Opinion
2015 KA 1931
06-29-2016
STATE OF LOUISIANA v. MICHAEL DONALD JONES
Joseph L. Waitz, Jr. District Attorney Ellen D. Doskey Assistant District Attorney Houma, Louisiana Counsel for Appellee State of Louisiana Bertha M. Hillman Louisiana Appellate Project Covington, Louisiana Counsel for Defendant-Appellant Michael Donald Jones
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 689,008, PARISH OF TERREBONNE
STATE OF LOUISIANA HONORABLE JUAN W. PICKETT, JUDGE Joseph L. Waitz, Jr.
District Attorney
Ellen D. Doskey
Assistant District Attorney
Houma, Louisiana Counsel for Appellee
State of Louisiana Bertha M. Hillman
Louisiana Appellate Project
Covington, Louisiana Counsel for Defendant-Appellant
Michael Donald Jones BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
Disposition: CONVICTION AND SENTENCE AFFIRMED.
CHUTZ, J.
The defendant, Michael Donald Jones, was charged by bill of information with domestic abuse battery, fourth or subsequent offense, a violation of La. R.S. 14:35.3. He entered a plea of not guilty and, following a jury trial, was found guilty as charged by a unanimous verdict. The defendant filed motions for postverdict judgment of acquittal and new trial, both of which were denied. He was sentenced to twelve years imprisonment at hard labor, with the first three years to be served without the benefit of probation, parole, or suspension of sentence. The defendant filed a motion to reconsider sentence, which was denied. He now appeals, alleging one assignment of error. For the following reasons, we affirm the defendant's conviction and sentence.
The defendant pled guilty to domestic abuse battery on May 23, 2007, under docket number 494,320; domestic abuse battery, second offense, on July 25, 2011, under docket number 573,492; domestic abuse battery, third offense, on July 25, 2011, under docket number 600,894; and domestic battery by strangulation on July 25, 2011, under docket number 601,209 in the Thirty-Second Judicial District Court for the Parish of Terrebonne.
FACTS
On September 18, 2014, around 6:30 p.m., Houma Police Department Lieutenant Troy John Voisin responded to a report of a disturbance at the Sugar Bowl Motel in Houma, Louisiana. While there, the lieutenant came into contact with the defendant, Angela Billiot, Diedre Trosclair, and Corey Lewis. The investigation revealed that the defendant and Billiot were in an on-and-off relationship and had lived together in the past. On September 18, 2014, the defendant sent a Facebook message to Billiot asking her to meet him. Billiot met the defendant at a park, and the two talked while the defendant drank a beer. Billiot decided to ride with the defendant to his motel room. While they were driving to the motel, the defendant repeatedly cursed at Billiot and called her names. Billiot asked the defendant to allow her to exit the vehicle, but the defendant refused. He stopped at a convenience store and purchased a six-pack of beer that he began drinking on the way to the motel.
Once they arrived at the motel, the defendant told Billiot that he would not hurt her, so she decided to enter the room. The defendant kissed Billiot and told her that he missed her, but then stated that he heard that she was seen with another man. He became angry and started to choke Billiot. He refused to let her leave and told her that she would not leave the motel room without a broken neck. He continued to choke her, using his forearm, and stated that "they would never find bruises." When the defendant went to the restroom, Billiot attempted to leave. She opened the motel room door, but the defendant grabbed her, pulled her back into the room, and choked her with his forearm before she could escape. At some point, the defendant broke Billiot's cellular telephone, and she broke the defendant's cellular telephone.
Corey Lewis was living at the motel during the time of the incident. He heard commotion outside of his room, walked outside, and saw the defendant and Billiot "fussing." He observed the defendant grab Billiot by her neck and hair and pull her back toward his room. According to Lewis, Billiot was terrified, crying, asking for her phone, and trying to get the defendant off of her. Lewis contacted the front desk. In response, Diedre Trosclair, the motel manager, knocked on the defendant's door and asked if everything was alright. When she did so, Billiot was able to leave the room.
