CLARK, Justice.
This is a direct appeal under La. Const. art. V, § 5(D) by the defendant Lamondre Tucker.
In September 2008, Tavia Sills was nearly five months pregnant. A few weeks earlier, she had informed 18-year-old Lamondre Tucker that she believed he was the father of her unborn child. On September 9, 2008, Tucker picked Tavia up at the home of her mother, Vickie Britton. Tucker claimed that his sister, Alexis Metcalf, had asked to meet Tavia after learning of the pregnancy. Before leaving, Tavia demonstrated some trepidation; she asked her mother to pray with her and then gave her defendant's phone number.
A few hours later Tucker returned without Tavia and informed Mrs. Britton that, at Tavia's request, he had dropped her off at the apartment of her older sister, Toquilla Sills. Mrs. Britton became alarmed because she knew her daughter Toquilla was not at home, as she had been hospitalized due to complications from her own pregnancy. Mrs. Britton contacted Shreveport police.
Sergeant John Youngblood investigated the missing person report. He spoke with Tucker at his high school, Booker T. Washington. Tucker told him that he had dropped Tavia off at the Prince Village Apartments in Shreveport. Sergeant Youngblood obtained surveillance videos from the apartment complex and discovered that Tucker, Tucker's car and Tavia did not appear in any of the videos.
On September 12, 2008, a couple fishing by a secluded pond near Legardy Street in Shreveport discovered the decomposing body of Tavia Sills floating in the water. Tavia had been shot three times. Two shots perforated soft tissue at the base of her neck and her upper arm. The fatal, penetrating shot was fired into her back, perforated her lung, and fractured a rib.
Tucker accompanied Detective Rod Demery, the lead homicide investigator, and Sergeant Youngblood to the police station the evening of September 12, 2008. Tucker was arrested, Mirandized, and interviewed around midnight. In an audio-recorded interview, Tucker claimed he took Tavia to meet his sister, who was not at home, so he dropped her off at the Prince Village Apartments. Detective Demery informed Tucker that the surveillance video proved that he was lying and the detective indicated that he was turning off the recorder. The detective, however, continued to record the interview. Tucker then explained that he dropped Tavia off on the corner near the Prince Village Apartments at her request (outside the range of the surveillance video). Defendant was transported to jail.
Late the next morning, after attending the autopsy, Detective Demery interviewed Tucker at the jail. The detective allowed Tucker to call and speak with his mother. Tucker then admitted that he had taken Tavia to the pond where her body was found. Near the pond, Tucker claimed he found a tackle box containing a pistol. Tucker claimed that when he held the pistol up it accidentally discharged, twice, hitting Tavia. Tucker said he then ran away and discarded the gun in a drainage canal near Linear Street just off of Dr. Martin Luther King Drive. Tucker agreed to accompany the detective to show
Tucker, after being interviewed repeatedly throughout the day on September 13, 2008, eventually abandoned the tackle box story and admitted he had obtained the pistol from Marcus Taylor a few days before the shooting.
During the course of the investigation, several witnesses were interviewed. Alexis Metcalf, Tucker's sister, confirmed that Tucker did not bring Tavia to meet her on September 9, 2008. Tavia's sister, Toquilla, confirmed that she was at the hospital on that date and said that Tavia in fact had visited her there earlier that day. Tamara Bates, the mother of Tucker's three-year-old son, told police she and Tucker had argued about the status of their relationship when she learned of Tavia's pregnancy just a few days before Tavia was reported missing. Chasmine Hamilton, Tucker's close friend, said Tucker confided in her when he learned Tavia was pregnant and expressed the desire to beat Tavia to cause a miscarriage. Charles Wilson, Tucker's friend, said that Tucker had asked him on September 11, 2008, to claim he saw him drop Tavia off at the Prince Village Apartments. Glen Taylor, another friend of Tucker, told police that Tucker told him that he and Marcus Taylor pushed Tavia into the pond, Tucker shot her, Tavia asked Tucker what he was going to tell his mother, and then Tucker shot her again. Catherine Golston, who lives near the pond, said she heard a young woman screaming nearby and looked and saw that she was pregnant. According to Golston, the young woman was afraid of the cattle that pastured along the path to the pond. Golston also heard Tucker's voice, which she recognized, trying to calm the young woman. Later she heard two gunshots and then a third.
Subsequent DNA testing proved that Tucker was not the father of Tavia's unborn child. Expert witnesses estimated that the male fetus was 19 weeks old, healthy, and barring unforeseen complications, believed Tavia would have carried him to full term and given birth to a
Tucker was indicted for first degree murder. By bill of particulars, the state clarified that Tucker committed first degree murder by killing Tavia Sills while engaged in the perpetration of a second degree kidnapping and when he had the specific intent to kill or inflict great bodily harm upon more than one person. Tucker filed a motion to suppress his statements, in which he contended they were involuntarily and unknowingly made, as well as made after he invoked his right to remain silent and to the assistance of counsel. The motion was denied after an evidentiary hearing held on March 10, 2010. At the hearing, the state presented the testimony of Detective Demery and Sergeant Youngblood that Tucker voluntarily accompanied them to police headquarters, was Mirandized, signed a rights waiver, and voluntarily gave a series of increasingly incriminating statements after initially denying any involvement. The defense presented the testimony of Tucker's grandmother, Ora Ellis, Tucker's mother, Alicia Tucker, and Tucker. According to Alicia Tucker and her son, Detective Demery promised that if Tucker would confess to an accidental shooting then the charge would be reduced to manslaughter and her impounded car would be returned to her.
Jury selection began on March 14, 2011, and was completed on March 19, 2011. Six panels of approximately 16 prospective jurors each were examined. Eight prospective jurors were excluded by joint agreement. For each panel, death qualification preceded general voir dire. During death qualification, the state challenged 35 prospective jurors for cause, of which 33 were granted, and the defense challenged 12 prospective jurors for cause, of which 6 were granted.
During jury selection three significant events occurred. First, the defense filed motions to quash on the basis that the state had not given notice that it was
Opening statements commenced on March 20, 2011. The state described how it believed the crime occurred, summarized the evidence it would present, and explained how that evidence established the elements of the crime. The defense acknowledged that a tragedy had occurred and expressed its sympathy, reminded the jury of the state's burden of proof, and asked the jury to keep an open mind until they heard all of the evidence. The state presented the testimony of 22 witnesses, including three members of the victim's family, four friends or family of Tucker, seven law enforcement officers, two obstetricians, a forensic DNA analyst, a firearms examiner, and a forensic pathologist.
In closing, the state summarized the elements of the offense and the evidence proving them; emphasized that Tavia Sills and her unborn child were both alive and healthy when last seen with Tucker; argued Tucker's specific intent could be inferred from his admission that he fired a final shot to ensure the victim died; noted that Tucker's story changed several times during police interviews; argued Tucker killed Tavia Sills to save his relationship with Tamara Bates; and emphasized Tucker has never shown remorse. The defense's brief closing remarks follow:
R. 18 at 3849-50. In rebuttal, the state responded that the crime is not a second degree murder but rather a cold-blooded killing. The state described the crime to the jury, emphasizing the fear Tavia would have experienced. During the state's rebuttal, Tucker created a disturbance and was removed from court at the request of the defense.
