State of Louisiana Versus Teddy Chester

STATE OF LOUISIANA NO. 19-KA-363

VERSUS FIFTH CIRCUIT

TEDDY CHESTER COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 96-2598, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

February 03, 2021

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and Hans J. Liljeberg

AFFIRMED
MEJ
SJW
HJL

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLANT,
TEDDY CHESTER
Shanita Farris
Rachel I. Conner

AMICUS CURIAE,
THE CENTER FOR INTEGRITY IN FORENSIC SCIENCES AND THE
INNOCENCE NETWORK
Bidish J. Sarma

JOHNSON, J.

Appellant, Teddy Chester, was convicted of first degree murder in violation

of La. R.S. 14:30 on May 14, 1997, after a two-day trial, and the jury

recommended a sentence of death shortly thereafter. Defendant applied for federal

relief after exhausting all avenues for relief in the state court system. The United

States District Court for the Eastern District of Louisiana granted Defendant’s writ

of habeas corpus and ordered the State to either release or retry Defendant. After a

second trial in 2018, Defendant was convicted of second degree murder and

sentenced to life imprisonment. On appeal, Defendant has identified several

assignments of error, which Defendant urges cumulatively, if not individually,

require reversal of his conviction and sentence. For the following reasons, we

affirm Defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of December 27, 1995, Mr. John Adams was shot

and killed inside the cab he operated on Calhoun Street in Kenner, Louisiana, an

area known for drug-related activity. Investigators were told that “Fella,” as Elbert

Ratcliff was known in the area, was involved with the murder. Jefferson Parish

Sheriff’s Office (JPSO) personnel found the fingerprints on business cards found in

Mr. Adams’ cab matched Mr. Ratcliff’s fingerprints. Once apprehended, Mr.

Ratcliff told JPSO that Defendant, Teddy Chester, shot Mr. Adams. Defendant

insisted he was only trying to sell the victim fake drugs, but Mr. Ratcliff shot the

victim while trying to rob him. A grand jury indicted both Defendant and Ratcliff

for the murder of Mr. Adams in April of 1996.

On May 14, 1997, after a two-day trial, a jury found Defendant guilty of first

degree murder, in violation of La. R.S. 14:30, and, two days later, recommended

he be sentenced to death. Defendant unsuccessfully challenged his conviction and

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death sentence in the state courts. Having exhausted all avenues of relief in the

state court system, Defendant filed a federal petition for a writ of habeas corpus

under 28 U.S.C. § 2254(d). On June 11, 2018, the federal court granted the writ

and ordered the State of Louisiana to either retry Defendant or to release him from

state custody within the following 120 days. See Chester v. Vannoy, 16-17754,

2018 WL 2970912, at *1 (E.D. La. June 11, 2018).

On August 16, 2018, the State amended the 1996 indictment to charge

Defendant with second degree murder. On September 13, 2018, a Jefferson Parish

Grand Jury indicted Defendant with second degree murder in violation of La. R.S.

14:30.1, and Defendant was arraigned and pled not guilty. On October 1, 2018, the

United States District Court for the Eastern District gave the State until November

15, 2018, to retry Defendant.

Defendant’s trial began on October 29, 2018.

Nancy Clary, the designated representative for the custodian of records for

the Jefferson Parish Sheriff’s Office (JPSO) 9-1-1 call center, testified that on

December 27, 1995, at 6:15 a.m., a 9-1-1 call came in from 713 Calhoun Street and

the 9-1-1 caller advised that there was a cab parked across the street with its motor

running, doors open, and lights on.

Robert Murphy, a retired JPSO deputy, testified that on December 27, 1995,

he responded to the call regarding an abandoned vehicle in the area around 713

Calhoun Street. When Mr. Murphy, who was less than two minutes away, arrived

at that location, he observed a Kenner cab leaning against a cement object, with its

motor running, its lights on, and the driver-side door open. He observed through

the open driver’s door a white male, later identified as John Adams, slumped in the

driver’s seat with his head back and a wound to the back of his head. Mr. Murphy

secured the crime scene, called for Emergency Medical Services, and notified the

detective bureau, the crime scene division, and his supervisor.
19-KA-363 2

Mr. Murphy testified that there were cards, including King Cab business

cards, a lottery ticket, miscellaneous pieces of paper on the ground outside of the

cab, business cards on the floor of the vehicle on the driver’s side, and a

photograph lying on the victim’s left thigh. Mr. Murphy testified that the rear

driver-side door was slightly ajar and that there was red liquid pooling in the rear

seat area on the floor. He further testified that there was a plastic bag hanging on

the interior handle of the driver-side rear door and that the bag contained a long

sleeved Guess t-shirt with tags on it.

The trial court qualified Dr. Fraser MacKenzie, who performed the autopsy

of Mr. Adams, as an expert in the field of forensic pathology. Dr. MacKenzie

testified that the cause of death was a gunshot wound to the head and that the

manner of death was homicide. Dr. MacKenzie explained that the firearm was held

firmly against the skin as it was fired. He described the trajectory of the bullet as

having traveled from the lower left back side of the head to the upper right front

side of the head. Dr. MacKenzie testified that a projectile and its copper jacket

were recovered from just inside the victim’s head and fragments of lead were

removed from the skull.

JPSO Lieutenant Ralph Sacks was the lead detective on the case. Lt. Sacks

testified that he learned that on December 27, 1995, at approximately 4:00 a.m.,

someone called the cab company from a pay phone and requested to be picked up

at 713 Calhoun and taken to Susan Park, a neighborhood in Kenner. He stated that

he canvassed the Calhoun Street area but could find no eyewitnesses to the

shooting. He discovered that Mr. Adams had $34.00 in his left shirt pocket and

$260.00 in his wallet, but his pouch was missing. He also stated that he met with

Mr. Adams’ mother, Hazel Adams, who told him that Mr. Adams kept cards in his

pouch.

19-KA-363 3

Lt. Sacks explained that the people at 713 Calhoun initially did not provide

any helpful information, but a “guy named Franklin” later told him Elbert Ratcliff,

also known as “Fella,” visited the home from time to time. During Lt. Sacks’

investigation, at least two other individuals named “Fella” as a possible suspect.

Lt. Sacks asked the crime lab to compare the fingerprints on the business cards

found at the crime scene to Mr. Ratcliff’s fingerprints, and the prints matched.1 He

subsequently obtained an arrest warrant for Mr. Ratcliff and a search warrant for

his residence at 525 Richard, Apartment 1 in River Ridge. Lt. Sacks testified that

Ratcliff’s last known residence was in close proximity to the scene of the

homicide. On March 5, 1996, Lt. Sacks informed Mr. Ratcliff’s father of the

warrant for his son’s arrest but no items were seized during the search of the home.

Later that day, Mr. Ratcliff contacted Lt. Sacks and was subsequently arrested for

first degree murder.

Lt. Sacks recalled that Mr. Ratcliff implicated Defendant, Teddy Chester, in

the homicide on the way to the detective bureau. Once Mr. Ratcliff arrived at the

detective bureau, he was advised of his Miranda rights, which he waived, and then

he gave a statement. Lt. Sacks presented a photographic lineup to Mr. Ratcliff

containing Defendant’s picture, and Mr. Ratcliff positively identified Defendant.

He recalled that Mr. Ratcliff acknowledged handling the business cards at the

crime scene and removing the pouch. Lt. Sacks attempted to locate Defendant as a

person of interest using a flyer. Lt. Sacks acknowledged that Mr. Ratcliff, in the

third of several recorded statements he made, identified Defendant as the person

who shot John Adams. He later made contact with Defendant’s family and advised

them that he was looking for Defendant.

1
Patricia Cole, who the trial court qualified as an expert in the field of latent print examination and identification,
testified that the fingerprints on two of the State’s exhibits matched Mr. Ratcliff’s right thumb and left thumb
prints.”
19-KA-363 4

Lt. Sacks testified that on March 18, 1996, police were dispatched to a

residence regarding a disturbance. Earlier, Lt. Sacks’ colleague, JPSO Lt. Vincent

Bosco, testified that at approximately 9:00 a.m. that day, he responded to a call at

11108 Newton Street, Apartment C. The dispatcher had advised that a female

caller was having problems with a male. When Lt. Bosco arrived, there were two

females present. One of the females told him that the male inside was the one who

killed the cab driver. He observed a black male dive headfirst out of the second-

story window. He then got on the radio and advised headquarters so more units

could respond and establish a perimeter to contain that individual. Lt. Bosco

testified that the black male was later located, detained, and identified at 429

Upland Street. Lt. Sacks later testified that the male, identified as Defendant, was

taken to the detective bureau along with Quinice Pollard, Defendant’s girlfriend,

and her sister, Kaprice Pollard.2 The sisters gave the police aliases during initial

contact but the police discovered their true identities and that they had warrants so

they were arrested.

On that same day, before speaking with Defendant, Lt. Sacks obtained an

arrest warrant for him and a search warrant for his residence at 308 Jackson Street

in Kenner. He stated that when he went to Defendant’s residence to execute the

search warrant, no one answered the door. Lt. Sacks explained that he entered the

home through an open window he found on the side of the house. During the

search, Lt. Sacks retrieved items, including an Oakland Raiders baseball cap, a pair

of jeans, and a letter. He believed that the cap and the jeans had blood on them.

Lt. Sacks testified that he went to JPSO’s Homicide Division after executing

the search warrant and advised Defendant of his rights on March 18, 1996. He

further testified that Defendant waived his rights and then gave a statement.

2
In this opinion, Quinice Pollard will be referred to as “Ms. Pollard” or “Quinice,” and Kaprice Pollard will be
referred to as “Kaprice.”
19-KA-363 5

In his statement, Defendant said that his date of birth was November 10,

1977, he was eighteen years old, and his highest level of education was eighth or

ninth grade. He stated that in December of 1995, he walked along the tracks down

Tullis Street and went to Calhoun Street where he saw “Fellow”3 standing on the

corner. Defendant said that he had known “Fellow” for a couple of years and that

they had smoked a little “weed” in the past, but he did not know “Fellow’s” real

name. Defendant asserted that “Fellow” wanted to sell or trade a Guess shirt in a

plastic bag for a “rock.” He asked “Fellow” if “any money was coming around,”

and “Fellow” said “yes,” so defendant continued to walk down the street.

Defendant believed “Fellow” was a crack cocaine user but that he had never

seen him use it. He did not know what time it was, but he recalled that it was dark

outside and that the club had closed early. He did not see anyone else out on the

street at that time. Defendant said that he started walking toward Airline from the

tracks and that by the time he made it “down,” the cab driver was coming down

Calhoun Street. He thought the cab driver was “looking for some drugs.”

Defendant recalled that the cab driver stopped and was trying to say something, so

Defendant opened the “back passenger door” and asked him what he wanted. He

said that when he opened the door, he put one foot in and left the other foot

“hanging out.” Defendant then stated that he pulled the door closed to make it

look like he was in the cab “so no police could a stop or nothing.” Defendant

asked the cab driver if he was looking for anything, and the cab driver told him

“no,” so Defendant got out of the cab. Defendant noted that the cab driver pulled

further down the street and then turned around and came back. He said that was

when he saw “Fellow” just “pop up” behind him asking if the cab driver wanted

anything. Defendant told “Fellow” “no,” but “Fellow” still wanted to see on his

3
It is noted that Mr. Ratcliff’s nickname was “Fella,” also spelled as “Feller” and “Fellow” throughout the record
and this opinion also.
19-KA-363 6

own if the cab driver wanted something. He asserted that “Fellow” stopped the cab

driver and got completely in the cab directly behind the cab driver. Defendant

recalled that the cab driver started pulling off slowly and he saw that “Fellow” had

a gun up to the back of the cab driver’s head. Defendant told Lt. Sacks he saw the

cab driver struggling to move the gun from behind his head. He then saw “Fellow”

reach up and pull the radio out.

Defendant stated that the cab speeded up and that was when he heard a

“pow” and saw a flash inside the cab. He thought that after “Fellow” shot the cab

driver, the cab driver must have lost control of the cab, and it went straight into a

pole. “Fellow” was in the car when it crashed. Defendant asserted that “Fellow”

then got out of the back of the cab and opened the driver-side front door. He

believed “Fellow” was checking the cab driver to see if he had “anything on him.”

Defendant saw “Fellow” “fooling around with something,” but he did not know

what it was. He subsequently observed that “Fellow” “ducked off” behind a tree.

Defendant estimated he was approximately fifteen to twenty feet away from

“Fellow” when he observed this. He recalled that the cab driver was a “fat guy”

with white hair and glasses.

Defendant stated that he got behind a tree and attempted to hide from

“Fellow.” “Fellow” then ran towards a “cut” to the next street. Defendant recalled

that before “Fellow” got to the “cut,” he stopped, called him, and waved the gun in

defendant’s direction. Defendant said that the gun was a black .38 revolver.

“Fellow” pointed the gun in his direction and said to “come on.” Defendant told

him “no,” but when “Fellow” said it again in an aggressive way, defendant went

with him. He recalled that he and “Fellow” were running and that “Fellow” was

holding Defendant’s jacket by the shoulder and pulling Defendant along with him.

Defendant stated that after they went over the tracks, “Fellow” told him that if he

told anyone about what had happened, he would kill Defendant, Defendant’s “old
19-KA-363 7

lady,” and her baby. He said that “Fellow” ran one way and that he ran straight to

his sister’s house on Jackson Street.

No one was home when Defendant arrived, but he eventually told his

girlfriend what happened. He further stated that his “old lady” came back several

times and said that “Fellow” had told her that “if Defendant opened his mouth

about something, there was going to be ‘some drama or something’” between

“Fellow” and Defendant.

Defendant said he did not see if “Fellow” got any blood on him when the

shooting happened. Defendant denied having any blood on his clothes. He

remembered that he was wearing “some green Girbaud,” a black sweater, and a

black jacket. Defendant also remembered that he was wearing a “Dallas” baseball

cap. He guessed that “Fellow” left the plastic bag containing the shirt in the cab

because when “Fellow” went to the cab, he had the bag, and when “Fellow” came

back from the cab, he did not have anything in his hand. He said that “Fellow”

told him that one of his friends had given him the Guess shirt.

Defendant reiterated that when he first saw the cab driver, he approached the

cab because he thought the cab driver might want to buy some crack cocaine that

Defendant was trying to sell. Defendant asserted that there were “a lot of cabs that

buy crack.” He insisted that no one else was out there and “no money was coming

around,” so he was going to leave. He did not know how the cab driver came to be

back there.

Lt. Sacks testified that after Defendant gave his statement, he confronted

Defendant with details of the case and the evidence he recovered from Jackson

Street. As a result, Defendant then provided him with a second (recorded)

statement. In that second statement, Defendant said that “Fellow” stopped the cab

driver on Calhoun Street and got into the back seat directly behind the cab driver.

Defendant said he ran around to the right rear passenger door and got in with one
19-KA-363 8

foot in and one foot out. After he got in, Defendant asked the cab driver if he

wanted anything, and the cab driver said, “no.” He said that “Fellow” “pretended”

to ask the cab driver if he wanted something, but the cab driver said he did not do

anything like that. Defendant explained that “Fellow” then said, “well Mother

F*cker give it up,” and “Fellow” placed the gun to the back of the cab driver’s

head. He further explained that the cab driver tried to move the gun away from his

head.

Defendant recalled that the cab driver said, “ohh Lord not this, not this,” and

that the cab slowly pulled off. Afterwards, “Fellow” reached up and pulled out the

radio because the cab driver was reaching for it. Defendant stated that the cab

driver sped up and that is when the flash went off. He further stated that the cab

driver fell back to where his head was leaning over the front part of the seat to the

back and that was when blood started dripping over Defendant’s left pant leg and

splattered on his arms, hands, jacket, face, hat, and “all over” his legs. Defendant

recalled that after the cab driver was shot, the cab continued to move until it ran

into two small poles. He stated that “Fellow” then jumped out of the cab and began

“checking the man” and his pockets. Defendant said he scooted across the seat and

got out of the cab on the same side as “Fellow,” the driver-side left rear door, and

he ran and hid behind a tree. He saw some cards on the ground after he jumped out.

Defendant thought they stayed in the cab for approximately ten minutes.

Defendant stated that “Fellow” ran toward a “cut” to the next street and

made him run with him. He also stated that “Fellow” told him that if he said

anything about what happened, he would kill his “old lady” or other family

members. He asserted that he was wearing blue jeans that night and a black and

white Raiders hat. Defendant denied having a gun that night.

Defendant said that after the shooting, he went to his sister’s house at 308

Jackson Street. He took a bath and put his clothes in a dirty clothes basket.
19-KA-363 9

Defendant said that he left the clothes there and that after a while, his “old lady”

washed them. He stated that she asked him where all the blood had come from, and

he told her that “Fellow” had shot somebody. Defendant claimed that he did not

know what happened to the gun used in the shooting. He explained that he did not

tell the police this information before because he thought by him being in the cab

and getting blood on him, he was “gonna be accused of being a part of it.”

Defendant did not know if “Fellow” or someone else called the cab, but he

insisted that he did not. He stated that he did not know what “Fellow” was going to

do when they got into the cab.

Defendant contended that all he was trying to do was “make a little hussle

[sic]” and to see if he could make some money when suddenly the gun was

produced, and he just “fell into shock.” He recalled “Fellow” telling him that he

left the Guess shirt in the cab. He stated that he did not tell anybody what

happened because of “Fellow’s” threats to kill his family and because of his

probation. He explained that he ran that morning because he thought his “old lady

daddy” had called the police about him.

Defendant indicated that his girlfriend wore his hat and that he did not wash

it. He admitted that the blood should still be on the hat. He reiterated that when he

got in the cab, he thought that it was going to be a drug sale, “me making a lil

money or him making a lil money [sic].” Defendant said that he did not touch the

cab driver’s pockets and that the only things he touched were the outside and the

inside of the door handles. He believed that “Fellow” sold drugs there before and

that he had seen other cab drivers buy drugs there. He thought the victim was the

cab driver who had gone back there to buy drugs before and that was what “really

keyed” him onto trying to sell drugs to him. Defendant stated that if the cab driver

had wanted to buy drugs, he would have sold him some “fake” crack cocaine. He

explained that he himself did not buy the Guess shirt from “Fellow” because all he
19-KA-363 10

had were “fake” drugs, and he did not have enough money. Audiotapes of both

statements were played at trial and jurors were provided with copies of the

transcripts.

Lt. Sacks testified that he arrested Defendant after taking his statements. He

requested scientific testing on Defendant’s clothes, and he obtained a search

warrant for Defendant’s blood. Lt. Sacks recalled that Defendant was

uncooperative and that Defendant said he had already told Lt. Sacks that the blood

on the cap was the cab driver’s blood. He noted that the murder weapon was never

recovered.

On cross, Lt. Sacks acknowledged that the first statement Mr. Ratcliff gave

was “full of demonstrable lies” and that “some of” his second statement was true

and some of it was demonstrably false. Lt. Sacks also agreed that he did not find

any drugs, drug paraphernalia or firearms when he searched Defendant’s sister’s

home.

In December of 1995, Donna LaRocca worked as a cab driver and as an

office manager for King Cab. She testified that she called the JPSO when she saw

an article in the newspaper that said the two individuals arrested for the murder of

the cab driver said that they had never been in “the cab” before. She told the JPSO

that those two individuals rode in her cab both before and after the victim’s

murder. Ms. LaRocca remembered a time, about a week after the victim’s death,

when she picked up the two men, black males in their early twenties, from 525

Richard Street and took them to Farrar in Kenner. Ms. LaRocca asserted that she

had picked both of the men up from 525 Richard before. She said that all the

drivers were “kind of nervous” but she told the men when they called back that she

“personally would come and get them” because “we picked them up all of the

time.” On the way, they questioned Ms. LaRocca about what the police knew

19-KA-363 11

about the murder. She replied that the police were only telling them that they

intended to offer a reward.

Later, a detective showed Ms. LaRocca two sets of photographic lineups.

She positively identified number five in a photographic lineup as an individual

whom she had picked up from 525 Richard numerous times. She learned the man

who lived at 525 Richard and had called for the ride was named “Elbert Ratcliff.”

In the second photographic lineup, although she was able to narrow it down to two

choices, Ms. LaRocca did not positively identify a suspect. Ms. LaRocca was sure,

however, that the two suspects whose pictures appeared in the paper were the two

men in her cab that day.

Quinice Pollard testified that she was eighteen years old when she first met

Defendant at a club in October of 1995 and started dating him. She lived on

Newton Street in River Ridge with her then two-month old daughter and her sisters

at the time. Ms. Pollard stated that she sometimes stayed with Defendant on

Jackson Street where he lived with his sisters. Ms. Pollard testified that Defendant

helped to support her using money he received from a job at a car wash, a

government check for an intellectual disability, and from dealing drugs,

particularly crack cocaine. She recalled that Defendant always wore his gray and

black Raiders hat.

Ms. Pollard testified that Defendant “hung out” with Mr. Ratcliff who was

also known as “Fella.” She knew Mr. Ratcliff, who used and sold drugs, before she

knew Defendant. She further described Defendant and Mr. Ratcliff as friends and

said that Defendant used Mr. Ratcliff to “run” or sell drugs for him. Ms. Pollard

clarified that Defendant and “Fella” sold drugs together, Defendant was the “head”

drug dealer, and Defendant was not intimidated by “Fella.”

In December of 1995, Ms. Pollard and defendant were still dating but had an

on-again, off-again relationship. Ms. Pollard explained that one time, when she
19-KA-363 12

went to his residence to do his laundry, she saw a lot of blood on some of his

clothes. She maintained that she did all of Defendant’s laundry while they were

dating. She asked Defendant about it, and he responded that the blood came from

him and a “guy” whom he had gotten into an altercation with in a club, noting that

he had to pistol whip the “guy.”

Ms. Pollard testified that she first heard about the cab driver’s murder from

her sister, Kaprice. Ms. Pollard saw Defendant at a corner store in her

neighborhood soon after, and Defendant said that he wanted her to come to his

Jackson Street residence so they could talk. She asked him at the store if he knew

anything about the murder, and Defendant told her “no.” Ms. Pollard testified that

she visited Defendant at his residence a few days later. Defendant sat her down at

the kitchen table and told her that he was involved in the cab driver’s murder.

Defendant told her that he was there, and “the other guy” did it, but he asked her to

say that she was with him at the time of the incident in order to create an alibi.

Ms. Pollard recalled that Defendant had a gun when he told her this

information. She had seen the gun before which she described as a .38 revolver and

that it was the type of gun “that you put the bullets in.” She described the gun’s

brown handle, “tint-color” chrome “nose”, and “wheel.” Ms. Pollard indicated that

defendant kept that gun in a small box or under the mattress. Defendant pointed the

gun at her, and Ms. Pollard testified that she was nervous and scared and told him

she would say he was with her. She recalled that Defendant played with that gun

“a lot” and the gun had gone off while Defendant was playing with it before.

After that conversation, Ms. Pollard returned to her apartment and told her

sister, Kaprice, that Defendant had some involvement in the cab driver’s murder.

Ms. Pollard recalled that Defendant subsequently came over to her apartment on a

daily basis asking if she had told anyone about his involvement in the murder. She

testified that she and Defendant talked again about the murder and Defendant told
19-KA-363 13

her three or four versions of what happened. The first version was the one where

he was at the scene of the crime, “Fella” shot the victim, but Defendant asked her

to provide an alibi for his whereabouts at that time. The second version was that he

and “Fella” were there to rob the cab driver and that “Fella” did it. The third

version was that “Fella” did it. The fourth version was that Defendant and “Fella”

were robbing the cab driver, Defendant put the gun to the cab driver’s head, and

then the gun accidentally went off, and the blood got all over his clothes. Ms.

Pollard testified that she believed that Defendant accidentally shot the victim

because that was the version of events that sounded believable when Defendant

told it to her. She also noted that Defendant provided the most detail in his fourth

version. Ms. Pollard stated that Defendant asked her again to be his alibi.

Defendant also told Ms. Pollard that if “Fella” came to her looking for Defendant

that she should say she had not seen him.

The night before police came to her house to arrest Defendant, Ms. Pollard

recalled that Defendant had his gun with him and that he told her he was going to

California. Defendant asked her to go with him, but Ms. Pollard said she had no

reason to go and asked him to leave. Just as he was leaving, it started to rain, so

Defendant spent the night.

Ms. Pollard testified that, the next morning, she woke up to JPSO coming

through her house with dogs. Defendant dove out the window of her second-floor

apartment. Ms. Pollard later saw the police bring Defendant out of a house around

the corner. Ms. Pollard admitted that she did not go back to her apartment because

she was on probation for a felony plea and knew she could be arrested. She instead

went to Defendant’s home on Jackson Street to “see if I [had] anything in that

house” but the police were there waiting when she arrived. The police later

brought Ms. Pollard to the police station. Ms. Pollard was reluctant to cooperate;

she did not tell the police everything, but she did tell them about the gun and that
19-KA-363 14

she was not involved in the murder. She further testified that “[it] was a lot going

on the interrogation room,” but the police did not hit her, or tell her what to say,

and she went to jail due to an attachment from a misdemeanor case.

Ms. Pollard also testified that she remained in touch with Defendant after he

went to jail. She visited and talked on the phone and exchanged letters with

Defendant. In his letters to Ms. Pollard, Defendant asked her to ask her sister and

others for help. Defendant also asked her to change her statement and to not go to

court. Ms. Pollard explained that she wanted to believe Defendant did not commit

the murder, so she continued to communicate with him even after he began to send

her threatening letters. Those threatening letters, eight of which were admitted

into evidence at trial, led Ms. Pollard to believe that Defendant may try to kill her,

so she eventually severed contact with Defendant.

Ms. Pollard further testified that Defendant asked her to burn the letters, but

she did not do so. Because she was afraid of Defendant, Ms. Pollard recalled that

she wrote him many letters telling him how much she loved and missed him,

although at some point she began dating someone else. Ms. Pollard became

pregnant in November of 1996 with another man’s child and had her second

daughter in July of 1997. By then, she and Defendant were no longer exchanging

letters with one another.

From March 18, 1996 until September of 2018, Ms. Pollard testified, no one

asked her to tell the whole story of what happened until the Assistant District

Attorneys (ADAs) asked. Ms. Pollard insisted that the ADAs did not pressure her

and she never called for the reward money nor ever received any reward. Ms.

Pollard admitted that she had prior convictions of misdemeanor disturbing the

peace in 1994, possession with intent to distribute cocaine in 1994, and felony theft

of goods in 1998. She also testified that there were several attachments for her

arrest in March 1996 due to missed court dates and that she was on two years of
19-KA-363 15

probation for the cocaine conviction at that time. Ms. Pollard also attributed any

proposed discrepancies in her testimony between the two trials to not wanting to be

involved and not wanting Defendant to be in trouble or die.

Defendant also placed approximately 165 pages of Ms. Pollard’s letters to

Defendant into evidence. In the excerpts selected for Ms. Pollard to read, she

professed her love for Defendant, promised to pray for him, expressed appreciation

for his support, and asked him not to entertain other women. Ms. Pollard also read

excerpts from their letters to one another where they referred to one another as

“wife” and “husband,” and to Ms. Pollard’s child as their child.

