State v. Hogg

361 So.3d 577

STATE of Louisiana Appellee, v. Jonathan HOGG Appellant.

No. 54,970-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment Rendered May 3, 2023.

RICHARD L. FEWELL, JR., APLC By: Richard L. Fewell, Jr., LAW OFFICE OF RONALD K. COOK By: Ronald Keith Cook, West Monroe, Counsel for Appellant

JEFFREY M. LANDRY, Attorney General, MADELEINE SLAUGHTER-YOUNG, MICHELLE ANDERSON THOMPSON, CHRISTOPHER N. WALTERS, Assistant Attorneys General, Counsel for Appellee

Before PITMAN, THOMPSON, and ROBINSON, JJ.

ROBINSON, J.

In July 2019, the defendant, Jonathan Hogg ("Hogg"), was indicted on charges of: (1) one count of second degree murder; (2) one count of attempted second degree murder; (3) one count of possession of a Schedule I drug with intent to distribute (marijuana); and (4) one count of possession of a Schedule II drug with intent to distribute (cocaine).

Following a jury trial, on May 25, 2021, Hogg was convicted by responsive verdict of: (1) one count of manslaughter in violation of La. R.S. 14:31 ; (2) one count of aggravated battery in violation of La. R.S. 14:34 ; (3) one count of possession of marijuana in violation of La. R.S. 40:966(C) ; and (4) one count of attempted possession with intent to distribute a controlled dangerous substance – Schedule II – (cocaine) in violation of La. R.S. 40:967(A).

Following the trial and verdict, Hogg filed a motion for judgment notwithstanding the verdict, a motion for full review by the court of grand jury testimony, and a motion for new trial. The trial court denied Hogg's motion for judgment notwithstanding the verdict. The trial court granted in-camera review of the subject grand jury testimony and ultimately ordered that a transcript of one of the witnesses’ testimony be provided to defendant for purposes of sentencing only. Hogg's motion for a new trial was denied on the basis that the witness's grand jury testimony did not amount to undisclosed Brady material as to Hogg's guilt .

On October 7, 2021, Hogg was sentenced to: (1) 20 years at hard labor for manslaughter; (2) 5 years at hard labor for aggravated battery; (3) a fine of $150 for possession of marijuana; and (4) 5 years at hard labor for attempted possession with intent to distribute cocaine; all sentences to run concurrently, with Hogg receiving credit for time served.

On November 2, 2021, Hogg filed a motion to reconsider sentence, claiming the sentence was excessive, which the trial court denied on February 7, 2022.

Hogg now appeals both the trial court's denial of the motion for judgment notwithstanding the verdict, as well as its denial of the motion to reconsider sentence.

We find the trial court properly denied Hogg's motion for judgment notwithstanding the verdict, motion for new trial, and motion to reconsider sentence. For the following reasons, Hogg's convictions and sentences are hereby affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of May 24, 2019, Hogg, along with Zachary Filhiol ("Filhiol") and Damian Haddox-Barragan ("Haddox-Barragan"), were at Hogg's residence in a Monroe neighborhood playing video games. According to statements made by Filhiol and Haddox-Barragan to the Ouachita Parish Sheriff's Office ("OPSO"), Jon Mark Miletello ("Miletello") sent a text message to Hogg about going to Hogg's home with a few friends; however, several additional, uninvited people accompanied the group. The entire group arrived at the Hogg home in the early morning hours of May 25, 2019, at approximately 3:00 a.m. Hogg, Filhiol, and Haddox-Barragan stated in police interviews that the group of guests were acting anxious and nervous, then suddenly attacked the three men and began fighting. There were allegations from both sides of the confrontation regarding who initiated the fight and for what reason, but evidence indicated that drugs were involved and that Hogg was owed money by Miletello and Ashton McSwain ("Ashton") for Hogg's previous advance of drugs.

At some point during the fight, Filhiol drew a gun that Hogg later secured and discharged, striking the two victims, Miletello and D'Veil Freeman, Jr. ("Freeman"), as they were exiting the home. Hogg claims he fired in self-defense. Miletello succumbed to his injuries, and Freeman required emergency surgery. Hogg, Filhiol, and Haddox-Barragan all suffered bruises and abrasions from the attack, but no serious injuries requiring medical care. Neither Hogg, Filhiol, nor Haddox-Barragan called 911; rather, they immediately left Hogg's residence and went to Filhiol's home, approximately 15-20 minutes away. They sought advice from Filhiol's mother on how to handle the situation, who urged that they return to the scene. Hogg called his mother to instruct her to call 911 instead, and only called the sheriff's office as they were returning to the scene. They were arrested upon arrival. The group that had accompanied Miletello also did not call 911, but did bring Freeman to the hospital for medical treatment.

