STATE v. JOEKEL (2020)

The district court erred to the extent it misconstrued the State's evidence presented during the Prieur hearing as the sole evidence available to the State and which the State intends to present during the guilt phase of this capital trial. While the evidence presented at the Prieur hearing consists of a video recording of the witness, which would in all likelihood be prohibited as hearsay at trial, it appears that the State intends to call the witness to testify at trial. 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. Taylor, 16-1124, p. 10 (La. 12/1/16), 217 So.3d 283, 291; see also id., pp. 14–15, 217 So.3d at 294 (“We also point out that while the rules of evidence are relaxed in a pre-trial hearing to determine what evidence may be offered at trial, the state will obviously be required to adhere to the rules of evidence when presenting evidence of the 1999 incident at trial. Should the state not properly present competent evidence at trial, the trial court may exclude the other crimes evidence at that time.”). Accordingly, we vacate the district court's ruling excluding the State's 404(B) evidence and remand for reconsideration of that ruling.

The district court also ruled that defendant's unadjudicated criminal conduct, which is closely related to the State's 404(B) evidence, would not be admissible during the penalty phase. The State in its application contends proof by clear and convincing evidence that defendant committed the unadjudicated acts is no longer required in light of this court's holding in State v. Taylor, and that this court should revisit and modify State v. Jackson, 608 So.2d 949 (La. 1992), to the extent that decision required proof by clear and convincing evidence. We decline to revisit State v. Jackson on the eve of this capital trial, particularly without the benefit of full briefing and oral argument. However, we vacate the district court's ruling excluding this evidence, and remand for reconsideration for the district court to determine if the State can comply with each requirement of State v. Jackson, including proof by clear and convincing evidence.

VACATED AND REMANDED

PER CURIAM: