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Date: 09-02-2015

Case Style: STATE OF LOUISIANA VERSUS LAMONDRE TUCKER

Case Number: NO. 2013-KA-1631

Judge: Associate Justice Marcus Clark

Court: SUPREME COURT OF LOUISIANA

Plaintiff's Attorney: Albert James Jones Jr

Defendant's Attorney: Alan R Davis

Description: In September 2008, Tavia Sills was nearly five months pregnant. A few
weeks earlier, she had informed 18-year-old Lamondre Tucker that she believed he
was the father of her unborn child. On September 9, 2008, Tucker picked Tavia up
at the home of her mother, Vickie Britton. Tucker claimed that his sister, Alexis
Metcalf, had asked to meet Tavia after learning of the pregnancy. Before leaving,
Tavia demonstrated some trepidation; she asked her mother to pray with her and
then gave her defendant‟s phone number.
A few hours later Tucker returned without Tavia and informed Mrs. Britton
that, at Tavia‟s request, he had dropped her off at the apartment of her older sister,
Toquilla Sills. Mrs. Britton became alarmed because she knew her daughter
Toquilla was not at home, as she had been hospitalized due to complications from
her own pregnancy. Mrs. Britton contacted Shreveport police.
Sergeant John Youngblood investigated the missing person report. He spoke
with Tucker at his high school, Booker T. Washington. Tucker told him that he
had dropped Tavia off at the Prince Village Apartments in Shreveport. Sergeant
Youngblood obtained surveillance videos from the apartment complex and
discovered that Tucker, Tucker‟s car and Tavia did not appear in any of the videos.
On September 12, 2008, a couple fishing by a secluded pond near Legardy
Street in Shreveport discovered the decomposing body of Tavia Sills floating in the
water. Tavia had been shot three times. Two shots perforated soft tissue at the
base of her neck and her upper arm. The fatal, penetrating shot was fired into her
back, perforated her lung, and fractured a rib.
Tucker accompanied Detective Rod Demery, the lead homicide investigator,
and Sergeant Youngblood to the police station the evening of September 12, 2008.
Tucker was arrested, Mirandized, and interviewed around midnight. In an audio
3
recorded interview, Tucker claimed he took Tavia to meet his sister, who was not
at home, so he dropped her off at the Prince Village Apartments. Detective Demery
informed Tucker that the surveillance video proved that he was lying and the
detective indicated that he was turning off the recorder. The detective, however,
continued to record the interview. Tucker then explained that he dropped Tavia off
on the corner near the Prince Village Apartments at her request (outside the range
of the surveillance video). Defendant was transported to jail.
Late the next morning, after attending the autopsy, Detective Demery
interviewed Tucker at the jail. The detective allowed Tucker to call and speak with
his mother. Tucker then admitted that he had taken Tavia to the pond where her
body was found. Near the pond, Tucker claimed he found a tackle box containing
a pistol. Tucker claimed that when he held the pistol up it accidentally discharged,
twice, hitting Tavia. Tucker said he then ran away and discarded the gun in a
drainage canal near Linear Street just off of Dr. Martin Luther King Drive. Tucker
agreed to accompany the detective to show him where he discarded the gun. A
diver recovered a CZ .40 caliber semi-automatic pistol from the drainage canal. A
firearms examiner later determined that three .40 caliber cartridge cases found by
the pond were ejected when this pistol was fired. The firearms examiner was
unable to determine, however, that the fatal bullet recovered during the autopsy
was fired by the pistol (although it had the same general class characteristics).
Tucker, after being interviewed repeatedly throughout the day on September
13, 2008, eventually abandoned the tackle box story and admitted he had obtained
the pistol from Marcus Taylor a few days before the shooting.3 Tucker said Taylor
3 Taylor was indicted for second degree murder, tried, found guilty of manslaughter, and sentenced to 30 years imprisonment at hard labor. The conviction and sentence were affirmed on appeal. State v. Taylor, 49,467 (La. App. 2 Cir. 1/14/15), 161 So.3d 963. When interviewed by police, Taylor admitted that he gave the pistol to Tucker but claimed he did not believe he would use it. Taylor said Tucker shot Tavia Sills and began pouring lighter fluid on her. Tavia jumped into the pond to avoid being set on fire. Tucker then shot her again. Taylor claimed he then
4
had accompanied them to the pond. Tucker claimed he offered to teach Tavia to
shoot and he handed her the pistol. He said he tried to grab it back from her
because she wasn‟t holding it in a safe manner, which is when it discharged twice
accidentally. Tavia was shot and fell to the ground. Taylor suggested they call the
police but Tucker was frightened and pushed Tavia, who was still alive, into the
pond. Tucker said he then shot her again, deliberately this time to be certain she
was dead, and Taylor used a branch to push her farther out into the water.
Although the third shot would have been imminently fatal, the coroner could not
exclude the possibility that Tavia had drowned.
During the course of the investigation, several witnesses were interviewed.
Alexis Metcalf, Tucker‟s sister, confirmed that Tucker did not bring Tavia to meet
her on September 9, 2008. Tavia‟s sister, Toquilla, confirmed that she was at the
hospital on that date and said that Tavia in fact had visited her there earlier that
day. Tamara Bates, the mother of Tucker‟s three-year-old son, told police she and
Tucker had argued about the status of their relationship when she learned of
Tavia‟s pregnancy just a few days before Tavia was reported missing. Chasmine
Hamilton, Tucker‟s close friend, said Tucker confided in her when he learned
Tavia was pregnant and expressed the desire to beat Tavia to cause a miscarriage.
Charles Wilson, Tucker‟s friend, said that Tucker had asked him on September 11,
2008, to claim he saw him drop Tavia off at the Prince Village Apartments. Glen
Taylor, another friend of Tucker, told police that Tucker told him that he and
Marcus Taylor pushed Tavia into the pond, Tucker shot her, Tavia asked Tucker
what he was going to tell his mother, and then Tucker shot her again. Catherine
Golston, who lives near the pond, said she heard a young woman screaming nearby
and looked and saw that she was pregnant. According to Golston, the young
woman was afraid of the cattle that pastured along the path to the pond. Golston reluctantly helped Tucker push her body out farther into the pond with a branch.
5
also heard Tucker‟s voice, which she recognized, trying to calm the young woman.
Later she heard two gunshots and then a third.
Subsequent DNA testing proved that Tucker was not the father of Tavia‟s
unborn child. Expert witnesses estimated that the male fetus was 19 weeks old,
healthy, and barring unforeseen complications, believed Tavia would have carried
him to full term and given birth to a healthy infant. The experts indicated that a
19-week-old fetus is not viable outside of the womb.
Tucker was indicted for first degree murder. By bill of particulars, the state
clarified that Tucker committed first degree murder by killing Tavia Sills while
engaged in the perpetration of a second degree kidnapping and when he had the
specific intent to kill or inflict great bodily harm upon more than one person.
Tucker filed a motion to suppress his statements, in which he contended they were
involuntarily and unknowingly made, as well as made after he invoked his right to
remain silent and to the assistance of counsel. The motion was denied after an
evidentiary hearing held on March 10, 2010. At the hearing, the state presented the
testimony of Detective Demery and Sergeant Youngblood that Tucker voluntarily
accompanied them to police headquarters, was Mirandized, signed a rights waiver,
and voluntarily gave a series of increasingly incriminating statements after initially
denying any involvement. The defense presented the testimony of Tucker‟s
grandmother, Ora Ellis, Tucker‟s mother, Alicia Tucker, and Tucker. According to
Alicia Tucker and her son, Detective Demery promised that if Tucker would
confess to an accidental shooting then the charge would be reduced to
manslaughter and her impounded car would be returned to her.
Jury selection began on March 14, 2011, and was completed on March 19,
2011. Six panels of approximately 16 prospective jurors each were examined.
Eight prospective jurors were excluded by joint agreement. For each panel, death
6
qualification preceded general voir dire. During death qualification, the state
challenged 35 prospective jurors for cause, of which 33 were granted, and the
defense challenged 12 prospective jurors for cause, of which 6 were granted.4
During general voir dire, the state made three cause challenges, of which two were
granted without objection by the defense, and the defense made 12 cause
challenges, of which 8 were granted (6 without objection by the state). Nineteen
peremptory challenges were exercised including two backstrikes.5 A jury of 12
with 2 alternates was selected.6
During jury selection three significant events occurred. First, the defense
filed motions to quash on the basis that the state had not given notice that it was
seeking the death penalty. Specifically, the defense noted the state had not filed a
notice of intent to seek the death penalty and argued that although the state had
responded with particulars identifying that it was proceeding under La. R.S.
14:30(A)(1) and (3) regarding the offense, it had not clarified that it would seek a
capital penalty in accordance with La. R.S. 14:30(C)(1). After these motions were
denied, the defense sought supervisory review and the court of appeal denied writs
on the showing made.7 Second, after the state challenged prospective juror
Richard Clark (a black male) based on his opposition to the death penalty, the
4 The defense objected to only 5 of the state‟s 35 cause challenges during death qualification. The state objected to 8 of the defense‟s 12 cause challenges during death qualification. 5 Dawn McCutcheon (white female), Micah Walker (white female) (backstrike), Helen Colbert (white female), Brian Godfrey (black male), Lisa Mills (black female), Brandy Harvey (black female), Philip Alford (white male), John Forehand (white male), Rachal Foreman (black female), Candice Sweat (white female), Joy Birch (white female), Patricia Johnson (white female), Alan Ogden (while male), Robert Litton (white male), Alvin Coco (black male), Robert Rogers (white male), Clarence Hicks (black male) (backstrike), Mary Nordberg (white female), William Ricks (white male). The record does not clearly indicate which side exercised each peremptory challenge. Of these 19 prospective jurors removed by peremptory challenge, 7 were unsuccessfully challenged for cause earlier by the defense (Forehand, Birch, Johnson, Litton, Coco, Rogers, Hicks), and 2 were unsuccessfully challenged for cause earlier by the state (Colbert, Ricks). 6 Mary Irvin (white female, later chosen to be foreperson), Madge Berry (white female), Linda Morgan (white female), Lillie Richmond (black female), Edwin Sutton (white male), Abby Beazley (white female), Carol Gray (white female), Anita Spencer (black female), Ginger Blair (white female), Lisa Devincent (white female), Amy Lawler (white female), Cristin Davis (white male), Mark Huffty (white male, alternate), and Kristen Hiers (white female, alternate). 7 State v. Tucker, 46,510 (La. App. 2 Cir. 3/18/11) (unpub‟d).
7
defense objected that the death qualification process was disproportionately
excluding blacks from the jury.8 However, the defense emphasized that it was
neither asserting a Batson9 challenge nor accusing the prosecutors of exercising
challenges on the basis of race. Third, after prospective juror Latisha Griffin
changed her views on the death penalty overnight, a brief recess followed after
which defense counsel informed the court they believed someone had spoken with
this prospective juror and persuaded her to change her answers. Griffin was
examined and admitted that she had received a three-way telephone call the night
before in which Tucker urged her to change her answers to questions about the
death penalty. Defense counsel then moved to withdraw based on a conflict of
interest resulting from being witnesses to jury tampering by their client; the trial
court denied the motion.
Opening statements commenced on March 20, 2011. The state described
how it believed the crime occurred, summarized the evidence it would present, and
explained how that evidence established the elements of the crime. The defense
acknowledged that a tragedy had occurred and expressed its sympathy, reminded
the jury of the state‟s burden of proof, and asked the jury to keep an open mind
until they heard all of the evidence. The state presented the testimony of 22
witnesses, including three members of the victim‟s family, four friends or family
of Tucker, seven law enforcement officers, two obstetricians, a forensic DNA
analyst, a firearms examiner, and a forensic pathologist.10 The defense rested
without presenting any testimony or evidence.
In closing, the state summarized the elements of the offense and the
evidence proving them; emphasized that Tavia Sills and her unborn child were
8 The defense also objected to the state‟s cause challenge to prospective juror Melvin Richardson on the same basis. 9 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). 10 The defense only briefly cross-examined 6 of the state‟s witnesses and did not cross-examine 15 witnesses at all.
8
both alive and healthy when last seen with Tucker; argued Tucker‟s specific intent
could be inferred from his admission that he fired a final shot to ensure the victim
died; noted that Tucker‟s story changed several times during police interviews;
argued Tucker killed Tavia Sills to save his relationship with Tamara Bates; and
emphasized Tucker has never shown remorse. The defense‟s brief closing remarks
follow:
Good evening, ladies and gentlemen. I will not belabor the evidence in this case, ladies and gentlemen, simply because the facts are not in dispute. What is in dispute is the legal analysis. What we submit to you is that Lamondre is guilty of the second degree murder of Ms. Tavia Sills and the feticide of her unborn child; that is, the killing of the unborn child with specific intent to kill or inflict great bodily harm. Thank you.
R.18 at 3849-50. In rebuttal, the state responded that the crime is not a second
degree murder but rather a cold-blooded killing. The state described the crime to
the jury, emphasizing the fear Tavia would have experienced. During the state‟s
rebuttal, Tucker created a disturbance and was removed from court at the request
of the defense.11 The state then continued its closing remarks, emphasizing Tucker
could have sought medical attention but instead chose to push the victim into the
water and shoot her again. Thus, the state argued the crime was too cold-blooded
to be a second degree murder.
