State Of Louisiana VS Jeffery Guillory

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NOT DESIGNATED FOR PUBLICATION STATE OF L Ol1ISIANA COURT OF APPEAL FIRST CIRCC IT N0 20f2 fKA 0702 STATE OF LOUISIANA VERSUS JEFFERY GUILLORY udgment O i rendered DEC 21 2012 Appealed from the 19 Judicial District Court d in and for the Parish of East Baton Rouge Louisiana Trial Court No 05 0796 10 Honorable Anthony Marabella Judge HON HILLAR MOORE ATTORNEYS FOR DISfRICT ATfORNEY STATE OF LOUISIANA DANA CUMMINGS DALE R LEE ASSISTANT DISTRICT ATTORNEYS BATON ROUGE LA FREDERICK KROENKE ATTORNEY FOR BATON ROUGE LA APPELLANT DEFENDANT JEFFERY GUILLORY JEFFERY GUILLORY APPELLANT DEFENDANT ANGOLA LA PRO SE BEFORE KUHN PETTIGREW AND MCDONALD PETTIGREW J The defendant Jeffery Guillory was charged by grand jury indictment with second degree murder a violation of La R 14 and entered a plea of not guilty The trial S 30 1 court granted the State motion to introduce other crimes evidence This court and the s Louisiana Supreme Court denied the defendant writ applications seeking review of the s trial court ruling on the State motion to introduce other crimes evidence s s State v Guillory 2011 La App 1 Cir 4 unpublished action writ denied 2011 0412 il 27 1090 La 9 68 So 519 This court also denied the defendant writ application 11 2 3d s seeking review of the trial court ruling granting the State motions in limine to exclude s s evidence concerning the prosecution and incarceration of Sean Gillis and to exclude an excerpt from the police statement of Sean Gillis State v Guillory 2011 La App 1762 1 Cir 9 unpublished action 11 23 After a trial by jury the defendant was found guilty as charged and subsequently sentenced to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence The defendant now appeals assigning error to the trial court s granting of the State motions in limine s Further the defendant filed a pro se brief challenging the admissibility of other crimes evidence and the sufficiency of the evidence to rt supp the conviction For the following reasons we affirm the conviction and sentence STATEMENT OF FACTS On April 11 2002 the body of Renee Newrnan the victim herein was discovered in a flower bed located on the side of a building that formerly housed a department store on Laurel Street in Baton Rouge Louisiana The victim face and upper body were s covered with insects and her shirt had visible indentions where it had been The victim body was discovered by John Ferguson while walking in the area Although the State s seemingly inadvertently referred to the date of discovery as May 11 2002 and Ferguson confirmed said date further testimony and other evidence in the record indicate that Ferguson actually dismvered the sbody on April il victim 2 pulled up and wrapped tightly around her neck exposing her bra and abdomen There were signs of a struggle in the flower bed and the uictim body appeared to have been s posed with her legs separated on opposite sides of a small tree The cause of death was strangulation with injuries consistent with the use of the shirt as a ligature A rape examination was conducted and the kit was sent to the Louisiana State Police Crime Lab for testing A consistent foreign DNA profile was obtained from the testing of the victim breast swab right hand fingernails and bra s Further this same foreign DNA profile was obtained from the victim shirt where it had been bunched The s report released by the crime lab in 2005 indicated that the foreign DNA profile belonged to an unknown male donor The profile was entered into the local and state combined DNA index system CODIS and at some point the homicide was designated a cold case In 2008 the defendant was arrested for the attack on J in Lafayette Louisiana M As a result of the defendant arrest in the J case his DNA profile was placed in s M CODIS and a match confirmation report indicated that the defendant profile matched s the unknown male donor in this case The crime lab perFormed a supplementary analysis and confirmed that the CODIS hit was accurate SUFFICIENCY OF THE EVIDENCE In pro se assignment of error nurnber two the defendant contends that the trial court erred in denying his motion for postverdict judgment of acquittal The defendant argues that the evidence presented at the trial was insufficient to support the conviction and failed to exclude every reasonable hypothesis of innocence The defendant specifically asserts that the coroner and his staff did not support the detectives theory that the victim was strangled with the shirt she was wearing The defendant notes that in z Based on the record before us the December 29 2007 attack of J introduced in the instant case as M other crimes evidence included a sex offense Thus the victim who testified at the instant trial will be identified by initials herein to protect her identity See La R 46 S 1844 W 3 When a defendant raises sufficiency of evidence as well as other assignments of error a reviewing court should first determine if the evidence adduced at trial is sufficient Although the defendant contends in another assignment of error that inadmissible other crimes evidence was presented during the trial this court must rnnsider all evidence whether deemed to be admissible or not when determining whether the evidence was sufficient to support the jury verdict See State v Hearold 603 So 731 734 La 1992 s 2d 3 this case the coroner opinion varied as to the weapon used in the commission of the s offense The defendant further nates that even though he denied any association with the victim he was cooperative in aflo the police to interrogate h and collect a inc m reference sample of his DNA without a search warrant The defendant contends that the State was not relieved of its duty to proue that he had the specific intent to kill or inflict great bodily harm upon the victim The defendant argues that testimony presented by the expert witness in DNA analysis Julia Naylor Kirk the expert witness in death investigation Dr Louis Cataldie and the expert witness in impression comparisons Patrick Lane was ambiguous skeptical and inconclusive4 Citing Article 403 of the Louisiana Code of Evidence the defendant adds that Lane testimony was confusing s frivolous and prejudicial noting that his shoes were not submitted for comparison in this case The defendant concludes that the evidence presented during the trial was insufficient to prove that he committed the crime in question The defendant notes that while Dr Cataldie reviewed the autopsy report and photographs he did not perform the autopsy in this case The defendant further notes that the defense attorney objected to the lack of an opportunity to confront and cross examine the physician who participated in the autopsy of the victim The defendant argues that the trial witnesses did not present any facts surrounding the autopsy protocols