State of Louisiana Versus Adam Littleton ( 2019 )

STATE OF LOUISIANA NO. 18-KA-354
VERSUS FIFTH CIRCUIT
ADAM LITTLETON COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-2908, DIVISION "P"
HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
December 04, 2019
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and John J. Molaison, Jr.
CONVICTION AND SENTENCE AFFIRMED
FHW
MEJ
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Paul D. Connick, Jr.
Terry M. Boudreaux
Andrea F. Long
Kellie M. Rish
Megan L. Gorman
COUNSEL FOR DEFENDANT/APPELLANT,
ADAM LITTLETON
Paul J. Barker
Kristen Legendre
WICKER, J.
This is an appeal of the conviction of defendant, Adam Littleton, for second-
degree murder after a jury trial on July 28, 2017. On November 9, 2017, defendant
was sentenced to life imprisonment without benefit of probation, parole, or
suspension of sentence. Defendant also appeals the trial court’s admission of
expert testimony in the field of human trafficking and evidence of other acts of the
defendant’s involvement in human trafficking under Louisiana Code of Evidence
art. 404(b). As the trial court previously denied defendant’s motions for new trial
based on alleged sequestration violations by a State witness and Brady violations
by the State, he appeals the denial of those motions.
For the reasons set forth below, we find no merit to the allegations and
affirm the decisions of the trial court.
FACTS
On June 10, 2015, at 4:57 a.m., emergency operators were alerted to an
object, possibly a human body, lying in the center lane of westbound Interstate 10.
Louisiana State Police and the Jefferson Parish Sheriff’s Office (JPSO) found a
trail of blood, body parts, sandals, a cellular phone, clothing, a hair piece, and a
watch from the Veterans on-ramp to the Power exit. After analyzing the victim’s
fingerprints and cellular phone, the police identified the body as nineteen-year-old
Jasilas Wright. After speaking to the victim’s friends and family members and
searching the home of the victim’s mother, Nedra Wright, defendant, Adam
Littleton, was identified as a suspect.
Testimony at trial revealed that the victim had known defendant for less than
a month. Defendant had traveled to New Orleans from Texas on May 14, 2015,
with Quinicsha Johnson, a prostitute. While staying at the Monteleone Hotel,
defendant met the victim through her work as a dancer at Stiletto’s, a Bourbon
1
Street strip club.1 Within a few days, the victim left New Orleans with defendant,
telling family members that she was going to dance in Texas with some girls from
her work. Defendant and the victim thereafter stayed in hotels in Ft. Worth,
Dallas, Austin, and Grand Prairie, Texas. In the beginning of June, the victim and
defendant drove back to New Orleans in a gray Camry belonging to defendant’s
brother, Michael Adams.
Upon their return to New Orleans, the victim and defendant stayed with the
victim’s mother, Ms. Wright, at her home located at 3009 Live Oak Street. The
victim’s family believed defendant was the victim’s boyfriend. According to her
family, when she returned home, the victim appeared to have lost weight; she told
her grandmother, Carole Bernard, that she was not going to leave New Orleans or
her nine-month-old son again. After returning to New Orleans, the victim resumed
working at Stiletto’s. Defendant drove the victim to and from work, and spent
time with Ms. Wright while the victim worked.
On the night of June 6, 2015, the victim went out with her friend from high
school, Demonyan Cooper, and spent the night with another man. Two days later
on June 8, 2015, the victim and defendant went to Walmart’s Woodforest bank
where defendant opened a bank account and deposited ten dollars.2 On the evening
of June 9, 2015, the victim went to work. While she worked, defendant met
Journae King, a former dancer, on Bourbon Street, and they exchanged text
messages until 2:40 a.m. the following morning of June 10, 2015. Defendant’s cell
phone records revealed that he was in downtown New Orleans at 4:20 a.m.,
thereafter near Loyola Drive in Kenner from 5:00 a.m. to 5:05 a.m.
1
Records show defendant stayed at the Monteleone Hotel on May 14 through 16. He also had hotel reservations at
the Hyatt and Hotel Royal on May 16-17.
2
Victim’s friend, Monique Ross, testified that while working at Walmart she saw victim in the bank where victim
told her that she was unable to open an account without her social security card.
2
On June 10, 2015, Ms. Wright realized that her daughter had not come home
from work, although both her and defendant’s bags were still in the house. At
approximately 11:00 a.m., Journae King called Ms. Wright asking if she had seen
her daughter. After speaking with Ms. King, Ms. Wright called Ms. Bernard, her
mother and the victim’s grandmother. Meanwhile, defendant made phone calls to
Ms. Johnson, Ms. Cooper, Ms. King, as well as his brother and sister, crying and
telling them that the victim had jumped out of his car on the highway. Ms. Cooper
went to Ms. Bernard’s house and put all phone calls from defendant on
speakerphone in the presence of Ms. Bernard and officers from New Orleans
Police Department (NOPD).3
Cell phone records show defendant continued to drive west to Dallas, Texas
arriving there between 9:45 and 10:15 p.m. at the apartment of Stephanie Walker,
his brother, Michael Adams’ girlfriend. After hearing defendant’s story, Ms.
Walker confirmed the details on the internet and called the Louisiana State Police
from her workplace. On June 12, 2015, Ms. Walker spoke with Trooper First
Class Gus Bethea at which point she reported to the trooper that she had overheard
defendant telling Mr. Adams that he could not call the police because he was
scared that he was responsible. According to Ms. Walker, defendant said he had
forced the victim into the car and told her the only way she was going to get out
was if she jumped. Ms. Walker also overheard defendant say that he saw, in his
rearview mirror, two cars run over the victim and that he stopped at the next exit to
throw her belongings out of the car. Louisiana State Police and JPSO deputies
arrived in Dallas, searched the Camry, and interviewed Mr. Adams and Ms.
Walker. The search of the vehicle revealed defendant’s bank statements from
3
One of the officers was Detective Charles Haw who recorded the phone conversation on his body camera at
approximately 2:30 p.m. on June 10, 2015.
3
Bank of America and paperwork from victim’s visit to Texas Health Resources
center on May 23, 2015 at 2:00 a.m. for a cervical sprain.
The coroner, Dr. Marianne Eserman, determined that the cause of the
victim’s death was multiple blunt force injuries, and based on law enforcement
reports, the manner of death was homicide.4 Louisiana State Police obtained two
arrest warrants for defendant: one for second degree kidnapping in Orleans Parish
and another for second degree murder in Jefferson Parish. Defendant turned
himself in to the police in Shreveport, and he was escorted to Orleans Parish.
PROCEDURAL HISTORY/STATEMENT OF THE CASE
On May 12, 2016, defendant was charged with second degree murder in
violation of La. R.S. 14:30.1. On November 21, 2016, the State filed a Notice of
Intent to Introduce Evidence of Other Acts under La. Code of Evidence art. 404(b).
The State sought to introduce evidence of nine other acts proving that defendant
was engaging in a prostitution enterprise to provide insight into the victim’s
relationship with defendant. These acts were discovered by law enforcement after
speaking to the victim’s family and friends and searching the victim and
defendant’s phone records, Instagram accounts, email accounts, and bank records.
The State argued that the evidence was relevant to the essential element that the
victim was not a willing occupant of the defendant’s vehicle. After a hearing of
the contested motion on January 11, 2017, the trial court granted the introduction
of evidence over defense objection.
On May 30, 2017, the State filed a Notice of Intent to offer Lieutenant
William Hare, the Commander of JPSO vice unit, as an expert in the field of
human trafficking. On July 18, 2017, the State filed a motion for a pre-trial
4
Dr. Eserman testified that the presence of caffeine, nicotine, and cocaine metabolite were detected in the
toxicology screening, however, the victim would not have been under the influence of cocaine at the time of her
death.
4
hearing to qualify Lieutenant (Lt.) Hare as an expert, which defense counsel
opposed. At the July 24, 2017 hearing was held on, and the trial court found that
based on his training, education, and experience in the field, Lt. Hare was qualified
testify as an expert, specifically in the culture, language, advertising, and arranging
of prostitution; transportation and locale of prostitution; and recruiting and control
methods of pimps.