Witness Statements and Trial Testimony

Hogg, Filhiol, and Haddox-Barragan were all interviewed by police shortly after the incident. Filhiol and Haddox-Barragan also testified at grand jury proceedings. Filhiol was the only one of the three to testify at trial.

Hogg provided his account of the shooting in his police interview shortly after the incident. He stated that six to seven people were with the group that came to the house. During the fight, Miletello was swinging at him and Aaron McSwain ("Aaron") was coming at him when he ended up in a headlock. Filhiol's backpack had fallen over at that time and a gun fell out. Hogg also stated that someone with a mask and stick came in during the fight and that's when the gun was pulled. Some guys were trying to get the gun from Filhiol and it got knocked out of his hands, then Hogg grabbed it. Hogg said he made sure everyone saw the gun. After seeing the gun, everyone started running, except Miletello, who was still around Filhiol at the time. Hogg shot Miletello after that. He stated that he "shot low" only to scare them away.

Filhiol gave his account of the evening in his police interview, which was consistent with his trial testimony that provided additional details of the circumstances surrounding the shooting. Filhiol testified that "initially 7" people came to the house, and that only Hogg and Haddox-Barragan were jumped at first by a number of "at least 2 per person" while two other men stood over him and told him not to move. Filhiol further testified that neither he, Hogg, nor Haddox-Barragan did anything to provoke the fight. Filhiol stated that he soon lost sight of Haddox-Barragan once the fight started because Haddox-Barragan left the room. Filhiol then pulled his gun out of his backpack next to him and told the two men guarding him several times to run off, but was soon hit from behind by other men trying to wrestle the loaded gun away. He said a person with a mask and broomstick came in once the gun was brandished. During that struggle, the magazine fell out and he was pulled into the bedroom. He testified that at one point during the fight, there were four men attacking him. There were still people fighting him and someone was about to hit him with an office chair when he tried to shoot the gun, but it didn't go off. When he tried to get the firing pin back, he ejected the round in the chamber. He then lost the gun when he went to swing on someone, and it hit the door of the bedroom. After Filhiol threw the gun, he saw Hogg in the corner of the rec room being choked by someone. He ran into the room and punched the man choking Hogg, then the man attacked him. He testified he "believed" he was hit with a pipe, but was not sure. Filhiol was fighting with that person for a short period of time in the rec room when Hogg got the gun. At the time Hogg started shooting, Filhiol had swung at the man who had just attacked him and the man was trying to tackle him, but started running when the shots were fired. People were still fighting right before the shots were fired, but they immediately ran off once the firing started. Everyone was running out the garage door when Miletello was shot.

Haddox-Barragan's police interview corroborated Filhiol's testimony. He stated that eight people total came to the house, including Miletello and someone he named as "Ashton," whose physical appearance he described, although he didn't know his last name. There were five men who originally came in, then another three later. He also mentioned a person walking in late with a mask and broomstick. During the fighting, he got pushed from the rec room into the bedroom and could not see what was happening. He also stated that he left the room where the fighting started and later heard gunshots, and was told by Filhiol and Hogg about the gun being knocked out of Filhiol's hand. Haddox-Barragan said he only knew that Hogg shot the gun because Hogg told him he did.

Other police interviews were conducted with Aaron, Ashton, Dakota Stewart ("Stewart"), and Frederick Britton ("Britton"). Freeman was interviewed at the hospital and later testified. Ashton Waffer ("Waffer") and Stewart took the stand at trial, but were uncooperative and ultimately did not testify as to the events.

According to the interviews and testimony, there were a total of seven people in the group that showed up at Hogg's home that night: Miletello, Freeman, Aaron, Ashton, Stewart, Britton, and Waffer. Waffer was not initially mentioned as present, but Freeman's family stated in a police interview that Freeman and Waffer had gone together to the bar that evening. Aaron also stated in his interview that Ashton left the scene with Freeman in a vehicle borrowed from Waffer, which was confirmed to be owned by Waffer's mother. Further, Freeman testified that Waffer was at the scene, but that he had stayed in the car, and that Waffer drove him to the hospital.

Aaron stated that Hogg had contacted them after the group left the...