State of Louisiana v. Anthony Nathaniel Green, Sr.

CORRECTED OPINION

STATE OF LOUISIANA * NO. 2023-K-0253

VERSUS *
COURT OF APPEAL
ANTHONY NATHANIEL *
GREEN, SR. FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 551-152, SECTION “F”
Honorable Robin D. Pittman, Judge
******
Judge Sandra Cabrina Jenkins
******
(Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge
Tiffany Gautier Chase)

DYSART, J., DISSENTS IN PART; CONCURS IN PART.

Jason R. Williams
DISTRICT ATTORNEY
Brad Scott
CHIEF OF APPEALS
Naomi Jones
Mary Casente Glass
ASSISTANT DISTRICT ATTORNEY
District Attorney’s Office
619 South White Street
New Orleans, Louisiana 70119

COUNSEL FOR RESPONDENT / STATE OF LOUISIANA

D. Majeeda Snead
LOYOLA LAW CLINIC
7214 St. Charles Ave., Box 902
New Orleans, Louisiana 70118

COUNSEL FOR RELATOR / DEFENDANT

WRIT GRANTED, IN PART; WRIT DENIED, IN PART

JULY 28, 2023

SCJ
TGC
Defendant, Anthony Nathaniel Green, Sr., seeks review of the trial court’s

March 16, 2023 rulings denying relator’s (1) motion to exclude other crimes

evidence, (2) motion to exclude audio recording of identification procedure, and

(3) motion to allow introduction of evidence regarding mental disease and defect.

Based on our review of this record and in light of applicable law and jurisprudence,

we grant defendant’s writ, in part, and reverse the trial court’s ruling that denied

defendant’s motion to exclude other crimes evidence and allowed the State to

introduce evidence under La. C.E. art. 412.2. In all other respects, defendant’s writ

is denied.

STATEMENT OF THE CASE

On December 14, 2020, the State filed an indictment charging defendant

with one count of first degree rape, in violation of La. R.S. 14:42, and one count of

home invasion, in violation of La. R.S. 14:62.8. On February 8, 2021, defendant

pled not guilty to both charges.

1

In February 2023, defendant filed a motion to exclude other crimes

evidence, a motion to exclude the audio recording of the identification procedure,

and a motion to allow introduction of evidence regarding mental disease or defect.

In response, the State filed notice of intent to introduce evidence of similar crimes,

wrongs, or acts pursuant to La. C.E. art. 412.2. The State also filed its replies and

opposition to defendant’s motions.

On March 16, 2023, the trial court heard arguments on defendant’s three

motions. The trial court denied defendant’s motion to exclude other crimes

evidence and ruled that, pursuant to La. C.E. art 412.2, evidence may be admitted

to show intent and/or absence of mistake. The trial court also denied defendant’s

motions to exclude the audio recording of the identification procedure and to allow

introduction of evidence regarding mental disease or defect. Defendant noted his

objection and notice of intent to seek review of the trial court’s rulings.

Defendant timely filed this writ on April 14, 2023. Defendant filed a

supplement to the writ, as ordered by this Court, on May 23, 2023.

DISCUSSION

Motion to exclude other crimes evidence / Notice of intent to offer evidence
pursuant to La. C.E. art. 412.2

Defendant argues that the trial court abused its discretion by denying his

motion to exclude other crimes evidence and ruling that, pursuant to La. C.E. art.

412.2, the State may introduce testimonial statements from an unidentified witness,

S.C., regarding an incident that occurred eight years prior to the current charged

offenses. Defendant argues that the testimonial evidence from S.C. that the State

intends to introduce does not qualify as evidence of similar crimes, wrongs or acts

of sexually assaultive behavior under La. C.E. art. 412.2.

2

When reviewing a ruling on the admissibility of other crimes evidence, this

Court will not overturn the trial court’s decision absent an abuse of discretion.

State v. Taylor, 16-1124, p. 18 (La. 12/1/16), 217 So.3d 283, 296.

Generally, pursuant to La. C.E. art. 404(B)(1), evidence of other crimes,

wrongs or acts are not admissible to prove the character of the defendant in order

to show that he acted in conformity therewith. However, art. 404(B)(1) provides

exceptions to this general rule, if the State can provide an independent reason for

the admission of other crimes evidence, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake or accident, or

when the evidence relates to conduct that constitutes an integral part of the act that

is subject to the instant charged offense. In addition, when the defendant is

charged with a crime involving sexually assaultive behavior, La. C.E. art. 412.2

provides a specific exception to allow for the admission of evidence involving

similar sexually assaultive crimes, wrongs, or acts.