Regarding other crimes evidence that the defendant murdered Florida Edwards a homicide victim whose body was discovered in Baton Rauge on September 3 1999 the defendant argues that the State improperly influenee the testimony of the lead detective in that case and challenges testimony concerning the fingerprint evidence in ti case at Regarding the other crimes evidence in the J case the defendant contends that the M 4 We note that the defendant did not object to Lane testimony A contemporaneous objection is necessary s to preserve the issue for appellate review La Code Crlm F art 841 La Code Evid art 103 To A 1 A the extent that the defendant is attempting to challenge the admissibility of Lane testimony for the first s time on appeal he is precluded from doing so Further we disagree with the defendant assessment that s s Lane testimony could have confused the jury or had a prejudicial effect Lane clearly testified as to the minimal evidentiary value of the cast of a shoe impression diswvered at the scene and indicated that a shce comparison had not been conducted in this case 4 testimony of Detective Cliff Rhodes of the Lafayette Police Department showed that the s victim identification the was coercive suggestive and insufficient to sustain his rein convictions of attempted second degree murder and second degree robbery beyond a reasonable doubt in that case The standard of review for the su of the evidence to upnold a conviction is Fciency whether viewing the evidence in the light rnost favorable to the prosecution any rational trier of fact could conclude that the State proved the essential elements of the crime and the defendant identiry as the perpetrator of that crime beyond a reasonable doubt s Jackson v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 1979 S Ct 2d Ed See also La Code Crim P art 821 State v Ordodi 2006 p 10 La 11 0207 06 29 946 So 654 660 State v Wright 98 p 2 App 1 Cir 2730 So 2d 0601 La 99 19 2d 485 486 writs denied 99 La 10 748 So 1157 and 2000 La 0802 99 29 2d 0895 00 17 11 773 So 732 2d When analyzing circumstantial evidence La R 15 provides S 438 ssuming A every fact to be proved that the evidence tends to prove in order to convict it must exclude every reasonable hypothesis of innocence This statutory test is not a purely separate one from the ackson constitutional sufficiency standard Ultimately ail evidence both direct and circumstantial must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonabie doubt State v Shanks 1855 97 pp 3 La App 1 Cie 6 715 So 157 159 The reviewing court is 4 98 29 2d required to evaluate the circumstantial evedence in the light most favorable to the prosecution and determine if any alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt State v 2d Fisher 628 So 1136 1141 2d La 5 637 So 94 20 474 La App 1 Cir 1993 uvrits 0226 denied 94 0321 94 476 As the trier of fact the jury was free to accept or reject in whole or in part the testimony of any witness State v Johnson 98 1407 p 6 App 1 Cir 4 734 So 800 805 writ denied 99 La 10 748 La 99 1 2d 1386 99 1 2d So 439 5 Louisiana Revised Statut i4 provi in pertinent part that second s 3Q1 es A degree murder is the killing of a hurnan being when the offender has a specific intent to kill or to inflict great bodily harm Sp intent is that state of mind which xists when cif the circumstances indicate that he offender act desired the prescribed criminal vQly consequences to follow his att or fail to act La R 14 Specific intent need re S 10 1 not be proven as a fact but may be inferred from the circumstances of the transaction and the actions of defendant State v Graham 420 So 1126 1127 La 1982 2d Where the key issue in a case is the defendant identity as the perpetrator rather than s whether or not the crime was committed the State is required to negate any reasonable probability of misidentification However positive identification by only one witness may be sufficient to support a defendant conviction State v Millien 2002 pp 2 s 1006 3 La App 1 Cir 2 845 So 506 509 03 14 2d There were no eyewitnesses to directly connecEdefendant with the instant murder and the evidence presented at trial was circumstantial The evidence showed that when the victim body was discovered in the flower bed on the side of a building her shirt was s wrapped tightly around her neck exposing her chest Corporal Mindy Stewart and Sergeant Christopher ohnson Baton Rouge Police Department crime scene investigators testified that in their opinion the victim was strangled with the shirt she was wearing Corporal Stewart specifically testified When we arrived on scene it was obvious that the shirt was it appeared to be pulled up around her neck and I specifically remember in vividly it appeared that the shirt had been possibly used to strangle her You could literally see indentions where possibly hands had been placed on thac shirt to keep her from breathing In further describing the condition of the victim shirt Corpora Stewart s noted that the shirt had been scrunched up for quiEe some time Corporal Stewart specifically instructed Julia Naylor Kirk the Louisiana State Police Crime Laboratory analyst to search for DNA evidence on the bottom portion of the victim shirt that s appeared to have been held against her neck Corporal Stewart also photographed signs of a struggle at the scene specifically noting that there was an area of disturbed dirt in the landscape 6 Sergeant Johnson testified that the victim had no purse or identification near her body He noted that there was no indication at the crime scene that the victim was raped The victim shirt socks and shoes were kaken from her body at the scene to s avoid contamination and her hands were bagged The police used photographs and fingerprints to ultimately id the victim as Renee Newman anci determined that she ntify had a high lifestyle that induded prostitution and drugs risk Dr Cataldie an expert witness in death lnvestigation was called to the scene where the victim body was discovered to assure the proper collection of the evidence to s avoid contamination Dr Cataldie also reviewed the autopsy photographs and report conducted by another doctor and concluded that the victim injuries were consistent with s the use of her shirt to strangle her to death He noted that it was not probable that a zip tie was used to strangle the victim in this case since a zip tie would generally go all the way around the neck if it were locked the effects of which would be inconsistent with the ligature marks on the victim neck in the instant case He further noted the absence of s contact burns or an abrasion that would have been consistent with khe use of a rope Among other items in the flrst submittal for testing in this case Julaa Naylor Kirk the expert witness in DNA analysis received a blood alcohol kit the rape examination kit the victim under and outer garments and a swab