KNOLL, J.
This is a direct appeal under La. Const. art. V, § 5(D) by the defendant, Marcus Donte Reed. Defendant appeals his conviction and sentence raising 50 assignments of error. We will address the most significant of these assigned errors in this opinion, and the remaining assignments of error will be addressed in an unpublished appendix. We have conducted a thorough review of the record, the law, and the evidence and have found no reversible error. Accordingly, we affirm defendant's first-degree murder convictions and the imposition of the death sentence.
The victims in this case were three brothers. Jeremiah, the oldest of the three, was a handsome 20-year-old, third-semester engineering student at Southern University Shreveport. At 6 feet, 2 inches tall and weighing 205 pounds, Jeremiah was an athlete. While he was in high school, he played football and basketball, and he ran track. He was a father figure to his two younger brothers, Jarquis and Gene, and was an active member of his church where he served as an assistant superintendent, a choir member, and the leader of a little youth group. The day before he died, Jeremiah attended a Sunday afternoon church picnic where he told his great aunt, Clara Adams Morgan, about his plans to assume responsibility for raising his younger brother, Gene, who loved horses and dreamed of being a veterinarian one day. At that time, Gene was living in Shreveport with Bernice Adams, the boys' grandmother and the sister of Clara Morgan. Like the Adams brothers, sisters Clara Morgan and Bernice Adams enjoyed a close relationship, and each helped raise the boys since their births. Although Gene loved his grandmother dearly, he wanted to move out to the country with his great aunt to be with his two older brothers, Jeremiah and Jarquis. Jeremiah was determined to make this dream come true for his little brother. However, as shown by the record evidence, the defendant put an immediate end to all their dreams with his ambush-style killing of the three brothers. On Monday, August 16, 2010, the evening following Jeremiah's heartfelt conversation with his Aunt Clara about Gene, officers with the Caddo Parish Sheriff's Office were dispatched to investigate the reported homicide of
At 10:28 p.m., officers were dispatched to the scene following a 9-1-1 call received from James Hendrix. During the guilt phase of defendant's trial, James testified that, at the time of the homicides, he resided, along with his wife, his daughter, and his grandson, across the street from the residence where the brothers' bodies were found.
Upon their arrival, officers questioned James and then went to the residence across the street from James' home. The scene the officers observed was terrifically gruesome. Officer Matthew Cowden testified that he received the dispatch at
The photographs admitted into evidence depicting the scene as officers observed it upon their arrival show the male hanging out of the driver's side rear door had a bloodied white cloth covering his face, his genitals were exposed, his left shoe lay on the ground next to his body, the other shoe was on his right foot, his feet alone stretched inside the vehicle, and the rest of his body spread on the ground. At trial,
Dr. James Traylor conducted the autopsies of Jarquis and Gene. Dr. Traylor testified Jarquis suffered two perforating gunshot wounds: (1) one from a bullet that entered Jarquis' upper right chest and exited his left upper back and (2) the other from a bullet that entered Jarquis' left forehead and exited the back of his head in the right parietal region. According to Dr. Traylor, the pathology of Jarquis' forehead wound was
Dr. Long Jin, who conducted the autopsy of Jeremiah, testified that Jeremiah suffered seven separate gunshot wounds, including: (1) a perforating wound that
Notably, although Dr. Traylor testified that Jarquis had marijuana in his system, in addition to some other prescription drugs, Dr. Traylor and Dr. Jin confirmed that toxicology reports showed neither 13-year-old Gene nor 20-year-old Jeremiah had any
Lead investigator Detective Fox managed a fast-paced evolving situation immediately following the shootings, gathering evidence at the scene even as officers diligently scoured the rural, heavily wooded area around the crime scene for a potential fourth victim and attempted to identify and to capture the suspect responsible for the carnage. As Detective Fox testified, "It was perpetual motion trying to coordinate where to go first, who to send where." Detective Richardson agreed that it was a dangerous scene and a situation in flux, as officers searched for a fourth individual and an assailant: "Didn't know if someone may have been injured, ran into the woods somewhere." Detective Richardson testified it was not until "some days later or at least a day later" that officers determined as part of the investigation that there was
Sergeant Baird testified his officers searched the area around the silver Malibu for evidence of ammunition and for weapons. Although a .45 caliber semiautomatic pistol was recovered in the tree line behind the residence, no spent handgun ammunition was found anywhere around the brothers' vehicle or on the porch of the residence.
Officers identified Marcus Reed as a suspect very quickly, as the first information law enforcement received about this incident from James Hendrix included the report that Marcus Reed was the perpetrator of the shooting. Although officers did not observe defendant on the scene at the time of their arrival, they quickly learned from numerous individuals that Marcus lived, at least intermittently, at the residence where the homicides occurred along with his girlfriend, Loshun Jackson, her two children, and her brother, Daniel. Based on information obtained the morning after the shooting from defendant's cousin, Brian Wafer, officers were able to place defendant at the Jackson residence crime scene during the critical time when they believed the shooting occurred. Brian admitted receiving a call at
During the guilt phase, defendant asserted a justifiable homicide defense, arguing Jarquis had burglarized the Jackson residence
There was little factual dispute at trial on this score. Every one of the fact witnesses the State offered who spoke to the defendant before the killings or who was present at the Jackson residence that evening testified they learned prior to the homicides that someone had broken into the Jackson residence that day. Indeed, Daniel Jackson, who lived at the residence with the defendant, and Bridgette Garland, who spent that evening at the residence, both testified the thief or thieves had stolen marijuana from the Jackson residence, as well.
Among the twenty-one witnesses the State presented during the guilt phase were two eyewitnesses, Daniel Jackson and Shannon Garland.
(Emphasis added). Daniel testified the defendant was aiming the rifle with each shot. According to Daniel, after circling the vehicle, the defendant came back around to the front of the vehicle where Jarquis was
On cross-examination, defense counsel elicited testimony from Daniel that he saw two bodies in the back seat, that he never saw anyone exit the driver's side front seat, and that he did not see where the person in the front seat went. Daniel also denied helping to move Jarquis' body into the trunk and testified he did not know who placed Jarquis' body in the trunk. At times, Daniel's testimony was internally inconsistent. On his first day of testimony, Daniel testified on direct examination that he did not see what defendant did with the rifle and that defendant "kept it with him when the shooting stopped." On cross-examination the next day, Daniel testified that, when James Hendrix pulled into the driveway across the street, defendant "put the gun down and ran." At this point, Daniel ran toward James, who made the initial 9-1-1 report. Defense counsel cross-examined Daniel vigorously on various inconsistencies between the statements Daniel initially gave to officers and his testimony before the court, including his original statement that he was inside his car listening to music when the shooting happened. Although Daniel acknowledged that he initially reported to police that four people had been in the car, Daniel explained that he could not tell how many people were in the gray vehicle when it pulled into the driveway. He also testified that he told James that four individuals had been killed
The trial testimony of the second eyewitness, Shannon Garland, corroborated Daniel's testimony in all
Although he remembered that Daniel was "standing there on the steps" during the shooting, Shannon testified he was focused on the defendant and that he was not able to tell what Daniel was doing at the time because he was scared: "I didn't know if he was going to shoot me or not." According to Shannon, defendant then "had the gun in his hand and he told us — he pointed the gun over at us and said put the body in the trunk." Unlike Daniel, who only testified to attempting and failing to move
During a vigorous cross-examination, Shannon testified he did not remember telling officers that "there were a bunch of people there" at the time of the shooting or that he did not make it up the driveway before the shooting began. Even when speaking with officers, Shannon maintained he remained frightened: "I didn't know if — I didn't know if Marcus was going to come back and get us or not at the time. I didn't know what — if he was still out or if he was still walking free."
