Opinion
2018 KA 1296
05-09-2019
STATE OF LOUISIANA v. KARL HOWARD
Richard J. Ward, Jr. District Attorney Terri Russo Lacy Antonio M. Clayton Scotty Chabert Assistant District Attorneys Port Allen, Louisiana Attorneys for Appellee, State of Louisiana Bertha M. Hillman Covington, Louisiana Attorney for Defendant/Appellant, Karl Howard Karl Howard Angola, Louisiana Pro Se
NOT DESIGNATED FOR PUBLICATION On Appeal from the 18th Judicial District Court In and for the Parish of West Baton Rouge State of Louisiana
No. 130500 Honorable Edward Gaidry, Judge Presiding Richard J. Ward, Jr.
District Attorney
Terri Russo Lacy
Antonio M. Clayton
Scotty Chabert
Assistant District Attorneys
Port Allen, Louisiana Attorneys for Appellee,
State of Louisiana Bertha M. Hillman
Covington, Louisiana Attorney for Defendant/Appellant,
Karl Howard Karl Howard
Angola, Louisiana Pro Se BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
The defendant, Karl Michael Howard, was charged by amended grand jury indictment on count one with principal to second degree murder, a violation of La. R.S. 14:30.1, and on count two with conspiracy to commit second degree murder, a violation of La. R.S. 14:26 and La. R.S. 14:30.1. He entered a plea of not guilty and, following a jury trial, was found guilty as charged on both counts. He was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. He appealed, assigning error to the trial court's admission into evidence of Facebook messages and autopsy photographs, and to the trial court's denial of a motion for mistrial based on prosecutorial remarks. However, the trial court did not impose a sentence on count two. In an unpublished opinion, this court affirmed the conviction and sentence on count one and remanded the case for imposition of sentence on count two. State v. Howard, 2017-0779 (La. App. 1st Cir. 12/21/17), 2017 WL 6524547 (unpublished), writ denied, 2018-0165 (La. 11/20/18), 256 So.3d 998.
A codefendant, Monique O. Kitts, was indicted and tried along with the defendant. She was also convicted as charged and appealed. State v. Kitts, 2017-0777 (La. App. 1st Cir. 5/10/18), 250 So.3d 939.
In the absence of a valid sentence, the defendant's conviction on count two was not properly before this court on appeal. La. C.Cr.P. art. 912(C)(1); State v. Horne, 1999-2192 (La. App. 1st Cir. 9/22/00), 768 So.2d 228, 229. See also State v. Soco, 94-1099 (La. App. 1st Cir. 6/23/95), 657 So.2d 603.
This court also affirmed the codefendant's conviction and sentence on count one and remanded for imposition of sentence on count two. Kitts, 2017-0777 at p. 45, 250 So.3d at 970. After sentencing on count two, codefendant Kitts filed another appeal in this court. State v. Kitts, 2018-1432 (La. App. 1st Cir. 2/22/19), 2019 WL 851177 (unpublished).
On remand, the trial court sentenced the defendant on count two to thirty years imprisonment at hard labor, to be served concurrent to the sentence previously imposed on count one. The defendant has now perfected a new appeal, reasserting in a counseled brief the same issues and assignments of error raised in the former appeal cited above, noting that the former appeal was premature as to count two. The defendant also filed a pro se brief, reasserting his challenge to the admission of Facebook entries in pro se assignment of error number one and autopsy photographs in pro se assignment of error number six. The pro se brief further assigns error to the lack of disclosure of the relationship between the trial judge and the prosecutor in pro se assignments of error numbers three, four, and five; the sufficiency of the evidence in pro se assignment of error number two; and the constitutionality of the sentence in pro se assignment of error number seven. For the following reasons, we hereby affirm the conviction and sentence on count two.
STATEMENT OF FACTS
A complete statement of facts was set forth in the decision of this court in Howard, 2017-0779 at pp. 3-6, 2017 WL 6524547 at *1-2, and will not be repeated in this case.
COUNSELED/PRO SE ASSIGNMENT OF ERROR NUMBER ONE
In counseled assignment of error number one, the defendant argues that the trial court erred in allowing witness David Johnson to read Facebook entries to the jury despite repeated objections that they were irrelevant and more prejudicial than probative. The defendant's counseled brief did not alter the argument raised in his former appeal in reasserting this issue as to the conviction on count two. The defendant argues that Johnson's testimony was not relevant because he was not identified as the sender or receiver of the messages, was never identified as being a part of the conversations, and could not properly identify the parties to the conversation. The defendant further argues that even if relevant, the evidence should have been excluded because the messages contained sexually explicit language and only served to inflame the jury. In the pro se brief, the defendant argues that the trial court abused its discretion in "allowing an ex con, sex offender [Johnson] who made a deal with the state to testify and pretend as an expert identifying the defendant as the one who sent [F]acebook entries."
