author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Tommie C. MOLETTE, a.k.a. Tucker Molette
    NO. 17-KA-697
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gretna, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, TOMMIE C. MOLETTE, A.K.A. TUCKER MOLETTE, Cynthia K. Meyer
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   CHEHARDY, C.J.

On appeal, defendant challenges the trial court's denial of his motion to sever his trial from that of his co-defendants. For the following reasons, we affirm.

Procedural History

On January 23, 2014, a Jefferson Parish Grand Jury indicted defendant, Tommie C. Molette a/k/a Tucker Molette, for the second degree murder of Deshon Evans, in violation of La. R.S. 14:30.1 (count one), and the attempted second degree murder of Jonquell Neal, in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count two).

On May 22, 2017, trial commenced before a twelve-person jury. After a six-day trial, the jury found defendant guilty as charged on both counts. On June 26, 2017, the trial judge sentenced defendant for second degree murder to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, and for attempted second degree murder, to imprisonment at hard labor for fifty years without benefit of parole, probation, or suspension of sentence, to run concurrently. Thereafter, defendant filed a timely notice of appeal, which was granted.

Facts

In this case, Tommie Molette, defendant-herein, is charged with second degree murder and attempted second degree murder for his involvement in a shooting incident that occurred on October 8, 2013 at 5923 Becker Street. The Hicks brothers - Kevin and Kevias - were also charged with second degree murder and attempted second degree murder for their involvement in the Becker Street incident.

In that same indictment, the grand jury also charged the Hicks and, their younger brother, Kedrick Anderson, with two counts of attempted second degree murder for their involvement in another shooting incident that occurred on July 13, 2013, at 2800 Mount Kennedy. Although defendant-herein was only indicted for the October Becker Street shootings, he and the Hicks brothers were tried at the same time.

For clarity and completeness in addressing defendant's assignments of error, this opinion includes all of the germane testimony elicited at trial regarding five shooting incidents connected by ballistics and/or testimony to two groups of people. The first incident occurred on June 22, 2013, when A.P. was fired on while driving his girlfriend, J.A.'s, vehicle. Testimony reflected that A.P. was targeted because he had been deemed a "rat." Ballistics were not recovered from that event.

The second incident occurred on July 13, 2013, at approximately 9:45 p.m. at the Ridgefield Apartments on Mount Kennedy Drive in Marrero. During the Mount Kennedy incident, J., the two-year-old son of A.P. and J.A., was shot in the chest. J.A., the child's mother, testified that, "Kevias [Hicks'] face was the face in the front that I saw" shooting at her son and her that night. J.A. also saw Kedrick Anderson with a "big gun" that night. J.A. stated that she did not see Kevin Hicks that night. Ballistics matched spent 9-mm shell casings recovered from the Mount Kennedy scene to two later shootings: the Bridge shooting and the Becker Street shooting.

The third incident was a shooting that occurred on the Crescent City Connection on July 16, 2013. During that incident, Kevias Hicks was shot by someone riding in a nearby vehicle. Neither Kevias nor Kedrick Anderson, who was also in the car, would identify the assailant. However, J.A. testified that, at some point, A.P. told her that he and Kevias were shooting at each other on the "bridge." A spent 9-mm shell casing found inside the Hicks' vehicle matched the ballistics of casings found at the Mount Kennedy and Becker Street shootings.

In the fourth incident, which occurred on August 12, 2013, at the Beechgrove Apartments in Westwego, Aubrieon Davis, who is the mother of Kedrick Anderson's son, was fired upon by A.P. while she was driving. Subsequently, A.P. pled guilty to aggravated assault with a firearm on Aubrieon Davis for that incident. Ballistics from the .40 caliber casing recovered at Beechgrove matched a casing found in the roadway after the Bridge shooting on July 16, 2013.

Finally, the only shooting pertinent to defendant-herein occurred on October 8, 2013 at 5923 Becker Street in Marrero. The surviving victim, Jonquell Neal, testified that he and his friend, Deshon Evans, were recording rap music in a studio at Deshon's house, when they heard a knock at the front door. Evans opened the door to Kevin and Kevias Hicks, and defendant-herein, Tommie Molette. Neal remembered that when Kevias came to the door, he said something about running from another shooting where a child had been shot. After the men talked for a little while, they decided to record a song in Deshon's studio.

After they had been rapping and recording for a while in the studio, Neal heard Kevias say that he was a "god" and that "your life is in my hands." Neal was concerned but continued writing his song. When he heard a loud sound, Neal thought it was the music at first. But when Neal looked up, Evans' blood was all over him, and Evans was dead. Neal saw Kevin, Kevias, and defendant-herein shooting in Evans' direction. Neal saw defendant-herein shoot him in the leg.

Neal testified that, after he was shot, he picked up Evans' firearm from the floor, and put it in his lap. When Kevin tried to shoot him, Neal raised Evans' weapon, "let off a shot," and Kevin left. Neal stated that more than twenty-five or thirty shots were fired.

That night, Neal received four gunshot wounds in his shoulder, thigh, and "feet." Immediately after the shooting, Neal positively identified Kevin, Kevias, and defendant-herein as the shooters in photographic lineups. Neal further reported in his statement at the hospital to Sergeant Gary Barteet of the Jefferson Parish Sheriff's Office ("JPSO") that Kevias was shooting a 9-mm Smith and Wesson, that Kevin was using a 9-mm Beretta, and that defendant-herein was using a .40 caliber Colt. At trial, Neal testified that he was "100% sure" that Kevin, Kevias, and defendant-herein were the individuals who shot Evans and him that night.

Dr. Susan Garcia of the Jefferson Parish Forensic Center, who was accepted as an expert in the field of forensic pathology, conducted the autopsy on Deshon Evans. She explained that Deshon Evans' cause of death was multiple gunshot wounds, including a lethal wound to the head, and that his manner of death was homicide.

Special Agent William Charles Williams of the FBI was accepted as an expert in the field of historical cell site analysis. Agent Williams analyzed historical records for two phone numbers - one associated with Kevin Hicks and one associated with defendant-herein - for the early morning hours of October 8, 2013. According to Agent Williams, both phones utilized the cellular phone tower nearest to 5932 Becker Street numerous times between 1:04 a.m. and 1:41 a.m. Williams testified that further data was consistent with both phones leaving the area around Becker, traveling along the Westbank Expressway, over the Mississippi River via the Crescent City Connection, and traveling north to the New Orleans East area. Williams testified that both phones were utilizing the nearest tower to 7840 Mills Avenue in New Orleans East between 2:52 a.m. and 2:54 a.m. The Mills Avenue address in New Orleans is associated with the Hicks' mother.

In order to connect the incidents, the State presented evidence regarding spent cartridge casings recovered at the scenes of the Mount Kennedy, the Beechgrove, the Bridge, and the Becker Street shootings. JPSO Deputy Jené Rauch, who is the supervisor of the firearms and tool mark section for the JPSO Crime Lab, was accepted as an expert in the field of firearm and tool mark examination.

Deputy Rauch testified that, after the July 13, 2013 Mount Kennedy shooting, fourteen casings that were fired "in the same" 9-mm weapon were recovered. Further, 2 casings were recovered that had been fired from a second 9-mm firearm. Also, eight 7.62 by 39-mm caliber casings were recovered that were all fired "in the same weapon." Finally, one .45 caliber casing was found on the scene.

Deputy Rauch testified that, after the July 16, 2013 shooting on the Crescent City Connection Bridge, two casings were recovered: a 9-mm casing recovered from inside of the Hicks' vehicle and a .40 caliber casing recovered from the roadway of the Bridge. Ballistics revealed that the .40 caliber casing at Beechgrove was fired from the same .40 caliber pistol used during the shooting on the Bridge that injured Kevias Hicks.

Deputy Rauch further testified that, after the Becker Street shootings in October of 2013, eight 9-mm casings were recovered that were fired from the same 9-mm pistol. Next, four 9-mm casings were recovered that were fired from a second 9-mm pistol. Further, thirteen casings fired from a .40 caliber pistol were recovered. Finally, a .45 caliber Taurus pistol was recovered from the scene but ballistics confirmed that it was damaged by a bullet during the shooting, which prevented it from firing that night.

Deputy Rauch testified that the ballistics database used by law enforcement connected the same 9-mm firearm to four shootings: Mount Kennedy on July 13, 2013; the Bridge Shooting on July 16, 2013; the Becker Street shooting on October 8, 2013; and a homicide at I-10 and Clearview Parkway on December 30, 2013. At Mount Kennedy, fourteen 9-mm rounds were shot from this weapon. After the Bridge shooting, one expended 9-mm casing from this weapon was found on the floor of the interior of the vehicle driven by the Hicks brothers that night. At Becker Street, eight 9-mm rounds were shot from this weapon. Finally, three casings fired from this weapon were found at the Clearview/I-10 homicide but further investigation revealed that the December homicide was not linked to the instant crimes.

