FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 522-053,
SECTION "D" Honorable Paul A Bonin, Judge
Cannizzaro District Attorney Kyle Daly Assistant District
Attorney DISTRICT ATTORNEY'S OFFICE ORLEANS PARISH
COUNSEL FOR STATE OF LOUISIANA
Harwell Bitoun Louisiana Appellate Project P. O. COUNSEL FOR
composed of Judge Edwin A. Lombard, Judge Joy Cossich
Lobrano, Judge Sandra Cabrina Jenkins
A. Lombard, Judge
appeal is from a manslaughter conviction. After review of the
record in light of the applicable law and arguments of the
parties, the defendant's conviction is reversed.
defendant, Trae Williams, was charged on October 2, 2014,
with the second-degree murder of Eddie Salvant, III. The
defendant pleaded not guilty at his arraignment on October
15, 2014. The defendant's motions to suppress the
identification, statement, and evidence were denied on
October 21, 2015.
jury was unable to reach a verdict in the defendant's
first trial and ended in a mistrial on June 14, 2017. At his
second trial, which began on April 23, 2018, the jury
returned a responsive verdict on April 24, 2018, by a 10-2
vote. The defendant's motions for new trial and for
post-verdict judgment of acquittal were denied and, after
being adjudicating a second-felony offender on July 27, 2018,
was sentenced to sixty years at hard labor. On September 20,
2018, the district court denied the defendant's motion to
reconsider the sentence and granted his motion for appeal.
appeal was timely filed.
Evidence Adduced at Trial
April 9, 2014, the New Orleans Police Department (NOPD)
received a 911 call at 4:06 PM reporting a shooting at the
intersection of Eliza and Lebouef Streets in
Algiers. Detective Theophilis Kent responded,
arriving at the scene approximately forty-five minutes after
the shooting, and conferred with the responding officers and
crime lab personnel on the scene. Detective Kent testified
that when he left the crime scene that day, he had one name
of a possible suspect, although no witnesses voluntarily
spoke with the police officers. Further canvassing of the
neighborhood the next day for witnesses and surveillance
video was fruitless.
later (May 8, 2014), Detective Kent interviewed Kendall Sylve
who was incarcerated in Orleans Parish Prison on a pending
burglary charge. During the interview, Mr. Sylve identified
the defendant in a photographic line-up but refused to
memorialize the identification by signing the photo. In
mid-May, however, Mr. Sylve contacted Detective Kent,
indicating he had additional information which he was willing
to supply in the presence of his attorney. Accordingly, on
June 26, 2014 Detective Kent met with Mr. Sylve and his
defense counsel, as well as a representative of the District
Attorney's Office. At this meeting Sylve gave a recorded
statement, identified the defendant as the shooter from a
photo lineup, and signed his name to the photo he identified.
Based on this identification, an arrest warrant was issued
for the defendant.
defendant's father and victim's half-brother, Curtis
Williams, Jr., testified that he was the son of Verna
Williams and Curtis Williams, Sr., that he was serving a
seventy-eight year sentence for attempted murder, and that he
had talked to his mother (now deceased) after his brother was
T'she Salvant identified herself as the victim's
daughter and the defendant's cousin. Ms. Salvant stated a
couple of days before the shooting she received a phone call
from her father who was angry and stated that he had been in
an altercation with his stepfather, Curtis Williams, Sr. .
When she arrived at the house at 1422 Eliza Street, her
father told her he had dialed 911 because of the altercation
and that "Trae and Curtis was going to kill him."
She conceded that the police never arrived and, although she
requested them, she never received any documents related to
the purported 911 call. She related that her father visited
his mother daily but did not get along with his stepfather.
In response to the prosecutor's question, she agreed that
the defendant and his grandfather were close, explaining that
the defendant grew up in the house with his grandparents and
"Curtis practically raised Trae." .
