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State v. Le

Court of Appeals of Louisiana, Fourth Circuit

April 11, 2018

STATE OF LOUISIANA
v.
TRUNG LE

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 521-564, SECTION "G" Honorable Byron C. Williams, Judge

          Leon A. Cannizzaro, Jr. District Attorney Laura Cannizzaro Assistant District Attorney Kyle Daly Assistant District Attorney COUNSEL FOR APPELLEE/STATE OF LOUISIANA

          Sherry Watters LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Tiffany G. Chase

          Tiffany G. Chase, Judge.

         The defendant, Trung Le, seeks review of his convictions and sentences for attempted manslaughter and manslaughter. For the reasons that follow, we affirm the defendant's conviction and sentence for attempted manslaughter, vacate the defendant's conviction and sentence for manslaughter, enter a judgment of conviction of negligent homicide, and remand the matter to the trial court for resentencing on that charge.

         STATEMENT OF THE FACTS

         The Shooting

         On June 29, 2014, sometime between 2:00 a.m. and 2:50 a.m., an exchange of gunfire between two shooters erupted in the 700 block of Bourbon Street, near the intersection with Orleans Street in the French Quarter. This incident resulted in the untimely death of Brittany Thomas (hereinafter "Ms. Thomas"), the attempted murder of an unknown male, and injury to numerous bystanders struck by bullets in the chaos. Just prior to the shooting, Justin Odom (hereinafter "Odom"), Robert Benvenuti (hereinafter "Benvenuti"), Jasmine Parent (hereinafter "Parent"), Christian Cooper (hereinafter "Cooper"), Christopher Kelley (hereinafter "Kelley"), and the defendant were all hanging out at the intersection of Bourbon Street and Orleans Street.[1] At the same time, in the 700 block of Bourbon Street, an unknown male in a dark shirt, striped chef pants and a Boston Red Sox hat, made his way toward the group, a beer bottle visible in his left hand, with another bottle in his right hand.[2] As the unknown male passed by, he suddenly turned back, as if something had caught his attention. He then approached the group, all while exchanging a series of glances with Odom.[3] At this point, Odom and Benvenuti were closest to the unknown male, while the defendant was slightly behind both of his friends. [4] Then, Odom asked "what's up?" to the unknown male as the two got in each other's faces. Odom shoved the unknown male backwards. Odom and Benvenuti noticed for the first time the unknown male had a gun underneath his left arm. As the unknown male backed away, he raised his hand to point at Odom, then lowered it, during an angry verbal exchange. During this exchange, Odom and Benvenuti testified the unknown male said "I got that .40." The large crowd surrounding the group did not react to this argument, suggesting no gun had yet been displayed.[5] Suddenly, the defendant, in a red t-shirt, sprang from behind Odom and Benvenuti, pushing them aside as he fired four shots, likely striking the unknown male and three victims standing behind him.[6] Once the unknown male noticed that the defendant pulled his gun, the unknown male pulled out his gun in response. At the sound of the first gunshot, fired by the defendant, the crowd scattered in various directions to escape. As the defendant fled down Bourbon Street towards St. Peter Street, the unknown male opened fire, a gun in his right hand, wildly firing ten or eleven shots towards the defendant. Then, the unknown male fled in the opposite direction, with the two beer bottles still in his left hand. Benvenuti and Kelley were shot by the unknown male and Ms. Thomas later succumbed to her injuries. It is undisputed that the bullet which struck and killed Ms. Thomas was fired by the unknown male, who was never found. Though Odom and the defendant ran in different directions after the shooting, they met up and took a taxi to the defendant's car, parked nearby. Both Odom and the defendant fled to Mississippi the following day.

         The Investigation

         Lieutenant Nicholas Gernon[7] (hereinafter "Lt. Gernon") and Detective Bruce Brueggeman (hereinafter "Det. Brueggeman") handled the investigation. Neither gun was recovered but ballistics tests of the casings collected after the shooting indicated that one gun was a nine-millimeter and the other was a forty-caliber Smith and Wesson. The location where the four nine-millimeter casings were recovered established that the defendant shot a nine-millimeter gun. Ms. Thomas was killed by a bullet fired from the forty-caliber gun.

         As the case developed, the NOPD canvassed the area to obtain video surveillance from surrounding businesses which captured the moments leading up to the incident and its aftermath.[8] Police located video from the 400, 500 and 700 blocks of Bourbon Street which depicted the unknown male making his way towards the group. Det. Brueggeman was tasked with locating the shooter in the red t-shirt and developed the defendant as a suspect through those videos and social media. The Louisiana State Police were tasked with locating the unknown male shooter in chef pants, but were ultimately unsuccessful. While numerous victims were questioned, none were able to identify either shooter. As a result of the investigation, both Odom and the defendant were sought by police.

