State of Louisiana v. Marcus Donte Reed , 200 So. 3d 291 ( 2016 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #045
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 7th day of September, 2016, are as follows:
BY KNOLL, J.:
2014-KA-1980 STATE OF LOUISIANA v. MARCUS DONTE REED (Parish of Caddo)
Retired Judge Michael Kirby sitting ad hoc for Crichton, J.,
recused.
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.
AFFIRMED.
HUGHES, J., concurs with the result.
09/07/16
SUPREME COURT OF LOUISIANA
No. 2014-KA-1980
STATE OF LOUISIANA
VERSUS
MARCUS DONTE REED
ON APPEAL
FROM THE FIRST JUDICIAL DISTRICT COURT,
FOR THE PARISH OF CADDO
KNOLL, J. 1
This case is a direct criminal capital appeal of defendant’s conviction and
death sentence for the horrific murders of three unarmed young brothers. On
November 10, 2010, a Caddo Parish grand jury returned a three count indictment
against defendant, Marcus Donte Reed, charging him with the August 16, 2010
first-degree murders of Jeremiah Adams, Jarquis Adams, and Gene Adams in
violation of La. Rev. Stat. 14:30. Following five days of jury selection, defendant’s
guilt phase jury trial commenced on September 28, 2013. At the conclusion of the
guilt phase on October 1, 2013, the jury returned a verdict of guilty as charged on
all three counts. Following the penalty phase trial, the jury unanimously returned a
verdict of death, finding the defendant knowingly created a risk of death or great
bodily harm to more than one person. The trial court sentenced defendant to death
in accordance with the jury verdict and denied defendant’s motion for new trial on
January 21, 2014.
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
1
Retired Judge Michael Kirby sitting ad hoc for Crichton, J., recused.
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.
FACTS
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
2
reported homicide of four individuals at a residence in a rural, heavily wooded
area of southwest Caddo Parish, outside Shreveport, Louisiana. There, officers
discovered the bullet-riddled bodies of Jeremiah and his younger brothers, Jarquis,
who was 18 years of age, and Gene, who had just turned 13 years of age about a
month before. Their bodies were found lying in Jeremiah’s silver Chevrolet Malibu
parked in the front yard of the home where defendant was residing. The windows
were completely shot out. Soon thereafter officers discovered a semi-automatic
rifle hidden under the front porch of the residence. 2
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. Shortly after 10 p.m., James drove up to his driveway while he
was talking on his mobile phone. After exiting his vehicle, he noticed his
daughter’s boyfriend, Daniel Jackson, running up to the back of his van, “scared to
death and crying.” According to James, Daniel “had blood on his hands and a little
bit of blood on his clothing.” After asking Daniel some questions, James took
Daniel inside and locked him in the bathroom of the home so that Daniel could
clean himself and could hide. James then returned outside with his gun and called
9-1-1. The 9-1-1 calls, which were admitted into evidence at the guilt phase, reflect
James notified the authorities that Daniel had told him the defendant, Marcus
Reed, had killed four people, had “tried to make [Daniel] help him get them in the
car,” and had threatened to kill Daniel.
Upon their arrival, officers questioned James and then went to the residence
across the street from James’ home. The scene the officers observed was
2
The report prepared by Carla White, who was accepted at trial as an expert in firearm
identification, identifies this weapon as the “7.62X39mm Norinco rifle. model SKS. serial
number 25024161.”
3
terrifically gruesome. Officer Matthew Cowden testified that he received the
dispatch at 10:28 p.m. and that he was one of the first officers to arrive at the crime
scene. Immediately, he noticed a black male hanging partially out of the driver’s
side rear door of a silver Chevrolet Malibu. He and two other officers held cover
on the house until other responding units arrived. Detective Keith Fox, who led the
investigation for the Caddo Parish Sheriff’s Office, testified that a stream of
gasoline and blood was flowing from the saturated ground around the vehicle
down the driveway. Detective Terry Richardson of the Caddo Parish Sheriff’s
Office also testified that, as he walked down the driveway closer to the scene, he
could smell “gasoline, automobile type fluids” and blood, and he observed “a large
amount of blood that was actually running in a stream . . . from the car down the
driveway towards the street.” Detective Richardson recalled that, as he walked
closer, he observed
a gray car with one male partially inside and out of the rear driver’s
door, and his clothes are pulled down as if he had been dragged either
in or out. There’s another smaller male deceased in the back seat that
had very apparent gunshot wounds. By that time the trunk had already
been open to the gray car, and there was a third victim in the trunk.
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,
Detective Richardson testified the officers identified this man hanging out of the
driver’s side rear door as Jeremiah Adams. Detective Richardson testified Gene
Adams was identified as the “smaller male deceased in the back seat.” According
to Detective Richardson, Gene’s body “was still sitting somewhat upright, but he
was slumped over with just a massive wound down the side of his neck and his
face. Also there were fingers that were missing.” Indeed, one of Gene’s fingers
4
was found in the rear dash next to the vehicle’s speakers and behind Gene’s head.
Although Detective Fox described the yard in which the homicides took place as
“very dark” at the time, Detective Richardson explicitly testified the silver
Chevrolet Malibu in which the brothers’ bodies were found was parked near a light
pole which provided enough light to see into the vehicle. Although he could not
give an opinion as to whether he could have seen inside the vehicle through its side
windows as the windows on the four doors “were all shot out,” Detective
Richardson said he could see Gene’s body looking through the vehicle’s
undamaged clear front and rear windows without the aid of additional light.
Detective Richardson testified Jarquis Adams was identified as the third victim
lying face down in the trunk.
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 consistent with a scenario in which Jarquis was
lying on the ground, motionless, while the person stood over him and shot him.
Soot found on Jarquis’ skin indicated to Dr. Traylor that the muzzle of the gun was
within six inches of Jarquis’ head when the bullet was fired. According to Dr.
Traylor, young Gene suffered wounds from as few as two gunshots to as many as
five gunshots. Specifically, Gene received a wound on the left side of his face and
wounds to his chest and to the left side of his neck. Gene also suffered a traumatic
amputation of his right index finger and wounds to his index finger and thumb on
his left hand. Dr. Traylor testified that it is possible Gene received these hand
injuries attempting to shield himself from oncoming bullets.
Dr. Long Jin, who conducted the autopsy of Jeremiah, testified that Jeremiah
5
suffered seven separate gunshot wounds, including: (1) a perforating wound that
entered from the back of Jeremiah’s head behind his left ear and exited the right
temporal bone of his skull, completely destroying his brain; (2) a penetrating
wound to the right neck that entered from the back of Jeremiah’s neck, struck his
right cheekbone, and lodged in the subcutaneous tissue of the right face; (3) a
perforating gunshot wound to the right clavicle that exited the right lateral back;
(4) a graze wound in his right flank; (5) a penetrating wound from a bullet that
entered in Jeremiah’s right lower back and lodged in his right chest wall; (6) a
graze wound in his right mid back; and (7) a graze wound in his right lower back.
Jeremiah also suffered chemical burns from gasoline contact on the back side of
his body, on the posterior aspect of his extremities, and on his left lower leg, which
caused the skin in these areas to “slough off.”
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 intoxicating substances in his system. There was “nothing”
in their blood.
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
6
investigation that there was not a fourth victim. Meanwhile, members of the Caddo
Parish Sherriff’s Office Crime Scene Unit, led by Sergeant Gary Baird,
meticulously collected evidence in and around the property where the killings
occurred, including a semi-automatic rifle hidden beneath the north corner of the
porch of the residence and a tank top with suspected blood on it that was found
inside of an old abandoned school bus parked in the woods on the same side of the
house as the place where officers recovered the rifle. At trial, Audra Williams, who
was accepted as an expert in the field of DNA analysis, explained the results of a
comparison she performed between a known DNA sample from Jeremiah Adams
and samples from blood stained portions of the tank top. After obtaining DNA
profiles from these samples, Ms. Williams testified the DNA profile obtained from
the testing areas on the tank top “was consistent with being a mixture [of DNA
from at least two individuals]; one major contributor and at least one minor
[contributor].” Ms. Williams determined that the probability that the major
contributor of that DNA on the tank top had come from a randomly selected
individual other than Jeremiah Adams was one in 533 quadrillion.
