State of Louisiana v. Kiley M. Williams

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-1773

STATE OF LOUISIANA

VERSUS

KILEY M. WILLIAMS

**********
APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR-2003-1279
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

**********

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

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

Thibodeaux, C.J., dissents and assigns written reasons.

AFFIRMED AND REMANDED
WITH INSTRUCTIONS.

Hon. Douglas L. Hebert, Jr.
District Attorney - 33rd JDC
P. O. Drawer 839
Oberlin, LA 70655
(337) 639-2641
Counsel for Plaintiff/Appellee
State of Louisiana

Mary Constance Hanes
Louisiana Appellate Project
P. O. Box 4015
New Orleans, LA 70178-4015
(504) 866-6652
Counsel for Defendant/Appellant
Kiley M. Williams

Kiley M. Williams
Basile Detention Center
3843 East Stagg Ave
Basile, LA 70515-5501

GREMILLION, Judge.

In this case, the defendant, Kiley M. Williams, was convicted of

attempted distribution of cocaine and sentenced to serve twelve years at hard labor

without the benefit of parole, probation, or suspension of sentence. For the following

reasons, we affirm and remand with instructions for the trial court to correct the court

minutes.

SUFFICIENCY OF EVIDENCE

In this assignment of error, Defendant contends there was insufficient

evidence presented to support his conviction. He contends the videotapes do not

conclusively show a drug transaction occurred and, considering the unusual

circumstances involved, a rational trier of fact would be driven to have reasonable

doubt.

When the issue of sufficiency of evidence is raised on appeal, the critical
inquiry of the reviewing court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d
126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983);
State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d
1212 (La.1981). It is the role of the fact finder to weigh the respective
credibility of the witnesses, and therefore, the appellate court should not
second guess the credibility determinations of the triers of fact beyond
the sufficiency evaluations under the Jackson standard of review. See
State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425
So.2d 1228 (La.1983)). In order for this Court to affirm a conviction,
however, the record must reflect that the state has satisfied its burden of
proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant refers to the following quote from State v. Mussall, 523 So.2d

1

1305, 1311 (La.1988) (footnotes omitted), in support of his argument:

After reviewing Jackson and the foregoing authorities, we
conclude that a reviewing court may not disregard its duty under due
process of law as interpreted by Jackson v. Virginia simply because the
record contains testimony which tends to support each fact necessary to
constitute the crime. If the court finds that no rational trier of fact
viewing all of the evidence from a rational pro-prosecution standpoint
could have found guilt beyond a reasonable doubt, the conviction cannot
stand constitutionally. The actual trier of fact's rational credibility calls,
evidence weighing and inference drawing are preserved through the
requirement that upon judicial review all of the evidence is to be
considered as if by a rational fact finder in the light most favorable to the
prosecution, and by the admonition that the sufficiency inquiry does not
require a court to ask itself whether it believes that the evidence at trial
established guilt beyond a reasonable doubt. Thus, the reviewing court
is not called upon to decide whether it believes the witnesses or whether
the conviction is contrary to the weight of the evidence. As Professor
Wright observes, the important points are that "the court is not to
substitute its judgment of what the verdict should be for that of the jury,
but that at the same time the jury cannot be permitted to speculate if the
evidence is such that reasonable jurors must have a reasonable doubt."
2 C. Wright, supra, § 467, at 660-661 & n. 23.

In this case, Defendant was charged with distribution of cocaine, a

violation of La.R.S. 40:967(A)(1). At trial, in order to prove the offense, the State

called several witnesses which included Officer Scotty Laborde of the Oakdale Police

Department, who testified that Ms. Tiwanna Gallington was the paid confidential

informant in this case. Gallington testified that prior to September of 2002 she had

used marijuana and cocaine. During that year, she agreed to start working with the

Allen Parish Sheriff’s Office making controlled buys of drugs. Gallington testified

that she witnessed a drug raid of her children’s babysitter’s house. When she

approached the scene to find out what was going on, Officer Perkins asked her if she

wanted to make some money. At first, she stated she did not know, but later she

2

changed her mind and she contacted the officer.1 Officer Laborde testified he

contacted Gallington on May 2, 2002, regarding a controlled buy and the two met with

Officer Ben Perkins around 3:00 p.m. When they met, Officer Laborde searched

Gallington and her vehicle. Officer Perkins installed video and audio equipment in

the vehicle and they issued money to her to purchase the drugs. She was also

provided four plastic vials to serve as containers for any drugs she purchased.

