Opinion
NO. 2014 KA 1194
03-06-2015
STATE OF LOUISIANA v. COURTNEY WILLIAMS
HILLAR C. MOORE III DISTRICT ATTORNEY ALLISON MILLER RUTZEN ASSISTANT DISTRICT ATTORNEY BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA POWELL MILLER NEW ORLEANS, LA ATTORNEY FOR DEFENDANT-APPELLANT COURTNEY WILLIAMS
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. 12-11-0183
Honorable Richard D. Anderson, Judge
HILLAR C. MOORE III
DISTRICT ATTORNEY
ALLISON MILLER RUTZEN
ASSISTANT DISTRICT ATTORNEY
BATON ROUGE, LA
ATTORNEYS FOR
STATE OF LOUISIANA
POWELL MILLER
NEW ORLEANS, LA
ATTORNEY FOR
DEFENDANT-APPELLANT
COURTNEY WILLIAMS
BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ. PETTIGREW, J.
The defendant, Courtney Williams, was charged by grand jury indictment with three counts of first degree murder, violations of La. R.S. 14:30. The defendant entered a plea of not guilty on all counts. Pursuant to La. Code Evid. art. 404(B), the State filed notice of intent to use evidence of other crimes committed before the instant offenses, and subsequently filed notice of intent to introduce evidence of solicitation for murder of a witness to the instant offenses. The trial court ruled in the State's favor after each separate hearing, finding all of the other crimes evidence admissible. After a trial by jury, the defendant was found guilty as charged on each count. The trial court denied the defendant's motion for postverdict judgment of acquittal and motion for new trial. On all three counts, the defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, to be served consecutively. The defendant now appeals, assigning error to the admission of the other crimes evidence. For the following reasons, we affirm the convictions and sentences.
The State did not seek the death penalty, conceding the defendant's status of mild retardation.
Among other unrelated writ applications, after the second hearing and ruling in favor of the State regarding the introduction of other crimes evidence, the defendant filed an emergency writ application in this court seeking review of the trial court's determination. The application was denied. State v. Williams, 2014-0232 (La. App. 1 Cir. 2/21/14) (unpublished).
STATEMENT OF FACTS
On September 10, 2011, at approximately 3:18 p.m., the police began receiving emergency calls reporting shootings at 1056 Progress Street in Baton Rouge. Baton Rouge City Police Department (BRPD) uniform patrol officers immediately responded to the scene and began securing the area. BRPD Detective Christopher Guilbeau responded to the scene shortly after it was secured and summoned other detectives to the scene due to the number of victims and potential witnesses in the area. Detective Guilbeau noted that the front door of the house faced Progress Street and the medium-sized living room was the front-door entry room. One of the deceased shooting victims, Brittany Lee, was first located on the living room couch, but was moved by EMS to the living room floor to attempt treatment. A draped doorway, located directly to the north of the living room, led to a bedroom where another deceased victim, Josephine Lathers, was lying on a queen-sized bed. A third deceased female, Clarissa Cobbing (with whom the defendant had a relationship and claimed to have fathered a child), was lying on the floor in the same bedroom. Eighteen-year-old Brittany suffered one intermediate-range gunshot wound to the head. Josephine, seventy-six years old at the time, suffered two gunshot wounds to the chest and a third gunshot wound to one of her extremities. Nineteen-year-old Clarissa suffered multiple gunshot wounds to the trunk and extremities, including a shot that perforated the right side of her heart. At the Baton Rouge General Hospital emergency room, the police interviewed Eric Douzier (Josephine's grandson's friend), a fourth victim who was shot while at the residence on Progress Street, but survived. Thereafter, the defendant was developed as the sole suspect in the shootings.