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. 3 The only ballistics evidence officers recovered around the
silver Chevrolet Malibu were several projectiles and shell casings from
ammunition of the type commonly fired from a semi-automatic rifle of the kind
found hidden under the porch of the Jackson residence. Indeed, Carla White, who
3
Several weapons were recovered in the residence and around the property, including a
“handgun revolver” that was found between the mattresses in the room defendant shared with his
girlfriend and handgun found underneath the back seat of a black vehicle, belonging to the
defendant and his girlfriend, that was parked in the driveway. There was no evidence these
firearms were used in the shooting.
7
was accepted as an expert in the field of firearms identification, testified she
positively determined that some of the shell casings and projectiles were fired by
the rifle found hidden under the porch, while other projectiles and shell casings she
tested had the same class characteristics as other ammunition fired by the hidden
semi-automatic rifle. 4 Notably, Ms. White also positively matched two bullets and
one bullet jacket recovered during the victims’ autopsies to this hidden rifle. After
executing a search warrant of the residence, officers found, soaking in the bathtub,
a pair of yellow plaid shorts. Inside the pocket of these yellow plaid shorts, officers
found a latex glove.
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 10:23 p.m. from defendant’s brother, David Reed,
telling him to go pick up the defendant at the home of defendant’s girlfriend,
Loshun Jackson. At trial, Brian testified he picked the defendant up on the corner
near the Jackson residence and recalled seeing police cars toward the house. Brian
testified at trial that when defendant entered his vehicle, defendant told him that
“he’s trying to leave the streets alone and they keep drawing him back in.” Brian
4
According to Ms. White, “When I say same class characteristics it means it has a lot of the
same type of markings, but I cannot say that it is an identification or it is a match back to the gun
. . . . It does not mean that it was fired from this gun and it does not mean that it was not fired
from this gun. So it just means it has the same class characteristics as the barrel of this gun.”
8
also reluctantly admitted telling police, the morning after the homicides, that
defendant “acted like he was excited” when Brian picked him up on the corner
near the crime scene at the Jackson residence that evening. As part of defendant’s
arrest and booking, Detective Richardson secured the personal effects defendant
was wearing on his person at the time of his arrest, including a pair of plaid boxer
shorts with suspected blood stains on them. At trial, DNA analysis expert Audra
Williams testified she performed a comparison between a known DNA sample
from Jeremiah Adams and samples from the blood stained portions of defendant’s
boxer shorts. After obtaining DNA profiles from these samples, Ms. Williams
testified the DNA profile obtained from the testing areas on the boxer shorts “was
consistent with being a mixture of DNA from at least two individuals; one major
and at least one minor contributor.” Ms. Williams determined the probability that
the major contributor of that DNA on defendant’s boxer shorts had come from a
randomly selected individual other than Jeremiah Adams was one in 533
quadrillion.
During the guilt phase, defendant asserted a justifiable homicide defense,
arguing Jarquis had burglarized the Jackson residence earlier in the day and
planned to return that evening to take more things. In support of this theory,
defendant called Kyle King, one of two witnesses presented in defendant’s guilt
phase case-in-chief, who testified he and Jarquis went to the Jackson residence to
buy marijuana from the defendant. After the two arrived, Jarquis exited Kyle’s
vehicle and came back about five minutes later to confer with Kyle. Kyle then
drove his vehicle all the way down the driveway to the house and turned it around
so it was ready “to leave out.” They then entered the house together. While Jarquis
“went into the back part of the house,” Kyle stayed in the living room and seized
two amps and an Xbox 360 game system. Kyle testified that, after he and Jarquis
left the home around 12:00 p.m. or 12:30 p.m., Jarquis told Kyle “he wanted to go
9
back to the house to get some stuff he should have got the first time [they were]
there.” After this incident, Kyle admitted he and Jarquis spent the rest of the
afternoon at his aunt’s house “trying to get rid of the stolen stuff.” When he left his
aunt’s house around 4:30 p.m., it was the last time he saw Jarquis.
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. 5 Daniel Jackson
lived at the Jackson residence with his sister Loshun, the defendant, and Loshun’s
two children. It was Daniel’s frantic report of the killings to James Hendrix that
precipitated the 9-1-1 call that dispatched officers to the Jackson residence. At
trial, Daniel recalled that, when the defendant initially learned about the theft from
his home, defendant and Loshun confronted Daniel and accused Daniel of stealing
the items. Eventually, they accepted that he did not steal the items. When asked
whether defendant made any effort to try to find out who did steal the items,
Daniel responded, “He made some calls to my cousin and my grandma [sic]
house,” though Daniel was not exactly certain to whom defendant spoke or what he
said. Daniel perceived that defendant was angry about the theft “[c]ause he was
pacing around on the phone like – you could just tell he was hot about his stuff
came [sic] up missing.” That evening, Daniel testified, the only individuals who
5
This summation of the facts does not detail the testimony of every one of the State’s witnesses.
Rather, we focus solely on those witnesses whose testimonies we believe were most critical to
the jury’s determination that defendant was guilty of three counts of first-degree murder.
10
remained at the Jackson residence were Loshun, the defendant, Daniel’s friend
Shannon Garland, and Shannon’s wife, Bridgette Garland. Before the shooting, as
it was getting dark, Daniel overheard the defendant call an unknown person and
say, “You need to come home and get your package cause I’m fixing to go.”
According to Daniel, this conversation was heated and, during its course,
defendant asked the unknown person whether “he see anybody over here earlier
that day.” Daniel testified that sometime thereafter he was outside working on the
sound system in his car with Shannon. Loshun and Bridgette left in Shannon’s
truck to go buy some beer and, as they pulled out of the driveway, Shannon
realized he had forgotten to give them money for the beer so he ran down the
driveway and tried to chase the truck. According to Daniel, Shannon had returned
to his side and was helping him with the sound system in his trunk when a gray car
pulled up into the driveway. Although it was dark, Daniel confirmed that the light
pole in the yard provided enough light for him to see. Daniel testified that a man,
who Daniel later learned to be Jarquis, “hopped out” of the front passenger side of
the gray car and said, “Where Marc at?” According to Daniel, defendant said,
“hey,” and then started shooting from the woods with a long rifle at the man.
Daniel identified the semi-automatic rifle officers recovered hidden under the
porch as the firearm defendant used, and he specifically recalled that defendant
was wearing latex gloves—like the one found in the pocket of the yellow plaid
shorts soaking in the Jackson residence bathtub—when he emerged from the
woods shooting. Daniel testified he never saw Jarquis with a weapon, never saw
Jarquis motion toward the defendant like he was going to attack him, and never
saw Jarquis threaten the defendant with words. Although Daniel specifically
remembered defendant shot Jarquis “[t]wice in all,” he could not determine how
many times defendant fired the semi-automatic rifle into the gray vehicle. After the
defendant shot Jarquis the first time,
11
He walked up to the car and, from the passenger – passenger side back
seat, shot into the window; walked around and shot into the other
window. Walked around the car shooting.
(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 laying on his back motionless
and shot Jarquis in the forehead. Thereafter, Daniel testified, defendant “pointed
the gun at me and Shannon and wanted us to put – help him with the persons,
putting them back in the car.” Daniel recalled that defendant declared “[they] better
help him move it or [they] were going to be next.” Although he explicitly denied
helping to move a body into the trunk, Daniel testified that he and Shannon then
helped move the body of “[t]he one that was leaning out the…left side back seat”
of the gray vehicle. (Emphasis added). According to Daniel, Jeremiah’s body was
“so big,” even Daniel, Shannon, and the defendant together were unable to move it
out of the vehicle. Significantly, Dr. Jin, who performed Jeremiah’s autopsy,
corroborated this fact, testifying that Jeremiah was six feet, two inches tall and
weighed 205 pounds at the time of his death. In the process of trying to move
Jeremiah’s body, Daniel testified he got blood on his person, his clothes, and his
shoes.
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
12
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 because, when he did not see Shannon
run away at the same time that he did, he thought the defendant had shot Shannon.
Finally, defense counsel cross-examined Daniel thoroughly on Daniel’s initial
failure to reveal to police that Shannon was present when the homicides occurred.
Daniel admitted that he was untruthful with the officers that night because he was
“scared”: “Three people got killed right in front of me.” Elsewhere in his
testimony, Daniel explained he did not tell officers everything he knew that
evening: “I was scared and I thinking [sic] that [defendant] was going to try to
come and finish me and Shannon.”