According to Officer Laborde, a couple of individuals were being targeted that day,

including Defendant.

Officer Laborde testified that once Gallington departed, they maintained

audio contact with her and she was provided a cell phone for him to contact her and

also for her safety. She was not to use the cell phone to arrange drug buys because it

was Officer Laborde’s personal phone and he did not want his number to show up on

the dealer’s caller ID. If she wanted to call to arrange a transaction, she had to secure

another telephone. Gallington testified that she called Defendant from her home

telephone.

We note that Gallington did not remain in the car after being searched

initially. She left the car for approximately three to five minutes to use the telephone

to call Defendant and was not searched again before leaving to buy drugs. During this

1
Officer Perkins was asked about his reason for working with Gallington. Specifically, he
was asked, “Officer Perkins what considerations were made by you or somebody from the Sheriff’s
Office that you’re aware of as an incentive to Tiwanna to work with you?” He replied:

She had information that would help with further investigations or ongoing
investigations that we had. It was merely by accident that I ran into her. We was
searching a house in Oakdale and she came as you know when you searching a house
in Oakdale it draws a crowd. We just started talking and one thing led to another and
she ended up calling me a couple of days later and we met and we started making
cases.

3

time, the audio recording equipment did not work. In Officer Laborde’s opinion, this

occurred because the microphone, which was on Gallington’s body, was too far from

the repeater for it to pick up. When Gallington returned to the car, she had a cordless

telephone. Officer Laborde acknowledged that it is important to search the

confidential informant (C.I.) and the vehicle before the “buy” to avoid the C.I. setting

someone up. He also acknowledged that it would be easier for someone to hide drugs

on themselves if they went outside the view of the cameras in the car.

Gallington testified that after she contacted Defendant, she returned to

the car, drove around the corner, and met him. She said she told Defendant on the

phone that she was looking for “sixty dollars’ worth.” The transaction was described

by Gallington as follows:

And driver door to driver door he handed me the drugs and I gave him
the money and then I told him, “hey it’s not right,” I don’t know the
exact words but said, “well give me the little one back,” and he took the
little one and he gave me a bigger one and I say, “well I gave you sixty
dollars,” and he gave me a ten back.

During the transaction, the officers did not maintain visual contact with

Gallington’s vehicle because they had audio contact and they wanted to avoid being

seen by suspected drug dealers. After the drug transaction was completed, Gallington

drove to the prearranged location and Officer Laborde retrieved the evidence from the

glove compartment. He then searched her and the vehicle and found no other drugs.

Officer Laborde testified he was able to verify the information provided him by

Gallington by watching the videotape of the transaction and the evidence he collected

from the glove compartment. She denied planting the drugs in the vehicle and she

testified she knew she was being observed the entire time.

4

Officer Laborde was questioned about Gallington’s motivation for

participating in the controlled buy. According to Officer Laborde, she was paid

twenty-five dollars a “buy.” He acknowledged that confidential informants may be

in jeopardy in participating in controlled buys, but he testified he was not aware of any

promises being made to Gallington by the Sheriff’s Department for her participation.

Officer Perkins testified that the only incentive he was aware of was that Gallington

needed money because she indicated to him that she was raising children without child

support. Gallington testified that drug dealers can be violent people, depending on

what the circumstances. She testified she felt that at the time of the transaction she

was not in danger; however, after they found out what she did, she would be. Further,

she denied that there was any incentive other than the twenty-five dollars for her

participation.

Defendant argues that there were unusual circumstances which support

this assignment of error including the fact that Gallington stopped at her house after

the officers searched her and before she made the drug buy. This, he argues, provided

her the opportunity to obtain drugs and plant them in her vehicle. Further, he points

out the fact that the audio recording failed while Gallington was in her house. Finally,

Defendant argues the fact detectives were targeting him, and that Gallington could

have lied about the drug transaction to keep her job as a paid informant.

We note that there were rational explanations given for Gallington

stopping at her house and for the audio recording failing while she was in her house.

The jury heard the evidence and had the opportunity to view the witnesses during their

testimony. Additionally, the jury viewed a videotape which showed Gallington and

5

Defendant involved in a transaction during which they each reached out of their car

window and Defendant gave Gallington something small enough to fit in her hand.