La. C.E. art. 412.2(A) provides in pertinent part:

When an accused is charged with a crime involving sexually
assaultive behavior, … evidence of the accused's commission of
another crime, wrong, or act involving sexually assaultive behavior …
may be admissible and may be considered for its bearing on any
matter to which it is relevant subject to the balancing test provided in
Article 403.

Under the balancing test of La. C.E. art. 403, relevant evidence “may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, or waste of time.”

Thus, the evidence to be admitted under La. C.E. art. 412.2 must be

substantially relevant and probative to the instant charged offense and not unduly

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prejudicial. See State v. Woodberry, 14-0476, p. 15 (La. App. 4 Cir. 6/3/15), 171

So.3d 1082, 1092. “[T]he underlying policy is not to prevent prejudice, since

evidence of other crimes is always prejudicial, but to protect against unfair

prejudice when the evidence is only marginally relevant to the determination of

guilt of the charged crime.” Id. (citing State v. Humphrey, 412 So.2d 507, 520 (La.

1981) and State v. Williams, 02-645, p. 16 (La. App. 5 Cir. 11/26/02), 833 So.2d

497, 507).

In this case, the State noticed its intent to introduce evidence pursuant to La.

C.E. art. 412.2, by offering the testimonial statements made by a person identified

as S.C. to police on September 24, 2014, as captured on an officer’s body camera

video. According to the State, the evidence of the defendant’s other acts of

sexually assaultive behavior towards S.C. is as follows:

S.C. stated to the officer that she was close friends with defendant’s
girlfriend, K.S. While they were at defendant’s house, S.C. asked K.S.
for two condoms; defendant then stated to S.C., my partner wants to
know if “one of you whores will suck his dick.” When S.C. said no,
defendant told S.C. that someone needed to “put that whore in her
place.” According to S.C., defendant then approached her in an
aggressive and threatening manner, she pushed defendant away, and
then they both shoved each other. Then, S.C. went outside to her
vehicle to retrieve her baseball bat and defendant retrieved his gun,
but they did not engage in a further altercation.1

The State contends that the testimonial statements from S.C. constitute

evidence of defendant’s prior acts of sexually assaultive behavior towards women,

and the statements are relevant to show that defendant acted in a sexually

assaultive manner without consent.

However, a review of the statements reveals that the incident between

defendant and S.C. did not involve sexual contact or sexually assaultive acts. The

1 The State’s notice also states it will present evidence that during the same incident, defendant

told both S.C. and K.S. to “suck my dick” and referred to both women as “slut-bitch.”

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State contends that the defendant’s sexually suggestive language towards the

women and his aggressive demeanor toward S.C. are sufficient evidence of other

acts of sexually assaultive behavior, admissible under La. C.E. art. 412.2.

In a recent case before this Court, State v. Parker, 22-0843 (La. App. 4 Cir.

2/17/23), 358 So.3d 924, the defendant, who was charged with three counts of

aggravated rape and three counts of aggravated kidnapping, sought review and

reversal of the trial court’s ruling allowing two prior incidents to be admitted

pursuant to La. C.E. art. 412.2. One of the prior acts that the State sought to

introduce under La. C.E. art. 412.2 involved defendant striking a female victim “in

the chest area with a hard right forearm” then “aggressively remov[ing] . . . jewelry

from [her] neck”; the victim was then able to retrieve a weapon from under her arm

and shot defendant. Parker, 22-0843, p. 2, 358 So.3d at 926. Upon review, this

Court found that the incident and defendant’s ultimate conviction on the charge of

simple robbery “do not reflect any sexually assaultive behavior” and “[s]uch

conduct does not fall under Article 412.2 because nothing suggests sexual contact.”

Parker, 22-0843, p. 5, 358 So.3d at 928. The Court further concluded that the facts

of the incident were not particularly probative of the presently charged offenses.

Consequently, the Court reversed the trial court’s ruling to allow evidence of that

particular other crime pursuant to La. C.E. art. 412.2.2

In this case, as in Parker, we find that defendant’s conduct in the incident

described by S.C. does not constitute evidence of prior sexually assaultive behavior

under La. C.E. art. 412.2, because there was no sexual contact. In addition, we

find no jurisprudence supporting the admission of evidence under La. C.E. art.

