State of Louisiana v. Lee Turner, Jr. , 263 So. 3d 337 ( 2018 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #053
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 5th day of December, 2018, are as follows:
BY CRICHTON, J.:
2016-KA-1841 STATE OF LOUISIANA v. LEE TURNER, JR. (Parish of E. Baton Rouge)
This is a direct appeal under La. Const. art. V, § 5(D) by
defendant, Lee Turner, Jr., who was indicted by a grand jury for
the first degree murders of Edward Gurtner, III and Randy Chaney,
committed while engaged in the perpetration of armed robbery.
Following the close of evidence, a jury unanimously found
defendant guilty of two counts of first degree murder and, at the
conclusion of the penalty phase of the trial, unanimously
recommended sentences of death. In his appeal, defendant raises
32 assignments of error. Finding merit to defendant’s assignment
of error related to his “reverse-Witherspoon” challenge, his
sentences are hereby vacated. Finding no merit to his remaining
challenges, his convictions are affirmed, and this matter is
remanded to the trial court for further proceedings.
CONVICTIONS AFFIRMED; DEATH SENTENCES REVERSED; CASE REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
GUIDRY, J., concurs in part, dissents in part, and assigns
reasons.
HUGHES, J., concurs in part and dissents in part for the reasons
assigned by Guidry, J.
12/05/18
SUPREME COURT OF LOUISIANA
No. 2016-KA-1841
STATE OF LOUISIANA
VERSUS
LEE TURNER, JR.
ON APPEAL
FROM THE NINETEENTH JUDICIAL DISTRICT COURT
FOR THE PARISH OF EAST BATON ROUGE
CRICHTON, J.
This is a direct appeal under La. Const. art. V, § 5(D) by defendant, Lee
Turner, Jr., who was indicted by a grand jury for the first degree murders of Edward
Gurtner, III and Randy Chaney, committed while engaged in the perpetration of
armed robbery. Following the close of evidence, a jury unanimously found
defendant guilty of two counts of first degree murder and, at the conclusion of the
penalty phase of the trial, unanimously recommended sentences of death. In his
appeal, defendant raises 32 assignments of error. Finding merit to defendant’s
assignment of error related to his “reverse-Witherspoon” 1 challenge, his sentences
are hereby vacated. Finding no merit to his remaining challenges, his convictions are
affirmed, and this matter is remanded to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
On the morning of Sunday, March 27, 2011, Edward “Eddie” Gurtner III and
Randy Chaney reported to work at the Carquest auto store on Airline Highway in
1
See Witherspoon v. Illinois, 391 U.S. 510 (1968) (holding that a prospective juror who would
vote automatically for a life sentence is properly excluded); State v. Robertson, 92-2660 (La.
1/14/94), 630 So. 2d 1278, 1284 (explaining that, in a “reverse-Witherspoon” context, the basis of
the exclusion is that a prospective juror “will not consider a life sentence and . . . will automatically
vote for the death penalty under the factual circumstances of the case before him . . .”).
Baton Rouge. Mr. Gurtner’s oldest son, Joey Gurtner, 2 stopped by the store that same
morning to pick up transmission parts for his own vehicle and bring breakfast to his
father. Before Joey left, his father instructed him to pull his truck around the back of
the store to load boxes. While at the back of the store, Joey noticed a white BMW
parked in the back and saw a man walking along the side of the building. Joey asked
his father who owned the BMW, and Mr. Gurtner replied that it belonged to the
nephew of Leroy Moss, Lee Turner. Joey did not interact or get in close proximity
of the man. Joey finished loading boxes into his truck and left.
Mr. Gurtner’s wife, Elizabeth Gurtner, expected him home at 3:30 or 4:00 that
afternoon, after the store closed at 3:00 p.m. When her husband did not return home,
Mrs. Gurtner began to call both Mr. Gurtner’s cell phone and the Carquest line, but
there was no answer. By 4:45 or 5:00 p.m., with still no sign of her husband, Mrs.
Gurtner and her youngest son, Jamie, then 13 years old, traveled to Carquest to check
on Mr. Gurtner. Upon arriving there, Mrs. Gurtner and Jamie discovered Mr.
Gurtner’s body. Mrs. Gurtner frantically called 911, and the dispatcher instructed
Mrs. Gurtner to leave the store immediately, which she and Jamie did.
Randy Chaney’s wife, Lola Chaney, spoke with her husband around
lunchtime that day, and Mr. Chaney informed her that Braillon Jones, a coworker,
had shown up to work a little late, around 10:00 a.m. At some point that afternoon,
the Chaneys’ son, Trevor Chaney, informed his mother that he had attempted to call
his father at work to ask him a question pertaining to an oil change, but that his father
did not answer the phone. Somewhat alarmed, Mrs. Chaney tried to call her husband
at around 3:15 p.m., but he did not answer. Mrs. Chaney, becoming more anxious,
2
Joey was born Edward Gurtner, IV, but is known as Joey and is hereinafter referred to as such.
2
made several additional calls, all of which also went unanswered. She then instructed
her son to return home so that she could take his vehicle to go check on Mr. Chaney.
As she waited, sheriff’s deputies arrived at her home and informed her that her
husband had been killed at Carquest.
Police arrived at Carquest and initially treated the scene as an active shooter
situation. Officers entered and cleared the building and ultimately discovered the
bodies of Mr. Chaney and Mr. Gurtner. Police then secured and roped off the scene
as additional police units and detectives arrived. Eventually, police discovered that
Braillon Jones had been working at Carquest with both victims on the day of the
murders, and Detective Nicholas Locicero and Captain Todd Morris went to Jones’s
home to interview him in the early morning hours of Monday, March 28, 2011. Jones
accompanied the officers to the police station for an interview. Jones informed
Detective Locicero that a black male wearing a white shirt, black pants, with a
tapered haircut, slim build, with no facial hair, was present inside the Carquest earlier
in the morning on the day of the shootings, as well as when Jones left for the day
just before 3:00 p.m.
Meanwhile, Lead Detective Sergeant Sonya Harden had arrived at the scene
and received information from Joey Gurtner that Turner had been at the store earlier
on the morning of the shootings. Sergeant Harden relayed this information to
Detective Locicero. Detective Locicero prepared a photographic lineup including
the defendant, and returned to Jones’s residence to present him with the lineup. Jones
identified defendant as the person he had seen at the Carquest in the morning and
again in the afternoon while he was working.
Police learned that Turner was a Carquest employee and was scheduled to
report to work later that morning (Monday, March 28, 2011) at 8:00 a.m. at the
3
Carquest location on Government Street. Detective Locicero and Deputy Stephen
Cadarette arrived at that location prior to 8:00 a.m. and waited for Turner. When
Turner arrived, he pulled up in a white 1990 BMW, parked, and entered the store.
The investigators followed him inside, introduced themselves to Turner, and
informed him they were investigating a homicide at Carquest. Detective Locicero
testified that Turner was fully cooperative and wanted to speak with investigators to
clear his name. Turner walked outside with the investigators and, despite seeing a
knife in Turner’s pocket, Detective Locicero did not search Turner (though he did
ask Turner to remove the knife, and Turner complied), nor did Detective Locicero
inform Turner that he was a suspect. After receiving oral consent to search Turner’s
vehicle, Detective Locicero presented Turner with a waiver of search warrant form
for the vehicle, which Turner read and signed. Nothing of evidentiary value was
recovered in the vehicular search.
Detective Locicero transported Turner to the violent crimes unit for further
questioning, though he did not place Turner under arrest. Turner rode in the front
passenger seat of the detective’s truck, and he was not handcuffed. Turner did not
appear to be under the influence of alcohol or other drugs, and had no trouble
communicating with Detective Locicero. Turner was placed in an interview room
by himself and, some time later, Detectives Harden and Locicero entered the room
to begin an interview. The interview would ultimately last approximately 11 hours,
from 9:43 a.m. to 8:30 p.m., though Turner was left alone in the interview room
between rounds of questioning for roughly six of the 11 hours.3
The interview began when Detective Harden initiated the following exchange
3
Turner was permitted several bathroom breaks and was offered food and water.
4
with Turner:
Q: Uh, just as a formality um, before we start the interview, I have
to advise you of your rights. It does not mean you’re in trouble
or going to jail or anything.
A: Okay.
Q: Okay?
A: Yeah.
Q: All right. You have the right to remain silent. Anything you say
can be used against you in court . . .
A: Okay.
Q: You have a right to an attorney. If you cannot afford one, one
will be provided for you. You have the right to have an attorney
present while answering questions. If you choose to answer
questions now without an attorney, you can stop at any time. Do
you understand that?
A: I understand ma’am.
Q: Okay. And you can read and write the English language?
A: Yes ma’am.
Q: You’re good – okay. What I need you to do for me is sign your
name there and print for me saying that you understand your
rights and I’m not forcing you to talk to me.
Turner then executed a waiver of rights form. 4 Turner explained to the
detectives that he worked for Carquest primarily at the Plank Road and Government
Street locations, but that he was going to begin doing some work at the Airline
location. He further explained that he went to the Airline location twice on Sunday,
March 27, 2011, to introduce himself to the store manager in anticipation of
4
The form tracks standard Miranda language and informs the signee that: he has the right to remain
silent; anything said may be used against him in court; he has the right to speak with an attorney
prior to any questioning and that attorney may be present during questioning; if he cannot afford
an attorney, one will be appointed; if he decides to answer questions now without an attorney
present, he can stop answering questions at any time to seek advice from an attorney or for any
other reason.
5
commencing work there. He told the detectives that he first visited the store on
Airline that morning, approximately 30 minutes after the store had opened, and he
introduced himself to the store manager and discussed a mutual acquaintance,
Turner’s uncle, Leroy Moss. Turner then told detectives that after visiting his
girlfriend during the day, he returned to the store just before closing to discuss his
schedule and inquire about the possibility of him becoming a permanent (as opposed
to rotating) employee at the Airline location.
Turner also told detectives that he spoke with a black male driver working at
the store, and that he (Turner) walked around the store to get acquainted with the
layout and learn where things were located. He further stated that Mr. Gurtner
showed him around the store, and that at one point he helped Mr. Gurtner take a few
boxes to the dumpster. The driver left the store before closing time, and Turner stated
he left the store about ten minutes after the driver left. Turner stated that as he was
leaving, Mr. Chaney was “counting the register” and Mr. Gurtner was putting up
stock. No one immediately locked the door behind him as he left. Later in his police
interview, Turner told the detectives the point of his second visit to the Carquest was
to look for parts for his car.
Turner told detectives that after he left the store in the afternoon, he went
home and changed clothes, and then went back to his girlfriend’s house. Turner
stated that at some point later that night, after leaving his girlfriend’s house, he drove
past the Carquest where the shootings occurred and saw the area taped off and a
large police presence. He called Leroy Scales, the store manager for a different
Carquest location, in an attempt to find out what was going on. Turner then parked
his car and joined the growing crowd of people outside the Carquest. He stated in
6
his interview that this was when he first learned there had been a murder. He did not
inform officers on the scene that he had been in the store twice that day.
Turner continued to deny his involvement in the murders, even when
detectives eventually confronted Turner with the facts that he was the last person to
be seen with the victims at 2:47 p.m., and that the victims must have been killed in
the small window of time between when Jones left for the day at 2:47 p.m. and when
one of the victims failed to answer his phone at 3:13 p.m. Turner informed detectives
that he left the store approximately five minutes after Jones left the store, and that,
as he was pulling out of the parking lot, a white woman with a blonde ponytail
driving a blue Camry pulled into the parking lot.
While Turner was being interviewed, the investigation was progressing on
other fronts. Chuck Smith, an investigator with the District Attorney’s office, visited
the crime scene at some point early Monday evening and spotted a gun in a weeded,
bushy area outside the rear of the Carquest building. Smith immediately alerted the
East Baton Rouge Sheriff’s Office, and officers recovered the weapon and sent it to
the crime lab for forensic testing. Additionally, Detective Locicero prepared a search
warrant for the residence that Turner shared with his uncle. The application for the
search warrant was based, in part, on video footage from a nearby business that
showed a white four-door vehicle matching the description of Turner’s vehicle. In
the footage, the vehicle was observed circling the block on which the Carquest was
located three times after 3:00 p.m. The warrant was issued and police executed it
late Monday afternoon. The search revealed $350 in cash wrapped in pay slips from
Pep Boys Auto Parts (Turner’s former employer) in Turner’s bedroom. In trashcans
outside the home, officers found a white garbage bag containing work boots, black
pants, a white t-shirt, black and grey gloves, and two Regions Bank bags. In each
7
bank bag was a deposit slip from the Carquest on Airline Highway––one for $125
and one for $357. The deposit slips were dated March 25, 2011 and March 26, 2011,
the two days before the murders.
Turner, who was still in the interview room, was confronted with photos of
his clothing, the bank bags, and the Carquest register receipts that police found in
the trashcan outside his house. Turner’s adamant denials of any involvement in the
murders immediately gave way to an admission of involvement, though initially
Turner downplayed his own actions.
Confronted with the evidence from his residence, Turner told detectives that
Leroy Scales, a manager at a different Carquest location, had planned and committed
the murders, and had forced Turner into helping him as repayment for helping Turner
secure a job. Turner stated that Scales was already in the building when he arrived
at the Carquest, and that Scales had previously instructed Turner to keep the two
employees busy by talking to them. Turner stated that Scales then told him to leave,
and that he heard one gunshot as he was leaving. Shortly after this confession, the
detectives informed Turner that a gun had been found behind the Carquest, asked
Turner if they would find his prints on it and if, in actuality, he had committed the
murders alone. Turner immediately responded, “Yes, sir.”
Turner explained that Scales had nothing to do with the murders, and gave
details on how the crimes were committed. Turner stated that one of the Carquest
employees “called me a ni**er and I heard him and I just clicked.” Turner proceeded
to explain that he shot Mr. Chaney first, and then forced Mr. Gurtner to remove and
hand over the cash. Mr. Gurtner then attempted to run towards the back of the store,
and Turner stated that he emptied “the clip” firing at Mr. Gurtner from behind. He
explained that the gun was a .38 caliber weapon and that he threw it in the bushes
8
behind the Carquest after he left through the back door. The interview concluded
with Turner explaining that he did not go to the store with the intention to kill
anyone, but when he heard the employee call him a racial slur, he said “to hell with
it.” Turner then requested to call his girlfriend, and the interview ended. Police
immediately arrested Turner and booked him on two counts of first degree murder.
A grand jury indicted Turner on July 1, 2011, on two charges of first degree
murder. Turner was arraigned on July 26, 2011, and entered a plea of not guilty. On
September 12, 2011, the state filed notice of intent to seek the death penalty and
designated two separate statutory aggravating circumstances. In the notice of intent,
the state specified that the prosecution was predicated upon violations of R.S.
14:30(A)(1) and (3) (that the defendant had specific intent to kill or to inflict great
bodily harm and was engaged in the perpetration of armed robbery; and, that
defendant had the specific intent to kill or to inflict great bodily harm upon more
than one person), and that it would allege the corresponding statutory aggravating
circumstances of La. C.Cr.P. art. 905.4(1) and (4) at the sentencing phase (the
offender was engaged in the perpetration or attempted perpetration of armed
robbery; and, the offender knowingly created a risk of death or great bodily harm to
more than one person).
The defense filed several pretrial motions, including a motion to declare La.
C.Cr.P. art. 905.2(B) unconstitutional; a motion to declare the death penalty
unconstitutional; a motion to bar death qualifications and declare La. C.Cr.P. art.
798 unconstitutional; and, a motion to exclude death as a possible punishment. The
trial court heard argument on these motions and denied them on October 11, 2011,
without reasons.
9
The defense also filed a motion to suppress Turner’s statement, alleging that
Turner did not knowingly and intelligently waive his rights based on misleading
statements by Detective Harden when administering Turner’s Miranda rights that
downplayed the seriousness of the situation. Defendant also argued that the search
of his home was unconstitutional due to a defective warrant, and thus the evidence
seized from his home should be suppressed. Additionally, defendant argued that
because he only confessed to the murders after being presented with the illegally-
obtained evidence, his statements were fruit of the poisonous tree and should be
suppressed on those grounds.
The court held a hearing on defendant’s motion to suppress his confession
over two days. The state played the roughly six hours of video footage of the actual
interview (fast-forwarding through the times Turner was left alone in the room), and
presented the testimony of Detective Harden, Detective Cadarette, Lieutenant
Moore, and Detective Locicero. The witnesses all testified generally that Turner was
cooperative when detectives initially approached him as he reported to work on the
morning after the murders, willingly gave consent for the search of his vehicle, and
that, once transported to the Violent Crimes Unit, he was read his rights directly
from the standard Miranda form, and then knowingly and voluntarily read and
signed the waiver of rights form before questioning. The defense did not call any
witnesses but argued, generally, that Turner had no criminal record and was
unfamiliar with police procedure; that Detective Harden mischaracterized his
Miranda rights as “just a formality;” that Detective Moore threatened defendant with
the death penalty and the prospect of his unborn child seeing a newsflash of his lethal
injection in the future; and, that promises were made that confessing could save his
life. The court denied the motion without reasons.
10
On May 14, 2012, the court heard arguments on defendant’s motion to
suppress the physical evidence recovered from his residence. The state pointed out
that the defense did not allege any intentional misrepresentations in the affidavit
accompanying the application for a search warrant; nonetheless, the state argued,
even omitting the alleged misrepresentations in the affidavit, probable cause existed
to obtain a search warrant for Turner’s residence due to the fact that he was the last
person seen with the victims alive, and the very short timeframe in which the
murders occurred thereafter. The trial court, after reviewing a redacted affidavit,
agreed with the state and denied the motion.
Defendant sought supervisory writs on both rulings, which this Court
ultimately denied. State v. Turner, 12-2030 (La. 1/11/13), 106 So. 3d 554.
While the writ application was pending before this Court, the defense filed a
supplemental motion to suppress, alleging the state intentionally misrepresented
information contained in the search warrant affidavit. The trial court held an
additional hearing on defendant’s motion to suppress on January 9, 2013. 5 As set
forth in detail below, Detective Locicero testified that he prepared the affidavit
accompanying the application for the search warrant of Turner’s residence and that
the affidavit contained information that a vehicle matching the description of
Turner’s vehicle was seen “circling” the block on which the Carquest was located
three times after 3:00 p.m. Though Detective Locicero did not view the video, Baton
Rouge City Police Detective Phillip Chapman did view the footage and testified at
the hearing. Chapman, however, could not definitively state whether the vehicle was
a BMW, nor could he see a driver or license plate. Defendant argued that, at best,
5
The hearing was continued to February 25, 2013.
11
the video evidence shows three different instances in which a white car drove down
a street, not that it was his car. At the conclusion of the hearing, the trial court denied
the motion. Defendant applied for supervisory writs, which this Court denied. State
ex rel. Turner v. State, 14-0225 (La. 2/28/14), 134 So. 3d 1182.
After several continuances, 6 jury selection began on April 13, 2015, and
concluded on April 29, 2015. Over 150 prospective jurors were examined for death
qualification, after which the remaining jurors were subjected to general voir dire.
Each side exercised all of its peremptory challenges.7 Defendant raised eight Batson
v. Kentucky, 476 U.S. 79 (1986), challenges during voir dire, which the trial court
denied. A jury of 12 with two alternates was selected.
Opening statements began on April 30, 2015. The state described how it
believed the crime occurred, summarized the evidence it would present, and
explained how that evidence established the elements of the crime. The defense
urged the jury to hear all of the evidence and consider whether defendant was
actually a cold-blooded killer or a young man who made an impulsive mistake, and
to be fair and keep an open mind.
The state called 26 witnesses during its case-in-chief, including the victims’
wives, investigating officers, crime scene technicians, and experts in the fields of
ballistics, DNA comparison, and latent fingerprint analysis. In addition to the
portions of the investigation detailed above regarding the interview of Turner and
6
Concerning one of defendant’s motions to continue, which was based on funding issues with the
public defender board and inability to procure experts, the court of appeal reversed the trial court’s
denial of the motion to continue. State v. Turner, 14-0369 (La. App. 1 Cir. 4/2/14).
7
Defendant was granted an additional peremptory challenge (for a total of 13) by the court of
appeal when it reversed the trial court’s denial of defendant’s challenge for cause to potential juror
James Walter Green, who was at that time the United States Attorney for the Eastern District of
Louisiana. State v. Turner, 15-0647 (La. App. 1 Cir. 4/24/15).
12
events unfolding contemporaneously therewith, the evidence and testimony
produced at trial revealed that Turner had visited the Government Street Carquest
the day before the murders while Leroy Moore was working. He asked Moore about
how deposits were made and if they were handled personally, or if they were handled
with the use of an armored truck service. Deputy Jackie Hohense, a latent fingerprint
examiner, testified that none of the prints lifted from the crime scene were matched
to Turner, and that there were some unidentified prints from the scene without a
known match. Amber Madere, another latent print analyst, testified that no latent
prints were obtained from the gun recovered from behind the Carquest. Crime scene
investigator Amie Genola testified that she attended the autopsies of both victims,
and took photographs of their injuries. The state introduced multiple photographs of
Mr. Gurtner’s body, showing each of 12 bullet wounds, over a defense objection.
Jeff Godeau, the firearms and crime supervisor for the Louisiana State Police
Crime Lab, also testified. Mr. Godeau analyzed nine cartridges from the scene, and
nine bullets, some from the victims’ bodies and some from the scene. He testified
that all of the bullets were fired from the .38 caliber firearm found outside the
Carquest. The state also called Dr. Bruce Wainer, former forensic pathologist for the
East Baton Rouge Parish Coroner’s Office. Dr. Wainer explained the nature of the
victims’ injuries and noted that Mr. Chaney died from a single gunshot wound to the
back of his head fired at close range, while Mr. Gurtner was shot 12 times, mostly
in the back. The gunshot to Mr. Gurtner’s left flank was fatal.
Jeremy Dubois, an expert in forensic DNA analysis, also testified for the state.
He testified that he received the clothing that was found in the trashcan outside of
defendant’s residence and that all the items were negative for the presence of blood.
Multiple areas of the store were swabbed for DNA, and of the samples that contained
13
sufficient material to conduct an analysis, Turner was excluded as a contributor.
With respect to the gun found behind the Carquest, a mixture of at least two
individuals’ DNA was found on the trigger and slide, including that of an
unidentified person. Turner could not be excluded as a contributor, though both
victims, all Gurtner family members, Mr. Chaney, and Leroy Scales were excluded.
Leroy Moss, defendant’s uncle, also testified for the state. He stated that
Turner called him on the afternoon of the shootings and thanked him for everything
he had done for him. Turner called back later and asked if Leroy had heard about the
shootings. Melanie Williams, defendant’s girlfriend at the time of the shootings and
mother of defendant’s child, also testified. She stated that Turner picked her up on
the afternoon of March 27, 2011, around 3:30 or 4:00 p.m., and that they ran errands
and ate at Applebee’s. Turner later dropped her off at her parents’ house, and
eventually called her later that night and seemed “sorry for what happened” and
“nervous” about what had happened at Carquest. He did not admit to Melanie that
he was involved in the shootings. Melanie also spoke to Turner the next morning
while he was on his way to work and he seemed normal. She testified that she knew
Turner to carry a gun.
