictions must be reversed because nonunanimous jury verdicts are unconstitutional. Defendant further contends that
because his convictions are not yet final, he is entitled to a new trial on those
counts pursuant to the 2018 amendment to Article I, § 17 of the Louisiana
Constitution and to La. C.Cr.P. art. 782, which now mandate unanimous guilty
verdicts for offenses punished by confinement at hard labor. The 2018
amendments to which defendant refers provide:
A criminal case in which the punishment may be capital
shall be tried before a jury of twelve persons, all of
whom must concur to render a verdict. A case for an
offense committed prior to January 1, 2019, in which the
punishment is necessarily confinement at hard labor
shall be tried before a jury of twelve persons, ten of
whom must concur to render a verdict. A case for an
offense committed on or after January 1, 2019, in which
the punishment is necessarily confinement at hard labor
shall be tried before a jury of twelve persons, all of whom
must concur to render a verdict.
Defendant acknowledges that the amendment provides that the change in the
law is prospective, but he nonetheless argues that under State v. Draughter, 2013-
0914 (La. 12/10/13), 130 So. 3d 855, 860, the amendment should be applied
retroactively.
24
In Draughter, the Louisiana Supreme Court reviewed the trial court’s
decision declaring unconstitutional La. R.S. 14:95.1, a statute that prohibits a felon
from possessing a firearm within a certain number of years after conviction. The
trial court’s determination was grounded in the Legislature’s recent amendment to
LA. CONST. art. I, § 11, providing that the right to keep and bear arms is a
fundamental right. To evaluate the constitutionality of La. R.S. 14:95.1, the Court
had to determine whether the older version of Article I, § 11, which invoked a
“reasonableness” test for evaluating restrictions on the right to bear arms, applied,
or whether the amended version, which required “strict scrutiny” when evaluating
any restrictions on the fundamental right, would apply. “[W]e conclude the right to
bear arms was always fundamental; the amendment to the constitutional provision
merely sought to ensure that the review standard of an alleged infringement of this
fundamental right was in keeping with the refinements made to constitutional
analysis which developed since our decision in [State v. Amos, 343 So.2d 166 (La.
1977)].” Draughter, 2013-0914 (La. 12/10/13), 130 So. 3d 855, 863.
The Louisiana Supreme Court concluded in Draughter that because the
defendant’s conviction was not final when an amendment to the Louisiana
Constitution became effective, the amendment, which changed the standard of
review that the Court must use in evaluating a restriction, had prospective effect,
but would be retroactively effective to defendant Draughter and all other cases still
pending on direct review or not yet final.
Here, the statutory amendments requiring unanimous jury verdicts do not
declare non-unanimous jury verdicts unconstitutional, nor do they modify the
standard of review that courts must apply when interpreting these statutes, as in
Draughter. We find Draughter distinguishable and note that if this Court were to
25
adopt defendant’s argument and apply Draughter to the present facts, we would be
usurping the function of the Legislature, which has clearly stated when the
requirements for conviction by a unanimous jury verdict shall begin.
In addition, both the Louisiana Supreme Court and the United States
Supreme Court have held that a statute permitting non-unanimous jury verdicts in
non-capital cases is constitutional. State v. Bertrand, 08-2215, 08-2311, pp. 6-8
(La. 3/17/09), 6 So. 3d 738, 742-43; Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct.
1628, 32 L. Ed. 2d 184 (1972). The 2018 statutory amendments at issue here do
not undermine those holdings.
Finally, Louisiana follows the general rule that a constitutional provision or
amendment has prospective effect only, unless a contrary intention is clearly
expressed. State v. Cousan, 1994-2503, p. 17 (La.11/25/96); 684 So. 2d 382, 392-
393. But we need not defer to the general rule, because LA. CONST. art. I, §17 and
La. C.Cr.P. art. 782, as amended in 2018 to require unanimous jury verdicts,
explicitly provide that the amendment is applicable to offenses that occur on or
after January 1, 2019. This language could not be more clear.
There can be no retroactive application of these amendments, and
defendant’s convictions by non-unanimous jury verdict are not unconstitutional.
Defendant’s third assignment of error has no merit.
CONCLUSION
STATE OF LOUISIANA
VERSUS
HORATIO JOHNSON
*
*
*
*
* * * * * * *
NO. 2018-KA-0409
COURT OF APPEAL
FOURTH CIRCUIT
STATE OF LOUISIANA
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 521-673, SECTION “0”
Honorable Benedict J. Willard, Judge
* * * * * *
Judge Dale N. Atkins
* * * * * *
(Court composed of Judge Roland L. Belsome, Judge Regina BartholomewWoods, Judge Dale N. Atkins)
BARTHOLOMEW-WOODS, J., CONCURS IN THE RESULT
Leon Cannizzaro
Donna Andrieu
Irena Zajickova
DISTRICT ATTORNEY'S OFFICE
ORLEANS PARISH
619 S. White Street
New Orleans, LA 70119
COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE
Holli Herrle-Castillo
LOUISIANA APPELLATE PROJECT
P. O. Box 2333
Marrero, LA 70073-2333
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
MARCH 13, 2019
1
Kenneth and Lakeitha Joseph (“victims”) were reported missing on February
19, 2014. Nearly a month later, their bodies were recovered from the Intracoastal
Waterway in New Orleans. After a lengthy investigation that brought investigators
to Georgia, Texas, and across southeast Louisiana, the New Orleans Police
Department determined that several people were involved in the double murder
and had conspired to cover up the evidence.
On August 28, 2014, the State charged Horatio Johnson (“defendant”) with
two counts of second degree murder, a violation of La. R.S. 14:30.1; one count of
conspiracy to commit obstruction of justice by tampering with evidence, a
violation of La. R.S. 14:26 and 14:130.1; and one count of obstruction of justice, a
violation of La. R.S. 14:130.1, in connection with the murders of defendant’s
cousin, Kenneth Joseph, and Kenneth’s wife, Lakeitha Joseph.1
Defendant pled not guilty to all charges on September 4, 2014. On January
21, 2017, the trial court denied defendant’s motions to suppress evidence,
identification, and statements. A jury trial was held between August 21 and August
31, 2017. The State presented testimony from several witnesses and introduced
1 Other parties were charged with the same or similar crimes relative to the murders of Kenneth
and Lakeitha Joseph, but the present appeal addresses the charges against Horatio Johnson only.