The trial testimony of the second eyewitness, Shannon Garland,
corroborated Daniel’s testimony in all significant respects related to defendant’s
actions before, during, and after the shooting. According to Shannon, when
Bridgette and Loshun left together in Shannon’s truck to buy beer, Shannon chased
the truck down the driveway to the road because he had left his can of tobacco in
the truck. When Shannon reached the road, he noticed a car coming. Shannon
testified this car pulled into the driveway, and he began walking up the driveway
behind the vehicle. Shannon recalled that he watched as a man exited the front
passenger side of the vehicle. Shannon testified that this man who did not look
threatening or seem upset “just walked towards me and started talking, wanted to
13
talk to me.” When asked whether he remembered if the man said anything,
Shannon responded, “He never got it out . . . . That’s when Marcus shot him.”
According to Shannon, the defendant emerged from the woods, shot the man, and
said, “I got you.” Shannon identified the semi-automatic rifle officers recovered
hidden under the front porch as the firearm defendant used in the shooting.
Shannon also testified that defendant wore “some plaided, some colorful shorts” at
the time of the shooting. When shown a picture of the yellow plaid shorts officers
found soaking in the bathroom of the Jackson residence with a latex glove in its
pocket, Shannon positively identified those shorts as the ones defendant wore that
night. Shannon recalled, “When [the defendant] shot [the front passenger], [the
front passenger] held his arms out and went to put his arms on my shoulder. And
he wanted to say something, but he couldn’t say nothing. It wouldn’t come out.”
The defendant then “walked around the car shooting the car . . . . kind of like a
video game.” Like Daniel, Shannon testified that defendant “started at the back of
the car and he walked around it clockwise shooting it up.” (Emphasis added.)
Shooting into the windows, defendant fired “[t]oo many [bullets] to count.” After
making his way around the front driver’s side, defendant shot the front passenger,
the initial victim, again while the victim lay on the ground. According to Shannon,
defendant shot the front passenger three times: first, in the back, while Shannon
was standing directly in front of the victim; second, in the chest, while the victim
lay on the ground; and third, in the head, while the victim lay on the ground.
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
14
failing to move Jeremiah’s body which officers found hanging out of the driver’s
side rear door, Shannon remembered complying with defendant’s order that he and
Daniel move the body of the man who was shot first and last—that is, Jarquis’
body—into the trunk, where officers later found it. According to Shannon,
defendant then pulled the driver’s body out of the front driver’s seat and told
Daniel and Shannon to “try to pick him up and put him in the trunk.” Consistent
with the testimony provided by Daniel and by Dr. Jin, Shannon testified that he
and Daniel tried to pick Jeremiah’s body up, but it was too heavy. Shannon
specifically recalled the man’s pants “com[ing] down” as they tried to pull his
body. Significantly, this description of Jeremiah’s body corresponds to the
condition in which officers discovered the body when they arrived at the scene.
Shannon testified that defendant then went up on the steps of the house and that
Daniel, who was “[a]cting scared,” ran away when he saw Marcus ascended the
steps: “He took off running and left me standing there.” When Shannon realized
defendant had gone into the house and left him standing there alone, Shannon
“seen a chance” and ran home. Shannon testified that when he arrived at his home,
he locked himself in his bedroom: “I laid there and cried, scared. Didn’t know
what to say, didn’t know what to do. Didn’t want to talk to nobody.” Although
Shannon acknowledged he initially told police officers there were four to five
individuals in the gray car when it pulled up to the Jackson residence, Shannon
explained,
I was confused at the time. There was a lot going on. I didn’t
remember exactly. I didn’t know everything at the time . . . . I was so
scared. I mean I didn’t know what to say. I was so scared. I mean, I
didn’t know everything at the time.
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
15
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
see any of the events as they transpired. Clarence Powell, Loshun Jackson’s
cousin, testified that, on the evening of the homicides, he was visiting his parents’
home, located about 20 yards from the Jackson residence. Clarence testified he was
moving back and forth between his parents’ porch and the kitchen of their home
when he heard a confrontation and then, within a minute or two later, gunshots
from two different guns, first from a handgun and then from a rifle. Because
Clarence was reluctant to use profanity in front of the jury, defense counsel,
Richard Goorley, read to the jury the statement Clarence made to officers the day
after the shooting about the confrontation he allegedly heard:
Q. Talking about the car drove up.
A. Uh-huh.
Q. And you said, I heard him say – that’s Marcus, right –
A. Yes.
Q. – I told you don’t come down here. Don’t fuck with me. Don’t
fuck with me. And then somebody else, a voice I don’t recognize,
Motherfucker, I told you, I told you, you ain’t shit. You ain’t shit. And
then I heard a man say, Get the fuck away from here; I’m telling y’all
I’m telling y’all just leave me alone.
That was Marcus, right –
A. Yes.
Q. – said leave me alone. It was the other guy saying, You ain’t shit,
right?
A. Yes.
Q. Mr. Reed turned to walk off. The guy says, Don’t turn your back
on me, you bitch ass nigger. Marcus says, Man, I told you don’t come
16
to my house. Don’t come to my house. I beg don’t come to my house.
And then later you said, Mr. Reed said I told y’all, I’m telling
y’all. And the guy, Don’t turn your back on me here, you punk ass
nigger, you punk ass nigger.
That was the other person talking to Mr. Reed, right?
A. Right.
Q. Don’t turn your back on me.
A. Yes.
Q. Then you heard someone say gun?
A. Yes.
Q. And then you heard two pistol shots and a bunch of rifle shots?
A. I don’t know how many pistol shots. I just heard a pistol and a
rifle.
Although Clarence insisted he heard the reports of two different types of firearms,
officers found no evidence—no spent shell casings from a semiautomatic handgun,
no weapons in the Adams brothers’ vehicle, no revolver to which someone in the
gray vehicle may have had access—that any firearm other than the semi-automatic
rifle identified by Shannon and Daniel and hidden under the front porch of the
Jackson residence was used in the shooting. Aside from the absence of physical
evidence to support Clarence’s version of events, the jury had other reasons to
doubt Clarence’s credibility. Indeed, concerning the confrontation Clarence
allegedly heard, the State impeached Clarence with a later statement Clarence gave
to police officers. Officers asked Clarence, “Do you hear any yelling, screaming,
or just nothing but the sound of gunshots?” Clarence responded, “[A]ll I heard
before the gunshots, people talking.” Moreover, although Clarence testified at trial
that defendant was “[n]owhere near” the abandoned school bus in the woods in
which officers later found the tank top stained with Jeremiah’s blood, the State
impeached Clarence with his prior statement to officers that defendant “came out
17
of the woods by the bus” wearing “bright yellow” shorts. The State also elicited
testimony from Clarence that he worked out of state, that his mother still lived next
door to the Jackson residence, and that he worried about her safety and the safety
of his brother and his sister.
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 defendant brought out white
latex gloves from the house and that she watched defendant put these gloves on his
hands. Bridgette further confirmed the glove found in the pocket of the yellow
plaid shorts soaking in the bathroom of the Jackson residence was the same type of
glove she saw defendant wearing that evening. After putting the gloves on his
hands, defendant “walked around in the yard” and then later “hid in the woods”
with the gun. Bridgette described defendant’s demeanor at this point as “angry.”
18
Shortly thereafter, Bridgette left the house—on the pretext of purchasing more beer
with defendant’s girlfriend, Loshun—because she was “scared” of the defendant:
“His anger, he was hostile, and he was talking about killing people, so I wanted to
get out of there.” By the time Loshun and Bridgette left the Jackson residence,
defendant had come out of the woods but he no longer had the rifle with him.
Bridgette testified that, after purchasing beer, her truck ran out of gas on the way
back to the Jackson residence, and she and Loshun started walking on foot back
toward the house. Bridgette recalled that, during this trek, she received a call on
her cell phone from defendant who asked to speak to Loshun. Because her phone
would only work on speaker phone at the time, Bridgette clearly overheard
defendant tell Loshun that “he needed help getting all the bodies out of his yard.”
Like Daniel and Shannon, after a vigorous cross-examination by defense counsel,
Bridgette admitted that initially she was not completely truthful in her statements
to officers or in her grand jury testimony because she was afraid for her life.
Bridgette further testified defendant’s brother, David Reed, called about a week
after the shooting, threatening he would “blow up [hers and Shannon’s] house” if
she and Shannon testified against the defendant. Significantly, Bridgette’s
statement received independent corroboration through the guilt phase testimony of
Corporal Dexter White. Indeed, during Bridgette’s testimony, she related that,
while she and Loshun walked home, a police officer saw them, stopped his vehicle,
and offered them a ride home. The women accepted his offer and directed him to
take them to Bridgette’s house. The deputy told them he could not take them all the
way to their destination because “an incident happened and he had to get to it
immediately.” Bridgette testified he dropped them off at “Pecan Road.” According
to Bridgette, while she and Loshun were in the police vehicle, she heard over the
police radio that there had been a shooting in the vicinity of the Jackson residence.
