State of Louisiana v. Stephen Douglas Cormier

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-318

STATE OF LOUISIANA

VERSUS

STEPHEN DOUGLAS CORMIER

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 3629-22
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

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Court composed of Candyce G. Perret, Jonathan W. Perry, and Sharon Darville
Wilson, Judges.

AFFIRMED WITH INSTRUCTIONS.

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Stephen Douglas Cormier

Stephen C. Dwight
District Attorney
John Eric Turner
Assistant District Attorney
Post Office Box 3206
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR PLAINTIFF AP
State of Louisiana

PERRET, Judge.

Defendant was convicted of second degree sexual battery, second degree

kidnapping, and mingling harmful substances. On appeal, he asserts the trial court

erred in admitting evidence of other crimes, wrongs, or acts and erred in denying his

motion for mistrial following the State’s opening arguments. On appeal, we affirm.

However, the trial court is ordered to inform Defendant of the provisions of La.Code

Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days

of the rendition of this opinion and to file written proof in the record that Defendant

received the notice.

PROCEDURAL BACKGROUND:

On March 2, 2022, Defendant, Stephen Douglas Cormier, was charged by bill

of information with the second degree sexual battery of E.M.,1 in violation of La.R.S.

14:43.2; second degree kidnapping of E.M., in violation of La.R.S. 14:44.1;

mingling harmful substances, in violation of La.R.S. 14:38.1; and theft between five

thousand and twenty-five thousand dollars, in violation of La.R.S. 14:67(B)(2). On

November 20, 2023, count four of the bill of information was amended to theft

between one thousand and five thousand dollars, in violation of La.R.S. 14:67(B)(3).

On July 14, 2023, the State filed “State’s Notice of Intent to Offer Evidence

of Defendant’s Other Crimes, Wrongs, or Acts Under LA. C.E. Art. 412.2,” seeking

introduction of videos found on Defendant’s phone where he appears to sexually

assault an unconscious woman while he is driving. On November 20, 2023, a

hearing was held on the admissibility of those videos. Following argument, the trial

1
This court refers to the victim by her initials in accordance with La.R.S. 46:1844(W).

court deemed the evidence admissible under La.Code Evid. art. 412.2, which allows

for the admission of similar other crimes in sex offense cases.

Trial began on November 20, 2023, and on November 21, 2023, a jury

unanimously found Defendant guilty as charged of second degree sexual battery,

second degree kidnapping, and mingling harmful substances. Defendant was found

not guilty of theft.

On January 12, 2024, Defendant filed “Defendant’s Motion for New Trial,”

in which he alleged the verdict was contrary to the law and evidence and that the

ends of justice would be served by granting a new trial. A hearing was held on

Defendant’s motion on January 18, 2024, at which time the trial court denied the

motion for new trial. On January 19, 2024, Defendant was sentenced to “99 years

on second-degree sexual battery; 40 on the kidnapping; and 5 on the mingling.

Those are to run concurrent[ly], without benefit.”

After Defendant filed his Appellant brief and noted errors patent in regard to

his sentences, the trial court held a hearing on August 14, 2024, to clarify

Defendant’s sentence. Therein, the trial court stated that the ninety-nine-year

sentence was to be at hard labor; that the entire forty-year sentence was to be served

without benefit of probation, parole, or suspension of sentence; and Defendant’s

sentence for mingling harmful substances was modified to two years at hard labor

without benefits.

Defendant now appeals, raising a single, two-part assignment of error:

The trial court erred in granting the State’s Notice of Intent to
Offer Evidence under La.Code Evid. art. 412.2, thereby admitting
prejudicial uncharged and unadjudicated alleged criminal wrongs or
acts into evidence, and in denying Defense counsel’s Motion for
Mistrial, thereby violating Mr. Stephen Cormier’s constitutional right
to cross-examine the witnesses against him regarding said evidence.

2

For the reasons set forth below, after review, Defendant’s convictions are

affirmed as well as his sentences for second degree kidnapping and mingling harmful

substances.

