State of Louisiana v. Charles Brown, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1747

STATE OF LOUISIANA

VERSUS

CHARLES BROWN, JR.

**********
APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 01-389
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

**********
JOHN B. SCOFIELD
JUDGE
**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Glenn B. Gremillion and
John B. Scofield*, Judges.

CONVICTIONS AND SENTENCES ANNULLED AND SET ASIDE;
CASE REMANDED FOR A NEW TRIAL.

Sherry Watters
Louisiana Appellate Project
P. O. Box 58769
New Orleans, LA 70518-8769
Counsel for Defendant/Appellant:
Charles Brown, Jr.

Hon. J. Phillip Haney, District Attorney
Walter J. Senette, Jr., Asst. District Attorney
P. O. Box 1008
Franklin, LA 70538
Counsel for Appellee:
State of Louisiana

*
Honorable John B. Scofield participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

SCOFIELD, Judge1.

Charles Nicolas Brown was charged by bill of information with attempted

forcible rape in violation of La.R.S. 14:42.1 and 14:27, and aggravated burglary in

violation of La.R.S. 14:60. The alleged offenses occurred on March 3, 2001.

Defendant was found guilty as charged by a jury on June 18, 2003. Thereafter, on

June 26, 2003, the State filed a habitual offender bill alleging Defendant was a second

felony offender. Thereafter, on July 9, 2003, Defendant, after admitting he was a

second felony offender and waiving all applicable delays, was sentenced to twenty-

five years on the conviction for aggravated burglary, second offense, and fifteen years

on the conviction for attempted forcible rape, with credit for time served. The

sentences were ordered to be served concurrently with each other, but consecutively

to any other sentence the Defendant may have been serving at the time.

Defendant now appeals the convictions. He alleges that the trial court erred

when it did not recuse itself on Defendant’s motion; that the ad hoc judge erred in

denying that motion; that the trial court erred when it admitted evidence of a prior

conviction, the statement of facts relative to the prior conviction and when it failed to

give a limiting jury instruction in connection with the admission of the prior

conviction; that Defendant was subjected to a double jeopardy violation; and that there

was insufficient evidence to support the convictions. Defendant also raises the issues

of whether his right to a speedy trial was violated and whether the State was

incorrectly relieved of the burden of proof of intent on the aggravated burglary charge.

FACTS:

1
Honorable John B. Scofield participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

1

On March 3, 2001, between three and five o’clock in the morning, Defendant

entered the home of C. and R. F., without permission, and attempted to have sexual

intercourse with the eleven-year-old victim, D.T.

Because we find merit in Defendant’s Assignments of Error numbers one and

two, we will address those errors first.

ASSIGNMENT OF ERROR NUMBER 1:

In this assignment of error, the Defendant asserts the trial court should have

recused itself upon Defendant’s motion to recuse. Defendant asserts the trial judge,

the Honorable Keith Comeaux, was his defense attorney when the Defendant pled

guilty to a charge of attempted forcible rape in 1987. Louisiana Code of Criminal

Procedure Article 671, grounds for recusation of judge, in pertinent part, holds:

A. In a criminal case a judge of any court, trial or appellate, shall
be recused when he:

....

(3) Has been employed or consulted as an attorney in the cause,
or has been associated with an attorney during the latter’s employment
in the cause;

....

(6) Would be unable, for any other reason, to conduct a fair and
impartial trial.

In State v. Williams, 00-11, p. 11 (La.App. 4 Cir. 5/9/01), 788 So.2d 515, 525,

the fourth circuit discussed the recusal of a trial judge as follows:

These grounds [Article 671] are exclusive, not illustrative. In re
Lemoine, 96-0-2116, pp. 10-11 (La.1/14/97), 686 So.2d 837, 843, on
rehearing 96-0-2116 (La.4/4/97), 692 So.2d 358. The party desiring to
recuse a trial judge shall file a written motion assigning the ground for
recusation. La.C.Cr.P. art. 674. If a valid ground for recusation is set
forth in the motion for recusation, the judge shall either recuse himself,
or, in a court having two or more judges, as is the case in the instant
matter, refer the motion to another judge of that court. La.C.Cr.P. art.

2

674; 675. A trial court has discretion to determine if there is a valid
ground for recusation set forth in the motion. State v. Williams, 96-1587,
p. 5 (La.App. 4 Cir. 4/16/97), 693 So.2d 249, 252.

Defendant filed a motion to recuse on the morning trial was to begin based on

paragraphs (3) and (6) of La.Code Crim.P. art. 671. The Honorable Gerard Wattigny

presided over the hearing on the motion. The Defendant testified that Judge Comeaux

represented him when he pled guilty to attempted forcible rape in 1987. I n

response to the motion, the State offered a certified copy of the record from

Defendant’s previous file, docket number 41,576, wherein he pled guilty to the charge

of attempted forcible rape in 1987, which indicated that the attorney representing him

at the plea hearing was Bill Collins. Defense counsel noted to the court that he had

reviewed the transcript of the guilty plea and sentencing with the Defendant and

stated:

The record does indicate Mr. Collins was his attorney. The file
folder, Your Honor, has Keith Comeaux’s name on it: Attorney for
defendant, Keith Comeaux, it’s dated 9/9/87, and below it Bill Collins,
12/10/87. 12/10/87 was the date he pled guilty and was sentenced.

