State of Louisiana v. Javan Marshall and Alfred Williams

STATE OF LOUISIANA * NO. 2023-K-0252

VERSUS *
COURT OF APPEAL
JAVAN MARSHALL AND *
ALFRED WILLIAMS FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 423-496, SECTION “J”
Honorable Darryl A. Derbigny, Judge
******
Judge Roland L. Belsome
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge
Tiffany Gautier Chase)

CHASE, J., CONCURS IN THE RESULT

Jason R. Williams
DISTRICT ATTORNEY
Brad Scott, Chief of Appeals
District Attorney’s Office
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR RELATOR/STATE OF LOUISIANA

Kevin V. Boshea
2955 Ridgelake Drive, Suite 207
Metairie, LA 70002

Mummi Ibrahim
IBRAHIM & ASSOCIATES, LLC
3157 Gentilly Blvd., Suite 2084
New Orleans, LA 70122

COUNSEL FOR DEFENDANT/RESPONDENT - ALFRED WILLIAMS

Justin C. Harnell
H2 Law, LLC
1100 Poydras Street, Suite 2900
New Orleans, LA 70163

COUNSEL FOR DEFENDANT/RESPONDENT - JAVAN MARSHALL

WRIT GRANTED; JUDGMENT REVERSED
JUNE 23, 2023

RLB The State of Louisiana (“the State”) seeks supervisory review of the trial

DLD court’s March 8, 2023 ruling, which granted Defendants Javan Marshall’s and

Alfred Williams’ Petitions for Post-Conviction Relief. In its written ruling, filed

March 16, 2023, the trial court found that the Defendants received ineffective

assistance of counsel under Strickland v. Washington, requiring a reversal of their

March 7, 2002 convictions for attempted first degree murder and attempted

manslaughter. After review of the record and for the reasons set forth below, this

Court grants the State’s writ application for supervisory review, reverses the trial

court’s March 8, 2023 ruling, and denies Defendants’ applications for post-

conviction relief.

FACTUAL BACKGROUND

This Court’s opinion on direct appeal set forth the facts adduced at

Defendants’ trial as follows:

On the night of May 30, 2001, the NOPD was looking for
Alfred Williams pursuant to an arrest warrant. The police received
information that Williams was riding in a Rollins Cab in the vicinity
of Foy Street and Elysian Fields Avenue. Officers Michael Keating
1

and John Barbetti were in the area, and ordered to affect a traffic stop
of the cab.

Officers Keating and Barbetti testified that they observed a cab
that met the description near the Rite Aid Drug Store on Elysian
Fields, and activated the lights on their marked unit. They parked the
front end of their unit facing the front of the cab, and exited their
vehicle. As Officer Keating approached the driver's side of the cab, he
noticed that the driver was holding a gun, and ordered him to drop it.
Officer Keating cautioned Officer Barbetti, who by that time was
approaching the passenger side of the cab. The front seat passenger
fired upon Officer Barbetti, who returned fire. Then, the driver and the
rear seat passenger shot at Officer Keating, who fired back twice. As
the shooting started, Officer Dan Anderson arrived on the scene,
blocking the rear of the cab with his vehicle. The cab backed into
Officer Anderson's vehicle, and then pulled forward, knocking Officer
Keating to the ground. The suspects fled in the cab toward the river on
Elysian Fields with Officer Anderson in pursuit, followed by the unit
manned by Sgt. Bryan Lampard and Officer Matthew McCleary.

Ms. Diane Banks, an employee of the Rite Aid store on Foy
Street and Elysian Fields Avenue, testified that on the night of the
incident she was manning the cash register in the front of the store,
near the door. From her vantage point, Ms. Banks saw what she
described in her original statement as a dark colored car and a police
vehicle drive up to the front of the store from opposite directions. Ms.
Banks testified at trial that the car, a yellow cab, stopped, and she saw
an arm with a gun extend from the front passenger seat of the cab and
begin shooting at the police. As the police fired back, the cab backed
up, and sped from the area out of Ms. Banks' line of vision.

