State of Louisiana v. Marlon Frank Thomas

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-578

STATE OF LOUISIANA

VERSUS

MARLON FRANK THOMAS

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 32246-12
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Phyllis M. Keaty, Judges.

AFFIRMED.

John F. DeRosier
District Attorney
Karen C. McLellan
Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
Counsel for Appellee:
State of Louisiana

Chad Ikerd
Louisiana Appellate Project
Post Office Box 2125
Lafayette, Louisiana 70502
(225) 806-2930
Counsel for Defendant/Appellant:
Marlon Frank Thomas

KEATY, Judge.

Following a jury trial, Defendant, Marlon Frank Thomas, was found guilty

of aggravated battery, aggravated burglary, attempted armed robbery, and

attempted armed robbery with a firearm. The trial court sentenced Defendant to a

total of forty years at hard labor. He now appeals his convictions. For the

following reasons, we affirm.

FACTS

On October 18, 2011, two masked men entered the Lake Charles, Louisiana,

apartment of the victim, Bradford Jacobs, demanding money. A fight ensued, and

the victim was shot in the back. The victim survived but was unable to identify the

perpetrators. 1 DNA evidence retrieved from a glove found at the scene linked

Defendant to the crime.

PROCEDURAL HISTORY

Defendant was charged by grand jury indictment with one count of

attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1, and one

count of home invasion, a violation of La.R.S. 14:62.8. Defendant pled not guilty

to the charges. Over defense counsel’s objection, the indictment was later

amended to change count two to aggravated burglary, a violation of La.R.S. 14:60,

and to add two additional charges: count three—attempted armed robbery, a

violation of La.R.S. 14:27 and 14:64, and count four—attempted armed robbery

1
In State v. Daugherty, 15-400 (La.App. 3 Cir. 10/7/15), 175 So.3d 1164, this court
affirmed the convictions and sentences of Defendant’s accomplice, Dionte Daugherty. A
unanimous jury found Mr. Daugherty guilty of attempted second degree murder and home
invasion, for which he was later sentenced to forty years and ten years, at hard labor, respectively.

with a firearm, a violation of La.R.S. 14:27 and 14:64.3. 2 Defendant pled not

guilty to the amended charges. The indictment was amended a second time to

correct the name of the victim in count one and to add more specific information to

counts two, three, and four.

Defendant’s jury trial began on July 13, 2015. The jury retired for

deliberations on July 16, 2015. After sending several notes to the trial court

indicating that they were deadlocked, the jury returned the following verdicts late

that evening: count one—guilty of aggravated battery (10-2); count two—guilty of

aggravated burglary (11-1); count three—guilty of attempted armed robbery (11-

1); and count four—guilty of attempted armed robbery with a firearm (11-1).

Thereafter, the trial court ordered a pre-sentence investigation (PSI) and set the

matter for sentencing. Defendant filed a Motion for New Trial, which the trial

court denied after a hearing. On October 13, 2015, the trial court imposed the

following sentences: count one (aggravated battery)—five years at hard labor;

count two (aggravated burglary)—fifteen years at hard labor; count three

(attempted armed robbery)—thirty-five years at hard labor; and count four

(attempted armed robbery with a firearm)—five years at hard labor. The trial court

ordered counts one, two, and three to run concurrently with each other and ordered

counts three and four to run consecutively with each other. Defendant filed a

written motion to reconsider sentence, which the trial court denied without a

hearing.

Defendant now appeals, alleging the following assignments of error:

2
This court denied Defendant’s writ seeking review of the trial court’s decision to allow
the State to amend the bill of indictment in State v. Thomas, 15-70 (La.App. 3 Cir. 2/27/15)
(unpublished opinion).

2

I. Evidence was insufficient to prove beyond a reasonable doubt
that Marlon Thomas was one of the masked men who robbed
the victim in this case.

II. The Trial Court abused its discretion and committed reversible
error by not protecting Marlon Thomas’ Sixth Amendment
Rights by securing any waiver from Mr. Thomas of an actual
conflict of interest his attorneys and their law firm had between
their simultaneous representation of him and one of the State’s
key, adverse eye-witnesses, over a defense objection.

III. Trial Court erred by allowing the State to ask questions of
Dr. Shimer about medical reports and medical issues outside
the scope of general surgery, the only field in which he had
been accepted as an expert, when the State deliberately
prevented giving the defense notice of such testimony.

IV. Trial Court erred in not granting Marlon Thomas’ Motion for a
New Trial because the State’s comments in closing that gave
the jury the impression that Mr. Thomas had to be forced to
provide his DNA by court order was factually wrong and
impermissibly shifted the burden of proof onto the defense;
thus, an admonition by the court was insufficient to protect
Mr. Thomas’ rights.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. Our review has revealed one error patent.

Defendant was incorrectly advised at sentencing that he had two years from that

date to file an application for post-conviction relief. Louisiana Code of Criminal

Procedure Article 930.8 provides that a defendant has two years after the

conviction and sentence become final to seek post-conviction relief. The trial court

is directed to inform Defendant of the correct provisions of La.Code Crim.P. art.

930.8 by sending appropriate written notice to Defendant within ten days of the

rendition of the opinion and to file written proof in the record that Defendant

3

received the notice. See State v. Baylor, 08-141 (La.App. 3 Cir. 11/26/08), 998

So.2d 800, writ denied, 09-275 (La. 11/20/09), 25 So.3d 795.

Assignment of Error Number One

Defendant asserts the evidence was insufficient to prove he was one of the

men who robbed the victim. He points out that no witness identified him as one of

the perpetrators, that he did not confess to the crime, and that his conviction was

based on circumstantial evidence.

The analysis for sufficiency of the evidence claims is well settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)).
In order for this Court to affirm a conviction, however, the record
must reflect that the state has satisfied its burden of proving the
elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

When the sole issue is Defendant’s identity as the perpetrator, the supreme

court has explained:

[W]hen the key issue is the defendant’s identity as the perpetrator,
rather than whether the crime was committed, the State is required to
negate any reasonable probability of misidentification. Positive
identification by only one witness is sufficient to support a conviction.
It is the factfinder who weighs the respective credibilities of the
witnesses, and this court will generally not second-guess those
determinations.

4

State v. Hughes, 05-992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051 (citations

omitted).

Evidence at Trial

The first witness to testify for the State was Robert Broussard, Supervisor of

Information for Calcasieu Parish 911. Mr. Broussard identified State’s Exhibit 1

as a compact disc he prepared at the request of the District Attorney’s Office which

contained audio recordings of two 911 calls concerning an October 18, 2011

incident. The recordings were played for the jury. A caller who identified himself

as “Gregory” stated that he needed police at 410 6th Street. Gregory explained that

he was eating with friends when two men dressed in black and wearing masks

entered the apartment with guns and began fighting with someone in the home. He

stated that he was able to get out of the apartment and that as he watched the two

intruders later walk away from the apartment, one of them appeared to have been

shot in the foot.

The next witness called by the State was Sergeant Franklin Fondel, a

seventeen-year veteran of the Lake Charles Police Department, who testified

extensively about his investigation in this case. He stated that he responded to the

scene after learning about an incident while monitoring his police radio. Upon his

arrival, he encountered Cristin Kibodeaux 3 standing in the driveway crying.

Ms. Kibodeaux told him that her friend had been shot. Sergeant Fondel

approached the apartment and saw the victim lying near the doorway. An Acadian

Ambulance had arrived and was preparing to transport the victim to a hospital.

3
In the transcript of Sergeant Fondel’s testimony, Ms. Kibodeaux’s first name is spelled
“Kristen.” During her own testimony, she spelled her first name “Cristin.”

5

Sergeant Fondel later met the victim’s upstairs neighbor, Gregory Jones, 4 in the

front yard and learned that Mr. Jones was in the victim’s apartment at the time of

the invasion. Thereafter, Sergeant Fondel had Mr. Jones and Ms. Kibodeaux

brought to the police station to give video statements to Detective David Roup,

who was working the case with him. Sergeant Fondel requested that headquarters

send Jordan Ashworth, an ID Technician (ID Tech), to process the scene. He then

joined Officer Dustin Fontenot near a red dumpster at the corner of Hodges and 6th

Streets. According to Sergeant Fondel, Ms. Kibodeaux and another witness had

told Officer Fontenot that they heard a loud boom when the two suspects ran from

the apartment towards Hodges Street before getting into a white Lumina with dark

tinted windows. Sergeant Fondel stated that when Officer Fontenot opened the

dumpster, it was empty of trash but contained two gloves and a ski mask.

Sergeant Fondel explained the layout of the victim’s apartment, describing it

as shotgun style with a bedroom/living room, followed by a kitchen, and then a

bathroom which led out the back door to a patio. Between the toilet area and the

back door, Sergeant Fondel saw a white left-handed garden glove with black beads

which he collected as evidence. When shown State’s Exhibit 17, Sergeant Fondel

described it as an envelope labeled “One gray and white glove” with a notation that

the glove was “Collected from the bathroom floor and front of back door.”

Sergeant Fondel examined the glove and identified it as the glove seized from the

victim’s bathroom floor. Sergeant Fondel also recalled observing three 380 shell

casings in the kitchen and two more in the bathroom, all of which were

photographed and logged into evidence at the police station by the ID Tech.

4
Apparently, Mr. Jones was the “Gregory” who made the 911 call. He did not testify at
trial.

6

Sergeant Fondel further testified that witnesses told him that two males had

entered the apartment dressed in black, wearing ski masks, and carrying weapons.

One subject was described as being short, approximately 5'5", and the other

suspect was described as being tall, approximately 6'1". Through his investigation,

Sergeant Fondel learned that Defendant is 6'0". When asked his next step in the

investigation, Sergeant Fondel stated he contacted the hospitals to see if anyone

had sought treatment for a gunshot wound since a witness reported seeing one of

the suspects hobbling away from the scene as if he had been shot. Sergeant Fondel

did not learn of anyone other than the victim receiving treatment for a gunshot

wound around the time of the incident.

Sergeant Fondel testified that after the scene was processed, he and the ID

Tech went to check on the victim at St. Patrick’s Hospital Emergency Room. The

victim, who was in extreme pain, was being treated for a gunshot wound to his

upper right back and for two cuts to the top of his head that had been inflicted by

the suspects; the ID Tech photographed the victim’s injuries. The victim was

unable to provide Sergeant Fondel with any information regarding who was

responsible for shooting him. Thereafter, the victim underwent emergency surgery

to treat his gunshot wound. The photographs taken by the ID Tech were shown to

the jury during Sergeant Fondel’s testimony.