At the conclusion of Ms. Pollard’s testimony, she confirmed that she did not

feel safe when Defendant sent letters that said he was “going to kill” her and that

he could send someone to her apartment “to show [her] and just to let [her] know

that he could get to [her]”. She also reiterated that Defendant and “Fella” sold

drugs together and that Defendant was not intimidated by “Fella.”

Anthony Curtis testified that he was incarcerated for conspiracy to distribute

cocaine and was serving a 240-month sentence. He recalled the killing of a cab

driver in December of 1995 on Calhoun. Mr. Curtis explained that he was out

riding with a friend and thought he heard gunshots, but he was drunk and “kind of

high” on marijuana at the time. Mr. Curtis did not see where the gunshots came

from, but he saw the cab. He testified that he saw afterwards that the cab driver had

been shot in the cab and that there were a lot of people out there. Initially, Mr.

Curtis asserted that he could not remember if he saw anyone exit the cab at the

time of the gunshot. However, he read his affidavit dated September 23, 2013 to

refresh his memory; he told the investigator then that he had seen “Teddy” and

“Fella” exit the cab after the gunshots. Mr. Curtis knew Defendant and had seen

him around before. Mr. Curtis further testified that he thought that he saw

Defendant or “Fella” with a weapon, but he was not sure. Later, on redirect, Mr.
19-KA-363 16

Curtis insisted that he did not remember whether he saw Defendant and “Fella”

jump out of the cab that day.

Bonnie Dubourg was qualified by the trial court as an expert in the field of

forensic serology—the identification of biological fluids. Ms. Dubourg previously

worked for JPSO and testified that she tested samples from Defendant’s jeans and

Raiders baseball cap. The stains on the left and right legs of the jeans tested

negative for the presence of blood. She further testified that that the three small

stains on the inside bill of Defendant’s cap tested positive for the possible presence

of blood. Due to the insufficient sample sizes, she did not conduct further analysis.

Ms. Dubourg recalled that she tested the Guess t-shirt “Fella” was trying to sell

that night and that the examination of the “loose crust blood-like substance” on the

shirt yielded a positive serological test for Group O blood. She explained that,

again, the insufficient sample size precluded further analysis. Ms. Dubourg

testified that the victim’s blood type was O and that Defendant’s blood type was A.

Anne Montgomery worked for GenTest Laboratories in the 1990s and

testified that she was responsible for “the forensics department and those testing

and reports and testimony.” The trial court accepted her as an expert in the fields

of molecular biology and DNA analysis. Ms. Montgomery testified that she

conducted DNA testing in the instant case in 1996. She indicated that she obtained

samples from the baseball cap and reference samples from the victim and

Defendant. Ms. Montgomery testified that the DNA test results for the cutting from

the bill area of the baseball cap and the cuttings from the inside of the baseball cap

were consistent with a mixture of the reference blood sample from the victim and

Defendant, and therefore, neither the victim nor the defendant could not be

excluded as DNA donors.

Ms. Montgomery explained that the data suggested there was a minor

contributor and a major contributor. She testified that she looked at two genetic
19-KA-363 17

markers to generate population frequencies. She further explained that

approximately one in 339 Caucasian individuals would have those two genetic

markers in their profile if she looked at random Caucasian individuals and that one

in 707 Hispanic individuals would have those genotypes if she randomly tested

that population. Ms. Montgomery noted that those two genotypes were rarer in the

Black/African-American population than they were in the Caucasian population.

Ms. Montgomery testified although DNA testing in 2018 was much more

discriminating than in 1996, she did not feel that that 2018 testing invalidated or

negated the earlier results in any way. Ms. Montgomery concluded that those tests

used to analyze the samples in 1996 were accurate and state of the art at the time.

Elaine Schneida, JPSO’s DNA Laboratory Director, was accepted as an

expert in the field of forensic DNA analysis. Ms. Schneida testified that she

conducted further testing in August of 2018 on the Raiders baseball cap and the

denim jeans. She stated that she tested several different locations on the baseball

cap for possible blood, but the tests were all negative. She acknowledged that there

was a positive result for blood on the baseball cap previously but explained that

either the sample was consumed or it degraded over time. Ms. Schneida further

stated that she also tested the jeans for possible blood, but all of the spots were

negative. She did not know how the evidence was stored but noted that extreme

heat and/or exposure to humidity or moisture, or light could degrade DNA. Ms.

Schneida stated that the results she obtained did not invalidate the prior positive

result.

Ms. Schneida testified that she also performed a DNA extraction on cuttings

from the baseball cap and the jeans. She asserted that the partial DNA profile

obtained from the cutting from the stain on the exterior right front pocket of the

jeans was consistent with being a mixture of DNA from at least two individuals,

one major contributor and at least one minor contributor. Ms. Schneida further
19-KA-363 18

asserted that the victim was excluded as the major contributor to the DNA in this

mixture. She testified that, due to the complexity of the mixture, the profile was

determined to be uninterpretable for inclusionary purposes, and therefore, no

conclusion could be made regarding the contributor status of Defendant. She was

also unable to develop any sort of profile from the baseball cap. Ms. Schneida

explained that the 2018 testing was not inconsistent with the findings from 1996

because they tested different sections of the jeans and cap – the samples tested in

1996 were no longer available for her to test.

Louise Walzer is a retired forensics firearm and toolmark examiner who was

recognized as an expert in her field by the trial court. She conducted an

examination on one large lead-like fragment, four small lead-like fragments, and

an unknown caliber copper jacket obtained from the victim during the autopsy.

Ms. Walzer concluded that the jacket was a .38 caliber class ammunition which

was more consistent with a .38 special or a 357 revolver. She noted that the jacket

in the instant case could not have been shot from the three weapons JPSO secured,

clearing other possible suspects JPSO found during their investigation.

Albert Majeau, an investigator for the Jefferson Parish District Attorney’s

Office, testified that, in August of 2018, he collected the jeans and the cap from the

Jefferson Parish Clerk of Court’s evidence custodian’s warehouse and brought

them to the District Attorney’s Office where they were locked in their climate

controlled evidence room. Later that month, he picked up the jeans and the cap

from the DA’s evidence room and delivered them to the Jefferson Parish Crime

Laboratory.

JPSO Chief Deputy Timothy Scanlan, commander of the technical services

bureau, oversaw the crime lab, the crime scene division, the DNA lab, records, and

the 9-1-1 call center. He informed the trial court that he still performed firearm

and toolmark examinations, crime scene reconstruction, and bloodstain pattern
19-KA-363 19

analysis. He was accepted as an expert in the fields of crime scene reconstruction

and bloodstain pattern analysis.

Deputy Scanlan testified that he was not employed with the JPSO in 1995;

however, he reviewed the lab reports, the autopsy report, and the crime scene

photos in the instant case. He concluded that the victim was shot in the back of the

head from the rear of the car going forward. Chief Deputy Scanlan also concluded

that there was post-attack activity after the bloodshed occurred. He noticed that

there was a lot of “stuff” out of place inside and outside of the car and that the

items had been rummaged through. He explained that the victim did not move

around in the car after he was shot but that there was someone who got an

accumulation of blood on himself and then transferred the blood around the car as

he moved from the front of the car rearward.

Chief Deputy Scanlan reviewed the crime scene photographs and testified

that although the victim’s injury was consistent with the shooter being in the rear

seat, he could not tell whether the shooter was in the driver-side or passenger-side

rear seat. He mentioned that a subtle change in the position of the victim’s head

would have changed the angle fairly significantly and that he could not tell whether

the victim moved immediately before he was shot. Chief Deputy Scanlan also

testified that he examined the Raiders baseball cap. He explained that there were

small amounts of blood on the cap that were “nondescript stains,” meaning that

those stains could be spatter stains where blood was projected or flung after the

shooting, or they could be non-spatter stains where the blood was transferred.

Chief Deputy Scanlan testified that he thought the cap had to be off of the head

because the blood stains were underneath the cap. He stated that the cap could have

been off the head lying down or taken off with bloody hands or that blood could

have been flung onto the cap.

19-KA-363 20

After the State rested its case, the defense called Elbert Ratcliff as a witness.

Mr. Ratcliff testified that he was convicted of second degree murder as a principal

for the killing of Mr. Adams and was serving a life sentence. Mr. Ratcliff advised

that he was diagnosed as a schizophrenic around age eleven or twelve. He also

disclosed that he smoked crack every day in his twenties, but still takes Haldol.

Mr. Ratcliff knew people who lived at 713 Calhoun but he did not “hang out”

there. He asserted that people sold drugs on Calhoun and that he was on that street

“a lot.” Mr. Ratcliff stated that those were not his fingerprints at the crime scene,

that he was not present on Calhoun when the victim was murdered, and that he had

not been at the crime scene. Mr. Ratcliff also insisted he did not call King Cab that

night to go from Calhoun to Susan Park because he was in Destrehan with his

cousin, and he also had a car with full insurance. He also testified that he was not

a regular customer of King Cab and Ms. LaRocca lied when she said that she had

seen him in her cab before.

Mr. Ratcliff testified that he only said what the police told him to say. He

explained that the police wanted him to say that he was at the scene or had seen the

deceased victim. He also stated that the police told him that he was going to be

able to go home, that they knew he did not commit the crime but wanted him to

point the finger at someone else, that they knew who did it, and that if he did not

tell them who that person was, he would be booked with first degree murder.

Mr. Ratcliff claimed that everything he told the police was a lie except when

he told them the first time that he was not at the scene. Mr. Ratcliff acknowledged

telling the police that he saw the victim after he died and that he went through the

victim’s “stuff.” He admitted that he told the police during his first statement that

he was “high.” Mr. Ratcliff denied that he and Defendant were partners, or

friends, and he testified that they did not “hang out” together. He explained that he

19-KA-363 21

had chased Defendant off of Calhoun a couple of times trying to “jack” Defendant

and get drugs from him.

Mr. Ratcliff testified that the police wanted him to say in his third statement

that he saw the victim get killed, and he recalled telling Lt. Sacks that Defendant

shot the victim. Mr. Ratcliff claimed that he implicated Defendant because he had

heard “on the street” that Defendant shot the victim. Mr. Ratcliff denied signing

the photographic lineup identifying Defendant as the shooter. He also did not

recall telling the assistant district attorneys that he saw Defendant shoot the victim

that night.

After the defense rested its case, the State called Lt. Sacks as a rebuttal

witness. Lt. Sacks testified that he met with Mr. Ratcliff at the detective bureau,

told him he was under arrest for first degree murder, and advised him of his rights.

He indicated that Mr. Ratcliff waived his rights and gave several statements. Lt.

Sacks asserted that he did not tell Mr. Ratcliff he could go home if he pointed the

finger at someone else. He testified that Mr. Ratcliff told him that he saw

Defendant shoot the victim. Lt. Sacks stated that he showed Mr. Ratcliff a

photographic lineup and Mr. Ratcliff positively identified Defendant as the person

who shot the victim. Lt. Sacks thought Mr. Ratcliff was “coherent” when JPSO

took his statements and he did not know that Mr. Ratcliff was diagnosed with

schizophrenia as a young child. Lt. Sacks recalled that the first time he heard of

Defendant was in the car when he was taking Mr. Ratcliff to jail and Mr. Ratcliff

gave him Defendant’s name. Lt. Sacks emphasized that Mr. Ratcliff’s name came

up several times in his investigation as someone involved in the shooting, but he

did not know who Defendant was and Defendant’s name had not come up in the

investigation prior to Mr. Ratcliff mentioning it.

Six days after the trial began, a twelve-person jury unanimously found

Defendant guilty of second degree murder. On December 12, 2018, Defendant
19-KA-363 22

filed Motions for New Trial, to Bar a Life Without Parole Sentence for

Adolescents as Unconstitutional, and for Post-Verdict Judgment of Acquittal that

were denied on that same date. The trial court also sentenced Defendant to life

imprisonment at hard labor without benefit of parole, probation, or suspension of

sentence. Defendant filed a Motion to Reconsider Sentence that was denied on

February 8, 2019. Defendant then timely filed a Notice of Appeal that was granted

on March 14, 2019.

On appeal, Defendant asserts eighteen assignments of error and argues that,

if not individually, the cumulative errors require his conviction and sentence to be

reversed.

ASSIGNMENTS OF ERROR NUMBER ONE

There is insufficient evidence to support a jury’s finding of second-degree murder.

DISCUSSION

In reviewing the sufficiency of evidence, an appellate court must determine

that the evidence, whether direct or circumstantial, or a mixture of both, viewed in

the light most favorable to the prosecution, was sufficient to convince a rational

trier of fact that all of the elements of the crime have been proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); State v. Neal, 00-674 (La. 6/29/01); 796 So.2d 649, 657, cert. denied,

535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Earls, 12-448 (La.

App. 5 Cir. 12/11/12); 106 So.3d 1149, 1154, writ denied, 13-132 (La. 9/20/13);

122 So.3d 1012. Encompassed within proving the elements of an offense is the

necessity of proving the identity of the defendant as the perpetrator. State v.

Nelson, 14-252 (La. App. 5 Cir. 3/11/15); 169 So.3d 493, 500, writ denied, 15-

685 (La. 2/26/16); 186 So.3d 468. Where the key issue is identification, the

State is required to negate any reasonable probability of misidentification in

order to carry its burden of proof. Id.
19-KA-363 23

Defendant argues that the evidence was insufficient to support his second

degree murder conviction. He contends that there was no direct evidence that he

shot or attempted to rob the victim, and no physical evidence that connected him to

the crime scene, and therefore, the State’s case was strictly circumstantial.

Defendant asserts that the physical evidence was consistent with Mr. Ratcliff being

the shooter, getting blood on his hands, and rummaging through the front of the

cab in an attempt to rob the victim. He further asserts that the forensic evidence

shows that Mr. Ratcliff was sitting behind the victim in the rear driver-side seat

when the victim was shot in the left back of the head and that Defendant was

sitting in the rear passenger-side seat.

Defendant also argues that Ms. Pollard’s testimony was not credible or

reliable because she lied to the police during her interrogation and because she had

an interest in testifying favorably for the State. Defendant contends that Mr.

Ratcliff was a violent, drug addicted, mentally ill man, and therefore, his

statements to the police were not credible or reliable. He maintains that there was

no evidence that he and Mr. Ratcliff planned to rob the victim, or that he had a

weapon, or knew Mr. Ratcliff had a weapon.

The State responds that it presented sufficient evidence to sustain

Defendant’s conviction for second degree murder. It further responds that

Defendant’s claim that there was no direct evidence that he shot or attempted to

rob the victim is untrue. The State points out that he admitted to Quinice Pollard

that he was attempting to rob the victim and that while he was holding the gun to

the victim’s head, it “accidentally” went off. It contends that confessions are

considered to be direct evidence of guilt, citing State v. Faciane, 17-224 (La. App.

5 Cir. 11/15/17); 233 So.3d 195, 207, writ denied, 17-2069 (La. 10/8/18); 253

So.3d 797.

The State further contends that Ms. Pollard’s testimony was sufficient to
19-KA-363 24

sustain the conviction. It argues that even if Defendant “accidentally” shot the

victim and thus did not have the specific intent to kill or to inflict great bodily

harm upon Mr. Adams, by Defendant’s own admission to Ms. Pollard, he was

committing either an armed robbery or an attempted armed robbery of Mr.

Adams which resulted in Mr. Adams’ death. Thus, the State argues that, under

either theory of second degree murder, the evidence was sufficient to support

the conviction.

The State also asserts that Defendant seeks to exculpate himself by claiming

that the forensic evidence supports his innocence; however, the State argues that

the forensic evidence was entirely consistent with Defendant’s guilt. The State

maintains that evidence other than Ms. Pollard’s testimony puts Defendant at the

scene, including Mr. Adams’s blood on defendant’s baseball cap and Defendant’s

statements to Lt. Sacks wherein he placed himself at the scene and acknowledged

being in the cab and getting Mr. Adams’ blood on his baseball cap. The State also

responds that Defendant’s claims regarding Ms. Pollard’s inconsistencies, motives,

and other supposed issues with her testimony were explored by Defendant at trial,

yet the jury chose to find her credible and unanimously found Defendant guilty as

charged.

In cases involving circumstantial evidence, the trial court must instruct the

jury that “assuming every fact to be proved that the evidence tends to prove, in

order to convict, it must exclude every reasonable hypothesis of innocence.” La.

R.S. 15:438. The reviewing court is not required to determine whether another

possible hypothesis of innocence suggested by the defendant offers an

exculpatory explanation of events. Rather, the reviewing court must determine

whether the possible alternative hypothesis is sufficiently reasonable that a

rational juror could not have found proof of guilt beyond a reasonable doubt.

State v. Mitchell, 99-3342 (La. 10/17/00); 772 So.2d 78, 83; State v. Washington,
19-KA-363 25

03-1135 (La. App. 5 Cir. 1/27/04); 866 So.2d 973, 977.

In the absence of internal contradiction or irreconcilable conflict with

physical evidence, one witness’s testimony, if believed by the trier of fact, is

sufficient to support a requisite factual finding. State v. Caffrey, 08-717 (La.

App. 5 Cir. 5/12/09); 15 So.3d 198, 203, writ denied, 09-1305 (La. 2/5/10); 27

So.3d 297. A reviewing court may impinge on the fact-finder’s discretion only to

the extent necessary to guarantee the fundamental due process of law. State v.

Harris, 02-1589 (La. 5/20/03); 846 So.2d 709, 713 (citing State v. Mussall, 523

So.2d 1305, 1310 (La. 1988)).

Defendant was convicted of second degree murder, which is defined in La.

R.S. 14:30.1 as the killing of a human being when the offender: 1) has specific

intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or

attempted perpetration of one of several enumerated felonies, even though he has

no intent to kill or to inflict great bodily harm. State v. Lewis, 05-170 (La. App. 5

Cir. 11/29/05); 917 So.2d 583, 589-90, writ denied, 06-757 (La. 12/15/06); 944

So.2d 1277. Here, the written jury charges, signed by the trial judge, reflect that

the jury was informed it could convict Defendant under the theory that he had the

specific intent to kill or inflict great bodily harm upon the victim or because

Defendant was engaged in the commission or attempted commission of an armed

robbery.4

Specific intent is “that state of mind which exists when the circumstances

indicate that the offender actively desired the prescribed criminal consequences

4
Armed robbery is defined in La. R.S. 14:64 as “the taking of anything of value belonging to another from the
person of another or that is in the immediate control of another, by use of force or intimidation, while armed with
a dangerous weapon.”
Attempt is defined in La. R.S. 14:27 as “any person who, having a specific intent to commit a crime, does
or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt
to commit the offense intended; and, it shall be immaterial whether, under the circumstances, he would have
actually accomplished his purpose.”

19-KA-363 26

to follow his act or failure to act.” La. R.S. 14:10(1). Because specific intent is a

state of mind, it need not be proven as a fact, but may be inferred from the

circumstances and actions of the accused as well as the extent and severity of the

victim’s injuries. State v. Bone, 12-34 (La. App. 5 Cir. 9/11/12); 107 So.3d 49,

58, writ denied, 12-2229 (La. 4/1/13); 110 So.3d 574. Whether a defendant

possessed the requisite intent in a criminal case is a question for the trier of fact,

and a review of the correctness of this determination is guided by the Jackson

standard. State v. Gonzalez, 07-449 (La. App. 5 Cir. 12/27/07); 975 So.2d 3, 8,

writ denied, 08-228 (La. 9/19/08); 992 So.2d 949.

Specific intent to kill can be inferred from the intentional use of a deadly

weapon such as a knife or a gun. State v. Knight, 09-359 (La. App. 5 Cir.

2/9/10); 34 So.3d 307, 317, writ denied, 10-2444 (La. 10/21/11); 73 So.3d 376.

Specific intent may be inferred from the circumstances and from the defendant’s

actions, and the intent to kill or to inflict great bodily harm may be inferred from

the extent and severity of the victim’s injuries. A defendant’s act of aiming a

lethal weapon and discharging it in the direction of the victim supports a finding

by the trier of fact that the defendant acted with specific intent to kill. State v.

Bonilla, 15-529 (La. App. 5 Cir. 2/24/16); 186 So.3d 1242, 1253, writ denied,

16-567 (La. 5/2/16); 206 So.3d 881, cert. denied, -- U.S. --, 137 S.Ct. 239, 196

L.Ed.2d 183 (2016).

In the instant case, the jury was instructed regarding the law of principals.

Under La. R.S. 14:24, “[a]ll persons concerned in the commission of a crime,

whether present or absent, and whether they directly commit the act constituting

the offense, aid and abet in its commission, or directly or indirectly counsel or

procure another to commit the crime, are principals.” Only those persons who

“knowingly participate in planning or execution of a crime” are principals to that

crime. State v. Pierre, 93-893 (La. 2/3/94); 631 So.2d 427, 428; State v. King, 06-
19-KA-363 27

554 (La. App. 5 Cir. 1/16/07); 951 So.2d 384, 390, writ denied, 07-371 (La.

5/4/07); 956 So.2d 600.

An individual may only be convicted as a principal for those crimes for

which he personally has the requisite mental state. King, supra. The mental state

of one defendant may not be imputed to another defendant. Thus, mere presence

at the scene of a crime does not make one a principal to the crime. Id. However,

“[i]t is sufficient encouragement that the accomplice is standing by at the scene

of the crime ready to give some aid if needed, although in such a case it is

necessary that the principal actually be aware of the accomplice’s intention.”

State v. Anderson, 97-1301 (La. 2/6/98); 707 So.2d 1223, 1225 (per curiam). In

State v. Hill, 98-1087 (La. App. 5 Cir. 8/31/99); 742 So.2d 690, 696-97, writ

denied, 99-2848 (La. 3/24/00); 758 So.2d 147, this Court upheld the defendant’s

second degree murder conviction after the jury determined he was at least a

principal to the crime. This Court determined that: 1) the defendant chose to

remain with the co-defendant, at the murder scene, with knowledge, by his own

admission, that his co-defendant planned to rob the victim; 2) the defendant did

nothing to prevent the crime; and 3) the defendant did not come to the victim’s

aid after the shooting, but rather fled the scene. See also State v. Page, 08-531

(La. App. 5 Cir. 11/10/09); 28 So.3d 442, 449-50, writ denied, 09-2684 (La.

6/4/10); 38 So.3d 299.

In the instant case, the State introduced evidence to show that Defendant

either killed the cab driver or was at least a principal to the crime. Quinice Pollard

testified that Defendant was her ex-boyfriend, that he and Mr. Ratcliff sold drugs

together, and that Defendant was the “head drug dealer.” She further testified

that, although Defendant offered several explanations about what happened that

early morning, she believed Defendant when he told her that while he and Mr.

Ratcliff were attempting to rob the cab driver, Defendant put the gun to the cab
19-KA-363 28

driver’s head, and the gun accidentally discharged, and blood got on his clothes.

Ms. Pollard testified that Defendant owned a revolver which she had seen before

and had with him when he told her about what happened. She also testified that,

while Defendant was incarcerated, he sent letters to her asking her to change her

statement, to not present at court to testify, to talk to her sister about changing her

statement, and to talk to other people about helping him out. Quinice also testified

that in some of the letters, Defendant threatened to kill her or to send someone

else to kill her if she betrayed him.

Lt. Sacks testified that Defendant gave a statement wherein he explained

that he and Mr. Ratcliff got into the backseat of the cab, after which Defendant

tried to sell fake drugs to the victim, and Mr. Ratcliff “pretended” to sell a Guess

shirt. Defendant stated to Lt. Sacks that when the cab driver said he was not

interested in buying anything, Mr. Ratcliff told the driver to “give it up.”

Defendant said that then the cab driver slowly pulled off and reached for the

radio, after which Mr. Ratcliff shot him in the head. Defendant noted that the

victim’s blood got on his clothing. In his statement, Defendant said that after the

shooting, they exited the vehicle, Mr. Ratcliff rummaged through the front seat

and the victim’s pockets. Defendant noticed some business cards on the ground.

Lt. Sacks also testified that Defendant exclaimed that the blood on his cap was the

cab driver’s blood when Defendant tried to avoid having his blood sample drawn.

We find that the evidence is sufficient under the Jackson standard to support

Defendant’s second degree murder conviction. Similar to Page, supra, Defendant

remained with Mr. Ratcliff at the scene, did nothing to prevent the crime, fled the

scene rather than render aid to the victim, and did not attempt to report the

shooting. Defendant, through statements to police and his girlfriend at the time,

placed himself at the scene of the crime. Defendant’s statement to the police was

that he tried to sell “fake drugs” then Mr. Ratcliff attempted to sell the victim a
19-KA-363 29

shirt, before Mr. Ratcliff shot the cab driver. Mr. Ratcliff testified that he only

implicated Mr. Chester because the police told him to, but Lt. Sacks and Ms.

Pollard testified that Defendant himself admitted he was involved. According to

Ms. Pollard, Defendant said that he accidentally shot the victim, but also said that

Mr. Ratcliff shot the victim. We find that the evidence is sufficient to establish

that Defendant was either the shooter or a principal to the shooting. The trier of

fact shall evaluate credibility, and when faced with a conflict in testimony, is free

to accept or reject, in whole or in part, the testimony of any witness. State v.

Bradley, 03-384 (La. App. 5 Cir. 9/16/03); 858 So.2d 80, 84, writs denied, 03-2745

(La. 2/13/04); 867 So.2d 688 and 08-1951 (La. 1/30/09); 999 So.2d 750. After

listening to the testimony and considering all of the evidence, the jury found the

State’s witnesses more credible. It is not the function of the appellate court to

assess credibility or re-weigh the evidence. State v. Smith, 94-3116 (La. 10/16/95);

661 So.2d 442, 443.

ASSIGNMENT OF ERROR NUMBER TWO

The trial court erred in admitting Mr. Chester’s custodial statements.

DISCUSSION

The State has the burden of proving the admissibility of a purported

confession or statement by the defendant. La. C.Cr.P. art. 703(D); State v. Arias-

Chavarria, 10-116 (La. App. 5 Cir. 9/28/10); 49 So.3d 426, 433, writ denied, 10-

2432 (La. 2/25/11); 58 So.3d 460. The trial court’s denial of a motion to suppress

is afforded great weight and will not be set aside unless the preponderance of the

evidence clearly favors suppression. State v. Bellow, 07-824 (La. App. 5 Cir.

3/11/08); 982 So.2d 826, 829.

Before an inculpatory statement made during a custodial interrogation may

be introduced into evidence, the State must prove, beyond a reasonable doubt, that

19-KA-363 30

the defendant was first advised of his Miranda rights, that he voluntarily and

intelligently waived them, and that the statement was made freely and voluntarily

and not under the influence of fear, intimidation, menaces, threats, inducements, or

promises. State v. Loeb, 09-341 (La. App. 5 Cir. 2/23/10); 34 So.3d 917, 924-25,

writ denied, 10-681 (La. 10/15/10); 45 So.3d 1110.

Defendant argues that the trial court erred by denying the motions to

suppress his statements because of Defendant’s limited intellect and diminished

mental capacity, and because the State did not adequately prove that those

statements were voluntarily and intelligently given and were not the product of

coercion. Defendant’s statements were made to detectives over a five-hour period.

Lt. Sacks testified that Defendant, who had only turned eighteen years old a few

months prior, arrived at the bureau at 11:00 am on March 18, 1996 and was

advised of his Miranda rights by Deputy Rocky Burr. He further testified that he

got Defendant something to drink and made bathroom facilities available if he

needed them. Lt. Sacks said that he advised Defendant of his Miranda rights using

a standard JPSO waiver of rights form. He said that he read the form out loud and

gave Defendant an opportunity to read the form for himself and Defendant did not

have any questions.

