State v. Seymore

305 So.3d 1038

STATE of Louisiana

v.Frederick SEYMORE, Jr.

NO. 20-KA-129

Court of Appeal of Louisiana, Fifth Circuit.

November 04, 2020

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Bridget A. Dinvaut, William R. Dieters

COUNSEL FOR DEFENDANT/APPELLANT, FREDERICK SEYMORE, JR., Prentice L. White

Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

LILJEBERG, J.

Defendant appeals his conviction and sentence for second degree murder, challenging the sufficiency of the evidence and arguing that the non-unanimous jury verdict was unconstitutional. Considering the holding of Ramos v. Louisiana , infra , we vacate defendant's conviction and sentence, and we remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 10, 2016, a St. John the Baptist Parish Grand Jury returned an indictment charging defendant, Frederick Seymore Jr., with the second degree murder of Tory Horton, in violation of La. R.S. 14:30.1. Defendant was arraigned and pleaded not guilty. Trial commenced before a twelve-person jury on June 24, 2019. On June 27, 2019, the jury returned a verdict of guilty as charged. The verdict was not unanimous. On January 6, 2020, the trial court sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Immediately after sentencing, defendant filed a motion for appeal, which the trial court granted.

At trial, Sergeant Joshua Gilboy of the St. John the Baptist Parish Sheriff's Office testified that on August 5, 2016, he was with Sergeant Michael Gill when they were called to the LaPlace Discount gas station and store ("LaPlace Discount") located at 820 Airline Highway in LaPlace, Louisiana, in reference to a shooting. When they arrived at the store, Sergeant Gilboy observed blood on the floor and saw the victim, later identified as Tory Horton, lying in the hallway near the manager's office. Sergeant Gilboy testified that Sergeant Gill performed CPR on the victim while he secured the scene. After members of the fire department arrived to assist with life-saving services, Sergeant Gilboy and Sergeant Gill began searching for a "red sedan" in relation to the shooting while other officers canvassed the scene for witnesses.¹

The victim was initially transported to River Parish Hospital, where it was decided that he would be transferred to University Hospital. During the ambulance transport to University Hospital, the victim had medical complications and died while returning to River Parish Hospital.² Tory was sixteen years old at the time of his death.

During the course of the investigation, officers were provided with two names, "Gator" and "Bruce," and they were able to locate Bruce Butler. At trial, Bruce Butler testified that he witnessed defendant shoot the victim on August 5, 2016, and he identified defendant in open court. He explained that he knew defendant from school, and they would "hang out" regularly. He confirmed that defendant's nickname was "Gator."

Mr. Butler testified that defendant picked him up in a red car on the day of the shooting. They went to Walgreens to conduct a drug exchange but relocated to LaPlace Discount to complete the transaction. After exiting the vehicle, Mr. Butler entered another car to finish the drug exchange and returned to the passenger seat of defendant's car. Mr. Butler stated that his window was rolled down because it was hot outside. He testified that "the little boy came up to the car" after defendant called him over. According to Mr. Butler, defendant reached across him and shot the victim, who was standing about three feet from the open, passenger window. Mr. Butler denied knowing that defendant had a gun or that he planned to shoot Tory.

Mr. Butler testified that defendant drove away from the scene after the shooting, and Mr. Butler exited the vehicle in front of Cambridge Drive because he had to go to work. Mr. Butler testified that he and defendant did not speak after the victim was shot. He went to his house after the shooting and the police arrived about five hours later. Mr. Butler admitted that he tried to leave his home when the police arrived. During the search of his home, bullets were found in his closet, but Mr. Butler testified they were not used on August 5, 2016. Mr. Butler responded that he "did not know" in response to questioning about why he showered and washed his hands, and "got rid of his clothing" before the police arrived.

Mr. Butler testified that he was arrested in connection with the victim's murder, but the charges against him were dismissed. He denied any promises were made in exchange for his testimony. Mr. Butler testified that he spoke with detectives several times after the shooting, and he admitted that he lied during questioning. Mr. Butler also admitted that he had prior criminal convictions.

