FOR IMMEDIATE NEWS RELEASE                                                                  NEWS RELEASE #45
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 22nd day of October, 2019, are as follows:


PER CURIAM:
       2017-K-00658         STATE OF LOUISIANA VS. KENNETH JONES (Parish of Orleans)
                            From the district court's lone statement that it was not satisfied with defendant's
                            proffered race-neutral reasons, we find it inappropriate to infer that the district court
                            did not blur the line between Batson's second and third steps, that the district court
                            was persuaded after it properly weighed the State's proof against the defendant's
                            proffered race-neutral reasons, and that the court did not impermissibly shift the
                            burden onto the defense to rebut the State's prima facie case. See State v. Harris,
                            15-0995 (La. 10/1916), 217 So.3d 255; State v. Nelson, 10-1724 (La. 3/13/12), 85
                            So.3d 21; State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272. Accordingly, we
                            reverse the court of appeal, vacate the convictions and sentences, and remand the
                            case to the district court for a new trial. We also encourage the district court to
                            consider carefully on retrial: (1) whether the State can present sufficient competent
                            evidence at trial that defendant engaged in the alleged other crimes; (2) whether the
                            other crimes evidence, considered on an individual basis, has an independent
                            relevance outside of its implications for defendant's character; (3) whether the
                            admission of the State's other crimes evidence comports with the rules governing
                            hearsay; and (4) whether the probative value of the State's other crimes evidence
                            "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 accordance with La. C.E. art. 403.
                            REVERSED AND REMANDED.
                            Chief Judge Susan M. Chehardy of the Court of Appeal, Fifth Circuit, appointed as
                            Justice pro tempore, sitting for the vacancy in the First District.
                            Retired Judge Michael Kirby appointed Justice ad hoc, sitting for Clark, J.
                            Johnson, C.J., additionally concurs and assigns reasons.
                            Weimer, J., concurs in part and dissents in part and assigns reasons.
                            Crichton, J., dissents and assigns reasons.
                            Chehardy, J., dissents for the reasons assigned by Crichton, J.
10/22/19

                       SUPREME COURT OF LOUISIANA



                                   No. 2017-K-00658

                               STATE OF LOUISIANA

                                          versus

                                  KENNETH JONES


           ON WRIT OF CERTIORARI TO THE FOURTH CIRCUIT
               COURT OF APPEAL, PARISH OF ORLEANS


PER CURIAM:*

       On November 22, 2011, four men, including Merlin Smothers and Jeremiah

Harris, were engaged in illegal activities in Harris’s vehicle when a blue Monte

Carlo pulled up behind them. A person stood up through the Monte Carlo’s

sunroof and began shooting at them with an assault rifle. Harris was shot but

survived. Smothers escaped injury. Police chased the Monte Carlo and ultimately

apprehended the driver of the vehicle, Eugene Brashears, who was the only person

in the vehicle by the time police were able to catch it. Smothers and Harris

described the shooter as a black male wearing a red hat but they were otherwise

unable to identify him. Two red hats were found in the vehicle but no firearm

remained. DNA recovered from one red hat matched Brashears and he tested

positive for gunshot residue. No one was charged with this shooting at the time and

Brashears was deceased by the time of defendant’s trial.

       On December 2, 2011, police conducted aerial surveillance of a white

pickup truck. During that surveillance police saw two people, one of whom



*Chief Judge Susan M. Chehardy of the Court of Appeal, Fifth Circuit, assigned as Justice pro
tempore, sitting for the vacancy in the First District. Retired Judge Michael Kirby appointed
Justice ad hoc, sitting for Justice Marcus R. Clark.
matched defendant’s description, 1 exit the truck and appear to discard an object.

Police recovered an assault rifle in the vicinity.

       Two years later when Smothers and Harris were arrested on federal charges

related to heroin distribution they identified defendant as the shooter in the incident

on November 22, 2011. Defendant was indicted by grand jury with two counts of

attempted second degree murder and one count of possession of a firearm by a

convicted felon. The trial commenced in 2015.

       During jury selection, defendant objected to the State’s use of four

peremptory challenges to remove African-American jurors in light of Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and State v. Collier,

553 So.2d 815 (La. 1989). The following colloquy then occurred:

       The Court: What is your response?

       The State: My first response would be that there [are] two African-
       Americans that we are going to keep on the Jury. The second response
       would be that of all the cuts used by Defense counsel, they are all on
       white Jurors. The third response, as to Ms. Hills, Judge, is that, first
       she is an educator and is—I had some concern when I asked her about
       her prior Jury service. First she didn’t say anything, and then she
       couldn’t give us any details about the type of crime, when it took
       place or anything like that.

       The Court: I will note for the record that of the five challenges the
       State has exercised, one of them is a white male. So, per se, it is not
       satisfied and I accept the State’s response as to the challenge, in
       addition to that.

Thereafter, the State objected to the defendant’s use of ten peremptory challenges

to remove white jurors in light of Georgia v. McCollum, 505 U.S. 42, 112 S.Ct.

1
   Defendant called Jonathan Alexander to testify that the aerial surveillance video showed
Alexander and Ryan Miner rather than defendant. Subsequently, the State in the prosecution of
Alexander and Miner filed a motion seeking to introduce this testimony from the present trial as
proof that codefendants Alexander and Miner drove through a particular neighborhood while
armed with an assault rifle at a particular time. The admissibility of that evidence was addressed
in State v. Miner, 17-1586 (La. 01/04/18), 232 So.3d 551. Whether the State engaged in
prosecutorial misconduct by advancing inconsistent theories in different prosecutions, however,
is beyond the scope of the present record.

