STATE OF LOUISIANA v. JEVON NOAH FIGARO (2025)

FACTS

On the evening of January 23, 2021, the defendant, Jevon Noah Figaro, was picked up by Antonio Livings in Opelousas. The defendant sat in the back seat, as the co-defendant, Marcus Chenier, was already in the front passenger seat. The defendant and Chenier were both armed with AR-style weapons. Chenier had a shorter version that Livings referred to as a “pistol,” while the defendant carried a full-length AR-15 rifle.

As they traveled on Convent Street, Livings saw a man walking alone in the area. Chenier instructed Livings to turn onto North Market Street and then had Livings drop them off. Both passengers exited the vehicle with their firearms. Livings drove away, but when he stopped at a nearby stop sign, he heard multiple gunshots. He left the area quickly.

Livings went to his grandmother's house but soon received a phone call from his cousin, John Lamb, Jr., who had heard gunshots and wanted to leave the area. Once Livings had picked up Lamb, the latter received a call from Chenier, who wanted to meet in Lawtell. The men drove to an apartment in Lawtell where they met Chenier and the defendant. The defendant and Chenier still had their weapons, and both were excited and recounted their shooting of the victim. The men were packing, and they said they would be flying to Las Vegas. A female who Livings did not know secured the tickets for them.

Meanwhile, Lieutenant Brody Ortego of the Opelousas Police Department was out on patrol and heard gunfire. This led to him finding the victim, Kelly Guidry, prone and bleeding, but still alive. Guidry told Lt. Ortego that the men who shot him ran towards an area known as “the Oil Mill.” Ambulance personnel transported the victim to the hospital, but he eventually succumbed to his gunshot wounds. Other police officers were called to the scene, and the investigation began.

On July 21, 2001, a St. Landry Parish grand jury indicted the defendant and Chenier for the second degree murder of Kelly Guidry, a violation of La.R.S. 14:30.1. The defendant filed a motion to sever his trial from Chenier's trial, which the district court heard and denied on September 12, 2023. The district court addressed other pretrial motions on October 30, 2023, and April 14, 2024.

The parties selected a jury on April 15 and 16, 2024. The jury began hearing evidence on April 17 and returned guilty verdicts for both the defendant and his co-defendant on April 23.

On May 3, 2025, the district court sentenced the defendant to life imprisonment without benefit of parole, probation, or suspension of sentence.

The defendant now appeals, asserting three assignments of error through counsel and another assignment of error pro se.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENTS OF ERROR

1. The evidence at trial was insufficient to convict Mr. Figaro of second degree murder beyond a reasonable doubt where the jury could not rationally conclude the State's star witness was credible, and the investigation was incomplete.

2. The trial court erred when it denied Mr. Figaro's motion to sever his trial where his defenses were antagonistic to those of Mr. Chenier.

3. The trial court erred when it declined to include a special jury instruction about an incentivized witness.

PRO SE ASSIGNMENT OF ERROR

Mr. Figaro argues he was denied his right to a public trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, §§ 13 and 16 of the Constitution of the State of Louisiana.

ASSIGNMENT OF ERROR NUMBER ONE

In his first counsel-filed assignment of error, the defendant contends the evidence adduced against him at trial was insufficient to support his conviction for second degree murder. He cites language from this court to support his argument:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

The state had to demonstrate the elements of the crime beyond a reasonable doubt. The elements of second degree murder are explained in La.R.S. 14:30.1(A)(1): “Second degree murder is the killing of a human being ․ [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]” In the present case, it is not contested that two men intentionally shot the victim to death. The sole issue is the identity of the shooters, and the sole witness who tied the defendant to the murder was Livings.

The defendant notes there were no eyewitnesses. This is true, but it is not the only factor relevant to the issue before us. Also, the defendant observes that Livings remembered few street names but was able to identify the location where he said he dropped off the defendant and Chenier. The failure to know or remember street names is not fatal to the state's case or to the witness's credibility. Pursuant to Kennerson, it was a matter for the jury.

