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 15, 2024

Linda Wiseman
First Deputy Clerk

IN RE DAVEON GILMORE

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE R. CHRISTOPHER
COX, III, DIVISION "B", NUMBER 22-2656

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

WRIT GRANTED IN PART AND DENIED IN PART

Relator/Defendant, Daveon Gilmore, seeks supervisory review of the trial
court’s July 11, 2024 ruling, which granted the State’s La. C.E. art. 404(B)
motion.1 In his application, relator also seeks a stay of the trial, currently set for
August 19, 2024.

BACKGROUND

On June 16, 2022, a Jefferson Parish Grand Jury returned a true bill of
indictment charging relator with the second-degree murder of Ahmad Howard in
violation of La. R.S. 14:30.1, that occurred on or about February 21, 2022. Also
charged in the bill of indictment with second degree murder are Orlando
Washington and Daveon Gilmore.

The State filed notice of its intent, which seeks to introduce at trial three
YouTube videos, text messages and a photograph as res gestae and/or La. C.E. art.
404(B) evidence to establish defendant’s association with a gang known as the
“Betty Street Youngins” (BSY) a/k/a “Drizzy Block.” This evidence, the State
1
La. C. E. art. 404 provides in pertinent part:
B. Other crimes, wrongs, or acts; creative or artistic expression. (1)(a) Except as provided in Article 412 or as
otherwise provided by law, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident,
provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in
advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it
relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present
proceeding.

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argues, is necessary to establish Ahmad Howard was killed in a gang retaliation
murder. A USB storage device containing three YouTube videos and a still photo
of defendants, Daveon Gilmore and Orlando Washington, was filed as a
supplement to the writ.

After a hearing on July 11, 2024, the trial court ruled the evidence
admissible at trial. In its ruling on the record, the trial court articulated its findings
supporting the evidence to be admissible as res gestae as follows: (1) the evidence
is so closely connected with the alleged criminal conduct that it constitutes res
gestae, or part of the things done; (2) the evidence is admissible for narrative
completeness, without which the State’s case would lose its completeness, without
which the State’s case would lose its cohesiveness; and (3) the evidence completes
the story by providing context to the events in question.

The trial court also determined that the evidence is admissible under La.
C.E. art. 404(B). As the trial court pointed out, La. C.E. 404(B) allows for
introduction of evidence to establish motive, intent, preparation, plan, knowledge,
and identity. In its balancing analysis under La. C.E. art. 403, the trial court found
the evidence the State seeks to introduce to be relevant and that its probative value
is not outweighed by the danger of unfair prejudice to Misters Gilmore, Gilmore,
and Washington, stating: “[o]f course the evidence will be prejudicial to the
defendants, however, I find that it will not be unduly or unfairly prejudicial to
them.” This timely writ application followed.

In his writ application, relator argues the trial court’s granting of the State’s
motion to introduce the rap videos was an abuse of its discretion. Relator avers the
State intends to argue that the murder of Mr. Howard was in retaliation for the
murder of Jamarian Price, a BSY member, who was killed nine days earlier. He
contends that the evidence is not res gestae evidence and does not satisfy
admission under La. C.E. art. 404(B). The focus of relator’s argument is that
State’s evidence fails to establish his association with BSY and its introduction
will be unfairly prejudicial. Relator does not appear to challenge the court’s ruling
admitting the text messages or photograph.

Submitted with relator’s writ application is a USB storage drive containing
three audio-video recordings published to You Tube and a still photograph of two
individuals, identified as Daveon Gilmore and Orlando Washington. The first
video is entitled “BSY GIRLS – Betty Talk,” which primarily depicts four young
females wearing “BSY” chain pendants performing a rap with the chorus ‘reppin
on Betty Street.’ The second video is entitled “TShots x Young3Boy x Denoy” and
depicts a group of young males rapping while brandishing firearms. Included in
the video is the image of a young man wearing a white suit with a blue bow tie on
a cardboard cutout. The third video, entitled “ProjectBabyRuga x Kayy Banga,”
depicts a group of young males rapping inside of a residence. The lyrics of the rap
ostensibly describe the act of a drive by shooting. The still photograph on the USB
storage device depicts two young males appearing to display symbolic hand
gestures.