Officer Dan Anderson testified that on the night of the incident,
he responded to information concerning defendant Williams' presence
in the area of the Rite Aid store on Elysian Fields near Foy Street.
After Officers Keating and Barbetti stopped the cab in which
Williams was riding, Officer Anderson parked his vehicle behind the
cab, to thwart escape. As Officers Keating and Barbetti exited their
unit, Officer Anderson saw the left front and rear doors of the cab
open, and saw two suspects shooting at the police. Officers Keating
and Barbetti sought cover, and exchanged gunfire with the suspects in
the cab. As the shoot out began, the cab backed up, and rammed
Officer Anderson's unit, then veered forward knocking down Officer

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Keating. The cab fled toward the river on Elysian Fields Avenue.
Officer Anderson activated his unit's lights and siren, and pursued the
speeding cab. As the chase ensued, the front seat passenger in the cab
leaned out of the window, and began to shoot at Officer Anderson.
When the cab passed Pleasure Street, Officer Anderson observed the
front seat passenger discard a gun, which later proved to be a 9-
millimeter Beretta. Officer Anderson radioed dispatch his location,
details of the chase and the discarded weapon. Sgt. Bryan Lampard
and Officer Matthew McCleary joined in the chase in their marked
unit. The cab failed to negotiate a turn onto a side street, hit a tree, and
stalled in some shrubbery. Officers Anderson, Lampard and McCleary
approached the cab on foot. Defendant Williams exited the front
passenger set of the cab, and began shooting at Officers Lampard and
McCleary, as he fled on foot. Officers Lampard and McCleary
followed Williams in their vehicle, and apprehended him a few blocks
from the crash site. Officer Anderson notified other units in the area
of the foot pursuit of the fleeing suspects. Officer Anderson and other
units arriving on the scene set up a perimeter of the area. In the
meantime, the driver of the cab managed to free the cab from the
shrubbery, and drive away. The cab crashed, however, into a police
unit about a block away. Once other officers secured Williams and
Marshall, Officer Anderson retraced the areas of the high-speed chase
and initial confrontation to assist in securing the scenes for collection
of the discarded weapons. The driver of the cab was transported to
Charity Hospital.

Officer Matthew McCleary testified and corroborated Officer
Anderson's testimony.

Sgt. Bryan Lampard, the task force commander of the operation
to apprehend defendant Williams, testified that he received
information from Detective Brazley concerning Williams' status as a
wanted person and his presence in the area of Elysian Fields Avenue
and Foy Street. Sgt. Lampard set up surveillance of that area. Officer
Lampard and Officer Matthew McCleary were stationed at Foy and
Frenchman Streets, while Officers Keating and Barbetti were across
Elysian Fields at Foy Street. Officer Lampard and his team received
word from undercover officers that Williams was in the area riding in
a cab. Officers Lampard and McCleary drove around the block so
their marked vehicle would not alert the suspect to police presence. As
Officers Lampard and McCleary drove around the block, they heard
gunshots. They observed Officers Keating and Barbetti engaged in a

3

gun battle with the suspects in the cab. Officer Lampard radioed
dispatch of the situation, and joined Officer Anderson in vehicular
pursuit of the cab. Sgt. Lampard's testimony of the facts of the chase
corroborated Officer Anderson's testimony. Officer Lampard added
that he and Officer McCleary chased Williams by car and foot,
apprehending him in a neighborhood yard. Once he secured Williams
and returned to the crash scene, Officer Lampard called for medical
assistance for the cab driver, who had been shot.

Detective Joseph Catalanotto investigated the incident, and
recovered three semi-automatic handguns discarded by the suspects-
one .9 millimeter Beretta, one High Point .45-caliber and one Smith
and Wesson .10 millimeter.

Officer Theresa Meunier testified that she and her partner
Officer Steve Villere participated in the perimeter search of the area
into which defendant Williams fled. As she and Officer Villere stood
beside their vehicle parked on Benefit Street, she observed a cab
approaching at an excessive rate of speed. Unable to stop, the cab
crashed into the Meunier/Villere police vehicle. Officers had to break
the windows of the cab to unlock the front doors to remove the two
occupants. Defendant Marshall, who was seated in the back of the
cab, was arrested and handcuffed. Because the driver of the cab was
unconscious, and bleeding from a gunshot wound, police called for
medical assistance.

State v. Marshall, 2002-1453, pp. 3-6 (La. App. 4 Cir. 3/19/03), 843 So.2d 469,

472–74.

PROCEDURAL HISTORY

Trial

On July 26, 2001, the Defendants were jointly indicted for five counts of

attempted first degree murder. Both Defendants pled not guilty upon arraignment.

At trial, Marshall was represented by Mr. Joseph Meyer, Jr., of the Orleans Parish

Public Defender’s Office; Williams was represented by Mr. Warren McKenna.

4

Following trial, the jury found Williams guilty as to three of the five counts

of attempted first degree murder, and guilty of attempted manslaughter as to the

remaining two counts via a responsive verdict.1 Marshall was found guilty as to

one count of attempted first degree murder, and one count of attempted

manslaughter (the latter of which was, again, via a responsive verdict);2 Marshall

was found not guilty of two additional counts of first degree murder and the jury

deadlocked on the remaining count, resulting in a mistrial on that charge and the

entering of a nolle prosequi by the State.