On March 22, 2011, the jury found defendant guilty as charged of first degree murder. The penalty phase commenced on March 23, 2011. In its opening remarks, the state asked the jury to consider the circumstances of the offense and Tucker's character and propensities, and the state summarized the evidence presented at trial with an emphasis on defendant's cold-heartedness. The defense informed the jury that, rather than discussing the crime, it would tell the jury about the other 18 years of Tucker's life, which included an unstable home environment with abusive men, as well as his efforts to turn his life around through football.
The state presented three victim-impact witnesses: Vickie Britton (the victim's mother), Toquilla Sills (the victim's older sister), and Lashun Gipson (the victim's godmother).
The defense presented six witnesses: Alicia Tucker (Tucker's mother), Alexis Metcalf (Tucker's older sister), Danny Blackman (who was at one time involved with Tucker's mother), Kevin Richardson (Tucker's cousin), Rev. Rickey Moore (who employed Tucker on occasion), and Kalan Washington (Tucker's former teacher, football coach, and mentor). Alicia Tucker described how she had a series of tumultuous
The state vigorously cross-examined the defense witnesses. The state elicited that defendant, at age 13, was accused of shooting a neighboring child with a BB gun; was repeatedly disciplined at school for fighting; and pleaded guilty to misdemeanor carnal knowledge after being accused of rape. The state asked Blackman, Richardson, and Washington if they were familiar with the nature of the crime Tucker was convicted of committing. The state showed these witnesses two crime scene photos and asked whether it would change their opinion of Tucker's character if he admitted he had committed the crime. The defense objected during the testimony of two of the witnesses and moved for a mistrial. The defense objected to the state giving Blackman details of the crime of which he was not aware. The trial court sustained the objection and admonished the state not to testify. The defense also objected to state's badgering of Washington (who provided several rambling and non-responsive answers during the state's cross-examination). The trial court denied the motions for mistrial.
In closing, the state depicted defendant as a cold-blooded murderer who callously destroyed a family and tried to get his friends to cover for him. The state noted his poor school disciplinary record and that he was previously convicted of misdemeanor carnal knowledge of a juvenile. The state characterized the defense mitigation case as establishing only that Tucker likes horses and football. The state argued Tucker killed the victim believing he could then simply go off to college to play football. Regarding Alicia Tucker's scrapbook, the state noted that the victim's family will not have the opportunity to make a comparable one. The state claimed that Tucker has never expressed any remorse.
The defense, in closing, asked the jury to spare defendant's life, emphasizing that Tucker was an immature high school teenager who acted uncharacteristically under the pressure of repeating his last year of high school and his complicated relationships with Tamara Bates and the victim. The defense dismissed the state's cross examination as involving minor things that many children engage in, such as poor
The state responded in rebuttal that defendant's repeated expulsions and suspensions suggest he lacks the capacity to learn from his mistakes or develop remorse. Although the defense characterized Tucker as lacking mental capacity, the state noted that his coach had described him as an intelligent football player with college potential. Although the defense characterized Tucker as impulsive, the state countered that the crime was coldly planned. In conclusion, the state contended that death was the only penalty proportionate to the harm inflicted on the victim's family.
At the conclusion of the penalty phase, the jury returned a verdict of death. Shortly thereafter, the Louisiana Capital Assistance Center enrolled to represent Tucker on appeal and filed numerous motions, culminating in an omnibus motion for new trial.
Tucker subsequently filed a motion to reconsider sentence in which he contended that his immaturity in conjunction with his diminished capacity renders him ineligible for the death penalty because he was just five months past his eighteenth birthday at the time of the crime and he has a full scale IQ of 74. He also filed a motion for new trial, alleging that the victim's mother had forgiven him and found peace; he was not the shooter; and he had evidence rebutting the state's negative depiction of him in the penalty phase. Following the trial court's denial of these motions, defendant appealed directly to this Court.
Defendant contends he is the first person convicted of first degree murder under La. R.S. 14:30(A)(3) (intent to kill or harm more than one person) for killing a pregnant woman and her unborn child. He argues that feticide does not elevate second degree murder to a capital offense under La. R.S. 14:30, as written, and, therefore, the evidence does not support a conviction for first degree murder.
Defendant notes that this Court determined in State v. Gyles, 313 So.2d 799, 801 (La.1975) that a "defendant's conduct of striking the pregnant woman and causing the stillbirth of the child is not punishable as a `murder' under the definition of that
In Kennedy v. Louisiana, 554 U.S. 407, 421, 128 S.Ct. 2641, 2650-51, 171 L.Ed.2d 525 (2008), the United States Supreme Court determined that "a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments." In making that determination, the court noted that "the death penalty is not invariably unconstitutional". Id., 554 U.S. at 420, 128 S.Ct. at 2650 (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Rather, the court noted that "capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution." Id. (quoting Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 1194, 161 L.Ed.2d 1 (2005) and Atkins v. Virginia, 536 U.S. 304, 319, 122 S.Ct. 2242, 2251 153 L.Ed.2d 335 (2002)) (internal quotes omitted).
We have found no constitutional impediment to including offenders who intentionally kill women they know are pregnant in that narrow category.
Louisiana R.S. 14:30(A)(3) provides that first degree murder is the killing of a human being "[w]hen the offender has a specific intent to kill or inflict great bodily harm upon more than one person." Louisiana R.S. 14:2(7) defines "person" in the criminal law to include "a human being from the moment of fertilization and implantation".
Defendant argues that the killing of a fetus is not murder (and under subsequent legislative enactments it is, in fact, feticide) and therefore the legislature could not have intended first degree murder to encompass the murder of a pregnant woman with the intent to kill both her and her unborn child. In support of his argument, defendant relies on the decisions in State v. Gyles, 313 So.2d 799 (La.1975) and State v. Brown, 378 So.2d 916 (La.1979). In Gyles, Arthur Ray Gyles physically assaulted a woman who was eight-months pregnant and caused her to miscarry. He appealed his conviction for second degree murder of the stillborn child. Relying on the common law, which deemed that only those born alive are human beings, this Court found that conduct which causes an unborn child to be born dead does not constitute murder. The legislature responded by amending La. R.S. 14:2(7), which simply had indicated that a person includes a body of persons, whether incorporated or not, to provide: "`Person' includes a human being from the moment of fertilization and implantation and also includes a body of persons, whether incorporated or not." 1976 La. Acts 256. Then, in State v. Brown, supra, the Court considered the question whether the legislative amendment altered the definition of murder and the holding of Gyles. In Brown, Michael Brown killed Harriet St. Andre, who was pregnant. He was indicted separately with two counts of second degree murder. The jury found Brown guilty of manslaughter in the death of St. Andre. After the trial court overruled Brown's motion to quash the indictment for the killing of the fetus (the motion to quash was based on double jeopardy), Brown pleaded guilty to manslaughter of the fetus and appealed. This Court found as an error patent that murder is defined as "the killing of a human being" (rather than as the killing of a person) and the amendment redefining "person" had therefore not redefined murder.
