Opinion
2018 KA 1396
04-12-2019
STATE OF LOUISIANA v. LERON MELECHI CALLOWAY
Prentice L. White Louisiana Appellate Project Baton Rouge, Louisiana ATTORNEY FOR APPELLANT DEFENDANT—Leron Melechi Calloway Joseph L. Waitz, Jr. District Attorney Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana ATTORNEYS FOR APPELLEE The State of Louisiana
Appealed from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne • State of Louisiana
Docket Number 672429 • Division D The Honorable David w. Arceneaux, Judge Presiding Prentice L. White
Louisiana Appellate Project
Baton Rouge, Louisiana ATTORNEY FOR APPELLANT
DEFENDANT—Leron Melechi
Calloway Joseph L. Waitz, Jr.
District Attorney Ellen Daigle Doskey
Assistant District Attorney
Houma, Louisiana ATTORNEYS FOR APPELLEE
The State of Louisiana BEFORE: WELCH, CHUTZ, AND LANIER, JJ. WELCH, J.
The grand jury of Terrebonne Parish indicted the defendant, Leron Melechi Calloway, with first degree murder, a violation of La. R.S. 14:30. The defendant pled not guilty. After a trial by jury, the jury found the defendant guilty as charged. The trial court denied the defendant's motion for a new trial. After a hearing, the trial court sentenced the defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, assigning error to the denial of his motion for new trial based on the admission of other crimes evidence, the denial of his motion for a change of venue, and the sufficiency of the evidence. For the following reasons, we reverse the defendant's conviction, vacate his sentence, and remand for a new trial.
The defendant's date of birth is July 30, 1996, and the offense was committed on or about November 24, 2013. Thus, the defendant was seventeen years old at the time of the offense. In accordance with La. C.Cr.P. art. 878.1, prior to sentencing, the trial court held a hearing to consider mitigating and aggravating factors before deciding to impose life imprisonment without parole eligibility.
S TATEMENT OF F ACTS
On November 24, 2013, Connely Duplantis—the sixty-six-year-old victim—and his wife Yvonne Duplantis were visiting his parents at 222 Carolyn Avenue in Houma for the Thanksgiving holidays and were loading their vehicle to return to their home. While standing in the threshold of the door around 1:00 p.m., Mrs. Duplantis saw an unknown individual running up behind the victim. She opened the door and observed that the unknown individual was a young, black male with a small to medium build, wearing a dark hooded jacket. Mrs. Duplantis saw the unknown individual hold his right hand up to the victim's side, where the victim had a white iPhone 5 clipped to his belt. Immediately afterward, the unknown individual raised a black gun with his left hand and shot the victim. As the victim stumbled, Mrs. Duplantis began screaming and went inside to tell the victim's parents to remain inside the residence.
Mrs. Duplantis did not get a full view of the shooter's face because the hood of his jacket partially covered his face. While Mrs. Duplantis was inside on her cell phone with the 911 operator, the victim's mother looked outside and observed that the shooter was no longer in view. When Mrs. Duplantis went outside, Houma Police Department (HPD) officers had responded and were approaching the residence. An ambulance arrived shortly thereafter. The victim eventually succumbed to his shooting injuries.
The victim died of a single distant range gunshot wound to the right upper shoulder area.
At trial, Randy Wallace, a co-defendant, testified that he was present when the defendant approached and shot the victim. Wallace indicated that on the day in question, prior to the shooting, the defendant told him that he needed money and wanted to rob someone. Wallace further indicated that he attempted to discourage the defendant from doing so. According to Wallace, as he and the defendant were walking down Carolyn Avenue, the defendant spotted an older white male (the victim) in a driveway, stated that all white people have money, and approached the victim and asked for money. Wallace watched as the defendant reached into the victim's pockets while under the carport. Wallace further saw the defendant holding what he believed to be a black and chrome pistol. Wallace fled as he heard the gunshot.
S UFFICIENCY OF THE E VIDENCE
In assignment of error number three, the defendant argues that his conviction stemmed from the State's ability to weave together pieces of circumstantial evidence to show that he was a person of bad character who deserved to be convicted of first degree murder of a beloved citizen of the community. The defendant contends that there was no physical evidence linking him to the shooting. He further contends that the video recording of the two men attempting to sell the victim's iPhone was not conclusive. The defendant notes that Wallace is a member of a rival gang (Rider Gang) known to have been at odds with a gang the defendant was allegedly a member of (Trap Boys Mafia Gang). The defendant avers that Wallace's testimony was unconvincing, contending that while Wallace claimed to be afraid of the defendant, Wallace did not appear to be afraid in the video. The defendant argues that given the weaknesses embedded in the State's case and the insufficient evidence presented at the trial, the trial court committed reversible error in denying his motion for a new trial.