The state also played for the jury the 911 call made by Elizabeth Gurtner upon
finding her husband’s body, and the 11-hour video of Turner’s interview/confession.
The defense did not present any witnesses during the guilt phase and rested
on May 4, 2015.
In closing, the state argued that the evidence proved that Turner murdered two
innocent victims in cold blood, all because of greed for money. The defense
presented a short closing argument, urging the jury to find that Turner did not plan
the murders and that they were the result of an impulse of a desperate man. As such,
14
the defense argued, responsive verdicts of second degree murder were appropriate.
On rebuttal, the state argued that the murders were motivated by pure greed and
committed in cold blood, and that the jury should return verdicts of guilty as charged.
Later that day, the jury found Turner guilty as charged of two counts of first degree
murder.
The penalty phase began on May 5, 2015. The state presented victim impact
testimony through six witnesses: the wives of both victims; Mr. Gurtner’s son; and
Mr. Chaney’s stepfather, son, and daughter.
The defense called four former teachers/coaches of defendant; the father of
one of defendant’s ex-girlfriends; Warden Grimes from the East Baton Rouge Parish
Prison; prison/inmate classification expert Jim Aiken; and 11 different current or
former relatives of defendant, including defendant’s older brother, Demarcus Moss,
his mother, Melissa Moss, his father, Lee Turner, Sr., and his maternal grandmother,
Debra Gilbert. Generally, the teachers and coaches described Turner as a quiet and
reserved child with a talent for drawing. Warden Grimes described the faith-based
program in which Turner was involved, and noted that he had no disciplinary “write-
ups” during the years he had been in custody at the parish prison. Mr. Aiken testified
that Turner was a “compliant inmate” and took well to the structure of prison; he
further testified that Turner could be safely maintained in a prison like Angola.
Defendant’s family members detailed his tumultuous childhood. Defendant’s
father was largely absent from his early life, and he was raised primarily by his
mother, Melissa Moss. Melissa suffered from mental health issues, and tried to kill
herself when she was eight months pregnant with defendant by jumping into a pool.8
8
She was rescued and no physical harm was apparently done to Melissa or her unborn child.
15
She had a series of boyfriends throughout Turner’s childhood, some of whom were
abusive to her, often in Turner’s presence. Melissa also on occasion both verbally
and physically abused and was neglectful of Turner.
Relatives stated that Melissa could be a good mother at times, but put her
children second whenever there was a man in her life, which was often. Turner’s
aunt explained that the children of any current man in Melissa’s life were favored,
while the other children were pushed aside. Turner also took on a parental role for
his younger siblings, even though he was young himself. Due to these increased
responsibilities, according to relatives, he had little time to truly have a childhood.
Defense counsel also presented Dr. Mark Cunningham, a clinical and forensic
psychologist, who gave lengthy testimony. He generally opined that Turner suffered
from adverse developmental factors and transgenerational dysfunction resulting
from the unsteady and often un-nurturing environment in which he was raised.
Closing arguments in the penalty phase occurred on May 8, 2015. The state
focused on the innocence of the victims, the impact their deaths had on their families,
and the callousness of defendant’s actions. The state urged the jury not to show
defendant any mercy, because he had not given the victims that courtesy. The
defense urged the jury to see defendant as a person and to find a place in their hearts
to spare his life and show him mercy. The defense highlighted defendant’s lack of
prior criminal history, his clean disciplinary record while in prison, and the frailties
of his life.
The state responded by wondering aloud if Mr. Gurtner begged for his life,
like Turner’s defense was doing now. The state again argued that defendant showed
his victims no mercy or compassion, and thus neither should the jury show him any.
16
Later that day, the jury returned sentences of death, having found the
aggravating factors of creating a risk of death to more than one person and engaging
in the perpetration of or attempted armed robbery both proven beyond a reasonable
doubt. Defendant filed a motion for new trial, arguing several issues, which he urges
again in this appeal, as well as others not raised here, including several allegations
of prosecutorial misconduct. The court denied the motion and all claims raised
therein. Immediately thereafter, Turner waived his sentencing delay, and the court
sentenced him to death by lethal injection. Turner timely filed this appeal.
ARGUMENTS
We now discuss the defendant’s assignments of error.
VOIR DIRE ASSIGNMENTS OF ERROR
Assignment of Error No. 1
Defendant argues he was denied his constitutionally protected rights to a full
voir dire when, in the middle of voir dire, the trial court issued a ruling that prevented
defense counsel from inquiring into prospective jurors’ ability to fairly consider
voting for a life sentence in a case involving a double murder committed during the
course of an armed robbery. We agree with the defendant based on the facts of this
case, and reverse his sentences of death. For the reasons explained below, his
convictions are upheld.
The purpose of voir dire is to determine the qualifications of prospective jurors
by testing their competency and impartiality and to assist counsel in articulating
intelligent reasons for exercising cause and peremptory challenges. State v. Stacy,
96-0221, p. 5 (La. 10/15/96), 680 So. 2d 1175, 1178. The standard for determining
whether a prospective juror may be excluded for cause because of his views on
capital punishment is whether his views would “prevent or substantially impair the
17
performance of his duties as a juror in accordance with his instructions and his oath.”
Wainwright v. Witt, 469 U.S. 412, 424 (1985). See Witherspoon v. Illinois, 391 U.S.
510 (1968) (holding that a prospective juror who would vote automatically for a life
sentence is properly excluded); State v. Sullivan, 596 So. 2d 177 (La. 1992), rev’d
on other grounds, Sullivan v. Louisiana, 508 U.S. 275 (1993).
In a “reverse-Witherspoon” context, “a potential juror who indicates that he
will not consider a life sentence and that he will automatically vote for the death
penalty under the factual circumstances of the case before him is subject to a
challenge for cause by the defendant.” State v. Robertson, 92-2660 (La. 1/14/94),
630 So. 2d 1278, 1284. See Morgan v. Illinois, 504 U.S. 719, 728-29 (1992) (holding
that venire members who would automatically vote for the death penalty must be
excluded for cause, reasoning that any prospective juror who would automatically
vote for death would “fail in good faith to consider the aggravating and mitigating
circumstances,” and thus violate the impartiality requirement of the Due Process
Clause). 9 This is because jurors who cannot consider both a life sentence and a death
sentence are “not impartial,” and cannot “accept the law as given . . . by the court.”
La. C.Cr.P. art. 797(2),(4); State v. Maxie, 93-2158, p. 16 (La. 4/10/95), 653 So. 2d
526, 534-35. In other words, if a prospective juror’s views on the death penalty, as
indicated by the totality of his responses, would “prevent or substantially impair the
performance of their duties in accordance with their instructions or their oaths,”
whether those views are for or against the death penalty, he or she should be excused
for cause. State v. Taylor, 99-1311, p. 8 (La. 1/17/01), 781 So. 2d 1205, 1214; State
v. Hallal, 557 So. 2d 1388, 1389-90 (La. 1990).
9
The “substantial impairment” standard also applies to reverse-Witherspoon challenges. Morgan,
504 U.S. at 732.
18
Although the accused is entitled to full and complete voir dire, La. Const. art.
I, § 17, the scope of counsel’s examination rests within the discretion of the trial
judge, and voir dire rulings will not be disturbed on appeal absent abuse of that
discretion. La. C.Cr.P. art. 786; State v. Robertson, 92-2660 (La. 1/14/94), 630 So.
2d 1278, 1281. The right to a full voir dire does not afford the defendant “unlimited
inquiry” into possible prejudices of prospective jurors, i.e., their opinions on
evidence or its weight, hypothetical questions, or questions of law that call for
prejudgment of facts in the case. State v. Ball, 00-2277, p. 23 (La. 1/25/02), 824 So.
2d 1089, 1110. Louisiana law provides that a party interviewing a prospective juror
may not ask a question or pose a hypothetical that would demand the juror’s pre-
commitment or prejudgment as to issues to be resolved in the case. Id.; see also, e.g.,
State v. Williams, 89 So. 2d 898, 905 (La. 1956) (“It is not proper for counsel to
interrogate prospective jurors concerning their reaction to evidence which might be
received at trial.”); State v. Smith, 45 So. 2d 617, 618-19 (La. 1950) (“[H]ypothetical
questions and questions of law are not permitted in the examination of jurors which
call for a pre-judgment of any supposed case on the facts.”).
This Court’s jurisprudence therefore provides that counsel may not detail the
circumstances of the case and then ask jurors to commit themselves to a particular
verdict in advance of trial. However, a prospective juror must know enough about
the circumstances of the case to indicate whether he or she will be able to return a
sentence of death. State v. Coleman, 2014-0402 (La. 2/26/16), 188 So. 3d 174, 208-
09, cert. denied, 137 S. Ct. 153 (2016). If a juror is not able to return a sentence of
death, he or she is not competent to sit as a capital juror, even where the juror may
also express an abstract or theoretical ability to consider both death and life
sentences. Id. (citing State v. Williams, 96-1023, p.11 (La. 1/21/98), 708 So. 2d 703,
19
714).10 Thus, while seeking to elicit whether a prospective juror is capable of
remaining impartial in the case at hand, counsel must maintain a careful balance of
providing jurors with enough information to indicate whether they can return a
sentence of death, but not enough that it becomes a “pre-commitment” to a particular
outcome.
In order to understand the trial court’s erroneous ruling here, an examination
of the larger context of voir dire is required. The voir dire process was extensive,
consisting of more than 150 jurors questioned over 13 days. The trial court
conducted voir dire with an unusual structure. Death qualification of juror panels
was interspersed with general voir dire of remaining jurors. After panels 1-3 were
death-qualified, there was one panel of general voir dire with the jurors from those
panels who had not been excused for cause. The process repeated with panels 4-9,
10-11, and panel 12.
On the sixth day of voir dire, during death-qualification of panel 6 and the
individual questioning of prospective juror Joette Leblanc, defense counsel posed
the following hypothetical and the received the following answers:
Q: Going back to that hypothetical case where someone has
intentionally killed two completely innocent victims during an
armed robbery. He wanted to kill not just one but two completely
innocent victims. No defenses whatsoever. He was old enough.
He was an adult. He knew right from wrong. In that case, under
those circumstances, from what I hear you saying is that the death
penalty is the only appropriate penalty for you, for you. Is that
fair?
A: Yes.
10
In Williams, this Court held: “We, like our sister states who have addressed the issue, hold that
when a potential juror indicates his or her attitude regarding the mitigating circumstances would
substantially impair his or her ability to return the death penalty, then that juror is properly
excludable for cause.” Williams, 96-1023, pp. 8-10, 708 So. 2d at 712-14. The Court further found
that two prospective jurors who initially indicated theoretical support for the death penalty could
not have returned a death verdict because of the defendant’s age and were therefore unfit to serve
on the capital jury in that case. Id.
20
Q: And that life without parole, in that circumstance, is not enough
punishment. Is that fair?
A: Yes.
The state objected to defense counsel’s questioning, and a bench conference
occurred. The state argued defense counsel was “requiring a commitment” from the
jurors, and was doing so after presenting “the worst possible scenario with no
mitigation” to jurors. The state continued: “He’s boxing them in to saying this is
what I’m going to do and then trying to use it to get people for cause. So I guess my
objection is with Ms. Leblanc and future voir dire.”
Defense counsel responded, arguing that this Court’s decision in Robertson
allows questioning concerning “category-specific cases.” The court eventually
concluded that more discussion of Robertson was necessary, and that they would
proceed with Ms. Leblanc’s questioning but then take a break. The state attempted
to rehabilitate Ms. Leblanc, after which defense counsel challenged her for cause,
and argued that “Ms. Leblanc will not consider a life sentence in a situation where
we have an intentional killing of two completely innocent victims during an armed
robbery.” The court granted the defense challenge for cause and continued voir dire.
Later that same day, during individual questioning of potential juror Stephanie
Jacque (also part of panel 6), defense counsel presented a hypothetical to Ms. Jacque
nearly identical to the one posed to Ms. Leblanc quoted above. 11 Ms. Jacque
11
The hypothetical was as follows:
Let’s say you’re selected to serve on a hypothetical first degree murder case and you and
your fellow jurors in that hypothetical case have considered all the evidence and found that
that defendant intentionally killed two completely innocent victims during an armed
robbery and you and your fellow jurors have considered any possible defenses but it was
not in self-defense. No one forced him to do it. He knew right from wrong. He was an
adult. It was not an accident. In that case, in that hypothetical case, what is the appropriate
penalty for you? Under those circumstances what is the appropriate penalty for you? You
have two choices: life without parole and death penalty.
21
expressed some confusion and, as defense counsel attempted to clarify, the court
interrupted to ask, “[A]re you asking her after the chance to hear any mitigating
circumstances and aggravating circumstances?” At a bench conference, at the urging
of the state, the court instructed defense counsel:
You need to rephrase it to include the part that if there are any
mitigating or aggravating. You don’t have to say there will be. But if
there was any presented, what would her position be. . . You’re asking
for a commitment at that point before she hears anything in the penalty
phase. Y’all convicted him of this crime, intentional robbery of two
people. What is the appropriate penalty . . . You’re not getting the
question clear that you want an answer before they even consider any
other mitigating—evidence of any mitigating circumstances so that
they’re clear this is not the point they’re going to have to decide.
Defense counsel replied that he understood, and Ms. Jacque’s voir dire continued;
she was ultimately challenged for cause by both sides, and the court granted the
challenge. Voir dire continued the rest of the day, largely without incident. At
various points, both sides informed potential jurors that the case at hand dealt with
two victims killed during an armed robbery.
The following morning (the seventh day of voir dire), before beginning death-
qualification voir dire of panel 8, the court issued the following warning:
I have been thinking about jury selection and how it’s going in this case,
and I want y’all to know we are not going to go into the facts of this
case. We are not going into the facts and then ask them what would you
do. That probably is going to affect your hypothetical question. The
problem is its confusing to the jurors. They hear all of one side, nothing
good. They hear the specific facts of this case, and the fact you say it’s
a hypothet doesn’t mean it’s not the facts of this case. . . . but it’s asking
them to prejudge this case.
Defense counsel responded in part by explaining that his purpose in proposing
the hypotheticals was to “make sure they understand how serious it is and how this
is an intentional killing.” The court then asked for authority that supported counsel’s
position that, as phrased by the court, “says you’re entitled to go into the facts of the
22
case[.]” After directing the court’s attention to State v. Robertson,12 the following
exchange took place:
Court: . . . This is really confusing to the jurors, you put them in
the position of being able to deliberate, and all they have
is one side, and you’re asking them to commit, and you’re
asking them—
Defense: When you say commit—
Court: —Could you consider it, and maybe they are already doing
the mental gymnastics in their head, and they deliberated
with themselves, and they say, you know what, I think in
that case, I think I would have to vote for the death penalty.
That’s what this—that’s what this whole process is about,
to consider the facts of the case, everything in the penalty
phase, and them come up with the appropriate penalty. The
fact that that’s [sic] what they come down to, you’re
asking them to prejudge this case and tell you how they
are going to vote in this case; although, it is the worst
possible scenario because you’re leaving out any
mitigating circumstances.
Defense: Well, the way I deal with mitigating circumstances is after
I get their feeling about the death penalty for those
circumstances, I ask them would it matter to you that he
was young. Would it matter to you that—his background,
his childhood.
Court: I have heard the question over and over. . . . the problem
is you’re talking about the exact facts of this case. You’re
asking them to commit. How would you vote. You can call
it anything you want. Would you think that’s the only
appropriate—well, that’s the whole purpose when they go
back there and deliberate. They figure out what the
appropriate penalty for this case is. So you’re asking them
to jump ahead and put that cart before the horse, as you
have been referring to it, and to tell you what they are
going to do, based on this worst possible case scenario. . .
Defense: . . . Again, Your Honor, I’m trying to get not facts of the
case so much as I’m trying to get the category, the category
of armed robbery and intentional killing of two completely
innocent victims.
12
The transcript reads “State versus Robinson.” Presumably, based on defense counsel’s argument
he made the day prior as well as defendant’s brief submitted to this Court, defense counsel meant
State v. Robertson, and thus “Robinson” was either a mistake or transcription error.
23
Court: . . . I said we are not going to talk about the facts of this
case. They already know it’s a double homicide.
. . .So [the state] can’t tell them the specific facts they are
going to prove, and you know, I haven’t heard [the state]
say cold-blooded, completely innocent victims, and all
that stuff, but that applies to everybody. We are not going
to discuss the facts. Nobody is going to be allowed to get
these jurors to commit or prejudge this case.
The court noted the defense’s objection to its ruling, and voir dire resumed.
The issue arose again, however, when defense counsel attempted to include the
armed robbery aggravator in questioning potential juror Lisa Sutherland. Defense
counsel presented the following hypothetical:
They are telling you it’s an armed robbery and two people are dead, and
I have been using the example that the guy goes into a bank to steal, rob
the bank, and ends up shooting a couple of people. That’s the facts, just
use that as an example. In that situation, you have been on the jury. You
have heard all of the evidence. Y’all decided they proved it beyond a
reasonable doubt that it was first degree murder and that you have now
voted for first degree, that it happened during an armed robbery, and
more than one person was killed. What in that—[interrupted by the
state’s objection].
After objection, counsel asked the court if “there is another fact pattern you
would like me to use instead?” The court responded as follows:
[T]here’s nothing that indicates they actually know it’s an armed
robbery. That’s the problem. You are giving them all the facts . . . . And
then asking what you’re going to do. Is there anything that matters to
you? By the way, we haven’t even finished issuing subpoenas yet. So
tell us what you want to hear, this is not a menu, all right, but the bottom
line is you’re not allowed to go into the facts of the case. So you’re
telling them it’s a double homicide, which I told them when they came
in, they know that. I didn’t tell them it’s an armed robbery. They
haven’t gone into the circumstances. So the fact you change it from an
autoparts store to a bank is not significant.
....
Here is the deal. Nobody is allowed to go into the facts. They don’t
need to know it’s an armed robbery. They already know it’s a double
homicide. We tell them that––or I tell them that when they come in.
24
The question is can they fairly consider both possible penalties, weigh
all the evidence, weigh the mitigating circumstances, weigh what is
presented to them and make a determination and not automatically
choose one or the other. (Emphasis added.)
The court noted defendant’s objection and the remainder of voir dire for all of the
remaining panels (including four more panels of jurors and three more panels of
general voir dire) was conducted in accordance with the court’s ruling.
Defendant argues that the court erred in prohibiting any reference to the state’s
allegation of armed robbery and that, as a result, the remainder of defense counsel’s
voir dire was unduly restricted. (“Here’s the deal. Nobody is allowed to go into the
facts. They don’t need to know it’s an armed robbery.”) He points out that eight of
the jurors ultimately seated were selected after the court’s ruling was in place.
Moreover, defendant argues that, without the ability to conduct a full voir dire
following the court’s ruling, he was also unable to intelligently use his remaining
peremptory challenges to remove unfavorable jurors, because he was forced to use
them to remove jurors who might have otherwise been disqualified for cause had
counsel been able to question them concerning their views on the specific category
of first degree murder defendant was facing. Defendant argues that the court’s ruling
and subsequent ramifications amount to reversible error.
We interpret the trial court’s ruling in two parts. The first occurred on the
afternoon of the sixth day of voir dire and reiterated on the morning of the seventh
day. At both of these points, the court primarily seemed to take issue with defense
counsel questioning prospective jurors in a way that asked them to pre-judge or
commit to a certain outcome by, for example, presenting certain specific facts and
then inquiring, “under those circumstances, what is the appropriate penalty for you?”
as counsel had done the day before. As the court explained on the morning of the
25
seventh day of voir dire, “[T]he problem is . . . you’re asking them to commit. ‘How
would you vote[?]’” The second part of the ruling came later that day, when the
judge took issue with defense counsel’s use of one of the state’s allegations, namely,
armed robbery, in its questioning: “Nobody is allowed to go into the facts. They
don’t need to know it’s armed robbery.” (Emphasis added.)
The first part of the court’s ruling, instructing defense counsel that he could
not present a juror with facts and then ask the juror to pre-commit to a verdict,
comports with well-settled jurisprudence of this Court generally disallowing
questions which give detailed case-specific facts to the jury and then ask a juror to
pre-judge the case. See, e.g., Ball, 00-2277, p. 23, 824 So. 2d at 1109-10 (trial court
correctly forbids questions the evident purpose of which is to have prospective juror
pre-commit himself to certain views of the case).
The second portion of the ruling is where the trial court erred. As this Court
explained in Robertson:
[A] potential juror who indicates that he will not consider a life sentence
and that he will automatically vote for the death penalty under the
factual circumstances of the case before him is subject to a challenge
for cause by the defendant. It is irrelevant that the potential juror can
conceive of different factual situations where he might consider voting
for a life sentence where his unwillingness to consider such a sentence
in the case before him is clear.
630 So. 2d at 1284. It logically follows from the plain language of Robertson, then,
that a defendant is entitled to inquire of a potential juror whether, under the more
factual circumstances of the case before her, she would automatically vote for the
death penalty. See, e.g., Morgan, 504 U.S. at 724 n.3 (“The ‘reverse-
Witherspoon’ question may not be the only means of ensuring defendant an impartial
jury, but it is certainly the most direct. The best way to ensure that a prospective
juror would not automatically vote for the death penalty is to ask.”) (citation
26
omitted). The crucial inquiry is the level of specificity permitted in the manner in
which the “factual circumstances of the case” are presented to potential jurors, and
whether, in this case, the court’s ruling improperly curtailed counsel’s ability to
convey those circumstances.
This Court’s decisions in Ball and, more recently, State v. Coleman, 14-0402
(La. 2/26/16), 188 So. 3d 174, are instructive as to the level of specificity allowed
when presenting the factual circumstances of a case to a potential juror during death
qualification. In Coleman, defense counsel informed potential jurors that the state
would present evidence during the penalty phase that Coleman committed a second
murder. The state objected, and the trial court sustained the objection. This Court
quoted with approval the trial court’s reasons for sustaining the objection:
Now, I will agree with [the defense] that you may ask questions
concerning, for example, could you consider imposing a life sentence
if the facts show that the homicide was committed during a burglary?
That’s a permissible question. Could you consider imposing a life
sentence if the facts showed that the defendant attempted to kill more
than one [person]? That’s a permissible question. But you went beyond
that when you went on to say that the state is going to introduce at the
penalty phase evidence to show that a second murder was committed.
That’s far beyond the scope[.] . . .
[T]he defense and the state will be able to ask questions concerning
the general allegations in this case. For example, could you consider
a life [sentence] or a death penalty for someone convicted of murder
involving a burglary? Could you consider imposing a life [sentence]
or a death penalty for someone convicted of a murder involving more
than one? Those are permissible questions. To go beyond that,
particularly when jurors, potential jurors, have consistently shown that
they are open to any and all sentences and to go beyond that any [sic]
ask questions or pose questions of a prospective juror on specific facts
is clearly impermissible under Louisiana law and federal law.
Coleman, 14-0402, pp. 43-44, 188 So. 3d at 208 (emphasis added) (quoting
Crichton, J., then-trial court judge).13
13
The defendant’s death sentence was vacated on other grounds. See Coleman, 14-0402, pp. 78-
80, 188 So. 3d at 229-230.
