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State v. Porter

Court of Appeals of Louisiana, Third Circuit

August 14, 2019



          M. Bofill Duhé District Attorney Nicole Burke W. Claire Howington Assistant District Attorneys Louisiana, 16th Judicial District Attorney's Office Counsel for Applicant: State of Louisiana

          Amanda Cannon Hazel Coleman-Chavis Attorneys at Law 16th JDC Public Defenders Office Counsel for Respondent: Brian Anthony Porter

          Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.


         In this second degree murder case against Brian Anthony Porter (Defendant), the State of Louisiana (State) has applied for rehearing on this court's earlier denial of its writ application which sought review of the trial court's ruling on the admissibility of other crimes evidence under La.Code Evid. art. 412.4. In its earlier application, this court denied the writ as untimely. For reasons that follow, we grant rehearing, grant the State's writ application, and make it peremptory.


         Defendant and Penny Porter (Penny) were married on May 3, 2013. In the first year of their marriage, the police were dispatched to disturbances at the residence of Defendant and Penny on October 4, 2013, January 26, 2014, and April 17, 2014.[1] A bill of information, charging Defendant with domestic abuse battery for the October 4 incident was brought; however, the record does not show the disposition of that charge. A second bill of information charging Defendant with domestic abuse battery, first offense, and resisting arrest for the January 26 incident was filed; Defendant was convicted on November 12, 2014, on both charges. As to the April 17 incident, a third bill of information was filed against Defendant on May 15, 2014, charging Defendant with domestic abuse battery by strangulation and aggravated assault. At the time of Penny's stabbing death on December 12, 2014, at her residence, this third bill of information had not yet come to trial.

         On April 15, 2015, a grand jury indicted Defendant for the second degree murder of his wife, Penny.[2] Shortly thereafter, the State filed notice of its intent to use other crimes evidence and moved for a pretrial determination of the admissibility of the same, citing to La.Code Evid. art. 404(B). Within days of that notice, the State amended its notice of intent to show it intended to submit the other crimes evidence under La.Code Evid. art. 412.4, specifically addressing evidence of similar crimes, wrongs, or acts in domestic abuse cases.

         Over the course of two days of hearings on October 25, 2018, and November 19, 2018, [3] the trial court found the incident that occurred on October 4, 2013, was inadmissible. It also determined that the incident that occurred on January 26, 2014, would only be admissible to refute a claim of self-defense should Defendant make such an assertion. Finally, the trial court concluded that the incident that occurred on April 17, 2014, was admissible.

         On March 21, 2019, the State filed a writ application with this court, seeking supervisory review of the trial court's ruling which determined the admissibility of other crimes evidence. After reviewing the State's writ application and all appended documents, this court denied the State's application as untimely filed. After referencing Uniform Rules-Courts of Appeal, Rule 4-3 which requires that any motion to extend the return date must be filed with the trial court within the original return date or one previously timely extended, we stated:

The trial court set the original return date for January 18, 2019. The State filed its motion for an extended return date on February 15, 2019, which was nearly a month after [January 18, 2019], the original return date. The State's motion for an extended return date contained no explanation of why it was unable to timely seek an extension of the original return date. Additionally, the State neither alleged nor showed there were any additional motions for or grants of a return date extension. Therefore, the State's writ application was untimely filed on its face.

         The State then timely filed an application for rehearing.


         In its application for rehearing, the State claimed its writ application was timely filed and explained it had failed to attach an additional return date order which set February 18, 2019, as an interim return date. The State then attached a copy of the previously missing return date order. Our review of this order shows the following: (a) a handwritten notation, initialed by the trial court, striking through the original January 18, 2019, return date; and (b) a replacement return date of February 18, 2019, was set. Although neither the trial court's initials nor the changed return date is dated, the ruling, stamped as having been filed on December 18, 2018, is well before the original return date. Because the State filed its subsequent motion seeking an extended return date on February 15, 2019, prior to the February 18, 2019, return date, the trial court properly extended the return date to March 20, 2019. Therefore, because the State's application for supervisory review was postmarked March 20, 2019, the new documentation shows the State timely filed its writ application with this court.

         In instances such as this, where an original writ application has been denied as untimely based upon a lack of proper documentation and that documentation is subsequently provided in a timely filed application for rehearing, we find it proper to grant rehearing to address the merits of the State's claim.


