Opinion
2022 KA 0350.
11-04-2022
STATE of Louisiana v. Errol Wayne HICKS.
HOLDRIDGE, J.
The defendant, Errol Wayne Hicks, was charged by grand jury indictment with second degree murder, a violation. 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 one assignment of error. We affirm the conviction and sentence.
FACTS
The defendant and Carol Hutchinson were in a relationship for about six years, and Carol lived on and off with the defendant at his house on McLin Road in the Town of Livingston. The relationship deteriorated, and Carol moved out. On September 28, 2019, Carol went to the defendant's house to retrieve the last of her belongings. Carol and the defendant were on the defendant's rear porch. Carol was sitting in a plastic chair. The defendant was armed with a .380 semi-automatic pistol. They began arguing, and the defendant shot Carol in the upper right side of her chest. Carol got up from the chair and tried to get away. The defendant then shot her in the left side of her back.
Bleeding, Carol went to her next-door neighbors, James and Lisa Merritt, to seek help. Carol banged on the window and front door of the house. This startled the Merritts, so they did not answer the door right away. Carol then went to the next-door neighbors of the Merritts, John and Darlene Smith. Carol knocked on the door under the carport. John opened the door. Carol was doubled over and told John she had been shot. Carol entered the Smith house. John then directed Carol under his carport and had her sit in a rocking chair. John went back inside and Darlene called 911.
During the time Carol was going to the other houses to get help, the defendant was following her. By this time, James Merritt was outside. James testified that the defendant told him that Carol had pulled a gun on him. The defendant then walked to the Smith house, approached Carol under the carport and shot her in the thigh and in the head, killing her. The defendant walked back to James and told him that Carol pulled a gun on him, he slapped it out of her hand, and that nobody does that and gets away with it. The police had arrived by this time and arrested the defendant. The dash camera of the police unit the defendant was placed in, recorded the defendant's statement to one of the police officers. The defendant said that he and Carol were sitting at his house, and she told him she had thought about killing him a couple of times. The defendant looked off, and when he turned back toward Carol, she had a gun pointed at him. He slapped the gun out of her hand and shot her. She jumped up and ran, and the defendant said, "No bitch, you don't get away from me like this." The defendant said he followed her and "put two more in her."
The defendant did not testify at trial.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues the trial court erred in allowing the introduction of other crimes evidence. Specifically, the defendant avers the evidence was more prejudicial than probative and was not necessary to prove any element of the offense.
The State filed a pretrial motion to introduce other similar crimes or wrongs in domestic abuse matters, pursuant to La. Code Evid. art. 412.4. Following a hearing on the matter, the trial court granted the State's motion to introduce into evidence a 2016 incident wherein the defendant pulled a gun on his son. The trial court found the evidence was more probative than prejudicial. At trial, Cory Voiselle testified as follows. He and Jason Hicks, the defendant's son, worked together. On May 6, 2016, when they got off of work, they went to the defendant's house so Jason could get some items from the shed. The defendant arrived at his house, and he and Jason began arguing. When Jason started walking toward the defendant, the defendant pulled a gun on Jason and told him that if he came any closer, he would shoot him.
Generally, evidence of other crimes committed by a defendant is inadmissible at trial due to substantial risk of grave prejudice to the defendant. State v. Millien, 2002-1006 (La. App. 1st Cir. 2/14/03), 845 So.2d 506, 513. Such evidence, however, may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule when it tends to prove a material issue and has independent relevance other than showing that the defendant is of bad character. State v. Montero, 2018-397 (La. App. 5th Cir. 12/19/18), 263 So.3d 899, 907; see La. Code Evid. art. 404(B)(1).
A statutory exception to the exclusionary rule is La. Code Evid. art. 412.4, which provides in pertinent part:
A. When an accused is charged with a crime involving abusive behavior against a family member, household member, or dating partner or with acts which constitute cruelty involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving assaultive behavior against a family member, household member, or dating partner or acts which constitute cruelty involving a victim who was under the age of seventeen at the time of the offense, may be admissible and may be considered for its bearing on any matter to which it is relevant, subject to the balancing test provided in Article 403.
