Opinion
NUMBER 2014 KA 1394
07-29-2015
STATE OF LOUISIANA v. SHEARMAN WISHAM
Richard J. Ward, Jr. District Attorney Port Allen, LA Counsel for Appellee State of Louisiana Elizabeth A. Engolio Assistant District Attorney Plaquemine, LA Holli Herrle-Castillo Louisiana Appellate Project Marrero, LA Counsel for Defendant/Appellant Shearman Wisham Shearman Wisham Angola, LA Pro Se
NOT DESIGNATED FOR PUBLICATION
Appealed from the Eighteenth Judicial District Court In and for the Parish of West Baton Rouge State of Louisiana
Suit Number 113542
Honorable J. Robin Free, Presiding Richard J. Ward, Jr.
District Attorney
Port Allen, LA
Counsel for Appellee
State of Louisiana
Elizabeth A. Engolio
Assistant District Attorney
Plaquemine, LA
Holli Herrle-Castillo
Louisiana Appellate Project
Marrero, LA
Counsel for Defendant/Appellant
Shearman Wisham
Shearman Wisham
Angola, LA
Pro Se BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ. GUIDRY, J.
The defendant, Shearman L. Wisham, was charged by grand jury indictment with principal to second degree murder, a violation of La. R.S. 14:24 and La. R.S. 14:30.1. At arraignment, the defendant pled not guilty, but following trial, he was found guilty as charged by a unanimous jury. A motion for new trial was filed but was denied by the trial court. The defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals, with one counseled and four pro se assignments of error. For the following reasons, we affirm the defendant's conviction and sentence.
The defendant was indicted and tried along with Mary Douglas, who was also convicted of principal to second degree murder. Douglas separately appeals her conviction. See State v. Douglas, 14-1399 (La. App. 1st Cir. ___/___/___), ___ So. 3d ___.
STATEMENT OF FACTS
A recording of the victim's sworn testimony was presented at trial. In that statement, the victim, Odis Roberts, testified that on October 11, 2010, around 11:30 p.m., Mary Douglas, the victim's live-in girlfriend, woke him up and asked him to take the defendant to his sister's house "across the river" in Port Allen. The victim testified that he believed the defendant had been at his house since "first dark." The victim obliged, and the defendant directed the victim to the alleged house. Upon their arrival, the victim told the defendant that he did not believe anyone was home. The defendant exited the victim's SUV, entered the house, returned, and informed the victim that the occupants must have "gone to the store, but [that] they would be back after a while." The victim stated that the defendant then re-entered the vehicle but exited again because he needed to urinate. When the defendant did this, the victim testified "that's when he shot me three times." The victim stated the defendant was standing outside of the SUV and was shooting through the front passenger door and glass. After the first shot, the victim had mistakenly believed that someone else was shooting at both of them and tried to get the defendant to enter the SUV. The defendant would not enter, and at that point, the victim testified he realized the defendant shot him. The defendant then shot him two more times. The victim died eleven months later.
Sergeant Kirby Thibodeaux, Jr. of the West Baton Rouge Parish Sheriff's Office testified that at approximately 12:17 a.m., on October 12, 2010, he and several other deputies were dispatched to North River Road in connection with a reported shooting. Upon their arrival to an "abandoned" and "dilapidated" house, Sergeant Thibodeaux observed a Honda Passport SUV parked in the driveway, with the headlights on, all four doors locked, and the victim "slumped over the steering wheel." Sergeant Thibodeaux instructed another deputy to unlock the driver's door, and when he did, a black, nylon handgun case fell onto the ground, though a handgun was not located inside of the case. Further, Sergeant Thibodeaux noted that, although the victim had a slight pulse, he was "unresponsive" and "pretty much lifeless." Sergeant Thibodeaux testified that the front passenger window was shattered, "as it appeared that somebody had shot or ... something went through it," with most of the glass on the front passenger seat. Furthermore, blood was visible on the front passenger seat, floorboard, and center console. After walking the crime scene perimeter, Sergeant Thibodeaux did not find any shell casings on the ground.
