State Of Louisiana VS Brandon Brue
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KA 2281 0 A L DJ STATE OF LOUISIANA VERSUS BRANDON BRUE Judgment Rendered May 7 2010 On Appeal from the 18th Judicial District Court In and For the Parish of Pointe Coupee Trial Court No 73 624F Honorable James J Best Judge Presiding Richard J Ward Jr Counsel for Appellee District Attorney Antonio Clayton Elizabeth A Engolio Assistant District Attorneys New Roads LA State of Louisiana Lance C Unglesby Baton Rouge LA Counsel for Defendant Appellant Brandon Brue Pro Se Brandon Brue Angola LA BEFORE WHIPPLE HUGHES AND WELCH JJ w HUGHES I The defendant Brandon Brue was charged by grand jury indictment with second degree murder count one attempted second degree murder count two and possession of firearm or carrying concealed weapon by a convicted felon count three violations of LSAR 14 LSA R 14 and LSA R S 30 1 S 27 S 1 95 14 The defendant entered a plea of not guilty Upon a trial by jury the defendant was found guilty as charged On count one the defendant was sentenced to life imprisonment at hard labor without the benefit of parole probation or suspension of sentence On count two the defendant was sentenced to fifty years imprisonment at hard labor without the benefit of parole probation or suspension of sentence On count three the defendant was sentenced to fifteen years imprisonment at hard labor without the benefit of parole probation or suspension of sentence and to pay a fine of one thousand dollars The trial court ordered that the sentences be served consecutively The defendant now appeals assigning errors to the admission of other crimes evidence hearsay testimony Yarnell Brue s written statement and the sufficiency of the evidence For the following reasons we affirm the convictions and sentences FACTS During the early morning hours of June 9 2007 a shooting occurred at the residence of Yarnell Gage Brue the defendant swife and deceased victim herein in Pointe Coupee Parish Yarnell Brue suffered a gunshot wound to the pelvic area and died of exsanguination Christopher Gremillion was present at the time of the shooting and suffered four gunshots wounds specifically one to the left chest wall one to the right buttock and two to the right forearm but survived After The status of the marriage of the defendant and the deceased victim was not clearly established during the trial Testimony seemingly indicated that the couple were estranged and not living together for a period of time leading up to and at the time of the offenses 2 interviewing Gremillion the police determined that the defendant was the suspect in the shooting The defendant was ultimately arrested and convicted ASSIGNMENT OF ERROR NUMBER FOUR In the fourth assignment of error the defendant contends that the evidence was insufficient to support the guilty verdicts The defendant contends that he was convicted solely upon the single unswom and uncorroborated videotaped statement of Christopher Gremillion in response to police questioning The defendant contends that Gremillion statement was contradicted by eyewitness testimony s and physical evidence found at the scene The defendant argues that since the veracity of Gremillion sstatement could not be tested due to his refusal to testify or answer questions the evidence could not have been believed by any rational or reasonable juror While not disputing that Yarnell Brue was killed and Gremillion was shot the defendant disputes that he was the person who committed the acts and disputes the State proved that he was in possession of a firearm The defendant argues that several reasonable hypotheses of innocence remain The defendant specifically hypothesizes that Gremillion arrived at the home of Yarnell Brue and found Yarnell with a third man with whom a fight and gunfire ensued The defendant further hypothesizes that Gremillion and Yarnell Brue were sexually involved The defendant concludes that no rational juror could have found that the State proved beyond a reasonable doubt that he was guilty of any of the crimes charged When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors the reviewing court should first determine the sufficiency of the evidence The sufficiency claim is reviewed first because the accused may be entitled to an acquittal under Hudson v Louisiana 450 U 40 S 101 S 970 67 L 30 1981 if a rational trier of fact viewing the Ct 2d Ed evidence in accordance with LSAC art 821 and Jackson v Virginia 443 P Cr 3 S U 307 99 S 2781 61 L 560 1979 in the light most favorable to the Ct 2d Ed prosecution could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt When the entirety of the evidence including inadmissible evidence that was erroneously admitted is insufficient to support the conviction the accused must be discharged as to that crime and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot 2 On the other hand when the entirety ofthe evidence both admissible and inadmissible is sufficient to support the conviction the accused is not entitled to an acquittal and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial If the reviewing court determines there has been trial error which was not harmless in cases in which the entirety of the evidence was sufficient to support the conviction then the accused must receive a new trial but is not entitled to an acquittal even though the admissible evidence considered alone was insufficient State v Hearold 603 So 731 734 La 1992 2d When analyzing circumstantial evidence LSA R 15 provides that the S 438 trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence State v Graham 2002 1492 p 5 La