182 So. 3d 1238
La. Ct. App.2015Background
- Defendant Johnny Fair was indicted for second-degree murder in the January 10, 2012 shooting death of Tiffany Frey; jury convicted and he received life without parole.
- At the homicide scene, two .40-caliber casings and one projectile were recovered; ballistics showed the .40 casings came from the same semi-automatic weapon.
- Witnesses Sean and Jeffrey Brooks, who knew Fair and had drug relationships with the victim and Fair, identified Fair in separate statements as the shooter.
- Police recovered a partially empty box of Winchester .40-caliber ammunition from Fair’s apartment. Ballistics matched three .40-caliber casings found at an October 8, 2011 New Orleans shooting (where Fair was shot) to the casings at the Frey homicide.
- Fair testified that his .40 gun had been stolen earlier the day of the murder and that the Brooks brothers used his gun to kill Frey; he also denied involvement in the October 2011 shooting.
- Fair appealed, raising (1) improper admission of other-acts evidence (the October 2011 shooting), (2) trial court error in denying a suppression motion alleging perjured testimony by Captain Thornton, and (3) prosecutorial misconduct for allowing the alleged perjury; the court affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Fair) | Held |
|---|---|---|---|
| Admissibility of October 8, 2011 shooting evidence under La. C.E. art. 404(B) | Evidence of matching .40-caliber casings is admissible to show identity, motive, intent, opportunity, and absence of mistake; probative value > prejudice | Evidence was an inadmissible "other crimes" or overly prejudicial; forced Fair to testify and opened prior convictions | Court affirmed admission: State proved other act by preponderance; matching casings at location where Fair said he stood were highly probative of identity and not substantially outweighed by prejudice |
| Burden to prove defendant committed other acts | State must prove by preponderance; testimony and physical evidence satisfy burden | Argued State failed to meet burden | Court found State met preponderance standard (Fair admitted he was at porch and casings matched) |
| Whether admission forced defendant to testify and opened prior convictions | Admission was proper; limiting instructions were given | Fair argued he was compelled to testify to rebut and thus exposed to prior convictions (negligent homicide, firearm) | Court held no evidence Fair would not have testified otherwise; assignment lacks merit |
| Alleged perjury by Captain Thornton and prosecutorial failure to correct | No perjury; prosecution not required to correct nonexistent inconsistency | Thornton perjured himself about which apartment door was dead-bolted/unlocked; testimony undermines suppression ruling | Court found no inconsistency in context (Thornton used shorthand “61” for Fair’s apartment); no perjury or prosecutorial error; assignments lack merit |
Key Cases Cited
- Huddleston v. United States, 485 U.S. 681 (preponderance standard for admission of other-acts evidence)
- State v. Prieur, 277 So.2d 126 (Prieur notice requirements for other-acts evidence)
- State v. Jackson, 625 So.2d 146 (other-acts evidence must have independent relevance)
- State v. Kennedy, 803 So.2d 916 (Prieur/other-acts admissibility principles)
- State v. Miller, 718 So.2d 960 (limiting instructions and jury charges on other-acts evidence)