                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                             NEWS RELEASE #043


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 1st day of September, 2015, are as follows:



BY CLARK, J.:


2013-KA-1631      STATE OF LOUISIANA v. LAMONDRE TUCKER (Parish of Caddo)(First
                  Degree Murder)

                  Retired Judge Burrell J. Carter,     assigned   as   Justice   ad   hoc,
                  sitting for Crichton, J., recused.

                  For the reasons assigned herein, the defendant’s conviction and
                  death sentence are affirmed. In the event this judgment becomes
                  final on direct review when either:    (1) the defendant fails to
                  petition timely the United States Supreme Court for certiorari;
                  or (2) that Court denies his petition for certiorari; and either
                  (a) the defendant, having filed for and been denied certiorari,
                  fails to petition the United States Supreme Court timely, under
                  its prevailing rules, for rehearing of denial of certiorari; or
                  (b) that Court denies his petition for rehearing, the trial judge
                  shall, upon receiving notice from this Court under La. C.Cr.P.
                  art. 923 of finality of direct appeal, and before signing the
                  warrant of execution, as provided by La. R.S. 15:567(B),
                  immediately notify the Louisiana Public Defender Board and
                  provide the Board with reasonable time in which:    (1) to enroll
                  counsel to represent the defendant in any state post conviction
                  proceedings, if appropriate, pursuant to its authority under La.
                  R.S. 15:178; and (2) to litigate expeditiously the claims raised
                  in that original application, if filed, in the state courts.
                  AFFIRMED
09/01/15

                             SUPREME COURT OF LOUISIANA

                                         NO. 2013-KA-1631

                                     STATE OF LOUISIANA

                                               VERSUS

                                      LAMONDRE TUCKER

                                   ON APPEAL
                     FROM THE FIRST JUDICIAL DISTRICT COURT
                           FOR THE PARISH OF CADDO


CLARK, Justice

          This is a direct appeal under La. Const. art. V, § 5(D) by the defendant

Lamondre Tucker.1 In November 2008, a Caddo Parish grand jury indicted the

defendant for the first degree murder of Tavia Sills, in violation of La. R.S. 14:30.

After a trial, the jury found the defendant guilty as charged. At the conclusion of

the penalty phase of the trial, the jury unanimously returned a verdict of death,

finding the aggravating circumstances that: (1) the defendant was engaged in the

perpetration or attempted perpetration of second degree kidnaping; and (2) the

defendant knowingly created a risk of death or great bodily harm to more than one

person. The trial court sentenced the defendant to death in accordance with the

jury‟s determination. Defendant now appeals his conviction and sentence, raising

55 assignments of error, variously combined into 21 arguments.2 After a thorough

review of the law and the evidence, we find no merit in any of the assignments of

error. Therefore, we affirm the defendant‟s conviction and sentence.
*
    Retired Judge Burrell J. Carter, assigned as Justice ad hoc, sitting for Crichton, J., recused.
1
  Defendant‟s birth certificate indicates his name is Lamondre Markes Tucker Metcalf, and lists
his father as Alonzo Vantroy Metcalf and his mother as Alicia Ann Tucker. Alonzo Metcalf is
deceased and defendant uses his mother‟s surname.
2
  The assignments of error not discussed in the body of this opinion are addressed in an
unpublished appendix comprising a part of the official record in this case.
                    FACTS AND PROCEDURAL HISTORY

      In September 2008, Tavia Sills was nearly five months pregnant. A few

weeks earlier, she had informed 18-year-old Lamondre Tucker that she believed he

was the father of her unborn child. On September 9, 2008, Tucker picked Tavia up

at the home of her mother, Vickie Britton. Tucker claimed that his sister, Alexis

Metcalf, had asked to meet Tavia after learning of the pregnancy. Before leaving,

Tavia demonstrated some trepidation; she asked her mother to pray with her and

then gave her defendant‟s phone number.