When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So. 2d 731, 734 (La. 1992). The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S. Ct. 970, 972, 67 L. Ed. 2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. See La. C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654, 660; Hearold, 603 So. 2d at 734. When the entirety of the evidence, including inadmissible evidence (which was erroneously admitted) is insufficient to support the conviction, the accused must be discharged as to that crime and any discussion by the court of the trial error issues as to that crime would be pure dicta, since those issues are moot. Hearold, 603 So. 2d at 734.
On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Hearold, 603 So. 2d at 734.
In conducting the review under Jackson, we also must be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So. 2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So. 2d 1157, 2000-0895 (La. 11/17/00), 773 So. 2d 732. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Dyson, 2016-1571 (La. App. 1st Cir. 6/2/17), 222 So. 3d 220, 228, writ denied, 2017-1399 (La. 6/15/18), 257 So. 3d 685.
Louisiana Revised Statutes 14:30(A) defines first degree murder, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of armed robbery. "Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Delco, 2006-0504 (La. App. 1st Cir. 9/15/06), 943 So. 2d 1143, 1146, writ denied, 2006-2636 (La. 8/15/07), 961 So. 2d 1160.
Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64(A). Armed robbery is a general intent crime. In general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal. State v. Huey, 2013-1227 (La. App. 1st Cir. 2/18/14), 142 So. 3d 27, 30, writ denied, 2014-0535 (La. 10/3/14), 149 So. 3d 795, cert. denied, ___ U.S. ___, 135 S. Ct. 1507, 191 L. Ed. 2d 443 (2015).
The State bears the burden of proving the elements, along with the burden to prove the identity of the defendant as the perpetrator. When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Draughn, 2005-1825 (La. 1/17/07), 950 So. 2d 583, 593, cert. denied, 552 U.S. 1012, 128 S. Ct. 537, 169 L. Ed. 2d 377 (2007). Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139 (La. 11/29/06), 943 So. 2d 362, 369, cert. denied, 552 U.S. 905, 128 S. Ct. 239, 169 L. Ed. 2d 179 (2007). It is the fact finder who weighs the respective credibility of the witnesses, and this court will generally not second-guess those determinations. See State v. Hughes, 2005-0992 (La. 11/29/06), 943 So. 2d 1047, 1051.
Officer Kelly Champagne of the HPD was on patrol when he received the initial dispatch and was one of the other officers to arrive on the scene. Officer Champagne was approached by a bystander who informed him that a black male abandoned an object as he ran through the yard across from 222 Carolyn Avenue. Officer Champagne searched the designated area and discovered a black Nike flip-flop type sandal located near a fence. Officer Champagne alerted the detectives on the scene who recovered the sandal.
Detective Keith Craft of the HPD observed footage taken at the time of the offense by a camera located at a residence on Memory Lane and observed two black males running from Melrose Street along a fenced area, towards Arlington Avenue. The area between Memory Lane and Carolyn Avenue is known as Mechanicville. However, the footage was recorded from a distant range and Detective Craft was unable to identify either of the individuals. Detective Craft subsequently sought additional footage of the area at the time of the offense and observed surveillance footage from two stores, Los Primos and Boost Mobile, adjacently located within close proximity of the Mechanicville area. The detective observed footage of two black males, including one individual who he was able to identify as the defendant, and another individual who he was unable to identify. The individuals appeared to be walking from Los Primos to Boost Mobile. The interior Boost Mobile footage shows the same two individuals inside the store where one of them presents a Boost Mobile employee with what appeared to be a white iPhone. After a brief verbal exchange, the Boost Mobile employee returned the cell phone to the individual.
Detective Craft attempted but was unable to extract the video footage that he observed.
Detective Craft testified that he became familiar with the defendant while conducting a prior robbery investigation with Officer Robert Lottinger, of the HPD. Based on his investigation, he learned that the defendant was a member of a gang called Trap Boy Mafia. While the Los Primos store surveillance footage was successfully extracted, the detectives used a cell phone to record the un-extracted Boost Mobile footage.
In addition to Wallace's admissions, his mother provided a positive identification of him in the video surveillance footage to the police.
