STATE OF LOUISIANA * NO. 2019-KA-0761
VERSUS * COURT OF APPEAL TERVANTHY A HUDSON * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 540-284, SECTION “D” Honorable Paul A Bonin, Judge ****** JUDGE SANDRA CABRINA JENKINS ****** (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)
Leon Cannizzaro, District Attorney Donna Andrieu, Assistant District Attorney Kyle Daly, Assistant District Attorney ORLEANS PARISH 619 S. White Street New Orleans, LA 70119
COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Sherry Watters LOUISIANA APPELLATE PROJECT P. O. Box 58769 New Orleans, LA 70158
COUNSEL FOR APPELLANT/DEFENDANT
AFFIRMED
APRIL 22, 2020 SCJ RLB RBW
Defendant, Tervanthy Hudson, appeals his conviction for second degree
battery, raising one assignment of error and requesting an errors patent review.1
Upon review, as detailed below, we find no merit to the defendant’s assigned error
and no errors patent on the face of the record. Accordingly, we affirm the
defendant’s conviction and sentence.
PROCEDURAL AND FACTUAL BACKGROUND
On March 7, 2018, the State filed a bill of information charging the
defendant with aggravated second degree battery, a violation of La. R.S. 14:34.7.
On April 11, 2018, the defendant appeared for arraignment and pled not guilty. On
that same date, the trial court ordered joint pre-trial discovery. The defendant’s
case proceeded to a jury trial that commenced on January 23, 2019.
The following testimony was adduced at trial.
On September 11, 2017, New Orleans Police Officer Timothy Krennerich
responded to a report of an aggravated battery at a residence in the 5700 block of
1 Appellate counsel seeks an errors patent review “out of an abundance of caution … as counsel has been unable to make contact with the defendant-appellant to ascertain any errors he may have wished to raise.”
1 Pasteur Boulevard. Upon arriving at the scene, Ofc. Krennerich observed a trail of
blood leading to the doorway of the residence and, upon entering the residence,
observed the victim, Shawn Blackledge, bleeding from severe head trauma. From
speaking with the victim and his girlfriend, Alison Alonso, Ofc. Krennerich
learned that a man known to them as “Vant”, the defendant, came to the house and
confronted the victim about $3.00 that he owed; when the victim refused to pay,
the defendant grabbed a metal flower pot off the porch and beat the victim in the
head repeatedly with it. Ms. Alonso emerged from the bedroom of the residence
and saw the defendant beating the victim with the metal pot. The defendant then
left the house, got into a car with a female companion, and drove away.
When Detective Donna Hogan, the lead detective on this case, arrived on the
scene, she encountered the victim sitting on the front porch and she observed blood
spatter on the porch. Det. Hogan also observed a large brass or copper flowerpot
lying on the porch near the blood spatter. As she entered the residence, Det.
Hogan noticed a large pool of blood on the floor and blood spatter on the wall.
Det. Hogan spoke with the victim and his girlfriend, who stated that the defendant,
known to them as “Vant” and whom they had known for approximately six
months, came to the residence that day to collect money from the victim; then, a
physical altercation erupted between the two men, the defendant hit the victim in
the head with the flowerpot, and the defendant fled. Ms. Alonso also stated that
she knew where defendant lived and worked, and she showed Det. Hogan a
Facebook profile picture belonging to Vant A. Hudson.
Based upon the information provided by the victim and Ms. Alonso, Det.
Hogan went to the grocery store that Ms. Alonso identified as the defendant’s
workplace. Det. Hogan spoke with a manager and Human Resources employee
2 who informed that the defendant no longer worked at that store; but, they provided
Det. Hogan with the defendant’s full name, date of birth, and his Mississippi
driver’s license photo. Det. Hogan then used the driver’s license photo for a
confirmation photo procedure with the victim, who identified the defendant as the
man who attacked him.2 Det. Hogan also attempted to locate the defendant at a
residence in St. Bernard Parish, based on Ms. Alonso’s statement that she knew
where the defendant lived; but, the defendant was not at that location. The next
day, Det. Hogan obtained an arrest warrant for the defendant.
