State Of Louisiana v. David H. Brown (Parish of Lafourche) Convictions Affirmed; Death Sentences Reversed; Case Remanded For Further Proceedings Consistent With

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #037
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 30th day of September, 2021 are as follows:
BY Crichton, J.:
2018-KA-01999 STATE OF LOUISIANA VS. DAVID H. BROWN (Parish of Lafourche)
CONVICTIONS AFFIRMED; DEATH SENTENCES REVERSED; CASE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. SEE OPINION.
Retired Justice Jeannette Theriot Knoll, appointed Justice as hoc, sitting for
Weimer, C.J., recused in case number 2018-KA-01999 only.
Retired Judge Frank Hardy Thaxton, appointed Justice ad hoc, sitting for
Crain, J., recused in case number 2018-KA-01999 only.
Hughes, J., additionally concurs and assigns reasons.
Crichton, J., additionally concurs and assigns reasons.
McCallum, J., additionally concurs and assigns reasons.
Knoll, J., dissents in part and assigns reasons.

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09/30/21
S
UPREME COURT OF LOUISIANA
No
. 2018-KA-01999
STA
TE OF LOUISIANA
VS.
DAVID H. BROWN
O
n Appeal from the 17th Judicial District Court, Parish of Lafourche
CRI
CHTON, J.*
A grand jury indicted defendant, David H. Brown, on three charges of first
degree murder, and the State noticed its intent to seek the death penalty, designating
several statutory aggravating circumstances. Following the close of evidence, a
unanimous jury found defendant guilty as charged. Before the penalty phase of
defendant’s trial and following a hearing pursuant to Faretta v. California, 422 U.S.
806, 95 S.C t. 2525, 45 L.Ed.2d 562 (1975) , the trial court granted defendant’s
request to represent himself during the penalty phase. Defendant’s request arose due
to a conflict between the defendant and his lawyer s about defense counsel’s
presentation of certain mitigating evidence. T he jury subsequently returned a
unanimous verdict of death on each count. This is defendant’s direct appeal pursuant
to La. Const. art. V, § 5(D).
In his appeal, defendant raises 82 assignments of error, including the trial
court’s ruling on defendant’s request to proceed pro se during the penalty phase. For
the reasons set forth herein, we find the trial court erred in allowing defendant to
represent himself during the penalty phase and therefore vacate the sentences of
*Retired Justice Jeannette Theriot Knoll, appointed as Justice ad hoc , sitting for Weimer,
C.J., recused in case number 2018-KA-1999 only. Retired Judge Frank Hardy Thaxton, appointed
as Justice ad hoc, sitting for Crain, J., recused in case number 2018-KA-1999 only.

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death. However, finding no merit to defendant’s remaining challenges, we affirm
his convictions and remand the matter to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
In the early morning hours of Sunday, November 4, 2012, Carlos Nieves
(“Nieves”) knocked on the door of Costin Constantin (“Constantin”), his neighbor
in the Longueville Apartments in Lockport, Louisiana, located in Lafourche Parish.
Nieves told Constantin that his apartment was on fire and that his wife and children
were upstairs. Nieves and Constantin attempted to go upstairs but were unsuccessful
due to the heat and smoke.
Police, firefighters, and paramedics arrived at the apartment shortly after 5:30
a.m. Firefighters discovered the bodies of Nieves’s wife, Jacquelin Nieves, and their
two daughters, Gabriela Nieves (age 7) and Izabela Nieves (age 18 months), in a
bedroom upstairs. T hey were each pronounced dead at the scene. Jacquelin and
Gabriela were both found naked from the waist down with their legs open, and
Isabela was found wearing only a diaper. Each body appeared to have been stabbed
several times. A knife wrapped in a pair of childre n’s underwear was found on a
mattress in the bedroom, and a blood-soaked white shirt with a dark stripe across the
chest was also found at the scene.
The Lockport Police Department took Carlos Nieves into custody and
transported him to the Lafourc he Par ish Sheriff’s Office (“LPSO”) Criminal
Operations Center in Lockport. Investigators with LPSO interviewed Nieves and
other residents of the apartment complex and learned that the previous day, Saturday,
November 3, 2012, an all-day barbecue and watch part y for an LSU football game
had taken place outside of Constantin’s apartment, which he shared with Adam
Billiot. Billiot, Nieves, and defendant all attended the gathering.
Constantin, Billiot, and defendant were all employed at Bollinger Shipyards
(“Bollinger”), where Billiot supervised defendant, a welder. On the day of the party,

3

between 11:30 a.m. and noon, Billiot had picked up defendant from Bollinger, where
defendant resided in an employee bunkhouse. 1 Before arriving at the apartment
complex, Billiot and defendant purchased food and alcohol from a grocery store and
defendant purchased energy drinks at a gas station. Constantin, who had worked a
night shift and went fishing that morning, arrived at the complex sometime in the
afternoon and went to sleep shortly thereafter . Ot her residents at the apartments,
including Nanette Barrios and her partner, Leroy Hebert, attended the party at
various times throughout the day. R esidents told investigators that defendant had
also attended the party, wearing a white shirt with a stripe across the chest. As will
be discussed below, a shirt matching this description was found at the crime scene.
During the game, Jacquelin, Gabriela, and Izabela returned to their apartment
after having stayed at Jacquelin’s mother’s house the night before. While they did
not attend the party, Carlos Nieves returned to his apartment and spoke with
Jacquelin at some point. After the game, Nieves, Billiot, and defendant visited two
bars, namely the Blue Moon in Lockport, then Da Bar in Raceland. After leaving
Da Bar, they went back to the Blue Moon but left when they found it empty. They
returned to Billiot’s apartment around 2:00 a.m.
Shortly thereafter, defendant entered Barrios’s apartment, which shared a
common wall with the Nieves apartment. Nannette B arrios told investigators that
defendant went into her son’s bedroom upstairs, turned on the light, and asked him
where Hebert was. Unable to find Hebert, defendant went back dow nstairs, where
Barrios was sleeping, and touched her awake. Barrios screamed at defendant and
told him to leave. Defendant walked back to Billiot’s apartment and briefly spoke
with Billiot, who then went upstairs to go to sleep.

1 According to Lt. John Champagne’s testimony at a pretrial hearing, the bunkhouse was a trailer
consisting of separate rooms and a common kitchen.

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Carlos Nieves testified that he returned to his own apartment and fell asleep
on the sofa downstairs, waking only when smoke from the fire left him unable to
breathe. Shortly thereafter, police, firefighters and paramedics arrived and began
pulling the victims’ bodies out of the apartment.
Around 11:00 a.m. t he same day, police unsuccessfully attempted to locate
defendant at the Bollinger bunkhouse but found him there when they returned around
4:00 p.m. An unidentified Hispanic man who answered the door of the trailer gave
police permission to enter, and police entered defendant’s room and found him
asleep in his bed. Lt. John Champagne announced to defendant they were from
LPSO and defendant complied when asked to step down from his bunk. Lt.
Champagne placed defendant in handcuffs and told him that he was being detained
but not under arrest, and advised him of his rights under Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602 (1966). He told defendant investigators wished to speak
with him about “an incident.”
Detectives arrived at the bunkhouse eight to ten minutes later. Det. Baron
Cortopossi again Mirandized defendant, and defendant asked the detectives if they
thought he needed a lawyer. According to Det. Benjamin Dempster’s testimony at
trial, Det. Dempster responded, “Do you think you need a lawyer? We are talking
to everybody that was at the apartments [sic] the night before, because we had a fire
with some deaths.” Police then transported defendant to the LPSO Criminal
Operations Center, where he was Mirandized again and signed a waiver of rights
form.
During an initial unrecorded interview, defendant told investigators that after
the Barrios incident, he left the apartment complex and walked northbound along a
nearby highway to Sunrise Fried Chicken but walked back to the complex when he
saw it was closed. He said Billiot’s door was locked when he returned, so he walked
across the street from the complex and into a field, fell asleep in a shed, then went

5

home when he woke up. When defendant mentioned that he had been bitten by bugs
in the shed, investigators asked him to roll up his sleeves, at which point they
observed three bandages on his left arm covering most of a cut. 2 Defendant then
rolled his sleeve down and again asked if he needed a lawyer. Det. Dempster asked
defendant if he thought he needed a lawyer, to which defendant did not respond, and
the interview ended.
Defendant remained in the interview room while investigators obtained and
executed a search warrant of his residence. They located a garbage bag in a dumpster
outside of the bunkhouse containing a dark t-shirt belonging to Carlos Nieves and a
pair of blue jeans with a wallet inside, which contained two identification cards
issued to defendant. After completing the search, investigators returned to the
interview room where they again Mirandized defendant and conducted a second,
recorded interview. During the second interview, investigators told defendant that
witnesses who had seen him the previous day described him as having worn a white
shirt with a stripe across it, and defendant indicated that he had worn such a shirt.
Investigators then asked defendant if he wanted to explain why a shirt matching that
description was found at the crime scene, at which time defendant requested a lawyer
and the interview was terminated. Police arrested defendant and booked him on
unauthorized entry of an inhabited dwelling and simple battery in connection with
the Barrios incident.
On January 23, 2013, defendant wa s booked on three counts of first degree
murder in co nnection with this case. On May 17, 2013, a grand jury ind icted
defendant on three counts of first degree murder. Defendant was arraigned on May
21, 2013 and pleaded not guilty. The same day, the State filed a notice of intent to

2 A nurse who later treated defendant’s cut at the hospital testified at trial that defendant told him
he had cut his arm on a piece of tin at work. No one interviewed by the police could recall having
seen a cut on defendant’s arm the previous day, and video footage from Da Bar showed defendant
without bandages on his arm.

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seek the death penalty, designating the following statutory aggravating
circumstances: (1) the offender knowingly created a risk of death or great bodily
harm to more than one person; (2) the victim, Izabela Nieves, was under the age of
twelve (12) years; (3) the victim, Gabriela Nieves, was under the age of twelve (12)
years; (4) the offender was engaged in the perpetration or attempted perpetration of
the aggravated rape of Jacquelin Nieves; (5) the off ender was engaged in the
perpetration or attempted perpetration of the aggravated rape of Gabriela Nieves; (6)
the offender was engaged in the perpetration or attempted perpetration of cruelty to
juveniles and/or second degree cruelty to juveniles concerning Izabela Nieves; (7)
the offender was engaged in the perpetration or attempted perpetration of cruelty to
juveniles and/or second degree cruelty to juveniles concerning Gabriela Nieves; (8)
the offender was engaged in the perpetration or attempted perpetration of aggravated
arson; and (9) the offenses were committed in an especially heinous, atrocious, or
cruel manner.
3 La. C.Cr.P. art. 905.4(A)(1), (4), (7), (10).
Defendant filed over 100 pretrial motions, including , inter alia: motions to
quash the indictment, motions to suppress evidence obtained from defendant’s
residence and person, a motion to suppress certain of defendant’s statements made
to police, a motion to recuse an assistant district attorney, motions relating to the
constitutionality of th e death penalty and portions of Louisiana’s statutory death
penalty framework, a motion in limine to bar admission of defendant’s invocation
of Miranda rights, a motion in limine related to other crimes evidence, motions for
change of venue, a motion in limine to prohibit law enforcement witnesses from
opining on the contents of video footage, and a motion to exclude unduly prejudicial

3 On September 2, 2016, the State filed an Amended Answer to Bill of Particulars for Penalty
Phase omitting the aggravating circumstances of perpetration or attempted perpetration of cruelty
and/or second degree cruelty to juveniles concerning both Gabriela and Izabela.

7

photographs. The trial court held numerous pretrial hearings and ruled upon the
motions. Both the State and defendant sought review of numerous rulings.4
Jury selection began on September 12, 2016, and concluded on October 23,
2016. Opening statements took place the following day, October 24, 2016. During
its case -in-chief, the State called 27 witnesses, in cluding Carlos Nieves, several
witnesses who had come in contact with defendant in the day and/or night leading
up to the murders,5 first responders, investigating officers, crime scene technicians,
and experts in the fields of arson investigation, forensic pathology, forensic DNA
analysis, and blood pattern analysis. The State also called as a witness defendant’s
former sister-in-law, Lillian Brown, who was the victim of an aggravated battery
committed by defendant in 1996.
Capt. Brian Tauzin of the State Fire Marshal’s Office, who investigated the
fire and was accepted as an expert in arson investigation, testified that the fire had
been intentionally set. He testified that an ignitable liquid had been poured upstairs
in the apartment, starting in the bedroom and trailing to the top of the stairs, and that
the fire itself originated at the top of the stairs. Capt. Tauzin further stated that the
“entire second story smelled of an obvious odor of gasoline.” While no incendiary

4 See, e.g., State v. Brown, 14- 1684 (La. App. 1 Cir. 2/10/15) (unpub’d) (granti ng in part and
denying in part State’s writ application seeking review of district court’s ruling on motion in limine
to bar admission of invocation of Miranda rights) (Holdridge, J., dissents and would deny the writ
application), writ denied, 15-0878 (La. 6/19/15), 166 So.3d 998 (Weimer, J., recused; Hughes, J.,
additionally concurs and assigns reasons); State v. Brown, 16- 0274 (La. 4/22/16), 192 So.3d 720
(granting writs and remanding for in camera review of each item filed by defendant ex parte and
maintained under seal) (Knoll, J., dissents and assigns reasons; Weimer, J., recused; Crichton, J.,
additionally concurs and assigns reasons); State v. Brown, 16- 1092 (La. App. 1 Cir. 9/8/16)
(unpub’d) (finding no abuse of trial court’s discretion in maintaining defense filings under seal
after in camera inspection) (Crain, J., dissents and would grant the writ application), writ denied ,
16-1685 (La. 9/13/16), 201 So.3d 240 (K noll, J., would grant the stay and grant and docket the
writ; Weimer, J., recused; Crichton, J., additionally concurs and assigns reasons).

5 Nieves testified that defendant told him at one point during the day, “I’m going to go . . . f** k
your wife[,]” which defendant downplayed as a joke before Nieves could respond. Nothing in the
record suggests that defendant had met Jacquelin (or the children) before the offenses occurred.

Barrios testified to the incident that occurred in her apartment and stated that defendant made her
feel uncomfortable while she was at the party. Another resident of the apartment complex,
Madonna Seymour, testified that defendant had been “flirtatious” and “very vulgar” at the party
and that she left after declining an invitation from him to have sex.

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devices were found, a red gas can was found in the bedroom. The owner of that gas
can, who lived near the apartment complex and next door to Accent Hair Salon, later
identified it as missing from his boat on the morning of the offense.
During Det. Dempster’s testimony, the State introduced surveillance footage
from the evening of November 3 and early morning hours of November 4, including
footage taken from the gas station visited by defendant from Da Bar and from Mid-
South Technologies (“Mid-South”), located near the apartment complex. Footage
from Mid-South depicted a person walking northbound from the complex parking
lot at 2:24 a.m. and a person walking southbound into the parking lot at 3:39 a.m. It
further showed: (a) a light illuminate in the upstairs master bedroom of the Nieves
apartment at 5:03 a.m.; (b) a person walking from the complex and around Accent
Hair Salon at 5:05 a.m.; (c) a person walking into the complex around 5:07 a.m.; (d)
a glow of light appearing in the master bedroom at 5:08 a.m.; and (e) a person
walking away from the complex and across the street into a field approximately one
minute later. Additional surveillance footage from Emerald City Car Wash, located
between the apartment complex and the Bollinger bunkhouse, depic ted a person
wearing a dark shirt and blue jeans walking toward the direction of the bunkhouse
at 1:18 p.m. the same day.
Dr. Susan Garcia, who performed the autopsies of the victims and was
accepted as an expert in forensic pathology, testified that Jacquelin suffered multiple
stab wounds, including one to her vaginal and anal area, and died as a result of a stab
wound to her collarbone. Jacquelin also had additional injuries to her vaginal and
anal area consistent with blunt trauma. Dr. Garcia determined that Gabriela also
suffered multiple stab wounds, but died as a result of smoke inhalation, having
observed soot near her nostrils and in her lungs. Dr. Garcia stated that a stab wound
that penetrated Gabriela’s skull and entered her brain could have been fatal had she
lived long enough. Gabriela also had injuries to her vaginal area consistent with

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blunt trauma, including bruising and a small tear in her vaginal opening. Izabella
suffered multiple stab wounds and died as a result of stab wounds to her chest and
abdomen. Dr. Garcia also testified that each victim had stab wounds on their hands
and/or arms characteristic of defense wounds.
David Cox,6 a supervisor of the technical operations at the lab in the Jefferson
Parish Sheriff’s Office (“JPSO”), was accepted as an expert in forensic DNA
analysis. He testified that DNA consistent with defendant’s, in the form of blood,
was found on the east wall of the stairs, the stairwell baseboard, the bathroom floor
near the doorframe, the wall of the bedroom near the doorframe, and the white shirt
found at the crime scene. DNA consistent with Jacquelin’s was a “major
contributor” to a DNA mixture in the form of blood found elsewhere on the white
shirt. DNA consistent with defendant’s was a “major contributor” to a DNA mixture
in the form of blood found on both the handle and the blade of the knife. Specifically,
Cox testified that the probability of finding that defendant’s same DNA profile from
a randomly selected individual other than defendant was one in greater than 100
billion.
The defense presente d no witnesses during the guilt phase and rested on
October 26, 2016. Following closing arguments and instruction from the trial court
on October 30, 2016, a unanimous jury found defendant guilty as charged of three
counts of first degree murder.
On October 31, 2016, a fter the conclusion of the guilt phase but before the
penalty phase began, defense counsel alerted the trial court to an issue involving the
scope of its representation of defendant. The trial court removed the jury from the
courtroom, and during a closed session defendant informed the court that due to a
dispute between himself and his counsel regarding the presentation of certain

6 David Cox’s official job title is “DNA Technical Leader.”

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mitigating evidence, he wished to waive his right to counsel and represent himself
in the penalty phase of the trial. As discussed in greater detail below, on November
1, 2016, the trial court conducted a hearing pursuant to Faretta v. California, 422
U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) , and ultimately granted the
defendant’s request to proceed pro se during the penalty phase.7
The penalty phase was held on November 1, 2016. In its opening statement,
the State argued that the evidence presented during the guilt phase demonstrated that
the death penalty was warranted. Defendant declined to make an opening statement.
The State presented victim impact testimony from Jacquelin’s mother and father-in-
law. Defendant presented no evidence or testimony. After the State’s closing
argument, and with no closing argument by defendant, the jury returned three
verdicts of death, finding the following aggravating factors: (1) the offender was
engaged in the perpetration or attempted perpetration of aggravated rape (counts one
and two); (2) the offender was engaged in the perpetration or attempted perpetration
of aggravated arson; (3) the offender knowingly created a risk of dea th or great
bodily harm to more than one person; (4) the offense was committed in an especially
heinous, atrocious, or cruel manner; and (5) the victim was under the age of twelve
years old (counts two and three).
Defendant thereafter filed a motion for new trial under seal, asserting many of
the arguments he sets forth in this appeal. After a hearing, the trial court denied the
motion and all claims therein. Defendant was sentenced to death on June 22, 2018,
and the trial court later denied his motion to reconsider sentence. Defendant timely
filed this appeal.

7 In Faretta, the United States Supreme Court held that the Sixth Amendment implies a right of
self-representation and thus determined that forcing a lawyer upon a person in criminal court
deprives a defendant of his constitutional right to conduct his own defense . Faretta, 422 U.S. at
835, citing Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed.
268 (1942). The Supreme Court held, however, that any such waiver of counsel must be knowing
and intelligent, and a “‘choice [] made with eyes open.’”

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DISCUSSION
Defendant’s primary argument on appeal is that the trial court violated his
Sixth, Eighth, and Fourteenth Amendment rights by prohibiting him from limiting
his counseled defense during the penalty phase of his trial. More specifically, prior
to trial, defense counsel prepared a penalty phase defense that included, but was not
limited to, evidence concerning the defendant’s mother’s abusive childhood. The
defendant adamantly disagreed with the presentation of this evidence, indicating he
wanted to protect his mother and not require her to relive her past. Following a
Faretta hearing, the trial court ultimately granted defendant’s waiver of his right to
counsel during the penalty phase. For the reasons that follow, we find that ruling to
be incorrect and, therefore, reverse defendant’s sentences of death. However,
defendant’s convictions are upheld.
Penalty Phase Assignments of Error
Assignments of Error Nos. 1 and 2
In his first assignment of error, defendant asserts the trial court erroneously
advised him that he did not have the right to limit the presentation of mitigating
evidence at the penalty phase. In his second assignment of error, defendant argues
that his invocation of his right to represent himself was unknowing , unintelligent,
and involuntary, thereby invalidating his waiver. Because we find the defendant was
misinformed by the trial court as to his Sixth Amendment right to limit the mitigation
evidence presented during the penalty phase (relative to defendant’s Assignment of
Error No. 1), it necessarily follows that defendant’ s waiver was not knowing or
intelligent and was involuntary (defendant’s Assignment of Error No. 2).
Accordingly, we agree the trial court erred in granting defendant’s waiver of his right
to counsel for the reasons set forth herein.8

8Defendant argues in his first assignment of error that the trial court gave him two choices – either
to self -represent or to permit defense counsel to present the mitigation evidence to which he
objected – and thus “forced” defendant to self-represent in violation of defendant’s Sixth, Eighth,

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The dispute regarding the presentation of certain mitigating evidence first
arose at the conclusion of the guilt phase in a closed hearing on October 31, 2016.
Defense counsel (Dwight Doskey) explained to the trial court that defendant was
opposed to the presentation of any evidence concerning his mother. Doskey further
stated that he explained to the defendant that his choices were either to allow counsel
to present the best defense possible, pursuant to their ethical obligation to do so, or
to discharge defense counsel. According to counsel, defendant had chosen the latter.
Defendant then informed the court, “That’s correct, Your Honor. Right now, I’d
like to waive counsel and represent myself from here on out in the penalty phase.”
Defendant further explained:
I came to this decision years ago. I’ve discussed this with Mr. Doskey.
And I told him if we got to this phase, my feelings on it. I don’t know
if Mr. Doskey had thought, maybe, by then I would change my mind or
he would be able to talk me out of it somehow. I’m not going to allow
my mother to get on the stand . . . . I will not do it.

What I will do is ask to represent myself. I will offer no mitigation,
because the Defense has – I don’t have an obligation to put up any
evidence, any mitigating evidence. Defense is going to hear the State’s
case and then the Defense is going to rest. That is my plan, Your Honor.
I understand the law. I unde rstand what I’m obligated to do and my
rights.

Although stating that this exchange with the defendant was not a Faretta hearing for
purposes of waiver of counsel (but that such a hearing would occur the following
day), the trial court confirmed that defen dant was not under the effects of any

and Fourteenth Amendment rig hts. While we agree the trial court erroneously assumed and
advised defendant, as discussed herein, as to his Sixth Amendment right to direct the presentation
of evidence in his penalty phase, we decline to address whether defendant’s argument that the trial
court’s failure to correctly advise defendant amounted to an express ruling on this issue. Finding
the trial court ultimately erred in granting defendant’s waiver of his right to counsel following his
erroneous instruction as to defendant’s constitutional rights , we need not address defendant’s
construct of the trial court’s error as set forth in his Assignment of Error No. 1. Nevertheless,
because defendant’s argument as to his unknowing , unintelligent, and involuntary waiver (his
Assignment of Error No. 2) is intrinsically tied to the erroneous statements of law by the trial court
as to his right to direct his counsel regarding the presentation of mitigating evidence ( relative to
his Assignment of Error No. 1), we address these assignments together.

13

medication that would alter his ability to understand.9 Prior to breaking for the day,
the trial court specifically informed the defendant that he was still represented by
counsel.
The following morning, the trial court conducted a closed Faretta hearing.
Defendant testified that he technically only received an eighth grade education .
Although he attended school through the eleventh grade through a “Tabernacle
Appraised” (“TAPS”) program, which was not recognized by the Louisiana School
Board, defendant was placed in the eighth grade when he returned to public school
at 17 years old. Defendant confirmed he is able to read and write, and the trial court
noted that it had observed him taking notes and asking his attorneys questions.
Defendant also explained that he was not currently undergoing mental health
treatment or taking mental health medication but that he had seen a psychiatrist as a
juvenile for sniffing gasoline. He also testified that as a juvenile he had taken
Wellbutrin and a second medication that he could not recall, but he ceased taking
that medication after a short time because of its side effects.
The trial court asked defendant about the witnesses defense counsel intended
to call during the pe nalty phase, and defendant responded that he only objected to
his mother and his uncle Calvin, explaining that “[t]here’s stuff that’s in the past that
I believe should stay in the past. And it took my mother many, many years to get
over this. And to be drug back out, put in the newspaper – like I told you, I’m willing
to accept death before I let my mother get on the stand.” When further discussing
the possibility of defendant representing himself, the following colloquy between
the trial court and defendant ensued:
DEFENDANT:
Well, Your Honor, this is my understanding of it. My
understanding, through the Witherspoon process that we – you
know, many weeks – is that I’m not obligated to put up a defense

9 Defendant did inform the trial court that although he was not taking any “mental meds,” he was
taking several blood pressure pills a day, as well as medications for heartburn and allergies.

14

in mitigation. That I have to show no evidence. That the jurors
have to consider both sides regardless if I produce any evidence.

THE COURT:
Right.

DEFENDANT:
And I want to defend myself because Mr. Doskey finds it a moral
obligation on his part that he should put up the best defense.

THE COURT:
It’s actually a professional obligation on his part.

DEFENDANT:
Professional obligation, also. Excuse me.

THE COURT:
He’s required.

DEFENDANT:
To put up the best defense possible for me.

THE COURT:
Right.

DEFENDANT:
And he thinks that putting my mother up and my Uncle Calvin
up is part of that defense, and that’s where we disagree.

THE COURT:
Okay. But the thing about self-representation is you can’t have it
halfway.

DEFENDANT:
Well, this is my plan, Your Honor. My plan is being the law
states that I have not – I don’t have to put any defense up, I’m
going to rest –

THE COURT:
Okay.

DEFENDANT:
– all through the process.

THE COURT:
Well, so let me get – I don’t necessarily have to know your
strategy, although, i t is good to know. That’s part of – that’s
going to be part of what I base my decision on, that you have a
strategy. But if you’re allowed – if I allow you to represent
yourself, you can’t change your mind and say, “Well, I want Mr.
Doskey to call some of the witnesses and not all of the
witnesses.”

15

DEFENDANT:
Correct. I understand.

THE COURT:
Because if he’s representing you, he’s calling them.

DEFENDANT:
Well, that was the conflict. You see, I was willing – if he was
willing to not put my mother and Uncle Calvin, we could of [sic]
called anybody that he wanted besides that. But he’s unwilling to
do that, so this is the step that I have to take to protect my mother.

THE COURT:
But what I’m telling you is you can still call other witnesses if
you wish to.

DEFENDANT:
I understand. I’m not – I don’t think I can question a witness.
You understand what I’m saying? I feel that I don’t – I’m not
saying have the skills, I just don’t have – emotionally, I don’t
know how to question somebody – you know what I’m saying –
in a situation like this. Because this – believe it or not, this is my
first time going through a process like this. And, to me, the best
thing that I can do is just rest, a nd then whatever the jurors
decide, that’s what they decide. What’s important, right here, is
my mother.

THE COURT:
Some other things you need to understand is that once the jury
makes its decision, there’s going to be a procedure called the
“appeal process.” First of all, if you represent yourself, you can’t
later ask for a new trial, because of the fact that I allowed you to
represent yourself.

DEFENDANT:
Yes, sir.

THE COURT:
You can’t – you’ll be giving up any claim that you might have
for ineffective assistance of yourself in representing –

DEFENDANT:
Correct.

THE COURT:
- ineffective self-representation, so to speak.

DEFENDANT:
Now, does that carry through to the guilt phase, also?

THE COURT:
The guilt phase is done.

16

DEFENDANT:
Right. So I don’t waive anything on the guilt phase.

THE COURT:
We’re talking about representation – you representing yourself,
if it gets to that point. Whatever mistakes, whatever risk you take
for representing yourself, whatever problems you cause for
yourself is on you.

DEFENDANT:
Correct.

THE COURT:
As they say, you have to go into this with your eyes open.

DEFENDANT:
Yes, sir.

* * *

THE COURT:
Are you refusing the allow the Capital Defense team to represent
you?

DEFENDANT:
I think the disagreement we have, yes, I would ask them to stand
down.

The trial court informed defendant that he risked the jury not recognizing mitigation
if it is not presented to them, and defendant replied, “I just feel this is the decision I
have to make to protect my mother, and whatever consequences I have to suffer I’m
willing to take that.”
10
In granting defendant’s waiver of his right to counsel for the penalty phase,
the trial court stated:
According to Faretta v. California, Mr. Brown has the right to choose
between the right to counsel and the right to represent himself when
such a conflict arises. But he has to do so knowingly, intelligently, and
without waver [sic]. As we discussed, he has to do so and understand
the risk of self-representation and understand the benefits, potentially,
of representation. Mr. Brown is aware – when we were in the guilty
phase – Mr. Brown has been present for approximately six weeks of
penalty qualification, and has summarized it, in his own words, as he
has the right not to present anything if he chooses to.

10 During the Faretta hearing, defense counsel listed several witnesses that were on standby and
available to testify, including Mr. Billiot, Mr. Nieves, Dr. Cunningham, Dr. Piasecki, Jason Brown,
and Calvin Dumas.

17

The Court has informed him that even if the Court grants his right to
self-representation, the witnesses are available for his presentation of
whomever he chooses to. Mr. Brown has indicated that he understands,
if he represents himself, it cannot be a basis for future issue with regard
to that self -representation, such as seeking a new trial based on the
penalty phase, because he represented himself, seeking an ineffective
assistance of counsel for representing himself.

He has sufficient mental abilities and understandings. He is not under
any mental health treatment, nor has he demonstrated any lack of ability
to understand what he’s doing, when he’s doing it, and throughout this
process. In fact, he’s demonstrated an extreme ability to control his
own actions.

The Court finds that Mr. Brown’s waiver of his right to counsel for the
remaining portion of the trial, including the penalty phase, is a knowing
and voluntary decision having been fully infor med of the benefits and
the risks, and he has a full understanding of what he is doing. As I
indicated to Mr. Brown, it is my view that it’s a foolish decision, but it
is not one that is contrary to the law in consideration of Faretta v.
California. It is also – there was even a federal case, State v. – I’m
sorry – United States v. Lynn Davis that discussed the judge’s attempt
to appoint a special defense counsel to come in and handle the penalty
phase as a friend of the Court, which I can’t do. It’s beyond the scope
of anything I can do.

There are numerous state cases, among them: State v. Bell, State v.
Gregory Brown that allowed and authorized self -representation in
capital cases. I’m going to grant his right to represent himself.