2
numerous exhibits. After the State rested its case, defense counsel notified the
court that it did not intend to call any witnesses. The jury returned a verdict of
guilty on all counts, with eleven-to-one verdicts for the second degree murder
convictions and the conspiracy to obstruct justice conviction, and a unanimous
verdict to convict for obstruction of justice.
Defendant filed a motion for post-verdict judgment of acquittal and a motion
for new trial, both of which the trial court denied. Defendant was sentenced to life
imprisonment without benefit of parole, probation, or suspension of sentence on
each count of second-degree murder (counts 1 and 2); twenty years for the count of
conspiracy to obstruct justice (count 3); and forty years for obstruction of justice
(count 4), with the sentences to be served consecutively. Defendant now appeals
his convictions. We affirm defendant’s conviction and sentences.
FACTS
Kenneth and LaKeitha Joseph borrowed a Dodge Caravan from Kenneth’s
sister, Ms. Alosia Hayward, on February 18, 2014. When they did not return the
van to Ms. Hayward the following morning, she tried calling them throughout the
day, but she received no response. That evening, she, her mother, and her sister
drove to the victims’ home in Reserve, Louisiana, but neither the van nor the
Josephs were there. The victims’ house had been ransacked. Ms. Hayward stated
that either her mother or her sister reported the Josephs missing to the St. John the
Baptist Parish authorities.
Crime Scene Investigator Scotty Lewis with the St. John the Baptist Parish
Sheriff’s Office testified that he investigated a call of a residential burglary at 530
Homewood Place in Reserve. Lewis spoke with the first responding officer on the
3
scene, photographed the exterior and interior of the residence, and swabbed various
surfaces in the residence for DNA.
Detective Kirsten McAbee of the St. John the Baptist Parish Sheriff’s
Office2
began investigating the victims’ disappearance by entering their names into
the national database of missing persons and posting neighborhood flyers. McAbee
obtained the victims’ cell phone records, which showed that Lakeitha Joseph’s last
outgoing call occurred on the night that she went missing, February 18, 2014.
Detective McAbee’s analysis indicated that Lakeitha’s phone moved from Reserve
to LaPlace to Lutcher and, finally, to Kenner on that same date. McAbee also
obtained a search warrant for defendant’s residence in LaPlace, and a warrant to
search the home of Brittany Martin, defendant’s girlfriend. McAbee confiscated a
Toshiba laptop computer and an iPad from the victims’ residence. McAbee
subsequently learned that the victims’ van was sighted at a Georgia Travelodge
Hotel and that the van was associated with a Travelodge guest named Frank Mike.
In Georgia, Officer James Jackson, Jr. of the Fulton County Police
Department responded to a call of an abandoned Dodge Caravan in the College
Park area on February 27, 2014. Jackson learned that the van had been reported
stolen from LaPlace, Louisiana, and the report bore the notation “missing
endangered person. Hold for latent prints.” Jackson impounded the vehicle for
processing.
Fulton County Police notified Detective McAbee that they had located the
victims’ missing van in College Park, Georgia. The Georgia authorities searched
2 When this investigation began, Detective McAbee was employed by the St. John the Baptist
Parish Sheriff’s Office; however, at the time this matter was tried, she was working for the
Jefferson Parish Sheriff’s Office. Detective McAbee’s name is also spelled “McBee” at various
places in the record.
4
the area for the victims, canvassed for witnesses, and obtained a search warrant for
the van.
Ms. Helen Weathers was an expert forensic crime scene investigator for the
Fulton County Police Department in Atlanta, Georgia. On March 1, 2014,
pursuant to a warrant, she processed the 2010 Dodge Caravan. She photographed
the van and examined its exterior and interior, noting that it had recently been
washed, but the tires had not been cleaned and were visibly dirty. The key was in
the ignition; a receipt from LaPlace, Louisiana, was found; and two coffee packets
were seen in the front console. There were reddish stains on the floor board near
the sliding door on the side of the van and on the floor next to the driver’s seat,
large blood stains on and under the second-row and third-row seats and floor mats,
and blood stains behind the side interior paneling. Ms. Weathers swabbed the
interior of the van for DNA evidence and collected other evidence from the van’s
interior, all of which was subsequently transferred to the New Orleans Police
Department (NOPD). Ms. Weathers also obtained guest registration information
and surveillance video from the Travelodge Hotel in College Park, Georgia.
Lakeitha Joseph’s body was recovered from the Intracoastal Waterway in
New Orleans on March 10, 2014. Several days later, on March 22, 2014, the
NOPD retrieved Kenneth Joseph’s body, bound in blue rope with a kettle bell
attached, from the same waterway. The case was now designated as a homicide
investigation.
NOPD Detective Robert Bachelder was present at the scene when both
bodies were retrieved. At trial, Bachelder identified crime lab photographs
showing that the victims’ ankles were bound by rope, and that a thirty-pound
kettlebell was attached to the rope that bound Kenneth Joseph’s ankles.
5
Dr. Erin O’Sullivan, a forensic pathologist with the Orleans Parish
Coroner’s Office, performed an autopsy on the body of Lakeitha Joseph. Ms.
Joseph had suffered a subscapular hemorrhage on the left side of her head, as if she
had been struck; however, Dr. O’Sullivan testified that the blow would not have
caused her death, as there was no accompanying fracture of the skull. Dr.
O’Sullivan noted that the blue rope knotted around the victim’s ankles had caused
abrasions to the skin on the legs. In addition, the victim’s lower right leg was
fractured. Dr. O’Sullivan found no evidence of gunshot or knife wounds. She
stated that Ms. Joseph died of asphyxia by drowning.