The defendant told officers that he grabbed Billiot when she attempted to leave his motel room because she had his cellular telephone.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant contends that the district court erred in ruling screenshots of Facebook messages purportedly sent to Billiot from the defendant were properly authenticated. Specifically, the defendant claims that the messages were not sent through an account created by the defendant, Billiot did not know the date the messages were sent, and the defendant could not be identified as the sender. In the alternative, the defendant argues that the messages were irrelevant and more prejudicial than probative. The defendant further contends that the State's "threat to use the unauthenticated, irrelevant and prejudicial messages if [the defendant] testified had a chilling effect on his right to testify and deprived him of his constitutional right to present a defense[.]"
During a pretrial hearing on the defendant's motion to exclude other crimes evidence, defense counsel sought to preclude introduction of the fourth domestic abuse battery offense listed on the defendant's bill of information, any other crimes evidence, and the defendant's pending charges in Lafourche Parish. At this same hearing, defense counsel, for the first time, raised the issue, by an oral motion in limine, to exclude screenshots of the Facebook messages received from the State that morning. Defense counsel argued that the evidence was untimely and undated. Defense counsel further argued that although the defendant's name was used as the sender of the messages, his picture was not shown. According to defense counsel, there were numerous Facebook accounts bearing the name, "Michael Jones."
The State responded that the screenshots were received that day from Billiot, and it intended to use them only if the defendant testified and denied threatening Billiot. The State indicated that it was prepared to call Billiot in rebuttal in order to identify the screenshots. Defense counsel argued that "threatening the victim is not an element of the crime that [the defendant] is charged with[,]" which, in effect, raised the issue of relevancy.
The district court denied the motion, finding the screenshots to be admissible, but did not rule on the issue of authenticity. The court pointed out that the State would have to lay the proper foundation in order to use the evidence. Defense counsel then argued that the "bigger problem would be [the] messages - there is no authentication. There is no date on here." The district court responded that Billiot would have to testify in order to lay the foundation that she knew that the messages came from the defendant's Facebook account when she received them.
Following the State's case-in-chief, defense counsel again raised the issue of the authenticity of the screenshots by requesting that Billiot authenticate the messages before the defendant decided whether he would testify. Outside of the presence of the jury, Billiot testified about the source of the Facebook screenshots. She explained that in response to one of her Facebook posts, the defendant sent her a private message stating:
You [expletive] . . . [p]iece of [expletive] [expletive]. I'm going to show you, you [expletive] trash, better be all you need and want. I'm so done with you, you [expletive] whore. I hate your [expletive] guts. You [expletive] loser. Watch [expletive], I knew you were cheating. I'm going to beat the living [expletive] out of . . . y'all [expletive].... [Expletive] you. You like to lie. I will [expletive] you up.
According to Billiot, she knew that the defendant was the author of the messages because no one else knew his Facebook password and because of the contents of the message, which aligned with the state of their relationship and what he told her in his motel room on the night of the incident. On cross-examination, Billiot admitted that the screenshots were undated, but that the messages were sent prior to the incident at the motel and were sent in response to a post that she made on her account. According to Billiot, although the defendant's son, who lived with her, created the Facebook account for the defendant, the defendant changed his password prior to his arrest. The following colloquy occurred after the conclusion of defense counsel's cross-examination of Billiot:
[Defense counsel]: Your Honor, the post is here, and I would like to offer, file and introduce -
[The State]: I'm not filing these things unless I am going to - unless he says he didn't do it.
[Defense counsel]: It's a Motion in Limine to decide the severe question on the authenticity of these documents. This is not -
[The court]: You can make a copy and introduce it.
[The State]: What's the basis of the introduction of this?
[The court]: I think it was just on part of the Motion.
[Defense counsel]: Yes, it is not part of the hearing - not part of the trial.
[The court]: Is that a part of the evidence that you are introducing?
[The State]: No.
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[The court]: No, I'm not going to introduce these now; but we can, if during the - if they bring that up during the testimony later on, on rebuttal.
Defense counsel argued that because Billiot admitted that the defendant did not create the Facebook account, the screenshots were unreliable. The State responded that it gave the screenshots to defense counsel to advise them that threats were made against Billiot, and if the defendant denied the threats, it was prepared to impeach his testimony with information in the screenshots. According to the State, the only issue was whether it proved the authenticity of the screenshots. It noted that it provided testimony from Billiot that the messages were from the defendant, sent prior to the motel incident, and reflected the way the defendant communicated.