Furthermore, in State v. Keller, 592 So.2d 1365 (La.App. 1 Cir.1991), the First Circuit Court of Appeal considered the same question and reached the same conclusion. In Keller, Gregory Keller was indicted for the first degree murder of Andrea Simmons, who was pregnant, based on the specific intent to kill or to inflict great bodily harm upon more than one person, La. R.S. 14:30(A)(3). Keller sought to quash the prosecution on the basis that a fetus cannot be considered a person for purposes the multiple-person aggravating element of La. R.S. 14:30(A)(3). The court of appeal noted that La. R.S. 14:30(A)(3) does not require the actual commission of two murders but rather that defendant have the intent to kill more than one person. The court found that, although a fetus is not considered a human being whose unlawful killing constitutes homicide, a fetus is nonetheless defined as a person in the criminal code. Keller, 592 So.2d at 1366.
Defendant contends the statutory language is not sufficiently clear to give him fair warning that he might face a charge of first degree murder for killing a pregnant woman. The Fair Warning Doctrine, however, demands "no more than a reasonable degree of certainty." Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952). "The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed
Regardless, in this case, this Court need not resolve the question of whether La. R.S. 14:30(A)(3) applies to the murder of a pregnant woman given the presence of a second aggravating factor, i.e., that the killing took place in conjunction with a second degree kidnapping, La. R.S. 14:30(A)(1).
Defendant contends the state presented insufficient evidence to show the murder took place during the course of a second degree kidnapping. He argues that, to prove he kidnapped the victim, the state must prove more than that he persuaded or enticed the victim to accompany him; the state must also prove that at some point she had the desire to leave. According to defendant, the only evidence presented regarding the victim's state of mind was an eyewitness (Catherine Golston) who overheard Tavia scream because she feared the nearby cattle. Defendant argues that this was not sufficient to prove the victim did not want to accompany him. Defendant also contends that the trial court erred by not instructing the jury that the state must prove the victim expressed the desire or intent to leave.
As an initial matter, defendant's own statements to police provide evidence that the victim expressed a desire to leave. According to defendant, the victim expressed her fear on the path to the pond, she stopped walking, and "[t]hen she go I don't think I can do this no more."
Louisiana R.S. 14:44.1 defines second degree kidnapping as follows:
Not enumerated among those elements is a requirement that a victim express a desire to leave. Furthermore, the words "enticing" and "persuading" in the statute suggest that defendant's view of how the offense may be committed is too narrow. See, e.g., State v. Lee, 02-1793, p. 32 (La. App. 4 Cir.4/2/03), 844 So.2d 970, 991
Defendant also argues that La. R.S. 14:44.1(A)(5) infringes on the constitutional right to keep and bear arms. He notes that the Louisiana Constitution was amended to require strict scrutiny to be applied to any restriction on this right.
As an initial matter, defendant's assertion that the victim accompanied him unaware that he was carrying a firearm is contradicted by his own statements to police. According to defendant, the victim expressed fear of the wooded location, asked if defendant was also afraid, and he responded "That what we got a gun for."
In sum, the evidence overwhelmingly proved defendant committed the crime of second degree kidnapping when he enticed/persuaded Tavia Sills to accompany him from one place to another and into the woods, for purposes of facilitating the commission of another felony (her murder) by means of the firearm in his possession, thereby causing her physical harm (death). Given the jury found this aggravating circumstance proved beyond a reasonable doubt in the penalty phase, and considering Louisiana duplicates aggravating circumstances in both phases of a capital trial, this Court can assume that jurors also found second degree kidnapping in the guilt phase as an independent basis for returning a general verdict of guilty as charged. See State v. Wright, 01-0322, p. 15 (La.2/7/2003), 834 So.2d 974, 987 ("[I]n this case, the Court can ascertain the grounds upon which the jury convicted defendant of first degree murder given that jurors unanimously found both of the two aggravating factors at sentencing [aggravated or forcible rape; age of the victim] which the state relied upon during the guilt phase of trial. Therefore, the jurors most assuredly relied on the victim's age when it found defendant guilty of first degree murder.... That being the case, the state's failure to present constitutionally sufficient evidence that the victim was killed during the course of an aggravated or attempted aggravated rape does not warrant reversal of the conviction.") (distinguishing Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931)).
Defendant contends that his statements were not knowingly and voluntarily made because officers exploited his immaturity and unfamiliarity with police methods, and they had promised the charge would be reduced to manslaughter and his mother's impounded car would be returned to her if he confessed. Therefore, defendant contends the trial court erred in denying both his motion to suppress his statements and motion for new trial on this basis without conducting an evidentiary hearing.
If a statement is a product of custodial interrogation, the state must show that the person was advised before questioning of his right to remain silent; that any statement he makes may be used against him; and, that he has a right to counsel, either retained or appointed. Miranda v. Arizona, 348 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The state bears a "`heavy burden ... to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel,'" State v. Green, 94-0887, p. 10, 655 So.2d 272, 280 (La. 5/22/95) (quoting Tague v. Louisiana, 444 U.S. 469, 470, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980)). Nevertheless, appellate courts do not review the record de novo but must defer to the finding of the trial judge "unless his finding is not adequately supported by reliable evidence." Green, 94-0887 at p. 11, 655 So.2d at 281. A trial court is accorded that deference "because the evaluation of witness credibility often plays such a large part in the context of a motion to suppress a confession." Id.
The record contains a waiver of rights form signed by defendant. Two officers testified at the suppression hearing that defendant was repeatedly Mirandized and waived his rights. The recorded interviews with defendant captured two instances of the advisement and waiver of his rights.
Defendant, however, claims his statements were the result of promises or inducements.
Defendant argues that, even if the detective's statements did not amount to promises, his immaturity and low intellectual functioning would have caused him to interpret them as such. In support, he offers the opinion of psychologist Dr. Mark Vigen, obtained on March 11, 2011, in anticipation of the penalty phase. According to Dr. Vigen, the 18-year-old defendant is a "pseudo adult" who lives and acts like an adult but thinks like a child.
Most significant, Detective Demery allowed the adult defendant to speak with his mother twice during the interviews. Defendant's mother testified that she waited only 10 minutes at the police station before being allowed to see her son. She said she met with him privately for 10-20 minutes. Defendant also testified at the suppression hearing that he was permitted to meet with his mother at his request. The recorded statements show that the detective acceded to defendant's request to speak with his mother on the phone when he was interviewed the next day at jail. The state sufficiently rebutted defendant's allegations of police misconduct and the totality of the circumstances supports the trial court's determination that defendant made a knowing, intelligent, and voluntary waiver of his rights.
Defendant contends that the death qualification process produces a biased jury that does not represent a fair cross section of the community but instead systematically excludes African Americans. Defendant alleges death qualification excluded 51.3% of African Americans while excluding only 20% of non-African Americans. Defendant also alleges death qualified juries are more prone to convict. Defendant argues separate guilty and penalty phase juries should have been used so that the jury that considered his guilt could better reflect the community.