App 1 Cir 03 14 2 845 So 416 420 When a case involves circumstantial evidence and 2d the jury reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt State v Moten 510 So 55 61 La App 1 2d Cir writ denied 514 So 126 La 1987 2d Louisiana Revised Statutes 14 in pertinent part defines second degree 1 30 murder as the killing of a human being when the offender has a specific intent to 2 Alternatively the accused could be entitled to a reduction of the conviction to a judgment of guilty of a lesser and included offense LSAC Part 821 Cr EState v Byrd 385 So 248 251 La 1980 2d M kill or to inflict great bodily harm To support a conviction of attempted second degree murder the State must prove that the defendant tried to 1 kill a human being 2 when he had the specific intent to do so LSAR 14 and S 30 A 1 LSAR 14 Specific criminal intent is that state of mind which exists S 27 A when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act LSA R 14 S 10 1 Specific intent may be proved by direct evidence such as statements by a defendant or by inference from circumstantial evidence such as defendant s actions or facts depicting the circumstances State v Cummings 993000 p 3 La App 1 Cir 11 771 So 874 876 Specific intent to kill is easily 00 3 2d inferred if a gun is pointed and fired at the victims See State v Noble 425 So 2d 734 736 La 1983 The elements ofpossession ofa firearm by a convicted felon are 1 possession of a firearm 2 conviction of an enumerated felony and 3 absence ofthe tenyear statutory period of limitation LSA R 14 S 95 A 1 As noted in this case the defendant does not contest the fact that the murder and attempted murder occurred but instead challenges his identity as the perpetrator and his possession of a firearm Where the key issue is the defendant s identity as the perpetrator rather than whether or not the crime was committed the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof State v Smith 430 So 31 45 La 1983 State v 2d Long 408 So 1221 1227 La 1982 2d Evidence of the defendant sprior felony conviction was presented during the testimony of the first State witness Lance Snell of State Probation and Parole West Baton Rouge District The defendant had been previously charged with aggravated assault with a firearm a violation of LSAR 14 S 37 4and illegal use of weapons or dangerous instrumentalities a violation of LSAR 14 S 94 According to the bill of information in the State exhibit the charges regarded an s 5 incident occurring on or about July 17 2005 involving Cody Wells As discussed herein Wells also testified at trial The defendant pled guilty to illegal use of a weapon or dangerous instrumentalities and the remaining charge was nolprossed State witness Sheena Joseph lived in Jackson Plaza across the street from the deceased victim On the evening in question she looked outside when she thought she heard a door being slammed deceased victim home s She saw a person running from the Joseph stated that the person appeared as if he were putting his shirt on while running Joseph became afraid closed her door and called 911 The recording of Joseph 911 telephone call was played during the s trial During the recording Joseph stated she heard gunshots and saw a black male run across the yard of Yarnell and Brandon Brue with a white T shirt in his hand trying to put it on At some point either before or after the 911 telephone call Joseph looked out her window and saw someone on the victim porch who she did s not believe was the same individual who ran from the home Joseph responded positively when asked during cross examination if she heard more gunshots after the person on the porch went back into the home Joseph testified that the police arrived within fifteen minutes of her 911 telephone call Joseph could not identify the individuals because she could not see them well Joseph stated that she heard an approximate total of six gunshots but could not remember how many were before or after her 911 telephone call Detective Lester Jarreau of the Pointe Coupee Parish Sheriff Office s responded to the scene of the shooting He noted blood on the floor and one black female lying on her side with a single gunshot wound through her hip The female victim was in the bedroom on a bed and there was a lot of blood in the front of the bed and two projectiles 357 or 38 caliber bullets on the floor Detective Jarreau further testified that the two projectiles possibly struck Christopher Gremillion and exited his body before coming to rest on the floor R Further Detective Jarreau testified regarding a third projectile that appeared to have struck Yarnell Gage Brue exited her body and traveled through the mattress of the bed and the floor beneath Detective Jarreau stated that there was a blood trail outside the house including the porch There was a footprint on the door and other signs of forced entry or that the door was kicked open Photographs of the scene showed that the female victim was wearing a Tshirt and underwear when the police arrived a condom was located on the floor next to the bed and more condoms had been disposed of in the trash Detective Jarreau testified that the condoms were not used After speaking with the surviving victim Christopher Gremillion the police began looking for the defendant The police checked with the defendant sfamily members obtained an arrest warrant and had media broadcasts that included the offer of a reward in an attempt to locate the defendant Almost three months later the police received information regarding the defendant swhereabouts in Dallas Texas At trial although he refused to answer questions regarding the