Steven R. Tate Versus State of Louisiana

STEVEN R. TATE NO. 24-KH-636

VERSUS FIFTH CIRCUIT

STATE OF LOUISIANA COURT OF APPEAL

STATE OF LOUISIANA

January 29, 2025

Linda Wiseman
First Deputy Clerk

IN RE STEVEN R. TATE

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JACQUELINE F.
MALONEY, DIVISION "D", NUMBER 16-7077

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Timothy S. Marcel

WRIT DENIED

Relator, Steven R. Tate, seeks supervisory review of the trial court’s judgment

denying his application for post-conviction relief (APCR). For the reasons that

follow, relator’s writ application is denied.

Facts and Procedural History

On August 10, 2022, a jury found relator guilty of second-degree murder.

On August 29, 2022, the trial court sentenced relator to life imprisonment at hard

labor without benefit of parole, probation, or suspension of sentence. This Court

affirmed relator’s conviction and sentence. State v. Tate, 22-570 (La. App. 5 Cir.

6/21/23), 368 So.3d 236. Relator did not file a writ application with the Louisiana

Supreme Court.

On February 8, 2024, relator filed his APCR in the trial court asserting

ineffective assistance of counsel. On July 31, 2024, relator filed a supplement to

his APCR that included additional claims of counsel’s ineffectiveness. On August

24-KH-636

6, 2024, the trial court ordered the State to file its procedural objections. In its

response, the State argued that relator’s claims were without merit. On November

21, 2024, the trial court denied relief, finding relator had not “presented sufficient

evidence of any of these claims, and thus has not met his burden,” citing La.

C.Cr.P. art. 930.2.1 On November 25, 2024, relator filed a pleading captioned as a

rebuttal to the State’s response, re-urging his claim of counsel’s ineffectiveness.

On December 5, 2024, the trial court denied relator’s pleading, stating: “Nothing in

petitioner’s present pleading affects or changes the court’s [November 21, 2024]

ruling denying relief.” Relator timely filed a writ application within thirty days

from the district court’s November 21, 2024 ruling from which he seeks review.2

Analysis

The following facts are provided from this Court’s opinion in State v. Tate,

22-570 (La. App. 5 Cir. 6/21/23), 368 So.3d 236, 239-44:

On November 29, 2016, Mr. Tate and his childhood friend L.L. were
together at L.L.’s grandmother’s house playing video games. L.L.’s
grandmother and his two teenage-sisters, A.L. and T.L., were also
present in the home that day. Mr. Tate considered L.L. and his
younger sisters like family. While playing video games, a decision
was made to purchase marijuana from Ethan Allen (“Mr. Allen”), a
local drug dealer and the victim in this case. Text messages presented
at trial demonstrated that Mr. Allen and A.L. had a dealer and
customer relationship based on the purchase of drugs. A text message
sent from A.L.’s phone was sent requesting a “$10 bag” from Mr.
Allen. Mr. Allen was given an address to meet, which was located
across the street from L.L.’s grandmother’s house. Mr. Tate, testifying
in his own defense, admitted that he also texted Mr. Allen the same
meeting address.

When Mr. Allen arrived at the agreed upon location, Mr. Tate and
L.L. approached Mr. Allen’s vehicle. Mr. Tate testified that he did not
contact Mr. Allen about the purchase of marijuana. Mr. Tate

1
La. C.Cr.P. art. 930.2 states: “The petitioner in an application for post-conviction relief shall
have the burden of proving that relief should be granted.”
2
Relator’s writ application does not include a copy of the trial court’s November 21, 2024
judgment because relator states that he never received this ruling. Indeed, the trial court record
indicates that the judgment was served on the wrong address. Relator also did not file a notice of
intent to seek writs due to his failure to receive the trial court’s judgment. Consequently, relator’s
writ application does not include a return date, as required by Uniform Rules – Courts of Appeal,
Rule 4-3. Nevertheless, relator’s writ application was filed within 30 days of the trial court’s
judgment.
2

explained that it was not his intent to purchase drugs from Mr. Allen,
but instead to talk to Mr. Allen about the “relationship” Mr. Allen had
with L.L.’s younger sister, A.L. Mr. Tate testified that he did not
know Mr. Allen but knew that he was an adult and that Mr. Allen was
“messing with [A.L.],” whom Mr. Tate stated was 14 or 15 at the
time. …

Mr. Tate testified that when Mr. Allen arrived, he (Mr. Tate) was
already outside with L.L., waiting on someone to pick him up. Mr.
Tate admitted that at that time, he was armed with a .45 caliber
Springfield Armory gun in his waistband and that L.L. also had a gun.
Mr. Tate explained that when Mr. Allen pulled up to the curb, he
walked to Mr. Allen’s car, opened the passenger door, and stood in
the doorway.

