State of Louisiana Versus Daveon Gilmore

STATE OF LOUISIANA NO. 24-K-368

VERSUS FIFTH CIRCUIT

DAVEON GILMORE COURT OF APPEAL

STATE OF LOUISIANA

August 16, 2024

Susan Buchholz
Chief Deputy Clerk

ON APPLICATION FOR REHEARING

Panel composed of Marc E. Johnson,
Scott U. Schlegel, and Timothy S. Marcel

REHEARING GRANTED;
AUGUST 15, 2024 RULING VACATED AS TO VIDEO 1;
WRIT DENIED.
TSM
SUS

DISSENTS WITH REASONS

MEJ

REHEARING GRANTED

On August 15, 2024, we granted in part and denied in part the writ
application of relator-defendant Daveon Gilmore concerning the admissibility of
three audio-video recordings published to YouTube under La. C.E. 404(B) and as
res gestae evidence. Our decision denied relator’s application as to two audio-
video recordings, which are identified therein as Video 2 and Video 3. However,
as to Video 1, we found the trial court abused its discretion in finding the State
failed to satisfy its burden for demonstrating that audio-visual recording satisfied
res gestae and/or 404(B) admissibility requirements.

The State has timely filed an application for rehearing pursuant to Rule 4-9
of the Uniform Rules of Louisiana Courts of Appeal on the granting of relator’s
writ concerning the admissibility of Video 1 at trial. Relator, along with two co-
defendants Davon Gilmore and Orlando Washington, are charged by bill of
indictment with the second-degree murder of Ahmad Howard. The State avers that
Mr. Howard was murdered in retaliation for the killing of a “Betty Street
Youngins” (BSY) gang member nine days before. It argues the three audio-video
recordings are relevant to prove relator and the co-defendants are BSY members.
Relator opposes the admissibility of the audio-video recordings, arguing the State
failed to authenticate the audio-video recordings in the pre-trial hearing, the videos
recordings are not res gestae evidence because they do not show an integral act of
the offense, and the videos are not evidence of other crimes.

In support of its request for rehearing, the State asserts Video 1 contains
depictions of relator and a co-defendant making hand signs which it contends are
“gang signs” attributable to the BSY. The contents of Video 1 are primarily a rap
performance by four young women. However, there are young males who appear
for brief moments in that audio-visual recording.

The trial court ruled all three videos are admissible as res gestae evidence as
well as under La. C.E. 404(B). In its reasons on the record, the trial court found
the evidence to be closely connected with the alleged criminal conduct that it
constitutes res gestae, or part of the things done, that the evidence provides context
to the events in question, and completes the State’s intended evidence narrative. In
its balancing test under La. C.E. 403, the trial court concluded that defendant's
"gang affiliation" would be relevant and admissible to show defendants motive,
intent, preparation, plan, knowledge, and identity, and that probative value
outweighs the danger of unfair prejudice.

In our original disposition, we found the trial court did not abuse its
discretion in ruling Video 2 and Video 3 to be admissible at trial as 404(B) and res
gestae evidence. However, we pointed out the trial court may nonetheless exclude
introduction of that evidence from trial should the State fail to satisfy all other
applicable rules of evidence. See: State v. Taylor, 16-1124 (La. 12/1/16), 217
So.3d 283. The trial court’s finding of Video 1’s admissibility as res gestae
evidence and as evidence of motive, intent, preparation, plan, knowledge and
identity was compromised by the lack of apparent connection between Video 1 and
relator and his co-defendants. Considering the State’s representation in its
application for rehearing that Video 1 depicts relator and a co-defendant, and the
State’s obligation to adhere to the rules of evidence in its offer of 404(B) and res

1

gestae evidence at trial, we vacate our August 15, 2024 ruling to the extent that it
granted relator’s relief as to Video 1, and deny the writ.

REHEARING GRANTED;
AUGUST 15, 2024 RULING
VACATED AS TO VIDEO 1;
WRIT DENIED

2

STATE OF LOUISIANA NO. 24-K-368

VERSUS FIFTH CIRCUIT

DAVEON GILMORE COURT OF APPEAL

STATE OF LOUISIANA

JOHNSON, J., DISSENTS WITH REASONS

I, respectfully, dissent from the majority’s decision to grant the State’s

rehearing application and reverse the ruling on admission of the “BSY GIRLS –

Betty Talk” YouTube video. As I stated in my dissent for the original disposition,

the State failed to authenticate the evidence by establishing the dates any of the

videos were created and identifying the people and/or images in the videos. The

State simply presented a photo and people in music videos brandishing guns and

rapping lyrics, which do not directly relate Defendant’s alleged involvement in Mr.

Howard’s murder. Additionally, the State failed to sufficiently show that the videos

and photo are res gestae evidence or have substantial relevance independent from

showing Defendant’s general criminal character. Without further support from the

State, the introduction of any of the videos and the photo will be highly prejudicial

to Defendant and the resulting prejudice will vastly outweigh the probative value of

the evidence.

Therefore, because of the State’s lack of supporting evidence actually

submitted to the trial court, I would deny the State’s application for rehearing.

1

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 08/16/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-K-368
E-NOTIFIED
24th Judicial District Court (Clerk)
R. Christopher Cox, III (DISTRICT JUDGE)
Mark D. Plaisance (Relator) Thomas J. Butler (Respondent)

MAILED
Remy V. Starns (Relator) Chad Rice (Relator) Marcus J. Plaisance (Relator)
Attorney at Law Attorney at Law Attorney at Law
301 Main Street 848 Second Street Post Office Box 1123
Suite 700 3rd Floor Prairieville, LA 70769
Baton Rouge, LA 70825 Gretna, LA 70053

Rachel L. Africk (Respondent)
Assistant District Attorney
Twenty-Fourth Judicial District
200 Derbigny Street
Gretna, LA 70053