FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 534-000,
SECTION "F" Honorable Robin D. Pittman, Judge
Cannizzaro District Attorney Donna Andrieu Scott G. Vincent
Assistant District Attorney COUNSEL FOR THE STATE OF
Harwell Bitoun COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Roland L. Belsome, Judge Regina
Bartholomew-Woods, Judge Dale N. Atkins
L. BELSOME, JUDGE
Evelyn Clayton, seeks review of her convictions for
aggravated battery. She challenges the admission of evidence,
the jury instructions and verdict. Finding no reversible
error, Defendant's convictions are affirmed.
was charged by bill of information with two counts of
aggravated second degree battery of Tyrone and Delanda
Garner, in violation of La. R.S. 14:34.7. At arraignment,
Defendant pleaded not guilty. After a hearing, the trial
court denied Defendant's motion to suppress
identification and found probable cause to support the two
charges for aggravated second degree battery.
the State filed a notice of intent to introduce
"evidence of similar crimes, wrongs and/or acts"
pursuant to State v. Prieur and La. C.E. art.
404(B). After a Prieur hearing, the trial court
ruled the evidence was admissible. Shortly before trial,
Defendant filed a motion for a twelve-person jury, which was
denied. In addition, Defendant filed a motion for special
jury instructions, which was granted as modified at the
charging conference. However, the trial court declined to
include a special charge concerning the burden of proof when
there is a justification defense.
two-day trial, the jury found Defendant guilty of the
responsive verdict of aggravated battery on both counts.
Defendant's motions for post-verdict judgment of
acquittal and a new trial were denied. Subsequently,
Defendant received two concurrent six-year sentences at hard
labor. This appeal followed.
February 19, 2017, Tyrone and Delanda Garner, who are brother
and sister, were leaving a Mardi Gras Parade with friends and
family. While walking to the bus, Delanda stopped to use the
restroom at the home of Mr. and Mrs. Brinson, which was
located on Third Street, in New Orleans.
on the front steps of the house were Defendant, her sister,
Wynola Clanton, and their mother. While on her way to the
restroom, Delanda overheard Wynola, "talking about
slapping somebody." When she exited the restroom, Wynola
proceeded to slap her and a fight ensued. Shortly thereafter,
Defendant's mother joined. In response, Tyrone stepped in
to stop the mother from hitting his sister. When he turned
around, Defendant hit him in the face with a pipe. Defendant
then proceeded to hit Delanda in the face and arm with the
the altercation was over, Defendant, Wynola and their mother
left the scene. Thereafter, police and paramedics arrived.
Delanda and Tyrone were both transported to the hospital.
Delanda suffered lacerations to her mouth, which required
fifteen stitches. Her injuries also included two chipped
teeth, one tooth "knocked … out," and a
permanent scar underneath her nose. Tyrone required surgery
for his nose, which was almost severed off of his face.
Delanda identified Wynola as the person who slapped her. In
addition, she identified Defendant as the person who hit her
and Tyrone in the face with the pipe. Tyrone was unable to
identify Defendant in a photographic lineup.
one week later, Delanda and Tryone returned to the same area
for another parade when she saw Defendant. Defendant
approached her to apologize. At that point, Delanda contacted
the lead detective on the case, who came to the scene and
review for errors patent on the face of the record reveals
Defendant raises four assignments of error, we organize our
analysis around three alleged errors: 1) the admission of
Prieur evidence, 2) the jury instructions, and 3)
the jury verdict.
OF PRIEUR EVIDENCE
Defendant raises two issues concerning the admission of
Prieur evidence. Specifically, she takes issue with
the admission and presentation of the Prieur
evidence at trial. A district court's ruling on the
admissibility of evidence should not be overturned absent an
abuse of discretion. State v. Randolph, 16-0892, pp.
7, 11 (La.App. 4 Cir. 5/3/17), 219 So.3d 425, 431.
the admission issue, Defendant asserts that the trial court
erred in admitting Prieur evidence. Admitted at
trial was evidence of Defendant's convictions for the
following prior crimes: 1) On September 3, 2015, striking an
ex-boyfriend's car with a metal pipe, then striking the
ex-boyfriend with keys leading to a plea of guilty to the
charges of domestic abuse battery and simple criminal damage
to property; 2) On June 22, 2009, striking an ex-boyfriend in
the head with a hair brush, then hitting him in the chest
with a broken glass beer bottle leading to a plea of guilty
to the charge of aggravated battery; 3) On May 20, 2009,
cutting an ex-boyfriend in the neck with a knife leading to a
plea of guilty to the charge of aggravated battery. The court
instructed the jury that the above evidence could only be
considered for the purpose of showing an absence of mistake,
intent or motive.
