State of Louisiana v. William Felix Vail

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-436

STATE OF LOUISIANA

VERSUS

WILLIAM FELIX VAIL

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 16994-13
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

WRIT DENIED.

John Foster DeRosier
14th JDC District Attorney
Carla Sue Sigler
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR PLAINTIFF/RESPONDENT:
State of Louisiana

Hugo A. Holland Jr.
Assistant District Attorney
501 Caddo Parish Courthouse
Shreveport, LA 71101-0000
COUNSEL FOR PLAINTIFF/RESPONDENT:
State of Louisiana

Benjamin A. Cormier
Attorney At Law
827 Pujo Street
Lake Charles, LA 70601
(337) 564-6863
COUNSEL FOR DEFENDANT/APPLICANT:
William Felix Vail

SAUNDERS, Judge.

Defendant, William Felix Vail, was indicted for the 1962 second degree

murder of his wife, Mary Horton Vail, a violation of La.R.S. 14:30.1. On

November 13, 2013, the State filed a “404(B) Notice,” wherein it advised

Defendant that it intended to introduce at trial evidence of the 1973 disappearance

of his then-girlfriend, Sharon Henley, and the 1984 disappearance of his second

wife, Annette Carver-Vail. On the same date, the State filed a “Memorandum in

Support of State’s 404(B) Notice.” On January 31, 2014, the State filed a “Post-

Hearing Memorandum in Support of State’s 404(B) Notice,” with exhibits. On

March 5, 2014, Defendant filed a “Post-Hearing Memorandum in Opposition to the

State’s 404(B),” with exhibits. On March 6, 2014, the State filed a rebuttal to

Defendant’s opposition entitled “Post-Hearing Memorandum in Support of State’s

404(B) Notice.”

On March 19, 2014, the trial court heard oral arguments regarding the

State’s intent to introduce evidence of the disappearances of Ms. Carver-Vail and

Ms. Hensley, following which the trial court ruled in favor of the State. Defendant

sought review of the trial court’s ruling.

On its own motion, this court called the matter up for oral argument to be

heard on September 24, 2014. Thereafter, both the State and Defendant filed briefs

in addition to those initially filed for and against the writ application.

FACTS:

Defendant’s first wife, Mary Horton Vail, died in October 1962. Defendant

claimed he and his wife were out boating one night on the Calcasieu River when

she fell overboard, and he was unable to save her from drowning. At the time, the

coroner for Calcasieu Parish determined that the manner of death was accidental

and the cause of death was drowning. Thereafter, a grand jury pretermitted the

case as the it did not find sufficient evidence that the death was not accidental as

found by the then-coroner.

However, on an unspecified recent date, Doctor Terry Welke, the current

coroner for Calcasieu Parish and an expert in forensic pathology, examined

pictures of Ms. Vail’s body as it was being pulled out of the river and reviewed the

coroner’s report made shortly thereafter. At a preliminary hearing, Doctor Welke

testified that although he could not determine the cause of Mrs. Vail’s death, the

manner of death was a homicide.

FACTS PERTAINING TO EVIDENCE OF OTHER WRONGS OR ACTS:

Sharon Hensley and Defendant met in San Francisco, California, sometime

in the late sixties. They were arrested in Merced County for drug possession and

child endangerment. In March 1974, Defendant wrote to Ms. Hensley’s mother

and advised her that in 1973, he last saw Sharon in Florida, where she had boarded

a sailboat with another couple and sailed away to cruise the world. No one in Ms.

Hensley’s family has heard from her since. Ms. Hensley’s brother filed a missing

person’s report in 2013.

Ms. Carver-Vail met Defendant when she was fifteen and he was forty-one.

They married in 1983 when she was seventeen. In August 1984, Ms. Carver-Vail

deeded her interest in property she inherited from her father in Oklahoma to

Defendant in fee simple. In October of that year, Ms. Carver-Vail’s mother filed a

missing person’s report on her daughter. Defendant advised the police that on

September 19, 1984, he dropped Ms. Carver-Vail off at a bus station in St. Louis.

He stated her intent was to go to Mexico. Ms. Carver-Vail has not been seen or

heard from since by anyone who has come forward.