Louisiana C.Cr.P. art. 798, governing causes for challenge by the state, was drafted to conform to the constitutional requirements set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (holding that a prospective juror who would vote automatically for a life sentence is properly excluded). See also Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). In Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the U.S. Supreme Court held that the Constitution does not prohibit excluding potential jurors under Witherspoon or that "death qualification" resulted in a more conviction-prone jury. Likewise, this Court has repeatedly rejected the claim that the Witherspoon qualification process results in a death-prone jury. State v. Robertson, 97-0177, pp. 19-20 (La.3/4/98), 712 So.2d 8, 25-26; State v. Sullivan, 596 So.2d 177, 186-87 (La.1992); State v. Lindsey, 543 So.2d 886, 896 (La.1989); State v. Brown, 514 So.2d 99, 103-04 (La.1987); State v. Bates, 495 So.2d 1262, 1272 (La. 1986); State v. Ford, 489 So.2d 1250, 1259 (La.1986); State v. Ward, 483 So.2d 578, 582-83 (La.1986); State v. Jones, 474 So.2d 919, 927 (La.1985); State v. James, 431 So.2d 399, 402 (La.1983).
During voir dire, defense counsel objected that the death qualification process was working to disproportionately remove African-Americans from the jury. In McCree, 476 U.S. at 165, 106 S.Ct. at 1760, the Supreme Court held that the Constitution does not "prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial." In particular, the Court rejected McCree's contention that "death qualification" prior to the guilt phase of the trial violated his right under the Sixth and Fourteenth Amendments to an impartial jury selected from a representative cross section of the community. Id., 476 U.S. at 184, 106 S.Ct. at 1770. The Supreme Court explained that the fair cross section requirement applies only to venires, not to petit juries. Id., 476 U.S. at 173, 106 S.Ct. at 1765. Accordingly, petit juries do not have to "reflect the composition of the community at large." Id. More importantly, it was pointed out that, even if this requirement were applied to petit juries, no fair cross section violation would be established when "Witherspoon-excludables" were dismissed from a petit jury, because they do not constitute a distinctive group for fair cross section purposes. Id., 476 U.S. at 174, 106 S.Ct. at 1765. In Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the Court reiterated those views and then indicated "[g]iven this conclusion, there is no reason to address petitioner's description of the result of the `death qualification'-the race, sex, political party, and age composition of the jury in his case." Buchanan, 483 U.S. at 416 n. 17, 107 S.Ct. at 2914 n. 17.
Defendant conceded during voir dire that the state was not acting from racial animus or intentionally using the death-qualification process as a proxy for race,
Defendant claims the trial court failed to exclude jurors whose responses revealed they were unable to give meaningful consideration to a life sentence. Defendant identifies eight prospective jurors who defendant claims should have been removed for cause: John Forehand; Robert Litton; Alvin Coco; Robert Rogers; Clarence Hicks; Joy Birch; Patricia Johnson; and Anita Spencer.
"[A] challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied." State v. Hallal, 557 So.2d 1388, 1389-90 (La.1990). Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant ultimately exhausts his peremptory challenges.
A review of the voir dire record as a whole reveals no abuse of discretion.
John Forehand initially indicated that he would not consider a life sentence for one who intentionally kills more than one person. However, after the pertinent law was explained to him, he indicated that he could consider a life sentence for one who intentionally kills more than one person and he would consider all mitigating circumstances. With further questioning, it became apparent that Mr. Forehand had initially misinterpreted the question as a request to commit to vote for a life sentence rather than to consider it as one of two possible penalties.
Robert Litton stated that he believed the death penalty was appropriate for intentional and violent murders but he also said that he could consider either penalty depending on the circumstances. He believed a life sentence was more suitable for an accidental killing and death more suitable for intentional killings, and he initially indicated he would not consider a life sentence for one who intentionally kills more than one person or kills while committing a kidnapping. He initially stated that the only mitigating circumstance he would consider is insanity. After he was repeatedly instructed that the law required him to consider both penalties and all mitigating circumstances, he ultimately acquiesced that he would be able to follow the law as instructed.
Alvin Coco initially stated that he supported the death penalty but could consider both sentencing options. He believed the death penalty was appropriate for planned murders but he would not vote for it automatically. He initially stated that he would not consider a life sentence for one who intentionally kills more than one person or while committing a kidnapping. He also initially indicated that the only mitigating circumstance he would find significant is if one were only a principal to the offense. After being repeatedly instructed on the pertinent law, he ultimately indicated that he could consider either penalty and all mitigating circumstances.
Robert Rogers initially stated that he "probably could" consider a life sentence for one who intentionally kills but he was unsure whether he could consider a life sentence for one who kills while committing a kidnapping and he said he probably could not consider a life sentence for one who intentionally kills a pregnant woman. When asked if that meant he would automatically vote for death for one who murders a pregnant women, he responded no and he clarified that he only meant he would not have a problem with voting for death under those circumstances.
Clarence Hicks initially stated that it would be "very difficult" not to return a death verdict for one who intentionally killed more than one person but he also stated that he could return a life verdict. He clarified that he leaned toward a death verdict for a multiple murderer but that he could consider both
Joy Birch initially stated that she could consider either penalty, she emphasized the gravity of the decision, and she indicated that she would not automatically vote for either penalty. She indicated that she leaned toward the death penalty for someone who intentionally kills a woman he knew was pregnant but she would consider both penalties and it would depend on the circumstances of the offense. She insisted that she could be fair and open-minded and that she could consider a life sentence for one who killed a pregnant woman.
Patricia Johnson initially stated that she could consider a life sentence but she also stated that, for first degree murder, she was "more likely" to vote in favor of death. She revealed that her friend was murdered in 1996 and she expressed concern for her ability to be fair and impartial because of that experience. However, she ultimately concluded that she could keep that experience from unduly influencing her decision-making and she would decide the present case solely on the evidence presented at this trial.
Anita Spencer stated that she supported the death penalty but could vote for either a life or death sentence. She believed a death sentence is appropriate for a senseless murder. She initially indicated that she would not consider a life sentence for one who kills more than one person and the only mitigating circumstance she would consider is insanity. After being instructed on the pertinent law, she said that she was confused when she answered earlier but now that she understood the law she could consider both sentencing options.
After reviewing the questions asked these jurors and their responses in their context, the prospective jurors, in varying degrees,
Defendant contends he was denied his right to counsel, who labored under an actual conflict of interest and should have been allowed to withdraw after informing the court about the efforts of defendant and his mother to coach a prospective juror Latisha Griffin, who was opposed to the death penalty, about what to say during death qualification so that she would not be removed for cause. Defendant argues defense counsel, after they became potential witnesses to jury tampering, were unable to communicate with him (or his mother) freely and could not fully advocate for him after the conflict arose. For example, defendant alleges counsel stopped sharing information about prospective jurors and jury selection strategy and potential witnesses and what questions they might be asked for fear of being accused of facilitating jury and witness tampering. Defendant complains that counsel did not cross-examine 18 of 24 witnesses, cross-examined the remaining witnesses for the state only briefly, rested without calling any witnesses for the defense, and conceded during closing remarks that defendant was guilty of second degree murder and feticide. Finally, defendant alleges he was not informed that counsel would concede in his closing remarks that defendant was guilty of second degree murder and feticide, and he did not wish counsel to do so.