The victim, Shawn Blackledge, testified that several months before the
incident on September 11, 2017, a friend introduced the defendant to him as “the
neighborhood weed dealer.” The victim became friendly with the defendant, and
the defendant had previously been to the victim’s house. On the day of the
incident, the defendant came to the victim’s house demanding a few dollars, and,
when the victim refused to give him any money, the defendant became enraged,
grabbed the flowerpot on the porch, and began beating the victim in the face and
head with it.3 The victim lost consciousness during the attack; when he regained
consciousness, the defendant was gone. When the police arrived, the victim
described the incident and identified his attacker before being transported to the
hospital. At the hospital, the victim learned that the injuries he sustained from the
attack included a broken nose, broken jaw, broken cheekbone, deep head and facial
lacerations, and a broken tooth. While he was in the hospital, Det. Hogan brought
2 Det. Hogan testified that there are three procedures used for identification: confirmation photo; six-pack photo line-up; and show-up identification on the scene. She elected to do a confirmation photo since the victim and Ms. Alonso stated that they had known the defendant for some time and saw him regularly. 3 From photographs of the scene, the victim identified the same object that other witnesses referred to as “a flowerpot;” however, the victim referred to the object as “an iron dog statue.”
3 him a photograph, from which he identified the defendant as his attacker. The
victim also identified the defendant in court during the trial.
The defendant testified that sometime before the incident on September 11,
2017, he was working at the Rouses grocery store on Franklin Avenue when he
met the victim and Ms. Alonso, whom he befriended. The defendant talked with
the victim about getting a second job at the Superdome, where the victim worked,
and the two men exchanged phone numbers. On the day of the incident, the
defendant went to the victim’s house to check up on any job prospects. When he
knocked on the door, the victim opened the door looking “glossy-eyed,” acting
belligerent, and using racial slurs. The defendant testified that the victim pushed
him down on the porch and began approaching aggressively, so the defendant
kicked the victim to keep him away. As they were scuffling on the porch, Ms.
Alonso came outside and the defendant asked her to get the victim inside the house
so he could leave. The defendant left the victim’s house with a female companion
who had driven him there. The defendant denied picking up or using the
flowerpot, or any object, to hit the victim. The defendant also denied being a
“weed dealer” or selling any drugs. The defendant testified that he did not speak
with the victim or Ms. Alonso after that incident. He did not know that a warrant
had been issued for his arrest as a result of that incident; and he was arrested about
a month later while working in City Park.
Under cross-examination, the State questioned the defendant about the
sequence of events that led to the altercation with the victim. The defendant
maintained that the victim pushed him first, he fell backwards, and he began
kicking at the victim to defend himself. The State then asked the defendant if he
would characterize what he did to the victim as a “three-piece combo.” The
4 defendant denied knowing what the expression meant. The State asked if the
defendant would be able to identify his own voice and played a portion of a
jailhouse call. Defense counsel objected to the introduction of the previously
undisclosed jailhouse recordings.
Before proceeding with cross-examination, the trial court allowed defense
counsel to review, in chambers, six jailhouse recordings. After listening to the
recordings, defense counsel objected to the State’s non-disclosure of statements
made by the defendant. The trial court ruled to allow the State limited use of the
recordings to question the defendant about his use of the term “three-piece combo”
in discussing the altercation with the victim; and the trial court ruled that the
defense could choose to introduce other portions of the jailhouse recordings, to
support the defendant’s claim of self-defense.
Cross-examination of the defendant resumed, and the State played a portion
of one of the jailhouse recordings. The defendant identified his voice on the
recording; but, the defendant did not recall talking about a “three-piece combo” in
reference to the altercation with the victim. The State also played portions of other
jailhouse calls and questioned the defendant about his statements regarding
witnesses and the victim’s injuries.
Following the defendant’s testimony, the trial concluded, and the jury found
the defendant guilty of the lesser-included offense of second degree battery. See
La. C.Cr.P. art. 814(A)(20). The defendant did not file a motion for new trial or
post-verdict judgment of acquittal.
