STATE v. COWART (2023)

The defendant, John Benjamin Cowart, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. The defendant pled not guilty and, after a trial by jury, was found guilty as charged. The trial court denied the defendant's motion for post-verdict judgment of acquittal and motion for new trial. The trial court then sentenced the defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.¹ The defendant now appeals, assigning error to the trial court's denial of a motion for mistrial and his motion for new trial, both regarding a prosecutorial comment. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On February 10, 2018, Detective Timothy Morgan with the Livingston Parish Sheriff's Office (LPSO) was dispatched to a residence on Picou Road to investigate a report of a missing person, Emily Rodgers (the victim). When Detective Morgan arrived in the area, consisting of a group of mobile homes located along a gravel driveway, the complainant, Emily's father, Rudy Rodgers, was waiting in the driveway. Detective Morgan called Major Lance Landry, another LPSO detective at the time, to assist in the investigation. The detectives interviewed the complainant, Emily's boyfriend/roommate, Ryan Bourgeois, and other residents in the area. The detectives were able to develop a person of interest, the defendant.

Afterwards, at approximately 1:30 a.m., Detective Morgan went to the defendant's residence and interviewed the defendant. The defendant informed him that he was with Emily on February 4, 2018, stating that they went for a ride for a few hours, stopping at different residences. The defendant claimed that after they rode around, he dropped Emily back off at the trailer that he picked her up from on Picou Road.

Justin Scivicque, a resident in the area at the time, testified at trial that the defendant and Emily stopped by his home and went into a spare bedroom while he went back to sleep. Later that night, the defendant, while teary-eyed and intoxicated, informed Scivicque that he “messed up” and needed help with something. Scivicque, who admittedly had been using methamphetamme that day and the days leading up thereto, followed the defendant outside, looked in the trunk of the defendant's vehicle, and heard a gurgling sound. Though it was dark, Scivicque testified that he believed a body was in the defendant's trunk at that time. Scivicque testified that he asked the defendant what was the noise, and the defendant told him that it was “somebody taking their last breath.” Scivicque testified that he “freaked out” and walked away, and the defendant then left. Scivicque did not call the police or seek emergency assistance.

After several interviews with law enforcement, the defendant admitted to hitting Emily in the head with a hammer, “to put her out of her misery and make sure that she was dead” prior to dumping her body. The defendant explained that he and Emily used drugs that night. The defendant ultimately directed the police to a wooded area at Catfish Landing Road in Maurepas, where Emily's lifeless body was located. The defendant did not testify at trial.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In a combined argument addressing the assignments of error, the defendant argues the prosecutor made inflammatory, prejudicial remarks referencing other crimes evidence, which mandates a mistrial under La. Code Crim. P. art. 770. He notes the trial court elected to admonish the jury and ordered the language at issue stricken from the record. The defendant argues the admonishment was not sufficient.

Louisiana Code of Evidence article 404(B)(1) provides that evidence of other crimes, acts or wrongs is generally not admissible. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917 (La. App. 1st Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So.2d 115.

A direct or indirect reference to another crime committed or alleged to have been committed by the defendant, as to which evidence would not be admissible, made within the hearing of the jury by the judge, district attorney or a court official, during trial or in argument, would require a mistrial on motion of the defendant. La. Code Crim. P. art. 770(2). Although La. Code Crim. P. art. 770 is couched in mandatory terms, it is a “rule for trial procedure.” State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 101. Accordingly, the introduction of inadmissible “other crimes” evidence under Article 770 results in a trial error subject to a harmless error analysis on appeal. Id., 664 So.2d at 102. The test for determining whether an error is harmless is whether the verdict actually rendered in this case “was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); Johnson, 664 So.2d at 100.

A mistrial is a drastic remedy that should only be declared upon a clear showing of prejudice by the defendant. In addition, a trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. State v. Lawson, 2018-0382 (La. App. 1st Cir. 11/8/18), 2018 WL 5876815, *10 (unpublished), writ denied, 2018-2048 (La. 5/20/19), 271 So.3d 1272. A reviewing court in Louisiana should not reverse a defendant's conviction and sentence unless the error has affected the substantial rights of the accused. See La. Code Crim. P. art. 921; Lawson, 2018 WL 5876815 at *10.

On direct examination of Scivicque by the State, the following exchange took place:

Q. When did [the defendant] tell you not to say anything?

A. Right before [the defendant] left.

Q. Before he left the night of?

A. Yes.

Q. Okay. So when I asked you if you talked to [the defendant] about it again, he'd already told you not to say something?

A. Well, [the defendant] just told me everything was going to be all right. He was going to take care of everything, not to say anything or I'd end up [in] the trunk as well.

On cross examination, to refresh his memory, defense counsel showed Scivicque a portion of his pretrial police interview in which a detective asked him if he would prefer being a witness or a suspect. After reviewing the exhibit, Scivicque confirmed that he stated that he wanted to be a witness as opposed to a suspect. Scivicque further confirmed that he subsequently lied to the police but decided to tell the truth after being told by Detective Bowden, “if you f*** with my investigation, I'm going to make sure I throw the book at you.”