At the recusal hearing, Brown’s testimony regarding Judge Comeaux’s role in

Brown’s prior conviction was hardly a model of clarity. Part of that seems to be due

to Brown’s misunderstanding questions posed to him. For instance, he didn’t know

what was meant by the question “In what capacity did he [Judge Comeaux] represent

you?”. Brown did say, however, that Judge Comeaux was his lawyer when he pled

guilty and when he was sentenced and that Judge Comeaux was the only one (lawyer)

with whom he had talked. Brown stated that the reason he wanted Judge Comeaux

recused was because Judge Comeaux did not look out for his best interests back in

71987 and , therefore, Brown believed Judge Comeaux was not going to make sure

he got a fair trial on the current charges.

3

The Defendant further argues that Judge Comeaux admitted he represented the

Defendant at the guilty plea hearing on the 1987 conviction and that since the prior

conviction was allowed to be admitted into evidence at the current trial, the trial judge

was “‘employed as an attorney in the cause’ and a potential witness. It was mandatory

that he be recused on the defendant’s motion.”

We note that on March 27, 2003, three months prior to trial, at a hearing

conducted on Defendant’s motion to represent himself, the following exchange took

place while the trial court was questioning the Defendant as to his ability to represent

himself:

THE COURT: I was a defense lawyer once. I think I represented you at
one time, didn’t I?

THE DEFENDANT: Yes, sir.

THE COURT: Let me ask you this. I didn’t [sic] tell you the truth all the
time?

THE DEFENDANT: I understand.

THE COURT: I told you things that sometimes would hurt you, and you
didn’t want to hear it, correct?

THE DEFENDANT: Yes, sir.

THE COURT: Sometimes you have to be honest with clients.
Sometimes whatever it may be, if its taking a deal or telling you a
witness is not going to testify a certain way, that may be in your interests
even though its not something you want to hear. Do you
understand that?

THE DEFENDANT: Yes, sir.
....

THE COURT: When I represented you and you pled guilty, did you talk
to your momma and your family about that?

THE DEFENDANT: No, sir.

4

At the hearing on Defendant’s motion to recuse Judge Comeaux, the Defendant

did not apprise Judge Wattigny of Judge Comeaux’s acknowledgment of his prior

representation of Defendant. Furthermore, the Defendant failed to inform Judge

Wattigny of the fact that the 1987 conviction was to be offered at the current trial,

although, in December 2002, the State had filed a notice of intent to use the prior

conviction.

It is well-settled jurisprudence that Article 671(A)(3) is to be strictly

interpreted. State v. Lemelle, 353 So.2d 1312 (La.1977); State v. Williams, 00-

11(La.App. 4 Cir. 5/9/01), 788 So.2d 515. In Lemelle, where the trial judge had

represented a co-defendant in the case, but claimed to have no independent

recollection of the representation, the Louisiana Supreme Court held:

That section, when read with the mandatory “shall” used in the
opening paragraph of article 671, requires recusal upon the mere
showing of employment in the case. There is no reference to whether that
employment was of such consequence as to prejudice the judge, nor is
there any requirement that the defendant show actual prejudice. The
article simply and clearly states that the trial judge shall be recused when
he has been employed as an attorney in the cause. The legislature, by
providing for a mandatory recusal in this situation, has apparently
concluded that the appearance of impartiality, as well as impartiality
itself, outweighs the inconvenience caused by the recusal of the trial
judge.

Id. at 1314. The supreme court found that the trial judge should have been recused

because of his prior representation of a defendant jointly charged with the same

offense.

In Williams, the fourth circuit held that for the purpose of Article 671(A)(3),

“assistant district attorneys operating under one district attorney are associated with

each other.” The trial judge was a former associate of the prosecuting attorney. The

fourth circuit stated:

5

Accordingly, just as in Lemelle, Judge Buras should have recused
herself upon the timely filed May 24, 1999, written motion of defendant.
Although, Judge Buras stated for the record that she had no recollection
of defendant or his case, and there is no suggestion of any bias, prejudice
or personal interest on her part, those factors are irrelevant for purposes
of a motion to recuse based on La.C.Cr.P. art. 671(A)(3).

Id. at 526.

