State v. Scott

Full title: STATE OF LOUISIANA v. KENDALE SCOTT

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: May 2, 2014

NUMBER 2013 KA 2061 (La. Ct. App. May. 2, 2014)

Opinion

NUMBER 2013 KA 2061

05-02-2014

STATE OF LOUISIANA v. KENDALE SCOTT

Sam D'Aquilla District Attorney Clinton, LA Attorneys for Appellee State of Louisiana Stewart B. Hughes Asst. District Attorney St. Francisville, LA Bruce G. Whittaker La. Appellate Project New Orleans, LA Attorney for Appellant Defendant - Kendale Scott

WELCH

NOT DESIGNATED FOR PUBLICATION

Appealed from the

20^th Judicial District Court

In and for the Parish of East Feliciana, Louisiana

Trial Court Number 12-CR-505

Honorable George H. Ware, Jr., Judge

Sam D'Aquilla
District Attorney
Clinton, LA
Attorneys for Appellee
State of Louisiana
Stewart B. Hughes
Asst. District Attorney
St. Francisville, LA
Bruce G. Whittaker
La. Appellate Project
New Orleans, LA
Attorney for Appellant
Defendant - Kendale Scott

BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.

WELCH, J.

Defendant, Kendale Scott, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and, after a jury trial, was found guilty as charged. Defendant filed motions for new trial and postverdict judgment of acquittal, but those motions were denied by the trial court. The trial court subsequently sentenced defendant to the mandatory term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging three assignments of error. For the following reasons, we affirm defendant's conviction and sentence.

FACTS

In June 2012, defendant lived with Lisa Keller (his girlfriend), three of her children, her mother (Katherine Hartman - the victim), and Naomi Wheat. They all resided in the victim's trailer on Highland Drive in Ethel. Defendant and the victim had previously had disagreements and altercations, including one incident around May 12, 2012, in which defendant allegedly struck the victim several times.

On June 24, 2012, defendant was at the Highland Drive residence with Wheat, Keller's children, the victim, and Shedrick Law, a visiting friend. Keller was working at an area nursing home. In the afternoon, the victim fell asleep on a sofa in the living room. Shortly thereafter, defendant retrieved his .22 caliber rifle from the rear of the house and entered the living room with it. He instructed Law to take the children outside to play. Law complied, and within a few minutes, he and the children heard a gunshot. Upon hearing the shot, Law walked to the trailer and observed defendant still holding the rifle.

Upon reentering the house, Keller's teenage son saw his grandmother's body on the couch in the living room. She was dead from a gunshot wound to her forehead. Defendant instructed him to help Wheat clean the sofa and wrap the victim in blankets and plastic garbage bags. Keller's son complied, and he subsequently accompanied defendant and Law to dump the victim's body at an isolated location off Lane Road in Ethel.

On June 26, 2012, Lisa Keller filed a missing persons report with the East Feliciana Parish Sheriff's Office. During his investigation of that report, Detective Kevin Garig received information from both a concerned citizen and a confidential informant that led him to believe that the victim had been murdered. On July 6, 2012, Detective Garig executed a search warrant on the residence, and he interviewed everyone present at the home. Following those interviews, he located the victim's body where it had been dumped. He subsequently arrested defendant, Keller, Wheat, and Law for the victim's murder.

ASSIGNMENT OF ERROR #1

In his first assignment of error, defendant alleges that the trial court erred in admitting testimony that defendant had made a threat against a neighbor, Lisa Scarbrough. Defendant contends that this threat, made approximately a week after the murder, constituted other crimes evidence that was unduly prejudicial to, and not probative, of the issues in his trial.

At trial, Lisa Scarbrough testified that on July 1, 2012, she was walking in her neighborhood with Tonya John. According to Scarbrough's testimony, defendant and her son had "got into it" earlier that evening. Defendant was outside as Scarbrough and John passed the victim's residence. Defendant shouted to her, "I killed one. I can kill another one, bitch."