         Shortly after the shooting, NOPD questioned Benvenuti, who was hit by four bullets in the back of his leg, foot and buttock. Benvenuti, a longtime friend of the defendant, was initially uncooperative in the investigation. Benvenuti identified Parent, Cooper and Kelley as the group he was with that night, but failed to identify Odom or the defendant.[9] He did not indicate he witnessed the shooting or saw the defendant shoot in self-defense.

         On July 2, 2014, Odom turned himself in with his attorney present at the Gretna Police Station. Odom completed an eyewitness identification form where he failed to identify the defendant, who was pictured in the six person line-up. In that statement, he actively misled the police by indicating that two others pictured in the line-up had similar qualities to the shooter, such as a similar nose or skin complexion. He maintained that he did not know the defendant and did not inform investigators that the shooting was in self-defense.

         The defendant was ultimately arrested on July 4, 2014 in Mississippi. While still in custody in Mississippi, the defendant made no statements to police, invoking his right to counsel. As the investigators were leaving the room, he insisted that the police had the wrong person. He fought extradition, but was ultimately returned to Louisiana, where he was indicted on August 22, 2014.

         PROCEDURAL HISTORY

         On August 22, 2014, the defendant was indicted by a grand jury charging him with one count of manslaughter, a violation of La. R.S. 14:31, relative to the death of Ms. Thomas (Count 1) and one count of attempted second degree murder, a violation of La. R.S. 14:(27)30.1, relative to shooting at the unknown male, (Count 2).[10] On August 27, 2014, the defendant pled not guilty to both charges.

         The case proceeded to trial on January 11, 2016, concluding on January 15, 2016.[11] After the jury retired for deliberation, the defendant moved for a mistrial, based upon the State's closing and rebuttal argument, including misstatements of fact and law, which the trial court denied. The jury returned a verdict of guilty as charged of manslaughter on Count 1 and guilty of attempted manslaughter on Count 2.[12] On April 1, 2016, the defendant filed a motion for new trial, which was denied. On April 4, 2016, the defendant was sentenced to forty years imprisonment at hard labor on Count 1 and twenty years imprisonment at hard labor on Count 2, with the sentences to run consecutively. This appeal followed.

         ERROR PATENT

         A review of the record reveals no errors patent under La C.Cr.P. art. 920.

         DISCUSSION

         Assignment of Error No. 1:

         In his first assignment of error, the defendant attacks the sufficiency of the evidence in two respects. First, he argues that there is insufficient evidence to support his conviction for attempted manslaughter because the State failed to disprove that he shot the unknown male in self-defense or in defense of others. Second, he contends there is insufficient evidence to support his conviction for the manslaughter because the unknown male fired the fatal shot that killed Ms. Thomas.

         Under Jackson v. Virginia, 443 U.S. 307 (1979), this court must determine that the evidence, viewed in the light most favorable to the prosecution, "was sufficient to convince a rational trier of fact that all the elements of the crime had been proved beyond a reasonable doubt."[13] The statutory test of La. R.S. 15:438 "works with the Jackson constitutional sufficiency test to evaluate whether all the evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury."[14]

         Attempted Manslaughter

         The State charged the defendant with attempted second degree murder under La. R.S. 14:(27)30.1.[15] The jury found the defendant guilty of attempted manslaughter, which is a responsive verdict to attempted second degree murder.[16]Whenever there is an attempt to commit any crime it is a specific intent crime.[17]The defendant admits that he fired his gun four times at the unknown male, arguing only that he cannot be convicted for his actions because he fired in self-defense and/or defense of his friends and that his actions were thus legally justified. [18]

         "This court has consistently declined to settle definitively the issue of which party bears the burden of persuasion in proving self-defense in a non-homicide case."[19] While some cases suggest that the defendant must prove by a preponderance of the evidence that he acted in self-defense, others indicate the State has to establish beyond a reasonable doubt that the defendant did not act in self-defense.[20] We need not resolve this issue here because we find that under either standard, the evidence is sufficient to support a finding that the defendant did not act in self-defense.[21]

         In a non-homicide matter, a justification defense mandates a two-step review, specifically: (1) a subjective inquiry into whether the force was apparently necessary and (2) an objective inquiry into whether the force used was reasonable under the circumstances.[22] Furthermore, "[t]he trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge upon the fact finder's discretion 'only to the extent necessary to guarantee the fundamental protection of due process of law.'"[23]

         On appeal, the defendant argues that the State failed to prove that he did not act in self-defense or defense of others. Specifically, the defendant contends the State failed to show that he, Odom and Benvenuti DID NOT: (1) reasonably believe they were in imminent danger of death or receiving great bodily harm and (2) reasonably believe that the use of force was a necessary response. The defendant contends that there was no conflicting testimony from the only two eye- witnesses, Benvenuti[24] and Odom, [25] that: (1) their group did nothing to provoke the attack; (2) that the unknown male pulled a gun first, announced "I got that .40." and was the aggressor (arguing the words of the unknown male, coupled with the unknown male pointing a gun at the group, prompted appropriate defensive action);[26] (3) the defendant and his friends were in reasonable fear for their lives; and (4) the defendant had no choice but to act. Since he argues there was no evidence to suggest that he was the aggressor, the trial court improperly granted a jury instruction on the aggressor doctrine, thereby confusing the jury. Finally, the defendant argues that he fled the scene initially because the unknown male was still firing and then fled to Mississippi to obtain money for legal counsel.