After Defendant signed the form, there was an unrecorded pre-interview,

before he made a recorded statement. Lt. Sacks advised that Defendant did not ask

to stop or ask for an attorney. Lt. Sacks spoke with Defendant again before taking

another recorded statement and he testified that, again, Defendant did not request

to stop or ask for an attorney. He further stated that he did not do anything to force,

threaten, or coerce Defendant into making another statement.

Lt. Sacks testified that Defendant exclaimed, “I already told you that it was

the cab driver’s blood,” while JPSO attempted to execute a search warrant to

obtain a sample of Defendant’s blood for comparative analysis. Lt. Sacks testified
19-KA-363 31

that Defendant was not re-advised of his Miranda rights, but his statement, made

before his blood was drawn, which defense counsel argues was involuntary and

unreliable, was made prior to being held down by deputies and not in response to

questioning.

A determination of voluntariness is made on a case-by-case basis, depending

on the totality of the facts and circumstances of each situation. The admissibility

of a confession or statement is a determination for the trial judge, and the judge’s

conclusions on the credibility and weight of the testimony relating to the voluntary

nature of the confession or statement are entitled to great weight and will not be

overturned unless unsupported by the evidence. Testimony of the interviewing

police officer alone may be sufficient proof that a defendant’s statements were

freely and voluntarily given. Arias-Chavarria, 49 So.3d at 433.

In determining whether the trial court’s ruling on the motion to suppress is

correct, an appellate court is not limited to the evidence presented at the

suppression hearing; it may also review relevant evidence presented at trial. State

v. Poupart, 11-710 (La. App. 5 Cir. 2/28/12); 88 So.3d 1132, 1140, writ denied,

12-705 (La. 10/8/12); 98 So.3d 867.

In State v. Doyle, 11-597 (La. 3/23/11); 56 So.3d 948, 949, the supreme

court ruled that a “defendant may introduce evidence of mental retardation, defect,

and/or diminished capacity at the guilt stage of trial as part of the circumstances

surrounding the making of a confession for jurors to consider in determining the

weight or probative value given the statement.” “This limited purpose stands in

contrast to introducing such evidence on the issue of guilt or innocence.” See

generally, La. C.Cr.P. art. 651 (“When a defendant is tried upon a plea of ‘not

guilty,’ evidence of insanity or mental defect at the time of the offense shall not be

admissible.”)

19-KA-363 32

The Louisiana Supreme Court has noted that diminished mental or

intellectual capacity does not itself vitiate the ability to knowingly and intelligently

waive constitutional rights and make a free and voluntary confession. State v.

Benoit, 440 So.2d 129, 131 (La. 1983). Thus, low intellect, moderate mental

retardation, or diminished mental capacity does not per se and invariably vitiate

capacity to make a knowing and intelligent Miranda waiver. State v. Manning, 03-

1982 (La. 10/19/04); 885 So.2d 1044, 1074, cert. denied, 544 U.S. 967, 125 S.Ct.

1745, 161 L.Ed.2d 612 (2005). In cases involving allegations of diminished

mental capacity, a defendant has the burden of proving the existence of any mental

abnormality that might render his confession per se involuntary. A diminished

intellectual capacity does not alone vitiate the ability to knowingly and intelligently

waive constitutional rights and make a free and voluntary confession. The critical

factor is whether the defendant was able to understand the rights explained to him

and voluntarily gave the statement. State v. Pugh, 02-171 (La. App. 5 Cir.

10/16/02); 831 So.2d 341, 352-53.

In State v. Chester, 15-2304 (La. 12/16/16); 208 So.3d 338, after his

conviction for first degree murder and sentence of death on direct appeal was

affirmed, Defendant filed an application for post-conviction relief arguing that

his counsel erred in litigating the motion to suppress his custodial statements

because she failed to show the statements were not made pursuant to a valid

waiver. Defendant argued that he was a scared-eighteen-year-old with

intellectual disabilities—circumstances which should have prompted counsel to

argue that he could not have understood his rights well enough to knowingly and

intelligently waive them.

The Louisiana Supreme Court found that because Defendant expressly

waived his rights, the question was whether his waiver was knowing and

intelligent under the totality of the circumstances, including his “background,
19-KA-363 33

experience, and conduct,” and that his alleged diminished capacity was but one

factor to consider. The supreme court further found:

His assertion that it was nevertheless invalid because of his
youth and low intellect, as evinced by his reading and language
comprehension deficits, without more, is insufficient to vitiate
his waiver. See 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 and internal quotes
omitted); see also State v. Holmes, 06-2988, pp. 20-21, 43 (La.
12/2/08), 5 So.3d 42, 59-60, 72-73 (defendant with IQ of 77
and fetal alcohol syndrome made knowing and intelligent
waiver); Green, 94-0887, pp. 7-19, 655 So.2d at 278-845
(mildly retarded defendant’s waiver was knowing and
intelligent, despite psychologist’s testimony that he was unable
to comprehend his rights, because psychologist also testified he
was educable and could be made to understand, and officers
testified he understood, at least partially because of his criminal
history); compare State v. Istre, 407 So.2d 1183, 1186-87 (La.
1981) (19-year-old with IQ of 68 who did not know his own
age intelligently waived his rights, which were explained in
simplistic terms); and 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 IQ between 50 and
69, coupled with ambivalent police testimony about whether he
understood the rights, supported conclusion he was incapable of
executing a valid waiver).

Under the circumstances, we find that the state would
have carried its burden of proving that Chester’s waiver was
knowing and intelligent, had trial counsel attacked the
statements’ admissibility on these grounds. Thus, Chester
cannot show that his motion to suppress would have been
granted but for trial counsel’s omission. See generally Ortiz-
Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003)
(petitioner must show the overlooked motion would have been
meritorious and a reasonable probability of a different verdict
absent the alleged error) (citing Kimmelman v. Morrison, 477
U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). [Footnote
added].

Id. at 344-45. We find that, although Defendant stated that he had a limited

education and could not read very well, he did not prove the existence of any

5
State v. Green, 94-887 (La. 5/22/95); 655 So.2d 272.

19-KA-363 34

mental abnormality that might render his confession per se involuntary.6

Defendant further complains that his pre-interviews were not recorded.

He made this same complaint in his motion to suppress statements, and it was

also raised in Defendant’s previous appeal. In State v. Flowers, 16-130 (La.

App. 1 Cir. 9/19/16); 204 So.3d 271, writ denied, 16-1871 (La. 9/6/17); 224

So.3d 983, the defendant argued that the trial court erred in denying his motion

to suppress his statement. He complained that only eight minutes of a three-and-

one-half-hour interview were recorded. According to the defendant, he was

denied his rights under La. R.S. 15:4507 because a portion of the interview was

not recorded and the hours that the defendant was alone in the room with the

detective likely would offer some explanation as to what led the defendant to

make the statement. The appellate court found that the defendant’s confession

was properly admitted in compliance with La. R.S. 15:450. It further found that,

despite the fact that not all of the defendant’s conversation with the detective

was taped, the entire tape recording of the confession was played before the jury

at the defendant’s trial, and the detective explained what was discussed during

the remainder of the conversation. The appellate court noted that according to

the detective, prior to the recorded statement, he explained the allegations and

6
Additionally, the record reflects that on November 12-15, 2013, the trial court held an extensive hearing
regarding Defendant’s claim of mental retardation pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153
L.Ed.2d 335 (2002), prior to the granting of federal habeas corpus relief (on different grounds). In Atkins v.
Virginia, the Supreme Court held that the execution of mentally retarded persons (now referred to as intellectually
disabled persons) constitutes excessive punishment and therefore violates the Eighth Amendment. Although the
contents of the Atkins hearing and the ruling were not admitted into evidence at the suppression hearing or at trial in
the instant case, it is noted that the same judge who presided over that hearing presided over the trial in the instant
case. In a written judgment dated December 5, 2013, the trial court stated that Defendant had an average IQ, and
the judge denied Defendant’s claim, stating in pertinent part:
In summary, Petitioner fails to meet his burden of proving he is mentally retarded by
preponderance of evidence. Petitioner did not submit sufficient evidence to meet this burden.
Moreover, the State presented ample evidence that Petitioner is not mentally retarded. The
court has had the opportunity to observe Petitioner in court on several occasions, and is
impressed with petitioner’s intellectual abilities to discuss complicated legal issues with an
obvious degree of understanding. Petitioner has also filed numerous pleadings and has a strong
grasp of the law in areas at issue.
7
La. R.S. 15:450 provides:
Every confession, admission or declaration sought to be used against any one must be
used in its entirety, so that the person to be affected thereby may have the benefit of any
exculpation or explanation that the whole statement may afford.

19-KA-363 35

charges to the defendant. Id. at 278-80; State v. Chism, 08-474 (La. App. 5 Cir.

12/16/08); 3 So.3d 41, writ denied, 09-153 (La. 10/2/09); 18 So.3d 102.

In State v. Thibodeaux, 98-1673 (La. 9/8/99); 750 So.2d 916, cert. denied,

529 U.S. 1112, 120 S.Ct. 1969 (2000), the defendant maintained that his due

process rights were violated because the officer talked to him while the tape

recorder was turned off. The Louisiana Supreme Court held:

[T]here is no due process requirement that a statement given to the
police must be recorded. Nor is there any support in the record for
the Defendant’s claim that a portion of his statement was unrecorded
somehow violated his due process rights or coerced him into giving a
confession. The law does not require the production of non-existent
portions of the confession or portions which cannot be recalled. State
v. Marmillion, 339 So.2d 788, 793 (La. 1976). In the absence of proof
to the contrary, the fact that the purported statement of the accused as
testified to by the investigating officer does not consist of a verbatim
reiteration of the conversation between them due to the witness’s
inability to recall or other valid explanation does not violate the rights
of the accused. State v. Lefevre, 419 So.2d 862, 867 (La.1982).

Id. at 923-24.

Even though there were unrecorded pre-interviews, we find Defendant’s

custodial statements were properly admitted in compliance with La. R.S. 15:450.

As in Flowers, the record in the instant case reflects that both of Defendant’s

custodial statements were played before the jury in their entirety and that Lt. Sacks

explained what was discussed during the remainder of the conversation. Also, as

in Chism, we find that the jurors in the instant case were made aware of the

circumstances under which Defendant made the incriminating statements to the

lieutenant (then detective) and that the jury had an adequate basis for deciding the

credibility issue against Defendant. Further, the law does not require the

production of non-existent portions of the confession or portions which cannot be

recalled. See Thibodeaux, supra.

Next, Defendant argues that the statements should have been suppressed

because he was detained and questioned for a long period of time. Defendant said

19-KA-363 36

that he was detained and/or questioned for approximately six hours. Lt. Sacks

testified that Defendant was brought to the detective bureau at 11:00 a.m. The

rights of arrestee form is dated March 18, 1996, at 1536 hours (3:36 p.m.). The

record reflects that Defendant’s first statement was taken at 4:22 p.m., and his

second statement was taken at 5:11 p.m. and concluded at 5:34 p.m.

In State v. Green, 19-123 (La. App. 5 Cir. 12/26/19); 286 So.3d 1230, this

Court found that the length of the interview did not render the defendant’s

statement involuntary. This Court recognized that “[a]lthough the statement was

approximately twelve and one-half hours long, the length of the interview was not

attributable to coercion, but rather, it was precipitated by the defendant’s deception

in denying his involvement in the homicides for many hours.” Id. at. 1240. This

Court further found that with respect to the conditions surrounding the statement,

the videotaped statement reflected that the defendant was allowed to use the

restroom and was given something to eat and drink. This Court noted that the

video also showed that the defendant rested and slept alone for periods of time in

the chair he was sitting in during the twelve-and-one-half-hour period. See also

State v. Bradley, 03-384 (La. App. 5 Cir. 9/16/03); 858 So.2d 80, writs denied, 03-

2745 (La. 2/13/04); 867 So.2d 688 and 08-1951 (La. 1/30/09); 999 So.2d 750;

State v. Blank, 04-204 (La. 4/11/07); 955 So.2d 90, cert. denied, 552 U.S. 994, 128

S.Ct. 494, 169 L.Ed.2d 346 (2007).

In the instant case, Defendant was at the detective bureau from 11:00 a.m.

until approximately 5:30 p.m. During that time, there were two pre-interviews and

two recorded statements. Although Defendant was detained approximately six and

one-half hours, he was not questioned the entire time. This Court finds, as we did

in Green and Bradley, that the length of the interview was not attributable to

coercion, but rather, it was precipitated by Defendant’s deception in his initial

19-KA-363 37

statement. Also, we note that Defendant was given something to drink and

allowed to use the bathroom facilities as needed. Defendant also argued that there

was no proof that in the lengthy time periods during which the tape recorder was

intentionally turned off, no law enforcement officer exerted any coercion,

intimidation, or undue influence on him. However, Lt. Sacks testified that none of

the JPSO investigators in the homicide division applied any force or coercion to

Defendant for him to make a statement. Further, he knowingly and voluntarily

waived his rights and never invoked his right to remain silent while speaking to Lt.

Sacks. Therefore, we find that the trial court did not err in denying the motion to

suppress on this ground.

Defendant additionally contends that his statement at the time his blood was

drawn should have been suppressed. Lt. Sacks recalled that he went to the

correctional facility and met with Defendant in the medical pod to advise Defendant

that he had a search warrant to obtain blood from him. He testified that Defendant

then said, “I already told you it was the cab driver’s blood.” Lt. Sacks said that he

did not ask Defendant any questions. Lt. Sacks recalled that Defendant was

uncooperative and had to be held down on a gurney by three deputies so medical

personnel could procure the sample. He did not believe Defendant was handcuffed

at the time. He further testified that he did not re-advise Defendant of his Miranda

rights. Lt. Sacks stated that he did not force, threaten, or coerce Defendant into

making that statement at the time his blood was drawn.

The obligation to provide Miranda warnings attaches when a person is

questioned by law enforcement after he has been taken into custody or otherwise

deprived of his freedom of action in any significant way. Miranda, 384 U.S. at

444, 86 S.Ct. at 1612; State v. Payne, 01-3196 (La. 12/4/02); 833 So.2d 927, 934.

As such, Miranda warnings are applicable only when it is established that the

19-KA-363 38

defendant has been subject to a “custodial interrogation.” Interrogation under

Miranda refers not only to express questioning but also to any words or actions on

the part of the police (other than those normally attendant to arrest and custody)

that the police should know are reasonably likely to elicit an incriminating

response from the suspect. Payne, 833 So.2d at 938.

Spontaneous and voluntary statements, not given as a result of police

interrogation or compelling influence, are admissible without Miranda warnings

even where a defendant is in custody. State v. Castillo, 389 So.2d 1307, 1310 (La.

1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1004 (1981). Police

officers are not obliged to ignore spontaneous and unsolicited statements by

someone in custody, as long as the statements do not result from police-initiated

custodial interrogation or questioning “reasonably likely to elicit an incriminating

response.” State v. Ross, 95-1798 (La. 3/8/96); 669 So.2d 384, 386. Even if a

suspect is in custody, one’s spontaneous statements need not be suppressed

because they are not the product of custodial interrogation. See State v. Smith, 00-

1838 (La. 5/25/01); 785 So.2d 815, 817.

In the instant case, the record reflects that Lt. Sacks informed Defendant of

his intention to draw blood pursuant to the warrant, after which Defendant made a

spontaneous statement to Lt. Sacks that the blood on the cap was the cab driver’s

blood. We find that Defendant’s spontaneous statement to Lt. Sacks was not made

in response to questioning, and therefore, it need not be suppressed.

Based on the foregoing, we find that the trial court did not abuse its

discretion by denying Defendant’s motion to suppress his statements.

ASSIGNMENT OF ERROR NUMBER THREE

The trial court erred in allowing the State to admit fifty-two pages of incomplete
letters.

19-KA-363 39

DISCUSSION

Defendant argues that the trial court erred by allowing the State to admit

fifty-two pages of incomplete and confusing letters that he allegedly wrote to his

girlfriend, Quinice Pollard. He further argues that the letters were more prejudicial

than probative and should have been excluded. Defendant contends that the

letters were the product of an immature and cognitively-disabled teenager

struggling to do what he could to help his case. He also contends that the letters

painted a one-sided version of their communication. Defendant asserts that he

never told Ms. Pollard to lie but instead to “help him out.” He maintains that the

context of the letters is unclear and impossible to clarify given the passage of time

and his right not to testify.

The State responds that the trial court did not err by admitting letters

Defendant wrote to Ms. Pollard. It further responds that it introduced the letters

to show Defendant’s threats toward Ms. Pollard and his attempts to get her to not

cooperate with the prosecution. The State maintains that it was not attempting to

“cherry pick” parts of the letters and that it introduced all of the letters in its

possession subject to agreed-upon redactions. It argues that ruling the letters

inadmissible due to missing pages that could not be located would lead to absurd

and inequitable results as the Louisiana Supreme Court “likely recognized” in

State v. Marmillion, 339 So.2d 788 (La. 1976).

The State asserts that probative evidence should not be rendered

inadmissible due to limited portions of evidence being unavailable through no

fault of the State or of Defendant. It further asserts that Defendant was free to

explore the incomplete nature of the letters and to posit his own interpretation of

the content of the letters to the jury. The State contends that while Defendant

claimed the incomplete letters only showed that he was a dangerous ex-boyfriend

19-KA-363 40

who threatened to kill Ms. Pollard, the defense, during cross-examination of Ms.

Pollard, highlighted for the jury the parts of the letters where Defendant

demonstrated care toward Ms. Pollard and her daughter. The State argues that

under the circumstances, there is no violation of La. R.S. 15:450, which requires

that every declaration must be used in its entirety.

On August 31, 2018, the State filed State’s Notice of Intent to Use Other

Acts Evidence Pursuant to La. C.E. Article 404(B). In that notice, the State sought

to introduce evidence of other acts at trial, namely, multiple letters Defendant

wrote to his girlfriend, Quinice Pollard, while he was incarcerated. In the letters,

Defendant threatened to kill Ms. Pollard if she left him for another man and told

her to change her statement, testify that she did not remember what Defendant

told her, or if she saw him with the gun, and to tell her sister and the other

witnesses to help by not coming to court. The State indicated that the letters

written to Quinice to attempt to dissuade her from testifying about his confessions

were highly probative and relevant to prove identity, opportunity, plan, intent,

guilty knowledge, and absence of mistake or accident.

On September 7, 2018, at the hearing on the motion, the trial judge denied

the motion in limine to exclude the evidence, explaining that she was allowing the

letters in their entirety. The court also asked counsel to try to come to a consensus

on redacting portions of the letters.

Defendant filed a writ application challenging the trial judge’s ruling. On

September 14, 2018, this Court denied the writ application, stating in pertinent

part:

In its motion filed pursuant to La. C.E. art. 404(B), the State
first requested leave to introduce letters relator wrote to his girlfriend,
Quinice Pollard, and her sister, Kaprice Pollard, which include threats
and attempts to influence their testimony against him. The State notes
that in his statement, relator claimed Elbert Ratcliff shot the victim
and relator further claimed he was unaware of the armed robbery
committed by Ratcliff and was just trying to sell fake drugs to the
19-KA-363 41

victim. The State notes that Quinice Pollard and her sister, Kaprice,
will testify that relator confessed to participating in the armed robbery
and murder. The State argues that relator’s threats and attempts to
influence their testimony is relevant to negating relator’s defense and
establishing his guilty knowledge and intent to commit the murder.

Other crimes evidence may be used to prove knowledge when
proof of such knowledge is required to establish guilt. State
v.Silguero, 608 So.2d 627, 629 (La. 1992); State v. Leday, 11-1022
c/w 12-54 (La. App. 5 Cir. 6/28/12), 97 So.3d 501, 505, writ denied,
12- 1765 (La. 3/1/13) 108 So.3d 788. Guilty knowledge is used to
negate an innocent explanation for an undoubtedly unlawful act, as
possibly done unknowingly. Id.

We find the trial court did not abuse its discretion in granting
the State’s motion to introduce relator’s jailhouse letters. We agree
with the State’s position that the letters contain relevant evidence to
establish guilty knowledge and further agree the probative value of
these letters outweighs any potential prejudice. We further note that at
the hearing on this motion, the State offered to redact irrelevant
portions of the letters if relator does not want to introduce the letters
in their entirety.

See State v. Chester, 18-K-525 (La. App. 5 Cir. 9/14/18) (unpublished writ

disposition).

On September 17, 2018, defense counsel moved to exclude any of the

letters that were incomplete. The prosecutor responded that the trial court had

already ruled that all of the letters were admissible. Later that day, Defendant

filed a Motion in Limine to Exclude Incomplete Statements Attributed to the

Defendant. In that motion, Defendant acknowledged the existing order allowing

the letters to be admitted but argued that they should not be admitted because the

letters were missing pages and La. R.S. 15:450 prohibited the introduction of

incomplete confessions, admissions, or declarations. Defendant contended that

introduction of these letters in their current form would cause a material injustice

at trial as statements attributed to him would be presented to the jury without a

full understanding of the context and circumstances surrounding the statements.

On September 19, 2018, at the hearing on the motion, the prosecutor

responded that the issue was moot, noting that he had attached all of the letters to

19-KA-363 42

his 404(B) motion, the objection was not raised timely, and the trial court and this

Court had already found those letters to be admissible. After hearing arguments

of counsel, the trial judge denied the motion to exclude the letters, stating in

pertinent part:

With respect to - - with respect to the statements, I mean, I’m
sorry, the letters, there’s been - - there’s a mo - - there’s been a motion
to exclude the letters on the grounds of lack of completeness. And I
think it’s 15:450 if I’m not mistaken is the statute that applies. What
has been produced and what is going - - what is intended to be offered
is all that is available to the State. The State’s not attempting to
cherry-pick parts and not present others. I believe that the intent of
15:450 is satisfied here, and I am denying the request to exclude the
letters.

Defendant filed a writ application challenging the trial court’s ruling.

This Court denied the writ, stating in pertinent part:

A motion in limine presents an evidentiary matter that is subject
to the great discretion of the trial court. State v. Calderon, 16-690
(La. App. 5 Cir. 4/12/17); 220 So.3d 830, 837. An appellate court will
not disturb the trial court’s rulings on the State’s motions in limine
absent an abuse of discretion. Id.

On the showing made, we do not find the trial court erred in
denying Relator’s motion. We note that Relator has an adequate
remedy on appeal in the event of a conviction. Accordingly, the writ
application is denied.

See State v. Chester, 18-K-542 (La. App. 5 Cir. 9/20/18) (unpublished writ
disposition)

Ultimately, the trial court admitted Defendant’s letters to Ms. Pollard for

record purposes only and without redactions, as well as Ms. Pollard’s letters to

Defendant, which the defense asserted showed that Ms. Pollard was not afraid of

Defendant and the two enjoyed a close, loving relationship at some point.

Under the doctrine of “law of the case,” an appellate court will generally

refuse to reconsider its own rulings of law on a subsequent appeal in the same

case. State v. Falcon, 13-849 (La. App. 5 Cir. 3/12/14); 138 So.3d 79, 87-88, writ

denied, 14-769 (La. 11/14/14); 152 So.3d 877. Reconsideration of a prior ruling is

warranted when, in light of a subsequent trial record, it is apparent that the
19-KA-363 43

determination was patently erroneous and produced unjust results. Id. We find

that there is no additional evidence in the subsequent trial record that would

suggest that this Court’s prior determination on this issue was patently erroneous

or produced unjust results and decline to reconsider this Court’s previous rulings

regarding the motion to exclude the letters.

ASSIGNMENT OF ERROR NUMBER FOUR

The trial court erred in failing to conduct a Daubert hearing for the 1996 DNA
testing.

ASSIGNMENT OF ERROR NUMBER FIVE

The trial court erred in admitting unreliable and prejudicial DNA evidence.

DISCUSSION8

Defendant argues that the trial court erred by failing to conduct a Daubert9

hearing for the 1996 testing; however, he failed to brief that assignment of error.

All specifications or assignments of error made to the courts of appeal must be

briefed; the court may consider as abandoned any specification or assignment of

error which has not been briefed. Uniform Rules – Courts of Appeal, Rule 2-

12.4; State v. Camp, 16-473 (La. App. 5 Cir. 3/15/17); 215 So.3d 969, 973.

Because Defendant has failed to brief this assignment, we will consider it waived

and pretermit further discussion of the issue.

Defendant also argues that the trial court erred by admitting unreliable and

prejudicial DNA evidence. He contends that the introduction of DNA evidence

which connected the victim to a blood spot found on a cap seized from his

brother’s house had such a low statistical probability of being Mr. Adams’ blood

that it unfairly prejudiced him at trial. He further argues that the statistical

8
The assignments of error are discussed together because they are related, and Defendant addresses them
together in his brief.
9
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
19-KA-363 44

probability of a match was so low as to be more prejudicial than probative. He

also contends that the State relied on the statistic of one in 339 Caucasian men

and women matching the profile of the blood found on the cap to support its

position that Defendant was inside of the cab during the shooting. Defendant also

asserts that the prosecutor overstated the probative value of the test results during

closing arguments. He argues that because the DNA testing did not produce

relevant results and confused the jury into believing that it proved more than it

did, this Court must grant him a new trial.

The State responds that the trial court did not abuse its discretion by

admitting this DNA evidence. It further responds that Defendant’s protestations

relative to the probative value of the DNA evidence properly go to the weight of

the evidence rather than its admissibility. The State argues that the mere fact that

the statistical probabilities from tests performed in 1996 are not as discriminating

as the statistical probabilities from tests performed with modern technology does

not make the scientific methodology “unreliable” in any way. It also argues that

the scientific methodology is reliable because the statistical probabilities can be

trusted to be what they purport to be, and it is properly the function of the jury to

decide what weight, if any, to accord to those statistical probabilities. The State

asserts that Defendant extensively cross-examined the State’s witnesses as to the

statistical probabilities at issue and presented to the jury Defendant’s account of

why the jury should place no weight on the DNA evidence.

In the instant case, the State also argues that under the law of the case

doctrine, this Court need not revisit this issue because nothing has changed from

the trial court’s first ruling prior to the first trial. On April 23, 1997, prior to

Defendant’s first trial, a hearing was held on Defendant’s motion for admissibility

of DNA testing. At that hearing, Anne Montgomery testified, and the trial judge,

not the same judge as in the instant case, allowed the DNA evidence to be
19-KA-363 45

admitted at trial. Under the doctrine of law of the case, an appellate court will

generally refuse to reconsider its own rulings of law on a subsequent appeal in the

same case. Falcon, supra.

In State v. Langley, 10-969 (La. App. 3 Cir. 4/6/11); 61 So.3d 747, 765-67,

writ denied, 11-1226 (La. 1/20/12); 78 So.3d 139, cert. denied, 568 U.S. 841,

133 S.Ct. 148, 184 L.Ed.2d 73 (2012), the third circuit stated that a review of the

jurisprudence had found no case in which the law of the case doctrine had been

applied to a trial judge’s rulings on issues that were ruled upon by an earlier trial

judge in a prior trial of the same case. The third circuit found that the law of the

case doctrine was not applicable to the case before it because the trial at issue

was not a later stage of the prior trials. Although the doctrine manifests the

appellate court’s general practice not to re-litigate decided matters, the doctrine

is not a limit on judicial authority. See id. Therefore, in this case, because this

new trial is not a later stage of the prior trial, we find that the law of the case

doctrine is not applicable in this instance.