JPSO Deputy Chief Timothy Scanlan, who is the Commander of the Technical Services Bureau, was accepted as an expert in the fields of firearms and tool mark examination, blood stain pattern analysis, and crime scene reconstruction. Deputy Chief Scanlan investigated the Mount Kennedy and Becker Street crime scenes and formulated conclusions. Deputy Chief Scanlan asserted that Jonquell Neal's testimony was consistent with the cartridge case distribution and the angles of fire at the Becker Street crime scene. He also asserted that after reviewing reports of the Mount Kennedy scene, what he found there was consistent with the description of events provided by J.A.

After hearing the testimony and evidence, the twelve-person jury found defendant-herein guilty of the second degree murder of Deshon Evans and the attempted second degree murder of Jonquell Neal. Defendant-herein appeals his convictions.

Discussion

On appeal, defendant raises four assignments of error: first, the trial court erred in denying the motion to sever; second, the trial court erred in denying the re-urged motion to sever and motion to quash; third, the trial court erred in denying the re-urged motion to quash and motion for mistrial; and fourth, the trial court erred in denying the motion for new trial.

In each of his assignments, the crux of defendant's argument is that, given the voluminous evidence of violent acts allegedly committed by the Hicks brothers without him, defendant-herein was prejudiced by trial of his charges for the October 8, 2013 Becker Street crimes with the unrelated charges for the July 13, 2013 Mount Kennedy shootings against the Hicks brothers. Defendant alleges that the trial judge erred in denying his motion to sever filed well before trial, his re-urged motion to sever filed immediately before trial began, and his motion to quash and motion for mistrial filed after the first full day of trial. Further, defendant alleges that the trial judge erred in denying his motion for new trial based on prejudice to him that resulted from the voluminous evidence of violent acts allegedly committed by Kevin and Kevias.

The State responds that the trial court did not err in denying defendant's request for severance from his co-defendants because the law is clear that where co-defendants are jointly charged, they need not be charged in every count. Further, the State avers that defendant cannot prove that he was prejudiced. The State contends that the jury clearly understood that defendant was only charged in the Becker Street shooting.

Motion to Sever

On June 16, 2016, defendant filed a Motion to Sever Defendants for Trial on the basis that he was not charged with the crimes that occurred on July 13, 2013. He also argued that if defendants were all tried together, the jury would be confused as to his involvement. Defendant alleged that his right to a fair trial was impinged because he was sitting as a defendant for uncharged crimes.

On June 24, 2016, at the hearing on the motion to sever, defense counsel argued that defendant-herein was only charged with the Becker Street shootings and had no connection with the Mount Kennedy shootings. Defense counsel contended that the State was going to bring in evidence of prior acts that had nothing to do with defendant-herein. For that reason, counsel contended that it would be prejudicial for defendant-herein to appear before a jury to defend himself for uncharged acts.

The prosecutor averred that the surviving witness of the Becker Street shootings would testify that Kevias gained entry to Becker Street for himself and the co-defendants by saying that they were on the run from the police for the Mount Kennedy shooting. Although defense counsel disagreed with that description of events, the prosecutor still maintained that the statement allowed the trio to gain admittance to Becker Street on the night in question.

After hearing arguments of counsel, the trial judge denied the motion to sever, stating:

In looking at the Bill of Indictment, I think it is clear and certainly can be made clear for the jury that the separate incidences that are indicted here they can clearly distinguish. I don't think there is any undo-prejudice [sic] to Mr. Molette sitting through a trial where there is evidence put on of his co-defendants involved in a separate incidence [sic] anymore prejudicial than the fact that he already himself is charged with two counts in this bill of indictment. So again, the Court denies motion to sever.

Defense counsel objected and sought review of that ruling with this Court. This Court denied the writ, stating:

Relator, Tommie Mollette, seeks review of the trial court's June 24, 2016 denial of his motion to sever defendants for trial. Relator failed to attach a copy of his motion to sever that was filed with the trial court, but argues in his writ application that his motion was based on undue prejudice. He claims that his co-defendants, Kevin Hicks and Kevias Hicks, were charged with two additional counts of attempted murder (counts three and four) that occurred three months prior to the charged offenses of second degree murder and attempted second degree murder (counts one and two) against Relator. Kevin and Kevias were also charged in counts one and two, for a total of four charges against them, whereas Relator only faces two charges (counts one and two). Relator asserts a severance is warranted because a jury would be hostile towards him because evidence of the other attempted murders, in which he had no participation, will be admitted against his co-defendants.
After a hearing in which no evidence was presented, the trial court denied the motion to sever and found that, at this time, the separate charges against all defendants could be clearly distinguished and made clear for the jury. The trial court found no undue prejudice in requiring Relator to sit through a trial where evidence of his co-defendants' involvement in a separate incident would be admitted. Jointly indicted defendants are to be tried jointly unless the court finds that justice requires a severance. La. C.Cr.P. art. 704. Whether justice requires a severance must be determined by the facts of each case. State v. Hayden , 09-954 (La. App. 5 Cir. 5/11/10), 41 So.3d 538, 543. The ruling on a motion to sever is within the sound discretion of the trial court and will not be overturned unless it is manifestly erroneous and injurious to the defendant. State v. Tennant , 352 So.2d 629, 634 (La. 1977). Upon review of the writ application and the transcript of the motion hearing, we do not find the trial court abused its discretion in denying Relator's motion to sever the trial of defendants at this time. Accordingly, on the showing made, we do not find Relator is entitled to relief and deny his writ application.

State v. Molette , 16-K-457 (La. App. 5 Cir. 8/24/16)(unpublished writ disposition).

On May 22, 2017, the first day of trial, defendant-herein filed a Motion to Quash Indictment alleging misjoinder of offenses and misjoinder of defendants. The trial judge again denied the motion to sever as to defendant-herein because he was charged with a murder and an attempted murder in the October shootings, which were clearly distinct from the July incident.

The State responded that this issue had been previously addressed by the trial judge in his denial and by this Court in its writ denial. The State reiterated that the jury could distinguish between the separate victims and the separate incidents. After hearing arguments of counsel, the trial judge denied the motion to quash the indictment, stating:

It remains the Court's belief that the indictment, as it stands, the evidence that will be presented against Mr. Molette is easily distinguishable by the jury where he is charged with a crime that occurred or crimes that occurred, counts that occurred in October and not with the ones that are charged - - that the Hicks are charged with - - the Hicks defendants are charged with in July. And I think it's easy for the jury to compartmentalize those in their mind and certainly he has abled counsel here to ensure that the jury recalls he is only charged with the one count of murder and then the attempted murder that occurred in the October incident. So for all those reasons, the Court denies the Motion to Quash.

Defense counsel noted his objection.

After the first full day of testimony, defense counsel re-urged his motion to quash and moved for a mistrial on the basis of misjoinder of defendants and misjoinder of the counts. He stated that only one of the seven witnesses called during one day of trial testified regarding defendant-herein. He also stated that there was emotional testimony by J.A. and that some of the jurors "teared up" when pictures of the child victim were shown. Defense counsel argued that was "purely prejudicial" to his client, and moved for a mistrial. The prosecutor responded that the issue had already been addressed several times. Further, of the nineteen upcoming witnesses, sixteen would be about the Becker Street shootings, which was a majority of the witnesses in the case.

The prosecutor asserted that it was very clear that defendant-herein was not charged with any of the other shootings and that no evidence would improperly associate him with his co-defendant's other charges. Further, each witness' testimony would be clear as to what scene, date, and crimes were involved. The prosecutor stated that, although the jury was emotional, he was confident that the jury would be able to separate the charges and the defendants. Defense counsel noted that the jury was looking at all three defendants with "very stern looks."

After hearing arguments of counsel, the trial judge denied the motion to quash, stating:

There was extensive voir dire going on during the jury selection process, Mr. Vedros, as well as all counsel involved had an opportunity to voir dire the jurors. The Court is comfortable that the jurors that we have selected is [sic ] more than capable, and as this Court obviously intends to do and will do in the instructions will instruct them that they are only to consider the evidence against Mr. Molette that is presented as it relates to the October incident. Again, the Court is comfortable that the level of voir dire, extensive voir dire, on that issue throughout the jury selection process and therefore, the motion is denied.

Defense counsel noted his objection.

La. C.Cr.P. art. 493 permits the joinder of offenses if the offenses charged "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan," and the offenses are triable by the same mode of trial.

La. C.Cr.P. art. 494 provides the law regarding joinder of defendants:

Two or more 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 defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

La. C.Cr.P. art. 495 provides that, "[t]he objections of misjoinder of defendants or misjoinder of offenses may be urged only by a motion to quash the indictment." La. C.Cr.P. art. 532 provides in pertinent part that a motion to quash may be based on one or more of the following grounds:

* * * *
(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.