                                                2
2348, 120 L.Ed.2d 33 (1992) and State v. Knox, 609 So.2d 803 (La. 1992). The

court stated that “I’m noting that the State has satisfied that first level, they are all

white” but also noted that most of the stricken jurors had already left the

courthouse.2 Therefore, the court asked the defense for reasons for exercising just

three of the strikes of jurors Fiegel, Luke, and Laughlin. Regarding juror Fiegel,

the defense stated the following:

       I’m striking Mr. Fiegel, Your Honor, because Mr. Fiegel didn’t talk
       much and I think Mr. Washington didn’t really question him that
       much. The only thing I know about him is that he is a disc jockey at a
       radio station. I don’t know what kind of radio station that is. Through
       our error, we didn’t ask him any—we didn’t get a feel for—one way
       or another, I struck him because he wasn’t very talkative.

The defense then explained that it struck juror Luke because he appeared over-

eager to serve on the jury and looked at the defendant “in a negative way,” and that

it struck juror Laughlin for expressing pro-prosecution views regarding witnesses

who testify pursuant to plea agreements with the State. The court then ruled: “You

have satisfied your race neutral basis for Jurors Luke and Laughlin. I am not

satisfied with your response as to Mr. Fiegel. Batson challenge is granted as to

Juror No. 28, Mr. Fiegel. He is part of this Jury.”

       The jury was selected and defendant proceeded to trial. Harris testified at

trial, pursuant to a federal plea agreement, and he identified defendant with

absolute certainty as the shooter. Smothers denied he had ever identified defendant.

His testimony was contradicted by that of two FBI agents who testified he


2
  We note that an objection pursuant to Batson does not become moot when the stricken jurors
leave the courthouse, and the absence of a juror does not obviate the need for a ruling on the
objection. Generally, a Batson violation “is remediable in any one of a number of ways” only
one of which is reseating a stricken juror. McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir.
1996) (finding that “[c]hallenges found to be abusive may be disallowed; if this is not feasible
because the challenged jurors have already been released, additional jurors might be called to the
venire and additional challenges granted to the defendant; or in cases where those remedies are
insufficient, the jury selection might begin anew with a fresh panel”).

                                                3
identified defendant but his statements to them were never recorded or transcribed.

Multiple DNA profiles were obtained from the outside of the assault rifle

recovered on December 2, 2011, including DNA matching the defendant.

Defendant’s DNA was not consistent with the mixed DNA profiles obtained from

the assault rifle’s magazine. Ballistics testing showed that the assault rifle

recovered on December 2, 2011, was used in the shooting on November 22, 2011.

      The jury found defendant guilty as charged of two counts of attempted

second degree murder and one count of being a felon in possession of a firearm.

Defendant admitted his status as a second-felony offender (with a prior conviction

in Texas for possession of cocaine), and the district court sentenced him to two

concurrent terms of 100 years imprisonment at hard labor without benefit of

parole, probation, or suspension of sentence, and one concurrent term of 20 years

imprisonment at hard labor.

      The court of appeal affirmed after examining and rejecting several

assignments of error. State v. Jones, 15-0956 (La. App. 4 Cir. 3/22/17), 214 So.3d

124. We granted defendant’s application primarily to examine the district court’s

handling of the Batson and reverse-Batson objections. Pertinent to those issues, the

court of appeal interpreted the district court’s statement that “per se, it is not

satisfied” as a determination that the defense had failed to make a prima facie

showing of racial discrimination in the State’s use of its peremptory challenges.

Jones, 15-0956, pp. 12–13, 214 So.3d at 136–137. While recognizing ambiguity in

the district court’s initial request for a response from the State, the court of appeal

found it did not constitute a demand for race-neutral reasons such that the burden

ever shifted to the State to articulate those reasons. Jones, 15-0956, p. 13, 214

So.3d at 136 (“And, we are not convinced that the trial judge’s request for a

                                          4
response from the prosecutor, while perhaps not keeping within the confines of a

Batson analysis, constituted a demand for race-neutral reasons such that the burden

would shift to the state.”).

      In contrast, the court of appeal found the district court’s statement that “the

State has satisfied that first level” as indicating the State made a prima facie

showing in conjunction with its reverse-Batson objection to defendant’s use of

peremptory challenges. Jones, 15-0956, p. 13, 214 So.3d at 137. With regard to

Batson’s step two, the court of appeal also found the reasons provided by the

defense for striking juror Fiegel were facially race-neutral because discriminatory

intent was not inherent in them. Id. The court of appeal then inferred from the

district court’s statement that it was not satisfied, despite the district court’s failure

to adhere to the “precise mechanics” of Batson, that the district court correctly held

the State to its burden of showing purposeful discrimination:

      The trial judge’s succinct statement that she was “not satisfied” with
      defense counsel’s reasons may appear to have impermissibly shifted
      the burden onto the defense to rebut the prosecutor’s prima facie case.
      We are convinced, however, that the trial judge “assess[ed] the
      plausibility of [the defense’s] reason in light of all [the] evidence,”
      and, in essence, determined that the prosecution had carried its
      burden. Miller–El, 545 U.S. at 251–52, 125 S.Ct. 2317. Although the
      trial judge may not have adhered to the precise mechanics of a Batson
      analysis, we find that her ultimate ruling, which seated Juror Fiegel,
      did not render the jury unqualified or biased. We thus cannot say,
      based on the record before us, that the circumstances presented here
      warrant automatic reversal of Mr. Jones’s convictions. See Rivera,
      556 U.S. at 160, 129 S.Ct. 1446 (An error is “structural,” therefore
      requiring automatic reversal “only when the error necessarily renders
      a criminal trial fundamentally unfair or an unreliable vehicle for
      determining guilt or innocence.”) (internal quotation marks and
      brackets omitted).