incident Gremillion confirmed that he was truthful during his videotaped interview by the police During the interview Gremillion stated that he went to the deceased s victim home to have her braid his hair All of a sudden Gremillion heard a loud kick on the door and after jumping up saw the defendant standing about two feet away from him with a 357 Magnum pointed toward his chest According to Gremillion the defendant shot him first in the chest and he fell Yarnell was pleading with the defendant to stop Gremillion used his right arm to cover his face and the defendant shot him two times in the arm and in his backside as he turned over The defendant then shot Yarnell before leaving the house Gremillion 3 The three projectiles examined at the Louisiana State Police Crime Lab by forensic scientist Jeff Goudeau were fired from the same unknown firearm were most consistent with 38 caliber and could have been Fred from a 357 caliber revolver 7 looked at Yarnell and observed that she was unable to speak He stood up and ran out of the house to a nearby relative residence and was rushed to the hospital s Gremillion stated that he was sure it was the defendant who shot them and that he was able to see the defendant clearly He had known the defendant for about five years and saw him on a daily basis before the shooting Gremillion also stated that the defendant father is married to Gremillion aunt s s Trooper Daryl Derosin of the Louisiana State Police Troop A had investigated a complaint by the deceased victim on June 2 2007 seven days before her murder Trooper Derosin stated that the victim was supposed to bring him a statement regarding the complaint but did not do so The victim mother who s testified that she found the statement in the victim glove compartment and that it s was in her handwriting ultimately gave Trooper Derosin the statement purportedly written by the victim The letter stated that the defendant called her place of employment and verbally threatened to kill her and that he was very abusive The letter further stated that the defendant ransacked her home and put clothes in her tub and doused them with Clorox and lighter fluid Revious Harrington testified regarding a January 29 2005 shooting incident involving the defendant Harrington stated that he and the defendant had a misunderstanding and the defendant shot a gun upward in the air after Harrington turned his back to walk away Harrington also stated that no one was hurt his friendship with the defendant was rekindled and criminal charges were not pursued Harrington assumed that the defendant shot in the air and not at him because he was not struck Cody Wells testified regarding a July 17 2005 incident Wells stated that he did not clearly remember the incident but stated I think we got in a fight or something Wells remembered completing a police statement When confronted with the language of a portion of the statement indicating that the defendant went 9 to his vehicle and retrieved a gun after Wells got the best of the defendant Wells indicated that his statement must have been true but he could not recall the incident Wells stated that he had been shot at several times in his life and could not remember a shooting incident involving the defendant During the trial the defendant did not testify or present any witnesses As noted the defendant does not contest the validity of his prior felony conviction or that the instant shootings and murder occurred Thus the identity ofthe shooter is the only contested issue While Gremillion refused to answer questions related to the event during the trial in his recorded interview with the police he unequivocally and convincingly stated that the defendant shot him and the victim Gremillion had a clear view of the defendant and knew the defendant well During the trial Gremillion stated that he told the truth during the interview Positive identification by only one witness may be sufficient to support the defendant sconviction State v Hayes 94 2021 p 4 La App 1 Cir 11 665 So 92 94 writ denied 95 3112 La 95 9 2d 97 18 4 692 So 440 We are convinced that the evidence presented negated 2d any reasonable probability of misidentification Specific intent to kill in this case is easily inferred from the fact that a gun was pointed and fired at the victims Viewing all of the evidence in a light most favorable to the prosecution any rational trier of fact could have found that the State proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence all of the elements of second degree murder attempted second degree murder the s defendant identity as the perpetrator of the offenses and that the defendant a convicted felon possessed and used a firearm 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 0 Calloway 20072306 pp 1 2 La 1 1 So 417 418 per curiam For 09 21 3d the above reasons this assignment of error is without merit ASSIGNMENT OF ERROR NUMBER ONE In the first assignment of error the defendant contends that other crimes evidence admitted during the trial was not admissible pursuant to LSA C art E B 404 The defendant notes that the State presented evidence of a conviction for illegal discharge of a firearm another accusation of an illegal discharge of a firearm offense that was dismissed and a statement allegedly written by Yarnell Brue before her death accusing the defendant of threats and criminal damage to property The defendant contends that the evidence of the illegal discharge of firearm offenses was not relevant The defendant argues that based upon the testimony and facts of the prior cases he has a history of standing up for himself and scaring people