The case thereafter proceeded to trial before a twelve-person jury on July 24,
2017. At the trial, as a result of the admission of Other Acts evidence, the jury
heard testimony from Trooper Bethea that provocative photographs of the victim,
as well as the phone numbers of the victim and defendant, were posted on a
classified website called “Backpage.com” with a section for advertisements for
sexual services. The account associated with the postings was registered to
defendant’s email address, “rolathegreat@gmail.com.” During the same dates as
the postings, email confirmations from travel websites were sent to defendant’s
email account for hotel reservations in corresponding cities.5 Defendant’s
Instagram account “Chulonamesip” and “Dakota3457” included posts boasting
about being a pimp.6
Detective Lincoln testified that records from Backpage.com contained
postings of the victim and Ms. Johnson, using their own and generic photographs.
After reviewing the victim’s phone records, investigators discovered text messages
between the victim and defendant relating to fees, locations, hotel rooms, and
condoms. There were also texts between them fighting and declaring their love for
one another. Defendant apologized to the victim for “the Texas trip.” The victim
5
The Backpage account was opened in April 11, 2015 with an advertisement in Dallas. The advertisements and
hotels bookings continued to Denver, Colorado (April 17-19), Addison, Texas (April 22), Ft. Worth, Texas (April
23-24), Dallas, Texas (April 27-28), Kansas City, Missouri (April 29-May 5), Dallas (May 6-9), Houston, Texas
(May 9-14), New Orleans (May 14-17), Ft. Worth (May 18), Dallas (May 20-23), Austin, Texas (May 25-30),
Grand Prairie, Texas (May 31)
6
“Sip” was defendant’s nickname according to the testimony of Trooper Bethea, Officer Matthew Cole Helton, and
Ms. King.
5
received texts from other people wanting to recruit her in which she related that
she had “a daddy.”
The State called Quinichsa Johnson who testified that she had met defendant
in Dallas in April 2015. She first became involved in prostitution in 2013.7 Her
friend “Cash” had taught her how to post ads on Backpage.com. Ms. Johnson
testified that after meeting defendant, he “casually” took part in “making sure
everything was okay.” At her request, defendant would obtain hotel rooms for her
since Ms. Johnson was only twenty years old. Defendant would put her money in
his bank account because she “didn’t like walking around with cash.” She felt that
it was “more of a bodyguard situation.” While they were together, they lived in
hotels in Texas, and also traveled to Denver for festivals and Kansas City to see
her sick godfather. They went to Louisiana for “the Bourbon Street life.” Ms.
Johnson testified that defendant met the victim in New Orleans, and the two of
them left in defendant’s two-seater car. She took the bus and met up with them in
Texas. Ms. Johnson started posting ads with the victim on Backpage.com “some
days later.” Ms. Johnson testified that the victim wanted to leave Texas to see her
child, and the victim and defendant would sometimes argue. Ms. Johnson started
to get jealous of victim’s and defendant’s relationship, and left them while in
Austin in June 2015. She blocked defendant’s number and he then sent her
threatening text messages.8 When he called her several times on the morning of
June 10, 2015, she answered the phone. While crying and hysterical, defendant
told her that the victim had jumped out of the car due to an argument.
Officer Matthew Cole Holton with the Addison Police Department in Texas
testified that he was dispatched to a theft call at the Holiday Inn in Addison, north
7
Ms. Johnson went by the names “Star” and “Breanna.”
8
Ms. Johnson testified that she did not think the defendant was going to physically hurt her, and he never originated
the conversation about pimping. During her direct examination, she revealed that she has sent letters and money to
defendant in jail, telling him that she misses him and wants to be with him when he gets out.
6
of Dallas, where the victim was staying with defendant and Ms. Johnson, on the
evening of May 23, 2015, where he spoke to the victim who was upset, telling him
defendant stole $200 out of her bag. Officer Holton testified he escorted the victim
to her hotel room after she related that another female named “Star” would not let
her inside the room, but the hotel room was empty.9
After this incident, Ms. Bernard received a phone call from the victim who
told her grandmother she wanted to go home because “they” took all her money
and left her. On May 23, 2015 at approximately 11:00 p.m., Ms. Bernard
contacted a family friend in Houston, Deshon Johnson. Deshon Johnson spoke to
the victim at the hotel, and purchased a ticket for her on a bus scheduled to leave
Dallas for Houston on May 24, 2015 at 7:15 a.m. The victim did not respond to
further calls and texts, but the hotel clerk told Deshon Johnson that the victim had
left with “Michael.”
Demonyan Cooper, the victim’s friend from high school, testified that she
had spoken to the victim while she was in Texas. Ms. Cooper testified that she
saw bruising on the victim when they were getting dressed after the victim’s return
to New Orleans. When Ms. Cooper asked her, the victim attributed the bruising to
dancing on a pole. The defense moved for a mistrial, arguing that the State never
provided disclosure about the victim’s bruising or its source prior to trial. The trial
court denied the motion for mistrial.
Journae King next testified that she had met defendant on Bourbon Street
outside of a club on June 9, 2015. As a former dancer, she believed that he had the
“vibe” of being a pimp. They spoke over text message and he admitted to her that
he was in “that lifestyle,” but wanted to leave it and have a relationship with her.
When she next spoke to defendant at 12:41 p.m. on June 10, 2015, he told her the
9
Ms. Johnson also testified to an incident in Texas where a hotel called the police and the victim made a report.
7
victim had jumped out of the vehicle but he was afraid to stop because the victim
had put a warrant out for him in Texas. Ms. King asked for victim’s family’s
phone number to ascertain if the victim had made it home. Defendant told her not
to tell the family that he was headed to Texas. She thereafter turned their text
messages over to law enforcement.
Stephanie Walker also testified that defendant had previously come to her
and Mr. Adams’ apartment with a female he identified as his prostitute. In May
2015, he had returned to the apartment with two females and borrowed Mr.
Adams’s vehicle in order to have room for both women.10 Defendant failed to
return the car and Mr. Adams had to call their father to get defendant to agree to
return the car on June 6, 2018.
Prior to Ms. Walker’s testimony, the Assistant District Attorney disclosed to
the trial court that Ms. Walker had seen media coverage of the trial. Ms. Walker
testified that she had watched five to six minutes of the local news which reported
“Adam hit his girlfriend with his car.” She stated that before seeing the story she
had not been previously instructed by the District Attorney’s office to not watch
the news. The defense requested that her testimony be barred for violating the
sequestration order because her testimony was tainted by contact with all of the
previous testimony in the case. The Court denied the motion to strike Ms.
Walker’s testimony.
Finally, Lieutenant Hare testified as an expert to the subculture of pimps and
prostitutes called “the game.”11 He explained to the jury the difference between
prostitution, in which a female solicits customers for a sexual act, and human
trafficking, which involves someone forcing or coercing a prostitute to perform or
10
Ms. Walker testified that defendant had previously stayed in the apartment in February 2015 for a few weeks.
11
Defendant renewed his objection to Lt. Hare as an expert, as he had not previously been deemed an expert in any
court, had never been the lead in a sex trafficking case, had never published articles, and there had been no peer
review of his lectures.
8
solicit. He explained terms that were used in the victim’s and defendant’s text
messages, including “dates” (jobs), “in-call” (where the client comes to the
prostitute), “out-call” (where the prostitute goes to the client’s location), “doubles”
(a job with two prostitutes), and “daddy” (pimp).12 He discussed the control
methods used by pimps, including the mind games of a “Romeo” pimp and the
physical control of a “Gorilla” pimp. Lt. Hare discussed a five-part manipulation
system used by pimps to recruit prostitutes for trafficking which includes: 1) the
recruiting phase, during which a pimp uses flattery on a vulnerable person; 2) a
seduction phase during which he cares for the person and buys her things as an
investment; 3) an isolation phase during which the prostitute becomes emotionally
and financially dependent on the pimp while he attempts to distance her from
family and friends; 4) the coercion and violence phase, when the pimp manipulates
the prostitute into thinking that she is responsible for making their “dream” come
true through withholding affection or physically and mentally abusing the victim;
and 5) the refraining stage when the pimp changes the prostitute’s identity,
including branding her with a tattoo as if she is his property.