Also, although Livings apparently became alarmed when he heard the gunshots, he went to Lawtell with his cousin to again meet the two armed men. The defendant suggests it is not clear why Livings and his cousin drove to Lawtell. However, Livings testified that he was invited to fly to Las Vegas with Chenier and the defendant.

The defendant also observes that Livings did not report the matter to law enforcement, dismissing the witness's testimony that he was afraid. Again, this matter was for the jury to assess.

Before the offense occurred, Livings and his cousin, Lamb, had crossed paths with the victim at the home of Jarrell Tucker (a.k.a. “Rail”), who sold synthetic marijuana. Initially, Livings did not tell police that Lamb had been with him. He only did so after he realized that the truth would come out eventually. Livings explained that he initially did not reveal his cousin's presence at Rail's because his cousin was not with him when he drove Chenier and the defendant near the crime scene. To the extent that this creates a discrepancy in Livings's account of events, it does not inherently invalidate his testimony.

The defendant's next argument does not directly address Livings's testimony but focuses on testimony by the lead investigator, Sergeant Brandon Harris of the Opelousas Police Department, that Livings told him that, while in Lawtell, Figaro had said that he [Figaro] “put a round in him [the victim] to shut him up.” The discrepancy asserted here is that multiple officers testified that the victim was still alive at the scene and able to speak. Again, there is little here to affect the jury's credibility assessment. It is clear that the victim suffered multiple gunshot wounds and eventually died from them. The defendant could well have fired an extra shot and simply failed in his attempt to shut the victim up.

The defendant further claims Livings lied or was at least evasive when counsel asked whether he had met with anyone in preparation for trial. Whether Livings lied, was being evasive, or was confused (as he indicated) involves credibility determination and was simply a matter for the jury to assess.

Through counsel, the defendant also complains that Livings hoped to gain in some way from testifying. As the defendant observes, Livings acknowledged as much while on the witness stand. However, the defendant was not able to demonstrate that Livings had any deal with the state in return for his testimony. It is neither unusual nor incredible that Livings hoped to gain something from his testimony. He is charged in the current offense and he has other serious charges as well. It seems understandable that he would hope for some sort of gain or relief after appearing as the star witness for the state in a murder trial.

The defendant notes that at one point, Livings, having already acknowledged being a smoker of synthetic marijuana (“mojo”), claimed that he did not smoke and drive. However, he later acknowledged he was high when he drove away from Rail's house with Chenier. The defendant also points to testimony that “mojo” is powerful and can alter a user's behavior.

It is unclear whether the defendant is suggesting that Livings was not credible because he lied about his smoking and driving habits or because the “mojo” could have altered his perception. Regarding the latter point, Livings testified that he was not so high that he could not properly perceive pertinent events as they happened. Further, the pertinent facts, as recounted above, are straightforward and, thus, did not require a high level of acuity to perceive. Regarding the more general point of whether Livings lied or merely misspoke about whether he drove while high or drove while actively smoking, this was another matter for the jury to assess.

As the defendant summarizes his argument in brief, he claims that Livings was high during the events at issue. As just noted, he failed to demonstrate that Livings was impaired to the point that his perception of ongoing events was distorted. The defendant also notes that Livings did not actually see him in the vehicle (as the defendant was seated behind Livings) and did not see him shoot the victim. The jury was made aware of these points, as Livings acknowledged them at trial. Regarding general credibility, it is worth noting that if Livings were to concoct a false story, he probably could have added more harmful, false details. For example, he could have claimed to have seen and identified the defendant in his car with little fear of contradiction.

The defendant alludes to a portion of cross-examination in which Livings denied having told anyone in jail about the facts of the case. As the defendant implies, this was contradictory, as it was clear from Livings's direct testimony that he had shared at least some pertinent information with his cellmate, Quanderrick Bradley. It was Bradley who first approached the authorities and told them that Livings had information about the murder. Given his earlier testimony mentioning Bradley, Livings had nothing to gain by lying about him during cross-examination. The jury could rationally have concluded that Livings was simply confused.