Upon arriving on the scene, Sergeant Nicole Voisin, of the HPD learned that the victim's white iPhone 5 was taken during the incident and obtained the corresponding number for the phone. Sergeant Voisin contacted AT&T to obtain an emergency ping for the cell phone and learned that the cell phone's data had been used after the shooting. Sergeant Voisin was further able to locate the defendant's Facebook page posts, one of which consisted of the following posting, "iPhone 5c for sell [sic] AT&T," posted on the day of the shooting. Another post consisted of a photograph of the defendant with the word "KILLA" above the photograph. Two days after the shooting, on November 26, 2013, HPD officers made contact with the defendant and his companion, later identified as Derrick Hanzy, who were leaving the Boost Mobile phone store on Grand Caillou Road. The defendant took flight on foot; Hanzy, however, was detained at that time. Sergeant Voisin collected a size 7, black Allstar Converse shoe across from the store, where the defendant fled.
Julia Kirk, a forensic analyst at the Louisiana State Police Crime Laboratory and expert in forensic DNA analysis tested the items sent to the lab in this case and compared them to reference samples submitted for the defendant, Randy Wallace, and the victim. Kirk testified that the major profile from the black Converse shoe was consistent with the DNA of the reference sample from the defendant.
Wallace, a member of the Rider Gang derived from the Village East neighborhood, testified that he knows the defendant "[f]rom the streets" and as a member of a gang called Trap Boy Mafia, which originated from the Memory Lane territory in Mechanicville. Wallace stated that he initially lied to the police after his arrest for the instant offense, when he claimed to have no knowledge of the shooting. Wallace testified that he was afraid that the defendant and the Trap Boy Mafia Gang would hate him if he told the truth. He noted that while in jail after their arrest for the shooting, the defendant threatened him by telling him that if he testified, he would have to deal with "his Trap Boy crew[.]" Wallace testified that the defendant was wearing jeans and a black hooded pull-over, and may have been wearing black slippers with a strap. Wallace claimed that on the day in question, he did not know that the defendant was armed until he pulled the gun out. Wallace confirmed that he saw part of the gun when the defendant pulled it out. When asked if he saw the defendant shoot the victim, Wallace responded, "Yes, sir." Wallace further admitted that he and the defendant changed clothes after the shooting and went to Boost Mobile in an attempt to sell the victim's white iPhone. Wallace positively identified himself and the defendant in the surveillance footage.
Wallace's charge of first degree murder of the victim in this case was pending at the time of the instant trial. Wallace testified in this case under court order, denied being promised anything in exchange for his testimony, and agreed to testify truthfully. Wallace's criminal history includes a past conviction of unauthorized entry of an inhabited dwelling.
Hanzy grew up with the defendant and stated that the defendant was his best friend. Hanzy was also a member of the Trap Boy Mafia Gang. He testified that "trap" means "gettin it off the streets any kind of way." Hanzy further defined the term as hustling to survive. He confirmed that the defendant's nickname was "Killa." Hanzy recalled the defendant asking him to help him sell a white iPhone on the date of the offense and offering him a portion of the proceeds. Hanzy stated that they went to the Boost Mobile store next to Los Primos, but the individual who purchased used phones was not there at the time. When they later returned to the Boost Mobile store, they were approached by the police, and the defendant fled. Hanzy was questioned by the police at that time.
Robert Dennis Lottinger, III, a former HPD officer, investigated two other robberies connected to the defendant that occurred within the two-month period preceding the instant offense. Lottinger, along with victims Ton Duong and Royal Dupre, testified regarding the details of the extraneous robberies. Duong, a sixty-three-year-old deliverer for New China Restaurant, was robbed and attacked while delivering food to an address on King Street in September of 2013. When Duong arrived at the address, no one was home. As Duong returned to his vehicle, he saw two black males walking outside. Duong asked them if they ordered the food, and they responded positively. When Duong attempted to take the cash in exchange for the food, one individual began beating him, as the other took the food. Both individuals ran across the street to an empty lot.
The admissibility of this evidence will be discussed later, in addressing assignment of error number one. As noted above, all evidence, admissible and inadmissible, will be considered by this court in first reviewing the sufficiency of the evidence.