On redirect examination, the State retorted by asking Scivicque, “You were asked on cross examination if you would rather be a suspect or a witness. My question to you, sir, would you rather be a suspect, a witness or in the trunk of a car?” Defense counsel then objected and moved for a mistrial.

The defendant now argues that the complained of question on redirect examination was an impermissible reference to other crimes by the defendant such as obstruction of justice.² In denying the motion for mistrial, the trial court, in part, found that the State had a right to counter the point made on cross examination challenging Scivicque's credibility and reason for his initial hesitation before becoming forthright. The trial court found that the statement had not deprived the defendant of a fair trial. However, the trial court sustained defense counsel's objection, ordered the language stricken from the record, and admonished the jury to disregard the question.

We find that the remark at issue by the State consisted of other crimes evidence. However, such a determination does not end our inquiry. As previously stated, the introduction of inadmissible other crimes evidence under Article 770 is subject to a harmless error analysis on appeal. In this case, we find that there has been no clear showing of prejudice to the defendant tending to deprive the defendant of the reasonable expectation of a fair trial.

We note that there was no objection when the State directly questioned Scivicque about the defendant telling him not to say anything. Scivicque testified, without objection, that the defendant told him not to say anything or that he would end up in the trunk of a car like Rodgers. Thus, the prosecutor's question at issue was merely cumulative of previously admitted testimony. Furthermore, we agree with the trial court's determination that the defendant prompted this line of questioning pursued by the State on redirect examination. Specifically, prior to redirect examination, on cross examination, the defendant attacked Scivicque's credibility by eliciting testimony to show that Scivicque was not forthcoming before being warned by the police that charges could be brought against him. This prompted the State to attempt on redirect examination to show that Scivicque's delay in being forthcoming was instead due to the defendant's threat.

Furthermore, the autopsy report, which reflects that Emily died from blunt impacts to the head with an open skull fracture and compression of the neck, and the toxicological testing results, which reflect that Emily tested positive for several substances in her system at the time of her death, corroborate the defendant's admission that he struck Emily with a hammer and that she and the defendant used drugs earlier that night. Considering the evidence in this case, including Scivicque's testimony and the defendant's own confession, we are convinced that the verdict rendered in this case was surely unattributable to the State's brief reference to the defendant's warning to Scivicque. There was no indication that the defendant was unable to obtain a fair trial due to the remark challenged herein. Thus, we conclude that the drastic remedy of a mistrial was not warranted in this case. We find no abuse of discretion by the trial court in its denial of the motion for mistrial. Likewise, we find that the trial court did not err in denying the subsequent motion for new trial on this basis. For all of these stated reasons, we find that the defendant's assignments of error lack merit.

CONVICTION AND SENTENCE AFFIRMED.

While I respectfully agree with the majority's ultimate conclusion herein, I would not characterize the remark identified by the defendant on appeal as a prohibited reference to other crimes evidence. See La. Cr.C.P. art. 770. During rebuttal the State asked the witness, “[W]ould you rather be a suspect, a witness or in the trunk of a car?” In isolation, this appears to be graceless rhetorical flourish, which references the particular facts of the charged offense, but not some “other” crime committed by the defendant. On direct examination, however, the witness testified that that he was warned by the defendant “not to say anything or [he'd] end up in the trunk.” Therefore, the State's remark could refer to either the defendant's purported threat or to the victim's tragic predicament.

Even so, the original line of questioning delved into statements made by the defendant while in the midst of the criminal act. The witness's statement is conduct that constitutes an integral part of the charged offense in this proceeding and was not objected to. See La. C.E. 404(B)(1). The State's rhetorical question does not refer, directly or indirectly, to inadmissible other crimes committed by the defendant. The defendant posits that the offending question alludes to other crimes such as obstruction of justice. Yet, the State's question did not specifically elicit a comment concerning another crime.

A mistrial under La. C.Cr.P. art. 771 should be granted only when a defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. However, ambiguous or obscure references to other crimes made without explanation or elaboration do not prejudice the defendant. State v. Caminita, 2016-0121 (La App. 1st Cir. 9/16/16), 203 So. 3d 1100, 1106, writ denied, 2016-2045 (La. 9/6/17), 224 So. 3d 988.

For these reasons, I agree with the majority that the trial court did not err in denying the motion for a mistrial.

FOOTNOTES

1.   In his previous trial, the defendant was found guilty as charged of second degree murder by a non-unanimous verdict. Accordingly, we vacated the defendant's conviction and sentence pursuant to Ramos v. Louisiana, ––– U.S. ––––, 140 S.Ct. 1390, 1397, 206 L.Ed.2d 583 (2020) and remanded to the trial court for a new trial. See State v. Cowart, 2020-0201 (La. App. 1st Cir. 11/6/20), 2020 WL 6538327 (unpublished).

2.   We note that Scivicque testified that prior to the instant trial, he was arrested for charges related to the instant case, obstruction of justice and principal to second degree murder, and pled guilty to obstruction of justice. During the trial, there was testimony regarding evidence or facts, not discussed herein, that Scivicque may have withheld regarding the case.

WOLFE, J.

Miller, J. concurs with reasons.