In short, the defendant's argument under this assignment of error is a simple attack against Livings's credibility. As stated in Kennerson, it is not the role of a reviewing court to second-guess the credibility determination made by the factfinder. As noted by the state, it was required to negate “any reasonable probability of misidentification,” since the defendant's identity was a critical issue, really the core issue, in the case. State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323 (2002). For the reasons already discussed above, the state met this requirement, as Livings was clear in his testimony regarding the defendant, and the jury exercised its prerogative of finding the witness credible. Further, the state correctly notes that one witness's testimony is sufficient to support a conviction. State v. George, 09-143 (La.App. 3 Cir 10/7/09), 19 So.3d 614 (citing State v. Hughes, 05-992 (La. 11/29/06), 943 So.2d 1047).

The state's case hinged upon the testimony of Livings, and defense counsel repeatedly sought to cast doubt on this witness's credibility. The jury apparently found Livings credible, as is its prerogative. Livings testified that he gave the defendant and Chenier a ride to an area near the crime scene. Both were armed. Livings saw the victim in the vicinity before he dropped them off, and he heard gunfire shortly thereafter. Later, he drove Lamb to an apartment in Lawtell, where the defendant and Chenier recounted the shooting and made plans to leave for Las Vegas.

Also, there was some corroboration of Livings's testimony. Deshawn Bocard testified that he gave Chenier a ride the day before the shooting; the latter was armed and stated he was going to “get” the victim's nephew or one of his associates. The victim's sister, Tanisha Aggison, testified that the victim's nephew and Chenier were enemies. Before dying, the victim indicated that he was shot by more than one person and that they fled on foot. As officers searched the area, witnesses notified them that two black males with guns were seen running in the vicinity. An officer who was nearby at the time heard two different weapons firing. Investigators found twenty bullet casings—some were .223-caliber and some were 5.56 mm.¹ Phone records showed that the defendant's phone was in Opelousas and later in Lawtell on the night at issue, then in Nevada. Airline records showed that the defendant and Chenier boarded a plane on a one-way trip to Las Vegas within twelve hours of the crime at issue.

There is no question the victim died of multiple gunshot wounds. Livings gave testimony that supported the conclusion that the defendant was one of the shooters. When viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

The assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second counsel-filed assignment of error, the defendant complains the district court erred by denying his motion to sever the trial. Louisiana Code of Criminal Procedure Article 494 states:

Two or more the defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such the defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

Regarding severance specifically, La.Code Crim.P. art. 704 states:

Jointly indicted defendants shall be tried jointly unless:

(1) The state elects to try them separately; or

(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.

Citing a case from this court, the state argues the trial court did not err in denying the motion to sever the trial:

The courts have permitted a severance to codefendants whose defenses are antagonistic to each other. State v. Williams, 416 So.2d 914 (La.1982). Defenses are antagonistic when each the defendant intends to exculpate himself by putting the blame for the offense on a codefendant. State v. Thibodeaux, 315 So.2d 769 (La.1975). However, a mere allegation that the defenses are antagonistic is insufficient because convincing evidence of actual antagonism must be presented to justify a severance. State v. Prudholm, 446 So.2d 729 (La.1984).

Denial of severance is not an abuse of discretion even though the codefendant's statement was inculpatory as to the defendant, where the thrust of the codefendant's defense was not to implicate the defendant as the perpetrator of the crime, but simply to deny his own involvement. State v. Brown, 527 So.2d 12 (La.App. 3 Cir.1988).

State v. Dickerson, 579 So.2d 472, 478–79 (La.App. 3 Cir.), writ granted in part on other grounds, 584 So.2d 1140 (La.1991).

The district court ruled as follows:

THE COURT:

Okay, let me go ahead and make my ruling on the Motion to Sever to give you a chance to object. I don't know if you want to take a writ or whatever. That's another reason why I wanted to kind of give you [a] timeframe so y'all would know.

Motion to Sever is going to be denied. My understanding of the law is that a mere allegation that a defense is antagonistic is not sufficient. The defendants must present convincing evidence of actual antagonistic defenses in order to justify a severance. See for example, State v. Jenkins, 340 So.2d[ ] 157 (La. 1976).