On March 26, 2019, the trial court sentenced the defendant to three years at
hard labor, two years suspended, and two years active probation. Subsequently,
the defendant filed a timely motion to reconsider sentence, which the trial court
5 granted. On June 7, 2019, the trial court vacated the defendant’s original sentence
and resentenced him to two years at hard labor, one year and six months
suspended, and two years of active probation.
The defendant’s timely appeal followed.
DISCUSSION
Assigned Error
In his sole assignment of error, the defendant argues that the trial court erred
in admitting the recordings of the defendant’s jailhouse calls, because the State’s
failure to disclose those recordings prior to trial violated discovery rules and
constituted a Brady violation.4 We will first address whether the defendant has
established a violation of the discovery statutes, before addressing the contention
that the State violated Brady.
The defendant argues that the State violated its continuing duty to disclose
all discoverable evidence, pursuant to the trial court’s order for joint pre-trial
discovery and La. C.Cr.P. art. 729.3,5 by failing to timely disclose the six
recordings of the defendant’s calls from the jailhouse following his arrest.
According to the defendant, and reflected in the record, the State’s inventory of
discovery did not disclose the jailhouse recordings; and, in the State’s notice of
intent to use statements by the defendant per La. C.Cr.P. art. 768,6 the State only
4 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 5 La. C.Cr.P. art. 729.3 provides, If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is, or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspections. 6 La. C.Cr.P. art. 768 provides,
6 provided notice of statements allegedly made to the victim and his girlfriend,
between September 11 and 14, 2017. The defendant, therefore, argues that the
State’s failure to disclose and produce the jailhouse recordings prior to trial
violated the joint pre-trial discovery order, as well as La. C.Cr.P. arts. 716 and 718.
La. C.Cr.P. art. 716 provides, in pertinent part, for the discovery of
statements by the defendant, as follows:
A. Upon written motion of the defendant, the court shall order the district attorney to disclose to the defendant, and to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confession or statement of any nature, including recorded testimony before a grand jury, or copy thereof, of the defendant in the possession, custody, control, or knowledge of the district attorney.
B. Except as provided by Paragraph C of this Article, upon written motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant or any codefendant which the district attorney intends to offer in its case in chief at the trial, with the information as to when, where, and to whom such oral confession or statement was made.
In addition, the discovery of documents and tangible objects is governed by
La. C.Cr.P. art. 718, which provides in pertinent part, as follows:
…[U]pon written motion of the defendant, the court shall order the district attorney…to permit or authorize the defendant or an expert working with the defendant, to inspect, copy, examine, test scientifically, photograph or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof that are within the possession, custody, or control of the state, and that are intended for use by the state as evidence in its case in chief at trial, or were obtained from or belong to the defendant.
Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.
7 Louisiana’s criminal discovery rules, La. C.Cr.P. art. 716 et seq., are
“intended to eliminate unwarranted prejudice arising from surprise testimony and
evidence, to permit the defense to respond to the State’s case, and to allow a proper
assessment of the strength of the State’s case.” State v. Girard, 12-0790, p. 4 (La.
App. 4 Cir. 3/6/13), 110 So.3d 687, 690. In the event the State fails to comply with
the discovery rules, “[i]t is within a trial court’s discretion to exclude evidence or
enter any appropriate order to remedy a party’s violation of a discovery right.”
Girard, 12-0790, p. 5, 110 So.3d at 690 (citing State v. Lee, 00-2429, p. 19 (La.
App. 4 Cir. 1/4/01), 778 So.2d 656, 666). Generally, “discovery violations do not
provide grounds for reversal unless they have actually prejudiced the defendant.”
State v. Garrick, 03-0137, p. 5 (La. 4/14/04), 870 So.2d 990, 993.
The defendant argues that the State was obligated to disclose the jailhouse
recordings, in accordance with La. C.Cr.P. arts. 716 and 718, because they were
recorded statements made by the defendant that were within the possession,
custody, control, or knowledge of the State. Moreover, the defendant contends that
the State’s failure to disclose the existence or content of the taped statements to the
defense until mid-trial prevented the defendant from exercising his constitutional
right to a defense, because that evidence could have affected whether or not the
defendant chose to testify or call other witnesses.
The State counters the defendant’s arguments by pointing out that La.
