Opinion
2015 KA 1455
04-07-2016
STATE OF LOUISIANA v. MICHAEL HEBERT
Hillar C. Moore District Attorney Allison Miller Rutzen Assistant District Attorney Baton Rouge, LA Attorney for Plaintiff/Appellee State of Louisiana Prentice White Louisiana Appellate Project Baton Rouge, LA Attorney for Defendant/Appellant Michael Hebert
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. 09-13-0383 The Honorable Richard D. Anderson, Judge Presiding Hillar C. Moore
District Attorney
Allison Miller Rutzen
Assistant District Attorney
Baton Rouge, LA Attorney for Plaintiff/Appellee
State of Louisiana Prentice White
Louisiana Appellate Project
Baton Rouge, LA Attorney for Defendant/Appellant
Michael Hebert BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
The defendant, Michael Hebert, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and, following a jury trial, was found guilty as charged. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating two assignments of error. We affirm the conviction and sentence.
FACTS
The defendant, who was in his early fifties, lived at home with his parents, Wayne Hebert, Sr., and Earline Hebert. They lived on Chateau Drive in the Broadmoor area of Baton Rouge. Wayne and Earline also had a son and daughter who lived in Texas, Wayne Gaston Hebert, II, (Gaston) and Melanie Sanders. In 2013, Wayne and Earline put their home on the market to sell, because they planned on moving to Texas to be near Melanie and Gaston. The defendant was upset that his parents were moving. The defendant did not have a job and relied on his parents for financial support. The defendant was estranged from his father. When Wayne and Earline showed the defendant a three-bedroom house that they would purchase for him when they moved to Texas, the defendant told them he did not want the house because the shed in the backyard was too small. To prepare their home to be shown by a realtor, Wayne and Earline had to clear the house of many items and furniture. Gaston agreed that he would drive in from Texas to help out his parents with moving the furniture out of the house and into the garage. Gaston and Earline had also briefly discussed that Gaston should talk with the defendant about the move to help allay any trepidation the defendant might have had about this transition in his life.
On June 15, 2013, at about 6:00 a.m., Gaston was at his parents' home in Baton Rouge, moving furniture to the garage. (Gaston had arrived in Baton Rouge from Texas the night before at about 10:30 p.m.) Several minutes later, the defendant went into the backyard and began talking with Gaston. The defendant became upset with something that Gaston had said. The defendant went back into the house and went upstairs, to his bedroom. Moments later, the defendant went downstairs, walked through the kitchen past his mother, and opened the porch door that led to the backyard. The defendant called out "Gaston" and, without warning, shot Gaston five times with a Glock .357 semi-automatic handgun that he owned. Gaston died in the backyard.
The defendant called 911. When the operator transferred the call to the police, the defendant stated that his brother started attacking him, and he had to shoot him. When the police arrived at the house, they took the defendant into custody without incident. Gaston was lying on the concrete driveway in the backyard. There was an aluminum baseball bat about three or four feet away from Gaston's right hand. Seven spent Federal Cartridge cases were scattered around the driveway. Only one cartridge case was next to Gaston's body. Sergeant Dwayne Stroughter with the Baton Rouge Police Department, who spoke to the defendant at the scene, testified that the defendant told him that when he (the defendant) tried to leave, his brother came at him with a baseball bat, so he had to shoot him.
Wayne testified that when he heard the shooting, he grabbed the bat from underneath his bed and headed out to the backyard with it. Shocked at seeing Gaston on the ground, Wayne thought he dropped the bat, but was not sure exactly what he did with it.
Wayne's testimony was perpetuated prior to trial. Before the start of trial, Wayne died, and his testimony in the form of a recorded video was played at trial.
DNA swabs were taken of the baseball bat handle. Tammy Rash, an expert in DNA analysis, testified that the DNA profile obtained on the bat handle was a mixture of two individuals. Wayne could not be excluded as a contributor, and the other contributor was present at such a low concentration that a valid DNA profile could not be obtained. Rash also testified that Gaston could be excluded as the predominant contributor to the DNA on the bat.
