STATE OF LOUISIANA * NO. 2023-KA-0524
VERSUS * COURT OF APPEAL GARRETT J. WARD * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 541-639, SECTION “F” Honorable Robin D. Pittman, Judge ****** Judge Nakisha Ervin-Knott ****** (Court composed of Judge Daniel L. Dysart, Judge Nakisha Ervin-Knott, Judge Monique G. Morial)
Jason Rogers Williams District Attorney Brad Scott Chief of Appeals Zachary M. Phillips Assistant District Attorney ORLEANS PARISH 619 South White Street New Orleans, Louisiana 70119
COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE
Jane Hogan ATTORNEY AT LAW 310 N. Cherry Street, Suite 1 Hammond, LA 70403
COUNSEL FOR DEFENDANT/APPELLANT
REVERSED, VACATED, AND REMANDED APRIL 17, 2025 NEK The defendant, Garrett Ward (“Defendant”), seeks review of his conviction DLD MGM and sentence for manslaughter. For the reasons that follow, we reverse the judgment
of the trial court, vacate Defendant’s manslaughter conviction and sentence, and
remand this matter to the trial court for a new trial.
STATEMENT OF THE FACTS
On the evening of January 5, 2018, Defendant attended a dinner party with his
girlfriend, Katy Kelly (“Ms. Kelly”), and her work colleagues at Chophouse in New
Orleans, Louisiana. After dinner, Defendant, Ms. Kelly, Ms. Kelly’s co-workers –
Jonathan Guy (“Mr. Guy”) and Jamie Yorsch (“Ms. Yorsch”) – and Ms. Yorsch’s
husband relocated to the Hot Tin bar atop the Pontchartrain Hotel on St. Charles
Avenue in New Orleans, Louisiana.
In the early morning hours, around 1:00 A.M. the next day, a verbal altercation
between Defendant and Ms. Kelly ensued at the bar wherein Defendant slapped Ms.
Kelly in the face. Defendant left the bar and had an encounter with Arnold Jackson
(“Mr. Jackson”) outside of the Pontchartrain Hotel, which resulted in Defendant
attacking Mr. Jackson. According to several eyewitnesses to the attack, Defendant
1 used his hands and feet to repeatedly strike Mr. Jackson in the head. After the attack,
Defendant fled to a nearby parking garage.
Kerrie Williamson (“Ms. Williamson”), an eye-witness to the attack, called
911, and upon arriving on the scene, New Orleans Police Department (“NOPD”)
officers found Mr. Jackson lying on the ground, conscious, with severe blunt force
trauma to the head and face. The NOPD officers located Defendant at the nearby
parking garage, where he appeared intoxicated, and arrested him for simple battery.
When the paramedics arrived on the scene, they transported Mr. Jackson to
University Medical Center (“UMC”). At UMC, Mr. Jackson’s condition declined,
and he required emergency brain surgery. Ultimately, Mr. Jackson succumbed to his
injuries on January 18, 2018.
PROCEDURAL HISTORY
On June 7, 2018, Defendant was charged by grand jury indictment with
second degree murder, a violation of La. R.S. 14:30.1. On June 11, 2018, Defendant
pled not guilty to the charge.
A six-day jury trial commenced with jury selection on May 2, 2022, and
concluded on May 10, 2022, with the jury returning a responsive verdict of guilty of
manslaughter. Prior to sentencing, on June 27, 2022, Defendant filed a motion for
post-verdict judgment of acquittal, which was denied. On the same day, the trial
court sentenced Defendant to thirty years imprisonment at hard labor with credit for
time served. After sentencing, on July 22, 2022, Defendant filed a motion to
reconsider sentence that was denied by the trial court following a hearing on
December 15, 2022. This appeal followed.
2 ERRORS PATENT
In accordance with La. C.Cr.P. art. 920(2), all appeals are reviewed for errors
patent on the face of the record. A review of the record reveals one error patent.
The record evidences that the trial court sentenced Defendant less than
twenty-four hours after denying his motion for post-verdict judgment of acquittal.
Thus, the trial court erred in failing to observe the twenty-four hour delay required
by La. C.Cr.P. art. 873. Louisiana Code of Criminal Procedure Article 873 states
that if “a motion for new trial, or in arrest of judgment, is filed, sentence shall not be
imposed until at least twenty-four hours after the motion is overruled,” unless the
defendant “expressly waives” the delay or pleads guilty. Nevertheless, if a defendant
waives the twenty-four hour sentencing delay, then the trial court’s failure to wait at
least twenty-four hours after a motion for new trial constitutes harmless error. State
v. Robinson, 2021-0254, p. 21 (La. App. 4 Cir. 2/18/22), 336 So.3d 567, 580.
