APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 15-5810, DIVISION
"B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr. Terry M. Boudreaux Darren A. Allemand.
COUNSEL FOR DEFENDANT/APPELLANT, EARL KEITH HARRIS Earl Keith
Harris Bruce G. Whittaker.
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Marc E. Johnson.
E. JOHNSON JUDGE.
Earl Keith Harris, appeals his conviction and sentence for
aggravated second degree battery from the 24th
Judicial District Court, Division "B". For the
following reasons, we affirm.
AND PROCEDURAL HISTORY
December 4, 2015, the Jefferson Parish District Attorney
filed a bill of information charging Defendant with one count
of aggravated second degree battery, in violation of La. R.S.
14:34.7. Defendant pleaded not guilty at his arraignment on
December 7, 2015. Trial commenced on August 24, 2016, before
a six-person jury. However, the next day during trial, the
trial court granted Defendant's motion for mistrial, and
the proceedings were stayed pending a writ application to
this Court. On August 26, 2016, this Court granted the
State's writ application, finding that the trial court
abused its discretion in granting Defendant's motion for
mistrial and remanded the matter to the trial court to resume
trial. Trial resumed later that day.
following facts were elicited at trial. On the evening of
September 11, 2015, Carol Clark, the victim in this case, was
at her home at 1245 Aberdeen Drive in Harvey with her family.
At some point that evening, she left her home to run an
errand-her granddaughter needed diapers-so she decided to
walk around the corner to her cousin's home to acquire
some. She retrieved the diapers from her cousin, and as she
was walking back, she ran into a friend from the
neighborhood, Danny Taylor, who she asked to accompany her on
her walk back home. She described that as they were walking
back on Clydesbank Drive, she noticed bright lights and the
roar of a vehicle that was "coming fast" from
behind her. She testified that she was struck by the vehicle,
that went through a neighboring field, came back and
"roll[ed] over [her] leg again."
Clark testified that the truck went through the field again
and came back a third time, but this time "pulled up on
the side" and the driver "looked at [her] on the
ground, " "put his left hand on the steering wheel,
and looked over on the ground and smiled." It was not
until then that she recognized the driver of the vehicle as
Defendant, Earl Keith Harris. She explained she had known
Defendant for approximately 20 years, as he and her daughter
used to date and had four children together. She also
recognized the vehicle he was driving, a silver or gray
Expedition, with no license plate and discoloration (a
"big prime spot" on the passenger side and back)
because it was the vehicle he drove when he lived with her
daughter. At some point during this encounter, Mr.
Taylor called 9-1-1 to report the
Justin McLin was dispatched to the scene on Clydesbank. When
he arrived at the scene, he observed Ms. Clark lying
partially in the road, in obvious pain and distress,
screaming for help. At the scene, Ms. Clark was able to
identity Defendant as her attacker and provided Deputy McLin
with a description of the suspect vehicle. Deputy McLin
testified that while Defendant was not found at the scene, a
vehicle matching the suspect car was spotted across the
street on the other side of the canal with a "direct
view of the entire incident" but sped off once Deputy
McLin became aware of its presence.
also arrived at the scene and treated Ms. Clark, who was
brought to the hospital due to her injuries. Dr. Elizabeth
Skeins, who treated Ms. Clark that evening at the Ochsner
Westbank emergency room, explained that Ms. Clark sustained a
comminuted displaced tibia/fibula fracture, or in other
words, that her lower leg was broken into more than one
piece. Defendant was later arrested in connection with this
incident pursuant to an arrest warrant.
testified on his own behalf. Defendant testified that he
neither ran over Ms. Clark nor did he send anyone to run her
over. While he could not provide his specific whereabouts on
the evening of September 11, 2015, as he does not "walk
around trying to hold on to alibies, " he stated he was
probably at his home.
conclusion of the trial, the jury found Defendant guilty as
charged. On August 30, 2016, Defendant filed a motion for new
trial, which was heard on September 30, 2016, and later
denied on October 14, 2016. Also on October 14, 2016, the
State filed a habitual offender bill of information, alleging
Defendant to be a fourth felony offender. On November 29,
2016, the habitual offender bill was amended, still alleging
Defendant to be a fourth felony offender.
