Opinion
NO. 2019-KA-0316
11-06-2019
STATE of Louisiana v. Evelyn CLANTON
Leon Cannizzaro, District Attorney, Donna Andrieu, Scott G. Vincent, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE Meghan Harwell Bitoun, Louisiana Appellate Project, P. O. Box 4252, New Orleans, LA 70178--4252, COUNSEL FOR DEFENDANT/APPELLANT
Leon Cannizzaro, District Attorney, Donna Andrieu, Scott G. Vincent, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE
Meghan Harwell Bitoun, Louisiana Appellate Project, P. O. Box 4252, New Orleans, LA 70178--4252, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins )
Judge Roland L. Belsome
Defendant, Evelyn Clayton, seeks review of her convictions for aggravated battery. She challenges the admission of evidence, the jury instructions and verdict. Finding no reversible error, Defendant's convictions are affirmed.
PROCEDURAL HISTORY
Defendant was charged by bill of information with two counts of aggravated second degree battery of Tyrone and Delanda Garner, in violation of La. R.S. 14:34.7. At arraignment, Defendant pleaded not guilty. After a hearing, the trial court denied Defendant's motion to suppress identification and found probable cause to support the two charges for aggravated second degree battery.
Later, the State filed a notice of intent to introduce "evidence of similar crimes, wrongs and/or acts" pursuant to State v. Prieur and La. C.E. art. 404(B). After a Prieur hearing, the trial court ruled the evidence was admissible. Shortly before trial, Defendant filed a motion for a twelve-person jury, which was denied. In addition, Defendant filed a motion for special jury instructions, which was granted as modified at the charging conference. However, the trial court declined to include a special charge concerning the burden of proof when there is a justification defense.
State v. Prieur , 277 So.2d 126 (La. 1973), abrogated on other grounds.
After a two-day trial, the jury found Defendant guilty of the responsive verdict of aggravated battery on both counts. Defendant's motions for post-verdict judgment of acquittal and a new trial were denied. Subsequently, Defendant received two concurrent six-year sentences at hard labor. This appeal followed.
The record reflects that the State filed a multiple offender bill of information alleging Defendant was a fourth felony offender. However, the multiple offender bill was set for hearing on October 17, 2018, after this appeal was filed on October 5, 2018. In this appeal, Defendant does not challenge her sentence.
FACTS
On February 19, 2017, Tyrone and Delanda Garner, who are brother and sister, were leaving a Mardi Gras Parade with friends and family. While walking to the bus, Delanda stopped to use the restroom at the home of Mr. and Mrs. Brinson, which was located on Third Street, in New Orleans.
Sitting on the front steps of the house were Defendant, her sister, Wynola Clanton, and their mother. While on her way to the restroom, Delanda overheard Wynola, "talking about slapping somebody." When she exited the restroom, Wynola proceeded to slap her and a fight ensued. Shortly thereafter, Defendant's mother joined. In response, Tyrone stepped in to stop the mother from hitting his sister. When he turned around, Defendant hit him in the face with a pipe. Defendant then proceeded to hit Delanda in the face and arm with the pipe.
After the altercation was over, Defendant, Wynola and their mother left the scene. Thereafter, police and paramedics arrived. Delanda and Tyrone were both transported to the hospital. Delanda suffered lacerations to her mouth, which required fifteen stitches. Her injuries also included two chipped teeth, one tooth "knocked ... out," and a permanent scar underneath her nose. Tyrone required surgery for his nose, which was almost severed off of his face.
Subsequently, Delanda identified Wynola as the person who slapped her. In addition, she identified Defendant as the person who hit her and Tyrone in the face with the pipe. Tyrone was unable to identify Defendant in a photographic lineup.
Approximately one week later, Delanda and Tryone returned to the same area for another parade when she saw Defendant. Defendant approached her to apologize. At that point, Delanda contacted the lead detective on the case, who came to the scene and arrested Defendant.
ERRORS PATENT
A review for errors patent on the face of the record reveals none. DISCUSSION
While Defendant raises four assignments of error, we organize our analysis around three alleged errors: 1) the admission of Prieur evidence, 2) the jury instructions, and 3) the jury verdict.
ADMISSION OF PRIEUR EVIDENCE
First, Defendant raises two issues concerning the admission of Prieur evidence. Specifically, she takes issue with the admission and presentation of the Prieur evidence at trial. A district court's ruling on the admissibility of evidence should not be overturned absent an abuse of discretion. State v. Randolph , 16-0892, pp. 7, 11 (La. App. 4 Cir. 5/3/17), 219 So.3d 425,431.
As to the admission issue, Defendant asserts that the trial court erred in admitting Prieur evidence. Admitted at trial was evidence of Defendant's convictions for the following prior crimes: 1) On September 3, 2015, striking an ex-boyfriend's car with a metal pipe, then striking the ex-boyfriend with keys leading to a plea of guilty to the charges of domestic abuse battery and simple criminal damage to property; 2) On June 22, 2009, striking an ex-boyfriend in the head with a hair brush, then hitting him in the chest with a broken glass beer bottle leading to a plea of guilty to the charge of aggravated battery; 3) On May 20, 2009, cutting an ex-boyfriend in the neck with a knife leading to a plea of guilty to the charge of aggravated battery. The court instructed the jury that the above evidence could only be considered for the purpose of showing an absence of mistake, intent or motive.