Defendant was convicted by jury on May 10, 2022. Defendant filed a motion
for post-verdict judgment of acquittal, which the trial court denied at a hearing on
June 27, 2022. Following the denial of the motion for post-verdict judgment of
acquittal, the trial court asked defense counsel whether Defendant was invoking his
right to a sentencing delay, to which defense counsel responded that Defendant was
waiving the delay. The trial court proceeded to sentence Defendant. When the trial
court sentenced Defendant on the same day as the denial of the motion for post-
verdict judgment of acquittal, the trial court failed to comply with the twenty-four
hour sentencing delay found in La. C.Cr.P. art. 873. However, Defendant waived the
twenty-four hour sentencing delay when he expressly waived the delay in open court
following the denial of his motion for post-verdict judgment of acquittal.
3 Accordingly, although the trial court erred in failing to observe the twenty-four hour
delay required by La. C.Cr.P. art. 873, we conclude the error was harmless.
DISCUSSION
On appeal, Defendant assigns five errors for this Court’s review: (1) there is
insufficient evidence to support Garrett Ward’s manslaughter conviction; (2) the trial
court erred by refusing to grant a mistrial and the repeated injection of racially
charged testimony deprived Garrett Ward of his right to due process; (3) the trial
court erroneously permitted the introduction of other crimes evidence; (4) the trial
court erroneously permitted Detective Haw to testify about blood splatter without
being qualified as an expert; and (5) the trial court erred when it imposed an
unconstitutionally excessive sentence of thirty years on a first offender.
Assignment of Error Number One: There is insufficient evidence to support Garrett Ward’s manslaughter conviction.
In his assignment of error one, Defendant contends there is insufficient
evidence to support his manslaughter conviction. We first determine whether
sufficient evidence exists to support the conviction of manslaughter. State v.
Hearold, 603 So.2d 731, 734 (La. 1992) (“When issues are raised on appeal both as
to the sufficiency of the evidence and as to one or more trial errors, the reviewing
court should first determine the sufficiency of the evidence. The reason for
reviewing sufficiency first is that the accused may be entitled to an acquittal....”).
Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979), this Court must determine that the evidence, viewed in the light most
favorable to the prosecution, “was sufficient to convince a rational trier of fact that
all the elements of the crime had been proved beyond a reasonable doubt.” State v.
Neal, 2000-0674, p. 9 (La. 6/29/01), 796 So.2d 649, 657 (citations omitted). The
4 statutory test of La. R.S. 15:4381 “works with the Jackson constitutional sufficiency
test to evaluate whether all the evidence, direct and circumstantial, is sufficient to
prove guilt beyond a reasonable doubt to a rational jury.” Id.
This Court has previously set forth the applicable standard of review for
sufficiency of the evidence:
In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La. 1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 [at 1324] (La. 1992) at 1324.
State v. Huckabay, 2000-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111.
The State charged Defendant with the second degree murder of Mr. Jackson,
a violation of La. R.S. 14:30.1, and the jury found him guilty of manslaughter, a
violation of La. R.S. 14:31, and a statutory responsive verdict to second degree
murder pursuant to La. C.Cr.P. art. 814(A)(3). Louisiana Revised Statute
14:31(A)(1) defines manslaughter as:
A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by
1 Louisiana Revised Statutes 15:438 provides, “The rule as to circumstantial evidence is: assuming
every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”
5 provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed.2
“[A]n appellate court will not reverse a jury's return of a responsive verdict, whether
or not supported by the evidence, as long as the evidence is sufficient to support a
conviction for the charged offense.” State v. Harris, 2002-1589, p. 4 (La. 5/20/03),
846 So.2d 709, 712-13. Defendant argues that there is insufficient evidence for his
conviction of manslaughter because the State failed to prove that the attack was not
the result of self-defense. Defendant argues that he acted in self-defense when he
attacked Mr. Jackson, thus, his actions were legally justified.