Additionally, if you have a situation where they're entirely blaming each other; one says it wasn't me at all, it's him, and the other one, I guess potentially, says it wasn't me, it's the other guy; that's one situation. You have to have evidence of that. Without any statements, confessions, inculpatory statements, or anything of the sort, I don't have any evidence of that in this particular case

If, on the other hand, it's just the defenses are that there are varying degrees of culpability, that alone is not sufficient to justify a severance. See for example, State v. Williams, 416 So.2d[ ] 914 (La. 1982).

For those reasons the Motion to Sever is denied.

MR. REGISTER:

We would just like to note our objection for the record, Your Honor.

THE COURT:

Note Mr. Figaro's objection for the record.

This ruling is entirely in keeping with the established jurisprudence. The hearing on the motion consisted entirely of argument, and the defendant did not allege antagonistic defenses. Defense counsel merely argued that evidence against his co-defendant might be imputed to him.

On appeal, the defendant notes the district court's language from the following exchange:

THE COURT:

The only thing speculative right now is I've asked you what your defense is going to be, and you've given me nothing. Okay? The law is, you've got to show me that for some reason their defenses may be antagonistic.

Speculating what a jury may think, that's the risk you take when you commit a crime. We don't know what the jury's going to think. It's why you face a jury of your peers, and it's why you face twelve of them so that it's not just one judge, or just one or two jurors; it's twelve of them. You run that risk.

The defendant briefly suggests the trial court had pre-judged the defendant's guilt. However, he does not pursue this argument and does not show how it exerts any gravity on the issue at hand. The defendant failed to allege antagonistic defenses or demonstrate any other prejudice.

In light of the controlling statutes and Dickerson, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third and final counsel-filed assignment of error, the defendant alleges an error in the jury instruction, as the district court did not give a special charge requested by his co-defendant's trial counsel.² The controlling legal provision is La.Code Crim.P. art. 807, which states, in pertinent part: “A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

The defendant observes that his co-defendant's counsel requested a special instruction that: “An incentivize[d] witness is defined as one who may be eligible for some benefit as a result of his assistance in the ․ prosecution of another person ․ corroboration is desirable, but it is not always indispensable. The jury may convict on his uncorroborated testimony.” The district court ruled as follows:

THE COURT:

All right. Left over from yesterday on the charge conference was what I'm going to call the great caution or incentivized witness charge. I took that under advisement. I'm going to issue my ruling on that now. Reasonable minds may disagree, and I respect that, but this is my ruling and I ask everyone to -- disagree with me but respect the ruling of the court and let's move on.

I read -- I had this issue before; I had researched it then. I reviewed the research last night. I'm not going to belabor the point. I think that the incentivized witness charge is not warranted in this case. I feel the jury instructions adequately instruct the jury that they can consider any witness's motive or reason to testify, including anything they may hope to gain by the defendant's conviction or acquittal. Beyond that, going to the language of State v. Prince, 211 So.3d[ ] 481, I think -- I think the charge is only to be used when a witness's testimony is uncorroborated. Here I believe there are some facts the jury could find corroborate Antonio Livings's testimony. For those reasons the great caution or incentivized witness jury instruction will not be placed in the final jury instructions.

MR. DORAN:

Note my objection, Your Honor.

MR. REGISTER:

Note our objection, Your Honor.

Later, when the court gave its instructions, it included the following statement:

The testimony of a witness may be discredited by showing that the witness will benefit in some way by the defendant's conviction or acquittal, that the witness is prejudiced, or that the witness has any other reason or motive for not telling the truth.

The court's instruction actually covered the main point covered by the proposed instruction, i.e., that the jury could consider the possibility that a witness had something to gain from his testimony. In light of this point, the defense's concerns were covered by the charge given. Pursuant to the terms of La.Code Crim.P. art 807, this assignment of error lacks merit. See State v. Thibodeaux, 16-542 (La.App. 3 Cir. 3/15/17), 216 So.3d 73, writ denied, 17-642 (La. 12/5/17), 231 So.3d 628.

