State of Louisiana v. Jarvis Turner

STATE OF LOUISIANA * NO. 2024-K-0733

VERSUS *
COURT OF APPEAL
JARVIS TURNER *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 452-747, SECTION “J”
Honorable Darryl A. Derbigny, Judge
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge
Sandra Cabrina Jenkins)

JENKINS, J., DISSENTS WITH REASONS

Jason R. Williams
District Attorney
Brad Scott
Chief of Appeals
ORLEANS PARISH DISRTICT ATTORNEY’S OFFICE
619 South White Street
New Orleans, LA 70119

COUNSEL FOR STATE OF LOUISIANA/RELATOR

Justin Caine Harrell
1100 Poydras Street, Suite 2900
New Orleans, LA 70163

COUNSEL FOR DEFENDANT/RESPONDENT

WRIT GRANTED;
RULING REVERSED

JANUARY 15, 2025

JCL The State of Louisiana (“State”) seeks review of the district court’s October

DLD 2, 2024 ruling, which granted Defendant Jarvis Turner’s application for post-

conviction relief on the grounds that his trial counsel deprived him of his

constitutional right to testify at trial. After careful consideration, we grant the

State’s writ and reverse the district court’s ruling.

Defendant was indicted on October 14, 2004, for two counts of armed

robbery with a firearm. He was convicted by a jury on August 6, 2007, and

sentenced to seventy-five years at hard labor on August 23, 2007. His conviction

and sentence were affirmed on appeal. On December 2, 2009, Defendant filed an

application for post-conviction relief, claiming ineffective assistance of counsel

and alleging that his trial counsel, Edwin Hawkins, prohibited him from testifying.

Over the course of years, Defendant filed supplemental memoranda and presented

his case to various courts, eventually culminating in an evidentiary hearing on May

8, 2024.

During the evidentiary hearing, Defendant introduced affidavits from Nicole

Heisser, a defense investigator; Richard Bourke, director of the Louisiana Capital

Assistance Center; Christine Lehmann, a criminal defense attorney; and Majeeda

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Snead, a clinical professor at Loyola University School of Law. Heisser stated in

her affidavit that Defendant expressed a desire to testify during trial but was

discouraged by Hawkins, who allegedly told Defendant, “You’re not testifying.”

Heisser further stated that Hawkins expressed fear that Defendant would be “torn

apart” on the stand, and that Defendant later said Hawkins should have allowed

him to testify. Bourke’s affidavit noted that in September and October 2009,

Defendant contacted the Louisiana Capital Assistance Center to complain about

communication issues with Hawkins on a separate, first-degree murder case and

claimed he had been pressured to accept a plea to manslaughter. Lehmann and

Snead provided affidavits discussing a possible conflict of interest between

Defendant and Hawkins but offered no direct evidence concerning Defendant’s

alleged desire to testify. The State introduced a portion of the sentencing transcript

reflecting Defendant’s statement to the court that he had been denied the right to

testify at trial and a portion of the trial transcript reflecting the defense resting its

case.1 The matter was then held open for testimony.

On June 26, 2024, Defendant testified that he had anticipated testifying at

his trial and claimed Hawkins ignored his requests to do so. Defendant stated that

Hawkins “shushed” him and ultimately told him it was Hawkins’ decision, not

Defendant’s, whether he would testify. Despite these claims, Defendant failed to

provide an affidavit or testimony from Hawkins, who was the only person with

direct knowledge of the attorney-client discussions and strategic decisions

regarding Defendant’s testimony. Additionally, Defendant did not demonstrate any

attempts to contact Hawkins or subpoena him for the hearing. Upon the conclusion

of the hearing, the matter was submitted for briefing. On August 22, 2024, the

1 The State also introduced a portion of the trial transcript containing the victim’s testimony.

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district court denied the State’s procedural objections. On October 2, 2024, the

district court granted Defendant’s application for post-conviction relief. This writ

follows.

The State argues three points of error: (1) the district court failed to apply a

harmless error standard to the alleged denial of the right to testify; (2) Defendant

failed to meet his burden of proof to establish that his right to testify was denied;

and (3) the district court erred in denying the State’s procedural objections.

As a general matter, “[t]he petitioner in an application for post[-]conviction

relief shall have the burden of proving that relief should be granted.” La. C.Cr.P.

art. 930.2. We review a district court’s ruling on an application for post-conviction

relief for an abuse of discretion. See State v. Henry, 20-0412, p. 13 (La. App. 4 Cir.

10/29/20), 307 So.3d 249, 257. “[W]hen a trial court makes findings of fact based

on the weight of the testimony and the credibility of the witnesses, a reviewing

court owes those findings great deference, and may not overturn those findings

unless there is no evidence to support those findings.” Id. (quoting State v.

Thompson, 11-0915, pp. 13-14 (La. 5/8/12), 93 So.3d 553, 563). However, when

the trial court bases its ruling on an erroneous view of the law, we apply a de novo

standard of review. State v. Henry, 20-0233, p. 13 (La. App. 4 Cir. 7/22/20), 302

So.3d 1167, 1169.

1. Applicability of Harmless Error Analysis

The State argues that claims of being denied the right to testify should be

subject to a harmless error analysis. Although this Court is bound by the Louisiana

Supreme Court’s precedent in State v. Hampton, 00-0522 (La. 3/22/02), 818 So.2d

720, which held that such violations constitute structural error not subject to

harmless error review, the State’s position raises important considerations. The

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rigid classification of all violations of the right to testify as structural errors,

irrespective of their impact on the trial’s outcome, may warrant reexamination.

Such a standard risks unnecessarily reversing convictions where any error would

have been harmless beyond a reasonable doubt. However, as this issue is

controlled by Louisiana Supreme Court precedent, we proceed under the current

legal framework.