The only testimony offered that cast any doubt on the essential facts to which Daniel and Shannon testified came from a witness who admittedly did not
Although Clarence insisted he heard the reports of two
The testimony of other witnesses who were present at the Jackson residence prior to the shootings also corroborated the version of events described by Daniel and Shannon. Shannon Garland's then-wife, Bridgette Garland, was also present at the Jackson residence on the night of the homicides. At trial, Bridgette testified she remembered defendant saying that someone had taken an amplifier, an Xbox, and marijuana from the Jackson residence. Bridgette recalled defendant was making phone calls in an effort to try to determine who had stolen his things. Bridgette remembered overhearing a phone call in which defendant told a person whose nickname was "Radio" "to come back over, that he had a package for them to come pick up and get here before he ran out." By "package," Bridgette understood that defendant was referring to marijuana. Bridgette testified that, after this conversation ended, defendant spoke about the burglars and "said that whenever they come ... he was going to kill them and whoever was with them; he didn't care." Bridgette recalled defendant went into the house and brought back onto the porch a "long black [gun] and it had like a round clip from the bottom." Bridgette positively identified the rifle officers had found hidden under the porch as the gun defendant had with him. Bridgette also testified that
After hearing this testimony along with the testimony of several other witnesses and considering all of the evidence, a unanimous jury found defendant guilty of the first-degree murders of Jeremiah, Jarquis, and Gene Adams and determined defendant should be sentenced to death as punishment for these crimes.
Having carefully studied the entire record, we note the evidence of the homicide is not seriously in dispute. The dispositive issue turns purely on a credibility determination — was the defendant justified in killing the three brothers. The defendant rests primarily on the inconsistencies between the witnesses' statements to law enforcement officers and their testimonies at trial to support his argument of insufficient evidence to prove he was not justified in killing Jeremiah, Jarquis, and Gene Adams. As will be detailed below, we have
Defendant argues the State presented insufficient evidence to support a conviction for first-degree murder and the imposition of a death sentence. Specifically, defendant contends (1) the State presented insufficient evidence to prove beyond a reasonable doubt that the homicides were not justified; (2) the State's evidence was insufficient to support a verdict of first-degree murder; and (3) the unreliability of the State's witnesses precludes a conviction for first-degree murder and the imposition of the death penalty.
In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Captville, 448 So.2d 676, 678 (La. 1984). Applying the Jackson standard, the appellate court must determine the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Captville, 448 So.2d at 678.
To obtain a conviction for first-degree murder in this case, the State was required to prove beyond a reasonable doubt that defendant killed a human being when he had the specific intent to kill or to inflict great bodily harm upon more than one person. La. Rev. Stat. 14:30(A)(3). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. Rev. Stat. 14:10(1); State v. Butler, 322 So.2d 189, 192-93 (La. 1975). Specific intent to kill may also be inferred from a defendant's act of pointing a gun and firing at a person. State v. Williams, 383 So.2d 369, 373 (La. 1980); State v. Procell, 365 So.2d 484, 492 (La. 1978).
As to the issue of justifiable homicide, when the defendant asserts he acted in self-defense, the State bears the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense. State v. Taylor, 02-1834 p. 7 (La. 5/25/04), 875 So.2d 58, 63; State v. Brown, 414 So.2d 726, 728 (La. 1982). A homicide is justifiable "[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger." La. Rev. Stat. 14:20(A)(1); State v. Guinn, 319 So.2d 407, 408-09 (La. 1975).
Although defendant admits there was "clearly" sufficient evidence that he shot Jeremiah, Jarquis, and Gene, defendant contends there was not sufficient evidence to prove beyond a reasonable doubt that the killings were not justified. We disagree. The eyewitness testimony of Daniel Jackson and Shannon Garland established defendant emerged from the darkness of the woods shooting at Jarquis, who was
Defendant relies heavily on the testimonies of Kyle King and Clarence Powell to support his argument that Jarquis returned to the Jackson residence to steal more items and that defendant acted based on a reasonable belief that he was in imminent danger. The jury, however, evidently made a credibility determination and rejected defendant's theory of justifiable homicide. Indeed, contrary to Clarence Powell's testimony that he heard the report of a
In a similar vein, defendant argues, even if the jury rejected the testimony of Clarence Powell and Kyle King and accepted the testimony of Daniel Jackson and Shannon Garland, the evidence presented at trial made out a case for manslaughter, not murder. We disagree.
Although Daniel and Shannon both testified about how quickly the shooting itself occurred, the testimony established that almost 10 hours elapsed between the burglary and the shooting. While the defendant had a significant amount of time to cool off prior to the homicides, the evidence established defendant spent this period of time attempting to identify the burglars and preparing to exact his revenge by ambush. Daniel Jackson's eyewitness testimony that defendant was wearing latex gloves at the time of the shooting, Bridgette Garland's testimony that she saw defendant don latex gloves before entering the woods with the semiautomatic rifle, and the recovery of a latex glove in the shorts witnesses say defendant wore that evening further support the jury's conclusion that defendant acted not in the heat of "sudden passion," but in cold blood. Although Clarence Powell's testimony about what he allegedly
In his final assignment of error related to the sufficiency of the evidence, defendant argues the unreliability of the State's witnesses precludes a conviction for first-degree murder and the imposition of the death penalty. First, defendant points to several inconsistencies in Shannon Garland's and Daniel Jackson's testimonies. Essentially, Shannon's account of events diverges from Daniel's account with respect to where in the yard
Defendant also argues Shannon's testimony could not be credited because Shannon testified defendant first shot Jarquis in the back as Jarquis stood directly in front of Shannon, yet autopsy results show Jarquis was shot in the upper right chest. Although Dr. Traylor testified Jarquis was not shot in the back, he also testified, based upon the angle at which the bullet entered the victim's upper right chest, he could not exclude the possibility that Jarquis was shot as he turned to his right to face the muzzle end of the weapon. Given this testimony, we find the autopsy results do not necessarily contradict Shannon's testimony.
