FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #011


FROM: CLERK OF SUPREME COURT OF LOUISIANA


The Opinions handed down on the 3rd day of April, 2020 are as follows:

PER CURIAM:


 2019-K-00490             STATE OF LOUISIANA VS. CLIFFORD WILLIAMS (Parish of Orleans
                          Criminal)

                          Before trial, the defense was prohibited from introducing evidence of the
                          victim’s juvenile arrest for illegal carrying of a weapon. At trial, the defense
                          unsuccessfully attempted to introduce other evidence of the victim’s
                          character. Specifically, the defense sought to introduce a photograph that
                          depicted the victim holding a gun, evidence that the victim had threatened
                          defendant on social media, and testimony of a witness that the victim had
                          previously threatened defendant. In rejecting defendant’s claim on appeal
                          that the district court erred in excluding this evidence, the court of appeal
                          found that defendant failed to introduce appreciable evidence of a hostile
                          demonstration or overt act on the part of the victim at the time of the offense
                          charged, as required by La.C.E. art. 404(A)(2)(a). See State v. Williams, 18-
                          0445, pp. 19-20 (La. App. 4 Cir. 2/27/19), 265 So.3d 902, 917. Defendant
                          contends that the court of appeal erred because testimony of an eyewitness
                          (which is summarized below) constituted appreciable evidence of an overt
                          act by the victim, and the district court overstepped its bounds in evaluating
                          the credibility of this witness to find the evidence was not appreciable
                          because the witness was not credible. We agree. However, for the reasons
                          below, we find the evidence was otherwise inadmissible, and therefore we
                          affirm the conviction and sentence.

                          AFFIRMED.

                          Retired Judge James H. Boddie, Jr., appointed Justice ad hoc, sitting for
                          Justice Marcus R. Clark.
04/03/20

                         SUPREME COURT OF LOUISIANA



                                     No. 2019-K-00490

                                 STATE OF LOUISIANA

                                             versus

                                 CLIFFORD WILLIAMS


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


PER CURIAM:*

       On March 25, 2013, the 18-year-old defendant shot and killed 15-year-old

Ralphmon Green in the 2100 block of Allen Street in New Orleans. The victim was

struck by bullets four times and defendant continued to fire at him after he fell to

the ground. Eight shell casings found at the crime scene matched a semiautomatic

handgun that was later found at defendant’s residence. Several eyewitnesses to the

shooting testified that the victim was unarmed.

       Defendant, who did not testify at trial, initially denied any involvement in

the shooting when questioned by police. He eventually claimed that he shot the

victim after they argued because the victim was about to pull a handgun from his

waistband beneath his shirt. Defendant denied that he knew the victim or had ever

seen him before the shooting.

       Before trial, the defense was prohibited from introducing evidence of the

victim’s juvenile arrest for illegal carrying of a weapon. At trial, the defense

unsuccessfully attempted to introduce other evidence of the victim’s character.

Specifically, the defense sought to introduce a photograph that depicted the victim

holding a gun, evidence that the victim had threatened defendant on social media,
* Retired Judge James Boddie Jr., appointed Justice ad hoc, sitting for Justice Marcus R. Clark.
and testimony of a witness that the victim had previously threatened defendant. In

rejecting defendant’s claim on appeal that the district court erred in excluding this

evidence, the court of appeal found that defendant failed to introduce appreciable

evidence of a hostile demonstration or overt act on the part of the victim at the time

of the offense charged, as required by La.C.E. art. 404(A)(2)(a). See State v.

Williams, 18-0445, pp. 19–20 (La. App. 4 Cir. 2/27/19), 265 So.3d 902, 917.

Defendant contends that the court of appeal erred because testimony of an

eyewitness (which is summarized below) constituted appreciable evidence of an

overt act by the victim, and the district court overstepped its bounds in evaluating

the credibility of this witness to find the evidence was not appreciable because the

witness was not credible. We agree. However, for the reasons below, we find the

evidence was otherwise inadmissible, and therefore we affirm the conviction and

sentence.

