State Of Louisiana VS Tyari Kwan Smith
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NOT DESIGNATED FOR PUBLICAION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2013 KA 0596 STATE OF LOUISIANA Y G VERSUS TYARI KWAN SMITH Judgment Rendered November 1 20I3 Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case No 571511 The Honorable Randall L Bethancourt Judge Presiding Joseph L Waitz Jr District Attorney Ellen Daigle Doskey Assistant District Attorney Counsel for Appellee State of Louisiana Houma Louisiana Jane L Beebe New Orleans Louisiana BEFORE Coansel for DefendantlAppellant Tyari Kwan Smith KUHN HIGGINBOTHAM AND THERIOT JJ THERIOT J The defendant Tyari Kwan Smith was charged by grand jury indictment with two counts of first degree murder violations of Louisiana Revised Statutes 1430 He pled not guilty and following a jury trial was found guilty as charged He filed a motion for post judgment of verdict acquittal and a motion for new trial both of which were denied The defendant was then sentenced to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence on both counts The district court ordered that the sentences run consecutively filed a motion to reconsider sentence which was denied The defendant He now appeals alleging three assigrunents of error For the following reasons we affirm the s defendant convictions and sentences FACTS On January 7 2010 officers and detectives with the Terrebonne Parish Sheriff Office responded to a report of a murder at a house on s Louisiana Highway 56 near Chauvin Louisiana T bodies of the victims he Maria Elizabeth Chavez and Tyari Smith Jr were found in a bedroom inside the house Maria was the defendant girlfriend of many years and s Tyari Jr the couple syoungest child was two years old at the time of the murders The house belonged to the defendant grandmother and the s defendant lived there with his grandmother mother sister brother two older children and the victims The defendant great uncle Lee Roy Outley who was working s outside far behind the Highway 56 house reported the incident to authorities He testified the defendant stood outside the side of the house and hollered to Outley In response Outley got into his truck and drove 1 The State did not seek the death penaity See La R 1430C S2 2 back to the house Standing on the porch the defendant told Outley Unc I just killed Maria and m baby too The defendant stated that he left y the gun in the house and Outley advised him to remove it Outley also advised him to get in his vehicle and leave the scene As soon as the defendant left Outley drove to his house and called the police The defendant was named as the suspect and was located at a house on St Matt Street When officers found the defendant he was sitting in a bedroom looking at a television that was turned off and was unresponsive He looked up at the officers sighed deeply and put his head down He would not answer any questions or tell the officers his name Officers were able to determine his identity after seeing Tyari Jr name tattooed on his s arm He was then handcuffed and taken into custody Officers were unable to find the murder weapon during their investigations however there were multiple bullet casings found and collected by detectives near the victims bodies Detectives also located a Terrebonne Parish Sheriff Office evidence bag in a closet in the Highway s 56 house that had been released to the defendant in connection with a 2008 conviction The property report inside the evidence bag listed the items that it contained at the time it was returned to the defendant According to the property report the evidence bag contained a caliber semi 40 automatic pistol five 40 caliber rounds and two 40 caliber casings When detectives recovered the bag it contained two 40 caliber bullet casings The casings were tested and determined to have been fired from the same gun as those found near the bodies of the victims ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant argues that he was denied the right to confront his accusers because he did not have the 3 opportunity to cross the analyst who performed a forensic firearms examine test the results of which were introduced by the State and linked the bullet casings found near the victims bodies to those found in the evidence bag from the defendant 2008 conviction At trial Terrebonne Parish Sheriffls s Office Detective Jason Kibodeaux who did not prepare the scientific analysis report testified as to its results The defendant objected arguing that although he did not make a demand for testimony of the analyst who performed the test requiring him to do so was in violation of his due process rights The Confrontation Clause of the Sixth Amendment acts as an absolute bar to the admission of all out testimonial evidence unless 1 the court of witness who made the statement is unavailable to testify in court and 2 the defendant had a prior opportunity to examine cross the witness See Crawford v Washington 541 U 36 68 124 S 1354 1374 158 S Ct 2d Ed L 177 2004 An analyst report and certification