At trial, Corporal White testified, that just prior to his arrival at the crime scene, he
19
observed two women as they walked down the road. The women explained to him
that their truck had broken down, and he dropped them off at “Pecan Farms”
before he proceeded to the crime scene.
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 carefully examined
all of defendant’s assignments of error and find them meritless.
ASSIGNMENTS OF ERROR
Sufficiency of the Evidence
Assignment of Error 36
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
20
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). 6 However, an
aggressor may not claim self-defense without showing he first withdrew from the
conflict in good faith and in such a manner that his adversary knew or should have
6
Because defendant only requested jury instructions under La. Rev. Stat. 14:20(A)(1), we do not
address La. Rev. Stat. 14:20(A)(2) and (3) (the “stand your ground” defenses).
21
known of his intention to withdraw and discontinue the conflict. See La. Rev. Stat.
14:21.
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 not carrying a weapon and who did not threaten or attack the defendant.
Indeed, based on the eyewitness testimony, at most, Jarquis was able to inquire,
“Where Marc at?” before the defendant began shooting at him. Both Daniel and
Shannon testified defendant then proceeded clockwise around the vehicle, shooting
out the windows in the process, as he savagely and without provocation killed 13-
year-old Gene and oldest brother Jeremiah before completing his circuit by again
shooting a motionless Jarquis in the head as he lay on the ground. Daniel’s
testimony that defendant was wearing latex gloves while he shot the three
victims—corroborated by Bridgette Garland’s testimony that she saw defendant
put on latex gloves before walking off into the woods with the semi-automatic rifle
he used to kill the brothers and by the officers’ recovery of a latex glove inside the
pocket of the shorts multiple witnesses testified the defendant was wearing at the
time of the homicides, found soaking in a bathtub in the residence where defendant
lived—leads to the inevitable conclusion that defendant’s decision to kill Jarquis
Adams and “whoever was with [him]” was premeditated and cold-blooded.
Daniel’s and Bridgette’s testimony that defendant made phone calls during that
afternoon in an attempt to identify the perpetrator of the burglary and Bridgette’s
testimony defendant ended a phone call directing a person to come over to pick up
a “package” and then expressed to Bridgette his desire to “kill them and whoever
was with them” further buttress this conclusion, as does the evidence the State
22
presented that defendant tried to conceal the murder weapon, hide the victims’
bodies, and destroy additional evidence by washing his clothing before ultimately
fleeing the bloodied killing scene.
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 handgun followed by
several rifle gunshots, no evidence was ever found to support the theory that
someone in the Adams brothers’ vehicle fired a handgun at defendant that
evening. Eyewitnesses denied seeing any weapons other than the semi-automatic
rifle wielded by the defendant, and crime scene investigators did not find any
handgun or handgun ammunition in or around the brothers’ vehicle. Even
excluding the ample testimony of fact witnesses, we find the autopsy results—
including (1) Dr. Traylor’s testimony concerning the defensive wounds to Gene’s
hands and the pathology of the wound to Jarquis’ forehead which was consistent
with the eyewitness testimony that defendant shot Jarquis in the head at close range
as he lay on the ground motionless after already having been shot in the chest and
(2) Dr. Jin’s testimony that three of Jeremiah’s wounds entered through the back of
his body—preclude any reasonable inference defendant acted in self-defense when
he killed the Adams brothers. Based upon the copious testimony and evidence
presented by the State, a rational trier of fact could have soundly concluded that
defendant did not have a reasonable fear for his life. This claim is meritless.
Assignment of Error 37
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
23
Shannon Garland, the evidence presented at trial made out a case for manslaughter,
not murder. We disagree. Under La. Rev. Stat. 14:31(A)(1), manslaughter is a
homicide which would either be first or second degree murder but the offense is
committed in sudden passion or heat of blood immediately caused by provocation
sufficient to deprive an average person of his cool reflection and self-control. The
elements of “sudden passion” and “heat of blood” are mitigating factors in the
nature of a defense and, when such factors are established by a preponderance of
the evidence, a verdict for murder is inappropriate. La. Rev. Stat. 14:31(A)(1);
State v. Lombard, 486 So. 2d 106, 110-11 (La. 1986); State v. Tompkins, 403 So. 2d
644, 648 (La. 1981). Provocation and time for cooling off are questions for the jury
to be determined under the standard of the average or ordinary person, one with
ordinary self-control. See Reporter’s Comment to La. Rev. Stat. 14:31; State v.
Walker, 50 La. Ann. 420, 422, 23 So. 967 (1898).
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 semi-
automatic 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 heard could have suggested some kind
of confrontation occurred prior to the shooting, the jury evidently chose to credit
the eyewitness testimony of Daniel Jackson and Shannon Garland who testified,
24
consistent with the physical evidence, that the victims were unarmed and that they
did not exhibit any provocative or aggressive action toward defendant. A rational
trier of fact could have soundly concluded defendant failed to establish the
requisite mitigating factors by a preponderance of the evidence to prove
manslaughter. This claim fails.
Assignment of Error 38
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 he and Daniel were situated at the time
of the shooting. Likewise, Daniel provides a different account as to where
precisely he and Shannon stood at the time of the homicides. Significantly,
however, both men provide substantially the same account of defendant’s actions
at the time of the homicides. Indeed, both men recall defendant emerging from the
darkness of the woods and shooting an unarmed, unthreatening Jarquis. Both men
testified defendant then walked clockwise around the vehicle beginning with the
back passenger side, shooting out the windows and killing the other two brothers in
the vehicle. Consistent with the autopsy results, both witnesses reported that
defendant shot a motionless Jarquis in the head as he lay on the ground, after
defendant had already shot him in the chest. Given how quickly the shootings
occurred and how intensely violent they were, it is of little surprise and of less
significance that Daniel and Shannon had difficulty remembering the precise
vantage point from which they witnessed this sudden, violent, and unprovoked
carnage.
Defendant also argues Shannon’s testimony could not be credited because
25
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 inconsistences 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 inconsistences did little to discredit their testimony at trial
about defendant’s motive, preparation, and execution of these three killings. When
26
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 evidence and, indeed, were amply supported by the evidence, we find no
error in the jury’s decision to credit the testimony of these witnesses.
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
27
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
28
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.
Jury Instructions
Assignments of Error 8 through 11
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 the following instructions on
justifiable homicide and retreat in pertinent part:
A homicide is justifiable if 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.
The danger need not have been real, as long as the defendant
reasonably believed that he was in actual danger.
There are several factors that you should consider in determining
whether Mr. Reed had a reasonable belief that the killing was
necessary to save himself from that danger:
(1) the possibility of avoiding the necessity of taking human life by
making a safe retreat, provided however, that a person who is not
engaged in any unlawful activity and is in a place where he has a
right to be has no duty to retreat before using deadly force to save
himself from the danger of losing his life or receiving great bodily
harm. He may stand his ground and meet force with force . . . .
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),
29
(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).
Assignment of Error 12
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
30
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).
Here, despite appellate counsel’s claim to the contrary, a review of the
record does not reveal trial counsel rendered constitutionally deficient assistance.
Defense counsel arguably made a professional error by failing to request
instructions under La. Rev. Stat. 14:20 (A)(2), (A)(3), and (D), as the defense
theorized at trial that Jarquis Adams returned to defendant’s residence with the
intent to further burglarize defendant’s home and that defendant had a reasonable
belief the use of deadly force was necessary to prevent a violent or forcible felony.
Even assuming error on the part of trial counsel, given the evidence presented by
the State thoroughly and overwhelmingly discredited defendant’s self-defense
theory, defendant fails to show any resulting prejudice from trial counsel’s failure
to request the jury instructions at issue. Thus, counsel’s errors in failing to request
additional jury instructions on justifiable homicide and in requesting an instruction
concerning the possibility of retreat do not undermine confidence in the verdict
returned by the jury. Thus, it cannot be said defendant’s conviction and death
sentence resulted from a breakdown in the adversarial process that renders the
result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Accordingly, this
claim fails.
Prosecutorial Misconduct
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.
Assignments of Error 19 through 21
Three of the five assignments of error concerning this asserted prosecutorial
misconduct involve statements prosecutors made during the guilt and the penalty
31
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 thoroughly
convinced the argument influenced the jury and contributed to the verdict, “as
much credit should be accorded the good sense and fairmindedness of jurors who
have seen the evidence and heard the arguments, and have been instructed
repeatedly by the trial judge that arguments of counsel are not evidence.” State v.
