The State of Louisiana Versus Steven R Tate AKA "Bubba" ( 2023 )

THE STATE OF LOUISIANA NO. 22-KA-570
VERSUS FIFTH CIRCUIT
STEVEN R TATE AKA "BUBBA" COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-7077, DIVISION "D"
HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING
June 21, 2023
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and John J. Molaison, Jr.
CONVICTION AND SENTENCE AFFIRMED;
REMANDED WITH INSTRUCTIONS
FHW
SMC
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Monique D. Nolan
Joshua K. Vanderhooft
Brittany Beckner
COUNSEL FOR DEFENDANT/APPELLANT,
STEVEN R. TATE, JR.
Prentice L. White
WICKER, J.
Defendant Steven R. Tate, Jr. a/k/a “Bubba,” (“Mr. Tate”), seeks appellate
review of his conviction and sentence, claiming the evidence is insufficient to
support his conviction of second degree murder and that the trial court erred in
admitting evidence of other crimes. On appellate review, we find the evidence is
sufficient to support Mr. Tate’s conviction for second degree murder and find no
error in the trial court’s admission of other crimes evidence. Nevertheless, we find
the record reveals errors patent, one of which requires remand to the trial court to
correct an error appearing in the sentencing minute entry and the uniform
commitment order (“UCO”). Therefore, for the following reasons, we affirm Mr.
Tate’s conviction and sentence and remand the matter for the limited purpose of
correcting the sentencing minute entry and commitment order as set forth in this
opinion.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
On March 30, 2017, a grand jury returned an indictment charging Mr. Tate
with the second degree murder of Ethan Allen, in violation of La. R.S. 14:30.1, and
conspiracy to commit armed robbery with L.L. a/k/a “Chico,” and “A.L.,” and other
persons, in violation of La. R.S. 14:26:64. Before trial, the State filed under seal a
notice of intent to use other crimes evidence pursuant to La. C.E. 404(B), which the
trial court granted following a hearing on the notice in February 2020. A jury trial
in this matter commenced on August 8, 2022. The following facts were elicited at
trial:
On November 29, 2016, Mr. Tate and his childhood friend L.L. were together
at L.L.’s grandmother’s house playing video games. L.L.’s grandmother and his two
teenage-sisters, A.L. and T.L., were also present in the home that day. Mr. Tate
considered L.L. and his younger sisters like family. While playing video games, a
decision was made to purchase marijuana from Ethan Allen (“Mr. Allen”), a local
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drug dealer and the victim in this case. Text messages presented at trial
demonstrated that Mr. Allen and A.L. had a dealer and customer relationship based
on the purchase of drugs. A text message sent from A.L.’s phone was sent requesting
a “$10 bag” from Mr. Allen. Mr. Allen was given an address to meet, which was
located across the street from L.L.’s grandmother’s house. Mr. Tate, testifying in
his own defense, admitted that he also texted Mr. Allen the same meeting address.
When Mr. Allen arrived at the agreed upon location, Mr. Tate and L.L.
approached Mr. Allen’s vehicle. Mr. Tate testified that he did not contact Mr. Allen
about the purchase of marijuana. Mr. Tate explained that it was not his intent to
purchase drugs from Mr. Allen, but instead to talk to Mr. Allen about the
“relationship” Mr. Allen had with L.L.’s younger sister, A.L. Mr. Tate testified that
he did not know Mr. Allen but knew that he was an adult and that Mr. Allen was
“messing with [A.L.],” whom Mr. Tate stated was 14 or 15 at the time. Mr. Tate
testified that he was told that Mr. Allen was coming over to bring A.L. money. Mr.
Tate stated that although A.L. was secretive about the transaction, T.L. told him
about it. Mr. Tate testified that he was curious to meet Mr. Allen and that he “wanted
to him know how old [A.L.] was and see who he was.” Mr. Tate told T.L. to let Mr.
Allen know that he (Mr. Tate) would come out to Mr. Allen’s car to get the money
for A.L. Mr. Allen then called Mr. Tate directly. Mr. Tate explained that he told
Mr. Allen to go to the address across the street from A.L.’s house because it was the
address that T.L. had previously given to Mr. Allen.
Mr. Tate testified that when Mr. Allen arrived, he (Mr. Tate) was already
outside with L.L., waiting on someone to pick him up. Mr. Tate admitted that at that
time, he was armed with a .45 caliber Springfield Armory gun in his waistband and
that L.L. also had a gun. Mr. Tate explained that when Mr. Allen pulled up to the
curb, he walked to Mr. Allen’s car, opened the passenger door, and stood in the
doorway.
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According to Mr. Tate, Mr. Allen tried to hand him money, but he told him,
“Just hold it. I just want to talk to you right quick.” Mr. Tate asked if he was A.L.’s
boyfriend, and Mr. Allen stated that he was not. Mr. Tate questioned why Mr. Allen
would be bringing her money, and Mr. Allen asked why he was interested in
knowing. Mr. Tate told the jury that he explained to Mr. Allen that he was “like a
big brother to [A.L.] and she’s only 15,” and that he hoped they were not having sex.