After hearing the testimony presented at trial and viewing this tape, the jury chose to

convict Defendant, although not of the charged crime. We find that after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime of distribution of cocaine proven

beyond a reasonable doubt. Thus, because the evidence introduced at trial was

sufficient to support a conviction for the charged offense, it also supports the jury's

verdict on the lesser and included offense of attempted distribution of cocaine. See

State v. Harris, 02-1589 (La. 5/20/03), 846 So.2d 709. Therefore, this assignment of

error lacks merit.

ADMISSION OF OTHER CRIMES EVIDENCE:
FAILURE TO TIMELY OBJECT

Defendant contends the trial court erred in denying its motion for mistrial

after Gallington testified that she bought drugs from Defendant on other occasions.

During Gallington’s direct examination, she testified that during the transaction, when

Defendant gave her the drugs, she said, “hey it’s not right.” When the prosecutor

asked why she said that, Gallington responded, “Because any other time I deal with

him he knows that don’t give me little stuff.” After the direct examination and cross-

examination were completed, during which several bench conferences were held,

certain evidence was argued about and admitted, at least two breaks and more than

one hour transpired, and evidence was proffered by Defendant, he moved for a

mistrial on the grounds of other crimes evidence. The trial court denied the motion,

noting Gallington is not a police officer and the prosecutor did not have any

6

forewarning that she was going to make this statement.

The State noted at trial, and now argues, that the objection was untimely

as it was not made within a reasonable time following the statement by Gallington.

Louisiana Code of Criminal Procedure Article 841 states in pertinent part, “[a]n

irregularity or error cannot be availed of after verdict unless it was objected to at the

time of occurrence.” Defendant cites State v. Lee, 346 So.2d 682 (La.1977) to say that

the error must be brought to the judge’s attention within a reasonable time. In Lee, the

defendant was being retried after the supreme court reversed his conviction. At the

second trial, during questioning of one of the witnesses, the prosecutor referred to the

date of the first trial and mentioned there was a conviction. No objection was made

by defense counsel at this point. During the state’s rebuttal closing argument, the

prosecutor again referred to the first trial and the fact there was a conviction. Shortly

after these references, defense counsel objected and moved for a mistrial. On appeal,

the state argued defense counsel’s objection was untimely. The supreme court stated

the issue to be decided was whether the belated motion for mistrial, made after

repetition of an unobjected-to error, could be considered in the absence of an objection

to the first improper reference. The court stated:

Article 841 is not an inflexible rule imposed on criminal litigants
without rationale or justification. It is necessary adjunct to our role as an
appellate court which is intended to promote judicial efficiency and to
insure fair play. See State v. Smith, 339 So.2d 829 (La.1977); State v.
Ervin, 340 So.2d 1379 (La.1977); State v. Marcell, 320 So.2d 195
(La.1975). For example, its operation prevents a defendant from
gambling for a favorable verdict and then, upon conviction, resorting on
appeal to errors that could have been corrected at trial, had he but
brought the errors to the judge's attention. State v. Smith, supra; State v.
Knight, 323 So.2d 765 (La.1975); State v. Marcell, supra.

....

7

What our rules require is that counsel bring an error to the
attention of the trial judge within a reasonable time after the error occurs
so that he can cure the error or declare a mistrial. C.Cr.P. arts. 770, 771,
841. Generally, a contemporaneous objection must be made
immediately. In certain instances, however, objections which come
shortly thereafter will be considered timely, see State v. Foss, 310 So.2d
573 (La.1975), and there are even instances in which no objections are
required because they would be a vain and useless act, see State v. Ervin,
supra. Particularly may there be such exceptions to the general rule
during closing argument for reasons expressed in the following law
review comment:

"one must recognize that the closing argument of the
prosecutor may be so permeated with improprieties that
constant objections may alienate the jurors or underscore
the remark rather than erase it from their minds. Therefore,
an objection at the end of the summation should be
considered timely, and in some cases should be allowed
outside the presence of the jury." (citations omitted) 34
L.L.Rev. 746, 759 (1974).