According to Mr. Tate, Mr. Allen tried to hand him money, but he
told him, “Just hold it. I just want to talk to you right quick.” Mr. Tate
asked if he was A.L.’s boyfriend, and Mr. Allen stated that he was
not. Mr. Tate questioned why Mr. Allen would be bringing her
money, and Mr. Allen asked why he was interested in knowing. Mr.
Tate told the jury that he explained to Mr. Allen that he was “like a
big brother to [A.L.] and she’s only 15,” and that he hoped they were
not having sex. Mr. Tate indicated that the previously calm interaction
grew heated.

Mr. Tate testified that he then told Mr. Allen, “[D]on’t put up on her
no more [sic] and she don’t need no [sic] money from you.”
According to Mr. Tate, Mr. Allen replied, “What, you gonna [sic] stop
me” and pulled out a gun and placed it in his lap, facing towards Mr.
Tate. Mr. Tate told the jury that he then began backing up and
reaching for his own gun. Mr. Tate testified that Mr. Allen fired two
shots, and Mr. Tate realized that he had been shot and began returning
fire. Mr. Tate testified that he fired two shots and then he was shot
again. Mr. Tate testified that he was shot six times and that it felt like
Mr. Allen was trying to kill him. Mr. Tate stated that he then ran
under the carport and threw his gun in the grass. He then told L.L. to
call the police and an ambulance before passing out.

Mr. Tate denied setting Mr. Allen up for a robbery and stated there
was no drug transaction. Mr. Tate admitted that he shot and killed Mr.
Allen, but said he did so in self-defense.

Kremly Marrero testified at trial that on November 29, 2016, he lived
at 803 Gulf Drive. At around 6:00 or 6:30 p.m., he and his wife heard
gunshots. He described it as two shots followed by a slight pause and
then an array of shots. Mr. Marrero testified that he walked outside at
the same time as his neighbor, who lived at 801 Gulf Drive. Mr.
Marrero testified that he saw a vehicle “coasting” down towards the
end of the street. Mr. Marrero stated that he saw Mr. Tate under the
carport where L.L. and his grandmother lived. L.L. was screaming
hysterically, and Mr. Marrero went to help Mr. Tate, whom Mr.
Marrero described as “bleeding out everywhere.” Mr. Marrero
assisted Mr. Tate until the police and EMS arrived.

3

***

Officer Boudreaux testified, upon inspecting the vehicle, they located
a projectile in the driver’s seat, three casings in the rear of the vehicle,
and one casing outside the vehicle. … Officer Boudreaux saw no
marijuana, other drugs, or any drug paraphernalia in the vehicle. Mr.
Allen’s vehicle was seized pursuant to a search warrant and seven
cartridge casings, two projectiles, and .40 caliber Smith and Wesson
firearm were recovered from inside the vehicle.

Officer Kevin Fernandez, a crime scene technician with the Gretna
Police Department, testified that Mr. Allen’s vehicle was processed
and described the projectile damage inside the car. He testified that
the vehicle had a hole from a projectile in the front passenger door as
well as holes from projectiles on the roof of the vehicle. Two bullet
holes were found in the rain guard, which the officer explained is the
plastic shield that goes over the car window. Officer Fernandez stated
there was also damage to the interior car door from another projectile.

Officer Damond Bartlett responded to the scene at 812 Gulf Drive.
Upon his arrival, he observed … Mr. Tate lying on the ground
suffering from multiple gunshot wounds to the torso. He located shell
casing projectiles in front of the residence and observed shattered
glass on the street. … Officer Bartlett testified that he did not find
marijuana or drug paraphernalia while canvassing the scene.

Officer Fernandez also testified that … a loaded 9 millimeter caliber
Sig Sauer pistol was recovered from the top of a shed. A .45 caliber
Springfield Armory pistol was recovered in the backyard. Both
firearms were seized.
***

Dr. Dana Troxclair, a forensic pathologist, with the Jefferson Parish
Coroner’s Office, conducted an autopsy of Mr. Allen. She testified
that she found a gunshot wound to the back of Mr. Allen’s armpit and
an exit wound to his left upper back. Dr. Troxclair testified that the
entry wound was consistent with Mr. Allen’s arm not being fully
stretched out. Dr. Troxclair testified that Mr. Allen bled out as a result
of the gunshot wound.
***

