Opinion
2021 KA 1614.
09-26-2022
STATE of Louisiana v. Donald GERMANY, II.
WELCH, J.
The defendant, Donald Germany, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1, and he pled not guilty. A unanimous jury found him guilty as charged. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals, filing a counseled and a pro-se brief. In both briefs, he challenges the sustaining of hearsay objections and argues the rulings violated his right to present a defense. In his pro se brief, he challenges the sufficiency of the evidence and the admission of other crimes evidence. For the following reasons, we affirm the conviction and sentence.
The defendant challenges trial court rulings sustaining a hearsay objection and ordering defense counsel to instruct him, "do not say what [the victim] said."
FACTS
On June 6, 2016, the defendant called 911 to report that his wife was "hurt." He stated, "I killed her. I strangled her.... I think I broke her neck." Thereafter, officers with the East Baton Rouge Parish Sheriff's Office discovered the body of the victim, Nicole Michelle Jones, in the bedroom of her home in East Baton Rouge Parish.
At trial, the defendant testified that he was 46 years old and that he met the victim in the United States Army when he was 19 years old. In the late 1990s, the victim became an LPN. In 2000, the victim and the defendant married and had a child together.
In regard to the incident, the defendant conceded he "grabbed [the victim] by the neck." He admitted that he did not release the victim until "she got heavy on [the defendant's] hands." He agreed, when he was asked by the State, if it was fair to say that, at the time of the incident, he and the victim were calmly talking about some problems going on. He also agreed that he was not provoked. The defendant testified that on the day of the incident, he weighed between 240 and 245 pounds.
East Baton Rouge Parish Coroner Dr. William "Beau" Clark testified as an expert in the field of emergency medicine and forensic pathology. He determined that the victim died as a result of homicide. Her cause of death was asphyxiation due to compression of her neck. She weighed 147 pounds.
SUFFICIENCY OF THE EVIDENCE
In pro se assignment of error number 3, the defendant contends there was insufficient evidence to prove beyond a reasonable doubt that he was guilty of second degree murder. He argues, "[the defendant's] testimony at trial, fully corroborated by the coroner, a witness for the State, established that [the victim's] death happened while she was attacking [the defendant] and he held her off `out of his face' by grabbing her neck. He did not strike her or lash out at her in any way. It happened, `... without any intent to cause death or great bodily harm.' La. R.S. 14:31(2)." He also contends that "at ... worst", a jury could have found him guilty of manslaughter.
When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Duhon, 2018-0593 (La. App. 1st Cir. 12/28/18), 270 So.3d 597, 609, writ denied, 2019-0124 (La. 5/28/19), 273 So.3d 315. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. Hearold, 603 So.2d at 734; Duhon, 270 So.3d at 609. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the reviewing court determines that there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused will be granted a new trial, but is not entitled to an acquittal. See Hearold, 603 So.2d at 734, Duhon, 270 So.3d at 609.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV, La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to the prosecution. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; State v. Oliphant, 2013-2973 (La. 2/21/14), 133 So.3d 1255, 1258-59 (per curiam); see also La. Code Crim. P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988); State v. Livous, 2018-0016 (La. App. 1st Cir. 9/24/18), 259 So.3d 1036, 1039-40, writ denied, 2018-1788 (La. 4/15/19), 267 So.3d 1130. When circumstantial evidence forms the basis of the conviction, the evidence, "assuming every fact to be proved that the evidence tends to prove... must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; Oliphant, 133 So.3d at 1258; Livous, 259 So.3d at 1040.
The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 703 (per curiam). Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Gardner, 2016-0192 (La. App. 1st Cir. 9/19/16), 204 So.3d 265, 267. The weight given evidence is not subject to appellate review; therefore, an appellate court will not reweigh evidence to overturn a factfinder's determination of guilt. Livous, 259 So.3d at 1040.
Second degree murder, in pertinent part, is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Specific intent may be formed in an instant. State v. Mickelson, 2012-2539 (La. 9/3/14), 149 So.3d 178, 183. Because it is a state of mind, specific intent need not be proven as a fact, but may be inferred from circumstances surrounding the offense and the defendant's actions. Mickelson, 149 So.3d at 182-83. Manslaughter is, pertinently, a homicide that would be murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31(A)(1). "Sudden passion" and "heat of blood" are mitigating factors in the nature of a defense. If the defendant establishes those factors by a preponderance of the evidence, a verdict for murder is inappropriate. State v. Reed, 2014-1980 (La. 9/7/16), 200 So.3d 291, 311, cert. denied, ___ U.S. ___, 137 S.Ct. 787, 197 L.Ed.2d 258 (2017); State v. Eby, 2017-1456 (La. App. 1st Cir. 4/6/16), 248 So.3d 420, 424-25, writ denied, 2018-0762 (La. 2/11/19), 263 So.3d 1153. However, provocation will not reduce a homicide to manslaughter if the factfinder finds the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed. See La. R.S. 14:31(A)(1). In other words, if a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act. State v. Leger, 2005-0011 (La. 7/10/06), 936 So.2d 108, 171, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). Provocation and time for cooling off are determinations made by the factfinder using the standard of the average or ordinary person with ordinary self-control. Reed, 200 So.3d at 311; Livous, 259 So.3d at 1040.
