State of Louisiana v. Sharrieff M. Kent

• Court: Louisiana Court of Appeal
• Decided: December 6, 2022
• Docket: 2022-KA-0423
• Status: Published

Opinion

STATE OF LOUISIANA * NO. 2022-KA-0423

VERSUS * COURT OF APPEAL SHARRIEFF M. KENT * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 21-1602, DIVISION “A” Honorable Kevin D. Conner, Judge ****** Chief Judge Terri F. Love ****** (Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Pro Tempore James F. McKay, III)

Charles Ballay District Attorney Parish of Plaquemines Jason Napoli Assistant District Attorney Parish of Plaquemines 333 F. Edward Hebert Boulevard, Building 201 Belle Chasse, LA 70037

COUNSEL FOR STATE/APPELLEE

Justin Caine Harrell H2 LAW, LLC 1100 Poydras Street Suite 2900 New Orleans, LA 70163

COUNSEL FOR DEFENDANT/APPELLANT

CONVICTION AND SENTENCE REVERSED DECEMBER 6, 2022 TFL Defendant, Sharrieff M. Kent, appeals his convictions on two counts of DNA

JFM aggravated assault with a firearm, one count of aggravated criminal damage to

property, and one count of illegal discharge of a firearm.

We find the State violated Defendant’s right to due process in that it

improperly introduced evidence of other crimes and a prior conviction, in

contravention of La. C.E. art. 404(B), and violated Defendant’s Fifth Amendment

right to remain silent. Accordingly, we reverse Defendant’s conviction and

sentence.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was initially charged by Bill of Indictment with two counts of

aggravated criminal damage to property, violations of La. R.S. 14:55, and one

count of illegal use of weapons or dangerous instrumentalities, a violation of La.

R.S. 14:94(A). Thereafter, in a separate Bill of Indictment, Defendant was charged

with two counts of aggravated assault with a firearm, violations of La. R.S.

14:37.4. The charges in both Bills of Indictment were based on the same incident

in which Defendant allegedly fired his gun at two deputies with the Plaquemines

1 Parish Sheriff Office. The State later consolidated all five charges and filed a

Motion to Invoke Firearm Sentencing Provision. After a four-day jury trial,

Defendant was found guilty as charged of two counts of aggravated assault with a

firearm; one count of aggravated criminal damage to property; 1 and one count of

illegal discharge of a firearm.

Post-trial, the district court denied Defendant’s Motion for New Trial and

granted the State’s Motion to Invoke Firearm Sentencing Provision as to the two

counts of aggravated assault with firearm charges and the illegal discharge of a

firearm charge. Defendant was sentenced to six years on the two counts of

aggravated assault with a firearm convictions; five years on the aggravated

criminal damage to property conviction; and two years on the conviction for illegal

discharge of a firearm, with the sentences to run concurrently.

Trial Testimony

Detective Jennifer Daigle

Detective Daigle testified that she was a sergeant in the narcotics division of

the Plaquemines Parish Sheriff’s Office on the date that Lieutenant Christopher

Johnson and she conducted a “trash pull” at 126 Villary Street.2 She explained that

a trash pull is a “glorious name for digging in someone’s trash” and is a common

investigative tactic, specifically for investigative bureaus and narcotic divisions.

She maintained that a trash pull is legally permissible as long as the trash can that

1 Defendant was found not guilty of count three of aggravated criminal damage to property.

2 Prior to Detective Daigle’s testimony, Nataline Banks, the custodian of 911 recordings for

Plaquemines Parish, authenticated a disc with recordings of several 911 calls placed to the call center starting at around midnight of June 23, 2019 and going into June 24, 2019. The disc, which reflected that callers reported shots fired on Villary Street in Plaquemines Parish, was played for the jury.

2 is the subject of the search is on a public servitude.3 In initiating this investigative

tactic, she stated that agents “Google” the individual’s address after they obtain a

suspect’s name or a description. Upon learning the address, they investigate the

trash pickup schedule at the address and conduct the trash pull on the evening

before the pickup.

Detective Daigle testified that while conducting trash pulls, officers “try to

be discreet and try to be low key, so obviously, the dealers or the users don’t find

out that we’re specifically investigating them.” As such, officers use unmarked

vehicles, dress in dirty, dark clothing, and typically conduct trash pulls in the

evening “because it’s discreet, it’s dark, and less people are out.” Detective Daigle

relayed that during the normal work shift, the deputies obtain a list of the people

they want to investigate for a trash pull. After this testimony, Defendant moved for

a mistrial, alleging the State impermissibly referenced other crimes evidence. In

response, the State asserted that “[t]here’s nothing alleged that [the defendant has]

committed any type of crime or anything like that. There’s no bad act that’s been

committed.” The trial court denied Defendant’s motion, ruling that the State “was

entitled to provide a reason as to why they [the police officers] were out there.”

Referencing a pre-trial conference ruling, the trial court permitted the State to

mention “trash pull with [n]arcotics.” 4 However, the judge admonished the State

3 Robert Spears, the Geographic Information System (“GIS”) Manager for Plaquemines Parish,

testified that the area from the curb of a street, continuing nine feet toward private properties, is public property. After being shown a photograph of the front of Defendant’s address at 126 Villary Street, Mr. Spears stated that based on the photograph, the trash can was within nine feet of the public servitude. Mr. Spears acknowledged that he did know where the trash can was positioned on the night of the incident. 4 The trial transcript revealed comments from the trial judge which indicated that the admissibility of evidence relative to the trash pull investigation had been the subject of an in- chambers conference and a pre-trial ruling. The trial judge noted that “I gave you guys permission when we had this conference that because of the fact, factually, the State, in my

3 that Defendant was not on trial for any kind of narcotics crime and that he would

consider a mistrial in the event the State continued to dwell on the narcotics issue.