Dupre, a then fifty-four-year-old deliverer for Domino's Pizza located on Grand Cailou Road, was robbed and attacked on October 24, 2013, at 12:30 p.m., when he took an order to King Street. When he arrived, a black male was sitting on the step under a carport. After Dupre grabbed his bag and exited his vehicle, the individual asked for the price. Dupre took the ticket off of his shirt and turned to use his headlights to check the total. As he turned back around, Dupre was hit in the back of his head and in the eye, and tried to protect his face as he was being beaten. Dupre saw the figure of a second perpetrator approaching. The pizzas, his cell phone, and his wallet were taken. Duong and Dupre were showed photographs by the police, but were unable to identify the perpetrators.
Both deliveries were requested for 140 King Street, but the elderly lady who lived at the residence said that she did not request the deliveries. Both victims described the suspects as young black males in their late teens or early twenties. Lottinger traced the phone used to place the orders in both robberies to the defendant. Specifically, Lottinger used a database to locate the subscriber, Shirley Travis. Travis, her boyfriend (Melvin Adams), and the defendant's brother (James Tolbert), admitted that the defendant had possession of the phone.
Brittany Allen, a witness who was questioned by the police regarding the extraneous robberies, testified that the defendant told her that he committed the robberies of the two food deliverers. Allen was renting a home on Memory Lane at the time of the prior offenses and the instant offense and allowed the defendant, who was "like a brother" to her, and others to stay at the home. The defendant, Hanzy, and other members of the Trap Boy Mafia Gang would frequent the residence. In November, Allen saw the defendant on Grand Caillou Road, as he waved to signal her to stop and give him a ride. At the time, the defendant was not wearing any shirt or shoes, and indicated that he was running from the police. The defendant seemed to be in a state of panic and was suffering from chest pains. The defendant told Allen that the police were looking for him regarding two robberies that he had committed, "with Domino's and New China." The defendant further told Allen that he did not use a gun in committing the other robberies, stating that he "just choked them [the victims]."
Daquain Vincent, who was incarcerated and awaiting trial for second degree murder at the time of the instant trial, testified on behalf of the defendant. Vincent testified that he knew the defendant from "the streets." Vincent further testified that he saw the defendant shooting dice at the Daniel Turner Trailer Park at the time of the murder. Thus, Vincent claimed that when he saw on the news that the defendant was a suspect, he did not believe the defendant was involved in the shooting. Vincent identified one of the individuals in the surveillance footage as Wallace, and the other as Gerard Barrow, Vincent's "best friend or brother."
Gregory Scott, a licensed private investigator, performed research on Barrow's Facebook page and downloaded several images of Barrow. Scott further viewed the surveillance footage in evidence. Scott noted that Barrow was photographed wearing a hat that looked like the hat that was being worn by one of the individuals in the footage.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. Huey, 142 So. 3d at 32.
At the outset, we note that a trial court's determination regarding the weight of the evidence under Article 851(B)(1) of the Code of Criminal Procedure is not reviewable on appeal, except for error of law. Dyson, 222 So. 3d at 234; see also La. C.Cr.P. art. 858. Article 851(B)(5) allows the trial court to grant a new trial if the ends of justice would be served although the defendant may not be entitled to a new trial as a matter of strict legal right. The grant or denial of a new trial pursuant to Article 851(B)(5) does not involve questions of fact. In deciding whether the trial court abused its great discretion in granting or denying a new trial under Article 851(B)(5), we keep in mind two precepts. One, in this provision, the trial court is vested with almost unlimited discretion and its decision should not be interfered with unless there has been a palpable abuse of that discretion. Two, this ground for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. State v. Guillory, 2010-1231 (La. 10/8/10), 45 So. 3d 612, 615 (per curiam); see also La. C.Cr.P. art. 851(A). In this case, the defendant has made no showing below or on appeal that the verdict was contrary to the law and evidence. Thus, on that basis, we find no error in the trial court's denial of the motion for new trial.
As previously stated, absent internal contradiction or irreconcilable conflict with the physical evidence, if believed by the fact finder, the testimony of a single witness is sufficient to support a factual conclusion. Marshall, 943 So. 2d at 369. Herein, the jury apparently found Wallace's testimony credible and rejected the alibi testimony presented by Vincent and the hypothesis that the shooting was committed by someone other than the defendant. In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented. See Ordodi, 946 So. 2d at 662. Wallace testified that he was with the defendant just prior to and at the time of the shooting and positively identified the defendant as the shooter. Moreover, the police identified the defendant in surveillance footage captured in the area around the time of the shooting. Further, based on the evidence, the jury could have reasonably concluded that after the shooting, the defendant attempted to sell the iPhone that he forcefully took from the victim while armed with a gun.
