State of Louisiana v. Tervanthy a Hudson

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

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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

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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

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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.

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CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are

affirmed.

AFFIRMED

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