Jones, 15-0956, p. 14, 214 So.3d at 137 (footnote omitted). That inference from

scant evidence is where we find the court of appeal erred.

      The United States Supreme Court in Batson and the cases that followed has

                                            5
provided a three-step process to guide courts in evaluating a claim of racial

discrimination in jury selection:

      (1) An opponent of the strike must make a prima facie showing that a
          peremptory challenge has been exercised on the basis of race;

      (2) if the requisite showing has been made, the proponent of the strike
          “must demonstrate that ‘permissible racially neutral selection
          criteria and procedures have produced the monochromatic
          result;’” and

      (3) in light of the parties’ submissions, the trial court must determine
          if the “[the opponent of the strike] has established purposeful
          discrimination.”

State v. Green, 94-0887, p. 23 (La. 5/22/95), 655 So.2d 272, 287 (quoting

Hernandez v. New York, 500 U.S. 352, 358–59, 111 S.Ct. 1859, 114 L.Ed.2d 395

(1991)). The burden of persuasion never shifts from the opponent of the strike.

State v. Nelson, 10-1724, 10-1726, p. 15 (La. 3/13/12), 85 So.3d 21, 32 (citing

Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)).

However, after the opponent of the strike establishes a prima facie case of racial

discrimination, the burden of production shifts to the proponent of the strike to

articulate race-neutral reasons for its use of peremptory challenges. See, e.g., State

v. Bender, 13-1794, pp. 3–4 (La. 9/3/14), 152 So.3d 126, 129; Nelson, 10-1724,

10–1726, p. 10, 85 So.3d at 29; State v. Draughn, 05-1825, p. 29 (La. 1/17/07),

950 So.2d 583, 605; Green, 94-0887, p. 25, 655 So.2d at 288.

      Not until steps one and two of the Batson test have been satisfied is the trial

court’s duty under step three triggered. See Johnson v. California, 545 U.S. 162,

125 S.Ct. 2410, 162 L.Ed.2d 129 (2005), which provides:

      The first two Batson steps govern the production of evidence that
      allows the trial court to determine the persuasiveness of the
      defendant’s constitutional claim. “It is not until the third step that the
      persuasiveness of the justification becomes relevant—the step in
      which the trial court determines whether the opponent of the strike has

                                          6
      carried his burden of proving purposeful discrimination.”

Id., 545 U.S. at 171, 125 S.Ct. at 2417–18 (quoting Purkett, 514 U.S. at 768, 115

S.Ct. at 1771). Thus, the responsibility in the three-step Batson test falls first on the

opponent of the strike in step one, then on the proponent of the strike in step two,

and lastly, on the trial court in step three. The Johnson court elaborated on the

critical importance of this tripartite framework:

      The Batson framework is designed to produce actual answers to
      suspicions and inferences that discrimination may have infected the
      jury selection process. The inherent uncertainty present in inquiries of
      discriminatory purpose counsels against engaging in needless and
      imperfect speculation when a direct answer can be obtained by asking
      a simple question. . . . The three-step process thus simultaneously
      serves the public purposes Batson is designed to vindicate and
      encourages prompt rulings on objections to peremptory challenges
      without substantial disruption of the jury selection process.

Johnson, 545 U.S. at 172, 125 S.Ct. at 2419 (citations and quotations omitted).

This three-part process affords “the trial judge . . . the benefit of all relevant

circumstances, including the [proponent of the strike’s] explanation, before

deciding whether it was more likely than not that the challenge was improperly

motivated.” Id., 545 U.S. at 170, 125 S.Ct. at 2417.

      The court of appeal here recognized that the district court’s adherence to the

three-step Batson framework was lacking in several respects. But adherence to the

“precise mechanics” of a Batson analysis, as the court of appeal described it, is not

only important so that the Batson framework can produce actual answers and ferret

out any discrimination that infects the jury selection process. It is also important to

adhere to that framework and articulate clear rulings at each step of the Batson

procedure so that a defendant can exercise his constitutional right to appellate




                                           7
review provided in La. Const. Art. I, § 19.3

         In step three of the Batson analysis, the court must determine whether the

objecting party has carried his burden of proving purposeful discrimination.

Miller–El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2331–32, 162 L.Ed.2d 196

(2005); Batson, 476 U.S. at 98, 106 S.Ct. at 1724. This final step involves

evaluating “the persuasiveness of the justification” proffered by the striking party,

but “the ultimate burden of persuasion regarding racial motivation rests with, and

never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct. at

1771.