On August 31, 2018, Defendant filed a Motion to Exclude DNA Evidence

Where Statistical Probability of a Match is So Low as to be More Prejudicial

than Probative. In that motion, Defendant moved to exclude the DNA evidence

on the cap and asked for a Daubert hearing. At the hearing on the motion,

defense counsel argued that the prior DNA testing done in 1996 on the cap

should be excluded because it was more prejudicial than probative and because

the statistics were so common as to not have any relevance to whether Defendant

was wearing that cap on the night the victim was killed. The prosecutor

responded that the nature of the probability did not make the evidence irrelevant.

Rather, he contended that it went to the weight of the evidence and that the jury

could determine how much weight, if any, to give it. After hearing arguments of

counsel, the trial court denied the motion, finding that the evidence was relevant
19-KA-363 46

and that defense counsel could make their arguments about the weight it

deserved. Defense counsel noted her objection to the trial court’s ruling.

At trial, Anne Montgomery, qualified as an expert in the fields of

molecular biology and DNA analysis, testified that she conducted DNA testing

in the instant case in 1996 on the baseball cap and that neither the victim nor the

Defendant could be excluded as DNA donors. Ms. Montgomery noted that she

looked at two genetic markers to generate population frequencies, and she

explained that approximately one in 339 Caucasian individuals would have

those two genetic markers in their profile if she looked at random Caucasian

individuals.

Ms. Montgomery testified that between 1996 and 2018, DNA science had

evolved and expanded. When Ms. Montgomery was contacted about the instant

case, she recommended re-testing the evidence using “today’s markers” – the

standard at the present time is fifteen to twenty-two markers for a composite

profile, versus only two markers in 1996. The increased numbers of markers

make DNA tests more sensitive and the analysis results more discriminating, Ms.

Montgomery explained. The Jefferson Parish Crime Lab re-tested samples from

the jeans and baseball cap in evidence. The crime lab was unable to generate a

profile due to either the inadequate sample size or degradation of the evidence

after twenty-plus years; however, that did not invalidate or negate her 1996

results. Ms. Montgomery also testified that there was nothing in the way DNA

testing was done in 2018 that would cause her to have any doubt in the accuracy

of the results she obtained in 1996. Nevertheless, she testified that the methods

she used to conduct DNA analysis in 1996 were considered to be state of the art

at the time and that the improved testing methods do not render the 1996 test

results unreliable or invalid.

Ms. Schneida testified that she was the JPSO DNA Director and the trial
19-KA-363 47

court qualified her as an expert in the field of forensic DNA analysis. Ms.

Schneida testified that she conducted further testing in August of 2018 on the

Raiders baseball cap for possible blood, but the results were negative. She

acknowledged that there was a positive result for blood on the baseball cap

previously but explained that either the sample was consumed or it degraded over

time. She did not know how the evidence was stored but noted that extreme heat,

exposure to humidity or moisture, or light could degrade DNA. Ms. Schneida

also felt that the inability to redo DNA testing, due to the lack of forensic

material available for testing, did not invalidate the prior positive result.

As a general matter, under La. C.E. art. 702, “if scientific, technical, or

other specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education, may testify ... in the form of an opinion

or otherwise.” State v. Mosley, 08-1318 (La. App. 5 Cir. 5/12/09); 13 So.3d 705,

714, writ denied, 09-1316 (La. 03/5/10); 28 So.30.d 1002; State v. Higgins, 03-

1980 (La.4/1/05); 898 So.2d 1219, 1239, cert. denied, 546 U.S. 883, 126 S.Ct.

182, 163 L.Ed.2d 187 (2005).

The decision whether to reject or accept the person as an expert falls to the

great discretion of the trial court, whose rulings will not be disturbed absent an

abuse of that discretion. State v. Craig, 95-2499 (La. 5/20/97); 699 So.2d 865,

870, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997).

With regard to the relevance of DNA testing, La. R.S. 15:441.1 provides

that “[e]vidence of deoxyribonucleic acid profiles, genetic markers of the blood,

and secretor status of the saliva offered to establish the identity of the offender of

any crime is relevant as proof in conformity with the Louisiana Code of

Evidence.” In State v. Ledet, 00-1103 (La. App. 5 Cir. 7/30/01); 792 So.2d 160,

173, writ denied, 01-2451 (La. 9/30/02); 825 So.2d 1185, this Court found that it
19-KA-363 48

was clear from La. R.S. 15:441.1 that the Louisiana Legislature intended DNA

evidence to be admissible absent a showing that the evidence was unreliable. This

Court acknowledged that Louisiana courts had recognized that DNA “typing” was

sufficiently scientifically reliable to cross the admissibility threshold and that both

federal and other state courts had found, in general, that DNA profiling is a

reliable technique and is admissible. It noted that both federal and other state

courts had found that, in general, DNA profiling was a reliable technique and was

admissible.

La. R.S. 15:441.1 provides that DNA evidence is relevant to establish

identity. See Ledet, supra. Further, defense counsel extensively cross-examined

Ms. Montgomery regarding the DNA evidence, eliciting testimony that the

statistical probabilities in 1996 were not as discriminating as those of today.

Additionally, it was the function of the jury to determine what weight, if any, to

give the DNA evidence. A determination of the weight of evidence is a question

of fact, resting solely with the trier of fact who may accept or reject, in whole or

in part, the testimony of any witnesses. State v. Silman, 95-154 (La. 11/27/95);

663 So.2d 27, 35. Accordingly, we find that the trial court did not abuse its

discretion by denying the motion to exclude the DNA testing in this case. The

evidence and testimony given at trial regarding the DNA test results show that at

least two people’s blood were on the cap, and Defendant and the victim could not

be excluded as donors. We further find that the trial court did not err in admitting

the DNA evidence as it was cumulative of Defendant’s statements to the police

where he placed himself in the cab at the time of the shooting and his statement to

Lt. Sacks that the blood on the cap was the victim’s blood.10

10
Compare State v. Williams, 17-0312 (La. App. 4 Cir. 12/20/17); 234 So.3d 1040, 1054, “Even if the trial court
erred in admitting the evidence regarding the preliminary gunshot residue test, we find that the error was harmless.
This Court has recognized that ‘[w]here improperly admitted evidence is merely corroborative and cumulative of
other properly introduced evidence, it is considered harmless error.’”
19-KA-363 49

ASSIGNMENT OF ERROR NUMBER SIX

The trial court erred in excluding expert testimony on Mr. Chester’s vulnerability
and false confession.

DISCUSSION

Defendant argues that the trial court abused its discretion by excluding

expert testimony on his vulnerability, mental capacity, and false confession that

violated his Sixth Amendment right to present a defense. He contends that the

trial court accepted Dr. Gregory DeClue as an expert in forensic psychology but

erroneously failed to recognize him as an expert in police psychology as it related

to false confessions. Defendant argues that although he did not confess to a crime

he did not commit, he did make false statements due to his diminished mental

capacity. He asserts that his defense was that there was no reliable forensic

evidence that linked him to the crime and that his false statements regarding

being inside of the cab at the time of the shooting, wearing a Raiders cap, having

blood on his clothes and hat, and that the blood belonged to the cab driver should

not be believed. Defendant argues that this error requires reversal.

The State responds that the trial court did not abuse its discretion by

excluding Dr. DeClue’s testimony. It contends that while a defendant has a

constitutional right to present a defense, constitutional guarantees do not assure

the defendant the right to the admissibility of any type of evidence, but rather,

only that which is deemed trustworthy and has probative value. The State points

out that the law is unsettled, and the jurisprudence is split as to whether expert

testimony on false confessions should be admissible in a criminal trial. It submits

that expert testimony on false confessions is not even relevant in the instant case

given that Defendant did not confess to the police; rather, it explains that

Defendant gave statements which, while placing him on the scene, were

essentially inculpatory, with the Defendant claiming that he was in the wrong

19-KA-363 50

place at the wrong time.

In any event, the State contends that even if the testimony could have some

marginal relevance, the trial court did not abuse its broad discretion in excluding

it. The State argues that Dr. DeClue, who never met or tested Defendant, never

met the detectives, never analyzed the interrogation techniques, and never

reviewed important information, would have little to offer the jury except for the

abstract conclusions that false confessions can occur, that an individual of limited

intelligence could potentially be vulnerable to police pressure, and that

“contaminating” an interrogation such as by feeding a suspect information could

potentially taint the results. The State further contends that all of these abstract

conclusions were within the understanding of average jurors and that having Dr.

DeClue testify to these conclusions would only invade the province of the jury

and waste time by telling the jury what it already could be expected to know. The

State further submits that there is not a sufficient showing of scientific reliability,

either in this case, or as to this “science” in general, to justify admissibility.

On August 31, 2018, Defendant filed Motion to Admit Expert Testimony

on False Confessions. In that motion, Defendant stated that he wished to call Dr.

Gregory DeClue as an expert witness to explain the existence of false

confessions, the factors that create vulnerability in individuals to falsely confess,

and the situational factors in interrogations or other circumstances that can lead to

false confessions, in order to educate and assist the jury in assessing the weight to

be given to the evidence of confessions the State intended to present. Defendant

also stated that he intended to call Dr. DeClue regarding the reliability of the

interrogation process and not the truthfulness of witnesses. He asserted that Dr.

DeClue’s testimony would be relevant to the voluntariness of Defendant’s

statements and that he did not intend for Dr. DeClue to give an ultimate

conclusion or opinion as to whether the confessional statements made were false.
19-KA-363 51

On September 6, 2018, the State filed State’s Motion in Limine and

Opposition with Incorporated Memorandum to Exclude Expert Testimony on

False Confessions. In its opposition, the State submitted that the law suggested

that there was support both for and against the admissibility of expert testimony

on false confessions. The State argued that the majority of the cases had

permitted expert testimony on false confessions where there was evidence that

Defendant suffered from a mental disorder that caused him to make such

inculpatory statements. It further argued that the instant case is distinguishable

because Defendant does not assert any claim that such statements were made

pursuant to a mental disorder that caused the Defendant to make such statements.

The State contended that there had been no showing made that: (1) the expert’s

scientific, technical, or other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue; (2) the testimony is based

on sufficient facts or data; (3) the testimony is the product of reliable principles

and methods; and (4) the expert has reliably applied the principles and methods to

the facts of the case. The State also contended that the testimony Defendant

wished to elicit from Dr. DeClue was not relevant, it did not assist the trier of

fact, and what, if any, probative value it had was substantially outweighed by the

danger of undue prejudice, confusion of the issues, and was misleading to the

jury. The State maintained that Defendant never claimed that he gave a false

confession prior to the filing of the motion to admit expert testimony and that his

motion to suppress statements was devoid of such a claim.

On September 7, 2018, at the hearing on the motion, the trial court decided

that a Daubert hearing was necessary. She also ordered defense counsel to

provide a report to the State.

On September 17, 2018, the State filed State’s Supplemental Motion in

Limine and Opposition with Incorporated Memorandum to Exclude Expert
19-KA-363 52

Testimony. In its supplemental opposition, the State argued that the expert’s

testimony should also be excluded because Defendant failed to comply with the

discovery articles. The State pointed out that despite assurances in court from

defense counsel that a report would be provided by September 12, 2018, it had

not received any expert report from this proposed expert or any written list of

materials upon which his conclusion was based and the opinion and reason as

required by La. C.Cr.P. art. 725.

On September 19, 2018, a Daubert hearing was held. At that hearing, the

trial court admitted Defense Exhibit D3, in globo—twelve documents relied upon

by Dr. DeClue—into evidence for purposes of the hearing. Dr. DeClue testified

that he was a forensic psychologist. After listening to Dr. DeClue’s educational

and employment background, the trial court accepted him as an expert in the field

of forensic psychology but not in police psychology.

Dr. DeClue further testified that suspects and witnesses sometimes make

false confessions. He stated that there had been controlled studies of false

confessions that were subject to peer review. He asserted that an interview could

be “contaminated” if the police tell details of the crime to the media, witnesses,

or suspects because it could make it difficult to know whether details in the

suspect’s statement came from actual knowledge.

Dr. DeClue testified that best practices for police interrogation had been

developed, which were to record the entire interaction, to investigate before you

interrogate, to hold back details that would likely be known by the person who

committed the crime, and to use non-leading questions. Dr. DeClue testified that

there were best practices with respect to special precautions that should be taken

with juveniles, mentally impaired people, and people who were deemed

vulnerable. He explained that some police deliberately mislead or lie or

inadvertently say something that is false during an interrogation and that those
19-KA-363 53

people with limited cognitive ability and other vulnerable populations are

considered to be more at risk to succumb to that type of pressure and come to

believe in that moment that they would be better off by saying that they

committed the crime even if they did not.

Dr. DeClue stated that he had reviewed materials from the instant case

which included Defendant’s statements, police records, school records,

psychological reports, SSI materials, and witness statements. He learned that

Defendant only completed the seventh grade and had to repeat first, second, and

third grades. Dr. DeClue maintained that up until the time of his questioning by

the police, the records were clear that he had difficulty learning and that he was

classified as mentally retarded as a child and received disability benefits for that.

He noted that Defendant’s IQ testing had been inconsistent and that he had

trouble reading and writing. Therefore, Dr. DeClue concluded that Defendant

could have been a vulnerable person when he was questioned by the police in the

instant case. Dr. DeClue noted that he had never met Defendant or administered

any tests to him. He said that it was still possible that he might meet with

Defendant and conduct tests on him. He opined that the statements of Quinice

and Kaprice Pollard contained examples of contamination and psychological

coercion, which could contribute to a false statement. Dr. DeClue also stated that

he did not meet with the detectives, that he did not know about the detectives’

experience and training, and that he did not review the Atkins hearing.

Following Dr. DeClue’s testimony, defense counsel and the State argued

their respective positions. The trial court then denied the motion to allow Dr.

DeClue to testify, stating in pertinent part:

Okay. I don’t even think it’s a close question here. Dr.
DeClue never met Mr. Chester. He never evaluated whether
Mr. Chester gave a false confession, nor did he analyze the
interrogation techniques used. He would ask the jury to apply
19-KA-363 54

science and abstract with only remote if any connection
between the testimony and the facts of this case.

I don’t think he has anything more than abstract scientific
notions, and he does not recognize - - apply recognized
acceptable principles to Mr. Chester’s particular circumstances.
He offers only that false confessions can occur.

I think that the testimony is not helpful and does invade
the province of the jury. And I do think that probative value if
any is substantially outweighed by the danger of misleading the
jury and jury confusion. So there would be prejudice.

I think the jury’s capable of using its common sense and
common knowledge to determine the reliability of the
Defendant’s statement, is capable of understanding the reasons
it may be unreliable without the assistance of Dr. DeClue’s
opinions.

Again, he never met with Mr. Chester. He’s going to
make a determination or base his opinion on vulnerability of
Mr. Chester on Mr. Chester’s early school records and an SSI
determination of retardation. I find his information is
incomplete and conclusions are not reliable. And in fact, he
admits no factual basis for him to reach conclusions to a
reasonable degree of certainty, and yet he’s - - he doesn’t shy
away from doing so despite those admissions.

Also he wants to be able to get in - - He said the two
purposes were to get in the information about the SSI and the
early school struggles and to have - - tell the jury about the
dangers of contamination. I just - - I just don’t think that this is
going to be helpful to the jury at all.

Also I have to say I did find the doctor’s responses to
questioning to be largely evasive, and I thought - - I felt that
he was intentionally obtuse at times.

And for all those reasons I am not allowing his
testimony.

Defense counsel objected to the trial court’s ruling.

As a general matter, under La. C.E. art. 702, “if scientific, technical, or

other specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education, may testify ... in the form of an opinion

or otherwise.” See Mosley, supra. Notably, the supreme court has placed

19-KA-363 55

limitations on this codal provision in that “[e]xpert testimony, while not limited to

matters of science, art or skill, cannot invade the field of common knowledge,

experience and education of men.” State v. Stucke, 419 So.2d 939, 945 (La.

1982). See also State v. Young, 09-1177 (La. 4/5/10); 35 So.3d 1042, 1046-47,

cert. denied, 562 U.S.1044, 131 S.Ct. 597, 178 L.Ed.2d 434 (2010). Although

relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury. La. C.E. art. 403. The decision whether to reject or accept

the person as an expert falls to the great discretion of the trial court, whose rulings

will not be disturbed absent an abuse of that discretion. See Craig, supra.

In Foret, supra, the Louisiana Supreme Court adopted the test set forth in

Daubert, supra, regarding proper standards for the admissibility of expert

testimony which requires the trial court to act in a gatekeeping function to ensure

that any and all scientific testimony or evidence admitted is not only relevant,

but reliable. See Chauvin, supra.

In State v. Lamonica, 09-1366 (La. App. 1 Cir. 7/29/10); 44 So.3d 895,

900- 07, writ denied, 10-2135 (La. 2/18/11); 57 So.3d 331, the defendant argued

that his expert witness should have been allowed to testify at trial about false

confessions and the influence of “high-control” groups or cults. The first circuit

found no reason to disturb the trial court’s ruling. Although the facts in Lamonica

are different from those in the instant case, the first circuit discussed the law in

general regarding false confessions. The first circuit stated that there was little

case law in Louisiana on false confessions in a police interrogation setting. It

further stated that the law in other jurisdictions suggested that there was support

both for and against the admissibility of expert testimony on false confessions.

The appellate court noted that various courts had found it inappropriate to admit

this testimony, citing United States v. Griffin, 50 M.J. 278, 285 (U.S.A.F. 1999);
19-KA-363 56

State v. Cobb, 30 Kan. App. 2d 544, 43 P.3d 855, 869 (2002); State v. Tellier,

526 A.2d 941, 944 (Me. 1987); State v. Davis, 32 S.W.3d 603, 608-09 (Mo. App.

2000); State v. Free, 351 N.J.Super. 203, 798 A.2d 83, 95-96 (2002); Green v.

State, 55 S.W.3d 633, 640 (Tex. App. 2001), cert. denied, 535 U.S. 958, 122

S.Ct. 1366, 152 L.Ed.2d 360 (2002); and Vent v. State, 67 P.3d 661, 669 n. 37

(Alaska App. 2003). The first circuit in Lamonica also noted that other courts

had permitted expert testimony on false confessions, citing United States v. Shay,

57 F.3d 126, 132-34 (1st Cir. 1995); Callis v. State, 684 N.E.2d 233, 239 (Ind.

App. 1997); State v. Buechler, 253 Neb. 727, 572 N.W.2d 65, 72-74 (1998); State

v. Baldwin, 125 N.C.App. 530, 482 S.E.2d 1, 5 (1997); and Vent, 67 P.3d at 669

n.36. It asserted that, of the aforementioned cases, cases that had upheld the

admissibility of expert testimony on false confessions, all were concerned with

false confessions in a police interrogation setting.

In a case similar to the instant one, State v. Smith, 14-1744 (La. App. 1 Cir.

4/24/15); 2015 WL 1893288 (unpublished opinion), the defendant argued that the

trial court erred in denying his motion to admit expert testimony on false

confessions and on the influence of interrogation methods. He argued that this

testimony would have assisted the jury in determining whether his statement that

he was present during the murders was false. In Smith, the expert testified at the

hearing regarding false confessions, noting that he had met with the defendant and

determined that he had personality issues that made him vulnerable to pleasing

others. The appellate court found no abuse of discretion in the trial court’s ruling,

finding that there was merit to the trial court’s concerns regarding the scientific

reliability and relevance of the expert’s testimony. The first circuit noted that the

defendant did not provide law enforcement with a confession; rather, he simply

stated that he was at the park while someone else committed the crimes. Further,

the appellate court asserted that the jury heard testimony regarding the length of
19-KA-363 57

time that the defendant was interrogated, the receipt and waiver of his Miranda

rights, and the content of the questions that led to the statement. Additionally, the

first circuit found that because the expert did not indicate how or if studies related

to false confessions translated into an ability to determine when a false confession

had occurred or how often one may occur, it was unclear whether there was any

way to test the accuracy of an unconfirmed confession. It also found that the jury

was capable of using its common knowledge in deciding the issue of scientific

reliability of the defendant’s statement and was capable of understanding reasons

that the statement may be unreliable without the assistance of expert testimony.

In United States v. Dixon, 261 Fed. Appx. 800 (5th Cir. 2008), the

defendant argued that the district court abused its discretion by excluding Dr.

DeClue’s testimony regarding false confessions. Dr. DeClue never evaluated

whether Dixon had given a false confession nor did he analyze the interrogation

techniques used on Dixon. The district court made an oral ruling excluding Dr.

DeClue’s proffered testimony, concluding that “Dr. DeClue would ask the jury to

apply a science in the abstract only, ... [with] too remote a connection between his

testimony and the facts of this case....” The appellate court found that Dr.

DeClue’s proffered testimony did not apply recognized or accepted principles to

Dixon’s particular circumstances. It further found that Dr. DeClue offered only

the general proposition that false confessions can occur. Accordingly, the

appellate court found that even if the district court could have properly admitted

the evidence, it was not “manifestly erroneous” to exclude it.

In the instant case, we find that the trial court did not abuse its discretion by

excluding Dr. DeClue’s testimony regarding false confessions. First, testimony on

false confessions was not relevant in the instant case because Defendant did not

confess to committing the crime. Rather, he said that he was in the cab attempting

to sell fake drugs to the cab driver when Mr. Ratcliff shot the victim in the head.
19-KA-363 58

Also, the jury heard Defendant’s statements and testimony regarding the length of

time that Defendant was interrogated, the circumstances surrounding the

interrogation, the receipt and waiver of his Miranda rights, and the content of the

questions that led to the statements. We conclude that the jury was capable of

using its common knowledge in deciding the issue of reliability of Defendant’s

statements and was capable of understanding reasons that the statements might be

unreliable without the assistance of expert testimony.

Further, Dr. DeClue did not meet and evaluate Defendant, nor did he meet

the detectives who interrogated him. Dr. DeClue did not review the experience

and training of the detectives, the interrogation techniques used, or a transcript of

the Atkins hearing. In addition, Dr. DeClue indicated that he would be offering

testimony that, based on his limited review of Defendant’s records, Defendant

was a vulnerable person. Also, he planned to offer testimony that interrogations

can be contaminated when officers provide details of the crime to a defendant.

However, Dr. DeClue acknowledged that the jury would determine whether

contamination of the interrogation actually occurred. Considering the foregoing,

we find that the trial court did not abuse its discretion by excluding Dr. DeClue’s

testimony from trial.

ASSIGNMENT OF ERROR NUMBER SEVEN

The prosecutor made improper statements during closing arguments.

DISCUSSION

Defendant argues that the prosecutors’ closing arguments contained highly

prejudicial unsupported theories that he was the shooter or was involved in the

attempted armed robbery, which he contends were not based on any evidence

presented at trial. Defendant also argues that in rebuttal closing arguments, the

prosecutor misrepresented the population frequency for the two genetic markers

19-KA-363 59

analyzed in the DNA profile, thus misstating the strength of the DNA evidence

in this case and creating the impression that it was stronger than the evidence

that was actually established.

Defendant further asserts that the prosecutor made statements during

closing arguments, including that if a person was shot in the back of the head,

he would fall forward. Defendant argues that no witness testified to such a

conclusion. He points out that the prosecutor also stated during closing

arguments that if someone puts a gun to the back of your head, you are going to

turn, so the gun would then be positioned in the middle of the back of the head.

He contends that the prosecutor also alleged that the shooter was smaller than

the victim. Defendant notes that there was no testimony to support these

statements.

Additionally, Defendant argues that during closing arguments, after

conceding that it could not prove that defendant had blood on his jeans, the State

shifted from proving its evidence to attacking how the defense thoroughly cross-

examined DNA witnesses and mentioned the DNA statistics in closing

arguments. He also argues that the State improperly shifted the burden in its

closing arguments. Defendant asserts that the prosecutor’s misconduct is

grounds for reversal as it misled the jury about the law and the elements the

State had to prove and misled the jury to misinterpret the evidence.

The State responds that Defendant’s guilt was based on the evidence

presented at trial, and therefore, its closing arguments were proper. The State

further responds that it made an inadvertent mathematical miscalculation during

its closing argument and that the numbers appear closer to 0.2 percent rather

than 0.02 percent. However, it argues that although defense counsel objected,

she did not articulate a basis for the objection; thus, this issue has not been

preserved for review pursuant to La. C.Cr.P. art. 841(A). The State also argues
19-KA-363 60

that raising this issue in a motion for new trial does not suffice to preserve it for

review. It maintains, however, that if this Court should find that this claim has

been preserved, Defendant is not entitled to relief. The State contends that the

mistakes in its closing argument did not influence the jury or contribute to the

verdict. It asserts that it told the jury during closing argument that the numbers

were one in 339 but merely miscalculated how those numbers translated to

percentages. It also asserts that the jury saw the evidence and was instructed that

closing arguments were not evidence.

The State further responds that defense counsel did not object to the

comments Defendant refers to in his brief, namely, that if you are shot in the

back of the head you will fall forward and for the jury to use its common sense.

As such, the State contends that these issues have not been preserved for review

pursuant to La. C.Cr.P. art. 841(A). The State further notes that in any event,

there was nothing improper about suggesting to the jury what “common sense”

would show. With respect to Defendant’s complaints of “burden shifting” in the

State’s closing argument, the State argues that calling into question why

Defendant would take a certain course of action in arguing his case was not

“burden shifting.” Furthermore, the State points out that the jury was instructed

that the State bears the burden of proof.

Defendant challenges comments made during the prosecutor’s rebuttal

argument regarding DNA probabilities, “burden shifting,” and common sense.

During his rebuttal argument, the prosecutor stated in pertinent part:

MR. RUSHTON:

Now, we talked to you briefly about the DNA. The
DNA in this case I told you was not going to be the be-
all, end-all. But I feel -- I feel like there -- it needs to be
addressed, is that this is not one in every 1300 people
walking around with that DNA. The DNA expert told
you that’s not true. That’s a mischaracterization of the
19-KA-363 61

evidence. It said one in 339 Caucasians that’s
consistent, consistent with one in 339.

You have to remember that this is also not from
the tip of the cap. You remember that tip of the cap
piece of evidence was not enough to develop a full
profile. It’s from the -- it’s from the inside of the cap
where there were bloodstains that tested presumptively
positive for blood. And this -- You remember when
they went through the statistics here. This is -- And
Anne Montgomery told you that this area here, you’ve
got about ten percent of the Caucasian population,
you have -- this type here, about two percent. And
you can multiply those together to figure out the
statistics. And one way to say that is one person in
every 339. It’s important to remember what that -- this
population frequency. 2.95 to the negative 3. So one in
339 may sound like it was -- it is not like one in ten
billion. Not even close. But we're still talking about .02
percent of the Caucasian population.

MS. CONNER:

Objection.

THE COURT:

Overruled.

MR. RUSHTON:

.02 percent. That’s something. And again,
that’s -- Move back three decimal places. And
you’re at .02. Just like here where we have ten
percent, that’s where that comes from. Now, the
jeans, maybe they got the wrong jeans. Maybe Quinice
washed them, and they couldn’t get a profile. Can’t tell
you much about the jeans.