Upon resumption of her testimony, Detective Daigle testified that on the day

of Defendant’s trash pull, she and Lieutenant Johnson were travelling in Lieutenant

Johnson’s black F-150 pickup truck. She said the officers pulled up next to the

trash can that was on the servitude at 126 Villary Street. Lieutenant Johnson

stopped the truck, and Detective Daigle exited the vehicle. She said it was very

dark, like looking in a black hole. Attempting to conceal herself, Detective Daigle

walked alongside the vehicle. As she walked on the side of the truck, she looked

into the trash can and saw a white bag. After Detective Daigle grabbed the bag,

she heard an angry male scream, “Hey. Hey … What are you doing?” In response

to hearing the voice, she said “I obviously heard someone who was very angry and

I just thought to myself, all this effort for nothing and now he’s going to know, you

know, we’re investigating him.” Defendant objected to this testimony and moved

again for a mistrial. The trial judge denied the motion, reasoning that Detective

Daigle’s testimony had not reached the level to declare a mistrial.

After the second mistrial motion was denied, Detective Daigle stated that

after she heard Defendant yell, she threw the trash bag she had grabbed in to the

back of the F-150. She yelled to Lieutenant Johnson “to go.” As he pulled off, she

hopped into the passenger seat and turned to see the location of the person who

was following her. At that time, she saw a white flash, heard five to seven

gunshots, and crawled onto the floorboard of the truck. Detective Daigle testified

opinion, was entitled to provide a reason as to why they were out there. And I indicated to you that the trash pull with [n]arcotics, if it was just generally stated that’s the reason for the trash pull, you leave it at that and you don’t dwell on it and keep focusing on that.” Both the State and Defendant mentioned the pre-trial ruling in briefs. However, the appellate record contains no transcript of the conference and the in-chambers conference does not appear in a minute entry.

4 that at the time of the gunfire, Lieutenant Johnson’s vehicle was two to three

houses past Defendant’s residence. She said that one shot hit the rear passenger

tire. Detective Daigle asserted that she was not armed on that evening and that she

did not reach for her waistband.

On cross-examination, Detective Daigle acknowledged that she could

certainly “understand why someone would be concerned about an individual on or

near their property concealing themselves in dirty, dark clothes with gloves on in

the middle of the night.” She verified that she was not in a police uniform, did not

wear a visible badge, was in an unmarked vehicle that did not display any lights,

and never announced herself as a law enforcement officer to Defendant. She

described the area as being dark, like a black hole. Detective Daigle reiterated that

the only bullet hole to the vehicle was to the bottom rear passenger tire. She

confirmed that she did not ever see any narcotics at 126 Villary Street.

Lieutenant Christopher Johnson

Lieutenant Johnson confirmed that he participated in the trash pull at

Defendant’s house with Detective Daigle. Lieutenant Johnson testified that

photographs of 126 Villary Street depicted a brown spot in the grass about a foot

from the curb, indicating that the trash can had been left in the same place for a

period of time. Lieutenant Johnson verified that the trash can was about a foot

from the curb when Detective Daigle and he arrived. Lieutenant Johnson heard

Detective Daigle open the lid of the trash can, and then he heard a loud, angry male

voice scream, “Hey. Hey, … What are y’all doing?” At this point, Lieutenant

Johnson said Detective Daigle screamed for them to go. Lieutenant Johnson

explained that he did not get out of the truck and identify himself to Defendant

because, based on his twenty years of law enforcement, he did not believe that the

5 man’s anger would quickly dissipate. Rather, he believed that driving away would

deescalate the situation. As he drove away, about six shots were fired when he was

two to three residences from 126 Villary Street. He testified that Detective Daigle

was not armed, and it would have been extremely dangerous for her to have

reached for her waistband. Lieutenant Johnson added that neither he nor Detective

Daigle entered Defendant’s private property and that they made no threatening

gesture towards Defendant.

Chief Deputy Lon Boudreaux

Chief Deputy Boudreaux testified that on the evening of the incident, he was

advised that two narcotics deputies had come under fire while conducting a trash

pull. He was also informed that the suspected shooter had retreated into the home

at 126 Villary Street, was barricaded inside, and was not coming out. Chief

Deputy Boudreaux said Defendant left the house about an hour after a Swat Team

had been set up around Villary Street. Chief Deputy Boudreaux was present when

Defendant was administered Miranda warnings5 and placed under arrest by

Lieutenant John McDaniel. He testified that Defendant asked why he was being

placed under arrest. When Defendant was told that he was under investigation for

illegal discharge of a firearm, Defendant stated, “I shot at the black F-150. I have a

right to protect my property. They were stealing my garbage.” Chief Deputy

5 See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed. 2d 694 (1966), in

which the Court outlined the warnings a person subject to police interrogation must receive as follows:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.

6 Boudreaux said Defendant’s statement was unsolicited. Defendant was arrested

after he made the statement. Chief Deputy Boudreaux secured Defendant’s house

when Defendant and his fiancée advised that there were children in the house and

Defendant admitted that there were weapons in the house. Chief Deputy

Boudreaux said that a search of the house uncovered ammunition, two long guns, a

handgun, a .22 rifle, and a crack barrel shotgun.

On cross-examination, Chief Deputy Boudreaux testified that none of the

firearms located in the house were possessed illegally. He also stated that there

was never a stand-off in which Defendant had barricaded himself in his home.

On re-direct examination, Chief Deputy Boudreaux testified that Defendant

was given the opportunity to give a full recorded statement. However, Defendant

did not provide a statement and invoked his right to remain silent.