After making its ruling, the trial court granted permission for defense counsel to
remain seated beside defendant during the penalty phase.
11 The trial court also
informed the jury at the beginning of the penalty phase that defendant had elected to
represent himself for that portion of the trial.12
As stated above, defendant now argues in Assignment of Error No. 1 that the
trial court erroneo usly forced him to choose between allowing defense counsel to
introduce mitigation evidence concerning his mother or forego counsel at the penalty

11 Notably, the transcript reflects that the trial court stated he could “tell, from looking at counsel,
that y’all are distressed by my decision as much as you’re distressed by his decision.” Moreover,
after the trial court made this ruling, it asked the State, “Mr. Soignet. You all right?” The State
responded: “No, sir.”

12 The court stated: “Ladies and gentlemen, I need to advise you of something before we get started.
Mr. Brown has made the decision to represent himself for the remainder of these proceedings. At
the request of his former counsel, I have allowed them to sit with him at counsel table.”

18

phase altogether, resulting in a violation of his Sixth Amendment right to counsel.
Defendant contends that he would have preferred to proceed with the assistance of
counsel on the condition that this particular evidence not be introduced. Citing
McCoy v. Louisiana, 584 U.S.__, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018) and State
v. Felde, 422 So.2d 370 (La. 1982), defendant asserts his counsel’s obligation during
the penalty phase was not to p ut on what counsel perceived to be the best possible
defense; instead, counsel’s obligation was to honor defendant’s wishes pursuant to
his right to limit his penalty phase defense. In his Assignment of Error No. 2,
defendant relatedly argues that his waiver of his right to counsel was constitutionally
infirm. He reasons that the trial court’s erroneous instruction as to his right to limit
the mitigation evidence during the penalty phase rendered his waiver unknowing ,
unintelligent, and involuntary. Finally, defendant argues these errors were structural
in nature13 and require reversal of the penalty phase without the requirement of a
showing of prejudice.
The Sixth Amendment expressly guarantees the accused in a criminal
proceeding the right to have “the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. “The ‘core purpose’ of the counsel guarantee is to assure aid at trial,
‘when the accused [is] confronted with both the intricacies of the law and the
advocacy of the public prosecutor.’” U.S. v. Gouveia, 467 U.S. 180, 188 -89, 104
S.Ct. 2292, 2297-98, 81 L.Ed.2d 146 (1984), citing United States v. As h, 413 U.S.
300, 309, 93 S.Ct. 2568, 2573, 37 L.Ed.2d 619 (1973). Furthermore, “the right to

13 A “structural” error is a “defect affecting the framework within which the trial proceeds, rather
than simply an error in the trial process itself.” Arizona v. Fulminante , 499 U.S. 279, 310, 111
S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991), reh’g d enied, May 20, 1991. The United States
Supreme Court has recognized structural errors only in a “very limited number of cases.” Johnson
v. U.S., 520 U.S. 461, 468, 117 S.Ct. 1544, 1550, 137 L.Ed.2d 718 (1997), citing Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (a total deprivation of the right to
counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (lack of an impartial
trial judge); Vasquez v. Hillery , 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (unla wful
exclusion of grand jurors of defendant’s race); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944,
79 L.Ed.2d 122 (1984) (the right to self -representation at trial); Waller v. Georgia, 467 U.S. 39,
104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (the right to a public trial); Sullivan v. Louisiana, 508 U.S.
275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (erroneous reasonable-doubt instruction to jury).

19

counsel ‘embodies a realistic recognition of the obvious truth that the average
defendant does not have the professional legal skill to protect himself when brought
before a tribunal with power to take his life or liberty, wherein the prosecution is
presented by experienced and learned counsel.’” Gouveia, supra, 467 U.S. at 189,
104 S.Ct. at 2298, citing Johnson v. Zerbst, 304 U.S. 458, 462–463, 58 S.Ct. 1019,
1022, 82 L.Ed. 1461 (1938). The right to counsel under Louisiana Constitution
Article I, § 13 and the right to counsel under the Sixth Amendment are coextensive
in scope, operation, and application. State v. Carter, 94-2859, p. 20 (La. 11/27/95),
664 So.2d 367, 382. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d
799 (1963); State v. Brooks, 452 So.2d 149, 155 (La. 1984).
The Sixth Amendment “does not provide merely that a defense shall be made
for the accused; it grants to the accused personally the right to make his defense.”
Faretta v. California , 422 U.S. 806 , 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562
(1975). “The right to defend is given directly to the accused; for it is he who suffers
the consequences if the defense fails.” Id. , 422 U.S. at 819- 20, 95 S.Ct. 2525
(footnote omitted). Nevertheless, an accused may elect to waive the right to counsel
and represent himself.
The assertion of the right to self-representation must be clear and unequivocal,
see U.S. Const. Sixth Amend.; La. Const. Art. I, § 13; Faretta v. California , 422
U.S. at 835, 95 S.Ct. 2541; State v. Hegwood, 345 So.2d 1179, 1181–82 (La. 1977),
and the relinquishment of counsel must be knowing and intelligent. Johnson v.
Zerbst, 304 U.S. 458, 464–65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1958); State v.
Strain, 585 So.2d 540, 542–43 (La. 1991). This Court has stated:
An accused has the right to choose between the right to counsel and the
right to self -representation. State v. Strain, 585 S o.2d 540, 542
(La.1991). . . . Whether the defendant has knowingly, intelligently, and
unequivocably [sic] asserted the right to self -representation must be
determined based on the facts and circumstances of each case. See State
v. Strain, 585 So.2d 540, 542 (La.1991) (citing Johnson v. Zerbst, 304
U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).

20

State v. Bridgewater, 00-1529, p. 18 (La. 1/15/02), 823 So.2d 877, 894.
While the United States Supreme Court has expressly declined to “prescribe[]
any formula or script to be read to a defendant who states that he elects to proceed
without counsel,” Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209
(2004), the accused “should be made aware of the dangers and disadvantages of self-
representation so that the record will establish that he knows what he is doing and
his choice is made with eyes open.” Faretta, 422 U.S. at 835, 95 S.Ct. 2541 (internal
quotation and citation omitted). See also United States v. Davis, 269 F.3d 514, 518–
19 (5th Cir. 2001) (n oting that, although the court “has consistently required trial
courts to provide Faretta warnings[,]” there is “no sacrosanct litany for warning
defendants against waiving the right to counsel[,]” and district courts must exercise
discretion “[d]epending on the circumstances of the individual case”). Accordingly,
a trial court should “advise the accused of the nature of the charges and the penalty
range, should inquire into the accused’s age, education and mental condition, and
should determine according to the totality of the circumstances whether the accused
understands the significance of the waiver” by conducting “a sufficient inquiry
(preferably by an interchange with the accused that elicits more than ‘yes’ and ‘no’
responses) to establish on the rec ord a knowing and intelligent waiver under the
overall circumstances.” Strain, 585 So.2d at 542 (citing Von Moltke v. Gillies, 332
U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948) and 2 W. LaFave & J. Israel, Criminal
Procedure, 11.3 (1984)).
In order for such waiver to be knowing and intelligent, the trial court must
necessarily provide an accurate description of the defendant’s right to counsel that
he or she is relinquishing. See Strain, 585 So.2d at 542 -43. In this case, however,
the trial court erroneously advised defendant he could not direct his counsel to limit
the mitigation evidence presented during the penalty phase. For the reasons that

21

follow, we find this assertion is contrary to established principles embodied in the
Sixth Amendment.
Implicit in the right to counsel is the accused’s authority “to make certain
fundamental decisions regarding the case, as to whether to plead guilty, waive a jury,
testify in his or her own behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745,
751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983) . However, certain other
decisions, such as those relative to trial management, belong to counsel:
As to many decisions pertaining to the conduct of the trial, the
defendant is deemed bound by the acts of his lawyer -agent and is
considered to have notice of all facts, notice of which can be charged
upon the attorney. Thus, decisions by counsel are generally given effect
as to what arguments to pursue, what evidentiary objections to raise,
and what agreements to conclude regarding the admission of evidence.
Absent a demonstration of ineffectiveness, counsel’s word on such
matters is the last.

New York v. Hill, 528 U.S. 110, 115, 120 S.Ct. 659, 664, 145 L.Ed.2d 560 (2000)
(internal quotations and citations omitted). This Court has held that “a defendant
can limit his defense consistent with his wishes at the penalty phase of trial.” State
v. Felde, 422 So.2d 370, 395 ( La. 1982), citing Bishop v. State, 95 Nev. 511, 597
P.2d 273 (1979). In Felde , the Court determined that defendant Felde , a prison
escapee charged with first degree murder of a police officer, was mentally competent
to stand trial and enroll as co- counsel, and had a “constitutional right to impose a
condition of employment on his counsel.” Felde, 422 So.2d at 395, citing Faretta v.
California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
14
In State v. McCoy , 14-1449 (La. 10/19/16), 218 So .3d 535, 564, rev’d and
remanded, 584 U.S. ___, ___, 138 S.Ct. 1500, 1505, 200 L.Ed.2d 821 (2018), the
trial court would not permit McCoy to replace his retained counsel on the eve of

14 As a condition of employment, Felde instructed counsel not to attempt to obtain a verdict other
than not guilty by reason of insanity or guilty of first degree murder with capital punishment. The
Court concluded that adherence to this agreement did not result in ineffective assistance, finding
defendant mentally competent to stand trial and possessing a constitutio nal right to impose a
condition of employment on his lawyer.

22

trial, and his counsel conceded at the outset of trial that McCoy murdered his victims
despite the fact that McCoy “vociferously insisted that he did not engage in the
charged acts and adamantly objected to any admission of guilt.” While McCoy
argued on appeal that the trial court erred in allowing defense counsel to concede
guilt over his objection, defense counsel had repeatedly told the trial court that he
believed honoring McCoy’s wishes would result in a violation of his ethical duty to
do the best he could to save McCoy’s life. McCoy, 14-1449, p. 41, 218 So.3d at 566.
This Court rejected McCoy’s argument, categorizing the concession of guilt as a
strategic and tactical choice and finding that “[c]onceding guilt, in the hope of saving
a defendant’s life at the penalty phase, is a reasonable course of action in a case in
which evidence of guilt is overwhelming.” Id., 14-1449, p. 42, 218 So.3d at 566-
67.15
The United States Supreme Court reversed and remanded, finding that the
violation of the defendant's Sixth Amendment-secured autonomy was a structural
error that is not subject to harmless error review, and holding that concession of guilt
is a decision reserved for the defendant:
Just as a defendant may steadfastly refuse to plead guilty in the face of
overwhelming evidence against her, or reject the assistance of legal
counsel despite the defendant’s own inexperience and lack of
professional qualifications, so may she insist on ma intaining her
innocence at the guilt phase of a capital trial. These are not strategic
choices about how best to achieve a client’s objectives; they are choices
about what the client’s objectives in fact are. . . .

Counsel may reasonably assess a concessi on of guilt as best suited to
avoiding the death penalty, as [counsel] did in this case. But the client
may not share that objective. He may wish to avoid, above all else, the
opprobrium that comes with admitting he killed family members. Or he
may hold life in prison not worth living and prefer to risk death for any
hope, however small, of exoneration. . . . When a client expressly
asserts that the objective of “his defence” is to maintain innocence of
the charged criminal acts, his lawyer must abide by that objective and

15 This Court also noted that while Felde did not endorse the premise “that trial counsel must adopt
a capital client’s unsupportable trial strategy at the guilt phase,” it has “subsequently applied the
Felde case to permit a capital defendant to instruct his appointed counsel not to present any
mitigating evidence in the penalty phase .” State v. McCoy , 14-1449, p. 39 (La. 10/19/16), 218
So.3d 535, 564, rev’d and remanded, 584 U.S. ___, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018).

23

may not override it by conceding guilt.

McCoy v. Louisiana , 584 U.S. ___, 138 S.Ct. 1500, 1508 –09, 200 L.Ed.2d 821
(2018). When later interpreting this decision, this Court opined that it is “broadly
written and focuses on a defendant’s autonomy to choose the objective of his
defense.” State v. Horn, 16-0559, p. 10 (La. 9/7/18), 251 So.3d 1069, 1075.
Our decision today comports not only with the United States Supreme Court’s
discussion of the Sixth Amendment in McCoy, and with our earlier decision in Felde,
but also with our previous examination of proper waiver of a defendant’s right to
present mitigating evidence during the penalty phase. In State v. Bordelon, 07-0525,
(La. 10/16/09), 33 So.3d 842, defendant was convicted of the first degree murder of
his twelve -year-old step daughter. The sentencing hearing began with defense
counsel informing the trial court that defendant had instructed him not to present a
defense case in mitigation. After an extensive colloquy with defenda nt, the trial
court determined the defendant made a knowing and intelligent waiver of his right
to present mitigating evidence. This C ourt stressed that defendant’s decision
“implicated bedrock principles that have shaped evolving capital jurisprudence over
the past 30 years,” noting:
A defendant in a capital case has the Sixth Amendment right to
reasonably effective counsel “acting as a diligent, conscientious
advocate for his life.” State v. Myles, 389 So.2d 12, 30 (La. 1980) (on
reh'g) (citations omitted). He also has an Eighth Amendment right to
have his jury “consider and give effect to mitigating evidence relevant
to [his] character or record or the circumstances of the offense.” Penry
v. Lynaugh, 492 U.S. 302, 327–28, 109 S.Ct. 2934, 2951, 106 L.Ed.2d
256 (1989). The sentencer in a capital case therefore must be allowed
to consider “‘as a mitigating factor, any aspect of a defendant's
character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.’” Blystone
v. Pennsylvania , 494 U.S. 299, 304– 05, 110 S.Ct. 1078, 1082, 108
L.Ed.2d 255 (1990) (quoting Lockett v. Ohio , 438 U.S. 586, 604, 98
S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978)) (emphasis in original;
footnote omitted). Thus, reasonably competent counsel acting as a
diligent advocate for his client's life in a capital case must investigate,
prepare, and present, even without the active cooperation of the
defendant, relevant mitigating evidence at a capital sentencing hearing.
Rompilla v. Beard , 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360

24

(2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d
471 (2003).

Id. at p, 34- 35, 33 So.3d at 865. Nevertheless, the Court in Bordelon found the
desired limitations on the defense were “self imposed” by defendant. Id. Relying
upon Felde, the Court concluded that the defendant “had the capacity to make a
knowing and intelligent waiver of his right to present mitigating evidence and that
he did so explicitly during his colloquy with the trial judge at the outset of the
sentencing phase.” Id. at 36, 33 So.2d at 865. See also Schriro v. Landrigan, 550
U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d. 836 (2007) (upholding trial court’s finding
that defendant was unable to prove prejudice under Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), based on his trial counsel’s failure
to investigate possible mitigating evidence where the record clearly established that
defendant instructed counsel not to present any such evidence).
Other jurisdictions have similarly held that a capital defe ndant’s right to
instruct his counsel not to present mitigating evidence encompasses the right to limit
the amount and/or type of mitigating evidence counsel may present. In Boyd v. State,
910 So.2d 167 (Fla. 2005), as revised on denial of reh’g (June 16, 2005), cert.
denied, 546 U.S. 1179, 126 S.Ct. 1350, 164 L.Ed.2d 63 (2006), the Florida Supreme
Court found that defense counsel did not err in honoring Boyd’s wishes to limit the
presentation of mitigating evidence in the penalty phase where additional evidence,
including testimony from Boyd’s mother, was available. In rejecting Boyd’s
argument on appeal that his trial counsel was obligated to decide what evidence was
to be presented in the penalty phase, the court stated the following:
[A] defendant possesses great control over the objectives and content
of his mitigation. Whether a defendant is represented by counsel or is
proceeding pro se, the defendant has the right to choose what evidence,
if any, the defense will present during the penalty phase.

The record provides extensive support to substantiate that Boyd
understood his rights and understood the consequences of his choice to
present only the testimony of his pastor and himself. Boyd was

25

exercising his right to be the “captain of the ship” in determining what
would be presented during the penalty phase. Therefore, we hold that
the trial court correctly allowed Boyd to make a knowing and voluntary
decision as to what testimony was to be presented in mitigation.

Id. at 189–90 (citations omitted). See also Ramirez v. Stephens, 641 Fed.Appx. 312,
327 (5th Cir. 2016) (holding trial counsel did not render ineffective assistance when
they stopped their mitigation case at defendant’s request after having called his
father as a witness the day before, finding that defendant’s directions were “entitled
to be followed”); Shaw v. State, 207 So.3d 79, 116 (Ala. Crim. App. 2014), cert.
denied, 137 S.Ct. 828, 197 L.Ed.2d 71 (2017) (finding trial court correctly allowed
defendant to limit his counsel’s presentation of mitigating evidence at the penalty
phase); State v. Monroe, 827 N.E.2d 285, 299- 301 (Ohio 2005) (finding trial court
was not required to hold a hearing on defendant’s competency to waive his right to
present mitigating evidence where defendant merely limited the amount of
mitigating evidence his counsel could present on his behalf, including a prohibition
on testimony from his family members, as opposed to waiving his right to pr esent
any mitigating evidence at all, and that defendant was entitled to limit the
presentation of mitigating evidence); State v. Roscoe , 910 P.2d 635, 650 (1996)
(finding trial court properly granted defendant’s pro se motion to exclude certain
mitigating evidence, stating that “[d] eference is especially appropriate under the
circumstances before the trial court in this case, where the client’s request involves
a strong privacy interest”); and People v. Lang, 782 P.2d 627, 653 (1989), abrogated
on other grounds by People v. Diaz , 345 P.3d 62 (2015) (finding defense counsel
did not provide ineffective assistance where it honored defendant’s request not to
call grandmother as a penalty phase witness, as requiring counsel to present certain
mitigating evidence over defendant’s objection “would be inconsistent with an
attorney’s paramount duty of loyalty to the client and would undermine the trust,
essential for effective representation, existing between attorney and client” and

26

“imposing such a duty could cause some defendants who otherwise would not have
done so to exercise their Sixth Amendment right of self-representation”).
We also find guidance in a Utah capital case that presented a similar issue. In
State v. Maestas, 299 P.3d 892 (Utah 2012), after defendant Maestas’s counsel had
already presented some mitigating evidence in the penalty phase, Maestas requested
the court to allow him to proceed pro se because of his objection to defense counsel’s
insistence on introducing additional mitigating evidence. The court instructed
defense counsel to discuss Ma estas’s concerns with him and to attempt to reach a
mutual agreement in how to proceed. After discussing the matter with Maestas,
defense counsel informed the court that it still intended to introduce the evidence at
issue:
Specifically, defense counsel explained that Mr. Maestas did not want
to present “any unflattering or negative history about his family.” But
counsel responded, “[T]hat is simply not something that we can abide
given our responsibilities under the [C]onstitution to provide effective
representation and . . . relevant mitigating evidence in this matter.”
Counsel further stated, “[W]hether or not we’re going to put on specific
evidence, that’s our call to make. That’s not Mr. Maestas’[s] decision.”
Accordingly, counsel reported, “We’re at an impasse. He does not want
us to use everything we have. We are planning to use everything we
have.”

Id. at 956. However, rather than permit Maestas to dismiss his counsel and proceed
pro se, as the trial court did in the instant case, the court instead prohibited defense
counsel from introducing any mitigating evidence in violation of Maestas’s wishes,
finding that he was entitled to direct his own defense. The court determined that a
waiver of counsel could not be voluntary under the circumstances, as “defense
counsel’s insistence on presenting evidence that contravened Mr. Maestas’s wishes
placed him in a position where he felt he had to waive counsel in order to prevent
the evidence to which he objec ted from coming forward.” Id . at 956. Defense
counsel abided by the court’s instruction and explained to the jury during closing
arguments that “certain mitigating evidence had not been presented at Mr. Maestas’s

27

request ‘because it was so terrible, and so horrifying, and so upsetting to him and his
family, that he would rather face a death sentence than have you hear what kind of
life and background he came from.’” Id. at 957.
On appeal, the Utah Supreme Court found that the trial court did not violate
Maestas’s right to counsel in granting his request to waive his right to present further
mitigating evidence, stating the following:
Like other decisions that a represented defendant has the right to make,
such as the decision to plead guilty to an offense or testify in the
proceedings, the decision to waive the right to present mitigating
evidence is not a mere tactical decision that is best left to counsel;
instead, it is a fundamental decision that goes to the very heart of the
defense. Mitigating evidence often involves information that is very
personal to the defendant, such as intimate, and possibly repugnant,
details about the defendant’s life, background, and family. As such, like
other decisions reserved for the defendant, the decision not to put th is
private information before the jury is a very personal decision.
Additionally, like the decision to testify or plead guilty, the decision not
to present mitigating evidence may be very significant to the outcome
of the proceedings. Moreover, it would ma ke little sense to allow
defendants to incriminate themselves by testifying or to forgo a trial
and plead guilty to an offense, but bar them from waiving the
presentation of mitigating evidence in the penalty phase. For these
reasons, the decision to waive the right to present mitigating evidence
is a ‘fundamental decision[] regarding the case’ that falls under the
defendant's ‘right to control the nature of his or her defense.’

. . . .

Thus, because the Sixth Amendment is meant to protect the control a
defendant has over his or her own case, we decline to interpret the
amendment as limiting a defendant’s “right to control the nature of his
or her defense” when that defendant is represented by counsel.
Accordingly, a defendant’s right “to choose how much— if any —
mitigating evidence is offered” applies to represented defendants as
well. We therefore conclude that the Sixth Amendment does not
mandate that defense counsel present mitigating evidence over the
wishes of a represented defendant.

Id. at 959–61 (citations and footnotes omitted).
In this case, the record reflects that during the Faretta hearing the trial court
made several incorrect statements of law to defendant in regards to his right to limit
counsel, informing defendant that defense counsel was “required” to present all the
mitigating evidence that counsel believed would make the best case in defense’s

28

favor. Based upon the jurisprudence cited herein, we find this to be an erroneous
interpretation of defendant’s Sixth Amendment rights. In McCoy, the Supreme
Court specifically found that a capital defendant is permitted to instruct his appointed
counsel not to present any mitigating evidence in the penalty phase, and thus, the
purported obligation cited by the trial court does not exist under these
circumstances.
16
Because the trial court erroneously informed defendant that he was no t
entitled to limit his counsel’s presentation of mitigating evidence during the penalty
phase, we find defendant’s waiver unknowing and unintelligent in violation of his
Sixth Amendment rights. See Strain , supra. In short, the trial court’s error
necessarily prevented defendant from waiving his right to counsel “with eyes open.”
Faretta, 422 U.S. at 835, 95 S.Ct. 2541.
17
The record also makes clear that defendant’s decision to represent himself in
the penalty phase was based solely on the dispute with counsel and defendant would
have proceeded with the assistance of counsel throughout the penalty phase had the
dispute been resolved in his favor . He stated: “I was willing – if he was willing to
not put my mother and Uncle Calvin, we could of [sic] called anybody that he wanted
besides that. But he’s unwilling to do that, so this is the step that I have to take to
protect my mother.”
The trial court and defendant’s colloquy evinces that the trial court’s
erroneous description of defendant’s Sixth Amendment rights placed defendant into

16 While the McCoy decision was decided after the trial court’s ruling in this case, McCoy is rooted
in long-standing principles embodied in the Sixth Amendment. Moreover, the trial court had the
benefit of both the Felde and Bordelon decisions, as discussed herein, and thus was not without
relevant jurisprudence to guide its ruling, despite the trial court indicating it was “kinda muddy on
the law.”

17 To be clear, we do not hereby mandate that in every case a defendant must be informed of these
rights before validly waiving the right to counsel. See United States v. Davis, 269 F.3d at 518–19
(5th Cir. 2001). Where a defendant is affirmatively misinformed by the trial court of the right being
waived, however, it is clear that defendant’s waiver cannot be deemed constitutionally valid.

29

the untenable position of having to choose between relinquishing the critical
decisions regarding the presentation of certain penalty phase mitigation evidence or
entirely discharging his legal representation. T hus, defendant’s subsequent waiver
of counsel was also involuntary, as he was “forced to make a choice between
representation that would compromise his autonomy or no representation at all.”
State v. Clark, 12-0508, p. 9 (La. 6/28/19), 285 So.3d 414, 419-20, reh’g denied, 12-
508 (La. 9/6/19), 278 So.3d 364, cert. denied, 141 S.Ct. 272, 208 L.Ed.2d 37 (2020)
(finding the Faretta colloquy adequate, defendant made a knowing and intelligent
waiver of counsel, and thus, no violation of defendant’s Sixth Amendme nt rights);
see also State v. Maestas, 299 P.3d 892, 957 (Utah 2012).
In light of this, we find the trial court’s ruling in this instance to be a structural
error not subject to harmless error review, as the violation of defendant’s “protected
autonomy right was complete when the court allowed counsel to usurp control of an
issue within [defendant’s] sole prerogative”:
18
Violation of a defendant’s Sixth Amendment-secured autonomy ranks
as error of the kind our decisions have called “structural;” when present,
such an error is not subject to harmless-error review. Structural error
affects the framework within which the trial proceeds, as distinguished
from a lapse or flaw that is simply an error in the trial process itself. An
error may be ranked structural, we have explained, if the right at issue
is not designed to protect the defendant from erroneous conviction but
instead protects some other interest, such as the fundamental legal
principle that a defendant must be allowed to make his own choices
about the proper way to protect his own liberty. An error might also
count as structural when its effects are too hard to measure, as is true of
the right to counsel of choice, or where the error will inevitably signal
fundamental unfairness, as we have said of a judge’s failure to tell the
jury that it may not convict unless it finds the defendant’s guilt beyond
a reasonable doubt.

McCoy, 138 S.Ct. at 1510 (internal quotations and citations omitted).
In sum, defendant’s waiver of counsel was not, and could not have been,

18 See Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (holding that
harmless error involves the inquiry into not whether, in a trial that occurred without the error, a
guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in
this trial was surely unattributable to the error.)

30

knowing, intelligent, or voluntary because the trial court misinformed defendant
during the Faretta hearing as to his Sixth Amendment rights to direct his legal
representation.19 Thus, for the reasons set forth above, we find this portion of
defendant’s second assignment of error has merit, reverse the defendant’s sentences
of death and remand to the trial court for a new penalty phase.20 21
Other Penalty Phase Assignments of Error
Defendant has assigned additional errors in the penalty phase of trial;
including, inter alia, he was denied counsel during an overnight recess before his
Faretta hearing; his Eighth Amendment right was violated by receiving the death
penalty; the jury was given a constitutionally inadequate sentencing instruction and

19 Defendant also asserts in Assignments of Error Nos. 2 and 3 that the Faretta hearing failed to
adequately resolve questions regarding his competenc y and urges this Court to adopt a higher
standard for assessing competency to self -represent at the penalty phase of a capital trial.
However, we are unpersuaded by defendant’s arguments in this regard and, further, because of the
remedy afforded to defendant, we pretermit any discussion of these assertions.

20 Defendant also asserts that neither the trial cou rt nor his defense counsel advised him of the
possibility of hybrid representation or standby counsel and that the court instead told him that “the
thing about self-representation is you can’t have it halfway.”

A trial court may appoint standby counsel to a self -represented defendant, even over defendant’s
objection, “to explain and enforce basic rules of courtroom protocol or to assist the defendant in
overcoming routine obstacles that stand in the way of the defendant’s achievement of his own
clearly indicated goals.” McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 954, 79 L.Ed.2d
122 (1984). Standby counsel may participate in the trial as long as their participation does not
“seriously undermine the defendant’s appearance before the jury in the status of one representing
himself.” Id., 465 U.S. at 187, 104 S.Ct. at 956. A trial court may also allow a defendant to act as
his own co-counsel under “hybrid representation” and may require such a defendant “to conduct
portions of the trial entirely in his own right, or may permit the defendant to act in tandem with
counsel during cross-examination of witnesses and closing argument to the jury.” State v. Carter,
10-0614, p. 24 (La. 1/24/12), 84 So.3d 499, 519. However, an indigent defendant has “no
constitutional right to be both represented and representative[,]” and the decision to permit hybrid
representation rests solely within the discretion of the trial co urt. Id. (internal quotation omitted).
Thus, while the trial court in this instance was not required to make such an appointment, the
failure to inform the defendant of these options did not invalidate the Faretta hearing.

21 Defendant further argues his invocation was equivocal, as it was based on dissatisfaction with
his current counsel, as opposed to a general desire to self -represent. As set forth above, the
transcripts of both the Faretta hearing and the closed hearing reflect that defendant was adamant
in his decision to self -represent, did not waiver on the issue, and that he expressed his desire to
represent himself clearly to the court multiple times. At various times during the hearings,
defendant stated “[r]ight now, I’d like to waive counsel and represent myself from here on out in
the penalty phase”; “[w]hat I will do is ask to represent myself”; “And I want to defend myself
because Mr. Doskey finds it a moral obligation on his part that he should put up his best defense.”
While we tend to agree that such statements are unequivocal, this issue is pretermitted by our ruling
that defendant’s waiver was invalid on other grounds.

31

verdict form; the jury was told by the State they could not consider merc y as a
mitigating factor at all; and the jury failed to determine beyond a reasonable doubt
that the punishment of death was appropriate. However, these assignments of error
are pretermitted by this Court’s reversal of defendant’s death sentence and remand
for a new penalty phase. It is therefore unnecessary to address them, as they do not
impact the result of the guilt phase of defendants’ trial. Our disposition likewise
obviates the requirement that we review defendant’s sentence for excessiveness. La.
C.Cr.P. art. 905.9.
We now turn to defendant’s assignments of error as they relate to the guilt
phase of his trial.

Guilt Phase Assignments of Error
Assignment of Error No. 6
Defendant argues the trial court erred in failing to issue a case-specific ruling
justifying the use of onerous restraints at trial, namely a leg brace and a shock device.
While defendant concedes there is no indication that these devices were visible to
the jury, he nonetheless claims that they caused him physical pain and anxiety and
influenced his ability to express himself throughout the proceedings, thus resulting
in prejudice.22
Ordinarily, a defendant before the court should not be shackled, handcuffed
or garbed in any manner destructive of the presumption of his innocence or
destructive of the dignity and impartiality of the judicial proceedings. Illinois v.
Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L. Ed. 2d 353 (1970); State v. Wilkerson, 403

22 Defendant also asserts the restraints interfered with his ability to self -represent in the penalty
phase, in that he was unable to move throughout the courtroom in the same manner as the S tate.
He further claims that the trial court erred in failing to inform him during the Faretta hearing of
the effects the restraints might have on his ability to self -represent and in failing to limit the
movement of the S tate in an effort to reduce prejudice to defendant. However, because of the
remedy afforded defendant concerning his penalty phase, we pretermit discussion of this portion
of this assignment of error.