Defendant next contends no rational juror could credit the testimony of Shannon Garland, Daniel Jackson, and Bridgette Garland given inconsistencies between their trial testimony and various pre-trial statements they made to officers and to the grand jury. Defense counsel thoroughly and vigorously cross-examined these witnesses and fully explored for jurors the inconsistencies in their prior statements and testimony. Specifically, concerning the possibility of a fourth victim, Shannon and Daniel both admitted they initially informed police that more than three people were in the vehicle. Shannon testified to being confused and scared during his questioning following the shooting. Multiple witnesses testified to Daniel's hysterical demeanor after the homicides, with Detective Cowden, one of the first officers on the scene, describing Daniel as "very afraid, very scared ... very disturbed, very upset." Daniel testified his report that four individuals were killed was based on his fear defendant had killed Shannon, as well. Notably, all three of these witnesses testified to their fear of retribution from the defendant or from his family if they told officers everything they knew, with Bridgette specifically alleging she received a phone call from defendant's brother who threatened he would "blow up [hers and Shannon's] house" if she testified against the defendant. Notwithstanding the discrepancies clearly brought out through cross-examination, the inconsistencies did little to discredit their testimony at trial about defendant's motive, preparation, and execution of these three killings. When there is conflicting testimony as to factual matters, the resolution of which depends on witness credibility, a matter of weight of evidence rather than its sufficiency is presented. Tibbs v. Florida, 457 U.S. 31, 46, 102 S.Ct. 2211, 2220-21, 72 L.Ed.2d 652 (1982) ("This resolution of conflicting testimony in a manner contrary to the jury's verdict is a hallmark of review based on evidentiary weight, not evidentiary sufficiency."). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 03-1980, p. 6 (La. 4/1/05), 898 So.2d 1219, 1226. Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369. In this case, there were inconsistencies among the testimonies of various witnesses regarding factual matters, so the issue was the weight of the evidence and not its sufficiency. As such, it was within the jury's discretion to accept the State's witnesses and find the defendant guilty of three counts of first-degree murder. Because the jury's credibility determinations in this case were not clearly contrary to the
Defendant further argues the testimony of Glen Merrell, another witness for the State, contradicted Shannon's and Daniel's accounts, rendering their eyewitness accounts unreliable. Glen testified that he was on the phone with defendant around the time of the shootings, that defendant asked him to "hang on for a minute," and that Glen then heard "a bunch of gunshots." Defendant argues this testimony undermines Shannon's and Daniel's testimonies because neither testified to seeing defendant on the phone as he came out of the woods. This contention is meritless. We fail to see how Glen's waiting "for a minute" on the phone while the homicides occurred contradicted the eyewitnesses' accounts of the shooting.
Lastly, defendant maintains no rational juror could rely on the testimony of former inmate Terry Matthews, who testified during the guilt phase that, while at Caddo Correctional Center together, defendant confessed to Terry that "he laid and waited and ran out and ambushed" the Adams brothers. Defendant argues Terry's account is incredible (1) because he was formerly terminated as a confidential informant for the Caddo Parish Sheriff's Office for being a high risk, heavy drug user who was "spreading his information on the street," (2) because the testimony of inmate Robert Washington contradicted Terry's testimony, and (3) because he testified inconsistently concerning whether or not he spoke to, and obtained information from, his wife about defendant's case. After reviewing Terry's testimony, we believe a rational juror could have found his testimony to be credible. Indeed, the jury heard from Terry that he provided this information to officers days before his release on a conviction for "simple burglary or burglary" because he "[f]elt it was the right thing to do." By the time of his testimony, Terry remained on probation but had been employed for two years, he traveled from out of state to provide his testimony, and he was a married father of two daughters with one child on the way. Although Robert Washington, who at the time of trial remained jailed at Caddo Correctional Center on convictions for forcible rape of a child and second degree kidnapping of that same child, testified that he was present at all times during which Terry claimed to have received this confession from defendant and that he never heard defendant discuss his capital case, it was within the jury's discretion to determine what weight to assign to each witnesses' testimony. Finally, defendant strenuously argues Terry's statement to officers was inconsistent with his trial testimony because, contrary to his original statement in which he mentioned speaking with his "wife" about the shooting, Terry denied speaking with anyone about defendant's case. Defense counsel cross-examined Terry thoroughly on this point. Given the testimony Terry offered was fully consistent with the eyewitness testimony of Daniel Jackson and Shannon Garland, a rational juror could have found Terry's testimony to be credible. Accordingly, we find this assignment meritless, as well.
Defendant argues that the trial court failed to instruct the jury on the elements of justifiable homicide applicable to his case, La. Rev. Stat. 14:20(A)(2) and (3) and erroneously instructed jurors to consider the possibility of retreat contrary to La. Rev. Stat. 14:20(D). In defendant's "Request and Order for Written Jury Charges and Instructions," he requested
These requested instructions on justifiable homicide reflect only the provision of La. Rev. Stat. 14:20(A)(1) and, along with the instruction on retreat, also mirror the instructions that were provided to the jury at the conclusion of the guilt phase of trial. As such, it appears defense counsel did not request the inclusion of the "stand your ground" provisions under La. Rev. Stat. 14:20(A)(2), (A)(3), or (D). Indeed, defense counsel requested the very instructions to which defendant now objects. Thus, there exists no error for this Court to review. La.C.Cr.P. art. 807; State v. Rayford, 348 So.2d 990, 990 (La. 1977). Further, defense counsel voiced no objection to the court's jury instructions during the guilt phase. Accordingly, these assignments of error were not preserved for appellate review. La.C.Cr.P. art. 841; State v. Wessinger, 98-1234, pp. 19-20 (La. 5/28/99), 736 So.2d 162, 180-81 (scope of review in capital cases is limited to alleged errors to which counsel contemporaneously objects).
Defendant also claims trial counsel rendered ineffective assistance by failing to request jury instructions on justifiable homicide under La. Rev. Stat. 14:20(A)(2) and (3) and by requesting an instruction directing the jury to consider the possibility of retreat contrary to La. Rev. Stat. 14:20(D).
Under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), adopted by this Court in State v. Washington, 491 So.2d 1337, 1338-39 (La. 1986), a reviewing court must reverse a conviction if the defendant establishes (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. Generally, a claim for ineffective assistance of counsel is properly raised in an application for post-conviction relief. State v. Burkhalter, 428 So.2d 449, 456 (La. 1983). This enables the district judge to conduct a full evidentiary hearing on the matter. State v. Seiss, 428 So.2d 444, 449 (La. 1983). Because the record in this case discloses the evidence needed to decide the issue of ineffective assistance of counsel and because defendant has raised the issue by assignment of error on appeal, we will address the issue now in the interest of judicial economy. See, e.g., State v. Ratcliff, 416 So.2d 528, 530-32 (La. 1982).
Defendant argues that prosecutors' conduct at various points throughout the guilt and the penalty phases of defendant's capital trial, both individually and collectively, violated his constitutional rights to due process, a fair trial, and a reliable sentencing proceeding.