who cross him not killing them On this basis the defendant contends that to say the prior alleged crimes show his system or modus operandi is incorrect The defendant further argues that identity is the issue in this case and the fact that he previously discharged a firearm on two separate occasions does not tend to prove he was the person with specific intent to kill Yarnell Brue or Gremillion The defendant notes that multiple gunshots were fired in the instant case and that he had not been accused of shooting anyone in the past The defendant additionally argues that even if the evidence of the prior offenses is found to be somewhat relevant the probative value is outweighed by the prejudicial effect The defendant concludes that a new trial should be granted Generally evidence of other crimes committed by the defendant is inadmissible due to the substantial risk of grave prejudice to the defendant To admit other crimes evidence the State must establish that there is an independent and relevant reason for doing so i to show motive opportunity intent e 10 preparation plan knowledge identity absence of mistake or accident or when it relates to conduct that constitutes an integral part of the act See LSAC art E 1 B 404 Evidence of other crimes however is not admissible simply to prove the bad character of the accused Furthermore the other crimes evidence must tend to prove a material fact genuinely at issue and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect State v Millien 2002 1006 p 10 La App 1 Cir 2 845 So 506 513 14 Prejudicial 03 14 2d effect limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial See Old Chief v United States 519 U S 172 180 117 S 644 650 136 L 574 1997 Ct 2d Ed The term unfair prejudice as to a criminal defendant speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged State v Jarrell 2007 1720 pp 10 11 La App 1 Cir 9994 So 620 629 30 08 12 2d The procedure to be used when the State intends to offer evidence of other criminal offenses was previously dictated by State v Prieur 277 So 126 La 2d 1973 Prior to its repeal by 1995 La Acts No 1300 2 LSA C art 1103 E provided that the notice requirements and clear and convincing evidence standard of Prieur and its progeny were not overruled by the Code of Evidence Under Prieur the State was required to give a defendant notice both that evidence of other crimes would be offered against him and of which exception to the general exclusionary rule on which the State intended to rely Additionally the State had to prove by clear and convincing evidence that the defendant committed the other crimes Millien 2002 1006 at p 10 845 So at 514 However 1994 La Acts 2d 3d Ex Sess No 51 added LSAC art 1104 which provides that the burden of E proof in pretrial Prieur hearings shall be identical to the burden ofproof required by Federal Rules of Evidence Article IV Rule 404 The burden of proofrequired 11 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 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 ofLSA C art 1103 and the addition of LSA C E E art 1104 However numerous Louisiana appellate courts including this court have held that burden of proof to now be less than clear and convincing Millien 20021006 at p 11 845 So at 514 2d Herein a Prieur hearing was held before the trial giving notice of the s State intent to present evidence of prior shooting incidents involving the defendant and bad acts involving the deceased victim herein At the hearing Major James Johnson of the District Attorney sOffice and Sheriff sOffice in West Baton Rouge Parish testified regarding a January 29 2005 incident that led to the defendant being charged with aggravated assault and illegal use of a weapon The incident involved a disagreement regarding money and consisted of an altercation between the defendant and Rivious Harrington During this incident the defendant shot at Harrington twice It occurred at the same home as the instant offenses Major Johnson could not confirm whether the gun had been seized but stated that Harrington described the gun Major Johnson did not personally investigate the incident Harrington did not pursue the case and the charges were dropped In Huddleston v U 485 U 681 108 S 1496 99 L 771 1988 the Supreme Court stated S S Ct 2d Ed that for purposes of Federal Rule of Evidence 404 other act evidence should be admitted if there is b sufficient evidence to support a finding by a jury that the defendant committed the similar act The Huddleston court rejected the suggestion that an other act was required to be proven by clear and convincing evidence and held that the preponderance of the evidence standard was applicable Louisiana courts of appeal have ruled in accordance with Huddleston v U with respect to LSAC arts 404 S E B and 1104 See State v Schleve 993019 pp 1314 La App 1 Cir 12 775 So 1187 1198 00 20 2d writ denied 2001 0210 La 12 803 So 983 writ denied 2001 0115 La 12 804 So 01 14 2d 01 14 2d 647 cert denied 537 U 854 123 S 211 154 L 88 2002 State v Langston 43 p 20 S Ct 2d Ed 923 La App 2 Cir 2 3 So 707 719 writ denied 20090696 La 12 23 So 912 State 09 25 3d 09 11 3d v Crawford 95 1352 pp 16 17 La App 3 Cir 4 672 So 197 207 writ denied 961126 La 96 3 2d 96 4 10 679 So 1379 State v Brown 2001 0230 p 6 La App 4 Cir 2 782 So 136 2d 01 28 2d 141 writ denied 2001 0884 La 6794 So 811 State v Dauzart 20021187 pp 8 9 La 01 29 2d App 5 Cir 3 844 So 159 165 03 25 2d 12 strial testimony indicated that the defendant fired a gun after they had Harrington a misunderstanding Major Johnson further testified as to a July 17 2005 incident leading to a 2006 guilty plea by the defendant