Prior to Scarbrough's testimony before the jury, the trial court held a hearing to determine the admissibility of the statement defendant made to Scarbrough and John.¹ The trial court ruled as follows:

1 John testified at this hearing, but the state did not call her to testify at trial.

I'm going to rule that the testimony of [John]² and Scarbrough is
admissible within the very limited area of what we heard here in the courtroom, a statement about I've killed one, I'll kill another one from Ms. Scarbrough, and the other one from Ms. [John], I've caused one to come up missing. I'll have another one come up missing or words to that effect. So, I'll permit that. I caution you, Mr. D'Aquilla, to be careful if you get into assaultive language about other neighbors or dog killings or anything like that because if that happens then that may be grounds for a mistrial.

The trial court's instruction to the prosecutor regarding testimony about "assaultive language to neighbors or dog killings" referenced other crimes evidence that the state had unsuccessfully sought to introduce. At trial, Scarbrough's testimony was limited to the statement that defendant made to her and John, and it did not touch on these other facts prohibited by the trial court.

2 The trial judge referred to Tonya John as "Jenkins," but the record appears to reflect that John is the correct surname. That misstatement has been corrected here.
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The state did not argue at the hearing that this statement was admissible as other crimes evidence, but as an admission of guilt by defendant. The term "confession" is applied only to an admission of guilt, not to an acknowledgment of facts merely tending to establish guilt. See La. R.S. 15:449. Here, defendant's statement clearly involved an admission to his guilt in a homicide. Although the statement itself does not name the victim, the context in which it was made (especially the temporal proximity to the offense) supports the conclusion that the statement was an admission of guilt, not merely an acknowledgment of facts tending to establish guilt. Accordingly, Scarbrough's testimony at trial was admissible as a statement which was not hearsay because it was defendant's own statement offered as evidence against him. See La. C.E. art. 801(D)(2)(a).

The trial court did not err or abuse its discretion in admitting defendant's statement to Scarbrough as a confession or personal admission. Contrary to defendant's argument in his brief, the state never sought to introduce Scarbrough's testimony as other crimes evidence, and her testimony stayed within the bounds set by the trial court.

This assignment of error is without merit.

ASSIGNMENT OF ERROR #2

In his second assignment of error, defendant contends that the trial court erred in denying his motion for postverdict judgment of acquittal. Specifically, he asserts that his non-unanimous (11-1) jury verdict was unconstitutional.

The punishment for second degree murder is life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:30.1(B). Article I, § 17(A) of the Louisiana Constitution and Louisiana Code of Criminal Procedure article 782(A) provide that, in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate the right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726-27 (La. 1982); State v. Shanks, 97-1885 (La. App. 1^st Cir. 6/29/98), 715 So.2d 157, 164-65.

Defendant recognizes the Apodaca ruling, but he argues that decision was decided incorrectly. However, this court and the Louisiana Supreme Court have previously rejected the argument that Article I, § 17(A) violates the rights to due process and equal protection. See State v. Bertrand, 2008-2215 (La. 3/17/09), 6 So.3d 738, 742-43; State v. Smith, 2006-0820 (La. App. 1^st Cir. 12/28/06), 952 So.2d 1, 16, writ denied, 2007-0211 (La. 9/28/07), 964 So.2d 352. In Bertrand, the Louisiana Supreme Court specifically found that a non-unanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. Moreover, the Bertrand court rejected the argument (not advanced by defendant here) that non-unanimous jury verdicts have an insidious racial component and pointed out that a majority of the United States Supreme Court also rejected that argument in Apodaca. Although Apodaca was a plurality rather than a majority decision, the United States Supreme Court has cited or discussed the opinion various times since its issuance and, on each of these occasions, it is apparent that its holding as to non-unanimous jury verdicts represents well-settled law. See Bertrand, 6 So.3d at 742-43. Thus, Louisiana Constitution article I, § 17(A) and Louisiana Code of Criminal Procedure article 782(A) are not unconstitutional and, therefore, not in violation of the defendant's federal constitutional rights. See State v. Hammond, 2012-1559 (La. App. 1^st Cir. 3/25/13), 115 So.3d 513, 514-15, writ denied, 2013-0887 (La. 11/8/13), 125 So.3d 442.

This assignment of error is without merit.