Three of the five assignments of error concerning this asserted prosecutorial misconduct involve statements prosecutors made during the guilt and the penalty phase closing arguments. As a general matter, closing arguments in criminal cases "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." La.C.Cr.P. art. 774. Louisiana jurisprudence on prosecutorial misconduct allows prosecutors considerable latitude in choosing closing argument tactics. The trial judge has wide discretion in controlling the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La. 1981). Even if the prosecutor exceeds these bounds, a reviewing court will not reverse a conviction due to an improper remark during closing argument unless the court is
In his nineteenth assignment of error, defendant argues that "[i]n penalty phase rebuttal arguments the State repeatedly commented that defense attorney Richard Goorley had a `fanatically abusive' interpretation of the law, was `obscene and insulting,' was `threatening' jurors, and calling them `killers' and `not Christian.'" In particular, he points to portions of the State's rebuttal in which the prosecutor made personal remarks towards defense counsel:
At the conclusion of the State's rebuttal, defense counsel objected to the State's improper remarks and moved for a mistrial. The district court overruled the defendant's objection and denied his motion for mistrial, ruling:
Defense counsel noted his objection for the record.
While the State should refrain from making personal attacks on defense strategy and counsel, State v. Brumfield, 96-2667, p. 9 (La. 10/20/98), 737 So.2d 660, 666; see also State v. Duplessis, 457 So.2d 604, 608 (La. 1984) (prosecutor's comment that "a bus full of witnesses would not be enough for defense counsel because he was a `very skillful lawyer'" improper), in this case, it appears the State was not commenting on counsel's character but rather responding to his argument, which suggested that to elect the death penalty would amount to an act of vengeance. Indeed, as evident from the State's comments, defense counsel invited the commentary on the Bible with the following statement, among others:
Defendant broadly argues in his twentieth assignment of error that the State improperly commented on his presentation of mitigating evidence in the penalty phase of his trial. Specifically, he points to statements prosecutors made in the closing and the rebuttal arguments of the penalty phase of his trial in which the State commented that defendant was "loathsome" and willing to sacrifice his family to preserve himself because he made the decision to allow his family to testify on his behalf in mitigation. Because defense counsel did not object to the prosecutor's allegedly improper comments concerning defendant's presentation of mitigating evidence, this aspect of defendant's claim was not preserved for review. La. C.Cr.P. art. 841; Wessinger, 98-1234, pp. 19-20, 736 So.2d at 180-81 (reviving contemporaneous objection rule for the penalty phase as well as guilt phase of a capital trial). Even absent the procedural bar, this claim is meritless as prosecutors did not argue "that a particular factor should not be a mitigating circumstance" but instead sought "to disprove the existence of a mitigating factor." State v. Hampton, 98-0331, p. 22 (La. 4/23/99), 750 So.2d 867, 886.
On a similar note, defendant contends the State improperly commented on defendant's failure to call Loshun Jackson's children to testify as mitigation witnesses and on defendant's emotionless state during the victim-impact testimony. Defense counsel objected to these improper remarks and requested a mistrial, which the trial court denied ruling "there's no grounds for a mistrial because of those comments." Defense counsel noted his objection for the record.
In reference to defendant's failure to show emotion, evidence that a capital defendant shows no remorse does not inject arbitrariness into the proceedings, as a lack of remorse is "relevant to the character and propensities of the defendant." State v. Juniors, 03-2425, p. 63 (La. 6/29/05), 915 So.2d 291, 336 (citing State v. Wilson, 467 So.2d 503, 523 (La. 1985) (citing State v. Summit, 454 So.2d 1100, 1108 (La. 1984) (rev'd on other grounds, Summit v. Blackburn, 795 F.2d 1237 (5th Cir. 1986)). As a comment directed to defendant's character and propensities, the statement was permissible. Second, as to the remarks concerning defendant's failure to call Loshun Jackson's children as mitigation witnesses, the absence of witnesses constitutes permissible comments on the lack of evidence. See La.C.Cr.P. art. 774. Accordingly, given the broad latitude afforded to the prosecutor during closing arguments, it cannot be said these few comments sprinkled over a 20-page closing argument were so egregious as to warrant the drastic remedy of a mistrial. Martin, 93-0285, p. 18, 645 So.2d at 200. These claims have no merit.
In his twenty-first assignment of error, defendant complains that in guilt and penalty phase arguments, "the State repeatedly misstated testimony and created theories out of whole cloth in an effort to convince the jurors that Marcus Reed's
Next, defendant asserts the State deprived defendant of due process of law when it "improperly threatened to arrest or criminally charge three trial witnesses," namely: (1) Brian Wafer; (2) Clarence Powell; and (3) Kyle King. As to Brian Wafer, who is defendant's first cousin, during its direct examination, the State played a pertinent portion of Mr. Wafer's recorded interview and allowed Mr. Wafer to review the transcript of the statement as he could not recall how he described defendant's demeanor. Even then, Mr. Wafer testified he had no recollection of his statements. Prosecutor, Dale Cox, then addressed Mr. Wafer: "I want to read you something and then I'm going to ask you a couple of questions. Revised Statute 14:123, perjury — "Before the prosecutor could read any further, defense counsel objected. The court then excused both the jury and Brian Wafer. Outside of the presence of the jury, defense counsel requested a mistrial on the basis that the prosecutor began to read the perjury statute in front of the jury. After considering the defense's motion for mistrial, the trial court denied the motion for mistrial and instructed the State not to read the statute but only to "remind [Mr. Wafer] he's under oath":
Defense counsel noted his objection for the record. The State then went on to remind Brian that he was under oath and that the penalty for perjury is five to 40 years at hard labor.
We find the trial court did not err in denying the motion for mistrial. Defendant fails to show the perjury charges would have been unwarranted. Thus, he does not demonstrate an
With respect to Clarence Powell, the record reflects that on the morning of September 30, 2013, Clarence, who was under subpoena and instructed to appear for 9:00 a.m., was not present in court. The
Lastly, defendant argues that, before Kyle King entered the courtroom to testify in defendant's guilt phase case-in-chief, the State threatened to arrest him based upon his upcoming testimony about his participation in the burglary of defendant's residence. The record reflects that out of the presence of the jury and of Kyle King, the State objected on the record:
In response, defense counsel argued:
After reviewing Kyle's statement to the police and grand jury testimony, the trial court noted for the record that "[t]he State has had plenty of time to charge him because of his admission of a crime before — under oath before the Grand Jury. So I don't really see what difference it makes if he testifies again." The prosecutor withdrew his objection, commenting, "I don't think [Mr. King] needs any advisement of any kind. I agree with the Court. Let him come testify to whatever he will." The court ordered that Kyle be brought back into the courtroom and that he be advised of his rights outside the presence of the jury. Kyle testified that he understood he could be charged with burglary if he testified at trial and that he did not wish to assert his Fifth Amendment rights and request a lawyer.
As an initial matter, the trial court did not err in ordering Kyle King be advised of his right to invoke the Fifth Amendment privilege, as any testimony he gave concerning his participation in the burglary of defendant's residence would be self-incriminating.
This assignment of error is meritless.
Finally, defendant complains that the State failed to correct the false or misleading testimony of two witnesses, Detective Keith Fox and Terry Matthews.