The defendant gave a statement at the police station. According to the defendant, he shot Gaston because Gaston had grabbed his head. The defendant went upstairs to get his keys, and when he went back outside to the backyard to get in his truck, Gaston walked "fast" toward him. The defendant saw Gaston's face and knew that Gaston was coming to beat him up. It was at this point that the defendant shot Gaston.
The defendant did not testify at trial.
ASSIGNMENT OF ERROR NO. 1
In this assignment of error, the defendant argues that the evidence was insufficient to support the conviction for second degree murder. Specifically, the defendant contends he is guilty of manslaughter because of the presence of the mitigating factors of sudden passion or heat of blood at the time of the killing. In the alternative, the defendant contends that he acted in self-defense.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B); State v. Ordodi, 2006- 0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
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. La. R.S. 14:30.1(A)(1). Guilty of manslaughter is a proper responsive verdict for a charge of second degree murder. La. Code Crim. P. art. 814(A)(3). Louisiana Revised Statute 14:31(A)(1) defines manslaughter as a homicide which would be either first degree murder or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the factfinder finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed. The existence of "sudden passion" and "heat of blood" are not elements of the offense but, rather, are factors in the nature of mitigating circumstances that may reduce the grade of homicide. State v. Maddox, 522 So.2d 579, 582 (La. App. 1st Cir. 1988). Manslaughter requires the presence of specific intent to kill or inflict great bodily harm. See State v. Hilburn, 512 So.2d 497, 504 (La. App. 1st Cir.), writ denied, 515 So.2d 444 (La. 1987).
Specific 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. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, 390. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So.2d 889, 892 (La. App. 1st Cir. 1986).
In his brief, the defendant does not deny that he shot and killed his brother, Gaston. The defendant suggests, however, that the State's claim that he had the specific intent to kill his brother "is totally false." According to the defendant, something (unidentified) that Gaston told him while they were in the backyard talking "triggered a rage inside" of the defendant that culminated in the shooting. The defendant further asserts there was not a significant amount of time between his being angered and the shooting. It was "this surge of anger," the defendant contends, that caused him "to run inside his parents' home, arm himself with a firearm, and shoot his brother." Thus, according to the defendant, since he lost his self-control, he did not have the specific intent to kill or harm his brother.
It is the defendant who must establish by a preponderance of the evidence the mitigating factors of sudden passion or heat of blood to reduce a homicide to manslaughter. See State ex rel. Lawrence v. Smith, 571 So.2d 133, 136 (La. 1990); State v. LeBoeuf, 2006-0153 (La. App. 1st Cir. 9/15/06), 943 So.2d 1134, 1138, writ denied, 2006-2621 (La. 8/15/07), 961 So.2d 1158. See also Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Further, the killing committed in sudden passion or heat of blood must be immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Thus, the evidence at trial had to establish that the provocation was such that it would have deprived an average person of his self-control and cool reflection.
There was no testimony or physical evidence that Gaston physically provoked the defendant in any way. The defendant did not testify at trial. Thus, the defense did not establish the mitigating factors of sudden passion or heat of blood during the morning of the shooting. The testimony at trial established that the defendant appeared to have gotten angry while talking to Gaston in the backyard. The defendant then left the scene and went back inside; he went upstairs momentarily and came back downstairs. The defendant then walked a few feet outside and began shooting at Gaston from a distance. Earline Hebert, the mother of Gaston and the defendant, testified that she was in the kitchen, watching through the bay window the defendant and Gaston talking in the backyard prior to the shooting. It appeared they may have been arguing. According to Earline, she saw Gaston patting the defendant's shoulder, causing her to think that they were "making peace." At that moment, Earline heard the defendant say, "Don't you ever put your hand on me again, or I'll shoot you." Earline then heard Gaston reply that the defendant would not want to do that because he would be incarcerated for the rest of his life. The men walked away from each other, the defendant toward the house and Gaston back toward the garage, where he had earlier been moving furniture.
According to Earline, the defendant went upstairs, came back downstairs, walked past her, and opened the porch door (to the backyard). The defendant was only two or three feet outside of the door when he yelled "Gaston" and began firing his handgun. Gaston had his back toward the defendant when the defendant began shooting. Earline saw Gaston moving around the driveway, trying to avoid being shot. According to Earline, Gaston was about eight to ten feet away from the defendant and walking toward the garage when the defendant opened fire. Earline did not see a bat or anything else in Gaston's hands when he was being shot.