27
This Court’s decision in Ball also drew a distinction between counsel
presenting jurors with a permissible “one or two circumstances which might play a
critical role in the trial” on the one hand, and, on the other, presenting a detailed
“narrative summary of what the undisputed evidence would show at trial.” 00-2277,
p. 23, 824 So. 2d at 1110. The Ball Court noted that the more descriptive and detailed
the narrative summary, the more likely counsel will run afoul of this Court’s general
rule barring pre-commitment of jurors to a particular result when counsel then asks
whether they would “consider” reaching that result. Id. The detailed narrative
summary that defense counsel used in Ball and which the majority found
problematic is illustrative of questioning that is not permissible: counsel presented
to each death qualification panel the elements of first degree murder as charged,
specifically, that defendant was charged with killing the victim, not as an accident,
but as an intentional act during an armed robbery of a barroom, disclosing that the
victim, a Budweiser beer distributor, coincidentally arrived at the bar during the
robbery, and courageously intervened when he was shot. Id. at 1104, n.12. The level
of case-specific detail used by defense counsel in Ball is well beyond what defense
counsel here presented to the jurors.
The trial court’s ruling in this case categorically prohibiting counsel from
referencing armed robbery to the jury runs afoul of Coleman and Ball. The general
allegations of the case at hand necessarily included the fact that there were two
victims and that the victims were killed during an armed robbery. Indeed, these were
the exact statutory aggravators set forth in the state’s notice of intent to seek the
death penalty. See R.S. 14:30(A)(1), (3). As such, a question posed to potential jurors
that included a reference to the charged element of armed robbery would comport
with the permissible questions quoted above in Coleman. Likewise, a general
28
reference to armed robbery does not come near the level of detail the Court found
problematic in the extensive narrative summary in Ball. The trial court’s blanket
prohibition against referencing armed robbery was therefore an abuse of discretion.
Notably, the court’s erroneous ruling came in response to a question posed by
defense counsel that was also arguably improper, at least insofar as it called for the
juror’s pre-commitment to a verdict in response to an overly specific statement of
facts. Defense counsel’s question that prompted the court’s ruling asked the jury to
consider a set of facts where “a guy goes into a bank to steal, rob the bank, and ends
up shooting a couple of people. That’s the facts, just use that as an example.” This
presentation of facts is more specific than the questions approved of in Coleman,
though not as detailed as the narrative this Court found improper in Ball. However,
instead of merely sustaining an objection to the overbroad nature of defense
counsel’s hypothetical, the court overcorrected when it prohibited any reference that
might inform the jury that the state alleged defendant committed the double murders
during the course of an armed robbery.
Defendant argues that the court’s ruling rendered his right to a “full and
complete voir dire” unconstitutionally inadequate, and points to juror Sherri Harris
as an example of an unqualified juror being seated. Defense counsel asked Ms.
Harris about one of the answers on her questionnaire that indicated she felt the death
penalty was appropriate in certain cases. She stated:
In a case where someone is defenseless like a child or an elderly person
or something like that or something just totally violent, I would not—I
mean, honestly if it’s something horrendous, there’s not even a reason
for a trial. In my mind I already have a decision made that that is not a
good choice for that person’s life. . . .
But in a child or an elderly person or something like that, someone that
totally is innocent and defenseless, then there’s no questions asked.
29
Upon further questioning, she reiterated: “I just think there are some crimes that are
so horrendous that [they] should just automatically get the death penalty.” In
response to the state attempting to revisit some of her answers, Ms. Harris noted that
she would likely be for “automatic death in cases that are very violent, in children,
and blah, blah, blah, you know.” (Emphasis added.) At the conclusion of
questioning, neither side challenged Ms. Harris.
Defendant’s argument that he was unable to effectively question Ms. Harris
during her death-qualification voir dire is persuasive. Ms. Harris made clear that she
felt some crimes automatically deserved the death penalty, particularly very violent
crimes and those involving children, and, to use her own words, “blah, blah, blah,
you know.” Because the trial court ruling prevented defendant from asking whether
a double homicide committed in the course of an armed robbery was one of those
crimes, defendant could not discern whether Ms. Harris would automatically vote
for the death penalty under the circumstances before her. In other words, the defense
could not ask whether armed robbery was one of the “blah, blah, blahs”
circumstances to which Ms. Harris was referring. See Morgan, 504 U.S. at 724 n.3
(“The ‘reverse-Witherspoon’ question may not be the only means of ensuring
defendant an impartial jury, but it is certainly the most direct. The best way to ensure
that a prospective juror would not automatically vote for the death penalty is to ask.”)
(citation omitted). Ultimately, neither side challenged Ms. Harris and she was seated
as a juror. Thus, defendant’s jury included at least one juror who, when presented
with the factual circumstances of his case, might automatically vote for death.14
14
Defendant makes a similar argument in his supplemental brief regarding seated jurors Ashley
Andrews and Patricia Borskey. During voir dire, Ms. Andrews testified that she would
automatically vote for the death penalty for “certain crime[s].” She further stated that she
“wouldn’t just impose the death penalty for any crime. It would have to be a certain crime . . . [a]
certain circumstance.” Because of the trial court’s ruling, defendant was unable to inquire if armed
30
The state responds to defendant’s argument by asserting that the trial court’s
ruling is consistent with jurisprudence that prevents counsel from “going into the
facts and then asking jurors for a commitment.” As discussed above, however,
informing potential jurors that the state alleges defendant to have committed the
double murders during an armed robbery is not an impermissible incursion into the
specific “facts” of the case so as to trigger the prohibition on seeking a pre-committal
or a prejudgment of the case. The state also notes that all of the selected jurors, even
the eight seated after the court’s ruling, demonstrated “absolute neutrality as to their
application of the death penalty.” While it is true that most jurors, when presented
with the more generalized questions of whether they could be impartial and follow
the law, answered in the affirmative, “this [C]ourt has rejected the contention that
unjustified restrictions on voir dire can be cured by a response on the part of a
prospective juror that he will follow the law as given to him by the judge when the
juror is unaware of the complexity of the law and where that law involves such a
basic right of the defendant.” State v. Hall, 616 So. 2d 664, 669 (La.1993) (citing
State v. Lee, 559 So. 2d 1310, 1316 (La. 1990); State v. Brumley, 320 So. 2d 129(La. 1975)).
robbery combined with double homicide was one of the “certain crimes” to which Ms. Andrews
referred. Though this situation is not as stark as Ms. Harris’s “blah, blah, blah,” defense counsel
may be correct that the one clarifying question they were prohibited from asking by the trial court’s
ruling is the question that could have made a difference in determining whether Ms. Andrews
would automatically vote for death in these circumstances.
The situation with Ms. Borskey is different. Defendant challenged Ms. Borskey for cause, arguing
that she could not take into account mitigating factors and based upon the fact that her son was
murdered. The trial court focused on the murder, noting that “[Ms. Borskey] knows that doesn’t
have anything whatsoever to do with this case” and pointing out that her answers did not indicate
the murder would “even come into play” in her decision-making. The court further focused on
Ms. Borskey’s comments regarding mitigating factors, indicating she would “consider everything
that’s presented to her and make a decision that she thinks is fair, because, in her words, this is
dealing with a person’s life.” Thus, the cause challenge as to Ms. Borskey appears primarily related
to the murder of her son, and only secondarily to the mitigating factors in the Morgan-Witherspoon
analysis, not the aggravating factors. See also infra, Assignment of Error Nos. 3, 4.
31
Considering the above, the trial court’s ruling restricting death-qualification
voir dire rendered the voir dire inadequate as to a critical aspect of defendant’s case:
whether a juror was predisposed to or would automatically vote for the death penalty
if he was found guilty as charged. As such, we find that the ruling was error. See
Morgan, 504 U.S. at 739 (“[T]he inadequacy of voir dire leads us to doubt that
petitioner was sentenced to death by a jury empaneled in compliance with
the Fourteenth Amendment.”) (internal quotation marks omitted).
Remedy. Defendant argues that the curtailing of his voir dire requires reversal
of both his sentences and his convictions. For the reasons that follow, we disagree,
finding the error requires only reversal of defendant’s sentences of death.
As an initial matter, federal law requires reversal of defendant’s sentences in
the context of a Morgan/Witherspoon error. See Witherspoon, 391 U.S. at 521-22(“[W]e hold that a sentence of death cannot be carried out if the jury that imposed
or recommended it was chosen by excluding veniremen for cause simply because
they voiced general objections to the death penalty or expressed conscientious or
religious scruples against its infliction.”) (emphasis added); 15 Morgan, 504 U.S. at
729 (“[B]ased on the requirement of impartiality embodied in the Due Process
Clause of the Fourteenth Amendment, a capital defendant may challenge for cause
any prospective juror who maintains such views [of voting automatically for the
death penalty]. If even one such juror is empaneled and the death sentence is
15
In declining to overturn the conviction, the Witherspoon Court explained:
We simply cannot conclude, either on the basis of the record now before us or as a matter
of judicial notice, that the exclusion of jurors opposed to capital punishment results in an
unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.
In light of the presently available information, we are not prepared to announce a per se
constitutional rule requiring the reversal of every conviction returned by a jury selected
as this one was.
391 U.S. at 517-18 (emphasis added).
32
imposed, the State is disentitled to execute the sentence.”) (emphasis added).
Because we found the trial court erred in curtailing death-qualification questioning
in violation of Witherspoon, Morgan, and Louisiana jurisprudence, we likewise find
the sentences must be reversed.
Defendant argues that the Louisiana Constitution requires more. Specifically,
La. Const. art. I, § 17 gives the accused “a right to full dire examination of
prospective jurors and to challenge jurors peremptorily.” See also State v. Divers,
94-0756 (La. 9/5/96), 681 So. 2d 320, 323 (“An erroneous ruling depriving an
accused of a peremptory challenge violates his substantial rights and constitutes
reversible error.”); State v. Taylor, 03-1834 (La. 5/25/04), 875 So. 2d 58, 62 (same);
State v. Ball, 00-2277 (La. 1/25/02), 824 So. 2d 1089 (same). This right to “full voir
dire” has been interpreted broadly. In State v. Boen, the Court stated: “The
[i]ntelligent exercise of the right of rejection, by use of those twelve peremptory
challenges, is the meat of the privilege, and can be substantially weakened by a
restriction of questions the answers to which might be regarded as informative of a
juror’s attitude and therefore of vital importance to his defense.” 362 So. 2d 519,
521 (La. 1978). See also State v. Williams, 457 So. 2d 610 (La. 1984) (“The purpose
of voir dire examination is to determine the qualifications of prospective jurors by
testing their competency and impartiality. It is designed to discover bases for
challenges for cause and to secure information for an intelligent exercise of
peremptory challenges.”). The converse of this is that peremptory challenges
exercised unintelligently do not fulfill the criminal defendant’s right to full use of
each peremptory challenge allotted to him.
Defendant claims that he was prohibited from intelligently using his
peremptory challenges because of the trial court ruling. In previous cases where we
33
have reversed both the conviction and sentence related to death qualification of
jurors, the problematic questioning arose out of erroneously denied cause challenges,
which required a defendant to exercise a peremptory challenge. As a result, there
was a clear record of why the juror should have been excused for cause. For instance,
in Robertson, defendant argued that the trial judge erred in denying his challenge for
cause of a prospective juror, thereby requiring him to exercise a peremptory
challenge. 92-2660, 630 So. 2d at 1279. This Court quoted at length the transcript
setting forth the colloquy with the prospective juror and why it was clear the cause
challenge was erroneously denied. Id. at 1281-82. Likewise, in Maxie, the defendant
similarly claimed an error in denying his challenge for cause, depriving him of the
right to use the peremptory challenge on another juror. 93-2158, p. 15, 653 So. 2d at
534. And, as in Robertson, the Court quoted at length a transcript making clear the
prospective juror should have been challenged for cause.
No such record exists here. Defendant points to four jurors (Mary Johnson,
Tammy Salter, Justin McNeely, and Elizabeth Wilson) on whom he used peremptory
challenges when “he reasonably feared [those jurors] held disqualifying bias and
would have been excusable for cause, if counsel had been able [to] pose the required
case specific questions to expose that bias.” This argument is conclusory and
requires speculation beyond which this Court will engage. Defendant points to no
specific response for any juror to indicate he exercised peremptory challenges on
them due to the erroneous restriction on voir dire. Instead, our review of the record
indicates defendant’s challenges to these jurors could have occurred for a variety of
reasons unrelated to the reverse-Witherspoon error.
Defendant initially challenged Ms. Johnson for cause, but after it was denied,
used a peremptory challenge to remove her. Defense counsel made several
34
arguments to the trial court in challenging Ms. Johnson, none of which involved the
issue of aggravating factors. Defense counsel argued to the trial court that Ms.
Johnson had a predisposition toward the death penalty. (“[I] clearly said you have
heard the case, you found him guilty what are you thinking, and she said the death
penalty. She said it twice to me.”) Defense counsel also argued that she could not
consider two of the mitigating factors, including youth. Further, she had previously
served on a capital case in which the jury had decided not to impose the death
penalty, although she stated she voted in favor of death as part of the jury. See also
infra, Assignment of Error Nos. 3, 4.
Prospective juror Ms. Salter’s questionnaire indicated a bias in favor of the
death penalty. For instance, asked to describe her feelings about imposing the death
penalty in a case were a defendant has been convicted of murder, she checked the
box: “I am strongly in favor of the death penalty and feel it should be imposed upon
conviction of murder, with very few exceptions.” She also checked off a box
indicating her feeling that the death penalty was used “not often enough,” writing:
“Someone who plans to kill & carries plan through should suffer the consequences
of death. Also, that is one less person society funds to live.” Further, when asked
whether she would look to the defense counsel to prove the defendant is not guilty,
she checked “Yes” and elaborated “That is their job to prove innocence.”
Prospective juror Mr. McNeely’s questionnaire demonstrated a similar
inclination toward the death penalty. As with Ms. Salter, asked to describe his
feelings about imposing the death penalty in a case were a defendant has been
convicted of murder, he checked the box: “I am strongly in favor of the death penalty
and feel it should be imposed upon conviction of murder, with very few exceptions.”
He also checked boxes that stated: “We are too lenient on criminals; people who
35
break the law deserve harsher punishment”; ”The death penalty is the best crime
preventative”; “People sentenced to death are not executed quickly enough”; and
“People serving life in prison don’t really serve for their life, they get out after __
[left blank] years.” Other questions could also have led defendant to exercise a
peremptory challenge on Mr. McNeely. When asked whether he believed African
American males “commit disproportionately more crimes than males of other ethnic
groups,” he marked “Yes.” He also marked “Yes” when asked “In a murder case
where the death penalty is being sought by the prosecution, do you believe the
accused is more likely to be guilty?”
As to prospective juror Ms. Wilson, defendant’s reason for exercising a
peremptory challenge on her appears to be entirely unrelated to her opinion on the
death penalty and instead related to her status as an attorney. Ms. Wilson initially
sought to be recused for hardship, explaining to the court that she is an attorney and
had depositions, hearings, and a tentative mediation scheduled for the coming weeks,
though she ultimately conceded she could make alternative arrangements. Defense
counsel later asked the judge to revisit the hardship issue, stating: “I don’t have a
challenge for cause, other than what she said about her hardship.” In any event, the
reasons in the record are scarce, if they exist at all.
In short, defendant points to nothing in the record to demonstrate he was
unable to intelligently exercise a peremptory challenge, and thereby lost a
peremptory challenge, as a result of the trial court’s erroneous ruling restricting voir
dire on the aggravating factor of armed robbery. Thus, there was no corresponding
violation of the Louisiana Constitution. As such, the trial court’s error requires
36
reversal of defendant’s death sentences, but does not necessitate a reversal of the
convictions under the Louisiana Constitution.16
Assignment of Error No. 2
Defendant asserts that the trial court erred when it failed to remove a juror
who the defense challenged for cause, contending that the juror was unable to assure
the court that the 1995 murder of her son would prevent her from being impartial.
The grounds for which a juror may be challenged for cause are set out in La.
C.Cr.P. art. 797. The relevant ground raised in this assignment of error is if “[t]he
juror is not impartial, whatever the cause of his partiality.” La. C.Cr.P. art. 797(2).
In ruling on a challenge for cause, the trial court is vested with broad discretion and
its ruling will be reversed only when the voir dire record as a whole reveals an abuse
of discretion. State v. Robertson, 92-2660 (La. 1/14/94), 630 So. 2d 1278, 1280-81;
State v. Ross, 623 So. 2d 643, 644 (La. 1993). “[A] challenge for cause should be
granted, even when a prospective juror declares his ability to remain impartial, if the
juror’s responses as a whole reveal facts from which bias, prejudice or inability to
render judgment according to law may be reasonably implied.” State v. Hallal, 557
So. 2d 1388, 1389-90 (La. 1990). Reversible error is demonstrated and prejudice is
presumed in cases in which a defense challenge for cause was erroneously denied
and the defendant ultimately exhausted his peremptory challenges. La. C.Cr.P. art.
799; Robertson, 92-2660, pp. 3-4, 630 So. 2d at 1280; Ross, 623 So. 2d at 644.17
16
Our review of the record also makes clear that any error during death qualification did not infect
general voir dire. It is unclear from the record whether the trial court’s ruling even extended to
general voir dire. And, moreover, there is no significant difference between general voir dire
questioning before and after the ruling (i.e., there was no attempt before the ruling to question
jurors about the armed robbery aggravator, and no attempt after the ruling either).
17
This rule is different at the federal level. See United States v. Martinez-Salazar, 528 U.S. 304(2000) (exhaustion of peremptory challenges does not trigger presumption of prejudice arising
from district court’s erroneous denial of cause challenge). However, at the federal level a defendant
may choose whether to exercise a peremptory challenge to cure the error, or to seat the juror and
37
Here, defendant exhausted his peremptory challenges; thus, he need only show that
the trial court abused its discretion when it denied any one of his cause challenges.
In her juror questionnaire, prospective juror Patricia Borskey disclosed that,
in 1995, her son was involved in a fight wherein he was punched, fell and hit his
head, and ultimately died as a result of his injuries. During voir dire, Ms. Borskey
explained the circumstances of her son’s death: her son left a restaurant with a group
of people, some of whom were white, and some of whom were black. Someone
outside the restaurant made a reference to a black girl being with her son’s group.
Ms. Borskey’s son went back to talk to the man, which ultimately resulted in a
physical altercation. Her son was “sucker-punched,” fell, and hit his head on the
street. He was on life support for a week before Ms. Borskey ultimately “let him go.”
Ms. Borskey further explained that her son was “in with some skin heads,” and that
there was a truckload of skin heads coming down to kill the man who had punched
her son. Knowing this, the man turned himself in, but did not go to trial. Defense
counsel first questioned Ms. Borskey concerning whether “the fact that [her] son
was killed” would “be a problem” for her. She responded negatively, explaining that
“My son’s death was a different situation.” Defense counsel later questioned Ms.
Borskey about her ability to remain impartial; specifically whether, after hearing
victim impact testimony, she could still be objective or was going to be “so
emotionally tied in this combination with your son?” Ms. Borskey replied, “I’d like
to say no, but I really can’t answer that question truthfully because I have never done
this.” She was not questioned further on this topic.
then raise the error on appeal if convicted. Id. at 315. In Louisiana, however, a defendant must use
one of his peremptory challenges curatively to remove the juror, thus reducing his remaining
peremptory challenges, or waive any complaint on appeal. See, e.g., State v. Connolly, 96-1680,
p. 8 (La. 7/1/97), 700 So. 2d 810, 818.
38
Defendant challenged Ms. Borskey for cause, arguing that Ms. Borskey stated
that she would not give weight to certain mitigating circumstances such as education
and background, and that she was therefore disqualified for service. Defendant also
argued that Ms. Borskey would be unable to remain impartial in light the fact that
her son was murdered, which remained “emotional for her.” The court denied the
challenge, noting that Ms. Borskey went into “great detail” concerning her son’s
murder, and specifically stated that she knew it had nothing “whatsoever to do with
this case.” The court further noted that she started out by saying that she could keep
an open mind, and that the totality of her answers indicated that she would take this
very seriously and consider everything presented to her.
That a prospective juror personally has been the victim of a crime will not
necessarily preclude that prospective juror from serving on a jury. State v. Dorsey,
10-0216, p. 3 (La. 9/7/11), 74 So. 3d 603, 631. A prospective juror’s relationship to
a person who was the victim of a crime likewise does not disqualify a prospective
juror from serving. See id.; State v. Nix, 327 So. 2d 301, 326 (La. 1975) (prospective
juror’s relationship to a murder victim insufficient to establish cause for excusing
venireman). Given that Ms. Borskey stated her ability to remain impartial, and to
accept and apply the law given by the court, including keeping an open mind and
considering everything presented to her, the record does not support defendant’s
claim that she should have been excused on the basis of her son’s murder.
Assignments of Error Nos. 3, 4
Defendant argues that the trial court erred by denying cause challenges to
three prospective jurors who gave answers during voir dire that indicated they were
unwilling to consider mitigating evidence or fairly consider mitigating evidence
39
under the circumstances of the case. Defendant also contends that this error deprived
him of the right to intelligent exercise of his peremptory challenges.
As discussed above, in ruling on a challenge for cause, the trial court is vested
with broad discretion and its ruling will be reversed only when the voir dire record
as a whole reveals an abuse of discretion. Robertson, 92-2660, 630 So. 2d at 1281;
Ross, 623 So. 2d at 644. A prospective juror should be excluded if his views on
capital punishment would “prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath.” Witherspoon, 391
U.S. 510; Witt, 469 U.S. at 424; Sullivan, 596 So. 2d 177, rev’d on other grounds,
508 U.S. 275. Jurors who cannot consider both a life sentence and a death sentence
are “not impartial,” and cannot “accept the law as given . . . by the court.” La. C.Cr.P.
art. 797(2),(4); Taylor, 99-1311, p. 8, 781 So. 2d at 1214; Maxie, 93-2158, p. 16,
653 So. 2d at 534-35. A trial court’s refusal to disqualify a prospective juror does
not constitute reversible error or an abuse of discretion if, after further examination
or rehabilitation, the juror demonstrates willingness and ability to decide the case
fairly according to the law and evidence. State v. Howard, 98-0064, p. 7 (La.
4/23/99), 751 So. 2d 783, 795; Robertson, 630 So. 2d at 1281. Further, a prospective
juror who simply indicates a personal preference for the death penalty need not be
stricken for cause. State v. Tate, 01-1658, pp. 17-18 (La. 5/20/03), 851 So. 2d 921,
936; State v. Lucky, 96-1687, p. 6 (La. 4/13/99), 755 So. 2d 845, 850.
We now turn to a discussion of each of the seated and prospective jurors that
defendant challenges in this assignment of error.
A. Patricia Borskey
With respect to seated juror Patricia Borskey, in addition to his above
argument concerning the murder of Ms. Borskey’s son, defendant argues that she
40
would not give meaningful consideration to evidence about defendant’s background
offered in mitigation. Defendant specifically points to the following exchange
between defense counsel and Ms. Borskey:
Borskey: I don’t know that background and education really matters,
because there have been people that were well educated that in
the heat of the moment committed a crime, as well as those that
have come up rough and hard and didn’t get an education that
have done the same type of crime. So I don’t think, myself,
background and education has any sway in it whatsoever.