11 Defense counsel asked that his client be removed: Mr Goins: Your Honor, given the circumstances, we make a request Mr. Tucker be removed for the remainder. The Court: and that‟s the request of defense counsel? Mr. Goins: Yes, Your Honor, it is. The Court: Court would accede to that request. Mr. Goins: And at Mr. Tucker‟s own request. The Court: And at his request. Mr. Cox: Your Honor, I‟d just like to make it clear for the record, because the defendant does have a right to be present at all proceedings, that this is something the accused has requested. The Court: Anything else, Mr. Cox? Mr. Cox: No. I just wanted to make that sure for the record. The Court: That‟s why I asked was that a request of defense counsel. And defense counsel indicated yes, along with the request of defendant. Mr. Goins: Correct. R.18 at 3854-55.
9
On March 22, 2011, the jury found defendant guilty as charged of first
degree murder. The penalty phase commenced on March 23, 2011. In its opening
remarks, the state asked the jury to consider the circumstances of the offense and
Tucker‟s character and propensities, and the state summarized the evidence
presented at trial with an emphasis on defendant‟s cold-heartedness. The defense
informed the jury that, rather than discussing the crime, it would tell the jury about
the other 18 years of Tucker‟s life, which included an unstable home environment
with abusive men, as well as his efforts to turn his life around through football.
The state presented three victim-impact witnesses: Vickie Britton (the
victim‟s mother), Toquilla Sills (the victim‟s older sister), and Lashun Gipson (the
victim‟s godmother).12 Mrs. Britton described her daughter as a student studying at
Southern University to become a phlebotomist who was excited about her
pregnancy and was well-loved by the community. She testified that she was
profoundly affected by her daughter‟s death. Toquilla Sills described how the
victim helped care for her children despite working two jobs and attending school.
She said they were both looking forward to raising their children together closely.
Ms. Sills described experiencing drastic weight loss following the loss of her sister
and what would have been her first nephew. Lashun Gipson described how she
first met the victim and how closely they bonded. Ms. Gipson described the victim
as being like a daughter to her.
The defense presented six witnesses: Alicia Tucker (Tucker‟s mother),
Alexis Metcalf (Tucker‟s older sister), Danny Blackman (who was at one time
involved with Tucker‟s mother), Kevin Richardson (Tucker‟s cousin), Rev. Rickey
Moore (who employed Tucker on occasion), and Kalan Washington (Tucker‟s
former teacher, football coach, and mentor). Alicia Tucker described how she had
a series of tumultuous relationships with abusive men and drug dealers, and 12 The defense did not cross-examine these witnesses.
10
claimed the family was displaced so often that she could not recall the number of
residences Tucker lived in or schools he attended. During her testimony, pictures
from her family scrapbook were projected for the jury. Of particular note during
her testimony (as is discussed below), is that when defense counsel asked her the
opened ended question “What happened at Booker T. Washington?”, she
responded that her son had been accused of rape after engaging in consensual sex
with a younger girl.13 Alexis Metcalf testified that Tucker treated her sons and his
own son well. Danny Blackman testified he considered Tucker to be like a
stepson. Blackman said Tucker loved horses, played football, and never gave him
any trouble. Kevin Richardson described Tucker as an easy going person who
enjoyed playing with children. Rev. Rickey Moore testified that he hired Tucker to
help care for his horses and to teach his son to ride. Kalan Washington said
Tucker, who participated in his youth mentoring program, was a smart player who
could have gone on to play college football. According to Washington, Tucker
would stand up for other children and became frustrated when he believed
something was unfair.
The state vigorously cross-examined the defense witnesses. The state
elicited that defendant, at age 13, was accused of shooting a neighboring child with
a BB gun; was repeatedly disciplined at school for fighting; and pleaded guilty to
misdemeanor carnal knowledge after being accused of rape. The state asked
Blackman, Richardson, and Washington if they were familiar with the nature of the
crime Tucker was convicted of committing. The state showed these witnesses two
crime scene photos and asked whether it would change their opinion of Tucker‟s
character if he admitted he had committed the crime. The defense objected during
the testimony of two of the witnesses and moved for a mistrial. The defense 13According to the defense, counsel intended to elicit information about Tucker‟s participation in football. Defense counsel attributes her response to the breakdown in communication that followed the jury tampering incident.
11
objected to the state giving Blackman details of the crime of which he was not
aware. The trial court sustained the objection and admonished the state not to
testify. The defense also objected to state‟s badgering of Washington (who
provided several rambling and non-responsive answers during the state‟s cross
examination). The trial court denied the motions for mistrial.
In closing, the state depicted defendant as a cold-blooded murderer who
callously destroyed a family and tried to get his friends to cover for him. The state
noted his poor school disciplinary record and that he was previously convicted of
misdemeanor carnal knowledge of a juvenile. The state characterized the defense
mitigation case as establishing only that Tucker likes horses and football. The state
argued Tucker killed the victim believing he could then simply go off to college to
play football. Regarding Alicia Tucker‟s scrapbook, the state noted that the
victim‟s family will not have the opportunity to make a comparable one. The state
claimed that Tucker has never expressed any remorse.
The defense, in closing, asked the jury to spare defendant‟s life, emphasizing
that Tucker was an immature high school teenager who acted uncharacteristically
under the pressure of repeating his last year of high school and his complicated
relationships with Tamara Bates and the victim. The defense dismissed the state‟s
cross examination as involving minor things that many children engage in, such as
poor behavior at school and misuse of BB guns. Regarding remorse, the defense
argued that children typically show no remorse and suggested that lack of remorse
might be considered a mental defect, i.e., a mitigating circumstance. The defense
pleaded for life in prison so that Tucker would have the opportunity to develop
remorse. Noting that defendant has a son, the defense asked the jury to not act in
anger and do something they would regret later.
The state responded in rebuttal that defendant‟s repeated expulsions and
12
suspensions suggest he lacks the capacity to learn from his mistakes or develop
remorse. Although the defense characterized Tucker as lacking mental capacity,
the state noted that his coach had described him as an intelligent football player
with college potential. Although the defense characterized Tucker as impulsive,
the state countered that the crime was coldly planned. In conclusion, the state
contended that death was the only penalty proportionate to the harm inflicted on
the victim‟s family.
At the conclusion of the penalty phase, the jury returned a verdict of death.
Shortly thereafter, the Louisiana Capital Assistance Center enrolled to represent
Tucker on appeal and filed numerous motions, culminating in an omnibus motion
for new trial.14 On June 29, 2011, the trial court denied the omnibus motion and
sentenced Tucker to death in accordance with the jury‟s determination.
Tucker subsequently filed a motion to reconsider sentence in which he
contended that his immaturity in conjunction with his diminished capacity renders
him ineligible for the death penalty because he was just five months past his
eighteenth birthday at the time of the crime and he has a full scale IQ of 74. He
also filed a motion for new trial, alleging that the victim‟s mother had forgiven him
and found peace; he was not the shooter; and he had evidence rebutting the state‟s
negative depiction of him in the penalty phase. Following the trial court‟s denial
of these motions, defendant appealed directly to this Court.
LAW AND ANALYSIS
Primary Claims
14 The omnibus motion is substantially similar to defendant‟s appeal brief. Among the 18 claims presented, are the following: (1) subsequent psychological testing of Tucker and his educational records suggest his poor intellectual functioning would cause him to interpret Detective Demery‟s statements as promises, and therefore Tucker‟s statements should be suppressed; (2) a subsequent study of six capital trials in Caddo Parish shows that blacks are systematically excluded from serving on juries by the death qualification process; (3) the state exercised peremptory challenges on the basis of race in violation of Batson; and (4) the jury tampering incident resulted in a conflict of interest and jeopardized communication among defense counsel and Tucker and his family.
13
Sufficiency of the Evidence
Whether intentionally shooting a pregnant woman constitutes intent to kill or harm more than one person.
Defendant contends he is the first person convicted of first degree murder
under La. R.S. 14:30(A)(3) (intent to kill or harm more than one person) for killing
a pregnant woman and her unborn child. He argues that feticide does not elevate
second degree murder to a capital offense under La. R.S. 14:30, as written, and,
therefore, the evidence does not support a conviction for first degree murder.
Defendant notes that this Court determined in State v. Gyles, 313 So.2d 799,
801 (La. 1975) that a “defendant's conduct of striking the pregnant woman and
causing the stillbirth of the child is not punishable as a „murder‟ under the
definition of that crime in the Louisiana statutes and those of other jurisdictions.”
He also notes that this Court again found that feticide is not homicide despite the
legislative amendment to La. R.S. 14:2(7) that expanded the definition of person to
include the unborn. State v. Brown, 378 So.2d 916 (La. 1979). Defendant
contends that, despite this jurisprudential context and subsequent legislative action
establishing several degrees of feticide, the legislature has not indicated that it
intends La. R.S. 14:30(A)(3) and La. C.Cr.P. art. 905.4(4) to encompass the
unborn. Thus, defendant argues, lenity requires interpreting any ambiguity in these
provisions in his favor. Defendant also contends the trial court erroneously
instructed the jury by refusing to inform it that a pregnant woman and her unborn
child cannot be considered more than one person for purposes of La. R.S.
14:30(A)(3).
In Kennedy v. Louisiana, 554 U.S. 407, 421, 128 S.Ct. 2641, 2650-51, 171
L.Ed.2d 525 (2008), the United States Supreme Court determined that “a death
sentence for one who raped but did not kill a child, and who did not intend to assist
another in killing the child, is unconstitutional under the Eighth and Fourteenth
14
Amendments.” In making that determination, the court noted that “the death
penalty is not invariably unconstitutional”. Id., 554 U.S. at 420, 128 S.Ct. at 2650
(citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).
Rather, the court noted that “capital punishment must be limited to those offenders
who commit a narrow category of the most serious crimes and whose extreme
culpability makes them the most deserving of execution.” Id. (quoting Roper v.
Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 1194, 161 L.Ed.2d 1 (2005) and
Atkins v. Virginia, 536 U.S. 304, 319, 122 S.Ct. 2242, 2251 153 L.Ed.2d 335
(2002)) (internal quotes omitted).
We have found no constitutional impediment to including offenders who
intentionally kill women they know are pregnant in that narrow category.15 In fact,
of the 32 states that at present authorize capital punishment, seven provide that the
intentional killing of a pregnant woman is an aggravating factor that may justify a
death sentence. Ariz. Rev. Stat. § 13-751(F)(9) (“the murdered person was under
fifteen years of age, was an unborn child in the womb at any stage of its
development or was seventy years of age or older”); Colo. Rev. Stat. Ann. § 18
1.3-1201(5)(q) (“[t]he victim was a pregnant woman, and the defendant
intentionally killed the victim, knowing she was pregnant”); Del. Code Ann. tit. 11,
§ 4209(e)(1)(p) (“The victim was pregnant”); Ind. Code § 35-50-2-9(b)(16) (“The
victim of the murder was pregnant and the murder resulted in the intentional killing
of a fetus that has attained viability”); 42 Pa. Cons. Stat. Ann. § 9711(d)(17) (“At
the time of the killing, the victim was in her third trimester of pregnancy or the
defendant had knowledge of the victim‟s pregnancy”); Tenn. Code Ann. § 39-13
15 See, e.g., People v. Bunyard, 45 Cal.3d 1189, 1239, 249 Cal.Rptr. 71, 105, 756 P.2d 795, 829 (1988), in which the California Supreme Court rejected the claim that the Eighth Amendment prohibits “the murder of a fetus [from raising] an otherwise non-capital case to capital status under a multiple murder special circumstance.” See also People v. Dennis, 17 Cal.4th 468, 71 Cal.Rptr. 680, 950 P.2d 1035 (1998) (again finding that “the application of the multiple-murder special circumstance to the crimes of killing a pregnant woman and her fetus [does not constitute] a disproportionate penalty violating the state and federal Constitutions”).
15
204(i)(16) (“The murder was committed against a pregnant woman, and the
defendant intentionally killed the victim, knowing that she was pregnant”); Va.
Code Ann. § 18.2-31(11) (“The willful, deliberate, and premeditated killing of a
pregnant woman by one who knows that the woman is pregnant and has the intent
to cause the involuntary termination of the woman‟s pregnancy without a live
birth”). Furthermore, in Florida a killing that would be capital murder if the
pregnant woman died is capital murder if the mother survives but her unborn child
dies. Fla. Stat. Ann. § 782.09(1)(a). Therefore, the question presented here is not
whether Louisiana may include the intentional killing of a pregnant woman among
the aggravating factors that render an offender eligible for capital punishment but
whether it has, which is a matter of statutory interpretation.
Louisiana R.S. 14:30(A)(3) provides that first degree murder is the killing of
a human being “[w]hen the offender has a specific intent to kill or inflict great
bodily harm upon more than one person.” Louisiana R.S. 14:2(7) defines “person”
in the criminal law to include “a human being from the moment of fertilization and
implantation”.16 Thus, pursuant to these two statutory provisions, first degree
murder does include the killing of a human being (the pregnant woman) when the
offender has the specific intent to kill or inflict great bodily harm upon more than
one person (the pregnant woman and the implanted conceptus).
