Opinion
21-K-690
02-07-2022
STATE OF LOUISIANA v. WARDELL BRIGNAC
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE RAYMOND S. STEIB, JR., DIVISION "A", NUMBER 19-5284
Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.
WRIT DENIED
Relator, Wardell Brignac, seeks review of the trial court's ruling that granted the State's notice of intent to introduce evidence under La. C.E. art. 404(B). For the following reasons, this writ application is denied.
Procedural history
On September 10, 2019, the Jefferson Parish District Attorney filed a bill of information charging the relator with filing a false insurance claim in violation of La. R.S. 22:1925. On July 12, 2021, the State filed a "State's Notice of Intent to Introduce Evidence Under La. C.E. Article 404(B)" regarding a similar set of facts from 2015, when the relator had reported his car stolen, and the vehicle was later recovered in Orleans Parish after having been burned. The State maintained that given the similarities between Defendant's instant crime and his previous crime, "the other crimes evidence in this case tends to show that the Defendant acted with the requisite criminal intent as to his instant crime." Additionally, the State asserted in its notice that the prior incident showed Defendant's modus operandi, preparation, plan, and absence of mistake. After hearings on August 24, 2021 and October 20, 2021, the trial court ruled that it would allow the State's evidence to be admitted at trial pursuant to La. C.E. art. 404(B).
In this writ application, Defendant argues that the trial court erred by granting the State's 404(B) notice. Defendant maintains that no one, including the State, contends that he burned his previous car. He further maintains that in order for the State to use the prior car burning, it will have to prove that he burned his car the first time. Defendant asserts, therefore, that this will mean a "trial within a trial," which he argues courts should not allow.
Law and analysis
Absent an abuse of discretion, a trial court's ruling on the admissibility of evidence pursuant to La. C.E. art. 404(B)(1) will not be disturbed. State v. Williams, 02-645, p. 16 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ denied, 02-3182 (La. 4/25/03), 842 So.2d 398. As a court of review, we are required to be mindful of the standard of review for these types of matters. Where, as in the instant case, the ruling of the trial court is supported by evidence and applicable law, this Court cannot impermissibly substitute its own judgment. State v. Thompson, 11-0915 (La. 5/8/12), 93 So.3d 553, 565.
In the instant case, the bill of information alleges that the relator knowingly presented false, incomplete or fraudulent information for the purpose of obtaining an insurance benefit, a violation of La. R.S. 22:1925. An element of this specific intent crime requires proof of a defendant's intent to injure, defraud, or deceive his insurance company. The State argued below that the defendant's 2015 insurance claim, made under strikingly similar circumstances, shows the defendant's modus operandi, preparation, plan, and absence of mistake pertaining to the offense for which he is charged. Contrary to the defendant's argument that the State seeks to use the evidence to establish that he was guilty of a previous act of insurance fraud, the evidence itself does not allege an investigation, indictment or conviction of the defendant for a prior offense. To that end, evidence of the defendant's 2015 insurance claim meets the definition of "other crimes" evidence, and falls under La. C.E. art. 404(B)(1)'s provision that evidence of "other acts" is admissible for purposes other than to prove the character of the person in order to show that he acted in conformity therewith, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, …" Evidence pertaining to the 2015 insurance claim is admissible to show that the defendant acted with the requisite criminal intent as to his instant crime, and to show the defendant's modus operandi, preparation, plan, and absence of mistake, as alleged by the State in its La. C.E. art. 404(B) motion.
Louisiana courts have previously considered similar issues to the one raised under what has become known as the "doctrine of chances." As explained by the supreme court in State v. Kahey, 436 So.2d 475, 488 (La. 1983):
The relevancy of other crimes to prove intent stems from the doctrine of chances. The attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent. The argument is based purely on the doctrine of chances, and it is the mere repetition of instances, and not their system or scheme, that satisfies our logical demand. 2 Wigmore, Evidence, § 302 p. 200 (3rd ed. 1940). Professor McCormick has stated that for questions of intent, the purpose of which such evidence may be relevant is to show by similar offenses that the act for which the defendant is on trial was not inadvertent, accidental, unintentional, or without guilty knowledge. See McCormick, Evidence § 190 at 450 (Cleary ed. 1972).