to an illegal use of weapons or dangerous instrumentalities charge for getting into a fight with Cody Wells in front of the Acadiana Grocery Store The original charges in this incident were aggravated assault with a firearm a violation of LSAR 14 S 37 4and illegal use of weapons or dangerous instrumentalities a violation of LSAR 14 S 94 Major Johnson stated that the defendant admitted to firing a gun at Wells over a dispute involving a female They had a fistic encounter and the victim got the best of the defendant The defendant went to his vehicle retrieved a firearm and came back and started shooting Major Johnson was not the original investigating officer in that case He testified that the incident was on videotaped surveillance The State introduced the bill of information and the minute entry for the guilty plea Wells could not recall the facts of the incident during his trial testimony but remembered having a fight with the defendant and completing a police statement At the hearing the prosecution argued that the evidence at issue would show motive system and plan stating the way he operates the whole nine yards The prosecution also specifically stated in pertinent part this is his signature s He Michelangelo these are his paintings He brings a gun he shoots folks The law tells us that we can bring in here prior acts to show the way he operates The State reiterates the modus operandi argument on appeal arguing that the s defendant prior crimes show that his modus operandi is to scare people by brandishing guns We note that the evidence regarding the defendant conviction of illegal use s of weapons or dangerous instrumentalities for the shooting incident involving Cody Wells is not inadmissible other crimes evidence 13 This evidence is independently relevant because it satisfies an element of LSA R 14 a S 95 1 previous felony conviction within ten years State v Johnson 98 604 p 19 La App 5 Cir 1 728 So 901 911 writ denied 99 0624 La 6 745 99 26 2d 99 25 2d So 1187 Only the admissibility of the evidence regarding the incident involving Harrington remains at issue Louisiana jurisprudence allows the use of other crimes evidence to show modus operandi isystem as it bears on the issue of identity To be admissible e the extraneous offense must meet several tests 1 there must be clear and convincing evidence of the commission of the other crimes and the defendant s connection therewith 2 the modus operandi employed by the defendant in both the charged and uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person 3 the other crimes evidence must be substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character 4 the other crimes evidence must tend to prove a material fact genuinely at issue and 5 the probative value of the extraneous crimes evidence must outweigh its prejudicial effect In order to assure that system evidence involving other crimes does not become a means of introducing character evidence prohibited under LSA C art 404 the transactions must be closely analyzed E B to determine whether they exhibit such peculiar modes of operations to distinguish them as the work of one person State v Hills 99 1750 pp 5 7 La 00 16 5761 So 516 520 21 2d s In State v Hills the supreme court recognized that it has not yet addressed to what extent LSA C art E 1104 and the burden of proof required by the federal rules as interpreted by Huddleston v United States has affected the burden of proof required for the admissibility of other crimes evidence i e whether the standard applied at the Prieur hearing should be clear and convincing or a preponderance of the evidence however the court declined to address the issue since the other crimes evidence in that case was found inadmissible on other substantive grounds See State v Hills 99 1750 pp 5 8 n n La 68 00 16 5761 So 516 520 22 n n 2d 68 14 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 10 719 So 1037 98 20 2d 1041 Plan can refer to a plan conceived by the defendant in which the commission of the uncharged crime is a means by which the defendant prepares for the commission of another crime such as stealing a key in order to rob a safe or it may refer to a pattern of crime envisioned by defendant as a coherent whole in which he achieves an ultimate goal through a series of related crimes such as acquiring a title by killing everyone with a superior claim McArthur 97 2918 at p 3 719 So at 1042 2d We find that the evidence of the prior shooting involving Harrington was prohibited under LSAC art 404 Assuming that the State met its burden of E B proving that the defendant committed the prior shooting involving Harrington this prior shooting and the instant offenses do not possess what might be termed peculiarly distinctive features There was for example no evidence that the same caliber of gun was used in the crimes Also the earlier shooting incident was too remote in time from the instant offenses to be distinctively similar to show system We reject the suggestion that other crimes evidence was admitted to reveal a system by this defendant Moreover motive is not an element of the charged offenses the State was not required to establish motive to meet its burden of proof for either of the instant offenses See State v Johnson 324 So 349 353 La 2d a McArthur is superseded by LSA C art 412 only with respect to other crimes evidence of sexually E 2 assaultive behavior See State v Brown 2003 1747 p 13 La App 3 Cir 5 874 So 318 04 12 2d 32627 writ denied 20041413 La 11 885 So 1118 04 8 2d 15 1975 At any rate in this case the evidence of the prior incident did not tend to show motive for committing the