      A few hours later Tucker returned without Tavia and informed Mrs. Britton

that, at Tavia‟s request, he had dropped her off at the apartment of her older sister,

Toquilla Sills.   Mrs. Britton became alarmed because she knew her daughter

Toquilla was not at home, as she had been hospitalized due to complications from

her own pregnancy. Mrs. Britton contacted Shreveport police.

      Sergeant John Youngblood investigated the missing person report. He spoke

with Tucker at his high school, Booker T. Washington. Tucker told him that he

had dropped Tavia off at the Prince Village Apartments in Shreveport. Sergeant

Youngblood obtained surveillance videos from the apartment complex and

discovered that Tucker, Tucker‟s car and Tavia did not appear in any of the videos.

      On September 12, 2008, a couple fishing by a secluded pond near Legardy

Street in Shreveport discovered the decomposing body of Tavia Sills floating in the

water. Tavia had been shot three times. Two shots perforated soft tissue at the

base of her neck and her upper arm. The fatal, penetrating shot was fired into her

back, perforated her lung, and fractured a rib.

      Tucker accompanied Detective Rod Demery, the lead homicide investigator,

and Sergeant Youngblood to the police station the evening of September 12, 2008.

Tucker was arrested, Mirandized, and interviewed around midnight. In an audio-

                                          2
recorded interview, Tucker claimed he took Tavia to meet his sister, who was not

at home, so he dropped her off at the Prince Village Apartments. Detective Demery

informed Tucker that the surveillance video proved that he was lying and the

detective indicated that he was turning off the recorder. The detective, however,

continued to record the interview. Tucker then explained that he dropped Tavia off

on the corner near the Prince Village Apartments at her request (outside the range

of the surveillance video). Defendant was transported to jail.

       Late the next morning, after attending the autopsy, Detective Demery

interviewed Tucker at the jail. The detective allowed Tucker to call and speak with

his mother. Tucker then admitted that he had taken Tavia to the pond where her

body was found. Near the pond, Tucker claimed he found a tackle box containing

a pistol. Tucker claimed that when he held the pistol up it accidentally discharged,

twice, hitting Tavia. Tucker said he then ran away and discarded the gun in a

drainage canal near Linear Street just off of Dr. Martin Luther King Drive. Tucker

agreed to accompany the detective to show him where he discarded the gun. A

diver recovered a CZ .40 caliber semi-automatic pistol from the drainage canal. A

firearms examiner later determined that three .40 caliber cartridge cases found by

the pond were ejected when this pistol was fired. The firearms examiner was

unable to determine, however, that the fatal bullet recovered during the autopsy

was fired by the pistol (although it had the same general class characteristics).

       Tucker, after being interviewed repeatedly throughout the day on September

13, 2008, eventually abandoned the tackle box story and admitted he had obtained

the pistol from Marcus Taylor a few days before the shooting.3 Tucker said Taylor


3
  Taylor was indicted for second degree murder, tried, found guilty of manslaughter, and
sentenced to 30 years imprisonment at hard labor. The conviction and sentence were affirmed on
appeal. State v. Taylor, 49,467 (La. App. 2 Cir. 1/14/15), 161 So.3d 963. When interviewed by
police, Taylor admitted that he gave the pistol to Tucker but claimed he did not believe he would
use it. Taylor said Tucker shot Tavia Sills and began pouring lighter fluid on her. Tavia jumped
into the pond to avoid being set on fire. Tucker then shot her again. Taylor claimed he then
                                               3
had accompanied them to the pond. Tucker claimed he offered to teach Tavia to

shoot and he handed her the pistol. He said he tried to grab it back from her

because she wasn‟t holding it in a safe manner, which is when it discharged twice

accidentally. Tavia was shot and fell to the ground. Taylor suggested they call the

police but Tucker was frightened and pushed Tavia, who was still alive, into the

pond. Tucker said he then shot her again, deliberately this time to be certain she

was dead, and Taylor used a branch to push her farther out into the water.

Although the third shot would have been imminently fatal, the coroner could not

exclude the possibility that Tavia had drowned.

       During the course of the investigation, several witnesses were interviewed.