from the victim neck Kirk also had s s three reference samples from pecsons of interest including John Ferguson who discovered the victirn body s The swabs from the rape kit specifically consisted of a breast swab two vaginal two anal two oral a larynx and two hand swabs Only the s victim DNA was obtained from the vaginal oral and anal swabs Kirk encountered a foreign distinctive DNA profile on the victim br2est swab and from the skin and s or 5 On appeal the defendant notes that Dr Cataldie did not perform the autopsy After the defendant initially objected below on this basis the State noted that the coroner invesYigator who was present at the time of the autopsy and collected the evidence Jason Doyle would also be testifying and subject to cross examination At that point the defense attorney clearly withdrew the objection specifically noting that the defense was certainly satisfied as to the issue As contended by the State Doyle testified during the trial and was subjected to cross A contemporaneous objection is necessary to preserve this issue examination for appellate review La Code Crim P art 841 La Code Evid art 103 By acGuiescing and failing A 1 A to make a contemporaneous objection to Dr Cataldie testimony the defendant is precluded Prom raising s this issue on appeaL 7 underneath the fingernalls of the victom right hand al with DNA mixtures from at s ng least three contributors Kirk noted that she observed the bunch on the bottom of the ng s victim shirt and requested crime scen photographs at the time of khe evidence analysis Bloodstains on the shirt rere consistent vuith the vict NA pr JNA rnixtures from s r fife two different people were found on the rant afi tY vi shirt in the bunched up area e tim s and at the bottom of the shirt the foreign DNA profle was found DNA mi from ures two different people were also encountered on the victim bra The DNA profiles of all s persons of interest submitted at that time were exciuded from the foreign DNA encountered While she did not have a reference profile at the time Kirk confirmed that the foreign unknown male DNA profile encountered while testing the victim breast s swab used as a reference exemplar matched the foreign profile from the bra swab right hand swabs and the bunched up area of the victim shirt Upon administrative and s technical review the evidence was found eligible for CODIS placement local and national In 2006 the defendant was interviewed in connection with the police officers investigation of the homicides of the victim herein and Florida Edwards Sergeant Johnson specifically testified that the unrecorded interview of the defendant was conducted on September 26 2006 and fiis DNA sample was collected During the interview the defendant stated that he did not kill did not know and never touched the victims The defendant was not arrested at that time M J testified in the instant case regarding the defendant sconvictions of attempted second degree murder and second degree robbery On December 29 2007 after 5 00 mM p J was walking towards a Wal on a trail in a wooded area frequented by Mart homeless people in Lafayette when she was approac by a black male who she later ned identified as the defendant The defendant asked J for spare change an when she gave him the change he grabbed her wrist and they struggled as he pulled her deeper into the wooded area fondled her chest area punched her in the face and began choking her In an effort to save her life J told the defendant that she was dying from M the AIDS virus As the defendant continued to choke J she discontinued the struggle M 8 by dropping her head and cic her eyes in an attempt to plsy dead sing When she reopened her eyes the defendant was gone and her purse and bag were missing J M was admitted to the hospitai for treatment and or of her bank accaunts was depleted e by the time she reported her cards stol J positively identif o ar Nl ethe defendant as the attacker from a photograph of him using her ATM ea ane from a F lineup d hotographic s M J jacket was recovered from the scene and submitted for testing The defendant was arrested by the Lafayette Police Department and during a subsequent police interview he acknowledged using the credit card but stated that he found the purse in a dumpster The defendant denied committing the attack The sDNA was collected at the time of his arrest Mixed DNA profiles from the defendant right and left cuffs of the J jacket and the J shirt were contributed to by the J s M s M M and the defendant The defendant DNA profile was placed in the CODIS database after his felony s arrest for the J attack Subsequently the CODIS unit notified the crime lab that the M sDNA profile matched the DNA evidence in this case and instructed the lab to defendant perform a supplemental report Kirk confirmed the match of the efendant profile to the s foreign DNA profile collected in this case noting that the chance of the profile occurring in a random individual in the population was 1 in 9 quadrsll 6 on Further according to Kirk testimony the deferidanYs DNA profle was determined s to be a mateh in the DNA evidence co in another previously unsolved Baton Rouge lected case the murder of Florida Edwards n Septem 3 1999 Edwards body was er s discovered mainly nude except for a shirt puCled over her head and posed across a box in the middle of an abandoned building that formerly housed a lounge located on North Boulevard in Baton Rouge There were signs of a struggle at the scene and the s fatal victim non injuries included facial trauma abrasions to her neck subscapular 6 During the instant trial J again positively fdentified the defendant as the attacker M Acadiana Criminalistia Laboratory forensic chemist Winnie Kurowski performed the DNA aralysis and in part testified that while the victim and the defendant wuld not be excluded from the mixed DNA profiles 3 99 to 99 of the African popuiation and 94 of tne Caucasiar popuiation could be 9 American 8 eaccfuded 9 hematoma and a small laceration to the riyht andex finger The cai of death in the se Edwards case was asphyxia by maraual strangulation fhere u no determination as to ras what was used to strangle Edwards a isias Lo State Pol9ce Crime Lab forensic DNA examiner and expert ir serology Aiejand Vara RErfor the ra kit testing and ned e testified that no semen was found Kirk ond the D kesting iri khe Edwards case cte 1A in 2009 Kirk testified that the def NA matched the f profife frorra the s ndant reign s victim left hand fingernail clippings noting that the chance of the profile occurring in a random individual in the population was 1 in 9 quadriilion 76 Further though 99 5 percent of the population could be excluded as the major contributor of the DNA profile from the vaginal swab the defendant could not be excluded Though she could not determine when the DNA contact was made Kirk noted that acid phosphatase