Defendant argues that the killing of a fetus is not murder (and under
subsequent legislative enactments it is, in fact, feticide) and therefore the
legislature could not have intended first degree murder to encompass the murder of
a pregnant woman with the intent to kill both her and her unborn child. In support
of his argument, defendant relies on the decisions in State v. Gyles, 313 So.2d 799
(La. 1975) and State v. Brown, 378 So.2d 916 (La. 1979). In Gyles, Arthur Ray
16 This provision also declares that a person includes “a body of persons, whether incorporated or not.”
16
Gyles physically assaulted a woman who was eight-months pregnant and caused
her to miscarry. He appealed his conviction for second degree murder of the
stillborn child. Relying on the common law, which deemed that only those born
alive are human beings, this Court found that conduct which causes an unborn
child to be born dead does not constitute murder. The legislature responded by
amending La. R.S. 14:2(7), which simply had indicated that a person includes a
body of persons, whether incorporated or not, to provide: “„Person‟ includes a
human being from the moment of fertilization and implantation and also includes a
body of persons, whether incorporated or not.” 1976 La. Acts 256. Then, in State
v. Brown, supra, the Court considered the question whether the legislative
amendment altered the definition of murder and the holding of Gyles. In Brown,
Michael Brown killed Harriet St. Andre, who was pregnant. He was indicted
separately with two counts of second degree murder. The jury found Brown guilty
of manslaughter in the death of St. Andre. After the trial court overruled Brown‟s
motion to quash the indictment for the killing of the fetus (the motion to quash was
based on double jeopardy), Brown pleaded guilty to manslaughter of the fetus and
appealed. This Court found as an error patent that murder is defined as “the killing
of a human being” (rather than as the killing of a person) and the amendment
redefining “person” had therefore not redefined murder.17
17Justice Marcus dissented in Brown, stating: I disagree with the conclusion of the majority that the indictment here, charging defendant with the murder of a “fertilized implanted fetus in the womb” of its mother does not charge a crime. Homicide (all grades) is the killing of a “human being.” La. R.S. 14:29. The question is whether “human being” in the homicide statute includes a “fertilized implanted fetus in the womb” of its mother. I think so. La. R.S. 14:2(7) defines “person” as including a “human being from the moment of fertilization and implantation.” Since the definition of a person includes a “human being from the moment of fertilization and implantation,” I consider it clear that a “human being” in the homicide statute includes a “fertilized implanted fetus in the womb” of its mother. Accordingly, I respectfully dissent. Brown, 378 So.2d at 918 (Marcus, J., dissenting). Regardless, Brown has not been overruled and its effect is limited since the legislature established the crime of feticide by Acts 1989, No. 777, §1.
17
Notwithstanding defendant‟s argument, the decisions in Gyles and Brown do
not answer the question of whether the killing of a pregnant woman and her unborn
child reflects the intent to kill more than one person for purposes of elevating a
second degree murder to the first degree. However, the statutory provisions
following the amendment of the definition of person in the criminal code answer
that question sufficiently. Louisiana R.S. 14:30(A)(3) does not state that it requires
the intent to commit multiple murders; it requires only the intent to kill or inflict
great bodily harm upon more than one person. In determining the scope of a
statute, a court must first look to its language. “If the statutory language is
unambiguous, in the absence of „a clearly expressed legislative intent to the
contrary, that language must ordinarily be regarded as conclusive.‟” United States
v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981)
(quoting Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102,
108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). “Only where ambiguity exists
within the body of the enacted legislation does it become necessary to look further
than the text to determine the legislative intent.” State v. Barbier, 98-2923, p. 5
(La. 9/8/99), 743 So.2d 1236, 1239. Louisiana R. S. 14:30(A)(3) and La. R.S.
14:2(7) are clearly unambiguous. Also, the fact that the legislature established
several grades of criminal feticide (see n.17, infra) does not reflect an intent to
repeal the plain language of La. R.S. 14:30(A)(3) and La. R.S. 14:2(7).
Furthermore, in State v. Keller, 592 So.2d 1365 (La. App. 1 Cir. 1991), the
First Circuit Court of Appeal considered the same question and reached the same
conclusion. In Keller, Gregory Keller was indicted for the first degree murder of
Andrea Simmons, who was pregnant, based on the specific intent to kill or to
inflict great bodily harm upon more than one person, La. R.S. 14:30(A)(3). Keller
sought to quash the prosecution on the basis that a fetus cannot be considered a
18
person for purposes the multiple-person aggravating element of La. R.S.
14:30(A)(3). The court of appeal noted that La. R.S. 14:30(A)(3) does not require
the actual commission of two murders but rather that defendant have the intent to
kill more than one person. The court found that, although a fetus is not considered
a human being whose unlawful killing constitutes homicide, a fetus is nonetheless
defined as a person in the criminal code. Keller, 592 So.2d at 1366.
Defendant contends the statutory language is not sufficiently clear to give
him fair warning that he might face a charge of first degree murder for killing a
pregnant woman. The Fair Warning Doctrine, however, demands “no more than a
reasonable degree of certainty.” Boyce Motor Lines v. United States, 342 U.S. 337,
340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952). “The root of the vagueness doctrine is
a rough idea of fairness. It is not a principle designed to convert into a
constitutional dilemma the practical difficulties in drawing criminal statutes both
general enough to take into account a variety of human conduct and sufficiently
specific to provide fair warning that certain kinds of conduct are prohibited.”
Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584
(1972). A Texas court has rejected a fair warning challenge in a similar case. See
Lawrence v. State, 211 S.W.3d 883 (Tex. Ct. App. 2006).
Regardless, in this case, this Court need not resolve the question of whether
La. R.S. 14:30(A)(3) applies to the murder of a pregnant woman given the
presence of a second aggravating factor, i.e., that the killing took place in
conjunction with a second degree kidnapping, La. R.S. 14:30(A)(1).
Whether the state proved defendant killed Tavia Sills while engaged in a second degree kidnapping.
Defendant contends the state presented insufficient evidence to show the
murder took place during the course of a second degree kidnapping. He argues
that, to prove he kidnapped the victim, the state must prove more than that he
19
persuaded or enticed the victim to accompany him; the state must also prove that at
some point she had the desire to leave. According to defendant, the only evidence
presented regarding the victim‟s state of mind was an eyewitness (Catherine
Golston) who overheard Tavia scream because she feared the nearby cattle.
Defendant argues that this was not sufficient to prove the victim did not want to
accompany him. Defendant also contends that the trial court erred by not
instructing the jury that the state must prove the victim expressed the desire or
intent to leave.
As an initial matter, defendant‟s own statements to police provide evidence
that the victim expressed a desire to leave. According to defendant, the victim
expressed her fear on the path to the pond, she stopped walking, and “[t]hen she go
I don‟t think I can do this no more.”18 Defendant cajoled her into walking again.
After going a bit farther down the path, according to defendant, the victim clearly
expressed the desire to leave: “So then I‟m like come on. So I walk, and we walked
to the other drop off. Then that when she kept saying I‟m ready to go, I‟m ready to
go, to go.”19
Louisiana R.S. 14:44.1 defines second degree kidnapping as follows:
A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
(5) Imprisoned or kidnapped when the offender is 18 Statement titled “Interview of Lamondre Tucker (after autopsy)” at p. 8. 19 Id. at 10.
20
armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.
Not enumerated among those elements is a requirement that a victim express a
desire to leave. Furthermore, the words “enticing” and “persuading” in the statute
suggest that defendant‟s view of how the offense may be committed is too narrow.
See, e.g., State v. Lee, 02-1793, p. 32 (La. App. 4 Cir. 4/2/03), 844 So.2d 970,
99120 (finding sufficient that a kidnapper lured the victim into his vehicle under the
pretext of arranging for prostitution).
Defendant also argues that La. R.S. 14:44.1(A)(5) infringes on the
constitutional right to keep and bear arms. He notes that the Louisiana Constitution
was amended to require strict scrutiny to be applied to any restriction on this
right.21 Defendant alleges that the victim voluntarily accompanied him not
knowing that he was carrying a firearm. According to defendant, his commission
of a second degree kidnapping while carrying a firearm (La. R.S. 14:44.1(A)(5))
cannot be used to elevate the grade of murder to first degree because he cannot
become eligible for the death penalty by engaging in a constitutionally protected
activity. Defendant argues this statute is not sufficiently narrowly tailored if it
encompasses constitutionally protected acts. Because the jury utilized his
constitutionally protected right to keep and bear arms as an aggravating factor, 20 Writ denied, 03-1247 (La. 10/10/03), 855 So.2d 330. 21 La. Const. art. I, § 11 provides, “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.”
21
defendant maintains the death sentence must vacated and the conviction reduced to
second degree murder.
As an initial matter, defendant‟s assertion that the victim accompanied him
unaware that he was carrying a firearm is contradicted by his own statements to
police. According to defendant, the victim expressed fear of the wooded location,
asked if defendant was also afraid, and he responded “That what we got a gun
for.”22 Regardless, defendant became eligible for capital punishment when the jury
found him guilty of intentionally killing a human being while he was engaged in
the perpetration of a second degree kidnapping. Notably, “the right to keep and
bear arms is not „a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.‟” McDonald v. City of Chicago, 561 U.S.
742, 786, 130 S.Ct. 3020, 3047, 177 L.Ed.2d 894 (2010) (quoting District of
Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 2816, 171 L.Ed.2d 637
(2008)).23 Thus, the U.S. Supreme Court has indicated that “the Second
Amendment protects a personal right to keep and bear arms for lawful purposes”.
Id., 561 U.S. at 781, 130 S.Ct. at 3044 (emphasis added); see also United States v.
Greeno, 679 F.3d 510, 520 (6th Cir. 2012) (“[T]he historical understanding of the
right to keep and bear arms . . . did not extend to possession of weapons for
unlawful purposes. To hold the contrary would suggest that the Second
Amendment protects an individual‟s right to possess a weapon for criminal
22 Statement titled “Lamondre Tucker (40 minutes)” at p. 3; see also Statement titled “Tucker Crime Scene (4 1/2 minutes)” at p. 1 (“But I said—she like, „Y‟all gonna be scared to come back here?‟ I said, „Huh-uh, that‟s what we got a gun for, like that there.‟”). In another version, defendant said “Okay, I had the gun or whatever you know what I‟m saying. And then she asked was like why got the gun. I said just, really I just got it.” Statement titled “Interview of Lamondre Tucker (random)” at pp. 1-2. 23 In addition, the right to keep and bear arms is not absolute. See, e.g., State v. Eberhardt, 132306, pp. 9-12 (La. 7/1/14), 145 So.3d 377, 383-85 (concluding that R.S. 14:95.1, prohibiting possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies, “serves a compelling governmental interest that has long been jurisprudentially recognized and is grounded in the legislature‟s intent to protect the safety of the general public from felons convicted of specified serious crimes, who have demonstrated a dangerous disregard for the law and the safety of others”).
22
purposes.”). Defendant here was engaged in the unlawful act of kidnapping. He
has no constitutional right to use a firearm to facilitate his commission of the
crime. Therefore, the application of strict scrutiny mandated by La. Const. art. I, §
11 does not benefit the defendant who was engaged in criminal behavior.
In sum, the evidence overwhelmingly proved defendant committed the crime
of second degree kidnapping when he enticed/persuaded Tavia Sills to accompany
him from one place to another and into the woods, for purposes of facilitating the
commission of another felony (her murder) by means of the firearm in his
possession, thereby causing her physical harm (death). Given the jury found this
aggravating circumstance proved beyond a reasonable doubt in the penalty phase,
and considering Louisiana duplicates aggravating circumstances in both phases of
a capital trial, this Court can assume that jurors also found second degree
kidnapping in the guilt phase as an independent basis for returning a general
verdict of guilty as charged. See State v. Wright, 01-0322, p. 15 (La. 11/22/02),
834 So.2d 974, 987 (“[I]n this case, the Court can ascertain the grounds upon
which the jury convicted defendant of first degree murder given that jurors
unanimously found both of the two aggravating factors at sentencing [aggravated
or forcible rape; age of the victim] which the state relied upon during the guilt
phase of trial. Therefore, the jurors most assuredly relied on the victim‟s age when
it found defendant guilty of first degree murder. . . . That being the case, the state‟s
failure to present constitutionally sufficient evidence that the victim was killed
during the course of an aggravated or attempted aggravated rape does not warrant
reversal of the conviction.”) (distinguishing Stromberg v. California, 283 U.S. 359,
51 S.Ct. 532, 75 L.Ed. 1117 (1931).24 Thus, any failure by the state to prove
24 Stromberg involved the prosecution and conviction of a summer camp counsellor, an avowed communist, under a California statute that prohibited the display of a red flag (of the sort defendant raised every day in the course of pledging allegiance to the workers of the world) as (1) a sign of opposition to organized government, or (2) as an invitation to anarchistic action, or
23
defendant killed Tavia Sills with the specific intent of killing more than one
“person” would not in any event require reversal of the conviction.
Pre-trial Claims
Motion to suppress
Defendant contends that his statements were not knowingly and voluntarily
made because officers exploited his immaturity and unfamiliarity with police
methods, and they had promised the charge would be reduced to manslaughter and
his mother‟s impounded car would be returned to her if he confessed. Therefore,
defendant contends the trial court erred in denying both his motion to suppress his
statements and motion for new trial on this basis without conducting an evidentiary
hearing.