A defendant properly charged in the same indictment with two or more offenses pursuant to La. C.Cr.P. art. 493 may nonetheless move for a severance of the offenses under La. C.Cr.P. art. 495.1, which provides as follows:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

In determining whether prejudice results from a joinder of offenses, the trial court must consider the following factors: whether the jury would be confused by the various counts, whether the jury would be able to segregate the various charges and evidence, whether the defendant would be confounded in presenting his various defenses, whether the crimes charged would be used by the jury to infer a criminal disposition, and whether, considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Fontenberry , 09-127 (La. App. 5 Cir. 10/27/09), 27 So.3d 904, 909-10, writ denied , 09-2665 (La. 5/28/10), 36 So.3d 246. In addition, it must be considered that prejudice from the joinder of offenses can be mitigated by clear jury instructions and by an orderly presentation of evidence by the State. State v. Davis , 12-512 (La. App. 5 Cir. 4/24/13), 115 So.3d 68, 84, writ denied , 13-1205 (La. 11/22/13), 126 So.3d 479.

A defendant alleging a prejudicial joinder of offenses has a heavy burden of proof. Motions to sever under La. C.Cr.P. art. 495.1 are within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent an abuse of discretion. Factual, rather than conclusory, allegations are required when the defendant alleges prejudicial joinder of offenses on a motion to sever. State v. Fontenberry , 27 So.3d at 910. Finally, there is no prejudicial effect from joinder of offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. State v. Butler , 15-89 (La. App. 5 Cir. 7/29/15), 171 So.3d 1283, 1288, writ denied , 15-1608 (La. 10/10/16), 207 So.3d 408. In ruling on such a motion, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. State v. Deruise , 98-0541 (La. 4/3/01), 802 So.2d 1224, 1232, cert. denied , 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001).

La. C.Cr.P. art. 704 provides the following regarding severance:

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.

Whether justice requires a severance must be determined by the facts of each case. State v. Prudholm , 446 So.2d 729, 741 (La. 1984) ; State v. Condley , 04-1349 (La. App. 5 Cir. 5/31/05), 904 So.2d 881, 890, writ denied , 05-1760 (La. 2/10/06), 924 So.2d 163. A defendant is not entitled to a severance as a matter of right, but the decision is one resting within the sound discretion of the trial court. A denial of a motion to sever will not be overturned absent a clear abuse of discretion. Id.

A severance is necessary if the defenses of the co-defendants are mutually antagonistic to the extent that one co-defendant attempts to blame the other, causing each defendant to defend against both his co-defendant and the State. Prudholm , 446 So.2d at 741 ; Condley , 904 So.2d at 890. The defendant bears the burden of proof in a motion to sever. State v. Jackson , 03-883 (La. App. 5 Cir. 4/27/04), 880 So.2d 841, 851-52, writ de nied , 04-1298 (La. 10/29/04), 885 So.2d 585. The mere unsupported allegation that defenses will be antagonistic is not sufficient to require a severance. Prudholm , 446 So.2d at 741. Reversal of a conviction for failure to sever where antagonism is shown is not always mandated unless prejudice can be shown. State v. Cedrington , 98-253 (La. App. 5 Cir. 12/16/98), 725 So.2d 565, 577, writs denied , 99-190 (La. 6/4/99), 743 So.2d 1249 and 99-431 (La. 6/25/99), 745 So.2d 1182. Antagonistic defenses are not the only instances where the denial of a motion to sever will constitute an abuse of discretion. Where the ends of justice will be best served by severance, it should be granted. Id.

Prejudice may occur in a joint trial "when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant." State v. Williams , 16-417 (La. App. 5 Cir. 8/30/17), 227 So.3d 371, 395 (quoting Zafiro v. United States , 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) ). In Williams, this Court found that the fact that the defendant did not participate in the murder of Donte Hall, a charge for which only his co-defendant was indicted, was not a consideration for the trial court in determining whether a severance was required. Williams , 227 So.3d at 395.

A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to defendant that deprives him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. State v. Pierce , 11-320 (La. App. 5 Cir. 12/29/11), 80 So.3d 1267, 1271.

Upon review, we find that the trial judge did not err by denying the Motion to Sever the Counts. Here, the counts were not misjoined under Article 493 since they were of the same or similar character as they all involved shootings. Also, the evidence revealed that the shootings were part of a common scheme or plan because the defendants gained entrance to the Becker Street address by indicating that they were on the run from the Mount Kennedy shooting.

Further, defendant did not meet his heavy burden of proving prejudicial joinder under La. C.Cr.P. art. 495.1. At trial, the evidence of each crime was presented in an orderly fashion and the record does not reflect that the jury was confused by the various counts or that defendant was confounded in presenting his defense.

Additionally, the trial judge charged the jury separately as to each offense, explaining in detail what the State was required to prove with respect to each count. The jury was instructed to consider each charge against each defendant for each victim separately. Further, the jury was provided with separate verdict sheets for each defendant and each victim. Here, the jury was able to segregate the various charges and evidence as it returned not guilty verdicts for Kevin Hicks on the Mount Kennedy shootings but guilty on the Becker Street shootings. See State v. Seay , 521 So.2d 1206, 1210 (La. App. 2nd Cir. 1988) ("if the jury can keep the evidence of the offenses separate and distinct, as evidenced by acquittal on some and conviction on other charges, there is no prejudice.")

Accordingly, we find that these offenses did not warrant a severance and that the trial judge did not abuse his discretion in denying the motion to sever the counts.

Further, we find that the trial judge did not err by denying the Motion to Sever Defendants. Here, defendants - Kevin, Kevias, and Molette - were not misjoined under La. C.Cr.P. art. 494 since they were alleged to have participated in the same act constituting the offenses committed at Becker Street and that Kevin and Kevias were not misjoined under that same statute as they were alleged to have participated in the same act constituting the offenses committed at Mount Kennedy. Also, the State presented sufficient evidence to establish a link between the Becker Street shootings and the Mount Kennedy Street shootings. As such, if each offense were tried separately, the evidence of the related offense could have been admissible at both trials.

Moreover, there is no evidence that the defenses of the co-defendants were mutually antagonistic to the extent that one co-defendant attempted to blame another one. Moreover, defendant has not shown how he was prejudiced by the lack of a severance. Further, as was discussed above, the jury was instructed to consider each charge for each victim separately, was provided with separate verdict sheets for each defendant and each victim, and was able to segregate the various charges and evidence. SeeState v. Seay, supra .

At trial, approximately thirty witnesses testified regarding the two charged and three related offenses. Numerous witnesses and the overlapping nature of the facts leading to these charges necessitated the joint trial of the defendants to present a cohesive narrative for the jury. Piecemeal litigation is not sanctioned by the courts, and where the same witnesses would be called to testify, judicial economy dictates that there be one trial. Williams , 227 So.3d at 395 (citing Warren v. Bergeron , 599 So.2d 369 (La. App. 3rd Cir. 1992), cert. denied , 604 So.2d 995 (La. 1992) ). Thus, we find that the trial judge did not abuse his discretion in denying defendant's Motion to Sever Defendants.

Finally, in light of the foregoing discussion, there is no evidence of trial error resulting in substantial prejudice to defendant that deprived him of a reasonable expectation of a fair trial. See Pierce , supra . Accordingly, because we find no error in the trial court's denial of defendant's motion to sever either counts or defendants, we additionally find that the trial court did not abuse its discretion in denying the motion for mistrial based on misjoinder of defendants or offenses.

Finally, after his convictions, defendant filed a Motion for New Trial on the basis that he received an unfair trial because of the misjoinder of offenses and defendants.

He added that there was "404(B)" information and incidents that came out during the trial which did not involve him at all. The trial judge denied the Motion for New Trial, stating:

In terms of - - and obviously, it was argued pretrial. It was appealed pretrial, the whole issue of the joinder. And I think that the jury's verdict is clearly illustrative of the fact that there was no prejudice to Mr. Molette, that the jury certainly understood exactly what it was that they were hearing. That is evidenced by the fact that Mr. Kevin Hicks was in fact found not guilty on two of the two [sic] of the attempted murder charges with which he was charged which were from a separate incident from the murder and attempted murder charges that Mr. Molette had.
With regard to the motion to new trial as it relates to Tommy Molette, again, I think the jury's verdict is illustrative of the fact and this Court has every confidence that the jury was able to keep separate the incidents and therefore, the Court denies the motion for new trial as it relates to Mr. Molette.

Defense counsel objected to the trial judge's ruling.

The motion for a new trial is based on the supposition that injustice has been done the defendant, and unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. La. C.Cr.P. art. 851(A). The decision on a motion for a new trial rests within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Delagardelle , 06-898 (La. App. 5 Cir. 4/11/07), 957 So.2d 825, 829, writ denied , 07-1067 (La. 11/21/07), 967 So.2d 1154.

For the reasons already discussed, we find that the trial court did not abuse its discretion by denying the Motion for New Trial based on the misjoinder of defendants and offenses. Accordingly, we find no merit to defendant's assignments of error.