Dr. Richard Tracy, another pathologist with the Orleans Parish Coroner’s
Office, performed an autopsy on the body of Kenneth Joseph. Mr. Joseph’s body
had arrived at the Coroner’s Office with a kettlebell and rope attached to his legs.
The body exhibited signs of decomposition, bloating, and discoloration of skin, but
there were no signs of penetrating or blunt force injuries, and no hematomas or
broken bones. Dr. Tracy testified that Orleans Parish Coroner Dr. Rouse classified
the death as a homicide by drowning.
Other parties who had been charged with the disappearance of the Josephs
testified for the State at defendant’s trial. Frank Mike3
testified that he arrived at
his house in New Orleans East on February 19, 2014, to find a silver Dodge
Caravan parked in his driveway by his friend Steven “Future” Bradley.4
Bradley,
3
Frank Mike was convicted of possession of a stolen vehicle in interstate commerce in federal
court. He explained that he was involved in this case pursuant to his agreement to cooperate with
the State and to testify at defendant’s trial. Mike stated that he had been charged as an accessory
after the fact to a homicide, obstruction of justice, and conspiracy to obstruct justice, but after
agreeing to cooperate in the investigation of this case, he was allowed to plead guilty to three
counts of obstruction of justice for which he received a nine-year sentence.
4
Steven Bradley was originally a co-defendant in this case. During the trial of Horatio Johnson,
Bradley’s attorney told the judge that Bradley had been offered use and derivative use immunity,
but defense counsel refused the offer because the immunity document did not offer protection
6
along with Horatio Johnson, Amir “Blue” Ybarra, and an unknown black female
arrived at Mike’s house and moved the van to the back of the house. Bradley gave
Mike permission to drive the van to Atlanta on business, but Bradley instructed
Mike not to put anything in the back of the van because it might be stained by
blood. When Mike opened the van’s door, he saw blood in the back.
Mike testified that he arrived in the Atlanta area on February 20, 2014, and
booked a room at the Travelodge Hotel in College Park for two nights. Mike later
learned that a van just like the one he borrowed from Bradley was connected to a
missing couple from Reserve, Louisiana. During the two days he was in Atlanta,
Mike repeatedly tried to call Bradley. When Bradley finally returned Mike’s calls,
he did so using defendant’s cell phone. Mike decided to abandon the van. He
washed it, vacuumed the inside, wiped down the interior, and parked it at an
apartment complex about a mile from the Travelodge Hotel. Mike and Bradley
later got into a heated argument by cell phone, during which Bradley told Mike
that he had used the van to rob a couple of $200,000.00 and several bricks of
cocaine.
On April 3, 2014, after learning that the victims’ bodies had been recovered,
Mike spoke to NOPD Detective Ryan Vaught and identified photos of Bradley and
defendant, whom he knew as “Horatio.”
Mr. Donald Silva, a former bail bondsman and friend of Bradley, testified
that he told the police that Bradley had confessed to him that the Josephs were
lured to a recording studio in the 2400 block of David Drive where they were
from prosecution for federal crimes. Consequently, Bradley’s counsel advised the court that
Bradley would invoke his Fifth Amendment privilege and refuse to testify in this case. The trial
court addressed Bradley, who emphatically refused to answer any of the State’s questions.
Bradley informed the judge that he would assert his Fifth Amendment privilege to every question
and indicated that he understood he would be held in contempt of court. No substantive
testimony was elicited from Bradley at trial.
7
beaten to death by Steven Bradley, Amir “Blue” Ybarra, and defendant. Silva
testified that Bradley and Ybarra transported the victims’ bodies in a van and
dumped them in the Intracoastal Waterway, as defendant had instructed. Silva
added that the motive for the murders was a large sum of money. On crossexamination, Silva confirmed that he was not present when the murders occurred
and that he had learned of the murders from Bradley.
Ms. Brittany Martin also was charged with the second degree murders of
Kenneth and Lakeitha Joseph, but she pled guilty to obstruction of justice in
exchange for the State’s agreement to dismiss the second-degree murder charges
against her.5
At defendant’s trial, Ms. Martin described defendant as her boyfriend,
indicating that they began their romantic relationship about two years before the
murders. Ms. Martin said that she was in love with defendant and thought that they
would marry. She testified that on February 18, 2014, she received a telephone call
from defendant asking her to meet him at a recording studio on David Drive. From
the studio, she accompanied defendant to a warehouse near the airport where
Kenneth and Lakeitha Joseph met them. The Josephs arrived at the warehouse in a
van and stood outside talking to defendant. She and defendant then drove back to
the recording studio in her Toyota Scion while the Josephs followed in their van.
Defendant and Kenneth Joseph entered the studio while she and Lakeitha Joseph
remained in their respective vehicles. Twenty minutes later defendant exited the
studio and summoned Ms. Martin and Lakeitha Joseph into the studio to hear
Kenneth Joseph rapping. Lakeitha entered the dark studio followed by defendant
and Ms. Martin, at which point defendant began to strangle Lakeitha Joseph. Ms.
5 At the time of defendant’s trial, she was awaiting sentencing.
8
Martin screamed and ran outside, then returned to the studio because she thought
she had left her car key. When she realized her car key was in her back pocket, she
exited the studio and drove to a gas station on Veterans Boulevard where she sat
and drank a soda. She stated that she did not call the police because she was in
shock and was not thinking clearly. Defendant called her and asked her to return to
the studio, and she complied.
When she returned, defendant greeted Ms. Martin outside. Defendant reentered the studio, but she remained in her car. She claimed that she did not call
the police at that time because she feared what defendant might do to her family.