If a statement is a product of custodial interrogation, the state must show that
the person was advised before questioning of his right to remain silent; that any
statement he makes may be used against him; and, that he has a right to counsel,
either retained or appointed. Miranda v. Arizona, 348 U.S. 436, 444, 86 S.Ct. 1602,
1612 (1966). The state bears a “„heavy burden . . . to demonstrate that the
defendant knowingly and intelligently waived his privilege against self
incrimination and his right to retained or appointed counsel,‟” State v. Green, 94
0887, p. 10, 655 So.2d 272, 280 (La. 5/22/95) (quoting Tague v. Louisiana, 444
(3) as an aid to seditious propaganda. Jurors returned a general verdict of guilt under a trial court instruction that emphasized the use of disjunctive “or” in the statute and thereby permitted them to find defendant guilty of any of the three ways in which the statute could be violated. In reversing the defendant‟s conviction, the Supreme Court readily found that clauses (2) and (3) of the statute passed constitutional muster but that the first clause ran afoul of the First Amendment and was therefore unconstitutional. To the extent that the trial court‟s general charged permitted a verdict of guilt based solely on this constitutionally invalid ground, and unable to determine what jurors actually found in returning their general verdict, the Supreme Court set aside the defendant‟s conviction and sentence. Wright distinguished Stromberg not only on grounds that the Court could determine what jurors found when they returned their general verdict of guilty as charged but also on grounds that the aggravating circumstance that the state failed to prove was not, in any event, unconstitutionally invalid. Similarly, in the present case, the Court can determine the bases upon which jurors returned their general verdict at the guilty stage and defendant makes no argument here, beyond a purely statutory claim, that the Eighth Amendment prohibits a state from punishing the murder of a pregnant woman as a capital offense.
24
U.S. 469, 470, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980)). Nevertheless, appellate
courts do not review the record de novo but must defer to the finding of the trial
judge “unless his finding is not adequately supported by reliable evidence.” Green,
94-0887 at p. 11, 655 So.2d at 281. A trial court is accorded that deference
“because the evaluation of witness credibility often plays such a large part in the
context of a motion to suppress a confession.” Id.
The record contains a waiver of rights form signed by defendant. Two
officers testified at the suppression hearing that defendant was repeatedly
Mirandized and waived his rights. The recorded interviews with defendant
captured two instances of the advisement and waiver of his rights.25 At no point in
the recorded interviews does defendant exercise his right to remain silent or ask for
counsel.26 Although defendant testified at the suppression hearing that he did not
remember being Mirandized or signing the waiver, he recognized his signature on
the waiver form and he conceded that he could have been Mirandized but had
forgotten it. Defendant‟s mother testified she had advised her son to ask for a
lawyer, but did not know whether he had done so. The only evidence in the record
supporting defendant‟s allegation that he requested counsel is his own testimony at
the suppression hearing that he requested a lawyer during his third or fourth
interview before accompanying Detective Demery to the drainage canal to locate
the discarded the pistol. The trial court‟s decision to credit the testimony of the
officers is well supported by the record.
25 Interview titled “Interview of Lamondre Tucker (after autopsy) at pp. 1-3; Interview titled “Lamondre Tucker (40 minutes)” at pp. 1-2. 26 Defendant‟s only reference to counsel appears in his statement titled “Tells Tucker Recorder is off” at p. 25, in which he indicates that his auntie recommended he get a lawyer before he accompanied Detective Demery to the police station (“I ain‟t—I‟m not—I ain‟t scared. The only—like I say, the only thing I was scared of—I ain‟t scared of most of this shit or worried about it. Cause like after today, you know what I‟m saying, my supposedly auntie came up there talking about „You need to get you a lawyer.‟ I say, „For what?‟ She told, „Cause there‟s people coming after you.‟ I said, „Why is that?‟ She said, „Well, I don‟t know. That‟s what I just heard.‟ And I was like it ain‟t making no sense. Cause then you turn around and ask me can I walk to your car.”).
25
Defendant, however, claims his statements were the result of promises or
inducements.27 When claims of police misconduct are raised, the state must
specifically rebut the allegations. State v. Vessell, 450 So.2d 938, 942-43 (La.
1984). When deciding whether a statement is knowing and voluntary, a court
considers the totality of circumstances under which it is made, and any inducement
is merely one factor in the analysis. State v. Lavalais, 95-0320, p. 6 (La. 11/25/96),
685 So.2d 1048, 1053; State v. Lewis, 539 So.2d 1199, 1205 (La. 1989).28 Here,
defendant alleges he was promised that the charge would be reduced to
manslaughter and his mother‟s impounded car returned to her if he confessed to an
accidental shooting. The totality of the recorded interviews, however, suggests
otherwise. Detective Demery did, in fact, advise defendant about the distinction
between manslaughter and murder, and did repeatedly exhort defendant to tell the
truth and admit if he did, in fact, kill the victim accidentally. The detective did not,
however, promise that the charge would be reduced. The detective indicated that
he would like to believe the shooting was accidental, he did not wish to believe
defendant was a murderer, and he told defendant that lying made him look worse
both in the eyes of the law and to the community, and in particular to the mother of
his three-year-old son.29 The detective warned defendant that physical evidence
would ultimately reveal what happened and he repeatedly urged defendant to tell
the truth, whatever it may be. He repeatedly assured defendant that if the crime 27 It is well settled that a confession obtained by any direct or implied promises or by exertion of improper influence are involuntary and inadmissible as a matter of constitutional law. Hutto v. Ross, 429 U.S. 28, 29-30, 97 S.Ct. 202, 203-04, 50 L.Ed.2d 194 (1976). Louisiana R.S. 15:451 also prohibits the use of inducements or promises to secure a confession. 28 The question in each case is generally, under the particular facts and circumstances, whether the defendant‟s will was overborne at the time he confessed. Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948 (1954); Watts v. Indiana, 338 U.S. 49, 52, 53, 69 S.Ct. 1347, 1348, 1349, 93 L.Ed. 1801 (1949); Chambers v. Florida, 309 U.S. 227, 237-39, 60 S.Ct. 472, 477-78, 84 L.Ed. 716 (1940). 29 The detective warned defendant that if he went to prison as a cold-blooded murderer he would jeopardize his relationship with the mother of his three-year-old son. Appellate courts have routinely held that “confessions given in response to exhortations to consider the health, wellbeing and liberty of close relatives are admissible.” State v. Massey, 535 So.2d 1135, 1141, (La. App. 2 Cir. 1988) (citing State v. Baylis, 388 So.2d 713, 716 (La. 1980)); State v. Weinberg, 364 So.2d 964, 970 (La. 1978).
26
was, in fact, an accidental shooting, then it would be treated as such.30 Detective
Demery‟s only reference to defendant‟s mother‟s car appeared in the context of
asking defendant to save everyone the necessity of an extensive investigation.31 It
was not a promise to return the car in exchange for a confession.
Defendant argues that, even if the detective‟s statements did not amount to
promises, his immaturity and low intellectual functioning would have caused him
to interpret them as such. In support, he offers the opinion of psychologist Dr.
Mark Vigen, obtained on March 11, 2011, in anticipation of the penalty phase.
According to Dr. Vigen, the 18-year-old defendant is a “pseudo adult” who lives
and acts like an adult but thinks like a child.32 The defense did not subject Dr.
Vigen‟s expert opinion to adversarial testing by calling him to testify at the penalty
phase but rather attached his report to a post-verdict motion.33 As is noted below in
the context of defendant‟s claim that his immaturity and low intellectual 30 Courts have held that a mild exhortation to tell the truth, or a remark that if the defendant cooperates the officer will “do what he can” or “things will go easier,” will not negate the voluntary nature of a confession. State v. Petterway, 403 So.2d 1157, 1159-60 (La. 1981); State v. Magee, 93-0643 (La. App. 3 Cir. 10/5/94), 643 So.2d 497; State v. English, 582 So.2d 1358, 1364 (La. App. 2 Cir.), writ denied, 584 So.2d 1172 (1991). Even informing a defendant that others (district attorney, judge, etc.), will be advised of any cooperation is not sufficient inducement to overcome the free and voluntary nature of a confession. State v. Vernon, 385 So.2d 200, 204 (La. 1980). Notably, in State v. Lavalais, 95-0320 at 7, 685 So.2d at 1053, this Court held that an officer‟s comments to the defendant that he would likely receive more favorable treatment if he confessed as opposed to failing a polygraph examination did not constitute inducements rendering the subsequent confession involuntary. 31 See Statement titled “Tells Tucker Recorder is off” at pp. 32-33. 32 R.6 at 1317. 33 In reviewing the trial court‟s ruling on a defendant‟s motion to suppress, this Court has stated that it will look to the totality of the evidence presented at the motion to suppress hearing and the trial. State v. Burkhalter, 428 So.2d 449, 455 (La. 1983); State v. West, 408 So.2d 1302, 1308 (La. 1982) (“Although the state put on no evidence at the hearing on the motion to suppress, we look to the totality of the evidence produced both at that hearing and at trial when we assess whether the state has carried its burden”). However, this Court has noted further that “this jurisprudential rule will only be applied where the defendant has filed a motion to suppress alleging a statement was inadmissible on a specific constitutional ground and later a reviewing court looks to his trial testimony, in addition to the testimony presented at the motion hearing, to determine whether the motion to suppress should have been granted on those grounds.” State v. Montejo, 06-1807, p. 25 (La. 5/11/10), 40 So.3d 952, 969. Thus, “[t]he jurisprudential rule is not applied where the grounds for suppression were not asserted in the motion to suppress.” Id. Just as the Court has “never allowed a defendant to allege facts for the first time in trial testimony which would support a new argument for suppression of evidence”, id., 06-1807 at 25, 40 So.3d at 969-70, defendant may not allege a new basis for suppressing his statements for the first time in a motion for new trial supported by evidence he did not present earlier, in the absence of a showing of new and material evidence not discovered before despite the exercise of reasonable diligence, La. C.Cr.P. art. 851(3). Here, defendant has not shown reasonable diligence.
27
functioning render him ineligible for the death penalty, Dr. Vigen determined that
defendant has a full scale IQ of 74. Nonetheless, although defendant was required
to repeat his senior year of high school because he failed American History, he did
complete the other years of school. His school records indicate that his grades
varied widely, ranging from As to Fs, with a final GPA of 2.02. During the police
interview defendant indicated that he could read and write and demonstrated no
confusion. Defendant‟s football coach described him as a “thinking” player. For
comparison, see State v. Green, 94-0887, pp. 7-19 (La. 5/22/95), 655 So.2d 272,
278-84 (mildly intellectually disabled defendant‟s waiver of rights was knowing
and intelligent, even though psychologist testified defendant was unable to
comprehend his rights; psychologist also testified defendant was educable and
could be made to understand rights, police officers testified defendant understood
his rights in part because of his prior criminal history); State v. Istre, 407 So.2d
1183, 1186-87 (La. 1981) (19-year-old who had I.Q. of 68 and who did not know
his own age intelligently waived rights, which were explained in simplistic terms
that he apparently understood); see also State v. Brown, 414 So.2d 689, 696 (La.
1982) (“„[M]oderate mental retardation and low intelligence or illiteracy do not of
themselves vitiate the ability to knowingly and intelligently waive constitutional
rights and make a free and voluntary confession.‟”) (citations omitted); but see
State v. Anderson, 379 So.2d 735, 736 (La. 1980) (fact that defendant was an
illiterate, unemployed 17-year-old with the mental age of 8 and an I.Q. of between
50 and 69, coupled with ambivalent police testimony about whether he ever
understood the rights they attempted to explain to him, supported a conclusion that
he was incapable of understanding his rights or the ramifications of foregoing
them; hence, there was no knowing, intelligent waiver).
Most significant, Detective Demery allowed the adult defendant to speak
28
with his mother twice during the interviews. Defendant‟s mother testified that she
waited only 10 minutes at the police station before being allowed to see her son.
She said she met with him privately for 10-20 minutes. Defendant also testified at
the suppression hearing that he was permitted to meet with his mother at his
request. The recorded statements show that the detective acceded to defendant‟s
request to speak with his mother on the phone when he was interviewed the next
day at jail. The state sufficiently rebutted defendant‟s allegations of police
misconduct and the totality of the circumstances supports the trial court‟s
determination that defendant made a knowing, intelligent, and voluntary waiver of
his rights.
Voir Dire Claims
Biased and Non-representative Jury
Defendant contends that the death qualification process produces a biased
jury that does not represent a fair cross section of the community but instead
systematically excludes African Americans. Defendant alleges death qualification
excluded 51.3% of African Americans while excluding only 20% of non-African
Americans. Defendant also alleges death qualified juries are more prone to convict.
Defendant argues separate guilty and penalty phase juries should have been used
so that the jury that considered his guilt could better reflect the community.34
Defendant also argues that the use of a death qualified jury violates the Eight
Amendment because it gives no opportunity for the evolving standards of decency
of the community to be reflected in jury verdicts.35 Defendant contends the trial
34 The First Circuit has determined that bifurcated juries in capital trials are not authorized in federal law. See United States v. Green, 407 F.3d 434 (1st Cir. 2005), cert. denied, 546 U.S. 962, 126 S.Ct. 497, 163 L.Ed.2d 365 (2005); see also Federal Death Penalty—Bifurcated Trials— First Circuit Holds that Judges may not Impanel Separate Juries for Guilt and Penalty Phases in Capital Cases, 119 Harv. L. Rev. 654 (2005). 35 This view is advocated for by Susan Raeker-Jordan, A Pro-Death, Self-Fulfilling Constitutional Construct: The Supreme Court’s Evolving Standard of Decency for the Death Penalty, 23 Hastings Const. L.Q. 455, 537-46 (1996). The Supreme Court of California rejected it in People v. Taylor, 48 Cal.4th 574, 603-04, 108 Cal.Rptr.3d 87, 121-22, 229 P.3d 12, 41
29
court erred in denying his motion for new trial on this basis without conducting an
evidentiary hearing.
