Case Number: 18-467
Judge: John Conery
Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
Plaintiff's Attorney: Keith Stutes
Emilia Salas Pardo
15th Judicial District Attorney Office, Lafayette Parish
Defendant's Attorney: Michael Gregory
15th JDC Public Defender Office
Description: At the Gwen’s Law hearing, the State made argument to the trial court and
admitted several exhibits; it did not call witnesses. In its argument, the State asserted
that on the morning of April 25, 2018, Defendant hit her mother with a closed fist,
strangled her until she nearly asphyxiated, and then prohibited her from leaving the
residence. Four and a half hours after the incident occurred, the victim managed to
escape and called 911. Police responding to the domestic disturbance call noted
contusions to the victim’s face and bruising all over her body. Photographs of the
victim’s injuries were admitted as State’s Exhibit 1. According to counsel, officers
spoke to a witness who stated she heard the victim calling out for help and saw
Defendant dragging the victim across concrete. Allegedly, the witness approached
Defendant and asked if the victim needed help, but Defendant declined, stating
“[they] were fine.”
During its argument, the State informed the trial court that Defendant pled
guilty in 2015 to a 2011 simple battery of her mother. Evidence of that prior
conviction was admitted as State’s Exhibit 2. The State also advised the trial court
that Defendant had been arrested in 2005 for domestic abuse battery, pled guilty to
a drug offense in 2004, and had previously been convicted of criminal mischief and
a marijuana offense. Counsel stated that warrants for Defendant’s arrest had been
issued because she failed to appear for court after being arrested in 2005, 2010, 2011,
2013, and 2015. Finally, Defendant’s jail packet, including the affidavit supporting
the arrest warrant for the instant charges, was introduced as State’s Exhibit 3.
Defendant called Calvin Paul St. Julien, Jr., to testify on her behalf. St. Julien
testified that he had two children with Defendant and had known her at least twenty
years. He and Defendant were in a romantic relationship and saw each other daily
at the time of the offenses. St. Julien testified that Defendant had a history of drug
addiction, which began approximately fifteen years earlier, and that Defendant
entered a treatment program approximately a year earlier. St. Julien believed
Defendant had begun using drugs at some point in the year after leaving the
treatment program and was using drugs at the end of April 2018. He also assumed
Defendant was using drugs during the time of her prior convictions.
St. Julien testified that Defendant suffered from mental illness and would stop
taking her prescribed medication, which often coincided with resumption of her
illegal drug use. St. Julien testified that Defendant was one hundred percent better
when she was on her medication and that Defendant checked herself into
“Vermilion” and got back on the proper medication for her mental illness after the
April 25, 2018 incident. St. Julien did not know of Defendant fighting or getting
into trouble when she was off drugs.
No other evidence was presented at the hearing. During closing arguments,
defense counsel requested that the trial court set reasonable bond and if Defendant
was unable to make bond, she be released to an in-patient mental health program or
alternatively home incarceration conditioned on her participation in out-patient drug
treatment and regular mental health treatment. The trial court denied the request,
[T]he evidence that you [(defense counsel)] have presented is that this lady has a mental health condition, this lady has a substance abuse disorder . . .
. . . .
[H]ouse arrest with electronic monitoring is insufficient for a person who has this kind of criminal history, and who has a mental health diagnosis and a substance abuse disorder diagnosis.
This lady -- the evidence does indicate that this lady presents a significant danger to her mother, and for that reason I will order that she be detained without bond. I am going to order that there be a protective order issued in this case that would be valid for two years.
ASSIGNMENT OF ERROR NO. 1:
In her first assignment of error, Defendant contends the State failed to produce
sufficient evidence to establish she was presumptively guilty of the charged crimes,
a danger to others, or a flight risk.