Defense: And that would be a mitigating circumstance. So you’re saying
you could not consider that?
Borskey: I just don’t think it really would sway.
The state then questioned Ms. Borskey further, asking whether she would be willing
to consider such evidence. She responded that she would be “willing to hear it, be
willing to consider it, but how much it weighs, you know, against one way or the
other would be something I’d have to really put a lot of thought into.”
Despite defendant’s assertions to the contrary, Ms. Borskey clearly stated that
she would consider such mitigating evidence, but that she was not sure how much
weight it would carry for her. The fact that a juror may not give as much weight to
some mitigating circumstances as a defendant would have liked is not an indication
of her unsuitability for service. Coleman, 14-0402, p. 63, 188 So. 3d at 219; see also
La. C.Cr.P. art. 797. Defendant shows no error in the trial court’s denial of his
challenge for cause to Ms. Borskey.
B. Mary Johnson
Defendant argues that prospective juror Mary Johnson had a disqualifying
predisposition toward the death penalty and testified that she would not consider
youth as a mitigating factor. Defendant notes that although Ms. Johnson initially
responded that she could keep an open mind, she later stated that she would be
41
predisposed to the death penalty after finding a defendant guilty of intentionally
killing more than one person, and she could not consider youth or intoxication in
mitigation. Defendant used a peremptory challenge to remove Ms. Johnson.
Ms. Johnson first explained that she had previously served on a jury in a
capital case in which the jury had decided not to impose the death penalty, although
she voted in favor of death. She further stated that despite that experience, she could
keep an open mind about this case and she saw no reason why she could not give
both sides a fair chance. Upon questioning by defense counsel concerning whether
she would be predisposed toward the death penalty if defendant were found guilty
of first degree murder with more than one victim, she replied “not necessarily” and
that “it would be dependent on what all was throughout the trial.” Upon defense
counsel’s rephrasing of the question to indicate the evidentiary/guilt phase of the
trial would be over at that point, Ms. Johnson responded she would “probably” be
predisposed to the death penalty, but she could also consider mitigating
circumstances. When specifically asked if she could consider age, however, Ms.
Johnson responded, “No.” Defense counsel ended questioning by asking, again,
whether Ms. Johnson would be predisposed to the death penalty, to which she
answered “probably, yes.”
The state redirected, and asked whether, just based on a finding of guilty, Ms.
Johnson would “necessarily” impose the death penalty, to which she replied, “no,
not necessarily.” She further confirmed that she would give meaningful
consideration to the age of the offender despite her previous answer to defense
counsel. Upon follow-up questioning from defense counsel, Ms. Johnson again
stated that if defendant was found guilty of first degree murder involving more than
42
one victim, she would “probably” be predisposed to the death penalty but she would
need more facts, and that she is predisposed to the death penalty “most of the time.”
Defendant challenged Ms. Johnson for cause, arguing that she was
predisposed to the death penalty and would not consider two mitigating
circumstances. The court denied the challenge, and found that the only time she said
she was predisposed was when defendant “gave her the worst possible case
scenario[.]”
Ms. Johnson’s answers, while somewhat contradictory, did not rise to the
level of indicating that she would not be able to remain fair and impartial. After the
law was more fully explained to her, she confirmed she would consider the
mitigating circumstances and would keep an open mind. As noted above, a
prospective juror who simply indicates a personal preference for the death penalty
need not be stricken for cause. Tate, 01-1658, pp. 17-18, 851 So. 2d at 936; Lucky,
96-1687, p. 6, 755 So. 2d at 850. Considering all the above, defendant fails to show
the trial court abused its discretion in denying this challenge for cause.
C. Sean Singleton
Defendant argues that the trial court erred in denying his challenge for cause
to prospective juror Sean Singleton, because his answers indicated that his views on
capital punishment substantially impaired his ability to follow the law and give
meaningful consideration to mitigation, including defendant’s youth. Defendant
used a peremptory challenge to remove Mr. Singleton.
Defense counsel asked Mr. Singleton if it would be important to him to
consider the age of the offender in determining whether to vote for life or death. Mr.
Singleton replied, “No. No. The age is not—no, no, that’s not. That’s not a
determinant for me, no. The age hasn’t anything to do with it.” The state then
43
questioned Mr. Singleton again, and, after informing him that he would have to
meaningfully consider all enumerated mitigating circumstances, Mr. Singleton
acknowledged he would consider and weigh all of the circumstances along with all
of the other facts of the case. Specifically with respect to age, Mr. Singleton replied
that “Of course, I would consider it. . . . I’ll consider it but I’m just not going to let
that just be my final, you know, just that helps me to make my mind up.” Defense
counsel followed-up with Mr. Singleton asking whether he could “honestly consider
age, as a reason to spare the life?” Mr. Singleton replied that he could put that “into
the equation” and that he would definitely consider it and do so without hesitation.
After Mr. Singleton became aware that the law required him to give
meaningful consideration to all mitigating circumstances, his answers clearly
indicate a willingness to consider the age of the offender in determining whether to
impose a life sentence or the death penalty. In denying defendant’s challenge for
cause, the trial court stated: “[H]e said he would listen to everything. He did say he
would consider the age. He would consider all of that. Based on his answers as a
whole I deny the challenge.”
The record supports the trial court’s reasons for denying these challenges, and
defendant shows no abuse of discretion in the trial court’s denial of this challenge
for cause. Accordingly, there is likewise no error with respect to defendant’s right
to the intelligent exercise of his peremptory challenges as to these jurors.
Assignment of Error No. 5
Defendant argues that the trial court committed reversible error when it
granted three state challenges for cause to three prospective jurors who disapproved
of the death penalty, despite voir dire testimony from the excused jurors
demonstrating that they could vote for either life imprisonment or the death penalty.
44
La. C.Cr.P. art. 798, 18 which governs cause challenges made by the state, was
drafted to conform to the constitutional requirements of Witherspoon v. Illinois,
supra, which held that a prospective juror who would vote automatically for a life
sentence is properly excluded. The basis of exclusion under La. C.Cr.P. art.
798(2)(b), which incorporates the Witherspoon standard, as clarified by Witt, is that
the juror’s views “would prevent or substantially impair him from making an
impartial decision as a juror in accordance with his instructions and his oath.” 469
U.S. at 424. Witherspoon further dictates that a capital defendant’s rights under the
Sixth and Fourteenth Amendments to an impartial jury prohibits the exclusion of
prospective jurors “simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against its infliction.” Id.,391 U.S. at 522-23.
We will now discuss each of the prospective jurors that defendant challenges.
A. Karla Kiper
Ms. Kiper, in response to initial questioning by the court, stated that she was
not sure whether she could fairly consider imposing the death penalty due to her
moral and religious feelings concerning the death penalty. In response from
questioning by the state, Ms. Kiper further stated that she “would want to stay away
18
La.C.Cr.P. art. 798 provides, in pertinent part:
It is good cause for challenge on the part of the state, but not on the part of the
defendant, that: . . . .
(2) The juror tendered in a capital case who has conscientious scruples against the
infliction of capital punishment and makes it known:
(a) That he would automatically vote against the imposition of capital punishment
without regard to any evidence that might be developed at the trial of the case before
him;
(b) That his attitude toward the death penalty would prevent or substantially impair
him from making an impartial decision as a juror in accordance with his instructions
and his oath; or
(c) That his attitude toward the death penalty would prevent him from making an
impartial decision as to the defendant’s guilt[.]
45
from the death penalty,” and that in her mind the state “would be at a disadvantage
because [she doesn’t] know if [she] could vote for someone to go to the death
penalty.” She further confirmed that she was philosophically opposed to the death
penalty, and reiterated this throughout the remainder of the state’s questioning, as
well as during defense counsel’s questioning.
Despite this, defendant argues that Ms. Kiper’s answers on her juror
questionnaire were much less definitive on the issue. She gave examples in her
questionnaire of when she felt the death penalty would be appropriate, and included
“when the crimes are planned, very violent, and when perpetrators demonstrate no
remorse or regard for life.”
The state challenged Ms. Kiper for cause, and the court granted the state’s
challenge. The court noted that although her questionnaire answers and her in-court
testimony varied a great deal, Ms. Kiper stated that she had thought a lot about it
since she filled out the questionnaire. The court also noted that her body language
and discussion of her moral, religious and philosophical feelings against the death
penalty all implied that she would be substantially impaired in making that decision.
Although Ms. Kiper’s questionnaire answers are slightly less conclusive than
her subsequent in-court statements, the record as a whole supports the trial court’s
ruling. Notably, the court considered Ms. Kiper’s body language as one factor in
determining that she would be substantially impaired in making a decision in the
penalty phase, and defendant does not show that the trial court abused its discretion
in granting the state’s challenge. See, e.g., State v. Wessinger, 98-1234 (La. 5/28/99),
736 So. 2d 162, 176, (no abuse of discretion in granting challenge to juror who
showed “obvious discomfort at the mere thought of possibly having to consider
46
imposing the death penalty on another human being” because answers show that her
beliefs could indeed “substantially impair” her from fulfilling her duties as a juror).
47
B. Sakina Browder
Defendant argues that Ms. Browder would have readily imposed the death
penalty in many types of cases, and that she testified she would consider it in the
type of case at bar. As such, defendant argues that the trial court erroneously granted
the state’s challenge for cause with respect to Ms. Browder.
During the court’s initial questioning of Ms. Browder, she stated: “I could
consider both, but I don’t think it’s my place to decide if somebody live[s] or die[s].”
When the court asked if she could consider the death penalty, she replied “I don’t
think I could. . . . No.” She then qualified that answer to explain that she does not
think she could consider the death penalty “unless it was dealing with a child or
something. But other than that, no, I don’t think I could.” Ms. Browder never
significantly wavered from this view throughout the state and the defense’s
questioning. She clarified that although she told defense counsel she would consider
the death penalty, she would listen to the evidence but would not actually vote for
the death penalty.
The trial court granted the state’s challenge for cause as to Ms. Browder,
noting that although she did say that she could listen to everything, “[t]he bottom
line is she said she could never vote for the death penalty.” The court’s ruling is
supported by the record, and because Ms. Browder indicated that she would
automatically vote for a life sentence except in cases dealing with children or elderly
victims, the trial court did not err in granting the state’s challenge for cause with
respect to Ms. Browder. La. C.Cr.P. art. 798(2)(a); Witherspoon, supra.C. Karen Allen
Ms. Allen engaged in an in-depth discussion regarding her views on capital
punishment. During the court’s questioning, Ms. Allen stated that something she has
48
often said in her life is that she is “not someone’s judge or jury,” and that she would
“potentially” be an automatic vote for a life sentence. During the state’s questioning,
she explained that she is Catholic and worked for a Catholic-based healthcare
organization. She further stated that her work and religion would potentially prevent
her from returning a death sentence. Upon further questioning, Ms. Allen stated that
she did not know if she could vote for the death penalty. Defense counsel then
questioned Ms. Allen, and in response to the question of whether she could consider
both the death penalty and life without parole, she responded, “Consider both of
those? Yes.” Immediately thereafter, however, when asked if she could vote for the
death penalty if she felt like it was appropriate, Ms. Allen responded that she was
not sure. The court then asked Ms. Allen one final question: “Would your beliefs
substantially impair you in making that decision?” to which Ms. Allen replied, “I
think because of my own experiences as a child, I really think so.”
The state challenged Ms. Allen for cause, arguing that she would be
substantially impaired from voting for the death penalty. Defense counsel countered
by arguing that her religious views were not a reason to disqualify her from service.
The court responded and granted the challenge, giving the following reasons:
[La.C.Cr.P. art. 798] thinks [religious views] is [a reason for
disqualification] when they put in there that’s one of the reasons for a
challenge for cause, if their views would substantially impair them from
making an impartial decision. I mean, that’s what all these other
questions are trying to get to. After listening to all the other answers—
and every question—I know it doesn’t show up on the record because
it’s just a transcript. She was really struggling with her answers on that,
bending over backwards to make sure that she answered it correctly,
according to what she believed. That’s the impression I got from it. And
she specifically told me that she thought it would substantially impair
her. She also explained some of the reasons why. She’s Catholic. She
works for a Catholic charity—or not charity but a healthcare
organization. And I believe her answers. And based on all of them, I
grant that challenge.
49
The record shows that Ms. Allen was uncomfortable with the death penalty,
and repeatedly stated that she was very unsure if she could vote for the death penalty.
Moreover, the trial court appears to have, in part, relied on its own observations of
Ms. Allen’s body language, which is impossible to glean from a transcript. The
totality of her answers supports the court’s finding that Ms. Allen’s beliefs would
substantially impair her ability to be impartial, and defendant fails to show that the
court abused its discretion in granting this challenge. La.C.Cr.P. art. 798(2)(b); see
Wessinger, 98-1234, 736 So. 2d at 176.
Assignments of Error Nos. 6, 7
In these assignments of error, defendant argues the state impermissibly struck
seven black potential jurors based upon their race. As a result, he argues, although
the parish is nearly 50% black, only two black people served on the jury in this
interracial murder case. Defendant raised Batson objections to all seven strikes.
In Batson v. Kentucky, 476 U.S. 79, (1986), the Supreme Court held that it is
an equal protection violation for the state to exercise its peremptory strikes to remove
jurors from the venire panel solely on the basis of the juror’s race. Batson provides
a three-step process to guide courts faced with a claim of racial discrimination in the
voir dire process:
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race[; s]econd, if that
showing has been made, the prosecution must offer a race-neutral basis
for striking the juror in question[; and t]hird, in light of the parties’
submissions, the trial court must determine whether the defendant has
shown purposeful discrimination.
Foster v. Chatman, --- U.S. ---, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v.
Louisiana, 552 U.S. 472, 476-77 (2008)). 19 The burden of persuasion never shifts
19
In certain instances, where the state volunteers race-neutral reasons for its strike, the court may
collapse steps one and two of the Batson analysis, see Hernandez v. New York, 500 U.S. 35250
from the opponent of the strike. However, after establishing a prima facie case of
racial discrimination, the burden of production shifts to the proponent of the strike
to articulate race-neutral reasons for its actions. “The neutral explanation must be
one which is clear, reasonable, specific, legitimate and related to the particular case
at bar.” State v. Collier, 553 So.2d 815, 820 (La. 1989) (adopting the holding of
Batson). If a race-neutral explanation is tendered, the trial court must decide whether
the defendant has proven purposeful discrimination. Purkett v. Elem, 514 U.S. 765(1995) (per curiam) (citations omitted). A reviewing court owes the district judge’s
evaluations of discriminatory intent great deference and should not reverse them
unless they are clearly erroneous. Hernandez v. New York, 500 U.S. 352, 364 (1991);
Batson, 476 U.S. at 98, n.21 (“Since the trial judge’s findings in the context under
consideration here largely will turn on evaluation of credibility, a reviewing court
ordinarily should give those findings great deference.”).
The race-neutral explanation does not need to be persuasive, and unless a
discriminatory intent is inherent in the explanation, the reason offered will be
deemed race-neutral. Purkett, 514 U.S. at 768. The Hernandez court explained:
A neutral explanation in the context of our analysis here means an
explanation based on something other than the race of the juror. At this
step of the inquiry, the issue is the facial validity of the prosecutor’s
explanation. Unless a discriminatory intent is inherent in the [party’s]
explanation, the reason offered will be deemed race neutral.
Hernandez, 500 U.S. at 359.
In this case, after questioning over 150 individuals during Witherspoon death
qualification, 47 panelists remained for general voir dire. Of the 47, 15 were black,
(1991); State v. Green, 94-0887, p. 25 (La. 5/22/95), 655 So. 2d 272, 288 (“A trial judge’s demand
that a prosecutor justify his use of peremptory strikes is tantamount to a finding that the defense
has produced enough evidence to support an inference of discriminatory purpose.”).
51
two were Hispanic, and 30 were white. These 47 panelists were split into five groups
to cover general voir dire topics. Defendant filed a written Batson motion after the
second round of general voir dire, in which he challenged the state’s first six
peremptory strikes, five of which were used to exclude black panelists, and one for
a Hispanic panelist.20
In hearing that motion, the trial court found that the defense had not made a
prima facie showing of discriminatory intent, but because “someone else will be
looking at this,” ordered the state to offer race-neutral reasons anyway. The court
heard the state’s reasons, found them to be race-neutral, and after hearing rebuttal
from defense counsel, denied the challenges.
The state used its seventh peremptory challenge to strike black female Lanell
Craig after the third round of general voir dire, and the defense objected pursuant to
Batson. The court found that defendant failed to make a prima facie showing,
pretermitting any further discussion.
Finally, after the fourth round of general voir dire, the state used its eleventh
peremptory strike on black male Michael Smith, and defendant again raised a Batson
objection. Again, the court did not find a prima facie case of discrimination, but still
ordered the state to provide a race-neutral reason. The court found the state’s reason
race neutral, and denied the motion. The seated jury ultimately consisted of nine
white jurors, two black jurors, and one Hispanic juror.
Notably, while the presence of one minority juror on the panel does not alone
defeat a Batson challenge, it remains a relevant circumstance for the court to
20
The state exercised three peremptory strikes after the first round of general voir dire, and three
after the second round.
52
consider in assessing the prosecutor’s overall intent. State v. Duncan, 99-2615, p. 27
(La. 10/16/01), 802 So. 2d 533, 552.
As an initial matter, with the exception of the Batson motion concerning
Lanell Craig, the court ordered the state to provide race-neutral reasons for each
strike at issue, even though it specifically found that defendant had failed to make a
prima facie case. Thus, although the trial court took the position that the Batson
claims therefore never reached step two in the analysis, the court nevertheless
solicited and considered the prosecutor’s articulated race-neutral reasons (again,
with the exception of Lanell Craig), and, after defense rebuttal, found the state’s
reasons sufficient and effectively ruled on the ultimate issue of discriminatory intent.
Defendant’s argument that the trial court erred in failing to find that defendant had
made a prima facie showing of discriminatory intent––with the notable exception of
Lanell Craig––is therefore moot. Hernandez, 500 U.S. at 359; Green, 94-0887, p.
25, 655 So. 2d at 288.
Each challenge is discussed below.
A. Brandi Guidry
The state used its first peremptory challenge to remove Brandi Guidry, a black
female. In her questionnaire, Ms. Guidry indicated that she is an opponent of the
death penalty, writing “I do not believe in capital punishment” four times; checking
the box next to “I am personally, morally, or religiously opposed to the death penalty
and would never vote for the death penalty under any circumstances;” and indicating
that she would agree if the legislature abolished the death penalty. Despite these
written answers, during the individual death qualification stage, Ms. Guidry
backtracked. When asked if she was against capital punishment, she initially
responded “I said that because I feel like each party has the opportunity to be heard.
53
If after I hear the evidence presented in the trial, I may believe in capital punishment.
I can go either way.” She further indicated that “under the right circumstances,” she
could vote for the death penalty. Under questioning from defense counsel, she
indicated that she had not pre-committed to a penalty. Upon questioning from the
court as to what had changed since the time she filled out the questionnaire, Ms.
Guidry stated that she did not have any information to persuade her towards
imposing the death penalty when she filled out the form and that she would not vote
to give someone the death penalty without any information surrounding the case.
The state challenged Ms. Guidry for cause on the basis of her answers on the
questionnaire. The court denied the challenge because, despite her answers on the
form, she stated in court that she would consider everything.
In offering its reasons for striking Ms. Guidry, the state explained that she was
adamantly opposed to the death penalty on her questionnaire, citing the multiple
times she had written that she did not believe in capital punishment but then had a
“complete about-face after reading an article on the internet.” The state explained
that her drastic change in opinion was the reason for the strike. Though defendant
correctly points out that the state erred in asserting that Ms. Guidry attributed her
change in heart to an internet article,21 and asserts that this misrepresentation by the
state is further evidence of the state’s discriminatory intent, the record supports the
state’s assertion that it decided to strike Ms. Guidry because of the “about-face” in
her stated ability to impose a death sentence.
Defendant further argues that seated white juror Patti Suire also gave answers
21
To the contrary, Ms. Guidry was adamant that nothing in particular sparked the change. It is
possible that the state confused this juror with Ms. Malancon, discussed below, who stated that she
was concerned about the death penalty in part due to the cost, which she read about in an article.
54
that differed from her initial questionnaire, and yet the state accepted her. Defendant
asserts that this disparate treatment of a similarly situated juror is further evidence
of the state’s discriminatory intent. A review of the questionnaire and voir dire
responses reveals that these jurors were not similarly situated. Ms. Suire’s responses
on her questionnaire concerning the death penalty were more equivocal than Ms.
Guidry’s. Whereas Ms. Guidry was adamantly (and repeatedly) opposed to the death
penalty in her questionnaire, Ms. Suire indicated she was merely “unsure.” She
responded she was “not sure” of her opinion concerning the death penalty and the
best reasons to impose the penalty; she believed the death penalty was used
“appropriately;” and checked the box next to the statement “I am not opposed to the
death penalty, but feel it should be used as a punishment for murder in only very
special cases.” During questioning, Ms. Suire responded that she would not be
predisposed to either a life or a death sentence, but that she could vote for death and
would be “comfortable” making that decision if it came down to it.
Thus, though Ms. Suire seemed somewhat unsure (albeit, supportive of the
death penalty) in her responses on the questionnaire, her responses during
questioning merely shored up any uneasiness. Unlike Ms. Guidry, Ms. Suire did not
display a complete reversal of her beliefs between filling out her questionnaire and
answering individual questions during voir dire. Defendant therefore fails to show
any disparate treatment of a similarly situated white juror.
In sum, the record supports the notion that Ms. Guidry did in fact have a
significant change in opinion between her questionnaire and in-court statements. The
totality of Ms. Guidry’s responses left the state with questions as to Ms. Guidry’s
position on the death penalty and whether she could actually vote to impose it. Given
that uncertainty, the state’s decision to excuse Ms. Guidry peremptorily does not
55
appear to have been founded on race, and no discriminatory intent appears to have
been at play. See State v. McCoy, 14-1449, p. 84 (La. 10/19/16), 218 So. 3d 535,
593, rev’d on other grounds, McCoy v. Louisiana, 16-8255, --- U.S. ---, 138 S. Ct.
1500 (2018). Accordingly, defendant fails to show any Batson violation with respect
to Ms. Guidry’s removal.
B. Ernest Watson
The state used its second peremptory challenge to strike Ernest Watson, a
black male. In his questionnaire, Mr. Watson left large portions pertaining to the
death penalty blank. He did indicate that he felt the death penalty was used unfairly,
and that he was personally, morally, or religiously opposed to the death penalty and
would have difficulty making an impartial decision about the defendant’s guilt or
innocence if the death penalty were a possible sentence. During death qualification
questioning, Mr. Watson stated that he would consider both the death penalty and a
life sentence, and that he would not automatically vote for one or the other; that he
felt the death penalty has been used unfairly in “certain cases,” though he could not
give a particular case; he agreed the death penalty was appropriate in certain cases;
he felt that “a person that’s incarcerated for the rest of their life, to me that’s death
anyway;” the death penalty is “kind of let[ting] them off a little bit easier;” he would
be more inclined to go with a life sentence, though it would not be automatic either
way; a person’s youthfulness might sway him towards the death penalty, and he
would not consider a person’s age as a reason to consider a life sentence. Upon
further questioning by the state as to why he felt the death penalty had been used
unfairly, he explained that, years ago, he felt that it was racist.