During a recorded interview given at the hospital on the day of the incident, Eric referred to the defendant as "Courtney" and stated that Clarissa was the defendant's "old lady." According to Eric, he was on the front porch of the house with his cousin Shemika Lee and her best friend Selena Paul when he first saw the defendant outside of the house that day. Eric stated that the defendant ran from the back yard wearing a black muscle shirt and black jeans, was armed with a black semiautomatic gun, and told him, Shemika, and Selena to be quiet. The defendant then entered the house, and they heard gunfire. Eric told Shemika and Selena to run next door to get help. After the defendant exited the house, he made eye contact with Eric and shot him in the thigh, as Eric tried to run away. Eric immediately fell to the ground after being shot, and the defendant fled behind the house. Eric also identified the defendant as the shooter from a photographic lineup. Eric did not personally know the defendant, but had seen him before that day and was familiar with him and past incidents involving Clarissa, whom he referred to as his friend. Eric testified at the trial consistent with his pretrial interview.
Daniel Lee (Josephine's grandson and Brittany and Shemika's brother) was also present at the time of the murders and was interviewed by the police that day. In a recorded interview, Daniel indicated that the defendant came in the house armed with a gun and warned that he was going to kill everyone in the house. Daniel stated that he heard several gunshots as he ran to a back room. Daniel added that he ran immediately upon hearing the defendant's familiar voice and did not actually see the defendant's face. Daniel indicated he knew the defendant as he had been there on other occasions visiting Clarissa and was aware of previous incidents of threats and violence by the defendant. Daniel identified the defendant in a photographic lineup. During the trial, Daniel testified that he saw the defendant approaching through the backyard when he peeked outside before the shooting started. Daniel stated that he hid in a closet during the shootings and did not come out until the defendant left the house.
Shemika and Selena were seventeen years old when they testified at the trial. According to their testimony, Selena was styling Shemika's hair on the front porch when the defendant arrived. Shemika testified that while she had her head down, she heard a loud noise. She then saw the defendant, armed with a gun, as he had jumped on the front porch and asked for Clarissa. Selena similarly testified that the defendant, armed with a gun, approached them while they were on the porch, began asking for Clarissa, and told them to be quiet. She stated that she, Selena, and Eric watched as the defendant entered the house. Shemika and Selena saw the defendant trying to awaken Brittany and heard the defendant asking Brittany where Clarissa was, just before shooting Brittany. Both Shemika and Selena specifically indicated that they saw the defendant shoot Brittany just before they ran from the house. Shemika and Selena heard several more gunshots as they ran. Shemika knew the defendant well from the neighborhood and because of his relationship with Clarissa. Shemika indicated that she had been around him "a lot." Selena also knew the defendant before the shooting and specifically indicated that she knew him by his first name and would "see him around." Shemika and Selena identified the defendant in court as the shooter.
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant argues that the other crimes evidence presented during the trial was unduly prejudicial and that the trial court erred in finding the evidence admissible. The defendant notes that the State was allowed to introduce evidence of seven other unadjudicated crimes, including burglary, battery, two incidents of kidnapping, attempted aggravated arson, unauthorized use of a motor vehicle, and solicitation of murder. The defendant argues that the introduction of the evidence unfairly prejudiced the jury against him and clouded their decision on the instant offenses. The defendant notes that even if evidence is found to be independently relevant, it may be excluded if its probative. value is substantially outweighed by the dangers of unfair prejudice. The defendant further notes that the review of improperly admitted evidence is subject to a harmless error analysis. The defendant notes that he surrendered himself to the police and contends that the police failed to investigate his alibi. He further notes that the evidence was testimonial and that there was no physical evidence to corroborate any of the testimony. The defendant argues that the jury was overwhelmed with information of the alleged other crimes, which led them to assume that he was a bad person and capable of murdering three innocent women. The defendant concludes that he did not receive a fair trial In this case.
The record indicates arrests and/or charges stemming from other acts challenged herein, but is incomplete as to their disposition.
As noted, before the trial, the State filed notices of intent to use evidence of other crimes pursuant to La. Code Evid. art. 404(B) and State v. Prieur, 277 So.2d 126 (La. 1973). 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. State v. Hills, 99-1750, p. 5 (La. 5/16/00), 761 So.2d 516, 520. Under La. Code Evid. art. 404(B)(1), other crimes evidence "is not admissible to prove the character of a person in order to show that he acted in conformity therewith." The evidence may/however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. La. Code Evid. art. 404(B)(1). In the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of the victim's prior threats against the accused or the accused's state of mind as to the victim's dangerous character is not admissible. La. Code Evid. art. 404(B)(2).