Martin, 93-0285, p. 18 (La. 10/17/94), 645 So. 2d 190, 200; see State v. Jarman,
445 So. 2d 1184, 1188 (La. 1984); State v. Dupre, 408 So. 2d 1229, 1234 (La.
1982).
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:
So let’s take a deep breath and really analyze the law here,
because unlike Mr. Goorley, I don’t think of you as killers and I don’t
think of the law as vengeful . . . .
So now that you have found this defendant guilty of [first-
degree] murder under one of those circumstances, you are legally,
legally, entitled to consider both punishments. It is only a fanatical
abuse of that analysis that would lead Mr. Goorley to call you killers
because you followed the law.
32
....
And Mr. Goorley argues to you that if you don’t have mercy for
Mr. Reed, you’re a killer, you’re a vengeful killer. Because he used
the word vengeance at least five times in his closing remarks in
attributing to you that emotion if you had the temerity to simply
follow the law.
Besides being obscene, those remarks are deeply insulting to
you as citizens, tax paying, hard working citizens who did not choose
to be here, who would rather be anywhere but here. But Mr. Goorley,
dismissing that as a mere formality, suggests that you are killers and
you have vengeance unless you have mercy for Mr. Reed.
....
Because that’s the argument when you strip the bark off the
tree; well, if you don’t have any mercy for him, there’s nothing I can
do for you, because you’re lost, you’re a vengeful killer. Man, what an
argument.
And then the Bible. You know, what I don’t understand is why
we can’t leave God out of this. I mean, the law does not talk about the
Bible. The law does not talk about God. The law talks about
aggravating circumstances and mitigating circumstances and it talks
about the circumstances of the offense and it talks about the character
and the propensity of the victim and the character and propensity of
the defendant. But nowhere does it talk about the Bible. Nowhere
does it talk about God.
But this is another insidious argument that Mr. Goorley would
make; well, unless you believe in his interpretation of the Bible,
you’re no good. You’re a vengeful killer. You’re not worthy of
consideration. And remember what the man said. And Mr. Goorley
referred to Him as that man. I refer to Him as Jesus Christ, the son of
the living God. But be that as it may. When you do to these the least
of my brethren, you do to me. And he said that.
Does that mean that doesn’t apply to the Adams brothers?
When you slaughter them, didn’t then you slaughter Him?
And it’s so easy to get in to this and that’s why the argument is
so insidious, because Goorley says, This is my view of the Bible and
unless you agree with my view of it, there’s something wrong with
you; you’re not merciful; you’re not Christian; you’re not any good;
you’re a vengeful killer. Well, that’s nonsense.
Because I also remember the same Christ saying, Whoa [sic] to
you who would harm one of these, referring to children. It would be
better that you had never been born. A millstone around your neck
and dropped into the sea.
33
So does that mean my version of the New Testament is better or
worse? No. I think the thing that we can do here best is to leave God
out of it. He didn’t make this happen and He’s not responsible. . . .
Mr. Goorley appeals to your better nature, unlike Ms.
Prudhomme and I who appeal to your baser nature. Geez. Well, where
do I start with that? No, Ms. Prudhomme and I do not appeal to your
baser nature and, no, Mr. Goorley doesn’t really appeal to your higher
nature, because what he’s doing is threatening you. He’s a little
smooth about it –
....
– but what he’s doing is threatening you…
....
And why – and how he’s threatening you is he says unless you
do what I tell you, unless you believe in my New Testament, unless
you show mercy to Reed, then you’re nothing but a killer. Now, you
can call it anything you want, but I call it a threat. And he even said
that would make you part of the killing. Now, if that’s not a threat, I
don’t know what is.
He wants to make you tremble at the thought of doing your
lawful duty. . . .
....
You know, Christ said to Mary Magdalene, when they wanted
to stone her to death for being an adulteress, Does no one condemn
you? Then I don’t condemn you. But the defense argument is I
condemn you unless you do what I tell you to do.
The State – and this is a quote – the State calls for vengeance,
death, death, death, heartless and no mercy. No. No. No. The State
asks you to carefully consider the evidence, to carefully consider the
character and propensities of the defendant and the victims and the
victims’ families, and to carefully consider the impact that the murder
of these boys has had on the victims’ families. That is not heartless. It
is not merciless. It is not vengeful. It is the law. And if Mr. Goorley
thinks that that law is heartless and vengeful and merciless, then he
can go to the legislature and get it changed. That’s how we do things
in this society. We do not do that by threatening honest jurors.
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:
I did find that your statements provoked some of the comments by
Mr. Cox. Threatened is a strong word, but you told the jury – and my
notes reflect – to elect the death penalty would make them part of the
34
killing, and we’ve had enough killing. Do you want to stoop to the
level of being heartless and showing no mercy?
Defense counsel noted his objection for the record. 7
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:
But the State calls for vengeance, vengeance, vengeance; death, death,
death. That’s what they’re saying. I’m calling on what we learned
when we were growing up every Sunday; what you do to the least of
my brethren, you do to me.
That being the case, it does not appear the State’s argument exceeded the proper
scope of rebuttal. See La.C.Cr.P. art. 774 (“The state’s rebuttal shall be confined to
answering the argument of the defendant.”). Even assuming the prosecutor
exceeded the bounds of proper rebuttal argument, the trial court clearly acted
within its discretion when it denied the mistrial motion. See La.C.Cr.P. art. 775;
State v. Sanders, 93-0001, p. 21 (La. 11/30/94), 648 So. 2d 1272, 1288; State v.
Smith, 430 So. 2d 31, 44 (La. 1983) (Mistrial is a drastic remedy generally, and the
determination “of whether prejudice has resulted lies in the sound discretion of the
trial judge.”). This assignment of error lacks merit.
Defendant broadly argues in his twentieth assignment of error that the State
improperly commented on his presentation of mitigating evidence in the penalty
7
Defendant re-urged this claim in his motion for new trial, which the trial court denied ruling
that “Both sides responded to each other’s comments, but I don’t think any of the comments
made justify a motion for new trial.”
35
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
36
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
actions were not justified,” which influenced the jury. Specifically, defendant
argues three instances the State misstated evidence, namely: (1) “Marcus Reed
lured the victims to his house;” (2) “he did not claim self-defense to Clarence
Powell;” and (3) “Mr. Reed poured gasoline on the victims in an attempted arson.”
Because defense counsel did not object to any of these comments during the
State’s opening and/or closing arguments at the guilt and the penalty phases, the
defendant failed to preserve the issues for review. La.C.Cr.P. art. 841; Wessinger,
98-1234, pp. 19-20, 736 So. 2d at 180-81. Even absent the procedural bar, given the
staggering breadth of the evidence presented against defendant, we are not “firmly
convinced that the jury was influenced by the remarks and that they contributed to
the verdict.” State v. Taylor, 93-2201, p. 19 (La. 2/28/96), 669 So. 2d 364, 375.
Thus, we detect no reversible error.
Assignment of Error 22
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
37
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”:
[Y]ou can remind him he’s supposed to tell the truth; you can remind
him if it’s determined that he’s not telling the truth what the
consequences are and that he can be charged with a felony and the
punishment is a sentence of hard labor.
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 improper influence on the witness. See generally State
v. Muse, 363 So. 2d 462, 468-69 (La. 1978) (prosecutor may tell witness outside of
the presence of jury that he will charge witness with perjury if testimony not in
accord with previous statements); State v. Selmon, 343 So. 2d 720, 721 (La. 1977)
(prosecutor may remind witness of consequences of perjury); State v. Spotville,
308 So. 2d 763, 766 (La. 1975) (finding no error where prosecutor read perjury
statute to witness in presence of jury where the witness’ testimony was not in
38
accord with previous statements). Accordingly, the trial court did not abuse its
wide discretion when it denied defense’s motion for a mistrial.
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 State requested a bench warrant
without bond. After a break was taken, Clarence arrived at court. Outside of the
witness’ presence, the State maintained its request for a bench warrant and for
Clarence Powell’s arrest. The court denied the motion. Under La.C.Cr.P. art. 21,
failure to comply with a subpoena is a direct contempt of court. Thus, it does not
appear the prosecutor’s request for a bench warrant due to Clarence’s failure to
appear in court at the instructed time constituted an act of misconduct. Moreover,
the record reflects that Clarence Powell was not present in the courtroom when the
prosecutor requested the bench warrant. Thus, the prosecutor’s statements could
not have influenced the witness’ subsequent testimony.