Lieutenant John McDaniel

Lieutenant McDaniel testified that he responded to a radio call from

Detective Daigle. In the call, Detective Daigle said that she was being fired upon

and needed assistance. Lieutenant McDaniel advised that he handcuffed and

arrested Defendant after Defendant came out of his Villary Street house. When

Defendant asked why he was being handcuffed, Lieutenant McDaniel immediately

Mirandized him. Lieutenant McDaniel relayed that Defendant acknowledged that

he understood his rights and said, “I shot at a black F-150. I have a right to protect

my property. They were stealing my garbage.”

Detective Brett Taylor

Detective Taylor, the lead detective on the case, testified that he was notified

of a shooting and told to go to the scene. He stated that he collected .40 caliber

shell casings from the public servitude, and that photographs were taken of the

7 casings and skid marks from bullets coming off the street. The casings were

submitted for ballistics testing. Detective Taylor testified that the shots fired hit

the F-150’s right rear tire, a fence, and a neighboring house. Detective Taylor

testified that no one questioned Defendant prior to the time he was handcuffed.

However, after Defendant was advised of his rights, Defendant stated, “I shot at

that black F-150. They were stealing my garbage. I have a right to defend my

property.” Detective Taylor asserted that Defendant had an opportunity to provide

a written or recorded statement; however, Defendant was not willing to provide a

statement. Detective Taylor also testified that Defendant never told Detective

Taylor that he would provide a statement if his lawyer was present. The defense

objected to this testimony and moved for a mistrial, arguing that the questions

relative to Defendant’s willingness to give a statement went to Defendant’s right to

exercise his Fifth Amendment right to remain silent. The trial court overruled the

objection, finding the State’s questions were proper in that they only concerned

Defendant’s opportunity to give a statement.

Lieutenant Curt Johnson

Lieutenant Johnson testified that he participated in the search of Defendant’s

residence. The search led to the discovery of an AK-47 style rifle and multiple

magazines, an AR-15 in a rifle case, a shotgun, a .22 caliber long rifle, and a .40

caliber handgun. A second .40 caliber firearm was found in one of Defendant’s

vehicles. Lieutenant Johnson noted that the only weapon that was used in the

incident was the .40 caliber handgun found in Defendant’s bedroom.

Emily Terrebonne

Ms. Terrebonne, who was qualified as an expert in the field of firearms and

tool mark identification, authored the ballistics report which was entered into

8 evidence. Ms. Terrebonne tested both .40 caliber handguns recovered and

compared them to the shell casings that were found on the scene. All four shell

casings collected from the scene matched one of the .40 caliber handguns.

Defendant Sharreiff M. Kent

Defendant testified that he lived at 126 Villary Street with his children and

his fiancée. He stated that about a year and a half before the arrest incident, his

house was burglarized while the family was on vacation. On the evening of the

trash pull, he said that he returned home just before midnight. The street was very

dark, and he pulled into the driveway and sat in his car “playing” on his cellphone.

While still in the car, he saw a dark truck pull up between his property and the

neighbor’s property on the right. The truck’s lights were out. Defendant said he

suspected that similar to the earlier event, someone may have thought he was out

of town and was attempting to break into his house. Defendant testified that he

saw a person exit the vehicle. The individual was wearing dark clothing, boots and

gloves and was ducking down as if trying to hide, “like a criminal would do.”

When the person arrived at the fence line of Defendant’s property, Defendant

shouted, “hey, what are you doing?” The individual, who Defendant believed was

male, did not respond, but rather ducked and reached for something in his

waistband. Defendant said that he was afraid and knew he had to stop this person

from entering his house. Thinking the person had a gun, Defendant fired his gun.

Defendant said “[t] he person turned and started going in the direction of the truck

as if they’re going to grab something out.” Defendant testified that he had to

“think really fast and very quick because I don’t know if they … if there’s

something big in that – Anything that basically can stop me.” He averred that “[i]f

they stop me, then I know my family don’t [sic] have a chance.” Defendant

9 further testified that the individual was approaching his fence line area when he

fired, and that the trash can was not on the curb; instead, it was on his private

property. He testified that only a dirty diaper and a food takeout container were in

the trash can. The defense introduced into evidence a photograph of the trash can

to corroborate its contents.

Defendant said that he still suffered from anxiety “for having had to fire

[his] weapon at someone.” He testified that this incident was the first time he had

to fire his gun; he only fired it at the shooting range. He believed that he fired

about six shots. He testified that when he fired the first shot, the vehicle was in the

same spot as it was when it had pulled up, and the individual who exited the

vehicle was about five feet away from him. As he fired the weapon, the individual

ran back to the truck, and the truck spun out and drove away. He denied that he

fired at the truck as it was going down the street. He watched the vehicle go down

the street and then ran into the house and checked on his family. He claimed he

did not call police because he was afraid. His fiancée woke up, and he tried to

explain to her what had happened. While his fiancée and he were talking, she

received a phone call from her father. Her father told her that the police said that

“your husband need to come outside. The house is surrounded.” He said that prior

to that phone call, no one had contacted Defendant to get him to leave his house.

After the phone call, Defendant exited the house. As soon as he opened the door,

he saw at least fifty officers with AR-15s pointed at him. The officers ordered

Defendant and his fiancée to the ground; they both laid on the pavement in the

middle of the street. He was then handcuffed and placed on the curb. Defendant

said he asked why he was being arrested, and the police chief answered the arrest

was for illegal discharge of a firearm. Defendant denied that he made the

10 statement that “I know my rights. I have the right to protect my property. They

were stealing my garbage.” Defendant asserted that he fired his weapon to protect

his family “because they was [sic] coming up my property line.” Defendant

testified that the officers asked him to give a statement after he had been charged.