2

ISSUE:

Defendant argues that the trial court erred when it ruled that evidence of the

two women’s disappearances was admissible at trial “when the State failed to

present evidence of the alleged acts and the hunches and speculations that was [sic]

offered in support of the State’s argument are [sic] overly prejudicial and not

allowed under Rule of Evidence 403.” He further argues:

That the District Court erred as a matter of law by ruling that Sharon
Hensley and Annette Carve[r] Vail could be presumed dead and that
the Defendant could be presumed to be the one who killed them since
he was the last person the District Court knew that had contact with
the two women. That the District Court erred in [sic] a matter of law
in its application of the doctrine of chances. And that the District
Court erred as a matter of law when the District Court presumed that
the reason there was no evidence to suggest that a crime took place, or
that the [D]efendant was involved in the commission of a crime in
regards to Sharon Hensley and Annette Carver Vail was because the
Defendant spent years planning and executing the murders, rather and
[sic] concluding that a complete lack of evidence meant the Defendant
was not guilty of murdering Annette Carver Vail and/or Sharon
Hensley.

ANALYSIS:

Louisiana Code of Evidence Article 404 provides, in pertinent part:

B. Other crimes, wrongs, or acts. (1) Except as provided in
Article 412, evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident,
provided that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance of trial, of the
nature of any such evidence it intends to introduce at trial for such
purposes, or when it relates to conduct that constitutes an integral part
of the act or transaction that is the subject of the present proceeding.

Even conduct which occurred after the charged offense may be admissible

pursuant to Article 404(B). State v. Lee, 05-2098 (La. 1/16/08) 976 So.2d 109. See

also State v. Altenberger, 13-2518 (La. 4/11/14), 139 So.3d 510, cert. denied, 555

3

U.S. 824, 129 S.Ct. 143 (2008). Furthermore, it is the State’s burden to prove that

a defendant committed the other crimes, wrongs, or acts by clear and convincing

evidence. State v. Prieur, 277 So.2d 126 (La.1973); State v. Stevens, 11-175

(La.App. 3 Cir. 10/5/11), 74 So.3d 803, writ denied, 11-2496 (La. 3/30/12), 85

So.3d 115. However, La.Code Evid. art. 403 provides that “[a]lthough 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.”

In its “Memorandum in Support of State’s 404(B) Notice,” the State argued

that evidence of the disappearances of the two women was admissible for the

purpose of showing absence of mistake or accident. Defendant contended that his

first wife’s death was accidental. Referring to State v. Monroe, 364 So.2d 570, 572

(La.1978), quoting from 2 Wigmore on Evidence, § 302 (3d. 1940), the State

argued that the “‘doctrine of chances’ eliminates the element of innocence by

multiplying instances of the same results until it is perceived that this element

cannot explain them all.” Defendant claimed that no action on his part caused his

first wife’s death or the disappearance of his girlfriend, eleven years after the death

of the wife, or the disappearance of his second wife, also eleven years after the

disappearance of Ms. Hensley. The State argued that to have lost a wife, allegedly

to an accident, then to have two other significant women in his life disappear under

suspicious circumstances indicated that the death of his first wife may possibility

not have been accidental. Again quoting 2 Wigmore on Evidence, § 302 (3d. 1940),

the State argued that “similar results do not usually occur through abnormal causes;

and the recurrence of a similar result tends increasingly with each instance to

negate accident or inadvertence.”

4

In its “Post-Hearing Memorandum in Support of State’s 404(B) Notice,” the

State speculated that Defendant had a reason to dispose of Ms. Hensley. When

they were in California, they had Defendant’s eight-year-old son, Billy Vail, with

them. The couple was arrested after the boy walked into a police station one day

and told the police he was tired of living in an orchard, eating only grapes, and

being force fed drugs. He also told them that he had overheard his father tell Ms.

Hensley that he murdered his wife. This prompted a renewal of the investigation

into Mrs. Vail’s death in Lake Charles. According to the State, years later, Billy

Vail made a taped statement but died shortly thereafter. The State claims to have a

copy of the tape; however, the tape was inadmissible at trial.

According to Defendant, after Ms. Hensley got out of jail in California, she

wanted to go off on her own. He wrote a letter to Ms. Hensley’s mother explaining

her disappearance. He noted in the letter that Ms. Hensley’s mother had contacted

his mother in an attempt to locate Ms. Hensley. He told Ms. Hensley’s mother that

her daughter wanted to disappear and start her life over again, mostly to get away

from her. He wrote that they had met a couple in Florida who wanted to take them

away on a world cruise on a sailboat. He knew only the couples’ first names and

had no information regarding the sailboat’s name or registration. While he

professed his love for Ms. Hensley, he stated he did not want to go on the trip, so

she decided to leave him.