"Generally, evidence of other crimes committed by the defendant is inadmissible due to the substantial risk of grave prejudice to the defendant." State v. McDermitt , 406 So.2d 195, 200 (La. 1981) (citing Prieur , supra ). Pursuant to La. C.E. art. 404(B)(1), evidence of other crimes, wrongs or acts are generally not admissible to prove character. The article, however, provides for exceptions to this rule, which include admission for the purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident or when the evidence relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. "Moreover, even when the evidence is offered for a purpose allowed under Article 404 B(1), the evidence must have substantial relevance independent from showing the accused's criminal character and is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense." State v. Taylor , 16-1124, 16-1183, p. 12 (La. 12/1/16), 217 So.3d 283, 292 ; see also La. C.E. art. 404(A) ). A district court has broad discretion in weighing the probative versus the prejudicial value of evidence under La. C.E. art. 403.
La. C.E. art. 404(A)(1) states: "Evidence of a pertinent trait of his character, such as a moral quality, offered by an accused, or by the prosecution to rebut the character evidence; provided that such evidence shall be restricted to showing those moral qualities pertinent to the crime with which he is charged, and that character evidence cannot destroy conclusive evidence of guilt."
La. C.E. art. 403 states: "Although relevant, evidence may be excluded if its probative value is substantially 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."
In this case, Defendant's sister, Wynola Clanton, testified that Defendant entered into the fray to protect her and her mother. Therefore, the Prieur evidence was admissible on two grounds: 1) to rebut Defendant's self-defense argument and 2) to establish intent.
First, the prior similar acts were admissible to rebut Defendant's self-defense argument. As noted in Taylor and Jones , supra , evidence of prior bad acts is generally admissible to rebut a defendant's defense. This legal principle is exemplified in State v. Murray , 36,137 (La. App. 2 Cir. 8/29/02), 827 So.2d 488.
In Murray , the defendant was on trial for shooting a man with whom he was well-acquainted. Id. , 36,137, pp. 1-2, 827 So.2d at 490-91. He contended that he acted in self-defense, that he had never before been in such a situation and that he panicked. Id. , 36,137, p. 29, 827 So.2d at 504. To counter the defendant's claim in this regard, the State sought to introduce evidence of the defendant's involvement in a prior shooting, an incident which, following a police investigation, had ended with a finding that defendant had shot the victim in self-defense. Id. , 36,137, p. 27-29, 827 So.2d at 502-04.
Following a Prieur hearing, the trial court found the evidence of the prior shooting admissible. Murray , 36,137, p. 29, 827 So.2d at 503. The court of appeal affirmed, reasoning: "Not only was the prior shooting admissible to impeach the defendant's credibility, it was also probative of the defendant's intent, his knowledge, and the absence of mistake or accident. The trial court did not err in allowing this evidence because it was plainly relevant." Murray , 36,137, pp. 29-30, 827 So.2d at 504. Likewise, in this case, the Prieur evidence was admissible to establish rebut Defendant's self-defense claim and establish intent.
As discussed, the Prieur evidence was also admissible to establish intent. While Defendant argues that intent is not a contested issue, the Louisiana Supreme Court has recognized that " ‘where the element of intent is regarded as an essential ingredient of the crime charged, it is proper to admit proof of similar but disconnected crimes to show the intent with which the act charged was committed.’ " Taylor , 16-1124, p. 16, 217 So.3d at 294-95 (internal quotation omitted). The offense of second degree aggravated battery consists of four elements: 1) the intentional use of force or violence upon the person of another, 2) using a dangerous weapon, 3) without the consent of the victim, 4) when the offender has the specific intent to inflict serious bodily injury. La. R.S. 14:34.7 Thus, "specific criminal intent" is required to commit the crime. State v. Harris , 17-303, p. 6 (La. App. 5 Cir. 12/20/17), 235 So.3d 1354, 1362, writ denied , 18-0160 (La. 6/15/18), 257 So.3d 675 (citation omitted). As such, "the state still has the burden of proving specific intent, an essential element of the crime charged, and the jury will be specifically instructed in this regard prior to deliberations." Taylor , 16-1124, p. 17, 217 So.3d at 295.
In State v. Blank , 04-0204, p. 45 (La. 4/11/07), 955 So.2d 90, 127, the Louisiana Supreme Court upheld the introduction of five other capital murders and two attempted murders, to which the defendant had confessed and been convicted, in his capital trial for the murder of another victim. The Court found that the prior crimes were similar and specific intent was placed at issue through Defendant's self-defense claim. Blank , 04-0204, pp. 42-43, 955 So.2d at 125. All of the crimes involved home invasions in which the defendant stole cash from elderly victims, who encountered the defendant committing the burglaries. Blank , 04-0204, p. 42, 955 So.2d at 125.
On appeal, the defendant argued that the evidence of the other murders should not have been admitted, in part, because he did not present any evidence or argue during the trial that he lacked specific intent to kill the victim. Blank , 04-0204, p. 42, 955 So.2d at 125. The Court rejected the defendant's argument, noting that the State had the burden of proving every element of the offense, including specific intent, and "because the defendant maintained that he acted in self-defense in his confession, the state was entitled to present evidence to the contrary in support of its case." Id. In reaching its decision, the Court made an analogy to a situation in which a defendant on trial for murdering a child claims the death was accidental; evidence of physical abuse of other children was admissible to show the improbability of multiple accidents. Blank , 04-0204, pp. 42-43, 955 So.2d at 125 (citation omitted).