According to Dr. Clark's testimony, he determined that the victim died as a result of homicide and that her cause of death was asphyxiation due to compression of her neck. He indicated the finding of asphyxiation was sustained by the following additional injuries the victim suffered: hemorrhage of the right sternothyroid muscle, conjunctival petechial hemorrhages of both eyes, confluent scleral hemorrhages of the left eye, petechial hemorrhages of the upper esophagus, laceration of the oral labial mucosa of the mouth, and a contusion of the left eye.
Dr. Clark further testified that asphyxiation occurs when there is a compression that leads to a lack of blood flow and oxygenation to important tissues, such as the brain. He stated "if we're talking about the neck, you would see a compression of both the carotid arteries, as well as the jugular veins, the major blood vessels in your neck. When you have a compression such as that, blood flow cannot go to the brain; therefore, oxygen cannot go to the brain." He indicated it would take four to seven pounds of pressure to the neck to lead to an asphyxial scenario. He further indicated that someone could be asphyxiated in ten seconds. According to Dr. Clark, the person would first "pass out," and then if pressure continued to be applied to their neck preventing blood and oxygen flow to their brain, they would deteriorate.
After a careful review of the entire record, viewing all of the evidence in the light most favorable to the State, we conclude that any rational trier of fact could have found that the State proved beyond a reasonable doubt that the defendant was guilty of the second degree murder of the victim and that no mitigating factors were established by a preponderance of the evidence. Contrary to the defendant's argument, Dr. Clark did not corroborate the defendant's claim that "[the victim's] death happened while she was attacking [the defendant] and he held her off `out of his face' by grabbing her neck. He did not strike her or lash out at her in any way." Dr. Clark did not testify that the victim was asphyxiated while attacking the defendant or while he was holding her off. Further, Dr. Clark's testimony that the victim had a cut on the inside of her lips (the laceration of the oral labial mucosa of the mouth) and a bruise to her left eye (contusion of the left eye) was inconsistent with the defendant's claim that he did not "strike [the victim] or lash out at her in any way." Additionally, the defendant's reliance upon Dr. Clark's testimony that four to seven pounds of pressure, "a very little amount of pressure," to the neck for ten seconds would lead to an asphyxial scenario is misplaced. While Dr. Clark testified that a minimal amount of pressure for a short time could lead to an asphyxial scenario, he did not indicate that scenario occurred in this case. Indeed, when the defendant reported the victim's death, he stated "I killed her. T strangled her ... I think I broke her neck." The fact the defendant thought he had broken the victim's neck is inconsistent with the application of a minimal amount of pressure. The defendant also testified that after he "grabbed [the victim] by the neck[,]" he did not release her until "she got heavy on [his] hands." Continuing to hold the victim by the neck until her body went limp does not indicate the defendant only "strangled" her for a short amount of time.
Under these circumstances, the jury was not irrational to find the defendant killed the victim with a specific intent to kill or to inflict great bodily harm. See State v. Baumberger, 2015-1056 (La. App. 3rd Cir. 6/1/16), 200 So.3d 817, 828, writ denied, 2016-1251 (La. 5/26/17), 221 So.3d 859, cert. denied, U.S. ___, 138 S.Ct. 392, 199 L.Ed.2d 290 (2017) ("[w]hile defendant argues that his intent to not hurt his wife [was] demonstrated by the fact he did not use the knife that was in his back pocket at the time of the incident, the jury's finding of specific intent is supported by evidence indicating Defendant's multiple attempts to asphyxiate his wife. There was no evidence that the victim killed herself, and there was no refuting that Defendant was the only person in the house when the victim died. As noted above, specific criminal intent may be inferred from the circumstances present in the case and the actions of the defendant."). Once the jury concluded that the defendant exhibited specific intent to kill or seriously harm the victim, the possibility of manslaughter was foreclosed. See Baumberger, 200 So.3d at 832 ("testimony established that it apparently took time to asphyxiate the victim. It is obvious that the jury concluded that this homicide was not committed in the heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control."). In reviewing the evidence, we cannot say the jury's determination was irrational under the facts and circumstances presented. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662; Livous, 259 So.3d at 1043-44. Moreover, an appellate court errs by substituting its appreciation of the evidence and credibility of the witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam); Livous, 259 So.3d at 1043. To otherwise accept a hypothesis of innocence that was not unreasonably rejected by the fact-finder, a court of appeal impinges on a factfinder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. See Mire, 269 So.3d at 703.