His response was that “I’m not speaking without an attorney present.”

On cross-examination, Defendant answered “[t]hat’s also correct” to the

State’s question that “you never bring your guns out unless you go to the gun

range, right?” The State then asked Defendant to “[t]ell the jury about the time he

pulled a gun on Deputy Joey Rees with the Sheriff’s Office and was convicted of

Interfering with a Police Investigation.” The defense moved for a mistrial. The

trial court denied the motion, reasoning in part, that it was not convinced that the

State’s cross-examination of Defendant relative to the facts of the previous

conviction was clearly prejudicial. When the State’s cross-examination resumed,

Defendant denied there was a 2017 incident in which he drew his weapon on

Deputy Rees with the Plaquemines Parish Sheriff’s Office and denied that he heard

the officer say numerous times that “I’m with the Sheriff’s Office. Place your

firearm down.” Defendant maintained that he complied with the officer once he

found out that he was with the Sheriff’s Office. The State then asked why was

Defendant convicted of Interfering with a Police Investigation if Defendant had

complied and acted within reason. In response, the defense again moved for a

mistrial, which the trial court denied. The trial court stated that it would allow the

State to ask about the actual 2017 conviction. Defendant admitted that he was

convicted of Interfering with a Police Investigation. However, he denied that the

basis for the conviction was a result of drawing his firearm on a police officer.

11 On redirect examination, Defendant maintained that he never saw Detective

Daigle look in his trash can. Further, he testified that he did not leave his trash can

on the curb; rather, the trash can was within his property line. Defendant stated

that Detective Daigle was facing Defendant, approximately five feet away, at the

time he fired. He alleged that she was on his property at the time, “almost mid-

point of the yard.” Defendant said he fired multiple shots at the truck; however, he

missed. Defendant maintained that he did not make a statement after he was

Mirandized.

ERRORS PATENT

A review of the appellate record reveals no errors patent.

DISCUSSION

Defendant raises four assignments of error. He contends that (1) his due

process rights were violated when the trial court admitted evidence of an

unadjudicated criminal narcotics investigation; (2) his due process rights were

violated when the trial court admitted facts pertinent to Defendant’s prior

misdemeanor conviction; (3) his Fifth Amendment rights were violated by the

State’s reference to his post-arrest, post-Miranda silence; and (4) the trial court

abused its discretion by failing to grant the motion for a new trial.

Assignment of Error Number 1: Due Process Violation/ Evidence of Criminal Narcotics Investigation

In Defendant’s first assigned error, he complains that his due process rights

were violated because the trial court permitted the State’s witnesses to repeatedly

testify that he was the target of a criminal narcotics investigation. Defendant

specifically cites Detective Daigle’s testimony wherein she testified that she was a

narcotics agent; referenced the use of trash pulls as an investigative tactic in

12 narcotics investigations; and her assertion that her investigation was compromised

because Defendant knew he was under investigation after he saw Detective Daigle

near his trash can. Defendant argues that the admission of this testimony

highlighted that he was under investigation for a narcotics violation at the time of

his arrest and depicted him as a criminal and gave the impression that the shooting

was likely motivated to protect his “felonious enterprise,” all in contravention of

Louisana Code of Evidence art. 404(B)(1). That article provides the following:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In general, the article excludes evidence of other crimes, or bad acts committed by

a defendant at trial due to the risk of grave prejudice to the defendant. See State v.

Prieur, 277 So.2d 126, 128 (La. 1973). The Prieur Court reasoned that “[t]he

probative value of evidence of unrelated offenses in relation to the charged offense

should therefore be weighed in light of its possible prejudicial effect, its tendency

to influence the triers of fact improperly as to the [current] guilt of the accused.”6

Id. See also State v. Kahey, 436 So.2d 475, 487 (La. 1983) (“The introduction of

such evidence merely to prove that the defendant is a ‘bad man’ involves

constitutional problems because of the danger that a defendant may be tried for a

6 The Louisiana Supreme Court abrogated Prieur on other grounds in State v. Taylor, 2016-1124,

p. 10 (La. 12/1/16), 217 So.3d 283, 291 (‘when seeking to introduce evidence pursuant to La. C.E. art. 404(B), the state need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act).

13 charge of which he has no notice, for which he is unprepared, and which unfairly

prejudices him in the eyes of the jury.”).

However, evidence of other crimes may be introduced if the evidence is

independently relevant or when it relates to conduct that “constitutes an integral

part of the act or transaction that is the subject of the present proceeding,” formerly

referred to as res gestae. See La. C.E. art. 404(B)(1); State v. Norah, 2012–1194,

p. 27 (La. App. 4 Cir. 12/11/13), 131 So.3d 172, 190. “Res gestae events

constituting other crimes are deemed admissible because they are so nearly

connected to the charged offense that the state could not accurately present its case

without reference to them.” State v. Taylor, 2001-1638, p. 10 (La. 1/14/03), 838

So.2d 729, 741. Using res gestae, the State completes “the story of the crime on

trial by proving its immediate context of happenings near in time and place.” Id.,

2001-1638, p. 11, 838 So.2d at 742.