Similarly, in this case, Defendant claims she acted in defense of her family. She also argues that she is not challenging specific intent. Nevertheless, evidence of Defendant's prior similar crimes, when in apparent fits of rage she lashed out at her victims, was admissible to refute her defense and establish her specific criminal intent to inflict serious bodily injury. Accordingly, the trial court did not abuse its discretion in admitting the Prieur evidence.
Turning to the presentation issue, Defendant complains that the trial court erred in allowing the Prieur evidence to be admitted through inadmissible hearsay testimony. Specifically, Defendant complains that Officers Mason Suell, Robert Masters, and Reuben Henry, in reporting the facts of her prior three arrests for domestic abuse and/or aggravated battery, implicitly relied on inadmissible hearsay statements of her prior victims.
As already noted, a trial court's ruling on the admissibility of evidence should not be reversed absent an abuse of discretion. See Randolph, supra , State v. Brown , 97-2260, p. 8 (La. App. 4 Cir. 10/6/99), 746 So.2d 643, 648 (applying the abuse of discretion standard to a district court's ruling on the admissibility of hearsay evidence). Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801 (C). Hearsay evidence is generally not admissible, unless provided for by the Code of Evidence or other legislation. La. C.E. art. 802. However, there are exceptions to the general hearsay prohibition. For instance, as explained in Randolph, 16-0892, p. 11, 219 So.3d at 433 (quoting State v. Legendre , 05-1469, p. 11 (La. App. 4 Cir. 9/27/06), 942 So.2d 45, 52-53 (internal citations omitted)), "[t]he testimony of a police officer may encompass information provided by another individual without constituting hearsay, if it is offered to explain the course of the police investigation and the steps leading to the defendant's arrest."
In the case at hand, the testimony of Officers Suell, Masters, and Henry was provided to explain the course of their respective police investigations and the steps leading to Defendant's arrests. In fact, as noted in the trial court's per curiam :
[B]efore these officers took the stand to testify, this [c]ourt in a pre-trial ruling explicitly made it clear to both defense counsel and the State of Louisiana that the officers were to only testify as to what was discovered during the course and scope of their investigation[s] .... Each and every time an officer began to testify as to what a non-testifying witness told them, the defense objected and this Court sustained these objections, as this specific hearsay material did not
fall within the hearsay exception.
The trial court issued its per curiam in response to appellant's oral motion for a mistrial.
Adherence to the trial court's pre-trial ruling is apparent in the testimony of Officer Masters. Whenever the officer's testimony regarding what a victim had told him about Defendant's actions was mentioned, defense counsel properly objected and the trial court sustained the objection. When the question was re-phrased to elicit information as to what the officer learned during the investigation, the trial court allowed the answer.
A review of the trial transcript clearly reflects that testimony regarding Defendant's actions which led to three separate charges of aggravated battery were elicited via questioning as to the course and scope of the officers' investigations into her actions. This testimony falls under a clear exception to the hearsay prohibition and was properly admitted into evidence. Thus, the trial court did not abuse its discretion when admitting the evidence at trial.
Moreover, even if the district court erred, admission of hearsay is subject to a harmless error analysis. Randolph, 16-0892, p. 12, 219 So.3d at 434 (citation omitted). On review, factors to consider include the importance of the witness' testimony, whether the testimony was cumulative, the presence or absence of corroborating evidence, the extent of cross-examination permitted, and overall strength of the state's case. Id. In the case sub judice , Officer Kevin Bell testified that Defendant was the same person who pled guilty to domestic abuse battery and two separate incidents of aggravated battery using a knife and, later, a glass bottle. Along with Officer Bell's testimony, the certified conviction packets from Defendant's three prior convictions were admitted into evidence without objection. Thus, substantially similar and uncontested evidence came in through another witness. Under these circumstances, any perceived error that occurred by the admission of inadmissible hearsay evidence was cumulative and, therefore, harmless. For these reasons, we do not find any reversible error with respect to the admission or presentation of the Prieur evidence at trial.
Notably, Defendant did not raise any error concerning the admission of the testimony of Officer Kevin Bell at trial.
JURY INSTRUCTIONS
Next, Defendant argues that the trial court erred in denying her request for special jury charges. She urges that the jury should have been instructed that the State bears the burden of proving that the offense was not committed in defense of others.
In this case, Defendant filed a motion for special jury instructions. The record reflects that the trial court granted the request as modified in its instructions. During the jury charge conference, the trial court granted Defendant's request for special jury instructions relative to self-defense; however, it modified the requested charges to exclude any specific instruction delineating who bears the burden in proving self-defense at trial. The State objected, stating it believed that the jury should be charged that Defendant bears the burden of proof when claiming self-defense. The trial court deferred its ruling on the issue, reviewed the remainder of the instructions for objections and took a brief recess.