Lt. Hare testified that he reviewed the text messages, photographs, Instagram
accounts, hotel receipts, and Backpage.com advertisements in this case. He related
to the jury that defendant’s Instagram account contained “pimp bragging” posts,
and his user name “Chulonamesip” contains the Spanish word for pimp. He
testified that defendant’s texts relating to the amount of money and time spent on
dates were consistent with human trafficking. With regard to the text conversation
with Ms. King, Lt. Hare opined it contained seductive, recruiting language
consistent with trafficking. In his experience interviewing victims, victims will
12
Lt Hare also discussed terms not mentioned in the text messages but relating to the pimp-prostitute relationship,
including “circuits” (group of cities that pimps travel to with prostitutes, including taking place on the internet),
“bottom bitch” (the female who has been with the pimp the longest and may have special privileges), and terms such
as “stable” and “family” to refer to groups of prostitutes.
9
often call pimps their “boyfriend” or “bodyguard” and minimize their behavior.
He testified that defendant’s bank account substantially increased in April and
May, which is consistent with the pimp’s goal of “all about the money.”13 He also
testified that promises of a relationship, money, and love were coercive tactics. On
redirect, Lt. Hare testified that although defendant was not a “sophisticated” pimp,
his behavior was consistent with involvement in human trafficking.
On July 28, 2017, the jury returned a guilty verdict to the charge of second
degree murder. On September 12, 2017, defendant filed a motion for a new trial
based on newly discovered evidence, that being outstanding arrest warrants for Ms.
Walker at the time of trial, as well as on the trial court’s failure to exclude Ms.
Walker’s testimony as a violation of the sequestration order, the State’s failure to
disclose to the defense before trial Ms. Cooper’s testimony regarding the bruising,
and the trial court’s admission of the other acts evidence. The court heard the
motion on October 27, 2017, and after taking the matter under advisement, denied
the motion for new trial on November 9, 2017. Defendant was sentenced to life
imprisonment without benefit of probation, parole, or suspension of sentence on
November 9, 2017. Defendant filed a timely motion for appeal alleging five
assignments of error.
Discussion
Assignment of Error Number One
In defendant’s first assignment of error, he alleges that the State failed to
prove beyond a reasonable doubt that he was guilty of second degree murder since
the evidence offered was insufficient to prove he committed the underlying felony
13
Defense counsel cross-examined Lt. Hare as to defendant’s recent entry into the lifestyle, pointing to defendant’s
bank records showing that before he started staying in hotels on April 16, 2015, he was eating fast food every day.
Additionally, the seven bank deposits made by the defendant occurred before he met the victim. Defense counsel
pointed out that the victim’s phone records show her trying to setting up threesomes and texting “Daddy” about a
new girl for the team prior to meeting defendant.
10
of second degree kidnapping. He argues that the only evidence presented as to the
kidnapping charge was Ms. Walker’s testimony which he believes should have
been excluded.
The constitutional standard for testing the sufficiency of the evidence, as
enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979), is whether after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La. 10/21/97), 701
So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722(1998). A reviewing court is required to consider the entire record and determine
whether a rational trier of fact would have found the State proved the essential
elements of the crime beyond a reasonable doubt. State v. Price, 00-1883 (La.
App. 5 Cir. 7/30/01), 792 So.2d 180, 184. When circumstantial evidence is
involved, the reviewing court must evaluate the evidence in a light most favorable
to the State and determine whether a possible alternative hypothesis is sufficiently
reasonable for a rational juror to not have found proof of guilt beyond a reasonable
doubt. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The reviewing
court must defer “rational credibility calls, evidence weighing and inference
drawing” to the trier of fact, and not re-evaluate the credibility of witnesses or re-
weigh the evidence. State v. Caffrey, 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d
198, 202, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297.
Under the felony murder theory of second degree murder, defined by La.
R.S. 14:30.1(A)(2), the State was required to prove the killing of a human being
when the offender is engaged in the perpetration or attempted perpetration of an
enumerated felony, even though he has no intent to kill or inflict great bodily harm.
State v. Lewis, 05-170 (La. App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ
11
denied, 06-0757 (La. 12/15/06), 944 So.2d 1277. Second degree kidnapping,
defined by La. R.S. 14:44.1, is one of the enumerated felonies, and requires the
physical injury of a victim during either: “(1) the forcible seizing and carrying of
any person from one place to another; or (2) the enticing or persuading of any
person to go from one place to another; or (3) the imprisoning or forcible secreting
of any person.”
In our examination of the essential elements necessary to support the
conviction of second degree murder while engaged in second degree kidnapping,
we find the State presented sufficient evidence of all elements. For the element
necessary to prove the kidnapping, the State presented evidence of all three
theories of kidnapping.
The State presented evidence from which the jury could reasonably infer that
the victim was forced into defendant’s vehicle. Ms. Walker testified that defendant
said he had to “rough her up” to get the victim in the vehicle. Ms. King and Ms.
Johnson testified that defendant admitted that he and the victim were having an
argument in the vehicle. Evidence was presented to prove that defendant intended
to drive to Texas where his brother was expecting the return of his vehicle.
Furthermore, even if the victim voluntarily entered defendant's vehicle for a ride to
her home, her consent ceased at the point when he refused to stop the vehicle at her
request. State v. Gray, 41,732 (La. App. 2 Cir. 1/10/07), 948 So. 2d 335, 340–41.
Ms. Walker testified that defendant told the victim the only way she could leave
the vehicle was to jump out. In State v. Davies, the victims consensually and
voluntarily got into the defendant’s vehicle. Davies, 35,783 (La. App. 2 Cir.
4/5/02), 813 So.2d 1262, 1263-67, writ denied, 02-1564 (La. 5/9/03), 843 So.2d
389. In that case, the victims repeatedly asked the defendant to take them home,
but he passed the exit closest to the girls’ homes and continued to drive along the
12
interstate. Both girls eventually jumped from the defendant’s vehicle, and only
one survived. The Louisiana Second Circuit held that the evidence was sufficient
to convict the defendant of two counts of second degree kidnapping and one count
of second-degree murder.14
Alternatively, kidnapping can be proven when the victim is enticed or
persuaded. Following the testimony that defendant usually brought the victim
home to New Orleans after work on Bourbon Street, it would be reasonable to infer
that defendant enticed the victim to get in his vehicle to bring her home. Ms.
Wright testified that the victim’s belongings were still at her house and she had
borrowed her mother’s make up, indicating that the victim believed she would be
coming home after work. As the vehicle passed numerous interstate exits after the
most direct exit to her home from downtown New Orleans, the jury could find that
the victim was not expecting to continue on the I-10 towards Kenner and Texas.
The third alternative element of kidnapping by imprisonment was also
supported by the evidence that the victim jumped out of defendant’s moving
vehicle on the interstate. A reasonable juror could infer from this desperate act that
the victim was held against her will in defendant’s vehicle. As discussed in more
detail in defendant’s third assignment of error, the evidence of defendant’s other
acts during the weeks preceding June 10, 2015, support the conclusion that the
victim would be unwilling to return to Texas to engage in further acts of
prostitution for the defendant. The State called many witnesses and presented
substantial evidence as to the defendant’s other acts in coercing, or at least aiding,
the victim in prostitution, to show why the victim would not be willing to return to
Texas with defendant. The jury could reasonably infer that the victim was an
14
In the Davies case, the defendant threatened to kill the girls, demanded sex from them, fondled one of the victims,
and had a bat and a knife in his possession. He was also convicted of two counts of attempted aggravated rape.
State v. Davies, 35,783 (La. App. 2 Cir. 4/5/02), 813 So.2d 1262, 1263-67, writ denied, 02-1564 (La. 5/9/03), 843
So.2d 38913
unwilling passenger in defendant’s vehicle if she felt she had to escape by jumping
out of a moving vehicle.
Furthermore, after the victim jumped out of his vehicle, defendant disposed
of the victim’s belongings and continued driving to Texas, instead of calling for
help or immediately contacting the victim’s friends and family members.