In this case, the defense twice requested a mistrial during Detective Daigle’s

testimony. Defendant’s first request for a mistrial came after Detective Daigle

made repeated references to her status as a narcotics officer, described in detail the

mechanics of a trash pull as an investigative tactic for narcotic offenses, delineated

the process by which a suspect is identified for purposes of a trash pull

investigation, and emphasized that trash pull investigations are discreet so “the

dealers or the users don’t find out that we are specifically investigating them.” In

an apparent application of the res gestae doctrine, the trial court denied the motion

for mistrial. The trial court determined that the State was “entitled to provide a

reason as to why they were out there” and permitted the State to elicit general

testimony about the trash pull investigation “with Narcotics.” However, the trial

14 court cautioned the State that it had placed limits on that testimony, opining as

follows:

THE COURT:

Yes. The thing of it is, Mr. Napoli, is the focus here. He’s not on trial for any type of Narcotics violation. Period. And I don’t like the fact that you guys keep dwelling on the issue with narcotics and go through the whole history and go through the whole history, “How do you do Narc - - blah, blah, blah, blah, blah[.]” That’s all irrelevant because this isn’t a narcotics case.

The fact that you’ve established the pull, I allowed that. The fact of how the pull is used - - is constantly used as doing that. But I think it’s time to move on. Okay? And I don’t want the jury to be painted a picture that this guy’s a bad guy and is being investigated for something that there’s absolutely no evidence is going to be entered into the record that he’s involved in any way, shape, whatsoever with narcotics.

So the only reason I let you in was to explain what they were doing, why they were there. But we don’t need to get a whole history of everything to do with the Narcotics Squad. Okay?

Defendant argues that its second request for a mistrial should have been

granted based on Detective Daigle’s testimony after her examination resumed.

Defendant asserts that Detective Daigle’s testimony that “all this effort for nothing

and now he’s going to know, you know that we’re investigating him” continued

the State’s improper focus on the fact that Defendant was the subject of a criminal

narcotics investigation, notwithstanding the trial court’s admonition. We agree.

Even when bad acts and other crimes evidence is offered for an otherwise

admissible purpose, the trial court must still balance the probative value of the

evidence before the evidence can be permitted. See La. C.E. art. 403.7 As

discussed in Prieur, 277 So.2d at 128-29, the purpose of the prohibition against the

7 La. C.E. art. 403 states that “[a]lthough relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay or waste of time.”

15 admissibility of character and other acts of misconduct evidence is to negate the

possibility that a jury might be improperly influenced to convict a defendant of the

current offense as result of its perception of defendant as a bad man based on the

prior bad act. In the matter sub judice, when we balance the admissibility of

evidence under the res gestae doctrine against the purpose behind excluding bad

acts and other crimes evidence, Detective Daigle’s testimony went beyond the

need to explain the officers’ presence on the scene to conduct the trash pull

investigation; and instead, prejudiced Defendant with his depiction as a drug

offender. The trial court allowed the State to give detailed and repetitive testimony

about trash pull investigations to justify the officers’ presence on the scene. This

excessive focus to explain the officers’ presence was unwarranted as the officers

were not on trial for any offense; and moreover, the explanation of their presence

and the repeated references that Defendant was the subject of the trash pull

‘narcotics” investigation were not probative of Defendant’s guilt on the present

charges.

An appellate court will not disturb a trial court’s ruling on the admissibility

of other crimes evidence absent an abuse of discretion. See State v. Hickerson,

2019-1077, p. 22 (La. App. 4 Cir. 12/30/20), 312 So. 3d 1124, 1140. Upon review,

Detective Daigle’s testimony, which needlessly emphasized that Defendant was

the subject of a criminal narcotics investigation, was more prejudicial than

probative. Accordingly, we find the trial court abused its discretion in allowing the

testimony to be admitted into evidence.

Assignment of Error Number 2: Prior Misdemeanor Conviction /Due Process Violation

16 Defendant complains in his second assignment of error that “[t]he State

violated [his] due process right by improperly impeaching [him] regarding a prior

misdemeanor conviction and using the opportunity to introduce unsubstantiated

and uncorroborated extrinsic ‘evidence.’” This alleged error arises out of the

State’s introduction of Defendant’s prior 2017 misdemeanor conviction for

Interfering with a Police Investigation.

Defendant maintains that the State introduced the prior conviction without

giving reasonable notice as required by La. C.E. art. 404(B)(1), improperly used

the prior conviction for impeachment purposes, and exceeded the scope of the

parameters fixed by La. C.E. art. 609.1 to examine witnesses regarding prior

convictions. As discussed below, upon review of Defendant’s direct and cross-

examination testimony, Defendant’s arguments have merit.

Impeachment

The parties do not dispute that the State gave no notice of its intent to use

Defendant’s prior conviction. However, the State contends that pursuant to La.

C.E. art. 607(C), 8 it did not have to provide notice because it was permitted to

introduce Defendant’s prior conviction to impeach Defendant’s testimony that he

only brought out his guns at the gun range.

Defendant’s testimony regarding the use of his guns was addressed in the

following testimony:

DIRECT EXAMINATION BY MR. CARTER:

Q. Now, Mr. Kent, I can’t speak for the jury but me, myself, I’ve never had to fire a weapon at someone. Can you explain to us the

8 La. C.E. art. 607(C) states that “[e]xcept as otherwise provided by legislation, a party, to attack

the credibility of a witness, may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony.”

17 feeling you had? Were you afraid, were you excited to do it? Like, what were you feeling in that moment?

A. Even now, two years later, I’m still suffering from anxiety. I have never fired my weapon at anybody. That was the first time I had to use my gun. I only use it at the shooting range. So at the time, very nervous, shaky, frantic, static. Like, talking about it right now is making me feel uncomfortable. It -- It just -- It does something to you. It had me all over the place. Took me a while to just calm down and grasp reality.

The following exchange took place on the State’s cross-examination of

Defendant as to when Defendant “brought out” his guns:

CROSS-EXAMINATION BY MR. NAPOLI:

Q. Mr. Kent, one of the things you said is that you suffer from great anxiety because you had to use your firearm in this incident, is that correct?