When she told defendant she was leaving, he got into the car with her. They drove
to a retail store where she purchased a knife for protection and hid it in her bra. She
drove back to the recording studio and defendant went inside while she sat in her
car. Fifteen minutes later they drove to defendant’s residence in LaPlace where he
washed and changed his clothes and shoes. He packed the items that he had been
wearing in a plastic bag, which he put in the trunk of her car. They drove to a
deserted area so defendant could burn the bag. After burning the bag of clothing,
they drove to the Walmart in Kenner, arriving about 1:00 a.m. Defendant took her
car key and made her enter the store with him. Defendant purchased rope, a
kettlebell, gloves, articles of clothing, and degreaser. They checked out at the selfserve register using Ms. Martin’s American Express card and returned to the
recording studio. Ms. Martin remained in her car as the defendant entered the
studio with the items purchased at Walmart.
Ms. Martin noticed that the Joseph’s van was still parked in the back of the
studio. About twenty minutes later, defendant exited the studio accompanied by
Bradley and “Blue,” who drove the victims’ van to the front door, where the men
9
loaded two large items into the back of the van. Ms. Martin thought the items were
the victims’ bodies.
According to Ms. Martin, Steven Bradley and “Blue” drove the van, with
defendant and Ms. Martin following in Ms. Martin’s Scion, to New Orleans East,
where the victims’ bodies were tossed into the water. They then went to LaPlace
for gas, but Ms. Martin’s credit card was declined. Bradley and Blue later met Ms.
Martin and defendant and traveled to Baton Rouge to Bradley’s mother’s house;
they all then went to “Box’s” house and cleaned the van’s interior and exterior.
After cleaning it, Bradley and “Blue” drove the van back to Frank Mike’s house in
New Orleans. After the men spoke with Mike, Ms. Martin drove them back to the
recording studio. According to Ms. Martin, defendant and “Blue” got manicures to
remove the blood from under their nails; she drove to Wendy’s for food and then
drove defendant home.
Ms. Martin continued her romantic relationship with defendant until May 7,
2014, when she surrendered to the police. Sometime before turning herself in,
however, Ms. Martin and defendant drove to Texas where they purchased two
thirty-pound kettlebells.
6 Defendant instructed Ms. Martin to take them to her
home and, if anyone asked, she should say that she used them to exercise. Ms.
Martin testified that when she left defendant, he warned her to keep quiet.
Under cross-examination, Ms. Martin stated that she met defendant while
she was a correctional officer. Attempting to refute Ms. Martin’s assertion that she
did not go to the police because she feared the consequences from defendant,
counsel for defendant elicited testimony that between February 18, 2014, and April
9, 2014, Ms. Martin was researching engagement and wedding rings, honeymoon
6
The police seized the kettlebells when they searched Ms. Martin’s home.
10
destinations, and car and real estate prices in and around the New Orleans area.
She also said she accompanied defendant to visit his family in Texas on March 30,
2014, where they celebrated her birthday. Defense counsel also confronted Ms.
Martin with romantic letters that she sent defendant while both she and defendant
were incarcerated on these charges. Defense counsel posited that Ms. Martin
accused defendant of the murders in retaliation for reneging on his promise to
marry her, but Ms. Martin denied that assertion.
Marvin Buendia testified that he and defendant were friends, and that he had
done some graphic design work for defendant’s business and for Ms. Martin’s
business. Around April 25, 2014, Buendia drove defendant to an apartment on
Houma Boulevard and then drove home. Defendant returned to Buendia’s house
accompanied by Ms. Martin; they spent the night at Buendia’s house. The
following morning, defendant asked Buendia to take a ride with him, and
defendant, Buendia, and Ms. Martin drove to a Walmart in Texas. Defendant told
Buendia to purchase a thirty-pound kettlebell, which defendant had placed in a
specific location in the store. They traveled to another Walmart where defendant
and Buendia repeated the routine, and then returned to Buendia’s residence, where
defendant and Ms. Martin spent the night. A few days later, defendant told
Buendia that if anyone asked, he should say that defendant spent the night of
February 18, 2014, at Buendia’s house.
Warren Chambliss was employed as an asset protection manager at the
Walmart Store in Kenner in 2014. He retrieved a self-checkout transaction receipt
dated February 19, 2014, for the purchase of two kettlebells, two fleece hoodies,
three pairs of gripping gloves, utility line, two pairs of men’s shoes, and degreaser,
which he turned over to NOPD Detective Rob Barrere. Chambliss also produced
11
store video surveillance of Brittany Martin and defendant purchasing these items
and exiting the store on February 19, 2014, at 12:33 a.m. The purchase was made
with Brittany Martin’s American Express card.
Detective Barrere assisted Detective Ryan Vaught, the lead investigator in
this case, by canvassing the victims’ neighborhood in Reserve for witnesses and
surveillance video. Barrere learned that a next-door neighbor had heard loud
knocking at the victims’ residence the night they had gone missing; the neighbor
looked outside and noticed that the victims’ van was missing. Barrere also learned
that the Kenner Walmart carried the same kettlebell as the one found attached to
the male victim’s body. Barrere viewed store surveillance video and identified Ms.
Martin and defendant purchasing two 30-pound kettlebells and the other items.
NOPD Commander Nicholas Gernon was a homicide sergeant in March
2014. Gernon assigned Detective Ryan Vaught to lead the investigation into the
death of Lakeitha Joseph. Gernon also participated in the search of Brittany
Martin’s residence in LaPlace on May 7, 2014, while Detective Vaught
simultaneously led the team that searched defendant’s Van Arpel Drive home.
Gernon verified that two kettlebells, blue rope, gloves, cleaning supplies, a firearm,
and ammunition were confiscated from Ms. Martin’s bedroom.
Lead investigator Detective Vaught was present when Lakethia Joseph’s
body was found on March 10, 2014. Vaught conducted door-to-door canvassing of
the victims’ neighbors and learned that a disturbance was reported at the victims’
residence in the early morning of February 18, 2014. He also discovered that
Lakethia Joseph was last seen in her sister-in-law’s 2012 Dodge Caravan, which
was subsequently recovered and forensically processed by Georgia State
authorities.