Alexis Metcalf, Tucker‟s sister, confirmed that Tucker did not bring Tavia to meet

her on September 9, 2008. Tavia‟s sister, Toquilla, confirmed that she was at the

hospital on that date and said that Tavia in fact had visited her there earlier that

day. Tamara Bates, the mother of Tucker‟s three-year-old son, told police she and

Tucker had argued about the status of their relationship when she learned of

Tavia‟s pregnancy just a few days before Tavia was reported missing. Chasmine

Hamilton, Tucker‟s close friend, said Tucker confided in her when he learned

Tavia was pregnant and expressed the desire to beat Tavia to cause a miscarriage.

Charles Wilson, Tucker‟s friend, said that Tucker had asked him on September 11,

2008, to claim he saw him drop Tavia off at the Prince Village Apartments. Glen

Taylor, another friend of Tucker, told police that Tucker told him that he and

Marcus Taylor pushed Tavia into the pond, Tucker shot her, Tavia asked Tucker

what he was going to tell his mother, and then Tucker shot her again. Catherine

Golston, who lives near the pond, said she heard a young woman screaming nearby

and looked and saw that she was pregnant. According to Golston, the young

woman was afraid of the cattle that pastured along the path to the pond. Golston

reluctantly helped Tucker push her body out farther into the pond with a branch.
                                                4
also heard Tucker‟s voice, which she recognized, trying to calm the young woman.

Later she heard two gunshots and then a third.

      Subsequent DNA testing proved that Tucker was not the father of Tavia‟s

unborn child. Expert witnesses estimated that the male fetus was 19 weeks old,

healthy, and barring unforeseen complications, believed Tavia would have carried

him to full term and given birth to a healthy infant. The experts indicated that a

19-week-old fetus is not viable outside of the womb.

      Tucker was indicted for first degree murder. By bill of particulars, the state

clarified that Tucker committed first degree murder by killing Tavia Sills while

engaged in the perpetration of a second degree kidnapping and when he had the

specific intent to kill or inflict great bodily harm upon more than one person.

Tucker filed a motion to suppress his statements, in which he contended they were

involuntarily and unknowingly made, as well as made after he invoked his right to

remain silent and to the assistance of counsel. The motion was denied after an

evidentiary hearing held on March 10, 2010. At the hearing, the state presented the

testimony of Detective Demery and Sergeant Youngblood that Tucker voluntarily

accompanied them to police headquarters, was Mirandized, signed a rights waiver,

and voluntarily gave a series of increasingly incriminating statements after initially

denying any involvement. The defense presented the testimony of Tucker‟s

grandmother, Ora Ellis, Tucker‟s mother, Alicia Tucker, and Tucker. According to

Alicia Tucker and her son, Detective Demery promised that if Tucker would

confess to an accidental shooting then the charge would be reduced to

manslaughter and her impounded car would be returned to her.

      Jury selection began on March 14, 2011, and was completed on March 19,

2011. Six panels of approximately 16 prospective jurors each were examined.

Eight prospective jurors were excluded by joint agreement. For each panel, death

                                          5
qualification preceded general voir dire. During death qualification, the state

challenged 35 prospective jurors for cause, of which 33 were granted, and the

defense challenged 12 prospective jurors for cause, of which 6 were granted.4

During general voir dire, the state made three cause challenges, of which two were

granted without objection by the defense, and the defense made 12 cause

challenges, of which 8 were granted (6 without objection by the state). Nineteen

peremptory challenges were exercised including two backstrikes.5 A jury of 12

with 2 alternates was selected.6

       During jury selection three significant events occurred. First, the defense

filed motions to quash on the basis that the state had not given notice that it was

seeking the death penalty. Specifically, the defense noted the state had not filed a

notice of intent to seek the death penalty and argued that although the state had

responded with particulars identifying that it was proceeding under La. R.S.