Sergeant Fondel testified that two days after the October 18, 2011 incident,

he received an anonymous phone call regarding the identity and location of a

subject that was possibly involved in the incident. The tipster said the subject had

suffered a gunshot wound and was trying to get out of town to seek medical

attention. When Sergeant Fondel and several officers from the S.W.A.T. team

arrived at the address given to them by the anonymous caller, they were advised by

7

the resident who answered the door that her friend “Marlon Thomas,” i.e.,

Defendant, was there, and they were given permission to enter the house. Sergeant

Fondel found Defendant in a back bedroom with blood-soaked gauze wrapped

around his left knee. Defendant was placed under arrest and agreed to get medical

attention. During his testimony, Sergeant Fondel identified a photo depicting a

circle around the area of Defendant’s left calf where a bullet was lodged. Sergeant

Fondel stated that after the bullet was removed from Defendant’s leg, it was

immediately put into a jar and given to the ID Tech. Sergeant Fondel testified that

the bullet removed from Defendant and the five casings found at the victim’s

apartment were brought to the Louisiana State Police Crime Laboratory (La. Crime

Lab) in Baton Rouge, Louisiana, by an ID Tech. Defendant was brought to the

detective division after he left the hospital. Defendant gave a statement wherein he

claimed he was shot on October 18, 2011, around 6:15 p.m., in the Fisherville

area.5 Defendant admitted that he failed to report the gunshot to police and to get

medical attention. In his statement, Defendant stated he was in an alley area when

someone drove by and shot him. When asked if anyone reported shots fired in the

Fisherville area at that time, Sergeant Fondel responded:

None. I checked with our headquarters. Most of the time when
you have shots fired anywhere in the city, sometime if someone else
would hear shots or something, they would call just to say shots were
fired in the area. We had no shots fired in that area on that date at
6:15, or any that evening time. The only shots fired call we had of a
shooting [] was on 410 6th Street, where we was [sic] dispatched to.

When the State questioned Sergeant Fondel about the dumpster, he replied:

I advised earlier that Officer Dustin Fontenot, after obtaining that
information from the witness, Ms. Kristen Kibodeaux, he went to that
area to check it. And he observed the ski masks and observed two

5
Sergeant Fondel testified that the Fisherville area of Lake Charles “consisted of Evans
Street area, Goos Boulevard off of Shattuck Street, McMillan Park area.”

8

gloves, which the gloves was [sic] black and white. The black beads,
white, with all black ski mask that was in the dumpster, the red
dumpster.

Sergeant Fondel described a close-up picture of the ski mask and two gloves

found in the dumpster. When asked if he was able to make any connection

between the items found in the dumpster and Defendant’s accomplice, Dione

Daugherty, Sergeant Fondel explained:

Yes. After those items were submitted to our Southwest Crime
Lab here in Lake Charles, Louisiana. And - - and in December, a hit
came back off of those gloves and the ski mask, which came back
from a CODIS hit to Dionte Dougherty [sic], at which time we was - -
had to obtain DNA from Dionte Dougherty [sic] so it can be
compared to the CODIS hit that the crime lab had discovered. And
once they discovered that and we got the DNA, we submitted back to
the crime lab, and they compared it, and it came back positive to
Dionte Dougherty [sic].

On cross-examination, Sergeant Fondel stated he was told that Joshua

Plummer 6 was at the victim’s residence prior to the incident. When asked if

Mr. Plummer’s name came up during Defendant’s interview, Sergeant Fondel

stated that “it probably did.” Mr. Plummer’s name also came up in his interview

with the victim, Bradford Jacobs. According to Sergeant Fondel, the victim stated

that Mr. Plummer had been at his residence between 2:00 and 8:00 p.m. on the day

of the incident and that Mr. Plummer knew the victim had a large amount of cash.

Sergeant Fondel learned that Mr. Plummer left quite suddenly just before the

incident. Sergeant Fondel did not interview Mr. Plummer at that time.7

Sergeant Fondel noted that the name Anthony Batiste came up in his

investigation, but not as having involvement in the incident in question. As a
6
Joshua’s last name is spelled “Plummer” in some portions of the transcript and
“Plumber” in others. He did not testify at trial. For consistency, we use “Plummer” throughout.
7
As will be discussed later in this opinion, Sergeant Fondel later questioned
Mr. Plummer about this incident when he investigated and arrested him on another matter in
August of 2012.

9

result, he did not interview Mr. Batiste. Sergeant Fondel stated that when he

investigated the shooting death of Mr. Batiste that occurred after this incident, he

noted in his report that Mr. Batiste’s nickname was “Toodie.” The following

colloquy took place regarding names mentioned by the current victim in his

interview:

Q. Okay. Now, returning back to your interview with Mr.
Bradford Jacob[s]. In that interview did he indicate that one of the
gunmen was referring to the other as “Toodie” or “Tootie”?

A. He mentioned a “Toodie.”

Q. Uh-huh. He also did mention the name Anthony Batiste?

A. I don’t recall right off if he did or not, sir.

On re-direct, the State asked Sergeant Fondel how he put aside other

suspects and focused on Defendant. Sergeant Fondel answered:

Due to evidence that was submitted to the lab regarding []
witnesses, the two witnesses that was [sic] in the residence at the time
of this incident. That evidence was sent to the lab, and once DNA
was obtained Mr. Batiste along with Joshua Plumber was [sic]
excluded from this investigation.

Sergeant Fondel concluded by stating that no evidence was recovered in his

investigation of this matter that pointed to either Mr. Plummer or Mr. Batiste.

Jordan Ashworth, a crime scene technician for the Lake Charles Police

Department, testified that Sergeant Fondel requested her presence at the scene of

the incident. She collected five 380 shell casings at the scene and later a projectile

that was removed from Defendant at the hospital. Ms. Ashworth identified

Defendant as the person from whom the projectile was removed and State’s

Exhibit 42 as the projectile taken from Defendant’s leg.

Tammy Vincent, a registered nurse at Lake Charles Memorial Hospital

briefly testified at trial to identify a vial of blood collected from Defendant on

10

June 26, 2012, for purposes of DNA analysis. Monica Quaal, the DNA technical

leader of the Southwest Louisiana Crime Laboratory in Lake Charles, Louisiana,

was accepted as an expert in DNA analysis. Ms. Quaal stated that she received a

black ski mask, a set of gloves, and a separate glove. On the black ski mask and

set of gloves, Ms. Quaal found nothing relating to Defendant. On the separate

glove found on the victim’s bathroom floor, however, Ms. Quaal found a mixture

of DNA from at least two people. She explained that she found skin cells, or

contact DNA, left from contact with that glove. When Ms. Quaal compared the

contact DNA found in the glove with a reference sample from Defendant, she

could not exclude Defendant from being a contributor. Ms. Quaal testified that she

could exclude 99.9999992 percent of the Caucasian population, 99.999996 percent

of the African American population, and 99.999997 percent of the Hispanic

population. She was able to affirmatively exclude the victim as a contributor to the

DNA found inside the separate glove.

On cross-examination, Ms. Quaal testified that she had reference samples

from Defendant, the victim, and Mr. Daugherty but not from Mr. Batiste or

Mr. Plummer. She agreed that she did not know who the other DNA belonged to

and could not exclude either Mr. Batiste or Mr. Plummer because she did not have

reference samples from them. On re-direct, Ms. Quaal explained that the inside of

a glove is a good place to find DNA since a person’s skin cells will be scratched

off during movement.

Charles Watson, Jr., a forensic scientist with the La. Crime Lab was

accepted as an expert in firearms examination. Mr. Watson was provided with five

380 caliber cartridge cases and one bullet in connection with this matter. He stated

that the five cartridges did not have enough detail to determine whether they were

11

fired from the same firearm. While the bullet provided to him was a “380 auto

caliber,” Mr. Watson was unable to say that the bullet came from one of the

casings found at the scene. On cross-examination, Mr. Watson stated that the five

cartridges were made by three different manufacturers.

Dr. Richard Shimer, a staff surgeon at Lake Charles Memorial Hospital,

testified as an expert in general surgery. Dr. Shimer treated the victim for the

gunshot wound he received in this incident. Over defense counsel’s objection,

Dr. Shimer was allowed to review and testify regarding a report prepared by a

Dr. Gray, the physician who removed that bullet from Defendant’s leg. Dr. Shimer

testified that the bullet entered Defendant’s leg above his knee and did not exit.

When asked about the trajectory of the bullet, Dr. Shimer stated that he could not

say whether or not the bullet was shot from above. On cross-examination, Dr.

Shimer agreed he was not an expert in ballistics.

Cristin Kibodeaux testified that the victim called her on October 18, 2011,

asking her to pick up some cigarettes and alcoholic beverages for him because he

had been drinking all day and did not want to drive. As she walked toward the

victim’s apartment around 9:00 p.m., she saw two men standing outside in the

backyard. Both men were wearing dark clothing and jackets with hoods. She

described one as short and one as tall, estimating that the tall man was 6'0" to 6'1"

and the short man was 5'4" to 5'5". Ms. Kibodeaux stated that the two men were

“black guys,” the taller one being darker and the shorter one being lighter skinned.

When Ms. Kibodeaux walked into the apartment, the victim and someone named

Greg was there. At some point after she arrived, Ms. Kibodeaux turned around to

see two men wearing masks and gloves standing in the kitchen next to the victim.

The shorter man had a handgun pointed at the victim. When the taller man held up

12

a handgun, the victim turned, and the shorter man hit the victim in the head with

his gun. Ms. Kibodeaux screamed, put her hands over her face, and started

backing away from them. She stated she did not want to look at the two men

because she did not want to see their faces. The men asked the victim, “Where’s

the money? Give us money,” and the victim told them he did not have any money.

The men shouted for someone to turn the television volume up loud and demanded

that the victim take off his clothes. The victim refused and began fighting with the

shorter man. Ms. Kibodeaux heard the shorter man tell the tall man, “Man, E.O,

E.Z” or something along those lines. As she ran out of the apartment, she heard

two gunshots. As she reached the second door to exit the building, she heard two

or three more shots. Ms. Kibodeaux then ran toward a nearby house and banged

on the door saying, “Please help me.” When the couple inside cracked the door

open, Ms. Kibodeaux told them, “Please call 911. There’s two men with guns. I

believe they shot my friend. Please help.” Thereafter, the couple shut the door in

her face so she hid on their porch. Soon the two assailants came walking toward

her. She described the men’s behavior as odd, stating:

A. Yeah, I mean, they were - - they were walking very calm,
casual. They weren’t fleeing the scene. They weren’t running. They
weren’t looking around nervously. They were walking, afternoon
stroll, and went up the street. As soon as I see them, you know, I
remember being flabbergasted at first at how they were leaving the
scene so nonchalantly, but I ducked back down after I saw them
walking. I ducked down hoping they wouldn’t see me.

I hear a noise, and I remember taking mental note, I was saying
to myself this is when you need to try to get mental notes of what they
look like or what they’re doing. So, as I heard a noise I was trying to
get a mental note of what it was.

....

Q. What did the noise sound like?

13

A. It sounded like a lid being slammed. It sounded to me like a
trash can lid or something like that being slammed, you know,
because I have the big bin trash cans at my house and I’ll open it, you
know, and when I’m done, boom.

....

A. Because after I heard it and looked back up I noticed a
dumpster, not a trash can sitting on the road. I noticed a dumpster in a
front yard, as if the house were being renovated, you know, and I said
right then that’s what that noise was, that dumpster. So, as soon as I
saw the police officers I said, “You need to check that dumpster. I
heard that dumpster. I believe they put something in the dumpster.
You need to check that dumpster.”

Once Ms. Kibodeaux saw the intruders leave, she went back to the

apartment and found the victim lying on the floor with a gunshot wound. When

she went to the kitchen to get a rag, Ms. Kibodeaux noticed her car keys were

missing.8 A few minutes later, she heard sirens. When the police officers arrived,

she told them that the men had driven off toward 12th Street in what she believed

was a “white Lumina.” On cross-examination, Ms. Kibodeaux stated that she did

not know which one of the two men fired any of the gunshots. She did not recall

either of the two men limping as they were walking away after the incident, but she

clarified that she could not see their feet.