This assignment of error is without merit.
HEARSAY; CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE
In counseled and pro se assignment of error number 1, the defendant argues the trial court erred in sustaining hearsay objections to his testimony concerning the victim's statements immediately before her death. In counseled and pro se assignment of error number 2, the defendant argues the trial court's rulings violated his right to present a defense. He combines the assignments of error for argument. He argues the challenged testimony was admissible under La. C.E. art. 803(3).
The defendant testified that he was self-employed in 2005. In 2008, following cervical disc fusion surgery, he had severe neuropathy and pain in his hands and feet. He stopped working and sat in a recliner "for, like, a year." He became a "stay-at-home parent," He claimed the victim became "strained" as she tried to take care of him while continuing to work. According to the defendant, a few years after his injury, he and the victim "started growing distant."
When defense counsel questioned the defendant concerning whether the victim told him she resented not being a stay-at-home parent, the State objected on the basis of hearsay. Defense counsel replied the defendant's response would not be hearsay because he would be giving his impression of what was happening at the time, and the declarant was unavailable. The State pointed out the defendant "started saying she said." The court ruled, "I'm going to sustain it, but I'm going to say that ... they are to disregard the statement. Let's — let's keep — let's keep this about what you said it was about, the relationship — and not her." Defense counsel stated, "[r]ight.... He's going to have to give his impression."
According to the defendant, by 2014, things "started falling apart." During the next fourteen-month period, the victim and the defendant constantly argued. In December of 2014, after the defendant and the victim argued over her going shopping for boots after telling him she was going to work, the victim took their child and said she was leaving. The defendant stated the victim meant she was leaving to go to a hotel, but he thought she was going to divorce him, so he tried to kill himself by taking all of his pills and "a drink of a bottle of wine."
According to the defendant, he woke up three days later. He claimed things then calmed down in the relationship. He indicated, approximately a week before August 30, 2015, he discovered voice memos on the victim's old cell phone discussing a "romantic situation" with another man. On August 29, 2015, the defendant called the victim while she was working the night shift, told her he was taking their child to his father's house, and played one of the voice memos to her. The defendant questioned the victim about the message, and she "started giving [the defendant] all kinds of excuses." The defendant told the victim to get her "lies straight" and they would discuss the matter the next morning.
The defendant testified he was angry because he realized "all through 2014, when [the defendant] had suspected [the victim] of cheating and [the defendant] would ask [the victim], you know, are you cheating, she would say how dare you?" Defense counsel cautioned the defendant that he could not say what the victim said. At a bench conference, the State complained, "I know [defense counsel] keeps telling [the defendant], but [the defendant] keeps going into what [the victim] said, and he's turning it into victim character blame." Defense counsel replied that the defendant was not a professional witness. The court ruled, "it doesn't matter. We can't cure any taint by keep telling him you can't say that, you can't say that. You are asking questions, leading him down that line of questions." Defense counsel replied she had asked the defendant, "what happened?" rather than "what [the victim] said." The court stated, "you're asking, which — questions, and he's taking liberty. He's about to cause a mistrial if he keeps this up." The defense argued the State had "opened the door on some statements with the police interview." The defense noted the State had played the defendant's police interview "where [the defendant] said what [the victim] said on the record." The court disagreed with the defense argument and pointed out that the defense had failed to object to hearsay when the defendant's police interview was played. Additionally, the court instructed defense counsel to instruct the defendant, and possibly tell him after every question asked, "do not say what [the victim] said."
The defendant testified that during the argument on August 30, 2015, the victim's friend called the police. When the police came to the defendant's door, he told them he had not called them and that he and the victim did not need any assistance. The police asked the defendant to open the door. Thereafter, the defendant was arrested and taken to jail. The victim, however, bonded him out a few hours later. The defendant denied "ever physically touch[ing] [the victim]" during the August incident. He also denied having the intent to hurt or kill her during that incident.
According to the defendant, after the August 30, 2015 incident, things settled down between him and the victim. The defendant claimed he and the victim threw out their old relationship and started dating again, and the defendant believed the victim's extramarital relationship was over. He stated he and the victim were "headed" to Las Vegas eventually, and the victim wanted to work there. He indicated she wanted to be a traveling nurse and had signed up with a travel agency. Through that agency, the victim worked in Lafayette and New Orleans. The defendant stated the victim had also signed up with an agency in Pennsylvania. The defendant testified, "[t]he guy [the victim] was fooling around with lived in Connecticut, so [the victim] had first tried to get some work in Connecticut, but they didn't have any work there, so the closest other place was in Pennsylvania."