At least one of the enumerated purposes in Article 404(B) must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible under Article 404. State v. Day, 2012-1749, pp. 3-4 (La. App. 1 Cir. 6/7/13), 119 So.3d 810, 813. Thus, to be admissible under Article 404(B), evidence of the defendant's prior bad acts must meet two criteria: (1) it must be relevant to some issue other than the defendants character, and (2) its probative value must be greater than its potential to unfairly prejudice the jury. See La. Code Evid. arts. 403 and 404(B). The underlying policy is not to prevent prejudice (since evidence of other crimes is always prejudicial), but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. State v. Humphrey, 412 So.2d 507, 520 (La. 1982) (on rehearing).
The procedure to be used when the. State intends to offer evidence of other criminal offenses was formerly controlled by Prieur. Under Prieur, the State was required to prove by clear and convincing evidence that the defendant committed the other crimes. Prieur, 277 So.2d at 129. However, 1994 La. Acts 3d Ex. Sess., No. 51 added La. Code Evid. art. 1104 and amended La. Code Evid. art 404(B). Article 1104 provides that the burden of proof in pretrial Prieur hearings "shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404." The burden of proof required by Federal Rules of Evidence Article IV, Rule 404, is satisfied upon a showing of sufficient evidence to support a finding by the jury that the defendant committed the other crime, wrong, or act. See Huddleston v. U.S., 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988)."
The Louisiana Supreme Court has yet to address the issue of the burden of proof required for the admission of other crimes evidence in Sight of the repeal of La. Code Evid. art. 1103 and the addition of Article 1104, However, numerous Louisiana appellate courts, including this court, have held that burden of proof to now be less than '"clear and convincing." State v. Millien, 2002-1006, p. 11 (La. App. 1 Cir. 2/14/03), 845 So.2d 506, 514; See also State v. Williams, 99-2576, p. 7 (La. App. 1 Cir. 9/22/00), 769 So.2d 730, 734 n.4. A trial court's ruling on the admissibilrty of evidence of other crimes will not be overturned absent an abuse of discretion Day, 2012-1749 at 4, 119 So.3d at 813.
At the first pretrial Prieur hearing in this case, the following facts were presented. On August 23, 2011, the defendant arrived at 1520 Utah Street, where Clarissa lived with her mother and other family membes. Oy'Quisha Cobbing, Clarissa's cousin, was with Clarissa in the living room that day when the. defendant entered the residence, punched the victim in the face, and took her phone before exiting the house. After the defendant left, Clarissa used Dy'Quisha's phone to call 911, During the 911 call, Clarissa stated, "this boy ranned up in the house, and took my cell phone and punched me in my face." Dy'Quisha was asked for the perpetrator's identity and stated that it was the defendant.
On September 1, 2011, Lakeisha Sutton, Josephine's granddaughter and Clarissa's friend, was babysitting Clarissa's two-year old daughter T.C. while at her grandmother's residence at 1056 Progress Street (the scene of the instant offenses). During the early morning hours, the defendant came to the residence and told Lakeisha that Clarissa told him to pick up the child. Lakeisha brought T.C. out to the front porch and told the defendant she would go retrieve the child's clothing. Lakeisha testified that the defendant and Clarissa had broken up weeks before that day. When Lakeisha reentered the home, she called Clarissa to verify that the defendant had permission to pick up T.C. Clarissa informed Lakeisha that the defendant did not have such permission. When Lakeisha went back to the front porch, the defendant had already taken T.C. Lakeisha immediately called Clarissa again and told her that the defendant had taken the child. Clarissa called 911 (at 2:23 a.m.) and reported that the defendant took her child and was travelling in a stolen vehicle. Lakeisha further testified that between thirtyarid fifty minutes after taking the child, the defendant dropped the toddler off, unharmed, a few houses down the street from Josephine's residence.