regarding forensic s evidence is considered a testimonial statement and is subject to Confrontation Clause requirements Melendez v Massachusetts 557 Diaz S U 305 311 129 S 2527 2532 174 L314 2009 Budlcoming v Ct 2d Ed New Mexico U 131 S 2705 2717 180 L 610 2011 S Ct 2d Ed Some states have notice statutes that do not violate the demand and Confrontation Clause because they do not shift to the defendant the burden to ca11 the testing analyst to testify at trial Melendez 557 U at 326 Diaz S 27 129 S at 2541 Ct Louisiana Revised Statutes 15 are such 501 499 statutes See State v Cunningham 2004 pp 15 La 6 903 2200 18 OS 13 2d So 1110 1120 22 Louisiana Revised Statutes 15 provides that criminal laboratories 499 are authorized to provide proof of examination and analysis of physical 4 evidence by providing a certificate ofthe person in charge of the facility A party introducing a certificate of analysis under La R 15 must S 499 provide written notice of intent to offer proof by certificate at least forty five days prior to trial The defendant may then demand that the person who conducted the examination and analysis testify by timely filing a written demand within thirty days of the notice of intent La R 15 If the S 501 certificate and notice comply with La R 15 and 15 then the S 499 501 certificate is admissible and considered prima facie evidence of the facts provided La R 15 However if the defendant properly demands the S 500 testimony of the analyst who performed the tests then the certificate is not primafacie evidence and the analyst must testify to establish the test results La R 15 If the State complies with La R 15 et seq then the S 501 S 499 certificate and report are admissible and the defendant must make a timely written demand that the analyst testify or the defendant waives his Sixth Amendment right under the Confrontation Clause State v Simmons 2011 1280 La 178 So 743 747 per curiam 12 20 3d The record reveals that the State followed the proper procedure and filed notice of its intent to use a certificate of scientific analysis pursuant to La R 15 A copy of the scientific analysis report was attached to the S 501 notice The defendant had an opportunity at that time to subpoena the appropriate analyst but failed to make a timely demand for the analyst s testimony Thus he waived his Sixth Amendment right under the Confrontation Clause Accordingly this assignment of errar lacks merit ASSIGNMENT OF ERROR NO 2 In his second assignment of error the defendant contends that the district court erred in allowing the State to introduce evidence of other crimes committed by the defendant 5 Prior to trial the State filed notice of intent to use evidence of other crimes The notice indicated that the State planned to introduce the s defendant 2008 conviction for illegal use of a weapon and 2010 convictions for possession and distribution of controlled dangerous substances The court held a Prieur hearing to determine the admissibility of these other crimes pursuant to La C art 404B At the hearing the E 1 defendant argued that there were no grounds for introducing his drug convictions in his murder case other than to suggest that he was a bad person The defendant also argued that there was no evidence that he was motivated by drugs In response the State argued that the drug convictions were relevant to the defendanYs motive because of multiple statements from his family members that he believed he was going to jail for those charges and that Maria was moving to Califomia with their three children to be with her family while he served time The State sought to introduce the defendant weapon conviction s because the bullet casings in the evidence bag that was returned to the defendant in relation to that conviction were tested and determined to have been fired from the same gun as those recovered from the murder scene According to the State introduction ofthe weapon conviction was necessary to show that the defendant had a gun in 2008 and that gun was the same one used in the murders Convinced by the State arguments the district court s allowed evidence of the weapon and drug convictions to be admitted 2 In July 2008 the defendant pled guilty to illegal use of a weapon In August 2009 the State filed a bill of information against the defendant charging him with possession with intent to distribute Schedule III and IV controlled dangerous substances and the distribution of Schedule II controlled dangerous substances The defendant withdrew his previously entered plea of not guilty and entered a guilty plea to those drug charges in Apri12010 3 See State v Prieur 277 So 126 La 1973 2d 6 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 e motive opportunity intent preparation plan knowledge identity absence of mistake or accident or when it relates to conduct that constitutes an integral part of the act Evidence of other crimes however is not admissible simply to prove the bad character of the accused Further 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 Tilley 99 p 18 La 7 767 So 6 0569 00 6 2d 22 cert denied 