In Lemelle and Williams, the trial judges either represented a co-defendant in

the case, or were, at one time, employed as a district attorney and worked with the

prosecutor in the case. These cases are somewhat distinguishable from the present

case in that Judge Comeaux is alleged to have represented the Defendant in an entirely

different matter. However, as noted, the Defendant asserts that Judge Comeaux

should have been recused because he represented him in a former case which resulted

in the conviction presented as other crimes evidence in the current trial. As trial

judge, he was required to rule on the admissibility of the prior conviction. Defendant

argues that, under those circumstances, the admission of the prior conviction is the

equivalent to being “employed or consulted as an attorney in the cause.” La.Code

Crim.P. art. 671(A)(3). After an exhaustive search, we have found no jurisprudence

on the precise issue raised in the instant case, i.e., where the trial judge represented a

defendant in a prior conviction and then ruled on the admissibility of the conviction

as other crimes evidence.

As noted above, none of the information regarding Judge Comeaux’s

acknowledgment that he represented the Defendant in the former case in which

Defendant pled guilty to the charge of attempted forcible rape, or the fact that the plea

was to be offered by the State as other crimes evidence, was submitted for the ad hoc

judge’s consideration. Had that information been presented to Judge Wattigny, he

may have reached a different decision.

6

We find merit to Defendant’s assignment of error. We find that Judge

Comeaux should have been recused and that Judge Wattigny erred when he did not

find grounds for recusal, pursuant to La.Code Crim.P. art. 671(A)(3). However,

La.Code Crim.P. art. 921 states that “[a] judgment or ruling shall not be reversed by

an appellate court because of any error, defect, irregularity, or variance which does not

affect substantial rights of the accused.” See also, State v. Wille, 595 So.2d 1149

(La.1992).

In Williams, 788 So.2d 515, the fourth circuit, while considering whether harm

resulted from the failure of the trial judge to be recused, stated:

Defendant’s argument herein is based on article 671(A)(3), which
concerns merely the appearance of impartiality. There is no evidence that
this defendant suffered any prejudice as a result of Judge Buras’ failure
to recuse herself. Unlike in Lemelle, wherein the judge represented the
codefendant in the same cause he later presided over with the defendant,
there is no evidence that Judge Buras had any personal involvement in
defendant’s cause. Although Judge Buras coincidentally was employed
with the district attorney’s office at the time the office was prosecuting
defendant, she stated that she had no recollection of defendant or his case
prior to assuming the bench.

Id. at 527. The fourth circuit found that the failure to recuse Judge Buras constituted

harmless error. The court noted that the judge did not rule on Williams’ motion to

suppress the evidence, or any matter important to Williams’ guilt or innocence. “There

was no indication that defendant would have faired better had Judge Buras been

recused. . . and a new judge appointed to accept defendant’s guilty plea.” Id. at 527.

The trial judge’s representation of the Defendant in the prior conviction, standing

alone, perhaps would not be grounds for recusal; however, this prior conviction

7

becomes a problem which takes on elevated prominence in the context of this case

when that conviction became a significant piece of evidence in the case at hand.2

As will be discussed in more detail hereinafter, the problem is escalated by the

failure of the judge to give a limiting statement in the context of the prior conviction

being offered into evidence. It is further exacerbated because there is nothing in the

record showing that during the recusal hearing, Judge Wattigny was informed that the

1987 conviction was going to be used as evidence in the case at hand. As will be

discussed further below, we find the failure to recuse Judge Comeaux was not

harmless error and did affect substantial rights of the accused.

That brings us to the Defendant’s second assignment of error.

ASSIGNMENT OF ERROR NUMBER 2:

Defendant alleges that he was convicted of the current offenses not on the

evidence or facts of the case, but because of his prior criminal history. The State

submitted documents into evidence of the Defendant’s 1987 conviction for attempted

forcible rape pursuant to La.Code Evid. art. 412.2, which provides:

A. 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 sexual offense 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.

B. In a case in which the state intends to offer evidence under the
provisions of this Article, the prosecution shall, upon request of the
accused, provide reasonable notice in advance of trial of the nature of
any such evidence it intends to introduce at trial for such purposes.

C. This Article shall not be construed to limit the admission or
consideration of evidence under any other rule.

2
If for no other reason, this evidence is significant because of the paucity of other evidence
against the Defendant. There was no physical evidence implicating the Defendant, no DNA
evidence, and no medical evidence supporting the claim of sexual contact. The testimony of the
young victim was hardly iron-clad.

8

Defendant asserts the trial court erred when it allowed the admission of this

evidence because its probative value was outweighed by its prejudicial effect,

especially since no limiting statement was given. Louisiana Code of Evidence Article

403 provides:

Although 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.

The Defendant argues that:

[w]here Art.412.2 is used, there must be other protections provided to
avoid Constitutional violations. The trial court herein failed to take those
precautions and erred in allowing the State to use L.S.A.-C.E. Art. 412.2
[sic] in three respects:

First, use of the documents of the conviction and allowing the
State to read a statement of facts denied Charles Brown Jr. the
opportunity to confront and cross examine the circumstances
surrounding that conviction and alleged facts. Second, since the Article
allows that the prior conviction “may be considered for its bearing on
any matter to which it is relevant”, it was error for the trial court to
refuse to instruct the jury as to limitations on the use and purpose of the
evidence. Third, where the State’s evidence was wholly lacking in this
case and the two cases were not factually similar, the prejudicial effect
of admitting Charles Brown Jr.’s prior conviction for forcible rape, far
outweighed its probative value. The prior conviction was not relevant
and had no legitimate purpose in the trial except to prejudice Charles
Brown Jr. The State’s use of the documents and the impossible to contest
statement of facts, denied Charles Brown Jr. a fair trial and due process
of law.