But also Defense counsel spent all that time talking about
the DNA. Why challenge that?

MS. CONNER:

Objection.

MR. RUSHTON:

19-KA-363 62

They’re –

MS. CONNER:

Burden-shifting.

MR. RUSHTON:

It’s not burden-shifting, Judge. I’m asking why
she make – I’m try -- asking them that question, why
she’s making that argument.

THE COURT:

Overruled.

MR. RUSHTON:

Thank you.
They're already saying that he’s out there. Now they
want to move him back outside the car, back to the first
statement. That’s what they’re trying to do, trying to move
him back outside the car to try to get you to disregard the
DNA evidence even though it was their own expert that was
hired by them just as well -- also by the State to come in here
and testify about it.

Now, the real reason is because they know the evidence
shows that Teddy Chester is in the back of that cab. He says it,
Ms. Pollard says it, and the evidence is consistent with that
when you look at the scene.

I want to talk about the scene. Now, if you recall, Chief
Scanlan told you about how the -- basically can’t really say
what side of the -- what side of the seat the shooter was
positioned based on just his -- just his looking at the
bloodstain. He can’t say it’s consistent with the shot from the
back, but it depends on the -- how the body was positioned
right before that shot to figure out exact -- to say exactly
where the shot came from.

And the Defense would have you believe that Elbert
Ratcliff goes and is sitting right behind him, maybe Teddy
Chester beside him, maybe not. They didn’t really hone in on
that. And that Elbert Ratcliff shot him from the back.

19-KA-363 63

They're assuming. And the assumpt -- what they’re
assuming there is that you have is that John Adams is sitting
straightforward in the seat and gets shot from the back here
(indicating) at the time. But what you can see is how he’s
slumped over and back towards the middle. If you’re shot in
the back of the head, even at an angle, you're not going to --
Common sense tells you you're not going to -- you’re going
to fall forward.

Well, how does he end up like that? Now, we don’t
have a video camera to go inside that cab and come back and
show you. But that – If you look at that positioning, when you
think about the other evidence, you think about what makes
sense. John Adams is coming there to pick up a fare at 713
Calhoun. That fare -- If somebody comes up and is outside the
car talking to him about buying crack or something like that,
you know -- they know -- you heard that he’s not involved in
that kind of thing. He’s out of there. You’ve got to get
somebody to get into the cab, pretend to be the fare, start to
distract him. That’s Elbert Ratcliff’s role. Gets in, slides
across, got the Guess shirt, starts talking to him about, hey,
man, you want to buy this shirt, pretending to try to sell the
shirt just like the defendant tells you.

Gets him distracted. That’s when Teddy Chester gets in
the -- in the seat behind the victim. Tells him to give it up. He
said he tells you that Elbert Ratcliff says that. It’s him doing
it.
And how -- and how do you know that that’s how it
happened? Use your common sense. If someone puts a gun to
the back of your head and says give it up, doesn’t matter how
cool you are. In that first moment when you feel the gun in the
back of your head, you’re going to turn. And as you turn, that
gun that’s in the middle of the back of your head, to the right
side (indicating), with that gun pressed up against the Teddy
Chester’s finger on the trigger, goes off.

How do you know that’s not Elbert Ratcliff? Defense
counsel spent a whole lot of time talking to you about how big
he is, how little Teddy Chester is. Having that bullet travel
through John Adams’ brain. Up. That shooter is much smaller
than John Adams, and the physical evidence on the scene
shows you that.

(Emphasis added).

Closing arguments in criminal cases should be restricted to the evidence

admitted, to the lack of evidence, to conclusions of fact that may be drawn

therefrom, and to the law applicable to the case. The State’s rebuttal shall be
19-KA-363 64

confined to answering the argument of the defendant. See La. C.Cr.P. art. 774;

State v. Honor, 19-379 (La. App. 5 Cir. 1/29/20); 289 So.3d 249, writ denied,

20-370 (La. 7/24/20); 299 So.3d 72.

Prosecutors are allowed wide latitude in choosing closing argument tactics;

however, this latitude is not without limits. State v. Draughn, 05-1825 (La.

1/17/07); 950 So.2d 583, 614, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169

L.Ed.2d 377 (2007); State v. Greenup, 12-881 (La. App. 5 Cir. 8/27/13); 123

So.3d768, 775, writ denied, 13-2300 (La. 3/21/14); 135 So.3d 617; State v.

Vansant, 14-1705 (La. App. 1 Cir. 4/24/15); 170 So.3d 1059, 1063. A prosecutor

should refrain from argument that tends to divert the jury from its duty to decide

the case on the evidence by injecting issues broader than the guilt or innocence of

the accused under the controlling law or by making predictions of the

consequences of the jury’s verdict. State v. Messer, 408 So.2d 1354, 1356 (La.

1982). Even where a prosecutor’s argument has exceeded the scope of Article 774

or is deemed to be improper, a reviewing court should credit the good sense and

fairmindedness of the jurors who have heard the evidence. State v. Williams, 96-

1023 (La. 1/21/98); 708 So.2d 703, 716, cert. denied, 525 U.S. 838, 119 S.Ct. 99,

142 L.Ed.2d 79 (1998).

The trial judge has broad discretion in controlling the scope of closing

arguments, and a conviction will not be reversed on the basis of improper closing

argument unless thoroughly convinced that the remarks influenced the jury and

contributed to the verdict. See Draughn, 950 So.2d at 614; Vansant, 170 So.3d at

1063.

In State v. Spencer, 93-571 (La. App. 5 Cir. 1/25/94); 631 So.2d 1363,

1369, writ denied, 94-488 (La. 2/3/95); 649 So.2d 400, the defendant argued that

the trial court erred in denying his motion for a mistrial after closing argument.

This Court noted that the defense objected after the State had concluded its
19-KA-363 65

rebuttal instead of immediately when the contested statement was made. This

Court stated that the failure to contemporaneously object prevented the trial

court from immediately remedying the situation if corrective action had been

necessary. Similarly, in State v. Paul, 15-501 (La. App. 5 Cir. 1/27/16); 185

So.3d 188, 201, this Court, citing Spencer, supra, found that the defendant’s

failure to object during or after the State’s closing arguments prevented him

from raising the issue on appeal. This Court found that since the defendant did

not contemporaneously object to the alleged inflammatory statement made by

the State and only moved for a mistrial after the jury had retired for deliberation,

the trial court did not have the opportunity to remedy the situation had corrective

action been necessary.

In the instant case, Defendant argues that the prosecutor’s closing

arguments contained highly prejudicial unsupported theories that he was the

shooter or was involved in the attempted armed robbery, which he contends

were not based on any evidence presented at trial. However, as was discussed

previously, a rational trier of fact could have found that the evidence was

sufficient under the Jackson standard to support the conviction. Contrary to

Defendant’s assertion, there was ample evidence to show that Defendant was the

shooter or at least a principal to the shooting.

With respect to the prosecutor’s argument about the DNA probabilities,

Defendant is not entitled to relief. The record reflects that the prosecutor told the

jury that the DNA probabilities regarding the blood found on the cap were one in

339 or .02 percent. The percentage would actually be approximately .29 percent.

Even if the prosecutor told the jury an incorrect percentage, he correctly stated

that it was one in 339 at approximately the same time he said it was .02 percent.

Also, the jury had the benefit of seeing the actual evidence and was instructed

that opening and closing arguments were not evidence. Further, we find that the
19-KA-363 66

DNA test results were cumulative since Defendant admitted to Lt. Sacks that he

was present in the cab at the time of the shooting and that the blood on the cap

belonged to the victim.

Considering Defendant’s complaint that the prosecutor incorrectly shifted

the burden during his rebuttal argument, the record reflects that the prosecutor

informed the jury that the State had the burden of proof. Also, the prosecution

calling into question why defense counsel would spend a lot of time talking

about DNA evidence in her closing argument was not “burden shifting.” The

prosecutor drew the jury’s attention to the fact that defense counsel wanted the

jury to disregard the DNA evidence.

Also, defense counsel did not object when the prosecutor told the jury to

use common sense when considering the evidence and what it showed.

Therefore, the issue has not been preserved for review pursuant to La. C.Cr.P.

art. 841(A). Nevertheless, even if the prosecutor’s comments were outside the

proper scope of closing arguments, we find that Defendant is still not entitled to

relief. The court must be thoroughly convinced that the argument influenced the

jury and contributed to the verdict before reversing a conviction based on

misconduct during the closing arguments. State v. Franklin, 15-1060 (La. App. 4

Cir. 8/24/16); 198 So.3d 1222, 1231, writ denied, 16-1754 (La. 9/6/17); 224

So.3d 982.

After reviewing the prosecutors’ closing and rebuttal arguments, and

considering the entirety of the record, we find that the jury verdict was reasonable

based on the evidence presented by the State having found nothing in the record to

demonstrate that the prosecutor’s comments regarding common sense, burden

shifting, or DNA probabilities so influenced the jury and contributed to the verdict

that it would warrant a reversal of the conviction and sentence.

19-KA-363 67

ASSIGNMENT OF ERROR NUMBER EIGHT

The State has not fulfilled complied with Brady v. Maryland requirement. [sic]

ASSIGNMENT OF ERROR NUMBER NINE

The trial court erred in permitting Quinice Pollard to testify.

ASSIGNMENT OF ERROR NUMBER TEN

The trial court prevented Mr. Chester from fully cross examining Quinice Pollard.

DISCUSSION

Defendant argues that the State failed to produce crucial evidence of

Quinice Pollard’s criminal history, which directly undermined her credibility and

revealed her personal interest in cooperating with the prosecution. He contends

that by doing so, the State violated his due process rights to exculpatory

evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104

(1972). He further contends that on the eve of the retrial date, September 16,

2018, the State disclosed substantial new impeachment information regarding

Ms. Pollard’s criminal history from 1994 to 1996 that had never been produced.

He asserts that the State did not provide documentation as to the disposition on

these charges.

Defendant also argues that the trial court’s ruling that the State could call

Ms. Pollard as a witness after suppressing this critical evidence before trial for

twenty-two years violated his due process rights. He maintains that without this

information, his right to confront Ms. Pollard was violated. Additionally, he

contends that the trial court limited defense counsel’s cross-examination of Ms.

Pollard. Defendant asserts that without the ability to cross-examine her

regarding her bias in the first trial, and subsequent inconsistent testimony, the

jury could not fully assess whether her testimony was first given in hope or in

exchange for leniency in her criminal cases.
19-KA-363 68

The State responds that prior to Defendant’s second trial, it turned over

information relative to Ms. Pollard’s criminal record, and Defendant sought

“Brady sanctions,” claiming that the State should be penalized for this

information supposedly not being turned over in advance of Defendant’s first

trial and further claiming that, because the information was incomplete, the State

should be prohibited from calling Ms. Pollard as a witness. It further responds

that the trial court twice denied the request for “Brady sanctions,” that Defendant

sought writs, and that this Court and the Louisiana Supreme Court denied writs.

The State asserts that this Court ruled that any Brady violation prior to the first

trial was cured by the granting of a new trial and further ruled that

notwithstanding certain gaps in the information, there was nothing to

demonstrate that the State withheld anything. The State also asserts that this

Court further noted that Defendant would have an opportunity to cross-examine

Ms. Pollard at trial.

The State submits that with respect to this portion of Defendant’s

argument, this Court should decline to revisit this issue under the law of the

case doctrine as there is nothing new that justifies this Court revisiting its prior

decision. The State argues that if this Court finds otherwise, its position is that

the trial court did not err in denying the request for “Brady sanctions.” It

contends that it turned over everything in its possession and complied with its

obligations pursuant to Brady. The State argues that it has no duty to provide

Defendant with information which he already has or which he can obtain on his

own with due diligence. It further argues that it cannot produce that which does

not exist in the records and that it is unaware of any precedent dictating that the

remedy for an incomplete criminal record of a State’s witness is to forever bar

that witness from testifying.

With respect to the Confrontation Clause, the State asserts that the
19-KA-363 69

jurisprudence is clear that the Confrontation Clause guarantees only an

opportunity for effective cross-examination. The State notes that while

Defendant complains that the trial court curtailed the cross-examination into

previous arrests, La. C.E. art. 609.1 restricts cross-examination to prior

convictions. It also notes that although there is “somewhat” of a jurisprudential

exception for pending charges leading to bias, Ms. Pollard had no pending

charges at the time she testified at the second trial. The State asserts that the trial

court followed the rules of evidence in disallowing Defendant from going into

arrests where Ms. Pollard did not deny her convictions. It submits that

Defendant extensively cross-examined Ms. Pollard relative to her inconsistent

statements, her not being forthcoming to the police, her letters to and from

Defendant, her alleged bias, and other aspects of her account. The State

maintains that even if the trial court erred, which it denies, any error during

cross-examination was harmless.

On September 17, 2018, Defendant filed Motion for Sanctions Based on

Brady and Giglio Violation. In that motion, Defendant asserted that the day

before trial, the State disclosed substantial impeachment information as to

Quinice Pollard, namely, that she was arrested on March 18, 1996, for two

counts of battery on a police officer, resisting an officer, and disturbing the

peace, and that she had a 1996 charge for possession of a controlled dangerous

substance. Defendant moved for sanctions based on the State’s withholding of

this information for two decades, including exclusion of Ms. Pollard as a witness

at trial.

On September 19, 2018, at the hearing on the motion, after hearing

arguments of counsel, the trial judge denied the motion for sanctions, stating,

“And the information is certainly available now. It’s not hard to understand, and

it shouldn’t delay the matters. You’re certainly allowed to use it by law. I am not
19-KA-363 70

going to exclude a witness at this point. The request for Brady sanctions is

denied.”

On September 24, 2018, Defendant filed Supplemental Motion for

Sanctions Based on Prosecutorial Misconduct and Continued Brady and Giglio

Violations. On that same date, at the hearing, defense counsel argued that

records were missing regarding Ms. Pollard’s criminal history, and therefore, she

should be excluded from testifying. Defense counsel stated that according to

the rap sheet given to the defense, Ms. Pollard was arrested on May 2, 1994, for

resisting arrest and battery on a police officer and was sentenced to ninety days

probation, which she violated; on November 21, 1995, she was arrested for a

controlled dangerous substance; on November 28, 1995, she violated her

probation; and on December 22, 1995, she was arrested on an attachment

regarding that first probation and an additional charge of disturbing the peace.

Defense counsel asserted that at the time Ms. Pollard was interviewed in

the instant case by Lt. Sacks, she had six charges of violation of probation and

an attachment. Defense counsel pointed out that there was no information on

JeffNet with respect to any of those charges and that the record had been missing

since 1998. She noted that the record was missing for both of the co-defendants

also. Defense counsel explained that there were issues in First Parish Court and

at the 24th Judicial District Court and that it was suspicious that there were no

entries between December of 1995 and 2013.

The prosecutor responded that there was no evidence of mass conspiracy

to remove documents and be lenient with Ms. Pollard. He further responded that

Ms. Pollard received no special consideration for her testimony for the upcoming

trial. He also pointed out that defense counsel could question Lt. Sacks, Chief

Deputy Scanlan, and Ms. Pollard at trial regarding any favors she might have

been given. The prosecutor noted that he had provided defense counsel with Ms.
19-KA-363 71

Pollard’s “DOC” record which showed she was sentenced to two years.

After hearing arguments of counsel, the trial court denied the motion,

stating, “Okay. There are certainly - - there are certainly some questions here

and missing - - some missing documents apparently. However, I don’t think it’s

- - it supports the conclusions that Defense counsel’s urging. And you certainly

can cross-examine Ms. Pollard. And so, I am going to deny the motion.”

Defendant filed a writ application with this Court challenging the

trial court’s ruling. This Court denied the writ, stating in pertinent part:

On the showing made, we find that defendant is not entitled
to the relief requested. First, any violations with respect to the
State’s failure to disclose information about Quinice Pollard’s
criminal history prior to the first trial have been remedied by the
granting of a new trial. Second, the State did comply with its duty
to provide relator with exculpatory information prior to the second
trial. We acknowledge relator’s argument that the information
disclosed by the State had gaps in the time periods relating to the
records provided and therefore left many unanswered questions.
However, we have nothing to suggest that the State withheld any
exculpatory information or committed any type of prosecutorial
misconduct with regard to the disclosure of information. Third,
defense counsel will have the opportunity to cross-examine the
State’s witnesses at this second trial, including the opportunity to
cross-examine them, as allowed by law, about Quinice Pollard’s
criminal history as well as the time gaps and missing information in
the documents provided by the State.

See State v. Chester, 18-558 (La. App. 5 Cir. 10/16/18) (unpublished writ

disposition), writ denied, 18-1747 (La. 10/26/18); 254 So.3d 695.

The arguments presented by Defendant herein are essentially the same as

those made in his prior writ application. Under the discretionary principle of law

of the case, an appellate court will generally refuse to reconsider its own rulings

of law on a subsequent appeal in the same case. State v. Burciaga, 05-357 (La.

App. 5 Cir. 2/27/06); 924 So.2d 1125, 1128; State v. Junior, 542 So.2d 23, 27

(La. App. 5 Cir. 1989); writ denied, 546 So.2d 1212 (La. 1989). The principle is

applicable to all decisions of an appellate court, not solely those arising from full
19-KA-363 72

appeal. State v. Johnson, 06-859 (La. App. 5 Cir. 4/11/07); 957 So.2d 833, 840.

One reason for imposition of the doctrine is the avoidance of indefinite re-

litigation of the same issue, but it will not be applied in cases of palpable former

error. Id. Reconsideration is warranted when, in light of a subsequent trial

record, it is apparent that the determination was patently erroneous and produced

unjust results. State v. Davis, 03-488 (La. App. 5 Cir. 11/12/03); 861 So.2d 638,

641 n.2, writ denied, 03-3401 (La. 4/2/04); 869 So.2d 874; In re K.R.W., Jr., 03-

1371 (La. App. 5 Cir. 5/26/04); 875 So.2d 903, 905.

Here, Defendant has failed to cite to any new facts adduced at trial or

additional jurisprudence tending to indicate that this Court’s prior disposition

was patently erroneous and produced an unjust result. However, since prior

denial of supervisory writs does not preclude reconsideration of the issue on

appeal, the merits of Defendant’s assignment will be addressed. See State v.

Castleberry, 98-1388 (La. 4/13/99); 758 So.2d 749, 755, cert. denied, 528 U.S.

893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999); State v. Cowart, 01-1178 (La. App.

5 Cir. 3/26/02); 815 So.2d 275, 290, writ denied, 02-1457 (La. 5/9/03); 843

So.2d 387.

In Brady v. Maryland, the United States Supreme Court held that

“suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.”

Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Since Brady, the Supreme Court has

held that the duty to disclose such evidence is applicable even though there has

been no request by the accused. See United States v. Agurs, 427 U.S. 97, 107, 96

S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). The Supreme Court has also held that

the duty encompasses impeachment evidence as well as exculpatory evidence.

See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87
19-KA-363 73

L.Ed.2d 481 (1985).

The Supreme Court has also explained that such evidence is material “if

there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” Id. 473 U.S.

at 682, 105 S.Ct. 3375, 3380; see also Kyles v. Whitley, 514 U.S. 419, 433-34,

115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490 (1995). A “reasonable probability”

is a probability sufficient to undermine confidence in the outcome. Bagley,

supra at 682, 105 S.Ct. 3375. Moreover, the rule encompasses evidence

“known only to police investigators and not to the prosecutor.” Kyles, 514 U.S.

at 438, 115 S.Ct. 1555. In order to comply with Brady, therefore, “the

individual prosecutor has a duty to learn of any favorable evidence known to

the others acting on the government’s behalf in this case, including the police.”

Id. 514 U.S. at 437, 115 S.Ct. 1555.

Synthesizing the Brady jurisprudence, the Supreme Court held in 1999

that “[t]here are three components of a true Brady violation: The evidence at

issue must be favorable to the accused, either because it is exculpatory, or

because it is impeaching; that evidence must have been suppressed by the State,

either willfully or inadvertently; and prejudice must have ensued.” Strickler v.

Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).

However, Brady does not relieve the defendant of his obligation to

conduct his own investigation, and the State is not obligated under Brady and its

progeny to furnish the defendant with information that he already has or that he

could obtain with reasonable diligence. State v. Crawford, 15-0784 (La.

10/2/15); 176 So.3d 394, 395-396, cert. denied, - - U.S. - - , 136 S.Ct. 1454, 194

L.Ed.2d 557 (2016).

In the instant case, we find that the trial court did not err in denying the

Brady motion for sanctions. As this Court pointed out, any violations with
19-KA-363 74

respect to the State’s failure to disclose information about Ms. Pollard’s criminal

history prior to the first trial have been remedied by the granting of a new trial.

Additionally, the record indicates that several hearings were held prior to the

second trial wherein the prosecutor said that he had turned over everything in his

possession regarding Ms. Pollard’s criminal history. As such, the State complied

with its duty under Brady. Although there appears to be missing information in

the criminal records, there is no evidence that the State withheld any exculpatory

information or committed any type of prosecutorial misconduct with regard to

the disclosure of the information in question. Based on the foregoing, we find

that the trial court did not err in denying the Brady motion for sanctions.11

Defendant also argues that without Ms. Pollard’s complete criminal

records, his right to confront Ms. Pollard was violated. Additionally, he

contends that the trial court erred by limiting defense counsel’s cross-

examination of Ms. Pollard.

The Sixth Amendment to the United States Constitution guarantees an

accused in a criminal prosecution the right to be confronted with the witnesses

against him. The confrontation clause of the Louisiana Constitution specifically

and expressly guarantees the accused the right “to confront and cross-examine

the witnesses against him.” La. Const. Art. I, § 16. See also State v. Robinson,

01-273 (La. 5/17/02); 817 So.2d 1131, 1135. Confrontation not only means the

ability to confront the witnesses physically but also to secure for the opponent

the opportunity of cross-examination, which is its main and essential purpose.

Id. Cross-examination is the principal way to test the believability and

11
See State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-2308, cause dismissed, 2010- Ohio-
3887, 126 Ohio St. 3d 1538, 932 N.E.2d 334. In that case, the defendant filed a motion for the preservation and
production of video logs, surveillance footage, written logs, or other records from a certain store, and all of a
witness’s criminal records. However, the appellate court noted that there was nothing in the record to indicate the
State actually obtained any of these materials. Moreover, the appellate court found that the defendant failed to
prove that these missing materials contained materially exculpatory evidence. The appellate court concluded that
the State did not violate Brady.

19-KA-363 75

truthfulness of the testimony, and it has traditionally been used to impeach or

discredit the witness. Id. The Confrontation Clause guarantees only an

opportunity for effective cross-examination, not examination that is effective in

whatever way, and to whatever extent, the defense might wish. United States v.

Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988).

In a criminal case, every witness, by testifying, subjects himself to

limited examination relative to his criminal convictions. See La. C.E. art.

609.1(A). Ordinarily, only the fact of a conviction, the name of the offense, the

date thereof, and the sentence imposed is admissible. La. C.E. art. 609.1(C).

Generally, evidence of arrests for which there has not been a conviction is not

admissible upon the issue of credibility. La. C.Cr.P. art. 609.1(B); Washington,

866 So.2d at 979-80. However, evidence of an arrest may be admissible for

impeachment purposes when it is independently relevant to show bias. State v.

Robinson, 337 So.2d 1168, 1171 (La. 1976). Pending criminal charges are

relevant not to the witness’s general credibility but to her bias or interest as

relating to the hope of receiving leniency from the State. State v. Wiley, 10-811

(La. App. 5 Cir. 4/26/11); 68 So.3d 583, 592, writ denied, 11-1263 (La.

3/30/12); 85 So.3d 106. The trial court’s determination regarding the relevancy

and admissibility of evidence will not be overturned on appeal absent a clear

abuse of discretion. State v. Gross, 12-73 (La. App. 5 Cir. 2/21/13); 110 So.3d

1173, 1183, writ denied, 13-661 (La. 10/25/13); 124 So.3d 1091.

The record reflects that during direct examination, Ms. Pollard testified

that she pled guilty to disturbing the peace, a misdemeanor, in 1994; that she was

convicted of possession with intent to distribute cocaine in 1994; and that she

was convicted of theft of goods, a felony, in 1998. Ms. Pollard also testified that

the two assistant district attorneys did not promise her anything for her testimony

in the second trial and that she never felt pressured by them to testify.
19-KA-363 76

During cross-examination, defense counsel asked Quinice if she had been

arrested in May of 1994 for battery on a police officer and resisting arrest. The

prosecutor objected, noting that Quinice had not denied her convictions. The trial

court stated that only the prior convictions were admissible. Defense counsel

argued that Quinice had charges that were still pending; however, the prosecutor

responded that there were no charges pending. The trial judge then sustained the

objection.

Defendant argues that this Court stated in its writ disposition that he

would have the opportunity to cross-examine witnesses. However, when

reviewing this Court’s disposition, this Court made it clear that defense counsel

would have the opportunity to cross-examine the State’s witnesses at the second

trial, as allowed by law, regarding Ms. Pollard’s criminal history as well as the

time gaps and missing information in the documents provided by the State. A

review of the record shows that the trial judge followed the rules of evidence,

i.e., Article 609.1, by denying defense counsel’s request to question Ms. Pollard

about her arrests when she did not deny her convictions.

The record also shows that defense counsel thoroughly cross-examined

Ms. Pollard regarding her criminal history, her inconsistent statements, her not

being forthcoming to the police, and her letters to and from Defendant. With

respect to bias, defense counsel was able to elicit from Ms. Pollard during cross-

examination that she may have had a bias to cooperate with the State during the

first trial. Ms. Pollard testified that in the fall of 1995, she sold crack cocaine

rocks once or twice because she needed the money. She further testified that

there were a couple of times between October of 1995 and March of 1996 when

she missed court dates and that in March of 1996, she had several attachments

out for her arrest for several different cases. Ms. Pollard recalled that for her

crack cocaine charge, she was placed on probation and that she was “backing
19-KA-363 77

up” two years on probation. She indicated that she was not facing time for any

of her charges and that she just had attachments to go to court.

Additionally, defense counsel elicited from Ms. Pollard that in the letters

to and from Defendant, she was worried about going to jail for her charges and

had been missing court dates. Ms. Pollard testified that in a letter dated April 8,

1996, she indicated to Defendant that she received two years of probation. She

then testified that she was facing two years imprisonment if she violated her

probation. Also, during closing arguments, defense counsel made extensive

arguments regarding Ms. Pollard’s possible bias for testifying.

Accordingly, we find that the trial court did not abuse its discretion by

limiting the cross-examination of Ms. Pollard. Also, even if the trial court did

err, we find that any error was harmless since defense counsel was able to elicit

the testimony regarding possible bias during her cross-examination of Quinice.

ASSIGNMENT OF ERROR NUMBER ELEVEN

The trial court violated Mr. Chester’s Sixth Amendment Right to a public trial.

DISCUSSION

Defendant argues that the trial court violated his Sixth Amendment right to

a public trial by denying members of his legal team to be present for parts of voir

dire. He asserts that prior to jury selection, defense counsel requested that all State

and defense strikes be made outside the presence of the jury. Defendant notes that

the trial court agreed to remove the jury during cause and peremptory challenges,

but it only allowed Defendant and counsel of record to remain in the courtroom.