After returning from recess, the trial judge ruled that it would not include an instruction concerning the burden of proof. It specifically stated: "I went through this again for the second and third time and it doesn't appear that there's any specific burden of proof that I need to discuss with the jury in regards to justification defenses in non-homicide cases." Neither the State nor Defendant objected to the ruling. Further, as the jury was being summoned, the trial court asked once more if there were "any other objections to the court's jury instructions as written." The State responded "no" and Defendant remained silent.
Since Defendant did not object to the trial court's jury instructions, she cannot raise this issue on appeal. La. C.Cr.P. art. 801 precludes a party from assigning as error a failure to give a specific jury instruction unless the party objects to the error "before the jury retires or within such time as the court may reasonably cure the alleged error." See also , State v. Flores , 52,639, p. 12 (La. App. 2 Cir. 4/10/19), 268 So.3d 1199, 1207, reh'g denied (5/16/19) (unless there have been fundamentally erroneous misstatements of the essential elements of the charged offense, a Defendant may not raise the trial court's failure to give a jury charge as error without objecting before the jury retires).
In the instant case, the defendant did not object to the exclusion of the special charge during the charging conference, before instructions were read to the jury, nor following the jury instructions, not even when the trial court noted particularly that it was not including any specific instruction on the burden of proof for justification defenses in non-homicide cases. Moreover, the trial court's jury charges on the burden of proof and self-defense were fundamentally fair. Accordingly, this assignment of error has not been preserved for appellate review.
JURY VERDICT
Finally, Defendant argues that the trial court erred in denying her motion for a twelve-person jury, raising two arguments. She contends her potential life sentence as a habitual offender requires a twelve-person jury. She further challenges the constitutionality of convictions with less than twelve jurors.
Both the Louisiana Constitution art. 1 § 17 and La. C.Cr.P. 782(A) provide, in pertinent part: "A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict." Under La. R.S. 14:34.7, the punishment for the offense for which Defendant was charged, aggravated second degree battery, is confinement with or without hard labor for not more than fifteen years. Because the sentence calls for confinement with or without hard labor for a period greater than six months, Defendant's right to a jury trial on the charge of aggravated second degree battery is confined to a six-person jury.
First, Defendant contends that because her potential adjudication as a multiple offender could result in a life sentence, a guilty verdict should require unanimity among twelve jurors rather than six jurors. However, this Court has repeatedly rejected identical claims. See e.g. State v. Juengain , 09-0425 pp. 7-8 (La. App. 4 Cir. 1/20/10), 41 So.3d 499, 504-05 ; and State v. Collins , 588 So.2d 766, 769 (La. App. 4 Cir. 1991) (both holding that a potential finding of multiple offender status and the sentence enhancement that may follow is not determinative of the size of the jury required under La. C.Cr.P. 782(A) in a trial for an underlying offense). Next, while convictions by juries composed of less than twelve persons may be constitutionally questionable by today's standards, we are bound by the long established holding in Williams v. Florida , which declared that a defendant's "Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, [are] not violated by [a state's] decision to provide a six-man rather than a 12-man jury." 399 U.S. 78, 103, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970). For these reasons, until otherwise directed, we cannot say that the trial court erred in denying Defendant's motion for a twelve-person jury.
CONCLUSION
Given that there was no reversible error in the admission of evidence, the jury instructions or verdict, Defendant's convictions are affirmed.
AFFIRMED
BARTHOLOMEW-WOODS, J., DISSENTS WITH REASONS
BARTHOLOMEW-WOODS, J., DISSENTS WITH REASONS
I respectfully dissent. Defendant challenges the trial court's ruling allowing the State's La.C.E. 404(B) evidence on two grounds. First, on the grounds that the evidence was admitted simply to show the jury her bad character, and second, that it was admitted in violation of her right to confront witnesses against her.
Louisiana Code of Evidence art. 404(B) provides, in relevant part:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
In other words, at the start of every criminal case, there is an assumption that evidence of other acts of the defendant will not be presented to the jury, unless the State is able to show that an exception to the rule exists and can satisfy other baseline requirements. Even then, relevant "evidence may be excluded if its probative value is substantially 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." La. C.E. art. 403.
The leading case relative to evidence of other crimes, wrongs, or acts is Prieur, supra , in which the Louisiana Supreme Court held that when the State seeks to admit such evidence, it shall provide written notice of such intent to the Defendant and "specify the exception to the general exclusionary rule upon which it relies for the admissibility of the evidence." Prieur , 277 So.2d at 130. Furthermore, the State must show that the evidence is "not merely repetitive and cumulative, is not a subterfuge for depicting the defendant's bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered." Id. Additionally, in the event the State meets its burden and introduces such evidence, the jury should be properly instructed "as to the limited purpose for which the evidence is received and is to be considered" and "that the defendant cannot be convicted for any charge other than the one named in the indictment or one responsive thereto." Id.
While Prieur mandated the jury be so instructed in the court's final instructions, the jury need only be so instructed at the time the evidence is received if the defendant makes a request.
The Supreme Court revisited Prieur in its opinion State v. Taylor , 2016-1124, p. 12 (La. 12/1/16), 217 So.3d 283, 292, stating:
Taylor is perhaps most notable for holding "that 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." Taylor , 2016-1124, p. 10 (La. 12/1/16), 217 So.3d 283, 291.