According to the defendant, on May 29, 2016, a Pennsylvania nursing license was delivered in the mail. The defendant testified he "had no idea why [the nursing license] show[ed] up." He claimed "[t]hings were going so well" between him and the victim. He stated that he and the victim had returned from Las Vegas and that they were getting ready to move there. The victim and their child were going to move ahead of the defendant while he was repairing their house before putting it up for sale. The defendant testified, "[a]nd things were going fine, and for this license to just show up like this didn't make any kind of sense, so I wanted to investigate to see what this really was about, and so I just wanted to check it out." The defendant claimed his thoughts were as follows:
[The victim] had lied so much, when [the license] showed up, immediately I'm thinking could she have been planning something? In the back of my mind, I'm, like, is she planning something? Has she been planning something? Could she be doing something sneaky? But then it's, like, wait. Wait. Wait, wait, wait, wait. She knows I'm the one who checks the mail. This is coming in the mail. She sleeps during the day. I'm the one who checks the mail. She's not dumb. This doesn't make any sense. Let me — let me check this. Let me — so, I'm the one —I gave her the benefit of the doubt. So, I'm the one checking, checking, and checking. So, I took, like, a — week or so, trying to figure what was really going on with this license.
After contacting the Pennsylvania State Licensing Board and determining that the nursing license was real, the defendant decided to investigate whether the victim had paid for the license herself. On June 5, 2016, the defendant asked the victim for her credit cards. The victim gave the defendant her credit cards and went to work. The victim denied that she had anything to do with the license. According to the defendant, by that evening, "things had calmed down."
The defendant indicated that on June 6, 2016, the victim arrived home at approximately 8:00 a.m. The defendant was asleep in the bed. The following colloquy then occurred between the defendant and defense counsel:
[Defense counsel]: And you and I have discussed, along with [additional defense counsel], that you're going to have to explain [to] this jury, in the moment, what's going through your mind. If you
remember, what brought you — without saying anything she said — what's going through your mind that would make this escalate?
[Defendant]: It's so difficult.
[Defense counsel]: But now is the time. You got — it's difficult, but you have to explain to them. But you can't say what she said. You can say what you said or what was going through your mind.
...
[Defendant]: Well, when she came in — I mean, I can't say what she said.
[Defense counsel]: No. Did — you [have] a conversation, though?
[Defendant]: Right.
[Defense counsel]: It was calm?
[Defendant]: It was calm.
[Defense counsel]: At some point, did it change?
[Defendant]: Yes. I mean —
[Defense counsel]: Did you say something?
[Defendant]: — I mean, it was — if I can't talk about what we talked about, it's almost impossible to —
[Defense counsel]: You can't say what she said.
[Defendant]: Right.
[Defense counsel]: Was it a discussion about your relationship?
[Defendant]: It — trust issues.
[Defense counsel]: Okay. And what are you thinking when you're discussing trust — who brought up trust issues, you?
[Defendant]: Right. I was talking about what we discussed about the night before, about the relationship and about trust issues. Because of all the — the lying she had done from 2014, all those trust issues were a problem.
[Defense counsel]: You're just realizing that, or is it — what?
[Defendant]: It was because of the license bringing up that issue, and it —
[Defense counsel]: So, you thought it was taken care of, but the license re-triggered it for you?
[Defendant]: Right. Well, not for me, for her.
[Defense counsel]: Okay. So—
[Defendant]: She wanted —
[Defense counsel]: You can't say [what] she said.
[Defendant]: Well, she wanted her trust to be reinstated immediately.
[Defense counsel]: With no consequences,
[Defendant]: Exactly. And it just was not going to happen like that.
[Defense counsel]: Okay.
[Defendant]: It can't be.
[Defense counsel]: So, that's what the conversation's revolving around?
[Defendant]: Exactly.
[Defense counsel]: So, what's in your head [at] that moment?
[Defendant]: At that moment is — I'm explaining to her that that type of trust is not going to happen like that. It — it just can't come like that. It's going to take time for that kind of trust to — to come back. I mean, it took twenty-three years for us to build that type of trust, and in a matter of months, she just destroyed it, like nothing. But I started thinking about the trust I have in her as a nurse, and how she's saved my life before, so I entrust her with my physical life. And I start thinking back, immediately, to my suicide attempt; and I realized, in an instant, that there's a problem. There's a problem with that.
[Defense counsel]: What was the problem?
[Defendant]: The problem is she never called 9-1-1.