During the trial, the defendant repeatedly objected to the admission of Facebook entries on the grounds of relevancy. Entries read out loud to the jury during Johnson's colloquy with the State began with a January 2010 communication between "Savage Leggz" (repeatedly identified as the defendant) and the codefendant, wherein the defendant questioned the codefendant as to the whereabouts of her husband, the victim. When the codefendant replied that her husband was at work, they both stated, "Thank God." In overruling the objection, the trial court found the entries relevant, acknowledged their intended purpose, and further found that the members of the jury had to decide what they actually showed. Other entries referenced the apartment that the codefendant leased and her disgruntlement with the fact that Johnson's wife would be staying in the apartment, and consisted of communications containing sexually explicit commentary.
In again objecting on the basis of relevance, the defendant noted in part that some of the codefendant's communications were not with the defendant or any other party to the case. As instructed by the trial court, the State informed the jury that certain passages did not involve the defendant, but instead consisted of the codefendant's communications with another associate. The defense attorney interrupted again after the following statement by the codefendant was read to the jury: "Still waiting on my insurance check." Asserting that the reference was not regarding a life insurance check, the defendant argued that the State was attempting to mislead the jury. The prosecutor indicated that he was not sure of the type of insurance check being referenced and further stated that the defendant would have the opportunity to address it on cross-examination. The trial court cautioned the State that it was not allowed to mislead the jury, and the parties agreed to stipulate to the jury that the victim was still alive at the time of the statement in question, and that the Kitts at that time were waiting for an insurance check regarding a home damage claim.
At trial, the Facebook entries were challenged on the grounds of relevance. Thus, the assignment of error in the defendant's pro se brief referencing Johnson's criminal record, and his supposed pretense "as an expert identifying the defendant as the one who sent" the messages, constitute new grounds for challenging the admission of the Facebook entries, raised for the first time in this appeal of the defendant's conviction on count two. The basis or ground for the objection must be sufficiently brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. A defendant is limited on appeal to the grounds for the objection that were articulated at trial. See La. C.Cr.P. art. 841 and La. C.E. art. 103(A)(1); State v. Young, 99-1264 (La. App. 1st Cir. 3/31/00), 764 So.2d 998, 1005. We also note that the defendant did not in his pro se brief cite any law or authority or develop an argument in support of pro se assignment of error number one. Assignments of error not briefed on appeal are considered abandoned. Uniform Rules - Courts of Appeal, Rule 2-12.4(B)(4). See State v. Williams, 632 So.2d 351, 353 (La. App. 1st Cir. 1993), writ denied, 94-1009 (La. 9/2/94), 643 So.2d 139 ("Restatement of an assignment of error in brief is nothing more than a listing of the assignment and certainly does not constitute briefing of the assignment."). Accordingly, we will not address pro se assignment of error number one.
In addition to repeated objections on the basis of relevancy, the defense attorney also objected to the State's introduction of the entries via examination of Johnson, contending that Johnson was not the person who sent or received the messages and was unable to place them in context.
At trial, the defendant stipulated to the authenticity of the Facebook entries.
With regard to counseled assignment of error number one, we note that we previously found that with regard to count one, second degree murder, the evidence was relevant and its probative value was not outweighed by any danger of unfair prejudice, confusion of the issues, or misleading the jury. Howard, 2017-0779 at pp. 6-9, 2017 WL 6524547 at *3-4. We now address the relevancy of the evidence with regard to count two, conspiracy to commit second degree murder.
Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime, in this case second degree murder; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination. See La. R.S. 14:26(A). Louisiana Revised Statutes 14:30.1(A)(1) defines second degree murder, in pertinent part, as the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm.
To support a conviction of conspiracy to commit second degree murder, the State had to prove an agreement or combination between the defendant and codefendant. The State introduced the Facebook entries to disclose to the jury the status of the marriage of the victim and the codefendant and the nature of her communications outside of the marriage before the murder. Thus, we find that communications between the codefendant and the defendant regarding the victim were probative in this case. Moreover, we note that Johnson was subject to cross-examination regarding the communications and the jurors were made aware when Johnson lacked firsthand knowledge. Further, the parties stipulated to the jury that the victim was still alive at the time of the codefendant's statement regarding an insurance check. Thus, we agree with the trial court's finding that with regard to count two, conspiracy to commit second degree murder, the evidence was relevant and its probative value was not outweighed by any danger of unfair prejudice, confusion of the issues, or misleading the jury.