      In pertinent part, La.C.E. art. 404 provides:

      A. Character evidence generally. Evidence of a person’s character
      or a trait of his character, such as a moral quality, is not admissible in
      a civil or criminal proceeding for the purpose of proving he acted in
      conformity therewith on a particular occasion, except:

      ...

      (2) Character of victim. (a) Except as provided in Article 412,
      evidence of a pertinent trait of character, such as a moral quality, of
      the victim of the crime offered by an accused, or by the prosecution to
      rebut the character evidence; provide that in the absence of a hostile
      demonstration or an overt act on the part of the victim at the time of
      the offense charged, evidence of his dangerous character is not
      admissible . . . .

      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. . . .

      (2) In the absence of a hostile demonstration or overt act on the part of

                                          2
      the victim at the time of the offense charged, evidence of the victim’s
      prior threats against the accused or the accused’s state of mind as to
      the victim’s dangerous character is not admissible . . . .

Prior to 1952, La.R.S. 15:482 (a precursor to La.C.E. art. 404) provided (emphasis

added): “In the absence of proof of hostile demonstration or of overt act on the part

of the person slain or injured, evidence of his dangerous character or of his threats

against accused is not admissible.” In 1952, the legislature amended that provision

to substitute the word “evidence” for “proof.” See 1952 La. Acts 239, § 1. This

court later explained the effect of this amendment:

      The legislative intent reflected by the 1952 amendment was to
      overrule legislatively our decisions that permitted the trial judge’s
      discretion to determine incredible the defendant’s evidence of an overt
      act and thus, without jury evaluation of it to withhold from the jury
      evidence tendered by the defendant in support of his position that he
      was acting reasonably in self-defense. This is the explicit purport of
      the amendment, and the prior academic and judicial criticism of the
      former interpretation (unique to Louisiana) re-enforces our view that
      such was the legislative intent.

      ...

      The trial court thus committed error in its ruling, for it ignored the
      effect of the 1952 amendment. By it, when appreciable evidence is in
      the record relevantly tending to establish the overt act, the trial court
      cannot exercise its discretion to infringe on the fact-determination
      function of the jury by disbelieving this defense testimony and thus,
      deny the accused a defense permitted him by law.

State v. Lee, 331 So.2d 455, 459 (La. 1975) (citations omitted). A trial court is not

entitled to “exercise[] a ‘credibility determination’ to refuse the defendant the right

to have the jury determine the merits of [his] plea of self-defense.” State v.

Edwards, 420 So.2d 663, 669 (La. 1982). The most notable limit that this court has

placed on the “appreciable evidence” standard is that “[t]]he self-serving,

contradicted testimony of a the defendant that [the victim] leaned toward a place

the defendant believed he kept a gun is not appreciable evidence tending to


                                          3
establish an overt act.” State v. James, 339 So.2d 741, 746 (La. 1976).

      Here, the evidence of an overt act is almost certainly worthy of disbelief by a

jury, but it still qualifies as appreciable within the meaning of the article as

interpreted by the jurisprudence. The court of appeal described the witness’s

testimony, which formed the sole basis at trial for finding that the victim

committed an overt act:

      The next defense witness was Lamont Anderson (“Mr. Anderson”),
      who admitted to currently being incarcerated. Mr. Anderson recounted
      the events of March 23, 2013, stating that when he came home from
      school that afternoon, he and someone named “Dominique” got into
      an argument. Defendant stepped in to de-escalate the argument.
      Dominique and Defendant then walked away. Dominique then called
      the victim who arrived on the scene and began arguing with
      Defendant because he thought Defendant was the person who had
      argued with Dominique. The victim threatened Defendant and called
      him names. The victim then “went to reach—went to get a gun from
      Dominique.” The victim clutched the gun in the waistband of his
      pants. When the shooting started, Mr. Anderson ran inside. He
      admitted he did not witness the actual shooting. Mr. Anderson also
      conceded that his sister and Defendant were involved in a dating
      relationship.