The district court ruled that it would "allow the Facebook [messages] in, if the testimony was that the parties communicated to each other through Facebook Messenger. [Billiot] testified that she identified the Facebook messages that they were from the defendant; and were received prior to the incident at the Sugar Bowl [Motel]." The court also pointed out that Billiot "indicated that [the messages] came from the account that was used by the defendant. Certainly, it is up to - the attorneys can cross-examine her and it goes to the weight of the evidence as to who all had access to that account." The defendant objected to the district court's ruling.
After a recess and prior to the jury returning to the courtroom, defense counsel stated:
One second, Your Honor, I do want to put one thing on the record before we bring the jury in. We have discussed our options with [the defendant], Your Honor, in regards to testifying. We let him know that that's not a decision [defense counsel] can make. It's his Constitutional right if he wants to, or if he doesn't want to. We went over the pros and the cons with him and advised him. And it is his decision - I want to go on the record just to say that he is not going to testify at his trial[.]
On appeal, the defendant challenges the relevancy and authenticity of the screenshots. He also contends that the State's "threat" to use the messages had a "chilling effect" on his right to testify, depriving him of the constitutional right to present a defense. Relevance
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. Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence that is not relevant is not admissible. La. Code Evid. 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. Code Evid. art. 403.
It is well settled that courts may not admit evidence of other wrongs or acts to show the defendant as a man of bad character who has acted in conformity with his bad character. La. Code Evid. art. 404B(1). Evidence of other wrongs or acts committed by the defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant. However, the State may introduce evidence of other wrongs or acts if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. Code Evid. art. 404B(1). Upon request by the accused, the State must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. Even when the other wrongs or acts evidence is offered for a purpose allowed under Article 404B(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 also bears the burden of proving that the defendant committed the other wrongs or acts. State v. Rose, 2006-0402 (La. 2/22/07), 949 So.2d 1236, 1243.
Although a defendant's prior wrongs and bad acts may be relevant and otherwise admissible under Article 404B(1), the court must still balance the probative value of the evidence against its prejudicial effects before the evidence can be admitted. La. Code Evid. art. 403. Any inculpatory evidence is "prejudicial" to a defendant, especially when it is "probative" to a high degree. State v. Germain, 433 So.2d 110, 118 (La. 1983). As used in the balancing test, "prejudicial" limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Germain, 433 So.2d at 118. See also 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"); Rose, 949 So.2d at 1244.
The State had an independent and relevant reason for presenting the Facebook screenshots; that is, to establish the defendant's intent to harm Billiot. In the messages, which were sent to Billiot prior to the incident at the motel, the defendant claimed that he knew Billiot was cheating on him. He threatened to "beat the living f*** out of . . . y'all bitches" and stated, "I will f*** you up." (R. 501-02). The fact that prior to the incident, he sent messages to Billiot threatening to harm her was relevant to his intent to hurt her at the motel and probative of his propensity to use force or violence against her. See La. R.S. 14:35.3A ("Domestic abuse battery is the intentional use of force or violence ....") (Emphasis added.)
We note that although the Facebook messages were not introduced into evidence, the victim acknowleged the content of some of the messages during her testimony outside of the jury's presence. --------
On the day of the incident, the defendant claimed that Billiot was attempting to depart from the motel room and he was trying to stop her from leaving with his cellular telephone. He explained that he grabbed Billiot prior to her attempting to leave the motel room in order to retrieve his cellular telephone from her. He told Lieutenant Voisin that Billiot was a jealous individual and had broken his cellular telephone. (R. 430). His statements to the lieutenant were contrary to the testimony of Billiot and Lewis. (R. 473-74, 450-60). If the defendant had chosen to testify, the screenshots of the Facebook messages would have been more probative than prejudicial to show that there were two conflicting versions of what happened at the motel and to impeach the defendant's supposed testimony that he had no intent to hurt Billiot. Any prejudicial effect to the defendant from the challenged evidence did not rise to the level of undue or unfair prejudice when balanced against the probative value of the evidence. See State v. Lewis, 2008-1381 (La. App. 1st Cir. 2/13/09), 7 So.3d 782, 789-90, writ denied, 2009-0531 (La. 11/20/09), 25 So.3d 787.