Louisiana C.Cr.P. art. 798, governing causes for challenge by the state, was
drafted to conform to the constitutional requirements set forth in Witherspoon v.
Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d. 776 (1968) (holding that a
prospective juror who would vote automatically for a life sentence is properly
excluded). See also Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83
L.Ed.2d 841 (1985). In Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90
L.Ed.2d 137 (1986), the U. S. Supreme Court held that the Constitution does not
prohibit excluding potential jurors under Witherspoon or that “death qualification”
resulted in a more conviction-prone jury. Likewise, this Court has repeatedly
rejected the claim that the Witherspoon qualification process results in a death
prone jury. State v. Robertson, 97-0177, pp. 19-20 (La. 3/4/98), 712 So.2d 8, 25
26; State v. Sullivan, 596 So.2d 177, 186-87 (La. 1992); State v. Lindsey, 543
So.2d 886, 896 (La. 1989); State v. Brown, 514 So.2d 99, 103-04 (La. 1987); State
v. Bates, 495 So.2d 1262, 1272 (La. 1986); State v. Ford, 489 So.2d 1250, 1259
(La. 1986); State v. Ward, 483 So.2d 578, 582-83 (La. 1986); State v. Jones, 474
So.2d 919, 927 (La. 1985); State v. James, 431 So.2d 399, 402 (La. 1983).
During voir dire, defense counsel objected that the death qualification
process was working to disproportionately remove African-Americans from the
(2010) (citations omitted):
We likewise find flawed the premise underlying defendant‟s assertion that death qualification, by eliminating the segment of the community that opposes the death penalty, skews the data courts typically rely on to determine “evolving standards of decency” for Eighth Amendment purposes. Through the death qualification process, individuals may be excused not only for their unyielding opposition to capital punishment but also for their intractable support of it. We reject defendant‟s contention that death qualification is irrational because it disqualifies individuals based on their moral beliefs when the penalty phase determination is “„inherently moral and normative.‟” Disqualified jurors are properly excused for cause, not on the basis of their personal, moral beliefs regarding the death penalty, but because of their inability to “temporarily set aside their own beliefs in deference to the rule of law.”
30
jury. In McCree, 476 U.S. at 165, 106 S.Ct. at 1760, the Supreme Court held that
the Constitution does not “prohibit the removal for cause, prior to the guilt phase of
a bifurcated capital trial, of prospective jurors whose opposition to the death
penalty is so strong that it would prevent or substantially impair the performance of
their duties as jurors at the sentencing phase of the trial.” In particular, the Court
rejected McCree‟s contention that “death qualification” prior to the guilt phase of
the trial violated his right under the Sixth and Fourteenth Amendments to an
impartial jury selected from a representative cross section of the community. Id.,
476 U.S. at 184, 106 S.Ct. at 1770. The Supreme Court explained that the fair cross
section requirement applies only to venires, not to petit juries. Id., 476 U.S. at 173,
106 S.Ct. at 1765. Accordingly, petit juries do not have to “reflect the composition
of the community at large.” Id. More importantly, it was pointed out that, even if
this requirement were applied to petit juries, no fair cross section violation would
be established when “Witherspoon-excludables” were dismissed from a petit jury,
because they do not constitute a distinctive group for fair cross section purposes.
Id., 476 U.S. at 174, 106 S.Ct. at 1765. In Buchanan v. Kentucky, 483 U.S. 402,
107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the Court reiterated those views and then
indicated “[g]iven this conclusion, there is no reason to address petitioner‟s
description of the result of the „death qualification‟—the race, sex, political party,
and age composition of the jury in his case.” Buchanan, 483 U.S. at 416 n.17, 107
S.Ct. at 2914 n.17.
Defendant conceded during voir dire that the state was not acting from racial
animus or intentionally using the death-qualification process as a proxy for race,
rather it was the death-qualification process itself that was flawed. Approximately
94% of the state‟s cause challenges during death qualification were granted. In
contrast, 50% of the defense‟s cause challenges were granted during death
31
qualification. However, the defense only objected to five of the state‟s 35 cause
challenges. Of those five, the defense made no effort to question these prospective
jurors further36 to determine whether they could not and would not
“conscientiously obey the law” or rather they merely “firmly believe[d] that the
death penalty is unjust [but] may nevertheless serve as jurors in capital cases so
long as they state clearly that they are willing to temporarily set aside their own
beliefs in deference to the rule of law”,37 as defendant characterized them for the
first time in his motion for new trial. In contrast, when the defense challenged
prospective jurors for cause on the basis that they were unable to consider a life
sentence as required by law, the state attempted to instruct those prospective jurors
on the law, the necessity of considering both penalties as well as all aggravating
and mitigated circumstances, and then questioned them on their ability and
willingness to do so.38 This claim is without merit.
Denial of Cause Challenge
Defendant claims the trial court failed to exclude jurors whose responses
revealed they were unable to give meaningful consideration to a life sentence.
Defendant identifies eight prospective jurors who defendant claims should have
been removed for cause: John Forehand; Robert Litton; Alvin Coco; Robert
Rogers; Clarence Hicks; Joy Birch; Patricia Johnson; and Anita Spencer.
“[A] challenge for cause should be granted, even when a prospective juror
declares his ability to remain impartial, if the juror‟s responses as a whole reveal
facts from which bias, prejudice or inability to render judgment according to law
may be reasonably implied.” State v. Hallal, 557 So.2d 1388, 1389-90 (La. 1990).
36 For example, defense counsel declined the opportunity to question prospective juror Richard Clark further but rather insisted that the state‟s cause challenge simply be denied based on the disproportionate effect of death qualification. R.14 at 3050. The trial court later indicated that both the state and the defense had the same opportunity for individual voir dire on these concerns. R.15 at 3241. 37 McCree, 476 U.S. at 176, 106 S.Ct. at 1766. 38 See, e.g., R.13 at 2839, 2850, 2885,
32
Prejudice is presumed when a challenge for cause is denied erroneously by a trial
court and the defendant ultimately exhausts his peremptory challenges.39 State v.
Robertson, 92-2660 at 3-4, 630 So.2d at 1280; State v. Ross, 623 So.2d 643, 644
(La. 1993). A trial court is vested with broad discretion in ruling on challenges for
cause and its rulings will be reversed only when a review of the voir dire record as
a whole reveals an abuse of discretion. State v. Cross, 93-1189, pp. 6-7 (La.
6/30/95), 658 So.2d 683, 686-87; State v. Robertson, 92-2660 at 4, 630 So.2d at
1280.
A review of the voir dire record as a whole reveals no abuse of discretion.
John Forehand
John Forehand initially indicated that he would not consider a life sentence
for one who intentionally kills more than one person. However, after the pertinent
law was explained to him, he indicated that he could consider a life sentence for
one who intentionally kills more than one person and he would consider all
mitigating circumstances. With further questioning, it became apparent that Mr.
Forehand had initially misinterpreted the question as a request to commit to vote
for a life sentence rather than to consider it as one of two possible penalties.
Juror Robert Litton
Robert Litton stated that he believed the death penalty was appropriate for
intentional and violent murders but he also said that he could consider either
penalty depending on the circumstances. He believed a life sentence was more
39 Even in capital cases, the defendant must use one of his remaining peremptory challenges to remove the juror on his way to ultimately exhausting his challenges to preserve review of the trial court‟s denial of a cause challenge. See, e.g., State v. Campbell, 06-0286, p. 71 (La. 5/21/08), 983 So.2d 810, 856 (“[A]n erroneous ruling on a challenge for cause which does not deprive a defendant of one of his peremptory challenges does not provide grounds for reversing his conviction and sentence. A defendant thus must use one of his remaining peremptory challenges curatively to remove the juror or waive the complaint on appeal, even in a case in which he ultimately exhausts his peremptory challenges.”). The record in the present case does not clearly indicate which party exercised each peremptory challenge. Nonetheless, the record does contain the statement that the defense was exercising its last peremptory challenge. See R.15 at 3406-07. Furthermore, defendant alleges, and the state concedes, see state‟s brief at p. 46, that the defense exhausted its full allotment of peremptory challenges.
33
suitable for an accidental killing and death more suitable for intentional killings,
and he initially indicated he would not consider a life sentence for one who
intentionally kills more than one person or kills while committing a kidnapping.
He initially stated that the only mitigating circumstance he would consider is
insanity. After he was repeatedly instructed that the law required him to consider
both penalties and all mitigating circumstances, he ultimately acquiesced that he
would be able to follow the law as instructed.
Alvin Coco
Alvin Coco initially stated that he supported the death penalty but could
consider both sentencing options. He believed the death penalty was appropriate
for planned murders but he would not vote for it automatically. He initially stated
that he would not consider a life sentence for one who intentionally kills more than
one person or while committing a kidnapping. He also initially indicated that the
only mitigating circumstance he would find significant is if one were only a
principal to the offense. After being repeatedly instructed on the pertinent law, he
ultimately indicated that he could consider either penalty and all mitigating
circumstances.
Robert Rogers
Robert Rogers initially stated that he “probably could” consider a life
sentence for one who intentionally kills but he was unsure whether he could
consider a life sentence for one who kills while committing a kidnapping and he
said he probably could not consider a life sentence for one who intentionally kills a
pregnant woman. When asked if that meant he would automatically vote for death
for one who murders a pregnant women, he responded no and he clarified that he
only meant he would not have a problem with voting for death under those
circumstances.
34
Clarence Hicks
Clarence Hicks initially stated that it would be “very difficult” not to return a
death verdict for one who intentionally killed more than one person but he also
stated that he could return a life verdict. He clarified that he leaned toward a death
verdict for a multiple murderer but that he could consider both sentencing options
depending on the circumstances.
Joy Birch
Joy Birch initially stated that she could consider either penalty, she
emphasized the gravity of the decision, and she indicated that she would not
automatically vote for either penalty. She indicated that she leaned toward the
death penalty for someone who intentionally kills a woman he knew was pregnant
but she would consider both penalties and it would depend on the circumstances of
the offense. She insisted that she could be fair and open-minded and that she could
consider a life sentence for one who killed a pregnant woman.
Patricia Johnson
Patricia Johnson initially stated that she could consider a life sentence but
she also stated that, for first degree murder, she was “more likely” to vote in favor
of death. She revealed that her friend was murdered in 1996 and she expressed
concern for her ability to be fair and impartial because of that experience.
However, she ultimately concluded that she could keep that experience from
unduly influencing her decision-making and she would decide the present case
solely on the evidence presented at this trial.
Anita Spencer
Anita Spencer stated that she supported the death penalty but could vote for
either a life or death sentence. She believed a death sentence is appropriate for a
senseless murder. She initially indicated that she would not consider a life
35
sentence for one who kills more than one person and the only mitigating
circumstance she would consider is insanity. After being instructed on the
pertinent law, she said that she was confused when she answered earlier but now
that she understood the law she could consider both sentencing options.
After reviewing the questions asked these jurors and their responses in their
context, the prospective jurors, in varying degrees,40 favored the death penalty as a
general principle but when instructed on the governing law indicated they could
adhere to it. Some showed some initial confusion as to what was being asked,
which was clarified by further instruction on the law. The defense inquired into
their feelings divorced from the context of the legal framework in which they
would operate.41 But when fully informed of their obligations if selected, the
prospective jurors all indicated their ability and willingness to consider both
sentencing options and all mitigating circumstances as instructed. “[E]ven when a
prospective juror declares his ability to remain impartial, if the juror‟s responses as
a whole reveal facts from which bias, prejudice or inability to render judgment
according to law may be reasonably [inferred].” State v. Jones, 474 So.2d 919, 929
(La. 1985). Yet a refusal to disqualify a prospective juror on grounds he is biased
does not constitute reversible error or an abuse of discretion if, after further
examination or rehabilitation, the juror demonstrates a willingness and ability to
decide the case fairly according to the law and evidence. State v. Howard, 98
0064, pp. 7-10 (La. 4/23/99), 751 So.2d 783, 795-97. A review of the full transcript
indicates that the state successfully rehabilitated these eight prospective jurors and
40 The defense asked all prospective jurors to rate their views on a scale of 1 to 7, in which 1 represented always favoring a death sentence, 4 was neutral, and 7 represented always favoring a life sentence. These prospective rated themselves as follows: John Forehand (4), Robert Litton (2), Alvin Coco (4), Robert Rogers (4), Clarence Hicks (4.5), Joy Birch (4), Patricia Johnson (2.5), and Anita Spencer (2). Notably, none rated themselves a 1 on the defense‟s scale and several were neutral. 41 Defense counsel in fact conceded that counsel was “not asking of you what the law is . . . [w]hat we‟re talking about now is your feelings and how you personally feel”. R.14 at 3020; see also R.14 at 3019 (“I‟m not asking what the law is.”).
36
their responses as a whole demonstrate a willingness and ability to decide the case
fairly according to the law and evidence. Defendant‟s claim is without merit.
Guilt Phase Claims
Right to Counsel
Defendant contends he was denied his right to counsel, who labored under
an actual conflict of interest and should have been allowed to withdraw after
informing the court about the efforts of defendant and his mother to coach a
prospective juror Latisha Griffin, who was opposed to the death penalty, about
what to say during death qualification so that she would not be removed for cause.
