Opinion
No. 2009 KA 0050.
August 12, 2009.
ON APPEAL FROM THE 19TH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE TRIAL COURT NO. 5-04-0462, SECTION "IV" HONORABLE BONNIE JACKSON, JUDGE PRESIDING.
Hillar C. Moore III, District Attorney, Baton Rouge, LA, Counsel for Appellee State of Louisiana.
Dylan C. Alge, Assistant District Attorney, Baton Rouge, LA, Cordell Collins, Angola, LA, Defendant/Appellant In Proper Person.
BEFORE: PETTIGREW, McDONALD, AND HUGHES, JJ.
The defendant, Cordell Collins, was charged by amended grand jury indictment with one count of second degree murder, a violation of LSA-R.S. 14:30.1, and pled not guilty. Following a jury trial, he was found guilty as charged by unanimous verdict. He moved for a new trial, but the motion was denied. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals, designating the following four counseled assignments of error and one pro se assignment of error:
1. The trial court erred in excluding the testimony of an expert in eyewitness memory in a case in which eyewitness identification was the lynchpin of the State's case.
2. The trial court erred in allowing the State to introduce highly prejudicial evidence of another crime which the State failed to prove was committed by the defendant.
3. The trial court erred in allowing the State to introduce the uncorroborated written statement of Tremayne Franklin that was inconsistent with his testimony under oath.
4. The trial court erred in excluding the prior statement of Georgette Kimble offered to rebut a charge of recent fabrication.
In his pro se brief, the defendant contends that the evidence against him was insufficient because Franklin testified at trial that the defendant was not the person who shot him, because Pope testified he did not see the face of the people who shot him and killed his nephew, and because Kimble testified that the defendant was not the man she saw running from a burning car.
For the following reasons, we affirm the conviction and sentence.
FACTS
On January 3, 2004 at approximately 7:30 p.m. or 8:00 p.m., Travis Pope was visiting his sister and her son Jamon Leroy George the victim at Pope's sister's apartment in the Sherwood Forest area of Baton Rouge. The victim walked with Pope to his car as he was leaving. They were approached by two men. Pope recognized one of the men as someone he had seen while they were in jail together. He identified the defendant in court as the man he recognized and was absolutely certain of his identification. The men pointed guns at Pope and the victim and forced them to lie with their heads on the ground. The guns were "big and chrome." The defendant gave orders to the other man, and he obeyed the commands. The men searched the car, and then the defendant told the other man to put Pope on the back seat. The victim was forced into the trunk. The defendant held a gun to Pope's back and threatened to kill him if he moved. The defendant drove Pope and the victim a certain distance away, parked, pulled the speakers out of the trunk, and then also forced Pope into the trunk. The men then took Pope and the victim to the "Mall City" area of Baton Rouge. They pulled the victim out of the trunk first. As Pope was being pulled out of the trunk, he tripped. Before he "hit the ground," he heard gunshots. Pope slid under the car because "[he] knew [he] was next." Thereafter, the men shot Pope seven times.
Pope and the victim were shot on the corner of Rodin and Cezanne. The fifteen-year old victim was dead when the police arrived. The damage to his skull indicated he had been shot in the back of the head.
Following the shooting, Pope was shown four separate six-person photographic line-ups. The defendant's photograph was not in the first three line-ups and Pope did not indicate that any of the men depicted were involved in the murder of the victim. Pope identified the defendant's photograph in the fourth line-up as the person who had shot him. He selected the photograph within ten seconds and was positive of his identification. He conceded that he never actually saw the defendant shoot him or the victim. On cross-examination, the defense told Pope that he had viewed the line-up with the defendant's photograph in color, but the event happened at night, and so it was presenting him with "the line-up in black and white[.]" The line-up presented to Pope by the defense, however, did not contain the defendant's photograph. Pope did not select any of the photographs from the defense line-up.
Pope's burned-out vehicle was recovered on the night of the January 3, 2004 shooting behind The Red Flower Restaurant approximately six blocks away from 137 Taylor Street.