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). “In a homicide case in which the defendant asserts he acted in self-
defense, the State has the burden of establishing beyond a reasonable doubt that the
defendant did not act in self-defense.” State v. Kirk, 2011-1218, pp. 6-7 (La. App. 4
Cir. 8/8/12), 98 So.3d 934, 939-40 (citing State v. Taylor, 2003-1834, p. 7 (La.
5/25/04), 875 So.2d 58, 63).
Turning to the facts of this case, Defendant asserts the State failed to prove
that he did not act in self-defense because there was clear evidence that Mr. Jackson
attempted to rob him with a knife. Defendant also asserts the amount of force he
used was reasonable because he was unarmed and suffered stab wounds.
2 Under La. R.S. 14:31, there are several definitions of manslaughter. However, La. R.S. 14:31(A)(1) was the only definition the trial court read to the jury.
6 Defendant testified at trial concerning the events that preceded the attack.
Defendant testified that he, along with Ms. Kelly and her co-workers, caught an Uber
to Hot Tin bar after dinner with her work colleagues. While in the Uber, Ms. Kelly
sat in the front seat – on Mr. Guy’s lap – and Defendant stated he thought Mr. Guy’s
actions were inappropriate. Once at the bar, Defendant noticed Mr. Guy’s continued
inappropriate behavior towards Ms. Kelly – putting his hand on her lower back while
looking at the rooftop view and privately talking to her in the corner – and confronted
her about it. This verbal altercation resulted in Defendant slapping Ms. Kelly in the
face. Defendant stated that he was not proud of what he did.
Following the incident between Defendant and Ms. Kelly, Defendant testified
that he proceeded downstairs to call a ride home and had Ms. Kelly’s phone in his
possession because his phone was dead. He was sitting on a tree planter outside the
Pontchartrain Hotel when Ms. Kelly’s mother called, and he gave Ms. Kelly her
phone. Defendant further testified that he fell asleep outside and woke up to a man
– Mr. Jackson – attempting to rob him.
The only testimony supporting Defendant’s claim that he was being robbed
and stabbed when he began attacking Mr. Jackson was Defendant’s self-serving
testimony. Specifically, Defendant testified that the victim was “going through my
pockets” and “I noticed my hand had a sharp – something sharp over me….” There
were three eye-witnesses at the scene of the attack who testified at trial – (1) Kerrie
Williamson (“Ms. Williamson”); (2) Detrick Rainge (“Mr. Rainge”); and (3)
Deondria Rainge (“Mrs. Rainge”). The fact that none of these eye-witnesses to the
attack corroborated Defendant’s testimony regarding Mr. Jackson allegedly trying
to rob him is quite telling.
7 At trial, Ms. Williamson testified that she was right in front of “Red Zone” –
a convenience store located next to the Pontchartrain Hotel – at the time of the attack
and saw Defendant walk out of the Pontchartrain Hotel; she also saw Mr. Jackson in
the area. Ms. Williamson testified that at no point did she see Mr. Jackson with a
knife nor did she see Mr. Jackson attempt to rob Defendant. Rather, Ms. Williamson
attested to the fact that she saw Mr. Jackson walk towards Defendant – maybe to ask
him for some money – and when Mr. Jackson put his hand out, Defendant punched
him in the face. Ms. Williamson witnessed Mr. Jackson falling to the ground, due
the Defendant’s punches, where Defendant began kicking him. Although she could
not recall how many times Defendant hit Mr. Jackson, she recalled Mr. Jackson not
retaliating with any violence.
Mr. Rainge, a valet at the Pontchartrain Hotel at the time of the attack, also
testified at trial. He testified that his then-girlfriend now wife, Mrs. Rainge, visited
him at work on the morning of the attack. According to Mr. Rainge, they were sitting
in her vehicle, which was parked in front the hotel, when she noticed the attack. Mr.
Rainge exited the vehicle and noticed Defendant punching Mr. Jackson. As he
approached the two men, he also noticed Defendant kicking Mr. Jackson.
Eventually, Mr. Rainge pulled Defendant off of Mr. Jackson. Mr. Rainge testified
that he did not notice Mr. Jackson with a knife or any type of sharp object, nor did
he see a knife or sharp object on the ground where the attack took place.
Additionally, Mrs. Rainge testified at trial about what she observed on the
morning of the attack. She testified that she witnessed Defendant punching Mr.