Direct Appeal

Defendants filed a joint appeal, and this Court subsequently affirmed both

Defendants’ convictions and sentences. Marshall, 2002-1453, 843 So.2d 469

(hereinafter “Marshall I”). Specifically, this Court held in Marshall I that (1) the

trial court did not abuse its discretion by denying a motion for continuance when,

on the morning of trial, the Defendants retained new counsel; (2) trial counsel’s

failure to utilize questions provided by the newly retained co-counsel was not

ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

1 Williams was sentenced to fifty years imprisonment at hard labor (without the benefit of

probation, parole, or suspension of sentence) for his convictions on three counts of attempted
first degree murder, each to be served concurrently. Relative to his convictions on two counts of
attempted manslaughter, Williams was sentenced to twenty years each, to be served concurrently
with each other but consecutively to the fifty-year sentences. Williams’ sentences are not at issue
here.
2 Marshall was sentenced to fifty years (without the benefit of probation, parole, or suspension of

sentence) for his conviction for attempted first degree murder, and twenty years for his
conviction for attempted manslaughter, to be served consecutively. The trial court denied
Marshall’s motions for post-verdict judgment of acquittal and reconsideration of sentence.
Subsequent to his conviction and sentencing, the State filed a multiple offender bill against
Marshall. Following a full hearing, the trial court adjudicated Marshall a second felony offender,
vacated his twenty-year sentence for attempted manslaughter, and imposed a new sentence of
fifty years, to run consecutively with his other fifty-year sentence. Marshall’s sentences are not at
issue here.

5

2052, 80 L.Ed.2d 674 (1984); and (3) Defendants’ sentences were not

unconstitutionally excessive.

Post-Conviction Relief Proceedings

Following the direct appeal, both Defendants filed pro se applications

seeking post-conviction relief, which were supplemented numerous times,

including with counseled applications. The trial court held an evidentiary hearing

regarding Defendants’ numerous claims over seven separate days, spanning March

8, 2019 through June 22, 2021. The court heard the testimony of seven witnesses,

including: Defendants’ trial counsels, the prosecutors, two police officers involved

in the shooting, and – importantly to the issue currently before this Court – Mr.

Renard Price (the source of NOPD’s information that Williams was in a Rollins

Cab in the vicinity of Foy Street and Elysian Fields Avenue on the night of the

shooting). Pursuant to a sua sponte Order, the court also reviewed, in camera, the

grand jury transcripts.

On December 15, 2021, the trial court issued a written ruling on the

Defendants’ applications. In relevant part, the 2021 ruling (1) granted Defendants’

applications under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963); and (2) denied Defendants’ claims of ineffective assistance of counsel, “as

previously adjudicated by the 4th Circuit Court of Appeals [sic].”

The State and both Defendants sought supervisory review with this Court.

This Court consolidated the writ applications, and also ordered the trial court to

produce a per curiam opinion describing the reasoning for granting Defendants’

Brady claims. In its per curiam opinion, the trial court explained that its decision to

grant the Brady claims rested on its review of (1) a supplemental police report

6

describing exculpatory forensic evidence3 recovered from the taxi “which was not

produced at the time of the trial” and (2) the post-conviction relief evidentiary

hearing testimony of Renard Price, which the trial court found was inconsistent

with the State’s version of events and “led [the] Court to determine that at the time

of trial, the State concealed or otherwise distorted the nature of the testimony, a

material lay witness to key portions of the events in question.”

This Court granted in part and denied in part the consolidated writ

applications, vacated in part the trial court’s ruling, and remanded the case for

further proceedings. State v. Marshall, 2022-0145 (La. App. 4 Cir. 6/15/22), 342

So.3d 1029 (hereinafter “Marshall II”). Specifically, this Court found, after a

careful review of the record, evidence indicating that the Defendants received the

supplemental police report prior to trial,4 and thus held that the Defendants were

not entitled to post-conviction relief on that Brady claim. Marshall II, 2022-0145,

at p. 24, 342 So.3d at 1045.

Regarding the testimony of Mr. Renard Price, this Court ultimately found

that the State was denied the opportunity to respond to those claims, because the

Defendants failed to allege a Brady violation on those grounds in their

applications. Id., 2022-0145, at p. 30, 342 So.3d at 1048. Thus, this Court vacated

the trial court’s ruling, and remanded that claim for briefing and argument. Id.

3 The supplemental police report indicated the execution of a search warrant for the taxi occupied

by the Defendants on the night of the shooting, and also described forensic evidence recovered
from the taxi: 116 partial latent fingerprints not linked to the Defendants, negative gun powder
residue tests performed on Defendants’ clothes, and nine blood samples which were not linked to
Defendants (because no reference was submitted for comparison to Defendants’ blood).
4 In addition to other evidence tending to show that the Defendants received the supplemental

police report prior to trial, this Court found (1) that Detective Catalanotto testified at trial
regarding the forensic evidence at issue; (2) that the Crime Scene Technician who seized the
evidence from the taxi, was on both the State and the defense’s trial witness list; and (3) that
page twenty-one of the supplemental police report was introduced by Defendants at trial.
Marshall II, 2022-0145, pp. 19-24, 342 So.3d at 1042-1045.

