Defendant, Billy DeWayne Powell, was convicted by a jury of the Second Degree Murder of Derrick Abney pursuant to LSA-R.S. 14:30.1. The court sentenced Powell to life imprisonment without benefit of probation, parole, or suspension of sentence. He now brings this appeal urging six assignments of error. For the reasons that follow, we affirm.
On Thursday evening, April 6, 1995, the defendant and two friends, Latrese Gandy and LaQoanna Spriggs, went to the "Ponderosa Club" in Lincoln Parish. Just before 10 p.m., Powell and another patron, Derrick Abney, got into a heated argument. After some pushing and shoving, Powell pulled out a pistol and shot Abney in the head, killing him instantly. The defendant left the scene but was arrested the next day by Deputy Kenneth Wesley of the Lincoln Parish Sheriff's Department. Powell was charged with the Second Degree Murder of Derrick Abney.
Deputy Wesley learned of the murder involving Powell on Thursday evening shortly after its commission. He had been investigating a complaint by the victim, Derrick Abney, that on March 30, Powell and another man, Derrell Carter, got into an argument with Abney over $100 that Abney had allegedly stolen from Carter. When the argument became physical, Abney ran away from the two men. Powell then fired 3 or 4 shots at the fleeing Abney, one of which struck Abney in the hip.
The defendant testified at trial, and he admitted that he killed Abney at the Ponderosa Club, but he claimed that the shooting was done in self-defense after he saw Abney reaching into his clothing for what he believed to be a weapon. Powell testified that he had heard rumors that Abney had threatened to kill him if he got the chance. Over defense objections, Powell admitted that the threats made by Abney against his life were probably due to the fact that Powell had shot Abney the week before. Several witnesses to the shooting testified that they did not see Abney make any threatening movement. The jury rejected Powell's exculpatory story and convicted him as charged. We now consider the assignments of error defendant raises on appeal in the order of their presentation.
On June 5, 1995, the defense filed a discovery motion requesting, among other things, the following order:
On the morning of October 25, after the jury had been impaneled for trial, the state gave defense counsel a copy of a report showing two prior arrests of the defendant. Heretofore, in two prior responses to the discovery motion on June 12 and October 20, the state had made no mention of prior criminal arrests or convictions. The afternoon of October 25, the state gave the defense a copy of a formal amending and supplemental discovery answer that indicated that Mr. Powell had been convicted of aggravated battery in 1992 and simple battery in 1992. Defense counsel objected in open court to the responses as being untimely.
The state responded that it just did not have the information until that morning. It
Prior to commencing testimony at trial on October 26, 1995, the court ruled that the evidence of the prior convictions could be used by the state. We specifically note, however, that no Prieur hearing was held, nor did the court rule that the evidence of prior crimes was admissible for one of the express purposes stated under LSA-C.E. art. 404(B).
At trial, Powell took the stand to testify on his own behalf. Anticipating that the state would use the prior convictions to impeach his credibility, on direct examination Powell testified regarding the prior convictions. Defendant complains on appeal that the state did not timely provide the information, and the trial court's admission of the evidence was in error. Specifically, the defendant argues that "the failure of the State to request the information, which was available to it from the very beginning, until so close a time as the actual trial, thus preventing the defense from adequately preparing, defeats the purpose of the discovery rules."
In State v. Baldwin, 448 So.2d 834, 837 (La.App. 2d Cir.1984), this court stated:
Further, in State v. White, 430 So.2d 174, 181 (La.App. 2d Cir.1983), this court said:
See also State v. Goza, 408 So.2d 1349, 1352 (La.1982) and State v. Rice, 626 So.2d 515, 520 (La.App. 3rd Cir.1993).
Facts similar to those in Baldwin are present in this case. The state did not possess the information about the defendant's convictions until the trial began. Mr. Sheehan, the assistant District Attorney, stated that he was not aware of any prior convictions until that morning when Deputy Wesley mentioned it. They checked it out and discovered a city court conviction and a felony conviction in Caldwell Parish. Mr. Sheehan stated that his office was unaware of the convictions because they were out of their jurisdiction.
In State v. Neal, 535 So.2d 757, 761 (La. App. 2d Cir.1988), this court stated:
At the time Neal was decided, LSA-C.Cr.P. art. 720 expressly stated that the district attorney need not notify the defendant of evidence of offenses used for impeachment purposes. LSA-C.Cr.P. art. 720 has deleted this express provision but still does not require notice of "other crimes for which the accused was previously convicted" so long as that evidence is not to be used pursuant to LSA-C.E. art. 404(B).