As a general matter, if a prosecutor allows a State witness to give false testimony without correction, a reviewing court must reverse the conviction gained as a result of that perjured testimony, even though the testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); State v. Williams, 338 So.2d 672, 677 (La. 1976). Even if the State does not solicit the false testimony, its failure to correct it "when it appears" violates due process guarantees. Napue, 360 U.S. at 269, 79 S.Ct. at 1177; State v. Ellender, 354 So.2d 500, 503 (La. 1978). When such false testimony goes before the jury, the defendant must receive a new trial unless there is no reasonable likelihood that the alleged false testimony could have affected the outcome of the trial. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); State ex rel. Shilling v. Whitley, 92-3312 (La. 4/29/94), 637 So.2d 459.
First, defendant claims Detective Keith Fox gave untruthful testimony as to the existence of a fourth individual in the victims' vehicle. Defendant fails to point to any false testimony. Detective Fox testified on direct examination that when he arrived at the crime scene the night of August 16, 2010, his team had received information "that there may be a fourth victim." He testified the investigatory team continued to search for a possible fourth victim the following day, but he noted the search did not lead to the discovery of a fourth victim. On cross-examination, as defense counsel attempted to elicit information from Detective Fox that he had received information of the fourth person "in the car," Detective Fox clarified he "just had information that four people had been shot," and "it was never specified that the fourth victim was in the car." When defense counsel asked Detective Fox whether he spoke to Shannon Garland, the State made a hearsay objection, the trial court sustained the objection, and defense counsel ended his examination before Detective Fox could have the opportunity to explain himself further.
As an initial matter, the record is devoid of any allegation the State acted in collusion with Detective Fox or that Detective Fox made contradictory statements. Moreover, because Shannon Garland was not interviewed until the following morning, during the early hours of the investigation, officers only had the initial statements made by Daniel Jackson who informed James Hendrix after fleeing the crime scene that four individuals had been shot. Thus, it does not appear Detective Fox had knowledge of whether the fourth potential victim had been observed
Defendant also contends Terry Matthews testified on cross-examination that he
Defendant next claims the court improperly excluded testimony from a witness who was prepared to testify defendant warned the victims to stay away from his residence before the instant homicides occurred. Specifically, defendant's neighbor, Clarence Powell, overheard defendant arguing with an individual on the telephone, yelling
According to Clarence in his initial statement to police, he overheard defendant having this telephone conversation about 30 minutes before he heard a confrontation between defendant and an unknown voice in defendant's yard.
At trial, the State objected to the introduction of this testimony as inadmissible hearsay, and the court sustained the objection, ruling that
Defense counsel noted his objection for the record. According to defendant, the testimony was admissible as non-hearsay under the res gestae exclusion to the hearsay rule.
Hearsay is a statement, other than one made by the declarant while testifying at the present trial, offered in evidence to prove the truth of the matter asserted. La.C.E. art. 801(C). Hearsay is
The res gestae hearsay exclusion in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. See State v. Huizar, 414 So.2d 741, 748 (La. 1982); State v. Kimble, 407 So.2d 693, 698 (La. 1981).
Under the res gestae exclusion, statements must be spontaneous words of the participants which are necessary incidents of the criminal act. Here, although Mr. Powell overheard defendant arguing with an unknown individual on the telephone shortly before the homicides occurred, he did not personally observe defendant speaking on the telephone, or witness the crimes for that matter. Therefore, Mr. Powell could not ascertain defendant's emotional state to indicate whether he made the statements "under immediate pressure of the occurrence," La.C.E. art. 801(D)(4). Thus, under the circumstances, it is not evident that defendant's statements on the telephone acted as a prelude to the criminal acts, and the exclusion is not applicable.
Alternatively, defendant argues the court improperly excluded the testimony because the statement was not hearsay — that is, because it was not offered for the truth of the matter asserted but to show that the utterance occurred. In support, defendant points to this Court's instructive explanation in State v. Everidge concerning what kind of statements constitute hearsay:
96-2665, p. 7 (La. 12/2/97), 702 So.2d 680, 685. The State disputes defendant's assertion that this statement is not hearsay. In support, the State cites the following language from the Second Circuit's opinion in State v. Hicks:
607 So.2d 937, 946-47 (La.App. 2 Cir. 1992). Notably, the hearsay objection in Hicks arose when defense counsel, on cross-examination, asked a police officer whether the owner of a bar remembered the victims being present at her bar. 607
562 So.2d 868, 877-78 (La. 1990); see State v. Raymond, 258 La. 1, 245 So.2d 335, 340 (1971) (the victim's extrajudicial declaration of fear of or revulsion by defendant made several hours before the homicide was admitted as relevant, non-hearsay circumstantial evidence concerning the victim's state of mind about defendant). Because we find defendant's statement tended to indirectly establish defendant's state of mind which was at issue in this case, the statement was a non-hearsay statement which should not have been excluded.
Nevertheless, we find this error was harmless. Although the court excluded this testimony which, defendant asserts, could have supported his theory of self-defense at trial, the court permitted Mr. Powell to testify — over the State's objection — to overhearing a confrontation with strikingly similar content between defendant and an unknown voice immediately prior to the shooting. Thus, it does not appear the court's exclusion of this portion of Mr. Powell's testimony compromised defendant's right to present a defense. We are convinced that, given the overwhelming evidence of defendant's guilt, the jury's verdict in this case was surely unattributable to this error. La.C.Cr.P. art. 921; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); Sanders, 93-0001, p. 17, 648 So.2d at 1286.
Accordingly, these assignments of error fail.
Defendant also argues the trial court improperly excluded as hearsay testimony from Kyle King that the victim, Jarquis Adams, informed him of specific items to steal from defendant's residence. Specifically, the defense elicited testimony that, after driving to defendant's residence, Kyle remained in the vehicle while Jarquis went inside the home. Defense counsel elicited further testimony that Jarquis returned to Kyle's vehicle after inspecting the Jackson residence,
Defendant contends the statements were res gestae. However, as discussed above, under the res gestae exclusion, statements must be spontaneous words of the participants which are necessary incidents of the criminal act. As an initial matter, although the burglary of his residence arguably speaks to defendant's motive in the instant homicides, the burglary occurred almost 10 hours before the homicides. As such, it does not qualify as a statement which is "the necessary incident[]of the criminal act, or immediate concomitant[] of it, or [which] form[s] in conjunction with it one continuous transaction." La.C.E. 801(D)(4). Moreover, this statement does not constitute "impulsive or spontaneous" words made "under the immediate pressure of the occurrence." La.C.E. art. 801(D)(4). Instead, the statement — an explanation of what Jarquis saw inside defendant's home — was primarily narrative in nature. See State v. Jacobs, 281 So.2d 713, 715 (La. 1973) (declaration by the victim not considered res gestae when it is narrative rather than spontaneous); cf. State v. Hunter, 343 So.2d 143, 144 (La. 1977) (victim's spontaneous statement immediately after the crime, in the excitement of the occurrence, is generally considered res gestae). As such, the trial court properly found the res gestae exclusion inapplicable. Additionally, given that Kyle King provided ample testimony at trial as to Jarquis' involvement in the burglary of defendant's residence and his intent to return to defendant's residence to steal additional items, it is difficult to discern any prejudice from the trial court's exclusion of this statement. This claim fails.