An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the trier of fact. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 2014-2295 (La. 1/27/16), ___ So.3d ___, 2016 WL 314814, at *4 (per curiam). Viewing all of the evidence presented in this case in the light most favorable to the State, we conclude that a rational trier of fact could have found that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of first degree murder and the defendant's identity as the perpetrator. Accordingly, the defendant is not entitled to an acquittal based on the insufficiency of the overall evidence, and assignment of error number three is without merit. The defendant is, however, entitled to a reversal of the conviction because of other trial error, as discussed hereafter.
O THER C RIMES E VIDENCE
In assignment of error number one, the defendant notes that he filed a motion in limine to exclude other crimes evidence and various Facebook posts obtained from his social media page. He contends that the evidence should have been excluded due to its prejudicial nature. The defendant also argues that the State failed to adequately and sufficiently prove that he, as opposed to a fellow gang or rival gang member, committed the unrelated robberies that occurred prior to the instant offense. He notes that the victims in each of the two robberies could not identify the person or persons who struck them. The defendant further contends that several other individuals had access to the cell phone used to facilitate the robberies. The defendant argues that the prejudicial effect of the other crimes evidence greatly outweighed the probative value of the extraneous crimes evidence.
Evidence of other crimes, wrongs or acts committed by the defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant. It is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. However, evidence of other crimes, wrongs, or acts may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. See La. C.E. art. 404(B)(1); State v. Tilley, 99-0569 (La. 7/6/00), 767 So. 2d 6, 22, cert. denied, 532 U.S. 959, 121 S. Ct. 1488, 149 L. Ed. 2d 375 (2001); State v. Lockett, 99-0917 (La. App. 1st Cir. 2/18/00), 754 So. 2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So. 2d 115. Even when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. The State bears the burden of proving that the defendant committed the other crimes, wrongs, or acts. State v. Rose, 2006-0402 (La. 2/22/07), 949 So. 2d 1236, 1243.
Other crimes evidence is admissible under the integral act exception (formerly known as res gestae) when the evidence relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. See State v. Brewington, 601 So. 2d 656, 657 (La. 1992) (per curiam). Thus, evidence of other crimes forms part of the res gestae when said crimes are related and intertwined with the charged offense to such an extent that the State could not have accurately presented its case without reference to the other crime. The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime, if a continuous chain of events is evident under the circumstances. Integral act evidence in Louisiana incorporates a rule of narrative completeness without which the State's case would lose its narrative momentum and cohesiveness. State v. Taylor, 2001-1638 (La. 1/14/03), 838 So. 2d 729, 741, cert. denied, 540 U.S. 1103, 124 S. Ct. 1036, 157 L. Ed. 2d 886 (2004).
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. La. C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. 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. La. C.E. art. 403. A trial 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, 2007-0470 (La. App. 1st Cir. 9/14/07), 970 So. 2d 621, 625, writ denied, 2007-2129 (La. 3/14/08), 977 So. 2d 930.
While demonstrative evidence must be identified, it is well settled that this identification can be visual, that is, by testimony at trial that the object exhibited is the one related to the case. In order to introduce demonstrative evidence, threshold legal requirements are satisfied if the foundation laid establishes that it is more probable than not that the object is the one connected to the case. Lack of positive identification or a defect in the chain of custody goes to the weight of the evidence, rather than to its admissibility. Ultimately, a chain of custody or connexity of the physical evidence is a factual matter for determination by the jury. State v. Patton, 2010-1841 (La. App. 1st Cir. 6/10/11), 68 So. 3d 1209, 1222.
We find that the Facebook posts were introduced as evidence of the instant offense, not a separate "other crime" within the meaning of Article 404(B). For example, the entry posted on the day of the shooting regarding the defendant having a cell phone for sale concerned the cell phone taken from the victim in the instant case. We find that the described evidence constitutes an integral part of the transaction. La. C.E. art. 404(B)(1). The evidence forms an inseparable link in the continuous chain of events leading to the defendant's arrest and the discovery of the evidence that formed the basis for the instant conviction. It was used merely to complete the story of the crime on trial and allow the State to accurately present its case. Moreover, we find that the relevancy of the evidence at issue was not outweighed by any danger of confusion. Thus, we now turn to the State's evidence presented at trial of two prior robberies.