32

So.2d 652 (La. 1981). However, exceptional circumstances may require, in the
discretion of the trial court, the restraint of the prisoner for reasons of courtroom
security or order or when the prisoner’s past conduct reasonably justifies
apprehension that he may attempt to escape. Wilkerson, supra; State ex rel. Miller
v. Henderson, 329 So.2d 707, 712 (La. 1976). To find reversible error, the record
must show an abuse of discretion by the court res ulting in clear prejudice to the
accused. Wilkerson, 403 So.2d at 659. See also, State v. Holliday, 17-1921, p. 25-
26 (La. 1/29/20), __ So.3d __.
Defendant did not contemporaneously object to the use of restraints, and thus
failed to adequately preserve this claim for review. See La.C.Cr.P. art. 841; State v.
Wessinger, 98-1234, p. 20 (La. 5/28/99), 736 So.2d 162, 181 (superseded by statute
on other grounds) (scope of review in capital cases is limited to alleged errors that
are contemporaneously objected to). In any event, although it is undisputed that the
court failed to make an individualized determination as to the necessity of
restraints,23 defendant fails to show that he was prejudiced by the presence of the
restraints. As noted above, nothing in the record suggests that the restraints were
visible to the jury. 24 Additionally, defendant provides no proof, beyond his own
claims made only after trial, that the restraints affected his demeanor throughout the
proceedings. See State v. Odenbaugh, 10-0268, p. 67 (La. 12/6/11), 82 So.3d 215,
258 (rejecting similar claim for lack of evidence). Defendant also fails to show that
the restraints affected his ability to defend himself, particularly when the record
demonstrates that he elected not to present any evidence or testimony during the

23 During a hearing on a post -trial motion, defense counsel noted that “there was no ruling as to
the necessity of the restraints,” in objection to a proffered report of defendant ’s indictment prior
to trial for conspiracy to commit aggravated escape on June 24, 2016.

24 The trial court stated upon ruling on the motion for new trial that the restraints “were completely
out of the sight and vision of the jury” and that defendant “was not presented to the jury in shackles
in any manner at any time and in any way.”

33

penalty phase for reasons wholly unrelated to his restraints. Accordingly, we find
this claim lacks merit.
Assignment of Error No. 7
Defendant asserts that the trial court erroneously denied his pretrial motion25
to exempt his mother from its sequestration order during the guilt phase of the trial.
He argues that her sequestration during the guilt phase served no legitimate purpose,
as the defense only intended to call her as a penalty witness, and there was no risk
that she would alter her testimony based on what she observed during the guilt
phase.26
In a criminal trial, “an accused is at the very least entitled to have his friends,
relatives and counsel present, no matter with what offense he may be charged.” In
re Oliver, 333 U.S. 257, 272, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948). The statutory
sequestration rule is contained in La. C.E. art. 615(A):
On its own motion the court may, and on request of a party the court
shall, order that the witnesses be excluded from the courtroom or from
a place where they can see or hear the proceedings, and refrain from
discussing the facts of the case with anyone other than counsel in the
case. In the interests of justice, the court may exempt any witness from
its order of exclusion.

This Court has stated that “[t]he purpose of sequestration is to assure a witness will
testify as to his own knowledge.” State v. Trahan, 576 So.2d 1, 11 (La. 1990), on
reh’g (Mar. 8, 1991). The sequestration rule is intended “to prevent witnesses from
being influenced by the testimony of earlier witnesses” and “to strengthen the role

25 In his original motion, defendant averred that his mother, Judy Brown Corteau, attended virtually
every hearing in the case, without incident, and had never been cautioned by the court at any time.
Furthermore, defendant argues, while defendant is entitled to have other family members attending
the proceedings in order to assure that a fair trial is taking place, no one else had volunteered to do
so. Thus, defendant argued that the interests of justice should allow for exemption of his mother
from the sequestration order.

26 Defendant also asserts that the absence of his family members in the courtroom may have
influenced the jury’s sentencing determination. However, because of the remedy afforded
defendant herein regarding his penalty phase, we pretermit any discussion of other penalty phase
assignments of error.

34

of cross-examination in developing the facts.” State v. Castleberry, 98-1388, p. 28
(La. 4/13/99), 758 So.2d 749, 772. In reviewing sequestration errors, courts “will
look to the facts of the individual case to determine whether the violation resulted in
prejudice to the defendant.” State v. Lewis, 367 So.2d 1155, 1158 (La. 1979)
(overruled on other grounds by State v. Shelton, 92-3070 (La. 7/1/93), 621 So.2d
769).
We find defendant’s mother did not fall into any of the enumerated exceptions
to the seque stration rule, as stated in Article 615(B), which extends through both
phases of the trial:27
This Article does not authorize exclusion of any of the following:

(1) A party who is a natural person.
(2) A single officer or single employee of a party which is not a natural
person designated as its representative or case agent by its attorney.
(3) A person whose presence is shown by a party to be essential to the
presentation of his cause such as an expert.
(4) The victim of the offense or the family of the victim.
As the State notes in brief, there is no evidence to suggest that the jurors were aware
of his mother’s absence during the guilt phase. Importantly, the trial court lifted the
sequestration order once defendant, acting pro se , released all defense witnesses at
the outset of the penalty phase, 28 and his mother was allowed in the courtroom for

27 See La. C.Cr.Pr. art. 905.1(A) (providing that an order of sequestration shall remain in effect
until the completion of the sentencing hearing).

28 Following the Faretta hearing, the defendant stated that he “wo uld like to let the Court know
that he is not calling any witnesses, and he would like to have the witnesses released from their
sequestration. . . And allow my mother in court, please.” After some discussion with counsel
regarding what witnesses were present, the following exchange took place between the defendant
and the trial court:

THE COURT: Okay. Mr Brown, if I release those people from
sequestration, they cannot be, then, called by you when it’s
your turn. Do you understand?

DAVID BROWN: I understand.

THE COURT: Is it still your desire to release all of the witnesses or only
your mother?

DAVID BROWN: I’m going to release all of them, sir.

35

the remainder of the trial. Accordingly, we find this assignment of error to be
without merit.
Assignment of Error No. 10
Defendant avers the trial court erred in precluding his presentation of an
intoxication defense. On September 6, 2016, six days before jury selection began,
the State filed a Motion to Preclude Defense Based upon Mental Condition and to
Exclude Evidence of Same. In its memorandum in support of that motion, the State
argued that defendant failed to provide timely notice of its intent to introduce
evidence relating to a mental disease or defect, including voluntary intoxication, as
required by La. C.Cr.P. art. 726. 29 The d efense filed an opposition arguing that it
provided timely notice of its intent 30 in its Third Response to State’s Request for
Discovery, which was filed under seal on December 8, 2014. 31 The issue was
addressed at a hearing on September 9, 2016, and the tr ial court granted the State’s
motion, stating, in part, that that defendant did not “satisfy[] the requirements set

THE COURT: Okay. Then I have – we’ve had our discussion as to the
ramifications of that, earlier, and I’m not going to repeat that.
Then I will release your witnesses from their sequestration
subpoena.
* * *

29 La.C.Cr.P. art. 726 provides the following:

A. If a defendant intends to introduce testimony relating to a mental disease, defect,
or other condition bearing upon the issue of whether he had the mental state
required for the offense charged, he shall not later than ten days prior to trial or
such reasonable time as the court may permit, notify the district attorney in writing
of such intention and file a copy of such notice with the clerk. The court may for
cause shown allow late filing of the notice or grant additional time to the parties to
prepare for trial or make such other orders as may be appropriate.

B. If there is a failure to give notice as required by Subsection A of this Article, the
court may exclude the testimony of any witness offered by the defendant on the
issue of mental condition.

30 In addition to the time requirement set forth in La.C.Cr.P. art. 726(A), the Trial Scheduling
Order No. 10, signed by the court on November 6, 2014, ordered defendant to provide notice to
the State “of any intent to use testimony at trial about whether the defendant had the mental state
required for the offenses charged, no later than 2 p.m. on December 8, 2014.” This was an
extension of a previous deadline of November 7, 2014.

31 Jury selection concluded on October 23, 2016, and opening statements took place the following
day, October 24, 2016.

36

forth in 726 invoking the affirmative defense of intoxication” and that it was “not
even close to notice of intent to offer that type of evidence, testimony, or otherwise
in the notice provided by the Defense.”
Defendant asserts that pursuant to La. R.S. 14:15(2), 32 he was entitled to
present evidence of intoxication to negate specific intent. 33 He argues the court
erroneously determined he failed to timely provide sufficient notice of his intent to
present such a defense, and therefore its ruling precluding an intoxication defense
was likewise erroneous. He also asserts that even if his notice of intent was
insufficient, the court’s sanction was grossly disproportionate. Defendant further
argues the trial court erred in limiting defense counsel from confronting witnesses
regarding intoxication and drug use, namely, in questioning witnesses about the type
or quantity of alcohol consumed, 34 and in failing to instruct the jury regarding
intoxication where the State presented evidence that defendant had been drinking

32 “Where the circumstances indicate that an intoxicated or drugged condition has precluded the
presence of a specific criminal intent or of special knowledge required in a particular crime, this
fact constitutes a defense to a prosecution for that crime.” R.S. 14:15(2).

33 In his brief to this Court, defendant provides the following factual background regarding his use
of drugs and alcohol leading up to the murders:

But for the court’s erroneous rulings, the jury would have learned that, between 6
a.m. and noon on November 3, Mr. Brown split a 12 -pack of beer with Costin
Constantin and Adam Billiot, took a Roxicodone pill, purchased and consumed,
along with Constantin and Billiot, several large energy drinks, a bottle of
Jägermeister, a fifth of Absolut Vodka, and four cases of beer. Beginning at noon
and continuing through the LSU game that evening, David Brown drank four
energy drinks mixed with nearly all of the bottle of Jägermeister, half the bottle of
vodka, and two cases of beer (approximately 48 beers), took ten Roxicodone pills,
two Lithium pills, and smoked approximately $40 worth of marijuana. After LSU
lost to Alabama, Mr. Brown drank beer and mixed drinks at two bars, and then after
arriving back at the apartment complex at around 1:45 a.m., continued to drink. By
2:40 a.m. David Brown was “drunk, dead, blackout.” Appx. 310.

Note, however, that defendant attributes the quote “drunk, dead, blackout” to Adam Billiot’s police
interview, which clearly reflects that Billiot was referring to himself, not defendant: “I was drunk,
dead, blackout sleep, you know.”

34Pursuant to the State’s objection during cross-examination of Carlos Nieves, the trial court ruled
that it would allow witness testimony as to the fact that defend ant and others were drinking at
certain times or places, but nothing beyond that, such as the types or quantities of alcohol
consumed.

37

before the jury.
The purpose of La. C.Cr.P. art. 726 is to “eliminate unwarranted prejudice
which could arise from surprise testimony.” State v. Trahan , 576 So.2d 1, 6 (La.
1990). Under art. 726, intoxication is an “other condition” bearing on the issue of
whether the defendant had the mental state for the offense charged. Id. Although
defendant argues the State was aware of evidence of intoxication, and thus would
not have been “surprised” by the introduction of such evidence, we find the State
would have been prejudiced by the introduction of such evidence simply by being
unaware that it would be required to prepare a response to this defense. See id.
(“Without such notice, the state had no way to prepare expert testimony to explain
the blood alcohol levels and put them into proper perspective.”).
With regard to the purported notice of intent, the defense’s December 2014,
discovery response advised the State that it may rely on an intoxication defense, but
that it had not decided to do so, stating the following:
Based solely on the information and documents provided by the State
in its discovery response, the Defense notifies the State that it may rely
on the Intoxication Defense as provided by La. R.S. 14:15(2). The
Defense has not decided to do so and it does not have knowledge of an
expert opinion supporting that defense. But, since the State’s evidence
raises that defense as a possibility, the Defense provides this notice.

The Defense continues its investigation of Mr. Brown’s mental
functioning. As of this time, it does not possess sufficient information
or evidence on which to base a mental disease/defect defense.

Furthermore, the defense later denied having provided notice of intent to present an
intoxication defense in its Objection to State’s Motion and Order for Medical
Examination of Defendant by State’s Exp ert, filed February 2, 2016, in which it
stated the following:
Under Louisiana law and jurisprudence, notice must be given when a
defendant intends to introduce testimony relating to a mental disease,
defect, or other condition bearing upon the issue of whether he had the
mental state required for the offense charged. The jurisprudence has
indicated that this relates to intel lectual disability precluding the
formation of specific intent, intoxication, and other condition[s] such

38

as a battered spouse defense or intoxication. . . . The Defense in this
case plans to raise no such mental condition defense either at the guilt
phase or penalty phase, and accordingly has given no such notice.

When ruling on said motion, the trial court acknowledged as follows:
The Court will note that there are specific notice requirements during
the guilt phase when the Defense intends to assert legal defenses, and
those notice requirements are not applicable. . . . The testing with regard
to the assertion of a defense of intel lectual disability has not been
brought to bear. That’s not the subject of the reports. That’s not the
defense asserted.

Based on the foregoing, we find the trial court did not abuse its discretion in
determining the defense’s discovery response did not constitute sufficient notice for
the purposes of La. C.Cr.P. art. 726, nor did the trial court abuse its discretion in
excluding testimony as to the type and quantity of alcohol consumed. See State v.
Gibson, 93-0305, pp. 9 –11 (La. App. 4 Cir. 10/13/94), 644 So.2d 1093, 1098 –99
(finding trial court acted within its discretion in prohibiting introduction of evidence
concerning intoxication defense where defense counsel did not file written notice of
its intent to present such a defense until the morning of trial); State v. Gipson, 427
So.2d 1293, 1297–98 (La. App. 2 Cir. 2/22/83) (finding that trial court did not err in
prohibiting defendant from providing testimony relative to intoxication beyond
indicating that he had “a few mixed drinks” because of his failure to provide prior
notice of intent to present an intoxication defense per art. 726) . Accordingly, we
find this assignment of error without merit.
Assignment of Error No. 11
In this assignment of error, defendant asserts the trial court erred in allowing
the introduction of “other crimes” evidence, in violation of his right to due process
and a fair trial. Specifically, defendant claims the court erred in permitting the State
to introduce evidence of ( 1) an aggravated battery against his former sister -in-law,
Lillian Brown; (2) his work release identification card; and (3) the incident at
Nanette Barrios’s apartment, discussed supra.

39

On Mar ch 24, 2014, the State filed a notice of intent to present evidence
concerning the aggravated battery conviction and the Barrios incident, and, after a
Prieur35 hearing on April 25, 2014, the trial court deemed evidence of both acts
admissible. On May 20, 2016, the State provided an additional notice of intent
regarding defendant’s work release identification card, as it “indirectly” referenced
another crime, and, after an additional Prieur hearing on August 25, 2016, the trial
court found the card admissible.
Louisiana Code of Evidence article 404(B)(1) provides that courts generally
may not admit evidence of other crimes or bad acts to show that a defendant is a man
of bad character who acted in conformity with his bad character. However, the State
may introduce evidence of other crimes or bad acts if it has established an
independent relevant reason, namely, to show the defendant’s motive, opportunity,
intent, or preparation, or if the evidence relates to conduct constituting an integral
part of the act or transaction that is the subject of the present proceeding. La. C.E.
art. 404(B)(1). The State is required to give notice of its intent to offer the evidence,
and the court will conduct a hearing to determine whether its probative value
outweighs its prejudicial effect. La. C.E. art. 403; State v. Prieur , 277 So.2d 126,
130 (La. 1973); State v. Hatcher, 372 So.2d 1024, 1033 (La. 1979).
A trial court’s ruling on the admissibility of other crimes evidence will not be
disturbed absent an abuse of discretion. The erroneous admission of other crimes
evidence is subject to a harmless-error review. See State v. Johnson, 94-1379, p. 19
(La. 11/27/95), 664 So.2d 94, 102. An error in the admission of other crimes
evidence is not harmless unless a reviewing court determines that “the verdict
actually rendered was surely unattributable to the error.” Id., 94-1379, p. 18, 664

35 State v. Prieur, 277 So.2d 126, 130 (La. 1973).

40

So.2d at 102 (citing Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081,
124 L.Ed.2d 182 (1993)).36
Aggravated Battery of Lillian Brown
In 1996, defendant was visiting the home of his then-sister -in-law, Lillian
Brown (now Lillian Scott),37 and propositioned her for sex. When she refused, he
stabbed her in the neck, climbed on top of her, and repeatedly stabbed her face and
neck area. He was charged with attempted second degree murder and pleaded guilty
to a reduced charge of aggravated battery in 1997, receiving an 18-month prison
sentence.
At the Prieur hearing in this matter , the State argued this offense was
admissible under La. C.E. art. 404(B) as relevant to show intent and motive and
under La. C.E. art. 412.2 as a crime involving sexually assaultive behavior,
38 as
defendant was “spurned by these women” and “becomes angry, resorts to violence
and the use of a knife and repeatedly stabbing these particular women.” The trial
court determined that the aggravated battery conviction was relevant to prove
motive, intent, and identity, because the State would show that defendant wanted to

36 This Court has “long sanctioned the use of other crimes evidence to show modus operandi, as it
bears on the question of identity, when the prior crime is so distinctively similar to the one charged,
especially in terms of time, place, and manner of commission, one may reasonably infer the same
person is the perpetrator in both instances.” State v. Garcia, 09-1578, pp. 56–57, 108 So.3d 1, 39–
40 (citing State v. Lee, 05- 2098, pp. 44–45 (La. 1/16/08), 976 So.2d 109, 139). In so holding,
however, the Court has cautioned that the identity exception must be limited to cases in which the
crimes at issue are genuinely distinctive in certain respects, or else risk having the rule “swallowed
up with identity evidence exceptions.” State v. Bell , 99-3278, p. 5 (La. 12/8/00), 776 So.2d 418,
421 (citing George W. Pugh et al, Handbook on Louisiana Evidence Law , Official Comments to
Article 404(B), cmt. 6 (1988)).

37 Throughout the record and the briefs from both parties , Lillian Brown is alternatively referred
to as “Lillian Brown” and “Lillian Scott.” For purposes of this opinion, she is referred to as “Lillian
Brown,” or simply “Lillian.”

38 La. C.E. art. 412.2(A) provides in pertinent part:

When an accused is charged with a crime involving sexually assaultive behavi or .
. . evidence of the accused’s commission of another crime, wrong, or act involving
sexually assaultive behavior . . . may be admissible and may be considered for its
bearing on any matter to which it is relevant subject to the balancing test provided
in Article 403.

41

have sexual contact with both women (Lillian and Jacquelin) , and that defendant
was a “sexual person to the extent that he wants to have sex with people other than
somebody that he’s married to or that he is romantically involved with[.]” The court
further determined the prejudicial effect of this evidence would be mitigated by the
fact that Lillian’s wounds were not fatal and that, after stabbing her, defendant
assisted her in seeking medical attention . However, despite finding the conviction
admissible, the trial court found that this offense did not constitute sexually
assaultive behavior for purposes of La. C.E. art. 412.2.39
Defendant argues the similarities between this prior offense and the charged
offense were insufficient to prove identity by establishing defendant’s modus
operandi and that it was inadmissible to prove motive. Defendant further asserts that
remarks made by the State during closing arguments in both the guilt phase and
penalty phase indicated the evidence was admitted only to show that he had a
propensity to commit crimes, stating that defendant “didn’t get his way with Lillian,
and he stabs her in the upper body multiple times,” and that he “was a violent man.
By 2012, he had matured into a killer.”
Given the trial court’s vast discretion in this regard, we find the trial court did
not err in determining the probative value of this prior offense outweighed its
prejudicial effect under La. C.E. art. 403. We agree the behavior exhibited by
defendant in both cases is strikingly similar in that he reacted violently to two adult
female victims who refused his sexual advances in the same manner by arming
himself with a knife and stabbing both in the neck. While defendant is correct that
this evidence did not establish a modus operandi, the trial court did not abuse its
discretion in finding the aggravated battery w as relevant to establish defendant’s
motive and intent. Furthermore, even if the trial court erred in admitting the prior

39 The trial court specifically stated: “I do not find that the incident involving Lillian Brown
constitutes sexually assaultive behavior. I do not believe that the facts of that incident constitute
sexually assaultive behavior.”

42

offense, the evidence of defendant’s guilt in this case is sufficiently overwhelming
to render this error harmless. See State v. Joh nson, 94-1379, p. 17 (La. 11/27/95),
664 So.2d 94, 102 (holding that the introduction of inadmissible other crimes
evidence results in a trial error subject to harmless error analysis). This assignment
of error is without merit.
Work Release Identification Card
At the Prieur hearing on this issue, the State explained that defendant’s work
release identification card was one of two identification cards found in a garbage bag
in a dumpster outside of defendant’s residence and that it sought to submit the work
release identification card as proof that the other items found in the bag, including
Carlos Nieves’s shirt and a pair of blue jeans, had been placed there by defenda nt.
The trial court ruled the card was admissible, finding its probative value outweighed
its prejudicial effect. D efendant sought writs on this ruling at the court of appeal,
followed by this Court, both of which were denied. State v. Brown, 16-1259 (La.
App. 1 Cir. 9/30/16) (unpub’d), writ denied, 16-1792 (La. 10/6/16), 207 So.3d 400
(Weimer, J., recused).
Defendant asserts the work release identification card was cumulative in light
of his state identification having also been found in the bag and thus had little
probative value in terms of proving identity while having the significant prejudicial
effect of conveying to the jury that defendant had an unexplained prior conviction.
However, we find defendant fails to show a clear abuse of the court’s discretion in
its ruling, and even if the court did err, such an error was harmless for the reasons
stated above. See State v. Bordenave, 95-2328, p.4 (La. 4/26/96), 678 So.2d 19, 21
(trial court has broad discretion in weighing the probative versus prejudicial value
of evidence under La.C.E. art. 403).
Nanette Barrios Incident

43

During the Prieur hearing on this issue, the State argued that defendant’s
entrance into Nanette Barrios’s apartment without her consent and touching her
awake was admissible as res gestae evidence, asserting that it occurred in the
apartment next door to the victims’ only a few hours before they were murdered.
The State contended that without the ability to mention this incident, there would be
“a hole in the State’s case as to the wherea bouts of the defendant at a very crucial
time in this case approximately two hours before” the murders. The trial court
agreed the incident was admissible, finding that it constituted an integral part of the
transaction that was the subject of the case and that it was relevant to show
opportunity. The court further determined that La. C.E. art. 412.2 was inapplicable
because there was insufficient evidence to conclude that defendant committed
sexually assaultive behavior while in Barrios’s apartment or that he intended to do
so.
Defendant argues that the State would have been capable of presenting a
complete chain of events without mentioning the incident and that the State used this
incident solely to portray defendant as “bad” or “scary.” He further asserts that
because witnesses testified (and video f ootage showed) that defendant left the
apartment complex following the incident, the trial court erred in determining that
the incident was probative of opportunity. We disagree.
This Court has long approved of the introduction of other crimes evidence,
both under the provisions of former La. R.S. 15:448 relating to res gestae evidence
and as a matter of integral act evidence under La.C.E. art. 404(B), “when it is related
and intertwined with the charged offense to such an extent that the state could not
have accurately presented its case without reference to it.” State v. Brewington, 601
So.2d 656, 658 (La. 1992). A close connexity on time and location is viewed by the
courts as “essential” to the res gestae exception. State v. Haarala, 398 So.2d 1093,
1097 (La. 1981); see also 1 McCormick on Evidence, § 190, p. 799 (4th ed., John

44

William Strong, ed., 1992) (other crimes evidence may be admissible “[t]o complete
the story of the crime on trial by placing it in the context of nearby and nearly
contemporaneous happenings.”) (footnote omitted). The res gestae or integral act
doctrine thus “reflects the fact that making a case with testimony and tangible things
not only satisfies the formal definition of an offense, but tells a colorful story with
descriptive richness.” Old Chief v. United States, 519 U.S. 172, 187, 117 S.Ct. 644,
653, 136 L.Ed.2d 574 (1997). The test of integral act evidence is not simply whether
the state might somehow structure its case to avoid any mention of the uncharged
act or conduct but whether doing so would deprive its case of narrative momentum
and cohesiveness, “with power not only to support conclusions but to sustain the
willingness of jurors to draw the inferences, whatever they may be, necessary to
reach an honest verdict.” Id.

We fi nd that here, because defendant’s unauthorized entry into Barrios’s
apartment was in such close temporal and physical proximity to the charged
offenses, the State could not have presented an accurate narrative of events leading
up to the murders without acknowledging it. Accordingly, the trial court did not err
in admitting this incident as an integral act, and this assignment of error without
merit.
Assignment of Error No. 12
Defendant claims that the trial court deprived him of his right to present a
defense through a series of erroneous rulings: (1) excluding evidence pointing to
Carlos Nieves as the perpetrator; (2) preventing the defense from impeaching Carlos
Nieves; (3) preventing the defense from confronting Lillian Brown; and (4)
precluding the defense from calling expert witnesses to challenge the State’s
scientific evidence. We will address each of these in turn.
Evidence pointing to alternate suspect

45

Defendant argues he was erroneously prevented from presenting a defense
pointing to Carlos Nieves as an alternative suspect. Specifically, he states that the
defense intended to introduce evidence that Nieves suffered from a mental illness,
was having an affair, had recently acquired a large sum of money, and had told his
wife and children to leave the apartment the night before they were murdered. At
trial, when the defense attempted to impeach Nieves’s testimony denying marital
problems during its cross-examination of Costin Constantin, the State objected on
hearsay and relevancy grounds. The trial court sustained that objection.40 Defendant
argues this information was “crucial” and that the jury was entitled to determine the
credibility of the State’s witnesses. Defendant also urges that the trial court unfairly
permitted the State to ask Constantin on redirect what Nieves told him on the day of
the murders, declining to find the statements irrelevant or hearsay.
41

40 The defense asked Constantin whether he was aware that Nieves’s marriage was not going well,
to which he replied, “They kinda argue.” The defense then asked Constantin to read an excerpt
from his police interview to refresh his recollection of what he told the police regarding their
marriage, and the defense further inquired as to what Nieves told him about his marriage. When
the State objected to this line of questioning, the defense told the court that its purpose was to
contradict Nieves’s earlier testimony, in which he denied having marital problems.

41 The following exchange took place towards the conclusion of cross-examination of Costin
Constantin:

Q: When you were telling the detective this particular statement what Carlos
told you, okay, what else did Carlos tell you besides everybody up there was
dead? Read that statement. What else did he tell you? Read that paragraph.
A: “He say, man, my apartment’s – it’s on fire. Everybody’s dead up there.
Come on, Bro’. Man, I’m telling you everybody’s . . . Jacquelin car is
outside, is not gone to work. Everybody’s dead, I can’t breathe. I’m try to
get up there, I can’t breathe. Help me out. I’m call 9-1-1 . . . already. So,
okay I’m gon’ go upstair, I’m try . . . but I can’t breathe.”
Q: Did he appear to be upset?
A: Did he?
Q: Did he appear to be upset?
MR. CUCCIA: Objection your honor. I didn’t – that’s
outside the scope of the cross-examination.
MR. MORVANT: He’s asking him what did he say.
THE COURT: Overruled.
MR. CUCCIA: Note my objection for the record, please.
THE COURT: Yes, sir.

The trial court also later declined a request by defense counsel to re- cross examine C ostantin,
noting that the court found the State’s questioning of the witness on redirect was in direct response
to the questioning brought out on cross -examination as to what was said and, further, that it was
appropriate in the context of the entire answer.

46

“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the present trial, offered in evidence to prove the truth of the matter
asserted.” La.C.E. art. 801(C). Hearsay is inadmissible unless it falls within an
exception. La.C.E. art. 802. Defendant does not argue, much less show, that an
exception to the hearsay rule was applicable to the statements Nieves allegedly made
to Constantin regarding the state of his marriage and thus fails to show the trial court
erred in sustaining the State’s objection.
Our review of the record reveals that the defense had the opportunity to
present these allegations during its cross- examination of Nieves. The following
colloquy took place between defense counsel Mr. Cuccia and Carlos Nieves:
CUCCIA:
Now, did I understand correctly that Jacquelin and the girls did
not stay at that apartment the night before?

NIEVES:
No. The night before, they – she had slept at her mom’s house.

CUCCIA:
Is it true that at that time, you and Jacquelin were having some
marital problems?

NIEVES:
I wouldn’t say marital problems. I mean, we had, you know,
common problems, but –

CUCCIA:
Did you tell anyone that you were planning to leave her?

NIEVES:
Planning to leave her? No.

CUCCIA:
Did you tell anyone that you had told her to leave the apartment?

NIEVES:
No.

CUCCIA:
When – you referred to an incident when Jacquelin had returned
during the – on the 3rd, that you went in and spoke with her.

NIEVES:
Right.

47

CUCCIA:
And at that time, you made some comment about, “This is not a
bathhouse”?

NIEVES:
Yes. I told that – I said that to Adam [Billiot], because me and
Adam was sitting outside. And I fussed. I said, “I’m going to
have to go talk to her,” you know? “She needs to know what
she’s doing. She’s not staying here,” you know, what? Just to go
talk to her and see what’s going on.

CUCCIA:
Okay. I had a little trouble understanding. Let me make sure I
understood what you said. That you said that you were talking to
Adam, and you had to go inside to see if Jacquelin was going to
stay there?

NIEVES:
No. I said I was talking to Adam. And when she came there, I
said, “I’m gonna go” – “I’m gonna go talk to Jacquelin and see
what’s going on,” you know? Because she didn’t stay there the
night before. You know, she didn’t tell me anything. I didn’t say
that I was going to kick her out or anything like that. No.

CUCCIA:
Right. But when you spoke to her, is my understanding correct
that you said something to her along the lines of, you know, “This
isn’t a bathhouse”?

NIEVES:
Yes. That’s what I – I just was asking her. I said, you know, “You
come in” – cause she was taking a shower for work. You know,
we had talked a little bit. And I was, like, “Man, you know,
what’s up? You’re coming in, you know, take a bath and
whatever and you just leave,” you know? Just talking to her, you
know, trying to talk with her. That’s all.