         As stated earlier, the State sought to admit evidence of three[4] previous incidents of domestic violence between Defendant and Penny in its prosecution of Defendant for second degree murder. In support of its motion, the State presented the testimony of the investigating officers of each incident, as well as photographic evidence of Penny's injuries, and the transcript of Defendant's trial involving the incident of January 26, 2014.

         Lance Laviolette (Mr. Laviolette) was the first witness to testify about the incident of October 4, 2013. Although no longer a police employee, Mr. Laviolette was an employee of the St. Martinville Police Department in October 2013. At that time, Penny, who was married to and living with Defendant on Denier Street in St. Martinville, came to the police department to pursue domestic violence charges against Defendant for the incident of October 4.[5] Mr. Laviolette took Penny's statement, photographed her injuries, and interviewed Defendant.

         Penny stated that the argument between her and Defendant concerned Defendant's employment. As the argument ensued, Defendant pushed her into a dresser, creating bruises which were visible to Mr. Laviolette. At that time, Mr. Laviolette photographed the bruises on Penny, and those photographs were introduced into evidence [6]

         Mr. Laviolette interviewed Defendant. The Defendant admitted he pushed Penny, but claimed she initiated the violence by hitting and slapping him first. Mr. Laviolette did not observe bruises on Defendant's body. Subsequently, Mr. Laviolette arrested Defendant for domestic abuse.

         The State next called Jordan Robeaux (Deputy Robeaux) to testify about the incident of January 26, 2014. At the time of the incident, Deputy Robeaux, now employed with the St. Johns Parish Sheriff's Office, worked with the Iberia Parish Sheriff's Office. On January 26, 2014, he was dispatched to Mike's Inn Hotel in New Iberia, where Penny and Defendant were living, because a female reported that her husband had attacked her.

         Deputy Robeaux testified that he met Penny when he arrived; she was very upset and claimed her husband physically attacked her. He observed a red discoloration on the side of her neck along with fresh scratch marks. Shortly after law enforcement went to the location, Defendant became very irate, and a scuffle between Defendant and law enforcement ensued. Defendant was transported to the hospital because, after Defendant was handcuffed, he lost his footing on the way to the police unit and hit his face on the ground. Deputy Robeaux was unable to obtain a statement from Defendant at that time because Defendant was uncooperative. Ultimately, law enforcement arrested Defendant for domestic abuse battery, resisting an officer, and disturbing the peace by profanity. After conducting a trial, the trial court found Defendant guilty of domestic abuse battery, first offense, and resisting an officer. The State entered the misdemeanor trial transcript into evidence in support of its motion to present other crimes evidence at Defendant's second degree murder trial.

         The State called Brandon Blood (Officer Blood), a police officer employed by the Broussard Police Department, as a witness, who was involved in the incident of April 17, 2014. On that date, Officer Blood was a patrolman working for the Iberia Parish Sheriff's Office. Officer Blood testified that, on April 17, 2014, 9-1-1 received a hang-up call. According to 9-1-1 protocol, Officer Blood was dispatched to the address that originated the call, 100 West Santa Clara.[7] Officer Blood and his partner walked the area to determine if they could hear or see anything. They eventually heard a woman arguing through a closed door. They then listened for a while to determine whether everything was okay.

         Officer Blood said that they heard a male making sexual advances while the woman started to say things like, "get off of me," and, "don't touch me." The officers knocked on the closed door for the purpose of preventing a physical altercation. Defendant and his wife opened the apartment door. Penny had bruises around her neck that were caused either by hands or by a rope. Penny also had marks on her legs, feet, and toes; one of her toes was cut. Officer Blood identified the photographs he took of Penny on April 17, 2014, and the State introduced those pictures into evidence.[8] Defendant was unmarked. After speaking with Defendant, Officer Blood arrested him for domestic abuse battery by strangulation and for aggravated assault. The aggravated assault arose because the officers found a knife in the bathroom.

         Officer Blood identified State's Exhibit Number 4 as photographs of Defendant and the knife on the night of the altercation. The prosecution then introduced State's Exhibit Number 4 into evidence. State's Exhibit Number 4 consists of two photographs of a restroom and two photographs of Defendant.[9]

         On cross-examination, Officer Blood said that Defendant denied that there was any problem when he answered the door and further denied injuring his wife. Nevertheless, Penny explained to Officer Blood that Defendant was responsible ...

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