Defendant argues defense counsel, after they became potential witnesses to jury
tampering, were unable to communicate with him (or his mother) freely and could
not fully advocate for him after the conflict arose. For example, defendant alleges
counsel stopped sharing information about prospective jurors and jury selection
strategy and potential witnesses and what questions they might be asked for fear of
being accused of facilitating jury and witness tampering. Defendant complains that
counsel did not cross-examine 18 of 24 witnesses, cross-examined the remaining
witnesses for the state only briefly, rested without calling any witnesses for the
defense, and conceded during closing remarks that defendant was guilty of second
degree murder and feticide. Finally, defendant alleges he was not informed that
counsel would concede in his closing remarks that defendant was guilty of second
degree murder and feticide, and he did not wish counsel to do so.
Every defendant is entitled to “representation that is free from conflicts of
interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d
220 (1981). An actual, as opposed to a potential, conflict of interest exists “when,
during the course of the representation, the attorney‟s and defendant‟s interests
„diverge with respect to a material factual or legal issue or to a course of action.‟”
37
Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993) (quoting Cuyler v. Sullivan, 446
U.S. 335, 356 n.3, 100 S.Ct. 1708, 1722 n.3, 64 L.Ed.2d 333 (1980)), cert. denied,
511 U.S. 1022, 114 S.Ct. 1407, 128 L.Ed.2d 79 (1994). In Mickens v. Taylor, 535
U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), the U.S. Supreme Court further
clarified the meaning of “actual conflict” for the purposes of the Sixth Amendment
when the claim is raised for the first time in a post-verdict context. Under Mickens,
a conflict that deprives a defendant of his constitutional right to the effective
assistance of counsel is “precisely a conflict that affected counsel’s performance −
as opposed to a mere theoretical division of loyalties.” Mickens, 535 U.S. at 171,
122 S.Ct. at 1243 (emphasis in original). The court stated that “defects in
assistance [of counsel] that have no probable effect upon the trial‟s outcome do not
establish a constitutional violation.” Id., 535 U.S. at 166, 122 S.Ct. at 1240.
Although a defendant generally is required to demonstrate prejudice to
prevail on a claim of ineffective assistance of counsel, Strickland v. Washington,
466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), prejudice is
presumed when counsel is burdened by an actual conflict of interest. Id. at 692,
104 S.Ct. at 2067; United States v. Iorizzo, 786 F.2d 52, 58 (2d Cir. 1986). This
presumption is “fairly rigid.” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.
Moreover, “once the defendant establishes that there was an actual conflict, he
need not prove prejudice, but simply that a „lapse in representation‟ resulted from
the conflict.” Iorizzo, 786 F.2d at 58 (quoting Cuyler, 446 U.S. at 349, 100 S.Ct. at
1718). To prove a lapse in representation, a defendant must “demonstrate that
some „plausible alternative defense strategy or tactic might have been pursued,‟
and that the „alternative defense was inherently in conflict with or not undertaken
due to the attorney's other loyalties or interests.‟” United States v. Levy, 25 F.3d
146, 157 (2d Cir. 1994) (quoting Winkler, 7 F.3d at 309).
38
Courts generally disqualify trial counsel pretrial if it appears counsel will or
should be called as a witness at trial. See, e.g., United States v. Kwang Fu Peng,
766 F.2d 82, 86 (2d Cir. 1985); see also United States v. Locascio, 6 F.3d 924, 933
(2d Cir. 1993) (noting that “[e]ven if the attorney is not called, however, he can
still be disqualified, since his performance as an advocate can be impaired by his
relationship to the events in question”). Here, however, defense counsel had no
relationship to the offense for which defendant was on trial. There appeared to be
no necessity for counsel to be called as a witness in the present trial42 after the state
advised that they would not use this incident in its case-in-chief. Furthermore,
defendant has not alleged that defense counsel was involved in any way in the jury
tampering. Thus, the conflict here is speculative rather than actual.
In Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1985), the
Supreme Court determined that the Sixth Amendment right to assistance of counsel
is not violated when an attorney refuses to cooperate with defendant in presenting
perjured testimony at trial. Whiteside sought a new trial on the basis that defense
counsel warned him before trial not to falsely testify that he saw “something
metallic” in the victim‟s hands to bolster his claim of self-defense, and counsel
threatened to inform the court if Whiteside committed perjury. Whiteside, 475 U.S.
at 161-62, 106 S.Ct. at 991-92. The Supreme Court found that counsel‟s “conduct
fell within the wide range of professional responses to threatened client perjury
acceptable under the Sixth Amendment.” Id., 475 U.S. at 166, 106 S.Ct. at 994.
The court noted that counsel‟s obligation to provide effective assistance “is limited
to legitimate, lawful conduct compatible with the very nature of a trial as a search
for truth” and did not extend to “in any way assisting the client in presenting false
evidence or otherwise violating the law”. Id. Additionally, the court found that 42 Furthermore, according to the state, defense counsel were not even called as witnesses after additional charges were later levied against defendant and his mother arising from this jury tampering incident. State‟s brief at p. 62-63.
39
defense counsel had a “special duty . . . to prevent and disclose frauds upon the
court”. Id., 475 U.S. at 168-69, 106 S.Ct. at 995. Therefore, the Court found that
counsel‟s action did not amount to any “failure to adhere to reasonable
professional standards that would in any sense make out a deprivation of the Sixth
Amendment right to counsel.” Id., 475 U.S. at 171, 106 S.Ct. at 996. The court
further reviewed the record and found it showed “the accused enjoyed continued
representation within the bounds of reasonable professional conduct” and “at most
[Whiteside] was denied the right to have the assistance of counsel in the
presentation of false testimony”. Id., 475 U.S. at 174, 106 S.Ct. at 998.
Similarly, in the present case defense counsel responded ethically to
Tucker‟s attempt at corrupting the judicial process by inserting a “poison pill” into
the jury by committing jury tampering, which, when committed in the context of a
capital trial, is a felony offense punishable by a maximum sentence of 99 years
imprisonment at hard labor. La. R.S. 14:129(B)(2)(a). Counsel acted within the
dictates of Rule 3.3(b) of the Rules of Professional Conduct, which provides: “A
lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent
conduct related to the proceeding shall take reasonable remedial measures,
including, if necessary, disclosure to the tribunal.” Counsel‟s adherence to the rule
did not deprive Tucker his right to the assistance of counsel.
Furthermore, the interests of defendant and defense counsel did not diverge
at all with respect to any fact, legal issue, or course of action. An “actual conflict”
exists only when “the attorney‟s and defendant‟s interest diverge with respect to a
material factual or legal issue or to a course of action.” United States v. Moree,
220 F.3d 65, 69 (2d Cir. 2000) (citation and internal quotations omitted). Although
defense counsel allege they felt obliged to keep certain information from defendant
40
during the remaining voir dire to prevent another jury tampering incident, that
prudent decision does not demonstrate an alternative strategy existed that was in
conflict with or not undertaken due to counsel‟s other loyalties or interests.
Although defendant complains that defense counsel cross-examined only six of the
state‟s witnesses at trial, nothing indicates that this decision was anything other
than strategy or that it was in any way connected to the incident that occurred
during voir dire. Similarly, although defense counsel allege defendant‟s mother
misinterpreted a question asked her in the penalty phase and revealed defendant
was previously arrested for rape, it appears the state likely would have confronted
defendant‟s character witnesses with this fact regardless.
Defendant alleges he did not acquiesce in the decision of defense counsel to
admit guilt of second degree murder and feticide in closing. In Florida v. Nixon,
543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), the U.S. Supreme Court
instructed:
An attorney undoubtedly has a duty to consult with the client regarding “important decisions,” including questions of overarching defense strategy. Strickland, 466 U.S., at 688, 104 S.Ct. 2052. That obligation, however, does not require counsel to obtain the defendant's consent to “every tactical decision.” Taylor v. Illinois, 484 U.S. 400, 417-418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (an attorney has authority to manage most aspects of the defense without obtaining his client's approval). But certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant, this Court affirmed, has “the ultimate authority” to determine “whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C. J., concurring). Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action.
Nixon, 543 U.S. at 187, 125 S.Ct. at 560. The Nixon court distinguished, however,
between the decision to plead guilty and the decision to concede factual guilt at the
close of a trial. Nixon, 543 U.S. at 188-89, 125 S.Ct. at 561. Therefore, the Nixon
41
court found the state court had applied the incorrect legal standard because it had
failed to appreciate the realities of defending against a capital charge:
The Florida Supreme Court‟s erroneous equation of Corin‟s concession strategy to a guilty plea led it to apply the wrong standard in determining whether counsel‟s performance ranked as ineffective assistance. The court first presumed deficient performance, then applied the presumption of prejudice that United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), reserved for situations in which counsel has entirely failed to function as the client‟s advocate. The Florida court therefore did not hold Nixon to the standard prescribed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which would have required Nixon to show that counsel's concession strategy was unreasonable. As Florida Supreme Court Justice Lewis observed, that court‟s majority misunderstood Cronic and failed to attend to the realities of defending against a capital charge. Nixon III, 857 So.2d, at 180-183 (opinion concurring in result).
Nixon, 543 U.S. at 189-90, 125 S.Ct. at 561-62; see also Haynes v. Cain, 298 F.3d
375, 381 (5th Cir. 2002) (commenting that “those courts that have confronted
situations in which defense counsel concedes the defendant‟s guilty for only lesser
included offenses have consistently found these partial concessions to be tactical
decisions, and not a denial of the right to counsel. As such, they have analyzed
them under the two-part Strickland test.”).
In this case, defendant has not presented a claim of ineffective assistance of
counsel under Strickland at this juncture. Thus far, he has shown no per se
violation of the Sixth Amendment resulting from an actual conflict of interest.
Therefore, any potential conflict of interest or associated ineffective assistance of
counsel claims that may arise are deferred for collateral review. 43
Right to Be Present During Rebuttal in Guilt Phase
Defendant, who was removed from court when he became disruptive at the
request of defense counsel, contends he was denied the right to be present during
43 The Nixon court noted that the record in that case established defense counsel attempted to inform his client of the strategy but defendant was “unresponsive”. Nixon, 543 U.S. at 189, 192, 125 S.Ct. at 561, 563. In contrast, defendant here alleges he was never informed by counsel of the intended strategy.
42
the state‟s rebuttal argument in the guilt phase. He argues that his presence at his
capital trial cannot be waived by counsel.
One of the most basic of the rights guaranteed by the Confrontation Clause
is the accused‟s right to be present in the courtroom at every stage of his trial.
Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892).
Nonetheless, defendants who engage in disruptive conduct may be removed from
the courtroom under certain circumstances. See generally Illinois v. Allen, 397 U.S.
337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). As previously mentioned, during the
state‟s rebuttal argument in the guilt phase, defense counsel requested that
defendant be removed to stem his disruptive behavior and counsel clarified that
this was at defendant‟s own request. Defendant disputes that he wished to be
removed and complains that the trial court did not engage in a colloquy to
determine that his request was knowingly and voluntarily made. Regardless,
assuming the trial court erred in not first warning defendant under Illinois v. Allen
or in not inquiring further into the validity of the waiver asserted by defense
counsel, a violation of defendant‟s right to be present at all stages of trial may
constitute harmless error if a reviewing court determines beyond a reasonable
doubt that the error did not influence the verdict. See Rushen v. Spain, 464 U.S.
114, 117-19 & n.2, 104 S.Ct. 453, 455-56, 78 L.Ed.2d 267 (1983). Based upon our
review of the record in this case, we conclude defendant‟s absence during the final
moments of the state‟s rebuttal was harmless.
Penalty Phase Claims
Prosecutorial Misconduct
Defendant complains the state engaged in misconduct when it cross
examined defense witnesses during the penalty phase by assuming facts not in
evidence, misstating what the witnesses said, bullying the witnesses, and alleging
43
prior bad acts by defendant without first providing notice. He alleges the state
fabricated an incident in which he shot a BB gun at his mother‟s abusive boyfriend
and repeatedly questioned witnesses about it.44
Defendant complains the state cross-examined defense witnesses about his
juvenile arrest, his school disciplinary record, his failure to support his son, and his
guilty plea to misdemeanor carnal knowledge for having consensual sex with a 14
year-old when he was 17. Defendant alleges he was arrested at age 11 after he
accidentally shot a 12-year-old neighbor with a BB gun and the state cross
examined several witnesses about this incident despite giving notice to the defense
that the state was not planning to introduce this evidence in its case-in-chief.
Defendant contends witnesses incorrectly recalled that he was 13 years old at the
time of this incident, and argues the prosecutor engaged in misconduct by using
this incorrect information in argument despite the prosecutor‟s knowledge of his
correct age from the police report. Defendant moved for a new trial based on what
he characterized as newly discovered evidence indicating the victim was uninjured
in this incident.45 Defendant argues every school infraction and his struggles as a
young father are not “bad acts” suitable for consideration in the penalty phase of a
capital trial. Defendant also argues the state repeatedly misrepresented the incident
that led to his guilty plea to misdemeanor carnal knowledge as a rape.
Defendant contends that the state‟s cross-examination in all of these areas as
44 Although the testimony about this incident was vague and not necessarily indicative of any misconduct by defendant, there is no basis to conclude the state fabricated it. Defendant‟s mother recalled an incident in which the police were called to her home regarding a report that Chad Lewis had been shot with a BB gun. She denied defendant was the shooter but instead blamed a neighbor. Other witnesses did not recall this incident. After those witnesses indicated they were unfamiliar with the incident, the state ceased further questioning regarding it. Regardless, the defense did not object when the state inquired into this matter on cross. 45 The fact that the victim‟s injury was trivial was presented to the jury through the testimony of defendant‟s mother. The fact that the defense subsequently obtained additional evidence showing the injury was trivial does not satisfy the standard of La. C.Cr.P. art. 851(3), which requires: “New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.”