12
Vaught arrived in Georgia on March 19, 2014, to examine the van and view
the surveillance video from the Travelodge Hotel in College Park. Ms. Helen
Weathers assisted Vaught’s investigation in Georgia by obtaining the guest
registration information from the Travelodge where the van had been seen. With
DNA evidence recovered from the interior of the van, Vaught identified the driver
of the van at that time as Frank Mike.7
Vaught returned to New Orleans on March 22, 2014, the day that Kenneth
Joseph’s body was recovered. Vaught resumed the investigation and learned that
Mr. Joseph’s body had been bound with rope and anchored with a thirty-pound
kettlebell to submerge it. Subsequent investigation proved that two kettlebells and
blue rope similar to that found on the victims’ bodies, plus two fleece hoodies,
three pairs of latex gloves, fishing line, utility line, two pairs of men’s shoes, and
degreaser were purchased from the Walmart in Kenner on February 19, 2014, with
Brittany Martin’s credit card, and the transaction was captured on Walmart’s
surveillance video.
7
Prior to the testimony of Detective Vaught, the State stipulated to the following facts regarding
the forensic investigation:
Forensic scientist Julia Kirk tested a swab taken from the right of the rear seat of the
victims’ van which indicated one contributor, Lakethia Joseph. Two swabs taken from the gear
shift showed one contributor, Frank Mike. One piece of carpet floor panel from the left rear of
the van showed one contributor, Kenneth Joseph. Two swabs taken from a stain on the carpet
floor panel from the left rear area of the van showed two contributors, Kenneth Joseph and
Lakethia Joseph. Ms. Kirk did not identify any DNA profiles from which defendant could be
identified as the contributor.
Forensic scientist Stacey Williams took DNA swabs from the victims’ residence,
including from the dresser drawer handles, which were consistent with being a mixture of DNA
from one major contributor and two minor contributors. Kenneth Joseph could not be excluded
as the major contributor. No conclusions could be drawn regarding the minor contributor. The
DNA profile obtained from the swab of the second bedroom light switch was consistent with
being a mixture of DNA from two individuals, one major contributor and one minor contributor.
Kenneth Joseph could not be excluded as the major contributor.
Forensic scientist Kacie Amarello tested for latent fingerprints, but no identification was
made from two latent prints lifted from one of the coffee packets retrieved from the victims’ van,
and no latent prints could be developed on the kettlebell weight or blue rope found on Kenneth
Joseph’s body.
13
The search of Frank Mike’s residence yielded items of clothing that Mike
was seen wearing in the Travelodge surveillance video. When Vaught spoke to
Mike after the search, Mike admitted that he had driven the victims’ van to
Georgia; identified himself in the Travelodge surveillance video; and subsequently
identified a photo of Steven Bradley as the person who lent him the van. Further,
Mike identified a picture of defendant as one of the people present when Mike
received the van from Bradley.
Following an interview and photo identification by Bradley, Vaught
obtained arrest warrants for defendant, Ms. Martin and Amir “Blue” Ybarra and
also placed Bradley under arrest. From the suspects, Vaught learned that the
victims were lured to the recording studio in the 2400 block of David Drive, where
they met their demise. The search of defendant’s residence on May 7, 2014,
produced two iPhones. And when the recording studio was searched on May 21,
2014, Vaught confiscated a bottle of degreaser that matched one of the items Ms.
Martin and defendant had purchased at the Kenner Walmart on February 19, 2014.8
Vaught testified that throughout this investigation and prior to the arrest of
Brittany Martin, he received information suggesting that Martin was in danger of
receiving bodily harm from the defendant. Vaught obtained a trap and trace
warrant for Martin’s cell phone, and with the help of the U.S. Secret Service, he
intercepted Martin returning to New Orleans from Baton Rouge. Vaught informed
her of the threat to her safety and seized her cell phone. Vaught obtained “phone
dumps” (digital forensics extraction reports) of the cell phones belonging to
8 Detective Vaught explained that at the time the studio was searched, floors and walls were
being replaced and the interior was being painted. The studio had been transferred to a new
lessee, who was informed by Amir Ybarra, the previous lessee, that the building was moldy and
should be cleaned with bleach and renovated before being used. Because of the renovations,
crime lab personnel were unable to obtain any biological evidence from the site.
14
defendant, Ms. Martin, Steven Bradley, and Frank Mike, including subscriber
identification, incoming/outgoing calls, photographs, Instagram and text messages,
and cell tower information. Through the use of cell phone tower information in
conjunction with static license plate readers and credit card statements, Vaught was
able to verify the February 2014 travel information, including pertinent time
frames, and the location of evidence-burn areas and body disposal. Moreover,
Vaught supplied exhaustive testimony concerning the cell phone calls made by and
between defendant, Martin, Bradley and Mike around the time of the murders.
Vaught interviewed Ms. Martin three times in January 2015, and Martin
showed Vaught the locations where defendant burned or destroyed evidence, in
Manchac and Baton Rouge, and where the bodies had been disposed near
Chalmette.
ERRORS PATENT
Our review of the record revealed no errors patent.
LAW AND ANALYSIS
Defendant asserts three assignments of error: (1) the trial court erred in
denying defendant’s motion for post-verdict judgment of acquittal based on the
insufficiency of evidence presented by the State; (2) this Court erred when it
reversed the trial court’s decision to grant a mistrial due to Brittany Martin’s
reference to defendant’s prior conviction for manslaughter, in violation of the trial
court’s order; and (3) the non-unanimous “guilty” verdicts are unconstitutional,
and defendant is entitled to have his case retried. We address each of these
assignments of error in turn.
ASSIGNMENT OF ERROR NUMBER 1
15
In his first assignment of error, the defendant argues that the trial court erred
in denying his motion for post-verdict judgment of acquittal based on the
insufficiency of evidence presented by the State. Defendant complains that his
convictions were based solely upon the testimony of criminals, drug dealers, and
the woman he scorned.
A post-verdict judgment of acquittal “shall be granted only if the court finds
that the evidence, viewed in a light most favorable to the state, does not reasonably
permit a finding of guilty.” La. C.Cr.P. art. 821(B); State v. Thibodeaux, 98-1673,
p. 12 (La. 9/8/99), 750 So. 2d 916, 926; State v. Simmons, 2007-0741, p. 15 (La.
