State of Louisiana Versus Donald Warden

STATE OF LOUISIANA NO. 24-K-609

VERSUS FIFTH CIRCUIT

DONALD WARDEN COURT OF APPEAL

STATE OF LOUISIANA

January 14, 2025

Linda Wiseman
First Deputy Clerk

IN RE DONALD WARDEN

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT,
PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE CONNIE M. AUCOIN,
DIVISION "C", NUMBER 20,570

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Marc E. Johnson

WRIT DENIED

Relator, Donald Warden, seeks review of the 29th Judicial District Court’s

November 19, 2024 ruling denying his Motion to Quash Because of Misjoinder of

Offenses. For the following reasons, we deny the writ.

On March 24, 2021, a St. Charles Parish Grand Jury indicted defendant,

Donald Warden, with three counts of sexual battery of a juvenile under thirteen in

violation of La. R.S. 14:43.1(A)(2)(C)(2). According to the St. Charles Parish online

database, Relator was arraigned and pled not guilty on April 15, 2021.

On September 23, 2024, Relator filed a Motion to Quash Because of

Misjoinder of Offenses. In that motion, Relator argued that the three counts, for

crimes allegedly committed against three different victims at different times, cannot

be joined pursuant to La. C.Cr.P. art. 493.2. He argued that trying the counts together

will blend them into one allegation and will be highly prejudicial. Relator referenced

State v. Coston, 00-1132 (La. App. 4 Cir. 9/5/01), 800 So.2d 907, writ denied, 01-

2819 (La. 10/4/02), 826 So.2d 1115, and asserted that trying the counts together

invokes all five prongs set forth in Coston. Relator argued that the charges must be

severed if he is to have a fair trial.

Under Louisiana law, joinder of offenses is addressed by La. C.Cr.P. art. 493.

Article 493 allows the joinder of offenses which “are based on the same act or

transaction or on two or more acts or transactions connected together or constituting

parts of a common scheme or plan; provided that the offenses joined must be triable

by the same mode of trial.” La. C.Cr.P. art. 495.1 further provides if a defendant is

prejudiced by the joinder of offenses in the indictment or by joinder for trial, the court

may “order separate trials, grant a severance of offenses, or provide whatever other

relief justice requires.” A misjoinder of offenses may only be urged by a motion to

quash the indictment. La. C.Cr.P. art. 495.

In determining whether prejudice may result from a joinder of
offenses, a trial court should consider whether the jury would be
confused by the various counts, whether the jury would be able to
segregate the various charges and evidence, whether the defendant
would be confounded in presenting his various defenses, whether the
crimes charged would be used by the jury to infer a criminal disposition,
and whether, especially considering the nature of the charges, the
charging of several crimes would make the jury hostile.

State v. Lyles, 03-141 (La. App. 5 Cir. 9/16/03), 858 So.2d 35, citing State v.

Washington, 386 So.2d 1368 (La. 1980); State v. Every, 96-185 (La. App. 5 Cir.

7/30/96), 678 So.2d 952, 958; See also Coston, 800 So.2d at 914. Additionally, the

trial court must consider whether prejudice from the joinder of offenses can be

mitigated by clear jury instructions and by an orderly presentation of evidence by the

State. State v. Manuel, 20-172 (La. App. 5 Cir. 6/2/21), 325 So.3d 513, 558, writ

denied, 21-926 (La. 10/12/21), 325 So.3d 1071. Finally, there is no prejudicial effect

from joinder of offenses when the evidence of each is relatively simple and distinct,

so that the jury can easily keep the evidence of each offense separate in its

deliberations. State v. Achelles, 16-170 (La. App. 5 Cir. 12/21/16), 208 So.3d 1068,

1080.

It is well settled that a defendant has a substantial burden of proof when he

alleges prejudicial joinder of offenses. Lyles, supra; Manuel, supra. A defendant is

not entitled to a severance as a matter of right, rather, the decision is one resting

within the sound discretion of the trial court. A denial of a motion to sever will not be

overturned absent a clear abuse of discretion. Id. In ruling on such a motion, the trial

court must weigh the possibility of prejudice to the defendant against the important

considerations of economical and expedient use of judicial resources. State v.

Molette, 17-697 (La. App. 5 Cir. 10/17/18), 258 So.3d 1081, 1091, writ denied, 18-

1955 (La. 4/22/19), 268 So.3d 304.

Further, piecemeal litigation is not sanctioned by the courts and, where the

same witnesses would be called to testify in both trials, judicial economy dictates that

there be one trial. See State v. Hicks, (La. App. 5 Cir. 10/17/18), 258 So.3d 1039,

1050, writ denied, 18-1938 (La. 4/15/19), 267 So.3d 1123. In its determination of

whether charged offenses should be severed for trial, the trial court may consider

whether evidence of one offense would have been admissible as other crimes

evidence at the trial of the other offense. State v. Maize, 16-575 (La. App. 5 Cir.