44
well as on the details of the crime was not responsive to the witness‟s testimony on
direct and outside of the proper scope of cross as well as outside of the witness‟s
personal knowledge. He further contends that, because the state gave no notice
that it would elicit information about his juvenile arrest, his school disciplinary
record, his lack of support of his son, and his prior guilty plea to misdemeanor
carnal knowledge, he was unable to rebut the state‟s misleading and inaccurate
depiction of him during the penalty phase. Thus, defendant argues the trial court
should have conducted an evidentiary hearing on his motion for new trial in which
he could have fully rebutted the state‟s presentation.
At the penalty phase of a capital trial, the character and propensities of the
defendant are at issue. State v. Jackson, 608 So.2d 949 (La. 1992); State v. Brooks,
541 So.2d 801, 808 (La. 1989). As this Court stated in Jackson, 608 So.2d at 953,
“the usual prohibition against the prosecution‟s initiation of the inquiry into
defendant‟s character is simply not applicable in the penalty phase, where the focus
on character is one of the statutory means of channeling the jury‟s sentencing
discretion.” Furthermore, as this Court emphasized in State v. Sepulvado, 93-2692,
p. 10 (La. 4/8/96), 672 So.2d 158, 166, “[c]learly if the defense intends to develop
a certain view of the defendant‟s background, the state should be allowed to elicit
information to contradict these assertions.” Thus, “neither law nor justice permits
a defendant to foist a spurious reputation upon a jury because the State is so limited
in its cross-examination of the character witnesses.” State v. Banks, 307 So.2d
594, 599 (La. 1975).
A review of the record shows that the state‟s cross-examination was an
acceptable response to the assertions of the defense‟s character witnesses. Defense
witnesses testified that defendant planned to attend college on a football
scholarship, he cared for his son and treated him well, he also treated other
45
children well, defendant was only involved in typical teenage problems at school,
he loved animals and football, he was always helpful, he is easy-going with a good
sense of humor, he had been employed caring for horses, he attended Vacation
Bible School, he participated in a youth program called the Buffalo Soldiers, and
he would stand up for children who were being bullied. That defendant was
repeatedly suspended from school, frequently involved in fights, misused a BB
gun, pleaded guilty to misdemeanor carnal knowledge of a juvenile after the victim
reported she was raped, and inadequately supported his son and the mother of his
child, were fair areas of inquiry to allow the state to respond to the depiction of
defendant‟s character and propensities presented by the defense.
Furthermore, the defense did not object to these lines of questioning by the
state during cross-examination. Therefore, any complaint about them is waived.
La. C.Cr.P. art. 841; State v. Wessinger, 98-1234, p. 20 (La. 5/28/99), 736 So.2d
162, 180-81 (reviving the contemporaneous objection rule for the penalty phase as
well as guilt phase of a capital trial). The defense objected to the badgering of a
defense witness Kalen Washington. The transcript clearly evidences the state‟s
frustration with Washington‟s meandering and evasive answers. However, the trial
court did not err in finding the state‟s questioning formed no basis for granting the
drastic remedy of a mistrial. See generally State v. Tribbet, 415 So.2d 182, 186
(La. 1982) (mistrial is drastic remedy and, except when mandatory, is warranted
only when trial error results in substantial prejudice to defendant depriving him of
reasonable expectation of fair trial).
Miscellaneous Claims
Confederate Flag
Defendant complains that he was convicted and sentenced to death in a
courthouse in front of which flew a Confederate flag. Defendant contends the flag
46
and its close association with lynching and slavery intimidates African-American
jurors and predisposes white jurors to impose the death penalty. Defendant alleges
that over half of African-Americans were removed during voir dire based on their
opposition to the death penalty, and defendant argues that the presence of the flag
prompted their views, making it possible to exclude them from the jury.46
According to defendant, the flag was used to systematically remove African
Americans from the jury. He argues the trial court erred in denying his motion for
new trial on this basis without conducting an evidentiary hearing.
This Court faced a similar claim in State v. Dorsey, 10-0216 (La. 9/7/11), 74
So.3d 603. See id., 10-0216 at 46, 74 So.3d at 635 (“[D]efendant contends the
presence of a confederate flag memorial outside of the courthouse in Caddo Parish
injects an arbitrary factor−race−into the capital sentencing decision.”). In Dorsey,
the Court discussed McCleskey v. Kemp, 418 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d
262 (1987) and recognized that to establish a violation of the Equal Protection
Clause, a defendant must prove, as McCleskey underscored, “the existence of
purposeful discrimination,” and “that the purposeful discrimination „had a
discriminatory effect‟ on him.” McCleskey, 481 U.S. at 292, 107 S. Ct. at 1767
(citing Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599
(1967) and Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84
L.Ed.2d 547 (1985)). Discriminatory purpose “implies the decision maker selected
or reaffirmed a particular course of action at least partly because of, not merely in
spite of, its adverse effects on an identifiable group.” Dorsey, 10-0216 at 50, 74
So.3d at 637 (internal quotation marks omitted). Measured against the McClesky
standard, the Court concluded that Dorsey‟s claim of endemic racial discrimination
did not provide any basis for setting aside either his conviction or sentence: 46 As mentioned previously, the defense objected to only five of the state‟s cause challenges and, despite having the opportunity, it made no effort to rehabilitate the prospective jurors challenged by the state for their views on the death penalty.
47
[E]ven conceding Caddo Parish placed the confederate memorial outside the district courthouse at the turn of the century, refurbishing and reaffirming it half a century later with the confederate battle flag, defendant has made no showing the parish currently maintains the memorial because of the adverse effect it would have on the administration of the criminal justice system with respect to black defendants. Defendant also failed to show the memorial creates an environment giving rise to a constitutionally significant and unacceptable risk that one or more of the jurors in his case acted with discriminatory intent in returning his or her verdict, particularly at the sentencing stage of the proceedings on the basis of his color and not on the moral culpability of his acts and his individual character. Dorsey, 10-0216 at 50, 74 So.3d at 638. Defendant here fails to show purposeful
discrimination and the state‟s success in challenging jurors with scruples against
capital punishment is attributable to the strategy chosen by the defense.
Batson Challenge in Motion for New Trial
Defendant contends the trial court erred in finding he could not assert a
Batson challenge in a motion for new trial. He claims the state used peremptory
challenges to remove four of nine African-American prospective jurors and there
was no apparent race-neutral reason for removing Rachel Foreman, who defendant
contends expressed similar views to other prospective jurors who were not
challenged.
The U.S. Supreme Court has never defined timeliness for a Batson claim. In
Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991),
the Court found that states retain considerable discretion to fashion their own rules
governing timeliness. Id. (“[A] state court may adopt a general rule that a Batson
claim is untimely if it is raised for the first time on appeal, or after the jury is
sworn, or before its members are selected.”). Nonetheless, the Court‟s discussion
in Batson makes clear that it envisioned an objection raised during the jury
selection process. The Batson court stated that it would leave it to trial courts to
determine “whether it is more appropriate . . . upon a finding of discrimination . . .
to discharge the venire and select a new jury from a panel not previously
48
associated with the case . . . or to disallow the discriminatory challenges and
resume selection with the improperly challenged jurors reinstated on the venire.”
Batson, 476 U.S. at 99 n.24, 106 S.Ct. at 1725 n.24 (citations omitted). The latter
option would not exist once the jury had been sworn and the evidentiary trial had
started. See Jones v. Butler, 864 F.2d 348, 370 (5th Cir. 1988) (on petition for
rehearing) (“The Supreme Court‟s analysis in Batson presumed that an objection
would be made promptly, probably before the venire was dismissed.”), cert.
denied, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989).
Every federal circuit to address the issue thus far has determined that a
Batson claim is waived if not raised during jury selection. See Morning v. Zapata
Protein (USA), Inc., 128 F.3d 213, 216 (4th Cir. 1997) (finding that “a Batson
challenge raised after the venire has been excused has been raised too late”);
McCrory v. Henderson, 82 F.3d 1243, 1246-49 (2d Cir. 1996) (finding Batson
challenges are waived if not raised during jury selection); United States v. Forbes,
816 F.2d 1006, 1011 (5th Cir. 1987) (finding that “[n]ow it is too late for
appellants to insist on an explanation they did not request at trial”); Government of
the Virgin Islands v. Forte, 806 F.2d 73, 75-76 (3rd Cir. 1986) (finding defendant
“waived his objection to the prosecutor‟s use of her peremptory challenges by
failing to make a contemporaneous objection during jury selection”); see also
United States v. Dobynes, 905 F.2d 1192, 1196-97 (8th Cir.) (finding that a
defendant who raised a Batson claim for the first time one week after the
conclusion of the trial had forfeited the objection), cert. denied, 498 U.S. 877, 111
S.Ct. 206, 112 L.Ed.2d 167 (1990); cf. United States v. Tomlinson, 764 F.3d 535,
536 (6th Cir. 2014) (finding a Batson claim not waived because it was asserted
before the jury was sworn and trial commenced).
Three state supreme courts which held, prior to Batson, that a prosecutor‟s
49
use of peremptory challenges on the basis of race violated provisions of their state
constitutions all appear to have recognized that such an objection must be raised
during jury selection when it can easily be remedied. See State v. Neil, 457 So.2d
481, 486 & n.9 (Fla. 1984); Commonwealth v. Soares, 377 Mass. 461, 491, 387
N.E.2d 499, 517-18, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110
(1979); People v. Wheeler, 22 Cal.3d 258, 263, 280, 282, 148 Cal. Rptr. 890, 583
P.2d 748, 752, 764, 765 (1978). Subsequently, state appellate courts have
determined that a Batson challenge must be asserted before the jury is sworn,47 and
a Batson claim is waived if not asserted until after the verdict.48
Thus, the overwhelming weight of authority is contrary to defendant‟s
position that a Batson challenge asserted for the first time in a motion for new trial
post-verdict is timely. Defendant‟s reliance on Alex v. Rayne Concrete Service,
05-1457 (La. 1/26/07), 951 So.2d 138, is misplaced. That decision did not address
the question of timeliness and waiver at all; it resolved “a split among the court of
appeal regarding whether a Batson/Edmonson challenge in a civil trial must be
taken to the appellate court by supervisory writ or whether it may be considered on
appeal following the conclusion of the trial”. Alex, 05-1457 at 1, 951 So.2d at 141.
Plaintiff in that case did not wait until after obtaining an unfavorable verdict but
rather asserted his Batson challenge at the end of jury selection. See id., 05-1457 at
2, 951 So.2d at 142. This Court did state “in light of the United States Supreme
Court‟s decision in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d
196 (2005), that a defendant may rely on „all relevant circumstances‟ to raise an
inference of purposeful discrimination under Batson, and not just the reasons
proffered by the State in making the peremptory challenge, it seems reasonable, if
47 See State v. Parrish, 327 Mont. 88, 92, 111 P.3d 671, 674 (Mt. 2005); State v. Rodriguez, 6 Neb. App. 67, 76, 569 N.W.2d 686, 692 (Neb. App. 1997); see also Stegall v. State, 628 So.2d 1006, 1009 (Ala. Crim. App. 1993) (stating that “whether the appellant‟s Batson objection was untimely is governed by whether the remaining venire members had been released”). 48 Philmon v. Baum, 865 S.W.2d 771, 775 (Mo. App. 1993).
50
not necessary in some circumstances, for a party to wait until after the entire trial is
over to seek review of the peremptory challenge.” Alex, 05-1457 at 9, 951 So.2d at
146. That comment, however, explicitly refers only to the necessity of seeking
“review” and cannot reasonably be read as relieving a party from the necessity of
timely objecting. This claim is without merit.
Newly Discovered Evidence
Defendant contends he presented newly discovered evidence that he was not
the shooter and the victim‟s mother forgave him. The evidence that he was not the
shooter consists of an anonymous letter. Defendant argues this mitigation evidence
would have swayed at least one juror and the trial court erred in denying the
motion without conducting an evidentiary hearing.
This Court has repeatedly noted that in order to obtain a new trial based on
“newly discovered evidence,” the defendant has the burden of showing that “(1)
the new evidence was discovered after trial, (2) the failure to discover the evidence
at the time of the trial was not caused by lack of diligence, (3) the evidence is
material to the issues at trial, and (4) the evidence is of such a nature that it would
probably have produced a different verdict.” State v. Hammons, 597 So.2d 990,
994 (La. 1992); State v. Knapper, 555 So.2d 1335, 1339 (La. 1990); State v.
Prudholm, 446 So.2d 729, 735 (La. 1984); State v. Talbot, 408 So.2d 861, 884 (La.
1980). An anonymous letter of unknown provenance that lacks any indicia of
reliability is not material. Cf. United States v. Garner, 940 F.2d 663 (6th Cir. 1991)
(commenting that it was “highly unlikely” that an anonymous letter would be
admitted at trial); cf. also Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997)
(describing an anonymous letter as “uncorroborated and unreliable”); State v.
Potter, 148 Vt. 53, 64, 529 A.2d 163, 169-70 (1987) (finding an anonymous letter
“would not provide reasonable assurance of a different result, primarily because it
51
raised problems of authentication and hearsay and would not be admissible on
retrial”).
The fact that the victim‟s mother in this case has found some measure of
peace after sentencing is not newly discovered material evidence providing a
ground for a new trial under La. C.Cr.P. art. 851(3). Defendant‟s assignment of
error is without merit.