Along with Clarissa, other individuals participated in the 2:23 a.m. 911 call, including an individual who identified himself as the defendant's father and indicated that the defendant stole a vehicle that belonged to his mother (the defendant's grandmother) and took the child.
According to Lakeisha, the defendant later began calling Clarissa and warned that he was going to set the Progress Street residence on fire, specifically indicating that he had poured gasoline around the house and. that she needed to leave if she did not want to die as a result of a fire. Lakeisha confirmed that she did not actually hear the conversation between the defendant and Clarissa, but noted that just before calling 911, Clarissa told her that the defendant threatened to set the house on fire. Clarissa called 911 for the third time that morning at 4:22 a.m., reporting that the defendant had poured gasoline around the house and told her that he was going to set the house on fire. Clarissa also stated during the 911 call that she had a newborn baby in the home (T.C.'s younger sibling) and the smell of the gas was getting stronger. At approximately 4:45 a.m., the fire department responded.
Dennis Jenkins of the Baton Rouge Fire Department testified during the trial, but was not called to testify at the pretrial hearing. During his trial testimony, he confirmed Clarissa's complaint that gasoline had been poured around the house. Jenkins went to the house and found accelerant on the south side of the house, going from west to east, including a large pour pattern on the front porch, going toward the rear of the house. A gasoline container was located near the house.
On September 5, 2011, around 3:00 or 4:00 in the afternoon, Clarissa dropped her daughter T.C. off at 3010 Lorraine Street, where her cousin Donnell Cobbing and his girlfriend were having a birthday party for their son. Shortly after T.C. was dropped off, the defendant came to the residence and asked Donnell several questions about the child being dropped off at the party. Later that night while T.C. was in the bathroom being bathed, the defendant returned and asked to take the child. Donnell testified that he told the defendant he could not take T.C. but moments later realized that she was gone. Donnell assumed the defendant had taken T.C. and called 911 to report it. He inexplicably identified himself as Tony Grim in making the call. He provided the defendant's name and physical description as the person who took the child.
After Clarissa was contacted, she came to the residence and called 911. Talisha Cobbing, Clarissa's cousin, testified that she went with Clarissa to the police station and that she, Clarissa's friend DaQuincia, and their cousin Tyrell tried to help Clarissa get the child back from the defendant. The defendant ultimately called Clarissa and agreed to meet her to return T.C. at Eìm Grove Apartments. When they initially went to the apartment complex to meet the defendant, they passed it without stopping because it was dark and they were apprehensive. (They did not see the defendant or the child when they passed the apartment complex without stopping.) The defendant called again, and they went back to the complex, Talisha observed as the defendant stood near the gates and refused to pass T.C. to Clarissa, spherically insisting that she get out of the car, as he held T.C. with one arm while holding his other arm behind his back. Talisha testified that she was concerned and offered to get out of the car to get the child, but the defendant said he would not return the child unless Clarissa exited the vehicle. As Clarissa was afraid to get out of the vehicle, they left again. Though she was not present at the time, Talisha testified that the defendant returned T.C. to Clarissa the next morning.
All of the 911 calls were recorded and transcribed. Based on the above evidence and the testimony of BRPD Detective John Dauthîer to establish probable cause for the instant murders, the trial court found the State met its burden of proving the other crimes evidence and ruled it admissible on the bases contended in the State's motion, including identity, motive, opportunity, intent, preparation, plan knowledge, and absence of mistake or accident
During the trial, the State also admitted the defendant's recorded and transcribed interview after the instant offenses wherein he recalled the September 1 incident, but claimed that on that day, Clarissa gave him permission to pick up T.C., whom he referred to as his stepchild (the defendant indicated that T.C.'s younger sibling was his biological child). The defendant denied threatening to burn the house down, and stated that he was arrested for arson based on false claims Trie defendant admitted to taking the child from the party on Lorraine Street without Clarissa's knowledge or consent. The defendant stated that he was in Port Allen at the time of the instant shootings, and specifically denied being on Progress Street or in Baton Rouge at all that day.