Every defendant is entitled to "representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981). An actual, as opposed to a potential, conflict of interest exists "when, during the course of the representation, the attorney's and defendant's interests `diverge with respect to a material factual or legal issue or to a course of action.'" Winkler v. Keane, 7 F.3d 304, 307 (2d Cir.1993) (quoting Cuyler v. Sullivan, 446 U.S. 335, 356 n. 3, 100 S.Ct. 1708, 1722 n. 3, 64 L.Ed.2d 333 (1980)), cert. denied, 511 U.S. 1022, 114 S.Ct. 1407, 128 L.Ed.2d 79 (1994). In Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), the U.S. Supreme Court further clarified the meaning of "actual conflict" for the purposes of the Sixth Amendment when the claim is raised for the first time in a post-verdict context. Under Mickens, a conflict that deprives a defendant of his constitutional right to the effective assistance of counsel is "precisely a conflict that affected counsel's performance as opposed to a mere theoretical division of loyalties." Mickens, 535 U.S. at 171, 122 S.Ct. at 1243 (emphasis in original). The court stated that "defects in assistance [of counsel] that have no probable effect upon the trial's outcome do not establish a constitutional violation." Id., 535 U.S. at 166, 122 S.Ct. at 1240.
Although a defendant generally is required to demonstrate prejudice to prevail on a claim of ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), prejudice is presumed
Courts generally disqualify trial counsel pretrial if it appears counsel will or should be called as a witness at trial. See, e.g., United States v. Kwang Fu Peng, 766 F.2d 82, 86 (2d Cir.1985); see also United States v. Locascio, 6 F.3d 924, 933 (2d Cir.1993) (noting that "[e]ven if the attorney is not called, however, he can still be disqualified, since his performance as an advocate can be impaired by his relationship to the events in question"). Here, however, defense counsel had no relationship to the offense for which defendant was on trial. There appeared to be no necessity for counsel to be called as a witness in the present trial
In Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), the Supreme Court determined that the Sixth Amendment right to assistance of counsel is not violated when an attorney refuses to cooperate with defendant in presenting perjured testimony at trial. Whiteside sought a new trial on the basis that defense counsel warned him before trial not to falsely testify that he saw "something metallic" in the victim's hands to bolster his claim of self-defense, and counsel threatened to inform the court if Whiteside committed perjury. Whiteside, 475 U.S. at 161-62, 106 S.Ct. at 991-92. The Supreme Court found that counsel's "conduct fell within the wide range of professional responses to threatened client perjury acceptable under the Sixth Amendment." Id., 475 U.S. at 166, 106 S.Ct. at 994. The court noted that counsel's obligation to provide effective assistance "is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth" and did not extend to "in any way assisting the client in presenting false evidence or otherwise violating the law". Id. Additionally, the court found that defense counsel had a "special duty ... to prevent and disclose frauds upon the court". Id., 475 U.S. at 168-69, 106 S.Ct. at 995. Therefore, the Court found that counsel's action did not amount to any "failure to adhere to reasonable professional standards that would in any sense make out a deprivation of the Sixth Amendment right to counsel." Id., 475 U.S. at 171, 106 S.Ct. at 996. The court further reviewed the record and found it showed "the accused enjoyed continued representation within the bounds of reasonable professional conduct" and "at most [Whiteside] was denied the right to have
Similarly, in the present case defense counsel responded ethically to Tucker's attempt at corrupting the judicial process by inserting a "poison pill" into the jury by committing jury tampering, which, when committed in the context of a capital trial, is a felony offense punishable by a maximum sentence of 99 years imprisonment at hard labor. La. R.S. 14:129(B)(2)(a). Counsel acted within the dictates of Rule 3.3(b) of the Rules of Professional Conduct, which provides: "A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal." Counsel's adherence to the rule did not deprive Tucker his right to the assistance of counsel.
Furthermore, the interests of defendant and defense counsel did not diverge at all with respect to any fact, legal issue, or course of action. An "actual conflict" exists only when "the attorney's and defendant's interest diverge with respect to a material factual or legal issue or to a course of action." United States v. Moree, 220 F.3d 65, 69 (2d Cir.2000) (citation and internal quotations omitted). Although defense counsel allege they felt obliged to keep certain information from defendant during the remaining voir dire to prevent another jury tampering incident, that prudent decision does not demonstrate an alternative strategy existed that was in conflict with or not undertaken due to counsel's other loyalties or interests. Although defendant complains that defense counsel cross-examined only six of the state's witnesses at trial, nothing indicates that this decision was anything other than strategy or that it was in any way connected to the incident that occurred during voir dire. Similarly, although defense counsel allege defendant's mother misinterpreted a question asked her in the penalty phase and revealed defendant was previously arrested for rape, it appears the state likely would have confronted defendant's character witnesses with this fact regardless.
Defendant alleges he did not acquiesce in the decision of defense counsel to admit guilt of second degree murder and feticide in closing. In Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), the U.S. Supreme Court instructed:
Nixon, 543 U.S. at 189-90, 125 S.Ct. at 561-62; see also Haynes v. Cain, 298 F.3d 375, 381 (5th Cir.2002) (commenting that "those courts that have confronted situations in which defense counsel concedes the defendant's guilty for only lesser-included offenses have consistently found these partial concessions to be tactical decisions, and not a denial of the right to counsel. As such, they have analyzed them under the two-part Strickland test.").
In this case, defendant has not presented a claim of ineffective assistance of counsel under Strickland at this juncture. Thus far, he has shown no per se violation of the Sixth Amendment resulting from an actual conflict of interest. Therefore, any potential conflict of interest or associated ineffective assistance of counsel claims that may arise are deferred for collateral review.
Defendant, who was removed from court when he became disruptive at the request of defense counsel, contends he was denied the right to be present during the state's rebuttal argument in the guilt phase. He argues that his presence at his capital trial cannot be waived by counsel.
One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial. Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). Nonetheless, defendants who engage in disruptive conduct may be removed from the courtroom under certain circumstances. See generally Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). As previously mentioned, during the state's rebuttal argument in the guilt phase, defense counsel requested that defendant be removed to stem his disruptive behavior and counsel clarified that this was at defendant's
Defendant complains the state engaged in misconduct when it cross-examined defense witnesses during the penalty phase by assuming facts not in evidence, misstating what the witnesses said, bullying the witnesses, and alleging prior bad acts by defendant without first providing notice. He alleges the state fabricated an incident in which he shot a BB gun at his mother's abusive boyfriend and repeatedly questioned witnesses about it.