Diminished Capacity
Defendant contends a death sentence cannot be imposed because he was
barely over the age of 18 and his IQ is 74. Because of his diminished mental
capacity, defendant argues his maturity level is less than his chronological age and
therefore a death sentence constitutes cruel and unusual punishment.
In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005),
the U.S. Supreme Court held that “the death penalty cannot be imposed upon
juvenile offenders, 543 U.S. at 575, 125 S.Ct. at 1198, and the court further drew
the line between juvenile and adult offenders at age 18, 543 U.S. at 574, 125 S.Ct.
at 1197. Defendant here was over 18 years of age when he murdered Tavia Sills.
Nonetheless, he claims that because of his immaturity there is little practical
difference between himself and an offender who commits murder before reaching
the age of 18 years. However, the Supreme Court drew the line at age 18 well
aware of the “objections always raised against categorical rules,” id., 543 U.S. at
574, 125 S.Ct. at 1197, driven by two rationales: there was “objective indicia of
consensus” against sentencing juvenile offenders to death in that, for example,
most States had already rejected that possibility; and the death penalty “is a
disproportionate punishment” because juvenile offenders as a class are less
culpable than adult offenders. Id., 543 U.S. at 563-69, 125 S.Ct. 1191-95. No
similar consensus exists against executing adult offenders and, although defendant
52
therefore cannot benefit from the categorical prohibition of Roper v. Simmons, he
had the opportunity to present his immaturity to the jury in the penalty phase as a
mitigating circumstance. See United States v. Mitchell, 502 F.3d 931, 981 (9th Cir.
2007) (finding that it “may well be true that [defendant] is less mature than the
average 20 year old. But whether true or not, and whether that mitigates against his
crime, is a question the Constitution permits to be answered on a case-by-case
basis.”).
In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002),
the U.S. Supreme Court determined that the Eighth Amendment “„places a
substantive restriction on the State‟s power to take the life‟ of a mentally retarded
offender.” Atkins, 536 U.S. at 321, 122 S.Ct. at 2252 (quoting Ford v. Wainwright,
477 U.S. 399, 405, 106 S.Ct. 2595, 2599, 91 L.Ed.2d 335 (1986)). The present
defendant did not attempt to prove that he should have the benefit of that
categorical prohibition by following the procedure provided by La. C.Cr.P. art.
905.5.1, which was enacted to effectuate the mandate of Atkins. He simply
submitted Dr. Vigen‟s expert opinion that he has a full scale IQ of 7449 in
conjunction with a post-verdict motion. As previously mentioned, defendant did
not present that expert‟s opinion to the jury in the penalty phase.
Defendant, in essence, argues that his two near misses at qualifying for the
categorical prohibitions established in Roper v. Simmons and Atkins v. Virginia,
when viewed together, should qualify him for a new categorical prohibition under
the Eighth Amendment, as yet unestablished by the U.S. Supreme Court, against
executing those who are less culpable because of their immaturity in conjunction
with their below average intelligence. As noted above, those considerations are
49 In Hall v. Florida, ___ U.S. ___, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), the U.S. Supreme Court determined that the Florida Supreme Court‟s interpretation of a Florida statute as barring a defendant from presenting a claim that he cannot be executed because of his intellectual disability when he has an IQ score above 70 is unconstitutional because it fails to consider the margin of error.
53
indeed mitigating circumstances that are relevant to the jury‟s determination in the
penalty phase. But defendant‟s argument by post-verdict motion and on appeal that
he is less culpable for these reasons is not sufficient to override the jury‟s
determination that death was the appropriate penalty in this instance. This claim is
without merit.
Endemic racism in Caddo Parish
Defendant contends that his sentence violates the Eighth Amendment
because he is an African-American man who was prosecuted in Caddo Parish,
which made it more likely that he would receive a death sentence than if he had
been prosecuted elsewhere.
In Dorsey, 10-0216 at 51, 74 So.3d at 638, this Court found defendant did
not first present his claim to the trial court that racism pervades Caddo Parish and
that race and parish together are the best predictors of who will face a capital
prosecution. In the present case, defendant argued in support of his motion to
prevent the flying of the Confederate flag that the death penalty is
disproportionately applied to black offenders who kill white victims and that
African-Americans represent about 20% of the population of Caddo Parish while
about 78% of those tried for first degree murder in Caddo Parish are African
Americans. That, however, is not the same argument defendant asserts for the first
time on appeal, i.e., black males are more likely to be convicted of first degree
murder and sentenced to death in Caddo Parish than any other jurisdiction as a
result of endemic racism. Regardless, assuming arguendo, that defendant‟s motion
placed this claim before the trial court, the only support offered by defendant is a
study showing that six death sentences were imposed in Caddo Parish between
2004 and 2009, compared to four in East Baton Rouge, two in Ouachita, two in
Jefferson, one each in Red River, West Baton Rouge, St. Tammany, Livingston,
54
Calcasieu, and St. Mary parishes. Robert J. Smith, The Geography of the Death
Penalty and Its Ramifications, 92 B.U.L. Rev. 227, 281-89 (2012). That is not
sufficient to prove the death penalty is disproportionately applied against African
American men in Caddo Parish because of endemic racism. Defendant‟s claim is
without merit.
CAPITAL SENTENCE REVIEW
In the discharge of the duty imposed by the legislature to “review every
sentence of death to determine if it is excessive,” La. C.Cr.P. art. 905.9, this Court
will review the record in a capital case to determine: (1) whether the sentence was
imposed under the influence of passion, prejudice or any other arbitrary factors; (2)
whether the evidence supports the jury‟s finding of a statutory aggravating
circumstance; and (3) whether the sentence is disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant. La. S.Ct.
Rule 28, § 1. In the present case, Rule 28 review demonstrates that defendant‟s
death sentence is not excessive.
Passion, Prejudice, or Other Arbitrary Factors
There are very few potential sources of passion, prejudice, or other arbitrary
factors in the present case, aside from the allegation that racism pervades Caddo
Parish, which factor the defendant contends is the best predictor of who will
receive a death sentence in Louisiana. As discussed above, however, the defendant
did not present that claim to the district court where the necessary factual
development could occur, and the claim rests on speculation, unsupported
allegations, and the fact that Caddo Parish has imposed just two more death
sentences than the parish that has imposed the next greatest number (the statistical
significance of which is unknown). Defendant also argues that he is likely
ineligible for a death sentence under Atkins v. Virginia, supra. As noted above,
55
defendant has not presented this claim following the procedure outlined in La.
C.Cr.P. art. 905.5.1 and did not even present Dr. Vigen‟s opinion regarding his
mental functioning to the jury in the penalty phase. The record does not reveal any
potential indicia of passion, prejudice, or arbitrariness. Defendant, an 18-year-old
black male, killed his pregnant girlfriend and received a sentence of death from a
jury consisting of eight white females, two black females, and two white males,
during the selection of which no Batson challenge was asserted. Although the
defendant attributes the verdict to racism, the defendant's allegations in this regard
are unproved.
Aggravating Circumstances
As demonstrated by the jury's verdict during the guilt phase of the trial, the
state presented sufficient evidence to prove beyond a reasonable doubt that
defendant killed the victim while engaged in the perpetration of a second degree
kidnapping, and when the offender knowingly created a risk of death or great
bodily harm to more than one person. A review of the record suggests that the
evidence was sufficient to support such a determination. Defendant was the last
person seen with the victim. Defendant confessed to the crime and took police to
the location where the murder weapon could be found. A witness saw defendant
and the frightened victim as they walked to the location where the victim‟s body
was later found and the witness heard gunshots. Although the defendant initially
claimed he dropped the victim off at her sister‟s apartment, surveillance video
contradicted this claim. Defendant ultimately claimed he shot the victim
accidentally, and admitted he then shot her a final time to make certain that she
was dead rather than seeking help.
As discussed above, the state‟s evidence overwhelmingly proved defendant
committed the crime of second degree kidnapping when he enticed/persuaded
56
Tavia Sills to accompany him from one place to another and into the woods, for
purposes of facilitating the commission of another felony (her murder) by means of
the firearm in his possession, thereby causing her physical harm (death). The jurors
found this aggravating circumstance proved beyond a reasonable doubt in the
penalty phase of the trial. Therefore, even if the jury‟s additional finding that
defendant knowingly created a risk of death or great bodily harm to more than one
person is erroneous because Tavia Sill‟s unborn child is not a person for purposes
of La. C.Cr.P. art. 905.4(A)(4), that error does not require reversal of the penalty
phase verdict because it did not introduce an arbitrary factor into the proceedings.
See State v. Welcome, 458 So.2d 1235, 1245 (La. 1983) (“This court has taken the
position that where more than one statutory aggravating circumstance is found by
the jury, the failure of the one circumstance does not so taint the proceedings as to
invalidate any other aggravating circumstance found and the sentence of death
based thereon.”); see also State v. Thibodeaux, 98-1673, p. 15 (La. 9/8/99), 750
So.2d 916, 928 (In the context of Rule 28 review, the existence of an arbitrary
factor requires this court to find an error of such magnitude that it undermines
confidence in the jury's sentencing verdict, . . . .”). Evidence that Tavia Sills was
pregnant inevitably would have come before jurors to provide them with
defendant‟s motive for an otherwise an unexplained murder, i.e. that he killed her
to protect his relationship with Tamara Bates, the mother of his three-year-old son.
See State v. Williams, 93-2707 (La. 3/11/94), 633 So.2d 147, 149 (“Motive is not
an essential element of murder, but a lack of motive may properly be considered as
a circumstance mitigating against specific intent.”) (internal quotation marks and
citation omitted).
Proportionality
The federal Constitution does not require a proportionality review. Pulley v.
57
Harris, 465 U.S. 37, 42-50, 104 S.Ct. 871, 875-79 (1984). However, comparative
proportionality review remains a relevant consideration in determining the issue of
excessiveness in Louisiana, State v. Burrell, 561 So.2d 692, 699-700 (La. 1990);
State v. Wille, 559 So.2d 1321, 1341-42 (La. 1990); State v. Thompson, 516 So.2d
349, 356-57 (La. 1987), although the Court has set aside only one death penalty as
disproportionately excessive under the post-1976 statutes, finding in that one case,
inter alia, a sufficiently “large number of persuasive mitigating factors.” State v.
Sonnier, 380 So.2d 1, 9 (La. 1979); see also State v. Weiland, 505 So.2d 702, 707
10 (La. 1987) (in case reversed on other grounds, dictum suggesting that death
penalty disproportionate).
The Uniform Capital Sentence Report reveals that defendant is a black male
born on April 3, 1990. He was 18 years old at the time of the offense and is now
almost 25 years old. He is unmarried and has one child (now approximately 10
years old). He completed the 11th grade. He has no significant employment history
and previously pleaded guilty to misdemeanor carnal knowledge of a juvenile. He
was frequently suspended from school.
According to the state, since 1976, 46 persons (excluding defendant) have
been indicted for first degree murder in Caddo Parish, of which 18 have been
found to merit a sentence of death by a jury.50 Of death sentences not reversed, two
were committed during kidnappings, eight involved intent to kill more than one
person, and seven involved female victims.
A review of the capital verdicts from Caddo Parish does not suggest that
Lamondre Tucker received a disproportionately harsh sentence. As noted above,
two cases resulted in a death sentence when the perpetration of a kidnapping was
an aggravating circumstance. In Dorsey, 10-0216, 74 So.3d 603, defendant and a 50 Defendant disputes the state‟s numbers and alleges that there have been at least 313 first degree murder cases in Caddo Parish that have not result in a death sentence and that are relevant to the issue of proportionality.
58
codefendant were interrupted while committing a home invasion/armed robbery by
the return of the male victim. The two subdued the victim, demanded money, and
then defendant pistol-whipped the victim before setting him on fire. In State v.
Wilson, 03-1229 (La. 3/30/05), 899 So.2d 551, defendant and codefendants
abducted the female victim. Defendant repeatedly raped the victim before shooting
her in the head and leaving her body by the roadside. Although defendant Tucker
engaged in less brutality than that exhibited by Dorsey or Wilson, the present case
is not out of place when viewed in proper context. Tucker, through guile, abducted
his pregnant girlfriend and lured her to a secluded location where he could kill her.
He shot her twice, he apparently planned or attempted to set her on fire, and then
shot her a third time to be certain that she was dead. With the help of an
accomplice, Tucker used a large branch to push her body out into the pond in an
attempt to hide the evidence. He then discarded the murder weapon in a drainage
canal and tried to enlist the aid of friends in concealing his involvement in the
crime.
In view of the foregoing, the proportionality review does not give the Court
undue pause. The death penalty imposed on the defendant, Lamondre Tucker, for
the first degree murder of Tavia Sills is not disproportionate.

Outcome: For the reasons assigned herein, the defendant‟s conviction and death
sentence are affirmed. In the event this judgment becomes final on direct review when either: (1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari; or (b) that Court denies his petition for rehearing, the trial judge shall, upon receiving notice from this Court under La. C.Cr.P. art. 923 of finality of direct appeal, and before signing the warrant of execution, as provided by La. R.S. 15:567(B), immediately notify the Louisiana Public Defender Board and provide the Board with reasonable time in which: (1) to enroll counsel to
represent the defendant in any state post conviction proceedings, if appropriate, pursuant to its authority under La. R.S. 15:178; and (2) to litigate expeditiously the claims raised in that original application, if filed, in the state courts.

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