FACTS:

Evidence adduced at trial established that on October 5, 2021, E.M. went to

the Golden Nugget Casino in Lake Charles, Louisiana, alone. E.M. was drinking

and playing blackjack. She encountered Defendant, whom she had met at the casino

before, once in August that same year. Later, video surveillance from the casino

showed Defendant buy two shots from the bar. Defendant can be seen pulling out

something from his pocket, pouring it into one of the glasses, and then mixing it into

one of the shots. He places a glass down next to E.M. and she proceeds to drink the

shot. Shortly thereafter, E.M. became so unsteady she could barely stand or walk,

requiring the assistance of Defendant. Defendant removed her from the casino floor

and led her towards the doors. However, E.M. appears to reenter and pull away from

Defendant, attempting to return to the casino floor. E.M. was denied reentry and

Defendant, claiming to be her boyfriend, led her out of the casino.

E.M.’s boyfriend at the time attempted to contact her and, after failing to do

so, went to the casino to look for E.M. He found her vehicle in the parking garage

but E.M. was not inside. He also could not locate E.M. inside of the casino. Later,

E.M.’s mother went to the casino in search of E.M. and found her sleeping inside

her car, extremely lethargic. Her boyfriend, who had returned to the casino at this

time, testified that E.M.’s vehicle was parked on the same floor of the parking

garage, but in a different parking spot than it was when he located the vehicle earlier

that day. E.M.’s boyfriend drove her vehicle from the casino and testified that he

noticed the seat was pushed back in a way that E.M. did not normally keep the chair,

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and that she would not have been able to reach the pedal or steering wheel from that

pushed back position. E.M. subsequently went to the hospital and a sexual assault

examination was performed. Surveillance from the casino parking lot showed

Defendant leave in his car, return, leave in E.M.’s car, then return the car with E.M.

inside, and then leave again in his car.

It was subsequently discovered that Defendant took E.M. to the home of Ms.

Michelle Blackburn, who had asked Defendant to care for her cat while she was out

of town. There, Defendant took photographs of E.M., naked from the waist down,

and sexually assaulted her. The photographs were recovered from Defendant’s

phone. According to E.M., she did not remember anything between Defendant

giving her the shot and waking in the hospital talking to law enforcement.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, there is one

possible error patent and one error patent. While Defendant’s brief identified several

errors patent, most of those errors were corrected at a clarification hearing held

August 14, 2024.

At the original sentencing hearing held January 19, 2024, the trial court

imposed the following sentences: “And so I am going to impose the maximum

sentence on all of the three charges that he was found guilty of. 99 years on second-

degree sexual battery; 40 on the kidnapping; and 5 on the mingling. Those are to

run concurrent[ly], without benefit.”

After an order of appeal was entered and after Defendant filed his brief, the

State filed a Motion and Order for Correction of Illegal Sentence and Request to

Clarify Sentence, which was heard on August 14, 2024. The State informed the trial

4

court: “Judge, it has come to the attention from the appeals court that there are some

things that just need to be clarified on the record in regards to the sentencing of Mr.

Cormier.” While it is not clear what information the State received “from the appeals

court,” Defendant discussed sentencing errors in his brief. This briefing seems to

have triggered the filing of the above motion by the State. Pursuant to La.Code

Crim.P. art. 916(3), after the entering of an order of an appeal, the trial court still

maintains jurisdiction “[t]o correct an illegal sentence or take other appropriate

action pursuant to a properly made or filed motion to reconsider sentence.” Since

the clarification hearing resulted in the correction of illegal sentences, we find that

jurisdiction in the trial court was proper.

In brief, Defendant asserts several errors patent regarding the original

sentences imposed. He alleges that the sentence for second degree sexual battery

(count one) was indeterminate as the trial court failed to “specifically state that at

least twenty-five years, or all of the sentence imposed, would be served without

benefits.” As for the sentence imposed for second degree kidnapping (count two),

Defendant alleges the entire sentence was imposed without benefits. While

Defendant notes that the minutes for count two state that the first two years were

imposed without benefits, he contends that the transcript prevails. Finally,

Defendant alleges the sentence imposed for mingling harmful substances (count

three) was illegally excessive.