Defendant complains the state cross-examined defense witnesses about his juvenile arrest, his school disciplinary record, his failure to support his son, and his guilty plea to misdemeanor carnal knowledge for having consensual sex with a 14-year-old when he was 17. Defendant alleges he was arrested at age 11 after he accidentally shot a 12-year-old neighbor with a BB gun and the state cross-examined several witnesses about this incident despite giving notice to the defense that the state was not planning to introduce this evidence in its case-in-chief. Defendant contends witnesses incorrectly recalled that he was 13 years old at the time of this incident, and argues the prosecutor engaged in misconduct by using this incorrect information in argument despite the prosecutor's knowledge of his correct age from the police report. Defendant moved for a new trial based on what he characterized as newly discovered evidence indicating the victim was uninjured in this incident.
Defendant contends that the state's cross-examination in all of these areas as well as on the details of the crime was not responsive to the witness's testimony on direct and outside of the proper scope of cross as well as outside of the witness's personal knowledge. He further contends that, because the state gave no notice that it would elicit information about his juvenile arrest, his school disciplinary record, his lack of support of his son, and his prior guilty plea to misdemeanor carnal knowledge, he was unable to rebut the state's misleading and inaccurate depiction of him during the penalty phase. Thus, defendant argues the trial court should have conducted an evidentiary hearing on his motion for new trial in which he could have fully rebutted the state's presentation.
At the penalty phase of a capital trial, the character and propensities of the defendant are at issue. State v. Jackson, 608 So.2d 949 (La.1992); State v. Brooks, 541 So.2d 801, 808 (La.1989). As this Court stated in Jackson, 608 So.2d at 953, "the usual prohibition against the prosecution's initiation of the inquiry into defendant's character is simply not applicable in the penalty phase, where the focus on character is one of the statutory means of channeling the jury's sentencing discretion." Furthermore, as this Court emphasized in State v. Sepulvado, 93-2692, p. 10 (La.4/8/96), 672 So.2d 158, 166, "[c]learly if the defense intends to develop a certain view of the defendant's background, the state should be allowed to elicit information to contradict these assertions." Thus, "neither law nor justice permits a defendant to foist a spurious reputation upon a jury because the State is so limited in its cross-examination of the character witnesses." State v. Banks, 307 So.2d 594, 599 (La.1975).
A review of the record shows that the state's cross-examination was an acceptable response to the assertions of the defense's character witnesses. Defense witnesses testified that defendant planned to attend college on a football scholarship, he cared for his son and treated him well, he also treated other children well, defendant was only involved in typical teenage problems at school, he loved animals and football, he was always helpful, he is easy-going with a good sense of humor, he had been employed caring for horses, he attended Vacation Bible School, he participated in a youth program called the Buffalo Soldiers, and he would stand up for children who were being bullied. That defendant was repeatedly suspended from school, frequently involved in fights, misused a BB gun, pleaded guilty to misdemeanor carnal knowledge of a juvenile after the victim reported she was raped, and inadequately supported his son and the mother of his child, were fair areas of inquiry to allow the state to respond to the depiction of defendant's character and propensities presented by the defense.
Furthermore, the defense did not object to these lines of questioning by the state during cross-examination. Therefore, any complaint about them is waived. La.C.Cr.P. art. 841; State v. Wessinger, 98-1234, p. 20 (La. 5/28/99), 736 So.2d 162, 180-81 (reviving the contemporaneous objection rule for the penalty phase as well as guilt phase of a capital trial). The defense objected to the badgering of a defense witness Kalan Washington. The transcript clearly evidences the state's frustration with Washington's meandering and evasive answers. However, the trial court did not err in finding the state's questioning formed no basis for granting the drastic remedy of a mistrial. See generally State v. Tribbet, 415 So.2d 182, 186 (La.1982) (mistrial is drastic remedy and,
Defendant complains that he was convicted and sentenced to death in a courthouse in front of which flew a Confederate flag. Defendant contends the flag and its close association with lynching and slavery intimidates African-American jurors and predisposes white jurors to impose the death penalty. Defendant alleges that over half of African-Americans were removed during voir dire based on their opposition to the death penalty, and defendant argues that the presence of the flag prompted their views, making it possible to exclude them from the jury.
This Court faced a similar claim in State v. Dorsey, 10-0216 (La.9/7/11), 74 So.3d 603. See id., 10-0216 at 46, 74 So.3d at 635 ("[D]efendant contends the presence of a confederate flag memorial outside of the courthouse in Caddo Parish injects an arbitrary factor — race — into the capital sentencing decision."). In Dorsey, the Court discussed McCleskey v. Kemp, 418 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) and recognized that to establish a violation of the Equal Protection Clause, a defendant must prove, as McCleskey underscored, "the existence of purposeful discrimination," and "that the purposeful discrimination `had a discriminatory effect' on him." McCleskey, 481 U.S. at 292, 107 S.Ct. at 1767 (citing Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599 (1967) and Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985)). Discriminatory purpose "implies the decision maker selected or reaffirmed a particular course of action at least partly because of, not merely in spite of, its adverse effects on an identifiable group." Dorsey, 10-0216 at 50, 74 So.3d at 637 (internal quotation marks omitted). Measured against the McCleskey standard, the Court concluded that Dorsey's claim of endemic racial discrimination did not provide any basis for setting aside either his conviction or sentence:
Dorsey, 10-0216 at 50, 74 So.3d at 638. Defendant here fails to show purposeful discrimination and the state's success in
Defendant contends the trial court erred in finding he could not assert a Batson challenge in a motion for new trial. He claims the state used peremptory challenges to remove four of nine African-American prospective jurors and there was no apparent race-neutral reason for removing Rachel Foreman, who defendant contends expressed similar views to other prospective jurors who were not challenged.
The U.S. Supreme Court has never defined timeliness for a Batson claim. In Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991), the Court found that states retain considerable discretion to fashion their own rules governing timeliness. Id. ("[A] state court may adopt a general rule that a Batson claim is untimely if it is raised for the first time on appeal, or after the jury is sworn, or before its members are selected."). Nonetheless, the Court's discussion in Batson makes clear that it envisioned an objection raised during the jury selection process. The Batson court stated that it would leave it to trial courts to determine "whether it is more appropriate ... upon a finding of discrimination ... to discharge the venire and select a new jury from a panel not previously associated with the case ... or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire." Batson, 476 U.S. at 99 n. 24, 106 S.Ct. at 1725 n. 24 (citations omitted). The latter option would not exist once the jury had been sworn and the evidentiary trial had started. See Jones v. Butler, 864 F.2d 348, 370 (5th Cir.1988) (on petition for rehearing) ("The Supreme Court's analysis in Batson presumed that an objection would be made promptly, probably before the venire was dismissed."), cert. denied, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989).
Every federal circuit to address the issue thus far has determined that a Batson claim is waived if not raised during jury selection. See Morning v. Zapata Protein (USA), Inc., 128 F.3d 213, 216 (4th Cir. 1997) (finding that "a Batson challenge raised after the venire has been excused has been raised too late"); McCrory v. Henderson, 82 F.3d 1243, 1246-49 (2d Cir. 1996) (finding Batson challenges are waived if not raised during jury selection); United States v. Forbes, 816 F.2d 1006, 1011 (5th Cir.1987) (finding that "[n]ow it is too late for appellants to insist on an explanation they did not request at trial"); Government of the Virgin Islands v. Forte, 806 F.2d 73, 75-76 (3rd Cir.1986) (finding defendant "waived his objection to the prosecutor's use of her peremptory challenges by failing to make a contemporaneous objection during jury selection"); see also United States v. Dobynes, 905 F.2d 1192, 1196-97 (8th Cir.) (finding that a defendant who raised a Batson claim for the first time one week after the conclusion of the trial had forfeited the objection), cert. denied, 498 U.S. 877, 111 S.Ct. 206, 112 L.Ed.2d 167 (1990); cf. United States v. Tomlinson, 764 F.3d 535, 536 (6th Cir.2014) (finding a Batson claim not waived because it was asserted before the jury was sworn and trial commenced).