an enryme found in seminal fluid breaks down in the vaginal cavity of a living victim within two seventy hours coitus post Noting that the body breaks down after the discontinuance of the heart and blood flow Kirk conciuded that the limit of detection in a deceased victim would be less than that af a living victim Both Edwards and the murder victim fn the instant case had lifestyles that were considered high induding drug use and prost When Sergeant ohnson risk or tution was informed of the CODIS matches he recorded a second interview of the defendant on December 16 2009 During the second interview the defendant again denieu knowing the victims and failed to explain the presence of his DNA However the defendant confirmed that he was a drug user and seller The defendant did not testify at the instant trial and no defense witnesses were presented In reviewing the evider we cannot say that khe jury determination was ce s irrational under the facts and circur presented to them See Ordodi 2006 stances 0207 at 14 946 So at 662 An appellate court errs by substitutin its appreciation of 17 2d 664 the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict an the basis of an excuipatory hypothesis of innocence presented to and rationally rejected by the jury State v Calloway 2007 pp 1 La 2306 2 09 21 3d 1 1 So 417 418 per curiam The verdict rendered in this case indicates the 10 jury rejected both th defendant ve of eve and his hypathesis hat someone else s sior ts murdered Renee Newman The defendanYs DNA prcfile was found on the victim breast s bra and right hand Much of the testimany presented in this case indicated tnat the victim herein was strangled with the bottQm portion of her shirt where the defendant s DNA was also located When qby khe poiice the deferdant repeatedly denied ed estior knowing the victim and failed to explain the presence of his DNA When a case involves circumstantial evidence and the trier of fact reasonabiy rejects a hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guiity unless there is another hypothesis that raises a reasonable doubt State v Moten 510 So 55 61 2d La App 1 Cir writ denied 514 So 126 La 1987 We find no such hypothesis 2d exists in the instant case We are convinced that any rational trier of fact viewing the evidence presented at trial in the light most favorable to the State could find the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence all of the elements of second degree murder and the s defendant identity as the perpetrator Pro se assignment of error number two lacks merit THE DEFENDANT RIGHT TO PRESENT A DEFENSE S In the sole counseled assignment of error the delFendant argues that the triaf court erred in granting the State motions ir lim to exciude evidence concerning the s ne prosecution and incarceration of Sean GilYis and any portion of Gillis pulice statement s The defendant argues that he should have beer allowed to present to the 1ury the defense theory that Gillis may have been the person who killed the victim herein The defendant conte that evidence presented a the hearing on the State motions nds s showed that Gillis vas associated with the victim committed other crimes wron or s acts that showed that he murd the victim and thet he denied knowing the victim in red portions of his interrogation The defendant addikionally contends khat Gillis had a unique knowledge of the crime scene specifically that Gillis somehow knew that the s victim body was covered in ants The defendant contends that the testimony at the hearing indicated that Gillis killed others in Yhe same manner as the victirr was killed 11 herein strangulation with a ligat The defendant further claims hat Gillis was a Jre suspect in the murder of the victom in this cas The defendant argues that the evidence against Gillis woultl not have confused ttie jury but irestead would have caused them to ireasonab9e ubt as to hos ide as the erpetrator herein ave tity Finally the defendant notes thak the tdenial af his writ a seekong review s QUr plicatiun of the trial court ruling is not bindirg o appeaP s A criminal defendant right to present a d is guaranteed by the Sixth s fense Amendment of the United States Constitution and Article I 16 of the Louisiana Constitution However constitutional guarantees do not assure the defendant tfne right to the admissibility of any type of evidence only that which is deemed trustworthy and has probative value State v Governor 331 So 443 449 La 1976 Relevant 2d evidence is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the actian more probable or iess probable than without the evidence La Code Evid art 401 The triai judge in deciding the issue of relevancy must determine whether the evider bears a connection to the ce rationai fact in issue in the case State v Williams 341 So 370 374 La 1976 State v 2d Harris 2011 p 14 La App 1 Cir 11 79 S 1037 1046 Except as 0779 11 9 3d limited by the Code of Evidence and ther iaws all relevant evidence is admissible and all irrelevant evidence is inadmissible La ode Evfd art 402 Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues risic of misleading the jury or by considerations of undue delay or waste of time ta Code Evid art 403 Ultimately questions of relevancy and admissibility are iscretion calls for the trial court and its determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion State v Duncan 98 p SQ La App 1 Cir 6 738 So 706 1i30 99 25 2d 713 712 As noted after the defendant gave notece of his intent to present ev dence regarding the investigation and prosecution of Gillls the State filed tw motions In limine to prevent the defendank from presenting any third sEatements or portions party 12 of Gillis police statement in that rega arc s d air gthak such evidencp was irreievant and might tend to confuse the In its otion tQ exclude the exc from the interview un rpt of Gillis the State noted that the Q ca ndicated that they intended to call ense nsel witnesses that would testify that G311is knew ts victim herein and f 9ntended to ie rther use the following interview excerpt to prove that Giil lied about knowing the victim s EXAMINATION BY UNIDENTIFIED OFFICER Q Sean A Yeah Q You ever heard the name Rene inaudible Black girl She was born in S5 so that would make her A 47 Eight years Q 47 48 I wouldn know I trying to get a picture of her t m The name doesn strike a bell t A t Doesn strike a bell Where was she found and vvhat was done to her Q Well her abduction I guess occurred on North somewhere North Street somewhere in that vicinity and I guess her final resting place as they said was over around the old Godcheaux sic s A and stuff Is this the one that was found wikh ants covering the body Q I don know t A The man was walkirg a dog or s omething UNIDENTIFIED OFFdCER Qc It may have been EXAMINATION BY UNIL OFFICER JTIFIEt3 EI Q It may have been By khe old Godcheaux ssic