Jackson in the face, which prompted her to alert her then-boyfriend, Mr. Rainge, of
the attack. After Mr. Rainge exited her vehicle, but before he reached the two men,
Mrs. Rainge observed Defendant kicking Mr. Jackson in the face. Once Mr. Rainge
8 separated the two men, Defendant walked down the street and turned into a parking
garage. On the morning of the attack, Mrs. Rainge gave a recorded statement on one
of the police officer’s body-worn cameras, in which she stated that Mr. Jackson was
“minding his own business” when the Defendant, who she described as an “angry
drunk,” “got up and just started beating him up.”
Further undermining Defendant’s self-defense claim was his own trial
testimony that he did not tell anyone at the scene that he was fearful due to Mr.
Jackson’s alleged robbery. Defendant admitted that he did not tell his grandmother,
whom he called while detained in lockup, that he was robbed even though she asked
him if he was hurt and Defendant responded in the negative. Additionally, Ms. Kelly
was not aware that Defendant had allegedly been robbed. Defendant also testified
that on the morning of the attack he declined offers of medical assistance at the
scene. Defendant further admitted that at no time following this incident did he seek
any medical attention in connection with his alleged knife wound. At the time of
trial, there were no scars present on Defendant’s palms. Moreover, an enlarged
photograph of Defendant with his hands up – taken at the time he was apprehended
by police shortly after the attack occurred – showed the blood on his palms was dry,
and there was no blood dripping from Defendant’s palms as one would expect
shortly following a stabbing.
Even assuming Mr. Jackson was the aggressor, Defendant’s claim that the
amount of force he used was reasonable is not supported by the evidence. All three
eye-witnesses recounted Defendant repeatedly punching and kicking Mr. Jackson,
to the point that he landed on the ground, while Mr. Jackson never retaliated with
physical force. At trial, when asked whether he saw a knife in Mr. Jackson’s hands,
Defendant initially responded that he did not see a knife in his hands. When he was
9 asked the same question again, Defendant conceded “I don’t know.” The amount of
force Defendant used on Mr. Jackson was especially unreasonable considering the
fact that no one saw Mr. Jackson physically threaten Defendant nor did anyone,
including the Defendant, see him with a knife in his hands.
Admittedly, Mr. Jackson had pre-existing medical conditions – hepatitis,
diabetes, and cirrhosis – that negatively impacted his ability to recover from his
injuries sustained as a result of the attack. Dr. Gabriel Tender (“Dr. Tender”), a
neurosurgeon and Mr. Jackson’s treating physician at UMC, testified at trial and was
qualified as an expert in the treatment of Mr. Jackson in his neurosurgeon capacity.
He attested to these medical conditions, along with the fact that Mr. Jackson had
cocaine and opiates in his system when he was admitted to the hospital. Dr. Tender
testified that Mr. Jackson had a subdural hematoma, which required surgery, and
while the hematoma was able to be removed, he suffered a stroke. Dr. Tender opined
that if Mr. Jackson had not experienced the trauma to his brain and the swelling
hematoma, he would not have required surgery; and, if he had not received these
injuries, Mr. Jackson would not have required intubation and suffered a stroke,
which lead to his death.
Dr. Kelly Scrantz (“Dr. Scrantz”), a neurosurgeon employed at the Neuro-
Medical Center in Baton Rouge, Louisiana, also testified at trial and was qualified
as an expert in neurosurgery. Dr. Scrantz acknowledged that Mr. Jackson’s pre-
existing medical conditions would increase his chances of having “a more negative
outcome.” However, Dr. Scantz opined that the blows to Mr. Jackson’s head “set off
the process,” which led to his death.
After a review of the evidence before this Court, we find that the jury made
reasonable credibility determinations in favor of the State and rationally rejected
10 Defendant’s assertion of self-defense. The record reveals sufficient evidence to
conclude that any rational trier of fact could have found that the State proved beyond
a reasonable doubt all the elements of manslaughter. Accordingly, we conclude that
this assignment of error, regarding the manslaughter conviction, is without merit.
Assignment of Error Number Two: The trial court erred by refusing to grant a mistrial and the repeated injection of racially charged testimony deprived Garrett Ward of his right to due process.
Having determined that the evidence is sufficient to support Defendant’s
manslaughter conviction, we now turn to Defendant’s remaining assignments of
error. In his assignment of error two, Defendant maintains the trial court erred by
refusing to grant a mistrial as the repeated injection of racially charged testimony
deprived him of his right to due process. Defendant’s argument is based on Ms.