Earline's account of the shooting was at odds with the defendant's account of what had occurred. Following the shooting, the defendant was brought to the police station and provided a video statement. According to the defendant, he and Gaston were arguing in the backyard. Gaston grabbed the defendant by the head with both hands. This angered the defendant, causing him to go inside. The defendant went upstairs to get his keys, not his gun. According to the defendant, he already had his gun on his person when he was talking to Gaston in the backyard. The defendant's plan was to get in his truck and drive away from the scene. When the defendant went back into the backyard, however, to get in his truck, Gaston began walking "fast" toward him. It is at this point that the defendant repeatedly shot Gaston. The defendant did not know if Gaston had anything in his hands, and during his entire interview, he never mentioned or made any reference to a baseball bat even though he had earlier told the police officer who initially detained him at the scene that Gatson had come at him with a bat.
While the defendant confined his argument to manslaughter, he does suggest in brief that "the only explanation for [his] behavior is that either he was provoked by a comment Gaston made to him while they were standing outside.of their parents' home or [he] felt an urgent need to defend himself against Gaston who purposefully armed himself before arriving to Baton Rouge." Moreover, in the "Issues For Review" and "Summary of Argument" sections of the defendant's brief, he suggests the shooting was, in the alternative, self-defense.
When self-defense is raised as an issue by the defendant, the State has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. See State v. Spears, 504 So.2d 974, 978 (La. App. 1st Cir.), writ denied, 507 So.2d 225 (La. 1987). A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21. The guilty verdict of second degree murder indicates the jury accepted the testimony of the prosecution witnesses insofar as such testimony established that the defendant did not kill Gaston in self-defense. See Spears, 504 So.2d at 978.
The jurors clearly did not believe the claim of self-defense. They may have determined the aggressor doctrine applied, since the defendant escalated the conflict by arming himself. See State v. Loston, 2003-0977 (La. App. 1st Cir. 2/23/04), 874 So.2d 197, 205, writ denied, 2004-0792 (La. 9/24/04), 882 So.2d 1167. More likely, under the facts of this case, the jury may have determined the defendant did not reasonably believe he was in imminent danger of losing his life or receiving great bodily harm when he shot Gaston and did not act reasonably under the circumstances. See Loston, 874 So.2d at 205. When the defendant left the backyard, there was no reason for him to return. He could have stayed inside or walked out the front door and taken a walk. Instead, he went back outside to the backyard and confronted Gaston. Moreover, even if the defendant had every right to be in his backyard (which he did) as Gaston did, the defendant could not have shot Gaston in the reasonable belief that he was in imminent danger of losing his life or receiving great bodily harm. Gaston was not armed with anything and, if the defendant's version of events is to be believed, the most Gaston did was walk quickly toward the defendant before the defendant shot him.
Dr. Cameron Snider, who performed the autopsy on Gaston, testified that Gaston had been shot five times. Three of the bullet wounds entered Gaston from his back and two from the front. Gaston was shot in the front of each arm and twice in the back of his left arm. He was also shot in his lower left back, which was the shot that killed him. According to Dr. Snider, none of the wounds had stippling or gunshot residue. Thus, while the distance of the shots were indeterminate, Dr. Snider made clear that he did not have evidence of a close or medium gunshot range.
Based on the testimony, a rational trier of fact could have reasonably concluded that the killing of Gaston was not necessary to save the defendant from the danger envisioned by La. R.S. 14:20(1) and/or that the defendant had abandoned the role of defender and taken on the role of an aggressor and, as such, was not entitled to claim self-defense. See La. R.S. 14:21; State v. Bates, 95-1513 (La. App. 1st Cir. 11/8/96), 683 So.2d 1370, 1377. In finding the defendant guilty, it is clear the jury rejected the claim of self-defense and concluded that the use of deadly force under the particular facts of this case was neither reasonable nor necessary.