[T]he state cannot simply rely on a boilerplate recitation of the grounds for admissibility stated in La. C.E. art. 404(B). It is the duty of the district court in its gatekeeping function to determine the independent relevancy of this evidence ... The district court must also balance the probative value of the other crimes, wrongs or acts evidence against its prejudicial effects before the evidence can be admitted.
Given this general jurisprudential context, I now turn to the issues presented by the State's motion and presentation of 404(B) evidence to the jury at trial and add additional context.
Pre-Trial Stage
The State's Prieur motion initially specified the exceptions of "motive, intent, preparation, plan, knowledge, and absence of mistake or accident." It then quoted a Louisiana Supreme Court case that discussed the appropriate use of modus operandi evidence. Later in the motion, the State also referenced opportunity and identity, suggesting that each and every exception would be an issue genuinely contested at trial. The State argued the evidence would demonstrate the Defendant's "unique signature" of using improvised weapons to attack male victims' heads in an apparent reference to modus operandi. When the State turned its attention to the substance of the exceptions and their applicability, however, it only discussed motive, preparation, plan, intent, and lack of mistake or accident.
"Motive has been defined as a reason the accused has for committing the charged offense. Motive is the cause or reason that moves the will and induces action for definite result." State v. Brown , 398 So.2d 1381, 1384 (La.1981). Here, according to the State, Defendant's motive or "reason" for her actions was "pure unadulterated rage [at] even the slightest perceived offense." In other words, Defendant's prior acts show she is an angry and impulsive person, and she acted in conformity with that disposition in the instant case. Not only is presentation of such character evidence explicitly forbidden under our law, but, by all accounts, the facts indicate that the Defendant was the last of five people to engage in a fight involving her sister and mother – hardly a "slight" or "perceived" incident.
The State next addressed preparation and plan. Here, the State argued the Defendant's "signature" preparation in all of her prior acts is "that there is none. The Defendant is like a bull seeing red, striking suddenly and without provocation." As to plan, the State submitted Defendant simply "grab[s] the nearest piece of metal available, and swing[s] for the head of whatever poor man was unfortunate enough to have crossed [her] path." The State's explanation turns the exception on its head, suggesting that the Defendant's lack of preparation and lack of plan in each prior act and the charged offense constituted proof of a preparation or plan in the instant matter. Further, this explanation once again impermissibly highlights the State's theory of Defendant as a person of angry and impulsive character who acted in conformity therewith as to Mr. and Ms. Garner.
Lastly, the State relied on the number of prior offenses – "fully 5 prior incidents" – to argue that the Defendant had "no legitimate claim to lack of intent or accident." While "[o]ne of the purposes for 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 ... for such evidence to be admissible to prove intent, there must be a real and genuine contested issue of intent at trial." State v. Harris , 383 So.2d 1, 8 (La.1980). Here, Defendant indicated numerous times that intent would not be in dispute at trial. That is, Defendant would not argue that she did strike the victims, but did so accidentally or by mistake. Instead, she indicated she would either argue that she did not strike the victims at all, or did so in self-defense. I recognize that even if "the defendant argues intent is not a genuinely contested issue, his actual defense will be unknown until trial[,]" Taylor , 2016-1124, p. 17 (La. 12/1/16), 217 So.3d at 295, but the State is entitled to rebuttal. La.C.Cr.P. art. 765(5). Rebuttal is the "[i]n-court contradiction of an adverse party's evidence." Rebuttal, Black's Law Dictionary (11th ed. 2019). Had the defense indeed presented evidence placing intent/lack of mistake genuinely at issue, the State then could have addressed those issues in rebuttal. Instead, the State began its case in chief by introducing prior acts evidence through several witnesses, in what could be described as a "preemptive rebuttal" of a defense that had not yet been made, and one the Defendant explicitly denied she would assert.
As discussed below in the "Trial Stage" section, the State presented only three of the five acts to the jury – those which resulted in convictions – undermining its own argument in this regard. In ruling on the motion, the trial court presumably relied on the existence of all five acts – and the State's intention to introduce all five acts – in determining their admissibility for the purposes of the intent and lack of mistake/accident exceptions. That is, the persuasive force presented by the totality of the facts of the prior acts would lead any rational juror to conclude Defendant acted intentionally in striking the victims. Such persuasive force was necessarily diminished by the State's failure to present all of the acts to the jury as it implied it would.
The State charged Defendant with a specific intent crime, but the jury returned a verdict of a general intent crime. "Aggravated battery is a crime of general intent, meaning that the State need only prove the offender must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." State v. Wix , 2002-1493, p. 9 (La.App. 4 Cir. 1/15/03), 838 So.2d 41, 47. In other words, "the criminal intent necessary to sustain a conviction is shown by the very doing of the criminal act." State v. Smith , 39,698, p. 9 (La.App. 2 Cir. 6/29/05), 907 So.2d 192, 197. The prior offenses introduced at Defendant's trial were general intent crimes, and the State never articulated how Defendant's prior general intent crimes were relevant to the specific intent element of the charged offense.