412.2 based upon the use of sexually suggestive language, without sexual contact

2 We note that a writ in Parker is currently pending before the Louisiana Supreme Court.

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or sexually explicit acts. Furthermore, we find the statements that the State seeks

to admit regarding this prior incident between defendant and S.C. are not

particularly probative of the presently charges offenses.

Therefore, we find the trial court abused its discretion in denying

defendant’s motion to exclude evidence of this prior incident and in allowing the

State to admit the evidence pursuant to La. C.E. art. 412.2.

Motion to Exclude the Audio Recording of the Identification Procedure

Next, defendant argues that the trial court abused its discretion by denying

his motion to exclude the audio recording of the identification procedure.

Defendant asserts that the audio recording of the victim’s identification of the

defendant, as the person who entered her home and raped her, is unduly prejudicial

because the recording contains several minutes in which the victim is sobbing and

screaming. Defendant argues that the evidence must be excluded because the

probative value is outweighed by the undue prejudice of admitting the recording.

As previously discussed, under La. C.E. art. 403, relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, or waste of time.” A trial court’s ruling as to relevancy will not be

disturbed absent a clear abuse of discretion. State v. Bell, 05-0808, p. 12 (La. App.

4 Cir. 12/6/06), 947 So.2d 774, 781; State v. Lewis, 97-2854, p. 20 (La. App. 4 Cir.

5/19/99), 736 So.2d 1004, 1017. A trial court is vested with much discretion in

determining whether the probative value of relevant evidence is substantially

outweighed by its prejudicial effect. Bell, supra; State v. Hall, 02-1098, p. 8 (La.

App. 4 Cir. 3/19/03), 843 So.2d 488, 496.

6

Clearly, the victim’s identification of defendant as the person who raped her

is relevant. However, defendant argues that other evidence, specifically, the

victim’s trial testimony identifying defendant as her rapist could be substituted for

the audio recording of the victim’s identification of defendant. In support,

defendant cites United States v. Johnson, No. 04-17, 2006 WL 1005014, at *2

(E.D. La. Apr. 12, 2006), in which the federal district court deemed inadmissible a

portion of a 911 call reporting a bank robbery, finding “[t]he danger of unfair

prejudice of this portion of the tape substantially outweighs its negligible probative

value and it is therefore excluded.” However, we find the facts and analysis in

Johnson distinguishable and the defendant’s reliance on Johnson misplaced.

In Johnson, the 911 call could be broken into two parts: The caller’s

discussion with the police dispatcher and the caller’s discussion with emergency

medical personnel. Both components had emotional aspects to them; however,

because the first portion of the 911 call also had probative value, the court

concluded that the first portion was admissible.

In the first portion, the 911 caller provided the address of the bank, described

the events as they were happening and gave a description of the perpetrators to the

dispatcher. However, as the court explained, “[i]n addition to the descriptive

aspects, this part of the conversation is heavily laden with emotion and fear from

[the 911 caller.] At one point she states, ‘Please don’t hang up, please don’t hang

up, please ma’am, please don’t hang up … they’re gonna kill me, they’re gonna

kill me, please ma’am.’” Johnson, 2006 WL 1005014 at *1. Despite the prejudice

arising from the caller’s emotion and fear, the court did not exclude the relevant

call nor did the court excise the caller’s emotional and fearful outburst. The court

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ruled the 911 caller’s conversation with the police dispatcher admissible in its

entirety, reasoning:

The only real question with regard to this portion of the tape is
whether its probative value is “substantially outweighed by the danger
of unfair prejudice.” Fed.R.Evid. 403. As described by the Supreme
Court, “The term ‘unfair prejudice’ as to a criminal defendant, speaks
to the capacity of some concededly relevant evidence to lure the
factfinder into declaring guilt on a ground different from proof
specific to the offense charged.” Old Chief v. United States, 519 U.S.
172, 180 (1996). In balancing the prejudicial nature of a particular
piece of evidence against its probative value, the judge must
appreciate “the offering party's need for evidentiary richness and
narrative integrity in presenting a case.” Id. at 183. Moreover, the
Supreme Court noted that the Government generally has a right to
present evidence of a fact that a defendant would prefer to admit, so as
to establish the “human significance” of the fact and “to implicate the
law's moral underpinnings.” Id. at 187-88. Relevant evidence offered
by the government in criminal trials is usually prejudicial to the
defendant. Accordingly, under Rule 403, “evidence ... should be
excluded sparingly.” United States v. Powers, 168 F.3d 741 (5th
Cir.1999).