[Defense counsel]: You never saw a doctor, you never were taken to the hospital —
[Defendant]: No.
[Defense counsel]: — had your stomach pumped, none of that?
[Defendant]: No.
[Defense counsel]: That's what's in your head at that moment?
[Defendant]: immediately, I — for some reason, at that moment, right there and then — I had never realized that till that very second.
[Defense counsel]: So, what happened next?
[Defendant]: I confronted her. It — I said you know, you were going to let me die. You were going to let me die. And she's —
[Defense counsel]: You can't say what she said. Was there an instruction for you to leave the house?
[Defendant]: Yes.
The defendant testified that after the victim repeated what she had said, he "grabbed her by the neck." He claimed he did not know why he did so, but stated he acted "instinctually." He indicated the victim started fighting, but he did not release her right away. When asked how long he held onto the victim, he testified, "[i]t seemed like it — it lasted forever, but it couldn't have lasted forever." When the defendant was asked what was going through his mind while his hands were around the victim's throat, he answered, "I'm not really thinking. It's, like, I just blanked out. And I'm not even really looking at her, because she's swinging at me and she's beating on me, and I'm ducking my head, and — and that's how I got scratched up." The defendant ultimately released the victim when "she got heavy on [the defendant's] hands." He added, "[i]t was like she went limp."
Initially, we note defense counsel acquiesced in the ruling sustaining the State's objection; consequently, this objection has been waived under La. Code Crim. P. art. 841(A) ("[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence."). See State v. Huizar, 414 So.2d 741, 749 (La. 1982) (defense counsel, by failing to object, acquiesced in the ruling sustaining the State's objection limiting examination of a witness); State v. Motton, 395 So.2d 1337, 1344 (La.), cert. denied, 454 U.S. 850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981) (defense counsel, by instructing the witness "[a]ll right, don't answer that[,]" acquiesced in the ruling sustaining the State's objection); State v. Brown, 522 So.2d 1110, 1116-17 (La. App. 1st Cir. 1988), writ denied, 548 So.2d 1222 (La. 1989) ("[w]hen defense counsel fails to make a contemporaneous objection to a ruling sustaining the [S]tate's objection to defense questioning, such failure is deemed to constitute acquiescence in the ruling and the alleged error is not preserved for review on appeal.").
Moreover, even addressing the defendant's assignment of error, we find it to be without merit. Louisiana Code of Evidence article 803, in pertinent part, provides:
See State v. Guidry, 2016-0465 (La. App. 1st Cir. 10/31/16), 2016 WL 6427768, at *7, writ denied , 2016-2209 (La. 9/22/17), 227 So.3d 824.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
***
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant's then existing condition or his future action.
See also State v. Raymond, 258 La. 1, 15, 245 So.2d 335, 340 (1971), app dis'md & cert. denied , Ramos v. Louisiana, 404 U.S. 805, 92 S.Ct. 101, 30 L.Ed.2d 38 (1971) ("[t]he victim's state of mind, of course, can be proved by circumstantial evidence, that is, by utterances from which the jury may infer the existence of fear or revulsion. When an out-of-court statement is offered to prove circumstantially the declarant's state of mind, it is non-hearsay. It is admitted in evidence, not to prove the truth of the facts recited, but to prove that the utterance occurred as a basis for inference.").
Evidence to prove the declarant's state of mind can be used to prove the declarant's subsequent conduct. La. C.E. art. 803(3); State v. Ulfers, 2007-0832 (La. App. 1st Cir. 2/8/08), 2008 WL 441488, at *20, writ denied, 2008-1100 (La. 1/16/09), 998 So.2d 90. A state of mind declaration is relevant if it tends to make the existence of any consequential fact more or less probative than it would otherwise be without the evidence. La. C.E. art. 401. Nevertheless, relevant declarations may be legally inadmissible if their probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misapplication by the jury. La. C.E. art. 403; Ulfers, 2008 WL 441488, at *20.
Even when the declarant's state of mind is not the ultimate proposition to be proven, the declaration may be used as circumstantial evidence of the declarant's behavior by providing an intermediate basis for further inferences about his conduct. Where extrajudicial declarations are offered to show the declarant's state of mind or intent to undertake a course of action, when the communication indicates the act is dependent upon an event or upon acts of another, the contingency operates only to reduce the probative force (weight) of the evidence, not its admissibility. The declarations are non-hearsay if offered only to circumstantially prove the decedent's state of mind prior to the homicide. Ulfers, 2008 WL 441488, at *20.