In the memorandum, the State reproduced, in part, a letter Defendant sent to

his parents on March 20, 1973, telling them about Ms. Hensley’s disappearance:

I’m not married anymore and although she has just been gone two
days my thinking is starting to clear from the clouds that were in her
mind. I saw them there from the time she got us busted in California
and I thought I could get her clear but I’ve given up the experiment
(with her anyway) so now I can began training full time. . . . One

5

more thing about my last wife (for your own information and in case
her folks inquire) she met a man who has a boat and although he
invited us both, I convinced them I have more pressing things to do at
the moment, and so, I sent them off to the ocean and each other with
my good wishes and blessing (and, I might add, all to my great relief.).

The State speculated here that once Ms. Hensley had indicated she wanted out of

the relationship, it was to his benefit to dispose of her somehow since he had

confessed to her that he murdered his wife, and when she was out of his control

and domination, she could corroborate his son’s story that he had confessed to her.

Although there was some investigation as to her whereabouts, Ms. Hensley’s

family never saw or heard from her again, nor was there any social security activity

reported.

Defendant further argued that Sharon Hensley was a rebellious hippie whose

disappearance was not a surprise to her family. He pointed to a letter her mother

supposedly wrote to investigators regarding her daughter wherein she described

her daughter’s behavior after she had met Defendant. Defendant pointed out that

the family did not report Ms. Hensley missing until several years later at the State’s

prompting. He stated that she had independently told her family that she was

leaving on a boat to travel the world. However, in the same above-mentioned letter,

Ms. Hensley’s mother stated that the very last time she had any communication

with her daughter was when she called from Defendant’s sister’s house on

February 3, 1973, and told her mother that she and Defendant were on their way to

New Orleans. He further argued that there was no evidence that he even knew of

the confession he allegedly made to Ms. Hensley or that the investigation into his

wife’s death had been reopened in Lake Charles; therefore, there was no reason to

be rid of her.

6

Defendant’s second wife, Annette Carver-Vail, was reported missing, and as

late as 1994, a social security check indicated no income contributions under her

social security number since 1973. Defendant first met Annette Carver when she

was fifteen years old in Houston, Texas. They were married August 15, 1983,

when he was forty-three and she was seventeen. When she turned eighteen, she

received one hundred thousand dollars from a trust fund established by insurance

proceeds from the death of her father several years earlier. She also inherited some

realty. In 1982, allegedly using some of the funds from the trust, her mother

purchased property in her and Annette Carver’s name in Tulsa, Oklahoma. In May

1984, Ms. Carver-Vail’s mother deeded her interest in the property to her daughter.

On August 28, 1984, Ms. Carver-Vail deeded the property over to Defendant in fee

simple. According to Defendant, in September 1984, he drove his wife to a bus

station in St. Louis, Missouri, and dropped her off. He told the investigators she

planned to travel to Denver first to obtain false identification and then on to

Mexico. He also claimed that she took most of the cash they had left from her

inheritance, about fifty thousand dollars, but left him ten thousand dollars for

needed repairs on the house.

The State pointed out, however, that the Tulsa police investigation led to

Defendant’s sister, Sue Jordan, who told the investigators that in October 1984,

Defendant and Ms. Carver-Vail showed up at her house in Lake Charles. They

attended the Cal-Cam fair. The date of the fair was verified by the investigator. A

few days after the fair, Defendant and Ms. Carver-Vail left, but he returned a few

days later by himself and said that Ms. Carver-Vail had gone to Mexico. Later, Ms.

Jordan denied telling the investigators that Ms. Carver-Vail did not return with

Defendant. Ms. Jordan has subsequently died. The State contends it has a witness

7

who will testify to the foregoing facts should the evidence of Ms. Carver-Vail’s

disappearance be admitted at trial.

In its memorandum, the State concluded:

Vail’s story in relation to the two presumed dead women is
shockingly similar in many respects, the most important of course
being that both Sharon and Annette, who never met one another and
who are separated by both time and space, decided independently of
each other and independently of Felix Vail that they each needed to
shed all contact with their current lives, leaving behind parents and
siblings and all that they had ever known and loved, to become new
people, clean and free from memory associations and to drop
everyone and start over.

In his “Post-Hearing Memorandum in Opposition to the State’s 404(B)

Notice,” Defendant argued that all of the State’s allegations were solely

assumptions and not based on any physical evidence that he was involved in the

two women’s decisions to sever all ties with their families and friends. He claimed

he had conversations with Ms. Carver-Vail a few years after her departure and that

she had called him to tell him she was well and had children. He claimed that he

went to Mexico at some point to look for her. He stated that Ms. Carver-Vail had a

boyfriend in Mexico at one time, which her mother verified in her reports to the

investigating police officers. He further pointed out that there were significant

indications that six months after she left, she appeared in court in Claremore,

Oklahoma, and pled guilty to a reduced charge of malicious destruction of property.