Mr. Tate indicated that the previously calm interaction grew heated.
Mr. Tate testified that he then told Mr. Allen, “[D]on’t put up on her no more
[sic] and she don’t need no [sic] money from you.” According to Mr. Tate, Mr.
Allen replied, “What, you gonna [sic] stop me” and pulled out a gun and placed it in
his lap, facing towards Mr. Tate. Mr. Tate told the jury that he then began backing
up and reaching for his own gun. Mr. Tate testified that Mr. Allen fired two shots,
and Mr. Tate realized that he had been shot and began returning fire. Mr. Tate
testified that he fired two shots and then he was shot again. Mr. Tate testified that
he was shot six times and that it felt like Mr. Allen was trying to kill him. Mr. Tate
stated that he then ran under the carport and threw his gun in the grass. He then told
L.L. to call the police and an ambulance before passing out.
Mr. Tate denied setting Mr. Allen up for a robbery and stated there was no
drug transaction. Mr. Tate admitted that he shot and killed Mr. Allen, but said he
did so in self-defense.
Kremly Marrero testified at trial that on November 29, 2016, he lived at 803
Gulf Drive. At around 6:00 or 6:30 p.m., he and his wife heard gunshots. He
described it as two shots followed by a slight pause and then an array of shots. Mr.
Marrero testified that he walked outside at the same time as his neighbor, who lived
at 801 Gulf Drive. Mr. Marrero testified that he saw a vehicle “coasting” down
towards the end of the street. Mr. Marrero stated that he saw Mr. Tate under the
carport where L.L. and his grandmother lived. L.L. was screaming hysterically, and
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Mr. Marrero went to help Mr. Tate, whom Mr. Marrero described as “bleeding out
everywhere.” Mr. Marrero assisted Mr. Tate until the police and EMS arrived.
Debra Lowry testified that she is the grandmother of L.L., A.L., and T.L. She
described Mr. Tate as her grandson L.L.’s friend. She said that Mr. Tate was like a
brother to L.L. and his two sisters. On November 29, 2016, Ms. Lowry was inside
her house at 812 Gulf Drive with A.L. and T.L. when a shooting occurred. Mrs.
Lowry testified that she heard what she believed to be firecrackers. Then L.L. ran
inside the house, and Mrs. Lowry went outside where she found Mr. Tate, lying on
her front porch bleeding. Mrs. Lowry testified that she “tried to call 911, but [she]
was really nervous.” She stated that she believed she called 911 and when she
realized that the police were on their way, she told her granddaughters to dispose of
their marijuana. Thereafter, Mrs. Lowry accompanied L.L. to the police bureau
where he provided a statement. While at the police bureau, L.L. used his
grandmother’s phone to text his sister T.L., and as a result, Mrs. Lowry’s phone was
taken. Mrs. Lowry confirmed that her grandson L.L. was arrested for the shooting
and was ultimately convicted.
The State also called as witnesses several investigating officers with the
Gretna Police Department involved in this case as well as several expert witnesses.
Officer Corey Boudreaux testified that he was dispatched to the scene. Upon
arrival, he came upon a man in the street waving his arms, who told him that a man,
later identified as Mr. Allen, had been shot and was located in a vehicle. The officer
stopped and observed Mr. Allen, who had a bundle of money and a cell phone in his
lap and who was gasping for breath. Officer Boudreaux removed Mr. Allen from
the vehicle and began performing CPR until EMS arrived. Mr. Allen, however, died
on the scene. Testimony elicited at trial established that Mr. Allen had been shot in
his side, and that the shot had gone through multiple organs.
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Officer Boudreaux testified, upon inspecting the vehicle, they located a
projectile in the driver’s seat, three casings in the rear of the vehicle, and one casing
outside the vehicle. A .40 caliber Smith and Wesson firearm was located in the
vehicle and seized. Officer Boudreaux saw no marijuana, other drugs, or any drug
paraphernalia in the vehicle. Mr. Allen’s vehicle was seized pursuant to a search
warrant and seven cartridge casings, two projectiles, and .40 caliber Smith and
Wesson firearm were recovered from inside the vehicle.
Officer Kevin Fernandez, a crime scene technician with the Gretna Police
Department, testified that Mr. Allen’s vehicle was processed and described the
projectile damage inside the car. He testified that the vehicle had a hole from a
projectile in the front passenger door as well as holes from projectiles on the roof of
the vehicle. Two bullet holes were found in the rain guard, which the officer
explained is the plastic shield that goes over the car window. Officer Fernandez
stated there was also damage to the interior car door from another projectile.
Officer Damond Bartlett responded to the scene at 812 Gulf Drive. Upon his
arrival, he observed several people in front of the residence screaming that someone
had been shot. He was directed to the carport, where he observed Mr. Tate lying on
the ground suffering from multiple gunshot wounds to the torso. He located shell
casing projectiles in front of the residence and observed shattered glass on the street.