The doctrine has been used to justify the admission of other acts evidence, even when the prior act did not involve identical conduct, or result in the defendant having been previously charged. More pertinent to the instant case, in State v. Vail, 14-436 (La.App. 3 Cir. 11/5/14), 150 So.3d 576, writ denied, 14-2553 (La. 8/28/15), 176 So.3d 401, the Third Circuit discussed the doctrine in the context of a Michigan case, People v. Mardlin, that involved arson, stating:
While not binding on this court, a Michigan Supreme Court case, People v. Mardlin, 487 Mich. 609, 790 N.W.2d 607 (2010), discussed the "doctrine of chances" at length. In Mardlin, the defendant was convicted of arson of a dwelling house and burning insured property. On appeal, he argued that his home accidentally burned down; therefore, it was error to allow evidence admitted at trial of four previous home or vehicle fires, which occurred over the past twelve years and also involved insurance claims. The appellate court had concluded that the evidence was irrelevant, inadmissible, and improperly prejudicial. However, the Michigan Supreme Court examined the evidence in light of the "doctrine of chances."State v. Vail, 150 So.3d at 587-88.
In People v. Mardlin, 790 N.W.2d at 612-13, in examining the evidence in light of the "doctrine of chances," the Michigan Supreme Court explained:
The doctrine of chances-also known as the "doctrine of objective improbability"-is a" 'theory of logical relevance [that] does not depend on a character inference.'" Under this theory, as the number of incidents of an out-of-the-ordinary event increases in relation to a particular defendant, the objective probability increases that the charged act and/or the prior occurrences were not the result of natural causes. The doctrine is commonly discussed in cases addressing MRE 404(B) because the doctrine describes a logical link, based on objective probabilities, between evidence of past acts or incidents that may be connected with a defendant and proper, noncharacter inferences that may be drawn from these events on the basis of their frequency. If a type of event linked to the defendant occurs with unusual frequency, evidence of the occurrences may be probative, for example, of his criminal intent or of the absence of mistake or accident because it is objectively improbably that such events occur so often in relation to the same person due to mere happenstance.
While not binding authority, we find that the reasoning of the Michigan Supreme Court in addressing a similar fact pattern is instructive.
Conclusion
The record before us shows that, after hearing arguments of counsel, the trial court found that the defendant's 2015 insurance claim and his 2018 claim are "similar enough" to allow the 2015 evidence to be admitted under La. C.E. art. 404. In the instant case, given the facts presented, we find that under the doctrine of chances, the likelihood that defendant had two vehicles stolen and burned within a three-year period is remote and tends to show that these were not isolated incidents. Accordingly, we conclude that the trial court did not abuse its discretion in granting the State's motion.
Accordingly, for the foregoing reasons, the writ application is denied.
JJM
JGG
JOHNSON, J., DISSENTS WITH REASONS.
I, respectfully dissent from the majority disposition for the following reasons.
On September 10, 2019, the Jefferson Parish District Attorney filed a bill of information charging Defendant with filing a false insurance claim in violation of La. R.S. 22:1925. The bill of information reflects that the State specifically alleged that Defendant violated La. R.S. 22:1925 as follows:
Wardell J. Brignac…violated La. R.S. 22:1925 in that he did knowingly present or cause to be presented any written or oral statement as part of to [sic] in support of or denial of a claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete or fraudulent information concerning ant fact of thing material to such claim or insurance policy [sic].
The State filed "State's Notice of Intent to Introduce Evidence Under La. C.E. Article 404(B)" on July 12, 2021. In its notice, the State explained that on February 10, 2018, Defendant reported his car stolen and later on that same date, the vehicle was found burning and abandoned. The State asserted that Defendant eventually filed a claim with his insurance company, resulting in a $22,299.67 payment being made to Defendant. It also asserted that upon further investigation, Defendant's cell phone records contradicted his statement to law enforcement regarding where he was when his car was stolen. The State pointed out that the cell phone records showed that Defendant was present near the area of the burning vehicle's location when he received a phone call. It noted that the Harvey Fire Department classified the burning vehicle as a product of "incendiary arson." As such, the State said that it intended to introduce evidence at trial of a prior instance in 2015 where Defendant reported his car stolen, and the vehicle was later recovered in Orleans Parish having been burned. The State maintained that given the similarities between Defendant's instant crime and his previous crime, "the other crimes evidence in this case tends to show that the Defendant acted with the requisite criminal intent as to his instant crime."
Additionally, the State asserted in its notice that the prior incident showed Defendant's modus operandi, preparation, plan, and absence of mistake. The State also contended that as to any argument that the previous crime was more prejudicial than probative given its remoteness in time, Louisiana jurisprudence had held that remoteness in time generally goes to the weight of the evidence rather than its admissibility. Further, the State argued that as to any argument that intent will not be contested at trial, Louisiana jurisprudence had found that at this stage, it is unknown what the defense will be and that the State still has the burden of proving specific intent. As such, the State argued that its evidence offered under Article 404(B) should be deemed admissible at trial.