The State countered that while it had procured documents which indicated

that Ms. Carver-Vail was in Claremore, Oklahoma, in court six months after

Defendant insisted she left for Mexico, the documents showed that he had been

charged with the same offense and was in court that day also. The State argued that

neither Defendant nor Ms. Carver-Vail were actually in court and that their

attorney waived their appearances and entered pleas for them. The State further

8

argued that if the facts were otherwise, Defendant would have told investigators

about seeing her after she reportedly left for Mexico. However, over the years,

Defendant never said a word about it, only telling investigators sometime in the

1990’s that she had called him within a year or two of disappearing to Mexico.

In his memorandum, Defendant also pointed to and discussed Monroe, 364

So.2d 570, and quoted Wigmore regarding the “doctrine of chance.” He stated that

pursuant to Wigmore, the doctrine required that the evidence sought to be admitted

as prior “acts” must be similar in incidents and results and must be committed

within a limited time period. He argued that there was no similarity between the

death of his first wife and Ms. Hensley’s or Ms. Carver-Vail’s riddance of their

family and friends for a new life. Defendant further argued eleven years and

twenty-two years after the underlying alleged crime was not “within a limited time

frame” as required by the doctrine.

In Monroe, the defendant was convicted of the strangulation death of an

elderly man. He admitted he strangled the man and admitted to strangling another

man to death the next day. However, he claimed self-defense in both cases. On

appeal, he argued that evidence of the subsequent offense was not admissible

because it did not show sufficient probative value to outweigh its prejudicial effect.

The supreme court held:

Because the introduction of evidence of other acts of
misconduct involves substantial risk of grave prejudice to a defendant,
evidence of crimes related to the offense with which a defendant is
charged is inadmissible except under special exceptions. State v.
Prieur, 277 So.2d 126 (La.1973). The general rule is that the
prosecution may not introduce evidence of other criminal acts of the
accused unless the evidence is substantially relevant for some other
purpose than to show a possibility that he committed the crime on trial
because he is a man of criminal character. State v. Sutfield, 354 So.2d
1334 (La.1978). One of the other purposes for which such evidence
may be relevant is to show, by the similar offense, that the act on trial

9

was not inadvertent, accidental, unintentional, or without guilty
knowledge. McCormick on Evidence, § 190 at p. 450 (Cleary ed.
1972); La.R.S. 15:455, 456. However, in order for such evidence to
be admissible to prove intent, or for another permissible purpose,
there must be a real and genuine contested issue of intent at trial; State
v. Nelson, 357 So.2d 1100, 1103 (La.1978); State v. Prieur, supra,
and the probative value of the evidence must outweigh its prejudicial
effect. State v. Sutfield, supra, State v. Prieur, supra.

The reasons underlying the exception for proof of intent when
genuinely at issue and the prerequisites to its application were set
forth by Wigmore, who observed:

“To prove Intent, as a generic notion of criminal
volition or wilfulness, including the various non-innocent
mental states accompanying different criminal acts, there
is employed an entirely different process of thought. The
argument here is purely from the point of view of the
doctrine of chances, the instinctive recognition of that
logical process which eliminates the element of innocent
intent by multiplying instances of the same result until it
is perceived that this element cannot explain them all.
Without formulating any accurate test, and without
attempting by numerous instances to secure absolute
certainty of inference, the mind applies this rough and
instinctive process or reasoning, namely, that an unusual
and abnormal element might perhaps be present in one
instance, but the oftener similar instances occur with
similar results, the less likely is the abnormal element
likely to be the true explanation of them.

“***

“A. In short, similar results do not usually occur
through abnormal causes; and the recurrence of a similar
result (here in the shape of an unlawful act) tends
(increasingly with each instance) to negative accident or
inadvertence or self-defense or good faith or other
innocent mental state, and tends to establish
(provisionally, at least, though not certainly) the presence
of the normal, i. e., criminal, intent accompanying such
an act; and the force of each additional instance will vary
in each kind of offence according to the probability that
the act could be repeated, within a limited time and under
given circumstances, with an innocent intent. ***

“***
“It will be seen that the peculiar feature of this
process of proof is that the act itself is assumed to be

10

done, – either because (as usually) it is conceded, or
because the jury are instructed not to consider the
evidence from this point of view until they find the act to
have been done and are proceeding to determine the
intent. This explains what is a marked feature in the
rulings of the Courts, namely a disinclination to insist on
any feature of common purpose or general scheme as a
necessary requirement for the other acts evidentially used.
It is not here necessary to look for a general scheme or to
discover a united system in all the acts; the attempt is
merely to discover the intent accompanying the act in
question; and the prior doing of other similar acts,
whether clearly a part of a scheme or not, is useful as
reducing the possibility that the act in question was done
with innocent intent. The argument is based purely on
the doctrine of chances, and it is the mere repetition of
instances, and not their system or scheme, that satisfies
our logical demand.