evidence of other crimes committed by the defendant is
inadmissible due to the substantial risk of grave prejudice
to the defendant." State v. McDermitt, 406
So.2d 195, 200 (La. 1981) (citing Prieur,
supra). Pursuant to La. C.E. art. 404(B)(1),
evidence of other crimes, wrongs or acts are generally not
admissible to prove character. The article, however, provides
for exceptions to this rule, which include admission for the
purposes of proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident or
when the evidence relates to conduct that constitutes an
integral part of the act or transaction that is the subject
of the present proceeding. "Moreover, even when the
evidence is offered for a purpose allowed under Article 404
B(1), the evidence must have substantial relevance
independent from showing the accused's criminal character
and is not admissible unless it tends to prove a material
fact at issue or to rebut a defendant's defense."
State v. Taylor, 16-1124, 16-1183, p. 12 (La.
12/1/16), 217 So.3d 283, 292; see also La. C.E. art.
404(A)). A district court has broad
discretion in weighing the probative versus the prejudicial
value of evidence under La. C.E. art. 403.
case, Defendant's sister, Wynola Clanton, testified that
Defendant entered into the fray to protect her and her
mother. Therefore, the Prieur evidence was
admissible on two grounds: 1) to rebut Defendant's
self-defense argument and 2) to establish intent.
the prior similar acts were admissible to rebut
Defendant's self-defense argument. As noted in
Taylor and Jones, supra, evidence
of prior bad acts is generally admissible to rebut a
defendant's defense. This legal principle is exemplified
in State v. Murray, 36, 137 (La.App. 2 Cir.
8/29/02), 827 So.2d 488.
Murray, the defendant was on trial for shooting a
man with whom he was well-acquainted. Id., 36, 137,
pp. 1-2, 827 So.2d at 490-91. He contended that he acted in
self-defense, that he had never before been in such a
situation and that he panicked. Id., 36, 137, p. 29,
827 So.2d at 504. To counter the defendant's claim in
this regard, the State sought to introduce evidence of the
defendant's involvement in a prior shooting, an incident
which, following a police investigation, had ended with a
finding that defendant had shot the victim in self-defense.
Id., 36, 137, p. 27-29, 827 So.2d at 502-04.
a Prieur hearing, the trial court found the evidence
of the prior shooting admissible. Murray, 36, 137,
p. 29, 827 So.2d at 503. The court of appeal affirmed,
reasoning: "Not only was the prior shooting admissible
to impeach the defendant's credibility, it was also
probative of the defendant's intent, his knowledge, and
the absence of mistake or accident. The trial court did not
err in allowing this evidence because it was plainly
relevant." Murray, 36, 137, pp. 29-30, 827
So.2d at 504. Likewise, in this case, the Prieur
evidence was admissible to establish rebut Defendant's
self-defense claim and establish intent.
discussed, the Prieur evidence was also admissible
to establish intent. While Defendant argues that intent is
not a contested issue, the Louisiana Supreme Court has
recognized that" 'where the element of intent is
regarded as an essential ingredient of the crime charged, it
is proper to admit proof of similar but disconnected crimes
to show the intent with which the act charged was
committed.'" Taylor, 16-1124, p. 16, 217
So.3d at 294-95 (internal quotation omitted). The offense of
second degree aggravated battery consists of four elements:
1) the intentional use of force or violence upon the person
of another, 2) using a dangerous weapon, 3) without the
consent of the victim, 4) when the offender has the specific
intent to inflict serious bodily injury. La. R.S. 14:34.7
Thus, "specific criminal intent" is required to
commit the crime. State v. Harris, 17-303, p. 6
(La.App. 5 Cir. 12/20/17), 235 So.3d 1354, 1362, writ
denied, 18-0160 (La. 6/15/18), 257 So.3d 675 (citation
omitted). As such, "the state still has the burden of
proving specific intent, an essential element of the crime
charged, and the jury will be specifically instructed in this
regard prior to deliberations." Taylor,
16-1124, p. 17, 217 So.3d at 295.
State v. Blank, 04-0204, p. 45 (La. 4/11/07), 955
So.2d 90, 127, the Louisiana Supreme Court upheld the
introduction of five other capital murders and two attempted
murders, to which the defendant had confessed and been
convicted, in his capital trial for the murder of another
victim. The Court found that the prior crimes were similar
and specific intent was placed at issue through
Defendant's self-defense claim. Blank, 04-0204,
pp. 42-43, 955 So.2d at 125. All of the crimes involved home
invasions in which the defendant stole cash from elderly
victims, who encountered the defendant committing the
burglaries. Blank, 04-0204, p. 42, 955 So.2d at 125.
appeal, the defendant argued that the evidence of the other
murders should not have been admitted, in part, because he
did not present any evidence or argue during the trial that
he lacked specific intent to kill the victim. Blank,
04-0204, p. 42, 955 So.2d at 125. The Court rejected the
defendant's argument, noting that the State had the
burden of proving every element of the offense, including
specific intent, and "because the defendant maintained
that he acted in self-defense in his confession, the state
was entitled to present evidence to the contrary in support
of its case." Id. In reaching its decision, the
Court made an analogy to a situation in which a defendant on
trial for murdering a child claims the death was accidental;
evidence of physical abuse of other children was admissible
to show the improbability of multiple accidents.