A. That’s correct.

Q. All right. You said you never bring your guns out unless you go to the gun range, right?

A. That’s also correct.

Q. Okay. So the only time - - You have your guns in your house, and the only times you’ve ever brought them out is when you go to the gun range, practice shooting?

A. If I’m going out late hours I have my handgun on me, yes.

Q. Okay. Tell the jury about the time you pulled a gun on Deputy Joey Rees with the Sheriff’s Office and was convicted of Interfering with a Police Investigation.

MR. CARTER:

Objection.

Q. Tell the jury about the time you pulled the gun out that time.

Object. Move for mistrial and I’d ask to approach.

18 Although the State asserts that it introduced the prior conviction to impeach

Defendant’s testimony that he only brings out his guns at the gun range, close

scrutiny of Defendant’s testimony finds no documentation of this specific assertion

on direct examination. As referenced hereinabove, on direct examination,

Defendant was asked by his counsel to describe the feelings he experienced in the

moment when he had to fire his weapon at someone. In response, Defendant

testified that he had never fired his gun at anybody before and “[t]hat was the first

time I had to use my gun. I only use it at the shooting range.” Taken in its context,

Defendant’s direct testimony expressed that he suffered anxiety because, outside of

his firing his gun during the incident herein, he had only fired or used his gun at

the shooting range.

As to Defendant’s testimony on cross-examination, the record supports that

Defendant responded “[t]hat’s also correct” to an assertion posed by the State that

“[y]ou said you never bring your guns out unless you go the gun range, right?”9

However, Defendant also added that “[i]f I’m going out late hours I have my gun

on me.” In this testimony, Defendant clearly established that he brought out his

guns not only when he was at the gun range, but also when he went out late at

night. Accordingly, upon reviewing Defendant’s testimony in context and its

totality, this Court finds Defendant made no inconsistent statement regarding

“bringing out his guns” to permit the State to introduce his prior conviction to his

attack his credibility or truthfulness on that issue.

9 Although Defendant answered “[t]hat’s also correct” to the State’s question that he never

brought out his guns unless he was at the gun range, we reiterate that our review of the record finds no testimony by Defendant on direct examination wherein he expressly testified that “[I] never bring [my] guns out unless [I] go to the gun range.” Thus, the State mischaracterized Defendant’s direct testimony in formulating its question to Defendant on cross-examination.

19 La. C.E. art. 609.1

Notwithstanding that the State did not have grounds to use Defendant’s prior

conviction for impeachment purposes, the State properly represents that it also was

entitled to cross-examine Defendant as to his prior conviction in accordance with

La. C.E. art. 609.1, which permits a witness who testifies to be examined regarding

his prior convictions. Therefore, when Defendant testified as a witness in this

matter, Defendant subjected himself to cross-examination on his criminal

conviction. Defendant counters that although art. 609.1(A) allows a witness to be

examined as to his criminal conviction, art. 609.1(C) places limits on that

examination which the State exceeded.

The framework to examine a witness regarding his criminal convictions is

outlined in La. C.E. art. 609.1 as follows:

A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.

B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.

C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:

(1) When the witness has denied the conviction or denied recollection thereof;

(2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction; or

(3) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.

20 Defendant specifies that the State exceeded the parameters of La. C.E. art.

609.1(C) in that the article provides that ordinarily, only the fact of the conviction,

the name of the offense, the date of the offense, and the sentence imposed are

admissible; and permits the details of the conviction to be admitted when

Defendant denies the conviction or when the probative value outweighs the danger

of unfair prejudice. Upon reviewing the State’s cross-examination of Defendant

regarding his prior 2017 conviction, we agree with Defendant that the State failed

to meet the prerequisites to cross-examine Defendant on the underlying details of

Defendant’s prior conviction.

The State’s cross-examination of Defendant in regards to his prior

conviction included the following:

Q. Mr. Kent, in 2017, did you draw your firearm on Deputy Rees with the Plaquemines Parish Sheriff’s Office?

A. No.

Q. You didn’t?

Asked and answered.

CROSS-EXAMINATION BY MR. NAPOLI

Q. It’s your testimony that in 2017, there was not an incident where you drew your weapon on a member of the Sheriff’s Office?

A. No, it isn’t.

Q. Okay. You recall an incident when a Sheriff’s deputy came to your property conducting an investigation and you came out with a gun?

A. No, it didn’t happen that way.

21 Q. Didn’t happen that way? Do you recall the deputy telling you numerous times, while in uniform, “Put your gun down. Put your gun down,” and you refused?

A. It was late at night, dark as is the night of this last incident. And I had people in my backyard about one o’clock in the morning. My dogs woke me up with a loud barking. I have about five dogs and they all barked very loud, very vicious. I woke up out of my bed, put on a robe. I grabbed my firearm and I looked out my patio door.

Q. And when you went outside you saw Deputy Rees in uniform and you were armed with a firearm, correct?

A. I never went outside.

Q. Did you open the door?

A. I opened it, yes.

Q. And Deputy Rees, in full uniform told you numerous times to put down your firearm, correct?

A. Deputy Rees wasn’t identified at the time.

Q. What was he wearing? A. It was black, so I couldn’t see anything, so I - -

Q. Oh, so it’s your - -

A. - - asked him to come to the front of my house so I can identify him as a police officer.

Q. He said numerous times, “I’m with the Plaquemines Parish - -

Objection. ....

Q. Mr. Kent, is it your testimony that you didn’t hear the officer saying numerous times “I’m with the Sheriff’s Office. [Please] place your firearm down?