532 U 959 121 S 1488 149 L 375 2001 S Ct 2d Ed LJltimately questions regarding the admissibility of evidence are within the discretion of the district court and should not be disturbed absent a clear abuse ofthat discretion State v Mosby 595 So 1135 1139 La 1992 2d We find that the district court did not err or abuse its discretion in allowing the introduction of the other crimes evidence presented by the The procedure to be used when the State intends to offer evidence of other criminal offenses was formerly controlled by Prieur Prior to its repeal by 1995 La Acts No 1300 2 La C art 1103 provided that the notice requirements and cleaz and E 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 the State intended to rely upon Additionally the State had to prove by clear and convincing evidence that the defendant committed the other crimes Prieur 277 So at 129 2d 30 However 1994 La Acts 3d Ex Sess No 51 2 added La C art 1104 which E provides that the burden of proof in preh Prieur hearings sha11 be identical to the burden of proof required by Federal Rules of Evidence Article IV Rule 404 The burden of proof required by 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 U 681 685 108 S 1496 1499 99 L 771 S S Ct 2d Ed 1988 The Louisiana Supreme Court has yet to address the issue of the burden of proof required far the admission of other crimes evidence in light of the repeal of Article 1103 and the addition of Article 1104 However numerous Louisiana appellate courts including this court have held that burden of proof to now be less than clear and convincing See State v Millien 2002 La App 1 Cir 2 845 So 506 1006 03 14 2d 514 7 State The evidence related to the defendant weapon conviction was s highly relevant and necessary to show that the defendant had possession of and had fired the same gun that fired the bullets that killed Maria and Tyari Jr The evidence related to the defendant drug convictions was also s relevant and highlighted the defendant motive for committing the instant s offenses Although the defendant had not yet been convicted for the drug offenses at the time of the murders testimony presented at trial established that the defendant thought he was going to jail and was depressed about it Testimony also established that prior to her murder Maria planned to move to California with the couple three children until the defendant was s released from jail While the introduction of this other crimes evidence was certainly prejudicial the probative value of the evidence show the to s defendant motive for shooting Maria and Tyari Jr and to provide the link connecting the defendant to the murder weapon any prejudice outweighed Accordingly this assignment of error has no merit ASSIGNMENT OF ERROR NO 3 In his third assignment of enor the defendant claims that the district court erred in failing to grant his motion for a mistrial related to the admission ofthe testimony of Danny Verret Specifically he contends that a mistrial was warranted because he did not have the opportunity to prepare for Verret testimony and a conflict existed because defense counsel had s represented Verret in previous matters On the fourth day of trial the State was informed by a detective that Verret a trusty warking in the motor pool had information about the s defendant case The prosecutor unmediately informed defense counsel The prosecutor and defense counsel then watched from a monitor as a 8 detective interviewed Verret The interview was recorded and played for the district court outside ofthe jury presence s The district court pointed out that Verret only came forward with this new information by happenstance According to Captain David LeBoeuf with the Terrebonne Parish Sheriff sOffice he was in the hall of the motor pool talking to a detective about the case When Captain LeBoeuf entered the kitchen in the motor pool to get a cup of coffee Verret who had overheard the conversation between Captain LeBoeuf and the detective asked if they were talking about the defendant Verret told Captain LeBoeuf that he roomed with the defendant for two or three months Captain LeBoeuf asked if the defendant told him anything and Verret stated that the defendant told him I shot her and the bullet went through and killed the baby and that the defendant said that he didn mean to kill the baby t The district court ruled around noon on a Friday that the testimony would be allowed The defendant had the rest of the weekend to prepare for stestimony The defendant objected to the court ruling and moved Verret s for a mistrial Finding no grounds for a mistrial the district court denied the motion When the parties returned to court on Monday defense counsel moved to withdraw arguing that he had a conflict because he represented Verret in prior matters Defense counsel stated that although he had notified the district court on Friday that Verret was his former client he discovered over the weekend that he represented Verret in a domestic abuse matter and recalled disclosures made to him in confidence According to defense counsel he could not