11 Defendant, Devin Waterhouse, was charged by a grand jury indictment with the second degree murder of Kiran Harris. The State filed a motion in limine seeking to admit evidence of Defendant’s affiliation with a gang known as the “Prieur and Columbus Boys” (PCB) and evidence of prior acts of violence committed by the deceased victim and/or other PCB members upon the intended target, Bryan De-val, citing La. C.E. art. 404(B). Following a hearing held on September 18, 2014, the trial court issued a written ruling on September 23, 2014, denying the admission of evidence. On an application for writs filed by the State, we now grant certiorari to review the trial court’s ruling.
The facts of the case are gleaned from the police report that the State gave to the defense at the arraignment. On February 12, 2013, the victim was shot while in the 1800 block of Laharpe Street. The victim was taken to a hospital, where he died soon thereafter. Investigation revealed that the victim and Defendant were standing in that block when they saw a vehicle driven by Deval drive by them. The victim and Deval had an ongoing dispute, and the victim had shot at Deval in [2the past. The victim opened fire on Deval’s vehicle. The State alleges that Defendant then also drew a gun and shot at Deval’s vehicle, but at the time that he fired, the victim moved in front of him and was hit by his bullet. Crime lab personnel recovered several .40 caliber spent casings and one 9 mm. spent casing. Recordings of jailhouse calls made by Jamal Clay, another gang associate of the victim and Defendant, include one made by “Devin”, alleged to be Defendant, during which Devin admitted that he accidentally hit the victim while firing at De-val’s vehicle. When Defendant was arrested on an unrelated charge several months later, he was in possession of a 9 mm. gun, but ballistics testing showed it was not the murder weapon.
The State seeks to introduce evidence, in the form of photographs depicting the victim, Clay, and Defendant showing gang signs and holding guns, to establish these three individuals are members of the PCB gang. The State argues that this evidence is relevant to show motive and intent for the shooting as well as to establish Defendant’s identity for two reasons: to show he was one of the shooters and to establish he is the same “Devin” who confessed to accidentally shooting the victim during the recorded jail house call.
At the hearing on the motion, the State contended that it was not required to meet its Prieur burden at a pretrial hearing to
The State seeks to introduce evidence of the prior incidents pursuant to La. C.E. art. 404B(1), which provides:
Except as provided in Article 412 [not applicable here], 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 the conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Generally, evidence of other crimes is not admissible to show that a defendant has acted in conformity with his bad character. Such evidence is only admissible if the State shows an independent and relevant basis for it, namely those grounds set forth in La. C.E. art. 404B(1). State v. Garcia, 2009-1578 (La.11/16/12),
We find that the trial court abused its discretion in finding that the State’s Art. 404(B) notice found within its motion in limine was untimely because it was not filed pursuant to the rules of that section of the court. The trial judge indicated in his ruling that it is the rule of his section of the court (Section L) that all filings relevant to other crimes evidence be filed within 20 days of a defendant’s arraignment. The Defendant was arraigned on September 17, 2013 and the State provided
Here, the State complied with the “reasonable notice in advance of trial” requirement because its Art. 404(B) notice to the Defendant was filed two months prior to the last scheduled trial date. Although this Court recognizes that a trial Rcourt may adopt local rules to enable the court to conduct its judicial business, the local rule of the section of court is in direct conflict with the “reasonable notice in advance of trial” requirement dictated by Prieur and La. C.E. art. 404(B). Moreover, the record before this Court does not contain a copy of the local rule for its review. Based upon the record before this Court and the conflict between the local rule and the requirements of La. C.E. 404(B), we find that the State’s Art. 404(B) notice was timely filed. The trial court erred in finding that State’s Art. 404(B) notice was untimely and that its untimeliness was reason to exclude the evidence sought to be admitted by the State.
Next we consider whether the matter should be remanded to allow the State the opportunity to meet its burden under Prieur and La. C.E. art. 1104, by showing that evidence of gang affiliation is admissible and that the Defendant was a member of the gang. The State’s theory of the case is that the victim and Defendant were members of the same gang; that the victim and Deval were enemies; that the victim began shooting at Deval’s vehicle; that Defendant also attempted to shoot at Deval’s vehicle because he was helping the victim, his fellow gang member; and that Defendant accidentally shot the victim when the victim moved into his line of fire. The State argues that because Defendant intended to shoot at Deval’s vehicle, this intent can be transferred to his accidental shooting of the victim under the transferred intent theory. The State asserts that it needs to show Defendant’s gang affiliation in order to prove Defendant’s intent and his identity as one of the shooters in that incident. The trial court refused to allow this evidence because there was no showing that Deval was the member of a rival gang or that the shooting was gang-related.
| ^Appellate courts have held that evidence of gang affiliation was admissible to show the motive for the defendant’s actions that caused injury or death to the victims, who were members of a rival gang. See State v. Sumlin, 44,806 (La.App. 2 Cir. 10/28/09),
In this case, the evidence of Defendant’s gang affiliation may be relevant to establish Defendant’s identity as well as his motive and intent for shooting at Deval’s
The evidence of the victim (Defendant’s alleged gang associate) shooting Deval (the intended target of the underlying murder) in an earlier incident, is not Prieur evidence because it pertains to prior bad acts by the victim, not by 17Pefendant. However, it may be relevant pursuant to La. C.E. art. 401
Accordingly, we grant the writ, vacate the trial court’s ruling, and remand the matter for a hearing to allow the State the opportunity to meets its burden under Pri-eur and La. C.E. art. 1104.
WRIT GRANTED; VACATED AND REMANDED; STAY LIFTED.
Notes
. Cert. den. Garcia v. Louisiana, - U.S. -,
. Writ den. 2013-2994 (La.5/30/14),
. La. C.E. art. 401 provides:
"Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
. In addition, should the trial judge find the proposed evidence relevant and otherwise admissible under Article 404 B(l), the evidence must still be subjected to an evaluation of whether it is unfairly prejudicial so as to exclude it pursuant to La.C.Cr.P. art. 403.