At the clarification hearing, the State first informed the trial court that the

ninety-nine-year sentence for second degree sexual battery (count one) was not

imposed at hard labor. The trial court clarified that the ninety-nine-year sentence

was to be served at hard labor.

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Regarding the forty-year sentence imposed for second degree kidnapping

(count two), the State asserted that the trial court failed to clarify the portion to be

served without benefits. The trial court responded, “The entire 40 is served without

benefit.” The trial court also stated the sentence for count two was to be served at

hard labor.

Regarding the five-year sentence imposed for mingling harmful substances

(count three), the State asserted that it incorrectly informed the court that the

sentencing range was zero to five years when, in fact, it is zero to two years. Thus,

the maximum sentence for that offense is two years. The trial court then imposed a

sentence of two years at hard labor on count three. Although the trial court then

stated the sentence for count three was to be served “without benefit[,]” the State

informed the trial court that the sentence for count three was to be served “with

benefit.” The trial court then corrected the sentence for count three to be with

benefits.

The trial court once again ordered all sentences to run concurrently. The trial

court also stated that it had imposed the “harshest sentence, other than not running

it consecutively[.]”

Thus, we now review the record for errors patent following the clarification

of sentences by the trial court. Upon review, we note that the trial court did not

clarify the restriction of benefits on second degree sexual battery (count one). In

brief, the State asserts that the entire sentence for count one, like count two, was

imposed without benefit of probation, parole, or suspension of sentence. At the

original sentencing hearing, the trial court imposed the terms of imprisonment for

each count, then stated they were “to run concurrent, without benefit.” At the

clarification hearing, the trial court did not state that the sentence imposed for count

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one was to be served without benefits as it did for count two.

Based on the language used at the original sentencing hearing, we conclude

that the trial court’s statement “without benefit” applied to all counts; thus, the

sentence imposed for count one is determinate. Clearly, the trial court was referring

to all counts when it stated, “to run concurrent” and the very next statement, “without

benefit,” likewise refers to all counts. Furthermore, a statement that a sentence was

imposed “without benefit” has been upheld even though it does not delineate the

benefits restricted. See State v. Disedare, 19-810 (La.App. 3 Cir. 5/13/20), 298

So.3d 342, writ denied, 20-800 (La. 12/22/20), 307 So.3d 1041. In addition, the trial

court stated at the clarification hearing that it had imposed the harshest possible

sentences, indicating that it intended for the entire sentence imposed for count one

to be served without benefits. Accordingly, we find no error patent.

Next, although the minutes of the original sentencing hearing indicate the trial

court advised Defendant of the prescriptive period for filing post-conviction relief,

neither the transcript of sentencing nor the transcript of the clarification hearing

indicate the trial court advised of such. Therefore, the trial court is ordered to inform

Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate

written notice to Defendant within ten days of the rendition of this opinion and to

file written proof in the record that Defendant received the notice. See State v. Viltz,

18-184 (La.App. 3 Cir. 11/28/18), 261 So.3d 847 (citing State v. Roe, 05-116

(La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924

So.2d 163).

Lastly, Defendant asserts as an error patent the trial court’s failure to consider

any of the sentencing factors in La.Code Crim.P. art. 894.1. Defendant contends

that because the trial court failed to consider the 894.1 factors, “there is nothing for

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this Honorable Court to review in determining whether the maximum sentences the

court intended to impose upon Mr. Cormier are constitutionally excessive” and

“requires that his sentences be vacated and remanded to the trial court for

resentencing.” However, the trial court’s failure to consider the 894.1 guidelines is

not an error patent recognized by this court.

ASSIGNMENT OF ERROR:

Defendant’s brief sets forth a single assignment of error; however, it contains

two separate claims: (1) the trial court erred in admitting other crimes evidence under

La.Code Evid. art. 412.2, and (2) the trial court erred in denying the motion for

mistrial. We will address the two claims separately.