EMS arrived, and Mr. Tate was transported to the hospital. Officer Bartlett testified
that he did not find marijuana or drug paraphernalia while canvasing the scene.
Officer Fernandez also testified that he photographed the scene at 812 Gulf
Drive. At trial, he identified several photographs of the scene, including pictures of
the home: the carport and the rear exterior of the residence, as well as the interior of
the home. He testified that a loaded 9 millimeter caliber Sig Sauer pistol was
recovered from the top of a shed. A .45 caliber Springfield Armory pistol was
recovered in the backyard. Both firearms were seized.
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Detective Ralph Dunn testified that he collected video surveillance from a
residence in the area of the 800 block of Gulf Drive and from a building where Mr.
Allen’s vehicle had come to a stop. Detective Dunn testified that the video depicted
Mr. Allen’s vehicle going off the road.
A search warrant for Mr. Allen’s vehicle was obtained and an iPhone was
seized from the vehicle. Officer Ashton Gibbs testified that the data retrieved from
the iPhone evidenced a series of text messages and phone calls to and from two
particular numbers directing Mr. Allen to Gulf Drive. One of those numbers was
associated with Mr. Tate, and the other number was associated with A.L. Officer
Gibbs testified that the nature of the text messages indicated that a drug deal was
being set up.
Lieutenant Brandon Leblanc, formerly with the Gretna Police Department,
testified that he was involved in the investigation of the November 29, 2016
homicide, during which he reviewed phone records. On November 29, 2016,
between 5:30 p.m. and 5:58 p.m., four calls were placed between Mr. Allen and Mr.
Tate. Lieutenant Leblanc also testified that L.L. and A.L. were involved in getting
Mr. Allen to the scene that evening. Lieutenant Leblanc stated that there were text
messages pertaining to L.L. robbing Mr. Allen; however, there was nothing from
Mr. Tate’s phone related to robbing Mr. Allen. Lieutenant Leblanc further testified
that Mr. Allen, who was 22, and A.L., who was 15, had an ongoing relationship
which involved A.L.’s purchasing of marijuana from Mr. Allen.
Lieutenant Solomon Burke, an expert in mobile device forensics, performed
data extractions on the mobile devices connected to the investigation. Lieutenant
Burke indicated that no texts between A.L. and Mr. Allen contained the word “sex”
and that only two texts contained the word “baby.” Lieutenant Burke’s testimony
corroborated Lieutenant Leblanc’s testimony regarding the exchange of phone calls
between Mr. Allen’s phone and Mr. Tate’s phone, indicating that there were two
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calls each way and a text to Mr. Allen’s phone containing the address 805 Gulf
Drive. At 5:44 p.m. on the day in question, Mr. Allen received a phone call. He
then made a call at 5:46 p.m., and received another call at 5:58 p.m. There was an
outgoing call at 6:07 p.m. to Mr. Tate that lasted four seconds. Mr. Allen’s phone
made a 911 call at 6:09 p.m.
Dr. Dana Troxclair, a forensic pathologist, with the Jefferson Parish Coroner’s
Office, conducted an autopsy of Mr. Allen. She testified that she found a gunshot
wound to the back of Mr. Allen’s armpit and an exit wound to his left upper back.
Dr. Troxclair testified that the entry wound was consistent with Mr. Allen’s arm not
being fully stretched out. Dr. Troxclair testified that Mr. Allen bled out as a result
of the gunshot wound.
Linda Tran, an expert in firearms and tool mark examination, issued a
scientific analysis report in this case. She testified that she examined a Springfield
Armory pistol and determined that two .45 caliber cartridges had been fired from
that gun. Additionally, eight cartridge casings and a copper jacketed projectile were
determined to have been fired from a .40 caliber Smith and Wesson pistol.
Dr. Tim Scanlan, a crime scene reconstructionist, testified that three .45
caliber fired cartridge casings were recovered, which matched a .45 caliber
Springfield weapon. Dr. Scanlan testified that he was present when Mr. Allen’s
vehicle was processed and analyzed pursuant to a search warrant. He stated that two
projectiles and seven casings were recovered from the interior of Mr. Allen’s
vehicle, and one casing was recovered outside the vehicle under Mr. Allen’s body.
Dr. Scanlan testified that on inspection, Mr. Allen’s vehicle had five bullet holes and
one bullet strike mark. He explained that based on the holes and markings, he was
able to determine that one of the bullet holes that went through the car door
evidenced that the door was open at the time the shot was fired. Additionally, Dr.
Scanlan testified that he determined that two bullet holes found in the ceiling showed
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metal pointing in the direction of travel, “buckling outward” and therefore was
evidence that the shots originated from inside the car. He further stated that the angle
of fire was going upward from the passenger side to the driver’s side of the vehicle.
From this information, Dr. Scanlan testified that he concluded that based on the
trajectory of the shots, they originated from the front driver’s seat area. He explained
that “the angle of fire would be upward straight through the roof.” Additionally, Dr.