         Testimony presented in the light most favorable to the prosecution established that Odom was the initial aggressor, surrounded by a large group of friends, when he instigated a confrontation with a lone unknown male, whom he claimed to have never seen before.[27] Odom testified that he shoved the unknown male prior to seeing any gun. The jury heard the testimony and evidence presented at trial and rejected the idea that the defendant's decision to fire at the unknown male was objectively reasonable, in light of the fact that the incident occurred on a crowded street, with many innocent bystanders. Further, the jury apparently determined that the use of a gun, to allegedly subdue the unknown male, was not apparently necessary to prevent an assault or offense. In addition, uncontroverted evidence presented at trial demonstrated that the defendant's claims of self-defense were not immediately disclosed to police.

         The defendant and Odom fled to Mississippi on June 30, 2014.[28]Odom testified they did not flee because of any guilt but ostensibly to obtain money for legal counsel. However, in his appellate brief, the defendant acknowledged he did not obtain an attorney until after he returned to Louisiana. While Odom turned himself in at the Grenta Police Station with his counsel present on July 2, 2014, the defendant remained at large. On July 4, 2014, a warrant was issued in Louisiana for the defendant's arrest. On the same day, officers developed information that the defendant was still in Mississippi, obtained a search warrant for that residence, and thereafter apprehended the defendant. His iPhone was retrieved when he was arrested. On July 12, 2014, the defendant was extradited to Louisiana. Once his iPhone was searched on December 30, 2014, investigators found the defendant made two prayers for forgiveness for his sins in two separate notepad entries on July 3, 2014. Specifically, the iPhone contained an admission that he should burn in hell, and another prayer for mercy and forgiveness.

         After a review of the evidence before this Court, we find that the jury "made reasonable credibility determinations in favor of the State"[29] and rationally rejected the alternative scenario presented by the defendant's friends, Odom and Benvenuti. Even assuming the burden of disproving beyond a reasonable doubt that the defendant acted in defense of self or others was on the State, a rational juror could have concluded that the evidence was sufficient to find the State carried their burden. i.e., the use of force by the defendant was not necessary.

         This Court finds, when "[v]iewing all the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that [the defendant] did not shoot the victim in self-defense."[30] This Court has long recognized that "[f]light and attempt to avoid apprehension indicates consciousness of guilt, and therefore, is one of the circumstances from which a juror may infer guilt."[31] The jury could have reasonably concluded that the defendant fled due to his guilt despite the alternate reasons Odom provided at trial. This assignment of error has no merit.

         MANSLAUGHTER

         The charge of manslaughter in this case[32] was based upon La. R.S. 14:31(2)(a), which provides that manslaughter is "[a] homicide[33]committed, without any intent to cause death or great bodily harm . . . [w]hen the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or any intentional misdemeanor directly affecting the person."[34] Thus, "[t]he Louisiana legislature has defined felony manslaughter as a homicide committed without intent '[w]hen the offender is engaged in the perpetration or attempted perpetration of [an unenumerated] felony.'"[35]

         Louisiana jurisprudence has long held that because "penal statutes must be strictly construed and cannot be extended to cases not included within the clear import of [statutory] language "the legislative intent in employing the word 'offender' contemplated the actual killer." [36]

         In Garner, Robert Garner engaged in an altercation with a bartender, James Robinson, in a saloon.[37] Defendant Garner left, but later returned with a knife and attempted to kill bartender Robinson.[38] In self-defense, Robinson pulled a gun, firing at Garner but instead shot and killed George Carson, an innocent bystander.[39]Garner was charged with the attempted murder of Robinson and the manslaughter of Carson. Garner moved to quash the bill of indictment as to the manslaughter charge, noting it was Robinson who shot and killed Carson.[40] The trial court granted the motion to quash, which was ultimately affirmed by the Louisiana Supreme Court. Thus, the Garner decision strictly construed the felony manslaughter statute that employed the term "offender" as meaning that a defendant or an accomplice must perform the direct act of killing. That Garner remains valid jurisprudential authority is indisputable. It has been cited repeatedly by the Louisiana Supreme Court to reiterate specifically that in this state, the felony murder rule requires that "a direct act of the defendant or his accomplice caused the death of the victim."[41] Thus, under Garner, when A shoots at B and B returns fire, killing C, A cannot be found guilty of the murder or manslaughter of C.[42] This jurisprudential theory is referred to as the agency test.