The State also presented evidence concerning an earlier shooting. Tremayne Franklin testified at trial and identified the defendant in court. He indicated that the defendant was his cousin and that the only reason he (Franklin) was in court was because he had been subpoenaed to appear. On December 26, 2003, Franklin was shot in front of his aunt's house at 212 East Harding Street. He claimed not to have any knowledge of the defendant being in the area of the shooting or asking for money prior to the shooting. He denied telling the defendant, "I don't have nothing for you" prior to the shooting. He also denied that the defendant shot him.
Franklin, however, identified State Exhibit #76 as a document in his handwriting and bearing his signature. In the January 1, 2004 document, Franklin indicated that the defendant began asking him and his friends for ten dollars. Franklin told the defendant, "I don't have nothing for you." Franklin then drove away with Cornell Cummings to 212 East Harding Street. The defendant followed in another vehicle and confronted Franklin and Cummings as they exited their vehicle and Cummings began arguing with him. Approximately two minutes later, the defendant pulled out a gun and shot Cummings. As Franklin turned to run, the defendant also shot him. Franklin fell to the ground and crawled under a car. According to the document, the defendant pulled Franklin out from under the car, shot him again, and searched his pockets. At trial, Franklin claimed that the police had pressured him to implicate the defendant.
Baton Rouge City Police Department Officer Michael Gauthier responded to the shooting scene on December 26, 2003, collected a couple of casings from the roadway in front of 212 East Harding, and gave them to Officer Sylvan.
Baton Rouge City Police Department Officer Clarence McGarner interviewed Franklin on January 1, 2004 concerning the December 26, 2003 shooting. Franklin stated that his cousin, the defendant, had shot him. Franklin stated that he did not tell the police at the scene that the defendant had shot him because he was in too much pain. Officer McGarner testified that he did not threaten, intimidate, or pressure Franklin to implicate the defendant. At a later date, Franklin's aunt gave Officer McGarner two casings she had recovered from outside the home. Officer McGarner also recovered a bullet fragment by the garage of the home.
Baton Rouge City Police Department Officer Garrett Sylvan was in the police parking lot across from the December 26, 2003 shooting scene and heard the shots fired. He saw two black males running from the scene and began chasing them. One of the suspects was wearing black sweat clothes, and the other suspect was wearing white sweat clothes. Officer Sylvan pursued the suspect wearing all white clothing. After losing sight of the suspect for less than one-half minute behind a building, he located him squeezing himself between a screen door and another door at 137 Taylor Street. Officer Sylvan identified the defendant in court as the man he captured running away from the scene. He conceded that his report did not indicate that the defendant was breathing heavily, sweating, or nervous. Defense counsel suggested that the defendant's grandmother lived at 137 Taylor Street.
Examination of the casings recovered from around the victim's body and the December 26, 2003 shooting indicated that the same .45 pistol fired the casings.
The defense presented testimony from Larriette Bell. According to Bell, on January 3, 2004, at approximately 11:00 p.m., "Jonathan" came to her apartment near Airline and Hanks Drive, after being shot while trying to carjack someone.
The defense also presented testimony at trial from Georgette Kimble. According to Kimble, in the early morning hours of January 4, 2004, she saw two dark-skinned, black males, one 5'9" tall and the other 6' tall, running from a burning car near The Red Flower Restaurant. Kimble indicated she was absolutely positive that the defendant was not one of the men she saw running from the car. She stated she was "positive" that the men were 5'9" tall and 6' tall and definitely not 5'1" tall.
Baton Rouge City Police Officer John Colter indicated that the defendant was "pretty short[.]"
SUFFICIENCY OF THE EVIDENCE
In his sole pro se assignment of error, the defendant argues the evidence presented was insufficient to support the conviction because Franklin testified that the defendant was not the person who shot him, because Pope testified that he did not see the face of the people who shot him, and because Kimble testified that the defendant was not the man she saw running away from the burning car.