Louisiana State Trooper Benny Taylor testified that during the early morning hours on the day of the shooting, he heard West Baton Rouge Parish deputies being dispatched in reference to a possible shooting. Trooper Taylor proceeded to drive to the scene in an effort to assist, but along the way, received word of a black male walking eastbound in the westbound lane of the U.S. Highway 190 bridge. Trooper Taylor advised Sergeant Thibodeaux that he would investigate the pedestrian, who was later identified as the defendant. The defendant was at the bottom of the bridge on the East Baton Rouge side when Trooper Taylor first encountered him at approximately 1:30 a.m. Trooper Taylor stopped his vehicle, approached the defendant, asked him about his destination, and the defendant responded that he was walking to his house. Trooper Taylor offered the defendant a ride back to his house, but advised that he had to first perform a weapons frisk. As Trooper Taylor began to frisk the defendant, the defendant advised that he found a gun at the base of the bridge on the West Baton Rouge side, and that it was stuffed in his waistband. The defendant presented the gun, a seven-shot .357 caliber Smith & Wesson stainless steel revolver, to Trooper Taylor, who testified the gun contained three empty casings and four loaded rounds. Trooper Taylor testified that on the night of the shooting it was raining, and when he encountered the defendant, his clothing was wet, but the gun was not. After being presented with the revolver, Trooper Taylor transported the defendant to the West Baton Rouge Parish law enforcement center.
Testimony at trial revealed the defendant and co-defendant were once married.
Ron Lejeune, the lead detective with the West Baton Rouge Parish Sheriff's Office, testified that during the early morning hours of October 12, 2010, he met with the defendant, read him his Miranda rights, and spoke with him. After being told by the defendant that he found a gun on the side of the road, Detective Lejeune traveled to the crime scene with Sergeant Thibodeaux. Detective Lejeune testified that, based on his experience, and by the way the passenger window was broken, it appeared as though "the door was probably closed, and the force, the trauma force came from the outside inward to the vehicle."
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
After visiting the victim at the hospital, Detective Lejeune returned to the law enforcement center, and interviewed the defendant. Detective Lejeune noted the defendant's clothes were wet, and that he had gloves in his pocket. After several other inconsistent statements, the defendant informed Detective Lejeune that on the night of the shooting, the victim came to his house, picked him up, and told him that he wanted him "to go ride with him to do a drug deal." The defendant informed Detective Lejeune that he and the victim drove across the river, and, upon their arrival at a house, the victim made a call on his cell phone. In contrast, however, Detective Lejeune searched the victim's cell phone history, and established no calls were made from the victim's cell phone during this time. The defendant told Detective Lejeune that once he and the victim pulled into the driveway, he observed other individuals near the house. However, Detective Lejeune's investigation revealed no other sets of tire tracks. The defendant informed Detective Lejeune that a disagreement ensued between the victim and the other unknown individuals, he "kind of walked off," and that "sometime after that he heard two shots." Detective Lejeune testified that the defendant told him that after hearing the gunshots, he observed the other individuals enter their vehicle and leave the scene, and he "ran to Odis's car and saw Odis shot and the gun laying on the ground. He said he saw Odis was slumped over. He left and went to the casino for a few hours." Later, after the defendant denied shooting the revolver, and after Detective Lejeune asked if he could conduct a gunpowder residue test on his hands, the defendant changed his statement. The defendant then claimed that "he forgot to tell [Detective Lejeune] when he ran from the field to Odis's car he saw the gun laying there when they were driving off. So, he picked the gun up and made a shot at the people when they drove away."
Upon completing his interview with the defendant, Detective Lejeune returned to the crime scene with fellow officers to "make sure we didn't miss anything," whereby he found an empty casing with mud inside of it. He testified the casing "was underneath the car where the car would have been parked, and the casing was full of mud and pea gravel and tarnished. We [felt] like it had been there long before."
Two stipulations were entered into during trial. First, that forensic scientist Charles Watson would be called by the State, and would testify that the bullet remaining in the victim's spine was not removed, and therefore was not tested; that the bullet taken from the vehicle's door could be matched as being fired from the Model 619, seven-shot .357 Smith and Wesson revolver recovered from the defendant, but that the remaining bullet fragments obtained from the vehicle could not create a positive identification, although they bear the same class characteristics as being fired from the revolver. Second, that forensic DNA scientist Philip Simmers would testify that all of the blood swabbed from the vehicle matched only the victim, and DNA found on the revolver did not create a match to the defendant or the victim.
Two witnesses were called on behalf of the defense. First, East Baton Rouge Parish Sheriff's Deputy Jimmy Douglas testified that he was the co-defendant's brother, and that he was familiar with the victim prior to the shooting. Deputy Douglas testified that on the night the victim was shot, he was working at Earl K. Long Hospital, and he went to visit the victim in his room. Deputy Douglas testified that the victim recognized him, and told him there "was a lot of shooting. It was a lot of shooting, Shearman is dead. Shearman didn't shoot me." Deputy Douglas also testified that the victim said "it went bad," but never said what "it" meant. After this initial visit, Deputy Douglas did not visit nor have the opportunity to speak with the victim again.
