Opinion
2022 KA 1105
08-16-2023
STATE OF LOUISIANA v. DESMOND DEVONTE VERDIN
James Christopher Erny Assistant District Attorney Joseph L. Waitz, Jr. District Attorney Houma, Louisiana Counsel for Plaintiff/Appellee State of Louisiana Jacob Longman Kathryn Jakuback Burke Jennifer Cameron Baton Rouge, Louisiana Counsel for Defendant/Appellant Desmond Devonte Verdin
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket No. 810397 Honorable Juan W. Pickett, Judge Presiding
James Christopher Erny Assistant District Attorney Joseph L. Waitz, Jr. District Attorney Houma, Louisiana Counsel for Plaintiff/Appellee State of Louisiana
Jacob Longman Kathryn Jakuback Burke Jennifer Cameron Baton Rouge, Louisiana Counsel for Defendant/Appellant Desmond Devonte Verdin
BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.
MCCLENDON, J.
The defendant, Desmond Devonte Verdin, was charged by bill of information with aggravated second degree battery (count one), a violation of LSA-R.S. 14:34.7; domestic abuse battery by strangulation, first offense (count two), a violation of LSA-R.S. 14:35.3(C) and (L); and domestic abuse battery where the victim is pregnant, first offense (count three), a violation of LSA-R.S. 14:35.3(C) and (K). The defendant pled not guilty and, following a jury trial, was found guilty on count one of the responsive offense of aggravated battery, a violation of LSA-R.S. 14:34; guilty on count two of the responsive offense of domestic abuse battery, a violation of LSA-R.S. 14:35.3(A); and guilty as charged on count three. The State filed a habitual offender bill of information. Following a hearing on the matter, the trial court adjudicated the defendant a fourth-felony habitual offender. On count one, the trial court sentenced the defendant to an enhanced sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On count two, the trial court sentenced the defendant to six months in parish jail. On count three, the trial court sentenced the defendant to an enhanced sentence of twenty years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant now appeals, designating two assignments of error. For the reasons that follow, we affirm the convictions, habitual offender adjudications, and sentences.
The defendant had prior convictions for two counts of aggravated battery and illegal possession of stolen things over $1,500.
The trial court did not specify whether the sentences were to run consecutively or concurrently. Because of this and because all three offenses arose from the same act or transaction, the sentences shall be served concurrently. See LSA-C.Cr.P. art. 883.
FACTS
Myra Jackson and the defendant lived together in Houma. According to the victim's statement given to law enforcement, Jackson was three months pregnant with the defendant's child. On the night of October 15, 2019, while at home, the defendant became angry with Jackson over some missing money. The defendant grabbed Jackson by the throat and slammed the back of her head against the wall. Afterwards, as Jackson was walking toward the bathroom, the defendant pushed her down in the hallway. Jackson then went to the kitchen and retrieved a kitchen knife to open a box of taco shells. The defendant approached Jackson and grabbed her hand that was holding the knife. Following a brief struggle, the defendant gained control of the knife and cut Jackson's right palm. Jackson's cousin, Destiny Brown, and the defendant's brother were also present. After the incident, the defendant and his brother left the house. Brown took Jackson to the hospital, where she was treated for her injuries. Officer Walter Tenney, of the Houma Police Department, interviewed Jackson and Brown at the hospital. Officer Tenney was wearing a body camera, which recorded the interview.
The defendant did not testify at trial.
ASSIGNMENT OF ERROR NO, 1
In his first assignment of error, the defendant argues the State failed to give defense counsel notice of a Petition For Protection From Abuse (protective order) in its possession, which defendant argues is both a Brady violation and a discovery violation under LSA-C.Cr.P. art. 729.3.
Myra Jackson, the victim and the State's witness, was very reluctant to testify at trial. During most of her direct examination by the State, Jackson testified she did not or could not remember anything that happened on the night the defendant attacked her. For example, when the State asked Jackson how she sustained the cut on her hand and requested that she look at a picture of the knife on a television screen, Jackson refused to look at the picture. Jackson then indicated that the struggle over the knife arose because the defendant was worried about her and tried to take the knife out of her hand. While Jackson confirmed the defendant eventually took the knife from her, she also maintained that she could have cut herself.
On cross-examination, Jackson answered affirmatively when she was asked if she and the defendant were having a verbal dispute. She indicated she may have been suicidal and that she was attempting to hurt herself with the knife.
On redirect examination, Jackson indicated that she was not, and had never been, in an abusive relationship with the defendant. When asked if she had ever suffered black eyes or anything similar, she responded, "No, sir." At this point, the State sought to impeach Jackson with a protective order she filed on October 16, 2019, the day after the incident. On page 2 of the protective order, where asked to describe "[t]he most recent incident of abuse which caused petitioner to file this petition," Jackson wrote: "10/16/19" "I was acused (sic) of stealing money which angered him. He started to hit me, chock (sic) me, slam my head against the wall, push me down and ultimately slicing my hand open with a knife." On page 3 of the protective order, under "[p]ast incidents," Jackson wrote: "In the past the defendant has been physically abusive. I have previously had black eyes, busted lips, and cuts. I have been sent home from work as a result of the abuse."