Dr. Tim Scanlan, a crime scene reconstructionist, testified that three
.45 caliber fired cartridge casings were recovered, which matched a
.45 caliber Springfield weapon. Dr. Scanlan testified that he was
present when Mr. Allen’s vehicle was processed and analyzed
pursuant to a search warrant. He stated that two projectiles and seven
casings were recovered from the interior of Mr. Allen’s vehicle, and
one casing was recovered outside the vehicle under Mr. Allen’s body.
Dr. Scanlan testified that on inspection, Mr. Allen’s vehicle had five
bullet holes and one bullet strike mark. He explained that based on the
holes and markings, he was able to determine that one of the bullet
holes that went through the car door evidenced that the door was open
at the time the shot was fired. Additionally, Dr. Scanlan testified that

4

he determined that two bullet holes found in the ceiling showed metal
pointing in the direction of travel, “buckling outward” and therefore
was evidence that the shots originated from inside the car. He further
stated that the angle of fire was going upward from the passenger side
to the driver’s side of the vehicle. From this information, Dr. Scanlan
testified that he concluded that based on the trajectory of the shots,
they originated from the front driver’s seat area. He explained that
“the angle of fire would be upward straight through the roof.”
Additionally, Dr. Scanlan testified that two other shots originated
from inside the vehicle based on the bullet holes. Dr. Scanlan also
explained that a bullet strike showed that there was another bullet
fired from inside the vehicle “facing back toward that...front driver’s
seat and striking” before “falling down and coming to rest.”
Moreover, Dr. Scanlan testified that a projectile that came to rest in
the front passenger-side door had been fired from the .40 caliber
Smith and Wesson firearm recovered from the rear passenger
floorboard of the vehicle.

Dr. Scanlan testified that the ballistic evidence was consistent with an
individual standing outside Mr. Allen’s vehicle and firing into the
open door. He described the evidence as consistent with “focused
fire” and showed a stationary shooter. By comparison, Dr. Scanlan
testified that the weapon fired by the driver of the vehicle was
“sporadic unfocused fire” as evidenced by the strike mark, the broken
window, bullet holes in the rain guard, and bullet holes in the ceiling.
He agreed that the evidence was consistent with the shooter of the .45
caliber Springfield Armory shooting two focused shots into the
vehicle, and then Mr. Allen returning fire in a “sporadic fashion.” He
further indicated that it “makes sense” for a wounded Mr. Allen to
drop the .40 caliber Smith and Wesson on the rear floorboard. He
testified that the trajectory put the “shooter [outside the vehicle],”
close to the vehicle or a couple feet away.

The State also presented the following other crimes evidence at trial.
In April 2015, Detective Jean Lincoln and Sergeant Justin Remes with
the Jefferson Parish Sheriff’s Office were involved in an investigation
regarding the shooting of Rogelio Polledo at the Belle Meade
apartment complex. Both indicated that it was an attempted armed
robbery.

Sergeant Remes explained that the victim sustained a gunshot wound
to the leg while inside his vehicle. The victim was transported to the
hospital prior to Detective Lincoln’s arrival. Upon Detective
Lincoln’s arrival on the scene, he observed a bloody passenger seat
with three bullet holes in it. Two bullet casings were found inside the
vehicle, and one was found outside the vehicle. Marijuana with blood
on it was also located inside the vehicle.

The victim identified the suspect from a photographic lineup. An
arrest warrant for Mr. Tate for attempted armed robbery and shooting
was obtained, and Mr. Tate was subsequently arrested. While initially
the victim had been cooperative with the investigation, after his cell
phone was held for processing, the victim became uncooperative.

5

Detective Lincoln agreed that it is very common for “victims of drug
rips” to be uncooperative. The case surrounding the April 2015
incident was ultimately dismissed due to the victim’s refusal to
cooperate in the prosecution of the matter. At trial, Mr. Tate
acknowledged that he had been arrested and charged with attempted
robbery in 2015 and that the case had been dismissed. Mr. Tate denied
knowing anyone named “Rogelio or Roger Polledo” or being involved
in an attempted robbery involving a shooting in Belle Meade in 2015.
Mr. Tate further testified that he was prepared to go to trial in that
case and prove his innocence.

Relator makes several allegations of counsel’s ineffectiveness at trial.

Specifically, relator contends that counsel failed to: (1) adequately cross-examine

Dr. Scanlan; (2) prevent the admission of relator’s prior bad acts; (3) call a

witness who would have bolstered relator’s claim of self-defense; (4) consult with

a crime scene expert; (5) effectively cross-examine Mr. Marrero; and (6) move for

a mistrial based on the admission of other crimes evidence.