Lastly, Sadie Roberts, the victim's sister, was recalled on behalf of the defense. Roberts testified that the victim "lived two lives," and that he used marijuana, despite the blood analysis from the night of the shooting indicating the victim tested negative for marijuana use.
Yolanda Quiet, the victim's niece who assisted him in paying bills and other household duties prior to his relationship with the co-defendant, testified that she never knew her uncle to use drugs, particularly in light of his occupation as a commercial truck driver. Furthermore, Shawanna Rowe, the victim's neighbor for thirty-five years, testified she never knew the victim to use drugs, and that he would "fuss" at her brothers when he would see them with drugs.
SUFFICIENCY OF THE EVIDENCE
In his sole counseled, and first pro se, assignment of error, the defendant contends that "[t]he State failed to present sufficient evidence that [he] was the shooter or otherwise involved in the shooting of [the victim]. The State also failed to prove that [the victim's] death eleven months after the shooting occurred as a result of being shot." The defendant does not contest that the victim was indeed shot but instead claims that due to the lack of an autopsy, "the link between the bullet wounds and [the victim's death] was not established beyond a reasonable doubt." Further, he avers that "even if sufficient evidence was submitted that the gunshot wounds caused [the victim's] death," evidence was not presented which demonstrated that the "bullet left inside of [the victim's] spine was fired from [his] gun." The defendant continues by arguing that his identity as the shooter was not established at trial. Moreover, in light of the victim's alleged statement to Deputy Jimmy Douglas that "it" went bad, the lack of a DNA match between the defendant and the blood found on the revolver, and the .40 caliber casing found at the scene, the defendant asserts the evidence presented at trial supports the theory that the victim was shot by other gunmen while attempting to purchase drugs. Therefore, based on the allegedly insufficient evidence presented at trial, the defendant argues his conviction should be set aside.
The standard of review for sufficiency of the evidence to support a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime, and defendant's identity as the perpetrator of that crime, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Patton, 10-1841, p. 21 (La. App. 1st Cir. 6/10/11), 68 So. 3d 1209, 1224. In conducting this review, we must also be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; State v. Millien, 02-1006, p. 2 (La. App. 1st Cir. 2/14/03), 845 So. 2d 506, 508-09.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601, p. 3 (La. App. 1st Cir. 2/19/99), 730 So. 2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So. 2d 1157 & 00-0895 (La. 11/17/00), 773 So. 2d 732.
Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 p. 13 (La. 11/25/96), 684 So. 2d 382, 390. Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Henderson, 99-1945, p. 3 (La. App. 1st Cir. 6/23/00), 762 So. 2d 747, 751, writ denied, 00-2223 (La. 6/15/01), 793 So. 2d 1235. Additionally, "[a]lthough an individual's flight does not in and of itself indicate guilt, it can be considered as circumstantial evidence that the individual has committed a crime; flight shows consciousness of guilt." State v. Williams, 610 So. 2d 991, 998 (La. App. 1st Cir. 1992), writ denied, 617 So. 2d 930 (La. 1993).
Louisiana Revised Statute 14:24 provides that "[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals." However, only those persons who knowingly participate in the planning or execution of a crime may be said to be "concerned" in its commission, thus making them legally liable as principals. Mere presence at the scene of a crime does not make a person a principal to the crime. A defendant may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Neal, 00-0674, pp. 12-13 (La. 6/29/01), 796 So. 2d 649, 659, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).
As a general matter, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. A positive identification by only one witness is sufficient to support a conviction. A victim's or witness's testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion. State v. Dorsey, 10-0216, pp. 43-44 (La. 9/7/11), 74 So. 3d 603, 633-34, cert. denied, ___ U.S. ___, 132 S. Ct. 1859, 182 L.Ed.2d 658 (2012).
Regarding the defendant's assertion that since "no autopsy was performed to determine the exact cause of death in this case...less than conclusive proof [was presented at trial] that [the victim's death] nearly a year after the shooting was a result of the gunshot wounds," the Louisiana Supreme Court has held that "[a]lthough a coroner's autopsy is competent evidence to prove the fact of death and cause of death, the same can be proven by any competent evidence." State v. Winzer, 354 So. 2d 533, 534 (La. 1978). Furthermore, "[t]he state is not limited to utilizing the coroner's report to prove the fact of death and the cause of death." State v. Outley, 629 So. 2d 1243, 1248 (La. App. 2nd Cir. 1993), writ denied, 94-0410 (La. 5/20/94), 637 So. 2d 476 (La. 1994).