He states that in his motion for new trial, he argued that the trial court’s complete

closure of the courtroom violated his constitutional right to a public trial and

deprived the public of the opportunity to observe and listen to the State’s

justifications for cause and peremptory strikes. Defendant argues that this was a

19-KA-363 78

structural error, and this Court must grant a new trial.

The State responds that Defendant’s public trial claim was not preserved for

review pursuant to La. C.Cr.P. art. 841. The State points out that defense counsel

himself suggested clearing the courtroom during the challenges and that

Defendant at no point, either during the “arrangement” or during voir dire itself,

objected to this closure. It argues that while Defendant now complains that he did

not want the other members of the defense team, members of the public, or his

family excluded, he in no way whatsoever objected to their exclusion. The State

further argues that although Defendant raised this claim in his motion for new

trial, that claim was too late and does not suffice as a contemporaneous objection

under La. C.Cr.P. art. 841(A). It added that public trial claims have been found to

be subject to the contemporaneous objection rule in La. C.Cr.P. art. 841(A).

The State contends that although this Court need not and should not reach

the merits, it notes that challenges are usually done at the bench outside of the

view of the public pursuant to La. C.Cr.P. art. 795. It further contends that if the

procedure Defendant complains of violates the right to a public trial, so does

Article 795(B)(2), as in either event the public is essentially excluded from

challenges. The State submits that in neither instance is there a violation of the

right to a public trial as the public is able to observe voir dire minus the

challenges and that transcripts of challenges are later available to the public.

The record reflects that the following colloquy occurred prior to voir dire

regarding defense counsel’s desire to clear the courtroom for challenges:

MS. CONNER:

The last remaining issue that I think we have is -- is
with respect to doing the cause and peremptory
challenges. I understand it’s the custom of the Court to
do those at the bench. We’ve discussed this previously
with respect to this case that Mr. Chester has adamantly
invoked his right to be present at all critical stages of
the trial, including whether or not certain jurors are
19-KA-363 79

selected and how their cause challenges and how his
peremptory strikes are exercised.

So I don’t know how the Court can accommodate Mr.
Chester, if it’s bringing him to the bench when we do
those selections or clearing the courtroom, which is
done in many -- I know it’s not the practice here, but
it’s done -- In all the trials that I’ve done, we have
cleared the courtroom to put all the objections on the
record.

THE COURT:

Well, the practice that we have here is you’re free to go
back and talk to Mr. Chester. He’s not allowed to
approach the bench. The defendant always sits at the --
at the counsel table. And it’s a matter of security.

Counsel can come -- go back and forth and discuss the
issues with Mr. Chester as you see fit. If you’re not
satisfied with that, then we can clear the courtroom.

MS. CONNER:

Thank you, Your Honor. I anticipate that we may need
to clear the courtroom, so -- just so that -- I don’t know
if additional security needs to be called for that purpose
or prearrangements need to be made, but I anticipate
that coming up.

THE COURT:

Well, we need to resolve that issue now so that we’re
ready. Either -- I mean, it’s going to involve removing
50 jurors and –

THE LAW CLERK:

And they can’t stand in the hall, so we’ve got to find a
place to put them.

THE COURT:

Logistically it’s complicated. But if that – I’ll let you
make that call.

I think that defendants participate fully in the way that
we do it. But if you are not satisfied with that, we can
go through the more cumbersome approach of
removing all -- clearing the courtroom and removing all
the -- all the --

MS. CONNER:
19-KA-363 80

I think we need to do that. (Off-the-record discussion.)

THE COURT:

Okay, all right. We may have the courtroom across the
way open.

MS. CONNER:

Okay.

THE COURT:

Which would be most convenient.

MS. CONNER:

Thank you, thank you.

After the first panel of jurors completed voir dire, the trial court ordered the bailiff

to remove the venire to across the hall. The trial judge then stated:

Yeah, okay. And ladies and gentlemen, those of you
that are remaining in the court room, I’m going to clear
the court for this portion of voir dire. This is not a part
that the public gets to participate in, or gets to observe.
Only the defendant and counsel of record can remain in
the courtroom.

Defense counsel replied, “Okay, thank you.” The transcript indicates the

courtroom was cleared at that time.

After Defendant was convicted, he filed a Motion for New Trial on

December 12, 2018. In that motion, Defendant argued that he was denied his

Sixth Amendment right to a public trial when the trial court cleared the courtroom

during cause and peremptory challenges. A hearing was held on the motion. At

that hearing, Defendant’s appellate counsel argued that the trial court had

prohibited Defendant from having a public trial by clearing the courtroom during

the challenges. She noted that the trial court required members of the defense

team to also leave at that time. The trial judge reminded Defendant’s appellate

19-KA-363 81

counsel that the courtroom was cleared at defense counsel’s request and that she

did not recall any objection to members of the public being excluded because she

allowed anybody who was enrolled to stay.

Defendant’s appellate counsel disagreed and said that as a member of the

legal defense team, she requested to stay, but the trial judge told her only counsel

of record was allowed to stay. The trial judge asked appellate counsel if she had

addressed the court at that time, and she said, “no” and that she was in the back of

the room talking to someone else. The trial judge confirmed that appellate counsel

was not enrolled at the time. Appellate counsel argued that Defendant’s trial

counsel said at one point during the trial that the people in the first row were

members of the defense team. Appellate counsel thought it was clear to the trial

judge that she was assisting Defendant in his defense.

The prosecutor responded that defense counsel requested that the

courtroom be cleared so Defendant could listen to the challenges. He noted that it

was an unusual procedure in the 24th Judicial District Court. He further

responded that there was another alternative, namely, for the challenges to be

done at the bench while Defendant sat at the defense table where his counsel

could discuss with him what had occurred at the bench. Following the arguments

of counsel, the trial judge denied the motion for new trial without providing

reasons.

As provided in the Sixth Amendment of the United States Constitution and

Article 1 § 16, of the Louisiana Constitution, in a criminal case, the accused is

afforded the right to enjoy a public trial. However, the right to a public trial is not

absolute. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).

La. C.Cr.P. art. 795 provides:

Peremptory challenges of jurors shall be made and
communicated to the court in a side bar conference of the
judge, the attorneys conducting the examination and selection
19-KA-363 82

of jurors, and the defendant in a case in which the defendant
chooses to represent himself. The conference shall be
conducted in a manner that only the court, the attorneys, and
the defendant in a case in which the defendant chooses to
represent himself, are aware of the challenges made until the
court announces the challenges without reference to any party
or attorney in the case.

Public trial claims regarding closures of courtrooms have been found to be

subject to the contemporaneous objection rule in La. C.Cr.P. art. 841. In State v.

Sias, 03-891 (La. App. 3 Cir. 12/10/03); 861 So.2d 829, the defendant was

present during all portions of the jury selection process except the in chambers

discussions wherein jury challenges were exercised. The court minutes indicated

defense counsel was present during all three conferences held in chambers. At no

time did the defendant or defense counsel object to the challenging of jurors

being held in chambers, off the record, and out of the presence of the defendant.

Accordingly, the third circuit found that these issues were not preserved for

review, citing La. C.Cr.P. art. 841. Id. at 833; State v. Luckey, 16-494 (La. App.

5 Cir. 2/8/17); 212 So.3d 1220, 1230-31, writs denied, 17-432 (La. 10/27/17);

228 So.3d 1225 and 17-617 (La. 10/27/17); 228 So.3d 1234.

In the instant case, defense counsel asked the trial court to clear the

courtroom during the challenges so Defendant could hear those challenges. The

trial judge attempted to have defense counsel follow the usual procedure of

making arguments for the challenges at the bench while Defendant was seated at

the defense table pursuant to Article 795. She explained that if defense counsel

needed to discuss the challenges made at the bench with Defendant, she could go

back to the defense table and discuss those issues with him. Nevertheless,

defense counsel insisted that the courtroom be closed during the time the

challenges were made. At no point did Defendant or his counsel object to this

closure. Defendant’s appellate counsel testified at the hearing on the motion for

new trial that she was part of the legal defense team and wanted to be present for
19-KA-363 83

the challenges; however, she admitted that she did not make this known to the

trial court at that time. Although Defendant now complains that his legal defense

team was improperly excluded, he made no contemporaneous objection to this at

the time it occurred. Therefore, we find that Defendant has failed to preserve this

issue for review. By failing to lodge a contemporaneous objection, he is

precluded from raising this issue on appeal pursuant to La. C.Cr.P. art. 841.

Additionally, Defendant indicates that the issue can be reviewed on appeal

because it was raised in his motion for new trial. By way of analogy, in State v.

Parker, 506 So.2d 675, 682-83 (La. App. 5th Cir. 1987), writ denied, 512 So.2d

456 (La. 1987), the defendant asserted on appeal that the technical requirements

regarding the polling of the jury may not have been followed; however, he failed

to make a contemporaneous objection at trial to the procedure used to poll the

jury, and the trial court was not afforded an opportunity to comply with the

technical requirements. This Court found that although the defendant raised this

issue in his motion for new trial, he failed to make a contemporaneous objection

in accordance with La. C.Cr.P. art. 841, to the polling procedure used, and thus,

the procedure could not be reviewed on appeal. Similarly, in this case, we find

that Defendant raising his claim in his motion for new trial does not suffice as a

contemporaneous objection under La. C.Cr.P. art. 841. Also, pursuant to

La.C.Cr.P. art. 795, the public is not allowed to be present during the jury

challenges made at the bench. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWELVE

Prosecutors’ use of peremptory strikes violated Batson v. Kentucky.

ASSIGNMENT OF ERROR NUMBER THIRTEEN

The trial court improperly conducted three-step Batson analysis. [sic]

DISCUSSION

Defendant argues that the State’s use of peremptory strikes violated Batson
19-KA-363 84

v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He contends that

the defense raised Batson objections, after which the trial court found that the

defense had satisfied its burden of establishing a prima facie case of racial

discrimination. Defendant asserts that the trial court erroneously curtailed the

Batson analysis when it improperly combined stages two and three and refrained

from the third stage of inquiry into whether race discrimination played a part in

the State’s exercise of peremptory strikes. Defendant also argues that the trial

court erred by accepting the State’s reasons for challenging Bryan Vigne and

Dareen Adams. He further asserts that the State accepted certain jurors even

though they had family members with criminal histories yet struck Mr. Vigne and

Ms. Adams for those same reasons.

The State responds that the trial court did not err in accepting its race-

neutral reasons for challenging Mr. Vigne and Ms. Adams and in denying all of

Defendant’s Batson challenges. It contends that given the leeway provided to trial

courts in adjudicating Batson claims, the trial court complied with the three steps

of Batson. The State explains that while the trial court’s language was suggestive

of placing an “extra burden” on the State, which it contends benefitted Defendant.

The trial court found that the State’s strikes were not based on racial

motivations after considering the State’s offered reasons and Defendant’s

arguments. The State further responds that while Defendant attempts to second-

guess its reasons by pointing to other prospective jurors who had family members

who had committed crimes, none rose to the same level as Ms. Adams, who had a

nephew who killed someone and who had other nephews and a son involved in

drug crimes.

The record reflects that during voir dire, the prosecutor used a peremptory

challenge on Carl Saint-Louis, after which defense counsel raised a Batson

19-KA-363 85

objection. Defense counsel explained that the State had used four out of five of

its peremptory strikes on African-American jurors. She further explained that as

of the previous night, there were eleven African-American jurors called to the

box. Defense counsel asserted that ten of these eleven were removed by the

State through cause or peremptory strikes and that three out of four were

peremptory challenges. She further asserted that presented a prima facie case of

race discrimination based on the statistics.

The prosecutor responded that with respect to the statistics on a prima

facie case, cause challenges were not to be considered and not part of the

analysis for a prima facie case. The State, the defense, and the trial judge then

reviewed the challenges made to the following African-American jurors: Bryan

Vigne, Christopher Garrett, Dareen Adams, and Carl Saint-Louis. After

reviewing the challenges, the trial judge found that the defense had established a

pattern and that she was going to require the State to articulate legitimate,

nondiscriminatory reasons for its use of those strikes.

The prosecutor responded that he had three reasons for striking Mr. Vigne.

First, he stated that Mr. Vigne was on the jury for the Danzinger Bridge case in

Orleans Parish ten years prior, which was an emotionally charged case that was

not “run-of-the-mill.” Second, the prosecutor explained that Mr. Vigne had a

conviction for disturbing the peace after being arrested for battery on a police

officer and a conviction for possession of marijuana.12 He noted that because Mr.

Vigne felt “they” were treated fairly, he did not move for cause. Third, the

prosecutor stated that Mr. Vigne said that he would not require the State to prove

its case beyond all possible doubt, but it would be very hard to convict someone

and to convince him beyond a reasonable doubt.

12
Mr. Vigne actually testified that his son was convicted of possession of marijuana.

19-KA-363 86

The trial judge stated that with respect to Mr. Vigne, she did not find the

State’s reason about the Danzinger Bridge case to be convincing. She believed

that case ended in pleas. However, the trial judge found that the other reasons

articulated by the State were valid and satisfied the standard of articulating a

legitimate nondiscriminatory reason for the strike. Defense counsel pointed out

that Mr. Vigne stated that he was treated fairly in his prosecution for battery on a

police officer. She noted that disturbing the peace was a very minor charge. The

trial judge replied that the fact that Mr. Vigne was convicted was enough. She

then found that the State had met its burden with respect to Mr. Vigne.

With respect to Mr. Garrett, the prosecutor said he initially raised a cause

challenge because of the issue with not being able to keep the delay (from the

time of the offense to trial) out of his mind. The prosecutor stated that although

Mr. Garrett later said he would follow the law, he chose to exercise a peremptory

challenge “on that change of heart.” Defense counsel responded that it was her

recollection that he would be “a very State-positive juror” and that he had no

curiosity about the delay in the proceedings. The trial judge responded that her

notes were consistent with what the State articulated, that it was a close question

with respect to cause, and that it was reasonable for the State to exercise one of its

peremptory challenges on him. She found that the State had “satisfied their

burden.” She noted that the State struck him because of his initial responses, and

she thought that was “fair.”

Later on, the trial judge asked the prosecutor his reason for striking Ms.

Adams, a Black woman. The prosecutor responded that Ms. Adams had a

nephew who was convicted of second degree murder. He recalled her saying that

her nephew was treated fairly, which was why he did not raise a cause challenge.

The prosecutor pointed out that Ms. Adams also had nephews who had been

convicted, as well as a son who was arrested, for drug violations, which appeared
19-KA-363 87

to him to be a primary part of their defense. He stated that those were the reasons

they chose to strike Ms. Adams.

Defense counsel argued that she did not get the impression from Ms.

Adams that she felt sympathetic to her son and nephew being arrested for those

crimes. She said it appeared that Ms. Adams disapproved of her family members

being arrested and convicted. Defense counsel asserted that Ms. Adams had said

that she had friends, cousins, and nephews in law enforcement and noted that she

served on a jury three times. She argued that those reasons were not sufficiently

race-neutral reasons.

The trial judge responded that she thought the reasons articulated by the

State were race neutral, and therefore, she found that the standard was satisfied.

She recalled that Ms. Adams’ nephew was convicted of second degree murder

with a bat. The trial judge again found that was a race-neutral reason articulated

by the State.

With respect to Mr. Saint-Louis, the prosecutor said that he “moved for

cause for the reasons that we stated for the cause.”13 He stated that although the

trial judge had found that he was rehabilitated, his “back-and-forth” on “this

issue” that is “going to be a major factor in the case causes concern enough to

exercise a peremptory strike.” Defense counsel argued that she felt that he was

“very strong on him having thought about it and come to a reasonable change of

his mind” and that he could “put it out of his mind.” She noted that he and his

friends were in law enforcement. The trial judge stated that Mr. Saint-Louis gave

equivocal answers, and she indicated that the State’s reason was race neutral. The

trial judge further stated that although she agreed he had been rehabilitated, the

13
The record reflects that Mr. Saint-Louis initially indicated that he could not put aside any curiosity or
speculation that he may have about the delay in this case from the time of the offense until trial. The State later
challenged him for cause, arguing that he had given two completely conflicting answers, one to the State and one
to the defense, regarding the delay. The trial court then brought Mr. Saint-Louis back in for additional
questioning. After lengthy questioning, the trial judge found that Mr. Saint-Louis had been rehabilitated.

19-KA-363 88

fact that his initial response was very strong the other way was sufficient for the

State to not want him on the jury. She also asserted that she was making a finding

that the State had satisfied its burden of articulating legitimate nondiscriminatory

reasons for the strikes that it had made and that it had satisfied its burden.

Later on, defense counsel also raised a Batson challenge to Doreen

Carter. The trial judge said she believed the State was required to articulate a

legitimate race-neutral reason for its strike of Ms. Carter. The prosecutor stated

that Ms. Carter was initially quite firm that she could not vote guilty knowing it

was a life sentence. He explained that although she was rehabilitated, he was

concerned that her original feelings would remain. The trial judge said that this

situation was similar to some other ones where the person came very close to

being stricken for cause and had some very strong statements that were

ultimately rehabilitated to some extent. The trial judge said that she understood

the State’s concern, given the strong statements initially. She thought that the

State had articulated a legitimate race neutral reason with respect to Ms. Carter.

Defense counsel lodged another Batson objection when the State struck

Charles Ferguson. The trial judge said that in light of the pattern, the State would

be required to provide race-neutral reasons. The prosecutor explained that Mr.

Ferguson had the same problem with the life sentence as Ms. Carter did. The trial

judge found that the State had articulated a legitimate nondiscriminatory race-

neutral reason to strike Mr. Ferguson. She said that her notes were consistent with

what had been mentioned by both the State and the defense regarding the life

sentence, Mr. Ferguson’s statements that only God could judge, and the delay.

The Equal Protection Clause of the United States Constitution prohibits

purposeful discrimination on the basis of race in the exercise of peremptory

19-KA-363 89

challenges. In Batson v. Kentucky14, supra, the United States Supreme Court held

that an equal protection violation occurs when a party uses a peremptory

challenge to exclude a prospective juror on the basis of race. The Louisiana

Legislature codified the Batson decision in La. C.Cr.P. art. 795(C), which

provides that no peremptory challenge made by the State or the defendant shall

be based solely upon the race or gender of the juror. State v. Massey, 11-357

(La. App. 5 Cir. 3/27/12); 91 So.3d 453, 467, writ denied, 12-991 (La. 9/21/12);

98 So.3d 332. Article 795(C) further provides that if an objection is made that

either the State or defense has excluded a juror solely on the basis of race, and a

prima facie case supporting that objection is made by the objecting party, the

court may demand satisfactory race-neutral reasons for the exercise of the

challenge, unless the court is satisfied that such reason is apparent from the voir

dire examination of the juror.

The Court in Batson outlined a three-step test for determining whether a

peremptory challenge was based on race. State v. Cheatteam, 07-272 (La. App. 5

Cir. 5/27/08); 986 So.2d 738, 743. Under Batson, the defendant challenging the

peremptory strike must first establish a prima facie case of purposeful

discrimination. State v. Victor, 11-45 (La. App. 5 Cir. 11/15/11); 82 So.3d 301,

311. Second, if a prima facie showing is made, the burden shifts to the State to

articulate a race-neutral explanation for the challenge. State v. Sparks, 88-17 (La.

5/11/11); 68 So.3d 435, cert. denied, 566 U.S. 908, 132 S.Ct. 1794, 182 L.Ed.2d

621 (2012). Unless discriminatory intent is inherent in the prosecutor’s

explanation, the reason offered will be deemed race neutral. Purkett v. Elem, 514

U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (per curiam); State

v. Massey, 91 So.3d at 468. Third, the trial court then must determine if the

14
Batson v. Kentucky, 476 U.S. 79; 106 S.Ct. 1712; 90 L.Ed.2d 69 (1986), holding modified by Powers v. Ohio, 499
U.S. 400; 111 S.Ct. 1364; 113 L.Ed.2d 411 (1991).
19-KA-363 90

defendant has carried his or her ultimate burden of proving purposeful

discrimination. Sparks, supra. The ultimate burden of persuasion as to racial

motivation in exercising a peremptory challenge rests with, and never shifts from,

the opponent of the challenge. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771;

Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d

395 (1991).

To establish a prima facie case, the defendant must show: (1) the

prosecutor’s challenge was directed at a member of a cognizable group; (2) the

challenge was peremptory rather than for cause; and (3) relevant circumstances

sufficient to raise an inference that the prosecutor struck the venire person on

account of his being a member of that cognizable group. Massey, supra (citing

Sparks, supra). A trial judge’s demand that a prosecutor justify his peremptory

strikes is tantamount to a finding that the defense has produced enough evidence

to support an inference of discriminatory purpose. Id. If the prima facie showing

is made, the burden shifts to the prosecutor to present a race-neutral explanation

for striking the juror in question. Id. In any case, after the State offers a race-

neutral explanation for the peremptory challenge, and the trial court has ruled on

the ultimate question of intentional discrimination, the preliminary issue of

whether the defendant made a prima facie showing becomes moot. Id.

Whether there has been intentional racial discrimination is a question of fact.

State v. Edwards, 06-643 (La. App. 5 Cir. 3/27/07); 957 So.2d 185, 194, writ

denied, 08-1988 (La. 8/29/08); 989 So.2d 110. The trial court’s evaluations of

discriminatory intent are to be accorded great deference on review and should

not be reversed unless they are clearly erroneous. See State v. Florant, 12-736

(La. App. 5 Cir. 5/23/13); 119 So.3d 635, 642, writ denied, 13-1451 (La.

1/10/14); 130 So.3d 319.

In Sparks, 68 So.3d at 474-75, the defendant contended that because the
19-KA-363 91

trial judge did not assess on the record the weight and credibility of the

prosecutor’s explanation and articulate a reason for accepting the prosecution’s

reason as race neutral, the trial judge did not complete the third step of the Batson

framework, resulting in an inability for there to be meaningful review. The

supreme court found that to the contrary, although the better practice was for the

trial court to establish for the record its evaluation of the justification offered to

rebut the inference of purposeful discrimination, the trial court did not err in

failing to rule expressly, when the reason given by the State was facially race

neutral, self- explanatory, and related to the case. The supreme court found that

there was no discriminatory intent inherent in this explanation. In Sparks, the

supreme court stated that neither Batson nor any of its progeny had established

guidelines for a trial court performing step three of the analysis, citing Pruitt v.

State, 986 So.2d 940, 946 (Miss. 2008) (“Batson ... did not articulate a particular

means of accomplishing the third step.... The Supreme Court has not since

required trial courts to employ any specific process in carrying out steps two and

three of the Batson procedure. On the contrary, the Supreme Court has stated

‘[w]e adhere to the proposition that a state court need not make detailed findings

addressing all the evidence before it.’”)

In State v. Johnson, 18-523 (La. App. 3 Cir. 2/6/19); 265 So.3d 1034, 1039-

51, writ denied, 19-312 (La. 5/28/19); 273 So.3d 314, the defendant contended

that the trial court erred in failing to carry out the third step of the Batson analysis

by not determining whether the State was being intentionally discriminatory

when exercising its peremptory challenge of Mr. Jones. The State offered that its

reason for removing Mr. Jones was that he was inattentive. Although the trial

court stated it had not noticed Mr. Jones being inattentive, it nonetheless found

the State had offered a valid race-neutral reason for removing Mr. Jones from the

jury. The third circuit found that because the State gave a jurisprudentially
19-KA-363 92

recognized, race- neutral reason for its peremptory challenge of Mr. Jones, no

further evaluation or explanation was needed from the trial court unless the trial

judge made a finding that the prosecutor’s reasons were not credible. The third

circuit found that the State’s proffered explanation was “facially race-neutral,

self-explanatory and related to the case.” It further found that in light of Sparks,

the trial court’s finding that the State gave a race-neutral reason for striking Mr.

Jones was sufficient to satisfy the Batson analysis.

In the instant case, the record reflects that the prosecutor gave three reasons

for his peremptory challenge of Mr. Vigne, i.e., Mr. Vigne’s jury service on a

high- profile case, Mr. Vigne’s conviction of disturbing the peace15 after being

arrested for battery on a police officer, and Mr. Vigne’s indication that he had

problems with the reasonable doubt standard of proof. With respect to Ms.

Adams, the prosecutor responded that he was using a peremptory challenge

because she had a nephew who was convicted of second degree murder and

because she had nephews who had been convicted, as well as a son who was

arrested for drug violations.

The Louisiana Supreme Court has found that striking a juror on the basis

that the juror has prior convictions is a legitimate race-neutral reason. See State v.

Bender, 13- 1794 (La. 9/3/14); 152 So.3d 126, 129. Prior criminal history has long

been considered a valid reason to peremptorily excuse a prospective juror. See

State v. Heard, 40,284 (La. App. 2 Cir. 12/14/05); 917 So.2d 658, 665, writs

denied, 06-188 (La. 6/16/06); 929 So.2d 1285 and 06-781 (La. 10/6/06); 938

So.2d 71. This Court has also found that a juror having a family member with a

15
Defendant argues that Mr. Vigne did not have a conviction. During voir dire, the trial judge asked Mr.
Vigne if he or any family member had been the victim of a crime. Mr. Vigne responded:
Well I have…I didn’t get convicted for it, but I was arrested for battery to a police officer
actually in Jefferson, at Jefferson. But they changed it to disturbing the peace.
He indicated that it was a misdemeanor. After reviewing the record, it appears that Mr.
Vigne was convicted of the misdemeanor of disturbing the peace.

19-KA-363 93

criminal record is also a race-neutral explanation. See State v. Wilson, 09-170

(La. App. 5 Cir. 11/10/09); 28 So.3d 394, 404 n.4, writ denied, 09-2699 (La.

6/4/10); 38 So.3d 299.

Further, this Court has found that a prospective juror’s holding the State to a

higher burden of proof is a valid race-neutral reason for a peremptory strike. See

Florant, 12-736, 119 So.3d 635 at 645.

Once the prosecutor provided race-neutral reasons for his strikes, the trial

judge found that the reasons the State provided for striking Mr. Vigne were

“valid” and “satisfied the standard of articulating a legitimate nondiscriminatory

reason for the strike” and that “the State had met its burden with respect to Mr.

Vigne.” With respect to Ms. Adams, the trial judge responded that she thought

the reasons articulated by the State were race neutral, and therefore, she found

that “the standard was satisfied.” With respect to Mr. Vigne, the trial judge did

not say whether Defendant had carried his ultimate burden of proving purposeful

discrimination; however, she did say that the State had met its burden. It appears

that the trial court may have erroneously placed the burden of proving no

discriminatory intent on the State rather than placing the burden of proving

purposeful discrimination on the defense.

Nevertheless, we find that the trial judge did not err in rejecting

Defendant’s Batson claims with respect to Mr. Vigne or Ms. Adams. The record

reflects that the trial judge provided detailed reasons for her denials of those

Batson challenges. Additionally, in light of Sparks and Johnson, although the

trial judge did not specifically state that Defendant did not carry his burden of

proving purposeful discrimination, we also find that the trial judge did not err in

failing to rule expressly, when the reasons given by the State were

jurisprudentially recognized, facially race neutral, and self-explanatory.

Defendant also argues that the State accepted certain jurors even though
19-KA-363 94

they had family members with criminal histories yet struck Mr. Vigne and Ms.