On the day of trial, out of the hearing of the jury, the Defendant stipulated that

he had pled guilty to attempted forcible rape, but objected to the introduction of the

factual basis of the guilty plea being read to the jury and requested that the trial court

read a limiting instruction to the jury regarding the use of the evidence of the prior

conviction. The trial court denied Defendant’s request, stating:

I’m going to allow this particular factual basis to be read in lieu of
witnesses being called to prove these particular facts. Additionally, I am
not going to give the limiting instruction because I don’t think it’s

9

required by 412.2 and, particularly, the case of State of Louisiana versus
Williams, 830 So.2d 984, in which the Supreme Court of Louisiana
indicated that no limiting instruction is required.

The following day, prior to the jury entering the courtroom, the Defendant again

objected to the use of the 1987 conviction. The trial court asked the State for what

purpose it intended to use the evidence. The State responded, “To show intent.”

Defendant argued that because the facts of the prior conviction do not correspond with

the facts of the current charge, the State’s introduction of the conviction would be

outweighed by the prejudicial effect under Article 403. After reviewing the statement

of facts, the trial court ruled that “it’s a very similar crime other than the fact that the

victim is a different age, Mr. Colwart. I’m going to find that the probative value

outweighs the prejudicial effect under a balancing act of 403. The Court will admit

the evidence.” The Defendant again asked the trial court to instruct the jury regarding

the limited use of the evidence, and again the trial court denied Defendant’s request.

The factual basis of the 1987 conviction read to the jury was as follows:

The stipulation is that on or about December 10, 1987, in Docket
#41,576, Mr. Charles Nicholas Brown, Jr. pled guilty to attempted
forcible rape under the factual basis by Mr. Lee, Your Honor. The State’s
evidence will indicate that on the date shown on the bill of information,
Mr. Brown came across Ms. Blanchard outside her home when she was
watering plants. He forced her into her apartment where he attempted to
engage in sexual intercourse, but was not successful after failing sexual
intercourse. During the course of the attempted rape, he committed
battery on Ms. Blanchard, resulting in numerous bruises about the face
and body.

The Defendant argues that La.Code Evid. art. 412.2 does not provide what

“evidence” can be used to prove the prior conviction, and asserts that the

documentation and statement of facts introduced to prove Defendant’s prior

conviction were impermissible hearsay statements. Defendant cites nothing to support

his contention that a recitation of the facts underlying the plea of guilty to attempted

10

forcible rape was hearsay, and in an exhaustive search, we found nothing to indicate

whether or not a statement of facts admitted at the time of a guilty plea would be

hearsay evidence in this situation. Thus, we disagree with Defendant’s argument that

this evidence is barred by the hearsay rule.

However, Defendant also argues that a reading of the facts of the prior

statement denied him the opportunity to confront the prior victim, “to determine

whether past and present allegations were sufficiently similar to make earlier

allegations relevant in the subsequent proceedings.” Defendant cites State v. Cotton,

00-850 (La. 1/29/01), 778 So.2d 569, wherein the supreme court affirmed the trial

court’s ruling denying the state’s request to admit as evidence a prior acquittal on

charges for similar offenses, finding that “[t]he State made no showing that the

defendant’s prior conduct is in any way similar to the conduct on which the current

charges are based.” Id. at 579. Cotton had been charged with molestation of a juvenile

and oral sexual battery. The issue was the admission of an acquittal as other crimes

evidence pursuant to Article 404(B) and whether the state had shown that the evidence

of the acquittal had any probative value. The state offered transcripts of the prior

prosecution, but the supreme court ruled that the state failed to show how Cotton’s

prior conduct was similar to the conduct on which the current charge was based.

Defendant argues that Cotton teaches that if there was not detailed evidence of the

past offense for comparison with the present offense, then the past offense is

prejudicial under Article 403. We are not completely convinced by this argument.

However, we note the dissimilarities between the Defendant’s conduct in the

two cases. In the case at bar, the Defendant sneaked into an apparently unlocked

house, in the dead of night, and attempted to take advantage of an eleven-year-old girl.

In the former case, the Defendant accosted a grown woman in her front yard in broad

11

daylight and, when he was unable to engage in sexual intercourse with her, battered

her about her face and body. We also note the events were separated in time by

seventeen years. The only similarity in the two attacks was that each had sexual

connotations, albeit neither involved a completed sexual act.