This exchange was the extent of the defense’s attempt to ask Nieves about any of
the issues defendant now alleges his trial counsel intended to present. Additionally,
with respect to defendant’s observation that the trial court permitted Constantin to
testify as to what Nieves told him on the morning of the murders,
42 we find the trial
court did not err in admitting this testimony, which falls under the excited utterance
exception, see La.C.E. art. 803(2), as he made these statements while Nieves’s

42 See Note 41, supra.

48

apartment was on fire with his wife and children inside. Accordingly, we find this
assignment of error without merit.
Confronting Lillian Brown about prior sexual relationship with defendant
Defendant argues that during cross -examination of Lillian Brown, the trial
court impeded the defense’s attempt to distinguish the aggravated battery against
her, discussed supra, from the charged offense. Specifically, the defense sought to
confront her regarding her long- standing romantic relationship with defendant,
which he alleges began when he was twelve years old and she was an adult. This
relationship continued until defendant was over eighteen and Lillian was a grown
woman, and included consensual sexual activity on the day defendant married
another woman. The trial court sustained the State’s objection to this line of
questioning, finding that there was “nothing to indicate that the previous consensual
acts prior to this incident are in any way relevant to the inquiry.” We find this ruling
to be in error.
Defendant asserts that evidence regarding Lillian’s previous sexual
relationship with defendant was admissible under the exception to the Rape Shiel d
Law set forth in La. C.E. art. 412(A)(2)(b), which provides that when an accused is
charged with a crime involving sexually assaultive behavior, evidence of the
victim’s past sexual behavior is not admissible except for “[e]vidence of past sexual
behavior with the accused offered by the accused upon the issue of whether or not
the victim consented to the sexually assaultive behavior.” The trial court found that
this exception only applies to victims in a main demand, and not to witness
testimony, and thus deemed it inapplicable in this instance. 43 Defendant further

43 The trial court stated in its oral ruling:

Well, I will point out that 412 relates to the victim’s past sexual behavior as it relates
to an accused. Which would be the actions in a main demand, not the actions of a
witness, which, I believe, a witness’s relationship and acts – I do not think
412(A)(2)(b) or any other provision of 412 is the vehicle by which these questions
become relevant. The issue is whether they’re relevant as attacking or supporting

49

argues that it was admissible as a means of discrediting Lillian under La. C.E. art.
607(C).44
Defendant cites jurisprudence in support of his argument that La. C.E. art. 412
applies to the testimony of all witnesses who were victims of the accused, and not
only the victim in the main demand.
45 Notably, however, defendant was not accused
of sexually assaultive behavior toward Lillian, and, as discussed supra, the trial court
in the instant matter found no evidence of sexually assaultive behavior against her
when ruling on the admissibility of her testimony. Consequently, we find La. C.E.
art. 412 is inapplicable for that reason alone.
However, we do find this evidence was admissible under La. C.E. art. 607(C)
as it was a denial of his ability to confront a witness against him. S ee also U.S.
Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . .
. to be confronted with the witnesses against him. . .”); La. Const. Art. I, § 16 (“An
accused is entitled to confront and cross -examine the witnesses against him, to
compel the attendance of witnesses, to present a defense, and to testify in his own
behalf.”). Moreover, h aving affirmed the trial court ruling admitting the prior
aggravated battery of Lillian Brown, we find defendant was constitutionally entitled
to explore Lillian’s credibility and the nature of their prior relationship. Therefore,
we find the trial court erred in determining that his alleged prior sexual relationship
with Lillian lacked relevancy and disallowing confrontation of Lillian about that

the credibility under 607. . . .But the door that you’re trying to open under 412 is
inapplicable to this situation.

44 “Except as otherwise provided by legislation, a party, to attack the credibility of a witness, may
examine him concerning any matter having a reasonable tendency to disprove the truthfulness or
accuracy of his testimony.” La. C.E. art. 607(C).

45 See State v. Hernandez, 11-0712 (La. App. 5 Cir. 4/10/12), 93 So.3d 615, writ denied sub nom.
State ex rel. Hernandez v. State , 12-1142 (La. 9/28/12), 98 So.3d 834 (finding La. C.E. art. 412
applicable where defendant sought to elicit testimony from a witness regarding allegations of
sexual abuse against other individuals).

50

relationship. However, because of the overwhelming evidence against defendant in
this case, we also find such error by the trial court harmless.
Erroneous exclusion of defense experts
Defendant also asserts that the trial court erroneously sanctioned the defense
for failure to produce expert reports pursuant to discovery requests from the State.
On August 9, 2016, the State fi led a Motion to Compel Discovery or in the
Alternative Preclude Expert Testimony, which provided that defendant had
previously been granted leave of court to submit certain evidence to George Shiro
for nondestructive DNA testing, and that although such testing had been completed,
the State had not received the results of this testing, nor had it received an expert
report from Shiro. The State also claimed that it had not received an expert report
from Dr. Dan Krane despite the defense having named him as a n expert witness it
intended to call at trial, noting that the discovery deadline for the disclosure of this
information had expired.
At the hearing on this motion on August 15, 2016, the defense argued that the
State’s motion was premature, as the defense did not possess any expert reports from
Shiro or Dr. Krane that it intended to use at trial at that time. The defense did not
concede that it would not later call them as witnesses. The defense further revealed
that it had received a third DNA report from the Jefferson Parish Crime Lab in April
2016, that it “recently realized” that the report set forth a finding that an item of
evidence indicated the presence of DNA from two men, and that it was currently
attempting to have its own expert ana lyze this item prior to trial. Noting that the
defense had this information in their possession since April of 2016, that jury
selection was set to begin in one month, and that the court had ordered the defense

51

to produce all discovery to the State months ago, the trial court granted the State’s
motion and excluded the testimony of Shiro and Dr. Krane.46
Defendant asserts that no discovery violation occurred, as defense counsel had
no obligation to produce expert reports when no such reports existed. Defendant
claims that the court’s sanction was thus unwarranted and prejudicial, as it prevented
him from presenting potentially exculpatory evidence. In response, the State argues
that because the defense told the trial court that it had no expert reports from either
witness that it intended to use at trial, and because nothing in the record indicates
that either witness was prepared to offer expert testimony regarding exculpatory
evidence, the court’s ruling was not a “sanction” but an acknowledgment that the
defense had no test results or reports from them that it intended to use at trial.
Pursuant to La.C.Cr.P. art. 725, a defendant must disclose to the state any
“results of reports, or copies thereof, of physical and mental examinations and of
scientific tests or experiments, made in connection with the particular case, that are
in the possession, custody, control, or knowledge of the defendant, and intended for
use at trial.” Moreover, if the defendant intends to call the witness who prepared the
report as an exper t, the report must include “ the witness’s area of expertise, his
qualifications, a list of materials upon which his conclusion is based, and his opinion
and the reason therefor.” Id . Under La.C.Cr.P. art . 729.5(A), which permits
sanctions for discovery violations, “the court may order such party to permit the
discovery or inspection, grant a continuance, order a mistrial on motion of the
defendant, prohibit the party from introducing into evidence the subject matter not

46 Specifically, the trial court stated the following:

As many times as we’ve been to court on motions to compel that I have refrained
from granting for the reason of, “It’s too early. It’s premature. We’re still working
on it,” until it was about, maybe, six months ago, maybe, less, we had gotten to the
point where I had ordered you to turnover [sic] everything. And it’s really
disheartening or surprising that what was done with regard to the production of all
of this evidence is now, last week, purporting to have this new information.

52

disclosed, or enter such other order, other than dismissal, as may be appropriate.”
Reversal is warranted only where there is an abuse of discretion by the trial court
and resulting prejudice to the defendant. See State v. Bourque, 96-0842, p. 15 (La.
7/1/97), 699 So.2d 1, 11.
We find the exclusion of testimony from Shiro and Dr. Krane was a
permissible sanction under La. C.Cr.P. art. 729.5(A) , in light of the circumstances
set forth by the trial court in its ruling. See Note 46, supra. Furthermore, not only
does defendant fail to establish that the trial court abused its discretion in this ruling,
he also does not show that the evidence at issue was indeed exculpatory, thereby
failing to demonstrate any prejudice from that ruling. Accordingly, this assignment
of error is without merit.
Assignment of Error No. 13
Defendant asserts the trial court violated his rights to due process, an impartial
jury, a fair trial, and a reliable sentencing hearing when it allowed the State to
overwhelm the jury with prejudicial and cumulative photographs.
Crime Scene/Autopsy Photographs
Prior to trial, the defe nse moved to exclude 30 crime scene and autopsy
photographs, asserting that they were gruesome and unduly prejudicial. The trial
court addressed the motion at a hearing on July 19, 2016, and again on August 3,
2016, and ultimately deemed 19 of the photographs admissible.
Defendant argues that the trial court erred in allowing the State to admit these
photographs, contending they were irrelevant because he did not dispute the manner
or cause of death, nor did he dispute that an arson had occurred. He also did not
dispute that two victims were nude from the waist down when they were discovered,
or that the victims w ere intentionally stabbed. Defendant argues that while he
contested the allegation that Gabriela Nieves had been raped, as discussed in
Assignment of Error No. 14, infra, a close-up photograph of her genitalia that was

53

shown to the jurors could not have reasonably aided their determination of this issue.
He further asserts that because the pathologist prepared contemporaneous diagrams
of the wounds of each victim, the photographic evidence was unnecessary and
served no purpose other than to inflame the jurors.
Even when the cause of death is not at issue, the State is entitled to the moral
force of its evidence, and postmortem photographs of murder victims are generally
admissible to prove corpus delicti, to corroborate other evidence establishing cause
of death, location, placement of wounds, or positive identification of the victim.
State v. Letulier, 97-1360, pp. 17–19 (La. 7/8/98), 750 So.2d 784, 794– 95; State v.
Robertson, 97-0177, p. 29 (La. 3/4/98), 712 So.2d 8, 32; State v. Koon, 96-1208, p.
34 (La. 5/20/97), 704 So.2d 756, 776; State v. Maxie , 93 -2158, p. 11 n.8 (La.
4/10/95), 653 So.2d 526, 532. Photographic evidence will be admitted unless it is
so gruesome as to overwhelm the reason of the jurors and lead them to convict the
defendant without sufficient evidence: specifically, when the prejudicial effect of
the photographs substantially outweighs their probative value. State v. Broaden, 99-
2124, p. 23 (La. 2/21/01), 780 So.2d 349, 364 (citing State v. Martin, 93-0285, pp.
14–15 (La. 10/17/94), 645 So.2d 190, 198); State v. Perry , 502 So.2d 543, 558–59
(La. 1986).
The photographs taken outside of the crime scene show the deceased bodies
of a woman and two small children, each with multiple stab wounds, covered in soot,
and partially undressed. The photographs taken during the autopsies show close-up
images of wounds, including those to the genitalia of a woman and a small child.
We find that while the photographs are graphic and disturbing, given the strength of
the evidence against defendant, it is unlikely the jurors found him guilty based on
any inflammatory nature of the photographs. See State v. Holliday, 17-1921, p. 72
(La. 1/29/20), __ So.3d __ (finding no error in the trial court’s admission of autopsy

54

photographs of the child victim , given the strength of the evidence against him).
Consequently, defendant fails to show reversible error in this regard.
Family Photographs
During the guilt phase of defendant’s trial, the State showed a family
photograph of the victims to Jacquelin Nie ves’s mother, who confirmed their
identities, and the photograph was th ereafter published to the jury. The State then
attempted to show additional family photographs to its following witness, Carlos
Nieves, for identification purposes. The defense objected to these photographs as
cumulative in light of the previous identification of the victims. The trial court
overruled the objection and permitted the State to show two family photographs to
Nieves and to publish them to the jury.
In this assignment of error, defendant asserts the trial court erred in allowing
the State to introduce the second set of photographs, as their prejudicial effect
outweighed their probative value. He argues that the State’s intention was not to
prove the identities of the victims but to appeal to the emotions of the juror and to
dispel any suspicion that Nieves was the perpetrator. However, even if this was the
case (and defendant presents no evidence that it was) , we do not find that showing
three family photographs of the victims to the jury during the guilt phase was so
prejudicial that it constituted reversible error. As such, we find no merit to this
assignment of error.
Assignment of Error No. 14
In this assignment of error, defendant argues that the evidence prese nted at
trial failed to establish beyond a reasonable doubt that he committed aggravated rape
against Gabriela Nieves. He states in brief that “the sum of the physical evidence of
rape of Gabriela amounted to a superficial injury to the external vagina, w eak
positive results for acid phosphatase from the oral and rectal swabs, and a weak
positive result for prostate specific antigen from the rectal swab. There was no

55

evidence of penetration.” He contends that the invalid aggravating factor of
aggravated rape of a child inserted an arbitrary factor into the proceedings and
rendered his death sentence unreliable. In response, the State argues that defendant
ignores other evidence demonstrating that Gabriela had been raped, including that
she was found nake d from the waist down with her legs open, and that a pair of
children’s underwear was found covered in blood and wrapped around a knife at the
crime scene.
Dr. Susan Garcia, who performed the autopsies of all three victims, testified
on direct examination that Gabriela had suffered a laceration and bruising to her
genital area. She elaborated as follows:
Q. And that is considered to be some form of trauma?

A. Yes. That is definitely some type of trauma.

Q. And could that be consistent with attempted [penile] – attempted
[penile] penetration?

A. It’s consistent with blunt trauma to that area. I can’t tell you what did
it.

On cross-examination, Dr. Garcia clarified that the laceration was located on
Gabriela’s vaginal opening and that Gabriela’s hymen was intact. W hen asked
whether blunt trauma could be caused by “any type of” object, Dr. Garcia responded,
“Could be – it could be a penis. It could be a finger. It could be a hand. It could be
many things. It’s not a stick. I would not expect to see – I would expect to see more
injury if it had been a foreign object that had sharp edges to it.”
David Cox, who tested the sexual assault kits for Jacquelin and Gabriela,
testified on direct examination that Gabriela’s oral swab produced a positive result
for acid phosphatase (“AP”) which is found in high amounts in seminal fluid and in
low amounts in other bodily fluids. He further testified that her rectal swab produced
a positive result for AP as well as prostate-specific antigen (“PSA”), which likewise
is found in high amounts in seminal fluid and in low amounts of other bodily fluids.

56

He also testified that neither AP nor PSA were detected on her vaginal swab. On
cross-examination, he confirmed that the oral swab returned the lowest possible
positive result for AP and a weak positive for PSA. He also confirmed that no
spermatozoa were detected on any of Gabriela’s swabs.
In evaluating the sufficiency of the evidence to support a conviction, a
reviewing court must determine whether, viewing the evi dence in the light most
favorable to the prosecution, any rational trier of fact could have found proof beyond
a reasonable doubt of each of the essential elements of the crime charged. Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville,
448 So.2d 676, 678 (La. 1984). The trier of fact makes credibility determinations
and may, within the bounds of rationality, accept or reject the testimony of any
witness. State v. Mussall, 523 So.2d 130 5, 1311 (La. 1988); State v. Rosiere , 488
So.2d 965, 969 (La. 1986).
At the time of the offense in this case , La. R.S. 14:30(A)(1) defined first
degree murder as the killing of a human being when the offender had specific intent
to kill or to inflict grea t bodily harm and was engaged in the perpetration or
attempted perpetration of certain enumerated offenses, including aggravated rape.
Under the former La. R.S. 14:42(A)(4), aggravated rape was defined as anal, oral,
or vaginal sexual intercourse deemed to be without the lawful consent of the victim
because the victim is under the age of thirteen years.
Although defendant highlights the weakness of the evidence presented in
support of the aggravated rape of Gabriela , his argument ignores the fact that the
State alleged three additional aggravating factors upon which to base a conviction
of first degree murder against Gabriela, namely , defendant was engaged in the
perpetration or attempted perpetration of aggravated arson, that he had specific intent
to kill or to inflict great bodily harm upon more than one person, and the fact that
Gabriela was under twelve (12) years old when she was killed. The record reflects

57

that the jury likely relied on all four factors in finding defendant guilty, as it
unanimously found the presence of each of them as aggravati ng circumstances at
sentencing. Furthermore, even if this Court were to find that the supporting evidence
was insufficient to support the jury’s conclusion that defendant was engaged in the
perpetration or attempted perpetration of aggravated rape against Gabriela, it would
not warrant reversal. See State v. Wright, 01-0322, pp. 12–16, 22–23 (La. 12/4/02),
834 So.2d 974, 985–87, 992 (finding insufficient evidence that the victim’s injuries
had been caused by a penis, and thus that the killing had taken place during the
perpetration or attempted perpetration of aggravated rape, but that reversal of first
degree murder conviction was unwarranted where victim was also under 12 years
old, and that the state’s failure to prove this aggravating factor did not inject an
arbitrary factor into the proceedings warranting reversal of death sentence).47
Defendant also asserts that the trial court erred in denying its proposed jury
instruction that the perpetration or attempted perpetration of aggravated rape
requires penetration (or attempted penetration) by a penis. The proposed instruction
read as follows: “When the rape involves vaginal or anal intercourse, any sexual
penetration, however slight, is sufficient to complete the crime. It is not enough to
merely prove that penetration occurred. The evidence must prove beyond a
reasonable doubt that the penetr ation was by a penis. Emission is not necessary.”
During a jury charge conference on this particular issue, the trial court ruled that the
“criminal jury instructions and the Legislature has not [seen] fit to include this
particular language in its determination as to what the proper charge should be” and
that the court’s own “definition tracks the treatise and will remain as is.” Defendant

47 This Court has held on numerous occasions that the failure of one or more statutory aggravating
circumstances does not invalidate others, properly found, unless introduction of evidence in
support of the invalid circumstance injects an arbitrary factor into the proceedings. See, e.g., State
v. Wessinger, 98-1234, p. 16 (La. 5/28/99), 736 So.2d 162, 192; see also State v. Letulier, 97-1360,
p. 25 (La. 7/8/98), 750 So.2d 784, 799.

58

argues that the trial court was required to give this instruction pursuant to La.C.Cr.P.
art. 807, which provides that a “requested special charge shall be given by the court
if it does not require qualification, limitation, or explanation, and if it is wholly
correct and pertinent. It need not be given if it is included in the general charge or in
another special charg e to be given.” Defendant urges the trial court’s failure to
instruct the jurors as to this requirement may have led them to convict based on
evidence of genital injury alone.48 We disagree.
Failure to give a requested jury instruction constitutes reversible error only
when there is a miscarriage of justice, prejudice to the substantial rights of the
accused, or a substantial violation of a constitutional or statutory right. State v.
Marse, 365 So.2d 1319, 1322 (La. 1978); La.C.Cr.P. art. 921 (“A judgment or ruling
shall not be reversed by an appellate court because of any error, defect, irregularity,
or variance which does not affect substantial rights of the accused. ”). We find that
here, as discussed above, the jury unanimously found the e xistence of multiple
aggravating factors supporting this conviction. Accordingly, while the proposed
instruction does not appear incorrect, see Wright, supra, and while the trial court did
not otherwise instruct the jury on this point (see Note 48, supra), defendant fails to
show prejudice or any reversible error. Consequently, we find this assignment of
error without merit.
Assignment of Error No. 15
Defendant argues in this assignment of error that his Fourth, Fifth, Sixth, and
Fourteenth Amendment rights were violated by the introduction of his custodial
statements at trial. Before trial the defense filed a motion to suppress all statements
made by defendant to law enforcement, which the trial court denied after a hearing

48 The court ultimately instructed the jury regarding sexual intercourse as follows: “Sexual
intercourse is deemed to have taken place, even though emission did not occur. Any anal or vaginal
sexual penetration, however slight, is sufficient.”

59

on April 25, 2014. Defendant contends that the State was erroneously permitted to
introduce the following statements at trial: (1) defendant asking detectives if they
thought he needed a lawyer when they arrived at his residence; (2) defendant asking
detectives if he needed a lawyer after they saw the bandages on his arm during his
first police interview; and (3) defendant’s second police interview, which was
recorded and played for the jury.
Fruits of an unlawful arrest
Defendant asserts that his detention beginning at his residence and continuing
at the sheriff’s office, discussed supra, constituted an unlawful arrest, such that any
statements made throughout his detention should be suppressed as fruit of the
poisonous tree. He argues th at law enforcement improperly entered the trailer, as
they did so without a warrant, without defendant’s consent, and in the absence of
exigent circumstances. Payton v. New York , 445 U.S. 573, 100 S.Ct. 1371, 63
L.Ed.2d 639 (1980). He further avers that law enforcement “claimed no probable
cause” at this time and that, even if they did have probable cause to effect an arrest,
their failure to obtain an arrest warrant was inexcusable. Defendant also argues that
being Mirandized did not cure this violation.
Defendant did not raise this ground in his original motion to suppress, nor did
he argue the issue during the hearing on that motion. He also did not he raise any
contemporaneous objections to these statements at trial.49 As such, defendant cannot
raise this claim for the first time on appeal. 50 See La.C.Cr.P. art. 841(A); La.C.E.

49 When ruling on the m otion to suppress, the trial court noted that the “sole attack on the
statements . . . is that the officers did not fully advise the defendant of his constitutional rights
because they did not advise him of the real reason why he was being interrogated, and because of
that, the defendant failed to make a decision that was in his best interest.”

50 As noted above, defendant was initially arrested after the conclusion of the second interview on
November 4, 2012, for unauthorized entry of an inhabited dwelling and simple battery in
connection with the Barrios incident, and he was not arrested in connection with the instant matter
until January 23, 2013.

60

art. 103.51 See also State v. Taylor, 93-2201, pp. 4–7 (La. 2/28/96), 669 So.2d 364,
367–69 (“[T]he contemporaneous objection rule contained in [La. C.Cr.P. art.
841(A) and [La. C.E. art. 103], does not frustrate the goal of efficiency. Instead, it
is specifically designed to promote judicial efficiency by preventing a defendant
from gambling for a favorable verdict and then, upon conviction, resorting to appeal
on errors which either could have been avoided or corrected at the time or should
have put an immediate halt to the proceedings.”).
Nevertheless, the erroneous admission of a confession or inculpatory
statement is trial error subject to ha rmless error analysis. Arizona v. Fulminante ,
499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). In this case, due
to the overwhelming evidence of defendant’s guilt, any error in the admission of
these statements was harmless.
Failure to fully advise defendant of the reason for his detention
Defendant argues the statements in which he asked detectives if he needed a
lawyer were inadmissible because they were made after law enforcement failed to
inform him of the true nature of the investigation. Defendant asserts that telling him
they were investigating “a fire with some deaths” was a “far cry” from informing
him that they were investigating an arson and triple homicide. In support, he cites
La. Const. Art. I, § 13 and La.C.Cr.P. art. 218 .1, each of which provide in part that

51 La. C.Cr.P. art. 841(A) provides:

An irregularity or error cannot be availed of after verdict unless it was objected to
at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary.
It is sufficient that a party, at the time the ruling or order of the court is made or
sought, makes known to the court the action which he desires the court to take, or
of his objections to the action of the court, and the grounds therefor.

La. C.E. art. 103 provides in pertinent part:

Error may not be predicated upon a ruling which admits or excludes evidence unless
a substantial right of the party is affected, and . . . [w]hen the ruling is one admitting
evidence, a timely objection or motion to admonish the jury to limit or disregard
appears of record, stating the specific ground of objection . . . .

61

“[w]hen any person has been arrested or detained in connection with the
investigation or commission of any offense, he shall be advised fully of the reason
for his arrest or detention[.]”
When ruling on the motion to suppress, the trial court found that the officers
fulfilled their duty in advising defendant of the reason for his detention, even if the
reason may not have been “artfully stated[,]” especially when they clarified that they
were investigating a fire and the deaths of three people. The trial court ultimately
found no misrepresentation occurred, as the officers were not required to go so far
as to tell defendant that they suspected him of murder.
Based upon our review of the record, we find the trial cour t’s ruling in this
regard correct. Police are afforded some degree of trickery during an interrogation,
see Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969)
(finding misrepresentations are relevant but do not make an otherwise voluntary
confession inadmissible), and defendant does not show that the failure of law
enforcement to specify that the deaths were being treated as homicides rendered his
statements invalid. Furthermore, as noted above, any such error was harmless.
Inquiries about the right to counsel
Defendant argues that the first two statements at issue were unduly
prejudicial, as they were neither relevant nor probative and were impermissibly used
as substantive evidence of guilt. Det. Dempster testified as to the first statement as
follows: “As soon as [Det. Cortopassi] finished advising [defendant] of his rights,
the defendant asked us if we thought he needed a lawyer. When he asked that, I
asked him, ‘Do you think you need a lawyer?’” Det. Dempster testified as to the
second statement as follows:
We were speaking with the defendant, and he said he went sleep [sic]
in a field that night. After he left the apartments, he crossed the street
and went sleep in a field. So he said he had some bites on him – some
bug bites. So we asked to see his right arm, so he raised his sleeve up
to his elbow. And it looked like somebody that would of [sic] slept in a

62

field, the type of bites he had on him. So we asked to see his left arm.
And as he’s raising his left arm, he gets about halfway up his forearm,
and we see the bottom of Band-Aids. So he stops at the Band-Aids, he
looks at us, and he says, “So, guys, do I need a lawyer?” And I said,
“You tell us, David. Do you think you need a lawyer?”

Det. Warren Callais also testified as to the second statement, stating that defendant
looked down at his sleeve, pulled it down, looked ba ck at the detectives and asked,
“So, guys, do I need an attorney now?” While defendant does not claim that he
invoked his right to counsel when he made these statements, he nonetheless argues
that he was inquiring into his right to counsel, and that an inquiry into a constitutional
right cannot be used to draw an inference of guilt.
Again, defendant did not raise this ground in his motion to suppress or at the
hearing on that motion, nor did he contemporaneously object to these statements at
trial, and th us, he has waived this claim. Nonetheless, we find defendant’s
statements were equivocal and therefore, did not invoke his right to counsel. S ee
Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362
(1994). Further, the statements did not constitute an inquiry in to the particulars of
his right to counsel, but rather, he was asking the officers for their opinions or
impressions of his situation. However, even if these statements were improperly
introduced and admitted, we find any such error to be harmless, as demonstrated
above.
Response to Det. Dempster
During his second police interview, after defendant admitted to having worn
a shirt with a stripe across the chest the day before, Det. Dempster asked him,
“There’s any way you wanta [sic] explain to me how that shirt was found in the
bedroom?” Defendant responded, “I didn’t know. I want a lawyer if that’s how y’all
coming down. I want a lawyer right now.” The detectives then immediately
terminated the interview.

63

Prior to trial, defendant filed a motion in limine seeking to exclude this
question and answer. After a hearing on October 13, 2014, the trial court granted
the motion, relying on Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91
(1976) to find this segment of the interview “insolubly ambiguous.” The trial court
further found that its introduction would present “extreme prejudice” to defendant,
as there would be no way to avoid a comment on the exercise of his Miranda rights.
52
The court further noted that the State would still have the ability to present the shirt
as evidence, to explain to the jury that it was found covered in blood at the crime
scene, and that witnesses told detectives that defendant was wearing a shirt matching
its description.
The State sought review of this ruling in the First Circuit, which granted in
part and denied in part. State v. Brown, 14-1684 (La. App. 1 Cir. 2/10/15) (unpub’d)
(Holdridge, J., dissents and would deny the writ application). The court of appeal
distinguished this case from Doyle in that defendant had not remained silent but
waived his Miranda rights and spoke to the police. The appellate court reversed the
trial court’s ruling insofar as it omitted the last question and defendant’s answer “I

52 In finding that cross-examination of defendants, who were Mirandized at the time of arrest, as
to why an exculpatory story was told for the first time at trial violated due process as to defendants’
postarrest silence, the United States Supreme Court in Doyle stated:

Despite the importance of cross-examination, we have concluded that the Miranda
decision compels rejection of the State's position. The warnings mandated by that
case, as a prophylactic means of safeguarding Fifth Amendment rights,
see Michigan v. Tucker , 417 U.S. 433, 443- 444, 94 S.Ct. 2357, 2363- 2364, 41
L.Ed.2d 182 (1974), require that a person taken into custody be advised
immediately that he has the right to remain silent, that anything he says may be
used against him, and that he has a right to retained or appointed counsel before
submitting to interrogation. Silence in the wake of these warnings may be nothing
more than the arrestee's exercise of these Miranda rights. Thus, every post -arrest
silence is insolubly ambiguous because of what the State is required to advise the
person arrested. See United States v. Hale , [422 U.S. 171, 177, 95 S.Ct. 2133,
2137, 45 L.Ed.2d 99, (1975)]. Moreover, while it is true that the Miranda warnings
contain no express assurance that silence will carry no penalty, such assurance is
implicit to any person who receives the warnings. In such circumstances, it would
be fundamentally unfair and a depriva tion of due process to allow the arrested
person's silence to be used to impeach an explanation subsequently offered at trial.

Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976) (internal footnotes
omitted).

64

didn’t know[,]” finding that this exchange did not “inappropriately reference his
subsequent invocation of the right to counsel” and that there was “no indication that
a jury would draw an inappropriate inference regarding the defendant’s right to
remain silent if this question and the defendant’s answer are allowed.” Id. However,
the panel found that the trial court properly excluded the remainder of defendant’s
answer in which he specifically invokes his right to counsel, and left this portion of
the ruling undisturbed. Defendant sought writs in this Court, which denied the
application. State v. Brown, 15 -0878 (La. 6/19/15), 166 So.3d 998 (Weimer, J.,
recused; Hughes, J., additionally concurs and assigns reasons).
Defendant now argues that the trial court erred in allowing the jury to hear
Det. Dempster’s last question and his answer “I didn’t know.” However, we find
defendant fails to show error in the court of appeal’s ruling on the issue and fails to
show resulting prejudice , despite his argument alleging that his invocation of his
rights turned into substantive evidence of his guilt. Defendant also claims that the
trial court erred in permitting Det. Dempster to state, after the recorded interview
had been played for the jury, “ [a]t that point, the defendant terminated the
interview.”
53 However, Det. Dempster did not elaborate as to the reason defendant
terminated the interview and thus made no direct reference to the invocation of his
right to counsel. We therefore find no merit in this assignment of error.
Assignment of Error No. 16
In this assignment of error, defendant asserts that his constitutional rights were
violated by the introduction of evidence seized without probable cause. Specifically,
defendant argues that the affidavit accompanying the applications for search
warrants of his person and residence was defective in that it failed to establish

53 Notably, however, defense counsel conceded at the hearing on the motion in limine that the jury
could be told that defendant terminated the interview himself. While defendant argues in his brief
that the court of appeal’s ruling “clearly superseded” that stipulation, we do not find this argument
compelling.

65

probable cause, omitted material facts, and made material misrepresentations. He
argues the affidavit was primarily based on information regarding his involvement
in the Barrios incident, as opposed to information regarding his involvement in the
commission of first degree murder. He further asserts that the information contained
therein did not create a reasonable belief or sufficient nexus that defendant’s person
or residence contained evidence of a violation of first degree murder. Defendant
argues that omissions and misrepresentations in the affidavit regarding the Barrios
incident were willfully made and that, even if they were not, they were nonetheless
material, as the affidavit does not establish probable cause when retested. As a
result, defendant urges, the trial court erred in failing to suppress the evidence seized
pursuant to these warrants.54
The affidavit at issue contained the following pertinent information:
1) The Lockport Police Department was dispatched around 5:25 a.m. on
November 4, 2012, in response to a reported fire.
2) The incident was reported by Carlos Nieves, Jr., who advised that his
apartment was on fire and that he could not get to his wife and children
upstairs.
3) Upon arrival of the police, Nieves was in the courtyard of the apartment
complex and repeated that his wife and children were upstairs.
4) Fire department personnel located three victims upstairs and brought them
outside.
5) EMS at the scene told police that all three victims appeared to have been
stabbed.
6) Nieves related the following information to detectives:
a.) David Brown visited the apartment complex on November 3, 2012.
b.) On the night of November 3, 2012, Nieves, Brown, and Adam Billiot
went to the Blue Moon Lounge in Lockport and Da Bar in Raceland.
c.) After they returned to the apartment complex in the early morning of
November 4, 2012, Brown was seen exiting the apartment of Nieves’s
next-door neighbor, Nanette Barrios, who was “hollering at Brown
telling him not to touch her again.”
7) Detectives learned through investigation that Brown was at the apartment
complex in the early morning hours of November 4, 2012.
8) Detectives made contact with Barrios, who related the following
information to them:
a.) Brown entered Barrios’s residence in the early morning of November

54 Defendant filed a pretrial motion to suppress evidence seized at his residence, as well as a motion
to suppress evidence seized from his per son. After a hearing on April 25, 2014, the trial court
determined that the affidavit contained a “substantial basis” on which a magistrate could find
probable cause and therefore denied the motions.