Herein, Dr. Alfredo Suarez, who was qualified as an expert in the field of forensic pathology, testified that the victim was shot three times: once in the right upper abdomen, once in the right shoulder, and once in the left leg. Dr. Suarez testified that after the victim was shot, he lived for eleven months, and that "[t]he most damaging injury to this gentleman was the shot to the right upper quadrant of the abdomen. It went through the liver. It destroyed the diaphragm; they had to repair that at Earl K. Long. And then the bullet ended up fracturing the spinal column at level T-12," which rendered the victim a paraplegic. Dr. Suarez testified that the victim's "demise was directly related to the three gunshot wounds ...." As a result of the gunshot wounds, the victim became septic, causing the circulation of bacteria through the bloodstream. Furthermore, the victim developed pneumonia, renal disease, and a urinary tract infection, "[a]nd that coupled with the different injuries to the skin surface, those are usually hard to cure so-to-speak." Dr. Suarez noted that while these injuries do not necessarily result in death, due to the age of the victim, and the "different bacterial invasion[s] of the blood stream," the outcome is usually death. Although an autopsy was not conducted on the victim, Dr. Suarez testified that medical records were sufficient for him to determine that the victim "died because of [a] direct relation to the gunshot wounds he received."
Also, Dr. Phillip Padgett, the coroner who signed the victim's death certificate, also identified "homicide" as the manner of death and noted "septic shock" and "gunshot wounds" as causes of death.
Furthermore, although the death certificate also lists "asystole" and "cardiopulmonary arrest" as causes of death, Dr. Suarez expounded on these causes when he testified that:
Yes. This is the death certificate signed by the local coroner, Dr. Padgett. And he pointed out that the - - these are not really pathologists, the coroners - - they are politicians. Asystole means the heart quit. Well, any of those [autopsies] that I've done, the 7100 [autopsies], they all have asystole, which means the heart doesn't beat anymore. And then he put down cardiopulmonary arrest. This means the same thing, he is not breathing and the heart does not beat.Therefore, although an autopsy was not conducted, we find that competent evidence was presented at trial establishing that the victim's cause of death was a result of the gunshot wounds.
Septic shock, that's the one, the one that killed this person. And due to gunshot wounds. So he got all of the diagnoses listed as I mentioned: asystole,
cardiopulmonary arrest, septic shock due to gunshot wounds.
Furthermore, a thorough review of the record indicates that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of principal to second degree murder, including the defendant's specific intent to kill the victim, the defendant's identity as the perpetrator of that offense, and that the victim died as a result of the defendant's gunshots. The verdict rendered in this case indicates the jury credited the testimony of the victim and the other witnesses against the defendant and rejected his attempts to discredit those witnesses. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429, pp. 5-6 (La. App. 1st Cir. 3/27/97), 691 So. 2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So. 2d 1331. Testimony presented at trial revealed that the victim positively identified the defendant as the shooter, who was thereafter located walking away from the crime scene along the U.S. Highway 190 bridge with gloves in his pocket, and a seven-shot Smith and Wesson revolver belonging to the victim in his waistband. Additionally, three of the revolver's cartridges were spent, with one recovered bullet from the victim's vehicle tested and identified as being fired from the victim's revolver.
The verdict returned in this case indicates the jury rejected the defendant's three hypotheses of innocence: the State failed to establish his identity as the shooter, the victim did not die as a result of a gunshot wound, and the murder occurred during a botched drug deal. When a case involves circumstantial evidence and the jury reasonably rejects the hypotheses of innocence presented by the defense, those hypotheses fall, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So. 2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So. 2d 126 (La. 1987). No such hypothesis exists in the instant case.
Further, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207, p. 14 (La. 11/29/06), 946 So. 2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306, pp. 1-2 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam). Therefore, the defendant's counseled, and first pro se, assignments of error lack merit.
UNTIMELY INSTITUTION OF PROSECUTION
AND COMMENCEMENT OF TRIAL
In his second pro se assignment of error, the defendant briefly argues the State "erred from proper judicial procedure" by failing to timely institute prosecution in accordance with Article 701(B)(1)(b) and by failing to timely commence trial in accordance with Article 578(A)(2).