La.Code Evid. art. 412.2 Videos

The State sought to admit videos as other crimes, wrongs, or acts evidence

pursuant to La.Code Evid. art. 412.2, which states:

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 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.

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.

In the instant case, Defendant was charged with mingling harmful substances

that he then gave to E.M., moving her to a different location when she was unable

to resist him, and sexually assaulting her while she was incapacitated. The videos

8

the State sought to introduce were discovered on Defendant’s phone after authorities

extracted its data. The videos were of a female in the passenger seat of vehicle being

driven by Defendant. The woman was later identified as “D.H.”2 The woman’s eyes

are closed, and, at one point, a straw is hanging out of her mouth. She is naked from

the waist down, as is Defendant. Defendant digitally penetrates her in the video.

The hearing on the State’s notice of intent regarding the videos was held

immediately prior to trial. We note that the record indicates the State filed the notice

at issue filed pursuant to La.Code Evid. art. 412.2 for admission of the videos, but

also filed a motion in limine pursuant to La.Code Evid. arts. 412 and 412.1 to

prohibit discussion of the victim’s sexual history and reputation. At the hearing,

defense counsel initially argues, regarding the victim’s history and reputation, that

there is an exception under La.Code Evid. art. 412(A)(2)(a) that allows such

evidence to be admitted when there is an issue as to whether the accused was the

source of injury, which defense counsel contended was an issue in the case. Defense

counsel’s argument regarding La.Code Evid. art. 412(A)(2)(a) seems to have been

related to the State’s invocation of the “rape shield” law found in La.Code Evid. arts.

412 and 412.1. Louisiana Code of Evidence Article 412(A)(2)(a) is irrelevant to the

discussion regarding the videos, however, which were admitted under La.Code Evid.

art. 412.2.

Counsel then put forth the following argument regarding the video:

The video, I would suggest to the Court, is irrelevant. It’s
probative - - well, it’s more prejudicial than anything. Now, most of
the cases that the research cites with regards to 412 indicates that the
Court must look to see if the evidence is probative. Here the courts
have looked at the circumstances and mostly have taken evident [sic]
as to what the evidence is. Here the evidence is going to be a video.

2
Both the State and Defendant refer to the woman from the videos as “D.H.”; accordingly,
and in the spirit of La.R.S. 46:1884(W), we have done the same.

9

Now, that video does not indicate the closeness of similarities.
As a matter of fact, most of the cases talk about differences. You have
to have testimony in order to make the connection between the video
and what’s before you today. What do I mean by that? There I
particularly mean that you have to have testimony as it relates to the
offenses that are required under the charge. That video that you’re
going to look at and see involves a lady allegedly with some type of
prior claim of crime going on by defendant. We don’t know if she, like
in the allegations here, we don’t know if she’s under influence [sic] of
[] substances, we don’t know if she’s under the influence of alcohol, we
don’t know if there is consent. So, you have the [sic] weigh the
prejudice that it will cause the jury to be lured in finding [sic] a guilty
plea or a guilty finding merely because of the tape, and the Supreme
Court has said that in your weighing and balancing you must consider
the affects [sic] it’s going to have on the jury. Will the jury say, yes,
he’s guilty here today because we saw the tape? If that’s the case you
have to keep it out.

So, we don’t know the connexity of the circumstances with
regards to the tape and the trial here today. I submit to the Court that it
is prejudicial to my client and will cause an unfair evaluation by the
jury, and that’s an evaluation that you must make.

Now, moving beyond that particular thing, I reiterate the fact that
under one of these exceptions under 412 we are going to argue that we
have an exception under 412.A(2)(a). So, those considerations you have
to take into consideration when you make your ruling.

The discussion continued:

THE COURT:
Any reply?

MS. BUFORD:
Your Honor, again, yes, I do see what defense counsel is arguing
under 412(A)(2)(a), but when it comes to the videos that are going to
be viewed, Judge, this talks about the assaultive behavior that the
defendant pulled and that he does and you’ll see very much is relative
and similar to the crime that we are here for today –

....

