Opinion
2018 KA 0438
02-28-2019
STATE OF LOUISIANA v. RHUBIN SCOTT, JR.
Joseph L. Waitz, Jr. District Attorney J. Christopher Erny Ellen Daigle Doskey Assistant District Attorneys Houma, Louisiana Attorneys for Appellee State of Louisiana Mary C. Hanes Louisiana Appellate Project New Orleans, Louisiana Attorney for Defendant/Appellant Rhubin Scott, Jr. Rhubin Scott, Jr. Angola, Louisiana In Proper Person
NOT DESIGNATED FOR PUBLICATION On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana
No. 737591 The Honorable Juan W. Pickett, Judge Presiding Joseph L. Waitz, Jr.
District Attorney
J. Christopher Erny
Ellen Daigle Doskey
Assistant District Attorneys
Houma, Louisiana Attorneys for Appellee
State of Louisiana Mary C. Hanes
Louisiana Appellate Project
New Orleans, Louisiana Attorney for Defendant/Appellant
Rhubin Scott, Jr. Rhubin Scott, Jr.
Angola, Louisiana In Proper Person BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The defendant, Rhubin Scott, Jr., was charged by grand jury indictment on count one with second degree murder, a violation of La. R.S. 14:30.1, and on counts two and three with attempted second degree murder, violations of La. R.S. 14:27 and 14:30.1. He pled not guilty. The State filed notice of intent to introduce other crimes evidence pursuant to La. Code Evid. art. 404(B), which the trial court ruled admissible, in part, after a hearing. Following a trial by jury, the defendant was found guilty as charged on all counts. The trial court denied the defendant's motion for post-verdict judgment of acquittal and motion for a new trial. On count one, the defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On counts two and three, the defendant was sentenced to fifty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on each count. The trial court ordered that the sentences be served consecutively. The defendant now appeals, assigning error in a counseled brief to the admission of other crimes evidence. In a pro se supplemental brief, on grounds of constitutional violation and hearsay, the defendant asserts two additional assignments of error challenging the trial court's admission into evidence of a 911 call. For the following reasons, we affirm the convictions and sentences.
STATEMENT OF FACTS
On October 25, 2016, after a 911 call initiated at approximately 10:51 p.m., several officers of the Terrebonne Parish Sheriff's Office (TPSO) responded to the scene of a shooting at 207 Capri Court on Bayou Road in Houma, Louisiana. The 911 caller (Glenn Freeman) reported that Rhubin Scott, Jr. (the defendant) killed his nephew (David Trahan), shot his sister (Kimberly Trahan) and niece (Joei Vendetto), and fled from the scene in an older model, light gray Chevy. When Corporal Angie Seymour arrived at the scene at approximately 11:00 p.m., she observed the male victim, David Trahan, who was lying on the ground in front of a shed. David had an apparent gunshot wound to the chest and appeared to be deceased. Corporal Seymour began securing the scene as she was alerted to the presence of one of the female victims who was bleeding profusely. Corporal Seymour placed a tourniquet on the victim's right leg just before Acadian Ambulance and the fire department arrived at the scene to attend to the victims. After Corporal Seymour began securing bullet casings located on the scene, Detective Jamie Trahan located additional bullet casings, photographed the scene, and collected evidence.
After Freeman initially stated that his nephew was dead and that his sister and niece had been shot, a 911 operator asked him if he knew who did the shooting and Freeman stated, "Yes, I don't know his last name, his name is Rhubin." Freeman then asked someone in the background for the last name before relaying the defendant's full name.
The Louisiana State Police Crime Lab report indicated that the cartridge casings collected at the scene were most consistent with a nine millimeter Luger cartridge and were fired from the same gun.
Detective Ryan Trosclair arrived at the scene at approximately 11:04 p.m. and began interviewing several individuals on the scene, including victim Joei Vendetto, William Alexander, and Ruvin Albert. After speaking to additional witnesses of relevant observations near or at the time of the shooting, Detective Trosclair obtained a warrant for the defendant's arrest. The following morning, the police received an anonymous call regarding the defendant's whereabouts and the arrest warrant was executed. After being advised of his Miranda rights, the defendant denied any knowledge of or any involvement in the incident. Detective Trosclair conducted additional interviews of Joei and interviewed Joei's mother, victim Kimberly Trahan, after she was released from the hospital. The victims consistently identified the defendant as the shooter and Joei provided recordings of voice messages that she indicated were made by the defendant prior to the shooting.