         In Purkett, the Supreme Court warned against “combining Batson’s second

and third steps into one, requiring that the justification tendered at the second step

be not just neutral but also at least minimally persuasive.” Purkett, 514 U.S. at 768,

115 S.Ct. at 1771. Instead, the Court noted “[i]t is not until the third step that the

persuasiveness of the justification becomes relevant—the step in which the trial

court determines whether the opponent of the strike has carried his burden of

proving purposeful discrimination.” Id. The Court explained that blurring the

Batson stages can impermissibly shift the burden onto the proponent of the strike:

         But to say that a trial judge may choose to disbelieve a silly or
         superstitious reason at step three is quite different from saying that a
         trial judge must terminate the inquiry at step two when the race-
3
    As the United States Supreme Court recently noted,

         [W]ho enforces Batson? As the Batson Court itself recognized, the job of
         enforcing Batson rests first and foremost with trial judges. See id., at 97, 99, n. 22,
         106 S.Ct. 1712. America’s trial judges operate at the front lines of American
         justice. In criminal trials, trial judges possess the primary responsibility to enforce
         Batson and prevent racial discrimination from seeping into the jury selection
         process.

Flowers v. Mississippi, 588 U.S. —, —, 139 S.Ct. 2228, 2243, 204 L.Ed.2d 638 (2019). See also
State v. Hoff, 19-0475 (La. 6/26/19), 275 So.3d 871 (Crichton, J., concurring, on the importance
of “articulating well-considered rulings such that a record is perfected for possible appellate
review”) (and concurrences cited therein).

                                                   8
      neutral reason is silly or superstitious. The latter violates the principle
      that the ultimate burden of persuasion regarding racial motivation
      rests with, and never shifts from, the opponent of the strike.

Id. Thus, the proper inquiry in the final stage of the Batson analysis is not whether

the proponent of the strike has disproved the existence of purposeful discrimination

suggested by the opponent’s prima facie case. Rather, the question is whether the

opponent’s proof, when weighed against the proponent’s proffered race-neutral

reasons, is strong enough to persuade the district court that such discriminatory

intent is present. Any other approach “violates the principle that the ultimate

burden of persuasion regarding racial motivation rests with, and never shifts from,

the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct. at 1771.

      From the district court’s lone statement that it was not satisfied with

defendant’s proffered race-neutral reasons, we find it inappropriate to infer that the

district court did not blur the line between Batson’s second and third steps, that the

district court was persuaded after it properly weighed the State’s proof against the

defendant’s proffered race-neutral reasons, and that the court did not impermissibly

shift the burden onto the defense to rebut the State’s prima facie case. See State v.

Harris, 15-0995 (La. 10/1916), 217 So.3d 255; State v. Nelson, 10-1724 (La.

3/13/12), 85 So.3d 21; State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272.

Accordingly, we reverse the court of appeal, vacate the convictions and sentences,

and remand the case to the district court for a new trial.

      In the course of reviewing the record, it also became clear that the State

relied extensively in this trial on evidence of other crimes alleged to have been

committed by defendant. In fact, the majority of the witnesses to testify and the

bulk of the evidence presented related not to the charged offenses but to four other

shootings for which defendant was never arrested or charged.

                                           9
       Generally, courts may not admit evidence of other crimes to show the

defendant a person of bad character who has acted in conformity with his bad

character. La. C.E. art. 404(B)(1); State v. Prieur, 277 So.2d 126 (La. 1973).

However, the state may introduce evidence of other crimes if the State establishes

an independent and relevant reason. La. C.E. art. 404(B)(1). This evidence must

have substantial relevance independent from showing defendant’s general criminal

character in that it tends to prove a material fact genuinely at issue. State v. Lee,

05-2098, p. 44 (La. 1/16/08), 976 So.2d 109, 139; State v. Moore, 440 So.2d 134,

137 (La. 1983). The probative value of the other crimes evidence must outweigh

the danger of unfair prejudice. La. C.E. art. 403.

       As noted above, four other shootings were the subject of extensive attention

in this trial. On May 24, 2011, there was a shooting at Sam Bonart Park. Shell

casings found there matched the same style of assault rifle as that used in the

November 22, 2011 shooting.4 An FBI agent testified that an informant later told

him that defendant was the shooter at Sam Bonart Park. The informant denied this

at defendant’s trial. On May 27, 2011, there was a shooting in the Lower Ninth

Ward. The victim was not cooperative and would not identify the shooter. Shell

casings from an assault rifle were found there. Later, when an informant was

arrested for distributing heroin, the informant identified defendant as the shooter in

the Lower Ninth Ward incident. That identification was established at this trial

through the testimony of an FBI agent after it was denied by the informant. On

September 5, 2011, Merlin Smothers was shot several times. Shell casings from an

4
  Pretrial, the State took the position that this shooting was unreported, uninvestigated, and
undocumented. By the time of trial, however, the State called NOPD officers to testify they
responded to a report of the shooting and collected shell casings. Whether this amounted to a
discovery violation or is indicative of prosecutorial misconduct is beyond the scope of the
present opinion.

                                             10
assault rifle were found at the scene. He said the shooter drove a blue Monte Carlo

but did not provide any other information about the shooter. Later, after he was

arrested on federal charges, he identified the shooter as defendant. Again, that

identification was established at this trial by the testimony of FBI agents after

Smothers denied it. Finally, on November 29, 2011, several persons fired shots

from a white Dodge truck into the Mercedes Place bar. Ballistics evidence linked

this shooting to the assault rifle recovered on December 2, 2011. An FBI agent

testified Smothers identified defendant as one of the shooters in the Mercedes

Place incident after Smothers denied this.