14:30(A)(1) and (3) regarding the offense, it had not clarified that it would seek a

capital penalty in accordance with La. R.S. 14:30(C)(1). After these motions were

denied, the defense sought supervisory review and the court of appeal denied writs

on the showing made.7          Second, after the state challenged prospective juror

Richard Clark (a black male) based on his opposition to the death penalty, the

4
  The defense objected to only 5 of the state‟s 35 cause challenges during death qualification.
The state objected to 8 of the defense‟s 12 cause challenges during death qualification.
5
  Dawn McCutcheon (white female), Micah Walker (white female) (backstrike), Helen Colbert
(white female), Brian Godfrey (black male), Lisa Mills (black female), Brandy Harvey (black
female), Philip Alford (white male), John Forehand (white male), Rachal Foreman (black
female), Candice Sweat (white female), Joy Birch (white female), Patricia Johnson (white
female), Alan Ogden (while male), Robert Litton (white male), Alvin Coco (black male), Robert
Rogers (white male), Clarence Hicks (black male) (backstrike), Mary Nordberg (white female),
William Ricks (white male). The record does not clearly indicate which side exercised each
peremptory challenge. Of these 19 prospective jurors removed by peremptory challenge, 7 were
unsuccessfully challenged for cause earlier by the defense (Forehand, Birch, Johnson, Litton,
Coco, Rogers, Hicks), and 2 were unsuccessfully challenged for cause earlier by the state
(Colbert, Ricks).
6
  Mary Irvin (white female, later chosen to be foreperson), Madge Berry (white female), Linda
Morgan (white female), Lillie Richmond (black female), Edwin Sutton (white male), Abby
Beazley (white female), Carol Gray (white female), Anita Spencer (black female), Ginger Blair
(white female), Lisa Devincent (white female), Amy Lawler (white female), Cristin Davis (white
male), Mark Huffty (white male, alternate), and Kristen Hiers (white female, alternate).
7
  State v. Tucker, 46,510 (La. App. 2 Cir. 3/18/11) (unpub‟d).
                                              6
defense objected that the death qualification process was disproportionately

excluding blacks from the jury.8 However, the defense emphasized that it was

neither asserting a Batson9 challenge nor accusing the prosecutors of exercising

challenges on the basis of race. Third, after prospective juror Latisha Griffin

changed her views on the death penalty overnight, a brief recess followed after

which defense counsel informed the court they believed someone had spoken with

this prospective juror and persuaded her to change her answers.                   Griffin was

examined and admitted that she had received a three-way telephone call the night

before in which Tucker urged her to change her answers to questions about the

death penalty. Defense counsel then moved to withdraw based on a conflict of

interest resulting from being witnesses to jury tampering by their client; the trial

court denied the motion.

       Opening statements commenced on March 20, 2011. The state described

how it believed the crime occurred, summarized the evidence it would present, and

explained how that evidence established the elements of the crime. The defense

acknowledged that a tragedy had occurred and expressed its sympathy, reminded

the jury of the state‟s burden of proof, and asked the jury to keep an open mind

until they heard all of the evidence. The state presented the testimony of 22

witnesses, including three members of the victim‟s family, four friends or family

of Tucker, seven law enforcement officers, two obstetricians, a forensic DNA

analyst, a firearms examiner, and a forensic pathologist.10 The defense rested

without presenting any testimony or evidence.

       In closing, the state summarized the elements of the offense and the

evidence proving them; emphasized that Tavia Sills and her unborn child were

8
  The defense also objected to the state‟s cause challenge to prospective juror Melvin Richardson
on the same basis.
9
  Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
10
   The defense only briefly cross-examined 6 of the state‟s witnesses and did not cross-examine
15 witnesses at all.
                                               7
both alive and healthy when last seen with Tucker; argued Tucker‟s specific intent

could be inferred from his admission that he fired a final shot to ensure the victim

died; noted that Tucker‟s story changed several times during police interviews;

argued Tucker killed Tavia Sills to save his relationship with Tamara Bates; and

emphasized Tucker has never shown remorse. The defense‟s brief closing remarks

follow:

              Good evening, ladies and gentlemen. I will not belabor the
       evidence in this case, ladies and gentlemen, simply because the facts
       are not in dispute. What is in dispute is the legal analysis. What we
       submit to you is that Lamondre is guilty of the second degree murder
       of Ms. Tavia Sills and the feticide of her unborn child; that is, the
       killing of the unborn child with specific intent to kill or inflict great
       bodily harm. Thank you.