Furthermore, with respect to the defendant's argument that threatening Billiot was not an element of the instant offense, it is significant that the State did not seek to introduce the screenshots for that purpose. Rather, the State indicated it intended to use the screenshots of the Facebook messages to impeach the defendant if he took the stand and lied about never having threatened Billiot. Louisiana Code of Evidence article 607D(2) provides:
Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness' testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.Pursuant to Article 607D(2), the screenshots constituted extrinsic evidence that would contradict the defendant's testimony, should he testify that he never threatened Billiot. Thus, the screenshots were admissible for impeachment purposes to attack the defendant's credibility if he was put on the stand. Authenticity
Questions of admissibility of evidence are within the discretion of the district court and should not be overturned absent a clear abuse of that discretion. See State v. Mosby, 595 So.2d 1135, 1139 (La. 1992). Louisiana Code of Evidence article 901 provides, in pertinent part:
A. General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
B. Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Article:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
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(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
For admission, it suffices if the custodial evidence establishes that it was more probable than not that the object is the one connected to the case. A preponderance of the evidence is sufficient. Moreover, any lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than its admissibility. Ultimately, a chain of custody or connexity of the physical evidence is a factual matter to be determined by the jury. State v. Berry, 95-1610 (La. App. 1st Cir. 11/8/96), 684 So.2d 439, 455, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603.
In the instant case, Billiot testified about the source of the Facebook screenshots outside of the jury's presence. According to her testimony, the messages were sent from the defendant's Facebook account to her Facebook account and were sent prior to the instant offense in response to a post she made on her Facebook account. Billiot explained that she knew the defendant was the author of the messages because no one else knew his Facebook account password and because of the contents of the messages, which aligned with the state of their relationship and what the defendant told her in his motel room on the night of the incident. We find no error or abuse of discretion in the district court's ruling that the messages were admissible. Right to Present a Defense
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. See U.S. Const. amend. VI; La. Const. art. I, § 16; State v. Van Winkle, 94-0947 (La. 6/30/95), 658 So.2d 198, 201-02; see also 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. 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). The defendant claims that the district court's ruling, which allowed the State to use the screenshots of the Facebook messages to impeach him if he took the stand and denied threatening Billiot, created a "chilling effect" on his right to present a defense. (Def. brief, pp. 3 & 6)
Initially, we note that defense counsel failed to proffer the supposed testimony of the defendant that he would have given if he had testified at trial. Louisiana Code of Evidence article 103A(2) provides that, "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [w]hen the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel." Thus, the defendant did not preserve this issue for review.
Moreover, the defendant was never deprived of his right to testify, but rather, he chose not to exercise that right. Defense counsel clearly stated on the record that he "went over the pros and the cons" with the defendant and "advised him." Defense counsel concluded that the defendant chose not to testify "based on his own decision[.]" (R. 510). Had the defendant chosen to testify and still did not want evidence of the Facebook messages to be adduced, then he would have been required to be truthful concerning whether he threatened Billiot prior to the instant offense. A defendant being pressed while testifying to be truthful rather than perjuring himself in no way deprives him of his right to present a defense. Additionally, notwithstanding the defendant's choice as to whether to testify, defense counsel had every opportunity to call to the stand during his case-in-chief any witness for the defense that he chose. However, defense counsel elected to call only Lieutenant Voisin, whose testimony established that he did not see any bruises or markings on Billiot after the incident. (R. 512).
Based on the foregoing, not only did the defendant fail to preserve this issue for appellate review, we conclude that there was never a "chilling effect" placed on the defendant's right to present a defense. Further, the State has the right to present evidence on rebuttal. See La. Code Evid. art. 611E; La. Code Crim. P. arts. 765 (5) & (6). Accordingly, this assignment of error is without merit.
REVIEW FOR ERROR
In accordance with La. Code Crim. P. art. 920(2), all appeals are reviewed for errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. After a careful review of the record, we have discovered a sentencing error. In addition to the sentencing provisions provided in La. R.S. 14:35.3F(1), the statute mandates that a person who is convicted of a fourth or subsequent domestic abuse battery offense shall be fined five thousand dollars. The sentencing transcript indicates that the district court failed to impose the mandatory fine. The minutes also reflect that no fine was imposed. Accordingly, the defendant's sentence, which did not include the fine, is illegally lenient. However, since the sentence is not inherently prejudicial to the defendant, and neither the State nor the defendant has raised this sentencing issue on appeal, we decline to correct this error. See Price, 952 So.2d at 124-25.
CONVICTION AND SENTENCE AFFIRMED.