December 1, 2016, the trial court sentenced Defendant to 15
years at hard labor. A hearing on the habitual offender bill
of information was held after sentencing on December 1, 2016.
After finding Defendant to be a fourth felony offender, the
trial court vacated its previously imposed sentence and
resentenced Defendant, pursuant to La. R.S. 15:529.1(4)(b),
to life imprisonment without benefit of probation, parole, or
suspension of sentence. On December 10, 2016, Defendant filed
a motion for reconsideration of sentence and a motion for
appeal. The motion for appeal was granted on December 13,
2016. The motion for reconsideration of sentence was denied
on February 15, 2017. The instant appeal followed.
alleges two counseled assignments of error on appeal: 1) the
trial court erroneously granted unwarranted challenges for
cause, and 2) the trial court erred in prohibiting the
defense from impeaching Ms. Clark to reveal the full extent
of the favorable treatment she received for her testimony.
Defendant also alleges three pro se assignments of
error: 1) there was insufficient evidence to support his
conviction; 2) the trial court erred by failing to grant his
motion to quash; and 3) the sentence imposed is excessive.
first pro se assignment of error, Defendant argues
that the trial court erred in denying his motion for new
trial as the evidence was insufficient to support his
conviction for aggravated second degree
battery. Defendant maintains that the State failed
to prove that he was the one who committed the crime and
refers to his trial testimony where he denied his
involvement. He asserts that the witnesses' testimony was
not credible and their testimony was insufficient to support
the jury's finding that he was involved in the aggravated
second degree battery committed upon Carol Clark.
reviewing the sufficiency of the evidence, an appellate court
must determine that the evidence, whether direct or
circumstantial, or a mixture of both, viewed in the light
most favorable to the prosecution, was sufficient to convince
a rational trier of fact that all of the elements of the
crime have been proven beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979); State v. Neal, 00-674 (La. 6/29/01); 796
So.2d 649, 657, cert. denied, 535 U.S. 940, 122
S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel,
09-953 (La.App. 5 Cir. 5/11/10); 41 So.3d 532, 534, writ
denied, 10-1357 (La. 1/7/11); 52 So.3d 885.
directive that the evidence be viewed in the light most
favorable to the prosecution requires the reviewing court to
defer to the actual trier of fact's rational credibility
calls, evidence weighing, and inference drawing. State v.
Caffrey, 08-717 (La.App. 5 Cir. 5/12/09); 15 So.3d 198,
202, writ denied, 09-1305 (La. 2/5/10); 27 So.3d
297. This deference to the fact-finder does not permit a
reviewing court to decide whether it believes a witness or
whether the conviction is contrary to the weight of the
evidence. Id. As a result, under the
Jackson standard, a review of the record for
sufficiency of the evidence does not require the reviewing
court to determine whether the evidence at trial established
guilt beyond a reasonable doubt, but whether, upon review of
the whole record, any rational trier of fact would have found
guilt beyond a reasonable doubt. State v. Jones,
08-20 (La.App. 5 Cir. 4/15/08); 985 So.2d 234, 240.
making this determination, a reviewing court will not
re-evaluate the credibility of witnesses or re-weigh the
evidence. Caffrey, supra. Indeed, the
resolution of conflicting testimony rests solely with the
trier of fact, who may accept or reject, in whole or in part,
the testimony of any witness. See State v. Bailey,
04-85 (La.App. 5 Cir. 5/26/04); 875 So.2d 949, 955, writ
denied, 04-1605 (La. 11/15/04); 887 So.2d 476, cert.
denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468
(2005). Thus, in the absence of internal contradiction or
irreconcilable conflicts with physical evidence, the
testimony of one witness, if believed by the trier of fact,
is sufficient to support a conviction. State v.
