Opinion
2018 KA 0213
09-24-2018
STATE OF LOUISIANA v. DWAYNE CALLAHAN
Warren L. Montgomery Matthew Caplan Covington, LA Counsel for Appellee, State of Louisiana Mary Constance Hanes New Orleans, LA Counsel for Defendant/Appellant, Dwayne Callahan
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany, Louisiana
Docket Number 444229
Honorable William J. Burris, Judge Presiding
Warren L. Montgomery
Matthew Caplan
Covington, LA Counsel for Appellee,
State of Louisiana Mary Constance Hanes
New Orleans, LA Counsel for Defendant/Appellant,
Dwayne Callahan BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. WHIPPLE, C.J.
The defendant, Dwayne Callahan, was charged by grand jury indictment on count one with sexual battery on a victim under the age of thirteen years, a violation of LSA-R.S. 14:43.1, and on counts two and three with molestation of a juvenile, violations of LSA-R.S. 14:81.2. He pled not guilty and, after a trial by jury, was found guilty as charged on each count. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal. The defendant was sentenced on count one to thirty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, and on counts two and three to ten years imprisonment at hard labor, to be served concurrently. The defendant now appeals, assigning error to the admission of evidence of other bad acts without proper notice and the denial of his motion for mistrial. For the following reasons, we affirm the defendant's convictions and sentences.
On count one, the trial court further ordered the defendant to be on electronic monitoring for the remainder of his life upon release from imprisonment.
STATEMENT OF FACTS
There were three minor victims involved in the instant offenses, A.B., K.B.B., and K.B. On October 21, 2007, Deputy Donald Plaisance, Deputy Stefan Montgomery, and other deputies of the St. Tammany Parish Sheriff's Office (STPSO) were dispatched to a Covington residence in reference to a complaint of inappropriate sexual conduct with two minor children, sisters K.B.B. and K.B. According to K.B.B., that month the defendant put his hand into her "yoga pants" and panties while she was on top of a set of bunk beds and began rubbing on her vaginal area. K.B.B. was eleven years old at the time of the incident and the defendant (who she referred to as her "Paw Paw") was dating her grandmother. As K.B.B. moved in a jerking manner, the bed squeaked, causing her younger sister K.B., who was on the bottom bunk bed at the time, to peer up into the top bunk. The defendant hurriedly removed his hand after K.B. questioned him as to his actions. K.B.B. also testified that the defendant often "made" her sit in the middle of his lap.
The three victims' dates of birth are December 18, 1991 (A.B.), September 2, 1996 (K.B.B.), and August 14, 1997 (K.B.). Herein, we will reference the victims by their initials only. See LSA-R.S. 46:1844(W). In order to distinguish the sibling victims who have the same initials, herein we will refer to the eldest sister as K.B.B.
K.B.B. was twenty years old by the time of the trial. While she testified that the defendant did not penetrate her, she used the words "vagina" and "clitoris" in describing the area that the defendant rubbed with one of his hands.
K.B. also referred to the defendant as her "Paw Paw" and recalled the defendant being in the bedroom with them during the incident described by her sister. She stated that when she got up to see what they were doing, the defendant was "shuffling." At that point, she left the room and when she returned the defendant was still "shuffling with her [K.B.B.]" while she was on the top bunk bed. K.B. added that at that point, she saw the defendant as he was "touching my sister like in the area where she don't want to be touched at." K.B. testified that the defendant would often encourage her and her sister to sit in his lap and that the defendant would often "pull our drawers to the side and touch us." She stated this act would take place while they were wearing night gowns, further stating that she would be positioned on one of the defendant's legs, while K.B.B. was sitting on the defendant's opposite leg. She specifically described the defendant's actions as "playing with the private part area." K.B. indicated that she was around four years of age when the defendant began committing these acts.
K.B. testified as to where the touching took place, describing it as "Not inside the hole, just the little thing that's right there. I don't know what it's called."