The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove, in order to convict," every reasonable hypothesis of innocence is excluded. State v. Wright, 98-0601, p. 2 (La.App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 2000-0895 (La. 11/17/00), 773 So.2d 732 (quoting LSA-R.S. 15:438).
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at p. 3, 730 So.2d at 487.
All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. LSA-R.S. 14:24. However, the defendant's mere presence at the scene is not enough to "concern" him in the crime. Only those persons who knowingly participate in the planning or execution of a crime may be said to be "concerned" in its commission, thus making them liable as principals. A principal may be connected only to those crimes for which he has the requisite mental state. State v. Neal, 2000-0674, pp. 12-13 (La. 6/29/01), 796 So.2d 649, 659, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).
Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1(A)(1).
Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." LSA-R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Henderson, 99-1945, p. 3 (La.App. 1st Cir. 6/23/00), 762 So.2d 747, 751, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235.
After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant's identity as the perpetrator of that offense against Leroy George. The verdict rendered against the defendant indicates the jury accepted the testimony presented against the defendant and rejected the testimony offered in his favor. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. The testimony of the victim alone is sufficient to prove the elements of the offense. While Pope survived, and thus, was not an additional murder victim in this matter, he was present immediately prior to and during the murder of the victim. Under Pope's testimony, the defendant was guilty as a principal, if not as the actual gunman, in the offense. The verdict returned in this matter indicates that the jury accepted Pope's testimony as credible. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429, p. 5 (La.App. 1st Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331. Further, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207, p. 14 (La. 11/29/06), 946 So.2d 654, 662. This assignment of error is without merit.
EXPERT WITNESS IN EYEWITNESS MEMORY
In assignment of error number 1, the defendant argues that the trial court abused its discretion in excluding the testimony of Dr. Brigham. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. LSA-C.E. art. 702.
In State v. Stucke, 419 So.2d 939 (La. 1982), the Louisiana Supreme Court found no abuse of discretion in failing to allow an expert to testify concerning the quality of an identification. The court found that the prejudicial effect of such testimony outweighed its probative value because of the substantial risk that the potential persuasive appearance of the expert witness would have greater influence on the jury than the other evidence presented during the trial. The court also found that such testimony invaded the province of, and usurped the function of, the jury. See Stucke, 419 So.2d at 944-45.
The trial court may, however, exercise its discretion in favor of admitting such evidence, in the interest of justice, when it determines that the proffered evidence would assist the jury in deciding the question of identity. See State v. Chapman, 436 So.2d 451, 453 n. 6 (La. 1983). The Stucke decision is consistent with the Louisiana Code of Evidence articles regarding expert testimony. See LSA-C.E. arts. 403 702; State v. Ford, 608 So.2d 1058, 1061 (La.App. 1st Cir. 1992).
In State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005), the Louisiana Supreme Court held that the trial court had properly excluded the testimony of expert in eyewitness identification, "Dr. John C. Brigham." The court found that, "with the possible exception of the effect of alcohol on [the eyewitness's] ability to process the world around her, the proposed expert testimony likely presented an invasion into a reasonable juror's common knowledge." Higgins, 2003-1980 at p. 34, 898 So.2d at 1240.
Under compelling circumstances, formal rules of evidence must yield to a defendant's constitutional right to confront and cross-examine witnesses and to present a defense. Normally inadmissible hearsay may be admitted if it is reliable, trustworthy and relevant, and if to exclude it would compromise the defendant's right to present a defense. See U.S. Const. amend. VI ; La.Const. art. I, § 16; Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); State v. Van Winkle, 94-0947, pp. 5-7 (La. 6/30/95), 658 So.2d 198, 201-02; State v. Gremillion, 542 So.2d 1074 (La. 1989); see also State v. Juniors, 2003-2425, pp. 44-45 (La. 6/29/05), 915 So.2d 291, 325-26, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006).
The defense called Dr. John C. Brigham, expert on eyewitness memory, to the stand at trial. The State objected, arguing the jurisprudence excluded the type of testimony the defense was attempting to present. The defense argued that recent studies had confirmed the many weaknesses of eyewitness identification and expert testimony on eyewitness identification was now universally recognized as scientifically valid and of aid to the trier of fact. The defense proffered the testimony of Dr. Brigham.