66

4, 2012, and “grabbed her.”
b.) Barrios ordered Brown to leave her residence and not to come back.
c.) Barrios later discovered that her cell phone was missing from her
apartment.
9) Detectives made contact with Brown at his residence and requested that he
accompany them to the Lafourche Parish Sheriff’s Office Criminal
Investigations Division in Lockport.
10) Once at the sheriff’s office, detectives noticed that Brown had a “small
cut to his lip, right eye (with swelling) and a cut on the inside of his left
forearm.”
11) Detectives observed three “band aids” covering most of the cut on
Brown’s left forearm.
12) Upon questioning by detectives, Adam Billiot advised that he did not
remember seeing any cut on Brown’s forearms.

Probable cause exists when the fac ts and circumstances within an affiant’s
knowledge and of which he has reasonably trustworthy information are sufficient to
support a reasonable belief that a crime has been committed and that contraband or
evidence of a crime will be found at the place to be searched. State v. Davis, 92 -
1623, pp. 14–15 (La. 5/23/94), 637 So.2d 1012, 1022; State v. Byrd, 568 So.2d 554,
559 (La. 1990). A magistrate must make a common sense and non -technical
decision as to whether, given information contained in the affidavit, there is a “fair
probability” that evidence of a crime will be found in the place to be searched.
Illinois v. Gates , 462 U.S. 213, 238 –39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527
(1983). A reviewing cou rt simply ensures that the magistrate had a “substantial
basis” for concluding that probable cause existed. Id., 462 U.S. at 238–39, 103 S.Ct.
at 2332.
We find that a magistrate could reasonably connect the observation of
multiple cuts on defendant to the apparent stabbings of victims in the apartment
complex defendant had visited shortly before they were found. Thus, the
information set forth in the affidavit provided a substantial basis upon which a
magistrate could find a fair pro bability that evidence of first degree murder would
be found on defendant’s person and in his residence.

67

Regarding defendant’s claim that the affidavit was based on omissions or
misleading information, an affidavit is presumed to be valid, and the defendant has
the burden of showing by a preponderance of the evidence that the affidavit contains
false statements. Franks v. Delaware , 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57
L.Ed.2d 667 (1978); State v. Brannon , 414 So.2d 335, 337 (La. 1982); State v.
Ogden, 391 So.2d 434, 439 n.7 (La. 1980); State v. Wollfarth, 376 So.2d 107, 109
(La. 1979). Once the defendant has shown the affidavit contains false statements,
the burden shifts to the state to prove the veracity of the allegations in the affidavit.
If the court finds that the affidavit contains misrepresentations, it must decide
whether they were intentional. State v. Smith , 397 So.2d 1326, 1330 (La. 1981);
State v. Fairbanks, 467 So.2d 37, 39 –40 (La. App. 4 Cir. 1985). If the court finds
that the misrep resentations were intentional, the search warrant must be quashed.
Smith, 397 So.2d 1326, 1330. On the other hand, if the court finds that the
misrepresentations were inadvertent or negligent, the inaccurate statements should
be excised and the remaining statements tested for probable cause. State v. Lee, 524
So.2d 1176, 1181 (La. 1987).
Here, defendant does not claim the affidavit contained false statements, but
rather that it omitted or mischaracterized relevant facts, known to detectives at the
time, which demonstrated that his actions in Barrios’s apartment were “not sinister”
and did not bear any resemblance to the suspected murders. Specifically, he points
to the fact that he and multiple witnesses told detectives that he entered Barrios’s
apartment to look for her partner, Leroy Hebert, and that no one accused him of
taking anything from Barrios’s apartment. However, defendant does not show that
the inclusion of these details would have made an appreciable difference,
particularly where the affidavit did not allege that defendant had a sinister motive
when entering Barrios’s apartment. Even absent these details, and absent any
information as to defendant’s actions while inside Barrios’s apartment, the affidavit

68

contained a substan tial basis to support a finding of probable cause for unlawful
entry. Therefore, the trial court did not err in finding that the evidence obtained in
connection with the search warrants was admissible. This assignment of error is
without merit.
Assignment of Error No. 17
Defendant avers the improper questioning of Detective Dempster prejudiced
his right to a fair trial. Before the surveillance footage from Mid-South Technologies
was shown to the jury, Det. Dempster indicated that a portion of the footage showed
a person walking away from the apartment complex. The State then asked him if he
could see “anybody returning,” and he responded, “Yes. About 5:07. The video starts
at 5:05, a couple of minutes later, after the person walks one way going south, t he
person – [.]” Defense counsel interrupted the testimony and— out of the hearing of
the jury—objected to the use of the word “returning,” arguing that it implied that the
person who left the apartment complex was the same person later seen entering the
complex. The court agreed that the use of the word “returning” was inappropriate
and sustained the objection.
55 However, when the State resumed questioning and
asked Det. Dempster generally what was depicted in the footage, he said, “A person
walking from the apartment past Accent Hair from the parking lot of the apartment
and returning a short time later.” Defense counsel immediately moved for a mistrial
on this basis. The trial court denied the motion, finding that a mistrial was
unwarranted and that an admonishment to t he jury would be sufficient. Before
questioning resumed, the trial court admonished the jurors to disregard any
speculation given by Det. Dempster “about what the video purports to show” and
explained that they should judge the content of the video for themselves.

55 Defendant filed a pretrial motion in limine to prohibit law enforcement from opining as to the
content of video recordings introduced during their te stimony at trial. The trial court denied the
motion but reserved defendant’s right to re-urge this object on a question-by-question basis at trial.

69

Defendant asserts that this admonishment was insufficient and that the trial
court erroneously denied his motion for a mistrial. Under La.C.Cr.P. art. 771, when
a witness makes a remark during trial that is “irrelevant or immaterial and of such a
nature that it might create prejudice against the defendant,” the trial court shall
promptly admonish the jury to disregard the remark. La.C.Cr.P. art. 771 further
provides that upon motion of the defendant, the court “may grant a mistrial if it is
satisfied that an admonition is not sufficient to assure the defendant a fair trial.” The
denial of a mistrial will not be disturbed absent an abuse of discretion. State v.
Givens, 99-3518, p. 12 (La. 1/17/01), 776 So.2d 443, 454. The record here supports
the trial court’s ruling denying the motion for a mistrial, as the court’s admonishment
was sufficient to cure the error. This assignment of error is without merit.
Assignment of Error No. 18
Defendant asserts the trial court erred in denying his Motion for Change of
Venue and that pretrial publicity, including statements made by public officials,
prejudiced the venire and prevented him from receiving a fair trial. He also argues
that the demands of sequestration resulted in the exclusion of “ wage earners” from
the jury, which in turn resulted in a violation of his right to a jury of a fair cross -
section of the community, as the jury did not reflect “the broad socio-economic
spectrum existing in Lafourche Parish.”
Defendant filed a Motion for Change of Venue on September 5, 2014, roughly
two years before jury selection began, citing pretrial publicity. In support of his
motion, he attached several newspaper articles, online comments from the public on
those articles, and two press releases from the Lafourche Parish Sheriff’s Office.
The trial court denied the motion at a hearing on October 13, 2014, finding that
defendant had made no showing of the extent of prejudice in the collective mind of
the community.

70

On October 5, 2016, about three weeks into jury selection, defendant filed a
Renewed Motion for Change of Venue. He adopted his original motion and further
argued the claim that the required sequestration of jurors had forced the court to
exclude venire members for economic hardship pervasive in the community, which
in turn decimated the venire in such a way that it could not represent a fair cross-
section of the community. After a hearing on October 14, 2016, nearly five weeks
into jury selection, the trial court again denied the motio n with respect to the
publicity issue, stating “I think it was clear through the pretrial publicity aspect of
the voir dire that there was— that had not a significant impact on the pool of jurors
who were brought to the court. That had more to do with people who were living in
the area and who knew or had some relation to the parties.” The court also denied
the motion with respect to the sequestration issue, finding that the remaining venire
represented a fair cross-section of the community and noting, “[w]e have people who
are employed. We have people who are wage earners. We have people who are
hourly. We have people who are salaried. We have CEOs. We have retirees. We
have pensioners and self employed.”
A defendant is guaranteed an impartial jury and a fair trial. La Const. Art. I,
§ 16; State v. Brown, 496 So.2d 261, 263 (La. 1986); State v. Bell , 315 So.2d 307
(La. 1975). To this end, the law provides for a change of venue when a defendant
establishes that he will be unable to obtain an impartial jury or a fair trial at the place
of original venue. Bell, 315 So.2d at 309; Rideau v. Louisiana , 373 U.S. 723, 83
S.Ct. 1417, 1419–20, 10 L.Ed.2 663 (1963). Changes of venue are governed by La.
C.Cr.P. art. 622, which provides in part:
A change of venue shall be granted when the applicant proves that by
reason of prejudice existing in the public mind or because of undue
influence, or that for any other reason, a fair and impartial trial cannot
be obtained in the parish where the prosecution is pending.

In deciding whether to grant a change of venue the court shall consider
whether the prejudice, the influence, or the other reaso ns are such that

71

they will affect the answers of jurors on the voir dire examination or the
testimony of witnesses at the trial.

That being said, “a defendant is not entitled to a jury entirely ignorant of his
case and cannot prevail on a motion for change of venue merely by showing a
general level of public awareness about the crime.” State v. Lee, 05-2098, p. 33 (La.
1/16/08), 976 So.2d 109, 133. Whether a defendant has made the requisite showing
of actual prejudice sufficient to warrant a change of venue is “a question addressed
to the trial court’s sound discretion which will not be disturbed on appeal absent an
affirmative showing of error and abuse of discretion.” Id.
Only rarely will prejudice against a defendant be presumed. See State v.
David, 425 So.2d 1241, 1246 (La. 1983) (“[U]nfairness of a constitutional
magnitude will be presumed in the presence of a trial atmosphere which is utterly
corrupted by press coverage or which is entirely lacking in the solemnity and
sobriety to which a defendant is entitled in a system that subscribes to any notion of
fairness and rejects the verdict of the mob.”). Otherwise, the defendant bears the
burden of showing actual prejudice. State v. Vaccaro , 411 So.2d 415 (La. 1982);
State v. Adams, 394 So.2d 1204 ( La. 1981); State v. Williams, 385 So.2d 214 (La.
1980); State v. Felde, 382 So.2d 1384 (La. 1980). Several factors are pertinent in
determining whether actual prejudice exists, rendering a change in venue necessary:
(1) the nature of pretrial publicity and the degree to which it has circulated in the
community; (2) the connection of government officials with the release of the
publicity; (3) the length of time between the publicity and the trial; (4) the severity
and notoriety of the offense; (5) the area from which the jury is to be drawn; (6)
other events occurring in the community which either affect or reflect the attitude of
the community or individual jurors toward the defendant; and (7) any factors likely
to affect the candor and veracity of the prospective jurors on voir dire. Brown, 496
So.2d at 263; Bell, 315 So.2d at 311. Moreover, courts have examined the number

72

of jurors excused for cause for having fixed an opinion as another gauge of whether
prejudice exists in the public mind. State v. Clark, 02-1463, p. 18 (La. 6/27/03), 851
So.2d 1055, 1071.
Defendant now argues that 44 prospective jurors, or more than 25% of the
venire excused “after hardships,” were dismissed on the basis of pretrial publicity
alone. However, this figure is misleading for several reasons. Notably, it was taken
from the figure provided in defendant’s re-urged motion for change of venue, which
was filed before an additional 700 jury subpoenas were issued and another
approximately 150 people were added to the venire, which had previously consisted
of approximately 370 people. Additionally, the 25% figure provided in the re-urged
motion for change of venue included not just those excused due to pretrial publicity
but also those excused due to “knowledge of the c ase from other sources, and
personal connection to persons involved in the case.” Thus, when considering a total
of 44 jurors from the perspective of the full 370 -person venire, or those “before
hardships,” this only accounts for about 12% of the venire. This Court has held that
where exposure to media coverage results in 11% of a venire removed for bias, this
“does not even approach a threshold showing of community-wide prejudice.” State
v. Magee, 11-0574, p. 25 (La. 9/28/12), 103 So.3d 285, 306. Even putting aside the
fact that his raw numbers do not accurately reflect the final venire composition,
defendant’s proposed 25% figure still falls short of demonstrating prejudice. See
Lee, 05-2098, pp. 33–34, 976 So.2d at 133–34 (motion for change of venue properly
denied where trial court excused 32% of jurors for cause due to their exposure to
publicity or opinions of the case). Therefore, we find defendant fails to show that
the trial court abused its discretion in denying a change of venue.
Regarding defendant’s second claim, defendant fails to explain how “retired
persons and others with a fixed income, persons whose jobs paid them during jury
service, persons with sufficient leave time, persons whose spouses could cover both

73

the family expe nses and the household duties, and persons with savings” all
necessarily share a similar socioeconomic status, nor does he show that wage earners
are a “distinctive” group in the community.56 Furthermore, we do not find the record
supports defendant’s assertion that this group was underrepresented in the venire.
Finally, defendant does not sufficiently demonstrate that this was an issue
unique to Lafourche Parish such that a change of venue would have been helpful.
See State v. Lee, 05-2098 (La. 1/16/08), 976 So.2d 109 (denying motion to change
venue, finding defendant failed to show the existence of pretrial publicity was such
that it would color the jurors’ voir dire responses to the point of making them
unreliable and that he was therefore deprived of his right to trial by a fair and
impartial jury). Consequently, we find no merit in this assignment of error.
Assignment of Error No. 19
Defendant asserts that the trial court impermissibly and unconstitutionally
limited the scope of defense counsel’s voir dire examination of jurors. He argues
that various rulings sustaining State objections during voir dire prevented the
defense from adeq uately examining prospective jurors regarding their ability to
remain fair and impartial, to give meaningful effect to mitigating evidence, 57 or to

56 To make a prima facie showing of a violation of the fair cross-section requirement, the defendant
must show: “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community;
(2) that the representation of this group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in the jury -selection process.”
Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

57 La.C.Cr.P. art. 905.5 provides as follows:

The following shall be considered mitigating circumstances:

(a) The offender has no significant prior history of criminal activity;
(b) The offense was committed while the offender was under the influence of
extreme mental or emotional disturbance;
(c) The offense was committed while the offender was under the influence or under
the domination of another person;
(d) The offense was committed under circumstances which the offender reasonably
believed to provide a moral justification or extenuation for his conduct;
(e) At the time of the offense the capacity of the offender to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law was
impaired as a result of mental disease or defect or intoxication;

74

consider mercy if no mitigating evidence was presented.58
Defendant asserts that the trial court continued to sustain objections
preventing his trial counsel from questioning prospective jurors as to whether they
would automatically vote for the death penalty in the event that no mitigating
evidence was presented. He further argues that these rul ings deprived him of
effective use of his peremptory strikes, which were eventually exhausted, requiring
reversal of his conviction and sentence.
The purpose of voir dire is to determine the qualifications of prospective jurors
by testing their competency and impartiality and to assist counsel in articulating
intelligent reasons for exercising cause and peremptory challenges. State v. Stacy,
96-0221, p. 5 (La. 10/15/96), 680 So.2d 1175, 1178. The standard for determining
whether a prospective juror may be excluded for cause because of his views on
capital punishment is whether his views would “prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath.”
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (holding
that a prospective juror who would vote automatically for a life sentence is properly
excluded); see also Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83
L.Ed.2d 841 (1985); State v. Sullivan , 596 So.2d 177 (La. 1992), rev’d on other
grounds, Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182
(1993).
In a “reverse -Witherspoon” context, the ba sis of the exclusion is that a
prospective juror “will not consider a life sentence and . . . will automatically vote

(f) The youth of the offender at the time of the offense;
(g) The offender was a principal whose participation was relatively minor;
(h) Any other relevant mitigating circumstance.

58 Defense counsel sought writs on this iss ue from the appellate court, State v. Brown, 16- 1227
(La. App. 1 Cir. 9/20/16) (unpub’d) (Higginbotham, J., concurs, finding no abuse of discretion in
the trial court’s ruling), and this Court, State v. Brown, 16-1737 (La. 9/21/16) (unpub’d) (Weimer,
J., recused), both of which denied writs without comment.

75

for the death penalty under the factual circumstances of the case before him . . . .”
State v. Robertson , 92-2660 (La. 1/14/94), 630 So.2d 1278, 1284. 59 Jurors who
cannot consider both a life sentence and a death sentence are “not impartial,” and
cannot “accept the law as given . . . by the court.” La.C.Cr.P. art. 797(2), (4); State
v. Maxie, 93-2158, p. 16 (La. 4/10/95), 653 So.2d 526, 534–35. In other words, if a
prospective juror’s views on the death penalty, as indicated by the totality of his
responses, would “prevent or substantially impair the performance of their duties in
accordance with their instructions or their oaths,” whether those views are for or
against the death penalty, he or she should be excused for cause. State v. Taylor, 99-
1311, p. 8 (La. 1/17/01), 781 So.2d 1205, 1214; State v. Hallal, 557 So.2d 1388,
1389–90 (La. 1990).
Although the accused is entitled to full and complete voir dire as set forth in
La. Const. Art. I, § 17,
60 the scope of counsel’s examination rests within the sound
discretion of the trial judge, and voir dire rulings will not be disturbed on appeal
absent a clear abuse of that discretion. La.C.Cr.P. art. 786; State v. Cross, 93-1189,
pp. 6–7 (La. 6/30/95), 658 So.2d 683, 686–87; State v. Robertson, 92-2660, pp. 3-4
(La. 1/14/94), 630 So.2d 1278, 1280. The right to a full voir dire does not afford the
defendant unlimited inquiry into possible prejudices of prospective jurors, such as
their opinions on evidence or its weight, hypothetical questions, or questions of law
that call for prejudgment of facts in the case. State v. Ball , 00-2277, p. 23 (La.
1/25/02), 824 So.2d 1089, 1110 . Rather, Louisiana law provides that a party
interviewing a prospective juror may not ask a question or pose a hypothetical which

59 The “substantial impairment” standard applies to reverse-Witherspoon challenges. In Morgan v.
Illinois, 504 U.S. 719, 738–39, 112 S.Ct. 2222, 2234–35, 119 L.Ed.2d 492 (1992), the Supreme
Court held t hat venire members who would automatically vote for the death penalty must be
excluded for cause, reasoning that any prospective juror who would automatically vote for death
would fail to consider the aggravating and mitigating circumstances and thus viola te the
impartiality requirement of the Due Process Clause. Id. at 728, 112 S.Ct. at 2229. The Morgan
Court adopted the Witt standard for determining if a pro-death juror should be excused for cause.

60 La. Const. Art. I, § 17 provides in pertinent part: “The accused shall have a right to full voir
dire examination of prospective jurors and to challenge jurors peremptorily.”

76

would demand the juror’s pre-commitment or pre-judgment as to issues in the case.
Id. See also, e.g., State v. Williams, 230 La. 1059, 1078, 89 So.2d 898, 905 (1956)
(“It is not proper for counsel to interrogate prospective jurors concerning their
reaction to evidence which might be received at trial.”); State v. Smith, 216 La. 1041,
1046–47, 45 So.2d 617, 618–19 (1950) (“[H]ypothetical questions and questions of
law are not permitted in the examination of jurors which call for a pre -judgment of
any supposed case on the facts.”); Ball, 00-2277, p. 23, 824 So.2d at 1109–10 (trial
court correctly forbids questions the evident purpose of which is to have prospective
juror pre-commit himself to certain views of the case). See also State v. Parks, 324
N.C. 420, 378 S.E.2d 785 (1989) (“Jurors may not be asked what kind of verdict
they would render under certain named circumstances.”); Jahnke v. State, 682 P.2d
991, 1000 (Wyo. 1984) (court properly refused questions which were “patent
requests to obtain the reaction of potential jurors to the appellant’s theory of
defense.”), vacated on other grounds, Vaughn v. State , 962 P.2d 149, 151 (Wyo.
1998).
While this Court’s jurisprudence clearly provides that counsel may not detail
the circumstances of the case and then ask jurors to commit themselves to a
particular verdict in advance of trial, the Court has held that a juror who knows
enough about the circumstances of the case to realize that he or she will be unable
to return a sentence of death is not competent to sit as a juror, although the juror may
also express an abstract ability to consider both death and life sentences. State v.
Williams, 96-1023 (La. 1/21/98), 708 So.2d 703;
61 State v. Comeaux, 514 So.2d 84

61 In Williams, this Court held that “when a potential juror indicates his or her attitude regarding
the mitigating circumstances would substantially impair his or her ability to return a death penalty,
then that juror is properly excludable for cause,” and found further that, after a full reading of voir
dire, two prospective jurors who initially indicated theoretical support for the death penalty “could
not have returned a death verdict because of the defendant’s age,” and were therefore unfit to serve
on a capital jur y. Specifically, one juror indicated she “would have a very hard time saying [the
death penalty] was appropriate,” and that it would “‘bother’ her to return a death verdict against
an 18- year-old defendant.” The other expressed few reservations about the death penalty in
general, but later indicated that “‘. . . if they’re young, to me, I think they should get life, not the
death penalty.’” Williams, 96-1023, pp. 8–10, 708 So.2d at 712–14.

77

(La. 1986). Thus, counsel must tread carefully while seeking to elicit whether a
prospective juror is capable of remaining impartial in the case at hand to the extent
that counsel makes any references to what he anticipates the evidence will show.
State v. Holliday, 17-1921, p. 35 (La. 1/29/20), __ So.3d __.
Additionally, this Court has held that the accused’s right to exercise his
challenges intelligently may not be curtailed by the exclusion of non-repetitious voir
dire questions which reasonably explore a juror’s potential prejudices,
predispositions, or misunderstandings relevant to the central issues of the case. State
v. Duplessis, 457 So.2d 604, 606 (La. 1984), citing State v. Monroe, 329 So.2d 193
(La. 1976). However, a trial judge in a criminal case has the discretion to limit voir
dire examination, as long as the limitation is not so restrictive as to deprive defense
counsel of a reasonable opportunity to probe to determine a basis for using
challenges for cause and for the intelligent exercise of peremptory challenges. Id. ,
citing State v. Williams , 457 So.2d 610 (La. 1984). Therefore, when a defendant
asserts that he has been deprived of his constitutional right to a full and fair voir dire,
the reviewing court must examine the entire voir dire in order to determine that issue.
Id. Restrictions on counsel’s necessarily repetitive questions aimed at eliciting those
attitudes towards legal principles which will play a significant role at trial require
close scrutiny and invite reversal. See State v. Hall, 616 So.2d 664 (La. 1993); State
v. Duplessis, 457 So.2d 604 (La. 1984).
In support of his claim that defense counsel was restricted in its voir dire
examination, defendant relates the following incidents occurred during voir dire:
1) Defense counsel asked Susan Arceneaux and Angela Barbera
whether they could give “meaningful consideration” to defendant’s
voluntary intoxication defense. The trial court sustained the State’s
objection to these questions, ruling that it was inappropriate to ask
about voluntary intoxication as opposed to involuntary
intoxication.

2) Defense counsel asked Anthony Dale Guidry for his feelings
regarding sentencing if the defendant was found guilty as charged,

78

and he responded, “Death.” The defense then asked whether
mitigating circumstances would “matter” to him, and the S tate
objected. The court sustained the objection, finding that defense
counsel was asking him to lock himself into a position.

3) Defense counsel asked John Lagarde whether he could give
“meaningful consideration to whether or not [a defendant] was
relatively young at the time of the offense[,]” and the S tate
objected. The trial court allowed the defense to proceed, but
expressed concern about providing hypothetical facts. Before voir
dire resumed, the court advised the venire that the law requires
them to give meaningful consideration to mitigating
circumstances.

4) The State objected during defense counsel’s questioning of George
Theriot about his feelings regarding t he death penalty. The trial
court sustained the objection and rejected defense counsel’s
suggestion of rephrasing the question as follows: “What might be
some of the things that you would consider or want to consider to
make you lean towards life? What might be some of the things that
would make you lean toward death?”

Our review of the record reveals that defendant’s descriptions of these incidents are
misleading. Specifically, regarding Susan Arceneaux, defense counsel asked her the
following question immediately prior to the State’s objection:
So some people will tell me, okay, if you get to the second phase at all,
you’ve already decided a person may have been drunk or at least have
drunken alcohol, the person may have used pills, but they still knew
what they were doing. And then some people tell me, “But you know,
Mr. Doskey, when I read that thing there about – and you’ve just
explained to me, Mr. Doskey, I’ve got to consider that – if I consider it
all, I’ve got to consider it in the defendant’s favor, in this hypothetical
case we’re talking about.”

Some people look at me and say, “But you know what, taking a pill or
taking a drink, that’s his choice. That was his choice.” And they say, “I
know what the law says about that. I know what the law says about that,
but there’s just no way I can follow that law and consider it, even the
slightest bit.” Or, in fact, “I’m going to consider it against him because
he was the one who decided to take that pill or take that drink.” How
do you feel about that, Ms. Arceneaux? Could you consider it – if you
consider it at all, consider it for him? Well, you don’t actually have a
choice whether you’re going to consider it at all. You’ve got to give
significant meaningful consideration.

Arceneaux responded, “No. I believe everybody has the, you know, control of their
own intent, you know, I mean – [.]” The State interrupted, and a discussion was held

79

out of the hearing of the venire during which the State objected to the defense
eliciting “definitive answers to hypothetical questions[.]” The defense responded
that it did not bel ieve it had mentioned specifics but that it was only trying to
determine whether the jurors understood that “whatever conside ration they give
[mitigating circumstances], it’s got to be in favor of the Defense and not against the
defendant.” The trial court stated that the defense was entit led to make this
determination but should avoid “getting into the quantifying and the actual types of
substances ingested.” The defense then asked the court whether there would be a
problem with using the word “voluntary” in connection with intoxication, and the
State argued that telling the venire that defendant was voluntarily intoxicated would
be improper. The court responded as follows:
But that was not Mr. Doskey’s question. Mr. Doskey asked them to
consider intoxication, and [Ms. Arceneaux] said it made a difference to
her if it was voluntary. I think he’s entitled to ask her what that means
as a follow-up to her response, because that’s a response – the juror is
the one that put that out there, not Mr. Doskey. And as long as Mr.
Doskey knows that the general idea for any of the other ones, after you
explore that issue with her, is that, you know, we’re not going to be
quantifying, we’re not going to be talking about levels of intoxication.
I really don’t want to get – she’s the one that introduced voluntary. I
mean, I don’t think it’s appropriate to suggest whether it’s voluntary or
involuntary by counsel.

If they bring it up, you can ask them what that means, and why it affects
their – why does that – the point is, “Why does that affect your decision
and how is it going to affect your ability to consider the mitigation in
Mr. Brown’s favor?”

Defense counsel noted its objection and stated that it would limit the questions in
accordance with this ruling.
When voir dire resumed, defense counsel immediately asked Arceneaux to
expand on what she said about whether she could “consider it in a defendant’s favor
if he was voluntarily intoxicated.” The following colloquy ensued:
ARCENEAUX:
Mr. Doskey, I’m used to dealing with facts, and I really feel –
and I’m a nurse. I’ve seen a lot of people in a lot of conditions,
but that was their choice, so the outcome of what happened to

80

them, whether it’d be in a hospital setting or anywhere else, they
chose to drink, they chose to do drugs. I don’t consider that to be
an excuse.

DOSKEY:
All right. Now you understand, of course – and this is really the
very same way Mr. Morvant said, there’s no right or wrong
answer for this. I understand that – what your position is. So even
if the Judge were to instruct you, even if the DA were to get back
up here after I’ve talked to you and said – tell you, “Well, the law
says that you should consider” – and let me quote the words of
the statute. If the Judge or the district attorney were to tell you,
again, that the law says, at the time of the off ense – if you
determine as a juror, as an individual, that the capacity of the
offender to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was impaired as
a result of – go down there – of intoxication, I think what you’re
telling me is that, “Even if I was told that, in my heart of my
heart, I don’t believe that. I don’t think that I could do that.”

ARCENEAUX:
I would consider it as part of the deliberation, but I have
considered that many, many times in my life. And you’re correct,
my decision about that is that that was a choice that that
individual made.

DOSKEY:
Okay. I don’t want to beat this and nor – I’m sure, nor do you
either. So what you’re saying is you could consider it – you’re
saying, “Not really. That’s a policy issue with me and I’ve
already decided that policy issue”?

ARCENEAUX:
Right, and that’s only one of the things that would – ”

The State interrupted and asked to approach, and an off -the-record discussion was
held. Defense counsel then resumed questioning, but abandoned its questioning of
Arceneaux and turned its attention to Angela Barbera. The defense asked Barbera
how she felt about the subject, and the following colloquy occurred:
BARBERA:
I personally do not believe that intoxication is an excuse. I can
consider it, but I have not seen anybody who could do anything
– not that they wouldn’t remember it, but I feel like you know
what you’re doing. If you’re not knowing what you’re doing then
you’re falling down. I mean, I don’t –

DOSKEY:
Okay. If you get to that second phase, again, it will only be
because you, as a juror, even if you have heard evidence of any

81

sort of intoxication, you will have decided that the person still
knew what they were doing, meant to do it, and, in fact, did it.
The mitigator, which is not a defense – it’s important to realize
that mitigation is not a defense. Mitigation is a reason not to give
the death penalty or a reason to give life, either way you want to
view it. But mitigation, in this circumstance, talks about not
whether you knew what you were doing, but talks about the
ability to appreciate that what you’re doing is criminal or to go
ahead and follow the law. It’s a lower standard, you understand
that?

BARBERA:
I understand that we have to consider that.

DOSKEY:
Okay. And the question is, have you already made up your mind
that you can’t consider it? In other words, forget what the law –
forget the law says that you should consider – should be able to
consider it. What I’m trying to find out about is you’re feeling
that – not, “Oh, yeah, if the Judge tells me I can reset my brain
and go ahead and do it,” because then the question is: Are you
really going to reset your brain? The question is: Are you going
to be able to go ahead and follow the Judge’s instructions fairly?
And it doesn’t mean you’re a bad person if you can’t. It just
means you’ve got a different life experience.

BARBERA:
I can follow instructions, and I understand exactly what you’re
saying.