The gist of Defendant’s argument in this respect is that the admission of the

statement of facts had no other effect but to show he was of bad character and that the

State needed the evidence to prove the current charge of attempted forcible rape

because it had no other sufficient evidence. He also argues that since there was so

little similarity between the facts of the two offenses, the admission of the statement

was nothing more than an attempt to prejudice the jury against him. As noted above,

the State’s alleged purpose for introducing the prior conviction was to show intent,

since attempted forcible rape is a specific intent crime. The State had to show that the

Defendant acted with specific intent to arouse or gratify his own sexual desires or that

of his victim. See State v. Miller, 98-301 (La. 9/9/98), 718 So.2d 960.

The purpose of the newly enacted Article 412.2 was discussed by the Louisiana

Supreme Court at length in State v. Williams, 02-1030 (La. 10/15/02), 830 So.2d 984.

The issue in Williams, however, was whether for the purpose of Article 412.2, a

hearing was required by State v. Prieur, 277 So.2d 126 (La.1973). Historically,

evidence of prior bad acts (propensity evidence) were inadmissible to show that the

accused more than likely acted in conformity therewith. The Williams court found as

follows:

The transcript of the committee hearing reveals that Act 1130 was
prompted primarily by two decisions of this Court, State v. McArthur,
97-2918 (La.10/20/98), 719 So.2d 1037, and State v. Kennedy,
2000-1554 (La.4/3/01), 803 So.2d 916. Both cases involved prosecutions
for aggravated rape in which the state sought to introduce evidence of
other sexual offenses committed by the defendants pursuant to what the
state labeled a "lustful disposition" exception to other crimes evidence.

12

In both cases, this Court refused to recognize the so-called "lustful
disposition" exception to Article 404's other crimes prohibition, but, in
doing so, noted that the evidence sought to be introduced would be
admissible if Louisiana had a rule similar to Federal Rule of Evidence
413. The enactment of Article 412.2 was apparently the legislature's
response to this Court's statements in McArthur and Kennedy as the
language of Article 412.2 closely follows that of Federal Rule of
Evidence 413. However, one distinction exists between the federal rule
and the Louisiana rule. Federal Rule of Evidence 413 provides that the
"defendant's commission of another offense or offenses of sexual assault
is admissible, and may be considered for its bearing on any matter to
which it is relevant." Conversely, Louisiana's counterpart, Article 412.2
provides that the evidence "may be admissible ... subject to the
balancing test provided in Article 403." Although the legislature opted
not to make the evidence automatically admissible, it nonetheless
determined evidence of past sexual behavior of an accused should not be
totally foreclosed to the state. Prior to Article 412.2, evidence pertaining
to other crimes in sexual assault could only be admitted under the limited
exceptions of 404(B). The committee minutes indicate the senators were
concerned with the defendant's right not to be ambushed with evidence
of prior sexually deviant behavior, but were even more concerned
regarding the increase in sexual assaults on minors. In an attempt to
balance the latter concerns, the committee inserted language into the
final draft of the bill, which is in the current statute, requiring the state
to provide "reasonable notice" to the defendant regarding the information
to be introduced. The committee elected to insert this notice
requirement, but did not insert a requirement that a hearing be held.
La.Code Evid. art. 412.2 does not contain any language requiring a
hearing. The only requirement contained within the statute is that the
evidence be deemed admissible pursuant to La.Code Evid. art. 403. As
we stated in McArthur and reiterated in Kennedy, we desist from the
"exhortation to legislate when our legislature has chosen to leave the law
as written."

Id. at 988-89. (Footnotes omitted; emphasis as found in the original.)

There can be no question that the evidence of Brown’s prior conviction was

prejudicial. The test is whether its probative value outweighs its prejudicial effect.

The victim in the present case was an eleven-year-old girl. She was the type of victim

the legislature sought to protect when it lowered the standard set by La.Code. Evid.

art. 404(B) by enacting the separate and distinct Article 412.2. However, even the

13

lower standard set by La.Code. Evid. art. 412.2 subjects the evidence sought to be

admitted to the balancing test provided in Article 403.

In State v. Schleve, 99-3019, pp. 13-14 (La.App. 1 Cir. 12/20/00), 775 So.2d

1187, 1197-98, writs denied, 01-210, 01-113 (La.12/14/01), 803 So.2d 983, 804 So.2d

647, cert. denied, 537 U.S. 854, 123 S.Ct. 211(2002)(footnotes omitted)(emphasis

ours) our colleagues of the first circuit stated:

Generally, evidence of criminal offenses other than the offense
being tried is inadmissible as substantive evidence because of the
substantial risk of grave prejudice to the defendant. State v. Parker, 625
So.2d 1364, 1371 (La.App. 1st Cir. 1993), writ denied, 93-2832
(La.2/25/94), 632 So.2d 761. However, there are statutory and
jurisprudential exceptions to this rule. State v. Jackson, 625 So.2d 146,
148 (La.1993). For example. La. C.E. art. 404B(1) provides, in
pertinent part:

Except as provided in Article 412 [addressing the
victim's past sexual behavior in sexual assault cases],
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, ....