The third victim, A.B., testified that the defendant, her younger brother's biological father, was "like a dad" to her. She recalled that the defendant began dating her mother when she was around six years old and living in Covington. She testified that on multiple occasions over a three-year period, the defendant would often "slip into my bed and touch me under my nightgown on my private area." She confirmed that the defendant would use his hand to touch her, but stated that she could not recall whether his hand would be underneath or on top of her panties at the time. A.B. stated that the incidents occurred when she was between the ages of six and eight.
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant argues that the trial court abused its discretion in allowing the State to introduce evidence of other bad acts without reasonable notice. The defendant notes that the State filed written notice of intent to introduce the evidence at issue on the morning of the trial. The defendant contends that he had insufficient time to investigate and prepare a defense to the allegations. Thus, the defendant argues that he was denied a fair trial. He argues that the admission of the testimony at issue was not harmless, contending that there were inconsistencies among the victims' statements and that there was evidence that K.B.B. previously made a false claim against the defendant. The defendant further contends that there was no physical evidence to corroborate the victims' claims.
At trial, during closing statements, and in his brief on appeal, the defendant acknowledged that he learned about the allegation at issue the Friday before the trial began on Monday, May 22, 2017, the day the State filed written notice.
Evidence of other crimes, wrongs, or acts is generally inadmissible to impeach the character of the accused. LSA-C.E. art. 404(B); see State v. Talbert, 416 So. 2d 97, 99 (La. 1982); State v. Prieur, 277 So. 2d 126, 128 (La. 1973). However, such evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. LSA-C.E. art. 404(B)(1). When a defendant is charged with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of his other acts which involve sexually assaultive behavior or acts which indicate his lustful disposition toward children is admissible if the court determines that, pursuant to LSA-C.E. art. 403, its probative value outweighs its prejudicial effect. LSA-C.E. art. 412.2(A); See State v. Wright, 2011-0141 (La. 12/06/11), 79 So. 3d 309, 314-317; State v. Williams, 2002-0898, 2002-1030 (La. 10/15/02), 830 So. 2d 984, 985-987. In a case in which the State intends to offer evidence under the provisions of Article 412.2, the prosecution shall, upon request of the accused, provide "reasonable notice" in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes. LSA-C.E. art. 412.2(B).
We note that the defendant is not challenging the admissibility of the testimony at issue under Paragraph A of Article 412.2 and only argues that the evidence is inadmissible under Paragraph B. Further, the defendant does not contend the State failed to meet its burden of proving the other incident occurred.
Article 412.2 was a legislative response to earlier decisions from the Louisiana Supreme Court refusing to recognize a "lustful disposition" exception to the prohibition of other crimes evidence under LSA-C.E. art. 404. Legislative committee minutes indicate that the "reasonable notice" requirement was inserted into the article because "the senators were concerned with the defendant's right not to be ambushed with evidence of prior sexually deviant behavior...." Williams, 830 So. 2d at 986. Generally, a trial court's ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Galliano, 2002-2849 (La. 1/10/03), 839 So. 2d 932, 934 (per curiam).
During the testimony at issue, K.B.B. indicated that the defendant exposed his genitals to her on one occasion, specifically stating that he unzipped his pants and "took his penis out" while she was sitting on the floor watching television at her grandmother's house. K.B.B. could not recall how old she was on that occasion, but initially testified that she may have been eight or nine before acknowledging that she may have been around eleven years old at the time. As noted by the defendant, the State's notice of disclosures and notice of intent to use evidence of similar crimes, wrongs, and/or acts referencing in part the above described incident was filed on the morning of the trial. In objecting, the defense attorney stated, "I would lodge an objection to the admission of the report 412.2 at this point in the trial." In response, the trial court stated, "Well, it appears to me like of course you still have to deal with -- there's still the foundation and everything that has to be established in the trial of the matter, including a 403 analysis, but that's something that's left for the trial." The defense attorney then replied, "Okay." In response to the argument on appeal, in its brief the State notes that K.B.B. made the disclosure at issue the week preceding the trial and had not previously told anyone other than her sisters.