When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis fails, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). It is clear from the guilty verdict that the jury rejected the theory that the defendant was so angry when he shot Gaston that he was deprived of his self-control and cool reflection. Questions of provocation and time for cooling are for the jury to determine under the standard of the average or ordinary person with ordinary self-control. If a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act. State v. Leger, 2005-0011 (La. 7/10/06), 936 So.2d 108, 171, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).
The defendant noted in brief that an explanation for his shooting Gaston was that he was provoked by a comment Gaston had made to him while they were outside, although he failed to indicate either the nature or content of this alleged comment. Mere words or gestures, no matter how insulting, will not reduce a homicide from murder to manslaughter. State v. Mitchell, 39,202 (La. App. 2nd Cir. 12/15/04), 889 So.2d 1257, 1263, writ denied, 2005-0132 (La. 4/29/05), 901 So.2d 1063. See State v. Charles, 2000-1611 (La. App. 3rd Cir. 5/9/01), 787 So.2d 516, 519, writ denied, 2001-1554 (La. 4/19/02), 813 So.2d 420 (an argument alone will not be sufficient provocation to reduce murder charge to manslaughter). See also State v. Tran, 98-2812 (La. App. 1st Cir. 11/5/99), 743 So.2d 1275, 1292, writ denied, 99-3380 (La. 5/26/00), 762 So.2d 1101; State v. Hamilton, 99-523 (La. App. 3rd Cir. 11/3/99), 747 So.2d 164, 169; State v. Thorne, 93-859 (La. App. 5th Cir. 2/23/94), 633 So.2d 773, 777-78; State v. Quinn, 526 So.2d 322, 323-24 (La. App. 4th Cir. 1988), writ denied, 538 So.2d 586 (La. 1989).
The jury heard the testimony and viewed the evidence presented at trial and found the defendant guilty as charged. As noted, the defendant did not testify. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Moreover, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). The guilty verdict indicates the reasonable determination by the jury that, for whatever reason he had, the defendant shot Gaston multiple times with the specific intent to kill him and in the absence of the mitigating factors of manslaughter. See State v. Delco, 2006-0504 (La. App. 1st Cir. 9/15/06), 943 So.2d 1143, 1149-51, writ denied, 2006-2636 (La. 8/15/07), 961 So.2d 1160. See also State v. Robinson, 2002-1869 (La. 4/14/04), 874 So.2d 66, 74, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004) (deliberately pointing and firing a deadly weapon at close range indicates specific intent to kill). The jury's guilty verdict of second degree murder was necessarily a rejection of any of the responsive verdicts, including manslaughter. See La. Code Crim. P. art. 814(A)(3); State v. Leon, 93-2511 (La. 6/3/94), 638 So.2d 220, 222 (per curiam).
After a thorough review of the record, we find that the evidence supports the jury's unanimous guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the second degree murder of Wayne Gaston Hebert, II. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
While not dispositive of the findings before us, we feel it necessary to address an issue that has apparently confused defendants and appellate counsel, alike, for some time. The defendant notes more than once in his brief that, while he may have committed manslaughter, he did not have the specific intent to kill Gaston. For example, the defendant asserts that he "did not possess the ability to maintain his self[-]control or cool reflection when he shot his brother"; or "Gaston's statement triggered a rage inside of [him] that culminated into this shooting." Thus, according to the defendant, "he did not have the specific intent to kill or harm his brother." "Heat of blood" manslaughter, or manslaughter under La. R.S. 14:31(A)(1) is a specific intent killing. As noted above, the culpable state of mind required for manslaughter under subsection (A)(1) as an element of the offense is the specific intent to kill or inflict great bodily harm. "Heat of blood" or "sudden passion" do not negate the intent to kill. These are not elements of the offense, but only factors in the nature of mitigating circumstances that may reduce the grade of homicide. See State v. Tompkins, 403 So.2d 644, 647-48 (La. 1981). It is only that type of manslaughter known as felony-manslaughter, or any manslaughter occurring during the commission of an intentional misdemeanor directly affecting the person, that does not require the specific intent to kill or cause great bodily harm. See La. R.S. 14:31(A)(2)(a).