2. Failure to Meet Burden of Proof

Under Louisiana law, a defendant seeking post-conviction relief for being

denied the right to testify must provide specific facts and corroborating evidence,

such as an affidavit or testimony from trial counsel. See Hampton, 00-0522, p. 14,

818 So.2d at 729-30; State v. Rumley, 14-1077, p. 31 (La. App. 4 Cir. 12/16/15),

183 So.3d 640, 662.

As our Court recently held in State v. Lacourse, 24-0089 (La. App. 4 Cir.

8/16/24), --- So.3d. ----, 2024 WL 3841457:

A defendant has a constitutional right to testify in
his own defense. La. Const. art. I, § 16; State v. Dauzart,
[]99-3471, p. 6 (La. 10/30/00), 769 So.2d 1206, 1207
(citations omitted). The denial of the right to testify after
a criminal defendant unequivocally makes known his
desire to do so is not amenable to a harmless error
analysis. State v. Hampton, []00-0522, p. 10 (La.
3/22/02), 818 So.2d 720, 727. However, a presumption
exists that a defendant knowingly waived his right to
testify when he does not testify at trial; moreover, the
defendant has the burden of proof to satisfy the criteria to
refute that presumption. State v. Rumley, []14-1077, p. 31
(La. App. 4 Cir. 12/16/15), 183 So.3d 640, 661-62. The
Rumley Court explained as follows:

When a criminal defendant does not
take the stand to testify, a court should
presume he has knowingly and voluntarily
waived his right to do so. State v. Marzett,
[]13-0274, p. 13 (La. App. 4 Cir. 8/28/13),
123 So.3d 831, 839 (citing Hampton, []00-

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0522, p. 14, 818 So.2d at 727). A defendant
can only rebut such presumption by showing
that his attorney caused him to forego his
right to testify. Hampton, []00-0522, p. 14,
818 So.2d at 729 (quoting, Passos–
Paternina v. United States, 12 F.Supp.2d
231 (D.P.R. 1998)). To make that showing a
defendant must: (1) allege specific facts, and
present an affidavit by his trial attorney,
from which a court can reasonably find that
the attorney informed the defendant “that he
was legally forbidden to testify or in some
similar way compelled him to remain
silent;” and (2) demonstrate that the record
would support a finding that those specific
factual allegations would be credible. Id.,
[]00-0522, p. 14, 818 So.2d at 729-730.

Id.

In applying the first Rumley factor to rebut the
presumption of a knowing waiver, Defendant herein
neither cites specific facts or produces an affidavit from
trial counsel to attest that counsel denied Defendant the
right to testify. We also find the record devoid of any
documentation that Defendant desired to testify at trial.
Instead, Defendant makes merely conclusory,
unsupported allegations in her brief. Such conclusory,
unsupported allegations do not suffice for this Court to
determine that her trial attorney legally forbade
Defendant from testifying or compelled her to remain
silent. See State v. James, []05-2512, p. 1 (La. 9/29/06),
938 So.2d 691 (‘ “mere conclusory allegations are
insufficient’ to rebut a presumption arising from a
defendant’s silence at trial that he waived his right to
testify.”). Accordingly, as Defendant has provided no
supporting documentation to rebut the presumption that
she knowingly and voluntarily waived her right to testify,
Defendant’s claim that her counsel was ineffective for
denying her the right to testify lacks merit.

24-0089, pp. 10-11, --- So.3d. ----, ----, 2024 WL 3841457, at *5-6 (footnote

omitted).

In the case sub judice, Defendant failed to meet this burden of proof similar

to the defendant in the Lacourse case. The evidence presented by Defendant lacks

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the corroboration required for post-conviction relief, particularly in cases alleging

structural errors such as the denial of the right to testify. Heisser’s affidavit is

speculative and lacks critical details about private attorney-client discussions.

Heisser was not present during key trial moments and admitted that her knowledge

of the situation was secondhand. Similarly, the affidavits from Bourke, Lehmann,

and Snead offer no direct evidence of Hawkins’ actions during the trial or any

record of Defendant asserting his right to testify.

Defendant testified that Hawkins ignored his repeated requests to testify and

unilaterally decided he would not take the stand. However, Defendant presented no

corroborating evidence to support these claims. Critically, Defendant did not

provide an affidavit or testimony from Hawkins or demonstrate any attempt to

contact or subpoena him. The portion of the trial transcript introduced by the State

reflecting the defense resting its case undermines Defendant’s claim, as it contains

no record of Defendant asserting a desire to testify or objecting to Hawkins’

decisions during the trial. Defendant’s failure to introduce his trial transcript or any

contemporaneous evidence to support his assertions highlights the speculative

nature of his claims.

The district court’s ruling creates significant concerns. Allowing

uncorroborated, self-serving testimony to form the basis of post-conviction relief

undermines the integrity of final judgments, incentivizes speculative claims, and

overwhelms the judicial system with unsupported allegations. Structural error

claims demand a high evidentiary standard to preserve judicial stability and public

confidence. By requiring adequate corroborating evidence, courts ensure that

legitimate claims are addressed while preventing frivolous litigation.

3. Denial of Procedural Objections

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The State objected to Defendant’s application under La. C.Cr.P. art.

930.8(B), arguing that Hawkins’ unavailability to testify prejudiced its ability to

rebut Defendant’s claims. The district court denied these objections. Given

Defendant’s failure to meet his burden of proof, the State’s procedural objections

are moot.

CONCLUSION

For these reasons, we grant the State’s writ and reverse the district court’s

October 2, 2024 ruling granting Defendant’s application for post-conviction relief.

WRIT GRANTED; RULING REVERSED

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