Louisiana Code of Criminal Procedure article 701(B)(1)(b) provides, in pertinent part, that, in felony cases punishable by death or life imprisonment, when a defendant is in custody subsequent to an arrest, an indictment shall be filed within one hundred twenty days of arrest. However, this article, which provides the statutory right to a speedy trial, "merely authorizes pre-trial relief. The remedy for a speedy trial violation under article 701 is limited to release from incarceration without bail or release of the bail obligation for one not incarcerated. Once a defendant has been convicted, any allegation of a violation is moot." State v. Gordon, 04-0633, p. 12 (La. App. 1st Cir. 10/29/04), 896 So. 2d 1053, 1062-63, writ denied, 04-3144 (La. 4/1/05), 897 So. 2d 600. Moreover, La. C. Cr. P. art. 571 provides, in pertinent part, that there are no time limitations upon the institution of prosecution for any crime for which the punishment may be death or life imprisonment. Louisiana Revised Statute 14:30.1(B) provides that whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Therefore, due to the defendant's conviction and sentencing for principal to second degree murder, his argument regarding possible statutory speedy trial violations is moot or otherwise without merit.
Further, apart from these statutory provisions, the right to a speedy trial is guaranteed by both the federal and state constitutions. See U.S. Const. amend. VI; La. Const. art. I, § 16. The proper method for raising the claim of a denial of the constitutional right to a speedy trial is by a motion to quash. Gordon, 04-0633 at p. 12, 896 So.2d at 1063. Here, the defendant did not raise such a claim, or file a motion to quash, at the trial court. Therefore, the defendant failed to preserve for appeal any alleged violation of his constitutional right to a speedy trial.
Concerning the alleged untimely commencement of trial, absent interruption or suspension of time limitations, no trial shall be commenced in non-capital felony cases after two years from the date of institution of prosecution. See La. C. Cr. P. art. 578(A)(2) and art. 580. However, Article 581 states, in part, that:
Upon the expiration of the limitations established by this Chapter, the court shall, upon motion of the defendant, dismiss the indictment. This right of dismissal is waived unless the motion to quash is made prior to trial.
A review of the record reveals that the defendant did not file a motion to quash based on the State's alleged failure to timely commence trial. Therefore, the defendant waived this objection and failed to preserve it for appellate review. See State v. Thompson, 12-1097, pp. 11-12 (La. App. 3d Cir. 4/10/13), 111 So. 3d 580, 587, writ denied, 13-1067 (La. 11/15/13), 125 So. 3d 1102, cert. denied, ___ U.S. ___, 134 S.Ct. 1942, 188 L.Ed.2d 966 (2014). Consequently, this assignment of error is moot or otherwise not preserved for appellate review.
OTHER CRIMES EVIDENCE
In his third pro se assignment of error, the defendant asserts the trial court erred by allowing "irrelevant and prejudicial admission of other crimes evidence," namely that of a "check cashing scheme," to be admitted against him during trial "to demonstrate intent of principle [sic] to second degree murder." The defendant contends this "erroneous depiction of bad character of the defendant ... never establish[ed] motive [or] intent." Further, he argues his character was not at issue, and the other crimes evidence denied him his constitutional right to an impartial trial.
Prior to trial, the State filed notice of intent to use evidence of other crimes pursuant to La. C.E. art. 404(B) and State v. Prieur, 277 So. 2d 126 (La. 1973), which identified four prior bad acts committed by the defendant. Following the Prieur hearing, the trial court ordered that two of the items listed in the State's notice would not be allowed during trial, with one other crime being dismissed by the State. Therefore, evidence of only one of the previous four prior crimes was allowed to be introduced against the defendant - a pending charge in East Baton Rouge Parish for allegedly negotiating a counterfeit check in September 2010.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. Hills, 99-1750, p. 5 (La. 5/16/00), 761 So. 2d 516, 520. Under La. C.E. art. 404(B), other crimes evidence "is not admissible to prove the character of a person in order to show that he acted in conformity therewith." The evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. La. C.E. art. 404(B)(1). At least one of the enumerated purposes in Article 404(B) must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible under Article 404. Thus, to be admissible under Article 404(B), evidence of the defendant's prior bad acts must meet two criteria: (1) it must be relevant to some issue other than the defendant's character, and (2) its probative value must be greater than its potential to unfairly prejudice the jury. State v. Day, 12-1749, pp. 3-4 (La. App. 1st Cir. 6/7/13), 119 So. 3d 810, 813; see La. C.E. arts. 403 & 404(B). The underlying policy is not to prevent prejudice, since evidence of other crimes is always prejudicial, but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. State v. Humphrey, 412 So. 2d 507, 520 (La. 1981). A trial court's ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Galliano, 02-2849, pp. 3-4 (La. 1/10/03), 839 So. 2d 932, 934 (per curiam).