C.Cr.P. arts. 716 and 718 both require a “written motion of the defendant,” that the
defendant admits he never filed a written motion for discovery, and that there is no
indication in this record that the State agreed to open file discovery. In addition,
the State argues it did not intend to, nor did it use the jailhouse recordings in its
8 case in chief at trial, and the State only used the recordings to rebut the defendant’s
testimony that he acted in self-defense.
The record reflects, as noted by the State, the defendant did not file a written
motion for discovery, as required by La. C.Cr.P. arts. 716 and 718; but, in
consideration of the trial court’s order for joint pre-trial discovery and the State’s
knowledge of the existence of the defendant’s recorded statements, the State
arguably had a duty to disclose or inform the defendant of these recordings.
However, the record also reflects that the State did not use the recordings in its
case in chief at trial and used them only to rebut the defendant’s testimony that he
acted in self-defense.
Similarly, in State v. Hartford, 14-0643 (La. App. 4 Cir. 3/18/15), 162 So.3d
1202, this Court considered the significance of whether the State intended to offer
the recordings in evidence at trial when determining whether the State violated
discovery rules. The defendant in that case also argued that the State violated
discovery rules when it failed to disclose the defendant’s recorded jailhouse calls
prior to trial but used those recordings during cross-examination of the defendant.
In reviewing the relevant jurisprudence, this Court found that when the evidence
was not used by the State on direct examination, or mentioned during the opening
statement, but offered the evidence in rebuttal to counter a defendant’s direct
testimony, Louisiana courts have concluded the State did not have intent to use the
evidence at trial and, therefore, there was no violation of the discovery statutes.
Hartford, 14-0643, pp. 18-19, 162 So.3d at 1212-1213 (collecting cases).
Applying that reasoning to this case, we find that the State did not intend to
use the defendant’s jailhouse calls as evidence in its case in chief at trial. During
his direct testimony, the defendant testified that the victim was the aggressor by
9 pushing him down to the ground and approaching him aggressively, and the
defendant denied hitting the victim with any object or inflicting serious injury on
him. On cross-examination, the State offered the defendant’s jailhouse calls to
rebut the defendant’s assertions that he acted in self-defense; in one call, the
defendant makes reference to a “three piece combo” against the victim; and in
another call, the defendant discussed the victim’s injuries. Thus, the record reflects
that the State only offered the recordings to rebut the defendant’s claim that he
acted in self-defense. Considering the State did not intend to use the defendant’s
jailhouse calls in its case in chief, we find no clear violation of the discovery
statutes.
But, the defendant also argues that the State violated its affirmative,
constitutional duty to disclose the recordings, pursuant to Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d (1963). The defendant contends that the
jailhouse calls constituted Brady material, because they contain exculpatory
statements that are material to guilt or punishment, and that the State’s late
disclosure during trial compromised the defendant’s ability to present a complete
defense.
Pursuant to Brady, the State has an affirmative duty to disclose exculpatory
evidence favorable to the defendant. 373 U.S. at 86-87, 83 S.Ct. at 1196-97. But
Louisiana and United States Supreme Court jurisprudence both acknowledge that
not every violation of the broad duty of disclosure constitutes a Brady violation.
State v. Brown, 15-2001, pp. 1-2 (La. 2/19/16), 184 So.3d 1265, 1266 (citing
Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).
As laid out by the United States Supreme Court in Strickler, a “true Brady
violation” consists of three components: “The evidence at issue must be favorable
10 to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” 527 U.S. at 281-82, 119 S.Ct. at 1948.
Furthermore, the Court held that “there is never a real ‘Brady violation’ unless the
nondisclosure was so serious that there is a reasonable probability that the
suppressed evidence would have produced a different verdict.” Strickler, 527 U.S.
at 281, 119 S.Ct. at 1948.
Discussing the reviewing court’s role in determining whether the State has
violated Brady, the Louisiana Supreme Court holds as follows:
[T]he reviewing court does not put the withheld evidence to an outcome-determinative test in which it weighs the probabilities that the petitioner would have obtained an acquittal at trial or might do so at a second trial. Instead, a Brady violation occurs when the “evidentiary suppression” undermines confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).