At the conclusion of the defense’s questioning of that panel, the court
addressed the off -the-record discussion that took place between questioning of
Arceneaux and Barbera on the subject of intoxication. The State had again raised
an objection arguing that the defense provided a hypothetical regarding voluntary
intoxication. The defense, in turn, again argued that it did not go into specifics, and
that it was attempting to determine whether the jurors would treat voluntary
intoxication differently from involuntary intoxication. The trial court ultimately
ruled as follows:
With regard to the objection as to further questioning on the issue of
mitigation, the issue of consideration of the issue of intoxication had
been addressed with Ms. Arceneaux at length. I don’t think it was ever
even put in the context of involuntary intoxication. They heard – Ms.
Barbera, actually, both – from their representations to the Court, both
being RN’s, were dealing with the results of voluntary intoxication.
They both indica ted, numerous times, their consideration. I think the

82

attempt, at the point that it was stopped, was – it had gotten to the point
where there was going to be a quantification, almost, of how much
consideration would you give? Questions were asked would the y
consider it in the defendant’s favor as a mitigating circumstance. I
believe they both answered affirmatively, and the objection is noted,
but overruled.62

Given the above, it does not appear the trial court prevented defense counsel
from asking Arceneaux or Barbera whether they could consider intoxication as a
mitigating circumstance. To the contrary, the trial court’s ruling was favorable to
the defense in this respect. Furthermore, the record indicates that Arceneaux and
Barbera were clearly r eferring to voluntary intoxication when commenting on the
issue, and defendant does not explain how distinguishing between voluntary and
involuntary intoxication would have been helpful to the defense in determining their
ability to consider intoxication.
Additionally, the following colloquy took place between defense counsel and
prospective juror Anthony Dale Guidry:
DOSKEY:
If you found that somebody had deliberately committed this
crime, knew what he was doing, meant to do it, no legal defenses
at all, do you think like –

GUIDRY:
Death.

DOSKEY:
I’m sorry?

GUIDRY:
Death penalty.

DOSKEY:
– life imprisonment without parole simply wouldn’t be enough,
would it?

GUIDRY:
With the circumstances – one, you know – had one person died,
I would of [sic] said, probably, life. Two people died, I’m
battling with it. Three people died, somebody knew – had intent
to do that. You know, whether they were drunk – I drank a lot in

62 The trial court denied the defense’s subsequent challenges for cause as to both Arceneaux and
Barbera.

83

my life myself, never made me want to kill nobody. You know?
And you know, I would definitely go with the – I would
definitely go with the death penalty.

DOSKEY:
It probably wouldn’t matter to you if they had had a bad
childhood at all, would it?

GUIDRY:
We all had bad childhoods.

DOSKEY:
Okay. And if it was their first crime?

GUIDRY:
I’d probably –

The State objected, arguing that defense counsel was asking Guidry to commit to a
position based on hypotheticals. The court sustained the objection, stating:
I think the last questions that were asked of Mr. Guidry went beyond
the scope of what is allowed when asking him to specifically make the
decisions about how he would vote if he had already rejected
intoxication. “Oh, and what about a bad childhood?”; “Oh, and what
about” – those are specific topics. Your questions need to be couched
in terms of whether he can consider – give those consideration as a
mitigating factor.

The defense then asked the trial court whether it could frame questions as follows:
“They have found him guilty, beyond a reasonable doubt, of this crime. Now, given
that, would you meaningfully consider – [.]” The court responded:
Perfect. That’s perfect. ‘Will you consider the mitigating factors of
intoxication, even though you found him guilty in spite of some
intoxication?’ That’s fine. ‘Will you give it meaningful consideration?’
But when you asked them to lock themselves in on a decision based on
intoxication, I’m going to sustain that objection every time.

Again, we find the court’s ruling here favorable to defendant to the extent it
ruled that defense counsel could ask prospective jurors whether they would
meaningfully consider mitigating circumstances. Defendant shows no error in the
trial court’s determination that defense counsel’s questioning of Guidry exceeded
the scope of permissible voir dire. Guidry was ultimately removed for cause upon
joint motion.

84

Regarding the questioning of John Lagarde, also discussed below, when asked
by the defense whether he could give meaningful consideration to whether the
person who committed this crime was relatively young at the time of the offense, he
responded, “No, sir.” The State objected, arguing that it improperly presented a
hypothetical, and that it was misleading in that “you’ve got a defendant sitting there
who looks, at least, in his mid-thirties,” such that a venire member would predictably
respond negatively to that question when looking at defendant. The trial court
responded by allowing the defense to proceed with questioning, but before allowing
the defense to proceed, the court advised the venire that jurors are required to give
“meaningful consideration” to mitigating circumstances and that these questions
were being asked in order to determine whether they could do so. Thus, we find it
is not clear, nor does defendant e xplain, how this ruling negatively impacted the
defense’s voir dire.
Finally, with respect to George Theriot, the S tate objected to the defense’s
question, “If you were there and you had found somebody guilty of committing one
of these crimes, what would be the most important thing for you to know in deciding
whether you give life or death?” In sustaining the objection, the court stated that
“asking to commit to a decision as to what Mr. Theriot thinks is the most important
factor in whether he decides is asking him to, basically, make a decision on a
particular mitigating circumstance or any other fact. And you’re trying to make him
make a judgment when facts aren’t presented.” Defense counsel then proposed
rephrasing the question to, “What might be some of the things that you would
consider or want to consider to make you lean towards life? What might be some of
the things that would make you lean towards death?” The court rej ected this
proposal, stating:
I believe that asking them to suggest what you need to present to them
in the penalty phase is problematic. It’s as problematic as asking them
to name, “What is the most important thing for you?” And it’s as

85

problematic as asking them to make decisions on hypotheticals. So I
don’t know beyond that. I don’t accept the one about, “What’s the most
important to you?” You can explore other issues with them in a way to
try to get into this, but asking them to tell you what’s important to them
on that particular issue is not the question that I believe is appropriate.

We conclude that these incidents, as well as the voir dire transcript as whole,
do not demonstrate that the trial court impermissibly restricted questioning by
defense counsel, nor do they show that the defense was rendered incapable of
adequately assessing the ability of venire members to give meaningful consideration
to mitigating evidence. Rather, the record reflects that the trial court’s rulings were
consistent with jurisprudence on the issue . Accordingly, we find no merit in this
assignment of error.
Assignment of Error No. 20
In this assignment of error, defendant argues the trial court erred in denying
his challenges for cause against jurors who would automatically vote for the death
penalty (those who were not “death qualified”), as we ll as jurors who were
“substantially mitigation impaired.” Generally, the grounds on which a juror may
be challenged for cause are set forth in La. C.Cr.P. art. 797 and La. C.Cr.P. art. 798.
63

63 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 indict ment, or on a petit jury
that once tried the defendant for the same or any other offense.

La. C.Cr.P. art. 798 provides:

It is good cause for challenge on the part of the state, but not on the part of the
defendant, that:
(1) The juror is biased against the enforcement of the statute charged to have been
violated, or is of the fixed opinion that the statute is invalid or unconstitutional;
(2) The juror tendered in a capital case who has conscientious scruples against the
infliction of capital punishment and makes it known:

86

In applicable part, a juror may be challenged if the juror lacks a qualification required
by law, if the juror is not impartial, whatever the cause of his partiality, and if the
juror will not accept the law as given by the court. La. C.Cr.P. art. 797.
A trial court is vested with broad discretion in ruling on challenges for cause,
and these rulings will be reversed only when a review of the voir dire record as a
whole reveals an abuse of discretion. State v. Cross, 93-1189, p. 7 (La. 6/30/95),
658 So.2d 683, 686. Prejudice is presumed when a trial court erroneously denies a
challenge for cause and the defendant ultimately exhausts his peremptory
challenges. State v. Robertson, 630 So.2d 1278, 1280 (La. 1994). Further, an
erroneous ruling depriving an accused of a peremptory challenge violates his
substantial rights and constitutes reversible error. Cross, 93-1189, p. 6, 658 So.2d
at 686. “[A] challenge for cause should be granted, even when a prospective juror
declares his ability to remain impartial, if the juror’s responses as a whole reveal
facts from which bias, prejudice or inability to render judgment according to law
may be reasonably implied.” State v. Hallal, 557 So.2d 1388, 1389–90 (La. 1990).
Here, defendant exhausted his peremptory challenges and therefore need only
show that the trial court abused its discretion by denying his challenges for cause.
Robertson, 630 So.2d at 1281. For reference in the discussion below, jurors were
asked to rate themselves on a scale of one to five, five being an inability to vote for
the death penalty under any circumstances and one being an inability to consider a
life sentence under any circumstances.
Willingness to consider mitigating circumstances

(a) That he would automatically vote against the imposition of capital punishment
without regard to any evidence that might be developed at the trial of the case before
him;
(b) That his attitude toward the death penalty would prevent or substantially impair
him from making an impartial decision as a juror in accordance with his instructions
and his oath; or
(c) That his attitude toward the death penalty would prevent him from making an
impartial decision as to the defendant's guilt; or
(3) The juror would not convict upon circumstantial evidence.

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Defendant argues the trial court erred in denying his cause challenges against
two venire members, Chad Ordoyne and John Lagarde ,64 because their responses
indicated that they would not be willing to consider certain mitigating evidence.
Chad Ordoyne. Defendant argues that Ordoyne’s statements during voir dire
as a whole disqualified him from jury service because he was predisposed to vote
for the death penalty and would not consider intoxication evidence as mitigation.
When the State asked Ordoyne to rate himself on the scale provided above, the
following colloquy occurred:
ORDOYNE:
I would say probably No. 2. It would all depend on the
circumstances and evidence. I mean, if it proves that he did it and
took lives, and lives of children, I’m sorry, my opinion is he don’t
deserve –

MORVANT:
But you would still – are you telling me –

ORDOYNE:
I would still listen to all evidence – all circumstances.

MORVANT:
You would still conside r the evidence that the Defense would
present to you?

ORDOYNE:
Yes, sir.

MORVANT:
You would want to hear it?

ORDOYNE:
Yes.

MORVANT:
Okay. So you would be a person who favors the death penalty,
but you would sit there and listen, and you could impose – you’re
not telling me you’re blocking out giving a life sentence at all?

ORDOYNE:
No. I’m not blocking it out.

MORVANT:
You feel strongly about the death penalty, but you would listen

64 The defense later used peremptory strikes against both Ordoyne and Lagarde.

88

to the evidence, and if you felt a life sentence was warranted, you
could do it?

ORDOYNE:
Yes, I could.

MORVANT:
And even if – let me give you a scenario. Even if, at the end, the
Defense decided that they’re not going to present any mitigating
evidence to you? And, again, I know it’s kind of an unfair
question in a way because you haven’t heard anything. I guess
what I’m asking: Would you still keep an open mind and then
make a decision based upon all the evidence that you’ve received
as to whether or not you would give the death penalty or life in
prison?

THE COURT:
Before you answer that, let me just tell you, the Defense does not
have a burden of proof. They don’t have to prove anything to
you. The final issue lies with you as to whether – your decision
is whether you can consider life and death, no matter what’s been
shown. If you can never consider life, then that’s a different
answer.

ORDOYNE:
Yes, sir.

THE COURT:
But if you’re expecting to be shown something, the Defense does
not have to show you anything. The decision for you is: Can you
still consider life even if nothing is shown?

ORDOYNE:
Yes, sir. I can still consider life.

MORVANT:
You follow where we’re at?

ORDOYNE:
Yes. Yes, sir.

Later, the defense asked the venire members how they felt in general about
life imprisonment without parole as a punishment for first degree murder .
Immediately after another venire member answered, “Life in prison would be just as
bad as the death penalty, but they would still have their life[,]” Ordoyne stated,
“That’s how I feel. A life sentence is terrible and you’d have a lot of time to think
about it, but if a person’s proven guilty to intently take somebody else ’s life, I’m

89

sorry, you don’t get that chance to breathe either.” Defense counsel then asked,
“Okay. As far as you’re concerned, that’s where it stands?” and Ordoyne replied,
“Pretty much. I mean, it’s – truthfully, if he intently done it and all evidence showed
that he intended – you got to listen to all the evidence. But if you took a life intently
just doing it because you wanted to do it. I’m sorry, that’s my opinion.”
The defense challenged Ordoyne for cause and the trial court denied the
challenge, ruling as follows:
The Court was able to make personal observations of Chad Ordoyne
and his responses to the questions posed by the Court and by counsel
for the State and counsel for the defendant. Mr. Ordoyne responded to
questions from the Co urt that he could choose death; he could also
choose life. In response to questions regarding mitigation, he indicated
that he can consider all the mitigating factors. He did indicate if the case
was due – he made a positive statement, depending how you look at it,
that for certain types of cases he would choose death; but at the same
time, he also considered – stated that he could, also, choose life under
certain circumstances.

He could not be called upon in this case – and he was not one who said
he could only consider death no matter what. I will – I find that his
feelings in favor of the death penalty do not substantially impair his
ability to follow the law, as instructed, and to follow his oath. The
Defense challenge for cause is denied.

During guilt- phase voir dire, defense counsel asked the venire generally
whether any of them had any experience with heavy drinking, either personally or
with family or friends. Ordoyne indicated that he drank heavily when he was
younger and said, “I mean, when you do bad things on alcohol and drugs, that’s your
problem. You chose to do it, you gotta suffer the consequences.” The following
colloquy ensued:
CUCCIA:
Okay. So let me make sure I understand. And, again, you know,
you’ve always been pretty clear in what your statement is, that in
a situation where someone has voluntarily chosen to drink and
gotten so drunk that their behavior changes – as Ms. Robbins had
experienced –

ORDOYNE:
He’s responsible for his behavior, because he chose to get that
way. He chose to start drinking violently. That was his choice.

90

CUCCIA:
Right.

ORDOYNE:
He was in his right mind.

CUCCIA:
And – when he picked it up.

ORDOYNE:
That’s right.

CUCCIA:
And so no matter what effect it may have had on –

ORDOYNE:
He’s responsible for it.

CUCCIA:
Responsible, not only from the standpoint that – now, we’re
talking about culpability – right now, we’re talking about the idea
of the guilt-phase thing. As far as an idea that, maybe, the
punishment he should get for it should be lessened because of the
intoxication.

MORVANT:
Excuse me.

ORDOYNE:
No.

MORVANT:
Wait just – excuse me –

CUCCIA:
Should not be.

MORVANT:
Excuse me. Can we approach?

The defense again challenged Ordoyne for cause, arguing that he indicated
that he would not consider intoxication as a mitigating factor. Noting that it had
considered Ordoyne’s responses as to his ability to consider the evidence presented
and to apply the law, the trial court denied the challenge for cause.
With regard to Ordoyne’s predisposition toward death, defendant asserts that
this Court has reversed a conviction under similar circumstances, citing State v.

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Maxie, 93-2158, pp. 15 –24 (La. 4/10/95), 653 So.2d 526, 534– 38. In Maxie, the
court vacated a first degree murder conviction and death sentence because the trial
judge erroneously denied a defense challenge for cause against a venire member
who, though she said she “could listen” to mitigation evidence, responded negatively
when asked if her “mind [was] open to both the death penalty and life imprisonment”
if the penalty phase was reached and felt death the only appropriate punishment
“[o]nce the crime guilt is established.” Id., 93-2158, pp. 15–24, 653 So.2d at 534–
38.
As discussed above, in ruling on a challenge for cause, the trial court is vested
with broad discretion and its ruling will be reversed only when the voir dire record
as a whole reveals an abuse of discretion. Cross, 658 So.2d at 686–87; Robertson,
630 So.2d at 1280. A prospective juror should be excluded if his views on capital
punishment would “prevent or substantially impair the performance of his duties as
a juror in accordance with his instructions and his oath.” Witherspoo n, supra;
Wainwright, 469 U.S. at 424, 105 S.Ct. at 852. Jurors who cannot consider both a
life sentence and a death sentence are “not impartial,” and cannot “accept the law as
given . . . by the court.” La. C.Cr.P. art. 797(2), (4); Taylor, 99-1311, p. 8, 781 So.2d
at 1214; Maxie, 93-2158, p. 16, 653 So.2d at 534–35. Yet the trial court’s refusal to
disqualify a prospective juror does not constitute reversible error or an abuse of
discretion if, after further examination or rehabilitation, the juror dem onstrates
willingness and ability to decide the case fairly according to the law and evidence.
State v. Howard, 98-0064, p. 7 (La. 4/23/99), 751 So.2d 783, 795; Robertson, 630
So.2d at 1281. Thus, a prospective juror who simply indicates a personal preference
for the death penalty need not be stricken for cause. State v. Tate, 01-1658, pp. 17–
18 (La. 5/20/03), 851 So.2d 921, 936; State v. Lucky , 96-1687, p. 6 (La. 4/13/99),
755 So.2d 845, 850. Additionally, a trial judge “makes personal observations of
potential jurors during the entire voir dire[,]” and a reviewing court should give

92

“great deference to the trial judge’s determination and should not attempt to
reconstruct voir dire by microscop ic dissection of the transcript in search of magic
words or phrases that automatically signify the juror’s disqualification.” State v.
Broaden, 99-2124, p. 13 (La. 2/21/01), 780 So.2d 349, 359.
While Ordoyne’s responses appear to indicate a predisposi tion for the death
penalty, he stated during penalty-phase voir dire that he would be willing to consider
the evidence and circumstances, that he would not “block out” a life sentence, and
that he “can still consider life.” We note that the trial judge was in the best position
to determine whether Ordoyne would discharge his duties as a juror, and Ordoyne’s
responses taken as a whole do not clearly indicate that his views would substantially
impair his ability to “render an impartial verdict according to the law and evidence”
or to “accept the law as given to him by the court” under La. C.Cr.P. art. 797(2),
(4).
65
With regard to his willingness to consider intoxication evidence as mitigation
toward a life sentence, Ordoyne’s answers are ambiguous because he never clearly
stated that he was unwilling to consider intoxication as mitigating evidence in the
penalty phase. While Ordoyne responded “no” to what appears to be defense
counsel attempting to clarify this point, he never provided a definitive answer.
A juror must be allowed to consider, and may not refuse to consider, “‘as a
mitigating factor, any aspect of a defendant’s character or record and any of the

65 See also Broaden, 99-2124, pp. 11–12, 780 So.2d at 358 (cause challenge properly denied for
juror who was not unwilling to consider a life sentence and would not automatically vote for the
death penalty); Lucky, 96-1687, p. 6, 755 So.2d at 850 (denial of cause challenge upheld for juror
who stated that the mitigating evidence would have to be substantial for juror to recommend life
sentence); State v. Miller, 99-0192, pp. 18–19 (La. 9/6/00), 776 So.2d 396, 408 (prospective jurors
who expressly agree to consider both life a nd death sentences and to consider any mitigating
evidence are not properly excused for cause); State v. Chester , 97-2790, p. 14 (La. 12/1/98), 724
So.2d 1276, 1285 (no abuse of discretion for denying cause challenge for juror who stated that “in
an appropriate case” she could return a life sentence); State v. Hart, 96-0697, pp. 7–11 (La. 3/7/97),
691 So.2d 651, 656–58 (approving denial of cause challenge against juror who believed that the
death penalty for an intentional killing “ought to be the law,” but agreed to abide by the judge’s
instructions and to consider both life and death sentences).

93

circumstances of the offense that the defendant proffers as a basis for a sentence less
than death.’” Blystone v. Pennsylvania, 494 U.S. 299, 304–05, 110 S.Ct. 1078, 1082,
108 L.Ed.2d 255 (1990) (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954,
2964, 57 L.Ed.2d 973 (1978)). 66 The United States Supreme Court ha s stated that
any prospective juror who fails to consider the evidence of aggravating and
mitigating circumstances violates the impartiality requirement of the Due Process
Clause and should be removed for cause. Morgan v. Illinois, 504 U.S. 719, 734–39,
112 S.Ct. 2222, 2233 –34, 119 L.Ed.2d 492 (1992). Jurors “may determine the
weight to be given relevant mitigating evidence” but “may not give it no weight by
excluding such evidence from their consideration.” Eddings v. Oklahoma, 455 U.S.
104, 114–15, 102 S.Ct. 868, 877, 71 L.Ed.2d 1 (1982).
This Court has instructed, “[w]hile a juror has the discretion to assign
whatever weight the juror deems appropriate to any aggravating and mitigating
circumstance established by the evidence , the juror must be willing to consider
mitigating evidence relevant to the character and propensities of the defendant[,]”
and “[t]here is a significant difference between a prospective juror’s agreeing to
consider mitigating evidence and the juror’s determination of the importance of that
evidence.” State v. Miller, 99-0192, pp. 8–9 (La. 9/6/00), 776 So.2d 396, 402 –03
(footnote and emphasis omitted). See also Sawyer v. Whitley , 945 F.2d 812, 822
(5th Cir. 1991) (“Under the Louisiana scheme, therefore, a rational juror conceivably
could choose to give no weight to any of the mitigating factors and impose the death
penalty so long as it has found, beyond a reasonable doubt, the existence of a single
aggravating circumstance.”).

66 See also Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998)
(“The sentencer may not be precluded from considering, and may not refuse to consider, any
constitutionally relevant mitigating evidence”).

94

The difference between a jur or who will not consider a mitigating
circumstance and one who will accord that circumstance little or no weight is a very
fine line. Cf. Ward v. Whitley , 21 F.3d 1355, 1364 (5th Cir. 1994) (Politz, C.J.)
(“There is a fine line between the argument that a statutory mitigating circumstance
merits no weight in the jury’s ultimate decision and the argument that the mitigating
circumstance should not be considered or is not mitigation. The former is
permissible under Louisiana law; the latter is not.”). In this instance, we note that
Ordoyne expressly indicated during penalty-phase voir dire that he would consider
all evidence and circumstances, and the record supports the trial court’s finding that
Ordoyne would apply the law as instructed without being substantially impaired by
his own views. Accordingly, we find this claim does not warrant reversal.
John Lagarde. As discussed above, John Lagarde indicated that he could not
give meaningful consideration to the “relative youth” of the offender as a mitigating
circumstance. Defense counsel challenged Lagarde for cause on this ground, as well
as others discussed infra, and the court denied the challenge, finding that Lagarde’s
ability to follow the law as ins tructed was not substantially impaired by his views.
We find the record supports this finding, as Lagarde rated himself a three on the
above-referenced scale and stated he would “have to weigh all the facts” before
making a determination as to life or dea th. Regardless, because defendant was ten
days shy of his 35th birthday at the time of the offense, it cannot reasonably be said
that the “youth of the offender” was a relevant mitigating circumstance in this matter.
Willingness to consider a life sentence
Defendant also asserts the trial court erred in denying his cause challenges as
to Rab Bruce, Michael Eschete, and Kevin Trosclair, forcing him to use peremptory
strikes against them. He asserts that these venire members were substantially
impaired because they repeatedly made statements indicating that the defense would
have to prove mitigating circumstances in order for them to consider a life sentence.

95

Specifically, defendant points to a portion of the voir dire transcript, spanning
several pages, in which defense counsel spoke to all three venire members. Defense
counsel asked Trosclair if mitigating evidence was “something that somebody would
have to show” him in order to consider life, to which he responded affirmatively,
and whether he could still choose a life sentence if “they couldn’t demonstrate
mitigating circumstances” to him, and Trosclair responded, “then I believe in the
death penalty.” Defense counsel then asked Bruce if his vote “would be a death
penalty unless the Defense could demonstrate to [him] why the death penalty was
not appropriate[,]” and Bruce replied, “Correct.” Bruce elaborated that the sentence
should be the death penalty “unless the evidence – there’s some, you know,
circumstance through the evidence, that dictates that there was mitigating
circumstances that shouldn’t be – the person shouldn’t be put to death.” Defense
counsel then said, “That would be up to the Defense to go ahead and show that[,]”
and Bruce said, “Right.” Eschete stated that he “somewhat agree[d]” with Bruce,
explaining that he “would lean more towards the death penalty if all of the potential
evidence that the DA showed that was proven to [him] and [he] thought it was
without a doub t and the Defense didn’t have any kind of issues or contradictory
information[,]” in which case he “would think that the death penalty would be more
of an appropriate sentence.”
The trial court then intervened and explained to the venire panel that the
defense does not have to prove anything to them and that they can find mitigating
circumstances by looking at the facts of the case even if the defense does not present
them. The court then asked Eschete if he could consider life and death even if the
defense does not show anything, and he said, “Yes.” Out of the presence of the
venire, the State requested the trial court provide an instruction directly to Bruce and
Trosclair that the law does not require the defense to present evidence and that they
would be required to decide the case based upon the evidence that they have in front

96

of them at the time. The court agreed instead to give the instruction general to the
venire panel.
In reviewing the vior dire transcript as a whole, we find it more likely these
venire members were experiencing momentary confusion as to the burden of proof
as opposed to expressing an unwillingness to consider a life sentence. As explained
in further detail below, the totality of their responses indicated they were each
willing to follow the law as instructed and to give meaningful consideration to the
evidence presented.
Rab Bruce. When prompted by the S tate, Bruce rated himself “somewhere
between the two and the three” on the scale, explaining, “I think I listen to people
and I think I’m open, number one. But the nature of the crime, any – would favor a
harsher penalty, in my opinion, if he’s guilty. Only if he’s guilty.” The State said,
“And you haven’t heard anything yet[ ,]” and he added, “No. I haven’t heard
anything. I’m just saying if it would favor all of the things that you would actually
vote or – in the guilty phase to go to the guilty piece in this case, then, you know,
then I think – then you’ll have to prove to me, again, with the mitigating – [.]” The
State interrupted him and said, “And I have to prove. The Defense doesn’t have to
prove anything to you[,]” and Bruce replied, “Right. Right[,]” and continued, “That
he deserves the penalty, but – so, like I said, I am an open person. I think I could
listen to both sides, and I could really, you know – [.]”
The State then told the venire
panel generally that the defense does not have to prove anything, specifically telling
them that if the defendant is found guil ty, and the State presents aggravating
circumstances, and “the Defense says, ‘We’re not presenting anything,’ still, your
role is to give consideration to what you have before you make any decision.” Bruce
replied, “Correct.”
Later, when defense counsel asked Bruce if he could meaningfully consider a
life sentence where he found a defendant guilty of murdering and raping a woman,

97

murdering and raping a seven -year-old, and murdering a one -year-old, and where
the defense presented no mitigating circumstances, Bruce replied that he could, but
admitted that “it probably will not land on that[.] The court and Bruce then had the
following exchange:
THE COURT:
I just have – the question, really, is: Is the nature of the crime
such that you’re unable to consider mitigating circumstances and
the facts that are presented to you? If you’re prevented from
doing that, based on the circumstances of this case, that’s one
question. But you cannot consider mitigating circumstances
because of the facts of the case. Or – so and I think that’s the way
the question should be couched, is: You’re prevented by – if they
prove their case, you will not consider the mitigating
circumstances, that’s one answer. If you can still consider
mitigating circumstances, in spite of the nature of the case, that’s
a different answer. I think that’s the question: Can you – would
you still consider the mitigating circumstances?

BRUCE:
Yes, Your Honor. But I am – I understood him to say that he
would not present –

THE COURT:
That’s a different question. He has no burden to present anything.

BRUCE:
Right. But I’m – there is no – he’s saying there is no mitigating
circumstances.

THE COURT:
Well, that’s – what I’m saying is you can still find mitigating
circumstances and facts within the case no matter what’s proven.
The burden is on the State. It’s not on Mr. Doskey or Mr. Cuccia
to prove anything to you. They don’t have to do that. You’re
perfectly free to find it on your own. The question is: Is the case
– with this case, under these facts, prevent you from considering
mitigating circumstances in favor of Mr. Brown?

BRUCE:
No. I would always consider mitigating circumstances.

The defense then asked Bruce about having written on his questionnaire: “If this
case concerns the murder of children, since I have two small grandchildren, I would
have no option but to vote for death.” Bruce elaborated:
BRUCE:
Again, that’s telling you that I lean toward death, and you would

98

have to – not you in particular – but the evidence would have to
show me that t here was something – in other words – I don’t
know how to explain this. But if the person that’s being on trial
actually done those things, meaningfully, then I don’t see where
you couldn’t vote for death. However, if there were some things
that come out i n the trial – evidence of whatever nature – that
says something – not necessarily, just evidence or it’s a witness
or whatever, that says something that makes me feel that there
was a reason why he acted that way that wasn’t totally his fault
or whatever the case may be; that he’s still guilty of the crime,
but there may be something in there that – then maybe, I would
consider that differently. But it’s still, you know, children that
can’t defend themselves.

. . . .

DOSKEY:
All right. So the death – let me ask you the question. . . . If you
find somebody guilty of first degree murder, it’s because you
find that he knew what he was doing, he meant to do it, and he
did it.

BRUCE:
Uh-huh. (Affirmative response.)

DOSKEY:
In that situation.

BRUCE:
That’s what I’m telling you. It would have [to] be some pretty
powerful mitigating circumstances.

DOSKEY:
Okay. That we would have to show some mitigation for you to
consider on it.

BRUCE:
Not necessarily you have to show it, but whatever comes out –

DOSKEY:
Okay. I understand now. I understand now.

In denying the defense’s cause challenge against Bruce, the trial court found that
while he was “not always consistent,” he stated that he would consider mitigating
evidence, such that his ability to follow the law as instructed was not substantially
impaired by his views. Given the above, we find the trial court exercised great
caution in this regard and that Bruce was sufficient ly rehabilitated on the issue.
Accordingly, the trial court did not abuse its discr etion in denying the cause

99

challenge, and this claim is without merit.
Michael Eschete. Similarly, Eschete’s responses taken as a whole indicate a
willingness to consider mitigating circumstances toward a life sentence. The
following exchange occurred between the State and Eschete:
MORVANT:
You know, the mom and two kids are brutally killed. The mom
is sexually assaulted. Her daughter is. The place is set on fire.
What we had been talking about, earlier, was that would you still
have an open mind to listen to the mitigating circumstances
before you decided whether you’d vote for the death penalty or
life in prison?

ESCHETE:
Sure.

MORVANT:
You could do that?

ESCHETE:
Yes.

MORVANT:
You could do that?

ESCHETE:
Yes.

MORVANT:
In other words, it would be – I mean, obviously, you’re being
asked to make one of the most decisions [sic] in your life,
probably. So you want to make sure you have all the facts in front
of you and all the information in front of you; am I correct?

ESCHETE:
No doubt.

MORVANT:
All right. So I’m kinda not following, maybe, what you just said
just a few minutes ago.

ESCHETE:
I thought your question was what was our stance on the death
penalty if we were to find him guilty.

MORVANT:
No. Well, it is, to the extent of where you fit in this particular
five-category thing. But a No. 2 would be someone who favors
the death penalty, but can consider life. So you’re telling me
although you may favor the death penalty, you’re gonna still

100

have an open mind –

ESCHETE:
Correct.

MORVANT:
– and listen to the case before you make a decision, and you will
give somebody a life sentence if you think it’s warranted?