-- In regards to an unconscious woman and the defendant
violently and digitally penetrating this woman while she is passed out
in the vehicle. That is what we are here for today in regards to the
victim in this case, who was unconscious and sustained injuries to her
genital area while she was with the defendant, when the defendant took
her to another apartment complex. This is exactly the same assaultive
behavior and that’s what 412.2 here is for, is to show the assaultive

10

behavior or the sexuality [sic] assaultive behavior of the defendant, of
the accused.

THE COURT:
I’m granting the motion for that evidence to be admitted.[3]

Thus, at the hearing, defense counsel argued regarding the dissimilarities

between the circumstances leading to the video sought to be introduced and the

circumstances involved in the instant case. Likewise, Defendant on appeal argues

the circumstances are different regarding how the woman in the videos, D.H., ended

up incapacitated and where she was sexually assaulted. 4 After review, and for the

following reasons, we find that this argument lacks merit.

On appeal Defendant argues that these dissimilarities mean the State failed to

meet the requirements of admitting the videos under case law involving modus

operandi. Defendant contends that because there was no evidence of mingling

harmful substances regarding D.H., no evidence of kidnapping, no evidence that

D.H. did not give consent, and because the assault happened in his car and not

someone else’s home like in the instant case, the situations are dissimilar. Thus, the

videos should not have been introduced because “[t]he probative value of these

uncharged and unadjudicated offenses of alleged sexual abuse was clearly

outweighed by its prejudicial effect.”

Defendant cites case law on modus operandi, however, the cases cited do not

relate to whether evidence of other crimes is admissible under La.Code Evid. art.

412.2. We find that because the videos were introduced under La.Code Evid. art.

412.2, this argument lacks merit as the State does not need to show the situations are

3
It is unclear whether the videos were viewed by the trial court prior to the ruling.

11

similar the way it would have needed to do to introduce the videos under La.Code

Evid. art. 404.

Louisiana Code of Evidence Article 412.2(A) states: “evidence of the

accused’s commission of another crime, wrong, or act involving sexually assaultive

behavior . . . 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.” Simply,

evidence of other crimes or acts involving sexually assaultive behavior is admissible

in cases where the defendant is accused of sexually assaultive behavior. In State v.

Wright, 11-141, pp. 12–13 (La. 12/6/11), 79 So.3d 309, 317 (footnote omitted), the

supreme court expressly addressed the fact that a situational similarity is not required

for admission of evidence under La.Code Evid. art. 412.2:

Further, in enacting Article 412.2, the Legislature did not see fit
to impose a restriction requiring such evidence to meet a stringent
similarity requirement for admissibility. We have previously examined
the legislative history behind the Article in State v. Williams, 02–1030
(La.10/15/02), 830 So.2d 984. In Williams, this Court noted the
enactment of the Article 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, 00–1554 (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. 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. This Court stated “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.”
Williams, 830 So.2d at 986. Thus, Article 412.2 was enacted to loosen
restrictions on “other crimes” evidence, and to allow evidence of
“lustful disposition” in cases involving sexual offenses.

As noted in Wright, 79 So.3d at 316: “A trial court’s ruling on the

admissibility of evidence is reviewed for an abuse of discretion. State v. Cosey, 97-

12

2020 (La.11/28/00), 779 So.2d 675, 684. This same standard is applied to rulings

on the admission of other crimes evidence and evidence under La. C.E. art. 412.2.”

The videos admitted at trial, taken from Defendant’s phone pursuant to a warrant,

clearly show Defendant sexually assaulting a woman who is unconscious and

nonresponsive. We cannot conclude that the trial court abused its discretion when

it admitted these videos, when he is currently charged with drugging a different

woman, taking her to a different location while she was unconscious, and sexually

assaulting her.