Dixon, 07-915 (La.App. 5 Cir. 3/11/08); 982 So.2d 146,
153, writ denied, 08-0987 (La. 1/30/09); 999 So.2d
case, Defendant was convicted of aggravated second degree
battery. La. R.S. 14:34.7(A) defines aggravated second degree
battery as "a battery committed with a dangerous weapon
when the offender intentionally inflicts serious bodily
injury." Aggravated second degree battery is a crime
requiring specific criminal intent. See State v.
Fuller, 414 So.2d 306 (La. 1982). Specific 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). Specific intent need not be proven as a
fact, but may be inferred from the circumstances and by the
actions of the defendant. Id.
argument focuses on the failure of the State to prove beyond
a reasonable doubt his identity as the perpetrator of the
aggravated second degree battery of Ms. Clark. Encompassed
within proving the elements of an offense is the necessity of
proving the identity of the defendant as the perpetrator.
State v. Ray, 12-684 (La.App. 5 Cir. 4/10/13); 115
So.3d 17, 20, writ denied, 13-1115 (La. 10/25/13);
124 So.3d 1096. Where the key issue is identification, the
State is required to negate any reasonable probability of
misidentification in order to carry its burden of proof.
present case, we find that the State presented sufficient
evidence to support Defendant's conviction of aggravated
second degree battery. Here, Ms. Clark, the victim,
identified Defendant immediately following the crime, as well
as at trial, as the individual who ran her over with a
vehicle. Positive identification by only one witness is
sufficient to support a conviction. State v.
Williams, 02-645 (La.App. 5 Cir. 11/26/02); 833 So.2d
497, 503, writ denied, 02-3182 (La. 4/25/03); 842
So.2d 398. Not only did she testify that Defendant hit her
once with a vehicle, she described that after hitting her a
first time, Defendant turned around and hit her a second
time. Evidence was presented that showed the resultant
collision caused severe injuries to Ms. Clark, including a
Defendant and the victim, Ms. Clark, testified at trial.
While Ms. Clark identified Defendant as the perpetrator,
Defendant denied his involvement but did not provide a
concrete alibi. After hearing the testimony, the jury
apparently chose to believe Ms. Clark's version of events
in rendering its verdict. When there is conflicting testimony
about factual matters, the resolution of which depends on a
determination of credibility of the witnesses, this is a
matter of the weight of the evidence, not its sufficiency.
State v. Brown, 01-41 (La.App. 5 Cir. 5/30/01); 788
So.2d 694, 701. We find that the evidence established that
Defendant utilized an automobile as a dangerous weapon and
intentionally used force against Ms. Clark by running her
over with it. Therefore, in reviewing the evidence in the
light most favorable to the prosecution, we find that a
rational jury could reasonably find Defendant guilty of
aggravated second degree battery.
first counseled assignment of error, Defendant contends that
the trial court erred by excusing three potential jurors from
the jury pool following the State's challenges for cause.
Defendant contends that the trial court erred in excusing
jurors Rthasia Terrell, Myjah Boyd, and Sharon
Delaney. As a result of the alleged error,
Defendant maintains that the State was permitted a greater
number of peremptory challenges than allowed by law.
Defendant elaborates that the use of improper hypothetical
questioning served to muddy the waters as to the thinking of
the challenged jurors such that the use of their answers as a
basis for a challenge for cause was suspect and improper. He
notes that because there was corroborating evidence in this
case, the State's suggestion that the jurors were to try
a case with one uncorroborated witness was specious.
State responds that the trial court did not err in granting
the State's challenges for cause. Reviewing the entire
record, the State contends that each of the three jurors
indicated unwillingness to convict based upon the testimony
of one witness. The State avers the trial court had the
benefit of seeing the facial expressions, vocal intonations,
and other "tells" of the prospective jurors, and
after taking their entire responses into account, struck the
prospective jurors in question for cause, and a review of the
record does not reveal an abuse of discretion.
was tried and convicted of aggravated second degree battery,
a crime that is punishable with or without hard labor. La.