Sylve testified that the week "the incident went down,
" he was staying in a friend's house next door to
the Williams' home on LeBoeuf Street looking for and
using heroin. He acknowledged that he was a junk during that
period of his life and that he agreed to testify in exchange
for plea bargains he received in relation to his 2014
burglary and 2015 drug charges. According to Mr. Sylve's
testimony at trial, on the afternoon of the shooting, he was
playing basketball at the intersection of Lebouef and Eliza
streets "waiting on the dope man to get there" when
he heard the victim and his mother arguing in the Williams
home. He next saw the defendant enter the house as Mr.
Salvant exited it and, moments later as he was chasing a ball
towards the corner, he heard shots and looked up to see the
defendant shoot his uncle. Mr. Sylve insisted that he
immediately returned to playing basketball after the shooting
and remained there (very near the spot where the shooting
occurred and, thus, the victim's body) the entire time
the police were on the scene but the police never spoke to
him or questioned him.
Sylve acknowledged that he had been in a fight with Mr.
Salvant the day before his murder over a DVD player and that
a family member suggested his name to the police as a suspect
after the shooting. Accordingly, when the police came to see
him in jail a month later after he was arrested on theft
charge, his main focus was to avoid being charged with the
murder. Thus, he told Detective Kent that he heard shots but
did not see the shooting, although he indicated that after
the shooting the defendant walked past him. Two days later,
however, Mr. Sylve's charge was upgraded to burglary and
he requested a second meeting with Detective Kent. At the
second meeting with Detective Kent, attended by Mr.
Sylve's attorney and a representative from the District
Attorney's office, Mr. Sylve identified the defendant in
a photographic line-up as the shooter and executed a
Memorandum of Understanding regarding his burglary charge.
Subsequently, while out on bond for the burglary charge, Mr.
Sylve was arrested for heroin and, again, negotiated a plea
deal with the State in exchange for his continued cooperation
in this matter.
appeal, the defendant raises four assignments of error: (1)
the district court erred in allowing inadmissible hearsay at
trial; (2) the district court erred in denying the inclusion
of two requested jury charges; (3) the defendant's
conviction by a 10-2 jury vote was in violation of the Equal
Protection clause of the Fourteenth Amendment; and (4) the
defendant's 60 year sentence at hard labor is
of Error 1
defendant argues that the State attempted to bolster Mr.
Sylve's testimony by eliciting inadmissible hearsay from
witnesses suggesting that more evidence existed to
corroborate Mr. Sylve's identification of the defendant
as the shooter.
to La. Code Evid. 801(C), "'Hearsay' evidence is
a statement, other than one made by the declarant testifying
at the present trial or hearing, offered in evidence to prove
the truth of the matter asserted." It "rests for
its value upon the credibility of the out-of-court
asserter." State v. Wille, 559 So.2d 1321, 1329
(La. 1990) (citation omitted). A primary justification for
the exclusion of hearsay is that the defendant "has no
opportunity to cross-examine the absent declarant to test the
accuracy and completeness of the testimony."
Id. Moreover, the party who purportedly made the
statement that is being repeated in court by another party
was not under oath at the time of the statement. Id.
In addition, pursuant to the confrontation clause of the
United States Constitution, "[i]n all criminal
prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him, " U.S. Const.
amend. VI, and when an assertion by one party is presented
through the testimony of another party there is no
opportunity for confrontation. Id.
of a defendant's conviction is appropriate when there is
"a reasonable possibility that the evidence might have
contributed to the verdict." State v. Skipper,
2011-1346, p. 10 (La.App. 4 Cir. 10/10/12), 101 So.3d 537,
544 (citation omitted). To determine whether the admission of
hearsay was harmless error, this court must consider
"the importance of the witness' testimony in the
prosecution's case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution's
case." State v. Legendre, 2005-1469, pp.9-10
(La.App. 4 Cir. 9/27/06), 942 So.2d 45, 52 (citation
admitted at trial
State's opening statement, the prosecutor asserted:
So, ladies and gentlemen, Detective Kent, like it has gone so
far, has a suspect. His suspect has been confirmed. But he at
this point, because he failed to memorialize the photograph,
he does not have enough ...