Assuming, arguendo, that the balancing test of La. C.E. art. 403 is applicable to integral act evidence admissible under La. C.E. art. 404(B)(1), see State v. Colomb, 98-2813 (La. 10/1/99), 747 So. 2d 1074, 1076, in this case that test was satisfied. Evidence of the defendant's social media activity, including a post indicating that he was seeking to sell the same type of cell phone as the one taken from the victim in this case, was highly probative and unlikely to mislead or cause the jury to confuse the issues.
Herein, the State filed pretrial notice of intent to use other crimes evidence and the defendant filed a motion in limine. In lieu of testimony, at the pretrial hearing, police reports detailing the witnesses' statements were admitted without objection. In both of the extraneous robberies, the deliverers were approached outside of a residence by two young black males, both deliverers were beaten severely, and in both cases their money and food were stolen. In ruling that the evidence was admissible in this case to show identity, plan, and intent, the trial court considered the similarities between the prior incidents and the instant offense, including the location of the offenses, the closeness in time (less than sixty days prior to the instant offense), the use of an accomplice, and the violent nature of the offenses.
Louisiana jurisprudence allows the use of other crimes evidence to show modus operandi (i.e., system) as it bears on the issue of identity, particularly when the modus operandi employed by the defendant in both the charged and uncharged offenses is so peculiarly distinctive one must logically say they are the work of the same person. See State v. Hills, 99-1750 (La. 5/16/00), 761 So. 2d 516, 520-21. 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 the 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). State v. McArthur, 97-2918 (La. 10/20/98), 719 So. 2d 1037, 1042. 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. C.E. arts. 403 and 404(B); State v. Day, 2012-1749 (La. App. 1st Cir. 6/7/13), 119 So. 3d 810, 814-15. In this case, assuming that the State met its burden of proving that the defendant committed the prior robberies, we find that the evidence had no independent relevancy besides simply showing a criminal disposition.
McArthur is superseded by La. C.E. art. 412.2 only with respect to other crimes evidence of sexually assaultive behavior. See State v. Wright, 2011-0141 (La. 12/6/11), 79 So. 3d 309, 316-17.
To assure that modus operandi evidence involving crimes or acts similar to the charged offense does not become a passkey to the introduction of the character and propensity evidence that La. C.E. art. 404(B) prohibits, this court must closely analyze the transactions in order to determine whether they exhibit such peculiar modes of operations to distinguish them as the work of one person. Hills, 761 So. 2d at 521. We note that the facts of the extraneous offenses were distinguishable from the instant offense. While there was no indication that the victim in this case was struck before he was shot, the victims in the extraneous robberies were repeatedly struck. Also, unlike the instant case, there is no indication that a gun or any other weapon was involved in the extraneous robberies. Further, the similarities among the prior robberies and the instant offense fall short of being so peculiarly distinctive that one must logically say they are the work of the same person. The fact that the victims were older than the perpetrators, that they occurred in the same area, and that they occurred within months of the instant offense does not constitute distinctive or idiosyncratic marks. Thus, the other crimes evidence was not admissible as proof of identity.
Additionally, there is no indication that the prior offenses were committed in preparation for the instant offense, or as part of a series of crimes committed in order to achieve an ultimate goal. Thus, the evidence in this case fails to meet the plan exception. Moreover, intent was not an issue contested at trial, only the identity of the shooter. As stated above, when other crimes evidence is offered for a purpose allowed under La. C.E. art. 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. Rose, 949 So. 2d at 1243. As intent was not a material fact at issue or a defense by the defendant, the other evidence was not admissible to prove intent in this case. Finally, none of the other examples provided in La. C.E. art. 404(B)(1), which would allow for the admissibility of other crimes evidence, are applicable to the evidence of the extraneous robberies. Thus, we find that the admission of the evidence was in error.
Moreover, while the erroneous admission of other crimes evidence is a trial error subject to harmless error analysis, we are unable to find the error to be harmless in this case. The test for determining whether an error is harmless is whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182 (1993); State v. Garcia, 2009-1578 (La. 11/16/12), 108 So. 3d 1, 39, cert. denied, 570 U.S. 926, 133 S. Ct. 2863, 186 L. Ed. 2d 926 (2013). Herein, while the State may have proved the elements of the offense, we cannot say that the evidence of the defendant's guilt was overwhelming. The defendant was identified as the shooter by only one witness, Wallace, who has a criminal record, who was charged as a co-perpetrator in the instant shooting, and who admitted to lying to the police after his arrest. Outside of the evidence of the defendant's attempt to sell the stolen cell phone, Wallace's identification was not substantiated by any physical evidence placing the defendant at the scene or linking the defendant to the shooting. The prejudice to the defendant's credibility created by the erroneous indication of the commission of two previous robberies cannot be measured. It certainly cannot be ruled out that the jury decided that he was a bad man who had committed other offenses.