7

Finally, this Court in Marshall II reviewed the trial court’s ruling denying

Defendants’ claims of ineffective assistance regarding their counsels’ failure to

discover Mr. Renard Price’s alleged eyewitness account of the incident, and to call

him to testify at trial. The trial court’s December 15, 2021 ruling dismissed those

claims as “previously adjudicated by the 4th Circuit Court of Appeals [sic].”

However, as discussed in Marshall II, that ruling was erroneous, as the only

ineffective assistance of counsel claims “previously adjudicated” by this Court

were those related to counsels’ failure to adequately cross-examine witnesses,

which was held to not constitute ineffective assistance in Marshall I. Thus, this

Court vacated the trial court’s ruling dismissing those claims, and remanded the

claims for further proceedings, leading to the matter currently before this Court.

Marshall II, 2022-0145, at p. 33, 342 So.3d at 1049.5

On remand, the State filed a Supplemental Opposition to Defendants’

applications for post-conviction relief, but neither the State, Defendant Williams,

nor Defendant Marshall introduced new evidence or testimony. The trial court

orally granted relief on March 8, 2023, and filed a written ruling on March 16,

2023. The trial court’s written ruling found that the Defendants received

ineffective assistance of counsel under Strickland v. Washington due to their

counsels’ failure to investigate and interview Mr. Renard Price.6 The State timely

5 Though not relevant to the issue currently before this Court, Marshall II also held that

conviction for attempted manslaughter is a valid responsive verdict to the charge of attempted
first degree murder, citing State v. Harper, 205 La. 228, 17 So.2d 260, 264 (1944), and thus
denied that part of Defendant Marshall’s writ application.
6 On remand from Marshall II, the trial court reversed itself with regards to Defendants’ claims

under Brady, finding that “[u]pon consideration of the supplemental post conviction relief
response brief filed by the state and closer review of the evidence contained in the record, most
notably the fact that Renard Price’s testimony did not exist at the time of trial of the defendants,
and that a significant portion of the allegedly withheld police report was submitted by the

8

filed a notice of intent to seek supervisory review, and moved for a stay of the

ruling. The trial court granted the stay, and set a return date for the State’s writ

application. The State’s timely writ application followed.

DISCUSSION

There is only one issue remaining before this Court: whether the

Defendants’ trial counsels’ failure to investigate and interview Mr. Renard Price

amounts to constitutionally ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Marshall II,

this Court described the testimony elicited at the post-conviction relief evidentiary

hearing – which forms the basis of Defendants’ ineffective assistance claims – as

follows, in relevant part:

DEFENSE WITNESSES

Joseph Meyer, Jr.
Joseph Meyer Jr. testified that he served as an Orleans Parish
Public Defender for thirty years, and was appointed trial counsel for
Mr. Marshall for the instant case. Mr. Meyer admitted that, although
he had read the trial transcripts, he had no independent recollection of
the case, as he “was doing about fifty trials a year then,” nor did he
recall his defense strategy at trial.7

....

Renard Price
Renard Price testified that he was present at the scene of the
shooting. He testified that several hours prior to the shooting, he had
been detained in a traffic stop for failing to use his turn signal, and
was subsequently arrested for possession of stolen property after the
police investigated the VIN number on the vehicle he was driving. He
stated that the officer who arrested him, “Hat back Dan,” also ended

defense as a trial exhibit, this court agrees that the record does not contain a sufficient basis for a
Brady violation.”
7 Mr. Meyer testified that the extent of his substantive recollection consisted of a car chase, and

“a lot of gunfire between both parties.” [Footnote 4 in original opinion.]

9

up involved in the shooting in the instant case. Mr. Price testified that
rather than transporting him to central booking, the officer took him to
the Fifth District Police Station for an interview. He did not have
counsel present.