PRO SE ASSIGNMENT OF ERROR

In this assignment of error, the defendant complains that he did not receive a public trial. In particular, he argues that the district court closed the courtroom during opening statements, during the testimony of Bocard, during a portion of the testimony of Sergeant Harris, and during the testimony of Livings. He cites Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210 (1984), along with other jurisprudence for the principle that violations of the right to public trial are structural errors that cannot be harmless. Waller set forth a four-part test for assessing court closures:

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

The defendant acknowledges that some closures may be permissible.

The partial closure of a courtroom has been allowed when security is a concern:

Both the United States and Louisiana Constitutions afford the accused the right to a public trial. U.S.C.A. Const. Amend. 6; La. Const. Art. 1, Sec. 16; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). However, this right to a public trial is not absolute, and it may give way to other rights or interests, such as the defendant's right to a fair trial or the prosecution's interest in preventing the disclosure of sensitive information. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The Waller court noted that such circumstances were rare, and the balancing of interests must be carefully taken.

During trial in the present case, defense counsel consistently objected to the proceedings being conducted after 4:45 p.m. each day, the time when the doors to the courthouse were locked. He specifically requested that the courthouse remain open and that the court instruct security to make provisions to allow anyone who wishes to come and observe the proceedings. While the court denied the defendant's request to keep the courthouse open, the trial judge did afford the defendant the opportunity to provide a list of names of individuals who would like to be admitted to the courthouse and provisions for their admittance would be made. Defendant objected and filed a motion for mistrial on the basis of the closure of the courthouse each day at 4:45 p.m.

This court, in State v. Dauzart, 99–730 (La.App 5 Cir. 11/30/99), 749 So.2d 806, 810–811, writ granted, 99–3471 (La.6/2/00), 762 So.2d 1114, rev'd and remanded on other grounds (i.e., defendant's right to testify), 99–3471 (La.10/30/00), 769 So.2d 1206, was faced with a similar set of facts and found that the process of restricting access to the courthouse after 4:45 p.m. did not deprive the defendant of his right to a public trial. The Dauzart court stated as follows:

The closure policy at the courthouse was adopted for security reasons. In the interest of fairness, the trial judge issued a permanent order allowing Dauzart to advise him regarding any individual who wished to be present after 4:45 p.m. so that accommodations could be made. No such effort was made by Dauzart or by defense counsel. On March 18, 1998, the first day of the trial, court recessed at 4:53 p.m. On March 19, 1998, the jury was excused at 5:50 p.m. and court recessed shortly thereafter at 6:30 p.m. On March 20, 1998, the last day of trial, the jury's verdict was rendered at 2:35 p.m. and court was then recessed.

Dauzart was not deprived of his right to a public trial. He was given every opportunity to notify the trial court if there was anyone who needed to enter the courthouse after 4:45 p.m. on the days in question. The trial court's ruling was not so egregious as to warrant a reversal of the trial court's judgment. The judgment must be affirmed.

Likewise, in the present case, we find that the defendant was not deprived of his right to a public trial. We note that the courthouse was not closed all day, but only after normal working hours, and then only partially. The manner of closure was narrowly defined, because measures were taken by the court to insure access to the ongoing proceedings. Safety and security were the “overriding interest” expressed by the court for this action. The court took reasonable measures to ensure safety as well as access. Defendant was given every opportunity to notify the court if there was anyone who needed to enter the courthouse after 4:45 p.m. on the days in question. Based on the foregoing discussion, we find no merit to the argument raised by the defendant in this assigned error.

State v. Sarrio, 01-543 pp. 10–12 (La.App. 5 Cir. 11/27/01), 803 So.2d 212, 219–20, writ denied, 02-358 (La. 2/7/03), 836 So.2d 86. Louisiana courts have also allowed partial closures for a “substantial reason,” such as avoiding embarrassment to witnesses who are minors. See, e.g., State v. Canales, 16-272, p. 10 (La.App. 5 Cir. 12/7/16), 206 So.3d 458, 464, writ denied, 17-46 (La. 9/22/17), 227 So.3d 824, in which the court explicitly eschewed the Waller test, as only a partial closure was at issue.³ The court viewed Waller as applicable to full closures.

In chambers before opening statements, the district court had already noted its concerns regarding security, including the physical safety of the defendants. The court explained:

Okay. And I thought that was your argument, but I wanted to make sure I understood it.