6/15/17), 223 So.3d 633, 646, writ denied, 17-1265 (La. 4/27/18), 241 So.3d 306

(citing La. C.E. art. 404 B(1); State v. Prieur, 277 So.2d 126 (La. 1973); State v.

Butler, 08-662 (La. App. 5 Cir. 5/26/09), 15 So.3d 1091, 1102, writ denied, 09-1513

(La. 3/5/10), 28 So.3d 1004. However, the fact that evidence of one of the charges

would not be admissible under Prieur in a separate trial on the joined offense does

not, per se, prevent the joinder and single trial of both crimes if the joinder is

otherwise permissible. Id.

Upon review, we find that the trial court did not abuse its discretion in denying

Relator’s Motion to Quash Because of Misjoinder of Offenses. Based on the facts as

presented by the State, Relator has been charged with three counts of committing the

same offense of sexual battery of a juvenile under 13 years old against three of his

grandchildren while watching television in the victims’ living room. Thus, we find

that the counts are of the same or similar character as contemplated by La. C.Cr.P.

art. 493 and were, therefore, properly charged in the same bill. Relator also has not

presented sufficient evidence that any potential prejudice from the joinder of the

offenses cannot be mitigated by clear jury instructions and by an orderly presentation

of evidence by the State.

Further, based on the allegations presented in the affidavit for arrest warrant,

some of the same witnesses would be called in each of the separate trials. Two of the

victims witnessed abuse against the third victim. The district court noted that the

evidence of each offense would be admissible at the trial of the other offenses. Thus,

judicial economy dictates that there be one trial.

In this writ application, Relator argues that the judge did not give sufficient

consideration to two factors, specifically whether the crimes charged would be used

by the jury to infer a criminal disposition and whether considering the nature of the

charges, the charging of several crimes would make the jury hostile. Relator appears

to assert that this Court should be persuaded or bound by the analysis conducted by

the fourth circuit in Coston, supra.

In Coston, after the defendant’s full trial on the merits on four counts of armed

robbery, the fourth circuit found that the defendant presented no evidence that the

State joined the offenses to show the defendant’s criminal propensity, or evidence of

jury hostility as a result of the joinder. In Washington, 386 So.2d at 1371, the

Supreme Court articulated the five-pronged test to determine whether joinder was

proper, used in both Coston and Lyles. The Court explained the trial court should

weigh the five factors, but “must weigh the possibility of prejudice versus the

important considerations of judicial economy and administration”, and “there must be

a showing of clear prejudice” in order for the appellate court to reverse the trial

court’s ruling. (Emphasis added). Therefore, in the instant case, the district court did

not commit error when it did not give equal consideration to all five prongs of the test

at this stage of the proceedings.

Further, in Lyles and the instant case, the defendants have been accused of

sexually assaultive behavior against children under the age of seventeen. “When an

accused is charged with a crime involving sexually assaultive behavior, or with acts

that constitute a sex offense involving a victim who was under the age of seventeen at

the time of the offense, evidence of the accused’s commission of another crime,

wrong, or act involving sexually assaultive behavior or acts which indicate a lustful

disposition toward children 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.” La. C.E. art. 412.2.

Any inculpatory evidence is “prejudicial” to a defendant,
especially when it is “probative” to a high degree. Prejudice limits the
introduction of probative evidence of prior misconduct only when it is
unduly and unfairly prejudicial. The term “unfair prejudice,” as to a
criminal defendant, speaks to the capacity of some concededly relevant
evidence to lure the fact-finder into declaring guilt on a ground different
from proof specific to the offense charged.

State v. Breaux, 22-581 (La. App. 5 Cir. 5/10/23), 366 So.3d 727, 735 (citations

omitted).

Considering the foregoing, we find that the district court did not err when it

surmised that the counts against Relator are of similar character, and evidence

regarding Relator’s alleged acts against each victim and would be admissible at each

trial, if the court were to sever the offenses. Further, we find that the probative value

of the cumulative evidence outweighs the danger of undue prejudice on the showing

made. Therefore, the district court did not abuse its discretion when it denied

Relator’s motion to quash. Accordingly, the writ is denied.

Gretna, Louisiana, this 14th day of January, 2025.

MEJ
SMC
FHW

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 01/14/2025 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-609
E-NOTIFIED
29th Judicial District Court (Clerk)
Honorable Connie M. Aucoin (DISTRICT JUDGE)
Steven F. Griffith, Sr. (Relator)

MAILED
Honorable Joel T. Chaisson, II
(Respondent)
Payal Patel (Respondent)
Assistant District Attorney
Twenty-Ninth Judicial District Court
Post Office Box 680
Hahnville, LA 70057