I turn next to the hearing on the motion. "[T]his court has continued to indicate that the state cannot introduce evidence of other crimes without first conducting a pre-trial hearing at which it must prove defendant committed the other crimes and that they are admissible." Taylor , 2016-1124, p. 11, 217 So.3d at 292. At the hearing, the State initially submitted on the papers, which included its motion, as detailed above, and attached police reports. After the defense's remarks, the State added the following:
[W]e assert that there is a distinct pattern of behavior where defendant engages in verbal altercations, immediately escalates to a physical altercation, grabs the nearest metal object she can and cracks the victim over the head. That is the distinct pattern here.
Pattern is most often relevant in a modus operandi (hereinafter "MO") analysis. MO is "[a] method of operating or a manner of procedure; esp[ecially] a pattern of criminal behavior so distinctive that investigators attribute it to the work of the same person." Modus Operandi, Black's Law Dictionary (11th ed. 2019). "The greater the degree of similarity of the offenses the more the evidence enhances the probability that the same person was the perpetrator, and hence the greater the probative value of the evidence[.]" State v. Cox , 2015-0124 (La.App. 4 Cir. 7/15/15), 174 So.3d 131, 138. The State's written motion made only nominal reference to MO and identity, and the trial court did not approve "MO" or "identity" in its ruling as a permissible basis for admitting the evidence, as discussed below. What is more, as mentioned above, the court did not instruct the jury as to identity.
The State's brief cites to this Court's opinion in State v. Lyons, 2018-0280, 241 So.3d 1153 (La.App. 4 Cir. 3/29/18), which considered pattern evidence. In Lyons , this Court specifically relied upon the Louisiana Supreme Court's decision in State v. Altenberger , 2013-2518 (La. 4/11/14), 139 So.3d 510. Altenberger and Lyons both addressed pre-trial rulings on the admissibility of art. 404(B) evidence in the context of domestic violence, and is therefore distinguishable. Altenberger and Lyons considered pattern in the larger context of the defendants' histories of domestic violence and the potential to use the evidence in rebuttal. The fight between the Garners and the Clantons is not susceptible to analysis in any such larger context; it was a chance encounter between strangers.
In State v. Altenberger , 2013-2518, p. 8 (La. 4/11/14), 139 So.3d 510, 515, the Louisiana Supreme Court also touched on the role of the trial court in this process:
The trial court in its gatekeeping function determines the independent relevancy of such evidence and balances its probative value against its prejudicial effect. La.Code Evid. art. 403 ; Huddleston v. United States, 485 U.S. 681, 690–91, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988). "In this analysis, the court seeks to answer the question: Is this evidence so related to the crime on trial or a material issue or defense therein that, if admitted, its relevancy will outweigh the prejudicial effect, which the defendant will necessarily be burdened with?" [ State v. ] Garcia, 2009–1578, p. 55 [ (La. 11/16/12) ], 108 So.3d 1, 39 ].
Altenberger , 2013-2518, p. 8, 139 So.3d at 515. At the end of the parties' arguments, the Court ruled as follows:
And so this court has gone over all of this information and I do believe that the State has met its burden. I do believe that the prior acts or wrongs doings [sic] come in, so at this time, I am going to allow them to be admissible ....
Upon the defense's request for clarification, the court stated the other acts were admissible as relevant to motive, intent, preparation, plan, knowledge, and absence of mistake or accident. No further explanation was provided.
The trial court's oral ruling was insufficient given our jurisprudence. It did nothing more than indicate that the court had "gone over" the information submitted by the State, concluding with "I do believe that the prior acts or wrongs doings [sic] come in." The court's ruling did not specify which exceptions applied or for what purposes they could be used by the State, requiring counsel for the defense to seek clarification, at which time the court listed six exceptions without detailing its reasons therefor. The court's ruling also failed to reflect any analysis with respect to weighing the probative value of the evidence against its prejudicial effect. Again, it is notable that the jury's instructions as to the permissible use of this evidence did not match the court's ruling as to permissible uses.
Trial Stage
Prior to trial, the Defendant filed a motion to bar introduction of inadmissible hearsay evidence. Specifically, Defendant sought to preclude officers who responded to the various incidents described in the State's Prieur motion from testifying as to details of those incidents of which they did not have direct knowledge. The Court addressed the motion at a bench conference just prior to trial, during which the State assured the court and defense as follows:
Judge, the State would assert that we will not attempt to elicit any improper hearsay. We understand the rules of evidence, and we will abide by the Court or any contemporaneous [objection] of law.
The Court advised the defense that "if there is any inadmissible hearsay ... you have the right to make any objection. The Court will rule on it accordingly." The Court also noted its understanding at that time that the State had not made any motion to have a witness declared unavailable. After opening statements, the State elected to begin its case in chief by presenting art. 404(B) evidence through several witnesses.
If a witness is "unavailable" as defined in La.C.E. art. 804(A)(1)-(5), hearsay testimony may be admissible if the party seeking to introduce such evidence satisfies one of the requirements established in subsection (B)(1)-(7).
The first was Officer Mason Suell, who responded to the September 3, 2015 incident. Almost immediately, the court sustained a hearsay objection, and the State advised the officer not to discuss what witnesses said, and instead focus on what he "learn[ed] throughout the course of [his] investigation of the crime that was alleged[.]" The Officer responded, "I learned [the Defendant] was the perpetrator[,]" drawing another objection, which was overruled. Despite repeated objections of this nature, the officer further testified to the following: "she violated the stay away order"; "[the victim] defended himself against the blows from the perpetrator"; "[t]here were a bunch of keys in her hand"; "[t]he perpetrator used a metal pipe to break the windows on the car. She used a brick, and she – and the keys against him." Eventually, the defense stopped objecting. When responding to one objection, the State responded "I'm not asking him what one person said. I'm asking what he learned during his investigation." The court concluded, "[f]or that reason, overruled." The officer also testified to injuries he personally observed, "injuries to his hand and some bruising to his body, or contusions to his body – lacerations[.]"