At the second Prieur hearing in this ease, the following facts were presented. On February 11, 2014, Detective Bill Thomas of the East Baton Rouge Parish Sheriffs Office reviewed a February 8, 2014 recorded inmate telephone call in the facility where the defendant was being housed while awaiting trial on the instant offenses. About five minutes into the call, the inmate (Timothy Prater) asked the unidentified female who he called, to pass the telephone to an individual referred to interchangeably as "B.K." and "Bryan Keith." Prater in turn passed the phone to another inmate, who identified himself as "Psycho" when he began speaking. Psycho told B.K. in part, "This Psycho, you supposed to took care of something for me [sic]." Psycho deflected when B.K. inquired as to whether he (Psycho) was in fact Courtney, and then B.K. assured him that he would take care of it, specifically stating in part. "I know he stay at ... I got him;." Psycho then reminded B.K. that his that was in two weeks. B.K. also stated in part, "I been seeing Eric walking up the street at night, I be having my little thing on me [sic]." Psycho reminded B.K. that he could not talk about it any further on the telephone. Psycho and B.K. exchanged adorations before Psycho gave the telepnone back to inmate Prater, and B.K. gave the non-inmate female back the telephone. Before the call ended, the female complied and called the number out when inmate. Prater requested B.K.'s phone number, as presumptively requested by Psycho in the background.
In investigating the recording, Detective Thomas and Captain Stephen Cadarette (a criminal investigations officer at the parish prison) determined that Psycho or Courtney was the defendant in the instant case. Detective Thomas further identified "B.K." as Bryan Keith Price, and identified tne individual referred to as "Eric" as Eric Douzier, the only shooting victim who survived and a critical witness in the defendant's trial. The police conducted recorded interviews of Prater and Price After being advised of their Miranda rights, Prater confirmed Psycho's identity as the defendant. Price further admitted that the defendant told him he would pay him to kill Eric Douzier, but: stated that he only pretended to agree so that the defendant would leave him aione.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Price testified at the hearing and confirmed that he participated in the recorded telephone call in question. Price reluctantly testified that trie defendant wanted him to kill someone stating, "He said' he was going to pay me or something, but I ain't never do it ... to go kill ... I guess to go kill him, but I don't know." When asked who the defendant wanted him to kill, Price testified, "Eric. Whoever Eric is." Price then admitted that he knew Eric and provided a description of his hairstyle and the name of the street of his residence. According to Price, before he defendant asked Price to kill Eric, Price and the defendant "got cool" while in jail together, and the defendant helped him write letters to his girlfriend, The defendant told him about his upcoming trial, sale he did not commit the murders (though he initially stated that the defedant said he killed his girlfriend), and told him that Eric was going to testify against him.
On cross-examination, Price testified that the defendant did not specifically use the words "to kill" when indicating that he would pay Price in relation to Eric. On redirect, he added, "I look at it like this, He say he going to pay me. Shit. I guess to go taik to him or go kill him. So I'm like, shit, I'm just thinking in my head I guess he want me to go kill him or something." Price repeatedly indicated that he never actually planned to kill anyone. He stated that he cooperated and gave a statement to the police because they told him they had the recording ana threatened to Sock him up if he did not tell them what happened. He also stated that the defendant never paid him any money. Prater also testified and ultimately admitted to giving the defendant the telephone so he could talk to Price during the recording in question. He denied any knowledge of the substance of their conversation.
The defendant was charged with solicition for murder on February 13, 2014. The trial court overruled the defendant's objection to the other crimes evidence and ruled that the evidence presented at the hearing would be admissble during the trial.