       Notably, defendant was never developed as a suspect in any of these

shootings until years later when informants, who faced federal charges, implicated

him. The informants’ statements were unrecorded, untranscribed, and otherwise

undocumented. The informants all denied ever making these statements and

therefore the statements were proved by the testimony of the FBI agents to whom

they were made, which leads to an evidentiary conundrum. At first blush, that

testimony might appear to constitute hearsay, given that it was relayed in court by

persons other than the declarants and was offered to prove the truth of the matter

asserted, i.e., that defendant was the shooter or among the shooters in each

incident.5


5
  We recognize, of course, that it is possible that some of these statements could qualify as non-
hearsay under La. C.E. art. 801(D)(1)(a) and (c), but only if they are used in the context of a
relevant line of inquiry. While the State filed notice of intent to introduce other crimes evidence
with respect to these prior shootings, arguing that they would be relevant to defendant’s “intent,
motive, preparation, plan, identity, and opportunity,” we caution, as we did in State v. Taylor,
16-1124 (La. 12/1/16), 217 So.3d 283, against the reliance on boilerplate language in this area.
Instead, we urge the district court on remand to carefully consider on an individual basis the
relevancy of each piece of other crimes evidence the State may seek to introduce. See Taylor, 16-
1124, p. 12, 217 So.3d at 292 (“Accordingly, the state cannot simply rely on a boilerplate
recitation of the grounds for admissibility stated in La. C.E. art. 404(B). It is the duty of the
district court in its gatekeeping function to determine the independent relevancy of this

                                               11
         The State, however, argued that because the informants testified and

disavowed their statements, the agents could be called to testify about those prior

inconsistent statements to impeach their credibility in accordance with La. C.E. art.

613.6 Given the limited scope of the informants’ testimony, however, impeaching

their credibility would appear simply to permit the inference that they made the

prior undocumented statements they denied, which then would permit the

statements to be used not just to impeach the informants’ credibility but as

evidence that the defendant committed the shootings. Even the best instructed jury

could have been confused by this circular and bootstrapping approach to evidence.

However, we need not resolve this evidentiary conundrum today. We simply urge

the district court to proceed with extreme caution on retrial if the State again tries

to rely so heavily on undocumented statements that have been disavowed by the

purported informants.

         Finally, the extensive focus on other crimes evidence may have at least

tempted the jury to infer defendant is a person of bad character who has acted in

conformity with his bad character. Whether the probative value of the other crimes

evidence, particularly given the manner in which the State sought to prove it,

outweighed the danger of unfair prejudice,7 we need not decide today. But we urge


evidence.”).
6
    Code of Evidence article 613 provides:

         Except as the interests of justice otherwise require, extrinsic evidence of bias,
         interest, or corruption, prior inconsistent statements, conviction of crime, or
         defects of capacity is admissible after the proponent has first fairly directed the
         witness' attention to the statement, act, or matter alleged, and the witness has been
         given the opportunity to admit the fact and has failed distinctly to do so.
7
  The term “unfair prejudice” with regard to a criminal defendant speaks to the capacity of the
evidence to lure the factfinder into declaring guilty on a ground different from proof specific to
the offense charged. See, e.g., State v. Henderson, 12-2422, p. 2 (La. 1/4/13), 107 So.3d 566,
568, citing Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574

                                                 12
the district court to be mindful of that balancing test on remand.

          In sum, we encourage the district court to consider carefully on retrial: (1)

whether the State can present sufficient competent evidence at trial that defendant

engaged in the alleged other crimes; (2) whether the other crimes evidence,

considered on an individual basis, has an independent relevance outside of its

implications for defendant’s character; (3) whether the admission of the State’s

other crimes evidence comports with the rules governing hearsay; and (4) whether

the probative value of the State’s other crimes evidence “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

accordance with La. C.E. art. 403.

REVERSED AND REMANDED




(1997).

                                            13
10/22/19


                    SUPREME COURT OF LOUISIANA

                              No. 2017-K-00658

                           STATE OF LOUISIANA

                                      VS.

                             KENNETH JONES

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
            FOURTH CIRCUIT, PARISH OF ORLEANS


JOHNSON, C.J., additionally concurs and assigns reasons.

      I agree with the majority that a Batson violation occurred in this case

and defendant’s conviction must be reversed. I write separately to expound

upon the majority’s discussion on the issue of other crimes evidence. In my

view, the district court erred in admitting extensive other crimes evidence

and defendant’s conviction could have also been reversed on that issue.

      In this case, voluminous, highly prejudicial hearsay testimony

implicating defendant in gang activity and multiple shootings for which he

was never charged was improperly allowed to be presented to the jury.

Generally, courts may not admit evidence of other crimes to show the

defendant a person of bad character who has acted in conformity with his bad

character. La. C.E. art. 404(B)(1); State v. Prieur, 277 So. 2d 126 (La. 1973).

However, the state may introduce evidence of other crimes if the state

establishes an independent and relevant reason. La. C.E. art. 404(B)(1). This

evidence must have substantial relevance independent from showing

defendant’s general criminal character in that it tends to prove a material

fact genuinely at issue. State v. Lee, 05-2098 (La. 1/16/08), 976 So. 2d 109,

139; State v. Moore, 440 So. 2d 134, 137 (La. 1983).




                                       1
      In State v. Taylor, 16-1124 (La. 12/1/16), 217 So. 3d 283, this court

clarified the procedure to introduce other crimes evidence per La. C.E. art.