R.18 at 3849-50. In rebuttal, the state responded that the crime is not a second

degree murder but rather a cold-blooded killing. The state described the crime to

the jury, emphasizing the fear Tavia would have experienced. During the state‟s

rebuttal, Tucker created a disturbance and was removed from court at the request

of the defense.11 The state then continued its closing remarks, emphasizing Tucker

could have sought medical attention but instead chose to push the victim into the

water and shoot her again. Thus, the state argued the crime was too cold-blooded

to be a second degree murder.


11
  Defense counsel asked that his client be removed:
       Mr Goins: Your Honor, given the circumstances, we make a request Mr. Tucker
       be removed for the remainder.
       The Court: and that‟s the request of defense counsel?
       Mr. Goins: Yes, Your Honor, it is.
       The Court: Court would accede to that request.
       Mr. Goins: And at Mr. Tucker‟s own request.
       The Court: And at his request.
       Mr. Cox: Your Honor, I‟d just like to make it clear for the record, because the
       defendant does have a right to be present at all proceedings, that this is something
       the accused has requested.
       The Court: Anything else, Mr. Cox?
       Mr. Cox: No. I just wanted to make that sure for the record.
       The Court: That‟s why I asked was that a request of defense counsel. And defense
       counsel indicated yes, along with the request of defendant.
       Mr. Goins: Correct.
R.18 at 3854-55.

                                                8
          On March 22, 2011, the jury found defendant guilty as charged of first

degree murder. The penalty phase commenced on March 23, 2011. In its opening

remarks, the state asked the jury to consider the circumstances of the offense and

Tucker‟s character and propensities, and the state summarized the evidence

presented at trial with an emphasis on defendant‟s cold-heartedness. The defense

informed the jury that, rather than discussing the crime, it would tell the jury about

the other 18 years of Tucker‟s life, which included an unstable home environment

with abusive men, as well as his efforts to turn his life around through football.

          The state presented three victim-impact witnesses: Vickie Britton (the

victim‟s mother), Toquilla Sills (the victim‟s older sister), and Lashun Gipson (the

victim‟s godmother).12 Mrs. Britton described her daughter as a student studying at

Southern University to become a phlebotomist who was excited about her

pregnancy and was well-loved by the community. She testified that she was

profoundly affected by her daughter‟s death. Toquilla Sills described how the

victim helped care for her children despite working two jobs and attending school.

She said they were both looking forward to raising their children together closely.

Ms. Sills described experiencing drastic weight loss following the loss of her sister

and what would have been her first nephew. Lashun Gipson described how she

first met the victim and how closely they bonded. Ms. Gipson described the victim

as being like a daughter to her.

          The defense presented six witnesses: Alicia Tucker (Tucker‟s mother),

Alexis Metcalf (Tucker‟s older sister), Danny Blackman (who was at one time

involved with Tucker‟s mother), Kevin Richardson (Tucker‟s cousin), Rev. Rickey

Moore (who employed Tucker on occasion), and Kalan Washington (Tucker‟s

former teacher, football coach, and mentor). Alicia Tucker described how she had

a series of tumultuous relationships with abusive men and drug dealers, and
12
     The defense did not cross-examine these witnesses.
                                                 9
claimed the family was displaced so often that she could not recall the number of

residences Tucker lived in or schools he attended. During her testimony, pictures

from her family scrapbook were projected for the jury. Of particular note during

her testimony (as is discussed below), is that when defense counsel asked her the

opened ended question “What happened at Booker T. Washington?”, she

responded that her son had been accused of rape after engaging in consensual sex

with a younger girl.13 Alexis Metcalf testified that Tucker treated her sons and his

own son well.       Danny Blackman testified he considered Tucker to be like a

stepson. Blackman said Tucker loved horses, played football, and never gave him

any trouble. Kevin Richardson described Tucker as an easy going person who

enjoyed playing with children. Rev. Rickey Moore testified that he hired Tucker to

help care for his horses and to teach his son to ride. Kalan Washington said

Tucker, who participated in his youth mentoring program, was a smart player who

could have gone on to play college football. According to Washington, Tucker

would stand up for other children and became frustrated when he believed

something was unfair.