Under the Sixth Amendment to the United States Constitution and Article I,

§ 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of

counsel. State v. Casimer, 12-678 (La. App. 5 Cir. 3/13/13), 113 So.3d 1129, 1141.

To prove ineffective assistance of counsel, a defendant must satisfy the two-prong

test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Casimer, 113 So.3d at 1141. Under the Strickland test, the

defendant must show: (1) counsel’s performance was deficient, that is, that the

performance fell below an objective standard of reasonableness under prevailing

professional norms; and (2) the deficient performance prejudiced the defense. Id.

An error is considered prejudicial if it was so serious as to deprive the defendant of

a fair trial, or “a trial whose result is reliable.” Id. To prove prejudice, the

defendant must demonstrate that, but for counsel’s unprofessional conduct, the

outcome of the trial would have been different. Id. (citing Strickland v.

Washington, supra).

6

First, relator complains that counsel’s cross-examination of Dr. Scanlan, the

State’s expert in crime scene reconstruction, was inadequate. As relator points out,

counsel limited his cross-examination of Dr. Scanlan to a question regarding the

distance of the shooter from the vehicle and the trajectory of the shots fired. In

response, Dr. Scanlan testified that the shooter could have been “close to the car or

a couple of feet away.” While relator asserts that counsel should have challenged

Dr. Scanlan’s conclusions about “focused” gunfire versus “sporadic unfocused”

gunfire, relator provides no grounds for countering the expert’s opinion. See La.

C.Cr.P. art. 930.2. Furthermore, counsel’s choices of which questions to ask on

cross-examination fall well within the ambit of trial strategy. See State v. Brooks,

94-2438 (La. 10/16/95), 661 So.2d 1333, 1337. Counsel may have avoided

questioning the witness on this subject so as not to draw further attention to Dr.

Scanlan’s opinion that the ballistics evidence showed the shots fired at the victim’s

vehicle were focused, while the victim fired his weapon “sporadically.” We cannot

say counsel’s cross-examination of Dr. Scanlan fell below an objective standard of

reasonableness.

Next, relator faults counsel for failing to “sufficiently represent” him against

the State’s use of prior bad acts. However, as we noted in relator’s appeal, counsel

objected to the State’s notice of intent to use other crimes evidence concerning

relator’s 2015 arrest for attempted armed robbery and aggravated battery. Tate, 368

So.3d at 248. “[D]efense counsel argued that the incidents were factually dissimilar

and that there were no facts to suggest that the instant case involving Mr. Allen

was an intended ‘drug deal gone bad,’” and that “because the 2015 matter was

dismissed, there was no corroborating evidence to support the inference that Mr.

Tate was the assailant in the April 2015 incident.” Id. Thus, contrary to relator’s

claim, counsel did attempt to prevent the introduction of other crimes evidence,

albeit unsuccessfully, and properly preserved the issue for appeal. On appeal, this

7

Court found no abuse of the trial court’s discretion when admitting evidence of the

2015 incident and relator’s arrest for attempted armed robbery and aggravated

battery. Id. at 249. This Court reasoned:

Even if this Court were to find that the other crimes evidence was
improperly admitted, which we do not, the error is harmless. As
previously discussed, Mr. Tate testified that he shot Mr. Allen, who
died as a result. While Mr. Tate asserted that the shooting was in self-
defense, the jury found otherwise. The evidence indicates that Mr.
Tate texted Mr. Allen where to meet him, and Mr. Tate approached
Mr. Allen with a gun on his person. The testimony and evidence
supported a finding that defendant fired his gun first and that Mr.
Allen fired back after he was shot. Additionally, the trial judge
provided the jury with an instruction on the limited purpose for which
it could consider the other crimes evidence. Therefore, the verdict was
surely unattributable to admission of the evidence related to the April
2015 incident.

Id. In short, counsel’s actions did not fall short with regard to other crimes

evidence.

Relator also faults counsel for failing to call Alizah Dryant as a witness.

According to relator, Ms. Dryant informed the police that she heard “multiple”

gunshots. The decision to call or not to call a particular witness is a matter of trial

strategy and not, per se, evidence of ineffective assistance of counsel. State v.

Allen, 06-778 (La. App. 5 Cir. 4/24/07), 955 So.2d 742, 751, writ denied sub nom.

State ex rel. Allen v. State, 08-2432 (La. 1/30/09), 999 So.2d 754. Although relator

claims that Ms. Dryant was interviewed “at least twice by Gretna police on

December 3, 2016,” relator does not provide either a copy of her statements to

police or any identifying information other than her name. Additionally, as the trial

court indicated, relator failed to include an affidavit from Ms. Dryant to support his

claim, and thus, relator failed to meet his burden of proof.