Defendant also asked Ms. King not to tell Ms. Wright that he was headed to Texas.
These actions indicated that defendant had a guilty conscience. Evidence of flight,
concealment, and attempt to avoid apprehension is relevant and admissible to
prove consciousness of guilt from which the trier-of-fact may infer guilt. State v.
Bellow, 08-259 (La. App. 5 Cir. 7/29/08), 993 So.2d 307, 316, writ denied, 08-
2109 (La. 4/13/09), 5 So.3d 162.
Ultimately, it is reasonable that the jury could believe the testimony of the
witnesses regarding defendant’s admissions and reasons the victim would be
unwilling to go to Texas with defendant. Credibility determinations are within the
sound discretion of the trier of fact and will not be disturbed unless clearly contrary
to the evidence. State v. Humphery, 14-519 (La. App. 5 Cir. 11/25/14), 165 So.3d
937, 942. Accordingly, the reviewing court’s role is not to assess credibility or
reweigh evidence. State v. Gordon, 11-373 (La. App. 5 Cir. 4/24/12), 94 So.3d 29,
34, writ denied, 12-1189 (La. 10/8/12), 98 So.3d 851 (citing State v. Smith, 94-
3116 (La. 10/16/95), 661 So.2d 442, 443). In the absence of internal contradiction
or irreconcilable conflict with physical evidence, one witness’ testimony, if
believed by the trier of fact, is sufficient support for a requisite factual conclusion.
Gordon, 94 So.3d at 34 (citing State v. Robinson, 02-1869 (La. 4/14/04), 874 So.2d
66, 79, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004)).
Multiple witnesses testified to defendant’s admissions that the victim jumped from
his vehicle which provide a reasonable basis for jurors to infer that the victim was
14
an unwilling passenger. While Ms. Walker’s testimony of defendant’s admissions
to his brother provides the only evidentiary support for the element of force, the
jury could have chosen to find her credible and we do not find the admission of her
testimony to be erroneous, as we will detail further during our discussions of
assignments of error four and five.
The element of the physical injury of the victim is required to prove the
second degree kidnapping felony and the element of the killing of a human being,
necessary for second degree murder. The State presented evidence that the
victim’s body was found on the interstate in pieces as a result of her escape from
the vehicle. The coroner found a massive amount of trauma to the body leading to
her death.
The defendant’s alternative hypothesis, that defendant let the victim out of
his car on the side of the highway, is not sufficiently reasonable that a rational
juror could not have found proof of guilt beyond a reasonable doubt. No witness
testified to the defendant making that assertion and the assertion is inconsistent
with the findings of the crime scene investigators. Therefore, when viewing the
evidence in the light most favorable to the prosecution, the State presented
sufficient evidence to prove that defendant committed second degree kidnapping of
the victim, which led to her death and, thus, to support his conviction of second
degree murder.
Assignment of Error Number Two
In his second assignment of error, defendant argues that the trial court erred
in accepting Lieutenant Hare as an expert witness. He contends that the trial court
did not perform its “gatekeeping” function when it failed to consider the standards
for determining the reliability of expert testimony enunciated in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 46915
(1993). He argues for the first time on appeal that Lt. Hare’s theories have not
been proven reliable and should not have been considered as the basis for an expert
opinion by the jury.
On July 18, 2017, the State filed a motion to qualify Lt. Hare as an expert
witness in the field of human trafficking to assist the jury in understanding that
defendant’s actions and behaviors were consistent with human trafficking activity.
The State wanted Lt. Hare’s expert testimony to corroborate other evidence to
show that defendant forcibly seized, enticed, or persuaded the victim. The defense
asserted there was no doubt that Lt. Hare could testify as an expert regarding
human trafficking; however, such expert testimony was unnecessary to this case
since defendant was not charged with human trafficking. Defendant argued that
such testimony would prejudice the jury against him and offer no probative value.
In determining the admissibility of expert testimony, trial courts are guided
by the three-prong inquiry adopted by the Louisiana Supreme Court derived from
Louisiana Code of Evidence article 702.15 Cheairs v. State ex rel. Department of
Transp. And Development, 03-0680 (La. 12/3/03), 861 So.2d 536. The trial court
should determine if:
(1) the expert is qualified to testify competently regarding the matters
he intends to address;
(2) the methodology by which the expert reaches his conclusions is
sufficiently reliable as determined by the sort of inquiry mandated in
Daubert;16 and
(3) the testimony assists the trier of fact, through the application of
scientific, technical, or specialized expertise, to understand the
evidence or to determine a fact in issue.
15
La. Code of Evidence article 702 provides the general rule for admissibility of expert testimony on the conditions
that:
(1) The expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.
16
The inquiry set out by the Supreme Court in Daubert addresses the reliability and validity of an expert’s
methodology or reasoning by considering: the testability or refutability of the expert's theory or technique; whether
the technique has been subjected to peer review and/or publication; the known or potential rate of error; and whether
the technique or methodology is generally accepted by the scientific community. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593–594, 113 S.Ct. 2786, 125 L.Ed.2d. 469 (1993).
16
Cheairs, 861 So.2d at 542 (citing City of Tuscaloosa v. Harcros Chemicals,
Inc., 158 F.3d 548, 562 (11th Cir. 1998), certs. denied, 528 U.S. 812, 120 S.Ct.
309, 145 L.Ed.2d 42 (1999) and 528 U.S. 812, 120 S.Ct. 47, 145 L.Ed.2d (1999)).
The determination of whether scientific evidence is reliable and will aid the
jury comes after balancing the probative value of the evidence against its
prejudicial effect. State v. Foret, 93-0246 (La. 11/20/1993), 628 So.2d 1116, 1123;
State v. Catanese, 368 So.2d 975, 978-79, 983. (La. 1979). Competence of an
expert witness is a question of fact to be determined within the sound discretion of
the trial judge whose rulings on the qualifications of expert witnesses will not be
disturbed absent an abuse of discretion. State v. Otkins-Victor, 15-340 (La. App. 5
Cir. 5/26/16), 193 So.3d 479, 525, writ denied, 16-1495 (La. 10/15/18), 253 So.3d
1294.
At trial, defense challenged Lt. Hare’s qualifications as an expert under the
first prong based on his lack of field work and membership in national
organizations.17 While defendant raised the issue of lack of peer review to Lt.
Hare’s lectures and lack of authorship, he failed to raise a specific reliability
challenge to Lt. Hare’s methodology or theories requiring a Daubert inquiry under
the second prong. State v. Torregano, 03-1335 (La. App. 5 Cir. 5/11/04), 875
So.2d 842, 847. The only issue before this Court is whether the expert is qualified
and whether his expertise assisted the trier of fact in understanding the evidence or
determining a fact in issue, not the reliability of his theories.
Prior to jury selection, the trial court heard testimony from Lt. Hare to
determine if he was qualified to testify as an expert. Lt. Hare provided that he has
17
Prior to trial, defendant filed a motion in opposition to the State’s request to have Lt. Hare deemed an expert, on
the basis of the witness’s testimony being more prejudicial than probative. Defendant argued that as he was not
charged with sex and/or human trafficking, Lt. Hare’s testimony was unnecessary and would only prejudice the jury
against defendant.
17
been a law enforcement officer for a total of thirty-three years, thirteen of which
were in vice-related investigations, while employed with both the JPSO and the
New Orleans Police Department (NOPD). He has participated in an estimated two
thousand vice investigations involving street-level prostitution, Internet
prostitution, pandering, and human and sex trafficking. At the time of trial, he was
the JPSO Commander of the Vice Division and estimated that the vice unit spent
ninety-nine percent of its time investigating sex and human trafficking.
Lt. Hare detailed for the court that he had attended educational and training
programs hosted by the Law Enforcement Investigators Alliance and the Western
States Vice Investigators Association geared towards vice investigations and sex
trafficking. He estimated that he had taken seven courses related to the culture and
language, control methods, and transportation and locale of prostitution and sex
trafficking. Additionally, Lt. Hare recounted that he had managed a grant to JPSO
for the purpose of investigating complaints of human trafficking. As part of the
grant, Lt. Hare worked with the Louisiana Human Trafficking Task Force during
which time he attended a human trafficking class in Washington D.C. He also
formed relationships with personnel at hotels and motels resulting in their
assistance in human trafficking and prostitution investigations.