       The state vigorously cross-examined the defense witnesses. The state

elicited that defendant, at age 13, was accused of shooting a neighboring child with

a BB gun; was repeatedly disciplined at school for fighting; and pleaded guilty to

misdemeanor carnal knowledge after being accused of rape.                     The state asked

Blackman, Richardson, and Washington if they were familiar with the nature of the

crime Tucker was convicted of committing. The state showed these witnesses two

crime scene photos and asked whether it would change their opinion of Tucker‟s

character if he admitted he had committed the crime. The defense objected during

the testimony of two of the witnesses and moved for a mistrial. The defense
13
  According to the defense, counsel intended to elicit information about Tucker‟s participation in
football. Defense counsel attributes her response to the breakdown in communication that
followed the jury tampering incident.
                                               10
objected to the state giving Blackman details of the crime of which he was not

aware. The trial court sustained the objection and admonished the state not to

testify.   The defense also objected to state‟s badgering of Washington (who

provided several rambling and non-responsive answers during the state‟s cross-

examination). The trial court denied the motions for mistrial.

       In closing, the state depicted defendant as a cold-blooded murderer who

callously destroyed a family and tried to get his friends to cover for him. The state

noted his poor school disciplinary record and that he was previously convicted of

misdemeanor carnal knowledge of a juvenile. The state characterized the defense

mitigation case as establishing only that Tucker likes horses and football. The state

argued Tucker killed the victim believing he could then simply go off to college to

play football. Regarding Alicia Tucker‟s scrapbook, the state noted that the

victim‟s family will not have the opportunity to make a comparable one. The state

claimed that Tucker has never expressed any remorse.

       The defense, in closing, asked the jury to spare defendant‟s life, emphasizing

that Tucker was an immature high school teenager who acted uncharacteristically

under the pressure of repeating his last year of high school and his complicated

relationships with Tamara Bates and the victim. The defense dismissed the state‟s

cross examination as involving minor things that many children engage in, such as

poor behavior at school and misuse of BB guns. Regarding remorse, the defense

argued that children typically show no remorse and suggested that lack of remorse

might be considered a mental defect, i.e., a mitigating circumstance. The defense

pleaded for life in prison so that Tucker would have the opportunity to develop

remorse. Noting that defendant has a son, the defense asked the jury to not act in

anger and do something they would regret later.

       The state responded in rebuttal that defendant‟s repeated expulsions and

                                         11
suspensions suggest he lacks the capacity to learn from his mistakes or develop

remorse. Although the defense characterized Tucker as lacking mental capacity,

the state noted that his coach had described him as an intelligent football player

with college potential. Although the defense characterized Tucker as impulsive,

the state countered that the crime was coldly planned. In conclusion, the state

contended that death was the only penalty proportionate to the harm inflicted on

the victim‟s family.

         At the conclusion of the penalty phase, the jury returned a verdict of death.

Shortly thereafter, the Louisiana Capital Assistance Center enrolled to represent

Tucker on appeal and filed numerous motions, culminating in an omnibus motion

for new trial.14 On June 29, 2011, the trial court denied the omnibus motion and

sentenced Tucker to death in accordance with the jury‟s determination.

         Tucker subsequently filed a motion to reconsider sentence in which he

contended that his immaturity in conjunction with his diminished capacity renders

him ineligible for the death penalty because he was just five months past his

eighteenth birthday at the time of the crime and he has a full scale IQ of 74. He

also filed a motion for new trial, alleging that the victim‟s mother had forgiven him

and found peace; he was not the shooter; and he had evidence rebutting the state‟s

negative depiction of him in the penalty phase. Following the trial court‟s denial

of these motions, defendant appealed directly to this Court.