According to Mr. Price, the interviewing officers had prior
knowledge that he was friends with Defendants in the instant case (he
stated that the officers knew they “grew up from kids together,”
although he did not know how the officers obtained that information),
and were asking him about crimes that had occurred in the area. Mr.
Price stated that the police were “coercing” him to provide
information, so he began telling them things “that wasn't even much
true,” because he was young and “didn't know any better at that time.”
More specifically, Mr. Price testified that the police had agreed to let
him “go free” in exchange for helpful information. He explained that
the police had “just made a bust,” which Mr. Price claimed to have
seen with his “own two eyes,” during which “two kilos of coke with
$36,000” had been seized. Mr. Price testified that he was afraid the
police would falsely implicate him in the narcotics seizure if he did
not cooperate, so he “just went to saying ‘yes’ to this, ‘yes’ to that.”8

Mr. Price testified that the police asked him if he could
persuade Defendants to meet up with him and he replied, “Of course I
can,” so he was transported in an unmarked police unit by a black
police officer in plain clothes to Foy Street where he used a pay phone
to call Defendants.9 Mr. Price recalled that he had phoned Mr.
Williams, who agreed to meet him at a location off of Elysian Fields.
Mr. Price stated that when Defendants drove past the planned meeting
location, they did not see him, so they turned around and headed back
toward the Rite Aid on the corner of Elysian Fields and Foy.
According to Mr. Price, he had a clear view of Defendants’ vehicle,
and testified that he observed a police officer approach it with his gun
drawn, and commanded Defendants to “stop the f-ing vehicle.” Mr.
Price testified that gunshots were then fired from outside the vehicle
and it sped off toward I-610. The officer driving the car Mr. Price
occupied pursued Defendants’ vehicle to the Elysian Fields overpass
“and that was that.” Mr. Price recalled nothing more.

Mr. Price explained that he could observe the altercation
between Defendants and the police clearly notwithstanding that it was
dark out (around midnight) and he was a block away. He stated that he
could hear the gunshots because the car window was “cracked.” Mr.
Price stated that although he could not see Defendants in the vehicle
8 Later in his testimony, Mr. Price clarified that he observed the police stuffing the money and

the drugs into a plastic bag at the police station, presumably to take to the evidence room. He
was not present when the evidence was allegedly seized. [Footnote 5 in original opinion.]
9 Mr. Price testified that he sat in the front passenger seat of the unmarked police car. [Footnote 6

in original opinion.]

10

due to the tint on the window, he knew they were inside because he
was told “what [car] they were going to be in” during the phone call.
Mr. Price further clarified that he observed the police fire their
weapons at Defendants’ vehicle, but he did not see Defendants in
possession of any firearms, nor did he see any shots fired from
Defendants’ vehicle from his location.

Mr. Price testified that after the shooting, he was transported
back to the police station, then taken to Central Lockup where he was
charged with possession of a stolen automobile, although the charge
was subsequently dismissed. He was never contacted by any party to
testify at trial, nor did he make any effort to contact Defendants or
their attorneys prior to trial.

On cross-examination, Mr. Price admitted that he had been
convicted several times for possessing a stolen automobile, and he
was on probation following a conviction for that offense when he was
pulled over and arrested on May 31, 2001. Although the 2001 charge
was ultimately dismissed, he was subsequently indicted on an
unrelated charge of accessory to second degree murder, resulting in
his incarceration with Defendants prior to their trial, though Mr. Price
testified that he was on a different tier. Notwithstanding his admitted
ability to contact Defendants in jail, Mr. Price conceded that he never
notified them, their relatives, or their attorneys, that he was present at
the scene and observed only the police officers firing weapons. When
the district attorney asked why he had not informed his own attorney
at the time, Mr. Price testified that he did, but was told that “that case
[did not] have anything to do with” his own case, but they could
discuss it if it “come about” in the interim.

Warren McKenna
Warren McKenna testified that he represented Mr. Williams at
trial, and that he recalled the facts of the case. . . . [Mr. McKenna
testified regarding the forensic evidence described in the supplemental
police report, which is not relevant to the issue currently before this
Court.]

....

Mr. McKenna also testified that he had never spoken to Mr.
Price, nor did he “recall being given any information in regards to Mr.
Price as it pertains to this matter.”

....

Mr. McKenna testified that the name Renard Price did not “ring
a bell,” and he could recall only that the police either spotted Mr.
Williams at the drugstore, or received a tip that Defendants would be
at the drugstore. Mr. McKenna explained that had his client

11

(Williams) provided “information about Mr. Price and it was
exculpatory, [he] would have followed up on it,” and, “presumably,”
would have called Mr. Price as a witness at trial. Mr. McKenna stated
succinctly, “I would have talked to him if my client asked me to go
speak with him.”