Moreover, we recognize that a prosecutor's prejudicial comments
in closing argument may be considered by a federal court to violate
federal due process guarantees even in the absence of a defense
challenge or objection at trial. United States v. Briggs, supra; United
States v. Grunberger, 431 F.2d 1062 (2d Cir. 1970); United States v.
Sawyer, 347 F.2d 372 (4th Cir. 1965).

The only effect we can see in counsel's failure to promptly request
relief was that the trial was unnecessarily continued beyond a point when
it should have been aborted. We do not find that sufficient reason to bar
defendant from making a later motion when the error was blatantly
repeated. Therefore we hold that the trial judge erred in refusing to grant
defendant a requested mistrial when the prosecution during rebuttal
argument stated and stressed that defendant Lee had been convicted of
this very murder on an earlier trial of the case.

Id. at 684-85.

In the other case cited by Defendant, State v. Mullins, 537 So.2d 386

(La.App. 4 Cir. 1988), the defense made an objection at the close of the state’s closing

argument. For the reasons discussed in Lee, the court found the error was preserved

for appeal.

8

The year after Lee was decided, the supreme court dealt with this issue

in State v. Sepulvado, 359 So.2d 137 (La.1978). In Sepulvado, the defendant

contended on appeal that the trial court erred in allowing the state to question the

victim about acts of sexual intercourse with the defendant other than the one at issue.

During trial, the victim testified regarding two instances of sexual intercourse with the

defendant. The prosecutor then asked her if she subsequently had sexual relations

with the defendant. At that point, defense counsel objected. The supreme court held

the objection came too late and the issue could not be raised on appeal.

A similar conclusion was reached by the supreme court that same year

in State v. Brown, 354 So.2d 516 (La.1978). In Brown, during the cross-examination

of witness Simmons, the prosecutor arguably made a reference to the witness’ post-

arrest silence. However, the supreme court found the objection to the question was

not timely because it was not made until the prosecutor concluded two pages of cross-

examination concerning the subject. Thus, the defense was not allowed to raise the

error on appeal.

Considering the foregoing cases, as well as the cogent facts of this case

(the statement made by Gallington is separated by a substantial amount of testimony,

two courtroom breaks, much more than an hour, and thirty-five pages of transcript

from the objection to motion for mistrial), we find that the objection was not timely

made and, therefore, Defendant has not preserved this issue for appeal. Thus, this

assignment of error is without merit.

However, Defendant further contends he was entitled to a discretionary

mistrial pursuant to La.Code Crim.P. art. 771(2). He contends that admonition was

9

not sufficient to overcome the prejudice he suffered. Alternatively, he contends that

the trial court should have at least admonished the jury to disregard the remark.

Louisiana Code of Criminal Procedure Article 771 states in pertinent

part:

In the following cases, upon the request of the defendant or the
state, the court shall promptly admonish the jury to disregard a remark
or comment made during the trial, or in argument within the hearing of
the jury, when the remark is irrelevant or immaterial and of such a nature
that it might create prejudice against the defendant, or the state, in the
mind of the jury:

....

(2) When the remark or comment is made by a witness or person
other than the judge, district attorney, or a court official, regardless of
whether the remark or comment is within the scope of Article 770.

In such cases, on motion of the defendant, the court may grant a
mistrial if it is satisfied that an admonition is not sufficient to assure the
defendant a fair trial.

In the present case, the challenged testimony was given in response to a

question posed to Gallington by the prosecutor.

The jurisprudence interpreting La.C.Cr.P. art. 771 has held that an
impermissible reference to another crime deliberately elicited of a
witness by the prosecutor would be imputable to the state and would
mandate a mistrial. State v. Madison, 345 So.2d 485, 494 (La.1977);
State v. Overton, 337 So.2d 1201, 1205 (La.1976). However, unsolicited
and unresponsive testimony is not chargeable against the state to provide
a ground for mandatory reversal of a conviction. State v. Fowlkes, 352
So.2d 208, 212 (La.1977). We are unable to clearly and unequivocally
conclude that the reference was not responsive to the prosecutor's broad,
vague question to Officer McCoy. However, we cannot find, nor does
defendant claim, that the reference to other crimes was deliberately
obtained by design of the prosecutor to prejudice the rights of defendant.
Consequently, La.C.Cr.P. art. 771 does not mandate a mistrial.

State v. Jack, 554 So.2d 1292, 1296 (La.App. 1 Cir. 1989), writ denied, 560 So.2d 20

(La.1990).