Williamson’s trial testimony, in which the State questioned her about Defendant’s
comments towards Mr. Jackson during the attack.
During direct examination, the following exchange occurred:
MR. WILLIAMS:
Let me ask you this. You told us what Mr. Jackson was saying. What was Mr. Ward [Defendant] saying?
MS. WILLIAMSON:
“Nigger”.
Just --
And he told me something.
Just the word?
11 MS. WILLIAMSON:
“You fucking nigger; get a job; you fucking bum.” And then not just that. For some reason, him being drunk, I guess he thought for some reason, I was being friendly to him; because then he started putting me and him in the same boat.
What do you mean?
Like saying, “You know how they are; they’re not like us.”
Later on in her direct examination, the exchange continued:
And what were the words that he [Defendant] used during the attack of Mr. Jackson?
That’s what was so strange. He shouldn’t have gone toward him. I tried to push him off. I wasn’t strong enough to hurt him, but I tried, and Mr. Jackson wasn’t doing anything, nothing.
And what were his words, though?
“You fucking nigger; you fucking bum.” And then he hit him, and at first he tried to stopped [sic] himself from falling and he grabbed Mr. Arnold’s arm, and he flung him off.
MR. WILLIAMS: And that was before he started kicking?
Yeah. That’s before.
And what did Mr. Ward [Defendant] say to you as he was leaving? You said he tried to…?
12 MS. WILLIAMSON:
He tried – he said something about, “I know how they are; you know how they are; they’re not like us.”
At the conclusion of Ms. Williamson’s testimony, outside the presence of the
jury, defense counsel made an oral motion for mistrial on grounds that the State
failed to provide notice of its intent to introduce Ms. Williamson’s racially-charged
testimony that she heard Defendant call Mr. Jackson the “n-word.” The State
responded by asserting it had no prior knowledge of Ms. Williamson’s testimony
and stated, “We made the Defense aware of everything we knew when we knew it.”
Relying on the State’s representation, the trial court denied the motion for mistrial.
Louisiana Code of Criminal Procedure Article 775 provides, in pertinent part,
“…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.” According to La. C.Cr.P. art.
770, the trial court must grant a mistrial, once requested by a defendant, “when a
remark or comment, made within the hearing of the jury by the judge, district
attorney, or a court official, during the trial or in argument, refers directly or
indirectly to: (1) Race, religion, color or national origin, if the remark or comment
is not material and relevant and might create prejudice against the defendant in the
mind of the jury; …An admonition to the jury to disregard the remark or comment
shall not be sufficient to prevent a mistrial.” “Clearly, under Louisiana law, a mistrial
is mandatory when a prosecutor refers directly or indirectly to race or color and the
remark or comment is not material and not relevant and might create prejudice
against the defendant in the mind of the jury.” State v. Thompson, 2015-0886, p. 48
13 (La. 9/18/17), 233 So.3d 529, 559 (citing State v. Wilson, 404 So.2d 968, 970 (La.
1981)).
In the matter herein, the State contends La. C.Cr.P. art. 770 is not applicable
to this case because the racially-charged comment was made by Ms. Williamson,
who is not a court official, judge, or district attorney, and the prosecutor had no prior
knowledge of her comment. Contrary to the State's argument, a reading of the
passage shows that while the prosecutor may not have initially been aware of Ms.
Williamson’s racially-charged comment when he first inquired about Defendant’s
statements during the attack, based on Ms. Williamson’s answer to his initial
question, the prosecutor was aware of her racially-charged testimony – yet solicited
this testimony – when he repeated the same question. “Because the [racially-charged
testimony] was solicited by the prosecutor, the statement can be imputed to the
district attorney, and the trial court should have granted the mistrial under article
770.” State v. Genter, 2003-1987, p. 27 (La. App. 4 Cir. 4/7/04), 872 So.2d 552, 567.
Consequently, under the specific facts of this case, we find the trial court erroneously
denied Defendant’s motion for mistrial pursuant to the mandatory mistrial provision
of La. C.Cr.P. art. 770(1).
This Court has applied the harmless error analysis in several cases where the
trial court erred in denying a motion for mistrial based on La. C.Cr.P. art. 770. In
State v. Juarbe, this Court applied the harmless error analysis when the trial court
erred in denying a motion for mistrial under La. C.Cr.P. art. 770(2). 2001-2250, p. 8
(La. App. 4 Cir. 7/31/02), 824 So.2d 1240, 1247. Similarly, in State v. Genter, this
Court applied the harmless error analysis when the trial court erroneously denied a
motion for mistrial pursuant to La. C.Cr.P. art. 770(2). Genter, 2003-1987, pp. 26-
27, 872 So.2d at 566-67.