         This Court must determine whether the evidence, viewed in the light most favorable to the State, "was sufficient to convince a rational trier of fact that all the elements of the crime had been proved beyond a reasonable doubt."[43] Specifically keeping in mind, that in Louisiana, with a case such as this, when A shoots at B and B returns fire, killing C, A cannot be found guilty of a homicide against C because the act resulting in the homicide was neither actually or constructively the act of A.[44]

         Under Louisiana law and jurisprudence, the defendant's manslaughter conviction for the death of Ms. Thomas cannot be upheld because he did not physically kill her and was not acting in concert with her actual killer, the unknown male. It is undisputed in this matter that the unknown male fired the fatal shot that killed Ms. Thomas. The factual situation in this case, as the State presented it to the jury, is that the defendant shot at the unknown male who returned fire, shooting and killing Ms. Thomas, similar to the factual situation presented in Garner.[45]Because Garner is indistinguishable from the instant case, we find that the defendant's argument that there is a lack of sufficient evidence to support his conviction for manslaughter has merit.

         While this Court finds the evidence is insufficient to support a conviction of manslaughter, that finding does not end our review. When a Louisiana court reverses a conviction for insufficiency of the evidence, it has the authority to review the record and enter a conviction for a lesser-included offense when such conviction is supported by the record.[46] Along with the authority to do so, it can be reasoned that this Court additionally has a duty to enter a conviction for the lesser included offense in such circumstances.[47] Under Louisiana law the verdicts responsive to a charge of manslaughter are as follows: guilty, guilty of negligent homicide, not guilty.[48] Accordingly, we consider whether there is sufficient evidence to support a verdict of negligent homicide.

         Negligent homicide is a lesser included offense to the charge of manslaughter and is defined as "the killing of a human being by criminal negligence."[49] "Unlike general or specific criminal intent, criminal negligence is essentially negative. Rather than requiring the accused intend some consequence of his actions, criminal negligence is found from the accused's gross disregard for the consequences of his actions."[50] The mental state requirement for criminal negligence "exists when, . . . there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances."[51]

         In State v. Parker, testimony established that the defendant had been subjected to harassment and was likely fearful at the time he shot and killed the victim.[52] However, evidence also established that the defendant fired at an unknown individual, through a closed door, knowing that several members of the household were expected to return that day.[53] The defendant in Parker was found guilty of negligent homicide, as "[a] rational trier of fact could find that, although the defendant was confronted with a frightening experience, he nevertheless responded in a manner grossly out of proportion to the danger he faced."[54]

         Overall, "the common element in negligent homicide cases involving firearms is a finding that a defendant acted in an unreasonably dangerous or unsafe manner at the time of the discharge of his weapon."[55] Thus, this Court must review the record to determine whether the defendant's actions exhibited a "gross disregard for the consequences of his actions."[56] Further, the evidence must support a finding that the defendant's conduct demonstrated a "gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances."[57] Testimony at trial, discussed at length above, established that the defendant, while in the midst of a crowd, intentionally fired a gun at an unknown male involved in a confrontation with the defendant and his group of friends.[58] Evidence presented at trial also established that the defendant, prior to firing his gun, was aware the unknown male also possessed a gun. It was therefore reasonably foreseeable that the defendant, in an exchange of gunfire, could injure or kill an innocent bystander, which was the exact result in this case. We find that such action amounted to a "gross deviation below the standard of care" which would be expected of a reasonably prudent person in that situation.[59]Accordingly, we vacate the defendant's conviction and sentence for manslaughter, enter a judgment of conviction of negligent homicide, and remand the matter to the trial court for resentencing on that charge.

         OPINION TESTIMONY

         Assignment of Error No. 2:

         In his second assignment of error, the defendant argues the trial court erred in allowing the opinion testimony of Lt. Gernon and Det. Bruggeman, which usurped the jury's role and constituted a comment on the credibility of other witnesses. The defendant also complains of the State's use of the opinion testimony of Meredith Acosta (hereinafter "Ms. Acosta").[60]

         Essentially, the defendant argues the jury convicted him based solely upon this improper opinion testimony, as the only two eye-witnesses contradicted this testimony. Prior to trial, the defendant asserts that Lt. Gernon's testimony was that the video was too distorted to determine what was in the unknown male's hands. This testimony conflicted with his subsequent trial testimony, where he opined that the footage showed the unknown male carrying one beer bottle in his left hand when he walked up to the group and later two beer bottles in his left hand as he fled the scene. The defendant avers that Lt. Gernon's testimony was essentially expert testimony as to what was seen in the video, even though the jurors did not need expert testimony. Additionally, Lt. Gernon was never qualified as an expert. The defendant argues Lt. Gernon was improperly allowed to offer an opinion as to the guilt or innocence of the defendant. The State submits this argument should not be considered by this Court as this issue was not preserved for review. Defense counsel did not lodge contemporaneous objections at trial.

