State v. Pollard

• Decision Date: 09 February 2000
• Docket Number: No. 98-KA-1376.,98-KA-1376.
• Citation: 760 So.2d 362
• Parties: STATE of Louisiana v. Kenneth POLLARD.
• Court: Court of Appeal of Louisiana — District of US

760 So.2d 362

STATE of Louisiana v. Kenneth POLLARD.

No. 98-KA-1376.

Court of Appeal of Louisiana, Fourth Circuit.

February 9, 2000.

Dissenting Opinion February 11, 2000.

Harry F. Connick, District Attorney, Charles E. F. Heuer, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff.

Milton P. Masinter, Metairie, LA, Counsel for Defendant.

(Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, Sr., and Judge ROBERT A. KATZ).

BAGNERIS, Judge.

STATEMENT OF THE CASE

On January 10, 1996, Pollard, the defendant, was charged by bill of information with forcible rape, a violation of LSA-R.S. 14:42.1. Pollard pled not guilty at the arraignment. The State filed notice of its intent to use other crimes evidence, pursuant to LSA-C.E. art. 404 B.

On September 4, 1996, and on October 18, 1996, the trial court conducted a Prieur hearing. The trial court denied the State's motion to use other crimes evidence. The State sought writs to this court. State v. Pollard, 96-2327, (La.App. 4 Cir. 10/31/96). This court determined that the alleged rapes of April Jones and Jacqueline Jackson fit the exception for the use of other crimes evidence and granted the writ, thereby reversing the trial court and allowing the evidence of other crimes into evidence, specifically the testimony from the alleged victim April Jones. Pollard sought writs to the Supreme Court. The Supreme Court denied the defendant's writ. State v. Pollard, 96-2742 (La.1/10/97), 685 So.2d 145. The trial in this matter was set for April 7, 1997; however, on that day, the State nolle prosequi the case, reserving the right to re-institute prosecution of Pollard.

On October 2, 1997, the State filed a new bill of information against Pollard, charging him with forcible rape, a violation of LSA-R.S. 14:42.1. Pollard pled not guilty at his arraignment. The defense for Pollard adopted all previous motions filed and heard in Case # 382-977.

On November 6, 1997, trial was held. During this trial, the State called April Jones to testify as to an alleged rape that occurred in 1987. The jury found Pollard guilty as charged. Pollard then filed a Motion for New Trial that the trial court denied. Pollard was sentenced to twenty years at hard labor without benefit of parole, probation, or suspension of sentence. Pollard appealed his conviction and sentence.

On appeal, Pollard contends that the trial court erred in admitting "other crimes evidence" into evidence. We agree.

STATEMENT OF FACTS

Pollard and the victim, M.N., met at the New Orleans International Airport, where Pollard worked as a skycap for Southwest Airlines. M.N. was a college student at Xavier University. She was returning from Thanksgiving vacation at her parents' home in Illinois. Pollard approached M.N. while she was waiting for her baggage. Pollard and M.N. engaged in conversation. Pollard invited M.N. to a party he was giving, and he gave M.N. his phone number.

Pollard and M.N. had no other communication until M.N. was again at the airport and leaving New Orleans to go to her parents' home for the Christmas holiday. Pollard and M.N. talked a while and exchanged phone numbers. M.N. spoke with Pollard twice during the Christmas holiday, and she agreed to see him after she returned to New Orleans.

On January 10, 1996, Pollard picked M.N. up at Xavier. They went to Houston's in Metairie for lunch. Pollard and M.N. then went for a drive around New Orleans. As they were driving, Pollard claimed that he heard noise coming from his car, and he needed to have a mechanic check it out. Pollard drove to a house that he claimed was a mechanic's house, and he went inside. M.N. remained inside the car. Pollard returned to the car and informed M.N. that the mechanic would be back in fifteen minutes.

Pollard and M.N. went inside Pollard's house to wait for the mechanic to return. There was no one inside the house. Pollard and M.N. went into the den. M.N. sat in a recliner, and Pollard played a video game.

Pollard asked M.N. if she wanted to see a movie. He explained that the VCR was in a bedroom. Pollard and M.N. went into a bedroom and sat on his bed in order to watch the movie.

Pollard began to massage M.N. and her bra became unbuttoned. M.N. testified that she was not intimidated and felt in control. M.N. testified that she felt like she was losing control when Pollard pushed her back forcefully onto the bed. M.N. testified that Pollard unfastened her pants, pulled her panties to the side, and inserted his penis inside of her.