10

It appears that the reference to the prior drug deals was not solicited or

deliberately obtained by the prosecutor to prejudice the rights of Defendant. Thus, we

submit the trial court did not err in denying Defendant’s motion for mistrial.

Additionally, Defendant’s claim that the trial court erred in failing to admonish the

jury to disregard the remark is without merit, as the Defense did not request

admonition. See State v. Texada, 99-1009 (La.App. 3 Cir. 2/2/00), 756 So.2d 463,

writ denied, 00-2751 (La. 6/29/01), 794 So.2d 824; State v. Fowlkes, 352 So.2d 208

(La.1977); and Jack, 554 So.2d 1292. Further, to have given an admonition at the

time it was requested by Defendant would have served little or no purpose to benefit

him and would have served to call attention to the issue of other crimes evidence that

went unchallenged for a long period of time. For the foregoing reasons, this

assignment of error has no merit.

EVIDENCE OF MOTIVATION TO TESTIFY

Defendant contends the trial court erred in not allowing into evidence

testimony regarding Gallington’s motivation for being a confidential informant and

also a witness in the case. During her testimony, Defendant orally requested

permission to cross-examine Gallington regarding prior criminal activities,

specifically, an incident in which she hit a man by the name of Leon Posey with a

hammer. Defendant wished to question her “on any of those prior criminal activities

that may have been an incentive for her or an interest for her to testify.” In response

to Defendant’s request, the trial court issued the following ruling:

The Court is not going to allow you to talk about the - - what you believe
is the case with the facts of Leon Posey matter which may or may not
have occurred. The officers have testified that they have made no other
deals with her or given her no other consideration other than the twenty-

11

five dollars. And the twenty-five dollars was per buy not for making the
case. Per buy. What you’re talking about is her reason for working for
the police. I don’t know that that shows any particular bias against Kiley
Williams or any other person other than making a buy against Leon
Posey there she may have some kind of bias if he turned her in for any
kind of offense. The Court will allow you to ask if there was any other
consideration other than the twenty-five dollars and if she answers yes
you can ask what that was. However, to go into something that is
ordinarily impermissible without having the means to complete an
impeachment and it’s my understanding that you do not have the means
at this time to complete the impeachment.

The evidence at issue was proffered by Defendant at the close of

Gallington’s direct testimony. The proffered evidence concerned two incidents in

which Gallington was involved. In the first proffer, Gallington testified that in 2002,

she hit a man named Leon Posey in the head with a hammer. Gallington’s explanation

for her actions was as follows:

Okay, on that particular day me and the children were sitting in the house
watching WWF Wrestling. He walks into my house telling me he has
the right to see his children. I said, “no you do not. You knock on my
door before you enter.” I was called a B-I-T-C-H and [he] told me I
couldn’t tell him when he could and could not see my kids and he hit me.
I hit him back, he punched me in my head so in turn I got him in a
headlock, drug him in the kitchen and hit him in the head with a hammer
and after I hit him I went to Oakdale Police Department and talked to
Officer Laticia Reeves and the other female officer and I told them what
I did. I took the hammer and told them exactly what I did and they told
me that he was an unauthorized entry and I had the right to defend my
house. Therefore, he did not go to the police and turn - - and tell - - and
I guess because he knew he was in the wrong and they would have put
charge on him. That’s exactly what happened.

In the second proffer, Gallington testified she was indicted for cutting

Kevin Melbert. This incident occurred on September 6 or 7, 2002, four months after

the transaction at issue in this case. Gallington testified that she had not been told by

the Sheriff’s Department or the District Attorney’s Office that her cooperation in cases

such as the present might be taken into consideration. During her cross-examination,

12

Defendant asked her, “isn’t it true that as an incentive - - an additional incentive - -

other than twenty-five dollars to work for the police that you were to get yourself out

of some trouble that you got into?” to which she replied, “No.” I n

response to Defendant’s argument on appeal that this testimony should have been

admitted at trial, the State points out that the officers and Gallington all testified that

her consideration for participating in the controlled buy and for testifying at trial was

the pay. The State additionally notes the incidents were not connected in any way to

Defendant and that to allow the expansion of La.Code Evid. art. 404 to this degree is

not supported by the jurisprudence.