Errors patent

As is our routine practice, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990).

We note that neither the transcript nor the commitment reflects that the trial judge advised defendant of the provisions of La. C.Cr.P. art. 930.8. It is well settled that, if a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, this Court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Neely , 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied , 09-0248 (La. 10/30/09), 21 So.3d 272.

Accordingly, we advise defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. Based on the foregoing, defendant's convictions and sentences are hereby affirmed.

AFFIRMED .

      In the same bill of indictment, the grand jury also indicted Kevias C. Hicks and Kevin Hicks with second degree murder (count one) and attempted second degree murder (count two). Further, in that same indictment, the Jefferson Parish District Attorney also charged Kedrick Anderson ("Anderson"), Kevias, and Kevin with attempted second degree murder of a known juvenile (hereinafter "J.") and attempted second degree murder of his mother, J.A., in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (counts three and four respectively). The co-defendants all have appeals pending before this Court: State v. Kevin Hicks , 17-696 (La. App. 5 Cir. 10/17/18), 258 So.3d 1050, 2018 WL 5020887 ; State v. Anderson , 18-45 (La. App. 5 Cir. 10/17/18), 258 So.3d 1008, 2018 WL 5020643 ; and State v. Kevias C. Hicks , 18-46 (La. App. 5 Cir. 10/17/18), 257 So.3d 1283, 2018 WL 5020291.
      Further, throughout this opinion, we will use the juvenile victim's and his family's initials to protect the identity of the juvenile crime victim. La. R.S. 46:1844(W)(3). The minor will be referred to by his first initial, J., and his mother will be referred to by her initials, J.A. See State v. Lirette , 11-1167 (La. App. 5 Cir. 6/28/12), 102 So.3d 801, 804, n.1, writ denied , 12-1694 (La. 2/22/13), 108 So.3d 763.

      The Hicks brothers and Tommie Molette were tried together. Anderson, who was not charged with second degree murder, was tried separately from the other three co-defendants.

      In 2010, A.P. and Richshawn Williams, an associate of the Hicks brothers, were charged with multiple counts of armed robbery. In 2011, A.P. pled guilty to one count of the lesser charge of accessory after the fact to armed robbery in exchange for a reduced sentence of three years; Williams pled guilty to one count of armed robbery in exchange for a sentence of twenty years. The disparity in their sentences created tension between A.P. and Williams.

      Originally, J.A. positively identified Kevin, Kevias, and Anderson from photographic lineups as the shooters. However, at trial, she testified that she did not recall seeing Kevin's face.

      A full discussion of ballistics evidence presented at trial is presented infra.

      Dr. Garcia testified that Deshon Evans received six gunshot wounds : a projectile entered the upper left chest near the arm pit and exited through his arm; a projectile entered the left forearm and exited through his back; another projectile entered the forearm and exited above the wrist; a projectile entered the back side of the right thigh going through the muscle and exiting the thigh; a fifth projectile entered decedent's cheek going from right to left but did not exit; and the sixth projectile was the lethal wound to the right side of the head that penetrated his brain. Dr. Garcia recovered intact projectiles from the decedent's brain.

      Trial testimony revealed that an unrelated defendant pled guilty to the December homicide on Clearview Parkway at I-10.

      In this opinion, we will address the assignments together as they are related.

      Application of the "law of the case" doctrine is discretionary and the prior denial of a supervisory writ does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. State v. Voltolina , 10-1090 (La. App. 5 Cir. 10/25/11), 77 So.3d 1027, 1031. Reconsideration is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. State v. Earls , 12-448 (La. App. 5 Cir. 12/11/12), 106 So.3d 1149, 1159, writ denied , 13-132 (La. 9/20/13), 122 So.3d 1012. Although this Court denied defendant's writ application in State v. Molette , 16-K-457 (La. App. 5 Cir. 8/24/16) that raised the same issue he asserts on appeal, we will address the merits of the issue in an abundance of caution.

      Although defense counsel did not file a written Motion to Sever the Counts, he argued at the severance hearing that the July Mount Kennedy and October Becker Street offenses should have been severed for trial. Further, defense counsel objected to the denial of his motion to sever the counts. This opinion will address the error that was objected to at trial and raised on appeal.

      See State v. Davis , 12-512 (La. App. 5 Cir. 4/24/13), 115 So.3d 68, 84-85, writ denied , 13-1205 (La. 11/22/13), 126 So.3d 479, where this Court found that any possibility of prejudice in the joinder of offenses was mitigated by the jury instructions and the State's orderly presentation of the evidence, noting that the jury instructions listed the eight crimes with which the defendant was charged along with the responsive verdicts for each offense, that for the charges of second degree murder and attempted second degree murder the instructions specified the victim of each offense, that the instructions also provided the elements for each charged offense as well as the elements for each responsive verdict, and that the jury received eight separate verdict sheets each indicating the charged offense and the responsive verdicts. This Court found that based on the foregoing, any possible juror confusion was minimized.


source: Caselaw Access Project

author: KYZAR, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Austin W. DYESS
    18-241
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
    Edward K. Bauman, Louisiana Appellate Project, P. O. Box 1641, Lake Charles, LA 70602-1641, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Austin W. Dyess
    J. Reed Walters, District Attorney, Twenty-Eighth Judicial District, P. O. Box 1940, Jena, LA 71342, (318) 992-8282, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar, Judges.
   KYZAR, Judge.

Defendant, Austin W. Dyess, appeals his convictions for second degree murder and conspiracy to commit second degree murder. For the reasons set forth herein, we affirm.

DICUSSION OF THE RECORD

On June 22, 2016, a grand jury indicted Defendant on one count of second degree murder, in violation of La.R.S. 14:30.1 ; and one count of conspiracy to commit second degree murder, violations of La.R.S. 14:26 and 14:30.1. On September 25, 2017, Defendant proceeded to trial, and on September 27, 2017, a unanimous jury found Defendant guilty as charged on both counts.

On December 5, 2017, Defendant was sentenced to serve life imprisonment at hard labor for the second degree murder conviction, as well as thirty years imprisonment at hard labor for the conspiracy to commit murder. The sentences were ordered to run concurrently, and the life sentence was to be served without benefit of probation, parole, or suspension of sentence. Defendant did not file a motion to reconsider sentence.

The facts as presented at trial established that on April 24, 2016, the victim, Demond Garner, and his girlfriend, Chelsea Copling, both residents of Texas, attended a small party at the home of Joshua Sant in Tullos, LaSalle Parish. The couple left the party with Mr. Sant and Defendant and were subsequently found dead from gunshot wounds on April 27, 2016.

The LaSalle Parish Sheriff's Office (LPSO) initially received a report of the missing couple on April 25, 2016, from the Tullos Police Department, and began an investigation, which led detectives to the home of Mr. Sant as being the last place that the couple was seen. They discovered that Defendant was present at the home the night that the couple went missing. During the course of the investigation, Defendant gave a series of statements to the detectives with LPSO, which will be discussed separately.

Written Statement

On April 26, 2016, Defendant provided a written statement to Chief of Police Gary McDaniel of the Tullos Police Department and LPSO Deputy Joseph Cain, in which he claimed that he was at Mr. Sant's house along with a "couple," later identified as the murder victims. He further stated that they were all playing a game of beer pong when the couple said they were ready to go home and began walking down the road alone. Defendant claimed that he and Mr. Sant "went looking for them" and when they could not locate them, they "called someone that knew them to tell him that they had left."

Verbal Statement

On April 27, 2016, LPSO Detective Tracy Clark began investigating the disappearance of Mr. Garner and Ms. Copling. He travelled to Joshua Sant's residence in Tullos, where he spoke with Defendant, who was present when Detective Clark arrived. Detective Clark testified that Defendant advised him that, "He had last seen them leave the residence walking up Park Street towards Highway 125, the night, during the night, and they were inebriated when they left the residence." According to Detective Clark, that statement was the same as the verbal account he had received from Mr. Sant.

First Recorded Statement

Later on April 27, 2016, Defendant gave a recorded statement to Detective Clark and Detective Brant King, after being Mirandized , in which he initially denied knowing anything about the couple's whereabouts after they left Mr. Sant's house. Shortly thereafter, he claimed that he blacked out after going to Mr. Sant's house and drinking and did not recall what occurred, but then later stated, "I think I shot the black boy." He initially denied knowing where the shooting occurred, but then later during his statement, he led law enforcement, including Detectives Clark and Richard Smith, to the location where the bodies of the victims were found. Defendant stated that he thought Mr. Garner came at him because he "tried to put the gun to his head or something?" He further stated that Mr. Garner tried to take the gun from him, so he "pulled back and [he] shot [Mr. Garner] in the head." After Defendant shot Mr. Garner once in the head, Defendant said that he shot Mr. Garner two more times to make sure he was dead. He stated that Mr. Sant then shot Ms. Copling. Shortly thereafter, Defendant stated that he also shot Ms. Copling. Defendant said that someone had mentioned to Mr. Sant that Mr. Garner was a child molester and that may have made him mad, but he did not remember asking Mr. Garner about the truth of this claim. He further admitted they took the victims out into the woods to scare them because of this, after which he claimed that things got out of hand. Defendant then admitted that he and Mr. Sant had made a pact not to tell anyone what had happened. After the victims were located, Defendant was transported back to the local jail.