Additionally, several other statutory and jurisprudential rules also
play a role in determining the admissibility of such evidence. First, one
of the factors listed in Article 404(B) "must be at issue, have some
independent relevance, or be an element of the crime charged in order for
the evidence to be admissible." Jackson, 625 So.2d at 149. Second, the
state must prove by a preponderance of the evidence that the defendant
committed the similar act. See Huddleston v. United States, 485 U.S.
681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). Third, even if
independently relevant, the evidence may be excluded if its probative
value is substantially outweighed by the dangers of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of
undue delay, or waste of time. La. C.E. art. 403; State v. Miller,
98-0301 (La.9/9/98), 718 So.2d 960, 962. Finally, the state must
comply with the notice requirements and limiting instructions set out in
State v. Prieur, 277 So.2d 126 (La.1973). Thereunder, the state must,

14

within a reasonable time before trial, provide written notice of its intent
to use other acts or crimes evidence and describe these acts in sufficient
detail. The state must show the evidence is neither repetitive nor
cumulative, and is not being introduced to show the defendant is of bad
character. Miller, 98-0301, 718 So.2d at 962.

“[R]elevant, 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. . . .” La.Code. Evid. art. 403. Unlike State v. Olivieri, 03-563 (La.App. 5

Cir. 10/28/03), 860 So.2d 207, here the record indicates the jury was confused and the

evidence may have been presented in such a manner so as to cause confusion when

the facts of the 1987 conviction were read to the jury just prior to the victim’s

testimony. During deliberations, the jury sent two communications to the trial court.

In the first note, the jury asked if they could hear the tape or have a transcript of the

victim’s testimony. The second note asked if “we have 4 voting one way and 8

another–does that result in a hung jury? Must we have 10 people reach an agreement

on a verdict?” The trial court advised the jury that testimony could not be repeated

for them and sent them back to continue deliberations. The jury voted ten to two to

convict.

The determination of the admissibility of Defendant’s prior conviction is a very

close call and turns upon the extent and quality of the trial court’s limiting instruction

to the jury. No such limiting instruction was given. The State argues that Defendant

did not request such an instruction. However, the record is clear that such a request

was made twice by the Defendant. The trial court denied the request, saying no such

instruction was required by Williams.

This statement is erroneous in that the supreme court did not indicate in

Williams that a limiting instruction was not required. Rather, in Williams, the sole

issue was whether Article 412.2 required a Prieur hearing. Additionally, we have not

15

found anything subsequent to Williams regarding the application of Article 412.2 to

indicate a limiting instruction to the jury was not required upon proper request by the

defense pursuant to La.Code Evid. art. 105. As noted above, Article 105 (emphasis

ours) provides that when evidence which is admissible as to one purpose, but not to

another purpose, is admitted, upon request, the trial court “shall restrict the evidence

to its proper scope and instruct the jury accordingly.”

We find merit in the Defendant’s contention that the trial court erred when it

refused to give a limiting instruction upon his request as to the use and purpose of

Defendant’s 1987 conviction.

In State v. Green, 493 So.2d 588 (La.1986), wherein the trial court failed to

provide a limiting instruction as to Green’s prior convictions, the supreme court found

a substantial and constitutionally intolerable potential for prejudice despite counsel’s

failure to object or request said instructions. Green was charged with a violation of

La.R.S. 14:67(4), which is a recidivist statute. The supreme court stated:

The United States Supreme Court recognized that prior crime
evidence has a potentiality for prejudice and is usually excluded except
when it is particularly probative in showing such things as intent, a
system of criminal activity, or when the defendant has raised the issue of
his character, or when the defendant has testified and the state seeks to
impeach his credibility. [Spencer v.] Texas, 385 U.S. [554] at 560-62, 87
S.Ct. [648] at 651-53. But, the court noted that, in all these situations, the
conceded possibility of prejudice is believed to be outweighed by the
validity of the state’s purpose in permitting introduction of the evidence,
and that the defendant’s interests are believed to be protected by limiting
instructions and by the trial judge’s discretion to limit or forbid the
admission of particularly prejudicial evidence even through admissible
under an accepted rule of evidence. Id. at 561, 87 S.Ct. at 652.

Id. at 591.

In State v. Miller, 558 So.2d 1349 (La.App. 4 Cir. 1990), the accused was

originally tried for attempted aggravated rape. Miller was acquitted on that charge,

but recharged with simple kidnaping. The State was allowed to use the prior acquittal

16

during the second trial. The defendant appealed the conviction, alleging a double

jeopardy violation. The fourth circuit found no double jeopardy violation but found

that without the proper limiting instructions to the jury, the “introduction of the rape

evidence was unconstitutional because it violated the due process guarantee of

fundamental fairness.” Id. at 1351. The fourth circuit stated:

The U.S. Supreme Court found that the introduction of evidence of a
crime of which the defendant was previously acquitted may prejudice a
jury. Dowling [v.United States, 493 U.S. 342,] 110 S.Ct. [668] 674. In
that case the court held that the introduction of such evidence was not
fundamentally unfair because the judge had specifically instructed the
jury both after the witness testified and in his final charge to the jury that
the defendant had been acquitted of the other crime and that the evidence
of the other crime could only be considered for a very limited purpose.
Id. at 671, 674. In the instant case the record does not show that the
judge ever informed the jury that Miller had been acquitted of attempted
aggravated rape or that he explicitly limited the purpose for which the
rape evidence might be considered. Thus the introduction of the rape
evidence in the instant case without proper instruction was
fundamentally unfair, such that it violates the “‘fundamental conceptions
of justice which lie at the basis of our civil and political institutions,’
Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed.
791(1935), and which define ‘the community’s sense of fair play and
decency.’ Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 210, 96
L.Ed. 183 (1952).”

Id. at 13513.

In State v. Pollard, 98-1373 (La.App. 4 Cir. 2/9/00), 760 So.2d 362, Pollard

contended that the trial court erred in admitting other crimes evidence. The fourth

circuit agreed. The fourth circuit found that the introduction of an unadjudicated

aggravated rape dwarfed the facts of the forcible rape for which Pollard was on trial.

The fourth circuit noted further that the trial court did not give limiting instructions

as to the use and purpose of the evidence following the testimony, or at close of trial.

3
Miller was amended and affirmed by the supreme court in State v. Miller, 90-0673
(La.12/3/09), 571 So.2d 603, after the supreme court found there was a double jeopardy violation.
In a footnote, the supreme court said: “Because we find the defendant’s double jeopardy right has
been violated, we need not address the Court of Appeal’s ruling that the introduction of the evidence
of the attempted rape was fundamentally unfair.” Id. at 608.

17

The court stated: “We find these omissions to be error,” and reversed Pollard’s

conviction. Id. at 368.

The supreme court in Williams noted that the legislative committee minutes

indicated the senators were still concerned about the defendant’s rights regarding

other crimes evidence, thus they included the requirement that upon request the state

should provide reasonable notice of the use of the other crimes evidence. We find that

in enacting Article 412.2, the Legislature did not intend to abrogate La.Code Evid. art.

105, which provides when evidence is admitted that may be used for one purpose, but

not another, upon request, there “shall” be a limiting instruction as to its use and

purpose. A limiting instruction would also comply with the mandate of Article 403,

in avoiding unfair prejudice, confusion of issues, or misleading the jury.

We find the trial court erred when it refused to give a limiting instruction. We

must consider now whether the error was such that it caused substantial harm to the

Defendant.

In State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, the trial court

erroneously admitted other crimes evidence introduced by the State to attack the

credibility of the defendant under La.Code Evid. art. 609.1. In Johnson, the supreme

court overruled several prior cases and held “that the introduction of inadmissible

other crimes evidence results in a trial error subject to harmless error analysis.” Id.

at 102.

Furthermore in Johnson, the supreme court set forth an in-depth “harmless

error” analysis:

The Louisiana harmless error rule was first codified in 1928 with the
enactment of former LSA-R.S. 15:557. This rule limited reversals to
cases where the error complained of probably had a substantial effect
upon the outcome of the trial. Paul M. Hebert, The Problem of
Reversible Error in Louisiana, 6 Tul.L.Rev. 169, 199-200 (1932); Dale

18

E. Bennett, The 1966 Code of Criminal Procedure, 27 La.Law Rev. 175,
230 (1967). See also, La.C.Cr.P. art. 921, Official Revision Comment
(c).

In 1966, LSA-R.S. 15:557 was amended and reenacted as
La.C.Cr.P. art. 921. Article 921 now provides:

A judgment or ruling shall not be reversed by an appellate
court because of any error, defect, irregularity, or variance
which does not affect substantial rights of the accused.

The history of Louisiana's harmless error rule makes clear that
there has been one common directive: appellate courts should not
reverse convictions for errors unless the accused's substantial rights have
been violated. This comports with the general theory that "appeals in
criminal cases are not granted merely to test the correctness of the trial
court's ruling, but only to rectify injuries caused thereby." State v. Saia, 212 La. 868, 876, 33 So.2d 665, 668 (1947), citing State v. Cullens, 168
La. 976, 123 So. 645, 648 (1929).

This Court adopted the federal test for harmless error announced
in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967), as a practical guide for determining whether substantial rights of
the accused have been violated. See State v. Gibson, 391 So.2d 421
(La.1980). Chapman tests whether it appears "beyond a reasonable
doubt that the error complained of did not contribute to the verdict
obtained." 386 U.S. at 24; 87 S.Ct. at 828. An error did not
"contribute" to the verdict when the erroneous trial feature is
unimportant in relation to everything else the jury considered on the
issue. Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 1893, 114
L.Ed.2d 432 (1991), overruled as to standard of review for erroneous
jury instructions in Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116
L.Ed.2d 385 (1991).