instant offenses Clearly the evidence in this case fails to meet the plan exception Rather it showed that the defendant had a violent temperament in general and that he had a tendency to use his gun when provoked to anger As such the testimony was inadmissible character evidence The erroneous admission of other crimes evidence is subject to harmless error analysis State v Morgan 991895 p 5 La 6 791 So 100 104 01 29 2d per curiam The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error Morgan 99 1895 at p 6 791 So at 104 See also Sullivan v Louisiana 508 U 275 279 2d S 113 S 2078 2081 124 L 182 1993 After reviewing the record in its Ct 2d Ed entirety we conclude that the jury verdicts were based on the pretrial interview s of Gremillion wherein he positively identified the defendant as the shooter These particular verdicts were surely unattributable to the erroneously introduced evidence Accordingly while we agree that other crimes evidence was erroneously introduced at trial we find that its introduction was harmless and does not constitute reversible error ASSIGNMENT OF ERROR NUMBER TWO In the second assignment of error the defendant contends that inadmissible hearsay evidence was allowed specifically the videotaped statement of Chris Gremillion The defendant contends that the videotaped statement was not inconsistent with Gremillion trial testimony and therefore not admissible s pursuant to LSAC art 801 E 1 D The defendant specifically argues that srefusal to testify is not equivalent to an inconsistent statement The Gremillion defendant contends that the defense counsel did not have adequate opportunity to cross examine Gremillion since he refused to answer questions and notes that the videotaped statement was taken under police directive in an unsworn statement 16 The defendant concludes that his right to confront his accuser under the Confrontation Clause of the Sixth Amendment to the U Constitution and Article S I Section 16 of the Louisiana Constitution was violated when he was deprived of his right to cross examine the substance of the videotape When called to testify upon questioning Gremillion stated that he did not want to testify Specifically when asked if he was with the deceased victim on the morning in question Gremillion stated I don wanna testify t He admitted to providing a videotaped interview to the police and confirmed that he told the truth during the interview Before the videotape was played the defense objected but did not provide a basis for the objection The defense asked if a basis or specific objection could be provided at a later time and the trial court granted the request Arguably the provisions of LSA C art P Cr A 841 which require a contemporaneous objection and the grounds therefor to preserve appellate review of a trial error were not satisfied See also LSAC art 103 The grounds E 1 A of counsel objections must be sufficiently brought to the attention of the trial s judge to allow him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant Herein the ground for this objection was not provided until the jury retired for deliberation Nonetheless we find that the evidence in question did not constitute hearsay Louisiana Code of Evidence article 801 defines hearsay as a statement C 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 Hearsay is not admissible except as otherwise provided by the Louisiana Code of Evidence or other legislation LSAC art 802 E Louisiana Code of Evidence article 801 Louisiana counterpart of c 1 Ds Fed R Evid 801 provides that a prior statement by a witness is not C 1 d hearsay if the declarant testifies at trial and is subject to cross examination and the 17 statement offered is one of identification of a person made after perceiving the person A prior statement by a witness that is one of identification of a person made after perceiving the person may be used assertively as substantive evidence of guilt even if the witness denies making an identification or fails or is unable to make an incourt identification State v Stokes 2001 2564 p 1 La 9 02 20 829 So 1009 1010 per curiam State v Jones 41 pp 19 20 La App 2 2d 299 Cir 11 942 So 1215 1230 writs granted in part denied in part 2006 06 9 2d 3025 2006 2905 La 8963 So 381 382 State v Tumblin 2002 1643 07 31 2d p 6 La App 4 Cir 9857 So 1045 1049 See United States v Brink 03 17 2d 39 F 419 426 3rd Cir 1994 Ifat trial the eyewitness fails to remember or 3d denies that he made the identification the previous statements of the eyewitness can be proved by the testimony of a person to whom the statement was made and the statement can be given substantive effect quoting Jack B Weinstein and Margaret A Berger Weinstein Evidence s 01 C 1 d 801 at 801 222 1993 See also State v Wright 98 0601 pp 68 La App 1 Cir 2730 99 19 2d So 485 489 writs denied 99 0802 La 10 748 So 1157 and 2000 99 29 2d 0895 La 11 773 So 732 prior identification made of the defendant by 00 17 2d the witness in his testimony before a grand jury was admissible when the witness testified at trial that he could not identify the defendant Specifically LSAC art 801 provides E c 1 D A statement is not hearsay if The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement and the statement is c One of identification of a person made after perceiving the person Accordingly when in the instant case Gremillion failed to make an in court identification his prior statement was rightfully used as substantive evidence of the 18 s defendant guilt s Gremillion statement consisted of an identification of the defendant as the perpetrator of the instant offenses made after perceiving the defendant