Before other crimes evidence can be admitted as proof of intent, three prerequisites must be satisfied: (1) the prior acts must be similar; (2) there must be a real and genuine contested issue of intent at trial; and (3) the probative value of the evidence must outweigh its prejudicial effect See La. Code Evid arts. 403 and 404(B), State v. Kahey 436 So.2d 475. 488 (La. 1983) Further, Louisiana jurisprudence allows the use of other crimes evidence to snow modus operandi (i.e., system) as it bears on the issue of identity, particularly when the modus operand: employed by the Defendant in both the charged and the uncharged offenses is so peculiarly distinctive one must logically say they are the work of the same person. Hills, 99-1750 at 5-6, 761 So.2d at 520-521; see also State v. Code, 627 So.2d 1373, 1381 (La. 1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994). Motive evidence reveais the state of mind or emotion that influenced the defendant to desire the result of the charged crime. To have independent relevance, the motive established by the other crimes evidence must be more than a general one, such as gaining wealth, which could be the underlying basis for almost any crime; it must be a motive facially peculiar to the victim and the charged crime. State v. McArthur, 97-2918, p. 3 (La. 10/20/98), 719 So.2d 1037, 1041. The plan exception can refer to a plan conceived by the defendant in which the commission of the uncharged crime is a means by which tne defendant prepares for the commission of another crime (such as stealing a key in order to rob a safe), or it may refer to a pattern of crime, envisioned by defendant as a coherent whole, in which he achieves an ultimate goal through a series of related crimes (such as acquiring a title by killing everyone with a superior claim). McArthur, 97-2918 at 3, 719 So.2d at 1042.
McArthur is superseded by La. Code Evid. art. 412.2 only with respect to other crimes evidence of sexually assaultive behavior. See State v. Wright, 2011-0141, pp. 11-13 (La. 12/611), 79 So.3d 309, 316-317.
Under Article 404(B)(1), other crimes evidence is also admissible "when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." For other crime evidence to be admissible under the integral-act exception (formerly known as res gestae), the evidence must bear such a close relationship with the charged crime that the indictment or Information as to the charged crime can fairly be said to have given notice of the other crime evidence as well. State v. Odenbaugh, 2010-0268, p. 53 (La. 12/6/11), 82 So.3d 215, 251, cert. denied, ___ U.S. ___ 133 S.Ct. 410, 184 L.Ed.2a 51 (2012) (citing State v. Schwartz, 354 So.2d 1332, 1334 (La. 1978)). Thus, other crimes evidence forms part of the res gestae when the evidence is related and intertwined with the charged offense to such an extent that the State could not have accurately presented its case without reference to it. In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of tne crime on trial by proving its immediate context of happenings near in time and place. State v. Brewington, 601 So.2d 656, 657 (La. 1992) (per curiam). Integral act evidence in Louisiana incorporates a rule of narrative completeness without which the State's case would lose its "narrative momentum and cohesìveness, 'with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.'" State v. Colomb, 98-2813, p. 14 (La. 10/1/99), 747 So.2d 1074, 1076 (per curiam) (quoting Old Chief v. U.S., 519 U.S. 172, 187, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997)).
Evidence of threats or attempts on the lives of witnesses is a well-recognized exception to the general rule that evidence of other crimes is not admissible. Before such attempts are admissible, however, there must be some evidence to connect the accused therewith or to show that the attempt by a third person was made with the authorization of the accused. Such evidence has substantial probative value in a proceeding designed to test the guilt or innocence of an accused. For this reason, the question of whether the evidence should be admitted has been almost universally answered in the affirmative. The trial court must decide outside the jury's presence and in advance of the introduction of the evidence whether: (1) the evidence fits the, class of evidence constituting such admissions by conduct; (2) there is substantial evidence that the defendant committed the other crimes; and (3) the probative value of such other crimes evidence will outweigh its prejudicial effect. If the other crimes evidence fans to pass any of these three tests it must be excluded. State v. Burnette, 353 So.2d 989, 991-992 (La. 1977).
Herein, the defendant's participation in the recorded inmate telephone call constitutes admission by conduct. There is substantial evidence that the defendant committed the offense, including the recording of the phone call and Price's testimony. The probative value of the evidence outweighs its prejudicial effect as the defendant was attempting to prevent an eyewitness from testifying at trial, which certainly gives rise to an inference that the defendant acted from an awareness or consciousness of his guilt. Thus, we find that the three prong test was met in tne instant case, and the evidence of the defendant's attempt on the life of Eric Douzier was properly admitted in this case.