Under compelling circumstances, formal rules of evidence must yield to a defendant's constitutional right to confront and cross-examine witnesses and to present a defense. For example, normally inadmissible hearsay may be admitted if it is reliable, trustworthy, and relevant, and if to exclude it would compromise the defendant's right to present a defense. See U.S. Const. amend. VI; La. Const. art. I, § 16; Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 19-23, 87 S.Ct. 1920, 1923-25, 18 L.Ed.2d 1019 (1967); State v. Van Winkle, 94-0947 (La. 6/30/95), 658 So.2d 198, 201-02; State v. Gremillion, 542 So.2d 1074, 1078-79 (La. 1989); see also State v. Juniors, 2003-2425 (La. 6/29/05), 915 So.2d 291, 325-26, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). While the objections were sustained in this matter, the jury was made aware of the challenged victim statements through the defendant's pretrial recorded statement and additional testimony from the defendant at trial.
In his pretrial statement, the defendant stated the victim responded to his accusation that she wanted him to die so she could be with "that dude," and she was "just going to let it happen," by stating "if [the defendant] believed that. Just leave. Just get [the defendant's] shit and leave." (State Exhibit #12, 14:07:06-14:07:31).
Additionally, the following colloquy occurred at trial:
[Defendant]: ... I did not want things to go bad with us. I —
[Defense counsel]: But it did, and that's what you have to explain to the jury. What's the difference between August 30th and June 6th What is in your head? You know, an argument's an argument. But in your head, at that moment —
[Defendant]: Is, all of a sudden, the realization of understanding how traumatic that suicide was for me and how she pushed me into it throughout that year, just going through that affair, and just being devious and devious. And when she found me, instead of saying oh, my God, what have 1 pushed this idiot into, she chose to just walk away.
[Defense counsel]: So, that's what's going through your head in that moment, on the bed, on the 6th?
[Defendant]: Yes. And then instead of admitting to it, she's just, like, well, If you believed that I was trying to kill you, just pack your shit and get out. And I can tell she's lying. I can tell she's lying. She doesn't know what else to say. (Emphasis added).
This case involves an offer of evidence under La. C.E. art. 803(3) of the victim's emotion, such as anger, disgust, or hatred with or for the defendant to establish the defendant's, rather than the victim's (the declarant's), emotion or future action, i.e., that the defendant strangled the victim to death while acting under provocation. Thus, the challenged evidence was not admissible under La. C.E. art. 803(3).
Further, even if the victim's statements were considered a state of mind declaration, they were relevant only to the extent that they established that the defendant strangled the victim "in sudden passion or heat of blood immediately caused by provocation sufficient to deprive and average person of his self-control and cool reflection." See La. R.S. 14:31(A)(1). However, the verdict returned in this matter, rendered by a jury aware of exactly what the victim stated to the defendant immediately before he strangled her, indicates the jury found the statements insufficient to mitigate the murder to manslaughter under La. R.S. 14:31(A)(1).
See State v. Weedon, 342 So.2d 642, 647 (La. 1977) ("[i]f the wife had told her friend she intended to tell her husband of her intention to leave him the following morning, her out-of-court declaration might have been admissible under Raymond as tending to show immediately antecedent circumstances explanatory of the killing."). (Decided under prior law).
Lastly, the challenged rulings did not prevent the defendant from arguing that his killing of the victim was manslaughter, rather than second degree murder. The defense argued, "[d]o you think [the defendant] wanted to kill his wife? That's the point. He didn't think. That's why it's manslaughter. He did not think. He reacted.... So, that morning, your wife comes home, you're having discussion, something dawns on you, she tells you get your stuff and get out — which she said twice, [the defendant] said. Never said it before."
Under these circumstances, the challenged rulings, even if erroneous, were harmless and did not constitute reversible error. See La. Code Crim. P. art. 921. The guilty verdict rendered in this case was surely unattributable to error, if any, associated with the rulings. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Brue, 2009-2281 (La. App. 1st Cir. 5/7/10), 2010 WL 1838383, *13, writ denied, 2010-1317 (La. 1/7/11), 52 So.3d 883.
These assignments of error are without merit. OTHER CRIMES EVIDENCE; EX POST FACTO
In pro se assignment of error number 4, the defendant contends the trial court erred in admitting other crimes evidence by failing to weigh its prejudicial effect and by failing to apply the proper standard of proof necessary for its admittance. Additionally, he contends the ruling violated the ex post facto clause.
Louisiana Code of Evidence article 412.4, in pertinent part, provides:
A. When an accused is charged with a crime involving abusive behavior against a family member, ... evidence of the accused's commission of another crime, wrong, or act involving assaultive behavior against a family member, ... may be admissible and may be considered for its bearing on any matter to which it is relevant, subject to the balancing test provided in Article 403.
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D. For purposes of this Article:
(1) "Abusive behavior" means any behavior of the offender involving the use or threatened use of force against the person or property of a family member... of the alleged offender.