In offering its reasons for striking Mr. Watson, the state informed the court
that Mr. Watson had indicated on his questionnaire that he was personally, morally,
56
or religiously opposed to the death penalty and would have difficulty making an
impartial decision about the defendant’s guilt or innocence if the death penalty were
a possible sentence; that he left several questions related to the death penalty blank
on his questionnaire; that he could not give any examples of why he thought the
death penalty was used unfairly; and that, several times, he stated that the death
penalty is easier than a life sentence and an “easy way out.”
Considering Mr. Watson’s answers (and lack thereof on his questionnaire) in
their entirety, his responses align with the state’s assertion that he was inconsistent
in his position and support the state’s explanation for striking him. See State v.
Juniors, 03-2425 at pp. 31-32, 915 So. 2d at 318 (Although “an equivocal response
in answer to whether [a prospective juror] could legitimately consider voting for
death . . . may not have risen to the level of a sustainable challenge for cause, it does
support the race-neutral reasons furnished by the State after defense counsel objected
on Batson grounds to the peremptory strike against [the prospective juror].”). See
also Uttecht v. Brown, 551 U.S. 1 (2007) (“[W]hen there is ambiguity in the
prospective juror’s statements,” the trial court is “entitled to resolve it in favor of the
State.”). Defendant shows no error in the court’s denial of his Batson challenge with
respect to Mr. Watson.
C. Morgan Weir
The state used its third peremptory challenge to strike Morgan Weir, a black
female. In her questionnaire, Ms. Weir indicated that the death penalty is “sad” but
sometimes necessary; the best reasons to impose the death penalty are if the person
has shown themselves to be a threat to others multiple times and all other actions
have been exhausted; the best reasons not to impose the death penalty are if the
person is remorseful and takes responsibility for the crime; the death penalty is
57
appropriate when a defendant “just cannot stop harming others;” and she would be
“shocked, yet slightly relieved” if Louisiana abolished the death penalty. During her
death qualification questioning, Ms. Weir stated that she agrees with the fact that the
death penalty is an option for certain murders, including when more than one person
was murdered and when the defendant is not going to stop hurting others; she is open
to considering all aggravating and mitigating circumstances; and, how young the
defendant is would be relevant to her in determining an appropriate penalty.
During her general voir dire questioning, when asked whether she thought it
was “fair” to use an investigation technique where a detective would lie to a suspect
and tell him that another suspect had told police that he was the perpetrator, in order
to extract a confession, Ms. Weir responded by asking: “Can you define fair?” When
told this was about her own personal opinion, Ms. Weir responded that “I guess so,
yeah,” to the question of whether she would consider such an inculpatory statement
as evidence. Later, when defense counsel again asked about opinions on police
officers lying to suspects in order to extract statements, Ms. Weir stated that “I don’t
know. I’m not going to say I’m okay with it.” When defense counsel followed up by
asking whether “it” is something she would consider in making her decision, Ms.
Weir responded, “I’d consider everything, so, yes.”
When instructed to offer its reasons for striking Ms. Weir, the state explained
that “she expressed a great deal of concern through body language as well as her
comments on the record” as to the police interrogation techniques involving
misrepresentations; she asked a question about the difference between first and
second degree murder; she “expressed a very serious concern about imposing the
death penalty and when it might be necessary;” she felt the best reason to impose the
death penalty was if the person was “a threat to others multiple times and all other
58
options have been exhausted”; she felt remorse and taking responsibility were
reasons not to impose the death penalty; and, again, she “she would need to know
this person is not going to stop hurting people” in order to impose the death penalty.
The state further explained its concern that in light of the planned defense mitigation
witnesses, “Ms. Weir’s focus on whether or not this individual will stop hurting
people would take a priority in her mind over what this man actually did.”
As an initial matter, defendant is correct that the state’s characterization of
Ms. Weir as having a “very serious concern” about imposing the death penalty is an
overstatement. Both Ms. Weir’s responses on the questionnaire and during
questioning indicated that she felt the death penalty was appropriate in certain
circumstances. Though she never gave an exhaustive list of what she considered
those circumstances to be, when asked for an example, she responded that one such
circumstance would be when a person is “just not going to stop hurting other
people.” Similarly, on her questionnaire when asked what she felt was the best—but
not the only—reason to impose the death penalty, she answered, “if the person has
shown themselves to be a threat to others multiple times and all other options have
been exhausted.”
Thus, the state’s justification for striking Ms. Weir—because “she would need
to know this person is not going to stop hurting people [in order to vote for the death
penalty],”—is a mischaracterization of her responses, and is unpersuasive as a
genuinely race-neutral justification for striking Ms. Weir. Moreover, despite the
state’s apparent concern over Ms. Weir’s responses, the state never questioned Ms.
Weir concerning these responses, which this Court has found to be an indication of
discriminatory intent. See State v. Harris, 01-0408, p. 8 (La. 6/21/02), 820 So. 2d
471, 476 (that potential jurors are challenged on the basis of a claimed bias, without
59
being questioned about such bias, raises a strong inference of exclusion on the basis
of race alone); State v. Collier, 553 So. 2d 815, 822 n.11 (La. 1989).
Defendant also points out that although the state gave several reasons for
striking Ms. Weir, there were several white jurors (Nella Barnard, Patrice Saucier,
and Malcolm Jarrell), none of whom the state struck, who gave similar answers that
indicated they would want to know a person’s proclivity for violence and risk of
recidivism in determining whether to impose a life sentence or the death penalty.
The fact that the state did not strike similarly situated white jurors is not, alone,
grounds to find the reason for the strike pretextual. See State v. Juniors, 03-2425, p.
31 (La. 6/29/05), 915 So. 2d 291, 317-18 (“[T]he fact that a prosecutor excuses one
person with a particular characteristic and not another similarly situated person does
not in itself show that the prosecutor’s explanation was a mere pretext for
discrimination. The accepted juror may have exhibited traits which the prosecutor
could have reasonably believed would make him desirable as a juror.”) (citing State
v. Collier, 553 So. 2d at 822).
Here, each white juror whom defendant argues gave similar answers differed
significantly enough from Ms. Weir so as to preclude any meaningful comparison
and negate any inference of discriminatory intent. See, e.g., Hebert v. Rogers, 890
F.3d 213, 223 (5th Cir. 2018) (“While a comparator-juror is not required to be
identical in all regards, the comparator-juror must be similar in the relevant
characteristics.”). Patrice Saucier, for example, answered that the best reason for
imposing the death penalty was “if there is no doubt that he/she would impose this
on another victim,” similar to Ms. Weir, but also indicated she thought the death
penalty was used appropriately, failed to list any reasons why the death penalty
should not be imposed or any circumstance when a life sentence without parole
60
would be appropriate, and indicated that she was “generally in favor of the death
penalty and feel it should be imposed upon conviction of murder, with very few
exceptions.” Defendant exercised a peremptory challenge on Ms. Saucier.
Likewise, with respect to seated white juror Mr. Jarrell, the only time Mr.
Jarrell referenced recidivism during his questioning was when the prosecutor asked
him what type of things he would like to hear during the penalty phase to help him
decide whether to impose a life sentence or the death penalty. In response to that
question, Mr. Jarrell listed several things that would be important to him, one of
which was “whether they would be a danger to other people in a correctional system,
that type of thing.” This statement arguably reflects a concern for the state’s ability
to incarcerate a defendant safely, and does not necessarily imply a concern for
general recidivism. Whereas Ms. Weir referenced a defendant’s propensity to
continue harming others more than once in her questionnaire and during voir dire,
this was Mr. Jarrell’s only reference to recidivism. Nonetheless, even if Ms. Weir
and Mr. Jarrell could be considered similarly situated in terms of their views on
recidivism, defendant fails to point out that Mr. Jarrell differed in other ways from
Ms. Weir. Notably, Mr. Jarrell agreed with the statement, “We are too lenient on
criminals; people who break the law deserve harsher punishment.” Additionally,
when asked how he would feel if Louisiana repealed the death penalty, he remarked
that he “prefer[s] the state keep the death penalty as an option.”
Ms. Barnard, a seated white female juror, placed little emphasis on recidivism
or reform in either her questionnaire responses or during voir dire. Ms. Barnard
indicated on her questionnaire that death would be an appropriate punishment for a
premediated murder or a murder of a child, though life imprisonment would be
appropriate for “multiple violent offenses,” and that the best reason not to impose
61
the death penalty is if the murder was “spur of the moment” and the defendant
exhibited no prior violence. In determining whether to sentence someone to life or
death, Ms. Barnard indicated she would want to know: if the crime was “heinous,”
whether the defendant exhibited similar prior behavior or had a pattern of using
excess violence, and if the victim had a weapon or was a child. Thus, although Ms.
Barnard indicated a past pattern of violence and criminal record would be something
she would want to know about and consider in determining the sentence, she never
referenced recidivism or the defendant’s future propensity to harm others. As such,
Ms. Barnard does not appear to have been similarly situated to Ms. Weir on the
issues of recidivism so as to allow for a meaningful comparison.
The state’s additional proffered reason for striking Ms. Weir—that she
“expressed a great deal of concern through body language” and that she made
comments during general voir dire concerning the use of misleading interrogation
techniques—are supported by the record. Moreover, body language has been found
to be a race-neutral reason defeating a Batson claim. See United States v. Bentley-
Smith, 2 F.3d 1368, 1374 (5th Cir. 1993); State v. Seals, 95-0305, p. 8 (La. 11/25/96),
684 So. 2d 368, 374-75, rev’d on other grounds, 00-2738 (La. 10/25/02), 831 So. 2d
828 (noting reasons found acceptable include body language, lack of eye contact,
the failure to make eye contact, juror inattention and juror “not too bright”); State v.
Aubrey, 609 So. 2d 1183, 1187 (La. App. 3 Cir. 1992) (venire woman maintained
excessive eye contact with one of defendants).22
22
Defendant also argues that several white jurors raised similar concerns with interrogation
techniques used but were not struck by the state, and asserts this disparate treatment as further
evidence of discriminatory intent. Because this reason proffered by the state was coupled with the
prosecutor’s observation that Ms. Weir’s body language evinced a level of discomfort with the
police interrogation techniques, and because the credibility of such an observation is impossible
to glean from a cold record, defendant’s argument that white jurors who gave similar responses
were kept by the state is unpersuasive.
62
Defendant focuses on each reason the state gave for striking Ms. Weir in a
vacuum, without acknowledging that Ms. Weir exhibited several characteristics
undesirable to the state, and not just one, that it found excusable in another juror. In
Miller-El v. Dretke, the Supreme Court held that there was no need for jurors to share
every characteristic in order for a comparison to be meaningful. 545 U.S. 231, 306
(2005) (“None of our cases announces a rule that no comparison is probative unless
the situation of the individuals compared is identical in all respects, and there is no
reason to accept one.”). Therefore, despite the state’s mischaracterization of some
of Ms. Weir’s responses and its failure to question Ms. Weir with respect to her
purported “serious concerns” about imposing the death penalty, her voir dire answers
as a whole support the state’s proffered reasons for striking her. Given the broad
discretion Batson affords the trial judge in ruling on the fact-bound question of
whether race was significant in determining who was challenged and who was not,
an appellate court should not substitute its evaluation of the record for that of the
trial court. See Hernandez v. New York, 500 U.S. at 364 (“[T]he trial court’s decision
on the ultimate question of discriminatory intent represents a finding of fact of the
sort accorded great deference on appeal.”); Batson, 476 U.S. at 98 n.21 (“Since the
trial judge’s findings in the context under consideration here largely will turn on
evaluation of credibility, a reviewing court ordinarily should give those findings
great deference.”). Defendant shows no error in the denial of his Batson motion with
respect to Ms. Weir.
D. Nedra Price
The state used its fourth peremptory strike to back strike Ms. Price, a black
female. In her death qualification questioning, Ms. Price stated that her sister was
killed when Ms. Price was very young but that she did not remember many details,
63
and that her sister’s killer was serving a life sentence; in determining an appropriate
punishment, she would want to know “if they have remorse” and if they could truly
show “that they wouldn’t commit a crime like that ever again;” she would consider
youth in determining punishment because she does not believe in “just putting
people in the prison system” and saying “that’s it;” and, she believes “sometimes
people, they can come back out with society and still be just like everyone else.”
In offering its reasons for striking Ms. Price, the state offered that Ms. Price
“wants to know the remorse, the lack of recidivism” and that youthfulness was also
important to her. The state also referenced Ms. Price’s comment that sometimes
people could come out of prison and pose no future threat, and the state further noted
that, on her questionnaire, when asked under what circumstances she thought life
imprisonment without parole was appropriate, she responded “if a person is highly
unlikely to commit the crime again.” The state explained its concern with Ms. Price
was “her focus[] on that risk of recidivism,” given that defendant planned to focus
on his good behavior and his capacity to be a reformed prisoner, she would be
susceptible to this defense argument, and thus the state struck her for this reason.
On its face, this explanation appears both race-neutral and plausible.
Defendant, however, emphasizes the state’s disparate treatment of seated white
jurors who gave similar answers concerning recidivism, reform, and/or remorse in
their questionnaires, notably Malcolm Jarrell and Patricia Borskey.
Mr. Jarrell’s responses on his questionnaire and during questioning were not
as focused on recidivism as Ms. Price’s answers. Mr. Jarrell, like Ms. Price, did
check the box on the questionnaire agreeing with the statement that “people in prison
have the opportunity to turn their life around and seek forgiveness and peace.”
However, the only time Mr. Jarrell referenced recidivism during his questioning was
64
when the prosecutor asked him what type of things he would like to hear during the
penalty phase to help him decide whether to impose a life sentence or the death
penalty. In response, Mr. Jarrell listed several things that would be important to him,
one of which was “whether they would be a danger to other people in a correctional
system, that type of thing.” This statement, which refers only to a defendant’s
propensity to be contained in prison, differs from the statement Mr. Price gave,
which implied she believed a defendant’s youthfulness was indicative of a lower risk
of recidivism and/or better chance of reform—which she in turn stated would be
good reasons to impose a life sentence.
Nonetheless, even if Ms. Price and Mr. Jarrell could be considered similarly
situated in terms of their views on recidivism/reform, defendant fails to point out
that Mr. Jarrell differed from Ms. Price in other significant ways. Notably, Mr. Jarrell
agreed with the statement, “We are too lenient on criminals; people who break the
law deserve harsher punishment,” and, when asked how he would feel if Louisiana
repealed the death penalty, he remarked that he “prefer[s] the state keep the death
penalty as an option.”
Ms. Borskey is also not similarly situated to Ms. Price such that a meaningful
comparison may be made. The state, in striking Ms. Price, relied primarily on Ms.
Price’s focus on a likelihood of recidivism. It is true that Ms. Borskey, when asked
what would be important to her in determining life versus death, responded, “Some
remorse for one thing.” Ms. Borskey, like Ms. Price, also checked the questionnaire
box next to the statement “People in prison have the opportunity to turn their life
around and seek forgiveness and peace.” However, unlike Ms. Price, Ms. Borskey
otherwise never touched on reform or recidivism in her questionnaire or during her
voir dire answers.
65
Defendant has failed to show that any similarly situated white juror was
treated differently than Ms. Price. Thus, because the state’s reason for removing her
was race-neutral and plausible, he shows no error in the trial court’s denial of his
Batson motion as to Ms. Price.
E. Denise Malancon
The state used its fifth peremptory challenge to back strike Denise Malancon,
a black female. On her questionnaire, Ms. Malancon indicated: her brother was the
victim of a (still unresolved) homicide in 2008; she felt the appropriate punishment
for murder was life without parole; the death penalty, while it might give some
consolation to the victim’s family, does not bring back a loved one; the best reason
to impose the death penalty is when someone intentionally causes harm to others in
a violent way; the best reason not to impose the death penalty is one caused harm to
others without premeditation; the death penalty is too costly to taxpayers due to the
appeal process; the death penalty is appropriate when the defendant committed cold-
blooded acts without remorse; and, a life sentence without the possibility of parole
is an appropriate sentence when the defendant shows remorse. Ms. Malancon also
checked the space next to the sentiment: “I am philosophically opposed to the death
penalty, but would be able to vote guilty if the state proved the defendant guilty of
murder beyond a reasonable doubt.” Ms. Malancon also indicated she agreed with
the following statements: “Our penalties and sentences are too harsh; we need to
focus on rehabilitation;” “we should look at all the circumstances surrounding the
crime and the person to determine the appropriate punishment;” “people in prison
have the opportunity to turn their life around and seek forgiveness and peace;” and,
“innocent people have been convicted and sentenced to die.”
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During death qualification questioning, Ms. Malancon initially responded that
she would not automatically consider the death penalty or a life sentence over the
other and would make that determination based on all the information she has. Upon
being questioned by the state about how she felt about serving on a death penalty
case, she responded that she was not exactly sure, that it would depend on the
evidence presented, and that she would not rush to judgment. When asked what
would be important to consider before deciding between the death penalty and a life
sentence, she responded that she was not sure, but that “I guess depending on the
type of crime that was committed, if there was . . . some additional history of other
type of crimes and maybe the nature of the crimes, the character of the person, you
know, prior to or the individual . . . that they were, things like that, and I guess if
they . . . had, you know, showed some remorse for what had occurred[.]” When
asked about her response on her questionnaire concerning the cost to taxpayers of
the death penalty, Ms. Malancon responded that she had seen something recently in
the news that indicated it sometimes takes up to 20 years for appeals to be completed,
but that this would not be a reason for her not to impose the death penalty. When
specifically asked if she agreed with the death penalty, Ms. Malancon responded,
“In some instances, I think it’s applicable. I can’t say which.” Ms. Malancon also
explained that although she does have some religious and/or philosophical
opposition to the death penalty, she could “follow the evidence and make whatever
decision based on the evidence[.]”
Upon questioning from defense counsel, Ms. Malancon discussed her
brother’s murder, and explained that she would not hold that against defendant nor
allow it to cloud her judgment in this case. She also explained that the cost of housing
67
an inmate would not factor into her decision concerning the penalty, and that she
could be fair and impartial.
In explaining its reasons for striking Ms. Malancon, the state pointed to her
questionnaire response in which she indicated she was philosophically opposed to
the death penalty. The state further noted that “she on several occasions indicated
that the death penalty does not bring the victims back” and “expressed a serious
concern and focus about the cost of the death penalty, and that it was used too often.”
The state also noted that on question number 85 of the survey, which asks, in
determining whether to sentence someone to life or death imprisonment, what would
you want to know about: a) the crime; b) the person convicted; c) the victim; and d)
anything else, Ms. Malancon wrote “N/A” next to a)–d). The state asserted that this
would indicate that “she under no circumstances would consider the death penalty.”
The state pointed also to her responses that the death penalty may give the family
consolation but that it does not bring back lost loved ones, that punishments were
too harsh, and that the focus should be on rehabilitation. Lastly, the state offered:
“She also expressed a focus upon remorse when being questioned as a reason that
she thought would be important not to impose the death penalty. And the state does
not want individuals on the jury who would make the remorse their primary focus.
It causes us concern.”
Defendant correctly points out that, although the state argued that Ms.
Malancon “stated on several occasions that the death penalty does not bring the
victims back,” this was not the case. Ms. Malancon did write that on her
questionnaire, but did not reference this during her testimony. Defendant also
correctly notes that, although Ms. Malancon did indicate a concern for the cost of
the death penalty, she explained that this was due to a recent news article she read,
68
and indicated that the cost would not be a reason for her not to vote for the death
penalty. Defendant also points out that, although the state appeared primarily
concerned with Ms. Malancon’s potential focus on remorse, the state’s strategy of
showing that he was not, in fact, remorseful, would tend to negate this concern.
The state, however, was correct to note that Ms. Malancon did indicate on her
questionnaire that she felt the system should focus more on rehabilitation, which, as
noted in discussion of other potential jurors in this section, was problematic for the
state because it knew the defense planned to present evidence of defendant’s good
behavior in prison and potential for reform. Moreover, the state pointed out Ms.
Malancon’s questionnaire response in which she expressed that she was
philosophically opposed to the death penalty.
The totality of Ms. Malancon’s answers indicates inconsistency in her attitude
concerning the death penalty, and some uneasiness with its use and application.
Thus, the state’s decision to peremptorily strike her does not appear founded on race.
See State v. Juniors, 03-2425 at pp. 31-32, 915 So.2d at 318 (Although “an equivocal
response in answer to whether [a prospective juror] could legitimately consider
voting for death ... may not have risen to the level of a sustainable challenge for
cause, it does support the race-neutral reasons furnished by the State after defense
counsel objected on Batson grounds to the peremptory strike against [the prospective
juror].”); see also Uttecht v. Brown, 551 U.S. 1, 7 (2007) (“[W]hen there is
ambiguity in the prospective juror’s statements,” the trial court is “entitled to resolve
it in favor of the State.”). Defendant shows no abuse of discretion in the court’s
denial of his Batson challenge with respect to Ms. Malancon.
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F. Savannah Jule
The state used its sixth peremptory strike to back strike Savannah Jule, a
Hispanic female. Defendant concedes that Ms. Jule does not fit into the state’s
alleged pattern of striking black jurors, but argues that the state’s exclusion of her is
relevant to the question of intentional racial discrimination.
In stating its reasons for striking Ms. Jule, the state explained that Ms. Jule
expressed concern about the interrogation techniques police may use, and indicated
that she was very concerned about potential false confessions. The state also noted
that Ms. Jule was “extremely” young (age 25). Lastly, the state noted that Ms. Jule
indicated she would need to find the defendant “absolutely guilty” before even
considering the death penalty.
The record supports the state’s assertion that Ms. Jule expressed concerns
about false confessions in the face of investigative techniques used in this case.
During general voir dire, she explained her opinion that “[s]ometimes people just
get tired of being questioned or they feel like they are under a lot of pressure, and
it’s just like I’m going [to] say whatever I have to say to get you to leave me alone,”
and further stated that “if you feel like there’s somebody saying you were at this
crime scene when you weren’t there, I think there is a chance that that person is
going to admit to something that they didn’t do[.]” Considering that the state’s case
at the guilt phase relied heavily on defendant’s confession, obtained after 11 hours
of police custody and some misrepresentations made by the interviewing detectives,
Ms. Jule’s concerns about those very circumstances producing false confessions was
a legitimate and race-neutral reason to strike her from the jury.
Defendant, however, argues that seated white jurors Patricia Borskey,
Suzanne Carter and Kristen Procell, and Mary Johnson (on whom defendant
70
ultimately exercised a peremptory challenge), expressed similar concerns and yet
were not struck by the state. Hence, he argues this proffered reason was merely a
pretext for race.
The record establishes that these other jurors, however, did not give responses
concerning interrogation techniques that were as lengthy or as specific as those Ms.