      On cross-examination, Mr. Anderson stated that he was currently in
      jail with Defendant. Mr. Anderson said he lied when he told the
      district attorney on multiple occasions and told the detective right
      after the shooting that he did not see the victim at all on the day of the
      shooting. He also admitted he never told the detective that he saw the
      victim clutching a gun. Mr. Anderson stated that he was inside for
      some minutes “talking, fussing” with his mother before he heard the
      gunshots. He stated that he never saw any firearms on the day of the
      shooting. Instead, he said he only saw the victim holding the
      waistband of his pants. However, during further questioning, Mr.
      Anderson once again stated he saw “Dominique” give the victim a
      gun. However, Mr. Anderson stated Dominique gave a gun to the
      victim a few minutes before the shooting, when he got home “around
      three o’clock” in the afternoon. The prosecutor established that Mr.
      Anderson was wrong about the time frame as the victim was actually
      shot about three hours later. The prosecutor also impeached Mr.
      Anderson with a statement he made to the jury that he had not spoken
      to Defendant in a month, yet in a phone call from jail, Mr. Anderson
      stated he spoke to Defendant a couple of days before the trial.



                                          4
Williams, 18-0445, pp. 9–10, 265 So.3d at 911–12. Viewing this testimony without

evaluating the witness’s credibility, it describes potentially four overt acts or

hostile demonstrations: 1) arguing with defendant; 2) threatening defendant; 3)

retrieving a gun from a third party; and 4) clutching a gun in the waistband of his

pants.

         However, the inquiry does not end there. Once evidence of an overt act is

established on the part of the victim, evidence of threats and of the victim’s

dangerous character is admissible for two distinct purposes: 1) to show a

defendant’s reasonable apprehension of danger to justify his conduct, and 2) to

help determine who was the aggressor in the conflict. See Edwards, 420 So.2d at

670. The Edwards court further explained:

         As pointed out in Lee, when the evidence is sought to be introduced to
         show the accused’s state of mind, it must be shown that the defendant
         knew of the victim’s prior threats or reputation. Once it is shown that
         the defendant had such knowledge, the scope of evidence allowed to
         indicate the victim’s character is not limited to evidence of general
         reputation, but includes evidence of specific threats or acts of violence
         by the victim against the accused. State v. Boss, 353 So.2d 241 (La.
         1977). Conversely, when evidence of the victim’s dangerous character
         [character evidence] is sought to be introduced by a defendant for the
         second purpose [to prove that the victim was the aggressor], there is
         no requirement that the defendant have knowledge of the victim’s
         prior acts or reputation. However, consistent with the evidentiary rule,
         which is not premised on defendant’s knowledge of the victim’s
         character, there still remains the general rule that character, whether
         good or bad, “depends upon the general reputation that a man has
         among his neighbors.” La.R.S. 15:479. Under this rule, proof of a
         victim’s character tending to prove who is the aggressor in a conflict
         must be established by the general reputation of the victim, not by
         specific acts. Only evidence of general reputation, not evidence of
         specific acts or personal opinion, is admissible to establish who was
         the aggressor in the conflict. State v. Boss, supra.

Edwards, 420 So.2d at 670–71 (brackets in original).

         Pretrial, defendant contended he wished to introduce the victim’s juvenile



                                            5
arrest record “to show that Ralphmon Green acted in conformity therewith and that

he possessed a firearm illegally.” However, under La.C.E. art. 404(B)(1), evidence

of this prior bad act “is not admissible to prove the character of a person in order to

show that he acted in conformity therewith.” Furthermore, there is no indication

that defendant had any knowledge of the victim’s prior arrest for illegal carrying of

a weapon, as might bear upon his state of mind as to the victim’s dangerous

character. See La.C.E. art. 404(B)(2); see also Edwards, 420 So.2d at 670.