THE STATE WITNESSES

Dan Anderson
NOPD Lieutenant Dan Anderson testified that he was present at
the scene of the shooting and had stopped his police vehicle
approximately two yards behind the vehicle Defendants were
occupying. He confirmed his certainty that the front seat passenger of
that vehicle initiated the gunfire. He did not recall seeing either
Officer Brazley or Mr. Price at the scene, although he did recall
arresting Mr. Price earlier that day. Lt. Anderson explained that he
had observed Mr. Price violating “a couple of traffic laws,” so he
initiated a traffic stop and discovered Mr. Price had no driver's license
or identification, and was driving a vehicle that had been reported
stolen. He arrested Mr. Price and took him to the Fifth District Police
Station. Lt. Anderson maintained that he was unaware of any
friendship or relationship between Mr. Price and either of Defendants,
until he later learned from Officers Brazley and Lampert that Mr.
Price knew Mr. Williams. Lt. Anderson testified that he had no
knowledge of a “drug bust” during which two kilos of cocaine and
$36,000 were seized and he did not find Mr. Price's testimony that
police officers threatened to frame him for possession of drugs to be
credible.

Calvin Brazley
NOPD Sergeant Calvin Brazley testified that his involvement in
the case began when he was notified “by members of the Task Force”
that a recent arrestee, Mr. Price, had information pertaining to an
unrelated homicide he was investigating at the time. Sgt. Brazley
stated that he spoke with Mr. Price at the Fifth District Police Station,
who, it turned out, knew nothing about the murder, but could contact
the suspect, Mr. Williams. Sgt. Brazley continued, “[Mr. Price]
informed me that the individual was riding in a taxicab along with
other individuals and they would commit armed robberies.”

Sgt. Brazley testified that he rode with another officer, Todd
Coleman, in an unmarked police vehicle, with Mr. Price in the
backseat,10 to a payphone near Elysian Fields and the I-610 overpass.
From there, Mr. Price called Defendants, fabricated a story concerning
an opportunity to commit a robbery, and directed Defendants to his

10 This testimony contradicts Mr. Price's testimony that he rode in the front seat of the vehicle,

accompanied by only one police officer. [Footnote 7 in original opinion.]

12

location. Sgt. Brazley then notified other officers in the area “to set up
their positions to do the take down,” and they backed the vehicle into
a parking spot to wait for Defendants to arrive.11 Sgt. Brazley recalled
that when the taxicab drove by shortly thereafter, Mr. Price began
“panicking in the back seat saying, “they see us,” and ducked down
onto the floorboard.

Sgt. Brazley testified that he, Officer Coleman, and Mr. Price
then drove around the block in an attempt to follow the taxi, which
had continued past them toward Frenchman Street. Sgt. Brazley saw
the taxi turn onto Foy Street toward Elysian Fields and then he heard
gunshots. He testified that his vehicle had not yet turned the corner
onto the street where the shooting occurred so he was unable to see
anything.12 Once he heard the gunshots, he exited the vehicle and ran
around the corner, but the taxicab had already fled the scene, and all
he could see were police officers “ducking” and running to their
vehicles. Sgt. Brazley testified that he instructed Officer Coleman,
who was still driving the vehicle, to leave the scene to protect Mr.
Price, and then he rode with another officer in pursuit of Defendants.
At some point during the chase, Sgt. Brazley observed “an individual
running on foot through the park, under the bridge toward Allen.” Sgt.
Brazley exited the vehicle and gave chase on foot, and “apprehended a
Mr. Williams in the back of a house on Allen Street.”13

Sgt. Brazley denied any knowledge of a drug bust in which two
kilos of cocaine and $36,000 were seized, and had never seen, or had
any reason to believe, that Lt. Anderson would have coerced a witness
to make a false statement.

Marshall II, 2022-0145, at pp. 7-16, 342 So.3d at 1035-1040.

Ineffective Assistance of Counsel

In 1984, the United States Supreme Court held that right to counsel

guaranteed by the Sixth Amendment is the right to effective counsel. Further, the

Court set forth the proper standard for judging a defendants’ ineffective assistance

claim:

11 Sgt. Brazley specified that he was in the passenger seat, Officer Coleman was driving, and Mr.

Price was in the back seat. [Footnote 8 in original opinion.]
12 In contrast to Mr. Price's testimony that he could see the shooting clearly, Sgt. Brazley testified

that from his location when the gunshots were fired, it would have been impossible for anyone in
his vehicle to have seen the shooting. [Footnote 9 in original opinion.]
13 It is not clear whether Sgt. Brazley was the arresting officer, he testified that “we”

apprehended defendant. [Footnote 10 in original opinion.]

13

A convicted Defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the Defendant must show that counsel's
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel”
guaranteed the Defendant by the Sixth Amendment. Second, the
Defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious as
to deprive the Defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Following remand from Marshall II, the trial court granted both Defendants

relief under Strickland, finding that “[d]efense counsels’ failure to make any

contact with Mr. Renard Price . . . falls below an objective standard of

reasonableness under prevailing professional norms,” and that “if the jury had been

allowed to hear the manner and tactics allegedly employed by NOPD to coerced

[sic] Mr. Price into luring the Defendants to the Rite Aid on Elysian Fields and

Foy, the decision of the jury would likely have been different in some meaningful

way.”