there A But no that was not one f mine Q Okay A Just like there also one where as the news repor s s r partially clad body in a park off of 14th Street or something Again not me Q Right Well let me go inaudible 13 s That what I saying yeah m A Aiong with a name if you t don have a picture At the hearing on the motions in limine ik was st that f purposes of the pulated r hearing the defer vvould nok have t4 ut on I t L Gil was not se sve stimony and at is available as a itness w Serqeart Chris Johnsc f the Batur Rouge City Police i Department testified khat illes was r a susp in fhis cas ot ct eant Ser Johnson specified that while Gillis was not fully investigated in this matter at one point in time he was a person of interest and his name was given to the crime lab to eliminate him as a possible suspect in the investigation Sergeant Johnson further denied questioning Gillis about the murder of the victim in the instant case when he questioned Gillis in the midst of a long police interrogation spanning several days beginning on April 29 2004 regarding other unrelated murders Sergeant Johnson was unable to fully recall the extent of his questioning of Gillis at that time noting that he was not one of the investigators who conducted the interview and only entered the intervieuv room to question Gillis apart from the lead investigators interview Further the defense eiicited testim from ny Sergeant Johnson regarding his telephone interview of two individuals purportedly John and Elsie Gook to show that Gillas kne the vGCtim and had be observed n the n same vehicie with the victim on nnor hara one occasion Serge Johnsor testifi nt that there was o indieation that nyone saw illis kiii the victim herein or saw khem together on the date of her murder that the method of operation used in his case was dissimilar from the murders that Gillis committed and that he never atternpted to question Gillis again after April 2004 Sergeant Johnson specifically stated I talked to the investigators investigating the death of the women in which Gillis was accused of killing and I looked at the M and similarities to O the homicide I worked with the vickim It was not close It was no s s that why uh it halt at that similarity to both homicides and tnat I sent the D A N point until until the D was com with the A N ones off her body As to the dissimilarities between this case a Giilis murde nd s sSergeant Johnson further specified that Gillis was nr in that he use a vehicle one or two times to obile transport the victims he murdered and that Gillis used zip ties or a cable to strangle his 1 victims and a knife to injure or dism his victims mber Sergeant Johnson specifically stated I think what a what was strikVng ut ab what was different uvas the fact that I learned from Deteckive Nor and alsa Detective road one or two of of the bodies in n is used w e ac o kiiling had body parts cuc away alter maybe victims he accused s I m taicen body p and aiso ar rts souvenirs taken Inot sure I think avas taken frnm one of the m ast r victims and the victim in tlhis case was sustained ne kind of injuries like that He noted that the victim herein had no knife injuries and the evidence showed that the s victim shirt was used as a ligature Sergeant Johnson further noted that the victim in this case was fully clothed when her body was discovered though her shirt was puiled up to her neck Further no zip ties were diswvered at the scene Sergeant Johnson further testified that the investigators concluded that the instant murder took place at the location of the body specifically not that there were signs of a struggle at the ing scene that the ground near the victim body vuas disturbed and that dirt was s transferred from the flower bed where her body was located to the concrete in front of the building The DNA evidence was found on the victim shirt bra and hand There s was no evidence of a rape though there was an indication that the victim had been sexually assaulted According to the testimony of Elsie Jarrett whose former fast names include Cook and her maiden name Fleming and her ex John Cook the victim used husband to frequent the apartment of her brother Isaac Fle deceased at the time of the ning hearing time Fleming lived two doors down from them in an apartment eomplex at the According to Jarrett Fleming was a druG abuser and wou allow his friends to d come to his residence and smoke crack cocaine and use other iil drugs Jarrett and gal Cook saw Gillis at Fleming apartment or at leask one occasion although Jarrett during s examination cross denied ever seeing Gillis and the victim together Cook could not recall when Gillis was at Fleming sapartment and stated that it was in 2001 or 2002 Detective Bryan White of the East Baton Rouge Parish Sheriff Office was s assigned in 2004 to a multi task force to investigate unsolved homicides in and agency around theBaton Rouge area Detective White participated ir the interrogation of Gillis 15 concentrating on three homicide vi Kath Hal Johnnie Wilfiams and Donna tims r ne Johnston Their investigation of Gillis resulted in the trial for one of the East Baton Rouge Parish murder victims Johnston while the akher two rnurders were intr in duced the trial of Johnston as other e evi rimes enc victims s Giilis DNA was founJ on all three Detective White testiFed that aEl thre of Giliis victims had postmortem s cuttings or dismemberment and were ilNed n tn same manner strangulation with nylon zip ties Two of the victims Hall and Johnston had visible grooves from the zip ties on their necks Williams body was near decomposition and the grooves were no longer visible but the trauma to her neck was cansiste with the use of such a device nt Hall had significant cuts on her body and Williams hands had been severed One of s Johnston arms had been severed at the elbow and her breast nipples and a square shaped piece of her thigh that included a butterFly tattoo had been cut off Detective White testified that all three of the victims bodies were found nude in remote areas where they had been transported and dumped and indicated that GNlis had postmortem sex with the victims Outside of the three named victims that his investigation focused on Detective White could not recall whether iliis had other victims who were not cut or dismembered Detective iNhite noted that some of the homicides that Gillis confessed to were worked by other agencies noting that he kiiled a woman in Lafayette Parish Detectave 1Nhite confrmed that Gillis knew af least one of his victims and that the womer led high lifestyies including prostitution and drug risk abuse While Gili confessed to the murder of eight v he denaed killing the s omen victim herein After reviewing a portion of the transcript of the interrogation of Gillis Detective White confirmed that Gillis v questioned about the murder of the victim herein ras although the