Defendant’s remaining argument regarding the introduction of the videos is

that they should not have been permitted because they fail the balancing test of

La.Code Evid. art. 403, which states 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.” Defendant argues that due to the alleged dissimilarities of the

video and the offense at issue coupled with the fact that the videos “were not relevant

for the State to prove their case,” “[t]he probative value of these uncharged and

unadjudicated offenses of alleged sexual abuse was clearly outweighed by its

prejudicial effect.” Defendant asserts such evidence should be rejected “unless it is

plainly necessary to prove something which is really in issue” quoting State v.

McArthur, 97-2918, p. 4 (La.1998), 719 So.2d 1037, 1042. We disagree. As

previously noted, a trial court’s ruling on admissibility of evidence under La.Code

Evid. art. 412.2 is reviewed for abuse of discretion. The videos possessed probative

value under La.Code Evid. art. 412.2 because they show Defendant is willing to take

advantage of an unconscious woman by sexually assaulting her, the very thing he

was charged with doing to E.M. Given the similarity between what Defendant was

13

alleged to have done to E.M. in the present case, what he recorded himself doing to

D.H. while she was unconscious, and the trial court’s instruction that Defendant may

not be found guilty merely because he committed another offense, we cannot say the

trial court abused its discretion.

Denial of Motion for Mistrial

The second half of Defendant’s assignment of error is that the trial court erred

in denying his motion for mistrial. Defendant contends that “[t]he failure to allow

Defense counsel the opportunity to cross-examine D.H. substantially affected the

fairness of the proceedings and the reliability of her testimony.” According to

Defendant, this violated his right to confront the witnesses against him in violation

of the Sixth Amendment of the United States Constitution and Crawford v.

Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).

Defendant’s motion for mistrial was made after the State’s opening argument.

The alleged offending comments during the State’s opening argument were as

follows:

Also, in that extraction detectives saw a video, a video of another
woman, not [E.M.], a woman that [Defendant] had went on a date with
in Texas, and in this video the woman is in the Toyota Avalon, the same
Toyota Avalon that [Defendant] was driving the night he encountered
[E.M.], the same Toyota Avalon that detectives found in the driveway
of [Defendant]’s home on 17th Street, and in this video the woman is
passed out on the passenger’s side. Her eyes are closed. A straw is
hanging out of her mouth, and in the video you will be able to see that
[Defendant] is violently penetrating her vagina with his fingers.

So, whenever detectives go to speak to this woman she says, I
know [Defendant], I went on a date with [Defendant], but she had no
idea about the video. She had no idea about what happened in that car.
She had no memory of it, just like [E.M.] doesn’t.

Defense counsel did not raise a contemporaneous objection to the State’s

comments, instead moving for a mistrial after the State concluded its opening on the

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grounds that he could not cross-examine D.H. “It’s my understanding the entire

video was coming in and now we cannot cross-examine her based on the opening

statement that she talk to - - what she said.” The State argued it was only going to

discuss “her reaction, her facial expressions, and all of that, not what [D.H.] said [to

the officers].” Defendant argued that the opening statement noted what D.H. did

and did not know and, since Defendant cannot cross-examine D.H., a mistrial is

necessary. The trial court denied the motion for mistrial. Defendant now contests

that denial, claiming that “[t]he failure to allow [d]efense counsel the opportunity to

cross-examine D.H. substantially affected the fairness of the proceedings and the

reliability of her testimony.” In response, the State asserts that counsel misspoke

during opening statements and that the prosecutor’s statement is not evidence

Under La.Code Crim.P. art. 766, “[t]he opening statement of the state shall

explain the nature of the charge, and set forth, in general terms, the nature of the

evidence by which the state expects to prove the charge.” Louisiana Code of

Criminal Procedure Article 770 sets forth the basis for a mandatory mistrial:

Upon motion of a defendant, a mistrial shall be ordered when a
remark or comment, made within the hearing of the jury by the judge,
district attorney, or a court official, during the trial or in argument,
refers directly or indirectly to:

(1) Race, religion, color or national origin, if the remark or
comment is not material and relevant and might create prejudice against
the defendant in the mind of the jury;

(2) Another crime committed or alleged to have been committed
by the defendant as to which evidence is not admissible;

(3) The failure of the defendant to testify in his own defense; or

(4) The refusal of the judge to direct a verdict.