Next, New Orleans Police Officer Robert Masters testified that he investigated the June 22, 2009 incident. Once again, almost immediately, the court sustained a hearsay objection, when the witness attempted to testify to what the victim told him. Immediately thereafter, the court sustained multiple similar objections when the State asked the witness questions that clearly called for testimony containing hearsay. The officer even volunteered at one point, "All I had was the victim's statement. That's all I had to go off of." He added, "I was just the initial officer who arrived at the scene and took the victim's statement, and then, prepared a warrant on his statement." The State fed off this answer, asking, "So in preparing that warrant, prior to preparing the warrant, what did you learn through that investigation?" The court overruled the Defendant's initial objection, but the Defendant persisted, even noting for the court that the witness had just testified "that the only source of knowledge that he had was from a statement." The court responded:
And again, the question asked was "what did he learn during the course and scope of his employment on this particular case", and I'm going to allow it. Again, it's the same objection that you just made that I'm going to again, overrule.
The officer then testified as follows:
The victim was attacked by his ex-girlfriend who – there was a verbal altercation. During the altercation, he tried to get in his car and flee. She followed him into the car, picked up a brush and was hitting him with a brush in the car. He got out of the car to get away from her. She followed him out of the car, picked up a bottle, broke the bottle, and stabbed him in the chest with it. Then, the police car turned onto the street. Upon seeing the police car, he thought that was the police car coming, because he had called the police before that. She saw the police car and fled the scene. Turns out, the police were not responding to that call. That was just an officer conducting a traffic stop in that area by coincidence.
The officer also testified to injuries he personally observed, "a laceration to his eye and a puncture wound to his chest and a scratch on his arm."
Notably, this is the only witness of the three who testified as to injuries on the victim's head, and in conformity with the State's argument that the Defendant uses improvised objects to attack male victims' heads.
The State next called New Orleans Police Detective Reuben Henry, who investigated the May 20, 2009 incident. He testified that he took photographs of the victim's injuries, to include "three stab wounds to his shoulder, side, and his stomach area." The witness also testified that the Defendant was arrested for the offense.
Lastly, the State called Officer Kevin Bell, who testified that he had taken Defendant's fingerprints on the morning of trial. He was presented with certified conviction packets associated with the three incidents presented to the jury and verified that the prints matched those of Defendant.
Much as evidence of other acts is generally inadmissible, so, too, is hearsay. La.C.E. art. 802. " ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." La.C.E. art. 801(C). "A ‘declarant’ is a person who makes a statement." La.C.E. art. 801(B). Similarly to evidence of other acts, there are exceptions to the general rule, as well as exclusions. See La.C.E. arts. 801(D), 803, 803.1, 804.
Exceptions to the hearsay rule recognize the hearsay character of a statement, but permit the statement's introduction because the nature of the statement makes it reliable, e.g., "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." La.C.E. art. 803(2). Exclusions are simply "not hearsay" under the law. La.C.E. art. 801(D).
Hearsay is generally not allowed "because the value a jury places on a statement depends upon its declarant, and the defendant cannot challenge the declarant's credibility by cross-examination or other safeguards of reliability if the declarant is not present at trial." State v. Smith , 2011-0091, p. 13 (La.App. 4 Cir. 7/11/12), 96 So.3d 678, 687. Furthermore,
If the statement is offered for a purpose other than to prove that the matter asserted is true, the statement is not hearsay. Thus, "the value of the statement as evidence does not depend on the credibility of the out-of-court asserter and the statement falls outside of the scope of the hearsay exclusionary rule. McCormick, [Evidence ], § 249, 6 Wigmore, Evidence, §§ 1766, 1788 (Chadbourne rev., 1976); 4 J. Weinstein, Evidence, Part. 801(c)[01] (1981)." [State v. ]Wiltz, [2008–1441,] p. 7 [ (La.App. 4 Cir. 12/16/09) ], 28 So.3d [554] at 559.
Id.
The officers' testimonies regarding the details of Defendant's other acts constitute hearsay, because they consist of statements other than one made by the declarant (i.e, the victims of the other acts), while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. The State offered the statements for their truth. Undeniably, if they were not offered for their truth (that is, offered as proof that Defendant did what she did), the jury could not consider the specifics of those acts and use those specifics for the purposes intended by the State as argued in its Prieur motion. Indeed, the State repeatedly noted the similarity between the other acts and the charged offenses pre-trial. Thus, the State desired to present the specifics of those other acts to the jury for their truth so that the jury would draw conclusions about the Defendant's conduct as charged.