task force was not investigaking the instant rraurder and ne had no independent recollection of the line of questioning regarding her murder Detective White specificalfy stated m I going to be honest with you unsolved homicides about others that We we had a a list of a iot of and since Gillis was cooperating v did ask him re because at that point he didn confess to us to and t 16 he he was remely being e caoperative and detaiied bout the ones he was involved in Detective VVhite confirmed tha Gillis was r a5out severai homicides though uestQOned there was no evidence of his 6nvolvement pn th m ase arcl rs The trial court granted the tate m i iimine In doirg sa the trial court s tiQn a noted that lt was very mindfe laf the d right to present a defense s t fend In reviewing the evidence the court noted several dissimilarities between the murders committed by Gillis and the instant murder While noting the high lifestyie and risk strangulation of the victims as similarities the court further found it significant that s Gillis modus operandi included the use of zip ties to strangle his victims markings on his victims bodies and the apparent sexual molestation of his victims The trial court further noted that Gillis victims were nude and were taken from one site to another s and dumped The trial court concluded that here were not significant similarities among Gilfis cases and the instant case The triap courk noted that a significant risk of s jury confusion would be associated with the a of the evidence in quesXion nnissi4n Thus the court found inadmissoble ar evidence r murders committed by y rding g the Gillis The trial court judge filed a per curiam opinion in this matter The court noted that the testimony presented at the hearing on Yhe State motions in limine showed s that Gillis may have spent time in the same house with the victim sometime in 20Q1 or 2002 The trial court reiterated that there was however no showing of an actual link between Gillis and the murder af the victim or a showing that the murders commitked by Gillis were distinctly similar to the murder of the victim herein The trial court specifically nated that while the victim herein was kil9ed dy strangulation there were no apparent zip tie marks cuts on her body or dismemberment The court also noted that the victim body was fully clothed ana was apparently discovered at the scene of her s murder The court noted that the evidence at issue would be irrelevant and serve to confuse or mislead the jury T frial court further note tha the portion of Gillis he J s police statement at issue consisted of inadmissible hearsay 17 As noted above constit arantees do iassure the defendant the right ag uk tio to the admissibility of any type of evodence only that v is deemed trustvuorthy and hich has probative value In this case the evidence sought to be introduced by the defendant estabfi5hed very loitie connection between khe victfm herein end Gillis and did not tend to show that Giilis commi the murder ii th case The modus Qperandi in kesi as this case and Gillis murders were reot so Similar as t estabiish any significant level of s relevancy in the evidence the defendant sought to introduce While Gillis usEd zip ties to murder his victims the evidence showed that the victim in this case was strangled with her shirt Further the victim herein was not transported after the murder or mutilated as were Gillis victims s As the Louisiana Supreme Court stated in State v Mosby 595 So 1135 2d 1139 La 1992 application of Articie 403 requires a weighing and balancing of the probative value of the evidence against the 9egiitimate considerations of judicial administration enumerated in that articie In Mosby the defendant a young slim built African male was being prosecuted for robbing a white male af his bank American bag while the male was in a bank line to deposit the money he supreme court held that other crimes evidence that another young slim African ma had built American e been arrested arid charged with tuvo similar robberies nvolving khe iaking of bank deposit bags from white males at two nearby banks within the same four per month od was properl excluded because its probative value was outweeghed by the danger of unfair prejudice The supreme court noted that in assessing the probative value of evidence a judge shouid consider factors such as whether there is some connec ior between the perpetrator of the extraneous crime a the crime at issue and whether s nd the other crimes are of a distinctly similar character such as acrome As signature noted by the supreme court while there were similarities between the Mosby robbery 8 See also State v Mosby 581 So 106Q 1065 La App 1 Cir 1991 for a complete rendition of the 2d facts therein in comparison to the evider qf khe similar offenses While this court found the exclusion of ce the evidence at issue in Mosby constituted harmless error as ctiiscussed above the i S ouisiana preme Court subsequently found that the evidenc of similar offenses at issue therein was properly exciuded 18 and the robberies c by thE other black maie they do not bear the strikingly mmitted similar characteristics 4fcrimes Mosby 595 So ac 1139 signature 2d 1140 Similarly we finc that the nstani murder of the v herein does ot bear tim strikingly simila characteristics to ti saglature e murders ommii by G e ne i ed Ilis Although th defendant now contencis r Yherwis k on the tesk ased iypresented at mo the hearing Gillis was not a suspect on the instar rder We conclude that the trial tm judge properly excluded the evidence related to the offenses of Gillis and did not thereby curtail the defendant right to present a defense Not only is the evidence at s issue irrelevant the probative value of the evidence was substantially outweighed by the danger of confusing and misleading the jury Accordingly we find no clear abuse of discretion in the trial court relevancy and admissibility rulings on the State motions in s s limine The counseled assignment of error lacks merit OTHER CRIMES EVIDENCE In pro se assignment of error number one the defendant argues that the trial court erred in finding admissible evidence of other crimes including the murder of Florida Edwards and the attempted second degree murder and second degree roboery in the J M case The defendant argues that the testimony presented at the hearing on the other crimes evidence revealed several significant dissirnilarit particularly in time piace and es manner of commission such that one could r conclude that the offenses were ot committed by the same person As to the dissimilarities in time and place the defendant notes that the victim herein was found outside of an abandoned store whereas Edwards s body was discovered inside an abandoned building 7 uvas attacked in Lafayette as M opposed to Baton Rouge and the bodies vere discovered and affenses were or committed years