                                  LAW AND ANALYSIS

                                      Primary Claims

14
     The omnibus motion is substantially similar to defendant‟s appeal brief. Among the 18 claims
presented, are the following: (1) subsequent psychological testing of Tucker and his educational
records suggest his poor intellectual functioning would cause him to interpret Detective
Demery‟s statements as promises, and therefore Tucker‟s statements should be suppressed; (2) a
subsequent study of six capital trials in Caddo Parish shows that blacks are systematically
excluded from serving on juries by the death qualification process; (3) the state exercised
peremptory challenges on the basis of race in violation of Batson; and (4) the jury tampering
incident resulted in a conflict of interest and jeopardized communication among defense counsel
and Tucker and his family.
                                               12
Sufficiency of the Evidence

      Whether intentionally shooting a pregnant woman constitutes intent to
      kill or harm more than one person.

      Defendant contends he is the first person convicted of first degree murder

under La. R.S. 14:30(A)(3) (intent to kill or harm more than one person) for killing

a pregnant woman and her unborn child. He argues that feticide does not elevate

second degree murder to a capital offense under La. R.S. 14:30, as written, and,

therefore, the evidence does not support a conviction for first degree murder.

      Defendant notes that this Court determined in State v. Gyles, 313 So.2d 799,

801 (La. 1975) that a “defendant's conduct of striking the pregnant woman and

causing the stillbirth of the child is not punishable as a „murder‟ under the

definition of that crime in the Louisiana statutes and those of other jurisdictions.”

He also notes that this Court again found that feticide is not homicide despite the

legislative amendment to La. R.S. 14:2(7) that expanded the definition of person to

include the unborn.    State v. Brown, 378 So.2d 916 (La. 1979).          Defendant

contends that, despite this jurisprudential context and subsequent legislative action

establishing several degrees of feticide, the legislature has not indicated that it

intends La. R.S. 14:30(A)(3) and La. C.Cr.P. art. 905.4(4) to encompass the

unborn. Thus, defendant argues, lenity requires interpreting any ambiguity in these

provisions in his favor.    Defendant also contends the trial court erroneously

instructed the jury by refusing to inform it that a pregnant woman and her unborn

child cannot be considered more than one person for purposes of La. R.S.

14:30(A)(3).

      In Kennedy v. Louisiana, 554 U.S. 407, 421, 128 S.Ct. 2641, 2650-51, 171

L.Ed.2d 525 (2008), the United States Supreme Court determined that “a death

sentence for one who raped but did not kill a child, and who did not intend to assist

another in killing the child, is unconstitutional under the Eighth and Fourteenth
                                         13
Amendments.” In making that determination, the court noted that “the death

penalty is not invariably unconstitutional”. Id., 554 U.S. at 420, 128 S.Ct. at 2650

(citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).

Rather, the court noted that “capital punishment must be limited to those offenders

who commit a narrow category of the most serious crimes and whose extreme

culpability makes them the most deserving of execution.” Id. (quoting Roper v.

Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 1194, 161 L.Ed.2d 1 (2005) and

Atkins v. Virginia, 536 U.S. 304, 319, 122 S.Ct. 2242, 2251 153 L.Ed.2d 335

(2002)) (internal quotes omitted).

       We have found no constitutional impediment to including offenders who

intentionally kill women they know are pregnant in that narrow category. 15 In fact,

of the 32 states that at present authorize capital punishment, seven provide that the

intentional killing of a pregnant woman is an aggravating factor that may justify a

death sentence. Ariz. Rev. Stat. § 13-751(F)(9) (“the murdered person was under

fifteen years of age, was an unborn child in the womb at any stage of its

development or was seventy years of age or older”); Colo. Rev. Stat. Ann. § 18-

1.3-1201(5)(q) (“[t]he victim was a pregnant woman, and the defendant

intentionally killed the victim, knowing she was pregnant”); Del. Code Ann. tit. 11,