Dr. Brigham earned a bachelor's degree in 1964, and thereafter, a masters and doctorate degree in social psychology. Since 1975, he had researched and studied the factors that affect the accuracy of eyewitness memory. He indicated he would testify about research findings on the factors that affect the accuracy of eyewitness memory.
On cross-examination, Dr. Brigham indicated he was prepared to testify about research findings concerning the most effective way of getting accurate responses from a photographic line-up and to present studies about memory and perception. Dr. Brigham conceded, however, he had not brought the studies with him for examination. He further conceded that the studies he would reference did not involve actual victims observing actual events which would affect them.
The State indicated that it was concerned that because Dr. Brigham was very learned and educated, while Pope was not very articulate, his expertise and opinion would be unduly persuasive to the jury. The defense argued that presentation of Dr. Brigham was fundamental to its right to present a defense.
We specifically reject the suggestion by the State that the fact that an expert witness is more articulate than other witnesses should be a factor in deciding whether his testimony should be admissible.
The court sustained the objection, ruling that the probative value of the testimony did not outweigh its prejudicial impact. The court found that the testimony would invade the province of the jury to make a determination of whether or not they believed in the accuracy and reliability of Pope's identification, and general studies related to the general population may not correlate to actual instances where a person has been placed in a situation where they are the victim of a serious crime and may be called upon at a later date to make an identification. The court noted the defense had at its disposal all of the identification testimony that Pope had given in the case and in the case against another defendant, could present all of the factors Dr. Brigham claimed affected the reliability or unreliability of the identification, and was free to offer that testimony and argument to the jury for it to use its own judgment and common sense to decide whether or not it believed that Pope's identification was correct or incorrect. The defense objected to the court's ruling.
The trial court did not abuse its discretion in excluding the testimony of Dr. Brigham. There was evidence before the jury from which it could determine the facts based on common knowledge, education, and experience. Thus, Dr. Brigham's opinion evidence concerning the fallibility of human perception and memory in general was unnecessary in order for the jury to resolve the identity issue. See Ford, 608 So.2d at 1060-61. Further, the ruling did not prevent the defendant from confronting and cross-examining Pope to present his defense; it merely prevented the defendant from using Dr. Brigham to elevate the probative value of research findings made under conditions dissimilar to those present in the instant case. The ruling specifically reserved to the defendant the right to attack the reliability of Pope's identification of the defendant. Thereafter, the defense questioned the reliability of Pope's identification of the defendant as his assailant on the basis of lighting conditions present before and after Pope and the victim were approached by their assailants, on the basis of Pope's head being down during his encounter with the assailants, and on the basis of corruption of the identification due to exposure to the defendant while being incarcerated with him. The defense also presented testimony from Professor Scott Frasier of the University of Southern California Medical School, Institute of Psychiatry Law and Behavioral Sciences, challenging the reliability of Pope's identification of the defendant in the line-up presented to him in the hospital after he had been administered morphine on the basis that morphine made long-term memory less reliable. After a careful examination of the facts of this case, the evidence presented, the trial court's oral reasons, as well as the proffer of the testimony of Dr. Brigham, we conclude that even if the exclusion of the testimony of Dr. Brigham was an error, the error was harmless and the verdict actually rendered in this case "was surely unattributable to the error." See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Johnson, 94-1379, p. 14 (La. 11/27/95), 664 So.2d 94, 100. This assignment of error is without merit.
While the circumstances of the instant case do not warrant a finding of abuse of discretion on the part of the trial court in excluding the proffered expert testimony on the issue of eyewitness identification, we note that jurisprudence has recognized instances where the exclusion of such testimony would warrant reversal, such as where eyewitness testimony provides the sole basis for identifying a defendant (see U.S. v. Brownlee, 454 F.3d 131 (3rd Cir. 2006); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983); State v. Brown, 2001KW2095 (La.App. 1 Cir. 10/22/01) (unpublished)). We further recognize the importance of expert testimony for purposes of assisting a court in evaluating the effect of the procedures used by law enforcement in conducting lineups and photo arrays. See U.S. Department of Justice, Eyewitness Evidence. A Guide for Law Enforcement (1999).