Sergeant Fondel was recalled as a witness and was asked about several

photographs marked as State’s Exhibits, 47, 48, and 49 which were images of the

victim’s kitchen counter. Sergeant Fondel identified items in the photographs,

including a bag with a pack of cigarettes and a bottle of beer, a scale, and a plastic

bag containing powder residue. He then testified regarding State’s Exhibit 50, a

photograph of a loveseat in the victim’s living room upon which there were several

items that had been removed from the victim’s pocket: a large amount of U.S.

8
Ms. Kibodeaux was not asked what kind of car she had driven to the victim’s residence.

14

paper currency, a cell phone, and a brown medicine bottle containing what

appeared to be rocks of cocaine. According to Sergeant Fondel, the victim

admitted to owning the cocaine in the brown bottle. On cross-examination,

defense counsel questioned Sergeant Fondel about Mr. Plummer. The defense then

introduced a document which Sergeant Fondel identified as showing that

Mr. Plummer had been sentenced to twenty years after being convicted of home

invasion. On re-direct, Sergeant Fondel explained that he had arrested

Mr. Plummer on August 24, 2012, on a matter unrelated to his investigation of

Defendant or Mr. Daugherty regarding the shooting of Bradford Jacobs, the victim

in this matter.

The victim was the next witness to testify. He stated that on the day of the

incident, he had played video games with Mr. Plummer at his apartment from

about noon until 8:00 p.m. He explained that he had known Mr. Plummer for

approximately thirteen years. After Mr. Plummer left the victim’s apartment, the

victim’s friend, Gregory Jones remained, and a short time later, Ms. Kibodeaux,

arrived. The victim and Ms. Kibodeaux were talking at the counter when two guys

wearing masks and gloves walked in with guns. The two men brought the victim

to his bed and asked him where his money was. When asked if he recognized

Mr. Plummer’s voice, the victim replied:

A. Right and neither one of them could possibly be Josh because
Short was two inches shorter than me and Josh is two inches taller
than me and Tall is too tall to be Josh and he’s also dark skinned.

Q. So I want to clarify for the Jury. When you talked about Short
and you talked about Dark, you’re talking about the two guys in the
masks, right?

A. Right.

Q. Because you couldn’t see their faces.

15

A. No. I couldn’t see their faces. On Short you could see
underneath his neck right here and that’s how I knew he was light-
skinned and also he had his sleeves rolled up so I knew he was light-
skinned; and Dark, I could tell under his eyes with his mask and by
his mouth he was brown skinned like me.

Q. So Short and Dark, they didn’t even match the physical
description of Josh?

A. No, sir.

Q. Did they sound like Josh?

A. No, sir.

When asked if he knew what money the intruders were talking about, the

victim stated he had no idea, but he guessed they may have been talking about the

money Mr. Plummer knew the victim was going to use to buy rims for his truck.

The victim stated that he had approximately $4,000.00 in his apartment which he

had received from Entergy for a power outage that had damaged some of his

appliances. The victim admitted that he had been drinking and had smoked some

marijuana on the day of the incident.

When asked to describe the incident, the victim stated:

A. The guy sat me on the bed. Once again he asked where the
money was. I told him I didn’t have any money. So he taps me on
top of the head with the gun. And I told him don’t do that again.
Don’t hit me with the gun again. So he went to do it - - well, before
that he asked me to take off my clothes. And I said no, I’m not taking
off my clothes either. So like I said, he went to hit me with the gun
again and I just started fighting him, beating him. I walked him all the
way to the kitchen because my house went living room, kitchen and
bathroom. So I just punched him all the way to the tub.

Q. So you started fighting back?

A. Right.

....

Q. What happens once you get to the bathroom?

16

A. I leaves[sic] him in the tub and he’s hollering.

Q. What do you mean you leave him in the tub? You pushed him
into the tub?

A. I punched him in the tub; I pushed him in the tub, so he’s
hollering to the back door. I don’t know what he was hollering, but I
see somebody come into the back door. I went to hit him twice. I
think I connected once and then I got shot. I heard pow pow and got
shot. I hit the floor like all the life came out of me. While I was on
the floor I hear cling, cling outside and I didn’t know what that was.
So two or three days later after waking up at the hospital I realized
that one of the guys shot himself and I see the pictures that you had,
so I put two and two together and he must have tripped over the - -

MR. FLAMMANG:

I’m going to have to object. This is speculation.

THE COURT:

It is.

Q. Let me ask you this way, Brad: you said you heard clink,
clink?

A. Right.

Q. This clink, clink sound, this was after the shots were fired?

A. Yes. This is when I was on the ground.

Q. So after you were on the ground you hear clink, clink. What
did you think that clink, clink sound was at the time?

....

A. I didn’t have no idea at that time.

(Alteration in the original). The victim then explained that the back door leading

from his bathroom connected to the back porch where a weight bench was located.

When asked if he could give any specific information about what “Tall dark,” did

that night, the victim replied:

17

I can’t say anything really about Tall dark, but he was there
because Short had me in the front with the gun saying everything,
pointing the gun to my head, telling me [to] take all my clothes off
and trying to get me to take all my clothes off. I really didn’t see Tall
until the end.

At that point, the victim heard “Short” holler something, and “Tall” came in. After

the victim tried to hit “Tall,” he heard two gunshots. The victim stated that in his

statement to police, he mentioned the name “Anthony Batiste” because that was

the name “surfacing around” on the street.

On cross-examination, the victim admitted he originally told police that he

pulled the bottle of crack cocaine out of the pocket of Anthony Batiste during the

struggle. He explained that originally he was afraid “they was [sic] going to try to

make this out of a drug case,” but he eventually recanted that statement.

According to the victim, he used the scale found in his apartment to weigh cocaine

for personal use and to make sure he was not shorted when he purchased

marijuana. After his memory was refreshed with a prior statement he made to

Sergeant Fondel, the victim remembered telling him that the gunmen were not

wearing gloves. When asked if he told Sergeant Fondel that one of the gunmen

was calling the other one “Tooty, Tuchi, [or] Tooty,” the victim responded:

A. A friend of mine, Greg Jones that was there, that’s what he said
he was hollering out.

Q. But do you remember?

A. I don’t recall saying that to Mr. Fondel, but I might have but
that’s what my friend, Greg, said they were saying.

On re-direct, the victim testified that his memory was good at the time he

spoke with Sergeant Fondel on November 30, 2011, but that he was in a

wheelchair due to injuries caused by the gunshot he received, and he was on

18

doctor-prescribed medication at the time. The State asked the victim the

following:

Q. Brad, if they weren’t wearing gloves[,] do you remember seeing
their hands?

A. Yes, sir. I don’t recall them having gloves on. I remember
seeing Short’s, like I said, his sleeve was pulled up. That’s how I
know he was bright, and you could see all under his neck area. That’s
how I knew it was bright. And then Tall was dark because you could
see in his mask around his eyes that he was dark like me; and also I
could see under his neck that he was dark like me.

The victim testified that he could see the gunmen’s wrist area.

Defendant’s Argument on Appeal

Defendant argues that the State offered no direct evidence of his identity as

one of the gunmen who entered the victim’s apartment on the night in question. In

his appellant brief,9 Defendant asserts:

There was no witness or victim who identified Marlon as being one of
the perpetrators. There was no confession by Marlon admitting to his
culpability in this crime. Instead, the State presented a circumstantial
case about Marlon’s height and build, partial DNA matches from a
mixture of DNA found in a glove, and a gunshot wound that Marlon
had to his leg and the relevance that had to this incident.

Defendant also argues that the witnesses’ stories diverged regarding whether the

gunmen wore gloves, whether one of the gunmen had a limp when walking away,

and which of the gunmen shot the victim. Additionally, Defendant argues:

[T]he State only offered inconclusive circumstantial, physical
evidence. The caliber of bullets taken from Marlon’s leg and found in
Mr. Jacob[s’] apartment were .380, one of the most common bullet
calibers used in America. Thus, the odds that any random two
handguns would use that caliber bullet is relatively high. Therefore,
any conclusions drawn from such a finding is speculative and
insignificant. The State was not, however, able to match the bullets to
a particular gun, a far more significant piece of evidence if it existed.

9
When discussing the arguments made by the parties’ in their appellate briefs, all
references to page numbers from the record and from either parties’ brief have been omitted.

19

As for the strength of the State’s DNA evidence, Defendant argues:

Finally, the State sought to inflate the significance of what it
called a “match” of Marlon’s DNA to a glove found not in
Mr. Jacob[s’] apartment, but in the garbage near his home. The
profile was described as a mixed profile, which means it had at least
two contributors to the mixture. When this occurs it makes
determining a “match” very difficult. As the State’s expert testified,
when you have a mixture profile, assuming the analyst did everything
right and the machines worked properly, if the results of the test show
“peaks 1, 2, 3” at a given loci, this means “you can not exclude
anyone who has a 1, 2, or 3 peak at that area. You can exclude
anybody who might have a 4, 5, 6, 7, or 8, but you can’t exclude
anyone who would have a 1, 2, or 3.”

The State’s Argument on Appeal

In its appellee brief, the State argues that none of the testimony was

inconsistent: rather, each witness had his own perspective. As for Defendant’s

claim that he was not shot during the robbery, the State refers to the 911 call,

during which the caller, indicated that one of the perpetrators was “hobbling

away.” The State contends as follows:

It is believed that in his attempt to get out of the apartment, the
defendant tripped over the weight bench and shot himself in the leg.
Brad testified that he was in the bathroom suffering from a gunshot
wound when he heard a “clink clink” sound. The backdoor of Brad’s
bathroom is connected to his back porch where he had an old weight
bench. When shown pictures of the back porch, Brad stated that the
bench was normally not in the middle of the walkway.

The State further submits that even though Ms. Kibodeaux testified that she did not

see either man limping away, she also testified that she did not see their feet well.

As for Defendant’s argument regarding the DNA evidence, the State argues:

Finally, the defendant avers that “the State sought to inflate the
significance” of the DNA found in this matter. DNA analyst,
Ms. Monica Quaal testified that Defendant’s DNA could not be
excluded from being a contributor to the mixture of DNA found in the
glove. The defendant makes much fuss about her testimony and states
that simply because someone is “not excluded” does not mean that
they are “included” as the provider of the DNA. However, Ms. Quaal
could only speak of exclusion because there was more than one

20

contributor to the DNA glove. She explained that 99.9999992 percent
of the Caucasian population, 99.999996 percent of the African
American population and 99.999997 [percent] of the Hispanic
population could be excluded as a contributor to the DNA found in the
glove, but the defendant could not be excluded. Those are pretty high
odds against the defendant. The possibilities abound as to who else
could have been a contributor or who else could have been excluded,
but that would have no effect on the findings regarding this
defendant’s DNA in the glove.

Legal Analysis

First of all, we note a misstatement made by Defendant in his brief. In his

attempt to diminish the importance of the DNA evidence, Defendant asserts that

the DNA “matched” to Defendant was recovered from one of the gloves found in

the dumpster near the victim’s home, not from the glove found in the victim’s

apartment. According to the evidence at trial, however, Defendant’s DNA could

not be excluded as a contributor to DNA retrieved from the glove found in the

victim’s bathroom. When shown State’s Exhibit 17, Sergeant Fondel stated that it

was an envelope labeled “One gray and white glove.” There was an indication on

the envelope that the glove was collected “from the bathroom floor and front of

back door.” The glove from which Ms. Quaal extracted DNA was the glove found

on the victim’s bathroom floor. When Ms. Quaal compared the contact DNA

found in the glove with a reference sample from Defendant, she concluded that she

could not exclude Defendant from being a contributor “to that mixture.” Thus,

Defendant was linked through DNA evidence to the glove found in the bathroom

of the victim’s apartment, not from the gloves found in the dumpster.