Next, defendant claims the trial court erred in excluding portions of Robert Washington's testimony which was offered to impeach Terry Matthews' testimony concerning a series of incriminating statements defendant made to Mr. Matthews and in Mr. Matthews' presence while incarcerated at Caddo Correctional Center. As defense counsel attempted to elicit information from Mr. Washington about the content of the conversations he had with Mr. Matthews and defendant as they walked to the van, the State objected to the entire line of questioning as improper extrinsic impeachment evidence and as to relevancy. The court held a bench conference and, subsequently on the record, informed Mr. Washington, "[Y]ou can't say what anybody else said to you. That would be hearsay and it's not admissible." Defendant argues that Mr. Washington's testimony did not constitute hearsay as it was to be introduced to impeach the testimony of Terry Matthews through contradiction under La.C.E. 607(D)(2) and that the court's error in excluding the testimony denied defendant his right to present a defense.
Because defense counsel did not object to the trial court's ruling excluding Mr. Washington's testimony, these claims were not preserved for review. La.C.Cr.P. art. 841; Wessinger, 98-1234, pp. 19-20, 736 So.2d at 180-81 (appellate review in capital cases is limited to alleged errors for which the complaining party lodged a contemporaneous objection). Even absent the procedural bar, however, defendant shows no reversible error. Because the testimony of Terry Matthews was corroborative of the eyewitness testimony of Daniel Jackson and Shannon Garland and given the overwhelming testimonial and physical evidence presented by the State to prove defendant's guilt, defendant fails to show
Accordingly, these assignments of error fail.
In his next argument, defendant claims that the State presented inadmissible other crimes evidence alleging that defendant was a well-known marijuana dealer in the neighborhood. On January 23, 2013, the court conducted a hearing on the admissibility of evidence concerning defendant's drug activity. The State argued the drug activity was relevant to show intent, knowledge, absence of mistake, plan, and motive and claimed the purpose of the introduction of the evidence was not "just to show that Mr. Reed supposedly is a drug dealer or does drugs or has people in or around his home consuming drugs" but rather to show that victim Jarquis Adams knew defendant and previously participated in drug transactions with defendant at his residence. Further, the State maintained the drug activity was relevant to this case because defendant was a known drug dealer and because Jarquis allegedly stole drugs from defendant's home the day the homicides occurred.
On January 29, 2013, the court ultimately granted the State's request and found the State offered sufficient evidence to prove that the homicides were committed in connection with drug activity. In particular, the court found:
Defense counsel then asked the court to clarify its ruling with respect to the admission of this evidence of drug activity:
The defense counsel noted his objection for the record and gave notice of his intent to seek supervisory review. On April 11, 2013, the court of appeal denied writs on the showing made. State v. Reed, 48,342 (La. App. 2 Cir. 4/11/13) (unpub'd).
Generally, courts may not admit evidence of other crimes or bad acts to show the defendant is a man of bad character who acted in conformity with his bad character. La.C.E. art. 404(B)(1). However, the State may introduce evidence of other crimes or bad acts if it has established an independent relevant reason — i.e., to show the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident — or if the evidence relates to conduct constituting an integral part of the act or transaction that is the subject of the present proceeding. State v. Prieur, 277 So.2d 126, 130 (La. 1973). Currently, Prieur does not require a pre-trial evidentiary hearing on the question of the admissibility of other crimes evidence; it requires only that, before such evidence is introduced, the State makes the requisite showing outside of the presence of the jury. State v. Lukefahr, 363 So.2d 661, 665 (La. 1978). La. C.E. arts. 401 and 402 establish the broad principle that relevant evidence — evidence having any tendency to make the existence of any fact that is of consequence to the determination of the outcome more or less probable — is admissible unless provided otherwise. La.C.E. art. 403 allows the trial judge to exclude relevant evidence if, among other things, "its probative value is substantially outweighed by the danger of unfair prejudice...." Article 403, thus, operates in the context of character and propensity evidence. Although such evidence is quite likely to be relevant, its use is carefully limited because of a substantial danger of unfair prejudice. See State v. Kahey, 436 So.2d 475, 487 (La. 1983) ("Generally, evidence of other acts of misconduct is not admissible. The introduction of such evidence merely to prove that the defendant is a `bad man' involves constitutional problems because of the danger that a defendant may be tried for a charge of which he has no notice, for which he is unprepared, and which unfairly prejudices him in the eyes of the jury.").
A trial court's ruling on the admissibility of the additional other crimes evidence will not be disturbed absent an abuse of discretion. See State v. Henderson, 12-2422 pp. 3-4 (La. 1/4/13), 107 So.3d 566, 568; State v. Gordon, 13-0495 p. 23 (La.App. 4 Cir. 7/16/14), 146 So.3d 758, 772.
Next, defendant claims, "Mr. Reed's past drug activity impacted the applicability of La. Rev. Stat. 14:20 to this case." In particular, defendant argues the State failed to present evidence that defendant "was engaged in unlawful conduct" when the shooting occurred. Accordingly, defendant maintains the State failed to disprove the defense's theory of justifiable homicide. However, with respect to Prieur, the State was not required to disprove the defendant's theory of self-defense but was required to prove defendant was a known marijuana dealer in the neighborhood. Based on Bridgette Garland's testimony concerning the telephone call she heard directing the person on the other end to come pick up a "package" which Bridgette understood to mean "marijuana," the State argued that the promise of marijuana is what brought Jarquis back to the Jackson residence. Thus, it was an issue of fact as to whether or not defendant was engaged in drug activity, or at least the pretense of drug activity, at the time of the homicides. Even assuming defendant was not engaged in drug activity at the time the homicides occurred, evidence establishing defendant's acquaintance with the victim because of his drug sales in the community was admissible to prove motive, opportunity, intent, knowledge, and absence of mistake.
Finally, defendant argues the probative value of this evidence was substantially outweighed by the risk of unfair prejudice to the defendant, in violation of La.C.E. art. 403. He explains jurors "were inundated with testimony about how often Mr. Reed sold marijuana, how much, and to whom," and argues the State "capitalized upon the prejudicial qualities of this evidence in closing statements, referring to Mr. Reed as a `drug dealer' who `makes his living selling marijuana.'" In the instant case, it is apparent the evidence of Jarquis' acquaintance with defendant, due to previous drug transactions that occurred at defendant's residence, was offered to establish defendant had the intent and motive to commit the instant homicides. It was not offered to show defendant had a bad character. Specifically, the State presented evidence at trial that defendant's residence was burglarized the same day the homicides occurred, and marijuana was stolen. Further testimony revealed defendant was successful in identifying the burglar and, according to Bridgette Garland, subsequently expressed his intent to kill that person upon arrival at his residence. Notably, the defense presented the testimony of Kyle King at trial who admitted to burglarizing defendant's home along with victim Jarquis Adams on the day the homicides occurred. Based upon these circumstances, it does not appear the trial
These assignments of error fail.
Defendant maintains that the trial court erred in allowing evidence of defendant's prior conviction through the testimony of an arresting officer and evidence of defendant's unadjudicated and non-violent attempt to bring contraband into the Caddo Parish Correctional Center.