Lt. Hare has lectured on the “pimp, prostitute subculture” — or “the game”
— and how to identify evidence of it in mainstream culture. Since 2006, he has
given his lecture approximately nine times in Mississippi and Louisiana. In 2016,
Lt. Hare was chosen to speak to Attorney General Loretta Lynch during her visit to
New Orleans about law enforcement’s problems with human and sex trafficking.
He also provided that the methods and techniques that he has studied in other areas
were consistent with those employed in his own area of investigations.
18
Finally, Lt. Hare testified that he has never been deemed an expert by any
court. He denied being a member of any national organization or having any kind
of certification in his field. He further denied authoring any articles in the field or
giving presentations that were graded by his peers. Defendant argued that he
should not be deemed an expert since he had “not done enough work in this field to
be deemed an expert,” had not had his work criticized or reviewed by his peers or
any articles published, and was not a member of any national organization or
received any certification from a national organization. The State compared Lt.
Hare’s experience to that of a narcotics expert, whose expertise stemmed from his
experience on the job.
The trial court ruled that Lieutenant Hare was qualified to be an expert in the
field of human trafficking, specifically with regard to subculture and language, the
advertising and arrangement of transportation, locale recruitment, and control
methods. Lt. Hare has specialized knowledge, or expertise, from his extensive
experience and training in the field. Although his presentation was not the subject
of peer review, this Court has stated that “[s]cholarly writing and peer review are
not commonly associated with police work.” State v. White, 14-631 (La. App. 5
Cir. 12/23/14), 168 So.3d 664, 667-68. This Court has allowed law enforcement
personnel with extensive experience in narcotics investigations to offer expert
opinion on the difference between drug dealers and users without scientific
credentials or a scientific method. Id. Therefore, we find that the trial court did
not abuse its discretion in finding that Lt. Hare was qualified to testify competently
to matters in the field of human trafficking.
Lt. Hare’s testimony was relevant in assisting the trier of fact in
understanding the evidence, particularly the relationship between the victim and
the defendant. Several federal appellate courts have affirmed the admissibility of
19
the testimony of law enforcement officers as experts to testify about the
relationship between prostitutes and pimps in sex trafficking cases. See, e.g.,
United States v. Warren, 2019 WL 2156533, (4th Cir. 2019) at *3 (finding no
abuse of discretion in admitting expert testimony on the typical manner in which
human trafficking operates); United States v. Anderson, 560 F.3d 275, 281 (5th
Cir. 2009) (finding no abuse of discretion in allowing expert testimony on the
behavior of pimps); United States v. Bryant, 654 Fed.Appx. 807, 814 (6th Cir.
2016) (finding no abuse of discretion in admitting expert testimony by agent
because the jury is not generally equipped to evaluate the testimony as to the
complicated pimp/prostitute relationship), cert. denied, 137 S. Ct. 412 (2016);
United States v. Geddes, 844 F.3d 983, 991 (8th Cir. 2017) (finding no abuse of
discretion in admitting expert testimony on the nature of sex trafficking
operations); United States v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001) (finding the
district court correctly ruled that an academic expert’s testimony on relationship
between prostitutes and pimps was relevant because a trier of fact who is in the
dark about that relationship may be unprepared to assess the veracity of an alleged
pimp, prostitute, or other witness testifying about prostitution); United States v.
Sutherland, 191 F. App'x. 737, 740–41 (10th Cir. 2006) (finding no abuse of
discretion in allowing expert testimony on the general methods of prostitute
recruitment and management). The federal courts have generally found expert
testimony to be relevant in explaining the subculture of prostitution and sex
trafficking, because the subculture is not common knowledge, and it is helpful to
the jury to better understand and evaluate the testimony of sex trafficking
victims.18
18
Federal courts have limited experts in human trafficking to providing testimony which educates the jurors and
assists jurors in making the determination of whether the charged offense of human trafficking can be construed
from a defendant’s behavior without making legal conclusions. See Meganathan v. Signal Int'l L.L.C., No. 1:13-CV-
497, 2015 WL 11109846, at *11 (E.D. Tex. June 26, 2015); Elat v. Ngoubene, 993 F. Supp. 2d 497, 514 (D. Md.
2014)
20
Lt. Hare’s testimony on the complex relationship between prostitutes and
pimps demonstrated that there could be a romantic aspect to the relationship, which
could look like a boyfriend-girlfriend relationship, if the pimp is still trying to lure
the prostitute into “the game.” In this case, it appears the State used Lt. Hare’s
testimony about the five phases of recruitment — the recruitment, seduction,
isolation, coercion and violence, and refraining stages — to mimic the ups and
downs of defendant’s and the victim’s relationship and to prove a coercive nature
of defendant’s actions toward the victim. The State presented evidence that
defendant attempted to isolate the victim during the trip to Texas with Star,
attempted to scare the victim by leaving her at the hotel but then coming back to
get her, and stealing money from her wallet. Without Lt. Hare’s testimony, the
jury could have inferred that defendant was only a controlling boyfriend. The jury
could have also interpreted defendant’s more tender text messages, when he said
he loved the victim and that she had hurt him, as messages between a couple
fighting. However, Lt. Hare’s expert testimony served to show that defendant’s
tenderness was a mere act to recruit, seduce, and control the victim for his own
financial benefit.
Furthermore, Lt. Hare’s testimony was used to explain Ms. Johnson’s
testimony and evaluate her credibility, showing that as a victim of trafficking she
would minimize defendant’s illegal behavior and call him her boyfriend instead of
her pimp. Also, Lt. Hare sought to explain that defendant was not just flirting with
Ms. King on the eve of the victim’s death but was seeking to recruit her as part of
his human trafficking enterprise.
Therefore, we do not find the trial court abused its discretion in allowing Lt.
Hare’s opinion testimony to explain the relationship between the victim and
defendant to assist the jury in understanding the evidence. The trial court could
21
find the probative value of Lt. Hare’s testimony, as it relates to providing context
for the victim’s and defendant’s relationship, outweighed the prejudice to
defendant, or the possibility of confusion of the jury.
Assignment of Error Number Three
In defendant’s third assignment of error, he argues that the trial court erred
in allowing the State to introduce evidence that defendant engaged in prostitution
and/or human or sex trafficking. Defendant alleges that by introducing the litany
of evidence that defendant was involved in the prostitution of the victim and Ms.
Johnson, the jury most likely concluded that defendant was a man of bad character
and thus must have kidnapped the victim. He further argues that the State failed to
specify the purpose for which it sought to admit the other acts but, rather,
insufficiently alleged that the acts were relevant for a “material purpose.” He
claims the evidence introduced was wholly unrelated to the charge of second
degree felony murder with an underlying felony of second degree kidnapping and
that the evidence was more prejudicial than probative.
During pre-trial proceedings, the State filed a Notice of Intent to Introduce
Evidence of Other Acts under seal, in accordance with State v. Prieur, 277 So.2d
126 (La. 1973).19 The State argued that the evidence of prostitution and pandering
19
The State set forth nine other acts to be admitted at trial. 1) In April of 2015, defendant was engaged in the
enticing, placing, persuading and/or encouraging of Ms. Johnson in the practice of prostitution and transported her to
various places in Texas and assisted her in engaging in prostitution. 2) Shortly after meeting the victim in New
Orleans, he recruited her to travel with him and Ms. Johnson to engage in prostitution in many cities in Texas, where
he managed and promoted the prostitution enterprise of the victim and Star and benefitted financially from doing so.
3) On May 23, 2015, the victim was in Addison, Texas when she contacted the police department after she and
defendant entered into a verbal argument, and he took $200.00 from the victim’s purse. When the police came to
assist the victim in retrieving her belongings from the room, the room was empty. 4) After the Texas incident, the
victim called Ms. Bernard crying and requesting assistance, so a family friend, Deshon Johnson, bought the victim a
bus ticket leaving from Dallas to Houston the next morning. The victim never got on the bus. 5) On May 24, Ms.