Scanlan testified that two other shots originated from inside the vehicle based on the
bullet holes. Dr. Scanlan also explained that a bullet strike showed that there was
another bullet fired from inside the vehicle “facing back toward that…front driver’s
seat and striking” before “falling down and coming to rest.” Moreover, Dr. Scanlan
testified that a projectile that came to rest in the front passenger-side door had been
fired from the .40 caliber Smith and Wesson firearm recovered from the rear
passenger floorboard of the vehicle.
Dr. Scanlan testified that the ballistic evidence was consistent with an
individual standing outside Mr. Allen’s vehicle and firing into the open door. He
described the evidence as consistent with “focused fire” and showed a stationary
shooter. By comparison, Dr. Scanlan testified that the weapon fired by the driver of
the vehicle was “sporadic unfocused fire” as evidenced by the strike mark, the
broken window, bullet holes in the rain guard, and bullet holes in the ceiling. He
agreed that the evidence was consistent with the shooter of the .45 caliber Springfield
Armory shooting two focused shots into the vehicle, and then Mr. Allen returning
fire in a “sporadic fashion.” He further indicated that it “makes sense” for a wounded
Mr. Allen to drop the .40 caliber Smith and Wesson on the rear floorboard. He
testified that the trajectory put the “shooter [outside the vehicle],” close to the vehicle
or a couple feet away.
The State also presented the following other crimes evidence at trial. In April
2015, Detective Jean Lincoln and Sergeant Justin Remes with the Jefferson Parish
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Sheriff’s Office were involved in an investigation regarding the shooting of Rogelio
Polledo at the Belle Meade apartment complex. Both indicated that it was an
attempted armed robbery.
Sergeant Remes explained that the victim sustained a gunshot wound to the
leg while inside his vehicle. The victim was transported to the hospital prior to
Detective Lincoln’s arrival. Upon Detective Lincoln’s arrival on the scene, he
observed a bloody passenger seat with three bullet holes in it. Two bullet casings
were found inside the vehicle, and one was found outside the vehicle. Marijuana
with blood on it was also located inside the vehicle.
The victim identified the suspect from a photographic lineup. An arrest
warrant for Mr. Tate for attempted armed robbery and shooting was obtained, and
Mr. Tate was subsequently arrested. While initially the victim had been cooperative
with the investigation, after his cell phone was held for processing, the victim
became uncooperative. Detective Lincoln agreed that it is very common for “victims
of drug rips” to be uncooperative. The case surrounding the April 2015 incident was
ultimately dismissed due to the victim’s refusal to cooperate in the prosecution of
the matter. At trial, Mr. Tate acknowledged that he had been arrested and charged
with attempted robbery in 2015 and that the case had been dismissed. Mr. Tate
denied knowing anyone named “Rogelio or Roger Polledo” or being involved in an
attempted robbery involving a shooting in Belle Meade in 2015. Mr. Tate further
testified that he was prepared to go to trial in that case and prove his innocence.
At the conclusion of trial on August 10, 2022, the twelve-person jury
unanimously found Mr. Tate guilty of second degree murder and not guilty of
conspiracy to commit armed robbery. On August 23, 2022, Mr. Tate filed a motion
for new trial and a motion for post-verdict judgment of acquittal. The trial court
denied the motions following a hearing on August 29, 2022. The trial court then
sentenced Mr. Tate to life imprisonment at hard labor without the benefit of parole,
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probation, or suspension of sentence. On September 2, 2022, Mr. Tate filed a motion
for appeal, which the trial court granted on September 9, 2022. Mr. Tate files this
timely appeal, challenging the sufficiency of the evidence and the admission of other
crimes evidence.
DISCUSSION
In his first assignment of error, Mr. Tate argues that the State failed to present
sufficient evidence to prove beyond a reasonable doubt that the killing of Mr. Allen
was not in self-defense. In reviewing the sufficiency of the evidence, an appellate
court must determine 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. Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Lane, 20-181 (La. App. 5
Cir. 1/27/21), 310 So.3d 794, 804. The appellate court must defer to the actual trier
of fact’s rational credibility calls, evidence weighing, and inference drawing. State
v. Clifton, 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 702. Under the Jackson
standard, a review of the record for sufficiency of the evidence does not require this
Court to determine whether the evidence at the trial established guilt beyond a
reasonable doubt but whether, upon review of the whole record, any rational trier of
fact would have found guilt beyond a reasonable doubt. State v. McKinney, 20-19
(La. App. 5 Cir. 11/4/20), 304 So.3d 1097, 1103. Additionally, the resolution of
conflicting testimony rests solely with the trier of fact, who may accept or reject, in
whole or in part, the testimony of any witness. State v. Burnham, 16-468 (La. App.
5 Cir. 2/8/17), 213 So.3d 470, 474, writ denied, 17-664 (La. 4/6/18), 240 So.3d 184.
Thus, in the absence of internal contradiction or irreconcilable conflicts with
physical evidence, the testimony of one witness, if believed by the trier of fact, is
sufficient to support a conviction. McKinney, 304 So.3d at 1103.