Further, as to the prior incident consisting of the defendant's past threats and physical actions, we find that the State has met its burden of proof under both standards; that is, the evidence supports proof of the prior acts irrespective of whether one applies the "preponderance of the evidence" or the "clear and convincing" standard. We further find that the evidence regarding the defendant's past threats and physical actions was independently relevant to show the volatile nature and hostility the defendant had toward Clarissa. The evidence was admissible to show system or modus operand! because the defendant's identity as the shooter was at issue. State v. Ester, 436 So.2d 543, 546 (La. 1983) ("the system exception applies if identity of the defendant as the perpetrator is a crucial issue"). The defendant's propensity to make serious threats, especially against Clarissa, and the acts that he carried out were relevant to show motive, intent, pattern, and plan. When the probative value of the other crimes evidence is balanced against its prejudicial effect, we find the evidence was properly admitted because it was not unduly or unfairly prejudicial.
Additionally, we find that the evidence at issue was also necessary, to give the jury a complete picture of the events occurring during the days leading up and giving rise to the instant offenses. The evidence forms an inseparable link in the continuous chain of events. It was used to complete the story of the crimes on trial and allow the State to present its case accurately. The evidence at issue clearly constitutes an integral part of the transaction and, therefore, was properly admitted. La. Code Evid. art. 404(B)(1). To have disallowed evidence of incidents in the days leading to the shooting would have deprived the State's case of its narrative momentum and cohesiveness. See State v. Taylor, 2001-1638, pp. 11-13 (La. 1/14/03), 838 So.2d 729, 742-743, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 LEd.2d 886 (2004) (the defendant objected to other crimes evidence involving different victims in different states, over a seven-day span and the Louisiana Supreme Court found the evidence was properly admitted under the doctrine of res gestae).
We note that the Louisiana Supreme Court has left open the question of whether evidence presented under the authority of Article 404(B)(1) must pass the balancing test of Article 403. See Colomn 98-2813 at 4, 747 So.2d at 1076. At any rate, as previously stated, we find that the prejudicial affect the defendant from the challenged evidence did not rise to the level of undue or unfair prejudice when balanced against the probative value of the evidence Although all evidence of other crimes is prejudicial, the other crimes evidence was necessary to give the jury a complete picture of the nature of the relationship between the defendant and Clans--a and the events that gave rise to the instant offenses.
Previous jurisprudence held that when evidence of other crimes is admissible as res gestae, the probative value of the evidence need not be balanced against its prejudicial effect. State v. Brown, 428 So.2d 438, 442 (La. 1983) (overruled on other grounds by State v. Johnson, 94-1379, pp. 15-17 (La. 11/27/95), 664 So.2d 94, 101-102).
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Moreover, even if we were to determine that the other crimes evidence was improperly admitted in this case, that would not end our inquiry since the erroneous admission of other crimes evidence is a trial error subject to harmless error analysis. The standard applied in making this determination is whether the verdict rendered was surely unattributable to the error. Day, 2012-1749 at 8, 119 So.3d at 816, Herein, before deliberations, the trial court instructed the jury that evidence of the defendant's involvement in other offenses should only be considered for limited purposes and should not be the bases for finding the defendant guilty of the instant offenses, Three eyewitnesses who knew the defendant before the snooting identified him as the shooter after having eye contact with him. Specifically, Shemika Lee, Selena Paul, and Eric Douzier identified the defendant as the person who approached the house armed with a gun asking for the victim, and entered the home just before the gunshots. Two of the witnesses, Shemika Lee and Selena Paul, witnessed trie defendant shooting Brittany Lee. Eric Douzier testified that after he heard the gunshots, the defendant exited the home and shot him before fleeing.
Based on our review of the record, we find that the guilty verdict returned in the instant case surely was unattributable to any error in the admission of the extraneous other crimes evidence. Thus, if the admission of the evidence was erroneous, the error was harmless beyond a reasonable doubt. See La. Code Crim. P. art. 921. We find that the trial court did not abuse its discretion in admitting the other crimes evidence at issue, and the sole assignment of error is witnout merit. CONVICTIONS AND SENTENCES AFFIRMED.