Adams for those same reasons. The State responds that while Defendant attempts

to second-guess its reasons by pointing to other prospective jurors who had family

members who had committed crimes, none rose to the same level as Ms. Adams,

who had a nephew who killed someone and who had other nephews and a son

involved in drug crimes.

The record reflects that both the State and the defense accepted Danielle

Milligan and Tascha Perret as jurors. During voir dire, Ms. Milligan stated that

her brother-in-law’s father was murdered by his wife, who “got off” on a

“technicality” and only served two years. Nevertheless, Ms. Milligan said that she

could consider the evidence and be fair and impartial. Ms. Perret stated that she

just found out three days earlier that her adult stepson was in jail in Texas for

domestic violence. She explained that they do not speak, that it was not an issue

she had to deal with, and that it would not pose a distraction for her.

If a prosecutor’s proffered reason for striking a Black panelist applies just

as well to an otherwise similar nonblack who is permitted to serve, that is

evidence tending to prove purposeful discrimination to be considered at Batson’s

third step. Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 2325, 162

L.Ed.2d 196 (2005). Here, the record does not reflect the race of Ms. Milligan or

Ms. Perret. Therefore, it is impossible to perform a comparative analysis

between them and Mr. Vigne and Ms. Adams. Nevertheless, even if Ms. Milligan

or Ms. Perret were non-black, Defendant is not entitled to relief. Even if the trial

court found that Mr. Vigne’s conviction was not a valid race-neutral reason for

excluding him from the jury, Mr. Vigne still had problems with the reasonable

doubt standard, a jurisprudentially recognized race-neutral reason. Further, the

crimes described by Ms. Adams were committed by close relatives, her nephews

and son, whereas the crime described by Ms. Milligan was committed by a
19-KA-363 95

distant relative, her brother-in-law’s father’s wife. Also, the domestic violence

crime referred to by Ms. Perret was committed by her adult stepson, the

incarceration for that crime had just occurred three days prior, and that crime was

not as serious as the second degree murder conviction set forth by Ms. Adams. 16

With respect to the Batson challenges other than those involving Mr.

Vigne and Ms. Adams, Defendant did not make specific arguments about them.

Rather, Defendant generally argues that the trial judge erred by combining steps

two and three of the Batson analysis. As was stated above, in Sparks, the

supreme court stated that neither Batson nor any of its progeny had established

guidelines for a trial court performing step three of the analysis. Therefore, in

light of Sparks and Johnson, we find that the trial judge complied with the three

steps of Batson for all of the Batson challenges and found that the State’s strikes

were not based on racial motivations after considering the State’s offered reasons

and Defendant’s arguments. Accordingly, we find that the prosecutor’s use of

peremptory strikes did not violate Batson and that the trial court properly

conducted the three-step analysis under Batson.

ASSIGNMENT OF ERROR NUMBER FOURTEEN

The trial court erroneously granted the State’s cause challenge as to Patrick
Holland.

DISCUSSION

Defendant argues that the trial court abused its discretion when it granted

the State’s cause challenge as to Patrick Holland.17 He contends that the State

16
Defendant also argues that the State accepted Anthony Difulco, “whose wife’s uncle lived with him and has
been in and out of Angola.” He states that the defense used a peremptory strike to remove Mr. Difulco. The record
reflects that Mr. Difulco stated during voir dire that when he met his wife, her uncle was already in Angola. He
further stated that he had only met her uncle once or twice, that her uncle came to Mr. Difulco’s house for one day
because he had nowhere to go, that he was not very well acquainted with her uncle, and that “once he passed him
off to his mother-in-law,” he never saw her uncle again. He indicated that would not affect his ability to be fair to
the State and the defense. The record also reflects that defense counsel struck Mr. Difulco and that the State never
said whether it accepted or rejected him.
17
In his brief, Defendant also argues that the trial court abused its discretion by denying his challenge for cause as to
Donald Allen. Both arguments will be addressed in this assignment of error.
19-KA-363 96

asked the trial court to recuse Mr. Holland for cause based on the hardship of his

midterm examination and his sympathy concerning the delay in bringing

Defendant to trial. Defendant asserts that Mr. Holland was rehabilitated and that

his midterm could be rescheduled. He maintains that this error can only be

corrected by reversing his conviction and by granting him a new trial.

The State responds that this claim is not properly before this Court

because the State did not exhaust all of its peremptory challenges allowed to it

by La. C.Cr.P. art. 799.18 The State further responds that even if the trial court

erred in granting its cause challenge against Mr. Holland (which it asserts that it

did not), this would not entitle Defendant to relief.

Defendant also argues that prospective juror Donald Allen was unfit to

serve on his jury because he could not assure the court that he would be fair and

impartial. He notes that after Mr. Allen expressed that he was reluctant to look at

autopsy photos, defense counsel raised a cause challenge to Mr. Allen due to his

inability to look at the evidence. He further notes that the State did not join the

cause challenge but instead argued that Mr. Allen was not asked directly about

the photos and did not say that he would disregard other evidence and find that

Defendant was guilty because he was overwhelmed by the autopsy photos.

Defendant asserts that the trial court erred by denying defense counsel’s cause

challenge and that this error is grounds for reversal.

The State responds that this claim is not preserved for review because

Defendant did not object to the denial of the cause challenge as required by La.

C.Cr.P. art. 800.19 However, the State further responds that even if this claim is

18
La. C.Cr.P. art. 799 provides that “[i]n trials of offenses punishable by death or necessarily by imprisonment at
hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant. In
all other cases, each defendant shall have six peremptory challenges, and the state six for each defendant.”

19
La. C.Cr.P. art. 800(A) provides that “[a] defendant may not assign as error a ruling refusing to sustain a
challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the
objection and grounds therefor shall be stated at the time of objection.”

19-KA-363 97

preserved for review, it is without merit. The State argues that the trial court did

not err in denying this cause challenge because although he expressed reluctance

to see gruesome photographs—reluctance that almost everyone would share—he

indicated that he could be fair and impartial.

The record reflects that during voir dire, Mr. Holland appeared to have a

problem with the delay in bringing Defendant to trial. When asked if he would be

able to not consider the delay, he stated:

Well, I mean, yeah. Like I suppose I could. But still, in the
back of my mind it’s still -- Like, 23 years is a long time.
Like, who – Maybe this is me being too sympathetic. But, I
mean, maybe the guy who killed someone in the 2nd-degree
all those years ago, maybe he’s not the same guy. Maybe
he’s been, like, humbled by this whole thing. I don’t know.
Maybe it’s just me being sympathetic. But I just think that’s
a lot of time. And, you know, time can change how we --
how we see ourselves and our actions. So it’s kind of hard
for me to not take that into consideration.

Mr. Holland subsequently indicated that if the State proved the elements

of second-degree murder, and he believed Defendant was guilty, he could return

a verdict of guilty and not make that verdict based on the twenty-three-year

delay. Nevertheless, Mr. Holland then indicated that he would have to be

“absolutely sure.” He explained that he felt “terrible” for the “convicted” with

respect to the lengthy amount of time between the crime and the trial.

Mr. Holland later stated that he had midterms that week that were a

priority and that they could not be rescheduled. The State subsequently

challenged Mr. Holland for cause. The trial court brought him back in for further

questioning. After considering Mr. Holland’s concern regarding the possibility of

rescheduling his midterms and his equivocation about the delay, the trial court

struck Mr. Holland for cause.

The record also reflects that during voir dire, defense counsel asked the

prospective jurors if they would have a problem looking at crime scene and

19-KA-363 98

autopsy photographs that were “upsetting” and “disturbing.” Mr. Allen

responded, “Well, I’m not going to look forward to it. I don’t particularly want

to. But in this case if I have to, I think I’ll be all right.” Defense counsel asked

whether that would so overwhelm him that he could not give Defendant a fair

trial and treat the evidence dispassionately. Mr. Allen replied, “I hope -- I hope

not. But I can’t say that it’s not going to overwhelm me until I see how bad it is;

because I’ve never seen anything like that. But I don’t foresee it being a

problem.” Defense counsel asked if there was a possibility that those images

could be a problem. Mr. Allen answered, “I don’t -- I mean, I don’t -- I don’t

know. I’ve never seen that. I don’t - - I don’t particular want to see that, but I

think I can handle it.” After more questioning, Mr. Allen said twice, “I don’t

think it will be a problem.” He subsequently stated, “I think I’ll be still be [sic]

fair and impartial.”

Later on, defense counsel challenged Mr. Allen for cause, asserting that “he

was very equivocal on the photos.” The prosecutor disagreed, arguing that Mr.

Allen had said he could handle looking at the photographs and that it would not

be a problem. After hearing arguments of counsel, the trial judge denied the

cause challenge, stating:

Okay. I don’t even think this is a close one. I
don’t think this rises to the level of cause at all. I think
Mr. Thompson [SIC] was very forthcoming, saying - -
And of course, he can’t be a hundred percent sure that
he won’t have some sort of reaction. But he was very
clear that he could handle it and he could put it aside. I
don’t think this is a cause challenge at all.

Defense counsel later used a peremptory challenge on Mr. Allen.

The Sixth Amendment to the United States Constitution guarantees the

accused the right to trial by an impartial jury. State v. Munson, 12-327 (La. App.

5 Cir. 4/10/13); 115 So.3d 6, 12, writ denied, 13-1083 (La. 11/22/13); 126 So.3d

476. Further, La. Const. Art. I, § 17 guarantees the accused the right to full voir
19-KA-363 99

dire examination of prospective jurors and the right to challenge those jurors

peremptorily.

Jurors may be challenged for cause based on the grounds set forth in La.

C.Cr.P. art. 797.20 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. Campbell,

06-286 (La. 5/21/08); 983 So.2d 810, 858, cert. denied, 555 U.S. 1040, 129

S.Ct. 607, 172 L.Ed.2d 471 (2008); State v. Leger, 05-11 (La. 7/10/06); 936

So.2d 108, 155, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100

(2007).

In order to prove reversible error warranting reversal of a defendant’s

conviction, the defendant must show: (1) the erroneous denial of a challenge for

cause; and (2) the use of all of his peremptory challenges. State v. Jones, 03-3542

(La. 10/19/04); 884 So.2d 582, 588-89. When a defendant uses all of his

peremptory challenges, a trial court’s erroneous ruling on a challenge for cause

which deprives him of one of his peremptory challenges constitutes a substantial

violation of his constitutional and statutory rights. In this situation, prejudice is

presumed, and the conviction and sentence must be reversed. Id. at 588.

In the instant case, Defendant was tried and convicted for a crime

necessarily punishable by imprisonment at hard labor. See La. R.S. 14:30.1.

Under La. C.Cr.P. art. 799, both the State and the defense were entitled to twelve

20
La. C.Cr.P. art. 797 provides:
The state or the defendant may challenge a juror for cause on the ground that:
(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the
guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares,
and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror
and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is
reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried
the defendant for the same or any other offense.

19-KA-363 100

peremptory challenges each. Nevertheless, a review of the record shows that

Defendant did not exhaust all of his peremptory challenges; he used only ten of

them. As a result, even if the trial court erred by denying his challenge for cause

as to Mr. Allen, we decline to consider this claim because he did not exhaust all

of his peremptory challenges. See State v. Koon, 96-1208 (La. 5/20/97); 704

So.2d 756, 767, cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410

(1997) (declining to consider the defendant’s claim that the trial court erred in

denying the defense’s challenge for cause due to the defendant’s failure to

exhaust peremptory challenges); State v. Milton, 13-672 (La. App. 5 Cir.

5/14/14); 142 So.3d 157, 169 (where this Court also declined to consider the

defendant’s claim that the trial court erred in denying his challenges for cause as

to four prospective jurors due to the defendant’s failure to exhaust his peremptory

challenges).

Further, the record reflects that the State used nine of its twelve peremptory

challenges. As such, we find that even if the trial court erred by granting the

State’s challenge for cause as to Mr. Holland because the State did not exhaust all

of its peremptory challenges allowed to it by La. C.Cr.P. art. 799, there is no

ground for complaint. See State v. Harris, 18-800 (La. App. 3 Cir. 6/5/19); 274

So.3d 178, writ denied, 19-1107 (La. 3/9/20); 294 So.3d 486, where the third

circuit found that based upon La. C.Cr.P. art. 800(B), a defendant does not have

grounds to complain about the granting of the State’s challenge for cause, unless

the effect of the ruling is to allow the State to exercise more peremptory

challenges than the law allows. The third circuit in Harris found that because the

record showed that the State used only ten peremptory exceptions, the defendant

had no ground for complaint. See also State v. Ockman, 16-1615 (La. App. 1 Cir.

9/15/17); 2017 WL 5643546, (unpublished opinion), writ denied 17-1739 (La.

5/11/18); 241 So.3d 1014, (the first circuit found that since the State only used
19-KA-363 101

five of its six peremptory challenges, the dismissal of a certain prospective juror

did not have the effect of giving the State more peremptory challenges than it was

entitled to by law, and accordingly, the defendant had no ground for complaint.)

We therefore find that the trial court did not abuse its discretion by

granting the State’s challenge for cause as to Mr. Holland and by denying the

defense’s challenge for cause as to Mr. Allen.

ASSIGNMENT OF ERROR NUMBER FIFTEEN

The trial court erred in preventing the defense from mentioning Mr. Chester’s prior
trial.

DISCUSSION

Defendant argues that the trial court’s prohibition against any mention of

his prior trial violated his right to a fair trial. He contends that he was re-indicted

for second degree murder twenty-three years following the crime and that

potential jurors expressed concerns with the time delay in prosecution. Defendant

further contends that the trial court had to repeatedly instruct the jury that the time

delay was no fault of the defense or the State and that the jurors could not

consider the time delay when deliberating his guilt. He asserts that the jury shield

law makes it impossible to prove that the lack of knowledge as to why the

prosecution in this trial was delayed prejudiced the jury pursuant to La. C.E. art.

606. Defendant argues that this is a structural error because an evidentiary hearing

cannot be conducted on the prejudicial nature of the court’s prohibition, and

therefore, a new trial must be granted.

The State responds that the trial court did not improperly prohibit mention

of the prior trial. It explains that prior to voir dire, the State and defense counsel

discussed this issue, and defense counsel proposed a stipulation providing that

there had been a prior proceeding, but the delay was not the fault of the State or

Defendant. The State said that it agreed to this requested stipulation, as did the
19-KA-363 102

trial court, and that the stipulation was complied with. The State argues that this

claim is not preserved for review pursuant to La. C.Cr.P. art. 841(A) given that

the stipulation underlying the claim was executed at Defendant’s request.

The State also asserts that in his motion for new trial, Defendant argued

that the trial court acquiescing to Defendant’s own requested stipulation was

somehow structural error. It contends that Defendant’s raising of this issue in his

motion for new trial does not suffice to preserve it for review. Alternatively, the

State argues that should this Court find that the claim has been preserved, there is

no support for the notion that this “error” could be structural. The State also

points out that defense counsel was permitted to extensively voir dire on the

effect that the delay in time would have on the prospective jurors’ consideration

of the case, leading to several challenges against prospective jurors. It maintains

that informing the jury that Defendant had previously been convicted of first

degree murder, sentenced to death, and been on death row until his conviction

was overturned for ineffective assistance of counsel would have done nothing but

prejudice him.

The record reflects that prior to voir dire, the prosecutor indicated that they

needed to address what, if anything, should be said to the jury regarding the prior

trial. The trial judge asked the prosecutor if he and defense counsel had discussed

the matter and reached an agreement. Defense counsel stated:

We have. We have a -- we have a proposal. We think
that it’s appropriate for the Court to inform the jury that there
has been a prior proceeding and that the delay in getting to
this point between the time of the crime and the - - this trial is
no fault of the defendant, no fault of the State.

I think people have a tendency to feel like - - or
speculate on that - - on that time lapse and perhaps think that
Teddy Chester has been on the lam all this time or something
prejudicial to Mr. Chester.

So we think it’s appropriate to say that there has been a
prior proceeding, that it is - - the delay is no fault of the
19-KA-363 103

defendant or the State, that they’re not to consider the delay in
their - - deliberations, and that they’re required to cloak Mr.
Chester with the presumption of innocence.

We are - - we plan to question jurors about that as well.
But we don’t think that - - we think the things that are
prejudicial are that a prior jury found Mr. Chester guilty. That’s
the statement that we are trying to avoid.

The prosecutor said he was fine with that proposal. The trial judge asked if

they wanted her to tell the prospective jurors that information before voir dire or

wait until the jury was impaneled. The prosecutor suggested that she should go

ahead and address it from the beginning. The trial judge asked if anybody had a

problem with telling them that the date of the offense was December 27, 1995.

Both the prosecutor and defense counsel indicated that was not a problem.

When the first set of prospective jurors were bought into the courtroom, the

trial judge stated in pertinent part:

I am sure you will notice the delay between the date of
the alleged crime and today. There have been - - there has
been a prior proceeding in this matter, and the delay is not the
fault of the defendant or of the State. If you are selected to
serve on this jury, you are not to consider the delay during
your deliberations in this case.

During the questioning of the prospective jurors, defense counsel

encouraged them to speculate and actually provided suggestions as to why the

delay was so long between the time of the offense and the trial. Afterward, a

lengthy bench conference was held to discuss the issue again. The prosecutor,

defense counsel, and the trial judge discussed whether they should draft another

stipulation and tell the prospective jurors the reason for the delay; however, the

prosecutor objected, noting that he was not allowed to voir dire on the matter

since he had adhered to the original stipulation. The trial judge agreed with the

prosecutor that he would have had the right to voir dire on it too but did not due

to the prior agreement. Also, the trial judge did not think it was right to have the

prospective jurors speculate as to the reasons for the delay and then not give them
19-KA-363 104

the answer. The trial judge subsequently stated that she was going to keep the

original stipulation in place. Once the prospective jurors were brought back in,

the trial judge instructed them as follows:

All right, all right. And ladies and gentlemen, there has
been a delay in this case. There was a prior proceeding.
Neither the State -- The delay is not the fault of the State; it is
not the fault of the defendant. And it is not something that you
should consider when you’re considering this case. If that’s
something that you can’t do, if you can’t put that aside, the
delay, if you’re going to be focused on wondering why and
speculating and that’s going to affect you, then you need to let
us know. If you can put it aside and make a decision based on
the evidence presented in this court, that’s something we need
to know also, okay. All right.

When the second set of prospective jurors were brought into the courtroom,

the trial judge gave them the original instruction regarding the delay. Following

the conviction, Defendant filed a motion for new trial. In that motion, Defendant

argued that the trial court’s prohibition against any mention of his previous trial

was structural error. At the hearing on the motion, counsel for Defendant, who

was not his counsel at trial, argued that the trial court erred by prohibiting any

mention of Defendant’s prior conviction and procedural history. The trial judge

reminded her that Defendant’s trial counsel requested that the jury be so

instructed. Defense counsel replied that it was still an error. The motion for new

trial was later denied.

The trial court is granted broad discretion in regulating the conduct of voir

dire, and its rulings will not be disturbed on appeal absent a clear showing of an

abuse of discretion. La. C.Cr.P. art. 786; State v. Ball, 00-2277 (La. 1/25/02); 824

So.2d 1089, 1110, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107

(2002). In evaluating the fairness of the trial judge’s ruling, the entire voir dire

examination should be considered. State v. Housley, 05-502 (La. App. 5 Cir.

1/31/06); 922 So.2d 659, 662, writ denied, 06-1183 (La. 11/17/06); 942 So.2d 531.

19-KA-363 105

Although a court has discretion to restrict voir dire, it must nevertheless afford the

attorneys wide latitude in examining prospective jurors as a means of giving effect

to an accused’s right to a full voir dire. State v. Harris, 17-303 (La. App. 5 Cir.

12/20/17); 235 So.3d 1354, 1364, writ denied, 18-160 (La. 6/15/18); 257 So.3d

675. Thus, while a trial court has control over the scope of jury selection and may

limit voir dire examination accordingly, the limitations may not be so restrictive as

to deprive counsel of a reasonable opportunity to determine grounds for challenges

for cause and for the intelligent exercise of peremptory challenges. Id.

In the instant case, we find that the trial judge did not abuse her discretion

by limiting the voir dire with respect to prohibiting any mention of Defendant’s

previous trial. First, defense counsel asked the trial judge to advise the

prospective jurors that there had been a prior proceeding and that the delay

between the time of the crime and this trial was no fault of Defendant or of the

State. Defense counsel never asked to rescind the stipulation. Additionally, it

was defense counsel who encouraged some of the prospective jurors to speculate

as to the reason for the time delay. Also, the instruction to the prospective jurors

benefitted Defendant in that they never learned that Defendant was previously

convicted of first degree murder and sentenced to death, which may have greatly

prejudiced him. Further, even though there was a restriction on voir dire that was

requested by defense counsel, defense counsel was permitted to extensively voir

dire on the effect that the delay in time would have on the prospective jurors’

consideration of the case.

Defendant argues that prohibiting the mention of the prior trial and

conviction was structural error. In Arizona v. Fulminante, 499 U.S. 279, 111

S.Ct. 1246, 113 L.Ed.2d 302 (1991), cited by State v. Johnson, 94-1370 (La.

11/27/95); 664 So.2d 94, 100, the United States Supreme Court distinguished

between “trial errors,” which may be reviewed for harmless error and “structural
19-KA-363 106

errors,” which defy analysis by harmless error standards.

In State v. Langley, 06-1041 (La. 5/22/07); 958 So.2d 1160, 1164, cert.

denied, 552 U.S. 1007, 128 S.Ct. 493, 169 L.Ed.2d 368 (2007), the Louisiana

Supreme Court also discussed the difference between structural errors and trial

errors. It stated that structural defects occur in only “a very limited class of cases,”

which include: (1) the total deprivation of the right to counsel, Gideon v.

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); (2) a biased trial

judge, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed.2d 749 (1927); (3)

unlawful exclusion of grand jurors of defendant’s race, Vasquez v. Hillery, 474

U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); (4) denial of self-representation

at trial, McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122

(1984); (5) denial of a public trial, Waller v. Georgia, supra; and (6) a defective

reasonable doubt instruction, Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078,

124 L.Ed.2d 182 (1993). The Louisiana Supreme Court noted that other than in

these six restricted classes of cases, the United States Supreme Court has failed to

find structural error in the wide range of errors presented to it. See Langley, 958

So.2d at 1167.

The Langley court explained that an analysis of the “egregiousness of the

conduct” or “degrees of damage” is, in reality, the type of harmless error review

that a court would use to analyze a trial error. Conversely, it found that a

structural error, by its very nature, impacts the entire framework of the trial from

beginning to end, without reference to any other trial consideration. Langley,

958 So.2d at 1168.

In the instant case, the limitation placed on voir dire with respect to

Defendant’s prior trial and conviction at the request of defense counsel was not

structural error. First, the alleged error does not fall within the restricted classes of

cases mentioned above. Also, courts have used the harmless error analysis with
19-KA-363 107

respect to claims regarding limiting or restricting voir dire.21 See State v. Allen,

633 So.2d 325 (La. App. 1 Cir. 1993); State v. Robinson, 442 So.2d 827 (La. App.

4 Cir. 1983), writ denied, 445 So.2d 437 (La. 1984); State v. Nicholas, 397 So.2d

1308 (La. 1981). We conclude that trial court did not err in preventing the

defense from mentioning Defendant’s prior trial and any possible error was

harmless considering the sufficient evidence of Defendant’s guilt.

ASSIGNMENT OF ERROR NUMBER SIXTEEN

The trial court failed to wait the required 24-hour period before sentencing Mr.
Chester after denying his motion for new trial.

DISCUSSION

Defendant argues that the trial court failed to wait twenty-four hours

before sentencing him after denying his motion for new trial as required by La.

C.Cr.P. art. 873. He further argues that he did not waive the sentencing delays.

Defendant contends that the trial court’s error was not harmless because he

timely filed a motion to reconsider his sentence challenging his sentence under

State v. Dorthey, 623 So.2d 1276, 1280 (La. 1993), and the Eighth Amendment.

As such, Defendant argues that this Court must vacate his sentence and remand

for resentencing.

The State responds that absent a showing that prejudice resulted from the

failure to afford the statutory delay, reversal of a prematurely imposed sentence

is not necessary and that where a sentence is mandatory with no judicial

discretion, there is no prejudice. The State further responds that Defendant is

unable to show prejudice given that he received the mandatory sentence of life

imprisonment without parole. With respect to Defendant’s motion to reconsider

21
The Louisiana Supreme Court has adopted the federal test for harmless error announced in Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), as refined by Sullivan v. Louisiana, 508 U.S. 275, 113
S.Ct. 2078, 124 L.Ed.2d 182 (1993), which asks whether the guilty verdict rendered in this trial was surely
unattributable to the error. State v. Thompson, 15-886 (La. 9/18/17); 233 So.3d 529, 561.
19-KA-363 108

sentence, the State argues that Defendant does not show entitlement to relief

under Dorthey. The record indicates that the trial court failed to observe the

twenty-four-hour delay between denying Defendant’s motion for new trial and

sentencing as required by La. C.Cr.P. art. 873. There is no indication in the

record that Defendant waived this delay.

When the defendant challenges the penalty imposed and the imposed

sentence is not mandatory, the failure to observe the twenty-four-hour delay

mandated by law cannot be considered harmless error. State v. Bienvenu, 14-541

(La. App. 5 Cir. 12/16/14); 167 So.3d 63, writ denied, 15-98 (La. 11/20/15); 180

So.3d 314. As a general rule, when a defendant challenges a non-mandatory

sentence and the delay is not waived, the defendant’s sentence must be vacated

and the matter remanded for resentencing. State v. Bibbins, 13-875 (La. App. 5

Cir. 4/9/14); 140 So.3d 153, 169, writs denied, 14-994 (La. 12/8/14); 153 So.3d

439 and 14-1015 (La. 12/8/14); 153 So.3d 440.

However, the failure to observe this delay is harmless when the defendant

does not complain of his sentence on appeal or when the sentence imposed is

mandatory. State v. Seals, 95-305 (La. 11/25/96); 684 So.2d 368, cert. denied,

520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Pollard, 14-445

(La. App. 4 Cir. 4/15/15); 165 So.3d 289, writ denied, 15-926 (La. 4/22/16); 191

So.3d 1044. In Seals, 684 So.2d at 380, the Louisiana Supreme Court found that

the reversal of the sentence for failure to wait twenty-four hours between the

denial of the motion for new trial and imposition of sentence was not warranted in

the absence of prejudice. The defendant received a mandatory sentence of life

imprisonment at hard labor pursuant to La. R.S. 14:30.1(B). The court concluded

that accordingly, any error in the trial court’s failure to observe the twenty-four-

hour delay was harmless beyond a reasonable doubt and did not require a remand

for resentencing. Id. at 380 (“Delay or no delay, the sentence the judge was
19-KA-363 109

required to impose would have been the same. Thus, no prejudice could possibly

have resulted from the failure of the court to comply with the delay.”); State v.

Williams, 09-48 (La. App. 5 Cir. 10/27/09); 28 So.3d 357, 369, writ denied, 09-

2565 (La. 5/7/10);34 So.3d 860; State v. Petty, 12-278 (La. App. 5 Cir. 10/30/12);

103 So.3d 616, 627; State v. Massey, 11-358 (La. App. 5 Cir. 3/27/12); 97 So.3d

13, 41, writ denied, 12-993 (La. 9/21/12); 98 So.3d 332.