***
(3) "Family member" means spouses[.]
Prior to trial, the State filed notice of intent to introduce evidence of similar crimes, wrongs, or acts in a domestic abuse case pursuant to La. C.E. art. 412.4.
East Baton Rouge Parish Sheriff's Office Corporal Leremy McGraw testified at the hearing on the motion. On August 30, 2015, he performed a welfare check on the victim at her home. The police were advised by a third-party caller that her friend (the victim) had texted that she was being held in her home by her husband who would not allow her to leave. The police knocked on the door of the victim's home, and the defendant looked out at them through some mini blinds. The police asked him to come outside. He refused, stating he and his wife "were having a conversation," and instructed the police to leave. After several attempts to get the defendant to open the door, the victim looked out at the police through the mini blinds. Corporal McGraw testified, "[the victim] was shaking her head no while saying that things were okay, she didn't need us, and that we could go, that she and her husband were having a conversation." The defendant exited after the police continued to knock on the door. He was detained and advised of his rights.
The victim advised the police that she and the defendant began arguing shortly after she arrived from work. She stated the defendant "believed her to be cheating on him." She also stated she was in fear of her life because the defendant threatened to kill her. According to the victim, during the argument, the defendant retrieved a handgun from a safe in the home, removed the magazine, and placed it on a dresser or nightstand in the room. The police subsequently recovered a gun from under a pillow on the bed. When questioned about the victim's allegations, the defendant denied threatening to kill her, but conceded "some of the things said during the argument could have implicated that." He was arrested for simple assault.
The State noted, in the simple assault incident, the defendant, at least by his actions, threatened to kill the victim. Thereafter, approximately nine months later, he killed the victim. The State argued evidence of the simple assault was relevant, and thus, admissible under La. C.E. art. 412.4. Further, the State argued the incident was also admissible as proof of intent, plan, and opportunity. See La. C.E. art. 404(B). The defendant argued evidence of the simple assault was inadmissible under La. C.E. art. 412.4 and 403. According to the defendant, the State was "going back nine months earlier to a single act where a gun was not involved. There was an argument about infidelity in a marriage in their home, no one was beaten, no one was strangled, no one was shot, nothing else happened." The defendant disputed evidence of the simple assault was admissible in the instant case as proof of pattern or intent. He argued "[t]his is a marriage that's on the rocks for the reasons that everyone stated, that she was being in — having an affair on him. So, being angry and having an argument is not abusive or assaultive behavior."
The trial court found the defendant was charged with a crime involving abusive behavior, i.e., murder. The court further found the simple assault was another crime, wrong, or act involving assaultive behavior against a family member. The court held the probative value of the simple assault was not substantially out-weighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. Accordingly, the trial court granted the motion under La. C.E. art. 412.4.
Other Crimes, Wrongs, or Acts
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403. State v. Gaines, 2020-0251 (La. App. 1st Cir. 12/30/20), 2020 WL 7769738, at *2, writ denied, 2021-00356 (La. 5/11/21), 315 So.3d 870.
Any inculpatory evidence is "prejudicial" to a defendant, especially when it is "probative" to a high degree. As used in the balancing test, "prejudicial" limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. See Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) ("The term `unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged."). Gaines, 2020 WL 7769738 at *2.
Evidence of other crimes, wrongs or acts committed by the defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant. It is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. However, evidence of other crimes, wrongs, or acts may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. See La. C.E. art. 404(B)(1). Even when the other crimes evidence is offered for a purpose allowed under La. C.E. art. 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. The State bears the burden of proving that the defendant committed the other crimes, wrongs, or acts. State v. Calloway, 2018-1396 (La. App. 1st Cir. 4/12/19), 276 So.3d 133, 147, writ denied, 2019-00869 (La. 1/20/21), 308 So.3d 1164.
Remoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs its prejudicial effect. A lapse in time goes to the weight of the evidence, rather than to its admissibility. State v. Reed, 2012-1788 (La. App. 1st Cir. 8/6/13), 2013 WL 4010279, at *9, writ denied, 2013-2157 (La. 3/14/14), 134 So.3d 1194. A trial court's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. Calloway, 276 So.3d at 148.
The trial court did not clearly abuse its discretion in granting the motion. The defendant was charged with a crime involving abusive behavior against a family member (the victim) and the probative value of the evidence of the simple assault was not outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or waste of time. See La. C.E. arts. 412.4 & 403. Additionally, prejudice, if any, from evidence that approximately nine months before the instant offense, the defendant was arrested for simple assault after the victim reported he threatened to kill her because he "believed her to be cheating on him" was outweighed by the probative value of the evidence on the issues of motive, opportunity, intent, and absence of mistake or accident. See La. C.E. art. 404(B)(1). Evidence of the simple assault tended to prove a material fact at issue, i.e., whether or not the defendant acted with the specific intent to kill the victim, and to rebut his defense to the contrary.