Jule gave. Ms. Jule specifically stated that she felt that under the types of police
interrogation techniques used in this case (i.e., misrepresentations), she could foresee
a suspect giving a false confession. Ms. Carter, however, only remarked that she felt
that she would be “delirious” after being questioned for 12 to 14 hours straight,
circumstances that did not exist in Turner’s police interrogation. Ms. Procell
remarked that she could see how certain techniques could “kind of wear [a suspect]
down” and “possibly . . . force them to say [things]” but was not as detailed or as
unequivocal in her remarks as Ms. Jule. Ms. Johnson simply stated that she felt the
“exact same” as Ms. Procell, without elaboration.
Ms. Borskey appears to have shared Ms. Jule’s concerns regarding
interrogation techniques, albeit her response was not as lengthy. Ms. Borskey stated
that she “does not like the fact that police are allowed to lie to make someone come
up to the truth just because they get tired of someone badgering them, and perhaps
they coerced a confession that really isn’t true.” Even if this alone could be
considered similar, Ms. Borksey displayed several characteristics that Ms. Jule did
not, which undercuts any comparison based solely on the two jurors’ similar feelings
about interrogation techniques. Ms. Borksey, unlike Ms. Jule, indicated she could
“not think of any” reasons not to impose the death penalty on her questionnaire and
she indicated she was “generally in favor of the death penalty and feels it should be
imposed upon conviction of murder, with very few exceptions.”
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Under these circumstances, defendant shows no abuse of discretion in the
court’s denial of his Batson challenge with respect to Ms. Jule.
G. Lanell Craig
The state used its seventh peremptory challenge to back strike Lanell Craig, a
black female. At the time it made the challenge, the state had used six of its seven
strikes to remove black jurors, with the other strike being used to remove a Hispanic
juror, Ms. Jule. Defense counsel noted that although the court had denied its earlier
Batson challenges as to the state’s first six challenges, “this continues to still be a
pattern.” The court responded:
Well, I didn’t find there was a pattern [before]. I made [the state] give
her reasons and found [the state’s] reasons were race neutral and gender
neutral. And do you have something else other than [that the state] used
a peremptory on another one?”
Defense counsel responded in the negative: “No, your Honor,” to which the court
responded, “All right,” before the court moved on to consider the next available
jurors, implicitly finding that defendant had again failed to make a prima facie
showing under the first step of Batson.
The state’s use of six of seven strikes exercised against black jurors, or
roughly 85% of its challenges, could support a conclusion that the trial judge did
abuse his discretion in finding that the defense had failed to pass Batson’s first step.
Cf. Johnson v. California, 545 U.S. 162, 170 (2005) (because Batson did not mean
to impose an onerous burden as the first step in its analysis, a defendant need produce
only “evidence sufficient to permit the trial judge to draw an inference that
discrimination has occurred.”).
This Court has held, however, that bare statistics alone are insufficient to show
a prima facie case of discrimination. State v. Duncan, 99-2615, p. 22 (La. 10/16/01),
72
802 So. 2d 533, 550 (citing United States v. Moore, 895 F.2d 484, 485 (8th Cir.
1990)). In Duncan, the defendant argued that racial discrimination could be inferred
from the record, which showed the state had struck 84% of prospective black jurors
and only 12% of prospective white jurors, using five of its eight peremptory
challenges to strike black jurors. This Court held, “there is not a per se rule that a
certain number or percentage of the challenged jurors must be black in order for the
court to conclude a prima facie case has been made out.” 99-2615 at 22, 802 So. 2d
at 549-50. However, the Court explained that “such number games, stemming from
the reference in Batson to a ‘pattern’ of strikes, are inconsistent with the inherently
fact-intense nature of determining whether the prima facie requirement has been
satisfied.” 99-2615 at 22, 802 So. 2d at 550. This Court further explained that it is
important for a defendant to come forward with facts, not numbers alone, when
asking the trial judge to find a prima facie case. Id. (citing Moore, 895 F.2d at 485).
Consequently, in Duncan this Court held the defendant’s reliance on bare statistics
to support a prima facie case of race discrimination was misplaced.
Here, despite statistical support for an inference of discrimination, when the
court ruled on this particular Batson challenge, it had just found that the state’s use
of its prior six challenges to remove five black and one Hispanic juror did not involve
purposeful discrimination. Thus, it was not against a blank slate that defendant made
the objection with respect to Ms. Craig; rather, the court had already determined that
defendant had failed to show that the state engaged in any purposeful discrimination
in its first six challenges, and thus the state’s seventh challenge, albeit made against
another black juror, was to some extent set apart from the first six. In effect, by
arguing to the court that using six out of seven challenges against black jurors
revealed a pattern of discrimination, defendant was attempting to piggy-back this
73
seventh objection onto his earlier (failed) objections concerning state’s first six
challenges, which had already been deemed non-discriminatory. Having found no
purposeful discrimination concerning the state’s first six strikes, it is difficult to see
how defendant can show, without more, that the seventh strike continued a
discriminatory pattern which the trial court justifiably found not to exist. Because
defendant has failed to offer any other evidence from which to infer discriminatory
intent, the trial court did not abuse its discretion in finding that defendant had not
made a prima facie case with respect to Lanell Craig.
H. Michael Smith
Mr. Smith, a black male, indicated in his jury questionnaire that: he had an
overall good impression of law enforcement; the best reason to impose the death
penalty is to keep the streets safe; the best reason not to impose the death penalty is
to reform a person; and he was generally in favor of the death penalty. During death
qualification, Mr. Smith stated that he had been the victim of an armed robbery
committed by an acquaintance, but that he did not think that would influence him in
this trial and he was not that traumatized by it; he could consider all mitigating
evidence; he would probably vote for the death penalty in a double-homicide
committed during an armed robbery, but would be open to a life sentence; and, in
determining punishment he would consider whether the defendant was “beyond
redemption,” and whether the defendant was remorseful. No challenges were made
afterwards. The state later used its eleventh peremptory challenge to back strike Mr.
Smith and, after defendant raised a Batson objection, the trial court noted that “once
again, it’s one more. We have gone through all the other strikes, and I did not find a
pattern. I don’t find one now, but I will have [the state] provide her race-neutral
reasons for striking Mr. Smith.”
74
The state responded that it “boil[ed] down to one thing” from Mr. Smith’s
questionnaire that the state “just cannot let go of,” and that was his response to “what
is the best reason not to impose the death penalty?” Mr. Smith’s response was “to
reform a person.” The state further noted that it knew the defense would be calling
witnesses to talk about how defendant had not caused any problems in prison, and
the prosecutor noted that she “just can’t let go of that.” Defense counsel responded,
recounting Mr. Smith’s remarks that he would probably vote for the death penalty
unless defendant showed remorse or redemption. The state responded again,
explaining that the remorse and redemption angle was precisely why they were using
the strike on Mr. Smith. The court responded: “I find they are race neutral reasons
why the state would strike Mr. Smith. That Batson motion is denied.”
The state’s concern that Mr. Smith would focus on defendant’s ability to be
reformed by a life sentence as opposed to the death penalty was a race-neutral reason
to strike Mr. Smith. The state was aware that the defense planned to present evidence
of defendant’s good behavior in prison as well as the argument that, if his life was
spared, he had a chance at reformation and/or redemption.
Defendant argues the state’s proffered reason was a pretext for race. First,
defendant correctly notes that, despite its apparent inability to “let go of” Mr. Smith’s
questionnaire response concerning the best reason not to impose the death penalty,
the state never questioned Mr. Smith regarding that response at all. Such a lack of
questioning undercuts the persuasiveness of an otherwise race-neutral reason. See
Harris, 01–0408, p. 8, 820 So.2d at 476; Collier, 553 So. 2d at 822 n.11.
Defendant also points out that several seated white jurors—Ms. Barnard, Ms.
Phelps, Mr. Jarrell, Ms. Procell, and Ms. Borskey, along with several other white
jurors who were peremptorily struck by the defense—gave similar responses
75
concerning reform/redemption, and the state did not strike those jurors. This,
defendant argues, is further evidence that the proffered reason was pretext for race.
Defendant argues these jurors had similar concerns because they all checked a box
on their questionnaires indicating they felt “people in prison have the opportunity to
turn their life around and seek forgiveness and peace.” This response on the
questionnaire, however, differs from Mr. Smith’s response. Agreeing with a
generalization that a person may have the opportunity to be reformed in prison is not
the equivalent of believing that potential for reform is the best reason not to impose
the death penalty—particularly when, as in this case, the state knew that the defense
would rely on evidence meant to suggest defendant’s promising chances at reform
in arguing for a life sentence during the penalty phase.
Defendant further argues that prospective jurors Mary Johnson and Tammy
Salter (both of whom were peremptorily struck by the defense) checked the box on
their questionnaires indicating they agreed with the statement “our penalties and
sentences are too harsh; we need to focus on rehabilitation.” Despite these responses,
however, neither responded in a similar manner to Mr. Smith to the question asking
the best reason not to impose the death penalty. Ms. Salter responded that the best
reason not to impose the death penalty was “accidental homicide,” and Ms. Johnson
responded that the best reason was “mental incapacity.”
Defendant next argues that prospective jurors Peggy Twyman and Patrice
Saucier (both peremptorily struck by the defense) had similar views regarding the
potential for reform, but were not struck by the state. Defendant notes that Ms.
Twyman wrote that the best reason not to impose the death penalty was “[an] isolated
incident,” and Ms. Saucier responded that the best reason to impose the death penalty
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was “[i]f there is no doubt that he/she would impose this on another victim.” 23 Again,
these two responses are not similar to Mr. Smith’s response that the best reason to
impose a life sentence is “to reform a person.” Ms. Twyman’s and Ms. Saucier’s
responses seem focused on a lack of criminal history and recidivism, respectively,
not the potential for reform. Given the above, defendant fails to show that any white
jurors similarly situated to Mr. Smith were accepted by the state.
Defendant also argues that pretext is shown by the state’s proffer of a “second
implausible reason” offered after defense counsel had responded to the state’s initial
proffered race-neutral reason. The state’s second reason was Mr. Smith’s purported
focus on remorse and/or redemption. A review of the transcript, however, indicates
the state was not proffering an actual second reason for striking Mr. Smith, but was
pointing out that Mr. Smith’s answers during questioning concerning remorse and/or
redemption were in line with his questionnaire response concerning reform on which
the state initially based its strike. The state prefaced this “second” proffered reason
by stating “And that goes back to the problem, the remorse and redemption. The
same reason we challenged people who work in the prisons.” Rather than proffering
a true second reason, the state was reasserting that Mr. Smith’s statements during
questioning were further proof of his views on reform and remorse, which were the
stated reason for the strike. This situation does not rise to the level of that in Miller-
El, where the state’s second, unrelated reason for striking a juror “reek[ed] of
afterthought.” Miller-El, 545 U.S. at 246.
Further complicating a Batson analysis here, in its responses, the state appears
to lump together reform, redemption, and remorse. While they are related concepts,
23
Defendant fails to mention that Ms. Saucier also wrote that the best reason not to impose the
death penalty was “N/A”.
77
they have different meanings, particularly when considering the facts of this case.
The defense sought to show defendant’s potential for reform and rehabilitation in
prison; the state sought to highlight his lack of remorse. Thus, as defendant points
out, a juror to whom remorse was important was a good juror for the state, and a
juror who tended to think people could be reformed and/or redeemed in prison was
not ideal for the state. Accordingly, to the extent the state was attempting to assert
that it struck Mr. Smith due to responses indicating he would consider a life sentence
if a defendant showed remorse, this was a much less plausible reason than if the state
had struck Mr. Smith because he seemed focused on the potential of reform and
redemption that a life sentence would bring. Considering, however, that the state
clearly led its proffered race-neutral reason by pointing to the “reform” response
from Mr. Smith’s questionnaire, it seems more likely the issue of reform was the
state’s true concern, and its later reference to “remorse and redemption” was directed
more at the reform concept than remorse.
Given the trial judge’s broad discretion in ruling on Batson claims, and given
the fact that the state’s arguable “second” proffered reason did not come under
circumstances like those in Miller-El, relied on by the defense, defendant fails to
shows any error in the trial court’s denial of his Batson motion as to Mr. Smith.24
24
Separate from the reform/remorse argument, defendant argues in his briefs that four seated white
jurors (Nella Barnard, Winter Phelps, Suzanne Carter, and Malcolm Jarrell) expressed more
hesitation about the death penalty than Mr. Smith, proving that the state’s given reason for the
challenge was a pretext. Defendant’s argument on this point is not persuasive. As with earlier
comparisons defendant attempts to make in the Batson context, each white juror whom defendant
points to differs significantly enough from Mr. Smith in other ways so as to preclude any
meaningful comparison and negate any inference of discriminatory intent.
Defendant also argues that three seated white jurors expressed difficulty with interrogation
techniques that the State found objectionable when expressed by several of the black jurors it
struck. According to defendant, Mr. Smith had “no problem with any of the interrogation
techniques discussed.” However, as noted above, the fact that the state did not strike similarly
situated white jurors is not, alone, grounds to find the reason for the strike pretextual, because the
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I. Sequence of State’s Strikes
Defendant also argues that the sequence of the state’s peremptory strikes and
is “indicative” of discriminatory intent. He argues that the state used six out of seven
of its first strikes on black jurors, and that it was only after the defense had raised
two Batson objections that the state struck two white jurors. Defendant further
alleges that, then, “having somewhat corrected the racial disparity [in] its strikes,”
the state used its eleventh peremptory strike to back strike the only remaining black
male, Michael Smith, on the venire. 25 Further, defendant argues, only when it was
down to its last strike did the state finally accept a black juror, Ashley Andrews, and
was forced to accept Belinda Guillard after it had used all of its peremptory strikes.
Defendant argues this sequence of strikes is indicative of discriminatory intent,
citing State v. Givens, 99-3518 (La. 01/17/01), 776 So. 2d 443, 450-51, and Miller-
El v. Dretke, 545 U.S. 231, 249-50 (2005).
In Givens, the trial court denied defense objections to the state’s use of six
strikes to remove male jurors for no apparent reason, three of which were back
strikes after it had already accepted the jurors, resulting in a final jury composition
of 11 women and one man. The trial court did not require the state to provide
reasoning, leaving this Court no choice but to presume the trial court had found no
prima facie showing of discriminatory intent. Based on the number and sequence of
strikes, and the resulting disparate impact on the final jury composition, this Court
found that the trial court should have required the prosecutor to offer gender-neutral
seated juror “may have exhibited traits which the prosecutor could have reasonably believed would
make him desirable as a juror.” Juniors, 03-2425, p. 31, 915 So. 2d at 317-18.
25
Defendant’s brief states that Mr. Smith was the tenth peremptory challenge, but a review of the
record indicates he was the eleventh. In any event, whether he was tenth or eleventh is not germane
to this decision.
79
reasons for the strikes and remanded for this purpose. Givens, pp. 6-8, 776 So. 2d at
449-51.
In the instant case, the state’s use of six of its first seven peremptory
challenges on black jurors was, as discussed above, likely enough evidence to show
a prima facie case of discrimination, much like this Court found in Givens. Although
the trial court therefore erred in finding otherwise, unlike in Givens, the court here
allowed the analysis to proceed to step two of the Batson framework by ordering the
state to give race-neutral reasons for the strikes, which it did for each of the jurors,
including Mr. Smith (with the exception of Lannell Craig, as discussed above).
Having determined that the state’s race-neutral reasons were plausible and supported
by the record, the sequence of strikes here does not carry the same significance as
those in Givens.
J. Disparate Questioning
Turning to the issue of disparate questioning, defendant argues that, as in
Miller-El v. Dretke, the state used disparate questioning of black and white jurors
designed to elicit plausibly neutral grounds for a peremptory strike directed to black
jurors versus white jurors.
In Miller-El, the defendant presented significant evidence that the
prosecutor’s race-neutral explanations were pretextual, including, inter alia: (i) the
state peremptorily struck 10 of 11 eligible black jurors, i.e., 91% of the eligible black
venire panelists, a disparity “unlikely” to have been caused by “[h]appenstance”
(545 U.S. at 233); (ii) the state asked 53% of black panelists but only 3% of non-
black panelists questions with a “graphic script meant to induce qualms about
applying the death penalty (and thus explain a strike)” (id. at 256); (iii) the state
subjected 100% of black panelists but only 27% of non-black panelists to “trick
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questions” about minimum accepted penalties for murder, “meant to induce a
disqualifying answer (id. at 262); and (iv) the district attorney’s office had a “specific
policy of systematically excluding blacks from juries,” a method known as “jury
shuffling” (id. at 263-64). The Supreme Court noted that some of the prosecutor’s
proffered explanations for striking black panelists from the jury pool were “equally
on point” to white jurors whom the prosecutor declined to peremptorily strike, and
found that, in explaining reasons for his strikes, the prosecutor mischaracterized
certain testimony the jurors gave during voir dire. When this was pointed out, the
prosecutor offered another reason for the strike rather than respond to or defend his
initial explanation. The Supreme Court found that “[i]t would be difficult to credit
the State’s new explanation, which reeks of afterthought,” supporting the
defendant’s contention that the prosecutor’s neutral explanations were pretextual.
Miller-El, 545 U.S. at 240-46. Compare State v. Allen, 03-2418, pp. 18-19 (La.
6/29/05), 913 So. 2d 788, 802-03 (explaining Miller-El factors and distinguishing
those from a case in which the state used 50% of its strikes on black jurors). The
Supreme Court therefore held that the prosecutor employed disparate questioning to
produce challenges for cause as to black jurors, and, when coupled with the other
factors identified above, were corroboration of race-based strikes of jurors.
Here, defendant asserts that, as in Miller-El, the state “tended to” question
black jurors more aggressively about their views on the death penalty, displaying
“significantly” more skepticism about their ability to vote for the death penalty, and
distrust of their assurances that they could. In contrast, the defendant argues, the state
“tended to” be more accepting of white jurors’ ability to consider death, even
questioning many blatant pro-life jurors in ways designed to produce “correct”
answers. Defendant gives examples of the allegedly disparate questioning, pointing
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to exchanges in the record that he claims support his argument. Defendant analyzes
the questions presented to white jurors versus black jurors who had relatives who
were victims of violence, and the language used to explain the law to white jurors
versus black jurors.
The circumstances here do not rise to the level present in Miller-El. There, the
questioning was reduced to objective, quantifiable aspects, which broke heavily and
significantly along racial lines (i.e., 100% of black panelists asked certain questions
versus 27% of non-black panelists). Here, defendant uses language such as “tended
to” or “more likely to” to describe the state’s disparate questioning, but neither
quantifies that language in a usable way, nor defines how certain language was coded
as falling into one category or another. See Allen, 03-2418, p.18, 913 So. 2d at 802
(noting that the defendant did not demonstrate a “discernable pattern of
discriminatory intent”). As such, defendant does not show that the entire voir dire
environment in this case demonstrated discriminatory intent on the part of the state.
Defendant does offer quantitative proof of disparate questioning with respect
to one issue. Defendant argues that of the 32 potential jurors who noted on their
questionnaires that they or someone they knew had been the victim of a homicide or
armed robbery, 19 were white, 12 were black, and one was Hispanic. The state chose
to question 13 of those potential jurors concerning those responses, and of those 13,
eight were black and five were white. Thus, defendant argues, the state was more
than twice as likely to ask black potential jurors about this questionnaire response,
asking 66.7% of the black panelists, but only 26.32% of the white panelists.
Even when considering defendant’s comparative analysis on this issue, the
analysis is not as persuasive as in Miller-El, in which both analyses produced a much
more statistically significant gap in treatment based on race. Moreover, the other
82
factors present in Miller-El—such as jury shuffling, the state’s failure to strike
similarly situated white jurors who gave responses similar to those used to justify a
peremptory strike of a non-white juror, and a history of systemic discrimination of
black people from jury panels by the district attorney’s office during the time of
defendant’s trial—are not present here. As such, defendant fails to show error in the
trial court’s denial of his Batson challenges on these grounds.
Assignments of Error Nos. 8, 9
Defendant argues that a prospective juror’s improper comments tainted the
first panel of the jury venire, depriving defendant of his right to an impartial jury.
Defendant specifically argues that prospective juror Ron Sumer, a member of the
first death qualification panel, tainted that first panel by improperly speaking to other
prospective jurors about the victims and facts of this case. Because Nella Barnard,
who ultimately served on defendant’s jury, was on the same panel, Turner argues his
rights to an impartial jury and to a fair and reliable capital sentencing hearing were
violated. As such, he argues that his motion for new trial should have been granted,
and urges this Court to reverse his convictions and remand for an evidentiary hearing
to determine the scope of the prejudicial comments and their impact. Under La.
C.Cr.P. art. 851(4), a court “shall grant a new trial whenever . . . defendant has
discovered, since the verdict or judgment of guilty, a prejudicial error or defect in
the proceedings that, not withstanding the exercise of due diligence by the defendant,
was nor discovered before the verdict.” A ruling on a motion for a new trial rests
within the sound discretion of the trial judge. State v. Quimby, 419 So.2d 951, 960
(La. 1982).
Mr. Sumer was the eighth juror individually questioned from the first death
qualification panel, and testified that he knew both victims in this case. Both the
83
state and defense urged the court to excuse Mr. Sumer from service on this basis,
but asked that the court question him further as to whether he had discussed the case
with anyone else in the jury room. The court agreed to question him further, and Mr.
Sumer informed the court that when they were “in the first room before you spoke,”
the other jurors asked him something, and he told them “which case it was. That’s
it. I didn’t know.” The court asked if he went into any depth other than to say it was
the Carquest case, and Mr. Sumer responded that he did not, and further confirmed
that he did not discuss either of the victims or any specifics about the case. The court
excused Mr. Sumer from service.
After trial, defense counsel interviewed jurors in Mr. Sumer’s panel in an
attempt to determine whether he had spoken about the case with potential jurors.
Anthony Isaac, a potential juror in the same death qualification panel as Mr. Sumer,
stated that Mr. Sumer did give details about the case. Mr. Isaac stated in a sworn
statement that when all the jurors were in a room together, Mr. Sumer began
explaining the case to them:
I was called for jury duty for Lee Turner’s trial. When I showed up to
report for duty, we were all sitting in a room together. One of the men
in there told us that he was best friends with the victims. He knew them
and hung out with them often. He told us what Lee Turner did. He said
that Lee Turner killed them and told us what a brutal crime scene it was.
He knew that Lee Turner did it. We talked about it for about 15 minutes.
Because he was friends with the victims, he knew he would not be on
the jury.
Defendant argues these comments “could have influenced at least one juror’s vote.”
The only juror from Mr. Sumer’s panel to be seated was Nella Barnard. Ms.
Barnard was the first juror to be individually questioned. Defense counsel
specifically asked her if she had heard anything about the case or had any
preconceived ideas about it, to which she responded, “I live out [in Central] and I
84
don’t—I’m not good about paying attention to crime in Baton Rouge. I’m sorry.”
She later reiterated, “I don’t know anything about the case[.]” Likewise, during her
general voir dire questioning, Ms. Barnard never alerted the court of any newly-
gained information concerning the case.