M.N. testified that she cried and pushed Pollard to get him off of her. M.N. testified that Pollard became "really emotional". M.N. testified that Pollard stopped when she became emotional. M.N. testified that she collected her things and went to the bathroom. M.N. further testified that Pollard was apologetic and that he drove her home.

LAW AND DISCUSSION

Pollard contends that the trial court erred when it allowed evidence of another crime to be used against him during trial, in violation of Rules 403 and 404 B of the Louisiana Code of Evidence. In support of Pollard's argument, he cites State v. Prieur, 277 So.2d 126 (La.1973), which provides that evidence of extraneous offenses is inadmissible because of the prejudicial effect upon the accused's constitutional presumption of innocence. Further, the introduction of evidence of other acts of misconduct involves substantial risk of prejudice to a defendant.

Prior to trial, the State filed a Motion to Use Other Crimes Evidence. Pollard opposed the uses of this "other crimes" evidence. The trial court conducted a Prieur hearing, and subsequently denied the State's Motion. The State sought writs to this Court. This Court granted the State's writ application. State v. Pollard, 96-2327 (La.App. 4 Cir. _____). The Court opined as follows:

Both of the prior acts fit the criteria set by State v. Prieur, 277 So.2d 126 (1973). Respondent argues that the prior acts cannot be used to show consent. This court has ruled that intent and consent are intertwined. State v. Moore, 534 So.2d 1275 (La.App. 4th Cir.1988), writ granted, 539 So.2d 44 (La.1989), writ denied, 560 So.2d 21 (La.1990).

Respondents argue that this case should be overruled. We are not inclined to do so. The distinctive details of the prior acts make them probative and persuasive to this court.

In the instant case, at the Prieur hearing, the State moved to introduce evidence of two prior alleged incidents for the purpose of showing that Pollard had a "system, pattern, or plan" to befriend women and then rape them.

Evidence of crimes related to the offenses with which a defendant is charged is inadmissible except under special circumstances. Aside from related offenses admissible as part of the res gestae, and convictions admissible for impeachment purposes, there are three exceptions provided by statute: acts relevant to show intent, knowledge and system. LSA-R.S. 15:445 and 15:446.

LSA-R.S. 15:445 provides:

In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction.

LSA-R.S. 15:446 provides:

When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct, or declarations of the accused as tend to establish such knowledge or intent, and where the offense is one of a system, evidence is admissible to prove the continuing of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offenses charged.

The Supreme Court in State v. Moore, 440 So.2d 134 (La.1983) opined that:

Evidence of other crimes is inadmissible when the only purpose of the evidence is to show the defendant's propensity to violate the criminal laws since the relevancy of such evidence for the purpose of showing that the defendant was the perpetrator is so marginal that its probative value is heavily outweighed by its prejudicial effect.

The underlying purpose of this rule excluding such evidence is to protect the defendant from undue prejudice resulting from the use of evidence, which has only marginal relevance to, disputed issues.¹

In State v. Hatcher, 372 So.2d 1024 (La.1979), the Supreme Court sets forth guidelines for determining the admissibility of evidence of other crimes:

(1) There must be clear and convincing evidence that the defendant committed the other crimes (See State v. Prieur, 277 So.2d 126 (La.1973); State v. Gaines, 340 So.2d 1294, 1298 (La.1976).)

(2) The other crimes evidence must be substantially relevant for some other purpose than to show the defendant's general criminal character (See State v. Jackson, 352 So.2d 195 (La.1977); State v. Lee, 340 So.2d 1339, 1345 (La.1976) concurring opinion);

(3) The other crimes evidence must tend to prove a material fact genuinely at issue (See State v. Frederick, 340 So.2d 1353 (La.1976);

(4) The method of commission of both the charged and the uncharged crime must be so distinctively similar that one may logically infer that the same person committed both crimes (See State v. Ledet, 345 So.2d 474 (La.1977);

(5) The probative value of the other crimes must outweigh its prejudicial effect (See State v. Sutfield, 354 So.2d 1334 (La.1978)).

Great deference should be accorded to an appellate court's pre-trial decision on admissibility unless it is apparent in light of the subsequent trial record that the decision was patently erroneous and produced an unjust result. State v. Carey, 609 So.2d 897, 898 (La.App. 4th Cir.1992), citing State v. Humphrey, 412 So.2d 507 (La.1981) (on rehearing) and State v. Moran, 584 So.2d 318 (La.App. 4th Cir.), writ den. 585 So.2d 576 (La.1991). The appellate court's prior decision of admissibility on a pre-trial writ does not absolutely preclude a different decision on...