The State argues that the trial court abused its discretion in so finding,

because (1) Defendants’ trial counsels’ conduct did not fall below an objective

standard of reasonableness; and (2) Mr. Price’s version of events, even if presented

at trial, would not have been substantially likely to change the outcome of

Defendants’ trial. This Court agrees.

First Strickland Component: Counsels’ Performance

Under Strickland, judicial review of counsel’s performance is highly

deferential, and must include a “strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the Defendant

must overcome the presumption that, under the circumstances, the challenged

14

action ‘might be considered sound trial strategy.’” Id., at 689, 104 S.Ct. at 2065

(quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164 (1955)).

As previously noted by this Court, it is possible that Defendants’ trial

counsels “deliberately chose not to call Mr. Price as a witness because of his

credibility issues, as he had been arrested for driving a stolen vehicle when he

informed the police of Defendants’ whereabouts, and was in jail for accessory to

second degree murder at the time of Defendants’ trial.” Marshall II, 2022-0145, at

pp. 29-30, 342 So.3d at 1048. Although Defendants’ counsels testimony

demonstrates that they remembered little of Mr. Renard Price from the time of trial

over sixteen years later, the record reflects that to the extent they received

information about him at all, they would have been aware that he had been arrested

for driving a stolen vehicle (as reflected in the supplemental police report at issue

in Marshall II)14, calling his credibility into question. Even more importantly, trial

counsel would have been aware from that report that Mr. Price provided the police

information against their clients, and had assisted the police in apprehending

them.15 Thus Defendants’ trial counsels, in fact, had several very good reasons not

to call Mr. Price to testify at trial: Defendants’ defense at trial was one of identity

rather than justification/self-defense, and Mr. Price’s testimony would have

positively identified them. The Court in Strickland noted that
14 That police report described Mr. Price’s involvement as follows:

Renard Price, black male, date of birth 08/18/1980, residing 6647 Chef Menteur
[sic] Highway, home telephone 248-6530. Renard Price was arrested on
Wednesday, May 30, 2001 by Fifth District Police Officers in a stolen vehicle. At
the time of his arrest, Renard Price volunteered information regarding the
whereabouts of Alfred Williams, who was wanted by authorities. A tape recorded
statement was taken from Renard Price by Detective Dwight Deal on Thursday,
May 31, 2001 at the Fifth District Police Station. After surrendering the statement
Renard Price was taken to Orleans Parish Prison where he was formally charged
with possession of a stolen vehicle.
15 See footnote 14, supra.

15

If counsel does not conduct a substantial investigation into each of
several plausible lines of defense, assistance may nonetheless be
effective. Counsel may not exclude certain lines of defense for other
than strategic reasons. Limitations of time and money, however, may
force early strategic choices, often based solely on conversations with
the defendant and a review of the prosecution's evidence. Those
strategic choices about which lines of defense to pursue are owed
deference commensurate with the reasonableness of the professional
judgments on which they are based. Thus, when counsel's
assumptions are reasonable given the totality of the circumstances and
when counsel's strategy represents a reasonable choice based upon
those assumptions, counsel need not investigate lines of defense that
he has chosen not to employ at trial. Among the factors relevant to
deciding whether particular strategic choices are reasonable are the
experience of the attorney, the inconsistency of unpursued and
pursued lines of defense, and the potential for prejudice from taking
an unpursued line of defense.

Strickland, 466 U.S. at 681, 104 S.Ct. at 2061.

Given the deference afforded trial counsels, this Court finds that under the

totality of the circumstances, trial counsels’ failure to investigate Mr. Price does

not rise to constitutionally ineffective assistance requiring a reversal of

Defendants’ convictions. Rather, it appears most likely that it amounted to a

strategic or tactical decision in the context of the counsels’ limited time and

resources, Mr. Price’s credibility issues, and the fact that the information they

received about Mr. Price indicated that he assisted the police in apprehending their

clients, and could therefore positively identify them as present in the taxi on the

night in question (extremely detrimental to trial counsels’ identity defense at trial).

Where counsel has reason to believe that investigation would be fruitless or even

harmful to their defense, the choice to forgo such investigation is reasonable. See

id., at 691, 104 S.Ct. at 2066. While this Court acknowledges that “counsel has the

duty to interview potential witnesses”, Nealy v. Cabana, 764 F.2d 1173, 1177 (5th

Cir.1985), no evidence at trial indicated that Mr. Price was a witness to the

shooting – Mr. Price’s alleged account that he saw the police open fire first was a

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surprise to all parties prior to his post-conviction relief testimony, as acknowledged

by the Defendants. Thus, Mr. Price was not a potential witness under the facts

known to counsel at the time of trial, or at least not one whose testimony could be

expected to aid Defendants’ trial strategy to contest identity.