App. 4 Cir. 4/16/08), 983 So. 2d 200, 208 (“A motion for post verdict judgment of
acquittal raises the question of the sufficiency of the evidence.”). This standard “is
similar to the standard for appellate review of the sufficiency of evidence to
support a defendant’s conviction that the court must determine whether, viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the defendant guilty beyond a reasonable doubt.” State v.
Williams, 2004-1377, pp. 7-8 (La. App. 4 Cir. 12/1/04), 891 So. 2d 26, 30.
This Court reiterated the applicable standard of review for sufficiency of the
evidence challenges in State v. Rapp, 2014-0633, pp. 5-6 (La. App. 4 Cir. 2/18/15),
161 So. 3d 103, 108 (quoting State v. Marcantel, 2000-1629, p. 8 (La. 4/3/02), 815
So. 2d 50, 55):
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, a rational trier of fact could conclude that
the State proved the essential elements of the crime
beyond a reasonable doubt. See LSA–C.Cr.P. art.
821; State v. Hampton, 98-0331, p. 13 (La. 4/23/99), 750
So. 2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct.
504, 145 L.Ed.2d 390 (1999). Pursuant to Jackson v.
16
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979), the standard of review is an objective standard
for testing the overall evidence, both direct and
circumstantial, for reasonable doubt. Louisiana Revised
Statute 15:438 provides that the fact finder, when
analyzing circumstantial evidence, must be satisfied the
overall evidence excludes every reasonable hypothesis of
innocence. State v. Mitchell, 99-3342, p. 7 (La.
10/17/00), 772 So. 2d 78, 83.
Additionally, “[i]n the absence of internal contradiction or irreconcilable
conflict with the physical evidence, one witness’s testimony, if believed by the
trier of fact, is sufficient to support a factual conclusion.” State v. Williams, 2011-
0414 p. 18 (La. App. 4 Cir. 2/29/12); 85 So. 3d 759, 771. “Under the Jackson [v.
Virginia] standard, the rational credibility determinations of the trier of fact are not
to be second guessed by a reviewing court” because “a factfinder’s credibility
determination is entitled to great weight and should not be disturbed unless it is
contrary to the evidence.” Id.
Two of the four counts upon which defendant was convicted were for
second-degree murder. Under La. R.S. 14:30.1, second-degree murder is defined as
the killing of a human being “when the offender has a specific intent to kill or to
inflict great bodily harm.” To prove second degree murder, “the state
must prove the killing of a human being either with specific intent or when the
offender is engaged in one of the listed crimes.” State v. White, 2014-0397, p. 17
(La. App. 4 Cir. 7/29/15), 174 So. 3d 177, 189. “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).
The State’s evidence in this case amply supports defendant’s conviction on
two counts of second degree murder. Brittany Martin testified that she saw
17
Kenneth Joseph enter the recording studio with the defendant, and a few moments
later she witnessed defendant lure Lakeitha Joseph into the studio. Martin testified
that defendant began strangling Lakeitha Joseph in Martin’s presence. Moments
later, Martin accompanied defendant to the Kenner Walmart where he purchased
kettlebells, rope, gloves and cleaning products. Martin returned to the recording
studio with defendant and observed Amir “Blue” Ybarra and Steven “Future”
Bradley place two large objects in the back of the victims’ van. Martin testified
that the objects were each the size of a human body. Martin then accompanied
defendant to his residence where he changed clothes and bagged the clothing he
had been wearing. Ybarra and Bradley drove the van, followed by Martin and
defendant in Martin’s car, to a deserted area in New Orleans East where they
tossed the victims’ bodies in the waterway.
Donald Silva also testified that Steven Bradley had confessed his
participation in the murders, corroborating Brittany Martin’s testimony that
defendant had choked Lakeitha Joseph and that he had beaten the victims with bar
stools.
The medical evidence presented at trial established that the victims died by
drowning. The forensic pathologists testified about rope binding the bodies at the
time they were retrieved from the Intracoastal Waterway with a kettlebell attached
to Mr. Joseph’s ankles.
The testimony and evidence offered at trial demonstrates that defendant
possessed the specific intent to kill the victims and, when viewed in the light most
favorable to the prosecution, establishes that a rational factfinder could have
determined that defendant was guilty on two counts of second-degree murder.
18
Defendant was also found guilty of La. R.S. 14:130.1, [o]bstruction of
justice, which provides, in pertinent part:
A. The crime of obstruction of justice is any of the
following when committed with the knowledge that
such act has, reasonably may, or will affect an actual
or potential present, past, or future criminal
proceeding as hereinafter described:
(1) Tampering with evidence with the specific intent
of distorting the results of any criminal
investigation or proceeding which may reasonably
prove relevant to a criminal investigation or
proceeding. Tampering with evidence shall include
the intentional alteration, movement, removal, or
addition of any object or substance either:
(a) At the location of any incident which the
perpetrator knows or has good reason to believe
will be the subject of any investigation by state,
local, or U.S. law enforcement officers; ...
The knowledge requirement of La. R.S. 14:130.1(A) is met if the perpetrator
merely knows that an act “reasonably may” affect a “potential” or “future”
criminal proceeding. State v. Jones, 2007-1052, p. 9 (La. 6/3/08), 983 So. 2d 95,
101. “The defendant must also have tampered with evidence ‘with the specific
intent of distorting the results’ of a criminal investigation.” State v. Powell, 2015-
0218, p. 11 (La. App. 4 Cir. 10/28/15), 179 So. 3d 721, 728 (quoting La. R.S.
14:130.1(A)(1)). However, “nothing beyond ‘movement’ of the evidence is
required by the statute if accompanied by the requisite intent and knowledge.” Id.
(citing Jones, 2007-1052, p. 10 (La.6/3/08), 983 So. 2d at 101).