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:
I think at the very least he needs to be advised of his Miranda rights
before he gives testimony in this court, because I will give notice right
now that if he admits to a crime, I’m going to indict him and he
probably won’t leave this building, because I will secure an arrest
warrant for him.
In response, defense counsel argued:
They’ve already questioned him. Apparently they gave him some sort
of inclination [sic], testimony before in front of the Grand Jury, that
they were not going to [pursue a charge]. Now the only time they’re
going to bring it up is when the defense intends to use it.
39
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. 8 Moreover, because the State withdrew its objection before the
trial court ruled, it is unclear how these arguments outside of the presence of the
jury and the witness prejudiced the defendant. Further, defendant was not deprived
of his right to present a defense as Kyle King waived his Fifth Amendment
privilege and willingly testified to his participation in the burglary of defendant’s
residence. Defendant fails to show the State’s actions constituted prosecutorial
misconduct.
This assignment of error is meritless.
Assignment of Error 23
Finally, defendant complains that the State failed to correct the false or
misleading testimony of two witnesses, Detective Keith Fox and Terry Matthews.
8
Notably, a witness may invoke the Fifth Amendment privilege only when he has reasonable
cause to apprehend danger of self-incrimination from a direct answer. State v. Brown, 514 So. 2d
99, 109 (La. 1987).
40
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
41
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
inside of the vehicle at this point during the investigation. Furthermore, defense
counsel thoroughly cross-examined both eyewitnesses, Daniel Jackson and
Shannon Garland, concerning their prior statements made to police officers about
the number of persons inside of the victims’ vehicle. Thus, the jury was fully
aware of the substance of Daniel’s and Shannon’s initial reports as they related to
the presence of a potential fourth person in the vehicle. This claim is meritless.
Defendant also contends Terry Matthews testified on cross-examination that
he did not speak with anyone about defendant’s case and, in particular, that he did
not speak to his wife about the matter nor did she inform him of any information
she learned from news reports concerning defendant’s case. In support of this
argument that Terry Matthews testified falsely, defendant points to his recorded
interview with Detective Keith Fox from 2011, in which Terry mentions telling his
“wife” about defendant’s admissions to him and explains his “wife” responded,
“yeah, over an X-box or something, they were kids.” Although it does appear
Terry Matthews previously gave an inconsistent statement in reference to whether
he spoke to his previous girlfriend, whom he referred to as his “wife,” about
defendant’s case, defendant fails to show the prosecutor was aware Terry
Matthews’ testimony was false. Cf. State v. Doleman, 02-0957, p. 18 (La. App. 4
42
Cir. 12/4/02), 835 So. 2d 850, 862 (“The mere fact that witnesses testified
differently at different proceedings [separated by six years] does not prove that
they testified falsely. At best, such conflicting testimony indicates that they may
have recalled things differently [with the passage of time]. Furthermore, it cannot
be presumed that [the] prosecutor has knowledge that a witness’s answer is false
simply because the witness may have testified somewhat differently at a prior
proceeding.”). In the instant case, Terry gave his statement to Detective Fox in
2011, and trial did not begin until September 28, 2013. Defendant had a copy of
the recorded interview at trial and had an opportunity to cross-examine this witness
to impeach his credibility. It was up to defense counsel to explore the discrepancies
between Terry Matthews’ recorded interview and his trial testimony. Nevertheless,
given the overwhelming evidence of defendant’s guilt based on eyewitness
testimony and incriminating physical evidence and autopsy results, it does not
appear the discrepancies in Mr. Matthews’ testimony affected the outcome of the
verdict. This claim fails.
Hearsay
Assignments of Error 1 through 4
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
I don’t know what the hell y’all think y’all doing and I’m not the one
to play with; don’t—don’t bring this stuff to my house, don’t bring it
down here; I don’t mess around with nobody . . . . He said I don’t
mess with nobody, I stick to my fucking self . . . .
According to Clarence in his initial statement to police, he overheard defendant
having this telephone conversation about 30 minutes before he heard a
43
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
[Mr. Powell] wasn’t present when the phone call was made; he was at
his house 20 yards away. So – and it’s not reliable, it’s not
trustworthy, and so its hearsay . . . Mr. Powell’s account of it is not
reliable and trustworthy so as to make it an exception to the hearsay
rule, because he was not present. He didn’t witness the declarant’s
demeanor. He didn’t see it happen. So it’s not reliable.
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 inadmissible unless it falls within an exception.
La.C.E. art. 802. La.C.E. art. 801(D)(4) excludes from hearsay things said and
done
under the immediate pressure of the occurrence, through the
instructive, impulsive and spontaneous words and acts of the
participants, and not the words of the participants when narrating the
events, and which are necessary incidents of the criminal act, or
immediate concomitants of it, or form in conjunction with it one
continuous transaction.
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
44
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:
In order to fall within the definition of hearsay, the statement must be
offered to prove the truth of the statement’s contents. To illustrate this
point, the victim stated, “Come over to my apartment tonight” or
words to that effect. The statement was not offered to prove any
assertion within the statement such as ownership of the apartment, but
to establish the fact that the statement was made. We contrast this
scenario to one where a witness states that declarant said, “John killed
Jane.” The matter asserted is that John killed Jane.
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:
[T]he mere assertion that the hearsay rule does not apply, if the
statement is offered only for the fact that it was stated and not as proof
of the fact in the statement, is not a correct statement of the law. Any
testimony could be admitted under this reasoning by the fiction that
the testimony is elicited “for the mere fact it was stated” rather than
for its truth. There must be some purpose in admitting the testimony
other than to show the truth of the matter.
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
45
So. 2d at 946. While the testimony defense attempted to elicit in Hicks was clearly
offered for the truth of the matter asserted—that is, that the victims were or were
not present at the bar on the evening in question—Clarence Powell’s statement was
not offered for the truth of the statement but was offered to show defendant’s state
of mind prior to the shooting. As we explained in State v. Brown,
One of the traditional hearsay exceptions allows the introduction of
extrajudicial declarations at trial to prove the state of mind of the
declarant. State v. Sheppard, 371 So. 2d 1135 (La.1979); State v.
Weedon, 342 So. 2d 642 (La.1977). Thus, whether the declaration is a
direct assertion of the speaker’s state of mind (hearsay) or whether the
declaration tends to indirectly establish the declarant’s state of mind
(non-hearsay), Louisiana jurisprudence admits the declaration if the
declarant’s state of mind is at issue or is relevant to prove a fact at
issue. State v. Martin, [458 So. 2d 454, 461 (La. 1984)] (relevancy is a
requirement for both the hearsay and non-hearsay extrajudicial
declarations).
562 So. 2d 868, 877-78 (La. 1990); see State v. Raymond, 245 So. 2d 335, 340 (La.
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
46
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.
Assignment of Error 27
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, that he
said something to Kyle, and that they then together proceeded to burglarize the
home. The jury heard all of this testimony. Defendant, however, contends the trial
court erred because it refused to allow Kyle to testify about what precisely Jarquis
said immediately prior to the burglary—that is, that Jarquis indicated to Kyle,
“There’s two amps and an Xbox in there, do you want to get them?” The State
objected to the introduction of this testimony as inadmissible hearsay, and the court
ruled that the statement was hearsay and further explained that Mr. King could
only “testify about things that happened, what he observed, not what was said
during the burglary.” The defense noted its objection for the record.
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
47
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.
Assignments of Error 5 through 7
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
48
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 the exclusion of this
evidence had a substantial and injurious effect on the jury’s verdict. La.C.Cr.P. art.
921; Chapman, 386 U.S. at 24, 87 S.Ct. at 828; Sullivan, 508 U.S. at 279, 113
S.Ct. at 2081; Sanders, 93-0001, p. 17, 648 So. 2d at 1286.
Accordingly, these assignments of error fail.
Inadmissible Other Crimes Evidence Admitted in the Guilt Phase
Assignments of Error 28 through 31
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
49
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:
In connection with the drugs there was some testimony, of course,
they, of the incident, the testimony about a quarter pound of weed
coming up missing, I’m reading from the transcript, and that Mr.
Reed, of course, felt that his home had been burglarized and possibly
the weed had been taken from his home as well as other items to
include an amp, Xbox and other items.
As far as motive, I think was argued by Ms. Prudhomme, that motive
was one of the items that was present in connection with the evidence
of drugs is that he felt the drugs were taken from his home, and even
there was some testimony about another individual who took him to
get some drugs and other individuals sitting at his house on the date in
question waiting to purchase drugs from Mr. Reed. I do believe that
the State has satisfied its burden in connection with the drugs and that
the drugs and the evidence of that activity or those acts can be
admitted.