ESCHETE:
Yes.
Later, the defense asked Eschete whether he could still consider a life sentence
if no mitigating circumstances appeared from the evidence, and he responded, “I
would think I would lean heavily towards a death penalty, but I can, also, consider
the other options. But I would think I wou ld lean hard towards the death penalty.
But I haven’t experienced this, so I’m not sure how I’d feel when it comes down to
that decision at the time.” When asked if he could still consider a life sentence even
if he found no mitigating circumstances, Esch ete answered, “I would see that as a
possibility, but I would think it would be less of a possibility.” The court then
clarified that the question was not if he found “none,” but whether if none was shown
to him, if this was the “kind of case” that would prevent him from considering
mitigating circumstances, and Eschete said, “No.”
Defendant also argues, as he did in his challenge for cause below, that Eschete
made comments indicating he would base his sentencing decision on an illegitimate
ground, specifically, the financial cost of punishment. When prompted by the State,
Eschete rated himself a two and stated, “I just think it’s the most appropriate sentence
for the crime. And I would think, fiscally, it would probably be more expensive if
he lived to 95.” The following colloquy then took place:
MORVANT:
You mentioned something about “fiscally” just a few minutes
ago.

ESCHETE:
Uh-huh. (Affirmative response).

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MORVANT:
What you meant [sic] by that?

ESCHETE:
Well, as far as if the State proved their case and it was just
undoubtedly as heinous, the death penalty would be a more
fitting sentence, I would think. And, also, as far as the taxpayers,
it would cost them more – and I’m not sure – I don’t know,
fiscally –

MORVANT:
I go t you. Would that be more overriding for you as far as
listening to the evidence and mitigating circumstances on
whether or not you should –

ESCHETE:
Definitely not.

MORVANT:
That’s what I’m getting at.

ESCHETE:
Because I wouldn’t want someone to make that the deciding
factor when they were deciding something about me.

MORVANT:
You wouldn’t.

ESCHETE:
Correct.

MORVANT:
And so you’re being just brutally honest with me and telling me
that’s something you’d be thinking about, the financial part. But
that would not be something that would, if you decided that this
defendant ought to get life in prison, that would not override that
decision. You could give him life in prison, if that’s what you
decided?

ESCHETE:
Correct. Yes.
When later asked by defense counsel whether the cost of life imprisonment was
“going to always be in the back of [his] mind at the very least,” Eschete replied, “I
would think so.”
In denying the defense’s challenge for cause against Eschete, the trial court
found that his views did not substantially impair his ability to follow the law as
instructed. We find the transcript as a whole reflects that the S tate sufficiently

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rehabilitated Eschete’s statements regarding the financial costs of a life sentence
versus the death penalty, and thus, the trial court did not abuse its discretion in
denying the challenge for cause.
Kevin Trosclair. When prompted by the State, Trosclair rated himself a two,
explaining, “I understood your definition of mitigating circumstances, and I’m open
minded.” When the State asked him if he could sit in the penalty phase with an open
mind and give meaningful consideration to mitigating circumstance s, Trosclair
answered affirmatively. Trosclair further indicated that in the event the defense
decided not to present any mitigating evidence, he could still give meaningful
consideration to the evidence in front of him and would not automatically vote fo r
the death penalty. Additionally, when the defense asked him whether he could
consider a life sentence if he found someone guilty of raping and murdering a
woman, raping and murdering a seven-year -old, and murdering a one -year-old, he
responded, “Yeah. B ased upon mitigating circumstances.” When the defense
directly asked him whether they would have the burden of showing mitigating
circumstances, Trosclair said, “Not at all. You don’t have to do nothing.”
In denying the defense’s cause challenge against him, the trial court found that
his feelings in favor of the death penalty did not substantially impair his ability to
follow the law as instructed or to follow his oath. We agree. The totality of
Trosclair’s responses support this finding, and defendant does not show that the
court abused its discretion. Therefore, this assignment of error is without merit.
Assignment of Error No. 21
In this assignment of error, defendant argues the trial court erred in denying
his cause challenges against two venire members, Juanita McMillan and John
Lagarde, on grounds that they would be influenced by their personal relationships
with people involved in this case, forcing the defense to use peremptory strikes on

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both. See La. C.Cr.P. art. 797(3).67
Juanita McMillan. Defendant argues that given the number of people
McMillan knew who were involved in the case, the trial court’s finding that she
would be impartial was unrealistic. McMillan indicated that she knew seven
individuals listed as State witnesses, namely: Lt. Todd Charlet, Capt. Todd Diaz,
Robert “Bud” Dill, Whitney Lirette, Lt. Valerie Martinez, Det. Robert “Bubba”
Trotti, and Sheriff Craig Webre. Specifically, McMillan related that approximately
six years prior, she dated Lt. Charlet —who was involved in defendant’s arrest and
drafted the affidavit in support of the search warrants—for about a year, but assured
the court that this would not c ause her to hold him in higher or lower regard than
anyone else. She further stated that t hey never talked about his work but that she
“kinda knew what cases he was working on” while they were in a relationship.
McMillan also told the court that Capt. Diaz was married to her cousin and
that she knew Dill through Lt. Charlet but that both were acquaintances she rarely
saw and to whom she does not say more than “hello.” She stated that Lirette was
friends with her youngest daughter and that they had sleepovers at McMillan’s house
while they were in high school about three years ago. Furthermore, Ms. McMillan
indicated Lt. Martinez was friends with her oldest daughter and that McMillan had
occasionally met socially with Lt. Martinez herself, the most recent occasion having

67 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 declar es, 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 g rand jury that found the indictment, or on a petit jury
that once tried the defendant for the same or any other offense.

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been a couple of years before. She also provided that she met Det. Trotti when she
worked as a secretary at New York Life 30 years ago, that she became reacquainted
with him while she was dating Lt. Charl et, but that she had not seen him in six or
eight years. Finally, she stated she went to school with Sheriff Webre and sees him
at events but that he is just an acquaintance . When discussing each of these
individuals, the trial court asked McMillan wheth er she would hold them in higher
or lower regard or judge their credibility differently than anyone else, and she
consistently indicated that she would not.
Defendant also notes that McMillan related she knew not only the trial judge
but also district attorney Camille Morvant, who, according to her jury questionnaire,
allowed her to complete a pretrial intervention program for driving under the
influence in 2012. However, McMillan indicated that they were both acquaintances
and this would not influence her at all in the case. Additionally, defendant notes that
McMillian provided on her questionnaire that her ex-husband worked as a bailiff for
the Lafourche Parish Sheriff’s Office, but the record reflects that this issue was not
discussed during voir dire.
While the defense conceded when challenging McMillan for cause that her
answers were “textbook answers for not being disqualified” and that she “may
earnestly believe in her ability that she will not give some preference in some way,
shape, or form to the assessment of this evidence[,]” defense counsel nonetheless
asserted that it would be “unreasonable” to expect her to do so in light of the number
and type of connections she had with people related to the case. In its ruling, the
trial court noted that McMillan dated Lt. Charlet before the offense occurred and has
had no relationship with him since. Furthermore, the court found that while she had
drinks with Lt. Martinez in the past, there was no indication she had discussed the
case with her. The trial court ultimately denied the challenge, concluding that after
observing McMillan’s demeanor and responses, she would be true to her oath, follow

105

the law, and be impartial to both sides.
Our review of the record establishes the same. McMillan repeatedly indicated
she would be fair and impartial, and the trial court was within its discretion to accept
her responses at face value. There is no indication from the record that the nature of
any of these relationships were “such that bias or prejudice may be reasonably
implied.” State v. Lewis, 391 So.2d 1156, 1158 (La. 1980). Thus, we find defendant
shows no error in the trial court’s ruling in this regard.
John Lagarde. When asked by the court whether he knew defendant or any
of his family, Lagarde indicated that he did not. Defense counsel then asked him
whether he had a nephew named Jonas Lagarde, who had a daughter named Madison
who had passed away, and Lagarde confirmed that he did. Defense counsel then
asked Lagarde whether he knew that Madis on’s mother, Braya Brown, was
defendant’s sister, and Lagarde stated that he did not. Defense counsel also asked
him whether there was a “whole controversy between the Brown family and the
Lagarde family” over Madison’s death, and Lagarde stated, “I’m not certain on that.
I don’t have much contact with Jonas.” Lagarde stated that this information would
not affect his ability to serve as a juror and that he would still be fair to both sides.
Out of the hearing of the venire, defense counsel later informed the court that
the relationship between Braya and Jonas “was not a stable relationship” and that
Braya had filed two petitions against Jonas, one to establish paternity for their
daughter and another for protection against abuse. At the urging of defense counsel,
the court questioned Lagarde individually about whether he recalled any additional
details about the relationship, and Lagarde stated that he had met Braya but that he
did not know anything about the nature of their relationship. He further related that
Jonas came to his house a couple of times for Christmas but that he did not “have
contact with Jonas at all – much at all besides that[,]” that Jonas had not been to his
house in about two years and that he had not spoken to Jonas since then. The defense

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then challenged Lagarde for cause . T he trial court denied the challenge, noting
Lagarde’s lack of knowledge about the relationship between Braya and Jonas.68
We find nothing in the record to suggest Lagarde’s relationship with his
nephew woul d have influenced his verdict. To the contrary, his answers
demonstrated that he would be impartial, and the trial court was within its discretion
in taking his answers at face value. Defendant has shown no error in the trial court’s
ruling.
Assignment of Error No. 22
Defendant asserts the trial court erroneously excused two jurors, Curtis
Steward and Wilton Mire, who were qualified and fit to serve.
Curtis Steward. The State challenged Steward for cause, arguing that his
answers were rambling and incoherent and that he did not seem to have a full
understanding of the process. In granting the challenge, the trial court stated that
while Steward’s answers to the court were “concise and controlled[,]” his responses
to counsel for both the State and defendant “were not always formulated in a
coherent manner.” The court also found that Steward “made some good points,” but
that “they were lost in between a lot of other ramblings that didn’t make any sense[,]”
and expressed concern regarding his ability to understand the court’s instructions.69

68 The trial court stated:

My recollection and my notes reflect that he had no knowledge of any issues with
the nephew and Mr. Brown’s family through Braya Brown. He knew that they had
a child together and the child got ill. He just repeated that information. He knows
nothing of their relationship. He has not learned anything or recalled anything in
the four to five weeks he’s been in the process. So, the challenge for Mr. Lagarde
based on relationship to the Brown family, through Joshua – his neph – Jonas, I’m
sorry, his nephew is denied.

69 The trial court’s full oral ruling is as follows:

I have – the Court has observed Mr. Steward personally and throughout his service.
His responses to the questions posed by the Court were concise and controlled. His
responses to questions by counsel for the State and the defense were not always
formulated in a coherent manner.

I will note in observation that he’s actually had the same clothes on that he had
Monday when he was here and held the door open for me as he got here. He had

107

Per La. C.Cr.P. art. 787, a court “may disqualify a prospective petit juror from
service in a particular case when for any reason doubt exists as to the competency of
the prospective juror to serve in the case.” Here, the voir dire transcript reflects that
Steward gave several rambling, incoherent responses suggesting that he was not
mentally competent to serve. We therefore do not find t he trial court abused its
discretion in granting the State’s challenge against him.
Wilton Mire. The trial court excused Mire sua sponte on the basis of his
hearing impairment, as well as the inadequacy of available courtroom equipment to
correct his hearing impairment. The record reflects that Mire asked the deputy clerk
to speak more loudly while administering the oath and twice requested the trial judge
to speak more loudly, telling him on the second occasion, “Sometimes, I can’t quite
understand you.” However, Mire participated in the remainder of voir dire with
counsel without complaining of hearing issues.
The court proposed equipping Mire with a wireless headphone system to
ensure that he could hear the proceedings, but upon testing the system, court staff
and defense counsel discovered that the headphones picked up quiet conversations
at both counsel tables. The trial judge stated that having ob served and interacted
with Mire, he did not believe Mire would be qualified to serve if his hearing
impairment went uncorrected. Finding that the court was incapable of correcting the
impairment without jeopardizing the privacy of off -the-record conversations, the
trial judge proposed discharging Mire. The State proposed trying to correct the issue

the same clothes on yesterday when he appeared for this panel and he’s got the
same clothes on today. And I didn’t understand a lot of what he said. I believe he
lost his train of thought every time he answered a question of any length more than
one time. I believe he did make – he actually made some good points, but it was –
those good points were I don’t know how to say it, but they were lost in between a
lot of other ramblings that didn’t make sense. And I’m not sure about his
explanation of oppression and new world order and those types of things. Those –
I believe that his feelings and his mental processes substantially impair his ability
to follow the law as instructed by the court and to follow his oath. I just don’t think
he would understand the judicial instruction at the end of the case or even at the
beginning of the case and I’m going to grant the State’s challenge for cause.

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with the assistance of a professional, but the court countered that this was “not any
highfalutin kind of operation” as the headphones had been purchased at Be st Buy,
and the court reporter advised that the court’s built -in wired headphone system
would present the same issue. The State further noted that Mire did not appear to
have a problem hearing counsel but only hearing the trial judge when he was not
speaking directly into the microphone.
Both the State and defense objected to Mire’s removal, and the trial court
removed Mire over both objections. Specifically, the defense cited La. C.Cr.P. art.
401.1,70 which requires courts to provide interpreters for veni re members with
hearing loss, but the court noted that there was no indication that Mire understood
sign language. The defense moved for a mistrial in response to the court’s finding
that it was unable to accommodate Mire, and the court denied the motion, finding
La. C.Cr.P. art. 401.1 inapplicable to the situation because Mire required hearing

70 La. C.Cr.P. art. 401.1 provides:

A. When a person with a hearing loss is among the petit jury venire, the court shall:
(1) Provide an interpreter for the deaf prospective juror. The interpreter shall be
sworn in as an officer of the court.
(2) Permit the interpreter to be present and assist a deaf prospective juror during
voir dire.
B. When a deaf or hard of hearing person is summoned for jury duty, the court
shall:
(1) Provide an interpreter for the deaf juror. The interpreter shall be sworn in as an
officer of the court.
(2) Instruct the interpreter, in the presence of the jury, to:
(a) Make true, literal, and complete translations of all testimony and other relevant
colloquy to the deaf juror during the deliberations of the jury.
(b) Refrain from participating in any manner in the deliberations of the jury.
(c) Refrain from having any communications, oral or visual, with any member of
the jury regarding the deliberations of the jury except for literal translations of
jurors' remarks made during deliberations.
(3) Permit the interpreter to be present and assist a deaf juror during the
deliberations of the jury.
(4) Give a special instruction to the interpreter not to disclose any portion of the
deliberations with any person following a verdict.
(5) Direct all costs relating to the interpreting services provided, including
summoning, voir dire process, and empaneling of a juror in all trials, to be paid by
the clerk of court's office through the juror and witness fee account.
C. The verdict of the jury shall be valid notwithstanding the presence of the
interpreter during deliberations.
D. All costs relating to the interpretin g services provided in this Article shall be
paid by the clerk of court's office through the juror and witness fee account.

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assistance as opposed to an interpreter, and the court could not securely provide
hearing assistance. The defense also re-urged its motion for a change of venue, now
on the basis of the court’s inability to accommodate hearing-impaired jurors, and the
court denied the motion without comment.
La. C.Cr.P. art. 401(A)(4) provides that “no person shall be deem ed
incompetent solely because of the loss of hearing in any degree.” However, under
La. C.Cr.P. art. 401(B)(1), a person may be challenged for cause in the event of a
“loss of hearing or the existence of any other incapacity which satisfies the court that
the challenged person is incapable of performing the duties of a juror in the particular
action without prejudice to the substantial rights of the challenging party.” See also
La. C.Cr.P. art. 787 (“The court may disqualify a prospective petit juror from service
in a particular case when for any reason doubt exists as to the competency of the
prospective juror to serve in the case.”). The trial court was presented with a difficult
situation in this instance , and it is evident from the record that it expe nded a
considerable amount of time and effort attempting to correct the issue. The record
also reflects that the decision to discharge Mire was not made lightly but with careful
consideration of potential prejudice to the substantial rights of both parties,
specifically, the attorney-client privilege and the right to conduct off -the-record
discussions out of the hearing of the jury. Accordingly, we find the trial court acted
within its discretion in discharging Mire on this basis, and defendant does not show
reversible error in this regard.
Assignment of Error No. 23
Defendant avers the trial court erred in granting the State’s challenges for
cause ag ainst six jurors with sincerely held religious beliefs in opposition to the
death penalty.
71 He argues that a juror’s vote for a life sentence constitutes an

71 Defendant identifies these jurors as Rebecca Billiot, Phyllis Weems, Anthony Bourgeois, Martha
Robinson, Douglas Bourg, and Susan Arceneaux. Prior to trial, defendant filed a motion to

110

exercise of religion such that the trial court violated the First Amendment and the
Louisiana Religious Freedom Act, R.S. 13:5230 et seq., in granting these challenges.
He also contends that a juror does not violate his oath by being unable or unwilling
to vote for the death penalty.
La. C.Cr.P. art. 798(2) allows for disqualification of a juror based on
conscientious scruples against the infliction of capital punishment. See Note 63,
supra. La. C.Cr.P. art. 798 was drafted to conform to Witherspoon, and this Court
has rejected challenges to its constitutionality as it relates to excluding jurors during
death qualification voir dire. See State v. Odenbaugh, 10-0268, p. 48 (La. 12/6/11),
82 So.3d 215, 248– 49. Moreover, this Court has previously determined that La.
C.Cr.P. art. 798 does not violate prohibitions against religious discrimination.72 As
a result, this assignment of error is without merit.
Assignment of Error No. 24
In this assignment of error, defendant aver s he was denied a jury comprise d
of a fair cross section of his community in violation of his constitutional and
statutory rights.
Defendant filed a Motion to Quash the Venire on September 12, 2016, the day
jury selection began. In said motion, defendant argued that according to the 2015
Census Bureau estimate, Lafourche Parish was 13.9% African- American, and the
venire assembled in this case was 9.6% African-American, resulting in an absolute
disparity of 4.3% and a comparative disparity of 31%. The State responded to this

preserve religious freedom in jury selection and the trial court denied the motion. Defendant also
contemporaneously objected to each of these cause challenges on the basis of religious exclusion.

72 See State v. Turner, 16-1841, p. 90 (La. 12/5/18), 263 So.3d 337, 396; State v. Sanders, 93-0001,
p. 20 (La. 11/30/94), 648 So.2d 1272, 1288 (“[T]he ‘single attitude’ of opposition to the death
penalty ‘does not represent the kind of religious characteristic that underlies those groups that have
been recognized as being distinctive.’”) (inte rnal ellipsis omitted) (quoting State v. Lowenfield,
495 So.2d 1245, 1254 (La. 1985)); see also State v. Robertson, 97-0177, pp. 19–21 (La. 3/4/98),
712 So.2d 8, 25–26 (“It is not the prospective juror’s religion per se which justifies the challenge
for cause but his views on the death penalty, regardless of their source or impetus.”).

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motion on September 19, 2016, arguing that African -Americans were not
underrepresented in the venire and that the jury selection process used in Lafourche
Parish does not result in the underrepresentation of African-Americans. In support,
the State argued that the Lafourche Parish Clerk of Court’s Office draws the names
of potential jurors from a database using vo ter registration rolls and DMV records,
from which it regularly culls former residents who have either moved or passed
away. The State further asserted that it was unclear how the defense determined that
the venire was 9.6% African-American, as neither th e juror information sheets nor
the roll of potential jurors disseminated to counsel contained any designation of race.
The State also pointed out that the defense’s figures were based on juror response as
opposed to juror draw. The S tate argued that the percentage of African -American
jurors drawn was nearly identical to the percentage of African -Americans residing
in Lafourche Parish provided by the defense.73
At the hearing on the motion on September 22, 2016, the defense argued that
the question was not simply whether the draw was appropriate, but whether the
disparity was caused by the manner in which notices were sent to prospective jurors.
It also argued that because a significant number of jurors were excused before they
were due to appear in court, the actual number of African-Americans who responded
to their notices was unclear. The defense maintained that the figures provided in its
motion demonstrated a disparity and argued that the venire should be quashed
because additional time was needed to determine the cause of the disparity.
The trial court denied the motion, finding that the defense failed to make a
prima facie showing of systematic exclusion. The court stated that the percentage
set forth by the defense was “almost a guess” because it did not represent the entire

73 Specifically, the State submitted that according to the company employed by the clerk of court
to assist in jury selection, Grid Information Technologies, LLC, 180 of the then -1,298 total
subpoenas, or 13.867%, had been sent to African-Americans.

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jury pool drawn and that, based on its own observations, it was not convinced that
an underrepresentation of African-Americans existed in the venire present in court.
The court also stated that, while a significant number of people either did not respond
to their notices, requested to be excused, or were determined to be deceased, no
showing had been made that these circumstances resulted in an underrepresentation
of African-Americans in the venire.
Defendant now argues that the trial court erred in denying the motion,
claiming that it did not address the percentages provided in its motion or the
systematic failings of the Lafourche P arish jury summons process and instead
improperly relied on its own observations of African -American juror turnout.
Specifically, he asserts that the court failed to consider “the effect Lafourche Parish
summoning dead and out-of-parish jurors had on the comparative disparity of black
jurors on the venire.”
The selection of a petit jury from a representative cross-section of the community
is an essential component of the Sixth Amendment right to a jury trial. Taylor v.
Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Under La. C.Cr.P.
art. 419(A), “A general venire, grand jury venire, or petit jury venire shall not be set
aside for any reason unless fraud has been practiced, some great wrong committed
that would work irreparable injury to the defendant, or unless persons were
systematically excluded from the venires solely upon the basis of race.” The burden
of proof “rests on defendant to establish purposeful discrimination in the selection
of grand and petit jury venires.” State v. Lee , 559 So.2d 1310, 1313 (La. 1990);
State v. Loyd, 489 So.2d 898, 903 (La. 1986); State v. Liner, 397 So.2d 506, 516 (La.
1981); State v. Manning, 380 So.2d 54, 57 (La. 1980); State v. Sheppard, 350 So.2d
615, 651 (La. 1977). As noted above, Duren v. Misso uri, 439 U.S. 357, 364, 99
S.Ct. 664, 668, 58 L.Ed.2d 579 (1979), provides the following:
In order to establish a prima facie violation of the fair -cross-section

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requirement, the defendant must show (1) that the group alleged to be
excluded is a “distincti ve” group in the community; (2) that the
representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.

Courts typically evaluate the degree of underrepresentation using the
“absolute disparity” measure (the difference in the percentage of the group in the
jury pool and the percentage of the group in the jury -eligible population), the
“comparative disparity” measure (the ratio of the absolute disparity to the distinctive
group’s representation in the jury -eligible population), or a standard deviation
analysis, but have not established a specific qualif ying degree of
underrepresentation. Berghuis v. Smith, 559 U.S. 314, 329, 130 S.Ct. 1382, 1393,
176 L.Ed.2d 249 (2010). Additionally, defendants must demonstrate the mechanism
by which the jury selection process works to systematically exclude the distinct
group and cannot “make out a prima facie case merely by pointing to a host of factors
that, individually or in combination, might contribute to a group’s
underrepresentation.” Id., 559 U.S. at 332, 130 S.Ct. at 1395.
We find defendant does not establish entitlement to relief on this basis.
Nothing in the record suggests that African-Americans were in fact underrepresented
in the venire in this case or that Lafourche Parish systematically excludes this group
in its jury selection process. Defendant does not dispute that Lafourche Parish jury
pools are selected randomly from a combination of voter registration rolls and DMV
records, and he does not demonstrate, or even speculate, how this method of venire
selection would systematically exclude A frican-Americans. While he cite s the
summoning of deceased and non-resident jurors as a potential cause of the alleged
disparity, he provides no explanation as to how this would contribute to the
underrepresentation of African-Americans in particular. Additionally, as defendant
only provides questionable data regarding his own venire, it is impossible to

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determine the proportion of African-Americans represented in Lafourche Parish
venires generally. As such, defendant fails to show “systematic exclusion” of a
distinct group and is therefore not entitled to relief. State v. Turner, 16 -1841 (La.
12/5/18), 263 So.3d 337, 394, reh’g denied (1/30/19); see, e.g., Moore v. Cain, No.
CV 14-0297-JJB-EWD, 2017 WL 4276934, at *8 (M.D. La. Sept. 7, 2017), report
and recommendation adopted, No. CV 14-297-JJB-EWD, 2017 WL 4275903 (M.D.
La. Sept. 26, 2017) (unpub’d) (“The mere fact that one particular jury venire may
exhibit disproportionality does not in any sense amount to proof that the State’s
system of constituting its central jury pool is unconstitutional or leads to the
systematic exclusion of any particular group from the jury-selection process.”).
Miscellaneous Assignments of Error
Assignment of Error No. 25
Defendant asserts the trial court erred in declining to disqualify assistant
district attorney Heather Hendrix. Prior to trial, defendant filed a motion to recuse
assistant district attorney Hendrix, alleging that she was previously employed by a
law firm retained to seek post-conviction relief on behalf of defendant’s brother,
Jason Brown. At the hearing on this motion, the defense submitted an affidavit from
defendant’s mother stating that some time before the instant offenses, she, her
husband, and defendant all met with several staff members from the firm, including
Hendrix, for about 45 minutes to an hour and discussed matters related to Jason’s
conviction, including “family relationships.” The State stipulated to the affidavit,
and the defense stipulated that Hendrix would testify that she had no independent
recollection of the meeting, what was discussed, or who was present, but that
according to a notepad she used at the time, the meeting took place on July 23,

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2012.74 Finding no legal basis upon w hich to disqualify Hendrix, the trial court
denied the motion.
Defendant argues that his trial counsel had planned to call both his mother and
Jason as penalty phase witnesses and that Jason’s testimony would have been
“necessary and expected as evidence in mitigation of sentence” because they were
exposed to the same adverse factors as children. Defendant contends that the
information Hendrix learned about his family through her representation of Jason
gave the State an unfair advantage in penalty phase investigation and preparation.
Defendant relies generally on La. C.Cr.P. art. 680, which provides mandatory
grounds for recusal of a district attorney.75 The defendant has the burden of proving
grounds for recusal by a preponderance of the evidence. State v. Bourque, 622 So.2d
198, 216 –17 (La. 1993). While the burden of proof remains the same for
disqualification of an assistant district attorney, “the grounds for disqualification are
not necessarily restricted to the statutory grounds to recuse a district attorney as set
forth in La. C.Cr.P. art. 680.” Id., 622 So.2d at 217.
Here, defendant does not argue or show that any of the grounds set forth in
La. C.Cr.P. art. 680 were present, nor does it appear that disqualification was
otherwise warranted. Accordingly, this assignment of error is without merit. We
also note defendant does not dispute that Hendrix did not recall what was discussed

74In its memorandum in opposition to the motion, the State alleged that the sole claim set forth in
Jason’s application for post-conviction relief was ineffective assistance of trial counsel and argued
that discussing such a claim would not necessitate the disclosure of confidential family matters.

75 Per La. C.Cr.P. art. 680:

A district attorney shall be recused when he:
(1) Has a personal interest in the cause or grand jury proceeding which is in conflict
with fair and impartial administration of justice;
(2) Is related to the party accused or to the party injured, or to the spouse of the
accused or party injured, or to a party who is a focus of a grand jury investigation,
to such an extent that it may appreciably influence him in the performance of the
duties of his office; or
(3) Has been employed or consulted in the case as attorney for the defendant before
his election or appointment as district attorney.

116

during the meeting and, beyond the vague assertion that “family relationships” were
discussed, he does not articulate any specific topics discussed or information
disclosed. The trial court therefore properly denied the motion.
Assignment of Error No. 26
In this assignment of error, defendant argues that the indictment filed against
him was constitutionally defective in that it failed to demonstrate on its face that the
grand jury considered, found, or concurred on any aggravating circumstances. 76
Specifically, he asserts that the indictment does not specify which underlying
felonies, if any, were found under R.S. 14:30(A)(1)77 and, further, that because all
three counts contain multiple aggravating circumstances phrased in the alternative
(“and/or”), it is unclear whether the requisite number of jurors concurred on any
individual aggravating circumstance.
As an initial matter, La. C.Cr.P. art. 465 authorizes the use of specific short
form indictments in charging certain offe nses, including first degree murder. The
constitutionality of the short form indictment has been consistently upheld by this
Court. State v. Draughn, 05-1825, p. 61 (La. 1/17/07), 950 So.2d 583, 624; State v.
Baylis, 388 So.2d 713, 718– 19 (La. 1980); State v. Liner , 373 So.2d 121, 122 (La.
1979); see also Schad v. Arizona, 501 U.S. 624, 631–37, 111 S.Ct. 2491, 2496–2500,
115 L.Ed.2d 555 (1991) (indictments are not required to specify which overt act was
the means by which a crime was committed). When those forms are used, a
defendant may procure details as to the statutory method by which he committed the
offense through a bill of particulars. Baylis, 388 So.2d at 719; State v. Johnson, 365
So.2d 1267, 1270–71 (La. 1978); La. C.Cr.P. art. 465 Official Revision Comment
(a).

76 The defense filed a motion to quash the indictment on this basis, which the trial court denied.

77 Notably, the S tate filed an answer to defendant’s bill of particulars, as well as an amended
answer, providing the underlying felonies alleged under R.S. 14:30(A)(1).

117

In this instance, the bill of indictment lists the following charges:
COUNT 1 – committed first degree murder of Jacqueline Nieves, in
violation of R.S. 14:30(A)(1) and/or (A)(3)
COUNT 2 – committed first degree murder of Gabriela Nieves, in
violation of R.S. 14:30(A)(1) and/or (A)(3) and/or (A)(5)
COUNT 3 – committed first degree murder of Izabela Nieves, in
violation of R.S. 14:30(A)(1) and/or (A)(3) and/or (A)(5)[.]

Even omitting the aggravated factors provided, defendant was properly charged in
compliance with La. C.Cr.P. art. 465(31), which provides “A.B. committed first
degree murder of C.D.” as a short form indictment for first degree murder.
Accordingly, we find this claim to be without merit.
Assignment of Error No. 30
In his final assignment of error , defendant argues that cumulative error
deprived him of due process, a fair trial, and a reliable sentencing determination in
violation of his rights under the United States and Louisiana Constitutions. This
Court has held “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.” State v. Copeland, 530 So.2d 526, 544 –45 (La. 1988), quoting State v.
Graham, 422 So.2d 123, 137 (La. 1982), appeal dismissed, 461 U.S. 950, 103 S.Ct.
2419, 77 L.Ed.2d 1309 (1983). 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 reac h the level
of reversible error. See, e.g., State v. Strickland, 93-0001, pp. 51–52 (La. 11/1/96),
683 So.2d 218, 239; State v. Taylor, 93-2201 (La. 2/28/96), 669 So.2d 364 (unpub’d
app’x.); State v. Tart , 94 -0025, p. 55 (La. 2/9/96), 672 So.2d 116, 164; State v.
Copeland, 530 So.2d 526, 544 –45 (La. 1988) (citing State v. Graham, 422 So.2d
123, 137 (La. 1982); State v. Sheppard, 350 So.2d 615, 651 (La. 1977)). Other courts
treating the issue have reached the same conclusion. See, e.g., Mullen v. Blackburn,
808 F.2d 1143, 1147 (5th Cir. 1987) (court rejects cumulative error claim and finds

118

that “twenty times zero equals zero”); Foster v. State, 639 So.2d 1263, 1303 (Miss.
1994) (finding no “near errors” and so rejecting cumulative error analysis). We find
no merit to this assignment of error.
CONCLUSION
For the reasons set forth herein, de fendant’s convictions for first degree
murder are affirmed. Defendant’s sentences of death are vacated and set aside, and
the case is remanded to the trial court for further proceedings.
CONVICTIONS AFFIRMED; DEATH SENTENCES REVERSED; CASE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.