Louisiana Code of Evidence Article 607(D) allows the credibility of a

witness to be attacked by extrinsic evidence to show the witness’ bias, interest or

corruption. Accordingly, we find that the trial court committed error when it refused

to allow Defendant to question Gallington about the foregoing incidents. However,

the error in this instance is subject to a harmless error analysis.

In State v. Williams, 02-1406 (La. 4/9/03), 844 So.2d 832, witness

Delwin Ancar’s house trailer was invaded by the defendant and two others searching

for drugs and money. During Ancar’s direct testimony at Williams’ trial, he testified

that three months prior to trial, he pled guilty to possession of cocaine and he was

placed on probation. On cross-examination, counsel asked Ancar whether he was

originally charged with two counts of distribution of cocaine, seeking to establish that

one charge was dismissed and the other reduced as a result of the plea bargain. The

State objected to any questions regarding the plea bargain and the trial court initially

overruled the objection. The trial court then heard the testimony of Ancar and the

13

Assistant District Attorney who had handled Ancar’s case. Each of them provided

reasons why the plea bargain was entered, and both denied that it had any connection

to the Williams case. After hearing these two testimonies, the trial court decided to

sustain the state’s objection.

The appellate court found the plea agreement bore no relation to the

present case, but the supreme court disagreed:

Although the trial court was sensitive to a defendant's Sixth
Amendment right of confrontation and cross-examination, the court
ultimately made the wrong decision when it restricted counsel's
questioning of Ancar and thereby impaired relator's ability "to expose to
the jury the facts from which [it] . . . could appropriately draw inferences
relating to the reliability of the witness." Olden v. Kentucky, 488 U.S.
227, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988)(internal quotation
marks and citations omitted). To the extent that exposure of a witness's
motivation "is a proper and important function of the constitutionally
protected right of cross-examination," State v. Nash, 475 So.2d 752, 755
(La.1985), this Court has held on numerous occasions that a witness's
"hope or knowledge that he will receive leniency from the state is highly
relevant to establish his bias or interest." State v. Brady, 381 So.2d 819,
822 (collecting cases); see also State v. Bowie, 00-3344, p. 9 (La.4/3/02),
813 So.2d 377, 385 ("A defendant's right to demonstrate facts and
circumstances which might influence the witness's perceptions or color
his testimony, thereby lessening the weight the fact-finder might accord
his testimony, is guaranteed in both state and federal criminal
proceedings and is an important function of the right to confront and
cross-examine.") (citations omitted). A witness's bias or interest may
arise from arrests or pending criminal charges, or the prospect of
prosecution, even when he has made no agreements with the state
regarding his conduct. Brady, 381 So.2d at 822; see also Nash, 475
So.2d at 755-56. Moreover, even after pending charges have been
resolved, bias may arise from a witness's "vulnerable status as a
probationer." Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111,
39 L.Ed.2d 347 (1974).

We need not decide whether, as relator argues, the trial court
usurped the jury's role as the fact-finder by denying jurors the
opportunity to infer from the timing and nature of the plea bargain a
connection between the narcotics prosecution and the present case. Even
assuming that Ancar had no motive to protect a guilty plea premised on
a specific condition (express or implied) that he would testify against

14

relator and his co-defendants, the witness may have subjectively believed
that continued cooperation with the state was necessary to protect his
probationary status and to forestall any chance of going to jail. It was
the fear of incarceration, Ancar made clear in his testimony outside the
jury's presence, that led him to accept the plea bargain although he
continued to profess his innocence. At the time he entered his guilty
plea, Ancar had been subpoenaed for a pre-trial hearing conducted in the
present case only one week later. As relator's counsel characterized
Ancar's situation, "So one week you were being prosecuted and the next
week you're the witness...." Jurors knew from Ancar's direct testimony
that he had pleaded guilty to possession of cocaine and had received
probation. However, without the full context of the proceedings set out
before them, including the terms of the plea bargain, jurors lacked any
basis for assessing how intertwined the two cases may have been in
Ancar's mind, how closely associated the plea bargain in one case was
to his appearance as a victim/witness in the other, and how much
pressure Ancar may have felt to cooperate in the prosecution of relator
and his co-defendants, not only to protect his probationary status but also
to distance himself from the darker implications arising out of the loss
of thousands of dollars in cash from his trailer and testimony of family
members that the perpetrators were looking for money and drugs only a
month after he had been implicated in the cocaine sales to undercover
agents.