apart Regarding the manner of commisslon the aefendant notes that whiie the victim herein was strae with a ligature Edwards and 7aM were not gled The defendant afso notes that there was no evidence tf the victim herein was beaten sexually assaulted at or rob though Edwards was beaten and J was beate sexually assaulted and ed M robbed The defendant further asserts that in the Edwards case her body was 19 discovered nude she had a former arrest there was videnc of drug se and sex at the scene where the body was fQUnd and she was a prostituke while norae of these factors exist in the instant case The defendant cQnten that the instant case is based on s theories and speculation noting that there w nc vuitnesses or details abouk when re where what and how the crima was omm tted The defendant also challenges the fingerprint and DNA evidence in the Edwards case and the trial court reliance on State v Lee 2005 La 1 976 So s 2098 08 16 2d 109 cert denied 555 U 824 129 S 143 172 L 39 2008 The defendant S Ct 2d Ed argues that the evidence that he committed the murder in the Edwards case was not clear and convincing The defendant contends that the other crimes evidence presented during the trial may have confused the jury lured them to believe that he is a bad man and prevented him from receiving a fair trial The defendant concludes that the probative value of the other crimes evidence was outweighed by the danger of unfair prejudice As detailed above in this appeal the State introduced at tria evidenGe pertain ng to the defendant murder of Edwards and his conviction of attempted second degree s murder and second degree robbery in the J case Prior to the trial the State filed a M motion fQr determination of admissibility of evidence of other crimes purs to La aant Code Evid art 404 and State v Prieur 277 So 126 La 1973 to show B 2d identity motive opportunity intent preparation plan and system knowledge and absence of mistake or accident at triaL Generally evidence of crirrainal offenses other than the offense being tried is inadmissible as substantive evidence because af the substantiaf risk of grave prejuddce to the defendant State v Hills 9 p S 5 751 So 516 520 1750 La 16 00 2d Under Article 404 other erimes evidence is not admissible to prove the cF 1 B aracEer of a person in order to show that he acted in conformity therewith The evidence may h be admissible for other purposes such as proof of motive opportunity wever intent preparation plan knowledge identity absence of mistake or accident La Code Evid art 404 At least one of the enumerated purposes in Article 4p4 Z B B must be at issue have some independent relevance or be an element of the crime 20 charged in order for the evsder to be adm under Article 404 l ssi State v Kennedy 2000 pp 5 La 4 803 So 916 920 To be admissible 1554 6 O1 2d under Article 404 evidence of the defendant B sprior bad a must meet h criteria cts vo 1 it must be relevant to some issae okher tha the defer haracter and 2 its w s t dar probative value must be greater than its poter to u prejudice ti i See La tial fairly e ary Code Evid arts 403 A 404 The underiying policy is not to prevent prejudice since evidence of other crimes is aiways 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 507 520 La 1982 on rehearing 2d Louisiana jurisprudence allows the use of other crimes evidence to show modus operandi i e system as it bears on the issue of identity particulariy when the mod s operandi employed by the defendant in both the charged and the uncharged offenses is so peculiarly distinctive one must logically say tney are the v of the same person ork Hilis 99 at 5 761 So at 520 see also State v Code 627 So 1373 1750 6 2d 521 2d 1381 La 1993 cert denied 511 U 1104 114 S 1870 128 L 490 1994 S Ct 2d Ed Motive evidence reveals the state of mind or emotion that influenced the defendant to desire the resuit of the charged crime Te have independent relevance th motive established by the other crimes evidence m be more than a general one such as st gaining wealth hich could be the abasis f almost ar crime it must be a nderiying rr y motive factually peculiar to the victirr and the charged crime State v McArthur 97 2918 p 3 10 719 So 1037 1041 Plan can refer to a plan concefved La 20 98 Zd 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 pattem of crime envisioned by defendant as a coherent whole in which he achieves an ultimate g through a series of related al 9 Kennedy is suby La Code Evid art 412 only with respect to other crimes evidence of sexually rseded 2 assaultive behavior See State v Wright 2011 p 13 La 12 79 So 309 317 0141 11 6 3d McArthur is superseded by La Code Evld art 412 only with respect to other crimes evidence of 2 sexually assaultive behavior See Wr 2011 at 13 79 So at 3ll ght 0141 3d 21 crimes such as acquiring a titie bY kifling everyQroe with a saperivr claim McArthur 2918 97 at 3 719 So at 1042 2d The pracedure to be used wh the State intends to o vidQrce f other n ffer criminal offenses was fformerfy controiled by Prp iewever 1994 a Acts 3d Ex ur Sess No 51 added La Code Evid arc 1104 and am Article 404 Article 1104 nded B 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 Federa Rules of Evidence Article N 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 485 S 68 S U1 685 108 S 1496 1499 99 L 771 1988 The Louisiana Supreme Ct 2d Ed Court has yet to address the issue of the burden of proof required for the admission of other crimes evidence in Jight of the repea of La Code Evid art 1103 and the addition of Article 1104 However numeraus Louisiana appellate courts including this court have held that burden of proof to now be less than clear and convincing See State v Williams 99 p 7 App 1 Cir 9 769 So 730 734 n 2576 La 00 22 2d 4 In the pretrial Prieur hearing Kirk the DNA analyst presented testimony as to the DNA evidence against the defendant in this and the Edwards case that was consistent with her subsequent trial testimony Consistent with his trial testimony Sergeant Johnson noted that th body of the victim in this case was discovered in a flower bed on the side of a buiiding on Main Street in Baton Rouge that had been vacant for a iong period of time Noting the presence of condoms and debris Sergeant Johnson testifed that homeless people and drug users frequentVy congregated in front of the vacant building The victim shirt was pulled upwards to her face xposing her bra and abdomen and s her body was positioned on her back in front of a tree with one leg on each side of the tree Regarding the victim injuries Sergeant Johnson testified that the victim had an s abrasion on the side of her face along with the ligature marks on her neck and Kirk noted that the victim had what she considered blunt force trauma on her head Sergeant Johnson further noted the forensic pathologist determination that the victim cause of s s 22 death was