Accordingly the trial court did not err in overruling the defense s objection to the admissibility of this evidence Assignment of error number two is without merit ASSIGNMENT OF ERROR NUMBER THREE In the third assignment of error the defendant argues that the statement allegedly written by Yarnell Brue a week before her death was erroneously admitted after a Prieur hearing The defendant contends that the statement by Yarnell contains completely uncorroborated evidence The defendant further contends there was no evidence that Yarnell actually wrote the statement or firsthand knowledge from any witness that anything in the letter is true The defendant notes that the statement was never filed with the police The defendant also notes that the statement claims that the defendant cut all the electrical cords of all her appliances seven days before the murder although the victim was watching television the night of the murder The defendant argues that the State failed to meet the burden of proving by clear and convincing evidence that the prior bad acts in this particular instance occurred The defendant further argues that the In the instant case Christopher Gremillion was called to testify at trial and was sworn in as a witness Gremillion answered some questions but failed to answer others he was available for cross examination However when Gremillion was tendered to counsel for defendant for cross examination defense counsel addressed him as follows Good afternoon I take it you don want to testify with me asking you t questions either Gremillion replied 9 don wanna testify to nothing dealing with none of this t Defense counsel then thanked Gremillion and the court allowed Gremillion to leave the stand This court does not deem this interchange as establishing that the witness was unavailable for cross examination for purposes of LSAC art 801 Gremillion was not accused of a crime He did not nor was he E c Dx1 entitled to invoke his privilege against self incrimination in justification of his failure to respond to questioning at trial Moreover defense counsel did not attempt to cross examine the witness If cross examination had been attempted and Gremillion had refused to answer defense counsel questions s counsel for defendant could have asked the trial court to instruct the witness to testify Continued failure to answer defense questions could have been addressed through the contempt process See LSA C P Cr arts 20 21 22 and 25 See also LSA R 15 State v Dominguez 228 La 284 297 98 82 4 S 276 2d So 12 16 1955 State v Gray 225 La 38 72 So 3 1954 State v Rodrigues 219 La 217 17 2d 223 24 52 So 756 758 1951 2d 19 statement was inadmissible hearsay The defendant concludes that a new trial should be ordered on this basis At the pretrial Prieur hearing Major Johnson testified regarding a handwritten statement by the victim He testified that on June 2 2007 prior to the murder on June 9 the victim contacted the police because she found her clothes scattered over the floor telephone lines and electrical cords cut food on the floor and her bathtub filled with clothes covered with bleach and lighter fluid Major Johnson also stated that the victim was in fear for her life and she wrote the statement in question regarding the incident We note that prior to deliberations the trial court gave the jury a limiting instruction regarding evidence of other crimes As heretofore discussed evidence of other crimes committed by the defendant is generally inadmissible However such evidence may be admitted if the State establishes an independent and relevant reason for doing so i show e to motive or identity See LSAC art 404 In some instances evidence of E 1 B prior acts is admissible to establish the volatile nature of the relationship between a defendant and a victim as such evidence tends to show the defendant motive for s commission of a crime of violence See State v Rose 20060402 p 15 La 07 22 2949 So 1236 1245 State v Welch 615 So 300 3023 La 1993 2d 2d State v Walker 394 So 1181 118485 La 1981 However in contrast to 2d those cases in the instant case the unsworn unverified handwritten document allegedly prepared by the Yarnell before her death is insufficient to satisfy the proof required by LSA C arts 404 and 1104 i that the defendant committed E e the other acts Furthermore s Yarnell unsworn unverified handwritten statement is inadmissible hearsay pursuant to LSA C art 803 Louisiana Code of Evidence E article 803 in pertinent part provides 3 20 The following are not excluded by the hearsay rule even though the declarant is available as a witness 3 Then existing mental emotional or physical condition A statement of the declarant then existing state of mind emotion s sensation or physical condition such as intent plan motive design mental feeling pain and bodily health offered to prove the s declarant then existing condition or his future action A statement of memory or belief however is not admissible to prove the fact remembered or believed unless it relates to the execution revocation identification or terms of declarant testament s A stateofmind declaration is non hearsay if offered only to circumstantially prove the decedent state of mind prior to the homicide s However that state of mind must be at issue or relevant to prove a fact at issue See State v Brown 562 2d So 868 878 79 La 1990 See also LSA C art 403 E A state ofmind declaration is relevant if it has a tendency to make the existence of any consequential fact more or less probative than it would otherwise be without the evidence See LSAC art 401 E Nevertheless a relevant declaration may be legally inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues or misapplication by the jury See LSAC art 403 Brown 562 So at 878 E 2d s In State v Brown although the decedent sstate of mind was not an ultimate issue at trial it became an indirect but material fact at issue Testimonial and photographic evidence indicated the decedent death s was preceded by unwanted sexual advances Testimonial evidence suggested the decedent willingly accompanied the defendant to and from the Prescott Place apartments on the day of her death It also revealed that she was sexually active as she was eighteen years old unmarried pregnant and had had sexual intercourse with several men in the days immediately preceding her death Evidence of harmonious interactions between the defendant and the decedent in the hours preceding her death coupled with the evidence of her sexual permissiveness and of her partial disrobement indirectly placed her state of mind at issue The State needed to respond to the implication that the decedent and the s s defendant interactions would remain harmonious under all circumstances The decedent extrajudicial s declaration therefore became probative as direct evidence of her wish not to have intercourse or sexual relations with the defendant and as circumstantial evidence that if the opportunity arose she would reject his sexual advances The decedent had told a friend that the defendant wanted to have sex with her but that she did not want anything to do with him In finding the statement admissible the supreme court reasoned that by communicating her perception that the defendant wanted her the declaration contained an inadmissible hearsay component The court went on to find that the significance of the assertion overshadowed any resulting prejudice The court stated that the assertion of the defendant sdesire was necessary to properly construe the decedent sstatement that she didn want anything to do with him t The court further found It does not improperly refer to past beliefs or acts or predict future conduct Nor does it imply Brown has committed or will commit inflammatory or culpable acts State v Brown 562 So at 880 2d 21 In the case before the court the relevancy of Yarnell state of mind s preceding her death was not established Her handwritten statement reflected her belief that the defendant had committed acts of violence against her and intended to do so again Yarnell statement demonstrates her state of mind was one of fear s of continued violence by the defendant Declarations of fear and revulsion characteristically contain both admissible and inadmissible hearsay components through referencing past acts predictions of sfuture conduct or statements of decedent defendant sbeliefs Consequently the admissibility of such statements must be determined by a careful balancing of their probative value against their prejudicial effect The relevancy of the admissible portion of the declaration must be weighed then against the inadmissible portion and the court task is to balance the need for the evidence when used for the s proper purpose against the danger of the evidence being used by the jury for an improper purpose State v Brown 562 So at 879 2d Declarations of fear or revulsion either take the form of direct evidence of the mental state I am afraid of defendant and as such are hearsay offered to prove their contents Or they take the form of evidence circumstantially probative of the declarant state of mind Defendant threatened to kill me s Technically the latter assertions are not hearsay because they are not offered to prove the truth of what was said but to circumstantially show the declarant state of mind toward s defendant and hence are not hearsay Declarations of fear however should be distinguished from declarations of revulsion because declarations of fear consistently reflect upon defendant past or future aggressive actions defendant s s culpability or the dispositive issue of the case Therefore the risk of prejudicial effect and improper use of the evidence of fear increases Correspondingly the need for the declaration used for its proper purpose must be great as when the evidence is relevant to a material issue of the case 22 Thus in homicide cases evidence of the victim fear may be limited to situations where defendant has s made the criminal character of the death an issue by raising defenses of self defense suicide or accident Decedent declaration of fear then is relevant to s circumstantially rebut the defense theory s To protect against misapplication of the extrajudicial declaration its opponent is entitled to a limiting instruction directing the jury to consider the declarant statement as evidence only of the s sstate of mind rather than for the truthfulness of any express or implied declarant allegations contained within the statement State v Brown 562 So at 879 2d After careful consideration of the issue we conclude that any relevancy of the evidence at issue tending to establish Yarnell state of mind was outweighed s by the inadmissible aspect of the statement ithat it was true that the defendant e intended to and therefore did harm Yarnell However because of the overwhelming weight of Gremillion spositive identification of the defendant as having shot him and Yarnell we determine that the verdict actually rendered in this case was surely unattributable to any error associated with the admission of shandwritten statement Accordingly we find that the introduction of this Yarnell evidence was harmless and does not constitute reversible error CONVICTIONS AND SENTENCES AFFIRMED 23
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