Detective Brandon Barlow was the lead investigator in this case. He testified that he reviewed photographs taken at the scene and spoke with witnesses on the scene who indicated they did not observe the actual shooting. Detective Barlow testified that he reviewed the August 5, 2016 surveillance video footage obtained from LaPlace Discount. The detective noted the victim entering the scene around 3:30 p.m. on August 5, 2016, and he identified the individual as Tory Horton. He asserted that the video showed the victim entering and exiting the store and "hanging out" in the store's parking lot before the shooting. Detective Barlow described the victim walking away from the store and defendant's red vehicle, which was registered to defendant's mother, coming to a stop alongside him. He asserted that defendant's vehicle then accelerated from the parking lot and Tory started running toward the store. The detective saw Tory on the video in the front area of the store with a "large collection of blood" on his T-shirt. Detective Barlow also confirmed that he saw Mr. Butler, wearing dark blue and white clothes, exiting defendant's vehicle in the footage. The detective stated that a search of Mr. Butler's residence on Cambridge Drive was conducted, and his clothing from that day was collected.

Detective Barlow testified that crime cameras set up throughout the parish captured defendant's vehicle's movements from earlier on August 5, 2016. The cameras revealed the vehicle traveling to the Walgreens parking lot but did not capture its relocation to LaPlace Discount. He explained that after the shooting, the vehicle took a right from the LaPlace Discount parking lot onto Cambridge Drive and traveled north. Based on this information, a "BOLO" was established for the vehicle and shared with the other departments within the area.³ The vehicle was located by the Jefferson Parish Sheriff's Office after receiving a "suspicious vehicle call" at an apartment complex. Detective Barlow identified photographs taken of the vehicle at the apartment complex, and he stated that they obtained and executed a search warrant for the vehicle. No firearms or casings, proof of insurance, or registration were recovered from the vehicle; however, a tax form containing defendant's name was found in the car.

Detective Barlow further testified that the police obtained surveillance video footage from near the apartment complex, and he reviewed the footage. On the video, he observed the vehicle, a red Toyota Corolla, pull into the apartment complex's parking lot on August 5, 2016, at approximately 6:00 p.m. Detective Barlow testified that defendant exited the vehicle, turned to the driver's door, and wiped the area with his shirt. The detective noted a different black male in the video return to the vehicle later that night at approximately 7:40 p.m. and enter the driver-side door.

Detective Barlow testified that video footage from two days after the shooting, August 7, 2016, revealed that two individuals returned to the vehicle and removed several items, including the license plate. The individuals were later identified as defendant's cousins, Travis Stewart and Jarell Vanzant.

Detective Barlow testified that he obtained an arrest warrant for defendant, and he was located in Houston, Texas. He testified that he spoke with defendant after his arrest, and defendant gave a statement after he was advised of and waived his rights. The detective stated that defendant admitted he knew the victim's brother, Cory Horton. Defendant informed Detective Barlow that Cory, whom he knew as "Lil Co," had previously broken into his vehicle to steal narcotics but stole a book bag containing a PlayStation 4 instead. According to the detective, defendant indicated that he reported the incident to the police. Deputy Galen Joseph testified and confirmed that defendant reported a vehicle burglary on April 21, 2016, and defendant informed him that the perpetrator was "Lil Co."

Detective Barlow explained that during his statement, defendant mentioned picking up Mr. Butler from his residence on August 5, 2016. He stated that he brought Mr. Butler to Walgreens to complete a drug transaction and then they relocated to LaPlace Discount. Defendant indicated that Mr. Butler entered the store to purchase cigars, which the surveillance video footage did not support. Defendant told the detective that he had received a call from Mr. Butler earlier that day, and Mr. Butler said he had been robbed at his residence by two individuals who fled with marijuana. Detective Barlow testified that, according to defendant, Mr. Butler rolled the window down and said, "that's one of them" before shooting Tory.⁴

According to Detective Barlow, defendant told him that after Mr. Butler left his vehicle, he went to a gas station in Kenner. Defendant said that he left his car running while he went inside the gas station to call his father, and his car was missing upon his return. Defendant told the detective that he did not report the missing vehicle and instead gathered money to purchase a ticket to Houston....