14 Several years later, in State v. Marlowe, this Court applied the harmless error
analysis to the trial court’s denial of a motion for mistrial under La. C.Cr.P. art.
770(1). 2010-1116, pp. 36-37 (La. App. 4 Cir. 12/22/11), 81 So.3d 944, 966
(citations omitted) (“A trial court’s erroneous denial of a motion for mistrial based
on one of the provisions of La. C.Cr.P. art. 770 is subject to the harmless error
analysis.”). In Marlowe, the defendant – a black male – was charged with attempted
second-degree murder of a white male. Id. at p. 1, 81 So.3d at 948. The defendant
was working security at a New Orleans hotel, and the victim and his companion were
guests at the hotel. Id. at p. 4, 81 So.3d at 949-50. An argument between the
defendant and victim ensued, escalated – with the defendant pulling out his ASP
baton and the parties struggling for control of the baton, and ultimately ended with
defendant shooting the victim in his face. Id. at pp. 8-10, 81 So.3d at 952-53. During
closing arguments, the prosecution made a comment that referenced getting “the fire
hoses out.” Id. at p. 33, 81 So.3d at 964. The defendant asserted this comment
constituted an indirect racial reference and moved for a mistrial, which the trial court
denied. Id. at p. 33, 81 So.3d at 965. On appeal, defendant asserted the trial erred in
denying his motion for mistrial. Id. at p. 31, 81 So.3d at 964. This Court, in
describing the prosecutor’s comment, recognized:
The prosecutor stated that he remembered a day when the police told one to do something and if one did not they pulled “this thing” out, apparently referring/gesturing to the ASP baton in evidence, followed by the comment, “[w]hat we going [sic] to get next, the fire hoses out.” Supra. This reference could not have been anything other than a reference to the use of fire hoses by authorities to control and/or disperse primarily black Americans peacefully protesting the continued systemic deprivation of their civil rights in the segregated South. That image of protestors being pummeled and knocked down by water coming from high-pressure fire hoses is integral to any complete historical film footage record of the civil rights movement.
15 Id. at p. 40, 81 So.3d at 968. This Court admitted the fire hose comment “raised the
specter of race”, however, went on to find:
[E]ven assuming the comment was of such a nature that it might have created prejudice against defendant in the mind of the jury, and thus that the trial court should have granted the motion for mistrial under La.C.Cr.P. art. 770, any such error would have been harmless because, based on the record, the verdict was surely unattributable to any such error. See State v. Higginbotham, 2011-0564, p. 3 (La. 5/16/11), 60 So.3d 621, 623 (harmless error exists where the guilty verdict actually rendered was surely unattributable to the error.).
Id. at pp. 41-42, 81 So.3d at 969.
Despite our court’s application of the harmless error analysis, more recent
jurisprudence from our superior court instructs us that the harmless error analysis
should not be applied in this present matter. In State v. Thompson, the Louisiana
Supreme Court found the appellate court erred in applying the harmless error
analysis to evaluate the effect of the trial court’s erroneous ruling in denying
defendant’s motion for mistrial pursuant to La. C.Cr.P. art. 770(1). 2015-0886, p.
55, 233 So.3d at 563. There is “the unbroken line of jurisprudence holding that an
improper appeal to racial prejudice in violation of La. C.Cr.P. art. 770(1) is per
se prejudicial and a mistrial is mandatory.” Id. at p. 52, 233 So.3d at 561. “When an
improper appeal to racial prejudice infects a proceeding, …a substantial right of the
defendant is violated, prejudice is presumed, and reversal is required.” Id. at p. 55,
233 So.3d at 563.
In Thompson, the defendant was the mayor of Jonesboro, Louisiana, and
during his second term in office was charged with three counts of malfeasance in
office. Id. at p. 2, 233 So.3d at 532. The case ultimately proceeded to a jury trial. In
his opening statement and during examination of one of the state’s witnesses, the
prosecutor made statements directly referring to race in connection with the case. Id.