R.S. 14:34.7. In trials of offenses punishable by
imprisonment with or without hard labor, each defendant shall
have six peremptory challenges, and the State shall have six
for each defendant. La. C.Cr.P. art. 799. Here, the State
used five of its six peremptory challenges, excusing jurors
Caesar Ochoa, Anitria Thomas, Ruth Harmon, Paul Morales, and
Jack Dagostaro. An erroneous allowance to the State of a
challenge for cause does not afford the defendant a ground
for complaint, unless the effect of such ruling is the
exercise by the State of more peremptory challenges than it
is entitled to by law. La. C.Cr.P. art. 800. Therefore, to
validly claim that the court made a reversible error, in this
case, Defendant must prove that the trial court erroneously
excused two or more jurors for cause.
Sixth Amendment of the United States Constitution guarantees
the accused the right to a trial by an impartial jury.
State v. Nelson, 09-807 (La.App. 5 Cir. 3/23/10); 39
So.3d 658, 661. Included in this right to an impartial jury
is the right to an adequate voir dire to identify
unqualified jurors. United States v. Beckner, 69
F.3d 1290, 1291 (5th Cir. 1995). Article I, § 17(A) of
the Louisiana Constitution grants a criminal defendant the
right to a full and complete voir dire. "The
court, the state, and the defendant shall have the right to
examine prospective jurors." La. C.Cr.P. art. 786. The
purpose of voir dire is to give counsel the
opportunity to determine the qualifications of prospective
jurors by testing their competency and impartiality and to
formulate reasons for cause and peremptory challenges.
State v. Ball, 00-2277 (La. 1/25/02); 824 So.2d
1089, 1110, cert. denied, 537 U.S. 864, 123 S.Ct.
260, 154 L.Ed.2d 107 (2002). La. C.Cr.P. art. 797 sets forth
the grounds for which a juror may be challenged for cause.
Based upon the arguments, the most relevant ground here is
that "[t]he juror will not accept the law as given to
him by the court." La. C.Cr.P. art. 797(4).
challenge for cause should be granted, even when a
prospective juror declares his ability to remain impartial,
if the juror's responses as a whole reveal facts from
which bias, prejudice or inability to render judgment
according to law may be reasonably implied." State
v. Robertson, 92-2660 (La. 1/14/94); 630 So.2d 1278,
1281, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142
L.Ed.2d 155 (1998), (quoting State v. Hallal, 557
So.2d 1388, 1389-90 (La. 1990)). The trial judge must look at
the juror's responses during his entire testimony, not
just "correct, " isolated answers, or, for that
matter, "incorrect, " isolated answers.
Robertson, 630 So.2d at 1281 (quoting State v.
Lee, 559 So.2d 1310, 1318 (La. 1990), cert.
denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482
a court has discretion to restrict voir dire, it
must nevertheless afford the attorneys wide latitude in
examining prospective jurors as a means of giving effect to
an accused's right to a full voir dire. State v.
Thibodeaux, 98-1673, (La. 9/8/99); 750 So.2d 916, 924,
cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146
L.Ed.2d 800 (2000). Thus, while a trial court has control
over the scope of jury selection and may limit voir dire
examination accordingly, the limitations may not be so
restrictive as to deprive counsel of a reasonable opportunity
to determine grounds for challenges for cause and for the
intelligent exercise of peremptory challenges. Id.
Louisiana law clearly establishes that a party interviewing a
prospective juror may not ask a question or pose a
hypothetical which would demand a commitment or pre-judgment
from the juror or which would pry into the juror's
opinions about issues to be resolved in the case.
Thibodeaux, 750 So.2d at 924. Voir dire
examination may not encompass unlimited inquiry into all
possible prejudices of prospective jurors, nor their opinions
on the evidence to be offered at trial, nor hypothetical
questions and questions of law which call for any
pre-judgment of supposed facts. State v. Bell, 477
So.2d 759, 766 (La.App. 1st Cir. 1985), writ
denied, 481 So.2d 629 (La. 1986). However, it is
permissible for voir dire questions to
"reasonably explore the juror's potential
prejudices, predispositions or misunderstandings relevant to
the central issues of the particular case." State v.