“Yet, in order to satisfy this demand, it is at least
necessary that prior acts should be similar. Since it is the
improbability of a like result being repeated by mere
chance that carries probative weight, the essence of this
probative effect is the likeness of the instance. ***

“In short, there must be a similarity in the various
instances in order to give them probative value – , as
indeed the general logical canon requires (ante, § 33).” 2
Wigmore on Evidence, § 302 (3d ed. 1940).

Applying the relevant principles to the instant case we conclude
that the trial judge properly invoked the exception and allowed the
introduction of the similar offense evidence to negate self defense and
lack of intent. There was little if any doubt that the defendant had
killed Ulysses Martin. However, a real and genuine issue as to his
specific intent to kill or cause great bodily harm, which the State had
the burden of proving, La.R.S. 14:30.1, was raised by the evidence of
self defense and insanity. The evidence of the subsequent act, which
was strikingly similar, had great probative value to show the
improbability that the defendant acted in self defense or without
requisite intent in strangling two derelicts on successive nights at the
same spot on the river batture.

Monroe, 364 So.2d at 572-73.

11

At the hearing, held on March 19, 2014, the State and Defendant presented

the trial court with the arguments set forth in their memorandums. Defendant

further argued that the State was attempting to divest him of the presumption of

innocence by suggesting through the admission of the long-time disappearances of

Ms. Hensley and his second wife the presumption that they were dead. According

to Defendant, if the trial court presumed the women were dead, then it was shifting

the burden of proving that they were alive onto Defendant. He argued the burden

of proving that he had committed other crimes for the purpose of La.Code Evid.

404(B) was on the State. He argued that if the State was allowed to put on evidence

of the two women’s disappearance at trial, he would be required to prove that they

were still alive, and that he cannot do. Defendant contends that he will be

extremely prejudiced by having to also defend against two presumed murders.

The State further argued that it can clearly and convincingly prove by

circumstantial evidence that Defendant was the last person to ever see or hear from

the two missing women and that the circumstantial evidence would also show the

bizarrely similar circumstances under which the women disappeared. The State

suggested that Defendant did not understand the “doctrine of chances”

requirements. See 2 Wigmore on Evidence, §302 (3d ed. 1940). The “doctrine of

chances” required only that the results were similar but not necessarily the

mechanism by which the results were reached. Finally, the State argued that the

trial court, for the purpose of deciding the issue of whether the evidence was

allowable and not overly prejudicial, could presume the women were dead without

violating Defendant’s right to be presumed innocent. The State pointed out that one

was presumed competent to proceed to trial. “Because we presume competence

12

and not incompetence, does that somehow mean that we violated the defendant’s

constitution right?”

The trial court then ruled, as follows:

It appears that the only undisputed matter of issue, whether this
Court should allow reference and introduction of the evidence of other
bad acts at this defendant’s trial for murder of his wife, Mary, is that
this particular fact scenario or situation is obviously very novel in the
state of Louisiana. The bad acts sought to be introduced by the State
are incidences, if you will, of events that are alleged to have taken
place not only subsequent to the death of Mary Vail in October 1962
but many years, hence, the latter of them occurring some 22 years
later. Add to that, the issue that the incidences, again, if you will, of
bad acts are of great, great questionable dispute.

Though it may well be argued that both of the subsequent
incidences involved the wife or significant other of Mr. Vail and by
operation of law are presumed dead, neither of the bad acts resulted in
criminal charges being brought against Mr. Vail, and I concede that.
As to the presumption of death, the only applicable statute that
addresses this circumstance appears to be Louisiana Civil Code
Article 30, which states in pertinent part, “when a person has
disappeared under circumstances such that the death seems certain, his
death is considered to have been established even though no body has
been found.” Combine that with Civil Code Article 54 that sets that
period of time legally at five years, and obviously we’re beyond that
five years on both of those by many, many years.