The primary reason we came down here---like I said, I'm going to put my ruling on the record upstairs in front of the defendants and their spectators. The primary reason we came down here was that in the event it got into some of the security concerns I didn't want to telegraph what those security measures would be.

To address Ms. Boxie's point, the security around the courthouse, while it's come up I'm going to just say this, I had an incident in the last trial in this courtroom. And this Bailiff prevented it from getting out of hand, but in that particular trial there was one defendant, and this courtroom was too small. There was not enough real estate between the deceased victim's brother who initiated the attack and the defendant who was seated exactly where you are currently seated, Mr. Cawthorne.

In this particular trial my first concern is this, I've got two defendants, I've got what? Ninety-seven attorneys, whatever? (Laughter.) I'm picking at y'all, but you've got you and Raven, and I forget this young lady's name; Mr. Register might bring an associate or paralegal or something with him; and the two defendants. Okay, that's number one. I've got to have real estate between my attorneys and my parties.

Number two, the victim in this family, Tanisha Aggison [the victim's sister], is no stranger to this court, and that's why I want the victim seated in the victim's designated area and not to move. And [sic] constitutional right to an open courtroom, fair trial, all that good stuff, not closing the courtroom that creates all kinds of problems. But that's why each defendant will have a designated area for their spectators to sit.

And in the last trial, the victim came up, pretended to be talking to the Victim's Rights Coordinator who was seated right behind the Assistant District Attorney, and then used that vantage point to launch an attack from where Ms. Ryan is, on the defendant where you are, and the Bailiff was seated by that podium. He had to cover that ground to get to that defendant to get him on the ground, and he did.

In this case, again, these families and spectators, I'm not taking a chance. We are separated.

Later, the state sought to partially close the courtroom for opening statements:

MS. RYAN: Sure. Judge, at this time the State is going to move to close the courtroom for opening statements, reserving our right to request later to close the courtroom for some specific witnesses on the grounds that it's the State's position that in this case there have been verified accusations of witness tampering in this case and witness intimidation. Those witnesses we will ask that the courtroom be closed. [sic] While the defendants have, a confrontation right, Judge, I, you know, it doesn't get their buddies in the audience a chance to confront them and potentially harm them later. And we would ask that the courtroom be closed for openings, except for the immediate family of the defendants. I believe, Judge, that this -- that the court has stated numerous times the security concerns here and, as I stated, witness intimidation while denied by the defense, understandably, it's the State's position that it has happened. And just for the protection of witnesses and their identities and what they will testify to later, we would ask that it remain closed to everyone except the immediate family.

THE COURT: For opening?

MS. RYAN: For opening, yes, sir.

THE COURT: Reserving the right to ask later --

MS. RYAN: Later for those witnesses

THE COURT: Right.

MS. GOTREAUX: And to include the victim's family.

MS. RYAN: Yes.

MR. DORAN: We, on behalf of Mr. Chenier, we take issue with the suggestion that anyone who has appeared in court today would be present during any of these proceedings has anyway [sic] participated in any type of alleged witness tampering. Also, with the idea that incidents that Ms. Ryan refers to have in fact been verified and can in anyway be extended to either Mr. Chenier, who I think is constitutionally guaranteed a right to a public trial or to any of his supporters, extended family members, or friends. So, for that reason we object to the court's ruling.

MR. REGISTER: And, Your Honor, Mr. Figaro will also join in with Mr. Chenier's objection with the additional indication that these assertions of witness tampering, none have been leveled to Mr. Figaro and so we believe -- so that's basically, I guess, the only addition that I would add.

THE COURT: All right. The court acknowledges that the victims have a right, a constitutional right to an open trial. The court also has stated on the record several times that I have various security concerns about this trial, which I've put on the record before and I'm not going to belabor the point now.

So, my ruling is going to be that I'm going to close the courtroom for opening statements, except for immediate family members. I'm going to give you a few minutes to identify -- to talk to your respective clients and their families, and I'm including the State's victims in that, and identify those immediate family members that you're going to request be allowed to stay in. I'm going to make some general comments to the audience as a whole. And then what I'm going to do is I'll ask that everyone else leave the courtroom except for those immediate family members and then we'll proceed. We'll get the jury in and we'll proceed with opening.