On May 17, 2011, the State filed a "Notice of Intent to Use Other Crimes Evidence at Sentencing Hearing," in which it sought to introduce evidence of defendant's 2007 prior felony conviction for illegal use of a weapon. At a hearing held on June 13, 2012, the trial court heard Detective Rod Demery's testimony concerning the investigation of the crime, defendant's subsequent confession, and police officer Owen McDonnell's testimony as to fingerprint identification. In its ruling, the trial court found the "evidence meets all the criteria of the Supreme Court Jackson case in all respects. Accordingly, this evidence is admissible at the sentencing hearing of the district attorney's case in chief." The defense counsel noted his objection for the record.
On September 4, 2013, the State filed a "Supplemental Notice of Intent to Use Other Crimes Evidence at Sentencing Hearing," in which it sought to introduce evidence defendant made phone calls to family members while housed at the Caddo Correctional Center in an effort to introduce contraband into the jail. Before the penalty phase of trial, the trial court ruled that
La.C.Cr.P. art. 905.2 provides, "The sentencing hearing shall focus on the circumstances of the offense, the character and propensities of the offender, and the victim, and the impact that the crime has had on the victim, family members, friends, and associates." It is well-settled the State is entitled to introduce evidence of a capital defendant's unrelated convictions
As to the admission in penalty phase hearings of unrelated and unadjudicated crimes evidence to prove the defendant's character and propensities, in State v. Brooks, 541 So.2d 801 (La. 1989), this Court approved the State's introduction in its case-in-chief in the penalty phase of two unrelated and unadjudicated murders once the trial judge determined that: (1) the evidence of the defendant's commission of the unrelated criminal conduct is clear and convincing; (2) the proffered evidence is otherwise competent and reliable; and (3) the unrelated conduct has relevance and substantial probative value as to the defendant's character and propensities. Brooks, 541 So.2d at 814. In State v. Jackson, the Court granted pre-trial writs to establish limitations on admissibility of unrelated and unadjudicated criminal conduct in capital sentencing hearings. Jackson incorporated the three-pronged test from Brooks. Jackson, 608 So.2d at 955. Jackson also added the additional limitation that the evidence of the unadjudicated criminal conduct must involve
Comeaux, 93-2729, p. 11, 699 So.2d at 22 (emphasis added).
Defense counsel did not object to the State's use of Detective Demery, who was neither a victim nor an eyewitness of this
As to the introduction of evidence concerning the unadjudicated conspiracy to bring unknown contraband into a penal institution, the State presented the testimony of Detective Terry Richardson, who testified concerning his investigation into defendant's participation in a scheme to bring contraband into Caddo Correctional Center. Although defense counsel urged several arguments for the exclusion of evidence concerning this unadjudicated act, defense counsel never argued Jackson required its exclusion because this conduct involved a
In sum, after a thorough review of the record, we do not find the trial court's admission of Detective Demery's testimony concerning defendant's prior conviction for illegal use of a weapon and of Detective
Defendant argues the trial court erroneously denied a mistrial after the trial judge began openly crying during the victim impact testimony of Clara Morgan, the great aunt of the victims. Defendant claims the "court's actions constituted a non-verbal comment on the evidence, rendering Mr. Reed's death sentence unreliable."
During the penalty phase of the trial, the State presented the victim impact testimony of the victims' great aunt, Clara Morgan. At the conclusion of her testimony, the defense noted the trial judge's emotional reaction for the record, and the trial transcript reads in pertinent part:
Significantly, prior to penalty phase closing arguments, the trial judge asked both the State and the defense "if either side believes an additional instruction is necessary concerning the emotions that took place yesterday." Both parties declined her offer to provide the jury with an additional instruction.
The defense raised this issue again in its omnibus motion for new trial. The trial court denied relief on the issue, noting "although the Court was emotional during the victim impact testimony presented by the State[,] the Court, defense counsel and the defendant were also very emotional when the defendant's victim testimony was presented."
As a general matter, mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant. La.C.Cr.P. art. 775; Smith, 430 So.2d at 44; State v. Wilkerson, 403 So.2d 652, 659 (La. 1982) (mere possibility of prejudice is not enough to warrant mistrial). In addition, a trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. Sanders, 93-0001, pp. 20-21, 648 So.2d at 1288-89; State v. Wingo, 457 So.2d 1159, 1166 (La. 1984).
La.C.Cr.P. art. 772 prohibits comments on the evidence by the judge whether "recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted." See State v. Williams, 375 So.2d 1379, 1381 (La. 1979) (reversible error if judge makes any comment expressing or implying his or her opinion with regard to a material issue); State v. Hodgeson, 305 So.2d 421, 430 (La. 1974) (purpose of Art. 772 "is to insure that the jury is in fact the judge of the law and the facts on the question of guilt or innocence...."). The prohibition extends to indirect, non-verbal conduct. State v. Wright, 445 So.2d 1198, 1200 (La. 1984). Although La.C.Cr.P. art. 772 precludes the judge from commenting in the presence of the jury upon the facts of the case, to constitute reversible error, improper comments must have influenced the jury and contributed to the verdict. State v. Johnson, 438 So.2d 1091, 1102 (La. 1983); State v. Gallow, 338 So.2d 920, 922 (La. 1976). Moreover, a trial judge's remarks constitute harmless error if those remarks do not imply an opinion as to the defendant's guilt or innocence. State v. Joseph, 437 So.2d 280, 282 (La. 1983). Further, courts have traditionally upheld denials of motions for mistral based on emotional outbursts when a defendant fails to show their
Here, the record reveals that, out of the presence of the jury, the trial judge admitted she was "visibly moved" by the testimony. However, she acknowledged she kept her head down and her emotions "weren't different than many other people in the courtroom or the jury." It appears the trial court did not abuse its discretion when it found the emotional display did not impact the jury and did not constitute a comment on the evidence. Notably, at the conclusion of the family testimony presented by the defense in the penalty phase, out of the presence of the jury, the trial judge stated for the record that "both Mr. Florence and Mr. Goorley were emotional during that and their human feelings showed just like mine."
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 is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. La.S.Ct. Rule 28, § 1. In the present case, Rule 28 review demonstrates defendant's death sentence is not excessive.
The Uniform Capital Sentence Report reveals defendant is a black male born on April 4, 1977. He was 33 years of age at the time of the offense and is now 39 years of age. He is divorced and has two children, who were 15 years of age and 10 years of age in 2014 when the Uniform Capital Sentence Report was completed. In terms of education, defendant has completed the 11th grade. His employment history includes Libbey Glass, Albertson's, and Building Supply. He also previously worked for the Shreveport Housing Authority, where he was an inspector. His most recent employment was in 2008 at Wal-Mart in the produce department. Immediately prior to incarceration, he applied for disability because of an injury to his arm he allegedly received as a child. Specifically, he reported he was unable to straighten one of his arms and the condition
As discussed below, the record reveals no indicia of passion, prejudice, or arbitrariness.