As to the issue of certainty of the death of Sharon Hensley,
again, without chronicling the entirety of the State’s brief regarding
that disappearance, it appears to be fairly well documented and
determined that the last person of any relation to her - - to see, hear, or
speak with her is Mr. Vail. Now, if it’s - - by his own admission,
Sharon Hensley did embark on that sailing vessel and has not been
heard from or seen since that day, she may well be now some 40 years
later presumed dead. Secondly, his second wife, Annette Carver Vail,
again by Mr. Vail’s own words, was last seen by any reporting person
in St. Louis, Missouri on or about September 15, 1984, that separation
approaching 30 years now.

The State argues that it should be allowed to admit to the trier
of fact these two instances of uncharged misconduct evidence not to
prove intent but to prove the absence of mistake or accident. The
analysis for admitting this uncharged misconduct is drawn by
applying the Doctrine of Chances or probability theory or - -
probability theory. Evidence of other similar happenings that might be
only marginally probative if considered in isolation can become

13

highly probative when considered in conjunction or collectively or as
in repeated instances.

The defense argues that the acts to be considered need to be
similar with similar outcomes. I recognize that. There is some dispute
or uncertainty as to the element but even allowing for this contended
requirement, similarity recognized by the Court is the elimination of a
spouse or a significant other. There’s no dispute that Mary Vail was
deceased. And as indicated earlier in this discussion, this Court is
assuming, at least until determined otherwise, that the other two
women of interest are deceased, also.

The defendant next argues that this same Doctrine of Chances
requires that the act take place within a limited time, not 11 or 22
years after the demise of Mary Vail. It is conceded that 11 and 22
years after a certain event are significant periods of time, and I
recognize that.

However, the act or acts that question here are substantially and
arguably the most egregious possible and their very substance
suggests years of nurturing and preparation. In other words, these acts
are not shoplifting or even burglaries. The enormity of their
consequences are time-consuming events. By their nature - - very
nature, they take time.

Lastly, the defendant would argue that the acts actually
occurred, would dispute that those actually occurred as they pled
previously. This Court at this time is presuming that Sharon Hensley
and Annette Craver Vail are deceased and under questionable
circumstances. By Mr. Vail’s own words, he is the last person of
interest to see either of these two women alive, at least until someone
else reveals to this Court or a trier of fact to the contrary.

The analysis up to this point by the Court leads it to rule that
these two instances of disappearance and likely deaths are admissible
at the trial of Felix Vail for the murder of Mary Vail.

Now, defense has suggested that the Court consider Article 403
of the Code of Evidence, which addresses the prejudicial nature of the
evidence otherwise relevant. We still have to go through that. The
article states in pertinent part that although relevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. I have already determined that the
probative value of the prior acts is a material issue.

Other than character, no doubt the revelation - - revelation of
these acts to a jury would create an effective suspicion of guilt as it
relates to the defendant, or the State would have no interest in
disclosure. However, this Court believes that the probative value to

14

the trier of fact outweighs the unfair prejudice. Concerns of unfair
prejudice can be alleviated by limiting jury instructions at trial.

As briefly noted above, in order for other crimes evidence to be admitted

under La. Code Evid. art. 404(B)(1), one of the factors in the article must be at

issue, have some relevance, or be an element of the crime charged. State v.

Jackson, 93-424 (La. 10/18/93), 625 So.2d 146. Further, the probative value of the

extraneous evidence must outweigh its prejudicial effect. La.Code Evid. art. 403.

However, as noted by the fifth circuit:

Evidence of other crimes or bad acts is prejudicial since all
evidence which tends to make it more probable than not that an
individual committed a criminal offense is necessarily prejudicial.
State v. Williams, 02-645, p. 16 (La.App. 5 Cir. 11/26/02), 833 So.2d
497, 507. However, the underlying policy is not to prevent prejudice,
since evidence of other crimes is always prejudicial, but to protect
against unfair prejudice when the evidence is only marginally relevant
to the determination of guilt of the charged crime. Id.

The defendant bears the burden to show that he was unfairly
prejudiced by the admission of the other crimes evidence. [State v.]
Dauzart, 02-1187 at 9, [(La.App. 5 Cir. 10/27/09)] 844 So.2d [159] at
165-66. Absent an abuse of discretion, a trial court’s ruling on the
admissibility of this evidence will not be disturbed. State v. Merritt,
04-204, p. 11 (La.App. 5 Cir. 6/29/04), 877 So.2d 1079, 1085, writ
denied, 04-1849 (La.11/24/04), 888 So.2d 228.