both zealously represent the defendant and protect the confidential information provided to him by Verret The district court 5 Verret later clarified that although he and the defendant were in the same dorm they only shazed the same cell for a couple of days 9 denied the motion to withdraw after Verret was called to the stand questioned by the district court and waived his attorney privilege client Mistrial is a drastic remedy and except in instances in which mistrial is mandatory is warranted only when trial error results in substantial prejudice to a defendant depriving him of a reasonable expectation of a fair trial State v Fisher 95 La App 1 Cir 5 673 So 721 0403 96 10 2d 26 725 writ denied 96 La 11 681 So 1259 Deternunation 1412 96 1 2d ofthe existence of unnecessary prejudice warranting a mistrial is within the sound discretion of the district court judge See State v Manning 2003 1982 La 10 885 So 1044 1109 cert denied 544 U 967 125 04 19 2d S Ct S 1745 161 L 612 2005 2d Ed Unless the defendant has been granted pretrial discovery if the State intends to introduce a confession or inculpatory statement in evidence it shall so advise the defendant in writing priar to beginning the State s opening statement If it fails to do so a confession or inculpatory statement shall not be admissible in evidence La C art 768 An inculpatory P Cr statement under Article 768 is one made out of court after a crime has been committed admitting a fact circumstance or involvement which tends to establish guilt or from which guilt may be inferred State v Thames 95 2105 p 4 App 1 Cir 9 681 So 480 484 writ denied 96 La 96 27 2d 2563 La 3 691 So 80 97 21 2d The State informed the defendant of the existence of the statement from Verret information immediately upon coming into possession of it It s was not until this point that it could be said that the State intended to offer the statement into evidence We find the State was in good faith and had no knowledge of the statement priar to the time it was fully disclosed to the defendant The trial was recessed after the statement was ruled admissible lo and the defendant had the weekend to prepare See State v Shelton 490 2d So 515 517 La 4 Cir 1986 The purpose of the notification App requirement of La C art 768 is to aeoid surprise and allow adequate P Cr time for the preparation of a defense A defendant should be given a fair opportunity to plan or present his defense in light ofthe damaging statement Absent a showing of either bad faith by the State in not informing the defense of the inculpatory statement sooner or substantial prejudice to the defendant the ruling of the district court should be affirmed Thus we are unable to say that the district court abused its discretion in failing to grant the defendant motion for mistrial s The right to counsel secured under the Sixth Amendment includes the right to conflict representation free See Holloway v Arkansas 435 U S 475 482 98 S 1173 1177 55 L 426 1978 An actual 83 Ct 78 2d Ed conflict of interest is established when the defendant proves that his attomey was placed in a situation inherently conducive to divided loyalties State v Kahey 436 So 475 484 La 1983 2d Actual conflicts of interest that adversely affect counsel performance must be established by specific s instances in the record and the mere possibility of divided loyalties is insufficient proof of actual conflict State v Castaneda 94 La App 1118 1 Cir 6 658 So 297 305 A defense attorney required to cross 95 23 2d examine a current or former client on behalf of a current defendant suffers from an actual conflict State v Cisco 2001 p 18 La 12 861 2732 03 3 2d So 118 130 cert denied 541 U 1005 124 S 2023 158 L S Ct 2d Ed 522 2004 The question of withdrawal or substitution of counsel largely rests within the discretion of the district court judge and his ruling will not be disturbed in the absence of a clear showing of an abuse of discretion See 11 State v Leger 2005 p 43 La 7 936 So 108 142 cert 0011 06 10 2d denied 549 U 1221 127 S 1279 167 L 100 2007 S Ct 2d Ed Because defense counsel was required to cross a former examine client on behalf of his current client he argued that an actual conflict existed Although defense counsel representation of Verret occurred in an s unrelated civil matter almost ten years prior to the instant trial he claimed that he could not both zealously represent the defendant and protect the confidential information provided to him by Verret However once Verret waived the attorney privilege and voluntarily subjected himself to full client examination cross including details of his prior convictions and reasons for testifying the alleged conflict was removed Thus the defendant rights s were adequately protected and the district court did not abuse its discretion in denying defense s counsel motion to withdraw Therefore this assignment of error has no merit CONCLUSION For the reasons set forth herein the defendant convictions and s sentences are affirmed CONVICTIONS AND SENTENCES AFFIRMED 12
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