The trial court therefore erred in precluding defense counsel from
delving into the details of Ancar's prior cocaine conviction to expose for
the jury's consideration the sources of possible bias or partiality of the
witness. While confrontation errors are subject to harmless-error
analysis, Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89
L.Ed.2d 674 (1986), we cannot say in the present case that the jury's
verdict was surely unattributable to the error. Sullivan v. Louisiana, 508
U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).

Id. at 835-36.

In State v. Vale, 95-1230 (La. 1/26/96), 666 So.2d 1070, three defendants

were charged together with possession of heroin with the intent to distribute as a result

of a transaction that occurred in June of 1990. In January of 1991, the state dismissed

the charge against defendant Bergeron in exchange for his testimony against the other

two defendants. In November of 1992, Bergeron was arrested for violating La.R.S.

14:95.1. He was charged with the offense and the charge was still pending at the time

15

of the trial. Approximately two weeks after his arrest for violating La.R.S. 14:95.1,

and one day before trial, Bergeron told the state for the first time that defendant Vale

had sold him heroin in a Wal-Mart parking lot several weeks prior to the June 1990

incident. In his July 1991 statement to police that was part of his agreement with the

state, which resulted in dismissal of his charge, Bergeron had stated he did not know

whether defendant Vale was distributing drugs. The state notified the court of its

intent to introduce the evidence regarding the prior sale. At the hearing on the matter,

Bergeron stated he had forgotten about the purchase from Vale until he was urged by

the prosecutrix to remember everything he could in preparation for the upcoming trial.

At trial, when the defense attempted to cross-examine Bergeron about his pending

charge as an explanation for his recovered memory of the prior sale, the state objected.

The court ruled, “that in the absence of evidence of an explicit deal concerning the

firearms offense, Bergeron’s subjective expectations concerning that charge were

irrelevant for purposes of cross-examination into his bias and interest in testifying for

the state.” Id. at 1072. The supreme court stated:

This court granted certiorari because the trial court's ruling,
affirmed by the court of appeal, conflicted with numerous decisions by
this court that to the extent exposure of a witness's motivation is a proper
and important function of the constitutionally protected right of
cross-examination, a witness's "hope or knowledge that he will receive
leniency from the state is highly relevant to establish his bias or interest."
State v. Brady, 381 So.2d 819, 822 (La.1980) (collecting cases); see also
State v. Nash, 475 So.2d 752, 755-56 (La.1985). A witness's bias or
interest may arise from arrests or pending criminal charges, or the
prospect of prosecution, even when he has made no agreements with the
state regarding his conduct. Id.

The state now concedes the error of the trial court in sustaining its
objection and of the appellate court in accepting its argument on the
exclusion of the relevant evidence of bias or interest. The state,
however, argues that the error was harmless.

16

Id.

The supreme court subsequently reversed the court of appeal and remanded the case

for the court to conduct a harmless error analysis. We note that the fifth circuit found

that the error was harmless on remand, State v. Vale, 93-895 (La.App. 5 Cir.

11/14/96), 683 So.2d 917, but the supreme court found that it was not upon further

review. State v. Vale, 96-2953 (La. 9/19/97), 699 So.2d 876.

In State v. Boswell, 96-801 (La.App. 3 Cir. 2/12/97), 689 So.2d 627, the

witness, a confidential informant involved in the drug transactions at issue in the case,

testified that prior to the transactions, she went to police seeking help with pending

arrests. In exchange for her participation and information in narcotics cases, the

pending charges were to be dropped. On cross-examination, the defendant attempted

to ask the witness whether she had been arrested on drug charges within two to three

weeks prior to trial. The state’s objection made at this point was sustained. On

appeal, the state conceded that the trial court erred in sustaining the objection, citing

Vale as support. This court agreed with the state’s position and conducted a harmless

error analysis.

The present case is factually similar to Vale and Boswell regarding

Gallington’s charge which arose after the transaction, but prior to trial. As for the first

incident involving Posey, Gallington testified the time of the occurrence was in 2002,

but an exact date was not given. However, the record leads us to believe that it

occurred about the time she began working for the District Attorney’s Office. Thus,

whether this incident occurred before or after Gallington’s participation in the

controlled buy is not clear. She testified that she was told by officers at the Oakdale

17

Police Department that her actions were justified. Under these circumstances, it is

difficult to determine whether the prospect of prosecution may have been a motivating

factor for Gallington’s participation with authorities. However, the foregoing cases

allow great latitude in cross-examination on a witness’ motivation for cooperation

with the state. In the second instance, clearly, the charges pending against her for the

incident involving Kevin Melbert may have had a bearing on the quality of her

testimony.

In Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081 (1993),

the Supreme Court stated that the test for harmless error "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." In Boswell, we set forth the factors to be considered in assessing whether

the error was harmless:

Confrontation errors are subject to a Chapman harmless error
analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89
L.Ed.2d 674 (1986). The correct inquiry is whether the reviewing court,
assuming that the damaging potential of the cross-examination were
fully realized, is nonetheless convinced that the error was harmless
beyond a reasonable doubt. Id. at 684, 106 S.Ct. at 1438. Factors to be
considered by the reviewing court include "the importance of the
witness' testimony in the prosecution's case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent
of cross-examination otherwise permitted, and, of course, the overall
strength of the prosecution's case." Id. at 684, 106 S.Ct. at 1438.

Boswell, 689 So.2d at 630, quoting State v. Wille, 559 So.2d 1321, 1332 (La.1990).

In the present case, Gallington’s testimony was important to the State’s

case. However, her testimony was corroborated on material points by the testimony

18

of the officers, as well as the video recording of her transaction with Defendant. The

existence of this video recording enhanced the strength of the State’s case, which was

significant. Additionally, we note that Defendant was allowed to fully cross-examine

Gallington on other topics, including her personal drug use, the fact she had

considered herself a drug dealer at one point, and her prior conviction in Texas for

possession of cocaine and methamphetamine. Under these circumstances and

considering these factors, we find that the error that occurred was harmless and that

this assignment of error is likewise harmless.

ERROR PATENT

We review all appeals for errors patent on the face of the record in

accordance with La.Code Crim.P. art. 920. After reviewing the record, we find that

the sentencing minutes require correction. The minutes state the sentence is twelve

years without the benefit of parole, probation, or suspension of sentence, however,

the transcript does not mention that the sentence was to be served without benefit of

parole. Accordingly, we remand the case and order the trial court to correct the

sentencing minutes to reflect the sentence imposed.

CONCLUSION

Defendant’s conviction and sentence are affirmed. However, the case is

remanded to the trial court for correction of the sentencing minutes to reflect that

Defendant’s sentence was not imposed without benefit of parole.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

19

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1773

STATE OF LOUISIANA

VERSUS

KILEY M. WILLIAMS

THIBODEAUX, C.J., dissenting.

The trial court’s refusal to allow Ms. Gallington to be questioned

regarding the incidents with Leon Posey and Kevin Melbert is not harmless error. The

credibility of Ms. Gallington, I believe, was the overriding factor in the jury’s decision

to convict the Defendant of the lesser included offense of attempted distribution of

cocaine. The majority observes that the Defendant’s testimony was corroborated by

the existence of a video recording of Ms. Gallington’s transaction with the Defendant.

This video recording “enhanced the strength of the State’s case.” The majority goes

on to say that the State’s case was “significant.” We must recall that the Defendant

was charged initially with distribution of cocaine, yet the jury convicted him of the

lesser included offense of attempted distribution of cocaine. If the State’s case was

as “significant” as the majority observes, it would seem reasonable to conclude that

the Defendant would have been convicted of the initial charge of distribution of

cocaine. Despite the existence of a video recording, the Defendant was not convicted

as charged. The video showed nothing more than small objects being passed between

the Defendant and Ms. Gallington. Yet, in spite of the video, the jury voted 10-2 to

convict on a lesser charge; two of the jurors voted to acquit completely. The video,

thus, had little impact. The conviction by and large rested on the testimony of the

confidential informant. Consequently, the fact that Ms. Gallington may have received

leniency was highly relevant to establish her bias or interest. The Defendant in this

case had a constitutionally protected right of cross examination of Ms. Gallington.

The trial court’s refusal to allow such cross examination was not harmless error,

particularly in view of the verdict rendered. See State v. Williams, 02-1406 (La.

4/9/03), 844 So.2d 832.

For the foregoing reasons, I respectfully dissent. I would reverse the

conviction of the Defendant and remand to the trial court for a new trial.

2