State v. Davis, 12-512, p. 20 (La.App. 5 Cir. 4/24/13), 115 So.3d 68, 80, writ

denied, 13-1205 (La. 11/22/13), 126 So.3d 479.

We agree with the trial court that there is a real and genuine contested issue

of intent at trial. Defendant has been accused of killing his first wife in 1962. He

contended that his wife’s death was accidental. The State argued that the evidence

of the two women’s disappearances was sufficiently probative to rebut Defendant’s

claim that he did not intentionally kill Mary Vail but that her death was accidental.

15

We acknowledge that there is very little in Louisiana jurisprudence that

discusses “doctrine of chance,” other than Monroe, 364 So.2d 570, which offers

little guidance. In State v. Galliano, 02-2849 (La. 1/10/03), 839 So.2d 932, the

defendant was convicted of cruelty to a juvenile for inflicting an injury similar to

shaken baby syndrome on a two year old. He appealed the conviction, alleging that

it was error for the state to introduce evidence that the child’s leg was broken a few

months prior to the current incident when the defendant took him out of a child car

seat. He argued that incident was accidental and served only to prejudice the jury

against him. The supreme court held:

The district court properly invoked the exception in LSA-C.E.
404(B)(1) and allowed the introduction of the other acts evidence to
negate defendant’s claims of accident, mistake and lack of intent. The
evidence of the prior incident in which the victim sustained a broken
femur when defendant pulled him forcefully from his car seat has
probative value to show the improbability that the defendant acted
without the requisite intent, or accidentally, when he, according to his
own admission, shook the victim in the instant situation “to get his
attention.” See, State v. Monroe, 364 So.2d 570 (La.1980) (under
doctrine of chances, likelihood that defendant was required to kill
twice in self defense on successive nights at the same location was so
remote that evidence of the other killing was admissible to negate self
defense and lack of intent). Under the particular circumstances of this
case, although evidence of the prior incident is clearly prejudicial, we
cannot say that it is so inflammatory as to create an unacceptable risk
of luring jurors “into declaring guilt on a ground different from proof
specific to the offense charged.” Old Chief v. United States, 519 U.S.
172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997). The court of
appeal erred in holding to the contrary.

Id. at 934.

While not binding on this court, a Michigan Supreme Court case, People v.

Mardlin, 487 Mich. 609, 790 N.W.2d 607 (2010), discussed the “doctrine of

chances” at length. In Mardlin, the defendant was convicted of arson of a dwelling

house and burning insured property. On appeal, he argued that his home

16

accidentally burned down; therefore, it was error to allow evidence admitted at trial

of four previous home or vehicle fires, which occurred over the past twelve years

and also involved insurance claims. The appellate court had concluded that the

evidence was irrelevant, inadmissible, and improperly prejudicial. However, the

Michigan Supreme Court examined the evidence in light of the “doctrine of

chances.” It explained:

The doctrine of chances—also known as the “doctrine of
objective improbability”—is a “‘theory of logical relevance [that]
does not depend on a character inference.’” Under this theory, as the
number of incidents of an out-of-the-ordinary event increases in
relation to a particular defendant, the objective probability increases
that the charged act and/or the prior occurrences were not the result of
natural causes. The doctrine is commonly discussed in cases
addressing MRE 404(B) because the doctrine describes a logical link,
based on objective probabilities, between evidence of past acts or
incidents that may be connected with a defendant and proper,
noncharacter inferences that may be drawn from these events on the
basis of their frequency. If a type of event linked to the defendant
occurs with unusual frequency, evidence of the occurrences may be
probative, for example, of his criminal intent or of the absence of
mistake or accident because it is objectively improbably that such
events occur so often in relation to the same person due to mere
happenstance.

Id. at 6132-13 (footnote omitted).

In Mardlin, the Michigan Supreme Court held that the appellate court “erred

by incorrectly assuming that evidence of the past fires could only be admitted if the

prosecutor proved that defendant intentionally set them or that they shared other

special qualities or additional significant indices of similarity.” Id. at 614. The

court noted that the appellate court’s blanket conclusion that a key factor of the

doctrine of chance was that the past incidents must be similar to the charged

offense was incorrect. The Michigan Supreme Court went on to state:

To the contrary, application of the doctrine of chances “varies
with the issue for which it is offered.” As with all arguments
involving prior acts or events, the “method of analysis to be employed

17

depends on the purpose of the offer and its logical relevance.” The
acts or events need not bear striking similarity to the offense charged
if the theory of relevance does not itself center on similarity.

Id. at 614-15(footnote omitted).