At the pre-trial Prieur hearing, Baton Rouge City Police Detective Lisa Patterson testified that in September 2010, she investigated four instances by the co-defendant, and two by the defendant, of allegedly negotiating fraudulent checks to Leo's Market Service Grocery. Detective Patterson testified that on September 14, 2010, the defendant presented a check to be cashed from R&B Welding. However, the owner of Leo's did not cash the check because he first verified with R&B Welding, who denied issuing the check to the defendant. Detective Patterson testified that on September 16, 2010, the defendant re-entered Leo's Market Service Grocery and was successful in cashing a different counterfeit check due to the number of people inside the store. The owner later realized what occurred when the check was returned "Altered and Fictitious." Detective Patterson testified that the defendant's prosecution in East Baton Rouge Parish for Monetary Instrument Abuse and Theft was pending.
The prosecution at the Prieur hearing argued that the evidence was independently relevant because it revealed the defendant and co-defendant's motive and system. Specifically, the prosecutor argued that the two defendants had a plan of defrauding individuals, and that the defendants' pending charges reflected the system by which this occurs. Further, the prosecutor contended motive and system established an independent basis for the evidence because both the defendant and co-defendant were scheming to defraud the victim, and once the victim became aware of their plan, the two defendants planned his murder. After arguments, the trial court allowed the introduction of the evidence.
The procedure to be used when the State intends to offer evidence of other criminal offenses was formerly controlled by Prieur. Under Prieur, the State was required to prove by clear and convincing evidence that the defendant committed the other crimes. Prieur, 277 So. 2d at 129. However, 1994 La. Acts 3d Ex. Sess. No. 51, § 2 added La. C.E. art. 1104 and amended Article 404(B). Article 1104 provides that the burden of proof in pretrial Prieur hearings, "shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404." The burden of proof required by Federal Rules of Evidence Article IV, Rule 404, is satisfied upon a showing of sufficient evidence to support a finding by the jury that the defendant committed the other crime, wrong, or act. See Huddleston v. U.S., 485 U.S. 681, 685, 108 S. Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). The Louisiana Supreme Court has yet to address the issue of the burden of proof required for the admission of other crimes evidence in light of the repeal of La. C.E. art. 1103 and the addition of Article 1104. However, numerous Louisiana appellate courts, including this Court, have held that the burden of proof to now be less than "clear and convincing." Millien, 02-1006 at p. 11, 845 So. 2d at 514.
Louisiana jurisprudence allows the use of other crimes evidence to show modus operandi (i.e., system) as it bears on the issue of identity, particularly when the modus operandi employed by the defendant in both the charged and uncharged offenses is so peculiarly distinctive one must logically say they are the work of the same person. Hills, 99-1750 at pp. 5-6, 761 So. 2d at 520-21. Motive evidence reveals the state of mind or emotion that influenced the defendant to desire the result of the charged crime. To have independent relevance, the motive established by the other crimes evidence must be more than a general one, such as gaining wealth, which could be the underlying basis for almost any crime; it must be a motive factually peculiar to the victim and the charged crime. State v. McArthur, 97-2918, p. 3 (La. 10/20/98), 719 So. 2d 1037, 1041.
McArthur is superseded by La. C.E. art. 412.2 only with respect to other crimes evidence of sexually assaultive behavior. See State v. Wright, 11-0141, pp. 11-12 (La. 12/6/11), 79 So. 3d 309, 316-17.
After a review of the record, we find that the trial court abused its discretion in admitting evidence of the defendant allegedly negotiating counterfeit checks. The defendant in the instant case was charged with principal to second degree murder of Odis Roberts, a crime that is unrelated to allegedly negotiating counterfeit checks to unrelated third parties. The victims of the counterfeit checks were not Odis Roberts, the victim of the instant offense. Contrary to the State's assertion, we find that negotiating counterfeit checks to unrelated third parties does not establish the motive or system of the defendant in the instant case of principal to second degree murder. Because the other crimes evidence is not independently relevant, and does not satisfy any of the criteria for admissibility found in La. C.E. art. 404(B)(1), we find the trial court abused its discretion in admitting the evidence at trial.