OTHER CRIMES EVIDENCE
In assignment of error number 2, the defendant argues that the State failed to meet its burden of proving that he was the same person who committed the offense against Franklin. In the alternative, the defendant argues that the other crimes evidence was inadmissible because the probative value of the evidence was outweighed by its prejudicial effect.
Generally, evidence of other crimes committed by the defendant is inadmissible due to the "substantial risk of grave prejudice to the defendant." To admit "other crimes" evidence, the State must establish that there is an independent and relevant reason for doing so, i.e., to show 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. See LSA-C.E. art. 404(B)(1). The Louisiana Supreme Court has also held other crimes evidence admissible as proof of other crimes exhibiting almost identical modus operandi or system, committed in close proximity in time and place. Evidence of other crimes, however, is not admissible simply to prove the bad character of the accused. Furthermore, the other crimes evidence must tend to prove a material fact genuinely at issue and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Millien, 2002-1006, p. 10 (La.App. 1st Cir. 2/14/03), 845 So.2d 506, 513-14.
Any inculpatory evidence is "prejudicial" to a defendant, especially when it is "probative" to a high degree. As used in the balancing test, "prejudicial" limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id. See also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) ("The term 'unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged."). State v. Jarrell, 2007-1720 at pp. 10-11 (La.App. 1st Cir. 9/12/08), 994 So.2d 620, 629-30.
The procedure to be used when the State intends to offer evidence of other criminal offenses used to be controlled by State v. Prieur, 277 So.2d 126 (La. 1973). Prior to its repeal by 1995 La. Acts, No. 1300, § 2, La. Code Evid. art. 1103 provided that the notice requirements and clear and convincing evidence standard of Prieur and its progeny were not overruled by the Code of Evidence. Under Prieur, the State was required to give a defendant notice, both that evidence of other crimes would be offered against him, and of which exception to the general exclusionary rule the State intended to rely upon. Additionally, the State had to prove by clear and convincing evidence that the defendant committed the other crimes. Millien, 2002-1006 at p. 10, 845 So.2d at 514.
However, 1994 La. Acts 3d Ex. Sess. No. 51 added LSA-C.E. art. 1104, which provides that the burden of proof in pretrial Prieur hearings, "shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404."
The burden of proof required by Federal Rules of Evidence Article IV, Rule 404, is satisfied upon a showing of sufficient evidence to support a finding by the jury that the defendant committed the other crime, wrong, or act. The Louisiana Supreme Court has yet to address the issue of the burden of proof required for the admission of other crimes evidence in light of the repeal of LSA-C.E. art. 1103 and the addition of LSA-C.E. art. 1104. However, numerous Louisiana appellate courts, including this court, have held that burden of proof to now be less than "clear and convincing." Millien, 2002-1006 at p. 11, 845 So.2d at 514.
In the instant case, prior to trial, the State moved for a Prieur hearing, giving notice of its intent to present evidence of the defendant's shooting Tremayne Franklin and Cornell Cummings in a dispute over money on December 26, 2003. The State further set forth that casings recovered from the December 26, 2003 incident were fired from the same weapon used in the offense on January 3, 2004. The State indicated it would use evidence of the December 26, 2003 incident to show identity, plan, system, preparation, motive, and intent in the trial of the January 3, 2004 shooting.