         La. C.Cr.P. art. 841(A) provides:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

         Absent a contemporaneous objection at trial, this Court will not consider an assignment of error raised for the first time on appeal.[61] In addition, "a defendant is limited on appeal to those grounds for the objections which he articulates at trial."[62] A review of the trial transcript reveals that defense counsel did not object to any testimony by Lt. Gernon on the grounds first asserted on appeal.[63] The requirement of a contemporaneous objection serves dual purposes, which include:

(1) to put the trial court on notice of the alleged irregularity or error, so that the court can cure the error; and (2) to prevent a party from gambling for a favorable outcome and then appealing on errors that could have been addressed by an objection if the outcome is not as hoped.[64]

         A review of the testimony of Det. Bruggeman cited by defendant similarly shows no contemporaneous objection on the grounds asserted on appeal. Considering the lack of contemporaneous objections on the grounds asserted on appeal, this assignment of error was not preserved for review.

         The defendant also argues that Ms. Acosta improperly offered opinion testimony. However, both parties stipulated and the trial court qualified her as an expert in firearms, identification and examination. She testified on the State's redirect that based on the size of a Smith and Wesson forty-caliber gun, she would expect to see the outline of the four inch barrel if it were to be captured on the video. While defense counsel objected to this testimony, the trial court properly sustained the objection, noting she was an expert. Therefore, we find this assignment of error, as to Ms. Acosta, to be without merit.

         OTHER CRIMES EVIDENCE

         Assignment of Error No. 3:

         In his third assignment of error, the defendant argues that his right to a fair trial and due process were violated by the improper introduction of evidence of previous criminal activity, namely: (1) that the gun fired by the defendant was used in a 2012 shooting; (2) evidence through direct testimony of Benvenuti regarding his personal drug use and drug dealing in the time surrounding the shooting; (3) and Odom's alleged "drug deal gone bad" earlier that evening. Specifically, the defendant argues this evidence impugned his character, created guilt by association and prejudice, and was irrelevant to any issue at trial.

         As to other crimes evidence of the defendant, specifically evidence that the gun used by the defendant was traced to another crime:

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. La. C.E. art. 404B(1); State v. Prieur, 277 So.2d 126, 128 (La. 1973). However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted. State v. Dauzart, 02-1187 (La.App. 5 Cir. 03/25/03), 844 So.2d 159, 165. Evidence of other crimes is allowed to prove 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 to such an extent that the State could not accurately present its case without reference to the prior bad act. La. C.E. art. 404B(1); Id.[65]

         This Court will review the trial court's ruling on admissibility of other crimes evidence under an abuse of discretion standard.[66] "A trial judge, in deciding the issue of relevancy, must determine whether the evidence bears a rational connection to the facts at issue in the case."[67] An abuse of discretion will be found if the prejudicial effect outweighs its probative value.[68] In addition, "erroneous admission of other crimes evidence is subject to a harmless-error analysis."[69] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error."[70]

         The defendant argues that evidence that the gun he used in this incident was used in an unsolved 2012 shooting was improperly allowed at trial and prejudiced the jury against him.[71] The jury was only told that the nine-millimeter gun used by the defendant was also used in a 2012 shooting, not that the defendant used the gun in that shooting. The State contends that defendant's account of Ms. Acosta's testimony is misleading.

         A review of the record before this Court reflects that neither reference to the 2012 match was objected to by the defendant at trial. The defendant's failure to contemporaneously object at trial results in defendant's inability to raise this issue on appeal.[72] Therefore, this assignment of error was not preserved for review.

         The defendant also objects to the State's questioning of Benvenuti concerning his drug use just prior to the shooting and drug dealing in the French Quarter. The defendant argues this information prejudiced the jury against him and was irrelevant. The State maintains, in regards to other crimes evidence of Odom and Benvenuti, that issue was likewise not preserved for review on appeal. In addition, the State submits that the evidence regarding both Odom and Benvenuti's prior drug activity supported its theory of the case. Finally, the State contends the prohibition of other crimes evidence only applies to the other crimes of the defendant, not to the crimes of others.[73]

         This Court agrees that "the prohibition against other crimes evidence pertains to other crimes by the defendant, not other crimes of someone else."[74]Therefore, we find this assignment of error to be without merit.

         The defendant argues the next line of improper and unduly prejudicial questioning pertained to testimony regarding the earlier attempted robbery of Odom's marijuana. It is important to note that on January 8, 2016, the trial court heard the defendant's motion in limine to exclude evidence of the "drug deal gone bad" two hours prior to the defendant's arrival in the French Quarter. At that hearing, the defendant argued that the incident was irrelevant because it occurred before he arrived, would be highly prejudicial, and that the person involved in the earlier robbery was not the same unknown male who shot Ms. Thomas. In response, the State argued that the earlier robbery was relevant for the narrative momentum, was res gestae and necessary to tell the complete story of what happened that night. The trial court agreed with the State, finding that the earlier robbery was part of the State's res gestae and denied the motion in limine.