Furthermore, evidence may be either direct or circumstantial. Circumstantial
22-KA-570 10
evidence consists of proof of collateral facts and circumstances from which the
existence of the main fact can be inferred according to reason and common
experience. State v. Gatson, 21-156 (La. App. 5 Cir. 12/29/21), 334 So.3d 1021,
1034. When circumstantial evidence is used to prove the commission of an offense,
La. R.S. 15:438 provides that assuming every fact to be proved that the evidence
tends to prove, “in order to convict, it must exclude every reasonable hypothesis of
innocence.” State v. Becnel, 17-591 (La. App. 5 Cir. 6/27/18), 250 So.3d 1207, 1225
(quoting State v. Wooten, 99-181 (La. App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ
denied, 99-2057 (La. 1/14/00), 753 So.2d 208). This is not a separate test from the
Jackson standard but rather provides a helpful basis for determining the existence of
reasonable doubt. Id. All evidence, both direct and circumstantial, must be
sufficient to support the conclusion that the defendant is guilty beyond a reasonable
doubt. Id. When addressing the sufficiency of the evidence, consideration must be
given to the entirety of the evidence, including inadmissible evidence which was
erroneously admitted, to determine whether the evidence is sufficient to support the
conviction.1 See State v. Hearold, 603 So.2d 731, 734 (La. 1992). See also State v.
Griffin, 14-251 (La. App. 5 Cir. 3/11/15), 169 So.3d 473, 483.
In this case, Mr. Tate was convicted of the second degree murder of Mr. Allen,
in violation of La. R.S. 14:30, which defines the killing of a human being:
(A)( 1) When the offender has a specific intent to kill or inflict
great bodily harm; or
(2) When the offender is engaged in the perpetration or
attempted perpetration of an armed robbery, even though he has
no intent to kill or to inflict great bodily harm.
Mr. Tate does not challenge the statutory elements of the charged crime or his
1
Mr. Tate also assigns as error the trial court’s admission of other crimes evidence. When issues are raised
on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing
court first considers the sufficiency of the evidence. Hearold, supra.
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identification as the perpetrator.2 Mr. Tate admits that he shot and killed Mr. Allen;
however, he insists that he acted in self-defense. When a defendant in a homicide
prosecution claims self-defense, the burden is on the State to prove beyond a
reasonable doubt that the defendant did not act in self-defense. State v. Batiste, 16-
321 (La. App. 5 Cir. 12/14/16), 208 So.3d 1028, 1033, writ denied, 17-300 (La.
11/17/17), 229 So.3d 929. A homicide is justifiable “[w]hen committed in self-
defense by one who reasonably believes that he is in imminent danger of losing his
life or receiving great bodily harm and that the killing is necessary to save himself
from that danger.” La. R.S. 14:20(A)(1). The fact that an offender’s conduct is
justifiable, although otherwise criminal, constitutes a defense to prosecution for any
crime based on that conduct. La. R.S. 14:18; State v. Sparkman, 13-640 (La. App.
5 Cir. 2/12/14), 136 So.3d 98, 106, writ denied, 14-477 (La. 11/26/14), 152 So.3d
897.
The person who is the aggressor or who brings on a difficulty cannot claim
self-defense unless he withdraws from the conflict in good faith and in such a manner
that his adversary knows or should know his desire is to withdraw and discontinue
the conflict. La. R.S. 14:21. In addition, while there is no unqualified duty to retreat,
the possibility of escape from an altercation is a recognized factor in determining
whether the defendant had a reasonable belief that deadly force was necessary to
avoid the danger. State v. Martin, 20-141 (La. App. 5 Cir. 4/28/21), 347 So.3d 1061,
1068, writ denied, 21-803 (La. 10/1/21), 324 So.3d 1054.
Factors to consider in determining whether a defendant had a reasonable belief
that the killing was necessary include the excitement and confusion of the situation,
the possibility of using force or violence short of killing, and the defendant’s
2
This Court need not address the sufficiency of the evidence as it relates to the statutory elements of second
degree murder. See State v. Henry, 13-558 (La. App. 5 Cir. 3/26/14), 138 So.3d 700, 715. See also, State
v. Ramirez, 09-350 (La. App. 5 Cir. 12/29/09), 30 So.3d 833, 840 (“Defendant does not argue that the State
failed to establish any of the essential statutory elements of her conviction but only contends that the State
failed to prove beyond a reasonable doubt her identity as the offender. Therefore, the sufficiency of the
evidence with respect to the statutory elements of second degree murder is not addressed”).
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knowledge of the assailant’s bad character. State v. Leach, 22-194 (La. App. 5 Cir.
12/28/22), 356 So.3d 531, 544. The determination of a defendant’s culpability rests
on a two-fold test: 1) whether, given the facts presented, the defendant could
reasonably have believed his life to be in imminent danger; and 2) whether deadly
force was necessary to prevent the danger. State v. Sinceno, 12-118 (La. App. 5 Cir.