In State v. Falgout, 15-953 (La.App. 4 Cir. 8/24/16), 198 So.3d 1232, the

defendant challenged his identity as the perpetrator of a sexual assault. Like the

present case, the victim did not identify Falgout. Instead, Falgout was identified

through DNA analysis of swabs taken from the victim’s body. Falgout could not

21

be excluded as a minor contributor to DNA found on the victim’s left buttock. The

court noted that the DNA expert concluded it was “411 billion times more likely

that the sample” taken from the victim’s buttock was a mixture of DNA from the

victim and Falgout than a mixture from the victim and an “unrelated random

individual from the Caucasian population.” Id. at 1242. “With respect to the

African-American population, it was 195 trillion times more likely” that the DNA

found on the victim’s buttock was from the victim and Falgout than from the

victim and another random individual; and “with respect to the Southwest Hispanic

population, it was 54.0 trillion times more likely” that the DNA was from the

victim and Falgout than the victim and an “unrelated random individual.” Id.

Falgout attempted to diminish the importance of the DNA evidence by theorizing

that his DNA could have been transferred to the victim “when the perpetrator made

her lie down on the wooden board while he attempted to rape her,” that the “DNA

sample was negative for seminal fluid,” and that the victim “fail[ed] to remember

if the perpetrator was circumcised.” Id. After reciting the DNA expert’s rebuttal

to each of these theories, the fourth circuit stated:

Nonetheless, none of these arguments disproves his
identification as the perpetrator. The jurors were made aware of all of
these arguments, and they still found that the State proved that the
defendant was the perpetrator. A fact finder’s credibility
determination is entitled to great weight and should not be disturbed
unless it is contrary to the evidence. The defendant has made no
showing that the jury’s finding is contrary to the evidence. Despite
the lack of any identification by the victim, the State showed that it
was between 411 billion to 195 trillion times more likely that the
sample taken from K.W.’s buttock contained DNA from her and the
defendant than from her and another unrelated random individual.

While K.W. did not identify the defendant, the DNA evidence
adduced at trial was sufficient for the jury to reject the defendant’s
theory that his DNA was transferred to her when she lay down on the
wooden board. Thus, the State produced sufficient evidence for the
jury to find beyond a reasonable doubt that the defendant was the

22

perpetrator of the sexual assault, supporting its verdicts of guilty of
two counts of attempted forcible rape.

Id. at 1242-43 (citations omitted).

Similarly, the jury in the present case heard Defendant’s hypothesis of

innocence, i.e., that someone else committed the crime, that the DNA evidence was

inconclusive, and that his gunshot wound occurred during a shooting at another

location. The jury was also made aware that even though 99.9999992 percent of

the Caucasian population, 99.999996 percent of the African American population,

and 99.999997 percent of the Hispanic population could be excluded, Defendant

could not be excluded as a contributor to DNA recovered from a glove found in the

victim’s bathroom on the night of the incident. Additionally, the jury heard the

testimony of two people who saw the perpetrators leaving the scene. One

witness’s testimony was given in the form of a 911 call, wherein the witness stated

that one of the perpetrators looked like he was shot in the foot. The other witness

said the perpetrators were walking away nonchalantly but admitted that she did not

see their feet clearly. Two days after the incident, police received an anonymous

tip that a person had suffered a gunshot wound and was trying to get out of town to

seek medical attention. Based on that tip, the police found Defendant with a

gunshot wound to his leg. Defendant gave inconsistent explanations as to how his

leg was injured, neither of which was corroborated by the evidence. Finally, the

caliber of the bullet extracted from Defendant’s leg was the same caliber of the

shell casings found at the victim’s apartment.

After hearing all of the above, the jury chose to reject Defendant’s

hypothesis of innocence. This court has stated the following regarding a jury’s

rejection of a defendant’s hypothesis of innocence:

23

With respect to a jury’s rejection of a hypothesis of innocence, our
supreme court in [State v.] Calloway, [07-2306 (La. 1/21/09),] 1 So.3d
[417,] 422 (citations omitted), concluded:

[W]e have repeatedly cautioned that due process, rational
fact finder test of Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a
reviewing court to substitute its own appreciation of the
evidence for that of the fact finder or to second guess the
credibility determinations of the fact finder necessary to
render an honest verdict. A reviewing court may intrude
on the plenary discretion of the fact finder “only to the
extent necessary to guarantee the fundamental protection
of due process of law.” Thus, as Judge Pettigrew
emphasized, when a jury reasonably and rationally
rejects the exculpatory hypothesis of innocence offered
by a defendant’s own testimony, an appellate court’s task
in reviewing the sufficiency of the evidence under the
Due Process Clause is at an end unless an alternative
hypothesis “is sufficiently reasonable that a rational juror
could not ‘have found proof of guilt beyond a reasonable
doubt.’”

The jury’s decision to reject Defendant’s hypothesis regarding
the commission of the crime was based upon its rational credibility
and evidentiary determinations. Accordingly, the jury’s verdict
should not be overturned.

State v. Jackson, 14-9, pp. 12-13 (La.App. 3 Cir. 6/18/14), 146 So.3d 631, 639,

writ denied, 14-1544 (La. 2/27/15), 159 So.3d 1066.

In the instant matter, Defendant never offered an explanation as to how his

DNA would be on a glove found in the victim’s bathroom. On the other hand, “the

State produced sufficient evidence for the jury to find beyond a reasonable doubt”

that Defendant was one of the masked men who robbed the victim. See Falgout,

198 So.3d at 1243. The jury’s decision to reject Defendant’s hypothesis regarding

his non-participation in the crime was based upon its rational credibility and

evidentiary determinations. Accordingly, the jury’s verdict is not contrary to the

evidence and will not be overturned. Defendant’s first assignment of error lacks

merit.

24

Assignment of Error Number Two

Defendant asserts the trial court abused its discretion and committed

reversible error by not securing a waiver from Defendant of an actual conflict of

interest his attorneys had between their simultaneous representation of him and,

Ms. Kibodeaux, one of the State’s key witnesses.

In State v. Garcia, 09-1578, pp. 37-38 (La. 11/16/12), 108 So.3d 1, 28, cert.

denied, ___ U.S. ___, 133 S.Ct. 2863 (2013) (most citations omitted) (footnotes

omitted), the supreme court stated the following regarding conflicts of interest:

Assistance of counsel in one’s defense and the appointment of
counsel if indigent is guaranteed by the Sixth Amendment to the
federal constitution and by Article I, § 13 of the Louisiana
Constitution. When counsel is required, the constitutional mandate
for a fair trial requires counsel to be competent. The assistance of
counsel is an essential right because it is the means by which a
defendant asserts all other constitutional rights within our justice
system. Therefore, when counsel has a conflict of interest, the
conflict may thwart the assertion of a full defense to criminal charges.

Such conflicts usually arise in the context of joint
representation. However, joint representation is not per se illegal and
does not violate the Sixth Amendment of the United States
Constitution or Article I, § 13 of the Louisiana Constitution unless it
gives rise to an actual conflict of interest.

Generally, under our jurisprudence, “Indigent Defender Boards
are . . . treated as the equivalent of private law firms to effectuate a
defendant’s Sixth Amendment right to effective assistance of conflict-
free counsel and the ethical obligation of an attorney associated with
other lawyers in a firm to avoid representing a client ‘when any one of
them practicing alone would be prohibited from doing so. . . .’ La.
Rules of Professional Responsibility, Rule 1.10(a).” State v.
Connolly, 06-0540 (La.6/2/06), 930 So.2d 951, 954, n. 1; State v.
McNeal, 594 So.2d 876 (La.1992).

Previously, in State v. Carmouche, 508 So.2d 792 (La.1987), on rehearing,

the issue of a potential conflict of interest was raised during trial when the

defendant’s court-appointed attorney, Edward Lopez, learned that Ernest Jenkins,

the prosecution’s witness who would disclose the defendant’s jailhouse confession

25

was his own client. Mr. Lopez told the court he may not be able to cross-examine

the witness on certain topics because there could be a conflict of interest. The

supreme court found this was sufficient evidence to alert the trial judge of an actual

conflict of interest:

Defendant’s counsel was confronted with an actual conflict of
interest when one of his clients was arguably the most damaging
witness against a second client. When Lopez cross-examined Jenkins,
one of his clients would suffer. If Lopez failed to raise a doubt as to
Jenkins’ credibility, Defendant’s case would be seriously damaged.
On the other hand, if Lopez were successful in his cross-examination,
he could jeopardize Jenkins’ plea bargain that had not yet been
formalized.

Id. at 804. Acknowledging that the conflict of interest issue arose during trial

rather than prior to trial, the supreme court stated the following regarding the trial

court’s responsibility:

While being mindful of the restrictions inherent in the
attorney/client privilege, the judge should require the attorney to
disclose the basis of the conflict. If the judge determines that the
conflict is not too remote, he should explain the conflict to the
defendant outside the presence of the jury and inform the defendant of
his right to representation that is free of conflict. Thereafter, if the
defendant chooses to exercise his right, a statement should be
prepared in narrative form, which indicates that the defendant is fully
aware of his right but has chosen to make a knowing and intelligent
waiver thereof. If the defendant opts not to waive his right to counsel
that is free of conflict, the judge must offer the defendant and his
counsel a mistrial under C.Cr.P. 775(1).

Once the judge determines that a conflict of interest in fact
exists, it is presumed that the conflict will affect the defense counsel’s
representation of his client. If the trial court fails to take the proper
steps to protect defendant’s right to effective counsel, a reversal of the
conviction is required. As stated by the United States Supreme Court
in Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 467, 86
L.Ed. 680, 702 (1942), “The right to have the assistance of counsel is
too fundamental and absolute to allow courts to indulge in nice
calculations as to the amount of prejudice arising from its denial.” In
Holloway v. Arkansas, [435 U.S. 475, 98 S.Ct. 1173 (1978)], the
Court found the holding in Glasser v. United States, [315 U.S. 60, 62
S.Ct. 457 (1942)], to be “whenever a trial court improperly requires
joint representation over timely objection reversal is automatic.”

26

[Holloway,] 435 U.S. at 489, 98 S.Ct. at 1181. This holding is
applicable where defense counsel alerts the trial court during trial that
he is faced with a conflict of interest and the trial judge orders counsel
to continue without taking the proper steps to protect the defendant’s
right to counsel that is free from conflict.

Id. at 805 (some citations omitted). After determining that the trial court failed to

take appropriate measures to protect Carmouche’s right to conflict-free counsel,

the supreme court reversed his conviction and sentence and remanded the matter

for a new trial. Id.

Between deciding Carmouche and Garcia, after “conclud[ing] on direct

appeal that the defendant did not knowingly and intelligently waive his right to

conflict-free representation by appointed counsel,” the supreme court, in State v.

Cisco, 01-2732, p. 1 (La. 12/3/03), 861 So.2d 118, 120, cert. denied, 541 U.S.