In light of Baldwin, White and Neal, the trial court correctly ruled that the state's discovery response was timely. This assignment of error is without merit.
On direct examination, when asked whether he had ever been convicted of a crime, Powell admitted that he was convicted of aggravated battery in 1992 and sentenced to 5 years suspended sentence and 5 years probation. He also testified that he had been convicted of simple battery in Ruston in 1992 or 1993 and given six months probation. These were the two crimes on the report supplied to the defense the day before trial testimony began.
When the prosecutor began cross-examination of the defendant, he questioned the defendant about his prior aggravated battery conviction. After eliciting answers about the date and sentence for this conviction, the prosecutor asked Powell what type of weapon he used in the prior crime. Defense counsel immediately objected to questioning about the details of the offense on the grounds that the question was outside the scope of LSA-C.E. art. 609.1.
Over the defendant's objection, the judge ruled that Article 609.1 was not applicable in this instance, this article being limited to evidence of prior convictions in connection with impeachment of the credibility of a witness. Rather, the judge found that LSA-C.E. art. 404(B)
On appeal, defendant argues that the trial court committed reversible error by allowing the state to elicit testimony from the defendant regarding the details of this prior offense.
Paragraph C of LSA-C.E. art. 609.1 modifies the prior law regarding admissibility of details of prior convictions pronounced in State v. Jackson, 307 So.2d 604 (La.1975) and State v. Oliver, 387 So.2d 1154 (La.1980). See Comments to LSA-C.E. art. 609.1. In State v. Tassin, 536 So.2d 402 (La.1988), cert. denied 493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 159 (1989), the supreme court allowed the admission of the defendant's prior conviction records which showed the nature of the offense, even though the defendant admitted the convictions on direct examination. In that case, the supreme court applied LSAR.S. 15:495, which was the law prior to LSA-C.E. art. 609.1, and relied on State v. Jackson, supra. In a footnote, however, the Tassin court indicated that the new C.E. art. 609.1(C) would restrict such evidence unless the defendant denies the conviction, testifies to exculpatory facts, or when the probative value outweighs the danger of unfair prejudice or jury confusion. Tassin, supra, note 15 at 409.
Commentators have suggested that the last exception creates a balancing test in which probative value refers to relevancy of the evidence as to the credibility of the defendant and the use of "may be admissible" means that even in those listed instances admissibility is not automatic. See Pugh, Force, Rault, and Triche, Handbook on Louisiana Evidence Law, p. 370 (1996). See also, State v. Singleton, 589 So.2d 1166 (La. App. 4th Cir.1991) where the court held that unlike prior law, details of the offense are not generally admissible simply to show the `true nature' of the previous crime. For the details to be admissible, the requirements of Article 609.1(C) must be met.
Based upon our review of Article 609.1 and the authority cited in the foregoing discussion, we likewise agree that the third exception of Article 609.1(C) allows cross-examination into the details of a prior conviction only where the issue of the witness' credibility is raised and the details of the prior conviction are probative in impeaching his testimony and not outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. For example, if a defendant, previously convicted of aggravated battery, testified at trial that he had never used a gun, the details of the prior conviction showing that he used a gun in that offense would be probative regarding the credibility of the witness, and such cross-examination into that detail of the prior crime may be permissible under Article 609.1 C(3).
In this instance, the trial court's ruling regarding the admissibility of the details of the prior aggravated battery conviction was not based upon the court's view that the evidence was relevant to an issue of the credibility of the witness, thereby implicating the exception under Article 609.1 C(3). Rather, the court relied upon LSA-C.E. art.
The state next contends, and the trial court so ruled, that the details of the prior convictions were permissible under LSA-C.E. art. 404(B), cited supra at note 2. Ordinarily, evidence of other crimes for purposes other than impeachment is inadmissible except in certain circumstances and provided certain safeguards are met. In State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 99, the Louisiana Supreme Court gave this overview of the use of "other crimes" evidence:
In the instant case, the trial court allowed the other crimes evidence in under the rubric of LSA-C.E. art. 404(B). Under that article, evidence of other acts is allowed to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." See note 2 at p. 1285, supra. One of these factors must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible. State v. Jackson, 625 So.2d 146 (La.1993).