Amongst the witnesses at the scene, Clarence Parker lived across the street and got out of bed when he heard a sound that he presumed to be firecrackers and heard rumbling noises. He then heard an engine starting and when he looked out of his window, he observed a Chevy truck as it backed up and hit his neighbor's vehicle. Parker went outside, approached the victims and observed their gunshot wounds. He saw David lying between the porch and the shed with his eyes and mouth open, and he checked him for a pulse but could not detect any. Another neighbor, Brian Howe, similarly heard the noises and saw the Chevrolet truck fleeing the scene. Howe identified the vehicle at trial.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).
Dylan Trahan, the brother of Joei and son of Kimberly, lived in an apartment with Joei at the time of the shooting. On the night of the shooting, after 10:00 p.m., the defendant, who Dylan noted had been dating Joei, came to the apartment in his small truck looking for Joei. Dylan, who had previously witnessed arguments between Joei and the defendant, observed that the defendant was intoxicated when he arrived. He texted Joei, informing her that the defendant was at the apartment looking for her and warning her not to come home. The defendant left after Dylan told him that Joei was at their mother's house.
Joei testified that she began associating with the defendant about a year before the shooting. As the relationship progressed, they developed trust issues and often argued. The arguments ultimately progressed to physical fights, involving back-and-forth pushing and hitting. Joei would sometimes sustain injuries, such as bruises. During the weeks prior to the shooting, the defendant's level of anger and violence escalated. Joei became afraid, decided that the relationship needed to end, and informed members of her family of the circumstances. The defendant began harassing her with phone calls, including calls of a threatening nature, as she attempted to end the relationship. Joei noted that on the day of the shooting, the defendant called her several times while she was at work and she answered some of the calls in an attempt to encourage him to stop calling.
When the defendant arrived at Kimberly's house on the night of the shooting, Joie was there along with Kimberly, David, Glenn (Kimberly's brother), Albert (Kimberly's friend), and one of Joei's friends. The front door was open. The defendant told Joei, "that's how it's gonna be[,]" then began walking away. A couple of seconds later, he stepped back up to the porch with a gun in his hand and Joei walked to the front door in an unsuccessful attempt to close the door. Joei testified, "I don't know if he grabbed me by my hair first, or if I hit him first. I don't exactly remember which happened first, but those two things ended up happening; and then the gun was put to my head." She stated that she was in the doorway before the defendant pulled her outside, with her shirt being ripped off in the process. She recalled her mother and brother coming outside, noting that her mother was "putting up a fight" and stating that she was not going to let the defendant take Joei. Joei recalled the moment that the shots started firing and saw the defendant fire multiple shots at her mother and brother, but was unaware as to who was shot first, and did not recall personally being shot. Joei was shot three times and suffered four graze wounds.
Albert testified at trial that he was in the living room with Joei when the defendant arrived at the house. According to Albert, the defendant and Joei began arguing over breaking up, and the defendant turned to walk away before stating, "I can't believe it's going to end like this." The defendant then pulled out a gun and Albert yelled, "he's [sic] got a gun." As Joei stood up and went to the door, the defendant grabbed her by the hair and held the gun to her head. Kimberly entered the living room and immediately began yelling, telling the defendant to release Joei. The gunfire started as the altercation shifted from the living room to the porch, and Albert ran to the kitchen. Albert described the gun as a dark, shiny, semi-automatic weapon with a long magazine.
Consistent with Joei and Albert's testimony, Kimberly testified that she was in another part of the house when she heard Joei scream, "mama, Rhubin's got a gun to my head." Kimberly told Glenn to call 911 and when she looked down the hallway, she saw the defendant grabbing Joei's hair and holding a gun to her head. She further testified, "He was pulling her out the door. I followed him out the door. Yes, I did have my finger in his face. I sure did. I said, 'get that F-ing gun off my daughter's head right now ... .'" She added, "He was calm - he was looking at me like I'm stupid. He said, 'I'm going to take her for a ride.'" At that point, Kimberly told the defendant that she would not allow him to take Joei anywhere, telling him that he would have to kill her first. As the defendant repeatedly stated that he was going to take Joei with him for a ride, Kimberly again told him that she would not allow him to do so and pushed the defendant's head. At that point, the defendant opened fire. Kimberly testified that she was shot in the stomach, hip, and leg. She heard her son David come outside as the defendant continued to pull Joei off of the porch. The defendant then fired at David, striking and killing him with one gunshot.