Three state supreme courts which held, prior to Batson, that a prosecutor's use of peremptory challenges on the basis of race violated provisions of their state constitutions all appear to have recognized that such an objection must be raised during jury selection when it can easily be remedied. See State v. Neil, 457 So.2d 481, 486 & n. 9 (Fla.1984); Commonwealth
Thus, the overwhelming weight of authority is contrary to defendant's position that a Batson challenge asserted for the first time in a motion for new trial post-verdict is timely. Defendant's reliance on Alex v. Rayne Concrete Service, 05-1457 (La. 1/26/07), 951 So.2d 138, is misplaced. That decision did not address the question of timeliness and waiver at all; it resolved "a split among the court of appeal regarding whether a Batson/Edmonson challenge in a civil trial must be taken to the appellate court by supervisory writ or whether it may be considered on appeal following the conclusion of the trial". Alex, 05-1457 at 1, 951 So.2d at 141. Plaintiff in that case did not wait until after obtaining an unfavorable verdict but rather asserted his Batson challenge at the end of jury selection. See id., 05-1457 at 2, 951 So.2d at 142. This Court did state "in light of the United States Supreme Court's decision in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), that a defendant may rely on `all relevant circumstances' to raise an inference of purposeful discrimination under Batson, and not just the reasons proffered by the State in making the peremptory challenge, it seems reasonable, if not necessary in some circumstances, for a party to wait until after the entire trial is over to seek review of the peremptory challenge." Alex, 05-1457 at 9, 951 So.2d at 146. That comment, however, explicitly refers only to the necessity of seeking "review" and cannot reasonably be read as relieving a party from the necessity of timely objecting. This claim is without merit.
Defendant contends he presented newly discovered evidence that he was not the shooter and the victim's mother forgave him. The evidence that he was not the shooter consists of an anonymous letter. Defendant argues this mitigation evidence would have swayed at least one juror and the trial court erred in denying the motion without conducting an evidentiary hearing.
This Court has repeatedly noted that in order to obtain a new trial based on "newly discovered evidence," the defendant has the burden of showing that "(1) the new evidence was discovered after trial, (2) the failure to discover the evidence at the time of the trial was not caused by lack of diligence, (3) the evidence is material to the issues at trial, and (4) the evidence is of such a nature that it would probably have produced a different verdict." State v. Hammons, 597 So.2d 990, 994 (La.1992); State v. Knapper, 555 So.2d 1335, 1339 (La.1990); State v. Prudholm, 446 So.2d 729, 735 (La.1984); State v. Talbot, 408 So.2d 861, 884 (La.1980). An anonymous letter of unknown provenance that lacks any indicia of reliability is not material. Cf. United States v. Garner, 940 F.2d 663 (6th Cir.1991) (commenting that it was "highly unlikely" that
The fact that the victim's mother in this case has found some measure of peace after sentencing is not newly discovered material evidence providing a ground for a new trial under La.C.Cr.P. art. 851(3). Defendant's assignment of error is without merit.
Defendant contends a death sentence cannot be imposed because he was barely over the age of 18 and his IQ is 74. Because of his diminished mental capacity, defendant argues his maturity level is less than his chronological age and therefore a death sentence constitutes cruel and unusual punishment.
In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the U.S. Supreme Court held that "the death penalty cannot be imposed upon juvenile offenders," 543 U.S. at 575, 125 S.Ct. at 1198, and the court further drew the line between juvenile and adult offenders at age 18, 543 U.S. at 574, 125 S.Ct. at 1197. Defendant here was over 18 years of age when he murdered Tavia Sills. Nonetheless, he claims that because of his immaturity there is little practical difference between himself and an offender who commits murder before reaching the age of 18 years. However, the Supreme Court drew the line at age 18 well aware of the "objections always raised against categorical rules," id., 543 U.S. at 574, 125 S.Ct. at 1197, driven by two rationales: there was "objective indicia of consensus" against sentencing juvenile offenders to death in that, for example, most States had already rejected that possibility; and the death penalty "is a disproportionate punishment" because juvenile offenders as a class are less culpable than adult offenders. Id., 543 U.S. at 563-69, 125 S.Ct. 1191-95. No similar consensus exists against executing adult offenders and, although defendant therefore cannot benefit from the categorical prohibition of Roper v. Simmons, he had the opportunity to present his immaturity to the jury in the penalty phase as a mitigating circumstance. See United States v. Mitchell, 502 F.3d 931, 981 (9th Cir.2007) (finding that it "may well be true that [defendant] is less mature than the average 20 year old. But whether true or not, and whether that mitigates against his crime, is a question the Constitution permits to be answered on a case-by-case basis.").
In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the U.S. Supreme Court determined that the Eighth Amendment "`places a substantive restriction on the State's power to take the life' of a mentally retarded offender." Atkins, 536 U.S. at 321, 122 S.Ct. at 2252 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 2599, 91 L.Ed.2d 335 (1986)). The present defendant did not attempt to prove that he should have the benefit of that categorical prohibition by following the procedure provided by La.C.Cr.P. art. 905.5.1, which was enacted to effectuate the mandate of Atkins. He simply submitted Dr. Vigen's expert opinion that he has a full scale IQ of 74
Defendant, in essence, argues that his two near misses at qualifying for the categorical prohibitions established in Roper v. Simmons and Atkins v. Virginia, when viewed together, should qualify him for a new categorical prohibition under the Eighth Amendment, as yet unestablished by the U.S. Supreme Court, against executing those who are less culpable because of their immaturity in conjunction with their below average intelligence. As noted above, those considerations are indeed mitigating circumstances that are relevant to the jury's determination in the penalty phase. But defendant's argument by post-verdict motion and on appeal that he is less culpable for these reasons is not sufficient to override the jury's determination that death was the appropriate penalty in this instance. This claim is without merit.
Defendant contends that his sentence violates the Eighth Amendment because he is an African-American man who was prosecuted in Caddo Parish, which made it more likely that he would receive a death sentence than if he had been prosecuted elsewhere.