Similarly, relator’s contention that a crime scene expert would have

bolstered his self-defense claim appears speculative at best. See La. C.Cr.P. art.

930.2; see also Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (“[T]o

prevail on an ineffective assistance claim based on counsel’s failure to call a

8

witness, the petitioner must name the witness, demonstrate that the witness was

available to testify and would have done so, set out the content of the witness’s

proposed testimony, and show that the testimony would have been favorable to a

particular defense.”).

Next, relator contends counsel’s cross-examination of Mr. Marrero

regarding the sound of the gunshots failed to expose discrepancies between his

interview with police and his trial testimony. In support, relator includes a

transcribed copy of Mr. Marrero’s interview in which he described the first two

shots as sounding as if they were fired from a small firearm, like a .22 or 9-

millimeter gun, whereas the next round of shots sounded as though they had been

fired from a more “powerful” weapon.

According to relator, counsel should have cross-examined Mr. Marrero to

point out that relator’s firearm, a .45 caliber Springfield Armory gun, could never

be mistaken for “something small,” thereby lending support to the defense’s claim

that the victim fired first.3 Nevertheless, relator also claims that Mr. Marrero’s

interview states that he and his wife speculated that the second round of gunfire

could have been fired by two weapons. Although counsel did not ask Mr. Marrero

about this observation, counsel’s choices of which questions to ask on cross-

examination fall well within the ambit of trial strategy, as discussed above. See

Brooks, supra. Here, counsel’s cross-examination revealed that Mr. Marrero was

not an eyewitness to the shooting and was not a firearms expert, in an apparent

effort to discredit the witness. Consequently, it does not appear that counsel’s

cross-examination was deficient.

Relator further asserts that counsel failed to impeach Mr. Marrero with

evidence that the witness had outstanding attachments, which may have influenced

3
The victim’s gun was identified as a .40 caliber Smith and Wesson pistol, which relator alleges
is “slightly larger” than a 9-millimeter.
9

him to provide favorable testimony for the State. According to the trial transcript,

before Mr. Marrero’s testimony, the prosecutor informed the trial court and the

defense that the witness had “open traffic attachments” and “two attachments out

of Commissioner’s Court.” The prosecutor further stated that one attachment from

Commissioner’s Court had been recalled, and the other attachment was still active,

but a letter indicated that the “charges were refused.” However, under La. C.E. art.

609.1, only criminal convictions can be used to attack credibility, not matters

where there has been an arrest, an arrest warrant issued, an indictment, a

prosecution, or an acquittal.4 Thus, Mr. Marrero’s outstanding attachments do not

qualify as impeachment evidence that counsel could have used on cross-

examination.

Finally, regarding the allegation that counsel failed to request a mistrial after

other-crimes evidence was introduced—as seen above, counsel did object to the

introduction of other crimes evidence, an issue addressed in relator’s appeal. As

such, relator is hard-pressed to show that the trial court would have granted a

mistrial if counsel had requested it. See State v. Williams, 613 So.2d 252, 256-57

(La. 1992) (“When the substantive issue that an attorney has not raised has no

merit, then the claim that the attorney was ineffective for failing to raise the issue

also has no merit.”).

In sum, relator has not overcome the presumption that, under the

circumstances, counsel’s actions “might be considered strong trial strategy.”

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350

U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed.2d 83 (1955)). As such, relator has failed

4
Despite the general rule, the possibility that the prosecution may have leverage over a witness
due to that witness’ pending criminal charges is recognized as a valid area of cross-
examination. State v. Wiley, 10-811 (La. App. 5 Cir. 4/26/11), 68 So.3d 583, 592, writ denied sub
nom. State ex rel. Wiley v. State, 11-1263 (La. 3/30/12); 85 So.3d 106. Here, while relator alleges
that Mr. Marrero had a “powerful incentive to testify favorably for the State,” relator has not
shown that the witness received favorable treatment with regard to the outstanding attachments.
See La. C.Cr.P. art. 930.2.

10

to demonstrate that counsel’s alleged errors rendered his trial “fundamentally

unfair.” Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. Accordingly, relator’s writ

application is denied.

Gretna, Louisiana, this 29th day of January, 2025.

SMC
FHW
TSM

11

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 01/29/2025 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-KH-636
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Jacqueline F. Maloney (DISTRICT JUDGE)
Thomas J. Butler (Respondent)

MAILED
Steven R. Tate #771937 (Relator)
David Wade Correctional Center
670 Bell Hill Road
Homer, LA 71040