Defense counsel then asked the court to clarify its ruling with respect to the
admission of this evidence of drug activity:
MR. GOORLEY: Your Honor, I have a question, if I may about the
evidence as to the drugs. I understand the part of the ruling about
anything may [sic] allege to be taken at that time which would have
been the marijuana that was alleged to have been taken. I think what
the State is attempting to introduce is evidence that there was drug
activity going on there. Is the Court ruling that evidence is
admissible? That’s what they were trying to get in.
THE COURT: It’s my understanding they were trying to get in drug
activity insofar as testimony about one of the individuals, whose name
escapes me now, took Mr. Reed to pick up drugs while other
individuals were even at his house, two individuals were at his house
saying they were waiting to purchase drugs.
MS. PRUDHOMME: That’s correct, Your Honor, that witness’s
name would be [Glen Merrell].
THE COURT: That’s the individual who actually took him, I believe.
50
MS. PRUDHOMME: Shannon and Bridgett[e] Garland were waiting.
THE COURT: Shannon and Bridgett[e] Garland were waiting to
purchase drugs. Evidence of—and then, of course, testimony about
quarter pound of drugs, weed, coming up missing—hold on. Let me
finish so you understand then you might have a further question.
Quarter pound of weed missing, I’m saying all of this activity goes to
motive.
MR. GOORLEY: All the evidence about drug activity is admissible,
is that what you’re ruling?
THE COURT: Yes.
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). 9
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
9
Defendant subsequently raised the issue in his motion for new trial, in which Judge Dorroh
found that the “404(B) ruling by Judge Lafitte was not erroneous,” nor was the ruling “restricted
in any way.”
51
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.
First, defendant argues the trial court erred when it ruled the evidence
admissible because the alleged drug activity was not relevant to motive.
Specifically, defendant claims the State failed to present evidence the homicides
were a result of a “drug deal gone bad” and, instead, elicited testimony from
“nearly every single lay witness” about his or her history of drug transactions with
defendant, e.g., how long each had been purchasing marijuana from the defendant,
how regularly each purchased from him, whether the sales were defendant’s only
source of income, and whether he had a “regular job.” Contrary to defendant’s
assertions, evidence of drug activity that occurred at defendant’s residence was
admissible to show defendant’s motive in the instant homicides. Here, evidence
that defendant was a known drug dealer in the neighborhood, whose marijuana
52
supply had been stolen from his residence on the day of the homicides, clearly
established his motive to identify the alleged burglar, Jarquis Adams, who
previously purchased marijuana from him, and to kill him that same day.
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
53
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 court abused its discretion in admitting
the other crimes evidence. Therefore, evidence of regular drug activity that
occurred at defendant’s residence was properly admissible to show intent, motive,
opportunity, and absence of mistake, and the introduction of this evidence was not
outweighed by any prejudicial effect. See Prieur, 277 So. 2d at 128. Given the
veritable mountain of evidence the State presented to prove defendant was guilty
of the first-degree murders of Jeremiah, Jarquis, and Gene, we have no concerns
the jury judged him guilty “on a ground different from proof specific to the offense
charged.” See Old Chief v. United States, 519 U.S. 172, 180, 117 S. Ct. 644, 650,
136 L. Ed. 2d 574 (1997).
These assignments of error fail.
Inadmissible Other Crimes Evidence Admitted in the Penalty Phase
Assignments of Error 32 through 35
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.
54
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
the tapes and the testimony of Detective Richardson are
admissible and are relevant to the defendant’s character, but
they will be admitted with the following limitations: The
State—or qualifications, whatever you want to call them:
The State may use the jail calls to establish Mr. Reed
used another inmate’s SO number to place the calls to his
family members. They can establish that one of the purposes of
the calls was to—was for Mr. Reed to attempt to get friends
and/or family members to bring unknown contraband into the
jail, which is against the jail rules.
Detective Richardson, subject to cross-examination, can
voice his opinion based upon his years of experience in the field
of police work as to what the contraband he believes Marcus
Reed was attempting to get into the jail. And I want it made
clear to the jury that Mr. Reed was not actually caught with
contraband, but it was his attempt to do so that goes to his
character.
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
55
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 at the penalty phase as reflective of
his character and propensities. State v. Jackson, 608 So. 2d 949, 954 (La. 1992). A
large amount of highly relevant evidence usually will not result in the injection of
an arbitrary factor into the capital sentencing hearing, although arguably there may
reach a point where the sheer magnitude and details of the evidence, while highly
probative, impermissibly shifts the jury’s focus from its primary function of
determining the appropriate sentence for this offense and this offender. State v.
Comeaux, 93-2729, p. 11 (La. 7/1/97), 699 So. 2d 16, 22-23. Jackson specifically
limited “the evidence supporting the conviction to the document certifying the fact
of conviction and to the testimony of the victim or of any eyewitness to the crime.”
Jackson, 608 So. 2d at 954. “This limitation . . . prohibit[s] witness testimony
relevant to the original offense of which the defendant was charged in an unrelated
matter and to which the defendant pleaded guilty to a lesser offense.” State v.
Langley, 94-0999, p. 1 (La. 4/21/94) 639 So. 2d 211, 212.
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.
56
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 violence against the person of the
victim for which the period of limitation for instituting prosecution had not run at
the time of the indictment of the accused for capital murder. Id. In State v.
Comeaux, 93-2729, p. 10, 699 So. 2d at 22, this Court revisited the issue and noted
the thrust of Jackson was not to exclude any evidence that was significantly
relevant to the defendant’s character and propensities, no matter what the amount
of the evidence was, but rather to maintain the jury’s focus on their function of
deciding the appropriate penalty by eliminating marginally relevant evidence that
does not aid the jury in performing this function. This Court then set out to provide
guidelines to help determine whether character and propensity evidence is
admissible at the penalty phase. This Court held,
Evidence that establishes the defendant in the recent past has engaged
in criminal conduct involving violence to the person is highly
probative of the defendant’s character and propensities. Such
evidence generally would not inject an arbitrary factor into a capital
sentencing hearing, especially when the conduct involves the same or
similar crime committed in a similar manner. On the other hand, the
type of evidence that tends to inject arbitrary factors into a capital
sentencing hearing usually is evidence which is of only marginal
relevance to the jury’s determination of the character and propensities
of the defendant.
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 crime, to establish the fact of
defendant’s prior conviction and the facts surrounding it. Accordingly, defendant
did not preserve these issues for appeal. La.C.Cr.P. art. 841; Wessinger, 98-1234,
pp. 19-20, 736 So. 2d at 180-81. Even absent the procedural bar, defendant’s claim
fails. We note defendant alleges a violation of a jurisprudential rule, not a statutory
rule. Despite the technical violation of Jackson, after reviewing the record, it does
57
not appear the testimony and evidence presented by Detective Demery injected an
arbitrary factor into the jury deliberations. Detective Demery’s testimony
concerning defendant’s prior conviction was presented in a concise and efficient
manner, with his entire testimony consuming only 13 pages of the penalty phase
transcript. The jury was properly aware of defendant’s past conviction because
such evidence is relevant to his character and propensities. The jury was presented
with overwhelming evidence in this case that showed defendant shot three
unarmed victims, including a 13-year-old boy, multiple times with a semi-
automatic rifle. Although it was arguably error for Detective Demery to testify to
defendant’s prior conviction for illegal use of a weapon, we find no prejudice is
apparent in the method employed by the State to convey the appropriate
information of defendant’s criminal record to the jury, and Detective Demery’s
testimony does not undermine the confidence in the death penalty verdict. These
claims fail.
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 nonviolent
unadjudicated act and never urged this point as a basis for his objection. 608 So. 2d
at 955. It is well settled that a new basis for an objection may not be urged for the
first time on appeal. La.C.Cr.P. art. 841(A) (“It is sufficient that a party, at the time
the ruling or order of the court is made or sought, makes known to the court the
action which he desires the court to take, or of his objections to the action of the
court, and the grounds therefor.”) (emphasis added); State v. Butler, 12-2359, p. 5
58
(La. 5/17/13), 117 So. 3d 87, 89; State v. Stoltz, 358 So. 2d 1249, 1250 (La. 1978).