Louisiana Revised Statute 14:31(A)(2)(b) provides that specific intent is also not required when a perpetrator is resisting arrest in a manner not inherently dangerous. --------
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the trial court erred in allowing "Other Crimes Evidence/Bad Acts" at trial. Specifically, the defendant contends that various off-handed statements he made to his parents showed only that he was a bad person and prejudiced the jury.
Louisiana Code of Evidence article 404(B)(1) provides:
Except as provided in Article 412, evidence 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.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. See State v. Rose, 2006-0402 (La. 2/22/07), 949 So.2d 1236, 1243. The trial court's ruling on the admissibility of other crimes or prior acts evidence will not be overturned absent an abuse of discretion. See State v. Galliano, 2002-2849 (La. 1/10/03), 839 So.2d 932, 934 (per curiam).
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. Code Evid. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403.
The defendant in brief does not address any of the specific statements allowed at trial that prejudiced his defense. At a pretrial Prieur hearing, the State sought to introduce certain comments the defendant had made to his parents before Gaston went to Baton Rouge in order to show the defendant's state of mind. In one instance, when the defendant found a pie in the refrigerator, a kind that only Gaston ate, the defendant told his mother that if Gaston came to town, he was going to kill Gaston. According to the defendant's sister, Melanie Sanders, her mother told her the defendant would remark or sing a song around the house wishing that his parents were dead. The trial court ruled that this "bad acts" evidence would be allowed at trial. At trial, references to these incidents were introduced into evidence through various witnesses.
The trial court's ruling on the admissibility of other crimes or prior acts evidence will not be overturned absent an abuse of discretion. See Galliano, 839 So.2d at 934. We find no abuse of discretion in the trial court's ruling. These statements were relevant for state of mind. Testimony at trial established that the fifty-one-year-old defendant had been living at home with his parents for most of his life. When his parents put the house up for sale to move to Texas to be with Gaston and their daughter, the defendant became upset and estranged from his family. When Gaston came to Baton Rouge to help his parents move and to talk to the defendant about moving out, it is apparent the defendant became especially unsettled.
These statements made by the defendant showed the frame of mind the defendant was in at the time the house was being prepared for the realtor's showing and when he shot Gaston. See State v. Taylor, 2001-1638 (La. 1/14/03), 838 So.2d 729, 746, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004) (the defendant's "bad thoughts" evidence that he wanted to kill somebody allowed into evidence because the statements constituted direct assertions of the defendant's state of mind and were relevant to the defendant's motive and intent); La. Code Evid. art. 803(3) (hearsay exception for statements of then existing state of mind offered to prove the defendant's future acts). See also State v. Miller, 98-0301 (La. 9/9/98), 718 So.2d 960, 966-67; State v. Adams, 2004-0482 (La. App. 1st Cir. 10/29/04), 897 So.2d 629, 632-33, writ denied, 2005-0497 (La. 1/9/06), 918 So.2d 1029.
This evidence had independent relevance to the issues of motive, intent, and state of mind. Further, the evidence served to rebut the defense's argument that the defendant had killed Gaston in self-defense. See Taylor, 838 So.2d at 746. Any prejudicial effect was outweighed by the probative value of such evidence. See State v. Scales, 93-2003 (La. 5/22/95), 655 So.2d 1326, 1330-31, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996).
We find, further, that even had the "other acts" evidence been inadmissible, the admission of such evidence would have been harmless error. See La. Code Crim. P. art. 921. The erroneous admission of other crimes evidence is a trial error subject to harmless-error analysis on appeal. State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 102. The test for determining whether an error is harmless is whether the verdict actually rendered in this case "was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); Johnson, 664 So.2d at 100. The State's evidence clearly established the defendant's guilt, despite any comments the defendant might have uttered days or weeks prior to the shooting. As such, the guilty verdict rendered was surely unattributable to any evidence that the defendant had said offensive things to his parents or had made threatening remarks about Gaston. Any error in allowing such evidence to be presented to the jury was harmless beyond a reasonable doubt. See La. Code Crim. P. art. 921; Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081.
Hence, this assignment of error is also without merit.
CONCLUSION
Therefore, for all of the reasons set forth herein, we affirm the defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.