A. That’s my testimony. No, I did not hear the officer.

22 Q. Okay. So you had no idea that was a Sheriff’s Officer who was demanding numerous times for you to put your firearm down. That’s your testimony?

A. I found out that he was a Sheriff’s officer when I asked him to come to the front of the house and identify hisself [sic] properly and leave the backyard so that I can know who he is. After that point, he took a flashlight and flashed it on his body illuminating hisself [sic] because like I said, it’s really dark. Illuminating his badge, his uniform, his gun, and then he asked me, “Now, can you see that I’m an officer?” “Yes, I can.” And then after that point, I complied.

Q. Okay. And Mr. Kent, if you complied and acted completely within reason, why were you convicted - -

Q. - - of interfering with a Police Investigation?

Objection. Objection. I would move for a mistrial again.

Defendant’s motion for a mistrial was denied, and the State resumed its cross- examination as follows:

Q. You were convicted of Interfering with a Police Investigation based on your drawing that firearm, correct?

A. That’s incorrect?

Q. You weren’t convicted of Interfering with a - -

Asked and answered. ....

Q. Mr. Kent, so is it your testimony you were not convicted of Interfering with a Police Investigation?

23 A. Yes, of a Police Investigation, not of a firearm.

Q. So you were convicted of that, correct?

A. Which one?

Q. Of Interfering with a Police Investigation - -

A. Yes.

Q. Based on that interaction with Joey Rees, correct?

Q. Oh, what was it based on, then?

A. It was based on the dispute we had. Me identifying him as a police officer.

Q. And in the end, you ended up convicted of a crime for that dispute, correct?

Objection. Asked and answered.

Yes. Sustained. He - - He had already admitted he was convicted.

With regards to details of the prior conviction, La. C.E. art. 609.1(C)

provides that ordinarily, only the fact, name, and date, and sentence imposed are

admissible. Underlying details of the offense are allowed under certain conditions,

including when the witness has denied the conviction or when the probative value

outweighs the danger of unfair prejudice and the risk of confusing or misleading

the jury. See La. CE. art. 609.1(C)(1) and (C)(3).10 Upon reviewing the State’s

cross-examination of Defendant in the instant matter, we find the State did not

10 As previously referenced, details of the witness’ prior offense may be also be offered under

La. C.E. art. 609.1(C)(2), “[w]hen the witness has testified to exculpatory facts or circumstances surrounding the conviction.” However, that exception does not apply to the facts of the present matter.

24 meet any of the conditions to examine Defendant as to the underlying details of his

prior conviction.

We first note that in contravention to La. C.E. art. 609.1(C), which

ordinarily limits examination as to the details of a conviction to the fact of the

conviction and the name, date, and sentence imposed, the trial court improperly

permitted the State to cross-examine Defendant as to the underlying details behind

the conviction before Defendant was asked to admit or deny the admissible details

permitted by art. 6091(C). When directly asked near the end of the State’s cross-

examination, Defendant admitted that he had been convicted of the prior offense—

The failure to allow Defendant to first admit or deny the admissible details

of a conviction as allowed by La. C.E. art. 609.1(C) was exacerbated by the fact

that the trial court allowed the State to cross-examine Defendant on the State’s

version of the details surrounding the prior conviction, namely, that Defendant’s

conviction of the prior offense resulted because Defendant pulled his gun on a

deputy sheriff was the underlying reason for the conviction, without requiring the

State to offer any evidence in support of the State’s version. Specifically, the

State did not offer any testimony from the officer involved in the prior conviction,

testimony from any other witness, and any supporting documentary evidence.

Thus, we conclude that the sequence of the State’s cross-examination of

Defendant regarding the details of the prior conviction was improper. The trial

court not only impermissibly allowed the State to question Defendant about

unsubstantiated, unsworn details of the prior conviction, but also one of the

grounds permitted by La. C.E. art. 609.1(C)(1) to examine Defendant about the

25 underlying details of his prior conviction—denial of the conviction—would have

been eliminated had Defendant been allowed to first admit to the prior conviction.

The underlying details of a criminal conviction may also be introduced into

evidence when the probative value outweighs the danger of unfair prejudice to a

defendant or the risk of confusing or misleading a jury. See La. C.E. art.

609.1(C)(3). The State, however, also did not meet those grounds in this matter.

The State’s version of the details of Defendant’s prior conviction for Interfering

with a Police Investigation was not probative of any facts regarding the present

charges. The facts of the present case are clearly distinguishable. Notably, unlike

the prior conviction, in the present matter, it is undisputed that the officers never

identified themselves as officers at any point during the incident in which

Defendant discharged his weapon. Detective Daigle’s and Lieutenant Johnson’s

testimony established that they intentionally concealed their identities as law

enforcement; moreover, the State did not offer evidence that Defendant

purposefully fired at known police officers. Hence, the State’s cross-examination

of Defendant regarding the prior conviction was unduly prejudicial in that it

permitted the State to depict Defendant to the jury as someone who had a history of

drawing his weapon on law enforcement without cause.

Based on the foregoing, the trial court erred in allowing the State to cross-

examine Defendant on the underlying details of his prior conviction.

Assignment of Error Number 3: Fifth Amendment Violation

In his third assignment of error, Defendant contends that his Fifth

Amendment rights were violated by the State’s reference to his post-arrest, post-

Miranda silence. Defendant cites the following testimony as improper references:

(1) the testimony of Chief Deputy Boudreaux wherein the State questioned the

26 Chief Deputy as to whether Defendant was given an opportunity to prepare a

recorded or written statement; (2) the testimony of Lieutenant McDaniel who

reiterated that Defendant’s statement about shooting at a black F-150 was never

recorded or reduced to writing; and (3) Detective Brett Taylor’s testimony that

Defendant was not willing to give him a written statement and that Defendant did

not say that he would give a statement if his lawyer was present. Defendant asserts

that these references to his silence were impermissible regardless as to whether

they were intended to implicate his guilty mind or refute his version of the facts.