An admonition to the jury to disregard the remark or comment
shall not be sufficient to prevent a mistrial. If the defendant, however,

15

requests that only an admonition be given, the court shall admonish the
jury to disregard the remark or comment but shall not declare a mistrial.

The defendant may also request an admonition be made to the jury in certain

situations when a remark may create prejudice or request a mistrial according to

La.Code Crim.P. art. 771:

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:

(1) When the remark or comment is made by the judge, the
district attorney, or a court official, and the remark is not within the
scope of Article 770; or

(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.

Louisiana Code of Criminal Procedure Article 775 provides further grounds

for mistrial:

A mistrial may be ordered, and in a jury case the jury dismissed,
when:
(1) The defendant consents thereto;

(2) The jury is unable to agree upon a verdict;

(3) There is a legal defect in the proceedings which would make
any judgment entered upon a verdict reversible as a matter of law;

(4) The court finds that the defendant does not have the mental
capacity to proceed;

(5) It is physically impossible to proceed with the trial in
conformity with law; or

(6) False statements of a juror on voir dire prevent a fair trial.

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Upon motion of a defendant, a mistrial shall be ordered, and in a
jury case the jury dismissed, when prejudicial conduct in or outside the
courtroom makes it impossible for the defendant to obtain a fair trial,
or when authorized by Article 770 or 771.

A mistrial shall be ordered, and in a jury case the jury dismissed,
when the state and the defendant jointly move for a mistrial.

A trial court is given “broad discretion in determining whether conduct is so

prejudicial as to deprive an accused of a fair trial.” State v. Leonard, 05-1382, p. 11

(La. 6/16/06), 932 So.2d 660, 667. “[A] mistrial is a drastic remedy which should

only be declared upon a clear showing of prejudice by the defendant.” Id.

Although the prosecutor’s opening statement seemingly indicated the

evidence would include what D.H. said, the State alleges that this was a

misstatement—the evidence instead included a detective’s appreciation of D.H.’s

reaction. The State further notes that a prosecutor’s statement is not evidence and,

“absent bad faith on the part of the prosecutor or clear and substantial prejudice, the

reference in the opening statement to evidence later ruled inadmissible is not a

ground for a mistrial.” State v. Green, 343 So.2d 149, 151 (La.1977).

After review, we Defendant’s claim has no merit. Defendant, in his brief to

this court, fails to address the law regarding the granting of a mistrial and fails to

state which basis he believes entitled him to a mistrial. Of the above mandatory

reasons for mistrial, the only basis which might apply to the State’s opening

statement remarks is La.Code Crim.P. art. 770(2). However, evidence of another

crime had already been ruled admissible and on review we found that admission was

not an error. Defendant, instead, asserts that he was deprived of his constitutional

right to confront his accuser, D.H. Specifically, Defendant alleges he was precluded

from cross-examining D.H. regarding her testimony as to the events with Defendant

that were on video, and which the State mentioned in its opening statement.

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However, D.H. did not testify against Defendant. The evidence would show

that detectives spoke to D.H. and informed her of the videos found on Defendant’s

phone. Detective Sanders was then instructed to testify regarding D.H.’s reaction.

Prior to Detective Sanders responding, the State explicitly told its witness not to

repeat anything D.H. said and simply asked about D.H.’s reaction to the videos.

Additionally, there were no objections made during Detective Sanders’s testimony

regarding her interaction with D.H. While the Confrontation Clause grants

Defendant the right to cross-examine the witnesses against him; D.H. was not a

witness against him. Accordingly, his inability to cross-examine her is irrelevant,

and his convictions are affirmed.

DECREE:

Defendant’s convictions and sentences are affirmed. The trial court is ordered

to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending

appropriate written notice to Defendant within ten days of the rendition of this

opinion and to file written proof in the record that Defendant received the notice.

AFFIRMED WITH INSTRUCTIONS.

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