Some of defendant’s efforts to obstruct justice and destroy evidence include:
1) binding and weighting the victims’ bodies with rope and kettlebells to prevent
discovery; 2) burning the clothes he wore at the time of the killings, and
purchasing additional clothing and cleaning products; 3) cleaning the interior of the
19
victims’ van and disposing of its contents; 4) having his hands manicured to
destroy trace and/or blood evidence; 5) enlisting Marvin Buendia’s assistance in
purchasing two “substitute” kettlebells, and 6) instructing Brittany Martin to lie to
the police and say that she used the replacement kettlebells for exercise. This
evidence sufficiently establishes a basis upon which the factfinder could
reasonably determine that defendant was guilty of obstructing justice in violation
of La. R.S. 14:130.1.
Regarding defendant’s challenge to the sufficiency of the evidence for the
charge of conspiracy to obstruct justice, criminal conspiracy under La. R.S. 14:26
requires an agreement or combination of two or more persons for the specific
purpose of committing any crime, an act in furtherance of the object of the
agreement or combination, and specific intent.
Accepting Brittany Martin’s testimony as true, a rational juror could have
concluded that the State proved beyond a reasonable doubt a conspiracy to commit
obstruction of justice among defendant, Steven Bradley, and Amir Ybarra, for
acting in concert to dispose of the victims’ bodies and the van. The jury also could
have found conspiracy to obstruct justice between defendant and Martin in
conjunction with the Walmart purchases and the burning of defendant’s clothes.
Although defendant argues that there is no physical evidence linking him to
these crimes and further suggests that much of the testimony against him came
from criminals or from the woman he scorned, video surveillance captures
defendant and Ms. Martin purchasing kettlebells like those tethered to the victims’
bodies in the water, and cleaning products, some of which were recovered from the
recording studio. Moreover, defense counsel thoroughly cross-examined the
State’s witnesses to expose their criminal backgrounds and any motives for
20
blaming defendant for these crimes. Despite the unfavorable light that defense
counsel cast on the State’s witnesses, the jury accepted their testimony as true and
convicted defendant on all four counts.
“[I]t is not the function of the appellate court to reassess the credibility of
witnesses or to reweigh the evidence; the reviewing court’s function is to
determine the constitutional sufficiency of the evidence presented.” State v. Scott,
2012-1603, p. 11 (La. App. 4 Cir. 12/23/13), 131 So. 3d 501, 508 (citing State v.
Johnson, 619 So. 2d 1102, 1109 (La. App. 4
th Cir. 1993)). “Credibility
determinations, as well as the weight to be attributed to the evidence, are soundly
within the province of the trier of fact.” Id. (citing State v. Brumfield, 93-2404 (La.
App. 4 Cir. 6/15/94), 639 So. 2d 312, 316). “Moreover, conflicting testimony as to
factual matters is a question of weight of the evidence, not sufficiency. Such a
determination rests solely with the trier of fact, who may accept or reject, in whole
or in part, the testimony of any witness.” Id. (citing State v. Jones, 537 So. 2d
1244, 1249 (La. App. 4th Cir. 1989)). “Absent internal contradiction or
irreconcilable conflict with the physical evidence, a single witness’s testimony,
if believed by the fact finder, is sufficient to support a factual conclusion.” State v.
De Gruy, 2016-0891, p. 11 (La. App. 4 Cir. 4/5/17), 215 So. 3d 723, 729-730
(citing State v. Marshall, 2004-3139, p. 9 (La. 11/29/06), 943 So. 2d 362, 369).
Having reviewed the substantial amount of evidence and testimony in this
case, we find it sufficient to support defendant’s conviction on all four counts.
Viewing the evidence in a light most favorable to the State, the trial court therefore
correctly denied defendant’s request for a post-verdict judgment of acquittal.
Defendant’s first assignment of error has no merit.
ASSIGNMENT OF ERROR NUMBER 2
21
During trial, counsel for the defense elicited a statement from Brittany
Martin that referenced another crime for which defendant had been jailed. The
exchange occurred as follows:
Q. … So that day, you put your hand on the Bible, court
reporter says, do you swear to tell the whole truth and
nothing but the truth?
A. Yes.
Q. Because perjury, apparently doesn’t bother you, does
it?
A. Yes, it does.
Q. Didn’t that day, did it?
A. Because Horatio told me to say that I use [kettlebells]
to exercise, or pretty much I was a loose end, which
means I’m going to be killed. I have every reason to fear
a person who’s been in jail before for manslaughter.
The trial court admonished the jury to “disregard the last comment.” Defense
counsel moved for a mistrial, which the trial court granted. The State sought
supervisory review, and this Court reversed, finding that the trial court lacked
authority to grant a mistrial under either La. C.Cr.P. art. 775 or La. C.Cr.P. art.
771. State v. Johnson, 2017-0717, p. 6 (La. App. 4 Cir. 8/27/17), 226 So. 3d 1178,
1182.
Defendant contends that this Court erred when it reversed the trial court’s
grant of a mistrial, arguing that the trial court was in the best position to determine
whether admonishing the jury was sufficient to guarantee defendant a fair trial.
Defendant suggests the trial court did not abuse its discretion in declaring a
mistrial, thus, this Court should not have overturned that ruling.
22
Defendant’s second assignment of error invites this Court to reconsider its
prior opinion, but that opinion is now the law of the case.
9
“Under the law-of-thecase doctrine, an appellate court will not reverse its pretrial determinations unless
the defendant presents new evidence tending to show that the decision was patently
erroneous and produced an unjust result.” State v. Garrison, 2016-0257, p. 6 (La.
App. 4 Cir. 3/29/17), 215 So. 3d 333, 337-38, writ denied, 2017-0695 (La.
11/5/18), 255 So. 3d 1055 (quoting State v. Golden, 2011-0735, p. 13 (La.App. 4
Cir. 5/23/12), 95 So.3d 522, 531). Defendant has failed to set forth any additional
credible evidence demonstrating the prejudice that he allegedly suffered as a result
of Ms. Martin’s statement. Finding no error in our prior ruling, we decline to
revisit it.