         The State's theory of the case was that the unknown male, who shot and killed Ms. Thomas, was the same person who earlier robbed Odom at gunpoint. As a result of the robbery, Odom called the defendant to come to Bourbon Street armed with a gun. Odom testified that the unknown male involved in the later shooting was someone he never saw before. At trial, Odom described the two unknown men he encountered earlier during the robbery as skinny black males; one was taller, and his hair was pulled back in a rubber band, and the shorter man had dreadlocks. However, the State's theory of the case was that the two incidents were connected and this evidence helped to complete their narrative.

Under Louisiana Code of Evidence Art. 404(B), other crimes evidence is also admissible 'when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.' For other crimes to be admissible under this exception, they must bear such a close relationship with the charged crime that the indictment or information as to the charged crime can fairly be said to have given notice of the other crime as well. State v. Schwartz, 354 So.2d 1332, 1334 (La.1978).
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 it. It is evidence which completes the story of the crime by showing the context of the happenings. State v. Brewington, 601 So.2d 656, 657 (La.1992). Evidence of crimes committed in connection with the crime charged does not affect the accused's character because the offenses are committed as parts of a whole. Id. The inquiry to be made is whether the other crime is 'part and parcel' of the crime charged, and is not offered for the purpose of showing that the accused is a person of bad character. State v. Prieur, 277 So.2d 126 (La.1973).
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 during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar, 414 So.2d 741, 751 (La.1982); State v. Kimble, 407 So.2d 693, 698 (La.1981).
In addition, as this Court has observed, integral act (res gestae ) evidence in Louisiana incorporates a rule of narrative completeness without which the state's case would lose its "narrative momentum and cohesiveness, 'with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.' Colomb, supra, 98- 2813 at 4, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 186, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997)).[75]

         At hearings prior to trial, the State presented evidence of the aborted marijuana sale and armed robbery under the theory that the earlier armed robber was the same person as the unknown male who later confronted the group.[76] This Court notes that the State failed to provide testimony in support of this theory at trial. However, the State's theory was supported by the fact that the unknown male walked up to Odom and made an apparent reference to a forty-caliber handgun, stating "I got that .40." and that gun was similar to the one used in the earlier attempted robbery.

         The State's theory of the case was that Odom and Benvenuti both sold drugs in the French Quarter. The State theorized as part of their overall case that Odom called the defendant to the French Quarter, armed with a gun, in a direct response to the earlier robbery. Thus, the State argued that evidence was relevant as part of the res gestae -i.e., the continuous chain of events that eventually lead to the deadly shooting. We find this information was relevant to support the State's theory that the shooting was not in self-defense, but related to the previous incident, which occurred only hours before in a "continuous chain of events" and "this testimony was admissible under the res gestae exception." Therefore, we find this assignment of error to be without merit.[77]

         RIGHT TO PRESENT A DEFENSE

         Assignment of Error No. 4:

         In his fourth assignment of error, the defendant argues he was deprived of a fair trial and due process by the trial court's (1) ordering the State to provide an un-redacted police report containing the identity of witnesses five days prior to trial and (2) denying his motion for funds to hire a private investigator to locate witnesses discovered in the un-redacted police report. While the defendant acknowledges that both issues were addressed in pre-trial writs, he argues that the "law of the case" doctrine should not apply.

         UN-REDACTED POLICE REPORT

         The "law of the case" doctrine was discussed by this Court in State v. Berniard as follows:

         This Court explained our application of the law-of-the-case doctrine in State v. Duncan, 11-0563, p. 26 (La.App. 4 Cir. 5/2/12), 91 So.3d 504, 521, as follows:

Under the law-of-the-case doctrine, courts of appeal generally refuse to reconsider their own rulings of law on a subsequent appeal in the same case. Pitre v. Louisiana Tech University, 95-1466, p. 7 (La.5/10/96), 673 So.2d 585, 589. This court has stated that an appellate court will not reverse its pretrial determinations unless the defendant presents new evidence tending to show that the decision was patently erroneous and produced an unjust result. State v. Gillet, 99-2474, p. 5 (La.App. 4 Cir. 5/10/00), 763 So.2d 725, 728. The law of the case? [sic] doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. State v. Molineux, 11-0275, p. 3 (La.App. 4 Cir. 10/19/11), 76 So.3d 617, 619.