At the March 15, 2007 hearing on the motion, the State presented testimony from Baton Rouge City Police Department Sergeant John Colter. Sergeant Colter indicated that multiple bullets and .45 casings were recovered from the scene of the January 3, 2004 offense. Use of a .45 in a homicide was unusual because the weapon's size made it difficult to conceal. Thereafter Sergeant Colter learned that the defendant had been arrested in possession of a .45 gun in connection with another attempted robbery and murder involving a .45 weapon. Sergeant Colter prepared a photographic line-up for Travis Pope (the surviving victim in the instant offense) to view. Pope identified the defendant in the line-up as his assailant. Thereafter Sergeant Colter submitted the gun found in the defendant's possession and the casings from the December 26, 2003 offense for comparison testing with the casings recovered in the instant offense of January 3, 2004. The testing revealed that the gun found in the possession of the defendant had not been matched to the casings, but that the casings from both offenses had been fired from the same weapon.
Baton Rouge City Police Department Officer Charles Karras also testified at the Prieur hearing. On February 3, 2004, Officer Karras and Officer Kuhn observed a vehicle on Thomas Delpit travelling with no visible license plate information and conducted a traffic stop of the vehicle. After Officer Kuhn approached the driver's side of the vehicle, Officer Karras approached the passenger side of the vehicle. Officer Karras saw the defendant retrieve a Ruger .45 pistol from his waistband and place it under the driver's seat. As soon as the defendant was ordered out of the vehicle, he stated that he did not own the pistol in the car. Thereafter, he commented about how dangerous the streets were and about having a pistol to protect himself. A subsequent computer check indicated that the defendant was a convicted felon and warrants were outstanding for his arrest.
The State also presented testimony from Detective McGarner at the Prieur hearing. Detective McGarner investigated the December 26, 2003 shooting after it was forwarded to the major assaults division.
Accordingly, he did not visit the crime scene on 212 East Harding Street on the night of the shooting. He did, however, subsequently interview both victims on January 1, 2004. Cornell Cummings indicated that on December 26, 2003, he and Tremayne Franklin were at a friend's house on Sonora Street, and the defendant approached them and "asked about some money." The defendant began making statements about being "a soldier" and not needing anybody with him. Franklin became upset and told Cummings that they should leave. Franklin and Cummings then went to their aunt's house at 212 Harding, across from the police station. As they were exiting their car, the defendant drove up in the same vehicle they had seen him in on Sonora Street. The defendant exited the vehicle, "passed words" with Cummings, and then shot him. Thereafter, the defendant chased Franklin around the side of the house and also shot him.
Franklin advised Detective McGarner that the defendant was his cousin and identified him by name and by a driver's license photograph. He added that after being shot by the defendant, he crawled under a car to hide. The defendant pulled him out from under the car, shot him again, and searched his pockets.
Detective McGarner was subsequently contacted by Franklin's and Cummings's aunt. She advised Detective McGarner that there were two casings on the west side of the house, and Detective McGarner retrieved those casings from her. He also discovered bullet fragments on the west side of the house.
The State argued that evidence of the December 26, 2003 shooting was admissible in the instant case to establish identity. The State claimed the evidence showed that the defendant had been in possession of the .45 murder weapon in similar circumstances to those in the instant case. The defense argued that the State had merely shown that two shell casings were given to Detective McGarner at an unknown time by a relative of the victims, and they were not relevant unless they could be tied to the December 26, 2003 shooting. The court denied the motion to introduce the other crimes evidence, noting the State had failed to show by clear and convincing evidence when the bullet casings were found, and thus, the connexity between the casings and the actual shooting was too tenuous, while the facts of the earlier shooting would be highly prejudicial in the instant case.
On March 26, 2008, the State reurged its Prieur motion. The State argued that there was additional evidence that would impact the court's ruling and a stipulation between the parties was "falling apart," necessitating that the court make a determination again. The defense agreed that the stipulation had fallen apart, but disputed that the evidence was new.
The State indicated that rather than reurging its Prieur motion earlier, it had relied on an agreement as to the admissibility of the Prieur evidence subject to cross-examination. The court asked the defense if, as part of an agreement to reduce the matter for trial from first degree murder to second degree murder, the defense had discussed agreeing not to object to the evidence on Prieur grounds, while reserving the right to challenge the evidence on the basis of reliability and credibility. The defense answered affirmatively. The court ruled it would allow the reopening of the Prieur hearing to present additional information not presented at the initial hearing.