State v. Bright, 02-2793, p. 6 (La. 5/25/04), 875 So.2d 37, 42. In addition, the
Court has held that “[t]he mere possibility that an item of undisclosed information
might have helped the defense or might have affected the outcome of the trial does
not establish ‘materiality’ in the constitutional sense.” State v. Sparks, 88-0017, p.
68 (La. 5/11/11), 68 So.3d 435, 486, cert. denied sub nom, __ U.S. __, 132 S.Ct.
1794, 182 L.Ed.2d 621 (citing United States v. Agurs, 427 U.S. 97, 109-110, 96
S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976)).
In light of the relevant jurisprudence, and upon our review of the record and
the defendant’s arguments, we do not find that the defendant has established a
Brady violation. First, we note that the defendant has not specifically identified
which calls or statements were exculpatory. Second, although the trial court
permitted defense counsel to review all six recordings in chambers prior to them
11 being played for the jury and allowed the defense counsel to use the recordings in
re-direct examination of the defendant, the defense did not utilize any of the calls
in re-direct. Nevertheless, the defendant argues that disclosure of the recordings
would have influenced the defendant’s decisions to testify and whether to call
other witnesses for the defense, thereby affecting the preparation of his defense.
But, in light of the relevant jurisprudence, we find the defendant’s speculative
argument insufficient to establish a Brady violation.
Based on the foregoing review, we find no merit to the defendant’s argument
that the trial court erred in allowing the State to admit the jailhouse recordings that
were not disclosed prior to trial. This assignment of error is without merit.
Errors Patent Review
The defendant’s counseled brief assigns the single error discussed above and
then requests an errors patent review, “out of an abundance of caution,” noting that
counsel was unable to contact the defendant to ascertain any other errors he may
wish to raise on appeal. Appellate counsel also sets forth that the brief has been
filed to conform with State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 and
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
In Jyles, supra, the Louisiana Supreme Court adopted the procedure outlined
by this Court in State v. Benjamin, 573 So.2d 528 (La. App. 4th Cir. 1990), which
sets forth the requirements for appellate counsel to demonstrate that
constitutionally-effective assistance of counsel has been afforded a defendant
whose appeal is wholly frivolous. In accordance with that procedure, appellate
counsel must submit a brief that includes a thorough review of the procedural
history and facts of the case, as well as a “detailed and reviewable assessment for
both the defendant and the appellate court of whether the appeal is worth pursuing
12 in the first place. Jyles, 96-2669, p. 3, 704 So.2d at 242 (citing State v. Mouton,
95-0981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177). The counseled brief need not
“catalog tediously every meritless objection made at trial or by way of pre-trial
motions with a labored explanation of why the objections all lack merit.” Jyles,
96-2669, p. 2, 704 So.2d at 241 (citing Jones v. Barnes, 463 U.S. 745, 752-53, 103
S.Ct. 3308, 3313-14, 77 L.Ed.2d 987 (1983)). Appellate counsel need only
demonstrate that he has “cast an advocate’s eye over the trial record and
considered whether any ruling made by the trial court, subject to the
contemporaneous objection rule, had a significant, adverse impact on shaping the
evidence presented to the jury for its consideration.” Id.
When conducting a review for compliance with Jyles and Anders, supra, the
appellate court must conduct an independent review of the record to determine if
any legitimate basis for the appeal exists or whether the appeal is wholly frivolous.
See State v. Poree, 14-0691, p. 10 (La. App. 4 Cir. 3/18/15), 166 So.3d 372, 378.
Upon our independent review of this case, we find that appellate counsel has
provided a detailed review of the procedural history and facts of the case, and
presented a thorough argument on the one issue raised for our review.
Furthermore, we have performed an independent and thorough review of the
record and we find no non-frivolous issues or court rulings that arguably support
this appeal. Therefore, we are satisfied that appellate counsel has adequately
complied with the necessary requirements and has rendered constitutionally-
effective assistance of counsel on appeal. Appellate counsel does not seek to
withdraw.
13 CONCLUSION
For the foregoing reasons, the defendant’s conviction and sentence are
affirmed.