Accordingly, we find that counseled assignment of error number one lacks merit. Further, we find that review of pro se assignment of error number one is precluded under La. C.Cr.P. art. 841, La. C.E. art. 103(A)(1), and Uniform Rules - Courts of Appeal, Rule 2-12.4(B)(4).
COUNSELED ASSIGNMENTS OF ERROR NUMBERS TWO AND
THREE: PRO SE ASSIGNMENT OF ERROR NUMBER SIX
In counseled assignment of error number two and pro se assignment of error number six, the defendant argues that the trial court erred in overruling his objection to autopsy photographs that were gruesome, cumulative, and irrelevant. In counseled assignment of error number three, the defendant argues that based on prejudicial remarks by the State on the defendant's guilt and the trustworthiness of defense counsel, the trial court erred in denying the motion for mistrial or, in the alternative, failing to admonish the jury.
In this court's previous opinion, we fully addressed the applicable law and relevant facts in connection with the identical counseled assignments of error with regard to count one. Howard, 2017-0779 at pp. 9-15, 2017 WL 6524547 at *4-6. The defendant has not altered his arguments or raised facts not previously addressed in his prior appeal. Moreover, the issues raised in these assignments of error are not dependent upon the nature of the charge, i.e. second degree murder or conspiracy to commit second degree murder. Therefore, the facts and full discussion of the issues will not be repeated in this case.
In the pro se brief, without providing any authority or new arguments, the defendant simply assigns as error number six the admission of the autopsy photographs on the grounds of relevancy.
Following an independent review of the record, briefs, and applicable jurisprudence, we find these assignments of error to be without merit for the reasons set forth in our treatment of the identical claims raised in regard to count one in Howard, 2017-0779 at pp. 9-15, 2017 WL 6524547 at *4-6.
PRO SE ASSIGNMENT OF ERROR NUMBER TWO
In pro se assignment of error number two, the defendant, without any argument or authority in support thereof, simply states that the evidence was insufficient to determine his guilt. As previously noted herein, assignments of error not briefed by a defendant on appeal are considered abandoned. Uniform Rules - Courts of Appeal, Rule 2-12.4(B)(4). Statement of an assignment of error in brief is nothing more than a listing of the assignment and does not constitute briefing of the assignment. Williams, 632 So.2d at 353. Accordingly, pro se assignment of error number two is deemed abandoned.
PRO SE ASSIGNMENTS OF ERROR NUMBERS
THREE , FOUR, AND FIVE
In his pro se brief, the defendant lists three assignments of error arguing that the trial court judge who presided in this case, Judge J. Robin Free, and one of the assistant district attorneys representing the State in this case, Tony Clayton, had a duty to disclose to the defense counsel the nature of their relationship. Specifically, in pro se assignments of error numbers three and four, the defendant asserts that the relationship between Judge Free and Clayton was unethical and had he known of the relationship at the time of trial he would have filed a motion to recuse pursuant to La. C.Cr.P. arts. 671 & 680. In pro se assignment of error number five, he asserts that the relationship between Judge Free and Clayton was unethical and had he known of the relationship at the time of trial he would have filed a motion for a change of venue under La. C.Cr.P. art. 621.
Pro se assignments of error numbers three and four are identical to errors raised and briefed by Kitts in her appeals. These assignments of error were found to be without merit and Kitts' convictions and sentences were affirmed. See Kitts, 2017-0777 at pp. 21-28, 250 So.3d at 956-61; Kitts, 2018-1432, 2019 WL 851177. --------
The defendant did not cite any law or authority or develop an argument in support of assignments of error numbers three, four, or five. As noted above, assignments of error not briefed by a defendant on appeal are considered abandoned. Uniform Rules - Courts of Appeal, Rule 2-12.4(B)(4). Statement of an assignment of error in brief is nothing more than a listing of the assignment and does not constitute briefing of the assignment. Williams, 632 So.2d at 353. Accordingly, pro se assignments of error numbers three, four, and five are deemed abandoned.
PRO SE ASSIGNMENT OF ERROR NUMBER SEVEN
In pro se assignment of error number seven, the defendant asserts that his sentence is excessive and in violation of the Eighth Amendment to the United States Constitution and Article I section 20 of the Louisiana Constitution. A review of the record indicates that defense counsel did not make a motion to reconsider sentence nor did he object to the sentence. The failure to make or file a motion to reconsider sentence precludes a defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. La. C.Cr.P. art. 881.1(E). The defendant, therefore, is procedurally barred from having this assignment of error reviewed. State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam). See also State v. Felder, 2000-2887 (La. App. 1st Cir. 9/28/01), 809 So.2d 360, 369, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173.
CONVICTION AND SENTENCE ON COUNT TWO AFFIRMED.