1005, 124 S.Ct. 2023 (2004), reversed the convictions and sentence of a defendant

who had been sentenced to death by lethal injection following his convictions of

three counts of first degree murder. In its discussion of the conflict of interest

issue, the supreme court noted that:

[T]he trial judge in this particular case could have taken a number of
simple steps to safeguard the defendant’s Sixth Amendment
rights. . . . [F]or example, the trial judge could have easily appointed
another attorney to represent the defendant, since on each occasion
when the issue arose trial would not transpire for many months or
years in the future.

Id. at 134.10

10
The Garcia court distinguished Carmouche and Cisco on the basis that:

[T]here was no actual conflict in the attorneys’ representation of defendant at trial
because none of these attorneys’ loyalties were divided[; n]one of his attorneys
jointly represented other defendants to whom the attorneys owed duties of
loyalty[, and n]one of defendant’s counsel was called upon to cross-examine any
of his former or current clients in the State’s prosecution, mandating reversal.

Garcia, 108 So.3d at 45-46.

27

Evidence at Trial

Before the cross-examination of Ms. Kibodeaux, one of Defendant’s

attorneys notified the trial court that his law firm had previously represented her.11

The State posited that because Ms. Kibodeaux had no prior convictions, there

would be nothing with which the defense could impeach her. Defense counsel

responded that although he did not want to question Ms. Kibodeaux about any

criminal convictions, he brought up the conflict issue because of his concern that it

was ethically impermissible for a person’s previous counsel to act against that

person’s legal best interest in any manner. Nevertheless, defense counsel

expressed to the trial court his belief that a verbal consent by the witness would be

sufficient. The trial court then allowed Defendant’s attorneys, both of whom were

employees of the Public Defender’s Office and both of whom stated on the record

that they did not recall ever personally representing Ms. Kibodeaux, to question

her about the fact that she had been previously represented by members of their

office. When told that “there might be a potential conflict of interest in us cross-

examining you because of that prior representation,” Ms. Kibodeaux

acknowledged and waived any potential conflict, and the court recessed for the

evening. Prior to the taking of evidence the following day, the State suggested to

the trial court that it ought to conduct a colloquy with Defendant regarding the

conflict issue. During that colloquy, the State responded:

In this case we have Mr. Monroe and Mr. Flammang who stated
that they did not actually represent the witness, Ms. Kibodeaux. So I
don’t believe it’s a situation of actual conflict. I do think that it’s a
good thing that Mr. Monroe brought this to the attention of the Court.

11
Defendant’s attorney explained that his office had represented her in city court and in
the Fourteenth Judicial District Court in conjunction with three misdemeanors and three felonies,
but that he believed that all of those matters had been resolved.

28

Obviously he was acting as a professional in doing so. I just don’t
think that this rises to an actual conflict of interest situation.

After hearing arguments, the trial court found no actual conflict of interest

existed and stated for the record:

Counsel having in their diligence suggested to this Court that this
issue arose through the fault of no one, and that after the witness
testified it was brought to Defense Counsel’s attention and the State’s
attention that this witness may have been represented in a historical
way by the Public Defender’s Office.

In fact, Mr. Flammang pointed out that because of a filing
system, there’s no reason to believe that they’re still not representing
that client.

I think the distinguishing factor is set forth in State vs. Garcia
and State vs. Cisco is that the present attorneys, Counsel and Co-
counsel, have nothing to suggest and their records don’t indicate that
they have indeed in the past represented that witness.

So I think under Garcia and Cisco I don’t think that a conflict
would exist, and as a result thereof we should proceed with this trial.
Anything further?

I want to note the objections on the record by Mr. Jim
Flammang and his Co-counsel, Mr. Monroe, of the same.

After the court ruled, another defense counsel, Andrew Casanave, stated the

following regarding the conflict issue:

Cisco was a case where the private defense attorney who was
appointed was also the divorce attorney of the lead defective [sic] in a
murder investigation, and it was a hotly contested divorce that she
represented the detective in. And it would have been awfully easy for
her to know that she had that conflict. It was painfully obvious she
had that conflict.

The Public Defender’s office is essentially a Law Firm, the
second largest Law Firm in Calcasieu Parish after the District
Attorney’s Office. We deal in tens of thousands of files; and it is not
as easy for us to know if and when we have a conflict.

I do find it interesting, I was the attorney Mr. Monroe
referenced who the District Attorney tried to kick off of a murder case
because we had previously represented the deceased. And I pointed

29

out to Judge Davis we had no duty to the deceased anymore because
he was deceased.

I’m curious if and where the bright line is for the District
Attorney’s Office as far as our conflicts, because I would like all the
guidance in the world.

Defense counsel Monroe then attempted to distinguish Garcia:

To preserve the record in an attempt to distinguish, the Garcia case
that Ms. Sigler cited clearly states in the Court’s reasoning when
they’re discussing the presence, or lack thereof, of a conflict of
interest, they explicitly point out that none of the Defense’s counsel
was called upon to cross-examine any of his former or current clients
in the State’s prosecution.

This case is clearly distinguishable from that as was evidenced
yesterday Mr. Flammang cross-examined Ms. Kibodeaux on the
stand. I want to make sure that that was noted that the Court did rely
on the fact that the lawyers in this case were representing three
codefendants and there was no issue of a cross-examination of a
current or former witness.

Finally, the State offered the following:

Yes, Your Honor, just to clarify the State’s position, conflict of
interest law like any other area of law is an evolving area of
jurisprudence.

Garcia is the latest statement through the Louisiana Supreme
Court, and Garcia is the position of the District Attorney’s Office
with regard to conflict of interest cases involving the Public
Defender’s office, because it is in fact the latest word of the Louisiana
Supreme Court on that issue.

The trial court did not change its ruling. When the matter was raised again at the

hearing on Defendant’s motion for new trial, the trial court denied the motion.

Defendant’s Argument on Appeal

In his appellant brief, Defendant argues:

The trial court’s ruling was incorrect even if Marlon’s attorneys
had not directly represented Ms. Kibodeaux. Marlon’s attorneys
worked for a law firm that has and/or is currently representing her in
criminal matters. Thus, the conflict Ms. Kibodeaux’s assigned-
attorneys have in this case are also imputed onto Marlon’s attorneys.

30

Since a timely objection was made prior to trial ending, the showing
of an actual conflict requires reversal of Marlon’s conviction.

Defendant further argues the trial court erred in failing to find an actual

conflict. He further argues that despite Mr. Monroe having made statements

indicating he did, in fact, represent Ms. Kibodeaux in the past, the trial court failed

to investigate the extent of the “potential conflict.”

Addressing the State’s argument that Ms. Kibodeaux’s lack of a conviction

record showed no impeachment was possible, Defendant argues that “there could

have been something in Ms. Kibodeaux’s case or conversations with an attorney

that could have directly related to her ability to be a credible witness in this case –

i.e. history of not telling the truth.” Defendant also suggests that Ms. Kibodeaux’s

active bench warrant meant her case was also active with the court. Thus,

Defendant argues, “the 14th Judicial District [Public Defender’s Office] and its

attorneys [] still represented Ms. Kibodeaux at the time of her testimony against

Marlon, creating an actual conflict.”

The State’s Argument on Appeal

Although the State acknowledges that an attorney called upon to question a

current or former client labors under a conflict of interest, the State contends in its

appellee brief that no “actual conflict” existed in the present case:

Mr. Monroe did not remember Cristin, nor his representation of her;
he simply remembered her face. He exhibited no loyalty to her. He
clearly did not represent her in any matters adverse to this defendant.
His connection to her was minimal at best. Thus, any conflict would
be too remote to have any effect on this matter.

Nor can Defendant point to any instances in the record where
either of his attorneys exhibited divided loyalties. The record reflects
that this defendant was represented by two clearly competent
attorneys, who advocated zealously on his behalf, resulting in a
conviction of a lesser offense of aggravated battery from an attempted
second degree murder charge. There was no “actual conflict.” And if

31

there was no “actual conflict” as to Cristin, there could be no “actual
conflict” as to Defendant.

Alternatively, the State submits that even if there was an “actual conflict,”

Ms. Kibodeaux waived it. In that regard, citing State v. Smith, 13-596 (La.App. 1

Cir. 11/1/13) (unpublished opinion),12 the State contends that once Ms. Kibodeaux

“waived the attorney-client privilege and voluntarily subjected herself to full cross-

examination, including details of her prior drug use and possible impeachment of

her previous testimony, the alleged conflict was removed.” Moreover, the State

submits that even “[a]ssuming arguendo that the conflict was not ‘too remote,’ it

ceased once Cristin waived her potential conflict” because “[t]here was no longer a

possibility of divided loyalties.” Finally, the State contends that the trial court did

not abuse its discretion in finding the conflict was too remote.

Legal Analysis

In the present case, the trial court was made aware of a potential conflict

during trial. The trial court found, however, that there was no actual conflict

because there was no indication that either one of Defendant’s attorneys actually

represented Ms. Kibodeaux. As Defendant argues in brief, however, the testimony

is unclear as to whether Mr. Monroe actually represented Ms. Kibodeaux.

Additionally, it appears that if another member of the Public Defender’s Office

represented Ms. Kibodeaux, that representation would be imputed to Defendant’s

attorneys as employees of the Public Defender’s Office. Nonetheless, we conclude

12
In Smith, 13-596, the defense counsel “claimed that he could not both zealously
represent the defendant and protect the confidential information provided to him by Verret[, a
trusty[ ] who on the fourth day of trial informed the State that the defendant had admitted to the
crime when they were roommates.]” On appellate review, the first circuit held that “once Verret
waived the attorney-client privilege and voluntarily subjected himself to full cross-examination,
including details of his prior convictions and reasons for testifying, the alleged conflict was
removed. Thus, the defendant’s rights were adequately protected, and the district court did not
abuse its discretion in denying defense counsel’s motion to withdraw.” Id.

32

that the evidence presented was insufficient to prove that either of Defendant’s

attorneys was operating under an actual conflict of interest. The fifth circuit

addressed a factually similar case and found no actual conflict existed. See State v.

Kelly, 14-241 (La.App. 5 Cir. 10/29/14), 164 So.3d 866, writ denied, 14-2499 (La.

9/25/15), 178 So.3d 163. The defense attorney in Kelly had previously represented

one of the State’s witnesses. Kelly argued that “an actual conflict arose when [his

attorney] was required to cross-examine [the witness at trial,] that the conflict was

not cured by a valid waiver and that the error . . . was not harmless.” Id. at 877.

The State contended, however, that no actual conflict existed because Kelly’s

attorney had “only represented [the witness] in her role as an indigent defender at a

preliminary hearing in an unrelated matter.” Id. Agreeing that no actual conflict

existed, the fifth circuit explained:

The phrase “actual conflict of interest” means “precisely a
conflict that affected counsel’s performance—as opposed to a mere
theoretical division of loyalties.” Mickens [v. Taylor], 535 U.S. [162,]
171, 122 S.Ct. [1237,] 1243 [(2002)]. An actual conflict of interest
arises when a defense counsel is “put in the unenviable position of
trying zealously to represent Defendant at trial while simultaneously
trying to protect the confidences of a former client who was testifying
for the state against Defendant.” State v. Bell, 04-1183 (La.App. 3
Cir. 3/2/05), 896 So.2d 1236, 1243, writ denied, 05-0828 (La.
11/28/05), 916 So.2d 143, citing Carmouche, 508 So.2d at 804. The
facts presented in this case do not show that defense counsel was
forced to labor under an actual conflict with clearly divided loyalties.