We review the denial of bail for abuse of discretion. State v. Jacobs, 12-2737
(La. 12/20/12), 108 So.3d 757. “Under ‘Gwen’s Law,’ a trial court can deny bail if
it finds that there is clear and convincing evidence that the defendant either might
flee or pose an imminent danger to another or the community[.]” State v. Goodie,
17-693, p. 7 (La.App. 3 Cir. 8/23/17), 226 So.3d 1130, 1134, writ denied, 17-1633
(La. 11/28/17), 229 So.3d 936. Louisiana Code of Criminal Procedure Article 313,
commonly referred to as “Gwen’s Law,” permits a trial court to conduct a
contradictory bail hearing before determining the conditions of bail or whether the
defendant should be held without bail pending trial:
In addition to the factors listed in Article 316, in determining whether [a] defendant should be admitted to bail pending trial, or in determining the conditions of bail, the [trial] judge [ ] shall consider the following:
(a) The criminal history of the defendant.
(b) The potential threat or danger the defendant poses to the victim, the family of the victim, or to any member of the public, especially children.
(c) Documented history or records of any of the following: substance abuse by the defendant; threats of suicide by the defendant; the defendant’s use of force or threats of use of force against any victim; strangulation, forced sex, or controlling the activities of any victim by the defendant; or threats to kill. Documented history or records may include but are not limited to sworn affidavits, police reports, and medical records.
La.Code Crim.P. art. 313(3). Gwen’s Law allows the trial court to deny bond
if it finds proof “by clear and convincing evidence either that the defendant might
flee, or that the defendant poses an imminent danger to any other person or the
community.” La.Code Crim.P. art. 313(4).
The La.Code Crim.P. art. 316 factors referenced in Gwen’s Law require the
court to also consider:
(1) The seriousness of the offense charged, including but not limited to whether the offense is a crime of violence or involves a controlled dangerous substance.
(2) The weight of the evidence against the defendant.
(3) The previous criminal record of the defendant.
(4) The ability of the defendant to give bail.
(5) The nature and seriousness of the danger to any other person or the community that would be posed by the defendant’s release.
(6) The defendant’s voluntary participation in a pretrial drug testing program.
(7) The absence or presence in the defendant of any controlled dangerous substance.
(8) Whether the defendant is currently out on a bail undertaking on a previous felony arrest for which he is awaiting institution of prosecution, arraignment, trial, or sentencing.
(9) Any other circumstances affecting the probability of defendant's appearance.
(10) The type or form of bail.
La.Code Crim.P. art. 316.
Defendant argues the trial court failed to find that the proof offered by the
State was evident and that the presumption of her guilt was great, as required by
La.Const. art. 1, § 18 before a trial court can deny bail. Louisiana Constitution
Article 1, § 18 states, in pertinent part:
(A) Excessive bail shall not be required. Before and during a trial, a person shall be bailable by sufficient surety, except when he is charged with a capital offense and the proof is evident and the presumption of guilt is great. . .
(B) However, a person charged with a crime of violence as defined by law . . . and the proof is evident and the presumption of guilt is great, shall not be bailable if, after a contradictory hearing, the judge [ ] finds by clear and convincing evidence that there is a substantial risk that the person may flee or poses an imminent danger to any other person or the community.
The issue of the applicability of La.Const. art. 1, § 18 was not raised by
Defendant in the trial court and is, therefore, not properly before this court for
review. Uniform Rules—Courts of Appeal, Rule 1-3.
Defendant also argues the State failed to show by clear and convincing
evidence that she posed a future danger to her mother. She alleges the evidence
submitted failed to establish it was highly probable that she is a future danger to her
mother and the trial court misapplied the clear and convincing standard. In support
of this argument, Defendant again notes the State presented no eyewitness testimony
but relied on the affidavit for the warrant of arrest, pictures that were submitted
without explanation of how they came to be, and Defendant’s criminal history.
Although Defendant acknowledges that hearsay is admissible at bond
proceedings, she argues that the fact that the evidence is unable to be challenged
must be considered in determining the weight to be given to the evidence. Defendant
contends she was unable to confront the sources of the State’s evidence and unable
to ask questions to determine the information’s validity.