404(B)(1) and Prieur. When the state seeks to introduce other crimes

evidence, it is required to provide the defendant with written notice prior to

trial of the intent to produce such evidence, and the trial court must conduct a

pretrial hearing to determine the admissibility of the evidence. At the

hearing, “[t]he state need only make a showing of sufficient evidence to

support a finding that the defendant committed the other crime, wrong, or

act.” Taylor, 217 So. 3d at 291. A district court’s ruling on the admissibility of

other crimes evidence will not be overturned absent an abuse of discretion. Id.

at 296.

      Here, the state was allowed to present testimony about four prior

offenses for which defendant was never arrested, charged or convicted: (1) an

illegal discharge of a weapon that occurred on May 23, 2011, at Sam Bonart

Park; (2) the shooting of Corey Celestine on May 27, 2011; (3) the shooting of

Merlin Smothers on September 5, 2011; and (4) and illegal discharge of a

weapon on November 29, 2011, at Mercedes Bar in New Orleans. However,

the record clearly demonstrates the state failed to present sufficient evidence

that defendant actually committed the four prior offenses. At the Prieur

hearing, the state’s sole witness was FBI Agent Christopher Dimenna. In

affirming the trial court’s Prieur ruling, the court of appeal reasoned:

      At the pre-trial hearing, FBI Agent Christopher DiMenna
      testified that in the course of the Ninth Ward Initiative
      investigation, Mr. Jones had been developed as a suspect in the
      four other incidents, as well as the instant incident. Agent
      DiMenna testified in detail about the multiple witnesses who
      identified Mr. Jones as the shooter in each incident. He further
      testified about how police recovered the discarded AK-47 and that
      forensic and ballistic testing linked the gun to the defendant and
      two of the crime scenes, respectively.

      We first find that, under Taylor, the prosecution carried its
      burden with a “showing of sufficient evidence to support a
      finding” that Mr. Jones committed the other acts. Agent DiMenna


                                        2
        testified that he and his team conducted investigations into each
        of these shootings and that either he or his colleagues obtained
        statements from witnesses who identified Mr. Jones as the
        shooter. Although the defendant complains that Agent DiMenna’s
        testimony was hearsay, it is well-established that hearsay is
        admissible in a pre-trial hearing on the admissibility of other
        crimes.

State v. Jones, 15-0956 (La. App. 4 Cir. 3/22/17), 214 So. 3d 124, 141, writ

granted, 17-0658 (La. 3/25/19), - So.3d -. (internal citations removed).

However, I find the court of appeal’s description of the evidence to be

erroneous.

        A review of the hearing transcript reflects Agent DiMenna explicitly

testified that defendant was not developed as a suspect in any of the four

shootings, and that neither he nor his colleagues investigated the shootings or

defendant’s alleged role in them, because too much time had elapsed. Instead,

Agent DiMenna testified that years after the incidents in question, his

unspecified colleagues in the FBI arrested unidentified individuals on federal

charges, and these unidentified individuals implicated defendant during

unrecorded and untranscribed interviews. Rather than testifying about

“multiple witnesses who identified defendant as the shooter in each incident,”

Agent DiMenna actually testified that a single unidentified informant

implicated defendant in the shootings on May 27, 2011 and September 5,

2011.

        Further, Agent DiMenna testified that no witnesses ever reported that

they saw defendant commit the alleged shooting on May 24, 2011, at Sam

Bonart Park or the November 29, 2011, shooting at Mercedes Bar. In fact,

Agent DiMenna testified that to his knowledge the Sam Bonart Park shooting

was never even reported, which the prosecutor also asserted to the district

court and defense at the outset of the hearing. Although an informant

allegedly told an FBI Agent that he had hired defendant to seek revenge on

an enemy at the park that day, neither the informant nor any other witnesses


                                       3
reported having observed defendant (or anyone else) doing so, and no police

reports documented that a shooting had taken place.

      Regarding the shooting which took place on November 29, 2011, at

Mercedes Bar, Agent DiMenna testified that no witnesses had implicated

defendant. However, multiple witnesses identified a man named Wayne

Handy as one of two shooters in the back of a white pickup truck, and Handy

and two other men had been convicted of the offense. Agent DiMenna

confirmed on cross-examination that Jeremiah Harris, a victim in the charged

offense, verified that they had convicted the correct people for that shooting.

Yet, Agent DiMenna’s testimony bootstrapped a speculative chain of evidence

to connect defendant to the shooting. Ballistics linked a rifle used in that

shooting with the one used in the charged offense. On December 2, 2011,

NOPD had found the rifle discarded by a person in a white truck, and

defendant’s DNA was consistent with one of the many DNA profiles collected

from the outside of the rifle, but his DNA was not consistent with the mixed

profiles collected from the rifle’s magazine. At best, the evidence presented at

the hearing was sufficient to support a finding that defendant was one of

several people who had handled the rifle before it was discarded.

      It is clear to me the evidence presented at the Prieur hearing was not

sufficient to support a finding that defendant committed these crimes, and

admitting evidence of these incidents was an abuse of the district court’s

discretion.

      Additionally, after the Prieur hearing but before trial, the state

submitted notice that the informants in the May 27, 2011, and September 5,

2011, incidents had denied ever implicating defendant in those shootings, and

denied knowledge of his involvement. Consequently, because their alleged

statements were neither recorded, written, transcribed, nor otherwise verified

by the witnesses, the state no longer had any admissible evidence of


                                       4
defendant’s involvement in the incidents. Defendant moved to reopen the

Prieur hearing and for reconsideration of the court’s earlier ruling admitting

the other crimes evidence. The defense argued that the court should exclude

the other crimes evidence in light of the state’s disclosure that the witnesses

denied making the unrecorded statements described by Agent DiMenna in his

testimony at the Prieur hearing. The defense argued that, consequently, law

enforcement testimony suggesting defendant’s involvement would be hearsay

and a violation of defendant’s confrontation rights. The prosecutor responded

that he intended to call the alleged witnesses and then impeach them with

testimony from the FBI agents when the witnesses denied their statements.