16 at p. 49, 233 So.3d at 559. Specifically, during the examination of one of the state’s
witnesses, the prosecutor stated, “Mr. Purpera, there’s been allegation made…[that]
the Mayor has been harried by various conservative and or white people….” Id. at
p. 45, 233 So.3d at 557. The defendant moved for a mistrial, but the trial court denied
the motion. Id. at p. 47, 233 So.3d at 558. On appeal, the appellate court determined
that considering the injection of race into the proceedings, the trial court erred in not
granting the mistrial though such error was subject to the harmless error analysis. Id.
at p. 50, 233 So.3d at 560. The Louisiana Supreme Court agreed with the appellate
court that the trial court erred in not granting defendant’s motion for mistrial, yet
determined that such error was a structural error, not subject to a harmless error
analysis. Id. at p. 55, 233 So.3d at 565.
Louisiana Code of Criminal Procedure Article 921 provides, “A judgment or
ruling shall not be reversed by an appellate court because of any error, defect,
irregularity, or variance which does not affect substantial rights of the accused.” In
determining whether the substantial rights of the accused have been violated, the
Louisiana Supreme Court has adopted the harmless error test announced in
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and
refined by Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182
(1993). Id. at p. 52, 233 So.3d at 561. Under the harmless error test, “the inquiry ‘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 this trial was
surely unattributable to the error.’” Id. at p. 52-53, 233 So.3d at 561. However, there
are exceptions to the harmless error test that are known as structural errors. Id. at p.
53, 233 So.3d at 56. “‘The purpose of the structural error doctrine is to ensure
insistence on certain basic, constitutional guarantees that should define the
17 framework of any criminal trial.’” Id. A structural error “‘affect[s] the framework
with which the trial proceeds,’ rather than being ‘simply an error in the trial process
itself,’” and therefore “infects the entire proceeding, thereby ‘def[ying] analysis by
harmless error standards.’” Id. at p. 53, 233 So.3d at 561-62.
The Louisiana Supreme Court observed:
While the [United States] Supreme Court has not expressly ruled that an appeal to racial prejudice during the presentation of evidence or argument to the jury constitutes structural error, in our view, such an appeal carries the indicia of structural error in that racial bias implicates the defendant's right to trial before an impartial jury. Like racial discrimination in the selection of grand jurors (a structural error pursuant to Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)), the injection of racial considerations during the presentation of evidence harms not only the defendant, but “undermine[s] public confidence in the fairness of our system of justice.” Alex v. Rayne Concrete Service, [20]05-1457, [20]05-2344, [20]05-2520, pp. 23-24 (La. 1/26/07), 951 So.2d 138, 155-56 (citing Batson v. Kentucky, 476 U.S. 79, 87, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 629, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991)). Such considerations are among those that prompted this court, in Alex, supra, to reject a harmless error analysis in connection with a challenge to the discriminatory exercise of peremptory challenges pursuant to Batson/Edmonson. See Alex, [20]05–1457 at 22-24, 951 So.2d at 155-56. They are among the considerations that prompt us to conclude that an improper appeal to racial prejudice during the presentation of evidence is not susceptible to harmless error review. The right to a fair trial that is free from improper racial implications is one that serves not only to protect the defendant from a conviction founded on prejudice, but also to protect the public's confidence in the integrity of the judicial process and the administration of justice. Where the jury is improperly exposed to an appeal to racial prejudice, the impartiality of the jury as a factfinder is compromised.
Id. at p. 54-55, 233 So.3d at 562-63.
In the present case, we acknowledge that the State solicited a racially charged
comment from Ms. Williamson – her testimony that Defendant used a racial epithet
during his attack of Mr. Jackson; therefore, the trial court should have granted
Defendant’s motion for mistrial. Although it was a single occurrence, our courts
18 have recognized that “‘race is such a sensitive matter that a single appeal to racial
prejudice furnishes grounds for a mistrial….” Id. at p. 50, 233 So.3d at 560.
Accordingly, we find the trial court erred in denying Defendant’s motion for mistrial,
and the harmless error test should not be utilized to analyze the effect of the trial
court’s erroneous ruling denying Defendant’s motion for mistrial based on La.
C.Cr.P. art. 770(1). Defendant’s manslaughter conviction must be vacated, and
Defendant must be afforded a new trial. In light of this, we pretermit discussion of
the remaining assignments of error and remand this matter back to the trial court for
a new trial.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the trial court, vacate
Defendant’s manslaughter conviction and sentence, and remand this matter to the
trial court for a new trial.
REVERSED, VACATED, AND REMANDED