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D. For purposes of this Article:
(1) "Abusive behavior" means any behavior of the offender involving the use or threatened use of force against the person or property of a family member, household member, or dating partner of the alleged offender.
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(3) "Family member" means spouses, former spouses, parents and children, stepparents, stepchildren, foster parents, foster children, other ascendants, and other descendants....
The admissibility of evidence under this Article is not limited to those actions that are identical or similar in nature to the charged crime. State v. Thomas, 2019-582 (La. App. 5th Cir. 7/29/20), 300 So.3d 517, 527, writ denied, 2020-01503 (La. 3/2/21), 311 So.3d 1053. Evidence of prior acts of domestic abuse is admissible if relevant and the probative value outweighs the prejudicial effect. Id. As used in this balancing test, prejudice limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id. at 527-28.
The burden is on the defendant to show that he was prejudiced by the admission of other crimes evidence. Absent an abuse of discretion, a trial court's ruling on the admissibility of evidence pursuant to La. Code Evid. art. 404(B)(1) will not be disturbed. State v. Le, 2013-314 (La. App. 5th Cir. 12/12/13), 131 So.3d 306, 317. This same standard is applied to the rulings on the admission of other crimes evidence under La. Code Evid. art. 412.4. State v. Gatson, 2021-156 (La. App. 5th Cir. 12/29/21), 334 So.3d 1021, 1038. See State v. Wright, 2011-0141 (La. 12/6/11), 79 So.3d 309, 316. On appeal, an error in the admission of other crimes evidence is subject to the harmless error rule, i.e., whether the verdict actually rendered in the case was surely unattributable to the error. State v. Brown, 2018-01999 (La. 9/30/21), 330 So.3d 199, 236, cert. denied, ___ U.S. ___, 142 S.Ct. 1702, 212 L.Ed.2d 596 (2022).
Herein, we find that the admission of evidence pertaining to the prior incident was not an abuse of discretion, was independently relevant to show a pattern of domestic abuse, and demonstrated to the jury the volatile nature of the defendant. The instant offense involved the defendant pulling a gun on his ex-girlfriend during an argument and ultimately shooting her several times. The prior offense involved the defendant pulling a gun on his son during an argument and threatening to shoot him. See Jones v. State, 2022-269 (La. App. 5th Cir. 7/6/22), 346 So.3d 339, 341 (finding a plain reading of La. Code Evid. art. 412.4 permitted evidence of any prior domestic abuse against any family or household member to be admissible in connection with a separate criminal proceeding involving alleged domestic abuse of a different household member, subject to the balancing test provided in La. Code Evid. art. 403); State v. Simmons, 2021-0547 (La. App. 4th Cir. 11/24/21), 332 So.3d 158, 162, writ denied, 2022-00112 (La. 3/15/22), 334 So.3d 397 (finding the prior crimes evidence involved stalking and violence by the defendant taken against a prior dating partner and was highly probative).
Moreover, even if the trial court erred in allowing admission of the evidence, the erroneous admission of the other crimes evidence was harmless. Brown, 330 So.3d at 237. The evidence of the defendant's guilt in this case was overwhelming. The defendant shot and killed Carol and readily admitted as much to both his neighbors and the police. Whether or not there was any truth to Carol pulling a gun on the defendant, by the time the defendant calmly and methodically tracked down a wounded Carol and shot her in the head at a neighbor's house, he had engaged in conduct that clearly constituted second degree murder. Thus, even if other crimes evidence were improperly admitted, there was ample evidence apart from the other crimes evidence to support the defendant's conviction and, accordingly, we find that the verdict in this case would have surely been unattributable to any error regarding the admission of the prior incident. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); Brown, 330 So.3d at 236.
Leonard Sharkey, a friend of the defendant who lived nearby, testified that almost immediately after he heard the two gunshots at the Smith home, the defendant called Leonard and said, "I shot her."
CONCLUSION
For the foregoing reasons, we affirm the defendant's conviction and sentence.