WELCH, J.
Defendant, Kendale Scott, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and, after a jury trial, was found guilty as charged. Defendant filed motions for new trial and postverdict judgment of acquittal, but those motions were denied by the trial court. The trial court subsequently sentenced defendant to the mandatory term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging three assignments of error. For the following reasons, we affirm defendant's conviction and sentence.
In June 2012, defendant lived with Lisa Keller (his girlfriend), three of her children, her mother (Katherine Hartman — the victim), and Naomi Wheat. They all resided in the victim's trailer on Highland Drive in Ethel. Defendant and the victim had previously had disagreements and altercations, including one incident around May 12, 2012, in which defendant allegedly struck the victim several times.
On June 24, 2012, defendant was at the Highland Drive residence with Wheat, Keller's children, the victim, and Shedrick Law, a visiting friend. Keller was working at an area nursing home. In the afternoon, the victim fell asleep on a sofa in the living room. Shortly thereafter, defendant retrieved his .22 caliber rifle from the rear of the house and entered the living room with it. He instructed Law to take the children outside to play. Law complied, and within a few minutes, he and the children heard a gunshot. Upon hearing the shot, Law walked to the trailer and observed defendant still holding the rifle.
Upon reentering the house, Keller's teenage son saw his grandmother's body on the couch in the living room. She was dead from a gunshot wound to her forehead. Defendant instructed him to help Wheat clean the sofa and wrap the victim in blankets and plastic garbage bags. Keller's son complied, and he subsequently accompanied defendant and Law to dump the victim's body at an isolated location off Lane Road in Ethel.
On June 26, 2012, Lisa Keller filed a missing persons report with the East Feliciana Parish Sheriff's Office. During his investigation of that report, Detective Kevin Garig received information from both a concerned citizen and a confidential informant that led him to believe that the victim had been murdered. On July 6, 2012, Detective Garig executed a search warrant on the residence, and he interviewed everyone present at the home. Following those interviews, he located the victim's body where it had been dumped. He subsequently arrested defendant, Keller, Wheat, and Law for the victim's murder.
In his first assignment of error, defendant alleges that the trial court erred in admitting testimony that defendant had made a threat against a neighbor, Lisa Scarbrough. Defendant contends that this threat, made approximately a week after the murder, constituted other crimes evidence that was unduly prejudicial to, and not probative, of the issues in his trial.
At trial, Lisa Scarbrough testified that on July 1, 2012, she was walking in her neighborhood with Tonya John. According to Scarbrough's testimony, defendant and her son had "got into it" earlier that evening. Defendant was outside as Scarbrough and John passed the victim's residence. Defendant shouted to her, "I killed one. I can kill another one, bitch."
Prior to Scarbrough's testimony before the jury, the trial court held a hearing to determine the admissibility of the statement defendant made to Scarbrough and John.
The trial court's instruction to the prosecutor regarding testimony about "assaultive language to neighbors or dog killings" referenced other crimes evidence that the state had unsuccessfully sought to introduce. At trial, Scarbrough's testimony was limited to the statement that defendant made to her and John, and it did not touch on these other facts prohibited by the trial court.
The state did not argue at the hearing that this statement was admissible as other crimes evidence, but as an admission of guilt by defendant. The term "confession" is applied only to an admission of guilt, not to an acknowledgment of facts merely tending to establish guilt.
The trial court did not err or abuse its discretion in admitting defendant's statement to Scarbrough as a confession or personal admission. Contrary to defendant's argument in his brief, the state never sought to introduce Scarbrough's testimony as other crimes evidence, and her testimony stayed within the bounds set by the trial court.
This assignment of error is without merit.
In his second assignment of error, defendant contends that the trial court erred in denying his motion for postverdict judgment of acquittal. Specifically, he asserts that his non-unanimous (11-1) jury verdict was unconstitutional.
The punishment for second degree murder is life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence.
Defendant recognizes the
This assignment of error is without merit.
In his final assignment of error, defendant argues that the trial court erred in failing to grant his motion for a mistrial during Lisa Keller's testimony. He asserts that Keller's testimony that defendant's threats caused her to file a missing persons report, despite knowing that her mother was dead, unfairly prejudiced his ability to receive a fair trial. Defendant also contends that the trial court's admonishment served only to reiterate the substance of the objectionable testimony.
During the state's direct examination of Keller, the following exchange occurred:
On defense counsel's objection, the trial court ordered the jury removed from the courtroom. Defense counsel moved for a mistrial on the basis that Keller had stated that his client had threatened her. He argued that this testimony was other crimes evidence that was highly prejudicial to defendant.
The trial court spoke to Keller directly and instructed her that while she could testify to anything about what defendant had told her regarding his participation in the offense, she could not testify about any threats he had made to her. In denying defense counsel's motion for a mistrial, the trial court noted that the state did not solicit Keller's statement and that Keller had not completed enough of her statement to name the perpetrator of that threat. When the jury reentered the courtroom, the trial court gave the following limiting instruction:
Keller adhered to the trial court's instructions for the remainder of her testimony.
Louisiana Code of Criminal Procedure article 775 provides in part that "[u]pon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771." Under La. C.Cr.P. art. 770(2), a mistrial shall be ordered when a remark or comment made within the hearing of the jury by the judge, district attorney, or a court official during trial or argument refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Also, an impermissible reference to another crime deliberately elicited by the prosecutor is imputable to the state and would mandate a mistrial.
Rather, the controlling provision is La. C.Cr.P. art. 771, which provides in pertinent part:
Mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant. A trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial.
Defendant has failed to show clear prejudice from Keller's statement about threats that she received regarding herself and her children. First, as the trial court noted, Keller's statement did not specifically identify defendant as the source of those threats. Next, Keller's statement was cut off immediately by defense counsel's objection, and defense counsel agreed that the prosecutor did not intend to solicit the statement from her. On appeal, defendant also argues that the admonition served only to reiterate the substance of the illicit testimony. While the trial court did state the specific nature of the testimony to be disregarded, the record reveals that the jury was absent from the courtroom for a long period of time, leading to the possible necessity of a reminder of the exact testimony to be disregarded. Considering the above facts and circumstances, we find that the trial court did not err or abuse its discretion in denying defendant's motion for a mistrial and admonishing the jury to disregard Keller's testimony about threats.
This assignment of error is without merit.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.