The district court ruled that it would “allow the impeachment testimony to

take place throughout the course of the trial.”

      This ruling was clearly erroneous because the extensive law

enforcement testimony was not introduced to impeach the general credibility

of the witnesses, but rather to prove the truth of the matter asserted—that

defendant had committed the alleged other crimes. This hearsay was the only

evidence introduced to prove that defendant had committed the alleged other

crimes. Moreover, although the state and courts below refer to the witnesses

as having “recanted their statements,” this wording presupposes they

actually made statements that they later disavowed; here, the witnesses are

not disavowing their own statements, they are disavowing the FBI’s

self-affirming hearsay testimony.

      Finally, even if this evidence was admissible, there is no question the

probative value of the other crimes evidence was greatly outweighed by its

prejudicial impact. La. C.E. art. 403 provides: “Although relevant, evidence

may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, or waste of time.” Unfair prejudice speaks


                                       5
to the capacity of some concededly relevant evidence to lure the factfinder

into declaring guilt on a ground different from proof specific to the offense

charged. State v. Rose, 06-0402 (La. 2/22/07), 949 So. 2d 1236, 1244 (internal

citations removed). During defendant’s trial, the state called twenty

witnesses, with only four having direct knowledge of the offense charged. The

state first called six witnesses who testified about other crimes evidence,

followed by the four witnesses with alleged knowledge of the offense charged.

The state then called an additional ten witnesses to testify about other crimes

evidence. In my view, the barrage of other crimes evidence in comparison to

the minimal evidence relative to the crime charged, was clearly intended to

overwhelm the jury and lure them into finding defendant guilty because he is

a bad person, rather than based on direct evidence of guilt.

         For the above reasons, I find the district court erred in admitting the

other crimes evidence, and defendant’s conviction is properly reversed on this

issue.




                                         6
10/22/19

                      SUPREME COURT OF LOUISIANA



                                  No. 2017-K-0658

                             STATE OF LOUISIANA

                                       versus

                                KENNETH JONES


              ON WRIT OF CERTIORARI TO THE FOURTH CIRCUIT
                  COURT OF APPEAL, PARISH OF ORLEANS

WEIMER, J., concurring in part, dissenting in part.

      I respectfully dissent from the majority’s analysis, under Batson v. Kentucky,

476 U.S. 79 (1986), and its progeny, of the defense’s use of a peremptory challenge

to strike a prospective juror during voir dire. The majority correctly sets forth the

test for impermissible discrimination in voir dire, but does not accord sufficient

deference to the trial court’s finding of discriminatory intent. See Snyder v.

Louisiana, 552 U.S. 472, 477 (2008).

      It is certainly accurate that the test for impermissible discrimination in voir

dire has three analytical steps. In summary, a trial court first ascertains whether the

objector has described factual support for a finding of discrimination; second, the

court asks the opposing party for any race-neutral justification for striking the

juror(s); and third, the court evaluates both parties’ positions and determines whether

the objector has proven discrimination. See State v. Green, 94-0887, p. 23 (La.

5/22/95), 655 So.2d 272, 287 (quoting Hernandez v. New York, 500 U.S. 352, 358-

59 (1991)).

      In recognition of the vast discretion afforded to trial courts in carrying out

their duties, the jurisprudence does not require a trial court to intone the equivalent

of an incantation to signal that the trial court has undertaken each step. As the
Supreme Court explained in Miller-El v. Cockrell, 537 U.S. 322, 347 (2003),1 when

ruling on a Batson claim, “[w]e adhere to the proposition that a state court need not

make detailed findings addressing all the evidence before it.” In a similar vein, in

Purkett v. Elem, 514 U.S. 765 (1995) (on which the majority relies for other

propositions), the Supreme Court explained that when a trial court considers a

Batson claim, the circumstances may dictate at the third step that the trial court refer

back to the second step. That is, a trial court’s third step ruling may consist of

rejecting—as the trial court did here—a party’s stated justification for striking a

juror: “It is not until the third step that the persuasiveness of the justification

becomes relevant …. At that stage, implausible or fantastic justifications may (and

probably will) be found to be pretexts for purposeful discrimination.” Purkett, 514

U.S. at 768.

       Here, when defense counsel was asked for a justification for striking Juror No.

28, Mr. Fiegel, defense counsel stated: “I struck him because he wasn’t very

talkative.” As contemplated by Purkett, the trial court here rejected the defense’s

explanation for striking Mr. Fiegel and empaneled Mr. Fiegel on the petit jury,

stating that the trial court was “not satisfied with [the defense’s] response as to Mr.

Fiegel.”

       The trial court’s ruling was not made in a vacuum, devoid of supporting facts

and credibility concerns. The ruling came after defense counsel struck a total of ten

white jurors, and defense counsel earlier failed to persuade the trial court that the

prosecution was attempting to skew the jury’s composition along racial lines.