Bernard called the New Orleans Police Department to report the victim was missing after hearing from a friend that
the victim was being forced into prostitution in Texas. 6) To appease her family’s concerns, the victim posted a
video in Instagram telling her family that she was okay. 7) On May 30, 2015, Ms. Johnson abruptly left defendant
without telling him. After she left, defendant began to send her threatening text messages saying he would harm her.
8) On June 2, defendant transported the victim back to New Orleans to visit family and friends. The victim was
working at Stiletto’s and was brought to and from work by defendant, and family and friends noticed the victim’s
changed behavior and defendant imposing restrictions on her behavior. Also, witnesses told police that defendant
attempted to recruit another female to engage in the practice of prostitution. Family and friends were not aware of
any plan for the victim to return to Texas with defendant. 9) Early on June 10, 2015, defendant forced the victim
into his vehicle and began to transport her to Texas against her will. During the ride, the victim asked to be let out of
the vehicle, and defendant refused. The victim attempted to escape by jumping out of the moving vehicle, which
22
engaged in by defendant and the victim’s desire to return to her family after
altercations with defendant demonstrated that the victim did not want and had no
plans to return to Texas the morning of her death. The State sought to introduce
the evidence of the events leading up to the victim’s death and evidence of the
ongoing prostitution enterprise as acts integral to the murder. The State claimed
without this evidence of the relationship between victim and defendant, the jury
would be unable to determine that the victim was an unwilling occupant in
defendant’s vehicle.
Generally, evidence of other crimes or bad acts committed by a criminal
defendant is not admissible at trial. La. C.E. art. 404(B)(1); Prieur, 277 So.2d at
128. However, when evidence of other crimes or bad acts tends to prove a material
issue and has independent relevance other than to show that the defendant is of bad
character, it may be admitted by certain statutory and jurisprudential exceptions to
this rule. State v. Garcie, 17-609 (La. App. 5 Cir. 4/11/18), 242 So.3d 1279, 1284;
State v. Williams, 10-51 (La. App. 5 Cir. 7/27/10), 47 So.2d 467, 474, writ denied,
10-2083 (La. 2/18/11), 57 So.3d 330. Evidence of other crimes is admissible to
prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake or accident or when it relates to conduct that constitutes an integral part
of the act or transaction that is the subject of the present proceeding to such an
extent that the State could not accurately present its case without reference to the
prior bad acts. La. C.E. art. 404(B)(1).
The test of integral act evidence is whether the State in structuring its case to
avoid any mention of uncharged acts, would be deprived of narrative momentum
and cohesiveness, “with power not only to support conclusions but to sustain the
willingness of jurors to draw the inferences, whatever they may be, necessary to
resulted in her death, and defendant failed to stop the vehicle, render aid, or contact authorities and instead drove to
Texas.
23
reach an honest verdict.” State v. Colomb, 98-2813 (La. 10/1/99), 747 So.2d 1074,
1076) quoting Old Chief v. United States, 519 U.S. 172, 187, 117 S.Ct. 644, 653,
136 L.Ed.2d 574 (1997). A close connexity between the preceding acts and the
charged conduct is required to ensure the purpose served is to complete the story of
the crimes on trial by proving the immediate context of happenings in time and
place. See State v. Charles, (La. App. 5 Cir. 6/27/01), 790 So.2d 705, 708. The
State is required to make a showing of sufficient evidence to support the finding
that defendant committed the other acts. State v. Taylor, (La. 12/1/16), 217 So.3d
283, 291.
In order for other crimes evidence to be admitted under La. C.E. art.
404(B)(1), one of the factors enumerated in the article must be at issue, have some
independent relevance, or be an element of the crime charged. State v. Lawson,
08-123 (La. App. 5 Cir. 11/12/08), 1 So.3d 516, 525-26. Moreover, the probative
value of the extraneous evidence must outweigh the prejudicial effect. La. C.E. art.
403. The defendant bears the burden to show that he was prejudiced by the
admission of the other crimes evidence. State v. Miller, 10-718 (La. App. 5 Cir.
12/28/11), 83 So.3d 178, 187, writ denied, 12-0282 (La. 5/18/12), 89 So.3d 1191,
cert. denied, 568 U.S. 1157, 133 S.Ct. 1238, 185 L.Ed.2d 177 (2013). Absent an
abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant
to La. C.E. art 404(B)(1) will not be disturbed. State v. Maize, 16-575 (La. App. 5
Cir. 6/15/17), 223 So.3d 633, 649, writ denied, 17-1265 (La. 4/27/18), 241 So.3d
306.
The probative value of the evidence must outweigh its prejudicial effect of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or waste of time. State v. Galliano, 2002–2849 (La.
1/10/03), 839 So.2d 932, 933. As used in the balancing test, the introduction of
24
probative evidence of prior misconduct is prohibited only when it is unduly and
unfairly prejudicial. State v. Germain, 433 So.2d 110, 118 (La.1983). The term
“unfair prejudice,” 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. Rose, 2006–0402, p. 13 (La.2/22/07), 949 So.2d
1236, 1244, citing Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644,
650, 136 L.Ed.2d 574 (1997); State v. Henderson, 2012-2422 (La. 1/4/13), 107 So.
3d 566, 567–68.
The trial court did not abuse its discretion in finding that the defendant failed
to meet his burden of proving undue prejudice. Clearly, evidence of other crimes
or bad acts is prejudicial since all evidence that tends to make it more probable
than not that an individual committed a criminal offense is necessarily prejudicial.
State v. Williams, 02-645 (La. App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ
denied, 02-3182 (La. 4/25/03), 842 So.2d 398. The underlying policy is not to
prevent prejudice but to protect against unfair prejudice when the evidence is only
marginally relevant to the determination of guilt of the charged crime. Id. In the
Williams case, evidence of the defendant's involvement in gangs was introduced, as
well as testimony of a gang expert on gang culture and its signs and language.
This Court found although the fact that a defendant was a gang member could
create the image of a bad person for the jury it was relevant to establish
defendant’s motive to injure victims affiliated with a rival gang.
In the instant case, the State proceeded under the theory that the defendant
was engaged in the perpetration or attempted perpetration of the second degree
kidnapping of the victim at the time she died. The State offered evidence
regarding defendant’s prostitution of Ms. Johnson and the victim, which was
relevant to providing the context of the victim and defendant’s relationship in the
25
preceding month, in Texas, a place to which it could be inferred the defendant was
transporting the victim. The relevance of these integral acts outweighed the
prejudice of establishing the defendant as a pimp, and possibly creating the image
of a bad person.
In State v. Taylor, 01-1638 (La. 1/14/03), 838 So.2d 729, 740, cert. denied,
540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004), the trial court admitted
evidence of a defendant’s involvement in a seven-day crime spree through several
states that occurred after the date of the charged offense. The Louisiana Supreme
Court upheld the admission “under the rule of narrative completeness incorporated
in the res gestae doctrine” which allows the story to be told in its entirety, proving
its immediate context of happenings in time and place. Id. at 742. In State v.
Rhea, 03-1273 (La. App. 5 Cir. 2/23/04), 868 So.2d 863, 867, a defendant
prosecuted for attempted second degree murder argued that evidence of other
crimes, including kidnapping, should have been excluded as unduly prejudicial. In
affirming the trial court’s admission of the evidence, this Court noted that the
attempted second degree murder of the victim did not occur in a vacuum, but “the
events were so intertwined with the attempted murder that the State could not have
told the complete story to the jury without evidence of these events.” Id. at 868.
The trial court properly admitted evidence of defendant’s involvement in the
prostitution of both Ms. Johnson and the victim. It appears the admission of this
evidence was necessary for the State to logically present its case and to explain the
dynamic of the relationship between the victim and defendant, such as his
increasing control over the victim and how he used the victim as a source of profit.
To fulfill the element of kidnapping, the State had to prove that defendant either
forcibly seized or carried the victim from one place to another, enticed or
persuaded her from one place to another, or imprisoned or forcibly secreted her.