7/31/12), 99 So.3d 712, 720, writ denied sub nom. State ex rel. Sinceno v. State, 12-
2024 (La. 1/25/13), 105 So.3d 713. The jury is the ultimate fact-finder in
determining whether the State negated self-defense beyond a reasonable doubt.
State v. Griffin, 14-450 (La. App. 5 Cir. 12/16/14), 167 So.3d 31, 38, writ denied,
15-148 (La. 11/20/15), 180 So.3d 315.
Here, evidence presented at trial established that on November 29, 2016, Mr.
Tate was in communication with Mr. Allen, and plans were made for Mr. Allen to
go to 805 Gulf Drive, the address Mr. Tate had provided Mr. Allen. That evening,
when Mr. Allen arrived at 805 Gulf Drive, Mr. Tate testified that he was already
outside and admitted that he was carrying a .45 caliber Springfield Armory pistol in
his waistband. Mr. Tate testified that he had no intention of using the gun he had on
his person and that he simply wanted to talk to Mr. Allen about his relationship with
A.L. Mr. Tate stated that the conversation between he and Mr. Allen grew heated
after he confronted Mr. Allen about the nature of his relationship with A.L. Mr. Tate
testified that Mr. Allen questioned what Mr. Tate intended to do about it and placed
his gun in his lap. At that point, Mr. Tate stated that he began to back away. Mr.
Tate testified that Mr. Allen fired his gun first, and then he returned fire out of fear
that he would be killed. In this case, there was no evidence other than Mr. Tate’s
own testimony to support his claim of self-defense.3
3
Mr. Tate’s co-defendant, L.L., was tried separately and found guilty of second degree murder on March
23, 2022. L.L. was called to testify in Mr. Tate’s trial, but refused to do so and was held in contempt of
court and sentenced to six months in the parish prison to run consecutive with any and all other sentences
he may be serving.
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Ms. Tran, a firearm and tool mark examination expert, testified that two .45
caliber cartridge casings were fired from the Springfield Armory pistol.
Additionally, crime scene reconstructionist, Dr. Scanlan, testified that the three .45
caliber-fired cartridge casings that were recovered at the crime scene matched the
.45 caliber Springfield Armory pistol. Dr. Scanlan further testified that the ballistics
evidence was consistent “focused fired” from a stationary shooter standing outside
the vehicle with the vehicle door open when shots were fired. By contrast, Dr.
Scanlan testified that the bullet damage to Mr. Allen’s vehicle was consistent with
the driver of the vehicle firing “sporadic unfocused fire” from Mr. Allen’s .40 caliber
Smith and Wesson. He further agreed that the ballistics evidence in this case was
consistent with two focused shots fired into Mr. Allen’s vehicle, and then Mr. Allen
returning fire in a sporadic fashion. Dr. Scanlan’s opinion, in this regard,
corroborates Mr. Marrero’s testimony at trial that he heard two gunshots followed
by a slight pause and then an array of shots.
The testimony and ballistic evidence the State presented in this case supports
a finding that Mr. Tate fired at Mr. Allen first, who then returned erratic fire. This
finding is further supported by the testimony of forensic pathologist Dr. Troxclair,
who performed the autopsy of Mr. Allen. Dr. Troxclair testified that Mr. Allen
suffered a gunshot wound to the back of his armpit and an exit wound to the left
upper back, causing damage to multiple organs. Dr. Troxclair indicated that Mr.
Allen bled to death as a result of the gunshot wound. He further opined that the entry
wound was consistent with Mr. Allen’s arm not being fully extended. Dr. Troxclair
explained that Mr. Allen’s skin was folded over at the site of the entry wound, which
was indicative of the fact that Mr. Allen’s arm was down when he was shot.
Evidence also established that Mr. Allen fired his .40 caliber Smith and
Wesson gun from inside his vehicle. Eight cartridges and a copper-jacketed
projectile were fired from the .40 caliber Smith and Wesson pistol. A projectile that
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came to rest in the front passenger door was fired from the .40 caliber Smith and
Wesson firearm. Based on the number of shots fired from Mr. Allen’s weapon, the
jury could have reasonably concluded that the evidence was consistent with
sporadic, unfocused fire, which would also be consistent with Mr. Tate’s injuries
that showed he suffered six gunshot wounds; whereas, Mr. Allen suffered one fatal
gunshot wound from focused fire from a few feet away.
The jury in this case was presented with conflicting versions of events
surrounding the November 29, 2016 shooting. Despite Mr. Tate’s testimony that he
acted in self-defense, the evidence presented in this case demonstrates that the jury
was faced with making a credibility determination, and concluded that Mr. Tate’s
testimony lacked credibility. The testimony and evidence demonstrated that Mr.
Tate shot Mr. Allen while he was sitting in his vehicle with his right arm down,
which conflicts with Mr. Tate’s assertion that he believed his life was in imminent
danger and that deadly forced was necessary when he shot and killed Mr. Allen.
Based on the record and the evidence presented in this case, a rational jury could
find that the State proved beyond a reasonable doubt that Mr. Tate did not act in self-
defense. Therefore, we find no merit to this assignment of error.