         Our application of the law of the case doctrine is discretionary, and this court will generally not follow the doctrine if the defendant can show that the prior ruling was clearly erroneous or produced an unjust result. [Citations omitted.][78]

         In State v. Brown, this Court expounded further on the doctrine in the context of supervisory writs:

The purpose of granting the writ, even though we are denying relief, is because a ruling on the merits does not have precedential value unless the appellate court decides to grant the writ and exercise its supervisory jurisdiction. See Johnson v. Mike Anderson's Seafood, Inc., 13-0379, pp. 5-6 (La.App. 4 Cir. 6/11/14), 144 So.3d 125, 130 ("An appellate court cannot affirm, modify, or reverse a decision by a lower court without granting an application for supervisory review."). See also Toston v. Pardon, 02-0451 (La.2/13/02), 809 So.2d 973 ("writ grants...with reasons do have precedential effect, and guide trial judges and trial attorneys in future matters") (Calogero, J., dissenting). Conversely, the denial of a writ does not constitute "law of the case" and therefore does not bar subsequent relitigation of the same issue. See State v. Fontenot, 550 So.2d 179 (La.1989) (a denial of supervisory review "does not bar consideration on the merits of the issue denied supervisory review"); State v. Fields, 2013-1493, p. 35, n. 6 (La.App. 4 Cir. 10/8/14), 151 So.3d 756, 778 (law of the case does not apply when appellate court denies a writ); State v. Davis, 09- 0438, pp. 12-13 (La.App. 4 Cir. 1/13/10), 30 So.3d 201, 208-09 (same). [Footnote omitted.]
Moreover, we have previously found that the law-of-the-case doctrine is not applicable to a writ denial, even when the denial is accompanied by language purporting to rule on the merits of the issue. See e.g., State v. Ellis, 13-1401, pp. 24-26 (La.App. 4 Cir. 2/4/15), 161 So.3d 64, 78-80 (court of appeal denied writ, finding "that the trial court did not err in denying the relator's motion to recuse"; on appeal, court considered same issue, finding prior writ denial did not constitute law of the case); Johnson, 13-0379, p. 5, 144 So.3d at 130 (finding that law of the case would not apply to prior writ denials even if the writs had addressed the issue of admissibility of evidence). See also Davis v. Jazz Casino Co., 03-0276 (La.6/6/03), 849 So.2d 497, 498 (any language in an appellate court's writ denial purporting to rule on the merits of the lower court's actions "is without effect").[79]

         The defendant's right to obtain an un-redacted police report was extensively litigated pretrial. In discovery, the defendant was provided with a supplemental report of the police investigation, with some of the witnesses' identities and contact information redacted to protect their safety. The defendant then sought the un-redacted report containing witnesses' names, but the trial court denied the request and the defendant sought supervisory review. In State v. Le, 2015-0014 (La.App. 4 Cir. 4/2/15), 165 So.3d 242, this Court reversed the trial court's denial of the defendant's motion for an un-redacted report and remanded with instructions for the trial court to conduct an ex parte proceeding to be maintained under seal and requiring the State to make a prima facie showing why the un-redacted reports should not be disclosed to the defense. Following the hearing, the trial court again denied the defendant's motion, maintained the redactions to the police report because the State made a sufficient prima facie showing. This Court granted the defendant's writ application seeking review of that ruling, but affirmed the trial court's decision.[80] This Court's grant of the writ but decision to affirm the trial court's judgment indicates a clear intent that the Court's opinion should be considered "law of the case."[81] While the defendant continually sought immediate disclosure of the un-redacted report, the State indicated it would disclose that information immediately prior to trial. Following a status hearing on December 15, 2015 and December 21, 2015, the trial court ordered disclosure of the un-redacted report by January 6, 2016 at 12 p.m. The defendant filed a writ application and a request for a stay with both this Court and the Louisiana Supreme Court, both of which were denied.

         Therefore, the inquiry is whether there is anything in the record now before this Court that would merit reconsidering this Court's prior decision affirming the trial court's judgment that the defendant was not entitled receive the un-redacted police report earlier than five days prior to trial.

         A review of the record before this Court confirms that the defendant has failed to demonstrate that this Court's prior decision should be reconsidered, as the issues were fully and properly considered. [82] This Court finds that the law of the case doctrine applies to our earlier rulings in this matter, "[t]o the extent that the parties seek in their assignments of error for us to reverse our prior rulings."[83] As the record before us demonstrates, the defendant has failed to show "palpable error or manifest injustice" and thus we find this assignment of error is without merit.[84]

         SPECIAL FUNDING

         The second argument defendant presents in this assignment of error is that the trial court erred in denying his motion for special funding to hire a private investigator to locate witnesses in the un-redacted police report.