Chapman was refined in Sullivan v. Louisiana, 508 U.S. 275, 113
S.Ct. 2078, 124 L.Ed.2d 182 (1993). The Sullivan inquiry "is not
whether, in a trial that occurred without the error, a guilty verdict would
surely have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error." Id., 508 U.S.
at ----, 113 S.Ct. at 2081. This Court adopted the Sullivan refinement
of Chapman. See State v. Code, 627 So.2d at 1384; State v. Bourque,
622 So.2d at 241 fn. 20.

In Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113
L.Ed.2d 302 (1991), a five-person majority of the United States Supreme
Court distinguished between "trial errors," which may be reviewed for
harmless error, and "structural errors," which defy analysis by harmless
error standards.

19

Trial error occurs during the presentation of the case to the trier of
fact and may be quantitatively assessed in the context of the other
evidence to determine whether its admission at trial is harmless beyond
a reasonable doubt.

Id. at 100-01.

Applying the harmless error analysis discussed above to the present error, we

find that the error was not harmless beyond a reasonable doubt. We find the notes

from the jury during deliberations to be an indication that the evidence of the prior

attempted rape confused the jury. The only evidence, other than the prior conviction,

offered to the jury regarding Defendant’s guilt or innocence was the somewhat

inconsistent testimony of an eleven-year-old girl. Because the other crimes evidence

was introduced without a limiting instruction, it cannot be ruled out that the jury found

the Defendant guilty of the crime of attempted forcible rape because they decided that

he was a bad man who had committed another attempted forcible rape in the past.

Unlike Olivieri, 860 So.2d 207, wherein the fifth circuit determined there was “little

chance the jury could confuse the facts of the two crimes,” since the other crimes

evidence “was presented in an orderly manner. . .at the end of the trial, clearly and

succinctly through two witnesses,” Id. at 219, the other crimes evidence in the instant

case was introduced to the jury just prior to the victim’s testimony. Without a

qualifying instruction given to the jury4 it cannot be said the jury did not confuse the

facts of the two crimes.

4
Prieur requires that, at the request of the defendant, the trial court give the jury
a limiting instruction as to the limited purpose for the admission of the other crimes
evidence, both prior to the admission of other crimes evidence and at the close of the
trial. See also State v. Maise, 00-1158 (La. 1/15/02), 805 So.2d 1141.

20

In the case, sub judice, we have two errors, the second of which may not have

been committed except for the first.

The Louisiana Supreme Court has been " 'unwilling to say that the
cumulative effect of assignments of error lacking in merit warrants
reversal of a conviction or sentence.' " State v. Hotoph, 99-243, pp.
32-33 (La.App. 5th Cir.11/10/99), 750 So.2d 1036, 1055, writs denied,
99-3477 (La.6/30/00), 765 So.2d 1062 and 00-0150 (La.6/30/00), 765
So.2d 1066, quoting State v. Strickland, 94-0025, pp. 51-52 (La.11/1/96),
683 So.2d 218, 239. As stated by the Court in Hotoph, a defendant is not
entitled to a perfect trial, only a fair one. Hotoph, 99-243 at 33, 750
So.2d at 1055.

State v. Williams, 03-942, p. 20 (La.App. 5 Cir. 1/27/04), 866 So.2d 1003, 1016. In

this case, we have a different situation—two errors which at first appear harmless, but,

which, upon close examination, prove not to be so. Not only was the Defendant’s trial

imperfect, but because of these errors, we find it was also unfair.

In sum, the trial court erred when it did not recuse itself and the judge ad hoc

erred when he did not find grounds for recusal. Louisiana Code of Criminal

Procedure art. 671(A)(3) requires that a trial judge be recused when he “has been

employed or consulted as an attorney in the cause. . . .” Since the record establishes

that the trial judge represented the Defendant on a 1987 charge of attempted forcible

rape which resulted in a conviction, and that the 1987 conviction was admitted as

other crimes evidence, the trial judge should have been recused. Additionally, the

failure to recuse was not harmless error inasmuch as the trial judge was required to

rule on the admissibility of that 1987 conviction.

Furthermore, the trial court erred when it refused to give the jury limiting

instructions regarding the proper purpose and use of the other crimes evidence as

requested by the Defendant. Moreover, although the error was a trial error, in that it

occurred during the presentation of the case and therefore subject to a harmless error

analysis, it cannot be ruled out that the jury convicted the Defendant of the present

21

offense because he had been convicted of committing the same offense in the past.

Under the facts and circumstances of this case, the admission of the other crimes

evidence without proper instructions limiting the use of that evidence was

fundamentally unfair and violated Defendant’s due process right to a fair trial. State

v. Green, 493 So.2d 588 (La.1986).

DISPOSITION:

Accordingly, Defendant’s convictions and sentences are annulled and set aside,

and the case remanded to the trial court for a new trial. Defendant’s remaining

assignments of error are moot.

CONVICTIONS AND SENTENCES ANNULLED AND SET ASIDE; CASE
REMANDED FOR A NEW TRIAL.

22