OTHER CRIMES EVIDENCE
In his second assignment of error, Mr. Tate contends that the trial court
improperly allowed the State to present at trial other crimes evidence pursuant to La.
C.E. art. 404(B). Mr. Tate alleges that his conviction should be reversed because
the conviction is based upon improper use of a prior incident that occurred in April
2015.
“The fundamental rule in Louisiana governing the use of evidence of other
crimes, wrongs, or acts is that such evidence is not admissible to prove that the
accused committed the charged crime because he has committed other such crimes
in the past.” State v. Williams, 09-48 (La. App. 5 Cir. 10/27/09), 28 So. 3d 357, 363,
22-KA-570 15
writ denied, 2009-2565 (La. 5/7/10), 34 So. 3d 860. Evidence of other crimes,
wrongs, or acts committed by the defendant is generally inadmissible because of the
“substantial risk of grave prejudice to the defendant.” State v. Ard, 20-221 (La. App.
5 Cir. 4/28/21), 347 So.3d 1046, 1055; See also State v. Prieur, 277 So.2d 126, 128
(La. 1973). Although the State may not present other crimes evidence to show a
defendant’s bad character, “evidence of prior crimes may be admitted if the State
establishes an independent relevance aside from proving the defendant’s criminal
character.” State v. Brown, 17-348 (La. App. 5 Cir. 12/20/17), 235 So.3d 1314,
1323, writ denied, 18-158 (La. 11/5/18), 256 So.3d 276, cert. denied, 139 S.Ct. 2033,
204 L.Ed.2d 233 (2019). Other crimes evidence “is allowed to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident, or when it relates to conduct, formerly referred to as res gestae, that
constitutes an integral part of the act or transaction that is the subject of the present
proceeding.” State v. Joseph, 16-349 (La. App. 5 Cir. 12/14/16), 208 So.3d 1036,
1046, writ denied, 17-0077 (La. 4/7/17), 218 So.3d 109 (citing La. C.E. art.
404(B)(1)). Thus, “[s]uch evidence is not admissible unless it tends to prove a
material fact at issue or to rebut defendant's defense” Id. at 1324. In other words,
“[t]he probative value of the evidence must outweigh its prejudicial effect of unfair
prejudice.” State v. Hardy, 14-1569 (La. 11/21/14), 154 So.3d 537, 538 (citing La.
C.E. art. 403). Additionally, the State must present sufficient evidence to support a
finding that the defendant committed the prior acts. State v. Daniel, 182 So.3d 21,
22 (La. 7/8/15).
“Logically, it falls to the trial court in its gatekeeping function to determine
the independent relevancy of such evidence and balance its probative value against
its prejudicial effect.” State v. Garcia, 2009-1578 (La. 11/16/12), 108 So.3d 1, 39.
Consequently, this Court will not disturb the trial court’s ruling on the admissibility
of other crimes evidence absent an abuse of discretion. Id. at 55. Furthermore, “the
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erroneous admission of other crimes evidence has long been held subject to harmless
error review.” Id. (citing La.C.Cr.P. art. 921). In determining harmless error, it is
“not whether, in a trial that occurred without the error, a guilty verdict would surely
have been rendered, but whether the guilty verdict actually rendered in the trial was
surely unattributable to the error.” State v. Massey, 11-358 (La. App. 5 Cir. 3/27/12),
97 So.3d 13, 29, writ denied sub nom. State ex rel. Massey v. State, 12-993 (La.
9/21/12), 98 So.3d 332.
The State filed under seal its notice to use other crimes evidence pursuant to
La. C.E. art. 404(B), which sought to introduce at trial evidence that Mr. Tate
previously committed an attempted armed robbery and aggravated battery on April
20, 2015. The State alleged that during the prior incident, Mr. Tate arranged to
purchase marijuana from the victim, and when Mr. Tate entered the victim’s vehicle,
Mr. Tate attempted to rob the victim of cash and marijuana before shooting him. At
the hearing on the State’s notice, the State argued that the case sub judice involved
Mr. Tate luring Mr. Allen to a house under the pretext of buying marijuana from him
and that Mr. Tate started to commit an armed robbery but ultimately murdered Mr.
Allen. The State alleged that in the April 2015 incident, Mr. Tate, who was a
juvenile at the time, was investigated and arrested for similar conduct. The State
asserted that the evidence of the April 2015 incident was relevant because it showed
modus operandi, guilty knowledge, intent, and motive.
Opposing the admission of the April 2015 incident, defense counsel argued
that the incidents were factually dissimilar and that there were no facts to suggest
that the instant case involving Mr. Allen was an intended “drug deal gone bad.”
Additionally, defense counsel posited that because the 2015 matter was dismissed,
there was no corroborating evidence to support the inference that Mr. Tate was the
assailant in the April 2015 incident.