In Jackson, supra at 149, the high court restated the well-established requirements for the admissibility of "other crimes" evidence:
In this case, the record shows that the state had the evidence in its possession on October 25 and throughout its case in chief, and it elected not to use it for a substantive purpose under Article 404(B) to show a common plan, pattern, system or "signature crime." As previously noted, when the state argued on October 26 for the admissibility of the evidence for possible impeachment purposes, the prosecutor stated:
Thus, the state clearly failed to give any notice before trial of its intent to use the evidence of other crimes for the purposes cited in Article 404(B). Based upon its initial representation to the trial court that it only intended to use the evidence for purposes of impeachment, we believe that the state waived its right to use this evidence in its case-in-chief to show that the defendant had acted according to a "pattern," or that the crime was a "signature crime," if, in fact, this element falls within the scope of Article 404(B) and has some relevance in this case.
In determining whether reasonable notice was given to the defendant of the state's intent to use other crimes evidence, the court must first consider whether the defendant had sufficient time to adjust his trial strategy. State v. Tennant, 352 So.2d 629 (La.1977). State v. Baker, 535 So.2d 861 (La.App. 2d Cir.1988). Although we have held that notice one day prior to trial did not constitute prejudicial surprise where the state filed the notice the same day that the witness to the prior bad act came forward, see State v. Free, 26,267 (La.App.2d Cir. 9/21/94), 643 So.2d 767, the notice to the defendant in this instance did not come until the state began its cross-examination and after trial had begun. Moreover there was no pretrial Prieur hearing. State v. Allen, 26,547 (La.App.2d Cir. 12/7/94), 647 So.2d 428; State v. Tolliver, 621 So.2d 17 (La.App. 2d Cir.1993).
We therefore conclude that, once the defendant elected to testify, the issue of the use of the evidence of the conviction and its details for the sole purposes of impeachment of the defendant's credibility was the only issue before the court. Article 609.1 as discussed above governed that issue, and the details of the crime should have been ruled inadmissible.
For these reasons, we hold the trial court clearly erred in allowing the cross-examination of the defendant regarding the aggravated battery under LSA-C.Cr.P. art. 720 and LSA-C.E. art. 404(B) in the absence of the notice required by Article 720 and Prieur.
The question remains whether this error by the trial court requires reversal. LSA-C.Cr.P. art. 921 provides:
In State v. Johnson, 94-K-1379 (La.11/27/95), 664 So.2d 94, the trial court erroneously allowed evidence of other burglaries under Article 609.1 after the defendant admitted to only one burglary conviction. Although the defendant was charged with six burglaries on the bill of information introduced into evidence, it turned out that due to a plea arrangement, he pled to and was convicted of only one burglary. Because the Article 609.1 exception to the "other crimes" prohibition allows only convictions into evidence, the trial court had clearly erred. The sole question was whether reversal was required under LSA-C.Cr.P. art. 921.
In examining Article 921 and the history of this codified harmless error rule, the supreme court stated that the erroneous introduction of other crimes evidence is a trial error, i.e., an error which occurs during the case's presentation to the trier of fact, which may be quantitatively assessed in the context of the other evidence. As such, it may be reviewed for harmless error.
The court noted that the inquiry "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." State v. Johnson, supra at 100, citing Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). The Johnson court went on to hold that because there were two eyewitnesses who testified to the stabbing at
In this instance, although there may have been some prejudice to the defendant by the evidence of the details of the prior conviction, we hasten to add in this instance that the defendant admitted to the shooting of the victim. There was no issue of identification of the defendant as the killer. The issue in this instance was the defendant's description of the actions of the victim that allegedly led to the shooting and his claim that he acted in self-defense. The state presented testimony of several eyewitnesses to the shooting. These witnesses all said that the victim did not have a visible weapon and did not move his hands as if reaching for a weapon as the defendant claimed. By contrast, except for the defendant himself, the defense put on no eyewitnesses to the shooting whose testimony supported the "reaching for a weapon" account by the defendant. The details of the defendant's actions in the prior aggravated battery do not bear upon or relate to the victim's actions in this case where the crux of the issue is self-defense.
We conclude that the state's evidence is surely enough to refute the defendant's claim of self-defense, and therefore, the guilty verdict was unattributable to the error. We are convinced beyond a reasonable doubt that the admission of the details of the prior conviction was harmless error.