Blank, 04-0204, pp. 42-43, 955 So.2d at 125
in this case, Defendant claims she acted in defense of her
family. She also argues that she is not challenging specific
intent. Nevertheless, evidence of Defendant's prior
similar crimes, when in apparent fits of rage she lashed out
at her victims, was admissible to refute her defense and
establish her specific criminal intent to inflict serious
bodily injury. Accordingly, the trial court did not abuse its
discretion in admitting the Prieur evidence.
to the presentation issue, Defendant complains that the trial
court erred in allowing the Prieur evidence to be
admitted through inadmissible hearsay testimony.
Specifically, Defendant complains that Officers Mason Suell,
Robert Masters, and Reuben Henry, in reporting the facts of
her prior three arrests for domestic abuse and/or aggravated
battery, implicitly relied on inadmissible hearsay statements
of her prior victims.
already noted, a trial court's ruling on the
admissibility of evidence should not be reversed absent an
abuse of discretion. See Randolph, supra, State
v. Brown, 97-2260, p. 8 (La.App. 4 Cir. 10/6/99), 746
So.2d 643, 648 (applying the abuse of discretion standard to
a district court's ruling on the admissibility of hearsay
evidence). Hearsay is a statement, other than one made by the
declarant while testifying at the present trial or hearing,
offered in evidence to prove the truth of the matter
asserted. La. C.E. art. 801 (C). Hearsay evidence is
generally not admissible, unless provided for by the Code of
Evidence or other legislation. La. C.E. art. 802. However,
there are exceptions to the general hearsay prohibition. For
instance, as explained in Randolph, 16-0892, p. 11,
219 So.3d at 433 (quoting State v. Legendre,
05-1469, p. 11 (La.App. 4 Cir. 9/27/06), 942 So.2d 45, 52-53
(internal citations omitted)), "[t]he testimony of a
police officer may encompass information provided by another
individual without constituting hearsay, if it is offered to
explain the course of the police investigation and the steps
leading to the defendant's arrest."
case at hand, the testimony of Officers Suell, Masters, and
Henry was provided to explain the course of their respective
police investigations and the steps leading to
Defendant's arrests. In fact, as noted in the trial
court's per curiam:
[B]efore these officers took the stand to testify, this
[c]ourt in a pre-trial ruling explicitly made it clear to
both defense counsel and the State of Louisiana that the
officers were to only testify as to what was discovered
during the course and scope of their investigation[s]
…. Each and every time an officer began to testify as
to what a non-testifying witness told them, the defense
objected and this Court sustained these objections, as this
specific hearsay material did not fall within the hearsay
to the trial court's pre-trial ruling is apparent in the
testimony of Officer Masters. Whenever the officer's
testimony regarding what a victim had told him about
Defendant's actions was mentioned, defense counsel
properly objected and the trial court sustained the
objection. When the question was rephrased to elicit
information as to what the officer learned during the
investigation, the trial court allowed the answer.
review of the trial transcript clearly reflects that
testimony regarding Defendant's actions which led to
three separate charges of aggravated battery were elicited
via questioning as to the course and scope of the
officers' investigations into her actions. This testimony
falls under a clear exception to the hearsay prohibition and
was properly admitted into evidence. Thus, the trial court
did not abuse its discretion when admitting the evidence at
even if the district court erred, admission of hearsay is
subject to a harmless error analysis. Randolph,
16-0892, p. 12, 219 So.3d at 434 (citation omitted). On
review, factors to consider include the importance of the
witness' testimony, whether the testimony was cumulative,
the presence or absence of corroborating evidence, the extent
of cross-examination permitted, and overall strength of the
state's case. Id. In the case sub
judice, Officer Kevin Bell testified that Defendant was
the same person who pled guilty to domestic abuse battery and
two separate incidents of aggravated battery using a knife
and, later, a glass bottle.Along with Officer
Bell's testimony, the certified conviction packets from
Defendant's three prior convictions were admitted into
evidence without objection. Thus, substantially similar and
uncontested evidence came in through another witness. Under
these circumstances, any ...