Second Recorded Statement

Beginning at approximately 11:44 p.m. on April 27, 2016, Detective Jimmy Arbogast and Detective Clark again interviewed Defendant, after advising him again of his Miranda rights. During this statement, Defendant admitted that he had attempted to hide information about the details of the crime during his previous statement, as reflected in the following colloquy:

[Det. Clark]:I came in contact with you at 10:20 this morning?
Austin: Yes sir.
[Det. Clark]:I talked to you, and you noticed my ... I'm sure you noticed my interest in the purse being in the truck.
Austin: Yes sir.
[Det. Clark]:Did Josh Sant give you a story to tell me, or law enforcement, about the purse?
Austin: No sir, he didn't give me his story, so I had to make it up on the spot.
[Det. Clark]:Ok. He told you that?
Austin: And ... yes.
[Det. Clark]:You have to make up the story about the purse?
Austin: Yes sir.

During this interview, Defendant stated that he was outside at his home on April 24, 2016, when he heard music from Mr. Sant's house, so he went over and played beer pong with Mr. Sant and the victims. Defendant told the detectives that after a couple games of beer pong, Mr. Sant took him aside and told him that the victims were child molesters and that they should run them out of town. He stated that Mr. Sant went inside, got dressed, and grabbed a second gun, as he was already carrying one, and that he (Mr. Sant) then convinced Mr. Garner that they should go shoot the guns a couple times for target practice before he took them back to the house where they were staying. He described the gun as "Brown, with a blackish kind of barrel on it. Brown handle, black barrel." Defendant stated that during the second of the three beer pong games they played, two people stopped briefly by the house to get a key from Katelynn Parsley, Mr. Sant's fiancé, and afterwards she stayed inside the house watching television while they left with the victims.

Defendant stated that after taking the victims to a remote location outside of Tullos, along the banks of a small body of water, he and Mr. Sant knelt down and spoke, then got up facing the couple with the guns, at which point Mr. Garner tried to take his gun from him. He stated that he shot Mr. Garner with a .22 caliber pistol, Mr. Sant shot Ms. Copling with a larger caliber pistol, then Defendant shot Mr. Garner twice more because he thought that he was still breathing. Defendant stated that his first shot to Mr. Garner was in the head and the other two were "in what [Defendant] would suppose to be is [sic] the head." He stated that he dragged Mr. Garner's body into the water by his wrist and then gave the .22 back to Mr. Sant while they were walking back to the truck.

Defendant told the detectives that the last time he saw the guns was when Mr. Sant placed them under the center console of his truck. He claimed that once they arrived back at Mr. Sant's house, he stayed there smoking while Mr. Sant went down the road and obtained some pills, two of which Defendant took. Defendant stated that Mr. Sant then called Thomas Aubry, the owner of the house where the victims had been staying, and reported that Mr. Garner and Ms. Copling simply walked off, presumably got lost, and that they did not know of their whereabouts or what happened to them. He further asked that Mr. Aubry come get Ms. Copling's purse, which she had left at his house. This was the same story that Defendant and Mr. Sant gave in their initial written reports. Defendant admitted that Mr. Sant told him what to say to law enforcement before he gave his written statement on April 26, 2016. He described the agreement between the two as a "blood pact."

Third Recorded Statement

During their booking on the murder and conspiracy charges on April 29, 2016, both Defendant and Mr. Sant spoke to the detectives. The entire process was recorded, with both Defendant and Mr. Sant present at varying times during the recording after they were Mirandized . When informed that Mr. Sant admitted that he and Defendant threw the guns into the pond after killing the victims, Defendant stated that they took the guns to a man after the shooting, who gave Mr. Sant four pills, two of which Defendant consumed. He also provided the location of the house where they delivered the guns. Defendant was then removed from the room, and Mr. Sant was brought in to speak with the detectives. After being confronted with the knowledge that the guns were not in the pond, Mr. Sant told the detectives that he had given the guns to his father. Mr. Sant then called his parents, and Detective Clark arranged to meet his father to retrieve the murder weapons. Although Detective Clark recovered the .22 caliber pistol, no firearms testing was done on the weapon nor any of the shell casings recovered from the murder scene.

On May 20, 2016, Defendant gave another statement to Detective Clark; however, no transcript or video of that statement was entered into evidence at trial after an objection was lodged by counsel for Defendant. Detective Clark did testify that this interview, taken at Defendant's bequest, offered no new information.

Detective Clark testified during the trial that Defendant admitted to him that he used a .22 caliber handgun to kill Mr. Garner. Detective Smith testified that he recovered two .22 caliber shell casings at the scene of the murder, which he secured as evidence. The recovered casings were introduced into evidence at trial. Dr. Christopher Tape, a forensic pathologist employed by the Louisiana Forensic Center in Lafayette, testified that he performed an autopsy on Mr. Garner, and he identified three gunshot wounds to the head as the cause of death.

Defendant now appeals his convictions, raising as his sole assignment of error that the trial court erred in allowing into evidence the recorded statement made to law enforcement by Defendant's co-conspirator, Mr. Sant, which was contained within the third recorded statement summarized above. Defendant argues that the statement was hearsay and should not have been played to the jury in the absence of testimony from Mr. Sant.

Errors Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. An error patent is one "that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La.Code Crim.P. art. 920(2). After review, we find no such errors.

Hearsay Evidence

In Defendant's sole assignment of error, he contends that the trial court erred in playing and admitting into evidence that portion of the recording from the April 29, 2016 booking process, where Mr. Sant admitted that he gave the murder weapons to his father and then contacted his parents to turn in the weapons to the detectives. Defendant's counsel lodged the following objection at trial:

Mr. Lemke: ... I'm going to object to Joshua's portion of the booking. He's not a witness here and he's not on the stand. So basically it's hearsay. And I'll have no opportunity to cross-examine Josh. I believe the introduction of this statement is prejudicial to my client.
[The Prosecutor]: Hearsay statement of a co-conspirator clearly establishes a prima facie case of a conspiracy.
The Court: Okay.
Mr. Lemke: I would just note that these are statements after the conspiracy has ended.

The objection was overruled.

Pursuant to La.Code Evid. art. 801(D)(3)(b), a statement is not hearsay if it is made "by a declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of the conspiracy, provided that a prima facie case of conspiracy is established." Defendant's sole argument is that because he had already confessed to killing Mr. Garner and both he and Mr. Sant had already been arrested, the conspiracy no longer existed; and therefore, the co-conspirator exception to the hearsay rule was inapplicable. Defendant requests that his convictions be reversed, his sentence vacated, and the case remanded to the trial court.

The law pertaining to the admissibility or exclusion of co-conspirator statements and our appellate review thereof is well established:

After the state presents a prima facie case of conspiracy, the burden of proof shifts to the defendant to present evidence showing his withdrawal from the conspiracy prior to the time the statements were made by his co-conspirators. The conspiracy is presumed to continue unless or until the defendant shows his withdrawal from or the termination of the conspiracy. United States v. Walker , 796 F.2d 43, 49 (4th Cir.1986). To prove withdrawal, a defendant must show affirmative actions made by him that are inconsistent with the object of the conspiracy. United States v. United States Gypsum Co. , 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). Such affirmative actions include making a clean break through confession to the authorities as well as notification to the co-conspirators of abandonment or withdrawal. United States v. Patel , 879 F.2d 292, 294 (7th Cir.1989), cert. denied , 494 U.S. 1016, 110 S.Ct. 1318, 108 L.Ed.2d 494 (1990).
The standard for determining the admissibility of statements made by co-conspirators is less than that required to convict a defendant of conspiracy to commit an offense. A trial court's determination as to the admissibility of such evidence, i.e., whether the state has made a prima facie showing of a conspiracy and whether a defendant has sufficiently proven withdrawal so as to make his co-conspirators' statements admissible or inadmissible under LSA-C.E. Art. 801D(3)(b), will not be overturned absent clear error. See United States v. Taylor , 802 F.2d 1108 (9th Cir.1986), cert. denied , 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 164 (1987) ; State v. Lobato , 603 So.2d 739 (La.1992).

State v. Woodard , 03-636, pp. 3-4 (La.App. 4 Cir. 4/30/03), 847 So.2d 629, 632.