Mr. Isaac testified during his death qualification individual questioning that
although he knew a little bit about the case (“[I]t happened at Car Quest and I think
what I remember was the guy went into the back of the building or something”), he
had seen this information on the news––not from another juror. Mr. Isaac was
excused for cause due to his anti-death penalty views.
“In a criminal case, any private communication, contact, or tampering directly
or indirectly, with a juror during a trial about the matter pending is deemed
presumptively prejudicial.” State v. Scott, 04-1312, p.71-72 (La. 1/19/06), 921 So.
2d 904, 952 (internal ellipses omitted) (overruled on other grounds) (citing Remmer
v. United States, 347 U.S. 227 (1954)). If a defendant is able to demonstrate, by
preponderance of credible evidence, through juror testimony, that the juror was
exposed to extrinsic evidence, a presumption of prejudice becomes operative that
can be overcome by showing that the error was harmless. Id.Defendant fails to show that any juror was exposed to any extrinsic evidence.
The only evidence he produced was the statement from Mr. Isaac, which was
contradicted by Mr. Isaac’s own sworn testimony. Moreover, Mr. Sumer’s testimony
as well as that of Ms. Barnard and the other jurors of the first death qualification
panel indicate that no such prejudicial or case-specific remarks were made in the
jury room. Defendant failed to meet his burden of showing an extraneous influence
was present in the jury room, and thus shows no error in the court’s denial of his
motion for new trial on this grounds.
85
Assignment of Error No. 10
Defendant argues that the court erred in granting the state’s challenge for
cause as to potential juror Donovan Brunious, who indicated that she “wouldn’t want
to look at [the autopsy photographs]. . . . I probably would have a problem with it. I
just don’t think that I could.” The state challenged Ms. Brunious for cause, and after
hearing brief argument, the court determined that “the problem is she’s saying she’s
not going to look at some of the evidence. . . . I am going to grant the challenge for
cause. She was clear about it. She doesn’t think she can look at it. That is part of the
state’s case. It’s hard to accept a juror that’s going to ignore part of the evidence.”
The state is entitled to harness “the moral force of the evidence” to make its
case. State v. Letulier, 97-1360, pp. 17-19 (La. 7/8/98), 750 So. 2d 784, 794-95 (even
gruesome photographs are admissible unless they are “so gruesome as to overwhelm
the jurors' reason and lead them to convict the defendant without sufficient
evidence, i.e., when the prejudicial effect of the photographs substantially outweighs
their probative value”). Ms. Brunious’s response that she did not think she could
look at the autopsy photographs was tantamount to a declaration that she would not
consider certain evidence, and as such, was subject to challenge for cause. Defendant
shows no abuse of discretion in this ruling.
Assignment of Error Nos. 11, 12
Defendant filed a motion to quash the petit jury venire on April 17, 2015 (four
days after voir dire began), alleging systemic and intentional underrepresentation of
black panelists. He specifically alleges that although black people represent 46.1%
of the adult population in East Baton Rouge Parish, of the 182 jurors selected for the
venire, only 63 were black, comprising just 34.6% of the venire, and representing an
absolute disparity of 11.5%, and a comparative disparity of 24.9%. The trial court
86
held a hearing where defendant presented testimony and evidence, but the court
ultimately denied the motion as untimely, noting that even if the motion was timely,
it was without merit.
As an initial matter, we find that the motion was untimely. Motions to quash
a general or petit jury venire on the basis that the venire was improperly drawn,
selected, or constituted must be filed within three days before trial or, with the
court’s permission, before the commencement of trial. See La. C.Cr.P. art. 532(9);
art. 535, cmt. c(2) (“This objection is waived unless it is urged before trial by a
motion to quash the venire. . . .”).
As to the merits, La. C.Cr.P. art. 532(9) provides that a motion to quash may
be based on the ground that “[t]he general venire or the petit jury venire was
improperly drawn, selected, or constituted.” Additionally, under La. C.Cr.P. art.
419(A), a petit jury venire shall not be set aside for any reason unless fraud has been
practiced, some great wrong committed that would work irreparable injury to the
defendant, or unless persons were systematically excluded from the venires solely
upon the basis of race. The burden of proof “rests on defendant to establish
purposeful discrimination in the selection of grand and petit jury venires.” State v.
Lee, 559 So. 2d 1310, 1313 (La. 1990). As the Supreme Court has explained:
In order to establish a prima facie violation of the fair-cross-section
requirement, the defendant must show (1) that the group alleged to be
excluded is a “distinctive” group in the community; (2) that the
representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the
community; and (3) that his under-representation is due to systematic
exclusion of the group in the jury selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979).
Though defendant argues that disparity in the voter registration lists in
comparison to the venire panel establishes purposeful discrimination, under State v.
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Ashworth, 97-2917, p. 1 (La. 11/25/97), 704 So. 2d 228, 229, this alone is
insufficient to establish a Sixth Amendment violation. Defendant must point to a
“showing in the record of [a] discrimination against a class of people” in order to
establish a cross-section violation occurred in his case. Id.Defendant has not established entitlement to relief on this basis. Nothing in
the record or in defendant’s application suggests the underrepresentation of black
panelists generally, and black men specifically, was due to a systematic exclusion of
the group. Duren, 439 U.S. at 364. Mona Collins, director of jury management at the
19th Judicial District Court, testified that the court uses an automated software
program that performs a “random pull” of the names from the voter registration logs
and DMV records to send out 325 summonses in each case that requires a jury.
Because defendant fails to show “systematic exclusion,” he is not entitled to relief.26
Assignments of Error Nos. 13, 14
Defendant argues La.C.Cr.P. art. 798(2), which allows for disqualification of
a juror based on conscientious scruples against the infliction of capital punishment,
has a racially discriminatory impact. As such, he argues, excluding jurors for cause
under La. C.Cr.P. art. 798(2) violated the fair cross section requirement and the equal
protection clause. Here, he argues, its use in removing 38.18% of the black jurors
during the death qualification stage of voir dire (as opposed to 13.46% of the
Caucasians) is an unconstitutional violation of the equal protection clause and the
26
Defendant also argues that the use of automated software is problematic because it relies on
voter registration rolls. Defendant asserts that in Scott v. Schedler, No. 11-926, 2013 WL 264603(E.D. La 1/23/13), the court issued a ruling in which it found that Louisiana had violated Section
7 of the National Voting Rights Act (“NVRA”). Defendant fails to note that the ruling on which
he relies also states that the state agency defendants were in violation of NVRA mandates prior to
April 2011, but that, since that time, “have made substantial progress in complying with the
NVRA.” Id., at *15. Defendant fails to show how this ruling concerning the NVRA is reflective
of any systemic exclusion affecting his venire drawn in 2015.
88
Sixth Amendment’s right to a fair cross section. He filed a pre-trial motion to quash
and a motion for a new trial on the same grounds, both of which the trial court denied.
In State v. Odenbaugh, 10-0268 (La. 12/6/11), 82 So. 3d 215, this Court
addressed defendant’s argument that Louisiana’s death qualification process is
unconstitutional because it violates the right to an impartial jury, unfairly leads to a
death-prone jury, and denies a fair cross-section of the venire available to non-capital
defendants. The Court explained:
[T]here should be no question of the constitutional validity of La.
C.Cr.P. art. 798 since it was drafted to conform to the constitutional
requirements set forth in [Witherspoon]; see also [Witt]. In Lockhart v.
McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986), the
Supreme Court held that the Constitution does not prohibit excluding
potential jurors under Witherspoon or that “death qualification”
resulted in a more conviction-prone jury. Likewise, this Court has
repeatedly rejected the claim that the Witherspoon qualification process
results in a death-prone jury. . . . This Court finds no need to revisit this
longstanding principle of law.
10-0268, p. 48, 82 So. 3d at 248-49 (internal citations omitted). Likewise, defendant
here does not explain why the reasoning in Odenbaugh does not apply to his case
nor why this Court’s jurisprudence should be disturbed. Therefore, these
assignments of error fail.
Assignments of Error Nos. 15, 16
Defendant argues the trial court erred in granting the state’s challenge for
cause of 23 jurors based on La. C.Cr.P. art. 798(2) after they expressed opposition
to capital punishment based on religious beliefs.27 He argues the state’s challenges
violated the First Amendment and the Louisiana Religious Freedom Act, R.S.
13:5230 et seq. He further claims that the exclusion of citizens from jury service
27
Before trial, defendant filed a motion to quash as unconstitutional La.C.Cr.P. art. 798(2) due to
its alleged discrimination based on religion, and raised the issue again in his motion for new trial
with a request for an evidentiary hearing. The court denied both motions.
89
under La. C.Cr.P. art. 798 because of their religious beliefs improperly burdens the
free exercise of religion, and that death qualification is unconstitutional, because it
does not serve any compelling government interest that cannot be served by means
less burdensome on citizens’ free exercise of religion. As such, defendant argues his
convictions and death sentences should be reversed to vindicate the rights of these
individuals, and because no confidence can be had in a verdict imposed by a jury
from which numerous citizens were unlawfully excluded. After hearing argument,
the trial court denied defendant’s pretrial motion and, later, his motion for new trial,
based on this argument.
As noted above, La. C.Cr.P. art. 798 was drafted to conform to Witherspoon,
and this Court has rejected challenges to its constitutionality as it relates to excluding
jurors during death qualification voir dire. See Odenbaugh, 10-0268, p. 48, 82 So. at
248-49. Moreover, this Court has previously determined that article 798 does not
run afoul of prohibitions against religious discrimination. See State v. Sanders, 93-
0001, p. 20 (La. 11/30/94), 648 So. 2d 1272, 1288 (“[T]he ‘single attitude’ of
opposition to the death penalty ‘does not represent the kind of religious characteristic
that underlies those groups that have been recognized as being distinctive.’”)
(internal ellipses omitted) (quoting State v. Lowenfield, 495 So. 2d 1245, 1254 (La.
1985); see also State v. Robertson, 97-0177, pp. 19-21 (La. 3/4/98), 712 So. 2d 8,
25-26 (“It is not the prospective juror’s religion per se which justifies the challenge
for cause but his views on the death penalty, regardless of their source or impetus.”).
These claims fail.
90
EVIDENTIARY ASSIGNMENTS OF ERROR
Assignment of Error Nos. 17, 18, 19, 20
Defendant argues the trial court erred in admitting certain statements he made
during his interrogation at police headquarters on March 28, 2011. He argues the
state used unconstitutional tactics to elicit incriminating statements. A trial court is
afforded considerable discretion in determining the admissibility of a statement and
its ruling “should not be disturbed unless it is unsupported by the evidence. State v.
Montejo, 06-1817, p. 25 (La. 1/16/08), 974 So. 2d 1238, 1258. The totality of the
circumstances supports the trial court’s determination that defendant made a
knowing, intelligent, and voluntary waiver of his rights in this case.
If a statement is a product of custodial interrogation, the state must show that
the person was advised before questioning of his right to remain silent; that any
statement he makes may be used against him; and, that he has a right to counsel,
either retained or appointed. Miranda v. Arizona, 348 U.S. 436, 444 (1966). The
state bears a “‘heavy burden . . . to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and his right to retained
or appointed counsel,’” State v. Green, 94-0887, p. 10, 655 So. 2d 272, 280 (La.
5/22/95) (quoting Tague v. Louisiana, 444 U.S. 469, 470 (1980)). Appellate courts
do not review the record de novo but defer to the finding of the trial judge “unless
his finding is not adequately supported by reliable evidence.” Green, 94-0887, p. 11,
655 So. 2d at 281. A trial court is afforded that deference “because the evaluation of
witness credibility often plays such a large part in the context of a motion to suppress
a confession.” Id. 28
28
The record contains three rights waiver forms signed by Turner: the first concerned the search
of his vehicle; the second is a consent to questioning; and the third gave consent for detectives to
take two DNA swabs from him during the interview. Although the Miranda waiver is specifically
91
As recounted in detail above, Detective Locicero was the first officer to
interact with defendant in conjunction with the investigation. He testified at trial that
he approached defendant inside the Carquest on Government Street just after
defendant had entered the building around 8:00 a.m. to report for work the morning
after the murders. After informing defendant that they were investigating a
homicide, defendant responded: “Anything you need. Anything to clear my name.”
Detective Locicero testified that defendant was cooperative and walked with them
to his car, where defendant eventually read and signed a consent to search form
pertaining to his vehicle. Defendant voluntarily agreed to come to police
headquarters to give a formal statement. He rode in the front seat of Detective
Locicero’s vehicle, was not handcuffed, and made small talk with Detective
Locicero concerning musical tastes on the way to the station.
Likewise, Detective Harden testified at the hearing on the motion to suppress
that, after she was notified defendant was at the Violent Crimes Unit waiting to be
questioned, she and Detective Locicero entered the interview room and immediately
began informing defendant of his rights. As recounted above, Detective Harden
remarked that the Miranda rights waiver is “just as a formality um, before we start
the interview . . . . It does not mean you’re in trouble or going to jail or anything.”
At that point, Detective Harden clearly and succinctly informed defendant of his
rights, and presented defendant with an official “Your Rights” form, which indicated
to defendant that he was being questioned regarding a double homicide, and which
at issue, the circumstances surrounding each waiver demonstrate defendant affirmatively indicated
he could read the rights listed on each respective form, he understood those rights, and was not
promised anything for his cooperation with the investigation nor coerced into giving consent.
92
specifically and correctly described all of his Miranda rights. Defendant executed a
waiver of rights form.
Defendant first claims Detective Harden minimized the severity of the
situation and glossed over his constitutional rights when she began by stating “Uh,
just as a formality, before we start the interview I have to advise you of your rights.
It does not mean you’re in trouble or going to jail or anything.” In support, defendant
relies on Doody v. Ryan, 649 F.3d 986, 1003 (9th Cir. 2011), in which the Ninth
Circuit ultimately found that a defendant was not adequately informed of his
Miranda rights when an interviewing detective implied that the Miranda warnings
were “just formalities.” Doody, 649 F.3d at 1003.
Defendant’s reliance on Doody is misplaced. Although the federal court of
appeal did note that the use of qualitative language by the detective, including the
“just a formality” language, amounted to a “misdirection,” there were other factors
that, when coupled with the detective’s language, combined to negate the knowing
and voluntary nature of the waiver. These factors included: Doody was a juvenile;
the detectives there gave repeated assurances that they did not necessarily suspect
Doody of any wrongdoing; and the interviewing detective’s description of the
Miranda warnings deviated from a one-page form used for juveniles, instead
amounting to 12 transcript pages of explanation, which––according to the court of
appeal––“completely obfuscated” the core precepts of Miranda. Id. at 990.
Furthermore, the interviewing detective informed Doody that he had the right to
counsel if he was involved in a crime––a clear misstatement of the right to counsel.
These factors, taken as a whole, rendered the Miranda warnings in Doody
constitutionally deficient.
93
In contrast, only one of the factors in Doody is present here––the initial
phrasing by Detective Harden that the Miranda warnings were “just formalities.” As
noted above, though Detective Harden used this language initially, she immediately
thereafter clearly and succinctly informed defendant of his rights, and presented him
with an official “Your Rights” form, which indicated to defendant that he was being
questioned regarding a double homicide, and which specifically and correctly
described all of his Miranda rights. Moreover, unlike in Doody, defendant was an
adult. Considering the totality of the circumstances, defendant’s reliance on Doody
is unpersuasive.
Defendant also argues that Detective Harden failed to properly give him his
Miranda warnings because, although she informed him he had the right to an
attorney, and separately that he had the right to an attorney while answering
questions, she did not inform him that he had the right to consult with an attorney
before answering questions. As an initial matter, defendant did not raise this ground
for suppression in his motion to suppress, nor did he argue the issue to the trial court.
As such, he cannot raise it for the first time on appeal. See La. C.Cr.P. art. 841(A)
(“An irregularity or error cannot be availed of after verdict unless it was objected to
at the time of occurrence.”); La. C.E. art. 103 (“Error may not be predicated upon a
ruling which admits or excludes evidence unless a substantial right of the party is
affected, and . . . [w]hen the ruling is one admitting evidence, a timely objection or
motion to admonish the jury to limit or disregard appears of record, stating the
specific ground of objection . . . .”); State v. Taylor, 93-2201, pp. 4-7 (La. 2/28/96),
669 So. 2d 364, 367-69 (“[T]he contemporaneous objection rule contained in [La.
C.Cr.P. art. 841(A) and La. C.E. art. 103], does not frustrate the goal of efficiency.
Instead, it is specifically designed to promote judicial efficiency by preventing a
94
defendant from gambling for a favorable verdict and then, upon conviction, resorting
to appeal on errors which either could have been avoided or corrected at the time or
should have put an immediate halt to the proceedings.”), cert. denied, 519 U.S. 860(1996).
In any event, defendant’s argument fails. In California v. Prysock, 453 U.S.
355 (1981), the Supreme Court reversed the federal circuit court’s determination that
the rights advisement given was inadequate because it lacked an express statement
that the appointment of an attorney would occur prior to the impending interrogation.
Moreover, despite defendant’s reliance on the more recent Supreme Court decision
in Florida v. Powell, 559 U.S. 50 (2010), the Supreme Court in that case rejected the
inverse of defendant’s claim, concluding that a defendant who was informed that he
had the right to consult with a lawyer before being questioned was adequately
informed that a lawyer could be present during questioning. Id. at 62-63. The Court
found that the rights advisement as a whole had “reasonably conveyed Powell’s right
to have an attorney present, not only at the outset of interrogation, but at all times.”
Powell, 559 U.S. at 62. Similarly, the rights advisement here, as a whole, adequately
informed defendant of his rights. Notably, the waiver form, which defendant read
and signed, clearly stated that he was entitled to an attorney prior to questioning.
Next, defendant argues that although he was given some Miranda warnings
before his interview, he was not re-Mirandized during the course of the day, and was
therefore not properly Mirandized before the round of questioning that ultimately
led to his confession. As with his earlier argument, this was not raised in his motion
to suppress, or at trial, and for the reasons noted above, is therefore not subject to
review. La. C.Cr.P. art. 841(A); La. C.E. art. 103. Out of an abundance of caution,
the Court has considered his argument and found it meritless. The number of times
95
a defendant is given Miranda warnings is not dispositive of whether a confession
was illegally obtained. State v. Blank, 04-0204, pp. 12-14 (La. 4/11/07), 955 So. 2d
90, 105. Although defendant characterizes his interview as eight separate interviews
(based on detectives coming and going from the interview room and switching off
duties as the lead interviewer), the fact remains that he was informed of his Miranda
rights at the outset, he never left the interview room except for bathroom breaks, and
he never attempted to invoke any of his rights. To the extent the length of defendant’s
stay in the interview room is a factor to be considered in the overall voluntariness of
his statements, it is discussed more fully below.
Defendant also argues that his confession was the result of duress, coercion,
and inducements, which rendered the confession involuntary. When deciding
whether a statement is knowing and voluntary, a court considers the totality of
circumstances in which it was made, and any inducement is merely one factor in the
analysis. State v. Lavalais, 95-0320, p. 6 (La. 11/25/96), 685 So. 2d 1048, 1053;
State v. Lewis, 539 So. 2d 1199, 1205 (La. 1989). The question in each case is
whether, under the particular facts and circumstances, the defendant’s will was
overborne at the time he confessed. Leyra v. Denno, 347 U.S. 556, 558 (1954);
Chambers v. Florida, 309 U.S. 227, 237-39 (1940). Defendant argues that Detective
Moore used the threat of the death penalty repeatedly, promised him leniency in
return for a confession, and threatened to arrest his pregnant girlfriend to induce a
confession.
The analytical framework for evaluating the voluntariness of defendant’s
confession is well settled. The Supreme Court previously adhered to the view that
any inducement “however slight” taints a confession. Bram v. United States, 168
U.S. 532, 542-43 (1897). However, under current standards, voluntariness is
96
determined by the totality of the circumstances, with the ultimate focus on whether
“the statement was the product of an essentially free and unconstrained choice or the
result of an overborne will.” State v. Lewis, 539 So. 2d 1199, 1205 (La. 1989)
(internal quotation marks and citation omitted). See also Schneckloth v. Bustamonte,
412 U.S. 218, 236 (1973) (“In determining whether a defendant’s will was overborne
in a particular case, the Court has assessed the totality of all the surrounding
circumstances—both the characteristics of the accused and the details of the
interrogation.”). What survives of Bram is the principle that a confession of guilt
induced by a government promise of immunity is “coerced” and may not be used
against the accused. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347 (1963).
In summary, the interview of defendant at the Violent Crimes Unit began at
9:43 a.m. and was first conducted by Detective Harden, who explained at the hearing
on the motion to suppress that she considered defendant only a “person of interest,”
not a suspect in the double murder. Harden continued to question defendant until
approximately 1:00 p.m., when she left to participate in the execution of a search
warrant at the home of defendant’s uncle, Leroy Moss, on Ritterman Street, where
defendant also resided. 29
At that point, Detective Moore arrived in the interrogation room carrying a
pizza and a bottle of water for defendant. The transcript of the interrogation reveals
that with the change in officers came a change in the tone of the questioning. Because
she initially considered defendant only a person of interest and not a suspect,
Detective Harden engaged defendant in a general conversation about his activities
29
As noted above, the search ended at approximately 6:00 p.m. and led to the recovery of a wad
of cash banded together and found in defendant’s room, and Regions bank bags used by Carquest
to make deposits found in a trash can outside the residence together with some clothing and boots.
In addition, at some point later that evening, an investigator for the District Attorney’s office found
a handgun discarded in some bushes behind Carquest.
97
that weekend and why he was at the Airline Carquest that Sunday afternoon. As
inconsistencies began piling up, Harden informed defendant, “let’s start fresh,” and
then got to the heart of the matter: i.e., the “huge problem” the officer could not get
around, that defendant was “the last person to be in this store with these people.”
Defendant eventually suggested he had not been the last person in the store and that,
as he was leaving, a white woman driving a blue Camry pulled into the parking lot.
When asked by the officer whether the woman, whom no one else had observed on
the scene, killed Mr. Chaney and Mr. Gurtner, defendant replied, “I don’t know. I
don’t know what happened.”
Unlike Detective Harden, Detective Moore considered defendant a suspect
from the outset, and he thus took a more direct approach. After asking defendant
several preliminary questions, Detective Moore suddenly confronted him: “Do you
think with the amount of evidence we got, that you can convince the jury that you
didn’t do this?” Defendant replied that he did not know “what evidence y’all have.”
Moore told him that what the police had was a timeline “from the time you entered
that building to the time you left and then something went bad. . . . Either you did it
or you know who did it. Bottom line.”
Defendant and the detective thereby staked out positions that would not
change for several hours. Detective Moore repeatedly informed defendant that he
did not believe his denials, he committed the murders or knew who did, and he faced
two counts of capital murder with the prospect of capital punishment. (“[I]f I put on
paper what you telling me, son, they gonna stick a needle in your arm. I’m giving
you the opportunity to get your business straight.”) Additionally, Moore repeatedly
told defendant that he (Moore) was defendant’s “lifeline” if, in fact, something had
98
gone wrong that was not part of the plan. (“Son, everything is pointing right at you.
. . . [I]f anything went wrong—listen. Listen bro, I’ll give you a lifeline right now.”)