Although the evidence was improperly admitted, this does not end our inquiry, since the erroneous admission of other crimes evidence is a trial error subject to harmless error analysis. See State v. Johnson, 94-1379, p. 17 (La. 11/27/95), 664 So. 2d 94, 102. Trial error occurs during the presentation of the case to the trier of fact and may be qualitatively and quantitatively assessed in the context of the other evidence to determine whether its admission at trial is harmless beyond a reasonable doubt. See State v. Ruiz, 06-1755, p. 7 (La. 4/11/07), 955 So. 2d 81, 86. Testimony at trial revealed that the victim positively identified the defendant as the shooter, who was thereafter located walking away from the crime scene with gloves in his pocket, and a seven-shot Smith and Wesson revolver belonging to the victim in his waistband. Additionally, three of the revolver's cartridges were spent, with one recovered bullet from the victim's vehicle tested and identified as being fired from the victim's revolver. Moreover, Dr. Suarez affirmatively testified that the victim died as a result of three gunshot wounds. Considering the evidence and testimony, we find that the guilty verdict reached in this case was surely unattributable to any error in the admission of evidence of the defendant's other crimes evidence. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) ("[t]he 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."). Thus, although admission of the other crimes evidence was erroneous and an abuse of the trial court's discretion, the error was harmless beyond a reasonable doubt. See La. C. Cr. P. art. 921; cf. State v. Bell, 99-3278, pp. 4-8 (La. 12/8/00), 776 So. 2d 418, 421-423 (introduction of other crimes evidence concerning a previous armed robbery inadmissible, and not harmless error, when the defendant's instant charge and conviction was also for armed robbery). Accordingly, this assignment of error lacks merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth pro se assignment of error, the defendant asserts he was denied effective assistance from both his trial and appellate counsel. First, he contends they were ineffective by failing to object, and raise on direct appeal, the "State's infringing [of] proper judiciary procedure and established Statutory Law and Rules of the Court [regarding] institution of prosecution, arraignment, and commencement [of] trial." Second, the defendant avers his trial counsel was ineffective for failing to present a defense and not calling any witnesses on his behalf. Furthermore, he asserts that trial counsel's "deficient planning and preparation of presenting a defense...cannot be relied on as having produced just results," and that if trial counsel had "applied reasonable due diligence" to effectively plan, review facts and circumstances, and present a defense, a reasonable probability exists that the outcome would have been different, as the State's case was "weak," and without any eyewitness or direct evidence connecting him to the crime.
A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192, p. 24 (La. 9/6/00), 776 So. 2d 396, 411, cert. denied, 531 U.S. 1194, 121 S. Ct. 1196, 149 L.Ed.2d 111 (2001). However, where the claim is raised as an assignment of error on direct review and where the record on appeal is adequate to resolve the matter, the claims should be addressed in the interest of judicial economy. State v. Calhoun, 96-0786, p. 9 (La. 5/20/97), 694 So. 2d 909, 914.
A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney's performance was deficient, and (2) the deficiency prejudiced him. The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or "a trial whose result is reliable." In order to show prejudice, the defendant must demonstrate that, but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984); State v. Felder, 00-2887, pp. 10-11 (La. App. 1st Cir. 9/28/01), 809 So. 2d 360, 370, writ denied, 01-3027 (La. 10/25/02), 827 So. 2d 1173. Further, it is unnecessary to address the issues of both counsel's performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So. 2d 857, 860 (La. App. 1st Cir. 1992), writ denied, 614 So. 2d 1263 (La. 1993).
Turning to the defendant's claim that his trial and appellate counsel were ineffective for failing to raise or object to the alleged untimely institution of prosecution, we find his attorneys' performances were not deficient, nor did the defendant suffer any prejudice as a result thereof. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. As noted above, La. C. Cr. P. art. 701(B)(1)(b) "merely authorizes pre-trial relief [...] from incarceration without bail or release of the bail obligation for one not incarcerated." Gordon, 04-0633 at p. 12, 896 So.2d at 1062-63. Moreover, La. C. Cr. P. art. 571 provides that there are no time limitations for the institution of prosecution for a crime which may be punishable by life imprisonment. Additionally, a successful article 701 motion would not have any effect on a murder trial or its outcome. Therefore, the defendant's trial counsel was not ineffective for failing to raise the issue at the district court. Furthermore, regarding defendant's appellate counsel's alleged failure to raise on direct appeal issues relating to the untimely institution of prosecution, once a defendant has been convicted, any allegation regarding the untimeliness of the institution of prosecution is moot. Gordon, 04-0633 at p. 12, 896 So. 2d at 1062-63.