       The Supreme Court has indicated that “the critical question” for a trial court

when evaluating the overall persuasiveness of an objection to a strike “at step three…


1
   For clarity, it should be noted that an opinion briefly mentioned by the majority, Miller-El v.
Dretke, 545 U.S. 231 (2005), is the later review of the same criminal conviction at issue in Miller-
El v. Cockrell, 537 U.S. 322 (2003). In the earlier opinion, cited herein, the Supreme Court
articulated and explained many of the legal principles the Court would later apply in Miller-El v.
Dretke, 545 U.S. 231.
                                                 2
is the persuasiveness of [counsel’s] justification for his peremptory strike.” Miller-

El, 537 U.S. at 338-39. Counsel’s “[c]redibility can be measured by, among other

factors, [counsel’s] demeanor; by how reasonable, or how improbable, the

explanations are; and by whether the proffered rationale has some basis in accepted

trial strategy.” A reviewing court owes the trial court’s credibility determination

“[d]eference … because a reviewing court, which analyzes only the transcripts from

voir dire, is not as well positioned as the trial court is to make credibility

determinations.” Id.

      The trial court’s determination here to reject counsel’s explanation that Mr.

Fiegel “wasn’t very talkative” was a reasonable determination.             There is no

indication that the state failed to carry its burden of persuading the trial court that

Mr. Fiegel should be placed on the jury. Indeed, given the record of defense

counsel’s use of strikes, and in light of the acknowledgment in Miller-El that a trial

court may evaluate many subtleties regarding an attorney’s use of strikes that a

transcribed record simply cannot capture, I find the trial court’s decision was not

clearly erroneous and should therefore remain undisturbed. See Snyder, 552 U.S.

at 477 (“On appeal, a trial court’s ruling on the issue of discriminatory intent must

be sustained unless it is clearly erroneous.”).

      The Batson test is concerned with the mindset of a party when striking a juror.

However, the majority’s ruling underserves this concern, because it essentially

insists the trial court use “magic words” in its analysis or adhere to other formalities

not required by Batson or its progeny. No doubt, the majority’s ruling finds some

justification in the well-intentioned desire for clarity in future cases. However, I find

the majority’s approach over-emphasizes the trial judge’s word choices, to the

detriment of the required inquiry into whether a racial motivation underlies counsel’s

choices regarding who should sit in the jury box.

      Thus, I respectfully dissent from the majority’s voir dire ruling. I concur with

                                           3
the majority’s statements regarding the other crimes evidence and concur in the

ultimate ruling that reverses the conviction and remands this matter for further

proceedings.




                                       4
10/22/19

                      SUPREME COURT OF LOUISIANA

                                 No. 2017-K-00658

                             STATE OF LOUISIANA

                                         VS.

                                KENNETH JONES


        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FOURTH CIRCUIT, PARISH OF ORLEANS


CRICHTON, J., dissents and assigns reasons:

      I strongly dissent from the majority’s decision on the Batson issue for the

reasons set forth by Justice Weimer.

      I write separately to note that any discussion of the other crimes evidence by

the majority, albeit in dicta, is inappropriate, because the Court’s decision on the

Batson issue mandates reversal. However, since the majority delves into the other

crimes evidence, I further note that, while the other crimes evidence in this case was

extensive, I do not find its introduction amounts to reversible error for several

reasons. First, this gang warfare trial was replete with uncooperative witnesses

changing their statements and demonstrating hostility to the prosecution, thereby

necessitating introduction of prior inconsistent statements in accordance with C.E.

art. 613. Evidence of gang affiliation has been held admissible as it is relevant to

show intent, motive, and identity. See State v. Howard, 98-0064 (La. 4/23/99), 751

So. 2d 783, 812. To that end, given the specific intent element of attempted second

degree murder, the necessity of proving intent, motive, preparation, plan, identity

and opportunity under C.E. 404(B)(1) dictated admission of these crimes.

      Second, erroneous introduction of other crimes evidence (and even allowing

extensive and perhaps conflicting other crimes evidence) is subject to a harmless
error analysis.    See State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94,

rehearing denied, 1/12/96. The jury was able to weigh and balance the other crimes

evidence in light of victim Harris’ positive identification of defendant as the shooter

(stating he was “one hundred percent sure” the shooter as defendant), the DNA and

ballistics evidence, and the testimony of the FBI agents as to the prior statement of

victim Smothers.

       Finally, the record reflects that the accomplished trial judge properly

instructed the jury as to the limited purpose of other crimes evidence, instructing that

the evidence is to be “considered only for a limited purpose” as to “whether it tends

to establish proof of a motive, opportunity, intent, preparation, a system or plan,

knowledge, identify, absence of mistake or accident” and that the defendant was on

trial “only for the offenses charged.” In my view, it is error for the majority to leap

to a conclusion—albeit in dicta—that the jury was unable to understand the

instruction or was “confused by this circular and bootstrapping approach to

evidence.” There is simply no basis to conclude inability to apply the limiting

instruction. As a result, I do not find the admission of other crimes evidence amounts

to reversible error in this case.

       Accordingly, I would find no Batson / reverse-Batson structural error and

would deem the admonition by the majority unwarranted.
10/22/19



                    SUPREME COURT OF LOUISIANA
                              NO. 2017-K-00658


                          STATE OF LOUISIANA
                                  VERSUS
                             KENNETH JONES


       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
            FOURTH CIRCUIT, PARISH OF ORLEANS



CHEHARDY, J., dissents for the reasons assigned by Justice Crichton.
