Opinion
2017 KA 1756
06-01-2018
STATE OF LOUISIANA v. WARKANESKI BRANDON SCOTT
Joseph L. Waitz, Jr. District Attorney Dixie C. Brown Ellen Daigle Doskey Assistant District Attorneys Houma, Louisiana Attorneys for Appellee State of Louisiana Cynthia K. Meyer Louisiana Appellate Project New Orleans, Louisiana Attorney for Defendant/Appellant Warkaneski Brandon Scott
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE 32nd JUDICIAL DISTRICT COURT TERREBONNE PARISH, LOUISIANA
DOCKET NUMBER 693,109 HONORABLE GEORGE J. LARKE, JR., JUDGE Joseph L. Waitz, Jr.
District Attorney
Dixie C. Brown
Ellen Daigle Doskey
Assistant District Attorneys
Houma, Louisiana Attorneys for Appellee
State of Louisiana Cynthia K. Meyer
Louisiana Appellate Project
New Orleans, Louisiana Attorney for Defendant/Appellant
Warkaneski Brandon Scott BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ. McDONALD, J.
The State charged the defendant, Warkaneski Brandon Scott, by bill of information, with possession of a firearm or carrying a concealed weapon by a convicted felon, a violation of LSA-R.S. 14:95.1 (count one); and with two counts of aggravated assault upon a peace officer with a firearm, violations of LSA-R.S. 14:37.2 (counts two and three). The defendant entered a plea of not guilty. During pre-trial proceedings, the State filed a notice of intent to use other crimes evidence under LSA-C.E. art. 404B, and the defendant filed a motion to exclude that evidence. After a hearing, the district court ruled the other crimes evidence would be admissible at trial. After a jury trial, the jury found the defendant guilty as charged on count one and guilty of the responsive offense of simple assault, a violation of LSA-R.S. 14:38, on counts two and three. The defendant filed motions for new trial and post-verdict judgment of acquittal, both of which the district court denied. The State then filed a habitual offender bill of information seeking to enhance the sentence on count one and, after a hearing, the district court adjudicated the defendant to be a fourth-felony habitual offender. The district court sentenced him to 20 years imprisonment at hard labor without the benefit of probation or suspension of sentence. The defendant now appeals, challenging the State's introduction of other crimes evidence at his trial. For the following reasons, we affirm the defendant's convictions, habitual offender adjudication, and sentences.
At the time of the offenses, the defendant was on parole in connection with prior convictions in 2005 for attempted simple burglary and possession of a Schedule III controlled dangerous substance (Vicodin) under 32nd JDC, Terrebonne Parish docket number 452,869.
The record shows that the defendant was sentenced on counts two and three to six months imprisonment on each count.
The defendant's predicate offenses included his: (1) June 30, 2010 guilty plea to felony theft under 32nd JDC, Terrebonne Parish docket number 558,001; (2) February 23, 2006 guilty plea to second degree battery under 32nd JDC, Terrebonne Parish docket number 452,552; and (3) October 2, 2000 guilty plea to illegal use of a weapon under 32nd JDC, Terrebonne Parish docket number 327,294.
The record shows that the State, the defendant, and the district court agreed to sentence the defendant under the version of LSA-R.S. 15:529.1A(4)(a) that became effective November 1, 2017, rather than the version in effect at the time of the offense. See LSA-C.Cr.P. art. 890.1A(2).
FACTS
On January 10, 2015, Terrebonne Parish Sheriff's Office Deputies Johnathan Matherne and Grace Bull were dispatched to 502 Linda Ann Avenue in Gray, Louisiana, in response to a person being shot in the head. The deputies arrived in a police unit and were dressed in uniform. Upon arrival, the deputies saw three extremely upset females come out of the house. The females told Deputy Matherne that the person with the gun was still inside. Deputy Matherne remained in the front of the house while Deputy Bull walked toward the back yard. After he heard Deputy Bull yelling verbal commands, Deputy Matherne went to the back yard and saw that a black male was fleeing from Deputy Bull as she ordered him to stop. The subject, later identified as the defendant, then jumped over a fence while carrying a gun. As the subject "turned in an aggressive manner" toward the deputies with the barrel of his gun pointed toward them, Deputy Bull fired her gun. Then, the defendant threw his gun, later identified as an AK-47 rifle, and laid face down on the ground. Deputy Bull handcuffed him and determined that he had not been hit by her bullet.
Terrebonne Parish Sheriff's Office Detective Lieutenant Jody Foret investigated the house and back yard of the crime scene. At trial, Det. Foret testified that he found a bullet hole inside the kitchen pantry, two bullet defects inside a storage closet on the wall on the opposite side of the pantry, and a bullet defect in the air conditioning closet, which was next to the storage closet. He determined that a single shot entered the air conditioner closet and exited through the pantry door. Det. Foret also testified that he found a clear plastic bag containing 18 Golden Bear live rounds of ammunition in the air conditioner closet, and he stated that this ammunition was compatible with an AK-47 rifle. Det. Foret was later directed to the AK-47 rifle behind the house and discovered a live round inside its chamber. He also located a .9mm casing, compatible with ammunition from Deputy Bull's gun, about 61 feet from where the AK-47 rifle was found.