The defendant relies on State v. Richard, 2001-952 (La. App. 5th Cir. 1/29/02), 807 So. 2d 1129, 1135-1137, wherein the defendant was convicted of attempted manslaughter and assigned error on appeal to the trial court's admission of other evidence to show that the defendant previously tried to kill the victim, his wife, on two other occasions, once with a gun and once by strangling her at their home. The court of appeal held that the defendant did not receive reasonable notice of the State's intent to use other acts evidence since the notice was filed on the morning of trial. The court of appeal moreover questioned whether the hearing mandated by State v. Prieur, 277 So. 2d at 129-130 (La. 1973), was adequate in that case. However, the court found that the error therein did not mandate reversal of the conviction, finding that the guilty verdict was not attributable to the other acts evidence, but amply supported by the other testimony and evidence. Richard, 807 So. 2d at 1137.
At the outset, we note that the reasonable notice requirement of LSA-C.E. art. 412.2 does not require that the trial court conduct a hearing on the admissibility of that evidence prior to trial. Williams, 830 So. 2d at 987. Thus, the instant case is easily distinguishable from Richard in that the trial court was required to hold a hearing prior to the admission of the evidence at issue in that case. Herein, while the State provided written notice of disclosure on the day of the trial, on appeal the State contends that the information was verbally given to the defense once the State was made aware of K.B.B.'s claim at issue. As acknowledged, defense counsel learned of the evidence of the act the Friday before the trial began the following Monday. Arguably, under the circumstances, the State had good cause for the timing of the disclosure and met the "reasonable notice" requirement. See State v. Free, 26,267 (La. App. 2d Cir. 9/21/94), 643 So. 2d 767, 772, writ denied, 94-2846 (La. 3/10/95), 650 So. 2d 1175 (prior to the enactment of Article 412.2, the court held that pretrial notice of the intent to use evidence of other sex crimes and conduct was "as reasonable as practicable" where the State provided notice the same day the witness came forward, the Thursday before a Monday trial).
At any rate, the erroneous admission of other crimes evidence is a trial error subject to a harmless error analysis on appeal. State v. Johnson, 94-1379 (La. 11/27/95), 664 So. 2d 94, 102. The test for determining whether an error is harmless is whether the verdict actually rendered in this case "was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182 (1993); Johnson, 664 So. 2d at 100.
Despite the defendant's assertion otherwise on appeal, the State's evidence strongly established the defendant's guilt. Even absent the testimony in question by K.B.B., the claims against the defendant were presented by the consistent testimony of the victims. Each of the three victims stated that on multiple occasions, the defendant used his hand to touch their vaginal areas. While the victims were not certain as to exact dates, their descriptions of the defendant's acts were similar and made with a high level of certainty. Further, K.B.'s testimony indicated that she was present during incidents involving K.B.B. and corroborated K.B.B.'s account. As such, the guilty verdict rendered was surely unattributable to the other-act evidence at issue. Any error in allowing the testimony to be presented to the jury was harmless beyond a reasonable doubt. See LSA-C.Cr.P. art. 921; Sullivan, 508 U.S. at 279, 113 S. Ct. at 2081. Accordingly, assignment of error number one lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
In assignment of error number two, the defendant argues that the trial court erred in denying his motion for mistrial based on the admission of other crimes evidence. The defendant specifically contends that the prosecutor elicited testimony to show that he stole items from his employer. He argues that the prosecutor's improper question and the witness's improper response deprived him of a fair trial.
Louisiana Code of Evidence article 404(B)(1) provides that evidence of other crimes, acts or wrongs is generally not admissible. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917 (La. App. 1st Cir. 2/18/00), 754 So. 2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So. 2d 115.
Mistrial is a drastic remedy and warranted only when substantial prejudice will otherwise result to the accused to deprive him of a fair trial. State v. Booker, 2002-1269 (La. App. 1st Cir. 2/14/03), 839 So. 2d 455, 467, writ denied, 2003-1145 (La. 10/31/03), 857 So. 2d 476. A trial court's ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518 (La. 1/17/01), 776 So. 2d 443, 454.
