ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 517-427, SECTION " L" . Honorable Franz Zibilich, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, COUNSEL FOR STATE OF LOUISIANA/RELATOR.
Daniel Engelberg, New Orleans, LA, COUNSEL FOR DEFENDANT/RESPONDENT.
(Court composed of Judge Paul A. Bonin, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano).
JOY COSSICH LOBRANO, J.
[2014-1048 La. 1] Defendant, Devin Waterhouse, was charged by a grand jury indictment with the second degree murder of Kiran Harris. The State filed a motion in limine seeking to admit evidence of Defendant's affiliation with a gang known as the " Prieur and Columbus Boys" (PCB) and evidence of prior acts of violence committed by the deceased victim and/or other PCB members upon the intended target, Bryan Deval, citing La. C.E. art. 404(B). Following a hearing held on September 18, 2014, the trial court issued a written ruling on September 23, 2014, denying the admission of evidence. On an application for writs filed by the State, we now grant certiorari to review the trial court's ruling.
The facts of the case are gleaned from the police report that the State gave to the defense at the arraignment. On February 12, 2013, the victim was shot while in the 1800 block of Laharpe Street. The victim was taken to a hospital, where he died soon thereafter. Investigation revealed that the victim and Defendant were standing in that block when they saw a vehicle driven by Deval drive by them. The victim and Deval had an ongoing dispute, and the victim had shot at Deval in [2014-1048 La. 2] the past. The victim opened fire on Deval's vehicle. The State alleges that Defendant then also drew a gun and shot at Deval's vehicle, but at the time that he fired, the victim moved in front of him and was hit by his bullet. Crime lab personnel recovered several .40 caliber spent casings and one 9 mm. spent casing. Recordings of jailhouse calls made by Jamal Clay, another gang associate of the victim and Defendant, include one made by " Devin", alleged to be Defendant, during which Devin admitted that he accidentally hit the victim while firing at Deval's vehicle. When Defendant was arrested on an unrelated charge several months later, he was in possession of a 9 mm. gun, but ballistics testing showed it was not the murder weapon.
The State seeks to introduce evidence, in the form of photographs depicting the victim, Clay, and Defendant showing gang signs and holding guns, to establish these three individuals are members of the PCB gang. The State argues that this evidence is relevant to show motive and intent for the shooting as well as to establish Defendant's identity for two reasons: to show he was one of the shooters and to establish he is the same " Devin" who confessed to accidentally shooting the victim during the recorded jail house call.
At the hearing on the motion, the State contended that it was not required to meet its Prieur burden at a pretrial hearing to
show that Defendant committed the alleged prior bad acts. It also contended that the evidence of gang affiliation is admissible for Prieur purposes to show identity and motive. The trial court rejected these arguments, finding that the State had a pretrial burden to show that Defendant committed the prior bad acts. The trial court also questioned whether [2014-1048 La. 3] under the facts of this case, evidence of gang affiliation would be admissible. Finally, the trial court found that the State's motion was filed untimely, given the rules of that section of court, and the State had failed to show good cause for its failure to timely file its motion.
The State seeks to introduce evidence of the prior incidents pursuant to La. C.E. art. 404(B)(1), which provides:
Except as provided in Article 412 [not applicable here], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such ...