26
See La. R.S. 14:44.1(B). It appears that the integral act evidence presented
revealed the true nature of defendant’s relationship with the victim, one of a pimp
and a prostitute rather than a boyfriend and a girlfriend. This evidence was
substantially relevant to show why the victim felt compelled to jump out of the
vehicle to get away from defendant. As the State argued at the hearing, the
enterprise of prostitution “is going in the background of the entirety of the events
that transpired prior to the death” of the victim.
At the hearing, the defense attorney argued that the State should provide a
proper purpose for each of the nine acts sought to be introduced. It appears that the
State may have overreached in the amount of evidence it sought to introduce
relating to the defendant’s prostitution enterprise, and instead attempted to
introduce all acts relating to the victim’s lack of intent to return to Texas. To prove
the victim’s state of mind, the State sought to introduce evidence under Acts IV.,
V., and VI., which were acts of the victim, as well as acts of her family and
friends.20 While the admissibility of these acts by persons other than the defendant
under La. C.E. art. 404(b) may have been erroneous, any error was harmless as it
was otherwise admissible. These acts had independent relevance, and the verdict
was unattributable to the error of allowing evidence of the acts of the victim’s
family and friends as La. C.E.404(B) evidence. State v. Battie (La. App. 5 Cir.
5/19/99), 735 So.2d 844, 852.
Assignment of Error Number Four
In defendant’s fourth assignment of error, he challenges the trial court’s
denial of his motions for mistrial. Defendant alleges the trial court erred when it
denied his motion for a mistrial after the State failed to provide him with Ms.
20
This evidence later was testified to by Ms. Bernard and Ms. Deshon Johnson to show the control defendant had
over the victim.
27
Cooper’s statement that the victim’s bruises were caused by dancing on a pole. He
also alleges the denial of his motion for mistrial based on Ms. Walker’s violation
of the witness sequestration order.21
A mistrial is a drastic remedy and is warranted only when trial error results
in substantial prejudice to a defendant that deprives him of a reasonable
expectation of a fair trial. Whether a mistrial should be granted is within the sound
discretion of the trial court, and the denial of a motion for mistrial will not be
disturbed absent an abuse of discretion. State v. Adams, 13-992 (La. App. 5 Cir.
5/21/14), 142 So.3d 265, 272, writ denied, 14-1245 (La. 2/6/15), 158 So.3d 813.
Mistrial for Failing to Disclose Evidence of Bruising
As to the State’s failure to disclose Ms. Cooper’s statement, defendant more
specifically alleges that this was favorable and material evidence which required
disclosure under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963). In response to the State’s question of what happened on Saturday night
after the victim and defendant talked, Ms. Cooper testified that she noticed bruises
on the victim’s arms and between her legs and that the victim indicated that the
bruises were from “the pole.” Ms. Cooper stated that she had never seen bruises
on the victim before, despite her working as a dancer. Following Ms. Cooper’s
testimony at trial, defense counsel stated that the State failed to disclose any
information about the cause of the bruising which should have been provided
before trial. Defendant then moved for a mistrial for the State’s failure to disclose
the information during discovery. The trial court denied the request for a mistrial.
The defendant’s motion for mistrial was untimely, and this issue is not
preserved since trial counsel only moved for a mistrial after the conclusion of Ms.
21
In his motion for new trial, defendant argued the trial court erred in failing to grant his motions for mistrial. On
appeal, defendant does not appear to challenge the trial court’s ruling denying his motion for new trial, only the
denial of the motions for mistrial.
28
Cooper’s testimony. In State v. Broaden, 99-2124 (La. 2/21/01), 780 So.2d 349,
361, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001), the
Louisiana Supreme Court found the defendant’s motion for mistrial was untimely
because “[t]here was no objection to the initial question or follow-up queries. The
State completed its re-direct, [the witness] was told she could step down, and jurors
were removed for the lunch break. It was only then that the defense moved for a
mistrial.” The record reflects that in the present case, defense counsel did not
object to the witness’s testimony regarding the bruising. Counsel did cross-
examine her on her prior statements to law enforcement that she had no knowledge
of defendant being violent toward the victim. Defendant did not move for a
mistrial until after the State’s redirect of the witness, after the jury was excused for
lunch, and after the witness was advised that she was released but would remain
under subpoena. Therefore, we find this motion was untimely.
Furthermore, we do not find that Ms. Cooper’s testimony regarding the
victim’s explanation for the source of her bruises is the type of evidence necessary
for disclosure under Brady. There are three components of a Brady violation: “The
evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999);
State v. Louviere, 00-2085 (La. 9/4/02), 833 So.2d 885, 896, cert. denied, 540 U.S.
828, 124 S.Ct. 56, 157 L.Ed.2d 52 (2003). Exculpatory evidence by definition is
that “which tends to justify, excuse or clear the defendant from alleged fault or
guilt.” State v. Lande, 06-24 (La. App. 5 Cir. 6/28/06), 934 So.2d 280, 296, writ
denied, 06-1894 (La.4/20/07), 954 So.2d 154, (citing Black’s Law Dictionary,
Sixth Edition). Ms. Cooper’s testimony in regard to the bruising she observed and
the victim’s disclosure of the source of bruising neither implicated nor cleared the
29
defendant. The State did not solicit information of bruising, nor were the bruises
attributed to defendant. The State’s case did not focus on physical violence by
defendant towards the victim to prove the second degree kidnapping or second
degree murder. Thus, the State was not required to disclose evidence that did not
exculpate the defendant from the charged offenses.
Mistrial for Violation of Sequestration Order
Defendant’s second argument is that his motion for mistrial should have
been granted after Ms. Walker admitted she had watched four to six minutes of
news coverage about the trial that morning. The defendant, however, did not move
for a mistrial based on Ms. Walker’s alleged violation of the witness sequestration
order but rather asked for the trial court to bar her testimony.22 Where a defendant
does not request a mistrial and no grounds exist for the trial court to order a
mistrial sua sponte, the trial court does not err in failing to grant one. State v. Day,
14-708 (La. App. 3 Cir. 12/23/14), 158 So.3d 120, 128 (citing State v. Passman,
345 So.2d 874 (La. 1977)). A violation of the sequestration order does not warrant
a mistrial absent an indication that the infraction materially prejudiced the
defendant. State v. Humbles, 14-643 (La. App. 5 Cir. 3/11/15), 169 So.3d 547,
555, writ denied, 15-0725 (La. 3/24/16), 190 So.3d 1195.
If the defendant is attempting to appeal the denial of the trial judge’s motion
to exclude Ms. Walker’s testimony, the trial judge’s determinations of
disqualification for violations of sequestration rules will not be disturbed on appeal
absent a clear showing of abuse of discretion. State v. Draughn, 05-1825 (La.
1/17/07), 950 So.2d 583, 621, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169
L.Ed.2d 377 (2007) (citing State v. Stewart, 387 So.2d 1103, 1107 (La. 1980)). La.
22
The transcript reflects that after the defendant’s request that the court bar Ms. Walker’s testimony, the trial court
denied “the motion for a mistrial,” and noted defense’s objection to the ruling. The minute entry also incorrectly
reflects that a motion for mistrial was made and ruled upon. (R., p. 22).
30
C.Cr.P. art. 764 provides that the exclusion of witnesses is governed by La. C.E.
art. 615, which allows a court to impose appropriate sanctions for violations of its
exclusion order including contempt, appropriate instructions to the jury, or when
such sanctions are insufficient, disqualification of the witness. “The purpose of the
sequestration article is to prevent witnesses from being influenced by the testimony
of earlier witnesses, and to strengthen the role of cross-examination in developing
the facts.” State v. Breaux, 12-0555 (La. App. 4 Cir. 2/27/13), 110 So.3d 281, 284,
writ denied, 13-0699 (La. 10/25/13), 124 So.3d 1093.
The record reflects that after the parties’ opening statements, the trial court
stated “[t]here will be a sequestration order in effect.” It does not reflect that any
of the witnesses were told to not watch the news. Before her testimony, Ms.