On August 24, 2021, a hearing was held on the State's notice. At the hearing, the prosecutor submitted on the State's motion but reserved the right to rebut defense counsel's argument. Defense counsel asserted that the State's motion alleged that Defendant had a car that burned at a previous date and time in 2015. He further asserted that there was no criminal case or investigation and that the insurance claim for the other incident had been paid. Defense counsel explained that Article 404(B) indicated that other acts should not be used to try and prove that a person committed the instant offense. He also explained that Defendant was not arrested, charged, or convicted in connection with the previous incident. Defense counsel argued that the appellate court had unfortunately opened up the flood gates to a degree and started allowing evidence of other bad acts or crimes to be admitted. The trial judge pointed out that the State maintained that cell phone records contradicted the statement that Defendant made to the police, which indicated Defendant was in the location where the vehicle burned. Defense counsel noted cell phone records showed the location of the phone and not of the person. He also noted that the State was not alleging such circumstances in connection with the prior case.
Defense counsel stated that he would produce a witness, Defendant's sister, who would testify at trial that she had the cell phone the entire day while Defendant was at the parade in the instant case. He pointed out that appellate courts unfortunately do not require the District Attorney to say what purpose it would use the other crimes evidence for. Defense counsel argued that the 2015 case was not so similar that the trial judge should allow it to be heard in front of a jury. He asserted that the 2015 incident regarding the stolen and burned car was not enough to satisfy the requirement of Article 404(B).
The prosecutor responded that other crimes evidence had been found to be admissible where a Defendant was never charged, prosecuted, or convicted of the other crime and even where a Defendant was acquitted of the other crime. The trial judge asked whether the 2015 incident was another crime. The prosecutor said that Article 404(B) also pertained to other bad acts and not just crimes. The trial judge asked if they knew whether Defendant had even committed another crime or bad act. The prosecutor explained that the framework the trial court had to apply was whether a reasonable juror could find by a preponderance of the evidence that defendant committed the other act. He asserted that the instant case and the prior incident were similar in that Defendant reported a car stolen, and it was recovered burned. The prosecutor added that Defendant's sister's own cell phone records and her description of what she did with the phone had been disproved by Jefferson Parish Sheriff's Office detectives in the instant case. He stated that two individuals had lied about where the phone was and what happened with the vehicle in the instant case.
The trial judge asked if any similar misstatements had been made in the 2015 case. The prosecutor indicated that there were no misstatements made in the 2015 case, and the trial judge could exclude the evidence if he did not think it was similar enough. He stated that he intended to use the 2015 incident to show Defendant's intent, lack of mistake, and modus operandi. The prosecutor also stated that the 2015 incident showed Defendant's intent to defraud, noting that this was a specific intent crime.
The trial judge asked if there was proof that Defendant collected insurance money as a result of the prior incident in 2015. The prosecutor responded that he would be able to present that evidence at trial. He believed that it was noted in the second police report that the claim was submitted and that it was paid by the insurance company. The trial judge said he would take a look at it and that he was taking the matter under advisement. The trial judge asked the prosecutor to supplement with the insurance information from the first incident. Defense counsel argued that just because Defendant collected money from the insurance company for the first incident did not mean that was a bad act.
A second hearing on the State's motion was held on October 20, 2021. After hearing arguments of counsel, the trial court granted the State's Article 404(B) motion, stating, "Okay. The Court finds that the two incidents are similar enough that the Court's going to go ahead and allow them to come in under 404(B). And okay." Defense counsel noted his objection to the trial court's ruling.
The arguments made by defense counsel and the prosecutor at the August 24, 2021 hearing were similar to the arguments they made at the October 20, 2021 hearing.
In this writ application, Defendant argues that the trial court erred by granting the State's 404(B) notice. Defendant maintains that no one, including the State, contends that he burned his previous car. He further maintains that in order for the State to use the prior car burning, it will have to prove that he burned his car the first time. Defendant asserts, therefore, that this will mean a "trial within a trial," which he argues courts should not allow. He states the State implies that its case rests upon cell phone records. Defendant contends that cell phone towers only record the general location of a cell phone and not the location of a person. He states that the State has no evidence that he burned his car in the instant case or in 2015. Defendant believes that the instant case is circumstantial and maintains that is why the State is trying so hard to introduce this illegal and prejudicial evidence. Defendant asserts that the State has no proof that he burned his car in 2015 and that it is relying on "lightening [sic] does not strike twice in the same place." He also asserts that this is exactly what La. C.E. art. 403 tries to prevent. He maintains that the State is trying to put him on trial with evidence of a coincidence. Based on the foregoing, Defendant argues that evidence of the 2015 incident should be excluded from trial.