First, defendant argues that race plays a "deleterious role in the administration of capital punishment in Caddo Parish" and in the determination of whether any given homicide was committed in self-defense. However, it appears defendant did not present this claim to the District Court where the necessary factual development could occur. The claim rests on speculation, unsupported allegations, and the fact that during the five year period in which defendant was prosecuted, Caddo Parish was responsible for 40 percent of death sentences in the state. Notably, in the instant case, defendant and the victims were African Americans as were four members of the jury.
Second, defendant argues the prosecutor's impermissible references to religion in penalty phase closing arguments introduced passion and prejudice in the present case. As an initial matter, it does not appear defendant presented this claim in the District Court by contemporaneous objection. La.C.Cr.P. art. 841; Wessinger, 98-1234, pp. 19-20, 736 So.2d at 180-81 (reviving the contemporaneous objection rule for the penalty phase as well as guilt phase of a capital trial). Nevertheless, as discussed above, we find this claim to be meritless. Pursuant to La. C.Cr.P. art. 774, arguments by counsel may not appeal to prejudice and must be limited to the evidence admitted, the lack of evidence, conclusions of fact drawn from the evidence by the state or defense, and the applicable law. Art. 774 is applicable to capital sentencing procedure by virtue of La.C.Cr.P. art. 905.2 which adopts, insofar as they are applicable, the general provisions of the Code of Criminal Procedure as the procedure to be followed during the sentencing phase of the bifurcated trial. However, while this court may look to Art. 774 to determine if argument was improper, in reviewing whether it is reversible error, it must determine whether the argument introduced passion, prejudice or any other arbitrary factor into the proceedings which contributed to the jury's recommendation of the death penalty. State v. Lindsey, 404 So.2d 466, 483 (La. 1981). Furthermore, although courts have denounced references to religion, most have not held that such references warrant a reversal of the sentence. See e.g., United States v. Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st Cir.1995) ("[A] reference to religion does not necessarily require reversal.").
As detailed more fully in our discussion of Assignments of Error 19 through 21, a review of the record reveals the prosecutor only referenced religion on rebuttal in response to defense counsel's references to the New Testament in his closing argument. In addition, the references in the instant case did not recommend that the jury rely on "religion" in making their decision. On the contrary, prosecutor directly requested the jury leave religion out of their decision making process:
Cf. Jones v. Kemp, 706 F.Supp. 1534, 1558-60 (N.D.Ga.1989) (death sentence set aside where capital sentencing jury allowed to consider Bible). Consequently, it cannot be concluded the prosecutor's comments introduced passion, prejudice or any other arbitrary factor into the proceedings.
The record does not reveal any potential indicia of passion, prejudice, or arbitrariness. Defendant, a 33-year-old black male, killed three unarmed individuals, including a 13-year-old boy, immediately upon their arrival to his home, and received a sentence of death from a unanimous jury consisting of two black females, two white females, two black males, and six white males, during the selection of which no Batson challenge was asserted.
As demonstrated by the jury's verdict during the guilt phase of the trial, the State presented constitutionally sufficient evidence to prove beyond a reasonable doubt that defendant killed each of the three victims when he had the specific intent to kill or to inflict great bodily harm upon more than one person, and that his actions were not justifiable in self-defense. La.C.Cr.P. art. 905.4(A)(4); see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) As discussed above, the record amply supports this determination. The State's evidence of defendant's motive and premeditation in the killings, his continuous firing of the semi-automatic rifle inside of the victims' vehicle, and his subsequent actions taken to distance himself from the shooting, overwhelmingly proved defendant had the specific intent to kill Jarquis Adams, and his two brothers, Jeremiah Adams and Gene Adams, when he acted with the specific intent to kill or inflict great bodily harm on more than one person. Hence, the jury's sentencing decision in this case does not appear to be arbitrary or capricious. See State v. Roy, 681 So.2d 1230, 1242 (La.1996). Consequently, defendant's sentence of death is firmly grounded upon the jury's finding beyond a reasonable doubt that defendant, as he committed each of these murders, did so while he "knowingly created a risk of death or great bodily harm to more than one person." La.C.Cr.P. art. 905.4(A)(4).
The federal Constitution does not require a proportionality review. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 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, 710 (La. 1990); State v. Wille, 559 So.2d 1321, 1341 (La. 1990).
According to the State, since 1976, 48 persons — excluding defendant — have been indicted for first-degree murder in Caddo Parish, of which 20 have been found to deserve a sentence of death by a jury. Of death sentences not reversed, eight involved intent to kill more than one person.
A review of the capital verdicts from Caddo Parish does not suggest that Marcus Donte Reed received a disproportionately harsh sentence. As noted above, eight cases resulted in a death sentence when the defendant had the intent to kill more than one person. See State v. Tucker, 13-1631 (La. 9/1/15), 181 So.3d 590 (defendant
Here, it is appropriate for the Court to look beyond the First Judicial District Court and conduct a statewide proportionality review. Cf. State v. Davis, 92-1623, pp. 34-35 (La. 5/23/94), 637 So.2d 1012, 1030-31. Louisiana juries have not hesitated in imposing the death penalty in a variety of cases involving multiple deaths or when a defendant risks death or great harm to more than one person. See State v. Scott, 04-1312 (La. 1/19/06), 921 So.2d 904 (two female bank tellers shot during bank robbery; first-degree murder convictions affirmed, case remanded for hearing under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)); State v. Brown, 03-0897 (La. 4/12/05), 907 So.2d 1 (couple kidnapped from their home, both shot and then found burned in their torched vehicle); State v. Wessinger, 98-1234 (La. 5/28/99), 736 So.2d 162 (ex-employee returned to restaurant, shot three employees and killed two); State v. Robertson, 97-0177 (La.3/4/98), 712 So.2d 8 (couple stabbed to death in their home during an aggravated burglary); State v. Baldwin, 96-1660 (La. 12/12/97), 705 So.2d 1076 (defendant shot and killed his estranged wife and the three men who were with her at the time); State v. Tart, 93-0772 (La. 2/9/96), 672 So.2d 116 (defendant killed an elderly couple with a hunting knife during the commission of an aggravated burglary and armed robbery or simple robbery of the couple's jewelry store); State v. Taylor, 93-2201 (La. 2/28/96), 669 So.2d 364 (ex-employee returned to restaurant, killed one employee, and attempted to kill another); State v. Sanders, 93-0001 (La. 11/30/94), 648 So.2d 1272 (husband killed estranged wife and new boyfriend); State v. Deboue, 552 So.2d 355 (La. 1989) (defendant killed two children in an apartment he and his brother intended to burglarize).
Because this Court has overwhelmingly upheld death sentences in such cases and due to the horrific nature of defendant's
For the reasons assigned herein, the defendant's conviction and death sentence are affirmed. 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 court 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. Rev. Stat. 15:567(B), immediately notify the Louisiana Indigent Defense Assistance 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. Rev. Stat. 15:178; and (2) to litigate expeditiously the claims raised in that application, if filed in the state courts.
Hughes, J., concurs in the result.