Walker admitted to watching five or six minutes of news coverage that morning
and recalled that the news report stated that defendant had hit his girlfriend with
his car and then kept going. It appears based on the sequestration article that this
was not a true violation of the sequestration order as she did not speak to anyone
and was not exposed to the proceedings. It does not appear that the purpose of the
sequestration article would be served by excluding Ms. Walker’s testimony as her
testimony was not influenced by the news report nor was defense counsel’s ability
to cross-examine her undermined by her exposure. The allegations Ms. Walker
heard on the news were dissimilar to both what Ms. Walker previously reported to
law enforcement in this case and her testimony at trial. Therefore, we find the trial
court did not abuse its discretion in allowing Ms. Walker to testify. Furthermore,
as there was no indication that the infraction materially prejudiced the defendant,
there was no error in the denial of a mistrial.
Assignment of Error Number Five
31
In defendant’s final assignment of error, he argues that the trial court erred
in denying his motion for new trial on the basis of newly discovered evidence. He
asserts that the State failed to disclose to the defense that there were two active
arrest warrants out for Ms. Walker at the time she testified at trial. He also asserts
that the knowledge of the arrest warrants would have brought Ms. Walker’s
credibility into question and would have produced a different verdict since she
provided the only evidence to prove defendant committed second degree
kidnapping.
La. C.Cr.P. art. 851(B)(3) directs a new trial upon the production of newly
discovered evidence, provided that four requisites must be met: (1) the evidence
must have been discovered since the trial; (2) the failure to learn of the evidence at
the time of trial was not due to defendant’s lack of diligence; (3) the evidence must
be material to the issues at trial; and (4) the evidence must be of such a nature that
it would probably produce an acquittal in the event of a retrial. State v. Nelson,
09-807 (La. App. 5 Cir. 3/23/10), 39 So.3d 658, 665. Newly discovered evidence
affecting only a witness’ credibility as it is “merely cumulative or impeaching” is
not an adequate basis for the grant of a new trial. State v. Lyles, 03-141 (La. App.
5 Cir. 9/16/03), 858 So.2d 35, 52 (quoting Mesarosh v. United States, 352 U.S. 1,
9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1 (1956)). The trial court’s ruling as to whether these
requisites are met is entitled to great weight, and a denial of a motion for new trial
will not be disturbed on appeal absent a clear abuse of that discretion. State v.
McClain, 04-98 (La. App. 5 Cir. 6/29/04), 877 So.2d 1135, 1142, writ denied, 04-
1929 (La. 12/10/04), 888 So.2d 835.
Defendant’s assertion requires a Brady inquiry as prosecutors have a duty to
disclose evidence favorable to the defense, including evidence that impeaches the
testimony of a witness whose credibility may determine guilt or innocence. Brady
32
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194; Giglio v. U.S., 405 U.S. 150, 92 S.Ct.
763, 31 L.Ed.2d 104 (1972). This Court has held that pending criminal charges
against a witness is a valid area of cross-examination to determine whether the
prosecution may have leverage over that witness. State v. Williams, 18-112 (La.
App. 5 Cir. 11/7/18), 259 So.3d 563, 575-76, writ denied, 18-2038 (La. 4/22/19),
268 So.3d 295; State v. Wiley, 10-811 (La. App. 5 Cir. 4/26/11), 68 So.3d 583,
592, writ denied, 11-1263 (La. 3/30/12), 85 So.3d 106.
A prosecutor does not breach any constitutional duty to disclose favorable
evidence unless the “omission is of sufficient significance to result in the denial of
the defendant's right to a fair trial.” United States v. Agurs, 427 U.S. 97, 108, 96
S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). For purposes of Brady's due process
rule, a reviewing court determining materiality must ascertain not whether the
defendant would have received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a trial resulting in a verdict
worthy of confidence. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566,
131 L.Ed.2d 490 (1995).
The Supreme Court found that when the State failed to disclose that the
possibility of a reward was made to its witnesses, there was “a significant
likelihood that the prosecutor’s response to respondent’s discovery motion
misleadingly induced” defense counsel to believe its witnesses could not be
impeached on the basis of bias or interest. United States v. Bagley, 473 U.S. 667,
683, 105 S.Ct. 3375, 3380, 49 L.Ed.2d 342 (1976). The Government failed to
assist the defense by disclosing information that might have been helpful in
conducting the cross-examination, however, reversal is required only if the
evidence withheld is “material” as defined as a “a reasonable probability that, had
33
the evidence been disclosed to the defense, the result of the proceeding would have
been different.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3375, 3380.
In the case at bar, the State did not “misleadingly induce” defense counsel to
believe Ms. Walker could not be impeached as the disclosed criminal history noted
outstanding warrants for Ms. Walker, as well as several criminal convictions.23
Furthermore, at the hearing on the motion for new trial, defendant was unable to
convince the trial court that the witness would have been impeached on the basis of
bias or interest arising from the hope of leniency from the State on the charges.
Ms. Walker’s pending charges were in Texas, outside of the jurisdiction of the
district attorneys, who were unaware of the charges; Ms. Walker testified that she
was unaware of the warrants at the time of her testimony; and no conversations had
taken place between the district attorney’s office and the witness to lead her to
believe that she would receive help with any sentence.
Most importantly, we do not find that disclosure of these particular
outstanding warrants would have led to a different result. Defendant argues that
Ms. Walker’s warrants for crimes involving “dishonest and deceitful behavior”
would have been compelling evidence for the jury to consider in assessing her
credibility. However, the Louisiana Code of Evidence specifically provides that
evidence of an arrest, arrest warrant, indictment, prosecution, or acquittal may not
be used to impeach the witness’ general credibility. La. C.E. art. 609.1.24
Furthermore, defendant was in possession of a criminal history for the witness
which contained an outstanding warrant and numerous felony convictions for
“dishonest and deceitful” crimes, and yet failed to attack Ms. Walker’s credibility
23
Defendant’s trial defense counsel, Nandi Campell, testified that she had received pretrial discovery from the
State, including rap sheets on initial discovery and again a month prior to trial. She testified that they did not reveal
these outstanding warrants. She did acknowledge seeing an entry regarding an outstanding warrant from August 4,
2015 referencing a probation violation.
24
As discussed previously, pending criminal charges are relevant not to the witness’s general credibility but to her
bias or interest as relating to the hope of receiving leniency from the State in pending criminal charges. State v.
Wiley, 10-811 (La. App. 5 Cir. 4/26/11), 68 So.3d 583, 592, writ denied, 11-1263 (La. 3/30/12), 85 So.3d 106.
34
and veracity. Upon consideration of these facts, we find that defendant cannot
establish the prejudice necessary to satisfy Brady’s “materiality” inquiry and La.
C.Cr.P. art. 851(B)(3)’s requirement that the evidence must be of such a nature that
it would probably produce an acquittal in the event of a retrial. Therefore, we find
the trial court did not abuse its discretion in finding no merit to defendant’s
argument.
Patent Error Discussion
Pursuant to our usual procedure, we reviewed the record for errors patent.
See La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v.
Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). We find that the defendant was not
advised of the time period for seeking post-conviction relief after imposition of his
sentence as required by La. C.Cr.P. art. 930.8. It is well settled that if a trial court
fails to advise pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct
this error by informing the defendant of the applicable prescriptive period for post-
conviction relief. State v. Jacobs, 07–887 (La. App. 5 Cir. 5/24/11), 67 So.3d 535,
writ denied, 11–1753 (La.2/10/12), 80 So.3d 468.
Therefore, by way of this opinion, defendant is informed that no application
for post-conviction relief shall be considered if it is filed more than two years after
the judgment of conviction and sentence has become final under the provisions of
La. C.Cr.P. arts. 914 or 922.
CONCLUSION
The State presented sufficient evidence to convict defendant of second
degree murder. The trial court did not err in admitting testimony from an expert in
the field of human trafficking and evidence of other acts of the defendant’s
involvement in human trafficking under Louisiana Code of Evidence art. 404(b).
The trial court’s denial of defendant’s motions for mistrial and motion for a new
35
trial based on Brady and sequestration violations were not clearly erroneous.
Therefore, for the reasons stated above, defendant’s conviction is affirmed.
CONVICTION AND SENTENCE AFFIRMED
36
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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