OTHER CRIMES EVIDENCE
In the counseled assignment of error, the defendant argues that the trial court abused its discretion in allowing the State to introduce evidence of alleged prior acts of violence, involving the defendant and Joei. He specifically challenges the admission of trial testimony by Joei describing a previous incident involving an argument that took place while the victim and the defendant were travelling on St. Louis Canal Road at night. According to Joei, who was driving at the time, the defendant removed the keys from the ignition while the vehicle was still moving, and threw them into a field. He left her stranded in the road until she was discovered by a police officer. The defendant contends that the trial court did not make a determination as to whether the incident had any temporal relationship to the shooting incident. The defendant argues that the trial court failed to consider that Joei "instigated the incident" by striking him and refusing to take him home when he requested. The defendant contends that the victim was in control of the situation, as she owned the vehicle and was driving at the time. He argues that if the roles were reversed, and a male had refused to take a woman home when she requested, it would be considered akin to kidnapping. Further, the defendant argues that his behavior in pulling the keys out of the ignition and walking away was not abusive. He claims that the State introduced the evidence to show that he was a person of bad character who acted in conformity with his bad character. La. Code Evid. art. 404(B)(1).
Herein, prior to the trial, the State filed notice of intent to introduce other crimes evidence pursuant to La. Code Evid. art. 404(B). However, as the State notes on appeal, at trial, the State did not question Joei about the St. Louis Canal Road incident on direct examination. To the contrary, on cross-examination, the defense attorney questioned Joei about the incident and the State followed up the line of questioning on redirect examination. Specifically, as the defense attorney questioned Joei about the volatile nature of her relationship with the defendant and the mutual lack of trust, he asked, "Okay, was there a particular night when he got a text message that you didn't approve of?" At that point, the defense attorney elicited further details regarding the St. Louis Canal Road incident, including the argument that developed after Joei read the text message, and the fact that Joei had hit the defendant first on that occasion. The defense attorney further asked, "And y'all continued arguing ... in the vehicle?" After Joei responded positively, the defense attorney asked, "And at some point is this when he pulled the keys out of the ignition?" Joei replied, "He - yes, he yanked the keys and threw them out the window, in the field." She noted that the defendant hit her back a few times before walking away. On redirect examination, the State asked, "Ms. Kliebert [the defense attorney] asked you about a particular incident involving some keys and your vehicle. Can you get into that and tell us what happened?" At that point, Joei reiterated her previous cross-examination testimony, confirming that the vehicle was still moving when the defendant removed the keys.
After a hearing, the trial court, in part, ruled in the State's favor, finding that evidence of past incidents involving Joei and the defendant would be admissible. The trial court stated that such evidence would be an integral part of the instant offenses and part of a continuous chain of events leading up to the shooting. The trial court further found that such evidence would be relevant to the defendant's motive in the instant case.
As Louisiana Code of Evidence Article 611(D), pertinently, provides, a witness who has been cross-examined is subject to redirect examination as to matters covered on cross-examination. Moreover, a trial court has wide discretion in controlling redirect and recross examinations, and its rulings are not to be disturbed in the absence of an abuse of that discretion. State v. Williams, 615 So.2d 1009, 1021 (La. App. 1st Cir. 1993), writ denied, 619 So.2d 543 (La. 1993). We agree with the State that the defense opened the door to the testimony at issue. As detailed above, the challenged testimony on redirect examination regarded an incident first covered on cross-examination by the defendant and, thus, was not a new matter. Accordingly, there was no abuse of discretion by the trial court in permitting the line of questioning on redirect examination. See Williams, 615 So.2d at 1021. Considering the foregoing, the counseled assignment of error is without merit.
As this court finds that the testimony at issue was within the scope of redirect examination in accordance with Article 611(D), and therefore properly admitted, we need not address the defendant's argument on appeal that the testimony constituted inadmissible other crimes evidence.
CONFRONTATION CLAUSE
In the pro se supplemental brief (adding assignments of error numbers two and three), the defendant assigns error to the trial court's admission of the 911 call into evidence. Specifically, in the first pro se assignment of error (labeled as assignment of error number two), the defendant argues that the admission of the 911 call resulted in a violation of the Sixth Amendment's Confrontation Clause. The defendant argues that the substance of the 911 call was testimonial in nature. He further claims that Glenn Freeman only reported what the victims told him and was inside of the trailer at the time of the shooting. The defendant contends that Freeman did not see the perpetrator or witness any shooting, adding that Freeman only perceived his deceased nephew and his sister and niece bleeding from gunshot wounds after the crime occurred. Contending that he was denied a right to cross-examine Freeman, the defendant argues that the admission of the 911 call violated his rights under the Confrontation Clause, as well as his rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
At the outset, we note that the defendant, at trial, only objected to the admission of the 911 call on the grounds of hearsay, not confrontation. The basis or ground for the objection must be sufficiently brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. A defendant is limited on appeal to the grounds for the objection that were articulated at trial. See La. Code Crim. P. art. 841 and La. Code Evid. art. 103(A)(1). The defendant's hearsay objection was insufficient to preserve the confrontation clause argument raised herein. Violation of the Confrontation Clause is a new ground for objection and cannot be raised for the first time on appeal. Thus, assignment of error number two (the first pro se assignment of error) is not properly before this court.