Id. at 879 (footnote omitted).

As in Kelly, we conclude that no actual conflict of interest existed in the

present case when defense counsel cross-examined Ms. Kibodeaux.

Ms. Kibodeaux did not testify against Defendant. Nothing in Ms. Kibodeaux’s

testimony specifically described Defendant as one of the perpetrators.

Ms. Kibodeaux simply described the perpetrators as black and described one

33

perpetrator as being tall and the other perpetrator as being short. Ms. Kibodeaux’s

description of the two perpetrators walking away “nonchalantly” actually helped

Defendant’s theory that the perpetrator was not shot during the incident.

Additionally, Ms. Kibodeaux did not recall seeing either of the two men limping as

they walked away. Thus, Ms. Kibodeaux’ testimony did not operate against

Defendant’s theory of misidentification.

Furthermore, the minutes indicate that Ms. Kibodeaux was represented by an

attorney from the Public Defender’s Office to answer bench warrants. There is no

definite evidence that Ms. Kibodeaux was represented by either one of Defendant’s

counsel at trial. Finally, the State indicated that Ms. Kibodeaux had no prior

convictions with which defense counsel could have impeached her.

Recently, in State v. Tucker, 13-1631, p. 37 (La. 9/1/15), 181 So.3d 590,

619, cert. denied, ___ U.S. ___, 136 S.Ct. 1801 (2016), the supreme court

explained that even if a defendant proves an actual conflict, he still must show that

a “lapse in representation” resulted from the conflict:

“[O]nce Defendant establishes that there was an actual conflict, he
need not prove prejudice, but simply that a ‘lapse in representation’
resulted from the conflict.” [United States v.] Iorizzo, 786 F.2d [52,]
58 [(2d Cir. 1986)] (quoting Cuyler [v. Sullivan], 446 U.S. [335,] 349,
100 S.Ct. [1708,] 1718). To prove a lapse in representation, a
defendant must “demonstrate that some ‘plausible alternative defense
strategy or tactic might have been pursued,’ and that the ‘alternative
defense strategy was inherently in conflict with or not undertaken due
to the attorney’s other loyalties or interests.’” United States v. Levy,
25 F.3d 146, 157 (2d Cir. 1994) (quoting Winkler [v. Keane], 7 F.3d
[304] at 309).

Defendant has neither alleged nor shown that his defense attorneys failed to

adhere to an alternative defense strategy based on their loyalty to Ms. Kibodeaux.

Thus, even if Defendant proved an actual conflict of interest existed between his

34

attorneys and Ms. Kibodeaux, Defendant still failed to prove a “lapse in

representation.”

For the foregoing reasons, we conclude that Defendant’s second assignment

of error lacks merit.

Assignment of Error Number Three

Defendant asserts that the trial court erred in allowing the State to question

Dr. Shimer, an expert in the field of general surgery, about medical reports and

issues outside of his expertise. Defendant further alleges the State deliberately

failed to give Defendant notice of such testimony. He further contends that the

State’s voir dire of Dr. Shimer failed to establish his expertise with regard to

making findings concerning bullet trajectories, which prevented Defendant from

conducting more than a rudimentary voir dire of Dr. Shimer’s qualifications as an

expert witness in the field of general surgery. The State counters that Defendant

did not preserve this argument for appeal. Alternatively, the State submits that the

trial court did not abuse its discretion in allowing Dr. Shimer to testify beyond the

scope of his expertise, and, even if the trial court committed any error in that

regard, such error was harmless.

Louisiana Code of Evidence Article 702 provides the following regarding

testimony by experts:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:

(1) The expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

35

(3) The testimony is the product of reliable principles and
methods; and

(4) The expert has reliably applied the principles and
methods to the facts of the case.

With respect to opinion testimony of experts, La.Code Evid. art. 703 provides:

The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made
known to him at or before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be admissible in
evidence.
In Lewis v. B-N-D Garage & Towing, Inc., 10-163, pp. 7-8 (La.App. 3 Cir.

10/6/10) (unpublished opinion), we stated:

Comment (d) to Article 703 specifically references inadmissible
hearsay, stating that it is allowable if it is reasonably relied upon by
experts in forming their opinions. The comment provides that it is for
the court to determine whether such hearsay “may be ‘reasonably
relied upon’ in this fashion.” La.Code Evid. art. 703, comment (d).
Moreover, the fact that an expert’s opinion is based on information
not personally known to him affects the weight attributed to his
opinion, not the admissibility of the opinion. See Gagnard v. Zurich
Am. Ins. Co./Assur. Co. of Am., 02-19 (La .App. 3 Cir. 6/12/02), 819
So.2d 489.

“The trial court is vested with wide discretion in determining the

competence of an expert witness, and its ruling on the qualification of the witness

will not be disturbed absent an abuse of discretion.” State v. Williams, 615 So.2d

1009, 1022 (La.App. 1 Cir.), writ denied, 619 So.2d 543 (1993) (citing State v.

Trahan, 576 So.2d 1 (La.1990)). “However an expert witness may not give expert

testimony beyond the scope of the field of expertise in which he is qualified.” Id.

As the second circuit has explained, “[t]he test of competency of an expert is his

knowledge of the subject about which he is called upon to express an opinion. A

combination of specialized training, work experience and practical application of

the expert’s knowledge can combine to demonstrate that a person is an expert.”

36

State v. Franklin, 42,055, p. 24 (La.App. 2 Cir. 5/09/07), 956 So.2d 823, 839, writ

denied, 07-1489 (La. 1/11/08), 972 So.2d 1162.

During the trial, the State offered Dr. Shimer as an expert in general surgery.

After the defense stipulated to Dr. Shimer’s expertise in that field, the trial court

recognized him as offered. Dr. Shimer testified that he treated the victim, Bradford

Jacobs. When the State asked Dr. Shimer if he had occasion to look at Defendant’s

medical records, Defendant’s attorney stated that he questioned the relevance of

Dr. Shimer testifying as to Defendant since he never treated him. Thereafter, the

State requested a bench conference. The jury was then removed from the

courtroom and one of the State’s attorneys argued to the trial court:

I anticipated such an objection. Whenever we were preparing for trial
- - Dr. Gray is the doctor who evaluated Marlon Thomas. His
testimony is exceedingly relevant as he talks about the angle at which
the bullet entered as well as then where the bullet was finally lodged
and then removed. That testimony is going to be exceedingly relevant
as we proceed further to trial.

That being said, at the time we were preparing for trial Dr. Gray
was out of the country. His staff had no idea where he was or when
he would return. It turns out he has returned. We made contact with
him today and apparently it would put a tremendous strain on the ER
because he’s the only doctor there in the ER.

After examining the issue in light of Gagnard, 819 So.2d 489, and La.Code Evid.

arts. 702 and 703, and noting that trial courts are vested with “great latitude” in

“granting expert status to witnesses,” the trial court ruled that it would allow

Dr. Shimer to testify regarding Dr. Gray’s report. In doing so, the trial court

recognized that defense counsel’s concerns, while valid, could be sufficiently

addressed in defense counsel’s cross-examination of Dr. Shimer. The trial court

then gave the attorneys a ten-minute break before allowing Dr. Shimer to return to

the witness stand.

37

When Dr. Shimer resumed his testimony, he stated that he had reviewed

Dr. Gray’s report. The State then asked Dr. Shimer, from his review of the report,

where the bullet entered Defendant. Dr. Shimer stated that the bullet entered

Defendant’s thigh above his knee and lodged in the lower part of his leg.

Dr. Shimer was then shown photographs taken in the hospital which showed the

wound on Defendant’s leg. The State then elicited the following testimony:

Q. That was State’s Exhibit 18 for the record. So, Dr. Shimer, we
have an entry wound on the inner part of the thigh above the knee, and
we have a lodging on the lower part of the leg. What, if anything,
does that tell you about the trajectory the bullet was traveling?

A. That it was generally traveling in the general direction of the
length of the leg away from the body.

Q. So, I know there’s a lot of factors that would have played, but if
you have a shot that comes [into] the inner part of the leg above the
knee and lodges itself below, is it fair to say the shot would have
come from above? Would it come horizontally? I mean, from what
angle would the shot have come?

A. The shot would have come from above the thigh, but it also
depends on what direction the thigh was in when the shot was fired.
So, if you’re asking me if it was shot from above, I couldn’t say that.

....

Q. But as you were talking about before, in your common sense,
ordinary life experience, if we assume the leg was in normal posture,
say for instance my leg, in a normal posture like this, not being upside
down or not laying on the ground, if my leg is in normal posture like
so, then the shot would have come from above; is that a fair
assumption?

A. If you had that injury and it - - you were standing when that
occurred, yes, the shot would have come from above.

On cross-examination, Dr. Shimer testified that he did not treat Defendant,

that he had received Defendant’s records for the first time that day, and that he had

reviewed the records for about half an hour prior to his testimony. When asked if

he was an expert in gunshot wounds, Dr. Shimer responded that he was “an expert

38

in treating gunshot wounds” but not in the field of ballistics. Dr. Shimer testified

that with his medical training, he felt comfortable testifying as to how a bullet

moves through various parts of the body. The following colloquy then took place

between the defense and Dr. Shimer regarding his opinion as to the trajectory of

the bullet:

Q. When Mr. Sudduth and you spoke, you talked about the fact
that the way the wound looked to you indicated that the shot came
from above the entry wound.

A. Correct.

Q. What I was asking is does the angle at which that entry wound
is made, can you draw any conclusions about the angle at which that
was made, the distance it was made from the entry wound or where it
ended up?

A. I don’t think I could say how far the gun was away from the
puncture site.

Q. That’s what I was asking. You don’t feel like you can
determine the distance away the shot was made.

A. I - - not from looking at the wounds here, no.

Q. It’s not possible for you to say what position Mr. Thomas’ leg
was in when that shot occurred?

A. I would say that the firearm was in the general same direction
as what the leg was at the time that it sustained an injury.

Q. So, if Mr. Thomas was laying on the ground, the gun would
have been - -

A. If he was laying on the ground with his legs extended?

Q. Yes, sir.

A. It would be more of a horizontal aim of the weapon. If he was
standing up, it would have been more aimed down. If his foot was
straight in the air, the gun would have been pointed in that direction.

39

Defendant’s Argument on Appeal

In brief, Defendant claims he was not given any notice that Dr. Shimer

would be qualified as an expert in any field. While Defendant acknowledges that

he stipulated as to Dr. Shimer’s expertise as a surgeon, he nonetheless contends

that the State did not establish Dr. Shimer’s expertise in bullet trajectories nor did

it give him notice of its intent to introduce Dr. Shimer as an expert in bullet

trajectories. Defendant contends that “the issue was never the State’s use of a

report prepared by another doctor,” but was instead its “questioning Dr. Shimer

outside the scope of his expertise.” He further contends that the trial court’s

conclusion that his opportunity to cross-examine Dr. Shimer would remedy his

concerns was erroneous and prejudicial to his defense. Defendant argues on appeal

that “the State’s tactic ran afoul of Louisiana Code of Criminal Procedure Article

719(A) that places an affirmative duty upon the State to, at the very least, disclose

the “name of the expert witness, his qualifications, a list of materials upon which

his conclusion is based, and his opinion and the reason therefor.” Finally,

Defendant questions the actual purpose for which the State offered Dr. Shimer’s

testimony, stating:

Thus, the State’s attempt to hide the true nature [of its reason for]
calling Dr. Shimer clearly violated the discovery obligations upon the
State to provide notice to the defense in order to guarantee a full and
fair trial.