When the defendant took the stand, he told the jury his version of the events leading up to the killing. He testified that he saw the victim reaching into his clothing and believed that the victim was reaching for a weapon. Defense counsel then asked:
On cross-examination, the state questioned the defendant about the details of this threat. The defendant again testified that the victim had threatened to kill him. Over the defendant's objection, the following colloquy then occurred:
On redirect, the defendant urged that this March 30th shooting was also in self-defense.
The defendant objected on the basis of LSA-C.E. art. 404(B) to the introduction of evidence relating to the incident on March 30 because the state had not given the proper notice under LSA-C.Cr.P. art. 720 and State v. Prieur, supra. The trial court overruled this objection, stating that the defendant had raised the issue on cross-examination and the state should be entitled to fully explore the
The defendant's position that Article 404(B) was violated is without merit. The March 30 incident was not discussed by the state in the above quoted cross-examination for the purposes listed in 404(B) regarding motive, plan, etc. relevant to the state's case nor was it discussed to show bad character of the defendant. The exchanges and conduct between the defendant and the victim in the days leading up to the killing were incidents first raised as a part of the defense to show the violent character of the victim under LSA-C.E. art. 404(A)(2). Once the defendant raised the issue of the verbal threats by Abney toward the defendant, the defendant's conduct in wounding Abney in that prior exchange on March 30 was relevant for an understanding of the complete incident between the parties. The defendant's evidence of the victim's threatening character stemmed from and was interrelated with the prior shooting, demonstrating the defendant's wrongful act and character. The state was properly allowed to probe the facts of that incident for rebuttal of the defense. State v. Silguero, 608 So.2d 627 (La.1992). This assignment of error has no merit.
This assignment of error has been neither briefed nor argued and is, therefore, considered abandoned. U.R.C.A. Rule 2-12.4.
The defendant testified that, after he shot the victim, he left the scene. The following is the relevant colloquy:
Deputy Kenneth Wesley arrested the defendant the next day. The deputy spotted the defendant walking down the street; the defendant came up to the deputy's car and told the deputy that he was Billy Powell. The deputy testified that the defendant made no effort to run away.
The defendant objected to the court's inclusion of a "flight" charge in the charge to the jury. That charge, which was given over the defendant's objection, reads:
See, e.g., State v. Smith, 26,661 (La.App.2d Cir. 3/1/95), 651 So.2d 890, writ denied, 95-0918 (La.09/15/95), 660 So.2d 458. On appeal, defendant contends that the trial court erred in giving this charge. He argues that "while the defendant in this case left the scene, absolutely no evidence was presented indicating he attempted to flee the scene, let alone from Deputy Wesley when confronted the following day, to prevent his arrest."
This argument is without merit. The defendant testified that he quickly left the scene after the shooting. Latrese Gandy testified that the defendant stayed at the scene "about ten seconds" after the shooting. Perhaps most importantly, the defendant testified that he disposed of the murder weapon
This assignment of error is without merit.
During closing argument, on rebuttal, the following exchange occurred:
And later in his argument, the prosecutor said: "[T]hink of the standard that you want to set for this parish." The defendant's objection to this comment was overruled.
On appeal, the defendant argues that the trial court committed reversible error by allowing the prosecutor to ask the jury to set the standards for the parish. Defendant alleges that the state's argument went beyond the proper scope of closing argument as delineated in LSA-C.Cr.P. art. 774, which provides:
In State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, 1285-1286, the supreme court said:
Defendant contends that the remarks were so improper as to require reversal. The state admits that the comments "may have exceeded the limits of LSA-C.Cr.P. art. 774" but argues that they were not so improper as to require reversal. We agree. See State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, where the prosecutor's request that the jury "take a stand against crime" was held non-reversible error. The prosecutor's remarks did not rise to a level that convinces us that the jury's verdict was improperly influenced in this instance.
This assignment of error is without merit.
HIGHTOWER, J., concurs with written reasons.
HIGHTOWER, Judge, concurring.
Although agreeing that this record well supports the affirmance, I am uncomfortable with the majority's overly narrow view of Article 609.1(C). The discretion of the trial judge, when determining admissibility under 609.1(C)(3), should not be disturbed on appeal in the absence of abuse.
APPLICATION FOR REHEARING
Before HIGHTOWER, STEWART, GASKINS, CARAWAY and PEATROSS, JJ.