Duplessis, 457 So.2d 604, 606 (La. 1984).
trial court is granted broad discretion in regulating the
conduct of voir dire, and its rulings will not be
disturbed on appeal absent a clear showing of an abuse of
discretion. La. C.Cr.P. art. 786; Ball, 824 So.2d at
1110. In evaluating the fairness of the trial judge's
ruling, the entire voir dire examination should be
considered. State v. Housley, 05-502 (La.App. 5 Cir.
1/31/06); 922 So.2d 659, 662, writ denied, 06-1183
(La. 11/17/06); 942 So.2d 531.
respect to Ms. Terrell, Defendant notes that she was
challenged by the State because she purportedly required more
than one witness. Defendant argues that she advised the
court, while thinking about a hypothetical, that she could
not say "100 percent" "either way" how
she might respond to a particular scenario of events.
Defendant contends that this modesty is not grounds for a
challenge for cause and the equivocation in her answers is an
insufficient basis upon which to grant the State the
advantage of an extra peremptory challenge.
start of the voir dire, one of the prosecutors,
Andrew De Coste, instructed the potential jurors that
"[a]s it relates to witnesses, the law says that the
testimony of one witness is enough to convict somebody."
voir dire, Ms. Terrell indicated, in the context of
this hypothetical, that she would not be able to convict
"based on one witness" because if "one witness
testified [she] would not find them credible because there
[was] nobody else to back them up." The prosecutor then
presented Ms. Terrell with a hypothetical rape case where
only the victim testified. Ms. Terrell was asked that if she
believed the rape victim's story, would she be able to
convict the accused rapist, and she indicated she would
"still hear his side, too" and that she would not
"take one person's side of the story." The
prosecutor explained that the accused rapist in the
hypothetical, like Defendant, "doesn't have to do
anything" in his defense. He asked Ms. Terrell again
that if she just heard "from the woman who said she was
raped" and if Ms. Terrell believed her, could she find
the man guilty, and she indicated yes. The prosecutor, trying
to reconcile these differences, asked, "what is the
difference between that and me and the horse?" Ms.
Terrell stated that the rape scenario was more serious,
indicating that the "seriousness of the crime
bench, the State exercised its first challenge for cause on
Ms. Terrell, with the trial court recalling that "she
said she needed more than one witness." The trial court
called Ms. Terrell to the bench, and the following exchange
THE COURT: I believe you had said in
response to the State that you need more than one witness in
order to convict.
MS. TERRELL: Correct.
THE COURT: If you were convinced beyond a
reasonable doubt by testimony of one witness could u (sic)
MS. TERRELL: I wouldn't be able to on
MR. SCOTT: What if you heard from witnesses
who were not eyewitnesses, police officers, doctors, are
those the types of witnesses you are saying you would want to
hear from, or another person who actually saw something
knowing sometimes you don't have one?
MS. TERRELL: Right. If it was someone other
than the involved party, maybe, but I wouldn't be able to
say 100 percent. Does that make sense?
MR. SCOTT: Can you explain it a little bit
more? That gives you more than one witness.
MS. TERRELL: In this case if it was like the
two parties that are involved, if you are saying that one of
them would testify and there would be no one else, I
wouldn't be able to say yes 100 percent that I would be
able to convict just based off of that. If it were the two
people involved and a police officer or a doctor that gave a
statement, I still can't say that I would be able to say
100 percent either way.
THE COURT: Okay. Thank you.
counsel argued that he did not think "that gives rise to
cause." In this case, there was a 9-1-1 call from a
neighbor, "even though she is not going to testify,
" and that Ms. Terrell was "going to hear that,
" arguing it was a "case by case basis." The
State responded that Ms. Terrell stated, "if she
believed them she couldn't 100 percent say she could
convict them." The trial court struck her for cause over
defense counsel's objection.
the State challenged juror Caesar Ochoa for cause. During
voir dire, Mr. Ochoa indicated that based upon
"one victim, one eyewitness, " he "would have
to see a whole lot more evidence in the whole process"
to convict. The trial court called him to the bench to
question him further on that matter, asking him if there was
"one witness who testifies and [he was] convinced beyond
a reasonable doubt of that witness's testimony, [could
he] convict them?" Mr. Ochoa responded in the
affirmative, and the trial court denied the State's
challenge for cause.
Louisiana law, a victim's or witness' testimony alone
is usually sufficient to support the verdict. State v.
Munson, 12-327 (La.App. 5 Cir. 4/10/13); 115 So.3d 6,
13, writ denied, 13-1083 (La. 11/22/13); 126 So.3d
476. In the absence of internal contradiction or
irreconcilable conflict with physical evidence, one
witness' testimony, if believed by the trier of fact, is
sufficient support for a requisite factual conclusion.
State v. Turner, 05-75 (La.App. 5 Cir. 5/31/05); 904
So.2d 816, 823, writ denied, 05-2591 (La. 5/26/06);
930 So.2d 20.
case, Ms. Terrell indicated that she would not, or could not,
accept this legal standard. She indicated that she would
apply a different standard to a rape case as opposed to other
cases, indicating that seriousness of the crime mattered. She
was told the law allowed the State to prove its case through
testimonial evidence alone in a criminal case and expressed
her inability to convict on the testimony of one witness.
Unlike Mr. Ochoa, who initially expressed similar concerns
regarding convictions based on lack of physical evidence and
was later rehabilitated, Ms. Terrell's responses
seriously called into question her ability to act as a juror
in this case. Accordingly, we find that the trial court did
not abuse its broad discretion in granting the State's
challenge for cause with regard to Ms. Terrell, given her
inability to follow the law.
Boyd also expressed her reluctance to convict someone based
upon the testimony of a single witness. With respect to Ms.
Boyd, Defendant argues that she actually said she would be
able to convict if convinced beyond a reasonable doubt and
only could not convict if she thought the victim was lying.
Defendant contends that while her answers may not have been
that clear, her responses to poorly constructed hypotheticals
did not provide a basis for a challenge for cause.
using the rape hypothetical during voir dire, the
prosecutor asked Ms. Boyd if she could convict based on the
word of one witness, with no physical evidence to corroborate
it, and she responded that she did not think she "would
be able to convict somebody off of a sole testimony of one
person." The prosecutor inquired further, asking,
"even if the law says you can, you can't?" Ms.
Boyd responded, "Yes, I don't think so."
bench, the State moved to strike Ms. Boyd for cause for the
"same issue." The trial court requested her
presence at the bench where she was further questioned:
THE COURT: Ms. Boyd, would you step up here,
please. I guess the whole thing revolved around your answers,
and that you couldn't convict based upon the testimony of
one witness, and I think that was one eyewitness.
MS. BOYD: Yeah. Exactly.
THE COURT: Suppose the State put on other
witnesses so that it was not a one witness case, but it was
only one witness as it pertains to the identity of the
perpetrator. If you believe that witness beyond a reasonable
doubt you are telling me you could not convict?
MS. BOYD: No, if I believe them beyond a
reasonable doubt, the eyewitness, but I would need the police
as well. For example, the rape happened, I would need the
police to say when she came in she was like this, you know,
she was distraught and everything else, but I wouldn't
just take the person's comments.
THE COURT: If some lady got on the witness
stand and said I was raped and that's the person that did
it, and you believed it beyond a reasonable doubt you could
MS. BOYD: I would be able to convict if I
believe it beyond a reasonable doubt.
THE COURT: Mr. Scott?
MR. SCOTT: I have no questions.
MR. DE COSTE: I guess the question I asked
you before, right, if you got the one woman who comes and
testified and says they are (sic) raped, and the defendant
sitting silent and you believe her beyond a ...