The provisions of the Louisiana Code of Evidence do not apply to
“[p]roceedings with respect to release on bail.” La.Code Evid. Art. 1101(C)(2).
However, Defendant was entitled to subpoena persons, including the investigating
officers, to testify at the Gwen’s Law hearing, thus Defendant clearly was not
deprived of her ability to confront the sources of the State’s evidence. Her failure to
exercise her right to subpoena witnesses does not create a deprivation of
Defendant further argues that past conduct cannot serve as de facto proof of
potential, imminent danger in the future. However, criminal history and
“[d]ocumented history or records” of the use of threats or force against any victim,
which includes but is not limited to sworn affidavits, police reports, and medical
records, can be considered by the trial court during a Gwen’s Law hearing. See
La.Code Crim.P. art. 313(A)(3)(a) and (A)(3)(c).
Sufficiency of the Evidence:
We now address whether the State presented clear and convincing evidence
that Defendant was a danger to her mother and find the trial court did not abuse its
discretion when it denied Defendant bond. This court addressed evidence sufficient
to deny bond during a Gwen’s Law hearing in Goodie, 226 So.3d at 1136-37
In State v. Anderson, 17–257 (La.App. 3 Cir. 3/27/17) (unpublished opinion), this court upheld a denial of bail under Gwen’s Law following the defendant’s arrest for domestic abuse battery, in violation of La.R.S. 14:35.3. . . .
In State v. Choplin, 16–499 (La.App. 3 Cir. 6/17/16) (unpublished opinion), this court ruled that the State failed to present clear and convincing evidence to support the denial of bail under La.Code Crim.P. art. 330.3 in a case where the denial of bail followed an initial arrest for domestic abuse battery. The supreme court disagreed and reinstated the district court’s ruling denying bail; it held that evidence the defendant had committed a domestic abuse battery upon the victim while under protective order constituted clear and convincing evidence the defendant presents an imminent danger to the victim. State v. Choplin, 16-1190 (La. 6/24/16), 192 So.3d 779.
. . . .
In State v. Anderson, 06–755 (La.App. 3 Cir. 7/10/06) (unpublished opinion), this court found the trial court did not abuse its discretion in revoking the defendant’s bond. The defendant had been charged with domestic abuse battery, simple burglary, two counts of violating a protective order, unauthorized entry of an inhabited dwelling, obstruction of a court order, aggravated assault, and stalking, all pertaining to his ex-wife. After bonding out of jail, the defendant continued to contact his ex-wife.
In State v. Duhon, 18-414 (La.App. 3 Cir. 6/12/18) (unpublished opinion), the
trial court ordered the defendant held without bail. The defendant was charged with
domestic abuse battery for choking and striking his girlfriend. At the Gwen’s Law
hearing, the State introduced the defendant’s jail packet, read from an arrest
affidavit, and informed the trial court that the victim had recanted her statement.
The defendant’s jail packet indicated he had a pending charge for simple
escape, a 2017 misdemeanor conviction for domestic abuse battery against the same
girlfriend, a 2012 conviction for unauthorized entry of an inhabited dwelling, a 2005
second degree battery charge, and a 2001 conviction for simple battery. This court
denied the defendant’s writ application, concluding the trial court did not abuse its
discretion in finding clear and convincing evidence that the defendant was an
imminent threat to another considering the defendant’s prior conviction for domestic
abuse battery against the same victim.
Considering this jurisprudence, the trial court did not abuse its discretion in
finding the State presented clear and convincing evidence that Defendant was a
danger to the victim.
Defendant further contends the State failed to show by clear and convincing
evidence that she might flee. Louisiana Code of Criminal Procedure Article
313(A)(4) (emphasis added) states, in part: “the judge or magistrate may order that
the defendant not be admitted to bail, upon proof by clear and convincing evidence
either that the defendant might flee, or that the defendant poses an imminent danger
to any other person or the community.” The disjunctive use of or means the State
need not have proven by clear and convincing evidence that Defendant might flee
because there was sufficient proof that she posed an imminent danger to the victim.