09/30/21
S
UPREME COURT OF LOUISIANA
No
. 2018-KA-01999
STA
TE OF LOUISIANA
VS.
DAVID H. BROWN
O
n Appeal from the 17th Judicial District Court, Parish of Lafourche
H
ughes, J., additionally concurs with reasons.
While I do not agree with all rulings made by the trial court, error if any I
would find harmless.

09/30/21
S
UPREME COURT OF LOUISIANA
N
o. 2018-KA-01999
STA
TE OF LOUISIANA
ve
rsus
DAVI
D H. BROWN
O
N APPEAL FROM THE SEVENTEENTH JUDICIAL
DISTRICT COURT, PARISH OF LAFOURCHE
Crichton, J., additionally concurs and assigns reasons:
F
or nearly three years, the underlying attorney-client conflict concerning the
scope of defendant’s penalty phase mitigation evidence was brewing and yet
remained unresolved until the seventh week of trial. The dispute was never about
the client’s desire to self-represent; in fact, defendant was unequivocal that he did
not know how to represent himself and would prefer not to do so. A classic Hobson’s
choice was established – an illusion of choice of either (1) the defense team solely
determining what witnesses and subject matter would be presented ; or (2) self-
representation despite the defendant’s professed lack of ability or preference to do
so. As a result of that incomplete and thus inaccurate set of choices – and by default
– this capital defendant announced his intention to present no penalty phase opening
statement, no cross-examination of the State’s witnesses, no objections to whatever
evidence the State wished to presen t, no mitigation evidence , and no closing
argument. In my view, this capital defendant was effectively abandoned minutes
before the penalty phase of the trial commenced.
Recognizing both the complexity and sensitivity of this legal issue, it would

2

have been well suited for pre-trial resolution in a closed hearing; however, no such
request was ever made, and a ruling from the court was never requested. H ad this
issue been addressed beforehand, the parties and the court would have had the
benefit of a studied consideration of the legal issues and pretrial appellate review.
Such a process could have prevented the serious constitutional violation in this case.
Instead, on the seventh week of trial, with a sequestered jury of citizens waiting
outside the courtroom, the conflict was for the first time disclosed to the judge and
prosecutor with no motion, no memoranda of law and without the solutions set forth
by jurisprudence.1 Noting that he only had “minutes notice” and a dmitting that he
was “kinda muddy on the law and how to proceed” the trial judge told the district
attorney to stand down ( “you (the district attorney) can be here and observe, but
that’s it”). A lthough the judge requested overnight memoranda , the issue was
wrongly framed from the outset, and any alleged waiver of counsel the next day was
thus vitiated by the erroneous framing of the legal issue and incorrect legal
instruction to the defendant .2 In fact, on the morning of the Faretta hearing, the

1 In my opinion, the conduct of defendant’s trial counsel (of the Capital Defense Project of
Southeast Louisiana) leading up to and during the Faretta hearing falls short of a capital trial
lawyer’s obligation “to continue to represent the client” after a defendant seeks to proceed without
counsel. LAC 22:XV.Chapter 9 § 911(G)(1). This obligation includes “investigating the
competency of the client; the capacity of the client to knowingly, voluntarily and intelligently
waive the right to the assistance of cou nsel; [ ] the capacity of the client t o engage in self -
representation;” the obligation, where appropriate, to “oppose the defendant’s motion;” and the
obligation, where appropriate, to “seek review of a trial court decision granting a capital
defendant’s motion for self-representation.” Id. This failure is notably in stark contrast with the
representation by defendant’s appellate counsel (of the Capital Appeals P roject) who ha ve
effectively cited in the present appeal to this Court numerous cases addressi ng the defendant’s
right to direct counsel to limit the presentation of mitigation evidence in the penalty phase of trial.
2 Because defense counsel improperly framed the issue , the trial court did not expressly rule on
defendant’s constitutional right to direct his counsel. Once the trial court granted defendant’s
request to proceed pro se , however, counsel should have requested a stay and applied for
emergency writs, whereupon the appellate court and/or this Court could have addressed this issue
and prevented nullification of the subsequent proceedings because of disagreement with the trial
court’s ruling. Hon. Albert Tate, Jr., Supervisory Powers of the Louisiana Courts of Appeal , 38
T
UL. L. REV. 429, 435 (1963- 1964) (noting supervisory relief is justified where “harsh results,
irreparable injury or arbitrary trial action cannot be avoided by ordinary appellate remedies” and
“the trial court ordinarily should, upon request, stay further proceedings or execution of an order
or judgment when necessary to preserve the factual status quo and to afford the complaining party

3

defense team submitted a motion to withdraw, possibly on a mistaken belief that the
court had requested such a motion. With no representation by counsel and true to
his word, defendant took no action during the penalty phase.
Given the Hobson’s choice, from that poi nt forward, this capital defendant
was unrepresented by his previously appointed certified defense team ,3 but it is
difficult to conclude that he was voluntarily self -represented (“I don’t think I can
question a witness…I just don’t have – emotionally, I don’t know how to question
somebody – you know what I’m saying – in a situation like this”). The defendant
presented nothing, and the jury unanimously recommended the death penalty.
To be licensed to practice law in the State of Louisiana, every lawyer must
take an oath in which he or she swears or affirms to support the Constitution of the
United States, the Constitution of the State of Louisiana and to maintain the respect
due to courts of justice and judicial officers. All attorneys who practice law in this
jurisdiction must comply with our Rules of Professional Conduct, and the Louisiana
Public Defender Board Capital Defense Guidelines specifically mandate that
certified counsel in capital cases “comply with the Louisiana Rules of Professional
Conduct.”
4
As the majority opinion finds, t he Sixth Amendment of the United States

a reasonable opportunity to secure supervisory review.”).
3 The extensive certification procedures and requirements appear in Louisiana Public Defender
Board Capital Defense Guidelines, LAC 22:XV.Chapter 9. Requirements for certification as lead
capital counsel include, but are not limited to, five years of experience in criminal practice and
participation as lead counsel in a number of complete felony criminal trials. The Board may
consider participation in capital cases, and the case’s result or verdict, when determining whether
to certify an attorney.
4 See Louisiana Public Defender Board Capital Defense Gu idelines, LAC 22:XV.Chapter 9
§ 915(I)(1)(b); see also LAC 22:XV.Chapter 9 § 903(C)(1) (“All elements of the Capital
Representation Plan should be structured to ensure that counsel defending death penalty cases are
able to do so…under conditions that enable them to provide zealous advocacy in accordance with
the Louisiana Rules of Professional Conduct.”) . W hen applying for certification, counsel must
attest that they will comply with the guidelines as well as the other continuing obl igations for
certified counsel. LAC 22:XV.Chapter 9 § 915(C)(3)(g).

4

Constitution and Louisiana Constitution Article I §13 compel this Court to set aside
the death sentence and remand the case for a new penalty phase hearing. In addition
to noting my bewilderment as to these troubling circumstances, I write separately to
hypothesize what issues might arise if an unscrupulous and unprofessional attorney
were to view this opinion as a blueprint for sowing reversible error in the penalty
phase of a capital trial.
Specifically, if hypothetical counsel makes a strategic decision to wait several
years until a sequestered jury trial is well underway to bring to a trial court’s attention
a fundamental rift with the client, might Rule 1.3 Diligence (“A lawyer shall act with
reasonable diligence and promptness in representing a client”) , Rule 1.4(a)(2)
Communication (“A lawyer shall reasonably consult with the client about the means
by which the client’s objectives are to be accomplished”), Rule 3.5(d) Impartial ity
and Decorum of the Tribunal (“ A lawyer shall not engage in conduct intended to
disrupt a tribunal”), and Rule 8.4(d) Misconduct (“It is professional misconduct for
a lawyer to engage in conduct that is prejudicial to the administration of justice”) be
implicated?
Assuming future capital counsel claims to not know of the holding in this case,
other Louisiana jurisprudence, or persuasive and applicable jurisprudence on the
issue from other S tates, might Rule 1.1(a) (“ Competence [involves], the legal
knowledge, skill, thoroughness and preparation”) be implicated? Of particular
concern, would Rule 3.3(a)(2) (“A lawyer shall not knowingly fail to disclose to the
tribunal legal authority in the controlling jurisdiction known to the lawyer to be
directly adverse…”) be implicated? That duty would surely include knowledge of
the holding of this case, the holdings of State v Felde, 422 So.2d 370 (La. 1982), and
State v Bordelon, 07-0525 (La. 10/16/09), 33 So.3d 842, as well as the persuasive

5

cases from other states cited in the majority opinion.
If counsel finds himself deadlocked with a client over scope of representation
issues concerning the penalty phase , should counsel consider Rule 1.2 Scope of
Representation and Allocation of Authority between Client and Lawyer (“[A] lawyer
shall abide by a client’s decisions concerning the objectives of representation, and,
as required by Rule 1.4, shall consult with the client as to the means by which they
are to be pursued”) or Rule 1.16(b)(1),(4); (c) and (d) (Dec lining or Terminating
Representation)?
If, in the future, the capital defense team mistakenly informs a client of only
two options – accept counsel’s absolute control over the penalty phase presentation
or forego the assistance of counsel entirely – a judge can correct counsel’s
misunderstanding of the law and prevent reversible error. Moreover, judges should
certainly consider the wisdom, or lack thereof, of ordering the prosecutor, a party to
the case, to remain a mute observer, as the judge did here.
Ultimately, though, a judge is in the best position to make a proper ruling
when both the prosecutor and defense properly identify and brief an issue to the
court. As I have previously recognized, a prosecutor's responsibility is as “a minister
of justice and not simply that of an advocate.” State ex rel. Morgan v. State, 15-100
(La. 10/19/16), 217 So. 3d 266, 277- 78 (Crichton, J., additionally concurring)
(internal quotations omitted) . Remaining inert is not a choice. Even though
blindsided, might the prosecutor request a definitive ruling from the court,
contemporaneously object, request a stay and file a n emergency writ for the
appellate court to consider, all in an effort to safeguard rights of the victims’ family,
the constitutional rights of the defendant and, generally, to protect the record?
As for defense counsel, in State v Wigley , 624 So.2d 425 (La. 1993), then

6

Louisiana Supreme Court Associate Justice Dennis wrote : “Representing a
defendant who faces execution is the most awesome responsibil ity an attorney will
undertake in his professional career .” That is undoubtedly true. However , in
discharging that most awesome responsibility , appointed capital defen se counsel
must comply with his or her oath as a lawyer , the Rules of Professional Conduct,
and – if hired and certified by the Louisiana Public Defender Board (a state agency
within the Office of the Governor) – the Louisiana Public Defender Board Capital
Defense Guidelines . Notably, those guidelines include the Board’s mission to
“protect the public by continually improving the services guaranteed by the
constitutional right to counsel.” The honor and privilege to practice law requires it
and our system of justice demands no less.

SUPREME COURT OF LOUISIANA
No. 2018-KA-01999
STATE OF LOUISIANA
VS.
DAVID H. BROWN
On Appeal from the 17th Judicial District Court, Parish of Lafourche
McCallum, J., additionally concurs with reasons.
I join in the opinion of the majority and also the concurrin g comments of
Justice Crichton. I write separately to offer various points that may be worthy of
further consideration.
A unanimous jury found the defendant guilty of first degree m urder. This
Court has affirmed his guilty verdict. The jury also unanimously determined that
the death penalty was appropriate for this defendant, due, no doubt, to the
particularly odious and heinous nature of the crimes. However, because of a fatal
defect in the conduct of the penalty phase of the trial , and the associated
constitutional implications, this Court has no choice but to set aside the death penalty
and remand for a new penalty hearing. Thus, the hard work and time expended by
the jury has been wasted. Worse yet, the family and friends of the victims are now
subjected to uncertainty as to whether appropriate punishment wi ll be meted out to
one who appears so deserving of the maximum sanction that can be provided under
the criminal law of the state. They also will undoubtedly have further anxiety
attendant to the prospect of enduring another trial on the penalty phase in this case.
Such is the nature of the constitutional right involved in this c ase that if this Court
does not act now the family and friends will only be subjected to excessive, further
delay before some future court would take the action we now take. Such delay would
09/30/21

2

compound the effects of the procedural deficiencies herein and deny the victims’
families the justice which is due them. It is best to discharge our unpleasant duty
now and send the matter back to the trial court while the evidence is still fresh. This
will allow the defendant to be subjected to a penalty verdict, whatever that may be,
that will withstand all future constitutional attacks.
Certain comments of the defendant’s appellate counsel, during oral argument,
have attracted my attention. First, Ms. Kappel stated that defendant’s death penalty
certified trial counsel provided incorrect legal advice to him when advising him
concerning his options as to his right to an attorney at the penalty phase of the
proceedings. Ms. Kappel further hinted that she thought there had been a violation
of the Rules of Professional Conduct in that regard. The inferences that might
logically be drawn from these comments, considering the advanced and specialized
training required of attorneys who are certified to handle capital cases, are troubling.
An examination of various recent capital murder cases reveals a potential, disturbing
pattern. It may very well be that some in our profession, who oppose the imposition
of the death penalty in any circumstance, are resorting to any means to derail capital
prosecutions. This “the ends justifies the m eans” approach is not ethically
permissible. Deliberate procedural sabotage is not a legitimate trial strategy.
I need not impute any ill motives to trial counsel in this case to make the point
that if such conduct were to occur, it would be sub ject to disciplinary sanctions.
Those who oppose capital punishment have many legitimate methods at their
disposal to wage their fight in the political arena. However, it must be made clear
that unprofessional conduct in the trial of a case, especially a capital offense , is
neither appropriate nor acceptable. This issue deserves this Court’s closest scrutiny
in the future.

1
09/30/21
S
UPREME COURT OF LOUISIANA
No
. 2018-KA-01999
S
TATE OF LOUISIANA
VS.
DAVID H. BROWN
O
n Appeal from the 17th Judicial District Court, Parish of Lafourche
KN
OLL, J., dissenting in part*
With all due respect, I dissent in part from the majority opinion finding fundamental
error by the District Court, which allowed defendant David H. Brown to represent himself
on the issue of mitigation evidence during the penalty phase. In all other respects, I agree
with the majority opinion.
In my view, I find the majority opinion is flawed for several reasons. To begin with,
in reversing the penalty phase it finds structural error. I disagree. Indeed, I do not concede
there was any error, but in arguendo, the alleged error would be harmless error under the
circumstances of this case because the record clearly supports defendant intelligently and
voluntarily waived the benefit of counsel. Defendant clearly did not want to present any
mitigating evidence. As the record shows:
David Brown: That’s correct, Your Honor. Right now, I’d like to waive
counsel and represent myself from here on out in the penalty phase.
T
ranscript of closed hearing conducted on October 31, 2016, p. 3.
The Court: When did you come up – when did you come to this decision?
Da
vid Brown: I came to this decision years ago. I’ve discussed this with Mr.
Doskey. And I told him if we got to this phase, my feelings on it. I don’t know
if Mr. Doskey had thought, maybe, by then I w ould change my mind or he
would be able to talk me out of it somehow. I’m not going to allow my mother
to get on the stand and be portrayed as a whore, as a slut, as a rape victim from
her father, from her brothers. I will not do it.
* Retired Justice Jeannette Theriot Knoll, appointed as Justice ad hoc, sitting for Weimer, C.J., recused
i
n case number 2018-KA-1999 only.

2

What I will do is ask to represent myself. I will offer no mitigation, because
the Defense has – I don’t have an obligation to put up any evidence, any
mitigating evidence. Defense is going to hear the State’s case and then the
Defense is going to rest. That is my plan, Your Honor. I understand the law.
I understand what I’m obligated to do and my rights.

Id., p. 4 (emphasis added).
David Brown: Right. Well, if this makes this any better, Your Honor, how
about if I just agree to accept death? You okay with that, Mr. Morvant?

Id., pp. 5–6.
David Brown: Okay. I believe, with the strategy that I’m taking, I understand
the law, and I’m just – I’m offering no defense.

Id., p. 7 (emphasis added).
David Brown: Well, Your Honor, this is my understanding of it. My
understanding, through the Witherspoon process that we – you know, many
weeks – is that I’m not obligated to put up a defense in mitigation. That I have
to show no evidence. That the jurors have to consider both sides regardless if
I produce any evidence.

Transcript of the closed Faretta hearing conducted on November 1, 2016, p. 10.
The Court: Okay. But the thing about self -representation is you can’t have it
halfway.

David Brown: Well, this is my plan, Your Honor. My plan is being the law
states that I have not – I don’t have to put any defense up, I’m going to rest
all through the process.

Id., p. 11 (emphasis added).
The Court: And [the jurors] have told us that they would [consider all
mitigating evidence.] But if it’s not shown to them, it makes it a little difficult
to find it. That’s your risk if you choose it.

David Brown: Yes, sir. I just feel this is the decision I have to make to protect
my mother, and whatever consequences I have to suffer I’m willing to take
that.

The Court: Are you refusing to allow the Capital Defense team to represent
you?

David Brown: I think the disagreement we have, yes, I would ask them to
stand down.

Id., p. 13.
The Court: It’s not a question of whether – at least part of my decision is not
whether I think you have the legal capabilities to do this, whether you have

3

the legal understanding, but whether you’re doing this with a clear mind –
whether you understand.

David Brown: Well, I understand the consequences I’m facing. I don’t know
if you understand the reasons that I’m doing it for. That’s – and I know I’m
not capable of asking the questions that need to be asked like Mr. Doskey
would be doing, and I recognize that.

Id., p. 14.
The Court: I think it’s a foolish decision.

David Brown: I agree with you, in a sense. I agree with you. But it’s my
decision, and I believe protecting my mother and her past instead of dragging
her through this for something she might not be able to shake off after this is
the greater of the two evils. That’s my personal opinion about it.

Id., pp. 14–15.
Defendant’s disagreement with his defense team is a non sequitur. Defendant
intelligently and voluntarily wanted to discharge his defense team and represent himself.
He did not want to present any evidence in mitigation. The record shows the District Court
clearly told defendant he could call witnesses:
The Court: Well, so let me get – I don’t necessarily have to know your
strategy, although, it is good to know. That’s part of – that’s going to be part
of what I base my decision on, that you have a strategy. But if you’re allowed
– if I allow you to represent yourself, you can’t change your mind and say,
“Well, I want Mr. Doskey to call some of the witnesses and not all of the
witnesses.”

. . .

The Court: Because if he’s representing you, he’s calling them.

. . .

The Court: But what I’m telling you is you can still call other witnesses if you
wish to.

Transcript of the closed Faretta hearing conducted on November 1, 2016, p. 11 (emphasis
added).
The Court: It’s your time to call, you can call whatever witnesses you want,
because they’re under subpoena and they’re here.

Id., p. 13.
David Brown: Well, I understand the consequences I’m facing. . . .

4

The Court: But you can still ask questions.

Mr. Brown: Sure. Sure. I can still ask questions. But that’s why I’ve made the
decision to just rest and protect my mother. . . .

Id., p. 14.
The Court: Mr. Doskey.

Mr. Doskey: Yes, Your Honor.

The Court: The witnesses that you have, are they all available that you’ve
lined up?

. . .

The Court: The reason I asked him for that recitation, Mr. Brown, is I want
you to understand what’s available for you through their actions. . . . And you
have th e option, whether they represent you or not, to call all of those
witnesses. . . .

Id., pp. 15–16.
Although the majority opinion states “the trial court erroneously advised defendant he
could not direct his counsel to limit the mitigation evidence presented during the penalty
phase,” it was counsel who explained to defendant that “the only way to prevent [counsel
from calling defendant’s mother and uncle to testify during the penalty phase] is if
[defendant] decides that he wants to discharge us.” Transcript of closed hearing conducted
on October 31, 2016, p. 3. I see nowhere in the record where the District Court erroneously
advised the defendant, and therefore I find no District Court error that would justify
reversing the jury’s determinations in the penalty phase and resulting sentence.
Notably the disagreement between defendant and his defense team did not occur
during the defense of defendant, but in mitigation of his violent conduct after he was found
guilty by the jury. The mitigation phase is in the nature of a plea for mercy or for the jury’s
sympathetic understanding for defendant’s violent conduct. See generally California v.
Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987) (“Consideration of
such [compassionate factors] is a ‘constitutionally indispensable part of the process of
inflicting the penalty of death.’”) (quoting Woodson v. North Carolina, 428 U.S. 280, 304,
96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) ). Defendant was not deprived of conducting

5

his own mitigation strategy. He vehemently chose to present no mitigation evidence in an
abundance of caution to protect his mother.
The majority’s reliance on McCoy v. Louisiana, 584 U.S. ___, 138 S.Ct. 1500, 1508–
09, 200 L.Ed.2d 821 (2018) to reverse the penalty phase is misplaced. As the opinion
correctly states “When later interpreting this decision, the Court opined that it is “broadly
written and focuses on a defendant’s autonomy to choose the objective of his defense .”
State v. Horn, 16-0559, p. 10 (La.9/7/18), 251 So.3d 1069, 1075.” McCoy stands for the
principal of “defendant’s autonomy to choose the objective of his defense.” The mitigation
phase is not in defense of defendant, but rather a plea for sympathetic understanding. The
McCoy case concerns the defense of the defendant during the guilt phase, not the penalty
phase.
Furthermore, even if the holding of McCoy was extended to the penalty phase of a
capital trial, the record establishes that, defendant’s fundamental strategy of the
representation was to protect his mother. The record shows the defendant would rather die
than expose his mother and Uncle Calvin to relive their painful sexual past experiences in
a public trial of record. Notably, defendant felt so strong in his position on this issue he
expressed it three times:
David Brown: Right. Well, if this makes this any better, Your Honor, how
about if I just agree to accept death? You okay with that, Mr. Morvant?

Transcript of closed hearing conducted on October 31, 2016, pp. 5–6.
David Brown: Because there’s some – there’s stuff that’s in the past that I
believe should stay in the past. And it took my mother many, many years to
get over this. And to be drug back out, put in the newspaper – like I told you,
I’m willing to accept death before I let my mother get on the stand. So if y’all
agree, I agree –

Transcript of the closed Faretta hearing conducted on November 1, 2016, p. 9.
David Brown: Yes, sir. I just feel this is the decision I have to make to protect
my mother, and whatever consequences I have to suffer I’m willing to take
that.

Id., p. 13.

6

Further, the disagreement between defend ant and his defense team at the penalty
phase concerns strategy – how best to arouse the sympathy of the jury in understanding his
violent sexual conduct he inflicted upon three victims. In my view, this issue is purely one
of strategy and does not concern a violation of a fundamental right which would cause
reversible error. Even if McCoy applies, while by its own language it certainly does not,
McCoy delineated between matters of strategy and fundamental objectives of the
representation:
. . . Trial management is the lawyer’s province: Counsel provides his or her
assistance by making decisions such as “what arguments to pursue, what
evidentiary objections to raise, and what agreements to conclude regarding
the admission of evidence.” Gonzalez v. United States, 553 U.S. 242, 248, 128
S.Ct. 1765, 170 L.Ed.2d 616 (2008) (internal quotation marks and citations
omitted). Some decisions, however, are reserved for the client —notably,
whether to plead guilty, waive the right to a jury trial, testify in one’s own
behalf, and forgo an appeal. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct.
3308, 77 L.Ed.2d 987 (1983).
Autonomy to decide that the objective of the defense is to assert
innocence belongs in this latter category. Just as a defendant may steadfastly
refuse to plead guilty in the face of overwhelming evidence against her, or
reject the assistance of legal counsel despite the defendant’s own inexperience
and lack of professional qualifications, so may she insist on maintaining her
innocence at the guilt phase of a capital trial. These are not strategic choices
about how best to achieve a client’s objectives; they are choices about what
the client’s objectives in fact are. See Weaver v. Massachusetts, 582 U.S. ––
––, ––––, 137 S.Ct. 1899, 1908, 198 L.Ed.2d 420 (2017) (self-representation
will often increase the likelihood of an unfavorable outcome but “is based on
the fundamental legal principle that a defendant must be allowed to make his
own choices about the proper way to protect his own liberty”); Martinez v.
Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 165, 120 S.Ct.
684, 145 L.Ed.2d 597 (2000) (Scalia, J., concurring in judgment) (“Our
system of laws generally presumes that the criminal defendant, after being
fully informed, knows his own best interests and does not need them dictated
by the State.”).
McCoy, 584 U.S. at ___, 138 S.Ct. at 1507–1508 (emphasis in original). Furthermore, this
Court has previously described counsel’s “attempt to persuade the jury to spare defendant’s
life” by using “the testimony of defendant’s father” as part of the case in mitigation during
the penalty phase of a capital trial as a matter of “strategy.” State v. Taylor, 01-1638, p. 27
(La. 1/14/03), 838 So.2d 729, 751. McCoy offers no reason to alter that longstanding view
or reach a different conclusion here.

7

In arguendo, if this strategy decision is considered structural error, it would be
harmless error. Before the alleged structural error is worthy of reversible error, defendant
must show prejudice to the extent of a reasonable possibility of a different outcome. The
United States Supreme Court has determined that structural errors fall within “at least three
broad rationales.” Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S.Ct. 1899, 1908, 198
L.Ed.2d 420 (2017). The Court further observed that the categories of structural error are
not mutually exclusive before emphasizing that not all structural errors result in
fundamental unfairness or an unreliable verdict. Id. Thus, the Court proceeded to find that,
when counsel failed to object to the violation of a right to a public trial (a structural error),
a defendant claiming that failure am ounted to ineffective assistance may still be required
to show prejudice resulted from the error under the second prong of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Weaver , 582 U.S. at
___, 137 S.Ct. at 1911. Even accepting that the error here was structural, I do not believe
the result is fundamentally unfair or unreliable. Defendant does not argue the alleged error
would produce a different outcome and indeed the record evidence shows no support for a
different outcome.
Further error by the majority concerns disregarding t he jury rendered a specific
verdict that defendant committed the offenses in an especially heinous, atrocious, or cruel
manner. And indeed he did, as the record shows. Defendant did not know his victims. No
motive was established other than his pure violent sexual lust. Eighteen (18) month old
Izabela suffered multiple stab wounds to her chest and abdomen. Seven (7) year old
Gabriela suffered multiple stab wounds, including a stab wound penetrating her skull and
brain. The record would allow the jury to determine that she was raped vaginally, anally,
and orally, and died a slow death from smoke inhalation while suffering pain from her
wounds. Their mother Jacquelin also suffered multiple stab wounds abo ut her body to
include her vagina and anal area. The stab wound to her collarbone was fatal. The record
would allow the jury to determine that s he too was raped vaginally, anally and orally.

8

Before defendant left, he poured gasoline around the room and sta rted a fire, leaving his
victims to die and burn.
This particular verdict by the jury of heinous and atrocious criminal conduct was
well supported by the record. A sequestered jury of twelve made this determination after
listening to a week of trial test imonies and evidence . This particular jury verdict
undermines any case in mitigation seeking compassion or mercy for defendant’s violent
criminal conduct. By setting aside the penalty phase, the majority opinion gives no
deference to the jury verdict. In my view, the majority opinion errs in setting aside this jury
verdict without requiring defendant to show a prejudicial error resulting in a reasonable
probability of a different outcome. Cf. United States v. Castro-Alfonso, 841 F.3d 292, 298
(5th Cir. 2016) (“In the instant case, the district judge did not ‘beat around the bush’ or
equivocate in delivering the court’s decision at the sentencing hearing. . . . We take the
district court at its clear and plain word.”).
It is so well established the Sixth Amendment right to have assistance of counsel can
be waived, that it is not necessary to recite case law. Noticeably the majority opinion does
not find defendant did not have the intelligence and capability to understand he was
waiving benefit of counsel, and the consequences of his waiver of counsel, and the record
would not support such a finding . Rather, the majority opinion finds the District Court’s
failure to inform defendant he could limit his counsel’s mitigation evidence deprived
defendant from intelligently waiving counsel. I disagree. The record clearly shows the
defendant was intelligent and clearly understood the legal proceedings going on. Moreover,
the District Court clearly explained to defendant that he could call any witness he w anted
to. Still, the defendant insisted he did not want to put on any mitigation evidence. The
present case is similar to State v. Bordelon , 07 -0525 (La. 10/16/09), 33 So.3d 842. In
Bordelon, defendant instructed his attorney to present no case in mitigati on at the penalty
phase after he was found guilty of the first degree murder of his twelve -year-old
stepdaughter. The majority quotes from Bordelon so I will not reproduce that excerpt here.

9

However, I note this court in Bordelon , in the context of determi ning that defendant’s
decision to not present evidence during the penalty phase did not interject an arbitrary
factor into the proceedings, stated:
In the present case, as Felde , there is clear and convincing evidence in the
record of the sanity commission proceedings involving Drs. Arcetona and
LeBourgeois that defendant had the capacity to make a knowing and
intelligent waiver of his right to present mitigating evidence and that he did
so explicitly during his colloquy with the trial judge at the outset of the
sentencing phase.

Bordelon, 07 -0525, p. 36, 33 So.3d at 865. I believe defendant here made a similarly
knowing and intelligent waiver, and indeed made essentially the same decision to forego
the presentation of evidence during the penalty phase as was made in Bordelon . Rather
than supporting the majority’s decision to reverse the sentence, I believe Bordelon would
support a decision to affirm.
I also emphasize that McCoy v. Louisiana, supra, was not yet decided at the time of
the Faretta hearing, and therefore cannot support a determination that the trial judge erred
in how he conducted that hearing. The United States Supreme Court has not declared that
McCoy applies retroactively and neither has this Court. To the extent the majority applied
McCoy retroactively, it clearly erred.
In conclusion, I fear the majority is setting a dangerous precedent for an overly
liberal interpretation that conflates trial strategy with structural error and disregards the
extensive evidence in the record that defendant knowingly and voluntarily waived
counsel— despite the absence of any error by the District Court in how it followed the
dictates of Faretta. In this instance, the reversal of the sentence and remand for a second
penalty phase will needlessly cause the victims’ family to again relive the horrific murders
of Izabela, Gabriela, and Jacquelin. In my view, this is a travesty because defendant
intelligently, voluntarily, and vigorously waived his right to counsel and to the presentation
of any case in mitigation.