In support of his position, Defendant cites Doyle v. Ohio, 426

U.S. 610, 96 S.Ct. 2240 (1976).

In Doyle, the prosecution contended that questions relative to the

defendants’ silence were used only to impeach their testimony as to the

circumstances leading to their arrests; however, the Court agreed with the

defendants’ claim that their due process rights had been violated by these

references, holding that “the use for impeachment purposes of petitioners’ silence,

at the time of arrest and after receiving Miranda warnings, violated the Due

Process Clause of the Fourteenth Amendment.” Id., 426 U.S. at 619, 96 S.Ct. at

2245.

Our review of the trial record herein reveals that the State’s examination of

its witnesses not only concerned Defendant’s opportunity to provide a statement,

but also focused on Defendant’s willingness to give a recorded or written

statement. In particular, the State’s questioning of Chief Deputy Boudreaux and

Detective Taylor about Defendant’s unwillingness to provide a statement

improperly referenced Defendant’s Fifth Amendment right to remain silent. In

27 Chief Deputy Boudreaux directly verified that Defendant invoked his right to

remain silent in response to the State’s questioning. As such, the State’s questions

fall within the purview of Doyle. The questions should not have been asked as

they violated Defendant’s Fifth Amendment right against self-incrimination and to

remain silent.

Harmless Error

Notwithstanding the errors cited herein, our jurisprudence holds that trial

court errors are not necessarily fatal unless the defendant can demonstrate

prejudice. Hickerson, 2019-1077, p. 21, 312 So.3d at 1139. Hickerson recognized

that the Louisiana Supreme Court has adopted the “harmless error” test established

by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87

S.Ct. 824, 17 L.Ed. 2d 705 (1967), which “asks whether there is a reasonable

possibility that the erroneously admitted evidence might have contributed to the

conviction and requires that the reviewing court be able to declare a belief that the

error was harmless beyond a reasonable doubt.” Id., 2019-1077, p. 21, 312 So.3d

at 1139-40. See also State v. Johnson, 1994-1379, pp. 14-18 (La. 11/27/95), 664

So. 2d 94, 100-02 (errors leading to improper admission of evidence subject to

harmless-error analysis; error harmless if verdict “surely unattributable” to

error)(quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124

L. Ed. 2d 182 (1993)). The State has the burden of proof to prove harmless error.

Hickerson, 2019-1077, p. 21, 312 So.3d at 1140). In considering the evidence

admitted at trial in the case sub judice, the State did not meet its burden of proof.

The State’s introduction of bad acts and other crimes evidence ordinarily

excluded by La. C.E. art. 404 painted Defendant as a “bad guy.” The State’s

28 excessive emphasis on Defendant as the subject of a criminal narcotics

investigation defined him as a possible drug user or dealer. The State’s

introduction of Defendant’s prior misdemeanor conviction for Interfering with a

Police Investigation allowed the State to characterize Defendant as someone who

was hostile to law enforcement and had a history of using his weapon against law

enforcement without cause. Defendant’s alleged bad guy persona and general

uncooperative interaction with law enforcement was further underscored by the

State’s improper reference that Defendant had refused to provide a statement to the

officers on the scene and had invoked his Fifth Amendment right to remain silent.

The State reliance on these errors in its closing argument underscores that

these errors may have misled or confused the jury. The State magnified its

personification of Defendant as a bad guy in stressing the dangers faced by the

“good guy” police officers in performing their jobs, arguing “[b]ut what they

[police officers] do expect is when they put their life [sic] on the line and someone

tries to take that life, that the citizens of this parish hold that individual

accountable.” In comparison, the State specifically argued that the “bad guy”

Defendant drew his gun on another officer in 2017 and proclaimed that Defendant

“tried to kill those officers” in reference to the present charges. These arguments

were made notwithstanding that the State offered no evidence that Defendant

knowingly fired at police officers in the present offense or to corroborate that

Defendant’s prior conviction resulted from having drawn his weapon on an officer.

Moreover, the State’s closing argument highlighted that Defendant had invoked his

Fifth Amendment right to remain silent by emphasizing that Defendant was given

an opportunity to give a recorded statement and refused to do so.

29 As noted in Johnson, 1994-1379, p. 18, 664 So.2d at 102, in determining

whether an error was harmless, a reviewing court must decide whether the verdict

rendered was “surely unattributable” to the error. We find that the State’s errors

regarding the introduction of other bad acts evidence, Defendant’s prior

conviction, and its improper focus on Defendant’s his Fifth Amendment right to

remain silent were prejudicial. The State did not meet its burden of proof to show

that the errors were harmless. A reasonable possibility exists that the erroneously

admitted evidence contributed to the guilty verdict; and as the reviewing court, we

cannot declare that the errors were harmless beyond a reasonable doubt.

Accordingly, Defendant’s conviction and sentence imposed are reversed.

Assignment of Error Number 4: Denial of Motion for New Trial

Having determined that the State violated Defendant’s due process rights by

the introduction of other bad acts and crimes evidence and violated Defendant’s

Fifth Amendment right to remain silent, we pretermit discussion of Defendant’s

remaining claim that the trial erred in denying Defendant’s motion for new trial.

DECREE

Based on the foregoing reasons, we reverse Defendant’s conviction and

CONVICTION AND SENTENCE REVERSED