ASSIGNMENT OF ERROR #3

In his final assignment of error, defendant argues that the trial court erred in failing to grant his motion for a mistrial during Lisa Keller's testimony. He asserts that Keller's testimony that defendant's threats caused her to file a missing persons report, despite knowing that her mother was dead, unfairly prejudiced his ability to receive a fair trial. Defendant also contends that the trial court's admonishment served only to reiterate the substance of the objectionable testimony.

During the state's direct examination of Keller, the following exchange occurred:

State: All right. And did you actually report [the victim] missing?
Keller: Yes, I did.
State: On what day?
Keller: June the 26th.
State: Of last year?
Keller: Yes.
State: And why did you do that?
Keller: Urn, because I was being threatened. Me and my children were both - all of us were being threatened that if I didn't do it I would be taken out and then never be found again. . .
Defense counsel: Objection...
Keller: . . .and so would my children.

On defense counsel's objection, the trial court ordered the jury removed from the courtroom. Defense counsel moved for a mistrial on the basis that Keller had stated that his client had threatened her. He argued that this testimony was other crimes evidence that was highly prejudicial to defendant.

The trial court spoke to Keller directly and instructed her that while she could testify to anything about what defendant had told her regarding his participation in the offense, she could not testify about any threats he had made to her. In denying defense counsel's motion for a mistrial, the trial court noted that the state did not solicit Keller's statement and that Keller had not completed enough of her statement to name the perpetrator of that threat. When the jury reentered the courtroom, the trial court gave the following limiting instruction:

When we stopped the proceedings some testimony had been given by Ms. Keller that was impermissible, and an objection was made. And I am now giving you an order, and an admonition. She said something to the effect that there were some threats made, and she was afraid, and that she would never be found, et cetera. We don't know who said those, but that's neither here nor there.
You are totally to disregard what she said in that area. You are not to consider that under any circumstances when you retire to deliberate on this case. She should not have said those things. It was not requested by the District Attorney, nor was it requested by the defense lawyer. She said those things. She shouldn't have said those things. And outside your presence, I've cautioned her, and I've ordered her to be careful what she says. We want her to tell the truth in here, but sometimes in criminal proceedings there are things that witnesses should not say, and they're not permitted to say because of legal technicalities.

Keller adhered to the trial court's instructions for the remainder of her testimony.

Louisiana Code of Criminal Procedure article 775 provides in part that "[u]pon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771." Under La. C.Cr.P. art. 770(2), a mistrial shall be ordered when a remark or comment made within the hearing of the jury by the judge, district attorney, or a court official during trial or argument refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Also, an impermissible reference to another crime deliberately elicited by the prosecutor is imputable to the state and would mandate a mistrial. See State v. Boudreaux, 503 So.2d 27, 31 (La. App. 1^st Cir. 1986). Here, the alleged prejudicial comment was not made by the judge, district attorney, or court official, but by a witness. Neither was the comment deliberately elicited by the prosecutor. Consequently, the requirements for a mandatory mistrial under Article 770 were not triggered.

Rather, the controlling provision is La. C.Cr.P. art. 771, which provides in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant ... in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official[.]
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant. A trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. State v. Smith, 418 So.2d 515, 522 (La. 1982). See State v. Berry, 95-1610 (La. App. 1^st Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603. A reviewing court in Louisiana should not reverse a defendant's conviction and sentence unless the error has affected substantial rights of the accused. See La. C.Cr.P.art. 921.

Defendant has failed to show clear prejudice from Keller's statement about threats that she received regarding herself and her children. First, as the trial court noted, Keller's statement did not specifically identify defendant as the source of those threats. Next, Keller's statement was cut off immediately by defense counsel's objection, and defense counsel agreed that the prosecutor did not intend to solicit the statement from her. On appeal, defendant also argues that the admonition served only to reiterate the substance of the illicit testimony. While the trial court did state the specific nature of the testimony to be disregarded, the record reveals that the jury was absent from the courtroom for a long period of time, leading to the possible necessity of a reminder of the exact testimony to be disregarded. Considering the above facts and circumstances, we find that the trial court did not err or abuse its discretion in denying defendant's motion for a mistrial and admonishing the jury to disregard Keller's testimony about threats.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the defendant's conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.