Ex Post Facto Application of Law
Article I, § 10 of the United States Constitution forbids states from passing any ex post facto law. Although the language of the federal constitution does not define the term, the seminal case of Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) interpreted that term, and that holding has been applied ever since. The Calder Court outlined four categories of ex post facto laws: (1) a law making criminal, and subject to punishment, an activity which was innocent when originally done; (2) a law aggravating a crime or making it a greater crime than it was when originally committed; (3) a law aggravating a crime's punishment; and (4) a law altering the rules of evidence to require less or different testimony than was required at the time of the commission of the crime so as to make easier the conviction of the offender. Id. at 390. State ex rel. Olivieri v. State, 2000-0172 (La. 2/21/01), 779 So.2d 735, 742, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730, cert. denied sub nom. Hutchinson v. Louisiana, 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001); State v. Bernard, 2008-1322 (La. App. 1st Cir. 2/13/09), 2009 WL 368621, at *3, writ denied, 2009-0680 (La. 12/11/09), 23 So.3d 910.
Louisiana Constitution Article I, § 23 also prohibits the enactment of any ex post facto law. Louisiana's Ex Post Facto Clause is patterned after the federal law and prohibits ex post facto laws which alter the definition of criminal conduct or increase the penalty. State ex rel. Olivieri, 779 So.2d at 744; Bernard, 2009 WL 368621 at *3.
The trial court addressed the issue of whether La. C.E. art, 412.4 could apply to conduct occurring prior to its August 1, 2016 effective date. The court found La. C.E. art. 412.4 could apply retroactively, citing State v. Smith, 2017-0661 (La. App. 4th Cir. 1/10/18), 237 So.3d 29, writ denied, 2018-0273 (La. 2/18/19), 265 So.3d 771. In Smith, the court relied upon jurisprudence interpreting language in La. C.E. art. 412.2 similar to language in La. C.E. art. 412.4, to-wit:
See 2016 La. Acts No. 399, § 1 (eff. Aug. 1, 2016).
The retroactive application of Article 412.2 to the Defendant's case did not constitute an ex post facto violation. Article 412.2 did not alter the amount of proof required in the Defendant's case as it merely pertains to the type of evidence which may be introduced. Prior to the enactment of Article 412.2, the testimony at issue was admissible if it fell within an exception under La. Code Evid. art. 404(B). Article 412.2 merely removed that restriction.
Smith, 237 So.3d 29, 43-44, quoting State v. Willis, 2005-218 (La. App. 3rd Cir. 11/2/05), 915 So.2d 365, 383, writ denied, 2006-0186 (La. 6/23/06), 930 So.2d 973, cert. denied, 549 U.S. 1052, 127 S.Ct. 668, 166 L.Ed.2d 514 (2006).
Indeed, the fourth category of Calder applies to "[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." 3 Dall, at 390 (emphasis deleted). The last six words are crucial. The relevant question is whether the law affects the quantum of evidence required to convict. Carmell v. Texas, 529 U.S. 513, 551, 120 S.Ct. 1620, 1642, 146 L.Ed.2d 577 (2000) (emphasis in original).
Louisiana Code of Evidence article 412.4 does not attach criminality to any act previously done, and which was innocent when done; aggravate any crime theretofore committed; provide a greater punishment therefor than was prescribed at the time of its commission; or alter the degree, or lessen the amount or measure, of the proof that was made necessary to convict when the crime was committed. The Article is a competency of the evidence rule, rather than a sufficiency of the evidence rule. It regulates the mode in which facts constituting guilt may be placed before the jury. It does not govern the sufficiency of those facts for meeting the burden of proof. See Carmell, 529 U.S. at 546-47, 120 S.Ct. at 1640; Bernard, 2009 WL 368621 at *3 ("The issue of the admissibility of evidence is simply different from the question whether the properly admitted evidence is sufficient to convict the defendant. Evidence admissibility rules do not go to the general issue of guilt, nor to whether a conviction, as a matter of law, may be sustained. Prosecutors may satisfy all the requirements of any number of witness competency rules, but this says absolutely nothing about whether they have introduced a quantum of evidence sufficient to convict the offender. Sufficiency of the evidence rules (by definition) do just that—they inform us whether the evidence introduced is sufficient to convict as a matter of law (which is not to say the jury must convict, but only that, as a matter of law, the case may be submitted to the jury and the jury may convict)."). (Emphasis in original).
This assignment of error is without merit.