manual strangulation with a ligature Based on his investigation Sergeant Johnson concluded that the victim had a high lifestyle thaugh she d not seem to be risk sd homeless and was emRloyed s Edwards body v foUnd i an aba aull on Florida B ir Baton as necl nd ng ulevard Rouge with her upper torso and hip area positioned ver a box her head leaning back outside of the box and her legs extended at the end of the box The victim had visible ligature marks on her neck Sergeant ohnson noted the condition of the building and further testified that homeless people frequently used drugs and had sex in the buiiding Edwards also led a high lifestyle consisting of prostitution and at least on prior risk arrest and was known to frequent locations such as the scene of the discovery of her body Sergeant Johnson noted that Edwards also died by manual strangulation was beaten and possibly raped based on the condition of her ciothing including a ripped shirt panties around her ankle and removed pants On September 26 2006 the police received confirmation that the defendanYs fingerprints were lifted from a beer can found at the scene of another Baton Rouge female murder victim Sylvia Cob At that time the defendant was incarcerated in East Baton Rouge Parish Prison and the police interviewed him He ultimately admitted being familiar with Cobb and visiting her residence but der ever being present at the ied residence where Cobb body was discQVered The defendant denied knowing either the s victim herein or Edwards as he did in the subsequent recorded police interv ew Regarding his assessment of the similarities in the murder cases Sergeant Johnson in part stated we look at the body of these women to a detective a homicide detective we think their bodies are posed which means that the body is positioned to where it give sic a shock effe twhen you walk up on a body Even though one the two women had clothing but their breast area was exposed He testified that This particular victim lasl name is interchangeabfy spelled in the record as Cobb or obbs the former s being used herein The evidence related to the murder of Sylvia Cobb is not at issue on appeal in this case as it was not admitted during the triaL 23 there was evidence of some sexual assault though not roecessarlly rape in both cases and both women were strangled in letaiiing the facts of th I ase iso c with is trial zestimony nsistent Deteckive Rhodes ted that J rcavided a c d of er a the lete i m scriptio er taci details of the attack and positively identified thz defiendant He ob J injuries erved M s including a broken ankle a bruised and battere face a closed eye and bruising and abrasions around her neck consistent with her claim that she had been strangled He also noted J claim that the defendant fondled her breasts and asked her to lick his s M nipples She believed that she temporarily lost consciousness In its statement of reasons for granting the State motion as to the other crimes s evidence from the Edwards and 9 cases the trial court discussed State v Lee 2005 M 2098 at 47 976 So at 141 where the defendant therein was charged with first 51 2d 142 degree murder and the State introduced evidence under Article 404 of four other Ba uncharged homicides and one attempted homicide by the defendant therein The other crimes evidence was introduced to show a common modus operandi The victims were all attractive successful women who led low lifestyles and were attacked in their risk comfort zones There were simiiarities in the physical injuries of each victim though the injuries were not all alike The defendant DNA was found on or in each of the victims s The Louisiana Supreme Court held that the evidence was admissible to show identity because of the genetic markers he left behind ic a variety of similar circumstances over the course of a year Lee 2005 at 51 976 So at 143 2098 2d In comparing the instant offenses to the other crimes evidence at issue herein the trial cou tspecifically noted that as in khe Lee case there were similarities amongst the victims As noted by the trial court all of the victems were adult African an Ameri women Edwards and the victim herein lived hi Eifestyles and all of tfie offenses risk h including the J attack took place in areas where transients a homeless peopfe M d frequented Like the Lee case the vickims were located in the Baton Rouge and Lafayette areas As aiso noted by the trial court all of the victims were strangled and it was apparent that the perpetrator had some contact with ail of the victims breast area 4 The trial court specificafly noted that ttae shir of the victim herein was pulled above her chest exposing her bra and the defendant DNA was found on a breast svuab taken from s her I While Edwards was also b to be raped her shirk was torn down the middle lieved ex p osin 9 her breasts Finall Y the irial cc not that after hzr attack J told the t u d M investigating detective that at one poir tthe defendant reached in her shirt and grabbed her breast ripping her shirt in the process The trial eourt v convinced that the crimzs as in the Edwards and J cases were so similac to the instant offense that the same pers M n couid be said to have committed the crimes Thus the trial court found the other crimes evidence probative and relevant to prove both identity and modus operandi outweighing any prejudicial effect of its admissibility The trial court ruling on the admissibility of other crimes evidence will not be s overturned absent an abuse of discretion See State v Galliano 2002 p 4 2849 La 1 839 So 932 934 per curiam We find no abuse of discretion in the 03 10 2d trial court ruling in this case s All of the offenses took place in high areas the risk American African adult femafe victims were each strangled their breasts were exposed or and fondled and the bodies of the murder vic were conspicuously posed at the tims murder scene adding shock effect to their discovery The modus operandi is so similar in the cases that one can easily concl tne same person was the perpetraEor in a de l instances Also the ther crimes evidence is relevant to prove material facts in the instant case Specifically it was relevant to dentity and method of selection of victims In this case the other crimes evidence is not marginally relevant but instead provides proof that the modus operandi is so simllar that it is more likeiy than not the work of one individual The probative value clearly outweighs the prejudicial effect Further the State sufficiently proved that the defendant committed the prior acts specifically considering the DNA evidence and the eyewitness testimony and convictions in the J M case Thus the trial court properly found the other crimes evidence admissibie under Article 404 Pro se assignment of error number one is without merit B CONVICTION AND SENTENCE AFFIRMED 25

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