....

Marlon’s prejudice in this matter rested on the fact that while
his story about his whereabouts at the time of the shooting were
suspicious, they could not otherwise be disproven by the State. The
only thing that proved Marlon may have lied about anything, and thus
undermined his whole story, was whether he was shot in the leg by
someone driving in a car while he was walking (shot at horizontal
angle) versus whether he was shot at a downward angle (shot at

40

vertical angle), likely by himself. As stated in Assignment of Error
No. 1, the physical evidence in this case was circumstantial at best.
The only evidence the State offered to attack Marlon’s credibility had
to do with the bullet wound to his own leg. Thus, without the trial
court’s incorrect ruling, the balance of the State’s evidence was not
sufficient to prove guilty [sic] beyond a reasonable doubt.

The State’s Argument on Appeal

In its brief, the State contends that Defendant failed to formally object to the

State’s questioning of Dr. Shimer relative to the bullet wound suffered by

Defendant or to the trial court’s decision to allow Dr. Shimer to testify in that

regard. It points out that during the bench conference concerning Dr. Shimer’s

testimony, defense counsel stated, “I think Dr. Shimer could review [Dr. Gray’s]

reports and come to his own conclusions and testify as to those.” The State further

contends that Defendant made no argument at trial regarding any discovery

violations allegedly committed by the State. As such, the State submits that

Defendant’s argument regarding any impropriety in its use of Dr. Shimer’s

testimony was not preserved for appeal.

Legal Analysis

Louisiana Code of Criminal Procedure Article 841 provides in pertinent part,

“[a]n irregularity or error cannot be availed of after verdict unless it was objected

to at the time of the occurrence.” It is clear that Defendant failed to complain of

any discovery violations in the trial court. Accordingly, we conclude that

Defendant has waived review of those issues. The question of whether Dr. Shimer

testified beyond his expertise, however, is not as clear. While defense counsel

questioned the possibility that Dr. Shimer’s testimony regarding the pathology of

gunshot wounds was beyond Dr. Shimer’s expertise, no specific objection was

made to any portion of Dr. Shimer’s testimony. Without any specific objection, it

41

is impossible for this court to determine which specific testimony Defendant finds

objectionable. Nevertheless, we will address Defendant’s argument that

Dr. Shimer was allowed to testify beyond his expertise. In a case with similar

expert testimony, the first circuit stated the following:

In any event, while the doctor had qualified in this case only as an
expert in the cause of death and not in the area of ballistics, he could
testify to the existence of powder burns, a matter of which he had
gained personal knowledge through his observations during the
autopsy. See La.Code Evid. Arts. 602 and 703. On the other hand,
the doctor’s testimony concerning his approximation of the distance
from which the gun was fired to produce the powder burns and the
various factors related to the production of powder burns appears to
exceed the scope of his field of expertise. Nevertheless, this
testimony, relating to the approximate distance from which it might be
inferred that either of the fatal shots were fired, was harmless beyond
a reasonable doubt. See La.C.Cr.P. art. 921; State v. Henderson, 352
So.2d 206 (La.1977).

Williams, 615 So.2d at 1022-23.

Similarly, in the present case, Dr. Shimer testified within his expertise as a

general surgeon when he testified as to the point at which the bullet entered

Defendant’s body as well as the movement of the bullet once it entered

Defendant’s body. As Dr. Shimer, admitted, however, he was not an expert in

ballistics. Thus, Dr. Shimer’s testimony regarding the trajectory of the bullet

before it entered Defendant’s body may have been beyond his expertise.

Nonetheless, we find that any such error was harmless. First, the defense cross-

examined Dr. Shimer on the trajectory of the bullets, causing Dr. Shimer to

eventually conclude only that the firearm was in the general same direction as

Defendant’s leg when Defendant sustained the injury. Dr. Shimer could not tell

what position Defendant’s leg was in; thus, he could not tell whether the leg was

horizontal or vertical. Based on this inconclusiveness, we conclude that

Dr. Shimer’s testimony did not prejudice Defendant. Secondly, the sufficiency of

42

the State’s evidence was not dependent on Dr. Shimer’s testimony. The physical

fact that Defendant was shot, regardless of the bullet’s trajectory, along with the

DNA evidence linking Defendant to the glove found in the victim’s bathroom, was

sufficient to convict Defendant. See e.g., State v. Washburn, 16-335 (La.App. 3

Cir. 11/2/16), 206 So.3d 1143 and State v. Wommack, 00-137 (La.App. 3 Cir.

6/7/00), 770 So.2d 365, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.

For the foregoing reasons, we find that the trial court did not abuse its

discretion in allowing Dr. Shimer to testify about Defendant’s bullet wound.

Moreover, even if we were to find that Dr. Shimer testified beyond his expertise,

we conclude that any such error was harmless. Thus, Defendant’s third assigned

error is meritless.

Assignment of Error Number Four

In his final assignment of error, Defendant contends that the trial court erred

in denying his motion for new trial that was based upon what he alleged to be an

improper argument made by the State in its closing arguments. The comments

related to Defendant’s consent or non-consent to his blood being drawn.

Louisiana Code of Criminal Procedure Article 851 provides in pertinent part:

A. The motion for a new trial is based on the supposition that
injustice has been done the defendant, and, unless such is shown to
have been the case the motion shall be denied, no matter upon what
allegation it is grounded.

B. The court, on motion of the defendant, shall grant a new
trial whenever any of the following occur:

(1) The verdict is contrary to the law and the evidence.

(2) The court’s ruling on a written motion, or an objection
made during the proceedings, shows prejudicial error.

....

43

(5) The court is of the opinion that the ends of justice would be
served by the granting of a new trial, although the defendant may not
be entitled to a new trial as a matter of strict legal right.

“The ruling on a motion for new trial is committed to the sound discretion of the

trial judge and will be disturbed on appeal only when there is a clear showing of an

abuse of that discretion.” State v. Viree, 95-176, p. 8 (La.App. 3 Cir. 3/6/96), 670

So.2d 733, 737, writ denied, 96-885 (La. 9/20/96), 679 So.2d 431.

Louisiana Code of Criminal Procedure Article 774 states the following

regarding the scope of closing arguments:

The argument shall be confined to evidence admitted, to the
lack of evidence, to conclusions of fact that the state or defendant may
draw therefrom, and to the law applicable to the case.

The argument shall not appeal to prejudice.

The state’s rebuttal shall be confined to answering the argument
of the defendant.

Regarding the appropriateness of a mistrial based on improper argument,

La.Code Crim.P. art. 770 provides:

Upon motion of a defendant, a mistrial shall be ordered when a
remark or comment, made within the hearing of the jury by the judge,
district attorney, or a court official, during the trial or in argument,
refers directly or indirectly to:

(1) Race, religion, color or national origin, if the remark or
comment is not material and relevant and might create prejudice
against the defendant in the mind of the jury;

(2) Another crime committed or alleged to have been
committed by the defendant as to which evidence is not admissible;

(3) The failure of the defendant to testify in his own defense; or

(4) The refusal of the judge to direct a verdict.

An admonition to the jury to disregard the remark or comment
shall not be sufficient to prevent a mistrial. If the defendant, however,
requests that only an admonition be given, the court shall admonish

44

the jury to disregard the remark or comment but shall not declare a
mistrial.

According to La.Code Crim.P. art. 771, an admonition is appropriate in

certain circumstances:

In the following cases, upon the request of the defendant or the
state, the court shall promptly admonish the jury to disregard a remark
or comment made during the trial, or in argument within the hearing
of the jury, when the remark is irrelevant or immaterial and of such a
nature that it might create prejudice against the defendant, or the state,
in the mind of the jury:

(1) When the remark or comment is made by the judge, the
district attorney, or a court official, and the remark is not within the
scope of Article 770; or

(2) When the remark or comment is made by a witness or
person other than the judge, district attorney, or a court official,
regardless of whether the remark or comment is within the scope of
Article 770.

In such cases, on 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 supreme court has stated the following regarding a motion for a mistrial

under La.Code Crim.P. art. 770(3), a comment made about a defendant’s failure to

testify:

“Direct” and “indirect” references to the defendant’s failure to
take the stand are prohibited by article 770(3). State v. Johnson, 541
So.2d 818, 822 (La.1989). “When the prosecutor makes a direct
reference to the defendant’s failure to take the stand, a mistrial should
be declared, and “it is irrelevant whether the prosecutor intended for
the jury to draw unfavorable inferences from defendant’s silence.’”
Id. (citing [State v.] Fullilove, 389 So.2d [1282,] 1284 [(La.1980)].
When the reference to the defendant’s failure to take the stand is not
direct, this Court will inquire into the remark’s “intended effect on the
jury” in order to distinguish indirect references to the defendant’s
failure to testify (which are impermissible) from statements that are
not (which are permissible, though not favored). Johnson, 541 So.2d
at 822; Fullilove, 389 So.2d at 1284; State v. Jackson, 454 So.2d 116,
118 (La.1984). In order to support the granting of a mistrial, the
inference must be plain that the remark was intended to focus the
jury’s attention on the defendant’s not testifying.

45

State v. Mitchell, 00-1399, pp. 4-5 (La. 2/21/01), 779 So.2d 698, 701.

Evidence at Trial

During its rebuttal closing argument, the State asserted the following:

On the second page when the nurse gives her details in there, in the
same report, he didn’t consent to his blood being drawn, Ladies and
Gentlemen. He objected. The Defense knows that. It was a court
order to get his blood drawn.

Why be so willing to submit to a polygraph but refuse the
blood? Well, the polygraph is inadmissible. The blood speaks; the
blood has power; the blood won’t lie; and the blood is what tied him
to the apartment. That’s why he didn’t consent to the blood, he
consented to the polygraph. That’s why he wasn’t willing to have his
blood taken, which would reveal, as Monica Quaal said, the building
blocks of who he is.

At another point in its rebuttal argument, the State mentioned that Defendant’s

DNA was obtained from a court order because Defendant would not consent to

have it drawn for “obvious reasons.” Later, the State argued:

Remember all the DNA was tested. Everything was tested.
The blood on the sill there on the back of the door, that blood was
tested for Bradford Jacobs[’] blood when he was shot. The gloves
were tested and came back Deonte Dougherty [sic] and Marlon
Thomas.

Yes, three black males. That was only tested for blood, gloves,
and DNA that we ever got, any traces of it. And if this Phantom that’s
been conjured this week about Joshua Plummer had any merit, where
was the effort made? Why didn’t he just consent to his own blood
being drawn?

Marlon Thomas didn’t consent because he knew the truth. He
knew he was behind that house, and he knew he was involved in this
calculated plan to rob and if he had to, to kill.

After the State’s argument and prior to the trial court’s instructions to the

jury, Defendant notified the court of its objection to the State’s argument regarding

Defendant’s refusal to consent to his blood being drawn:

46

MR. FLAMMANG:

Your Honor, and I would invite you to examine S-44 for
yourself. Mr. Sudduth characterized Marlon Thomas as - - he said he
refused to have his blood drawn and that it required a court order. I’m
looking at the consent form which Marlon Thomas signed, Suspect
consent for forensic nurse exam and their consent.