Defense counsel objected to the use of the protective order because a copy had not been provided to the defense. The State indicated the protective order was public record and was being used only to impeach Jackson. The trial court overruled the objection and allowed the protective order to be used for impeachment purposes only. Jackson identified the protective order and the State introduced it into evidence. The State then read aloud the statements from pages 2 and 3 as printed above.
The defendant in brief argues that the State's failure to provide a copy of the protective order to defense counsel constituted a Brady violation. According to the defendant, the State withheld the protective order, precluding the defense from investigating the statements made and interviewing pertinent witnesses, then used the protective order as inculpatory evidence against him. The defendant suggests that had this evidence been disclosed, it is reasonable to assume defense counsel would have prepared an impeachment of Jackson. The defendant also argues the State violated the rules of discovery under LSA-C.Cr.P. art. 729.3, which requires ongoing notification from both parties regarding the existence of additional evidence.
It is well settled that the State has an affirmative duty to disclose exculpatory evidence favorable to the defendant. See Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). But in order to prove a Brady violation, the defendant must establish, inter alia, that the evidence in question was, in fact, favorable to the accused because it was exculpatory or impeaching. State v. Garrick, 2003-0137 (La. 4/14/04), 870 So.2d 990, 993 (per curiam). Disclosure of exculpatory evidence should be made in time to allow a defendant to make effective use of such information in the presentation of his case. State v. Prudholm, 446 So.2d 729, 738 (La. 1984). Even where disclosure is made during trial, however, it will be considered timely if the defendant is not prejudiced. See State v. Huis, 95-0541 (La.App. 1 Cir. 5/29/96), 676 So.2d 160, 170, writ denied, 96-1734 (La. 1/6/97), 685 So.2d 126. In order to be entitled to a reversal for failure to timely provide exculpatory information, the defendant must show that he was prejudiced. Discovery violations do not provide grounds for reversal unless they have actually prejudiced the defendant. Garrick, 870 So.2d at 993.
A discovery violation involving the State's failure to disclose exculpatory evidence does not require reversal as a matter of the Due Process Clause unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. Garrick , 870 So.2d at 993. While late disclosure, as well as nondisclosure, of exculpatory evidence may deprive the defendant of a fair trial, in both instances the impact on the defense "must be evaluated in the context of the entire record." State v. Kemp, 2000-2228 (La. 10/15/02), 828 So.2d 540, 545 (per curiam).
We find that the protective order was neither exculpatory nor favorable to the defendant. To the contrary, while ostensibly used only for impeachment purposes, the protective order clearly inculpated the defendant. Though the defendant suggests defense counsel would have prepared an impeachment of Jackson had counsel possessed the protective order prior to trial, it is not clear how this would have inured to the benefit of the defendant. Jackson testified she did not remember or could not recall any of the acts of domestic violence allegedly perpetrated by the defendant. Therefore, a prior statement used to impeach Jackson's trial testimony would necessarily be unfavorable to the defendant, rather than exculpatory.
Moreover, the defendant must show that the evidence was material. Favorable evidence is material, and constitutional error results from its suppression by the government, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bagley , 473 U.S. at 682, 105 S.Ct. at 3383. See State v. Smith, 95-1826 (La.App. 1 Cir. 9/27/96), 681 So.2d 980, 992, writ denied, 96-2568 (La. 3/27/97), 692 So.2d 390.
We do not find there was a reasonable probability that the result of the trial would have been any different had defense counsel had a copy of the protective order pretrial. The State made clear that it provided open-file discovery to the defense since the beginning of the case. Accordingly, we do not find any discovery violation by the State. Moreover, Jackson's statement in the protective order about what occurred that night was ultimately cumulative. Officer Tenney testified that from talking with Jackson and Destiny Brown, Jackson's cousin, at the hospital, he learned that Jackson and the defendant lived together and that Jackson was the victim of several different actions by the defendant. Officer Tenney also testified that Jackson told him the defendant cut her, and she did not indicate that it was an accident. Officer Tenney further indicated that after the defendant cut Jackson, the defendant told her, "I'm going to have to stab you up." Finally, Officer Tenney indicated Jackson confirmed to him that there were three separate incidents of domestic violence on the night in question.
In its memorandum in opposition to the defendant's motion for new trial, the State noted that on July 9, 2021 (over two weeks prior to trial), it had obtained a certified copy of the protective order. The defendant had been offered and accepted open-file discovery. The State indicated it had placed a copy of the protective order in its file and remained there until it was introduced into evidence.