In Dorsey, 10-0216 at 51, 74 So.3d at 638, this Court found defendant did not first present his claim to the trial court that racism pervades Caddo Parish and that race and parish together are the best predictors of who will face a capital prosecution. In the present case, defendant argued in support of his motion to prevent the flying of the Confederate flag that the death penalty is disproportionately applied to black offenders who kill white victims and that African-Americans represent about 20% of the population of Caddo Parish while about 78% of those tried for first degree murder in Caddo Parish are African-Americans. That, however, is not the same argument defendant asserts for the first time on appeal, i.e., black males are more likely to be convicted of first degree murder and sentenced to death in Caddo Parish than any other jurisdiction as a result of endemic racism. Regardless, assuming arguendo, that defendant's motion placed this claim before the trial court, the only support offered by defendant is a study showing that six death sentences were imposed in Caddo Parish between 2004 and 2009, compared to four in East Baton Rouge, two in Ouachita, two in Jefferson, one each in Red River, West Baton Rouge, St. Tammany, Livingston, Calcasieu, and St. Mary parishes. Robert J. Smith, The Geography of the Death Penalty and Its Ramifications, 92 B.U.L.Rev. 227, 281-89 (2012). That is not sufficient to prove the death penalty is disproportionately applied against African-American men in Caddo Parish because of endemic racism. Defendant's claim is without merit.
In the discharge of the duty imposed by the legislature to "review every sentence of death to determine if it is excessive," La.C.Cr.P. art. 905.9, this Court will review the record in a capital case to determine: (1) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors; (2) whether the evidence supports the jury's finding of a statutory aggravating circumstance; and (3) whether the sentence
There are very few potential sources of passion, prejudice, or other arbitrary factors in the present case, aside from the allegation that racism pervades Caddo Parish, which factor the defendant contends is the best predictor of who will receive a death sentence in Louisiana. As discussed above, however, the defendant did not present that claim to the district court where the necessary factual development could occur, and the claim rests on speculation, unsupported allegations, and the fact that Caddo Parish has imposed just two more death sentences than the parish that has imposed the next greatest number (the statistical significance of which is unknown). Defendant also argues that he is likely ineligible for a death sentence under Atkins v. Virginia, supra. As noted above, defendant has not presented this claim following the procedure outlined in La.C.Cr.P. art. 905.5.1 and did not even present Dr. Vigen's opinion regarding his mental functioning to the jury in the penalty phase. The record does not reveal any potential indicia of passion, prejudice, or arbitrariness. Defendant, an 18-year-old black male, killed his pregnant girlfriend and received a sentence of death from a jury consisting of eight white females, two black females, and two white males, during the selection of which no Batson challenge was asserted. Although the defendant attributes the verdict to racism, the defendant's allegations in this regard are unproved.
As demonstrated by the jury's verdict during the guilt phase of the trial, the state presented sufficient evidence to prove beyond a reasonable doubt that defendant killed the victim while engaged in the perpetration of a second degree kidnapping, and when the offender knowingly created a risk of death or great bodily harm to more than one person. A review of the record suggests that the evidence was sufficient to support such a determination. Defendant was the last person seen with the victim. Defendant confessed to the crime and took police to the location where the murder weapon could be found. A witness saw defendant and the frightened victim as they walked to the location where the victim's body was later found and the witness heard gunshots. Although the defendant initially claimed he dropped the victim off at her sister's apartment, surveillance video contradicted this claim. Defendant ultimately claimed he shot the victim accidentally, and admitted he then shot her a final time to make certain that she was dead rather than seeking help.
As discussed above, the state's evidence overwhelmingly proved defendant committed the crime of second degree kidnapping when he enticed/persuaded Tavia Sills to accompany him from one place to another and into the woods, for purposes of facilitating the commission of another felony (her murder) by means of the firearm in his possession, thereby causing her physical harm (death). The jurors found this aggravating circumstance proved beyond a reasonable doubt in the penalty phase of the trial. Therefore, even if the jury's additional finding that defendant knowingly created a risk of death or great bodily harm to more than one person is erroneous because Tavia Sill's unborn child is not a person for purposes of La.C.Cr.P. art. 905.4(A)(4), that error does not require
The federal Constitution does not require a proportionality review. Pulley v. Harris, 465 U.S. 37, 42-50, 104 S.Ct. 871, 875-79, 79 L.Ed.2d 29 (1984). However, comparative proportionality review remains a relevant consideration in determining the issue of excessiveness in Louisiana, State v. Burrell, 561 So.2d 692, 699-700 (La.1990); State v. Wille, 559 So.2d 1321, 1341-42 (La.1990); State v. Thompson, 516 So.2d 349, 356-57 (La.1987), although the Court has set aside only one death penalty as disproportionately excessive under the post-1976 statutes, finding in that one case, inter alia, a sufficiently "large number of persuasive mitigating factors." State v. Sonnier, 380 So.2d 1, 9 (La.1979); see also State v. Weiland, 505 So.2d 702, 707-10 (La.1987) (in case reversed on other grounds, dictum suggesting that death penalty disproportionate).
The Uniform Capital Sentence Report reveals that defendant is a black male born on April 3, 1990. He was 18 years old at the time of the offense and is now almost 25 years old. He is unmarried and has one child (now approximately 10 years old). He completed the 11th grade. He has no significant employment history and previously pleaded guilty to misdemeanor carnal knowledge of a juvenile. He was frequently suspended from school.
According to the state, since 1976, 46 persons (excluding defendant) have been indicted for first degree murder in Caddo Parish, of which 18 have been found to merit a sentence of death by a jury.
A review of the capital verdicts from Caddo Parish does not suggest that Lamondre Tucker received a disproportionately harsh sentence. As noted above, two cases resulted in a death sentence when the perpetration of a kidnapping was an aggravating circumstance. In Dorsey, 10-0216, 74 So.3d 603, defendant and a codefendant were interrupted while committing a home invasion/armed robbery by the return of the male victim. The two subdued the victim, demanded money, and
In view of the foregoing, the proportionality review does not give the Court undue pause. The death penalty imposed on the defendant, Lamondre Tucker, for the first degree murder of Tavia Sills is not disproportionate.
For the reasons assigned herein, the defendant's conviction and death sentence are affirmed. In the event this judgment becomes final on direct review when either: (1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari; or (b) that Court denies his petition for rehearing, the trial judge shall, upon receiving notice from this Court under La.C.Cr.P. art. 923 of finality of direct appeal, and before signing the warrant of execution, as provided by La. R.S. 15:567(B), immediately notify the Louisiana Public Defender Board and provide the Board with reasonable time in which: (1) to enroll counsel to represent the defendant in any state post conviction proceedings, if appropriate, pursuant to its authority under La. R.S. 15:178; and (2) to litigate expeditiously the claims raised in that original application, if filed, in the state courts.
R. 18 at 3854-55.
Brown, 378 So.2d at 918 (Marcus, J., dissenting). Regardless, Brown has not been overruled and its effect is limited since the legislature established the crime of feticide by Acts 1989, No. 777, § 1.
Wainwright distinguished Stromberg not only on grounds that the Court could determine what jurors found when they returned their general verdict of guilty as charged but also on grounds that the aggravating circumstance that the state failed to prove was not, in any event, unconstitutionally invalid. Similarly, in the present case, the Court can determine the bases upon which jurors returned their general verdict at the guilty stage and defendant makes no argument here, beyond a purely statutory claim, that the Eighth Amendment prohibits a state from punishing the murder of a pregnant woman as a capital offense.