Elester Charleston was the owner of the house located at 502 Linda Ann Avenue, and she lived there with her granddaughter, Esther Conner, and the defendant, Ms. Conner's boyfriend. Ms. Charleston testified that, on the night of the incident, she and her friend, Drucilla Coleman, were at her house, as were Ms. Conner and the defendant. Ms. Charleston was awakened by the sound of a gunshot. Then, Ms. Conner ran into Ms. Charleston's bedroom and hollered, "Dial 911." According to Ms. Charleston, Ms. Conner was "hysterical" and had blood dripping from her head. Ms. Conner also stated, "Come on, before he, he say he's going to kill all of us." Ms. Charleston called 911. She, Ms. Conner, and Ms. Coleman left through the front door of the house where they were met by Deputies Matherne and Bull. Ms. Charleston testified that she was not aware of any guns in her house, and the holes later found inside her house were not there before the incident.
Ms. Coleman, Ms. Charleston's friend, testified that at 10:30 p.m., only she, Ms. Charleston, Ms. Conner, and the defendant were inside the house. Ms. Coleman, who was playing solitaire on the computer in Ms. Charleston's bedroom while Ms. Charleston slept, heard the defendant and Ms. Conner arguing and then heard a gunshot. According to Ms. Coleman, Ms. Conner then ran into Ms. Charleston's bedroom and said to call 911 "because [she was] tired of [the defendant] playing with [her]." Ms. Conner told the two older women that the defendant "[grazed the] side [of her] head with the gun" and "said he was going to kill all of us."
The defendant testified that he was on parole and was living at 502 Linda Ann Avenue with his fiancée, Ms. Conner, at the time of the incident here. He knew that he was prohibited from possessing a firearm while on parole. He stated that he took the gun from Ms. Conner on the night of the incident but stated that he had not seen the gun before that night. He explained that he left the house with the gun in his hand because he wanted to put it in the shed in the back yard. He also admitted that he threw the gun and a magazine in the back yard and proceeded to run from the police. The defendant denied pointing the gun at Deputies Bull or Matherne.
At trial, Ms. Conner testified that she and the defendant had been together about six years at the time of the instant offenses. She explained that she has a bipolar schizoaffective disorder and takes four medications for her condition. She admitted, however, that she had not taken her medications for a few days before the instant offenses. According to Ms. Conner, she and the defendant had been "fussing" that day because she wanted to smoke marijuana, and he wanted her to take her medication. Ms. Conner testified that she had possession of the gun on the night of the incident. She also stated that she remembered "wanting to shoot the gun" but did not remember hearing a "shot go off," even though four days before trial, she told the defendant that she was willing to testify that she fired the gun. She claimed that her head injury was caused by her hitting her head. After hearing a taped statement she gave to police on the night of the incident, however, she admitted that she had told the police then that she heard a gunshot when she was in the kitchen and noticed that her head was bleeding on the right side. Nevertheless, Ms. Conner testified that the defendant took the gun away from her, and she ran to the back of the house to tell her grandmother to call the police and said she did not want to "fuss and fight" with the defendant anymore.
After the incident, Ms. Conner signed two affidavits, wherein she swore that on January 10, 2015, it was she who possessed the gun found at 502 Linda Ann Avenue, and that it was she who fired the gun. At trial, the State played a recorded jailhouse telephone call between the defendant and Ms. Conner wherein the defendant told Ms. Conner, "Let them know you actually shot the gun, you had an episode."
Howard Short, who also lived on Linda Ann Avenue, testified about an encounter he had with the defendant about a month before the instant offenses. On December 12, 2014, around 10:00 p.m., while Mr. Short was visiting a neighbor directly across the street from 502 Linda Ann Avenue, he overheard the defendant and Ms. Conner arguing in the front yard. During the argument, the defendant went into the house and returned with an AK-47 rifle, which Mr. Howard was able to identify because he had experience with weaponry as an Army veteran. As the argument continued, the defendant pulled back the gun's "lever," but another neighbor took the gun from the defendant. Ms. Conner and her sister left the front yard and began walking down the street toward the back of Linda Ann Avenue. Mr. Short also drove this truck toward the back of Linda Ann Avenue to visit relatives. On the way, he stopped and spoke with Ms. Conner and her sister. Thereafter, the defendant came "flying" down the street in a car and parked in front of Mr. Short's truck. The defendant got out of his car with the AK-47 rifle, began yelling, and instructed Mr. Short not to talk to Ms. Conner or her sister. After this encounter, Mr. Short filed a police report and gave Deputy Matherne the name "Brandon" as the person he saw with the AK-47 rifle. During his trial testimony, Mr. Short identified the defendant as the person who threatened him on December 12th.