ASSIGNMENT OF ERROR NO. 2:
In her second assignment of error, Defendant contends the trial court shifted
the burden of proof to her and prevented her from presenting relevant evidence,
which denied her right to due process.
The first part of Defendant’s argument is that she was prevented from
introducing evidence relevant to whether she was an imminent danger to another
when the trial court sustained several objections to St. Julien’s testimony. Defendant
asserts that her behavior is drastically different when she is not actively using drugs,
and that she checked herself into treatment for drug addiction after the offenses. She
claims her behavior when she is not using drugs is the measuring stick a court should
use to determine if she is a future danger.
The State objected on grounds of relevance to defense counsel’s questioning
of St. Julien about his “impressions” of Defendant’s living environment at the end
of April 2018. That objection was sustained. Defendant lived with the victim at the
end of April, and St. Julien’s “impressions” of that living environment have no
relevance on a bond determination.
When St. Julien was asked by defense counsel how Defendant’s drug history
changed around the end of April, the State objected on the same basis as previously
set forth. That objection was also sustained. After argument from defense counsel,
the trial court stated: “[i]f you want to present evidence that you’re going to have
someone follow this woman around 24/7 to assure [me] that she is not using drugs,
then this line of questioning would be relevant. Until that happens it’s not relevant.”
The State next objected to defense counsel asking St. Julien why the
Defendant was using drugs at the end of April. The reason for Defendant’s drug use
is not relevant to her bond and not a factor for consideration under either La.Code
Crim.P. art. 313 or La.Code Crim.P. art. 316.
Defendant also complains about the State’s objection to defense counsel’s
asking St. Julien if the victim had a history of drug use. The trial court sustained the
objection, finding it was irrelevant because that would not give anyone “permission
to commit a crime against them.” Defense counsel claimed the question was asked
to show that the victim’s drug use led to Defendant’s drug use. The trial court stated:
“No one can make another individual use drugs.” The trial court’s finding that the
matter was irrelevant was correct, as it is a defendant’s behavior at issue at a bond
hearing and not that of the victim.
St. Julien testified Defendant went through treatment for drug abuse a year
prior. He was then asked how long she was clean and sober. The State objected to
the question based on relevancy, and the trial court sustained the objection. In his
very next question, defense counsel asked St. Julien to talk about what Defendant
was like when she was off drugs. An objection to that question was also sustained.
Defense counsel went on to ask St. Julien to talk a little about how Defendant was
when she was not using drugs. An objection to that question was sustained. The
court told defense counsel that he needed to “try a little more effectively.” How long
Defendant had been sober may have been relevant to the issue of her bond.
However, it is clear Defendant has a long history of drug use and has battered the
victim on more than one occasion. St. Julien testified he did not know of Defendant
fighting or getting into trouble when she was sober. However, he felt she was using
drugs at the end of April and at the time of her prior convictions, which shows a
tendency to commit crimes when she uses drugs.
Defendant’s second claim is that the trial court considered the lack of evidence
presented by her as part of its reason for ruling, impermissibly shifting the burden of
production to her. Defendant claims the trial court penalized her for not issuing
subpoenas for the officer who wrote the report to testify, not presenting evidence
that she was diagnosed with a mental health condition and what that condition was,
not presenting what medication she requires and if she was compliant, and not
presenting evidence that she participated in a detoxification program after the
incidents. Defendant had the burden of presenting a defense to the State’s attempt
to prove that she should be held without bond, and the trial court did not shift that
burden of proof. For the reasons set forth herein, we find Defendant’s second
assignment of error lacks merit.
Outcome: Defendant’s writ application is denied. We find that the trial court did not
abuse its discretion in denying bail to Defendant.