We find that the evidence of the extraneous robberies was impermissibly introduced to attack the character of the accused. Any probative value this evidence may have is far outweighed by the danger this evidence would unfairly prejudice the defendant in the eyes of the jury, leading it to render a guilty verdict because of the prior acts rather than on the strength of the evidence of the offense for which he was charged. Thus, the evidence is barred by the balancing test of La. C.E. art. 403. Considering all of the circumstances, we cannot conclude that the guilty verdict actually rendered in this trial was surely unattributable to this error. Accordingly, we find that a harmless error analysis leads us to conclude the error was not harmless beyond a reasonable doubt and, therefore, the conviction must be reversed and the case remanded to the trial court for a new trial. Assignment of error number one has merit insofar as it challenges the denial of the defendant's motion for new trial based on the admission of the evidence of extraneous robberies.
C HANGE OF V ENUE
In assignment of error number two, the defendant notes that he moved for a change of venue given the status of the decedent in the community. He claims that sensitive information from the police investigation as well as information relative to how he was developed as a suspect was disclosed in the Houma Courier. The defendant contends that the record reveals that many of the potential jurors had either read or heard of pertinent facts surrounding the victim's death, as well as information surrounding the defendant's arrest. He argues that it was manifestly erroneous for the trial court to deny his request for a change of venue given the undue influence the newspaper articles had on the community's impression of him. The defendant contends that the Houma Courier disseminated to its readership of about 34,000 citizens information regarding the shooting of a beloved person who had a history of regular volunteerism and working with disadvantaged youth. The defendant further contends that reporters of the Houma Courier intercepted a copy of defense counsel's motion for change of venue and disclosed vital and sensitive information on this case less than four months before the jury selection process began. He contends that the newspaper reporters ran several articles on the shooting and posted pictures of the defendant with each publication. Further, he notes that several potential jurors admitted to reading information regarding the shooting and discussing it with friends and family. The defendant argues that an evaluation of the facts reveals that he did not receive a fair and impartial trial unfettered by the outside publicity of the shooting in the local newspaper.
The record includes copies of six articles, published January 2, 2015, January 6, 2015, April 13, 2015, May 13, 2015, May 30, 2015, and May 31, 2015. The trial began on June 15, 2015. --------
Having found reversible error, we normally would pretermit consideration of this remaining assignment of error. However, there is a high probability that the issue raised in this assignment of error will arise again on remand. Thus, we will consider this issue now. See State v. Griffin, 2007-0974 (La. App. 1st Cir. 2/8/08), 984 So. 2d 97, 114.
A defendant is guaranteed a fair trial and an impartial jury. La. Const. art. I, § 16; State v. Sparks, 88-0017 (La. 5/11/11), 68 So. 3d 435, 456, cert. denied, 566 U.S. 908, 132 S. Ct. 1794, 182 L. Ed. 2d 621 (2012). Thus, the law provides for a change of venue when the defendant establishes his inability to obtain an impartial jury or a fair trial. Sparks, 68 So. 3d at 456. Louisiana Code of Criminal Procedure article 622 provides, "[a] change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending."
In deciding whether to grant a change of venue, the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial. Only in exceptional circumstances, such as "in the presence of a trial atmosphere which is utterly corrupted by press coverage or which is entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob[,]" will prejudice against a defendant be presumed. State v. Magee, 2011-0574 (La. 9/28/12), 103 So. 3d 285, 298, cert. denied, 571 U.S. 830, 134 S. Ct. 56, 187 L. Ed. 2d 49 (2013). Absent such exceptional circumstances, the defendant's burden on the motion for change of venue is to demonstrate actual prejudice. Magee, 103 So. 3d at 299. The record in this case does not establish the presence of exceptional circumstances; thus, the defendant was required to establish actual prejudice.
Proof of mere public knowledge or familiarity with the case is insufficient to establish actual prejudice. Sparks, 68 So. 3d at 457. "A defendant is not entitled to a jury entirely ignorant of his case and cannot prevail on a motion for change of venue simply by showing a general level of public awareness about the crime; rather, he must show that there exists such prejudice in the collective mind of the community that a fair trial is impossible." Magee, 103 So. 3d at 298.