The State presented testimony from Baton Rouge City Police Department Officer Michael Gauthier. On December 26, 2003, Officer Gauthier responded to a report concerning shots fired at the corner of Harding and Highland Road. When Officer Gauthier arrived at the scene, a victim who had been shot in the leg was still being treated. Officer Gauthier observed shell casings in the roadway in front of 212 Harding and secured them. Within thirty minutes of the shooting, he collected the casings, placed them in an evidence envelope, and handed them to Officer Sylvan.
The State also presented testimony from Baton Rouge City Police Department Officer Garrett Sylvan. He was in the police parking lot across from the scene on December 26, 2003, and heard the shots fired. He saw two black males running from 212 East Harding and began chasing them. One of the suspects was wearing black sweat clothes, and the other suspect was wearing white sweat clothes. After the suspects went in different directions, Officer Sylvan pursued the suspect wearing all white clothing. After losing sight of the suspect for "a brief second," behind a building, he located him hiding behind a glass door at 137 Taylor Street, approximately one block from the crime scene. Officer Sylvan was absolutely certain that the defendant was the man he saw running away from the scene. He could not recall whether or not the defendant was sweating or out of breath.
Defense counsel alleged that the defendant lived with his grandmother at 137 Taylor Street.
Tremayne Franklin also testified at the second Prieur hearing. He conceded that the defendant was his cousin and he (Franklin) did not want to testify. He indicated he was outside of a friend's house on December 26, 2003, but denied that anyone asked him for ten dollars. He also denied getting into an argument or confrontation on that date. He conceded, however, that State Exhibit #2, a document, was written in his handwriting and bore his signature. In the document, Franklin stated, "He asked all of us for ten dollars[,] and I replied, [']I don't have nothing for you.[']" Franklin conceded that he and Cornell Cummings traveled to Franklin's aunt's house at 212 East Harding Street. Franklin claimed he and Cummings were followed to East Harding Street by "some people" who tried to rob them and shot them. He denied that the defendant was the assailant. In the document, however, Franklin stated, "About two minutes after arguing[,] he pulled out a gun on Cornell and shot him. I turned around for to run and he, [the defendant], shot me. I, Tremayne, fell to the ground and crawled under my cousin's car that was parked at the house. [The defendant] pulled me from under the car and shot me again."
On cross-examination, Franklin indicated he had made a statement to the police on December 26, 2003, in which he stated he did not know who had shot him. He also claimed he told the police that the two perpetrators were dressed all in black. He claimed his statement implicating the defendant was not true and was the product of his being medicated and police suggestion. He claimed he did not see the defendant at 212 East Harding at the time of the shooting.
The trial court ruled that the evidence of the defendant's commission of the December 26, 2003 shooting satisfied the requirements of Prieur and that the probative value of the evidence outweighed its prejudicial impact. The court found the State had addressed the problem of insufficient connexity between the casings turned over to the police following the December 26, 2003 shooting and the casings recovered from the scene of the instant offense. The court noted that police officers had testified that on the night of the December 26, 2003 shooting, they went to the scene of the shooting and recovered two shell casings from the street in front of the residence. The court noted those casings were later compared to the casings turned over to the police as well as the casings recovered from the scene of the instant offense, and all of the casings matched, indicating that the same weapon had fired the casings. The court also noted that the weapon used, a .45 weapon, was not typically seen on the streets. The court recognized that Franklin had recanted his prior statement implicating the defendant, but found that the veracity of his testimony was called into question by the fact that he claimed the defendant was not at the scene at the time he was shot, but a police officer in the almost immediate vicinity of the shooting (Officer Sylvan) chased a suspect, later identified as the defendant, fleeing from the shooting. The court also noted the fact that the statement Franklin recanted was a highly-detailed, written statement rather than "just some vague statement that was contained somewhere in the police report."
The court expressly recognized the right of the defense to cross-examine Franklin at trial and to discount his original statement given to the police.