Further, the State played video segments from the body camera Officer Tenney was wearing while at the hospital speaking with Jackson. In the first segment played, Jackson said the defendant cut her. In the next segment, Jackson said the defendant counted his money, said he was short, and accused her of stealing his money. The defendant grabbed Jackson's neck and banged her head against the wall. Then as Jackson was walking to the bathroom, the defendant pushed her down in the hallway. Following this, Jackson went into the kitchen, got a kitchen knife to open up a package, and told the defendant to get his stuff and leave. The defendant then went into the kitchen and began striking Jackson in the back of the head. In the last segment, Jackson said that after the defendant cut her, he said he was going to have to stab her up. Finally, the photographs introduced into evidence showed an apparently deep cut on Jackson's right hand, and blood on the kitchen floor and cabinets under the sink.
Based on the foregoing, we find the defendant has failed to show that he was prejudiced or that the proceedings were somehow rendered fundamentally unfair. See State v. Pitre, 2004-0545 (La.App. 1 Cir. 12/17/04), 901 So.2d 428,441-42, writ denied, 2005-0397 (La. 5/13/05), 902 So.2d 1018. Had the protective order been disclosed to the defense, we are convinced that the result of the proceeding would not have been different.
In summary, there was no Brady violation because the evidence was not favorable to the defendant and was not material. Moreover, while the protective order arguably should have been disclosed in discovery, failure to do so amounted to harmless error. Accordingly, the trial court did not err in allowing the protective order to be used for impeachment purposes.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO, 2
In his second assignment of error, the defendant argues ineffective assistance of counsel.
The defendant asserts several instances throughout trial where counsel allegedly failed to provide effective assistance. First, the defendant claims counsel failed to investigate and present exculpatory evidence. In particular, the defendant suggests defense counsel was aware of Jackson's mental health issues, but failed to investigate these issues or present any evidence of same at trial. Second, the defendant claims defense counsel failed to object to comments made by the State during voir dire regarding a defendant's right to decline to testify. In particular, the defendant suggests defense counsel should have objected to the State's comment that the Fifth Amendment "doesn't have any place in my house" and "wouldn't work in my house". Third, the defendant claims counsel failed to seek admonishment for allegedly inappropriate comments the State made to Jackson's mother outside of court, which were possibly overheard by jurors. Specifically, during a trial break, the State asked Mrs. Jackson not to leave. This conversation, according to the defendant, was in the hallway in the presence of jurors. While defense counsel asked for a mistrial, which was denied, the defendant suggests counsel was ineffective for not also requesting an admonishment. Finally, the defendant claims defense counsel failed to object to inflammatory and prejudicial comments made during closing argument.
A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. If the record, however, discloses the evidence needed to decide the issue of ineffective assistance of counsel and that issue is raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. It is well settled, however, that allegations of ineffectiveness of counsel relating to decisions involving investigation, preparation, and strategy cannot possibly be reviewed on appeal. State v. Johnson, 2006-1235 (La.App. 1 Cir. 12/28/06), 951 So.2d 294, 301-02. A defense counsel's decision whether or not to object may be strategic. See State v. Caminita, 2016-0121 (La.App. 1 Cir. 9/16/16), 203 So.3d 1100, 1106-07, writ denied, 2016-2045 (La. 9/6/17), 224 So.3d 988; State v. Moore, 48,769 (La.App. 2 Cir. 2/26/14), 134 So.3d 1265, 1273-75, writ denied, 2014-0559 (La. 10/24/14), 151 So.3d 598. Only in an evidentiary hearing in the district court, where the defendant could present evidence beyond that contained in the instant record, could these allegations be sufficiently investigated. Johnson , 951 So.2d at 302. Accordingly, this allegation is not subject to appellate review. See State v. Albert, 96-1991 (La.App. 1 Cir. 6/20/97), 697 So.2d 1355, 1363-64.
The defendant would have to satisfy the requirements of LSA-C.Cr.P. art. 924 etseq. in order to receive such a hearing.
CONVICTIONS AFFIRMED; HABITUAL OFFENDER ADJUDICATIONS CONFIRMED; SENTENCES AFFIRMED.
HOLDRIDGE, J., concurring.
I respectfully concur. I would not have allowed the introduction of the protective order in this case. While the State argues and the trial court agreed that the protective order was only going to be used for impeachment purposes, it was introduced into evidence. By laying a foundation and introducing the statements made by the victim in the protective order into evidence, the statements are not hearsay, and thus, are admissible not only to impeach the witness, but as substantive proof of the offense. See La. C.E. art. 801(D)(1)(a); State v. Thompson, 2022-0314 (La.App. 1 Cir. 1/10/23), 2023 WL 142384, *6-7; State v. Harper, 2007-0299 (La.App. 1 Cir. 9/5/07), 970 So.2d 592, 601, writ denied, 2007-1921 (La. 2/15/08), 976 So.2d 173. Clearly, the State violated La. C.Cr.P. art. 729.3, which requires the State to notify the defendant of the existence of any additional evidence it intends to use at trial. Once the protective order came into the State's possession, the State was required to notify the defendant. While I find that the State was in error in not disclosing the protective order and the trial court erred in admitting it into evidence, the evidence obtained at the hospital was enough to prove the defendant guilty beyond a reasonable doubt.