Deputy Matherne also testified about the December 12th encounter. He explained that, on that night, he was dispatched to Louisiana State Police headquarters, Troop C, around 10:00 p.m. and spoke with Mr. Short who provided the name "Brandon" and the address, 502 Linda Ann Avenue. Deputy Matherne went to 502 Linda Ann Avenue but did not locate "Brandon." After the instant offenses, Deputy Matherne again spoke with Mr. Short, and on March 15, 2016, the deputy showed him a photographic lineup. Mr. Short identified the defendant as the person who had the AK-47 rifle on December 12, 2014.
OTHER CRIMES EVIDENCE
In his sole assignment of error, the defendant argues the district court erred in allowing the State to introduce evidence of the December 12th incident at his trial. Specifically, the defendant contends that the State introduced that evidence for the "improper purpose and effect of" portraying him "in the worst possible light, to prove that he was a man of bad character and to show that on January 10, 2015, he acted in conformity therewith."
As earlier noted, the State filed a notice of intent to use other crimes evidence before trial. Specifically, the State noted that it intended to introduce evidence of the December 12th incident, when the defendant came out of 502 Linda Ann Avenue holding an assault rifle. The defendant filed a motion to exclude the other crimes evidence.
The district court held a pre-trial Prieur hearing, at which Mr. Short testified similarly to his trial testimony - that is, on December 12th, he saw the defendant retrieve an AK-47 from 502 Linda Ann Avenue while arguing with Ms. Conner. Mr. Short stated that Ms. Conner and her sister began walking down the street in an effort to let the defendant calm down. Mr. Short drove toward the women and asked if they needed a ride. When he stopped to talk with them, the defendant came "speeding down" the street in a car, and Ms. Conner and her sister got into the car with the defendant and left. The defendant then returned and parked his car in front of Mr. Short's truck and, while holding the AK-47rifle, instructed Mr. Short not to talk to the women. Thereafter, Mr. Short reported to law enforcement that the defendant "pull[ed] that gun" on him, and he "wanted it on the record that [the defendant] assaulted [him] with a weapon."
State v. Prieur, 277 So.2d 126, 130 (La. 1973).
Defense counsel argued that because the defendant was never arrested or charged with the December 12th incident, any related testimony would be strictly prejudicial. He also argued that there was no way to ensure Mr. Short was telling the truth about the December 12th incident.
The State responded that it had introduced two police reports generated at the time of the December 12th incident documenting Mr. Short's complaint and would produce an officer to testify at trial. The State also argued that the December 12th incident took place only one month before the instant offenses, was on the same street, involved a description of the same gun, and also involved Ms. Conner. The State indicated the defendant planned to argue that he only took the gun from Ms. Conner to prevent her from committing a crime. To rebut that defense, the State argued that the December 12th incident was highly probative in that it showed the defendant's intent to possess the gun, his opportunity to be in the house with the gun, his motive to possess the gun, his knowledge that the gun was in the house, as well as his identity as the person who possessed the gun.
At the end of the Prieur hearing, the district court ruled that the State would be allowed to introduce evidence of the December 12th incident at trial. As noted above, both Mr. Short and Deputy Matherne testified about the incident at trial.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence due to the substantial risk of grave prejudice to the defendant. To avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917 (La. App. 1 Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 00-1261 (La. 3/9/01), 786 So.2d 115.
Louisiana Code of Evidence article 404B(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.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. LSA-C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence that is not relevant is not admissible. LSA-C.E. 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, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403. A district court's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Freeman, 07-0470 (La. App. 1 Cir. 9/14/07), 970 So.2d 621, 625, writ denied, 07-2129 (La. 3/14/08), 977 So.2d 930.
We find that the district court did not abuse its discretion in allowing the State to introduce the other crimes evidence at trial. The defendant argued that he was justified in possessing the gun and that he had no reasonable alternative other than to possess the gun. He claimed that he had not seen the AK-47 rifle before the night in question and that he was only disarming Ms. Conner. The evidence of the defendant's possession of the same gun on December 12th, at the same location, within 30 days of the instant offenses, was relevant to disprove his claim that he did not know the gun was in the house and that he was only removing it from the house for the safety of the others there. It was also relevant to show the defendant's intent to possess the gun for purposes other than disarming Ms. Conner, his knowledge that the gun was in the house, and his identity as the person who possessed the gun. Based on the foregoing, we find no reason to disturb the district court's ruling that the other crimes evidence was admissible at trial. The highly probative value of this relevant evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See LSA-C.E. art. 403. Accordingly, this assignment of error is without merit. CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.