         On December 28, 2015, the defendant filed a motion for special funding to help prepare his defense, requesting $50, 000 to obtain investigators, private process servers, and to transport witnesses. Attached to that motion were invoices from the defense counsel, along with an affidavit of indigency and poverty signed by the defendant.[85] This request was denied by the trial court.[86] In addition, on January 4, 2016, one week prior to trial, the defendant filed a motion seeking to order the State to subpoena witnesses for trial. He maintained this was necessary as the defendant would not receive the un-redacted report until five days prior to trial. The motion was denied on the same day.[87]

         Finally, on January 8, 2015, the defendant filed a request for an expedited hearing to determine his indigency, contending that his financial circumstances had changed since his counsel was hired. In the hearing transcript, the trial court noted that defense counsel previously attached the billing invoices, along with an affidavit of indigency and poverty signed by the defendant, to his motion for special funding. Defense counsel indicated that at the time he was hired, he did not expect that the defendant and his family would be unable to continue to pay the expenses.[88] The trial court denied the defendant's motion.[89] The trial court further noted that "even if the status had changed, I have nothing to review to see if the status has changed."[90]

         The defendant submits he was denied a fair trial and the right to present a defense, citing the trial court's denial of his motion to obtain funds to hire an investigator or have the State issue subpoenas. The defendant argues he needed expert assistance in the form of a private investigator to locate and interview the witnesses that were not disclosed until five days prior to trial. Specifically, he notes that investigating and preparing for the late-disclosed witnesses created a large, unbearable financial burden. The defendant alleges he made a threshold showing sufficient to require the State to provide him with funds.

         La. R.S. 15:175 (A)(1)(a) provides that "[a] preliminary inquiry and determination of indigency of any accused person shall be made by the court not later than arraignment and such determination may be reviewed by the court at any other stage of the proceedings." "[A] trial court may reassess a determination of indigency at any time, in recognition of the fact that a defendant's financial status may not be static and that a defendant may become indigent at any point in the proceedings."[91] Once a defendant has demonstrated his indigency, even if represented by private counsel, he may seek funds from the State to assist in his defense. State v. Touchet established the showing required to demonstrate a need for additional funds, noting a defendant "must establish that there exists a reasonable probability" that the services of an expert would both be of assistance and that "denial of expert assistance would result in a fundamentally unfair trial."[92] Our Supreme Court explained further:

To meet this standard, a defendant must ordinarily establish, with a reasonable degree of specificity, that the assistance is required to answer a substantial issue or question that is raised by the prosecution's case or to support a critical element of the defense. If the trial court finds that the indigent defendant is able to meet this standard, it is to authorize the hiring of the expert at the expense of the state.[93]

         The need for funds for an adequate defense may encompass an assortment of different types of assistance, including funds for a private investigator "because furnishing counsel to the indigent defendant is not enough if counsel cannot secure information on which to construct a defense."[94]

         This Court must consider two issues: (1) whether the trial court erred in failing to determine the defendant was indigent and, if so, (2) whether the defendant was prejudiced by that failure-i.e., whether the trial court's denial of special funding resulted in prejudice to the defendant at trial.

         In State v. Frank, supra, it was determined the trial court erred in failing to declare a defendant indigent in order to obtain special funding for psychiatric and mitigation expert assistance for the sentencing phase of her trial .[95] One week prior to trial, the defendant filed a motion to be declared indigent, which the trial court denied after conducting an evidentiary hearing.[96] At the evidentiary hearing, the defendant testified regarding her financial status and the funds available to her to pay for experts. The defendant testified that her mother procured her private attorney, that she owned no real property and her mother sold her furniture in order to pay the attorney's fees along with other bills. Further, as adduced from the record and the indigency hearing: the defendant had no income; the defendant had sold all her furniture to obtain funds which were used to pay existing debts and attorney's fees; had liquidated her retirement benefits which the court had already ordered be paid directly to court reporters; the defendant's mother was disabled; the defendant had no savings at the time of the hearing; and both the defendant and her attorneys submitted affidavits to the court attesting to the fact that she had exhausted all her funds. The Louisiana Supreme Court explained that, even if the defendant once had access to over $11, 000, those funds were exhausted, and pursuant to La. R.S. 15:175(A)(1)(a) a determination of Frank's indigency could be made at any point in the proceedings.[97] The Louisiana Supreme Court further determined that that trial court abused its discretion in not declaring the defendant indigent but noted that the inquiry did not end there. Courts must delve further and ask "what, if any, prejudice the defendant suffered as a result of not being declared indigent."[98] The trial court's finding that Frank was not indigent had no bearing on the outcome of her case during the guilt phase, thus there was no prejudice in that respect.[99] However, the Supreme Court concluded the trial court committed error by failing to allow Frank the chance to make a showing under Touchet that she required funding to present mitigating evidence during the penalty phase.[100] The Supreme Court in Frank noted:

By not allowing a hearing on the matter, the trial court did not provide this court with adequate information upon which to review the question of whether the defendant was entitled to the expert assistance she requested for the penalty phase of her trial and what prejudice she may have suffered as a result of not obtaining state-funded assistance.[101]

         The case was remanded to the trial court in order to conduct an evidentiary hearing which would allow the defendant the opportunity to make a showing as to ...


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