In the instant case, Defendant challenges his sentence, but Defendant

received a mandatory life sentence for the second degree murder conviction

pursuant to La. R.S. 14:30.1. Accordingly, we find that since Defendant was not

prejudiced by the trial court’s failure to observe the twenty-four-hour delay, this

error is harmless, and no corrective action is warranted.

ASSIGNMENT OF ERROR NUMBER SEVENTEEN

A mandatory life without parole sentence is unconstitutional for an 18-year old
convicted as a principal to second-degree murder.

DISCUSSION

Defendant argues that a mandatory life sentence without parole is

unconstitutional for an eighteen-year-old convicted as a principal to second

degree murder. He asserts that he was forty-seven days past his eighteenth

birthday at the time of the offense, that he had trouble in school and never passed

the ninth grade, and that he tried to sell drugs to support his girlfriend and her

baby but could only manage to obtain fake drugs at the time of the crime.

Defendant further asserts that while murder is a serious offense, this crime was

prosecuted as a “statutorily lesser murder.” He argues that he was an

impressionable teenager whose immaturity and failure to appreciate risks and

consequences led him to selling fake drugs and being present on Calhoun Street

that night.

Defendant also argues that he is less culpable than an adult convicted of the
19-KA-363 110

same crime and that at the time of the offense, he was functionally and mentally a

juvenile. He claims that the Social Security Administration designated him as

being intellectually disabled, and therefore, he was qualified for social security

disability benefits. Defendant notes that he had no control over the environment

that he was raised in, i.e., a high drug-trafficking neighborhood where many of

the community members were drug dealers or drug users. He states that he was

unable to extricate himself from “crime-producing settings” and that he imitated

what he saw many others his age and older doing.

Defendant explains that scientific studies of adolescent brain structure and

functioning show that teenagers have underdeveloped personalities and are

labile, situation-dependent, impulse driven, peer-sensitive, and largely lacking in

the mechanisms of self-control, which almost all will gain later in life. He

further explains that it was these common features of youth that led the United

States Supreme Court to conclude that juveniles under eighteen possess an

inherently “lessened culpability,” citing Graham v. Florida, 560 U.S. 48, 50,

130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

The State responds that Defendant’s mandatory sentence of life

imprisonment without parole is not excessive and that La. R.S. 14:30.1 provides

for a mandatory sentence of life imprisonment without parole for second degree

murder. The State explained that while recent United States Supreme Court

jurisprudence holds mandatory life imprisonment without parole sentences for

juvenile murderers unconstitutional, Defendant was eighteen at the time of his

crime and was not a “juvenile” under controlling jurisprudence. It asserted that

while Defendant claims that he is intellectually disabled, the trial court, after an

extensive Atkins hearing, found that he is not intellectually disabled. The State

contends that although Defendant presents argument relative to his supposedly

difficult life, none of this approaches rising to the level required by Dorthey and
19-KA-363 111

its progeny to deviate below a mandatory minimum sentence. It further contends
22 23
that while Defendant essentially seeks to expand Miller and Montgomery (and

its forerunners) to eighteen-year-olds and beyond, the United States Supreme

Court put the line at age eighteen, and Louisiana jurisprudence has declined to

move the line further up.

Defendant was convicted of second degree murder in violation of La. R.S.

14:30.1. On December 12, 2018, Defendant filed a Motion to Bar a Life Without

Parole Sentence for Adolescents as Unconstitutional. In his motion and at the

hearing, Defendant made the same arguments that he has made on appeal. During

Defendant’s argument, the trial court indicated that Defendant was eighteen years

old at the time of the offense, and therefore, Miller was inapplicable. The trial

court also noted that it had previously found in an Atkins hearing that Defendant

was not intellectually disabled. The trial court subsequently denied that motion.

Following the victim impact statement, Defendant received a mandatory

sentence of life imprisonment at hard labor without benefit of parole, probation,

or suspension of sentence. On January 11, 2019, Defendant filed a Motion to

Reconsider Sentence. In that motion, Defendant argued that based on his age, life

circumstances, intellectual disability, and version of events regarding the instant

offense, a life sentence without parole was excessive and unconstitutional. On

February 8, 2019, the trial court denied the motion in writing, noting that

Defendant was sentenced in accordance with statutory provisions and that he was

not entitled to any reconsideration or reduction in sentence.

This Court has held that the failure to file a motion to reconsider sentence,

or to state the specific grounds upon which the motion is based, limits a defendant

to a bare review of the sentence for constitutional excessiveness. State v. Hunter,

22
Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
23
Montgomery v. Louisiana, - - U.S. - - , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).
19-KA-363 112

10- 552 (La. App. 5 Cir. 1/11/11); 59 So.3d 1270, 1272. See also La. C.Cr.P. art.

881.1(E). Because Defendant filed a Motion to Reconsider Sentence stating the

specific grounds upon which the motion was based, and because he raises these

same grounds on appeal, we find that Defendant’s arguments on appeal were

properly preserved for review.

The Eighth Amendment to the United States Constitution and Article I, §

20 of the Louisiana Constitution prohibit the imposition of excessive punishment.

A sentence is considered excessive, even if it is within the statutory limits, if it is

grossly disproportionate to the offense or imposes needless and purposeless pain

and suffering. State v. Wilmot, 13-994 (La. App. 5 Cir. 5/14/14); 142 So.3d 141,

148; State v. Horne, 11-204 (La. App. 5 Cir. 2/14/12); 88 So.3d 562, 569, writ

denied, 12-556 (La. 6/1/12); 90 So.3d 437.

A trial court is given wide discretion in determining a sentence, and an

appellate court will not set aside a sentence for excessiveness if the record

supports the sentence imposed. La. C.Cr.P. art. 881.4(D); State v. Pearson, 07-

332 (La. App. 5 Cir. 12/27/07); 975 So.2d 646, 656. An appellate court cannot set

aside a sentence as excessive absent a manifest abuse of discretion. State v.

Williams, 03- 3514 (La. 12/13/04); 893 So.2d 7, 16-17. On review, an appellate

court does not determine whether another sentence may have been more

appropriate but whether the trial court abused its discretion. Id. at 17.

In reviewing a sentence for excessiveness, the reviewing court must

consider the crime and the punishment in light of the harm to society and gauge

whether the penalty is so disproportionate as to shock its sense of justice,

recognizing at the same time the wide discretion afforded the trial judge in

determining and imposing the sentence. State v. Lobato, 603 So.2d 739, 751 (La.

1992); State v. Howard, 18-159 (La. App. 5 Cir. 11/7/18); 259 So.3d 583, 590,

19-KA-363 113

writ denied, 18-2034 (La. 4/29/19); 268 So.3d 1031; State v. Allen, 03-1205 (La.

App. 5 Cir. 2/23/04); 868 So.2d 877, 879.

For those offenders convicted of second degree murder in Louisiana, La.

R.S. 14:30.1 mandates a sentence of life imprisonment at hard labor without

benefit of parole, probation, or suspension of sentence. State v. Garrison, 19-62

(La. App. 5 Cir. 4/23/20); 297 So.3d 190, writ denied, 20-547 (La. 9/23/20); 301

So.3d 1190. However, the United States Supreme Court in Miller v. Alabama,

567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), held that a State’s

sentencing scheme that mandates life imprisonment without parole for those

offenders under the age of eighteen at the time they committed a homicide

offense, violates the Eighth Amendment prohibition against cruel and unusual

punishment.24 State v. Stewart, 13-639 (La. App. 5 Cir. 01/31/14); 134 So.3d

636, 639, writ denied, 14-420 (La. 9/26/14); 149 So.3d 260. The Miller Court did

not establish a categorical prohibition against life imprisonment without parole

for juveniles but rather required that a sentencing court consider an offender’s

youth and attendant characteristics as mitigating circumstances before deciding

whether to impose the harshest penalty for juveniles who have committed a

homicide offense. State v. Williams, 12-1766 (La. 3/8/13); 108 So.3d 1169 (per

curiam).

In the instant case, Defendant was eighteen years old at the time of the

offense. In State v. Hogan, 47,993 (La. App. 2 Cir. 4/10/13); 113 So.3d

1195, 1202, writ denied, 13-977 (La. 11/8/13); 125 So.3d 445, the second

circuit recognized that the decision in Miller v. Alabama, supra, is only

applicable to juvenile offenders. The appellate court found that for purposes

of the Eighth Amendment, a “juvenile offender” is a person under the age of

24
In Montgomery v. Louisiana, - - U.S. - - , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the United States Supreme
Court held that Miller was retroactive.

19-KA-363 114

eighteen years at the time of the offense. Hogan, supra; See also State v.

Hadnot, 15-36 (La. App. 3 Cir. 6/3/15); 2015 WL 3548396 (unpublished

opinion).

The penalty for second degree murder is life imprisonment at hard labor,

without benefit of parole, probation, or suspension of sentence. La. R.S. 14.30.1.

A mandatory minimum sentence is presumed constitutional. State v. Royal, 03-

439 (La. App. 5 Cir. 9/30/03); 857 So.2d 1167, 1174, writ denied, 03-3172 (La.

3/19/04); 869 So.2d 849. Further, Louisiana courts have consistently held that a

mandatory sentence of life imprisonment for second degree murder does not

constitute cruel and unusual punishment. See State v. Landry, 388 So.2d 699

(La. 1980), cert. denied, 450 U.S. 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 (1981);

State v. Lovick, 00-1833 (La. App. 5 Cir. 5/16/01); 788 So.2d 565, 573, writ

denied, 01-1836 (La. 5/10/02); 815 So.2d 833; Hill, 742 So.2d at 690; State v.

Pendelton, 96-367 (La. App. 5 Cir. 5/28/97); 696 So.2d 144, writ denied, 97-

1714 (La. 12/19/97); 706 So.2d 450.

In State v. Dorthey, 623 So.2d 1276 (La. 1993), the Louisiana Supreme

Court recognized that a mandatory minimum sentence under the Habitual

Offender Law may still be reviewed for constitutional excessiveness. In State v.

Johnson, 97-1906, (La. 3/4/98); 709 So.2d 672, 676, the Louisiana Supreme

Court reexamined Dorthey and outlined the criteria a defendant must meet in

order to show that a mandatory minimum sentence under the Habitual Offender

Law is constitutionally excessive. Although Dorthey involved a mandatory

enhanced sentence, this Court has applied the principles set out in Dorthey to the

review of mandatory life sentences other than those imposed under the Habitual

Offender Law. See State v. Temple, 01-655 (La. App. 5 Cir. 12/12/01); 806 So.2d

697, 707, writ denied, 02-234 (La. 1/31/03); 836 So.2d 58; State v. Fobbs, 99-

1024 (La. 9/24/99); 744 So.2d 1274, 1275.
19-KA-363 115

In order to rebut the presumption that a mandatory minimum sentence is

constitutional, the defendant must clearly and convincingly show that he is

“exceptional, which ... means that because of unusual circumstances this

defendant is a victim of the legislature’s failure to assign sentences that are

meaningfully tailored to the culpability of the offender, the gravity of the offense

and the circumstances of the case.” Johnson, supra. A sentencing court should

exercise its authority to declare excessive a mandatory minimum sentence only

under rare circumstances. State v. Lindsey, 99-3302 (La. 10/17/00); 770 So.2d

339, 345, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001).

Here, Defendant has failed to show by clear and convincing evidence that

his particular circumstances are an exception to the constitutional application of

the mandatory sentence of life imprisonment at hard labor without benefit of

parole, probation, or suspension of sentence. (See State v. Harris, 02-873 (La.

App. 5 Cir. 1/28/03); 839 So.2d 291, 295, writ denied, 03-846 (La. 10/31/03); 857

So.2d 474, where the defendant made no argument and presented no evidence

regarding a downward departure from the mandatory life sentence. As such, this

Court held that the defendant failed to carry his burden under Johnson, supra and

concluded that the defendant’s life sentence was not excessive; see also Francois,

242 So.3d at 820, where this Court held the defendant failed to show by clear and

convincing evidence that his particular circumstances were an exception to the

constitutional application of the mandatory sentence of life imprisonment at hard

labor).

As was discussed previously, the evidence was sufficient for the jury to

find that Defendant was either the shooter or at least a principal to the shooting.

The record reflects that Defendant admitted that he was in the cab. However, even

if he was not the shooter, he fled the scene after the shooting, did not get help or

report the shooting, and later told his girlfriend that he was going to California.
19-KA-363 116

Considering the totality of the facts and circumstances of this case and the

jurisprudence, we find that trial court did not abuse its discretion in sentencing

Defendant to the mandatory sentence of life imprisonment at hard labor without

benefit of parole, probation, or suspension of sentence for his conviction of

second degree murder.

ASSIGNMENT OF ERROR NUMBER 1925

The cumulative errors in this case require reversal.

DISCUSSION

Defendant argues that the errors in this case, both individually and

cumulatively, violated his rights under the Fourth, Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution and the

corresponding provisions of the Louisiana Constitution. Therefore, Defendant

contends that even if this Court inexplicably finds that no single error in this

case, standing alone, calls for reversal of the conviction and/or sentence, it

should grant a new trial based on the numerous errors that prevented him from

obtaining a fair trial.

The State responds that Defendant does not show any errors, let alone

cumulative error. It further responds that the Louisiana Supreme Court has never

endorsed cumulative error arguments.

The Louisiana Supreme Court considered a similar cumulative error

argument in State v. Holliday, 17-1921 (La. 1/29/20); 2020 WL 500475, finding

no reversible error “[d]espite fastidious examination of the record and all of

defendant’s assignments of error[.]” The supreme court has noted that “the

combined effect of the incidences complained of, none of which amounts to

reversible error [does] not deprive the defendant of his right to a fair trial.”

25
This assignment of error was unspecified in Appellant’s brief.
19-KA-363 117

(quotations omitted). The supreme court recognized that although it has often

reviewed cumulative error arguments, it has continually rejected them and

instead has consistently found that harmless errors, however numerous, do not

aggregate to reach the level of reversible error. The supreme court further noted

that other courts have reached the same conclusion in addressing this issue. The

court concluded that it did not find any substantive error in the lower court

proceedings, and therefore, no cumulative error warranting reversal existed.

In State v. Turner, 16-1841 (La. 12/5/18); 263 So.3d 337, 407, cert. denied, -

- U.S. - - , 140 S.Ct. 555, 205 L.Ed.2d 355 (2019), the Louisiana Supreme Court

stated:

This Court has held: “[T]he combined effect of the
incidences complained of, none of which amounts to reversible
error [does] not deprive the defendant of his right to a fair trial.”
Although the Court has often reviewed cumulative error arguments,
it has never endorsed them. Instead, the Court has consistently
found that harmless errors, however numerous, do not aggregate to
reach the level of reversible error.

(Citations omitted). See also State v. Campbell, 16-341 (La. App. 5 Cir.

12/28/16); 210 So.3d 508, 514 n.12 (“The Supreme Court has noted that the

‘cumulative error’ doctrine has lost favor in the Louisiana courts.” Significantly,

the Louisiana Supreme Court in Manning, supra rejected the cumulative error

doctrine by noting that “twenty times zero equals zero.”).

In the instant case, upon reviewing Defendant’s arguments on appeal, we

find that Defendant is not entitled to reversal on any of the grounds as presented

in his assignments of error. Thus, based on the foregoing jurisprudence, the

cumulative effect of these claims does not entitle Defendant to relief.

UNSPECIFIED ASSIGNMENT OF ERROR

Defendant’s due process rights were violated by diametrically opposed
prosecutions and perjured testimony

DISCUSSION

19-KA-363 118

Defendant argues that he is entitled to a new trial because the State

presented inconsistent theories at his two trials and the trial of his co-defendant.

In his first trial, the State’s theory was that Defendant was the shooter, but in the

second trial, the State provided evidence that he was either the shooter or a

participant in an armed robbery that turned deadly. Defendant further argues that

the State’s inconsistent theories made it possible to convict two defendants as a

principal to one crime. He contends that because a citizen’s liberty is at stake, it

is a violation of due process for the State to present multiple theories in hope that

the jury finds the accused guilty of one. Defendant relies on Justice Stevens’

dissent in Jacobs v. Scott, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618

(1995).

Defendant also contends that Quinice Pollard’s testimony differed from the

first trial to the second trial in several ways, including the time and location of

Defendant’s confession to her. He also alleges that Ms. Pollard committed

perjury in the second trial and that his conviction was obtained in large part on

her perjured testimony.

The State responds that it did not use “diametrically opposed prosecutions”

or “perjured testimony.” It maintains that it did not take inconsistent and

irreconcilable positions in the two trials of Defendant and his co-defendant, Mr.

Ratcliff. The State explains that in Defendant’s first trial, it charged Defendant

with, and convicted him of, first degree murder based on his specific intent to kill

or to inflict great bodily harm while committing, or attempting to commit, an

armed robbery. Mr. Ratcliff was convicted of second degree murder in his

separate trial.

The State asserts that in Defendant’s second trial, it proceeded with a

charge of second degree murder based on alternative theories of: (1) specific

19-KA-363 119

intent to kill or to inflict great bodily harm or (2) that the killing occurred during

the perpetration or attempted perpetration of an armed robbery even if Defendant

had no intent to kill or to inflict great bodily harm. The State argues that it did

not allege something to be true in Defendant’s trials and then alternatively allege

something completely inconsistent and irreconcilable to be true in Mr. Ratcliff’s

trial. It maintains that it is alleging that both are guilty of second degree murder

under a specific intent theory or under a “felony murder” theory.

The State contends that, pursuant to La. R.S. 14:2426, there is no prohibition

on convicting two defendants as a principal to one crime. It further contends that

a jury is not constitutionally required to agree on a single theory to convict a

defendant when it is given instructions regarding alternative theories. The State

submits that there is no prohibition against the prosecution presenting different

evidence or presenting the evidence in a different way at a defendant’s

subsequent new trial.

With respect to Ms. Pollard, the State points out that the jurisprudence

prohibits it from deliberately relying upon perjured testimony. The State counters

that although Defendant argues that Ms. Pollard’s instant trial testimony was in

some ways inconsistent with her prior testimony, he makes no showing that her

instant trial testimony was perjured or that the State knew of such supposed

perjury. It notes that Defendant extensively cross-examined Ms. Pollard and put

these inconsistencies and other issues before the jury but the jury chose to

believe Ms. Pollard.

At Defendant’s first trial, he was indicted and convicted of first degree

murder. The jury was instructed that in order to convict Defendant of first

degree murder, it must find that Defendant killed the victim or was a principal to

26
La. R.S. 14:24: All persons concerned in the commission of a crime, whether present or absent, and whether they
directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or
procure another to commit the crime, are principals.
19-KA-363 120

the killing of the victim, that Defendant acted with the specific intent to kill or to

inflict great bodily harm, and that Defendant was engaged in the perpetration or

attempted perpetration of armed robbery. The jury was instructed that it could

also convict Defendant of first degree murder if it found that Defendant killed or

was the principal to the killing of a human being, that he acted with the specific

intent to kill or to inflict great bodily harm, and that he was engaged in the

attempted distribution, exchange, sale or purchase of a controlled dangerous

substance listed in Schedules I, II, III, IV or V of the Uniform Controlled

Dangerous Substances Law.

At Defendant’s first trial, a witness for the State testified that when a victim

is shot in the back of the head from behind, the blood spatter blows back in the

direction from which the shot was fired.27 See State v. Chester, 97-2790 (La.

12/1/98); 724 So.2d 1276, 1281, cert. denied, 528 U.S. 826, 120 S.Ct. 75, 145

L.Ed.2d 64 (1999). The State contended that Defendant pulled the trigger from

the driver’s side of the back seat because no blood was found on the back

passenger side and Defendant’s clothes and cap revealed evidence of blood. Id.

Mr. Ratcliff, the co-defendant, was subsequently convicted of second

degree murder. See State v. Ratcliff, 98-101 (La. App. 5 Cir. 2/23/99); 731 So.2d

356, writ denied, 99-1112 (La. 9/3/99); 747 So.2d 541. In that case, this Court

found, “[b]ased on the entirety of the testimony and the evidence presented by

the state, a rational trier of fact could have found that defendant was an active

participant to an attempted perpetration of an armed robbery at the time the

victim was killed.” Id. at 363.

In the instant case, Defendant was indicted and convicted of second degree

murder. The jury was instructed that in order to convict Defendant, it must find

27
From the record it appears that this witness was Sergeant Thornton.
19-KA-363 121

that Defendant killed the victim and acted with the specific intent to kill or to

inflict great bodily harm. The jury was instructed that it could also convict

Defendant of second degree murder if it found that Defendant killed the victim,

whether or not he had an intent to kill or inflict great bodily harm, while

Defendant was engaged in the commission or attempted commission of armed

robbery. At the second trial, Chief Deputy Scanlan testified that the victim’s

injury was consistent with the shooter being in the rear seat; however, he could

not tell whether the shooter was in the driver-side or passenger-side rear seat. He

asserted that a subtle change of the position the victim’s head would have

changed the angle fairly significantly and that he could not tell whether the

victim moved immediately before he was shot.

In Jacobs v. Scott, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995),

the United States Supreme Court denied the application for stay of execution of

sentence of death and the petition for writ of certiorari. In a dissent, Justice

Stevens stated, “Moreover, for a sovereign State represented by the same lawyer

to take flatly inconsistent positions in two different cases-and to insist on the

imposition of the death penalty after repudiating the factual basis for that

sentence-surely raises a serious question of prosecutorial misconduct,” and “I

have long believed that serious questions are raised ‘when the sovereign itself

takes inconsistent positions in two separate criminal proceedings against two of

its citizens.’”

In State v. Holmes, 06-2988 (La. 12/2/08); 5 So.3d 42, 62, cert. denied, 558

U.S. 932, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009), the Louisiana Supreme Court

stated that “[d]ue process forbids a state from employing inconsistent and

irreconcilable theories to secure convictions against individuals for the same

offenses arising from the same event.” In Holmes, the defendant contended that

the State violated her due process rights when it offered an alternate theory of the
19-KA-363 122

crime at the trial of her co-defendant, Robert Coleman, and argued a different

theory of the crime to the jury in her trial. The Louisiana Supreme Court found

that the State neither set forth inconsistent nor mutually exclusive theories of the

crime at the defendant and Coleman’s trials. To the contrary, the supreme court

found that it was clear that the State merely emphasized each offender’s

culpability at their respective trials. See also State v. Adams, 04-77 (La. App. 3

Cir. 9/29/04); 884 So.2d 694, 704-05, writs denied, 04-2709 (La. 2/25/05); 894

So.2d 1131 and 04-2880 (La. 2/25/05); 894 So.2d 1132. (The prosecution

presented the same evidence by the same witnesses but emphasized the

culpability of different defendants at two trials. The court found that the two

different theories advanced by the State were not inconsistent or irreconcilable.)

In the instant case, the State presented evidence and argued in Defendant’s

first trial that Defendant was the shooter; the trial court nevertheless instructed

the jury that it could convict Defendant as a principal to first degree murder. At

Defendant’s second trial, the State argued that Defendant may have been the

shooter, and the trial court instructed the jury that it could convict Defendant as a

principal to second degree murder. Also, as was stated previously, this Court

found in Mr. Ratcliff’s case that a rational trier of fact could have found that he

was an active participant in an attempted armed robbery at the time the victim

was killed.

In light of the foregoing, we find that the State did not take inconsistent and

irreconcilable positions in Defendant’s two trials and in Mr. Ratcliff’s trial. In

Defendant’s second trial and in Mr. Ratcliff’s trial, the State alleged that both

Defendant and Mr. Ratcliff were guilty of second degree murder under the

specific intent theory or the felony murder theory. Defendant argues that it is a

violation of due process for the State to present multiple theories in the hope that

the jury finds him guilty of one. However, a jury is not constitutionally required
19-KA-363 123

to agree on a single theory to convict a defendant where it is instructed as to

alternative theories. See State v. Seals, 09-1089 (La. App. 5 Cir. 12/29/11); 83

So.3d 285, 346, writ denied, 12-293 (La. 10/26/12); 99 So.3d 53, cert. denied,

569 U.S. 1031, 133 S.Ct. 2796, 186 L.Ed.2d 863 (2013).

Defendant also contends that Ms. Pollard’s testimony differed from the first

trial to the second trial in several ways, including the time and location of

Defendant’s confession to her. He further contends that Ms. Pollard committed

perjury in the second trial and that his conviction was obtained in large part on

her perjured testimony.

In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959),

the United States Supreme Court held that where a prosecutor allows a state

witness to give false testimony without correction, a reviewing court must

reverse the conviction if the witness’s testimony reasonably could have affected

the jury’s verdict, even if the testimony goes only to the credibility of the

witness. Napue, 360 U.S. at 269, 79 S.Ct. at 1177. To prove a Napue claim, the

defendant must show that the prosecutor acted in collusion with the witness to

facilitate false testimony. State v. Broadway, 96-2659 (La. 10/19/99); 753 So.2d

801, 814, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

Furthermore, fundamental fairness, i.e., due process, is offended “when the State,

although not soliciting false evidence, allows it to go uncorrected when it

appears.” Napue, supra.

When false testimony has been given under such circumstances, the

defendant is entitled to a new trial unless there is no reasonable likelihood that

the alleged false testimony could have affected the outcome of the trial. Giglio v.

United States, supra. However, the grant of a new trial based upon a Napue

violation is proper only if: (1) the statements at issue are shown to be actually

19-KA-363 124

false; (2) the prosecution knew they were false; and (3) the statements were

material. United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997), cert.

denied, 523 U.S. 1078, 118 S.Ct. 1525, 140 L.Ed.2d 676 (1998). See also

Kutzner v. Cockrell, 303 F.3d 333, 337 (5th Cir. 2002), cert. denied, stay denied,

536 U.S. 978, 123 S.Ct. 14, 153 L.Ed.2d 877 (2002) (“Importantly, due process

is not implicated by the prosecution’s introduction or allowance of false or

perjured testimony unless the prosecution actually knows or believes the

testimony to be false or perjured; it is not enough that the testimony is

challenged by another witness or is inconsistent with prior statements.”)

In the instant case, although Ms. Pollard’s testimony at the second trial was

not identical to her testimony at the first trial, Defendant did not prove that her

testimony at the second trial was perjured or that the State knew of such

supposed perjury. Also, Defendant thoroughly cross-examined Ms. Pollard

regarding the alleged inconsistencies at the second trial and the alleged

inconsistencies between 1997 and the second trial, but the jury chose to credit

her testimony.

In sum, we find no merit to the argument that the State did not take

inconsistent positions in Defendant’s two trials and in Ratcliff’s trial. Further, we

find that Defendant has failed to show that Ms. Pollard’s testimony was perjured

or that the State knew of any alleged perjury.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art.

920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556

So.2d 175 (La. App. 5th Cir. 1990) and one error was found, which we discuss

under Assignment of Error Number Sixteen. Our review reveals no errors that

require corrective action.

19-KA-363 125

DECREE

For the foregoing reasons, Defendant’s conviction of second degree murder

and life sentence without benefits are affirmed.

AFFIRMED

19-KA-363 126

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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GRETNA, LOUISIANA 70054 (504) 376-1400

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19-KA-363
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
DARREN A. ALLEMAND (APPELLEE) THOMAS J. BUTLER (APPELLEE) CECELIA T. KAPPEL (APPELLANT)
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MAILED
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