Second Strickland Component: Prejudice

“An error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Rather, “any

deficiencies in counsel's performance must be prejudicial to the defense in order to

constitute ineffective assistance under the Constitution.” Id., at 692, S.Ct. at 2067.

Further, “[i]t is not enough to show that the errors had some conceivable effect on

the outcome of the proceeding.” Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct.

770, 787, 178 L.Ed.2d 624 (2011) (internal quotation marks and citations omitted).

“The likelihood of a different result must be substantial, not just conceivable.” Id.,

at 112, 131 S.Ct. at 792 (citation omitted).

In Marshall II, this Court noted that:

Even if the State had been aware that Mr. Price was in the vehicle
with Det. Brazley at the scene, Det. Brazley's post-conviction
testimony indicated that their vehicle had not yet turned the corner
toward the initial location of the shootout, and thus the first shots fired
would not have been visible to the occupants. He also testified that
Mr. Price was afraid that Defendants would see him inside the
vehicle, so he ducked down onto the floor in the backseat. Further,
once shots were fired, Det. Brazley exited the vehicle and ordered
Officer Williams (the driver) to return Mr. Price to the police station
for his safety. . . . On its face, this information appears neither
exculpatory nor inculpatory, nor does it appear decidedly material to
the defense.

Marshall II, 2022-0145, p. 28-29, 342 So.3d at 1047 (emphasis added). While that

finding was made in the context of exculpatory Brady evidence, the tests for

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materiality under Brady and prejudice under Strickland are essentially coextensive.

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068 (“the appropriate test for prejudice

finds its roots in the test for materiality of exculpatory information not disclosed to

the defense by the prosecution.”).

Regardless, however, Mr. Price’s testimony that he was coerced into luring

the Defendants to the scene (cited in the trial court’s written ruling as its grounds

for relief) is immaterial to the guilt of the Defendants, and thus could not have

been prejudicial to their defense. How and why the Defendants arrived on the

scene was not at issue in the trial; the charges related solely to their actions

thereafter in engaging in a shootout and car-chase with the police. Further, the

State’s opening statements made clear to the jury that the police were lying in wait

for the Defendants at Elysian Fields and Foy, acting on “information that

[Defendant Williams was] going to be in that area.” The officers who testified at

the trial also noted that they were acting on a “tip”; the jury was clearly aware that

someone had ‘set up’ the Defendants. While we refrain from drawing any

conclusions as to the truthfulness of Mr. Price’s testimony that police threatened to

frame him, the allegation is nevertheless irrelevant to the guilt of the Defendants

regarding the crimes for which they were charged. Law enforcement frequently

lures suspected criminals to a scene to effectuate their arrest, and their methods for

doing so typically say nothing of the underlying guilt of the Defendants, at least

where there is strong additional evidence thereof, as in the case sub judice.

Additionally, Mr. Price’s speculative testimony that he saw the police open

fire first is in direct contradiction with (1) the testimony of numerous officers

present at the shooting, who unequivocally testified that the Defendants opened

fire first; (2) Sgt. Calvin Brazley’s testimony that Price was not in a position to be

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able to see the taxi when the shooting occurred; and (3) the eyewitness testimony

of Ms. Diane Banks, an employee of the Rite Aid on Elysian Fields and Foy, who

testified that she saw the occupants of the taxi open fire on the police. Finally, it is

doubtful that any reasonable juror would have accepted the testimony at face value,

given Mr. Price’s criminal history and his long-time friendship with the

Defendants. It is also not apparent that Mr. Price would have offered this same

testimony at the time of Defendants’ trial, given that he failed to communicate it to

either Defendant at the time. Given the overwhelming evidence of Defendants’

guilt, it is extremely unlikely Mr. Price’s version of events would have altered the

outcome of the trial, particularly since the Defendants’ defense at trial was one of

identity, rather than justification/self-defense. Rather, it seems Mr. Price’s

testimony would have undermined counsels’ trial strategy, and in its place offered

a strategy with significant credibility and factual problems.

CONCLUSION

For the above-stated reasons, Defendants failed to carry their burden of

proving (1) that their trial counsels’ failure to investigate Mr. Price amounted to

constitutionally ineffective assistance of counsel; and (2) that Mr. Price’s

testimony, if offered at trial, would have been substantially likely to alter the

outcome. Accordingly, the State’s writ application for supervisory review is hereby

granted, the trial court’s March 16, 2023 ruling is reversed, and Defendants’

applications for post-conviction relief are denied.

WRIT GRANTED; JUDGMENT REVERSED

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