Defendant admits that "the state presented a prima facie case of conspiracy." However, he argues that because he confessed to murdering Mr. Garner on April 27, 2016, the conspiracy had ended, and Mr. Sant's statements were inadmissible hearsay. The state contends otherwise:

The State submits that due to the fact that the defendant had not completely told the truth to the detectives working to solve this murder that he had not "come totally clean and was not totally abreast" about his involvement and therefore had not clearly withdrawn from the conspiracy. Therefore the admission of the statement of the co-conspirator Joshua Sant was not error and was not inadmissible hearsay.

As noted in Woodard , the state's presentation of a prima facie case of conspiracy shifts the burden to Defendant to prove termination of the conspiracy in order for Mr. Sant's statement to be considered hearsay. Furthermore, this court should not overturn the trial court's ruling that the statement was admissible "absent clear error." Id. at 632. We find no such error here. When Defendant's trial counsel objected to the introduction of the statement, he provided the trial court with no argument as to why the conspiracy was ended;

he merely made the conclusory statement, "I would just note that these are statements after the conspiracy has ended." As noted in Woodard , Defendant must rebut the presumption that the conspiracy was ongoing when Mr. Sant gave his statement. As pointed out by the state in its appellate brief, Defendant's story was still evolving and changing when Mr. Sant's statement was made.

Detective Clark testified that Defendant never completely "came clean" about what had happened and throughout the investigation only gave "bits and pieces" about the events. In fact, as late as the April 29, 2016 statement, Defendant told Detective Clark that the guns were delivered to some anonymous person, when they had actually been delivered to Mr. Sant's father, as Mr. Sant's statement revealed shortly thereafter. It is apparent that Defendant was still engaged, up to this point, in hiding certain details about the crime as per he and Mr. Sant's original "blood pact." Given Defendant's actions up to the point of Mr. Sant's statement and his trial counsel's failure to enunciate an explanation as to why the conspiracy had ended before the statement was made, the trial court did not clearly err in finding that the statements were made during an ongoing conspiracy and were, therefore, admissible.

Louisiana courts have also found that the admission of hearsay is subject to a harmless error analysis. In State v. Tucker , 49,822, 49,950, p. 22 (La.App. 2 Cir. 7/8/15), 170 So.3d 394, 412, the second circuit addressed a claim involving a co-conspirator's statement in a conspiracy to commit jury tampering, as follows:

We also conclude that even if the contested communications with Hall were inadmissible hearsay, reversal of the convictions for jury tampering is not warranted because the error was harmless beyond a reasonable doubt. This evidence of these communications was merely cumulative of other (and much more damaging) evidence of the conspiracy to commit jury tampering, e.g., the transcript and recording of the March 17 telephone conversations and Griffin's testimony.

Similarly, we find that even if the statements complained of were inadmissible hearsay, the error occasioned by their admission was harmless beyond a reasonable doubt. Mr. Sant's statement was cumulative evidence considering that Defendant told detectives that Mr. Sant had given the guns to someone on the way back from the murder. He even gave them directions to a location near the home of Mr. Sant's father, where the drop-off allegedly occurred, immediately before Mr. Sant admitted that he gave the guns to his father and called his parents to have them bring the weapons to Detective Clark. Indeed, Mr. Sant's statement, in and of itself, does not even mention Defendant or anything concerning his involvement in the crimes. It merely details Detective Clark and Mr. Sant contacting Mr. Sant's parents by phone to arrange for the delivery of the weapons to Detective Clark. While this was a small piece of the overall evidence, it was certainly not a crucial element.

Defendant himself gave multiple statements in which he admitted to killing the victim. He admitted to shooting the victim three times, as corroborated by the testimony of Dr. Tate; and he admitted using a .22 caliber pistol, matching the evidence of the two shell casings found by Detective Smith and introduced at trial. While the recovered weapon, as a partial result of Mr. Sant's statement, was introduced as evidence without objection, it too was only cumulative of the otherwise substantial evidence of Defendant's guilt. Although the introduction of the weapon into evidence had corroborative value, as Detective Cark testified that the actual gun matched the earlier description given by Defendant, it alone was not direct evidence in that no firearms analysis was performed on the weapon, which may have given more weight to the item as the actual murder weapon. Finally, Defendant's multiple statements, which were presented to the jury, contained discussions of the pact made by Defendant and Mr. Sant before their first interaction with law enforcement, to never discuss the murders with anyone, as well as discussions about how the two of them came up with the false story that the two victims just walked down the road and disappeared. Even in the absence of Mr. Sant's statement as to the actual location of the guns, there was ample evidence to support Defendant's convictions.

Accordingly, we conclude that there was no error in the introduction of Mr. Sant's statement, and even assuming arguendo that such should not have been considered, the same was harmless error beyond a reasonable doubt.

DISPOSITION

For the foregoing reasons, the convictions and sentences of Defendant, Austin W. Dyess, are affirmed.

AFFIRMED.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: BOLIN, Justice.

text:
    EX PARTE UNITED PROPANE GAS, INC.
    (In re: Cullman Security Services, Inc., on behalf of itself and other similarly situated entities v. United Propane Gas, Inc.)
    1160891
    Supreme Court of Alabama.
    February 2, 2018
    Joseph H. Driver and R. Brett Adair of Carr Allison, Birmingham, for petitioner.
    Frank H. Tomlinson of Tomlinson Law, LLC, Birmingham; Matthew K. Carter of Fuller, Willingham, Fuller & Carter, LLC, Cullman; Robert W. "Joe" Bishop and John S. Friend of Bishop Korus Friend, PSC, Louisville, Kentucky; and Michael M. Pitman of Haverstock, Bell & Pitman, Murray, Kentucky, for respondent.
   BOLIN, Justice.

United Propane Gas, Inc. ("United Propane"), seeks a writ of mandamus compelling the Cullman Circuit Court to vacate its order denying United Propane's motion to dismiss an action filed by Cullman Security Services, Inc. ("CSS"), and to enter an order dismissing the action. The trial court denied the motion to dismiss on the ground that "the outbound forum-selection clause contained in the parties' contract is unfair or unreasonable because it deprives [CSS] of the ability to file a class action in contravention of a recognized Alabama public policy" and found that the parties'

contract was a contract of adhesion. We grant the petition and issue the writ.

Facts and Procedural History

United Propane, a Kentucky corporation, offers pre-purchase contracts to its customers, pursuant to which the customers agree to purchase their anticipated fuel usage for a season based upon a fixed price per gallon of gas. A pre-purchase contract gives the customer the advantage of locking in the price of the gas to be supplied for a determined time and gives the supplier of propane and propane accessories the advantage of receiving payment for a known purchase of a supply of gas from the customer for that period.

CSS, a corporation with its principal place of business in Cullman, Alabama, was a customer of Golden Propane Gas, Inc., an affiliate and agent of United Propane. On September 30, 2013, CSS entered into a pre-purchase contract with United Propane. CSS agreed to purchase 550 gallons of propane at the fixed price of $1.6990 per gallon from October 1, 2013, through March 31, 2014. The contract also included the following outbound forum-selection clause:

"Customer agrees to pay all costs incurred by Corporation if it must enforce any of the terms of this Agreement, including but not limited to, reasonable attorneys fees, and further agrees to pay all applicable delivery, finance, system check and motor fuel charges. This agreement shall be governed by the laws of Kentucky and the parties agree that the state courts sitting in McCracken County, Kentucky have exclusive jurisdiction and venue of any dispute arising hereunder."

(Emphasis added.)

Upon signing the contract, CSS paid an outstanding bill for $607.82 and also paid $1,382.52 to guarantee the delivery of 550 gallons of propane gas during the upcoming 2013-2014 winter season. In October 2013, United Propane delivered 200 gallons of propane gas to CSS. When CSS requested the delivery of additional propane gas in January 2014, United Propane advised that the only way CSS could acquire the gas would be to purchase it at the rate of $3.599 per gallon. Consequently, CSS purchased gas from another distributor at the higher market rate.

In April 2014, CSS, on its behalf and on behalf of other similarly situated gas consumers, filed a class-action lawsuit against United Propane in the circuit court in McCracken County, Kentucky. Kentucky circuit courts have jurisdiction in civil cases when the amount in controversy exceeds $5,000, exclusive of interest and costs, in matters affecting title to real estate, and in matters of equity. See Ky. Rev. Stat. §§ 23A.010(1) and 24A.120(1). Kentucky law provides, however, that a class action based on breach of contract cannot be maintained in a state circuit court where none of the individual claims is equal to the statutory jurisdictional amount. See Lamar v. Office of Sheriff Daviess Cty., 669 S.W.2d 27 (Ky. Ct. App. 1984). Consequently, the Kentucky court dismissed the complaint without prejudice because "no claim in [CSS's] amended complaint alleges an amount in controversy over $5,000; [CSS's] claims do not affect title to real estate; and [CSS] has not asserted a valid claim for equitable relief." The Kentucky Court of Appeals affirmed the circuit court's dismissal.