Louisiana Code of Criminal Procedure article 770(2) provides for a mandatory mistrial when a remark is made by the judge, the district attorney, or a court official within the hearing of the jury and such remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. State v. Dietrich, 567 So. 2d 623, 634 (La. App. 1st Cir.), writ denied, 568 So. 2d 1079 (La. 1990). Louisiana Code of Criminal Procedure article 771 allows the State or the defendant to request that the court promptly admonish the jury to disregard irrelevant or prejudicial remarks made by the judge, district attorney, or a court official when the remarks are not within the scope of LSA-C.Cr.P. 770, or made by a person other than the judge, district attorney or court official, regardless of whether the remark is within the scope of LSA-C.Cr.P. art. 770. The court may grant a mistrial on the defendant's motion if it is satisfied that an admonition is insufficient to assure the defendant a fair trial. LSA-C.Cr.P. art. 771; State v. Murphy, 2016-0901 (La. App. 1st Cir. 10/28/16), 206 So. 3d 219, 228.
A mistrial under the provisions of LSA-C.Cr.P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for defendant to obtain a fair trial. State v. Thompson, 597 So. 2d 43, 46 (La. App. 1st Cir.), writ denied, 600 So.2d 661 (La. 1992). The jurisprudence has held that an impermissible reference to another crime deliberately elicited of a witness by the prosecutor would be imputable to the State and would mandate a mistrial. However, unsolicited and unresponsive testimony is not chargeable against the State to provide a ground for mandatory reversal of a conviction. Thompson, 597 So. 2d at 46. Furthermore, a statement is not chargeable to the State solely because it was in direct response to questioning by the prosecutor. While a prosecutor might have more precisely formulated the question that provoked a witness's response, where the remark is not deliberately obtained by the prosecutor to prejudice the rights of the defendant, it is not the basis for a mistrial. State v. Tran, 98-2812 (La. App. 1st Cir. 11/5/99), 743 So. 2d 1275, 1280, writ denied, 99-3380 (La. 5/26/00), 762 So. 2d 1101.
As the defendant notes, the motion for mistrial at issue occurred during the State's questioning on rebuttal of the mother of K.B.B. and K.B. Specifically, the State inquired as to whether these false allegations were ever made in order to get the defendant fired from his job. When the witness answered negatively, the State then asked her if she could have gotten the defendant fired. After she responded positively, the State asked how, and the witness responded, "Well, I have a stolen TV at my house, a stolen mop bucket --." At that point, the defense attorney objected and moved for a mistrial. While the trial court denied the motion for mistrial, the jury was admonished to not consider the question.
As the State notes on appeal, the testimony in question was elicited by the State in an attempt to rebut the defendant's claims that false allegations had been brought against him. Thus, assuming the reference to stolen items would be considered other crimes evidence, the inquiry was not made in order to prejudice the rights of the defendant. Even if we were to determine that the State deliberately elicited impermissible other crimes evidence to prejudice the rights of the defendant in this case, such a determination would not end our inquiry. Although LSA-C.Cr.P. art. 770 is couched in mandatory terms, it is a "rule for trial procedure." Johnson, 664 So. 2d at 101. Accordingly, the introduction of inadmissible "other crimes" evidence under Article 770 results in a trial error subject to a harmless error analysis on appeal. Johnson, 664 So. 2d at 101-102. As previously discussed, herein, the victims presented their detailed claims with consistency and certainty. We are convinced that the verdicts rendered in this case were surely unattributable to any error in the admission of the brief reference to the presence of stolen items in the witness's home. There was no indication that the defendant was unable to obtain a fair trial due to the testimony noted above. We conclude that the drastic remedy of a mistrial was not warranted in this case. Thus, we find no abuse of discretion by the trial court in its denial of the motion for mistrial. Likewise, we find that the admonishment was sufficient. Considering the foregoing, assignment of error number two also lacks merit.
CONCLUSION
For the above and foregoing reasons, the defendant's convictions and sentences are affirmed.
CONVICTIONS AND SENTENCES AFFIRMED.