Finally, we have already established that the State introduced substantial
evidence of defendant’s guilt on all four counts, and any alleged error as a result of
Ms. Martin’s statement regarding defendant’s prior conviction is harmless. See
9
In State v. McElveen, 2010-0172, p. 24 n.8 (La. App. 4 Cir. 9/28/11), 73 So. 3d 1033, 1054 n.8,
this Court explained:
The “law of the case” doctrine applies to all prior rulings or
decisions of an appellate court or the Supreme Court in the same
case, not merely those arising from the full appeal
process. See Pumphrey v. City of New Orleans, 2005–0979
(La.4/4/06), 925 So. 2d 1202. This policy applies to parties who
were parties to the case when the former decision was rendered
and who thus had their day in court. The reasons for the “law of
the case” doctrine is to avoid relitigation of the same issue; to
promote consistency of result in the same litigation; and to
promote efficiency and fairness to both parties by affording a
single opportunity for the argument and decision of the matter at
issue. Day v. Campbell–Grosjean Roofing and Sheet Metal
Corp., 260 La. 325, 256 So. 2d 105 (1971). This doctrine is not an
inflexible law; thus appellate courts are not absolutely bound
thereby and may exercise discretion in application of the doctrine.
It should not be applied where it would accomplish an obvious
injustice or where the former appellate decision was manifestly
erroneous.
23
State v. Lyles, 2003-0141, p. 11 (La. App. 5 Cir. 9/16/03), 858 So. 2d 35, 46 (“an
improper reference to other crimes is subject to harmless error review … [t]he test
for determining harmless error is whether the verdict actually rendered in that case
was surely unattributable to the error.”). This assignment of error has no merit.
ASSIGNMENT OF ERROR NUMBER 3
In a final assignment of error, defendant argues that because his convictions
for second degree murder and conspiracy to obstruct justice were rendered by nonunanimous jury verdicts, those convictions must be reversed because nonunanimous jury verdicts are unconstitutional. Defendant further contends that
because his convictions are not yet final, he is entitled to a new trial on those
counts pursuant to the 2018 amendment to Article I, § 17 of the Louisiana
Constitution and to La. C.Cr.P. art. 782, which now mandate unanimous guilty
verdicts for offenses punished by confinement at hard labor. The 2018
amendments to which defendant refers provide:
A criminal case in which the punishment may be capital
shall be tried before a jury of twelve persons, all of
whom must concur to render a verdict. A case for an
offense committed prior to January 1, 2019, in which the
punishment is necessarily confinement at hard labor
shall be tried before a jury of twelve persons, ten of
whom must concur to render a verdict. A case for an
offense committed on or after January 1, 2019, in which
the punishment is necessarily confinement at hard labor
shall be tried before a jury of twelve persons, all of whom
must concur to render a verdict.
Defendant acknowledges that the amendment provides that the change in the
law is prospective, but he nonetheless argues that under State v. Draughter, 2013-
0914 (La. 12/10/13), 130 So. 3d 855, 860, the amendment should be applied
retroactively.
24
In Draughter, the Louisiana Supreme Court reviewed the trial court’s
decision declaring unconstitutional La. R.S. 14:95.1, a statute that prohibits a felon
from possessing a firearm within a certain number of years after conviction. The
trial court’s determination was grounded in the Legislature’s recent amendment to
LA. CONST. art. I, § 11, providing that the right to keep and bear arms is a
fundamental right. To evaluate the constitutionality of La. R.S. 14:95.1, the Court
had to determine whether the older version of Article I, § 11, which invoked a
“reasonableness” test for evaluating restrictions on the right to bear arms, applied,
or whether the amended version, which required “strict scrutiny” when evaluating
any restrictions on the fundamental right, would apply. “[W]e conclude the right to
bear arms was always fundamental; the amendment to the constitutional provision
merely sought to ensure that the review standard of an alleged infringement of this
fundamental right was in keeping with the refinements made to constitutional
analysis which developed since our decision in [State v. Amos, 343 So.2d 166 (La.
1977)].” Draughter, 2013-0914 (La. 12/10/13), 130 So. 3d 855, 863.
The Louisiana Supreme Court concluded in Draughter that because the
defendant’s conviction was not final when an amendment to the Louisiana
Constitution became effective, the amendment, which changed the standard of
review that the Court must use in evaluating a restriction, had prospective effect,
but would be retroactively effective to defendant Draughter and all other cases still
pending on direct review or not yet final.
Here, the statutory amendments requiring unanimous jury verdicts do not
declare non-unanimous jury verdicts unconstitutional, nor do they modify the
standard of review that courts must apply when interpreting these statutes, as in
Draughter. We find Draughter distinguishable and note that if this Court were to
25
adopt defendant’s argument and apply Draughter to the present facts, we would be
usurping the function of the Legislature, which has clearly stated when the
requirements for conviction by a unanimous jury verdict shall begin.
In addition, both the Louisiana Supreme Court and the United States
Supreme Court have held that a statute permitting non-unanimous jury verdicts in
non-capital cases is constitutional. State v. Bertrand, 08-2215, 08-2311, pp. 6-8
(La. 3/17/09), 6 So. 3d 738, 742-43; Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct.
1628, 32 L. Ed. 2d 184 (1972). The 2018 statutory amendments at issue here do
not undermine those holdings.
Finally, Louisiana follows the general rule that a constitutional provision or
amendment has prospective effect only, unless a contrary intention is clearly
expressed. State v. Cousan, 1994-2503, p. 17 (La.11/25/96); 684 So. 2d 382, 392-
393. But we need not defer to the general rule, because LA. CONST. art. I, §17 and
La. C.Cr.P. art. 782, as amended in 2018 to require unanimous jury verdicts,
explicitly provide that the amendment is applicable to offenses that occur on or
after January 1, 2019. This language could not be more clear.
There can be no retroactive application of these amendments, and
defendant’s convictions by non-unanimous jury verdict are not unconstitutional.
Defendant’s third assignment of error has no merit.
Outcome: For the reasons assigned above, Horatio Johnson’s convictions and
sentences are affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: