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State v. Harris

Court of Appeals of Louisiana, Fifth Circuit

December 20, 2017



          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.

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson.


         Defendant, 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.


         On 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.[1] Trial resumed later that day.

         The 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."

         Ms. 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.[2] At some point during this encounter, Mr. Taylor[3] called 9-1-1 to report the incident.[4]

         Deputy 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.

         EMS 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.

         Defendant 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.

         At the 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.[5]

         On 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.[6] The instant appeal followed.


         Defendant 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.


         Sufficiency of evidence[7]

         In his 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.[8] 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.

         In 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.

         This 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.

         In 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 745.

         In this 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.

         Defendant's 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. Id.

         In the 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 broken leg.

         Both 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.

         Challenges for Cause

         In his 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.[9] 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.

         The 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.

         Defendant 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.

         The 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).

         "[A] 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 (1991)).

         Although 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.

         Nevertheless, 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).

         The 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.

         Juror Rthasia Terrell

         With 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.

         At the start of the voir dire, one of the prosecutors, Andrew De Coste, [10]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."

         During 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 matters."

         At the 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 occurred:

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) convict?
MS. TERRELL: I wouldn't be able to on one person.
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.

         Defense 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.

         Next, 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.

         Under 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.

         In this 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.[11]

         Juror Myjah Boyd

         Ms. 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.

         Also 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."

         At the 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 not convict?
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 ...

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