On February 11, 2017, CSS filed in the Cullman Circuit Court a "nationwide class action, on behalf of itself and all other commercial entities and business associations similarly situated," seeking redress for "[United Propane]'s policy and practice to breach uniform written pre-paid contracts, and to systematically violate its duty of good faith and fair dealing by uniformly raising prices on pre-paid commercial contracts and failing to honor the contracts." The complaint sought damages, a declaratory judgment, and injunctive relief.

On April 11, 2017, United Propane filed a Rule 12(b)(3), Ala. R. Civ. P., motion to dismiss CSS's action as having been filed in an improper venue. United Propane argued that the outbound forum-selection clause in the pre-purchase contract required CSS to bring the action in Kentucky and that the case had been previously dismissed by the Kentucky circuit court for failing to meet the statutory jurisdictional amount. In response, CSS argued that both it and the class it seeks to represent were denied the ability to seek any practical relief in the designated forum because Kentucky, unlike Alabama, does not allow a class to aggregate damages to meet the threshold jurisdictional amount. CSS asserted that it was not economically feasible to litigate smaller individual claims in a Kentucky small-claims court, especially given that the court is located a considerable distance from Cullman, Alabama.

Following a hearing on the Rule 12(b)(3) motion, the trial court denied United Propane's motion to dismiss. United Propane timely filed a petition for writ of mandamus.

Standard of Review

" 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995)."

Ex parte CTB, Inc., 782 So.2d 188, 190 (Ala. 2000).

"[A]n attempt to seek enforcement of the outbound forum-selection clause is properly presented in a motion to dismiss without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P., for contractually improper venue. Additionally, we note that a party may submit evidentiary matters to support a motion to dismiss that attacks venue. Williams v. Skysite Communications Corp., 781 So.2d 241 (Ala. Civ. App. 2000), quoting Crowe v. City of Athens, 733 So.2d 447, 449 (Ala. Civ. App. 1999)."

Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala. 2001). "On appeal, the review of a trial court's ruling on the question of enforcing a forum-selection clause is for an abuse of discretion." Id. (citing O'Brien Eng'g Co. v. Continental Machs., Inc., 738 So.2d 844 (Ala. 1999) ).

Discussion

"An outbound forum-selection clause-a clause by which parties specifically agree to trial outside the State of Alabama in the event of a dispute-implicates the venue of a court rather than its jurisdiction. See Ex parte CTB, Inc., 782 So.2d 188 (Ala. 2000) ; and O'Brien Eng'g Co. v. Cont'l Machs., Inc., 738 So.2d 844, 845 n. 1 (Ala. 1999)." Ex parte Leasecomm Corp., 879 So.2d 1156, 1158 (Ala. 2003). In F.L. Crane & Sons, Inc. v. Malouf Construction Corp., 953 So.2d 366, 373 (Ala. 2006), this Court held that "an outbound forum-selection clause raises procedural issues and is governed by the law of the forum jurisdiction," which, in that case, was Alabama. The Crane Court relied on Ex parte Procom Services, Inc., 884 So.2d 827 (Ala. 2003), in which this Court decided the validity of an outbound forum-selection clause under Alabama law despite a choice-of-law clause in the contract stating that Texas law governed disputes between the parties. In this case, the parties do not dispute that Kentucky law is applicable to the claims set forth in CSS's complaint. The parties, however, dispute whether the claims should be litigated in a small-claims court in McCracken County, Kentucky, or in the circuit court in Cullman County, Alabama.

In M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), the United States Supreme Court held that, under federal law, outbound forum-selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances." This Court in Professional Insurance Corp. v. Sutherland, 700 So.2d 347 (Ala. 1997), agreed that an outbound forum-selection clause should be enforced so long as its enforcement is neither unfair nor unreasonable under the circumstances.

Summarizing the factors to consider as set forth in Sutherland and Bremen, this Court in Professional Insurance determined that an outbound forum-selection clause is enforceable unless the party challenging the clause can clearly establish that enforcement of the clause would be (1) unfair on the basis that the contract was affected by fraud, undue influence, or overweening bargaining power or (2) that enforcement would be unreasonable on the basis that the chosen forum would be seriously inconvenient for the trial of the action. Ex parte Leasecomm Corp., 879 So.2d at 1159. The burden on the challenging party is difficult to meet. See Ex parte PT Sols. Holdings, LLC, 225 So.3d 37, 42 (Ala. 2016) (citing Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala. 2001) ).

In this case, the Cullman Circuit Court applied the Bremen factors as set forth in Rucker v. Oasis Legal Finance, LLC, 632 F.3d 1231 (11th Cir. 2011), which notes that the analysis of Bremen is the same under both Alabama and federal law. The Eleventh Circuit Court of Appeals determined:

"In conducting the Bremen analysis, we have said that '[f]orum selection clauses are presumptively valid and enforceable unless the plaintiff makes a "strong showing" that enforcement would be unfair or unreasonable under the circumstances.' Krenkel v. Kerzner Int'l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009). The Bremen factors provide that a forum selection clause is unenforceable when: '(1) its formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy.' Krenkel, 579 F.3d at 1281."

632 F.3d at 1236.

In its motion to dismiss, United Propane included a contract containing an unambiguous outbound forum-selection clause that dictates that the venue for a dispute between the parties is in the courts of McCracken County, Kentucky. Therefore, United Propane has presented a presumptively valid outbound forum-selection clause. See Bremen, 407 U.S. at 10. The burden then shifted to CSS to establish clearly that enforcement of the forum-selection clause would be unfair or unreasonable under the circumstances. See Bremen, supra.

CSS asserts that the second through fourth factors set out in Rucker are applicable here and are interrelated. First, CSS contends that enforcement of the outbound forum-selection clause would be unreasonable on the basis that the selected forum-McCracken County, Kentucky-would be seriously inconvenient.

" 'In order to demonstrate that the chosen forum is seriously inconvenient, the party challenging the clause must show that a trial in that forum would be so gravely difficult and inconvenient that the challenging party would effectively be deprived of his day in court. Ex parte Northern Capital Res. Corp., 751 So.2d [12] at 15 [ (Ala. 1999) ].
" ' "When an agreement includes a clearly stated forum-selection clause, a party claiming that clause is unreasonable and therefore invalid will be required to make a clear showing of unreasonableness. In determining whether such a clause is unreasonable, a court should consider these five factors: (1) Are the parties business entities or businesspersons? (2) What is the subject matter of the contract? (3) Does the chosen forum have any inherent advantages? (4) Should the parties have been able to understand the agreement as it was written? (5) Have extraordinary facts arisen since the agreement was entered that would make the chosen forum seriously inconvenient? We state these items not as requirements, but merely as factors that, considered together, should in a particular case give a clear indication whether the chosen forum is reasonable." ' "

Ex parte Nawas Int'l Travel Serv., Inc., 68 So.3d 823, 827 (Ala. 2011) (quoting Ex parte Rymer, 860 So.2d 339, 342-43 (Ala. 2003), quoting in turn Ex parte Northern Capital Res. Corp., 751 So.2d 12, 15 (Ala. 1999) ).

In determining whether CSS would be seriously inconvenienced by bringing its action in McCracken County, Kentucky, several factors weigh heavily in favor of United Propane. CSS previously filed a lawsuit, albeit an unsuccessful one, against United Propane in the McCracken Circuit Court that proceeded through the Kentucky appellate process. Although CSS is a small security-services business in Cullman, Alabama, and United Propane is a business that sells propane throughout the Southeast, both are businesses rather than individuals, and United Propane's headquarters is located in Paducah, Kentucky. The subject matter of the contract is the pre-purchase of propane gas, and there are no allegations that either party did not understand the terms of the contract as written. In addition, there are no allegations of extraordinary facts that have arisen since the contract was entered into that would make McCracken County seriously inconvenient as a forum. Thus, the aforementioned factors weigh heavily in favor of United Propane.

The inherent advantage of the chosen forum, however, is a factor that merits discussion. It is clear that Kentucky is more advantageous for United Propane because the plaintiffs are prevented from filing in its state courts a class action in which they aggregate the amount of alleged damages. Nonetheless, this factor is only one of several to consider. Although CSS asserts that the disallowance of a class action effectively prevents it from pursuing its claims in the Kentucky circuit court, there is nothing to stop the purported class-action plaintiffs from pursuing their claims individually in a district or small-claims court in McCracken County.

This brings us to our next consideration: Whether enforcement of the forum-selection clause would be unfair on the basis that it was affected by fraud, undue influence, or overweening bargaining power. CSS does not argue that the agreement was affected by fraud or undue influence. CSS argues that United Propane had overweening bargaining power and that, therefore, CSS was forced to accept the outbound forum-selection clause, which, it says, was included within an adhesion contract. CSS argues that the agreement is unconscionable because, it argues, the chosen forum effectively insulates United Propane from a class action and therefore deprives CSS and the potential class members from pursuing their claims against United Propane, which, CSS argues, is violative of public policy.