      The other three types of evidence the defense sought to admit at trial—the

photograph showing the victim holding a gun, threats against defendant on social

media, and testimony about a prior threat—could constitute prior threats or specific

acts that affected defendant’s state of mind as to the victim’s dangerous character if

defendant had been aware of them. However, defendant denied any knowledge of

or familiarity with the victim before the day of the incident. Defendant’s denial of

any knowledge of the victim at all stands as a formidable obstacle to his attempt to

introduce this evidence to establish his apprehensive state of mind.

      Nonetheless, evidentiary rules must yield to the constitutional right to

present a complete defense in some instances. Fundamental to due process of law

is the right to present a defense, Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct.

1038, 35 L.Ed.2d 297 (1973), and to have it fairly considered by the jury,

Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). “[T]he

Constitution guarantees criminal defendants ‘a meaningful opportunity to present a

complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146,

90 L.Ed.2d 636 (1986), citing California v. Trombetta, 467 U.S. 479, 485, 104

S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). This right is abridged by evidence rules

that infringe upon a weighty interest of the accused and are arbitrary or

                                          6
disproportionate to the purposes they are designed to serve. Holmes v. South

Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 1731, 164 L.Ed.2d 503 (2006)

(quotation marks and citations omitted).

      While the requirement of showing an overt act might be viewed as a high

hurdle where a victim has previously made threats toward a defendant, this court

previously explained the reason for that threshold showing:

      The reason for the overt-act foundation required to let in such
      evidence to prove aggression is explained by Wigmore, Section 63 at
      pp. 489–490: ‘There ought, of course, to be some other appreciable
      evidence of the deceased’s aggression, for the character-evidence can
      hardly be of value unless there is otherwise a fair possibility of doubt
      on the point; moreover, otherwise the deceased’s bad character is
      likely to be put forward to serve improperly as a mere excuse for the
      killing * * *. See also McCormick on Evidence, Sections 193, 295 (2d
      ed., 1972).

Lee, 331 So.2d at 460. Thus, the applicable rule already has a built-in balancing

test concerning the right to present a defense: a defendant has a right to present

evidence of the victim’s prior threats, but not at the expense of placing the victim

on trial for those threats alone.

      Additionally, cases in which evidentiary rules have been found to impinge

upon the constitutional right to present a defense usually turn on two key

considerations: 1) an arbitrary rule, and 2) otherwise reliable or relevant evidence.

In Chambers, 410 U.S. 295–96, 93 S.Ct. at 1046, the excluded evidence was a

statement against a witness’s interest that Mississippi’s “voucher” rule rendered

inadmissible when the defendant attempted to impeach his own witness. In

Washington, 388 U.S. at 16, 87 S.Ct. at 1921–22, the excluded evidence was

another statement against interest by one codefendant who would have testified

favorably on behalf of another codefendant, but was prevented from doing so by a



                                           7
Texas statute prohibiting co-participants in a crime from testifying for one another.

In Crane, 476 U.S. at 685–86, 106 S.Ct. at 2144, the trial court precluded the

defendant from presenting evidence at trial concerning the circumstances under

which the police obtained his confession, which the state conceded was the

linchpin of its case. Finally, in Holmes, 547 U.S. at 323, 126 S.Ct. at 1730–31, the

trial court had excluded evidence concerning third-party guilt—including multiple

statements against interest—for the sole reason that it that conflicted with

purportedly “strong evidence” of the defendant’s guilt, including forensic

evidence.

      Here, the rule is not arbitrary. Even if requiring a defendant to show

appreciable evidence of an overt act or a hostile demonstration is burdensome, this

rule: 1) has a clear purpose, and 2) is not the reason why this evidence should have

been excluded in this trial (despite the court of appeal’s conclusion to the

contrary). Rather, this evidence should have been excluded because of defendant’s

failure to show personal knowledge of the victim’s alleged threatening behavior

(because he disclaimed ever knowing the victim). That rule presents no

arbitrariness and is grounded in the simple fact that a person cannot fear an event

he does not know occurred.

      Accordingly, for the reasons above, we affirm defendant’s conviction and

sentence.

AFFIRMED




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