Relevant to the trial court's determination of whether a change of venue should be ordered are the factors set forth in State v. Bell, 315 So.2d 307, 311 (La. 1975), which include: (1) the nature of the pretrial publicity and the particular degree to which it has circulated in the community; (2) the connection of governmental officials with the release of the publicity; (3) the length of time between the dissemination of the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury is to be drawn; (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant; and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.
A trial court's determination of whether the defendant has met his burden of proof will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion. The reviewing court's primary task is to consider the nature and scope of publicity to which prospective jurors in a community have been exposed and examine the lengths to which a court must go to impanel a jury that appears to be impartial in order to ascertain whether prejudice existed in the minds of the public which prevented the defendant from receiving a fair trial. Magee, 103 So. 3d at 298-99. This inquiry into the nature and scope of publicity disseminated in the community is facilitated by the Bell factors. "However, courts must distinguish between mere familiarity with the defendant or his past and an actual predisposition against him." Sparks, 68 So. 3d at 457. Another gauge of whether prejudice exists in the public mind is the number of jurors excused for cause for having a fixed opinion. Magee, 103 So. 3d at 299.
Herein, the trial court deferred ruling on the defendant's motion for change of venue until after the jury voir dire process was complete. After a thorough review of the record, we conclude that the defendant has failed to show either actual or presumed prejudice against him to the degree a fair trial was impossible. See Huls, 95-0541 (La. App. 1st Cir. 5/29/96), 676 So. 2d 160, 171-72, writ denied, 96-1734 (La. 1/6/97), 685 So. 2d 126. A thorough voir dire was conducted of three panels, each consisting of fourteen prospective jurors. The prospective jurors were asked by the trial court whether they knew, or had read, anything about the case. Each juror who indicated that they had some knowledge of the case was questioned individually (outside of the presence of the other prospective jurors) concerning the extent of their knowledge and whether it would affect their ability to remain impartial. While some of the prospective jurors possessed general knowledge of the case based on exposure that took place before the trial, there was no indication that the trial court had any difficulty in impaneling an impartial jury without fixed opinions of the defendant. Of the challenges for cause made by the defendant, only two were based solely on the prospective juror's level of knowledge or exposure and/or any resulting opinion. Of those two challenges for cause, the trial court dismissed one of the prospective jurors for possibly having a fixed opinion, and the other challenge for cause on that basis was denied. In denying the motion for change of venue, the trial court noted that the jury was chosen in this case with relative ease. We agree that the record does not demonstrate the existence of prejudice that prevented the defendant from receiving a fair trial. After considering the record, we find no affirmative showing of error or abuse of the trial court's sound discretion. Assignment of error number two lacks merit.
C ONCLUSION
We find that the defendant's assignment of error number one has merit insofar as it challenges the denial of the defendant's motion for new trial based on the admission of the evidence of extraneous robberies. The evidence of the extraneous robberies was impermissibly introduced to attack the character of the defendant, and any probative value that evidence may have is far outweighed by the danger that evidence would unfairly prejudice the defendant in the eyes of the jury, leading it to render a guilty verdict because of the prior acts rather than on the strength of the evidence of the offense for which he was charged. See La. C.E. art. 403. The error was not harmless beyond a reasonable doubt and, therefore, the defendant's conviction must be reversed and the case remanded to the trial court for a new trial.
CONVICTION REVERSED; SENTENCE VACATED; REMANDED FOR NEW TRIAL. CHUTZ, J., dissenting.
I disagree with the majority's conclusion that the defendant's conviction must be reversed, his sentence vacated, and this matter remanded for a new trial. The erroneous admission of other crimes evidence is a trial error subject to harmless-error analysis on appeal. State v. Johnson , 94-1379 (La. 11/27/95), 664 So.2d 94, 102. The test for determining whether an error is harmless is whether the verdict actually rendered in the case was surely unattributable to the error. Sullivan v. Louisiana , 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993). In this case, even assuming the admission of the other crimes evidence concerning the extraneous robberies was error, I believe the guilty verdict was surely unattributable to the admission of that evidence. Direct evidence of the defendant's identity as the perpetrator was established by the testimony of Randy Wallace, which the jury obviously accepted. Additionally, there was evidence that, on the day of the murder, the victim's cellphone was listed for sale on the defendant's Facebook account. That same day, the defendant also was one of the two men who attempted to sell the victim's cellphone at a store located near the scene of the murder. Given the overall evidence, I am convinced that the guilty verdict was not attributable to any possible error in the admission of the other crimes evidence. Accordingly, I respectfully dissent.