As support for its argument, CSS cites Leonard v. Terminix International Co., 854 So.2d 529 (Ala. 2002), a 5-4 decision, for the proposition that the remedy of a class action is a protected remedy under Alabama public policy. The issue before the Court in Leonard was whether an arbitration agreement that precluded resolution of disputes through class-action procedures was unconscionable. The Court concluded that the arbitration agreement between a pesticide company and homeowners representing a putative class was unconscionable "by reason of economic feasibility." 854 So.2d at 537. The value of each plaintiff's claim was less than $500, but the arbitration fees were estimated to be over $1,150. Id. at 535. This Court held that the "arbitration agreement [was] unconscionable" because the plaintiffs' "expense of pursuing their claim far exceed[ed] the amount in controversy." Id. at 539. Moreover, the Court held that the plaintiffs were "depriv[ed] ... of a meaningful remedy" because the agreement precluded recovery for "indirect, special, and consequential damages or loss of anticipated profits" and foreclosed class-action procedures. Id. at 538. This Court held that the arbitration agreement was, therefore, unenforceable.

In this case, the Cullman Circuit Court found that the contract itself was an adhesion contract, and that finding was a factor to be considered when determining whether the forum-selection clause was unconscionable. In its brief before this Court, CSS argues that the outbound forum-selection clause is a contract of adhesion. An adhesion contract is " ' "one that is offered on a 'take it or leave it' basis to a consumer who has no meaningful choice in the acquisition of the goods or services." ' " Briarcliff Nursing Home, Inc. v. Turcotte, 894 So.2d 661, 667 (Ala. 2004) (quoting Gadsden Budweiser Distrib. Co. v. Holland, 807 So.2d 528, 533 (Ala. 2001), quoting in turn Ex parte McNaughton, 728 So.2d 592, 599 (Ala. 1998) (Almon, J., dissenting) ).

The trial court found that "[e]ven though CSS is a small family-owned business rather than an individual, ... the transaction here is in the nature of a consumer transaction and that bargaining power between the parties was disproportionately unequal." The problem with the trial court's finding is that CSS is in fact a business, and the contract itself was for the purchase of propane gas to be used in its business. Thus, this Court questions whether the bargaining power between United Propane and CSS was as disproportionate as alleged and as the trial court determined.

United Propane argues that the contract is not an adhesion contract or otherwise unconscionable because, it says, CSS was free to purchase gas from another supplier. CSS disagrees, arguing that the test for an adhesion contract is not whether a buyer is unable to purchase the goods elsewhere, but whether the buyer lacks a meaningful choice in assenting to the terms of the purchase agreement. Nothing before the Court, however, indicates that CSS sought meaningful alternatives before it entered into the contract with United Propane. " ' "Although a party would not have to spend a considerable amount of time and effort to find alternatives, Alabama courts, nevertheless, do require that a party 'shop around' in order to show that there was no meaningful alternative." ' " Newell v. SCI Alabama Funeral Servs., LLC, 233 So.3d 326 (Ala. 2017) (holding arbitration provision was not procedurally unconscionable) (quoting Leeman v. Cook's Pest Control, Inc., 902 So.2d 641, 647 (Ala. 2004), quoting in turn Pitchford v. AmSouth Bank, 285 F.Supp.2d 1286, 1295 (M.D. Ala. 2003) ). This Court concludes, therefore, that CSS has failed to establish that the circumstances under which it entered into the contract containing the forum-selection clause were procedurally unconscionable.

Finally, this Court must consider whether the forum-selection clause, which effectively prevents CSS and other plaintiffs whose individual claims are below $5,000 from pursuing a class-action lawsuit in the chosen forum of Kentucky, violates the public policy. CSS argues that the clause violates the public policy of Alabama because, it asserts, the clause denies CSS and all those similarly situated accessibility to the court system via a class action to litigate claims that are of such small amounts that they are not economically feasible to prosecute as individual cases. Citing Leonard, supra, CSS contends that "[w]hen claims are of such a small amount that traveling hundreds of miles to a foreign state makes no sense because the cost of litigation will exceed the potential damages and the outbound forum does not allow for aggregation of claims, the clause is impracticable and unconscionable ... [and] against the public policy of Alabama."

As previously discussed, the distance to another forum, alone, does not warrant negating a forum-selection clause. See PT Solutions, 225 So.3d at 46 (holding that plaintiff who argued that litigating in another state would "spread thin [her] resources" failed to demonstrate sufficient inconvenience to void a forum-selection clause). To demonstrate inconvenience sufficient to void a forum-selection clause, a plaintiff must "show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court." Bremen, 407 U.S. at 18. See also PT Solutions, supra (citing Ex parte Leasecomm Corp., 886 So.2d 58, 62-63 (Ala. 2003) ). Moreover, "the fact that it may 'be more efficient to proceed as a class' is not to say that the prohibition of class-action procedures is unconscionable under Alabama law." Chambers v. Groome Transp. of Alabama, 41 F.Supp.3d 1327, 1353 (M.D. Ala. 2014) (quoting Hornsby v. Macon Cty. Greyhound Park, Inc. (No. 3:10cv680-MHT, June 13, 2012) (M.D. Ala. 2012) (not selected for publication in F. Supp. 2d) ).

The crux of CSS's argument concerns public policy. In its order, the trial court found "under the facts of this case that the outbound forum-selection clause contained in the parties' contract is unfair and unreasonable because it deprives CSS of the ability to file a class action in contravention of a recognized Alabama public policy enunciated in Leonard." Leonard, however, is distinguishable from this case. First, the plaintiffs in Leonard were individual consumers; CSS, as well as the other potential members of the class, are all businesses. Secondly, there is no arbitration clause included within the contracts with United Propane. Third, the arbitration clause in Leonard expressly limited the amount of damages; the propane contract in this case, however, includes no such limitation of damages as a remedy, and there is nothing before this Court indicating that it would be unfair, unreasonable, or cost-prohibitive for CSS to bring its breach-of-contract claim in the Kentucky small-claims court. Cf. Hornsby v. Macon Cty. Greyhound Park, Inc. (No. 3:10cv680-MHT, June 13, 2012) (M.D. Ala. 2012) (not selected for publication in F. Supp. 2d) (determining that arbitration clause that effectively prevented class action in an ERISA case was not unconscionable and distinguishing Leonard because clause did not limit damages as a remedy). Finally, although Leonard discussed the effect arbitration clauses may have on class-action lawsuits in forum-selection cases, the contract there did not include an outbound forum-selection clause; therefore, any discussion on this specific matter is not binding precedent. Moreover, this Court has consistently held that outbound forum-selection clauses are not per se void as being against public policy. See, e.g., Professional Ins. Corp., 700 So.2d at 350 ; Ex parte Riverfront, LLC, 129 So.3d 1008, 1015 (Ala. 2013) ; Ex parte Spencer, 111 So.3d 713, 716 (Ala. 2012) (citing Brown v. Alabama Chem. Co., 207 Ala. 215, 216, 92 So. 260, 260-61 (1922) ); and O'Brien Eng'g Co. v. Continental Machs., Inc., 738 So.2d 844, 845 (Ala. 1999). See also PT Solutions, 225 So. 3d at 43 (involving a noncompetition-clause case and discussing public policy and forum-selection clauses). Therefore, under the particular circumstances of this case, this Court cannot say that the outbound forum-selection clause is an unconscionable violation of public policy.

It is clear that CSS, the party challenging the forum-selection clause, has failed to clearly establish that the enforcement of the outbound forum-selection clause would be unreasonable or unfair.

Conclusion

Accordingly, we conclude that United Propane has shown a clear legal right to have the action dismissed on the basis that venue in the Cullman Circuit Court is, by application of the outbound forum-selection clause, improper. The trial court exceeded its discretion in denying the motion to dismiss CSS's action. We direct the trial court to dismiss the cause, without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Shaw, Main, Wise, Bryan, and Sellers, JJ., concur.

Parker, J., concurs in the result.

      For purposes of this opinion, we will refer to the affiliate also as "United Propane."

      That payment included the cost to purchase the gas and taxes.

      This Court notes that CSS did not specifically argue in its response to the motion to dismiss that the outbound forum-selection clause was part of an adhesion contract or was otherwise unconscionable. CSS did, however, refer to the agreement as an adhesion contract in its version of the facts. In its order, however, the trial court stated that CSS argued that the contract with United Propane was an adhesion contract. The trial court also specifically found that the agreement was an adhesion contract, and that finding was therefore a factor to consider when determining whether dismissal was appropriate.

      CSS does not argue that the entire contract is void based on the forum-selection clause; rather, CSS maintains that the clause is severable from the contract.

      Other than CSS's assertion that "no attorney would rationally undertake[ ] to seek to litigate a simple contract claim worth under $1,000 some 400 miles away from CSS," the Court is unaware of the alleged value of the breach-of-contract claim or the specific costs of litigating in small-claims court.