In this case, the emotional aspect of the first part of [the 911
caller’s] conversation does not create a danger of unfair prejudice that
substantially outweighs its considerable probative value. To the
contrary, [the 911 caller’s] tone and language establish the “human
significance” of the crime being committed. Old Chief, 519 U.S. at
187-88. As the Second Circuit noted when upholding the admission
of gruesome photographs of the victims of the World Trade Center
bombing, “Probative evidence is not inadmissible solely because it
has a tendency to upset or disturb the trier of fact.” United States v.
Salameh, 152 F.3d 88, 123 (2d Cir.1998). The defense argues that it
does not dispute the fact that a bank robbery was committed which
detracts from the probative value of the evidence in relation to its
prejudicial nature. However, the defense has never formally conceded
any elements of the offense; the government will still need to prove
those elements beyond a reasonable doubt at trial. Moreover, even if
the defense were to make certain factual stipulations, it is well-settled
that “A party is not required to accept a judicial admission of his
adversary, but may insist on proving the fact.” Parr v. United States,
255 F.2d 86 (5th Cir.1958). The Court finds the first part of [the 911
caller’s] statements is not unduly prejudicial.

Johnson, 2006 WL 1005014, at *1–2.

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The second portion of the 911 call, the caller’s statements to emergency

personnel, unlike the first portion, contained virtually no relevant evidence. As the

court explained, “this particular conversation lacks any intelligible descriptive

elements.” Johnson, 2006 WL 1005014, at *2. It was the lack of relevance of this

portion of the call that prompted the court to exclude it.

The balancing required under Rule 403 is different here from
the previous analysis. There is no probative value in this portion of
the tape that is not already covered by the initial part of her
conversation, including [the caller’s] obvious distress. [The 911
caller] continues to be audibly terrified but says nothing that adds
support to any element of the government's case.

Id.

When considering the instant case in light of Johnson, we find the victim’s

audio recorded identification comparable to the first portion of the 911 call in

Johnson, which was ruled admissible. Here, the victim’s identification of

defendant is extremely probative and relevant despite the emotional components.

Defendant also relies on State v. King, 604 So.2d 661, 667 (La. App. 1 Cir.

1992), a case in which the First Circuit affirmed the trial court’s decision to admit

an excised portion of a 911 recording. Again, however, King is distinguishable

from the instant matter, because, as in Johnson, supra, the call could be separated

into two distinct parts: one in which relevant information, including a description

of the perpetrators, along with emotional statements, was provided; and a second

portion which consisted of “instructions by the 911 personnel concerning first aid

to be administered to the shooting victims and additional assurances by 911

personnel that help would be arriving….” Id. The court allowed the portion of the

tape containing relevant information to be admitted, even though it contained

9

emotional statements prejudicial to defendant, because the probative value of the

recording outweighed any danger of unfair prejudice.

In State v. Sholes, 99-2414 (La. App. 4 Cir. 3/7/01), 782 So.2d 691, like in

King, the defendant argued that the trial court erred in admitting the 911 call from

the victim’s brother because it involved distraught cries that would prejudice the

jury. This Court determined that the relevancy of the recording outweighed the

danger of unfair prejudice.

[T]he recording was relevant as to show the time and location of the
shooting. As the First Circuit noted in King, the emotional trauma of
the callers did not diminish the probative value and admissibility of
the tape. The trial court did not abuse its great discretion in
determining that the 911 tape was relevant evidence, and thus,
admissible.

Sholes, 99-2414, p. 8, 782 So. 2d at 696 (emphasis added).

In the instant matter, as in King and Sholes, we find that the relevancy of the

victim’s audio identification of defendant as her attacker outweighs the danger of

unfair prejudice resulting from the victim’s emotional reaction when confronted

with a photograph of her alleged rapist. The victim’s emotional trauma, as

evidenced in the audio recording, does not diminish the probative value and

admissibility of the recording. Thus, we find the trial court did not abuse its

discretion in denying defendant’s motion to exclude the audio recording of the

identification.