I would also highlight that it is the substance of the witnesses' answers that should guide the trial courts in evaluating hearsay, not the form of the State's question or the form of the answer. Here, the supposedly permissible form of the question as asked by the State guided the court's rulings, so long as the State did not specifically elicit what the victims "told" or "said" to the officers. Despite ruling in favor of the Defendant when such trigger words were used, the court thereafter overruled the Defendant's objections to the State's efforts to elicit the exact same hearsay statements by changing the form of the question. This tactic is not new, and was repudiated in State v. Wille , 559 So.2d 1321, 1331 (La.1990) (footnotes omitted):
Admission of information received by a police officer in the investigation of a crime, on the basis that such information explains the officer's presence and conduct and therefore does not constitute hearsay evidence, is an area of widespread abuse. McCormick on Evidence § 249 (E. Cleary 3d ed. 1984). Such information frequently has an impermissible hearsay aspect as well as a permissible nonhearsay aspect, and the court in determining admissibility should balance the need of the evidence for the proper purpose against the danger of improper use of the evidence by the jury. Id. The fact that an officer acted on information received in an out-of-court assertion may be relevant to explain his conduct, but this fact should not become a passkey to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule. G. Pugh, Louisiana Evidence Law 429–431 (1974).
See also State v. Green , 49,741, pp. 20-21 (La.App. 2 Cir. 4/15/15), 164 So.3d 331, 345. This Court acknowledged this concept more recently:
The explanatory exception has also been summarized as follows:
In criminal cases, the arresting or investigating officer will often explain
[his actions] ... by stating that he did so ‘upon information received’ and this of course will not be objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay.
McCormick on Evidence, § 248 (2d ed.1972).
State v. Legendre , 2005-1469 (La.App. 4 Cir. 9/27/06), 942 So.2d 45, 53. Here, the officers' relation of the victims' statements to the jury were not used "merely to explain events leading to the arrest of the defendant." They were used as substantive proof of the facts of Defendant's prior acts, inviting the jury to compare them to the facts of the charged offenses and draw conclusions thereon.
The State suggests an exception applies. Specifically, La.C.E. art. 803(8)(a)(iii) :
(8) Public records and reports. (a) Records, reports, statements, or data compilations, in any form, of a public office or agency setting forth:
...
(iii) Factual findings resulting from an investigation made pursuant to authority granted by law. Factual findings are conclusions of fact reached by a governmental agency and may be based upon information furnished to it by persons other than agents and employees of that agency.
Such an interpretation of this exception has been specifically addressed by the Louisiana Supreme Court:
[I]t is essential for an exception to the hearsay rule that some circumstantial probability of trustworthiness be found, to take the place of cross-examination so far as may be. 5 J. Wigmore, Evidence, s 1632 (1974). An overbroad exception admitting into evidence all statements on file with all public officers would have potential conflict with a defendant's right to confrontation and allow introduction of information derived from untrustworthy sources and through unreliable methods. Compare, Fed.R.Evid. 803(8) ; C. McCormick, Evidence, s 317 (Cleary ed. 1972).
State v. Martin , 356 So.2d 1370, 1375 (La.1978). Allowing defendants to confront their accusers is the very means by which our system allows a factfinder – here, a jury – to evaluate the trustworthiness of the source. Martin recognized the conflict between the exception relied upon by the State and the accused's right to confront. By allowing the State's witnesses to testify regarding the Defendant's specific conduct – conduct the witnesses did not personally observe – Defendant could not challenge the trustworthiness of that evidence before the jury.
The State also argues that La.C.E. art. 803(22) is applicable:
Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of six months, to prove any fact essential to sustain the judgment. This exception does not permit the prosecutor in a criminal prosecution to offer as evidence the judgment of conviction of a person other than the accused, except for the purpose of attacking the credibility of a witness. The pendency of an appeal may be shown but does not affect admissibility.
It cannot be disputed that a record reflecting the existence of a final judgment of conviction is an exception to the hearsay rule. However, the authority to introduce evidence of the existence of a conviction does not give the State free reign to introduce specific details of the conviction through inadmissible hearsay as it did here.
Harmless Error
The improper admission of art. 404(B) evidence is subject to harmless error analysis. State v. Contreras , 2017-0735, p. 15 (La.App. 4 Cir. 5/30/18), 247 So.3d 858, 870, writ denied , 2018-1172 (La. 12/17/18), 259 So.3d 341. "An error is harmless if the jury's verdict actually rendered at trial was ‘surely unattributable to the error.’ " Id. (quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) ). The same analysis applies to the improper admission of hearsay. Legendre , 2005-1469, p. 14, 942 So.2d at 54.
Here, it cannot be said that the Defendant's conviction was surely unattributable to the improper admission of art. 404(B) evidence through inadmissible hearsay. The jury heard evidence that Defendant became involved only after Mr. and Ms. Garner and Defendant's sister and mother engaged in a quickly escalating physical altercation. But for the introduction of improper character evidence, elicited in a fashion meant to deprive Defendant of her ability to confront her accusers, the result very well may have been different. The jury was exposed to irrelevant facts virtually guaranteeing Defendant's conviction because of her prior behavior, no matter what argument the defense were to offer in response. The error was further compounded by the State's approach at trial, commencing its case-in-chief with the presentation of 404(B) evidence. Though not determinative, the State's election in this regard was troublesome for its potential to confuse the jury as to the charges it would ultimately consider. La.C.E. art. 403.
Thus, based on the aforementioned, I respectfully dissent.