MR. DORAN: Yes, sir.

MS. RYAN: And sequestering of witnesses, too.

THE COURT: We need -- oh, thank you, yes. We'll sequester the witnesses and all before the jury comes in.

MR. REGISTER: I'll make an objection for the record, Your Honor.

THE COURT: Noted.

MR. DORAN: Ours as well.

THE COURT: And noted Mr. Chenier's objection.

Subsequently, the state moved for partial closure during a witness's testimony:

(Whereupon the jury exited the courtroom, counsel approached the bench for an inaudible sidebar, after which the following proceedings were had:)

MS. RYAN: Your Honor, for the reasons previously stated in chambers regarding witness intimidation in relation to Deshawn Bocard we're going to move to close the courtroom to everybody but family members of the defendant, both defendants, I'm sorry, and the victim's family.

THE COURT: Ms. Faye, were [you] able to hear that?

COURT REPORTER: I'm sorry?

THE COURT: Were you able to hear that?

COURT REPORTER: No, I thought y'all -- I'm sorry.

MS. RYAN: I'll go again.

THE COURT: All right. Can I get everyone to exit the courtroom please, except the family that was allowed to sit in this morning.

We'll put it on the record as soon as they leave.

If you were allowed to stay this morning, you're allowed to stay this evening.

(Whereupon some people in the courtroom exited, after which the following proceedings were had:)

THE COURT: I've ordered, you can object, you make your record. I've ordered it and I'm going to stick by my order. The families, all three families were supposed to stay separate, all right. So, the Figaro family can sit in the middle. The Chenier family to the right and the victim's family to the left. And anybody that violates that order is going to be removed from the courtroom.

I'm going to say it again. Your attorneys were supposed to let you know and if they didn't, I'm letting you know now. That section to my right is for the Chenier family. I want only members of the Chenier family in that section. I want members of the Figaro family to sit in this section. And members of the Aggison and Kelly family to sit in this section. And I don't want the families breaching or crossing those [a]isles, the middle ground between the pews, whatever you want to call it. If someone violates that court order they're going to be asked -- they're going to be -- I'm going to ask law enforcement to remove them from the courtroom. That's my order, that's my order today, tomorrow, and until this trial ends. And I'm authorizing law enforcement to enforce that order. End of story, note your objection.

MR. CAWTHORNE: Note my objection continuing, Judge, for the record.

THE COURT: All right. Note your objection. We didn't put -- we weren't able to put -- yes, ma'am.

UNIDENTIFIED FEMALE SPEAKER: (Unintelligible)

THE COURT: As long as she's -- I trust y'all that that's family, that's family, I have my reasons.

Now, Ms. Ryan had moved -- we weren't able to pick it up about the courtroom, let's go ahead and make the motion again. Note your objections, I'll make my ruling again and then we'll go forward.

MS. RYAN: Your Honor, the State would move to close the courtroom for the reasons previously stated as to this witness, Deshawn Bocard, who there have been allegations and concerns about witness tampering and intimidation, and we'll rest on those previous arguments, Judge.

MR. CAWTHORNE: I just want to note for the record our continued objection.

MR. REGISTER: We'll join in the objection, as well, Your Honor.

THE COURT: All right. Quiet please. For the reasons stated this morning, for the same reasons I've stated previously, I'll go ahead and close the -- partially close the courtroom for that witness. And it's only partial in the sense I am allowing designated family members to remain in the courtroom with the defendants and, of course, the attorneys.

Are you ready to proceed? Note your objection -- Note both defendants's objections for the record.

․

[IN CHAMBERS] THE COURT: There was just an incident outside. So, I don't have all the details yet, but there was a security incident outside.

․

THE COURT: For the record, we're back in the courtroom. The State has its -- two of its attorneys back. Mr. Figaro and Chenier are both in the courtroom with Mr. Register and Ms. Simpson and Mr. Cawthorne.

Only family members are in and with the attorney's agreement, I'm going to say something and I hope everyone understands.