There is a little narrative attached that says “He refuses to have
his blood drawn because his understanding was for Det. Fondel to be
present and have it drawn along with Bradford Jacobs[’]. The patient
says he will not freely volunteer blood sample until Bradford Jacobs is
present for his blood draw.

Once Det. Fondel present [sic] he explained to patient, Bradford
Jacobs, blood was drawn already. Patient ready to sign same consent
and proceed. Patient watched and verified as I labeled purple top
tube, his name and date of birth. He verified I wrote his name, date of
birth correctly before and after blood drawn.”

There is no court order in here, Your Honor. There is no court
order. My client consented to have his DNA drawn. We were asking
to have his DNA drawn, Your Honor.

....

MR. FLAMMANG:

That’s a gross mischaracterization of what’s in the evidence,
Your Honor.

....

THE COURT:

Do you have a motion?

MR. MONROE:

Yes, Your Honor. At this time Defense would make a motion
for mistrial due to prosecution’s mischaracterization which should be
clear for the record in closing statements by insinuating that Mr.
Thomas did not consent to have his blood drawn and submitted for
DNA testing, as well as insinuating that there was a court order
requiring such before this draw occurred.

THE COURT:

State?

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MR. SUDDUTH:

Your Honor, there is a reason I did not introduce State’s 44
during my close, though I did consider it, because it mentions exactly
what Mr. Flammang said, which is that he wanted Det. Fondel to be
there in order for his blood to be drawn. Once Fondel showed up, he
did it.

However, there is a court order signed by Judge Savoie for
Marlon Thomas to get his blood drawn. That is the court order that I
was referring to. To say there’s not a court order - -

THE COURT:

You’re suggesting - - the Defense is telling that it does not
exist, court order for the withdrawal evidence from the defendant.

MR. FLAMMANG:

Your Honor, the Judge ordered it done because we were asking
to have it done and there had been plenty of delays.

THE COURT:

So there is a court order.

MR. FLAMMANG:

There may well be, Your Honor. I don’t have it.

THE COURT:

I think it’s vital to your request of the grant for this Court to
consider a mistrial. Do you have - -

MR. FLAMMANG:

The problem is, though, it’s a gross mischaracterization of the
court order. They say he didn’t consent when it says here he did.

THE COURT:

Indeed. My question to you is you’re asking this Court to
consider a mistrial when suggesting number one: there was a
mischaracterization in closing by the State; and number two: that it
does not exist[,] a court order for the draw of blood by division “A” in
this Court?

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....

MR. FLAMMANG:

Okay, Your Honor. This is to me ancient history because this
was a while ago. As I recall, we had filed a motion for bond reduction
and we wanted the DNA testing done prior to that and there had been
delay after delay after delay because of problems with the lab. And
finally it came to a head. And yes, I do believe he did order it done,
but I believe it was an order more directed at the lab to do it than for
us to provide it.

The trial court denied the request for a mistrial and admonished the jury as

follows:

There was a short part of the closing phase that I want to bring to your
attention and what the Louisiana law would suggest is an admonition.

What that means is that I’m going to ask you to disregard a
small portion of what was said at the conclusion of the State’s
remarks. The State may have suggested and you may have
remembered that the State suggested they had to get a Court order to
draw blood because Defendant refused to draw blood. I want you to
disregard that statement. That was not in the evidence and I feel as
though you should know that before I read the instructions to you.

Actually, my instructions will tell you how you should deal
with that statement as I read them to you. So I want the record to
reflect that the Court admonished the Jury in that respect.

The trial court subsequently instructed the jury to consider only evidence

that was introduced at trial and not to consider evidence that it was instructed to

disregard. The trial court further instructed the jury that closing arguments were

not evidence. The State’s comments during closing argument were once again

challenged by Defendant in a motion for new trial, which the trial court denied.

Defendant’s Argument on Appeal

In his brief to this court, Defendant raises the same argument asserted in his

motion for new trial:

Under the Sixth Amendment and La.Const. art. I, § 16 of [sic] Marlon
had no obligation to testify or produce evidence. In accordance with

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these rights, a rule “has long been in place prohibiting the State from
commenting on a defendant’s failure to testify or produce evidence in
closing arguments.” Griffin v. California, 380 U.S. 609 (1965).
Nevertheless, the State brought up a court order requiring Defendant
to submit DNA during closing argument, creating the impression that
he was reluctant to provide this evidence.

Compounding the error, the State grossly mischaracterized the
circumstances leading up to the collection of DNA from Defendant.
On several occasions Defendant offered to have his DNA tested, and
was delayed by technical issues beyond his control. When his DNA
was eventually obtained, it was done pursuant to a consent form
signed by Defendant. Nevertheless, the State presented an argument
designed to lead the jury to believe that Defendant did not willingly
cooperate with the investigation. This is improper under La.C.Cr.P.
art. 770 and La.C.Cr.P. art. 774, and should have resulted in a mistrial
per La.C.Cr.P. art. 770, which states that “[a]n admonition to the jury
to disregard the remark or comment shall not be sufficient to prevent a
mistrial” if the State comments on the right of a defendant not to
testify or produce evidence. The court should have granted the
motion for new trial. This Court should not do the same.

The State’s Argument on Appeal

The State argues that the comments made in its closing argument were not

direct comments regarding Defendant’s failure to testify. However, even if

considered indirect comments upon Defendant’s failure to testify, the State

contends the intended effect of the argument was not to focus on Defendant’s

failure to testify but to rebut his claim of misidentification. Finally, the State

argues that its comments did not influence the jury’s verdict, considering the

credible witnesses and DNA results from which Defendant could not be excluded.

Thus, the State concludes the trial court did not err in denying Defendant’s motion

for mistrial and the motion for new trial.

Legal Analysis

The State’s remarks in closing argument regarding Defendant’s failure to

consent to DNA evidence were not direct references to Defendant’s failure to

testify. The question is whether the comments were impermissible indirect

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references to Defendant’s failure to testify. An example of an impermissible

indirect reference to Defendant’s failure to testify was described in Mitchell, 779

So.2d at 701, as a situation where “defendant is the only witness who can rebut the

state’s evidence,” and the State refers to the testimony at trial as “uncontroverted.”

“Such a reference to the testimony as uncontroverted focuses the jury’s attention

on Defendant’s failure to testify and warrants a mistrial. State v Perkins, 374

So.2d 1234, 1237 (La.1979); Fullilove, 389 So.2d 1282 (La.1980); State v. Harvill,

403 So.2d 706, 711 (La.1981).” Id.

The court in Mitchell found the State’s comment in that case was not an

impermissible indirect reference to Mitchell’s failure to testify since the comment

did not focus the jury’s attention on Defendant’s failure to testify. The State in

Mitchell made the following statement in its rebuttal argument: “‘Where’s the

weapon? One person knows where the weapon is. One person.’” Id. at 700. The

supreme court stated the following about the statement:

During the trial, Jason Papillion testified that the defendant told him
that he threw the gun away while traveling from Breaux Bridge to
Lafayette. That testimony was the only evidence regarding the
whereabouts of the weapon, which of course, was not introduced into
evidence. There was testimony that the bullet retrieved from Alton
Francis, Jr. was a fired [sic] from an automatic weapon (a .380
Larson). Papillion’s testimony that defendant told him he had thrown
the gun away explained why the state was unable to produce the
murder weapon.

The prosecutor believed it was important to the State’s case that
the jury understand why the murder weapon was not put in evidence
by the State. That belief on his part was not unrealistic. . . .

....

Taken in this context, the words “Where’s the weapon? One
person knows where the weapon is. One person.” do not necessarily
focus upon the defendant’s failure to take the stand. Nor do they
support the likelihood that the prosecutor intended to do so. The
comment comes across as an explanation for the State’s inability to

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introduce the murder weapon because the defendant threw the weapon
away while he was traveling from Breaux Bridge to Lafayette.

We conclude that the jurors more than likely would not have
received the words of the prosecutor as an invitation to draw an
admission of guilt from the defendant’s failure to testify, but rather as
a reason for why the jury should not penalize the State for its failure to
enter the murder weapon into evidence.

Id. at 702.

Likewise, we conclude that the comments made by the State in the present

case were not intended by the State as an invitation to the jury to draw an

admission of guilt from Defendant’s failure to testify. In its brief, the State asserts

the comments were intended to rebut Defendant’s claim of innocence and

misidentification. We further note that in Defendant’s closing argument, defense

counsel mentioned the fact that the State did not give Defendant a lie detector test.

In its rebuttal, the State first mentioned Defendant’s refusal to consent to his blood

being drawn as a comparison to Defendant’s apparent willingness to submit to a lie

detector test. The State implied Defendant knew the lie detector test would be

inadmissible, but the blood results would be admissible. Thus, the State’s

comments regarding Defendant’s refusal to consent to his blood being drawn could

have been intended to combat Defendant’s implication that he would have

submitted to a lie detector test if offered. Although the comments were intended to

suggest Defendant’s guilt, they were not intended for the jury to draw an admission

of guilt from Defendant’s failure to testify. Thus, the State’s comments were

neither a direct or impermissible indirect reference to Defendant’s failure to testify.

Consequently, a mistrial was not mandated by La.Code Crim.P. art. 770(3).

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Defendant also argues the State’s comments were a mischaracterization of

the circumstances surrounding the drawing of Defendant’s blood as well as a

comment on matters not in evidence. The supreme court has explained:

[B]efore this court will reverse on the basis of improper argument it
must be thoroughly convinced the jury was influenced by the remarks
and such contributed to the verdict. “In making this determination,
the court gives credit to the good sense and fair-mindedness of the
jury.” [State v.] Eaton, 524 So.2d [1194,] 1208 [(1988), cert. denied,
488 U.S. 1019, 109 S.Ct. 818 (1989)].

State v. Williams, 96-1023, p. 15 (La. 1/21/98), opinion corrected, (La. 5/28/98),

708 So.2d 703, 716, cert. denied, 525 U.S. 838, 119 S.Ct. 99 (1998).

It is unclear from the arguments below whether the State’s comments were a

mischaracterization of the circumstances surrounding the drawing of Defendant’s

blood. The State does not refer to any testimony in the record where Defendant’s

consent or non-consent was discussed.13 Nonetheless, the possible influence the

State’s comments had on the jury does not rise to the level of thoroughly

convincing this court that they improperly influenced the jury’s verdict. The

State’s case consisted of physical evidence that Defendant was shot in the leg as

well as testimony that one of the perpetrators had been shot. The bullet retrieved

from Defendant’s leg was the same caliber as the shell casings found at the scene.

Most importantly, Defendant could not be excluded as a contributor to DNA

retrieved from a glove found in the bathroom of the victim’s apartment. Whether

or not Defendant consented to the blood test which ultimately revealed this DNA

evidence does not detract from the evidence itself.

13
The State cites to the nurse’s notes (State’s Exhibit 44) but not to any specific
testimony about the notes.

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Based on the foregoing, we find no abuse of discretion in the trial court’s

denial of Defendant’s motion for new trial. Thus, Defendant’s fourth and final

assignment of error lacks merit.

DECREE

Defendant’s convictions are affirmed. The trial court is directed to correctly

inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending

appropriate written notice to Defendant within ten days of the rendition of the

opinion and to file written proof in the record that Defendant received the notice.

AFFIRMED.

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