The trial court found the April 2015 incident admissible at trial. The trial
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court explained its reasoning as follows: “While it appears it is not a setup drug rip,
it is similar in the sense that Mr. Tate used a firearm to rob an individual of property
that belonged to the other individual and shot the individual while in the car.” It
further reasoned that a dismissal does not equate to an acquittal and that there are
many reasons why a charge might be dismissed. It also concluded that the
exceptions of intent, modus operandi, and the absence of mistake could be applicable
in this case and that “the probative value is far outweighed by any prejudicial effect.”
The defendant bears the burden of showing that he was prejudiced by the
admission of the other crimes evidence. State v. Garcie, 17-609 (La. App. 5 Cir.
4/11/18), 242 So.3d 1279, 1285.
As evidenced by the hearing, the State sought to introduce evidence of Mr.
Tate’s arrest and involvement in the April 2015 incident, arguing that it was relevant
to show Mr. Tate’s motive, intent, system, absence of mistake, and in particular to
rebut Mr. Tate’s self-defense claim. Mr. Tate’s 2015 arrest for attempted armed
robbery and aggravated battery of the victim, who he allegedly lured to a spot for a
drug transaction and then tried to rob, has many similarities to the instant offense.
The State presented evidence that Mr. Tate lured Mr. Allen to 805 Gulf Drive under
the pretext of a drug deal. Mr. Allen was ultimately shot and found inside his vehicle
with a bundle of money in his lap. Based on the foregoing, we cannot say that the
trial court abused its discretion in allowing the admission of evidence relating to the
April 2015 incident and arrest of Mr. Tate for attempted armed robbery and
aggravated battery.
Even if this Court were to find that the other crimes evidence was improperly
admitted, which we do not, the error is harmless. As previously discussed, Mr. Tate
testified that he shot Mr. Allen, who died as a result. While Mr. Tate asserted that
the shooting was in self-defense, the jury found otherwise. The evidence indicates
that Mr. Tate texted Mr. Allen where to meet him, and Mr. Tate approached Mr.
22-KA-570 18
Allen with a gun on his person. The testimony and evidence supported a finding
that defendant fired his gun first and that Mr. Allen fired back after he was shot.
Additionally, the trial judge provided the jury with an instruction on the limited
purpose for which it could consider the other crimes evidence. Therefore, the verdict
was surely unattributable to admission of the evidence related to the April 2015
incident. For these reasons, this assignment of error lacks merit.
ERRORS PATENT
Finally, this Court routinely, reviews the record for errors patent in accordance
with La C.Cr.P. art. 920. See State v. Weiland, 556 So.2d 175 (La. App. 5th Cir.
1990). Review of the record reveals two errors patent. First, a discrepancy exists
between the minute entry, uniform commitment order (UCO), and the sentencing
transcript. The sentencing minute entry and UCO reflect that Mr. Tate’s sentence
shall run concurrently with any and all other sentences Mr. Tate is currently serving.
However, the sentencing transcript does not indicate that the trial court ordered Mr.
Tate’s sentence to run concurrently with any other sentence he may be serving. It is
well-settled that where there is inconsistency between the minute entry and the
transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
Therefore, to ensure accuracy in the record, we remand this matter to the trial court
for correction of the minute entry and UCO to delete the provision relating to the
concurrent nature of Mr. Tate’s sentence. Additionally, the Clerk of Court for the
24th Judicial District is ordered to transmit the original of the corrected UCO to the
officer in charge of the institution to which Mr. Tate has been sentenced as well as
the Department of Corrections’ legal department. See Burnham, 213 So.3d at 477(remanding the matter for correction of the UCO when it stated the sentence was to
be served concurrently but was not reflected in the sentencing transcript or minute
entry).
Additionally, the sentencing minute entry and transcript demonstrate that the
22-KA-570 19
trial court failed to advise Mr. Tate of the prescriptive period to seek post-conviction
relief pursuant to La. C.Cr.P. art. 930.8. If the trial court fails to advise, or provides
an incomplete advisal, under La. C.Cr.P. art. 930.8, the appellate court may correct
the error by informing the defendant of the applicable prescriptive period for post-
conviction relief by means of its opinion. State v. Taylor, 20-215 (La. App. 5 Cir.
4/28/21), 347 So.3d 1008. Therefore, we hereby advise Mr. Tate that no application
for post-conviction relief, including applications that seek an out-of-time appeal,
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.
DECREE
Based on the foregoing reasons, we find the evidence sufficient to support Mr.
Tate’s conviction and life sentence for the second degree murder of Ethan Allen, and
find no error in the trial court’s admission of evidence pursuant to La C.E. art.
404(B). Accordingly, Mr. Tate’s conviction and sentence is affirmed. The matter
is remanded for the limited purpose of correcting the sentencing minute entry and
commitment order as set forth above.
CONVICTION AND SENTENCE AFFIRMED;
REMANDED WITH INSTRUCTIONS
22-KA-570 20
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JUNE 21, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KA-570
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE)
DARREN A. ALLEMAND (APPELLEE) MONIQUE D. NOLAN (APPELLEE) THOMAS J. BUTLER (APPELLEE)
MAILED
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ATTORNEY AT LAW (APPELLEE)
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ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
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