The trial court did not err in granting the State's Prieur motion. The State made a showing of sufficient evidence to support a finding by the jury that the defendant committed the December 26, 2003 shooting. The trial court also correctly found that the prejudicial effect to the defendant from the evidence of the prior shooting did not rise to the level of undue prejudice when balanced against the probative value of the evidence. The defendant disputed his identity as the assailant in both the December 26, 2003 shooting and the instant offense. Thus, the State had to establish that element at trial. The evidence of the earlier shooting was highly probative on the issue of the defendant's identity as the assailant in the instant offense. This assignment of error is without merit.
FRANKLIN'S WRITTEN STATEMENT
In assignment of error number 3, the defendant argues introduction of Franklin's written statement violated the rule of State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). Additionally, he argues the trial court erred in finding that Franklin's written statement was non-hearsay under LSA-C.E. art. 801(D)(1)(a), and erred in finding that there was additional evidence to corroborate the matter asserted by the prior inconsistent statement.
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is, in a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness' attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement. LSA-C.E. art. 801 (D)(1)(a).
A party should not be able to call a witness to evoke a statement which the party intends to dispute by the prior statement for the sole purpose of getting before a jury inadmissible hearsay testimony (ostensibly offered only to prove that the witness is lying as indeed the party who called him knew in advance he would). Casey, 99-0023 at p. 9, 775 So.2d at 1031.
At the second hearing on the State's Prieur motion, the defense argued Franklin's written statement was inadmissible under the rule of Casey and as hearsay. The court overruled the objections, noting that Casey was decided prior to the current version of LSA-C.E. art. 801(D)(1)(a), and under that provision, the statement at issue was non-hearsay if there was independent corroboration of the statement. The court found that Franklin's written statement was corroborated by Officer Sylvan's testimony to the effect that he saw the defendant and actually apprehended him shortly after the incident.
The trial court correctly overruled the Casey and hearsay objections to Franklin's written statement. Franklin's written statement was corroborated by Officer Sylvan's testimony and was non-hearsay under LSA-C.E. art. 801(D)(1)(a). See also LSA-C.E. art. 801(D)(1)(c).
WRITTEN STATEMENT OF KIMBLE
In assignment of error number 4, the defendant argues the trial court erred in denying the defense motion to introduce the transcript of Kimble's statement to the police on January 4, 2004 because the statement was admissible under LSA-C.E. art. 801(D)(1)(b).
The defense presented testimony at trial from Georgette Kimble. According to Kimble, on January 4, 2004, she saw two dark-skinned, black males, one 5'9" tall and the other 6' tall, running from a burning car near The Red Flower Restaurant. Kimble indicated that she was absolutely positive that the defendant was not one of the men she saw running from the car. She stated that she was "positive" the men were 5'9" tall and 6' tall and definitely not 5'1" tall.
See footnote #1, supra.
On cross-examination, the State asked Kimble if she had actually told the police that two people were running away, "one taller and one shorter[.]" Kimble insisted that she had also specifically described the men by their height. Kimble did not agree with the State's claim that she had not told the police anything about being able to recognize the men or anything about their complexions. She agreed that "the tape" would be the best evidence of what she told the police. She denied that she could be mistaken about the height of the men. She stated that she was positive the defendant was not one of the men she saw running away because he was shorter than those men.
On redirect examination, the defense let Kimble read a copy of her statement to refresh her recollection. In response to defense questioning, Kimble then restated that she had told the police that the men she saw running away were 5'9" tall and 6' tall and both dark. The defense then offered the transcript of Kimble's statement into evidence. The State objected, and the court stated, "It's not admissible. Who is your next witness?" The defense answered the court's question without objecting to the court's ruling and the matter proceeded.
The instant argument was not preserved for appeal. An irregularity or error cannot be availed of after verdict unless, at the time the ruling or order of the court was made or sought, the party made known to the court the action which he desired the court to take, or of his objections to the action of the court, and the grounds therefore. LSA-C.Cr.P. art. 841; LSA-C.E. art. 103(A)(1).
CONVICTION AND SENTENCE AFFIRMED.