Because defense counsel never asserted this ground as the basis of his objection,
defendant did not preserve this issue for review. Absent this procedural bar,
however, we find this claim is meritless. Even assuming error ad arguendo,
considering Det. Richardson’s testimony only spanned 22 pages of the over 160
total pages of penalty phase transcript, given the appropriateness of the State’s
introduction of defendant’s prior conviction for illegal use of a weapon as bearing
on the character and propensities of defendant and, most importantly, given the
overwhelming evidence that defendant brutally killed three unarmed young men,
defendant fails to show here that introduction of this conspiracy evidence injected
an arbitrary factor into the proceedings such that it impermissibly shifted the jury’s
focus from its primary function of determining the appropriate sentence for this
offense and this offender. Comeaux, 93-2729, p. 11, 699 So. 2d at 22-23. This
claim is meritless.
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 Richardson’s testimony
concerning the contraband conspiracy injected an arbitrary factor in the jury’s
sentencing decision. In light of the overwhelming and devastating evidence of
defendant’s crimes and of the aggravating factor—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—supporting the jury finding that defendant committed
three counts of first-degree murder, defendant has not demonstrated reversible
error here. Thus, Assignment of Error 35 is meritless, as well.
59
Trial Judge’s Emotional Display during Penalty Phase Testimony
Assignment of Error 18
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:
MR. GOORLEY: Your Honor, I realize Ms. Clara Morgan’s
testimony was heartfelt. I don’t think that anybody in the courtroom
wasn’t affected by her testimony, and all our hearts went out to her
and that caused emotion from everyone here, including me, including
Mr. Reed, including Mr. Florence.
But I have to protect the record, Your Honor—
THE COURT: I understand.
MR. GOORLEY: —and, therefore, I have to, for the record, state that
right before we broke, that Your Honor was visibly impacted by that
testimony and that you were—you were in tears, as Ms. Prudhomme
was, and possibly other people were.
But as the fact finder in this case—not the fact finder in the
case, but the judge in this case, it is your duty to, let’s say, not
comment on the evidence.
And for the record we would just state that the Court’s
emotional situation and tears was in fact a comment on her testimony.
We want to make that part of the record clear for whatever purposes
may come down the road.
MR. COX: Well, is there a motion before the Court?
Mr. GOORLEY: Yes, Your Honor. I would ask for a mistrial.
MR. COX: We respectfully oppose the mistrial. We’ll stipulate that
Your Honor is human and we’ll stipulate that any emotion that you
may have shown in this matter was not a comment on the evidence.
60
What the code refers to by a comment on the evidence is if the
judge were to say or infer to the jury the credibility of a witness or
truthfulness or untruthfulness of a witness. To even suggest that
honest human emotion is a comment on the evidence just—it shows
how jaded the defense is and how jaded they’ve become that, you
know—anyway, I object.
MR. GOORLEY: Your Honor, may I just comment on one thing?
THE COURT: I don’t want to hear any more about it. Frankly I’m
sick of the two of you, all of you, taking jabs at each other. And to
quote Harmon Drew who said this in a trial that I had before him
several years ago when he was still a district court judge, This is a
heck of a way to make a living. It is.
And that was very difficult. But my emotions weren’t different
than many other people in the courtroom or the jury. I don’t believe
my emotions really had any impact on the jury. I kept my head down.
I was visibly moved by it, as I’m sure I’m going to be visibly moved
by Mr. Reed’s family if they testify.
This is hard and it’s—I’m an emotional person. I am. My
emotions show on my face with what I do. They do. And that was
very difficult, and I’ll say it on the record. But I don’t believe that it
really impacts the jury to see any human being moved by that. It’s not
a comment on the evidence; it’s not a comment on someone’s
testimony; it’s not.
So I think everybody shows their emotions in different ways,
and I believe every judge that has to sit through this feels the same
way when these impact witnesses take the stand.
So I am going to deny your request for a mistrial at this time,
and I’ll note your objection for the record.
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.”
61
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 influence upon the jury
prejudiced his right to a fair trial. State v. Clark, 02-1463, p. 32 n.25 (La. 6/27/03),
851 So. 2d 1055, 1079.
Here, the record reveals that, out of the presence of the jury, the trial judge
62
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.” 10 The
record reflects the judge, the prosecutors, the defense counsel, the jury, and the
witnesses all exhibited emotional responses during the testimony of both the
victims’ and the defendant’s family members. The record clearly demonstrates that
this case was a tragic and violent experience for the family members both of the
victims and of the defendant. Nevertheless, “we must credit the jurors with the
good sense and fair-mindedness to see these outbursts for what they were, the
natural and irrelevant expression of human emotion, and not let the outbursts
influence their decision on defendant’s penalty.” Wessinger, 98-123, p. 24, 736
So. 2d at 183. A review of the record does not reveal the trial judge’s emotional
response exhibited in the courtroom implied an opinion as to the penalty that
should be imposed or had any actual influence on the jury. Defendant fails to show
abuse of discretion which would warrant the substitution of this Court’s judgment
for that of the trial judge who conducted the trial and who was in the best position
to assess impact upon the jury. This claim is meritless.
CAPITAL SENTENCE REVIEW
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
10
The attorneys did not respond to or dispute the judge’s statement.
63
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 limited his employment
options. He was previously convicted of misdemeanor simple battery in 1997,
misdemeanor illegal carrying of weapons in 2002, and misdemeanor loud music in
2002, and he pled guilty to illegal use of weapons in 2007.
Passion, Prejudice, or Other Arbitrary Factors
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
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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.”).
65
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:
You know, what I don’t understand is why we can’t leave God out of
this. I mean, the law does not talk about the Bible. The law does not
talk about God. The law talks about aggravating circumstances and
mitigating circumstances and it talks about the circumstances of the
offense and it talks about the character and propensity of the
defendant. But nowhere does it talk about the Bible. Nowhere does it
talk about God.
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. 11 Thus, defendant fails to
prove his allegations of either racism or references to religion in closing arguments
contributed to the verdict.
Aggravating Circumstances
As demonstrated by the jury’s verdict during the guilt phase of the trial, the
11
Notably, the State asserted a reverse Batson challenge, which the trial court denied ruling that
the State failed to make a prima facie showing “that the peremptory challenges exercised by
[defendant] were on the basis of race.”
66
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).
Proportionality
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,
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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 shot his pregnant girlfriend three times, killing her and the unborn
child); State v. Dorsey, 10-0216 (La. 9/7/11), 74 So. 3d 603 (Dorsey tied a 79-year-
old woman to a chair, ransacked her home, bludgeoned her 52-year-old son to
death with sufficient force to cause his broken skull to lacerate his brain, set him
on fire, and left the woman tied to a chair in her burning home); State v. Holmes,
06-2988 (La. 12/2/08), 5 So. 3d 42 (defendant and her boyfriend forced their way
into the home of 70-year-old Julian Brandon and 68-year-old Alice Brandon, shot
Julian, then stabbed and slashed him to death, and robbed Alice before shooting
her in the head); State v. Edwards, 97-1797 (La. 7/2/99), 750 So. 2d 893 (Edwards
and an accomplice shot and killed Victoria Kennedy and shot and beat Gerald
Kennedy, who received multiple skull fractures but survived, while robbing them
at their apartment); State v. Cooks, 97-0999 (La. 9/9/98), 720 So. 2d 637 (Cooks
along with four others entered a home in Shreveport to steal marijuana from the
occupants and a struggle ensued and Cooks shot and killed one victim and also
directed the shooting of two other surviving victims); State v. Tyler, 97-0338 (La.
9/9/98), 723 So. 2d 939 (Tyler shot and killed the manager of a fast food restaurant
in the course of an armed robbery, and he also shot two other employees in the
head, but they survived the injuries); State v. Davis, 92-1623 (La. 5/23/94), 637
So. 2d 1012 (Davis committed two separate murders in the course of two armed
robberies); State v. Code, 91-0998 (La. 11/29/93), 627 So. 2d 1373 (a vicious serial
killer was convicted of brutally killing four people, including one whom he nearly
decapitated and another whom he made sit in the blood of her murdered daughter
68
before being killed herself, and he was found to have killed four other people as
well).
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 brutal and senseless killing of
69
the three unarmed Adams brothers, we find the death sentence imposed in this case
is not disproportionate.
DECREE
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.
AFFIRMED.
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09/07/16
SUPREME COURT OF LOUISIANA
No. 2014-KA-1980
STATE OF LOUISIANA
VERSUS
MARCUS DONTE REED
ON APPEAL
FROM THE FIRST JUDICIAL DISTRICT COURT,
FOR THE PARISH OF CADDO
Hughes, J., concurs in the result.
1