Motion to allow introduction of evidence of mental disease or defect

Defendant argues that the trial court abused its discretion in denying

defendant’s motion to allow introduction of evidence of mental disease or defect to

rebut the element of intent to commit the crimes.

10

Defendant acknowledges that he entered pleas of not guilty to the charged

crimes of first degree rape and home invasion. Defendant did not enter a dual plea

of “not guilty” and “not guilty by reason of insanity” pursuant to La. C.Cr.P. art.

651. Nevertheless, defendant seeks to introduce at trial evidence of mental disease

and defect to show that he did not have the requisite intent to rape the victim.

According to defendant, due to his mental health condition, his perception of the

encounter with the victim may well have been construed by him to have been “a

consensual, romantic connection….”

La. C.Cr.P. art. 651 provides: “When a defendant is tried upon a plea of ‘not

guilty’, evidence of insanity or mental defect at the time of the offense shall not be

admissible.” In the seminal case of State v. Lecompte, 371 So.2d 239, 243 (La.

1978), the defendant, contrary to the provisions of Article 651, sought to introduce

psychiatric testimony though he had not entered a plea of not guilty and not guilty

by reason of insanity. Defendant wanted to introduce the psychiatric evidence to

show that he did not have the requisite intent to commit the crime of attempted

forcible rape. The Court found that evidence of a mental defect or mental disorder,

absent a plea of not guilty and not guilty by reason of insanity, was not admissible.

“A mental defect or disorder short of insanity cannot serve to negate specific intent

and reduce the degree of the crime.” Id. (citations omitted).

Louisiana jurisprudence has consistently upheld the clear provisions of

Article 651, requiring a dual plea of “not guilty” or “not guilty by reason of

insanity” for evidence of a defendant’s alleged mental defect to be admissible.

See State v. Leatherwood, 411 So.2d 29, 34 (La. 1982) (based on the provisions of

Article 651, Court upheld trial court’s exclusion of expert testimony regarding the

defendant’s mental condition to prove he lacked the necessary criminal intent to

11

commit the offenses for which he was charged); State v. Carter, 97-2902, p. 18

(La. App. 4 Cir. 5/10/00), 762 So.2d 662, 675, writ denied, 00-1598 (La. 6/15/01),

793 So.2d 1233, cert. denied, 534 U.S. 1116, 122 S.Ct. 926, 151 L.Ed.2d (2002)

(“Although the defendant initially pleaded not guilty and not guilty by reason of

insanity, she later withdrew that plea and was proceeding at trial under a plea of

not guilty. Therefore, evidence regarding the defendant's insanity or mental defect

at the time of the offense was inadmissible and irrelevant.”); State v. Dixon, 95-

0269, p. 4 (La. App. 4 Cir. 1/19/96), 668 So.2d 388, 391, writ denied, 96-0332 (La.

5/17/96), 673 So.2d 608, cert. denied, 519 U.S. 983, 117 S.Ct. 438, 136 L.Ed.2d

335 (1996) (evidence of mental defect “was properly excluded in the absence of an

insanity plea.”); State v. Brown, 19-1462, p. 9 (La. App. 1 Cir. 8/5/20), 311 So.3d

355, 361 (“It is well-settled that when a defendant is tried upon a plea of not guilty,

evidence of insanity or mental defect at the time of the offense shall not be

admissible.”); State v. Veillon, 19-606, p. 16 (La. App. 5 Cir. 7/29/20), 297 So.3d

1091, 1104, writ denied, 20-01297 (La. 2/9/21), 310 So.3d 178 (“In the absence of

a plea of insanity, evidence of insanity or mental defect is not admissible as a

complete defense or for the purpose of negating specific intent.”); State v. Conner,

49,351, p. 14 (La. App. 2 Cir. 11/19/14), 152 So.3d 209, 218 (“When a defendant

is tried upon a plea of ‘not guilty,’ evidence of insanity or mental defect at the time

of the offense shall not be admissible.). Accordingly, the trial court did not err in

denying defendant’s motion to allow evidence regarding mental disease or defect.

12

CONCLUSION

For the foregoing reasons, we grant defendant’s writ, in part, and reverse the

trial court’s ruling allowing the State to admit evidence of other crimes, wrongs, or

acts under La. C.E. art. 412.2. In all other respects, the defendant’s writ is denied.

WRIT GRANTED, IN PART; WRIT DENIED, IN PART

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