In the current case, the events the State desires to introduce need not “bear

striking similarity” to the charge of second degree murder of Defendant’s wife. Id.

at 614-15. In this case, the relevance does not center on similarity of the act but on

the results. Defendant’s first wife is dead. Two other significant women in

Defendant’s life, Ms. Hensley and Ms. Carver-Vail, have not being seen in forty-

one and thirty years, respectively. In all three incidences, Defendant allegedly was

the last person to ever see them alive. Defendant’s explanation that the latter two

women desired to be rid of their domineering mothers to show that he had not

motive to kill them, does not pertain to the admissibility analysis in this case.

Defendant further argues that the trial court erred when it by passed the

“doctrine of chances” requirement that the bad acts evidence take place within a

limited period of time by taking “the extraordinary step of presuming the murders

took years of planning, scheming, and nurturing to execute when there is no

evidence the women were even murdered is painfully simple.” While the trial

court’s handling of the matter of remoteness between the death of Defendant’s first

wife and the subsequent disappearance of the two women was less than ideal, the

length of time between the acts and the crime Defendant is being charged with

should affect the weight of the evidence but not its admissibility. In State v.

Crawford, 95-1352, p. 19 (La.App. 3 Cir. 4/3/96), 672 So.2d 197, 208-09, writ

denied, 96-1126 (La. 10/4/96), 679 So.2d 1379, quoting State v. Jackson, 625

So.2d 146, 151 (La.1993), the third circuit explained:

18

We find that the time between the other crimes evidence and
the offense charged is but one factor to be considered when balancing
probative value, prejudicial effect and relevancy. Length of time
between the offenses should not exclude otherwise admissible
evidence unless the lapse strips the testimony of probative value.
While there must be some connexity between the crime charged and
the other acts or crimes, the mere passage of time will not necessarily
defeat admissibility. However, such a determination must be made on
a case by case basis taking into account the peculiar facts of every
individual case with much discretion given to the trial judge. State v.
Cupit, [189 La. 509, 179 So. 837 (1938)] supra; State v. Driggers,
supra [554 So.2d 720 (La.App. 2 Cir. 1989) ].

As for Defendant’s assertion that he is being prejudiced by the presumption

that Ms. Hensley and Ms. Carver-Vail are dead, in brief, the State cites

La.Civ.Code art. 30 which provides that “[w]hen a person has disappeared under

circumstances such that his death seems certain, his death is considered to have

been established even though his body has not been found” and La.Civ.Code art.

54, which establishes that a person who has been absent for five years may be

presumed and declared dead upon petition to the court by an interested party. The

State argues:

In Jones v. State, through the Department of Health & Hospitals,
95-1130 (La.App. 3 Cir. 3/27/96), 671 So.2d 1074, the Third Circuit
Court of Appeal applied the presumption of death in LSA-C.C. Art.
30 in a case much like this one, where “the circumstantial evidence
presented negates any reasonable hypothesis” that Sharon Hensley
and Annette [Carter] Vail are alive. Jones, 671 So.2d at 1078.
Moreover, while admittedly rare, this is not the first Louisiana “no
body” case. In State v. Dorsey, 34,977 (La.App. 2 Cir. 9/26/01), 796
So.2d 135, a defendant was convicted of second degree murder even
where no body was found. Here, the State does not seek the [sic]
convict the defendant of murder based on such evidence, but instead
wants to admit other crimes evidence regarding two women married
or dating this defendant who logically can only be considered dead.

We find that the lack of direct evidence that Defendant disposed of Ms.

Hensley and Ms. Carver-Vail does not preclude or weigh against admission. To the

contrary, Defendant’s apparent lack of direct culpability weighs in favor of

19

admission because it minimizes impermissible negative inferences about his

character. In this case, as noted above in Mardlin, 790 N.W. 2d at 619, “the

evidence does not create the traditional intermediate inference about character or

criminal propensities associated with established, past criminal acts or

convictions.” The burden is on the State to prove by clear and convincing evidence

that there were other criminal acts performed by Defendant in this case that bear

upon determination of the crime charged. While the evidence is prejudicial, this

court concludes that there is little danger of unfair prejudice, confusion of the issue,

or misleading of the jury.

Accordingly, we find that the trial court did not abuse its vast discretion

when it ruled that the State would be permitted to introduce evidence of the

disappearances of Ms. Hensley and Ms. Carver-Vail.

DISPOSITION:

We find no error in the trial court’s March 19, 2014, ruling permitting the

State to introduce evidence of the disappearances of Annette Carver-Vail and

Sharon Hensley.

WRIT DENIED.

20