In State v. Butler, 93-1317 (La. App. 1st Cir. 10/7/94), 646 So.2d 925, writ denied, 95-0420 (La. 1995), 655 So.2d 340, this court rejected the State's claim that the defendant's hearsay objection was insufficient to preserve a complaint of an abridgement of the rights of cross-examination and confrontation. Citing California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), this court found, "a hearsay objection is fundamentally based on [the rights of cross-examination and confrontation]." Butler, 646 So.2d at 929. However, Butler and California v. Green predate Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which drew a distinction between testimonial and nontestimonial hearsay in holding that testimonial statements are barred at trial under the Confrontation Clause unless the witness was unavailable to testify, and the defendant had a prior opportunity for cross-examination. Nontestimonial statements, such as those made to a 911 operator during an ongoing threat, do not implicate Crawford. See Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006). Decisions rendered by this court subsequent to Crawford and Davis in this court have made clear that challenges to nontestimonial hearsay and confrontation must be preserved independently. See State v. Williams, 2015-0509 (La. App. 1st Cir. 7/7/16), 2016 WL 3655434 * 11 (unpublished), writ denied, 2016-1373 (La. 5/19/17), 219 So.2d 336; State v. Landry, 2008-1589 (La. App. 1st Cir. 2/13/09), 2009 WL 368612 **4-5 (unpublished), writ denied, 2009-0681 (La. 12/11/09), 23 So.3d 911. --------
HEARSAY
In the second pro se assignment of error (labeled as assignment of error number three), the defendant argues that the trial court erred in admitting into evidence hearsay contained in the 911 call. He claims that Freeman reported what the victims told him and what he perceived while inside of the Capri Court trailer park. The defendant notes that during the call, the victims can be heard in the background crying and sobbing. Noting that the trial court allowed the 911 call to be admitted on the ground of present sense impression, the defendant argues that the "other incidents" were not perceived by Freeman until after the shooting. Contending that as Freeman perceived the crime after the shootings occurred and did not see the shootings, the defendant argues that the 911 call was not an excited utterance. The defendant claims that Freeman was somewhere inside the trailer hiding at the time of the shooting, and that the call was made after the shooting, when Freeman assessed what occurred. The defendant again concludes that the admission of the call violated his rights under the Due Process Clause of the Fourteenth Amendment.
Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. Code Evid. art. 801(C). Hearsay is generally not admissible, subject to certain exceptions. See La. Code Evid. art. 802. "Present sense impressions," or statements describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, are not excluded by the hearsay rule, regardless of the declarant's availability. See La. Code Evid. art. 803(1). "Excited utterances," which are statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition, are similarly not excluded by the hearsay rule. See La. Code Evid. art. 803(2). Hearsay within hearsay is admissible only if each part of the combined statement conforms with an exception to the hearsay rule. La. Code Evid. art. 805; State v. Mullins, 2014-2260 (La. 1/27/16), 188 So.3d 164, 172.
In admitting the 911 call in this case, the trial court found that the phone call consisted of Freeman's present sense impression, stating "it was a statement describing and explaining the event, or condition, while the declarant was perceiving the event, or condition." We agree with the trial court in that the 911 call was admissible as an exception to the hearsay rule because it constituted a present sense impression and also contained excited utterances. See State v. Kitchen, 2017-0362 (La. App. 1st Cir. 9/15/17), 231 So.3d 849, 860, writ denied, 2017-1983 (La. 11/14/18), 256 So.3d 281. As Glenn Freeman made the 911 call reporting the shooting of his nephew, sister and niece, he was describing the shooting incident as it occurred or immediately thereafter. There is no doubt that the statements by Glenn, and by other persons on the scene to Glenn, were made while still under the impression and stress of the event. Therefore, the hearsay and hearsay within hearsay statements contained in the 911 call were not excluded by the hearsay rule. Thus, the trial court did not err in overruling the defendant's objection to the admission of the 911 call. We find no merit in the second pro se assignment of error.
CONVICTIONS AND SENTENCES AFFIRMED.