Sometime -- I'm holding my cellphone because I'm on duty and I have, you know, other obligations. Sometimes I think that this is the worst thing ever invented. And if not the phone, certainly social media, okay. And in my last trial I had a security incident. Not against me, but a member of the victim's family, who had lost his brother, attacked the person on trial for allegedly killing the brother. A very unfortunate situation. The security present at that time handled it, but the jury saw it, which creates legal issues. And it just makes everyone in the courthouse uncomfortable.

A different concern arose during the testimony of Brandon Harris:

[MS. RYAN:] ․ Also, the state intends to move to close the courtroom for the testimony of Antonio Livings. Whether it's granted or not, it's up to the court. However, i[t] defeats the purpose if the courtroom is open while I question Brandon Harris about the course of his investigation of how he spoke to Antonio Livings and what information he provided. It's all for naught, unless the courtroom is closed for that portion of Brandon Harris's testimony as well. So the court -- the state is asking that the courtroom be closed -- I apologize, I'll keep my voice down. The state is asking for the court, for numerous reasons, to close the courtroom at least for Brandon Harris's testimony while he testifies as to his interview with Antonio Livings. And perhaps, Judge, to limit the courtroom again to only family so as to prevent the jurors from being continuously distracted by the traffic coming in and out of that door in a courtroom that the acoustics are horrible in.

Later, the district court explained:

THE COURT: I haven't -- I haven't -- I'm going to tell the deputies that when we start a witness, they're to keep people from coming in and out. I'm not closing it at this time. One more distraction and then I'm going to decide whether to close it partially or close it all together. But one more distraction, because it has affected every juror to some degree.

All right. Now, I don't like to be inconsistent in my rulings. I closed it for Bocard. I figured I'd close it for Livings. And then the state said, well, if Harris is going to talk about what Livings said, we should close it now too. And I'm inclined to do that for -- for all the reasons I did it for Bocard, but I'm also inclined to do that to maybe give this crowd just a chance to cool down, give the jury a chance to refocus on this very important part of the testimony. So, I'm going to ask you to go speak to your client's immediate family that was allowed to stay in during opening, tell them they can come in. Deputy, same ones. Everyone else[,] the courtroom will be closed while Sergeant Harris testifies about Livings's -- part of the investigation dealing with Livings. That's my ruling. You can note your objection, no argument please.

MR. DORAN: Objection.

THE COURT: All right.

MR. REGISTER: Objection.

THE COURT: All right.

Finally, the defendant notes that when the state's main witness, Antonio Livings, was about to testify, the following brief colloquy occurred:

THE COURT: The next part of the hearing of the trial will be closed except for those people that were allowed to stay in during opening. So family members that were allowed to stay in during opening can stay, everybody else is being asked to leave the courtroom at this time.

Just for the record, Ms. Ryan, that was on the state's motion?

MS. RYAN: Yes, sir.

THE COURT: And over the objection of both defendants, right?

MR. REGISTER: Yes, sir.

MR. DORAN: Yes, sir.

THE COURT: And the court is going to grant the motion for reasons previously stated.

Go ahead and bring the jury in. Rise for the jury.

The closures at issue were permissible, as they were only partial closures. Canales, 206 So.3d 458. Further, they were based on legitimate security concerns. The district court had experienced a violent incident in another case and took precautions in the instant case. Also, the court mentioned there was an incident outside the courtroom during the current proceedings. In addition, the state asserted a need for caution during the testimony of some witnesses. The discussion in Canales indicates that a court may enact a partial closure based solely on such assertions by the state.

For the reasons discussed, this assignment lacks merit.

CONCLUSION

The defendant's conviction and sentence are affirmed.

AFFIRMED.

FOOTNOTES

1.   One of the weapons was later recovered, but it could not be connected to either defendant.

2.   The defendant's counsel joined the objection made by the co-defendant's counsel to the trial court's ruling.

3.   See also State v. Pontiff, 18-273 (La.App. 3 Cir. 10/2/19) (unpublished opinion) (2019 WL 4849219). Pontiff addressed a post-conviction relief application.

ELIZABETH A. PICKETT CHIEF JUDGE