With regard to the defendant's assertion of ineffectiveness of counsel due to failing to object to the alleged untimely commencement of trial, as previously stated, absent interruption or suspension of time limitations, no trial shall be commenced in non-capital felony cases after two years from the date of institution of prosecution. See La. C. Cr. P. art. 578(A)(2) and art. 580. Principal to second degree murder is a non-capital felony. See La. R.S. 14:30.1(B). The date of institution of prosecution is the date when the bill of information is filed or when the indictment is returned. See State v. Gladden, 260 La. 735, 742-43, 257 So. 2d 388, 391 (1972), cert. denied, 410 U.S. 920, 93 S. Ct. 1377, 35 L.Ed.2d 581 (1973). When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial. La. C. Cr. P. art. 580(A). A motion to continue filed by a defendant is a preliminary plea under La. C. Cr. P. art. 580 that suspends the running of the time limitations established by La. C. Cr. P. art. 578. See State v. Marshall, 99-2884, p. 4 (La. App. 1st Cir. 11/8/00), 808 So. 2d 376, 379. Joint motions to continue also constitute preliminary pleas for purposes of Article 580. See State v. Fish, 05-1929, p. 3 (La. 4/17/06), 926 So. 2d 493, 495 (per curiam). Moreover, this Court has held that motions to continue status conferences are valid preliminary pleas for purposes of suspending the running of the time limitations established by Article 578. See Marshall, 99-2884 at p. 4, 808 So. 2d at 379.
The record reflects that institution of prosecution began on December 5, 2011, when the indictment was returned by the grand jury. Thus, initially, the State had until December 5, 2013, to commence trial in this matter. Trial was originally scheduled for May 14, 2012. However, the minute entry of May 2, 2012, indicates that defense counsel filed a motion to continue trial, which was granted by the trial court. Trial was then scheduled for June 18, 2012. On June 6, 2012, however, upon motion of the defendant, the trial date was continued until September 17, 2012. Thereafter, due to discovery issues and to allow for a hearing under Prieur, the trial court rescheduled trial for March 7, 2013. Following the Prieur hearing, on May 1, 2013, pursuant to another motion to continue by defense counsel, "the trial of motions," along with the pre-trial conference, was continued by the trial court. Moreover, on July 10, 2013, and August 7, 2013, on joint motion of the defense and the State, "the trial of motions," as well as the pre-trial conference, was continued by the trial court. Thus, the State had until August 7, 2014, to commence trial. Trial began on February 18, 2014, with jury selection. Therefore, the State timely commenced trial within the one year provided by Article 580(A).
This Court has held that when the substantive issue an attorney has not raised has no merit, then the claim that the attorney was ineffective for failing to raise the issue also has no merit. State v. Baker, 14-0222, p. 13 (La. App. 1st Cir. 9/19/14), 154 So. 3d 561, 569, writ denied, 14-2132 (La. 5/15/15), ___ So. 3d ___. Therefore, the defendant's assertions of ineffective assistance of counsel regarding failing to raise issues of untimely institution of prosecution and untimely commencement of trial are moot or otherwise without merit.
The remainder of the deficiencies alleged by the defendant on appeal address matters of trial preparation and strategy. Decisions relating to investigation, preparation, and strategy require an evidentiary hearing and, therefore, cannot possibly be reviewed on appeal. State v. Allen, 94-1941, p. 8 (La. App. 1st Cir. 11/9/95), 664 So. 2d 1264, 1271, writ denied, 95-2946 (La. 3/15/96), 669 So. 2d 433. Further, under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with an accused and his attorney. The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. Furthermore, "[t]he election to call or not call a particular witness is a matter of trial strategy and not, per se, evidence of ineffective counsel." State v. Folse, 623 So. 2d 59, 71 (La. App. 1st Cir. 1993). Moreover, the defendant's contention regarding the lack of eyewitness or direct evidence connecting him to the crime is incorrect, as the victim positively identified the defendant as the shooter, and the defendant's own statement to Detective Lejeune from the night of the shooting places him at the abandoned house, establishes he shot the victim's revolver, and that he subsequently fled the crime scene.
The defendant would have to satisfy the requirements of La. C. Cr. P. art. 924, et seq., in order to receive such a hearing.
For these reasons, this assignment of error is without merit, moot, or otherwise not subject to appellate review.
CONVICTION AND SENTENCE AFFIRMED. DRAKE, J., concurs and assigns reasons.
I respectfully concur. I write separately to clarify that I agree with all of the conclusions of the majority, with one exception. I believe that the trial court was correct in allowing in the other crimes evidence due to the unique facts of this case. In all other respects, I agree with the majority.
For these reasons, I respectfully concur.