In its opposition, the State argues that the trial court correctly granted its 404(B) notice. The State asserts that evidence of the 2015 incident is admissible based on the low burden of proof relative to Article 404(B) and on jurisprudence dictating that other crimes evidence may be admissible where the defendant was never charged, prosecuted, or convicted of the other crimes and even where the defendant was actually acquitted of the other crimes. The State also asserts that evidence of the 2015 incident is admissible based on the doctrine of chances, citing State v. Vail, 14-436 (La.App. 3 Cir. 11/5/14); 150 So.3d 576, writ denied, 14-2553 (La. 8/28/15); 176 So.3d 401, and People v. Mardlin, 790 N.W.2d 607 (Mich. 2010).
Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. La. C.E. art. 404(B)(1); State v. Prieur, 277 So.2d 126, 128 (La. 1973). However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Williams, 10-51 (La.App. 5 Cir. 7/27/10); 47 So.3d 467, 474, writ denied, 10-2083 (La. 2/18/11); 57 So.3d 330.
Evidence of other crimes is admissible to prove 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 to such an extent that the State could not accurately present its case without reference to the prior bad acts. La. C.E. art. 404(B)(1); State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08); 1 So.3d 516, 525. Even if independently relevant, the evidence may be excluded if its probative value is substantially outweighed by the dangers 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. Harris, 11-253 (La.App. 5 Cir. 12/28/11); 83 So.3d 269, 279-80.
The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. State v. Miller, 10-718 (La.App. 5 Cir. 12/28/11); 83 So.3d 178, 187, writ denied, 12-282 (La. 5/18/12); 89 So.3d 1191, cert. denied, 568 U.S. 1157, 133 S.Ct. 1238, 185 L.Ed.2d 177 (2013). When seeking to introduce evidence pursuant to La. C.E. art. 404(B), the State need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act. State v. Taylor, 16-1124 (La. 12/1/16); 217 So.3d 283, 291. The State is required to make some showing of sufficient evidence to support a finding that defendant committed the other act. Id. The State must prove that the defendant committed the other acts by a preponderance of the evidence. State v. Garrison, 19-62 (La.App. 5 Cir. 4/23/20); 297 So.3d 190, 207, writ denied, 20-547 (La. 9/23/20), 301 So.3d 1190, cert. denied, 20-7160, 2021 WL 2637908 (U.S. June 28, 2021). A trial court's ruling on the admissibility of other crimes evidence will not be disturbed absent an abuse of discretion. State v. Brown, 18-1999 (La. 9/30/21); --- So.3d ---, 2021 WL 4473001.
Here, Relator is being prosecuted for filing a fraudulent insurance claim on his vehicle in 2018. In its notice of intent to introduce evidence, the State sought to introduce evidence that Relator reported another vehicle stolen and burned in 2015, and argued that the other act showed that Relator acted with the requisite criminal intent. In support of its argument, the State introduced an insurance payment summary dated August 12, 2015, which was accepted into evidence. Copies of a July 19, 2015 JPSO crime report, August 30, 2016 JPSO crime report, a February 10, 2018 JPSO crime report, a February 11, 2018 GPD crime report, and a May 29, 2019 JPSO crime report were attached to the writ application. The transcripts and minute entries from the August 24, 2021 and October 20, 2021 hearings do not indicate that those reports were accepted into evidence by the trial court. The trial court found that the alleged 2015 and 2018 incidents were similar and allowed evidence of the alleged 2015 incident.
After review, I find that the trial court abused its discretion in granting the State's notice of intent under La. C.E. Art. 404(B) and allowing evidence of the alleged 2015 incident to be admitted at trial. The insurance payment summary introduced by the State simply shows that Relator was issued a loss payment in the amount of $28,896.59 for "Total Theft-Unrecovered Damages" that occurred on July 18, 2015. That evidence alone does not sufficiently support the State's position that Relator filed a false insurance claim in 2015 or that the alleged 2015 incident involved arson.
Furthermore, the sole exhibit submitted by the State does not support a finding that, under the doctrine of chances, the likelihood that Relator had two vehicles stolen and burned within a three-year period was remote and tended to show that these were not isolated incidents. In its conclusion that the doctrine of chances applies to this matter, the majority disposition considers exhibits that were not properly introduced and/or admitted into evidence by the trial court. Even if those exhibits had been properly accepted by the trial court, I find that the case relied upon by the majority disposition, People v. Mardlin, 487 Mich. 609, 790 N.W.2d 607 (2010), distinguishable from this matter. That case involved the introduction of four previous home or vehicle fires, which was sufficient to establish a pattern. In this particular case, it is hard to establish a pattern of insurance fraud and arson with only the two alleged instances.
Accordingly, I would grant the writ application and reverse the trial court's grant of the State's notice of intent to introduce evidence under La. C.E. art. 404(B).