On appellate review, the trial court’s determination on the admissibility of
evidence will not be overturned absent an abuse of discretion. State v. Brown, 17-
348 (La. App. 5 Cir. 12/20/17), 235 So.3d 1314, 1324, writ denied, 18-158 (La.
11/5/18), 256 So.3d 276. Relator presents three arguments in support of his
contention that the trial court abused its discretion  (1) the State failed to

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authenticate the audio-video recordings; (2) the rap videos are not res gestae
evidence because they fail to show an integral act of the offense; and (3) the videos
are not evidence of other crimes.

In a pre-trial hearing under La. C.E. art. 404(B)(1), the state is required to
make a showing of sufficient evidence that the defendant committed the other
crime, wrong, or act. State v. Taylor, 16-1124 (La. 12/1/16), 217 So.3d 283, 297.
In this case, relator argued that the rap videos had not been authenticated and were
posted years before the indicted murder charges; do not connect relator to the
supposed retaliation shooting; and may result in the jury considering relator
responsible for the charged murder merely by association. But as noted by the
Louisiana Supreme Court, “the rules of evidence are relaxed in a pre-trial hearing
to determine what evidence may be offered at trial.” Id at 294. This ruling does
not, however, relieve the State from its requirement to meet the rules of evidence
for introduction of such evidence at trial. Id. “[T]he state will obviously be
required to adhere to the rules of evidence when presenting evidence of the
[404(B) 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.” Id. at
294.

Thus, upon review for sufficiency of the evidence, we do not find the trial
court’s order of July 22, 2024 related to videos 2 & 3 was an abuse of discretion.
We do, however, find that the trial court erred when it ruled that the State had
made a sufficient showing as it relates to video 1. Video 1 depicts four young
females, none of whom are the defendants or identified by the State as potential
witnesses.

We further find that the trial court did not abuse its discretion by ruling the
evidence admissible under res gestae and 404(B). The State argues that this
evidence is critical to its theme of the case that the subject murder was gang related
and retaliatory. And the trial court is in the best position to weigh this video
evidence in light of all other evidence.

Therefore, we grant the writ application in part and deny it in part. We also
deny the request for stay.

Gretna, Louisiana, this 15th day of August, 2024.

TSM
SUS

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STATE OF LOUISIANA NO. 24-K-368

VERSUS FIFTH CIRCUIT

DAVEON GILMORE COURT OF APPEAL

STATE OF LOUISIANA

JOHNSON, J., DISSENTS, IN PART, WITH REASONS
I, respectfully, dissent in part from the majority disposition on whether the

trial court erred in granting the State’s notice of intent to introduce the YouTube

music videos and photograph as res gestae and/or La. C.E. art. 404(B) evidence

to establish Defendant’s, Daveon Gilmore, association with an alleged gang.

The State intends to introduce the videos and photograph as evidence that

the second degree murder of Ahmad Howard was a gang-related and in retaliation

for the killing of Jamarian Price that occurred nine days earlier. In order for other

crimes evidence to be admitted under La. C.E. art(B)(1), one of the factors

enumerated in the article must be at issue, have some independent relevance, or

be an element of the crime charged. State v. Garcie, 17-609 (La. App. 5 Cir.

4/11/18), 242 So.3d 1279, 1284. Moreover, the probative value of the extraneous

evidence must outweigh the prejudicial effect. Id.

Here, 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

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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 for its

position, I would grant the writ application and reverse the trial court’s granting

of the State’s notice of intent to introduce the YouTube videos and photograph.

MEJ

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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 08/15/2024 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