As the following excerpts demonstrate, in an effort to secure defendant’s
statement, Detective Moore settled on two themes: that things had gone “bad” inside
the Carquest store and that he was potentially defendant’s “lifeline” in what could
be a capital case:
Just keep it real. This is your lifeline, son. And I know you may think
it’s oh, man, it’s the end of the world, it ain’t . . . .
I think things went bad. Come here. I really do bro. And I’m telling you
I can keep you away from possibly getting a death sentence. I’m your
lifeline. . . . . Things went bad Chief. I wanna know that you ain’t a
cold-hearted murder[er]. I wanna see—I wanna be able to say that, ‘Hey
man, this boy here got caught up. Things got bad. And it got bad quick.’
That’s the way I wanna think. . . . I wanna believe deep down in my
heart when I leave outta here, ‘Hey, this was an accident. This wasn’t
supposed to go down like this.’ That’s what I wanna feel. . . . I don’t
wanna think about I’m dealing with a cold blooded [killer], somebody
that’s heartless that don’t care, son. I want—I wanna be able to say,
‘Hey, this kid here made a mistake and good things gonna happen.’ You
know, honesty can take you a long ways bro. . . .
I’m here to be your lifeline bro. I don’t want those people when this
goes to court to think they are dealing with an animal. I want them
people to believe that hey, man, this thing was bad and this thing—this
wasn’t supposed to happen. . . . . This wasn’t supposed to be what it
was. . . .
We about to shut this down. So where we at bro’ cause like I say, I’m
your lifeline. . . . I’m about to get outta here. And I’m gonna tell you
man, it ain’t looking good. . . . .
They [forensics] just leaving Your house and it ain’t good at all. . . . I’m
trying to help you son. I’m trying to keep you from getting a needle
stuck in your arm. I wanna be able to say, ‘Well, at least there’s people
that can come and see him. At least there’s people that can come there
and be, you know, for his life.’ At least your child can still come see
you and be a part of your life . . . .
I’m here to help you. . . . [R]emember what I told you son? Those
people wanna know six at the top, six at the bottom of jurors is you
being honest. I cain’t (sic) make you no promises, but that may save
your life. What happened, son? Why you did it? Things went bad?
99
Detective Moore readily conceded at the suppression hearing that up to this point in
the interrogation, at approximately 8:00 p.m., all of his imploring had no apparent
effect on defendant.
Then, as the detective pulled out a second photograph taken during the
ongoing investigation at Ritterman Street depicting the Regions bank bags in the
trash can, he launched a final attempt at cracking defendant:
Come on son. What happened. . . . Something went wrong. . . . Be a
man and open up and tell me what happened. . . . If something went
bad, that’s what I need to hear, son. . . . I don’t feel it was just cold-
blooded murder. . . . And I want you to explain to us what went down
bro ‘cause I’m telling right now honesty is gonna let you be able to see
your child instead of seeing your child see you—remember I told you
ten years from now watching you on the news [of his execution]. You
don’t want that man. At least you’ll be there. Tell me what happened.
Did things go bad? What did—tell me what happened. It went bad?
Defendant replied, “Yes sir, it did,” and then launched into the Leroy Scales scenario
in which he cast himself in the secondary role as a front man for the true killer. That
scenario did not last long, as Moore then disclosed to defendant that the police had
found a gun discarded behind Carquest:
We’re gonna get DNA and we’re gonna get prints off that. The best
thing for you right now son is to tell me the truth. . . . Will your prints
be on this gun? Did you do this?
Defendant again replied, “Yes, sir,” and told the detective that as he heard the
employee call him a “ni**er,” he just “clicked.” “I needed the money at the time,”
defendant acknowledged, “so that’s what happened.” Defendant stated that he shot
Mr. Chaney once and that after forcing Mr. Gurtner to empty the cash drawer, he
emptied his gun as Mr. Gurtner fled towards the back of the store.
During the course of the interrogation, Detective Moore did not offer
defendant a promise of immunity, either from prosecution for first degree murder or
100
the death penalty, when he held himself out as defendant’s “lifeline.” Moore
acknowledged at the suppression hearing that he had misrepresented some of the
evidence against defendant during the course of the interrogation, such as informing
him that surveillance tapes from businesses in the area had caught his white BMW
circling the block several times before the Carquest shootings (discussed further
below).30 However, his statements about the recovery of the Regions bank bags from
defendant’s room, as evidenced by photographs displayed to defendant, and the
firearm discarded behind Carquest were accurate,31 and it was that evidence which
prompted defendant to give a statement. Thus, Moore’s offer of a “lifeline” appears
to have been an interrogation ploy, but it was not prohibited as “coerced” under
Bram in light of the totality of the facts and circumstances.
With respect to defendant’s argument concerning the length of his interview,
the length of an interrogation is a relevant factor because “empirical studies have
shown that, while most interrogations are brief, those that are known to have
produced false confessions are much longer.” State v. Montejo, 06-1817, p. 23, n.63
(La. 1/16/08), 974 So. 2d 1238, 1257 (discussing Saul M. Kassin et al., Police
Interviewing and Interrogation: A Self-Report Survey of Police Practices and
Beliefs, 31 Law & Hum. Behav. 381 (2007), rev’d Montejo v Louisiana, 556 U.S.
778 (2009), on remand, 06-1817 (La. 5/11/10), 40 So. 3d 952). In this case,
30
Detective Moore characterized the misstatement as an “investigative tool,” as opposed to an
outright lie. Even in the latter case, police may deceive a defendant about the evidence against him
without necessarily rendering any subsequent statement involuntary. Frazier v. Cupp, 394 U.S.
731 (1969) (misrepresentations relevant but do not make an otherwise voluntary confession
inadmissible); State v. Holmes, 06-2988, p. 44 (La. 12/2/08), 5 So. 3d 42, 73 (citing Frazier and
noting “such interrogation techniques have been upheld”).
31
Detective Moore made no representation to defendant that the weapon had in fact already been
tested for DNA and fingerprint evidence and linked directly to him; the detective stated only that
such tests would be performed. Even then, the statement seemingly precipitated defendant’s
confession, though forensic tests ultimately failed to tie the weapon to defendant.
101
defendant was in the Violent Crimes Unit for approximately 11 hours, and roughly
five of those hours involved actual questioning. The remainder of the time, defendant
sat alone in the interrogation room. The 11-hour interrogation in the present case is
no longer than interrogations conducted in three other capital cases in which this
Court upheld voluntariness determinations of the trial court. See Montejo, 06-1817,
pp. 6-7, 974 So. 2d at 1244 (questioning from 4:30 p.m. to 11:00 p.m., and then
again from 3:00 a.m. to 4:00 a.m.); State v. Reeves, 06-2419, pp. 5-6 (La. 5/5/09),
11 So. 3d 1038-39 (questioning from 11:00 a.m. to 12:40 p.m. and then again from
8:00 p.m. until 11:48 p.m.); State v. Blank, 04-0204, pp. 12-13 (La. 4/11/07), 955
So. 2d 90 (continuous 12-hour interrogation). Further, during the 11 hours,
defendant had several bathroom breaks and food and water, and he was not subjected
to any overt physical abuse. Youth is a relevant factor, but defendant was 21 years
old, no longer a juvenile, and he was not coerced into giving a statement by an
experienced police officer taking advantage of his inexperience.
Finally, we turn to defendant’s argument that Detective Moore sought to use
defendant’s girlfriend as leverage, advising (or, in defendant’s words, “threatening”)
defendant that “[I]f things start going in the direction we’re going there’s a chance
you old lady’s gonna get arrested too. . . . It’s called accessory after the fact. . . . you
gotta think about that bro. . . . your old lady don’t need to be sitting in no jail with
no baby in her stomach.”
Threats to inflict harm on third persons are relevant to the voluntariness
determination. State v. Wilms, 449 So. 2d 442, 444 (La. 1984) (“‘Fear that police
will inflict additional harm on another person has been recognized as a substantial
factor in determining the voluntary nature of the confession.’”) (quoting State v.
Johnson, 363 So.2d 684, 686 (La. 1978)). As a general rule, however, “courts have
102
consistently held that confessions given in response to exhortations to consider the
health, well-being and liberty of close relatives are admissible.” State v. Holmes, 06-
2988, p. 44 (La. 12/2/08), 5 So. 3d 42, 73 (internal quotation marks deleted) (citing
State v. Baylis, 388 So. 2d 713, 716 (La. 1980); State v. Winberg, 364 So. 2d 964,
970)); cf. Wilms, 449 So. 2d at 445 (although police had struck defendant’s pregnant
wife in the stomach, defendant’s choice to give a statement remained voluntary and
not coerced by fear his wife would otherwise not receive medical attention). In the
context of a long interrogation during which defendant maintained his innocence
until the very end when confronted with hard evidence that he had committed the
double murder, including when the “threat” on his girlfriend was made, Moore’s
comments do not appear sufficient to have overborne defendant’s will and
undermined the voluntariness of his confession. Cf. Lynum v. Illinois, 372 U.S. 528,
534 (1963) (defendant’s oral confession made after police encircled her and told her
state financial aid would be cut off for her infant children, and her children taken
from her, if she did not cooperate, “must be deemed not voluntary, but coerced.”).
Assignment of Error No. 21
Defendant argues that the warrant used to search the residence on Ritterman
Drive was issued in violation of the Fourth Amendment due to misleading
information contained therein, and the trial court therefore erred by not suppressing
the illegal fruits of that search. Defendant further argues that he did not confess until
investigators confronted him with the evidence obtained pursuant to the search
warrant. As such, he argues that trial court should have suppressed his confession as
a derivative of the illegal search.
The affidavit accompanying the application for the search warrant contained
the following pertinent information:
103
• A witness informed detectives she had become concerned about one of the
victims after he did not answer his phone after approximately 3:00 p.m., the
closing time for the business;
• The witness drove to the store to check on the victim, noticed the front door
was unlocked, and upon entering the business, found the victim, Edward
Gurtner, deceased, and immediately exited the building and called 911;
• Police arrived on the scene and ultimately found a second victim, Randy
Chaney, deceased inside the building;
• Another relative of one of the deceased men informed detectives that she
attempted to contact the deceased at 3:13 p.m., to no avail;
• In the course of investigating the double homicide, detectives learned that an
employee had clocked out at the Carquest location at 2:47 p.m.;
• That employee, Braillon Jones, informed detectives that he left the business
at 2:47 p.m., and at that time, Mr. Gurtner and Mr. Chaney were still at work
inside the building;
• When Jones left the building, he observed a black male enter the building and
ask for “Eddie” [Gurtner]; Mr. Chaney informed the subject that Mr. Gurtner
was in the back, and the subject walked towards the back of the warehouse;
• Jones then left the building and observed a light-colored, older model 4-door
car parked next to his vehicle on the north side of the business;
• Detectives learned that on the morning of the shootings, Mr. Gurtner had
identified “Lee” as being present at the Carquest to a witness, and had further
identified a vehicle parked in the rear parking lot as Turner’s vehicle; the
witness later provided this information to detectives;
104
• Detectives identified Turner as a new employee of Carquest, and were
informed he was not assigned to the location where the homicides occurred;
• Detectives made contact with Turner, who accompanied detectives to the
Violent Crimes Unit, where he made the following admissions:
a. Turner visited the Carquest where the homicides occurred the morning
of the shootings, and parked his white 1990 BMW behind the business;
b. Turner returned to the business that afternoon around 2:47 p.m. and
remained in the building until closing at 3:00 p.m.;
c. Turner unlocked the back door to the business, but forgot to lock it
back;
d. Turner witnessed Mr. Chaney remove the cash drawer from the register
just before closing time;
e. Turner left the business around closing time, and stated that Mr. Gurtner
and Mr. Chaney were alone and still inside the building when he left;
• Turner provided detectives the name and contact information for an alibi
witness whom he stated he was with during the morning of the murders;
Detectives contacted this alibi witness, who informed them she had no
contact with Turner until approximately 4:00 p.m. the day of the murders;
• When confronted with this conflicting information, Turner changed his story
regarding his whereabouts on the morning of the murders several times;
• Several witnesses placed Turner at the business and as the last person with
the victims before their deaths;
• Detectives obtained surveillance video footage from nearby businesses, and
observed a vehicle matching the description of Turner’s vehicle “circling the
105
block” on which the Carquest was located three times after 3:00 p.m. on the
day of the murders.32
Defendant argues that the last portion of the affidavit, specifically concerning
the surveillance footage obtained from a nearby business, was an intentional
misrepresentation, and as such, the trial court should have quashed the search
warrant and suppressed all evidence as a result thereof. At the hearing on defendant’s
supplemental/second motion to suppress physical evidence, Detective Locicero
testified that he prepared the affidavit accompanying the application for the search
warrant for Turner’s residence. He further testified that, although the affidavit
contained information that a vehicle matching the description of Turner’s vehicle
was seen “circling the block” on which the Carquest was located three times after
3:00 p.m., Detective Locicero did not personally view the videos himself, but
received that information from another officer, whose name he could not recall. He
was aware that an officer with the Baton Rouge City Police, Detective Phillip
Chapman, was the person responsible for obtaining that video footage.
Detective Harden testified that she viewed the video footage after the search
warrant had been executed, and recalled seeing a white car in the video pass by more
than once, but could not recall further specifics.
Detective Chapman also testified at the hearing. He testified that he canvassed
the area near the Carquest for surveillance video footage at the direction of Captain
Todd Morris, who informed Chapman that they were looking for a white, BMW-
type car. Chapman viewed a video from a nearby business that appeared to show a
white vehicle that could have been a BMW pass the location three times. He could
32
The affidavits were introduced into evidence at the hearing on defendant’s motion to suppress,
but were not introduced at trial.
106
not definitively state whether the vehicle was a BMW, though he believed it to be a
BMW because “the outline of it was kind of . . . sporty[.]”Chapman also stated that
he could not see the driver or a license plate, and because the business from which
the surveillance was taken was located on a 90-degree corner, he could only see the
front passenger side of the vehicles in question as they passed by. Chapman also
remarked that “nowadays they are all starting to look the same, but it looked like it
could possibly be a BMW.” Chapman reported his findings to Captain Todd Morris
and had no further involvement in the case.
Defendant takes issue with the fact that the affidavit states that a “white four
door vehicle matching the description of Lee Turner’s white BMW . . . [was
observed] circling the block of the business Carquest after 3:00 p.m.” Defendant
argues that, at best, the video evidence shows three different instances in which a
white car drove down a certain street, and that the language in the affidavit was a
“pure misrepresentation.” Defendant further argues that because Detective Locicero
did not view the video himself, nor could he identify who had provided him the
information concerning the footage, the ensuing statement Detective Locicero made
in the affidavit was an intentional misrepresentation.
An affidavit is presumed to be valid; the defendant has the burden of showing
by a preponderance of the evidence that the affidavit contains false statements.
Franks v. Delaware, 438 U.S. 154, 156 (1978); State v. Brannon, 414 So. 2d 335,
337 (La. 1982); State v. Wollfarth, 376 So. 2d 107, 109 (La. 1979). Once the
defendant has shown that the affidavit contains false statements, the burden shifts to
the state to prove the veracity of the allegations in the affidavit. If the court finds that
the affidavit contains misrepresentations, it must decide whether the
misrepresentations were intentional. State v. Smith, 397 So. 2d 1326, 1330 (La.
107
1981). If the court finds the misrepresentations were intentional, the search warrant
must be quashed. See, e.g, State v. Rey, 351 So. 2d 489, 492 (La. 1977); State v.
Neisler, 94-1384, p.8 (La. 1/16/96), 666 So. 2d 1064, 1068. If, on the other hand, the
court finds that the misrepresentations were inadvertent or negligent, the inaccurate
statements should be excised and the remaining statements tested for probable cause.
Rey, 351 So. 2d at 492.
Defendant is correct to point out that the only fact that can actually be inferred
from Detective Chapman’s observations of the footage is that three white cars passed
nearby the Carquest on the afternoon in question, around the time of the homicides.
Yet, the affidavit seems to ascribe more significance to these observations. Notably,
however, the affidavit does not state that the footage showed defendant’s vehicle
circling the block three times; it merely states that a vehicle fitting the description of
defendant’s vehicle circled the block three times. At its broadest, the phrase “fitting
the description of [a white BMW]” would include a white car.
The affidavit’s “circling” terminology warrants additional scrutiny, because it
implies that the same white vehicle, whether defendant’s vehicle or not, was seen
three times on the video. Based on Officer Chapman’s testimony, defendant argues
that there was not enough evidence for him to conclude that the white vehicle(s) he
saw was in fact the same vehicle each time it appeared on the video. Assuming solely
for purposes of this analysis that it was misleading, the question is whether the
misrepresentation was intentional. Considering the facts as testified to in the hearing,
defendant did not meet his burden in showing an intentional misrepresentation.
Detective Locicero did not view the video footage himself, and instead relied on
information from “someone in law enforcement” to draft the affidavit. Probable
cause exists when the facts and circumstances within the affiant’s knowledge, and
108
those of which he has reasonably trustworthy information, are sufficient to support
a reasonable belief that contraband or evidence may be found at the place to be
searched. State v. Duncan, 420 So. 2d 1105, 1108 (La.1982). Defendant points to
nothing in the record to show that Detective Locicero unreasonably relied on
information he obtained from another law enforcement officer in drafting this
portion of the affidavit at issue. 33 There was therefore no error in the trial court’s
denial of defendant’s supplemental motion to suppress the physical evidence.
Moreover, even if Detective Locicero was negligent in including a statement
concerning the surveillance footage without personally viewing that footage himself,
defendant’s remedy is to have the affidavit retested with the negligent
misrepresentations excluded. After the first hearing on defendant’s motion to
suppress, the trial court did just that, and concluded that even without the redacted
information concerning the surveillance footage, there still existed probable cause to
issue the search warrant. No error is apparent in the court’s ruling that the redacted
affidavit still established probable cause for the search on the basis of what defendant
had already confided to Detectives Harden and Moore. Specifically, putting aside
entirely the information about the vehicle, defendant stated that he was present at
Carquest at closing time on that Sunday afternoon and that he had unlocked the back
door, and then forgot to lock it; further, the investigation had already independently
revealed that the shootings occurred between 2:47 p.m. and 3:13 p.m., meaning
defendant was the last known person to have seen the victims alive. The application
thus established a fair probability that defendant was involved in the homicides and
that the fruits and instrumentalities of the crime would be found in his residence, as
33
The fact that Detective Locicero did not view the footage himself, and instead reasonably relied
on information from a colleague in drafting that portion of the affidavit, undercuts defendant’s
argument that Detective Locicero intentionally misrepresented the information to the court.
109
in fact they were. State v. Vernado, 95-3127, p. 2 (La. 5/31/96), 675 So. 2d 268, 270
(“In many cases, the nature of the crime may make it appropriate to assume that the
fruits and instrumentalities of the offense are probably stored in the suspect’s
residence. . . . ‘Where the object of the search is a weapon used in the crime or
clothing worn at the time of the crime, the inference that items are at the offender’s
residence is especially compelling.’”) (quoting 2 Wayne R. LaFave, Search and
Seizure, § 3.7(d), p. 384 (3d ed. 1996)).
Given the above, defendant’s related argument that his confession was the
product of an illegal search and should have been suppressed is moot. 34
PENALTY PHASE ISSUES
Defendant raises additional assignments of error related to the penalty phase
of his trial (Nos. 22-31). Because we have determined the death sentences must be
reversed, we do not reach these claims.
MISCELLANEOUS
Assignment of Error No. 32 – Cumulative Error
In his final assignment of error, defendant argues that cumulative error
deprived him of due process, a fair trial, and a reliable sentencing determination in
violation of his rights under the United States and Louisiana Constitutions.
This Court has held: “[T]he combined effect of the incidences complained of,
none of which amounts to reversible error [does] not deprive the defendant of his
right to a fair trial.” State v. Copeland, 530 So. 2d 526, 544–45 (La. 1988), quoting
State v. Graham, 422 So. 2d 123, 137 (La. 1982), appeal dismissed, 461 U.S. 95034
Defendant also argues that the items found in garbage cans outside of his residence were within
the curtilage of the home, and therefore protected by the Fourth Amendment’s warrant
requirement. However, because the trial court did not err in denying defendant’s motion to
suppress, this issue is moot.
110
(1983). Although the Court has often reviewed cumulative error arguments, it has
never endorsed them. Instead, the Court has consistently found that harmless errors,
however numerous, do not aggregate to reach the level of reversible error. See, e.g.,
State v. Strickland, 93-0001, pp. 51-52 (La. 11/1/96), 683 So. 2d 218, 239; State v.
Tart, 94-0025, p. 55 (La. 2/9/96), 672 So. 2d 116, 164; State v. Copeland, 530 So.
2d 526, 544-45 (La. 1988) (citing State v. Graham, 422 So. 2d 123, 137 (La. 1982);
State v. Sheppard, 350 So .2d 615, 651 (La. 1977)). See also Mullen v. Blackburn,
808 F.2d 1143, 1147 (5th Cir. 1987) (rejecting cumulative error claim and finding
that “twenty times zero equals zero”).
CONCLUSION
For the reasons set forth herein, defendant’s convictions for first degree
murder are affirmed. Defendant’s sentences of death are vacated and set aside, and
the case is remanded to the district court for further proceedings.
CONVICTIONS AFFIRMED; DEATH SENTENCES REVERSED; CASE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.
111
12/05/18
SUPREME COURT OF LOUISIANA
No. 2016-KA-1841
STATE OF LOUISIANA
VERSUS
LEE TURNER, JR.
FROM THE NINETEENTH JUDICIAL DISTRICT COURT
FOR THE PARISH OF EAST BATON ROUGE
GUIDRY, J., concurs in part, dissents in part, and assigns reasons.
While I concur in the majority’s affirmance of the defendant’s convictions on
two counts of first degree murder, I respectfully dissent from the majority’s finding
that the trial judge’s ruling on the scope of voir dire requires vacating the sentences
and remanding for a new sentencing hearing. Even if the trial court “overcorrected”
defense counsel, who had employed a hypothetical that too closely tracked the
alleged facts of the case, the defendant has not sufficiently shown that this ruling
significantly and negatively impacted his ability to conduct a full and complete voir
dire. The example juror cited by the majority, Sherri Harris, could have been asked
by defense counsel to explain more fully her comments that “some crimes that are
so horrendous that [they] should just automatically get the death penalty” and that
she would likely be for “automatic death in cases that are very violent, in children,
and blah, blah, blah, you know.” Similarly, juror Ashley Andrews could have been
asked to explain more fully her belief that “certain crimes” would merit imposition
of the death penalty. However, counsel did not pursue a more open-ended approach
to voir dire with regard to these jurors. Accordingly, I do not find the defendant has
demonstrated the trial court’s ruling rendered voir dire constitutionally inadequate.
12/05/18
SUPREME COURT OF LOUISIANA
No. 2016-KA-1841
STATE OF LOUISIANA
VERSUS
LEE TURNER, JR.
ON APPEAL
FROM THE NINETEENTH JUDICIAL DISTRICT COURT
FOR THE PARISH OF EAST BATON ROUGE
Hughes, J., concurs in part and dissents in part for the reasons assigned
by Guidry, J.
1