§ 4209(e)(1)(p) (“The victim was pregnant”); Ind. Code § 35-50-2-9(b)(16) (“The

victim of the murder was pregnant and the murder resulted in the intentional killing

of a fetus that has attained viability”); 42 Pa. Cons. Stat. Ann. § 9711(d)(17) (“At

the time of the killing, the victim was in her third trimester of pregnancy or the

defendant had knowledge of the victim‟s pregnancy”); Tenn. Code Ann. § 39-13-

15
  See, e.g., People v. Bunyard, 45 Cal.3d 1189, 1239, 249 Cal.Rptr. 71, 105, 756 P.2d 795, 829
(1988), in which the California Supreme Court rejected the claim that the Eighth Amendment
prohibits “the murder of a fetus [from raising] an otherwise non-capital case to capital status
under a multiple murder special circumstance.” See also People v. Dennis, 17 Cal.4th 468, 71
Cal.Rptr. 680, 950 P.2d 1035 (1998) (again finding that “the application of the multiple-murder
special circumstance to the crimes of killing a pregnant woman and her fetus [does not
constitute] a disproportionate penalty violating the state and federal Constitutions”).
                                              14
204(i)(16) (“The murder was committed against a pregnant woman, and the

defendant intentionally killed the victim, knowing that she was pregnant”); Va.

Code Ann. § 18.2-31(11) (“The willful, deliberate, and premeditated killing of a

pregnant woman by one who knows that the woman is pregnant and has the intent

to cause the involuntary termination of the woman‟s pregnancy without a live

birth”). Furthermore, in Florida a killing that would be capital murder if the

pregnant woman died is capital murder if the mother survives but her unborn child

dies. Fla. Stat. Ann. § 782.09(1)(a). Therefore, the question presented here is not

whether Louisiana may include the intentional killing of a pregnant woman among

the aggravating factors that render an offender eligible for capital punishment but

whether it has, which is a matter of statutory interpretation.

       Louisiana R.S. 14:30(A)(3) provides that first degree murder is the killing of

a human being “[w]hen the offender has a specific intent to kill or inflict great

bodily harm upon more than one person.” Louisiana R.S. 14:2(7) defines “person”

in the criminal law to include “a human being from the moment of fertilization and

implantation”.16 Thus, pursuant to these two statutory provisions, first degree

murder does include the killing of a human being (the pregnant woman) when the

offender has the specific intent to kill or inflict great bodily harm upon more than

one person (the pregnant woman and the implanted conceptus).

       Defendant argues that the killing of a fetus is not murder (and under

subsequent legislative enactments it is, in fact, feticide) and therefore the

legislature could not have intended first degree murder to encompass the murder of

a pregnant woman with the intent to kill both her and her unborn child. In support

of his argument, defendant relies on the decisions in State v. Gyles, 313 So.2d 799

(La. 1975) and State v. Brown, 378 So.2d 916 (La. 1979). In Gyles, Arthur Ray

16
  This provision also declares that a person includes “a body of persons, whether incorporated or
not.”
                                               15
Gyles physically assaulted a woman who was eight-months pregnant and caused

her to miscarry. He appealed his conviction for second degree murder of the

stillborn child. Relying on the common law, which deemed that only those born

alive are human beings, this Court found that conduct which causes an unborn

child to be born dead does not constitute murder. The legislature responded by

amending La. R.S. 14:2(7), which simply had indicated that a person includes a

body of persons, whether incorporated or not, to provide: “„Person‟ includes a

human being from the moment of fertilization and implantation and also includes a

body of persons, whether incorporated or not.” 1976 La. Acts 256. Then, in State

v. Brown, supra, the Court considered the question whether the legislative

amendment altered the definition of murder and the holding of Gyles. In Brown,

Michael Brown killed Harriet St. Andre, who was pregnant. He was indicted

separately with two counts of second degree murder. The jury found Brown guilty

of manslaughter in the death of St. Andre. After the trial court overruled Brown‟s

motion to quash the indictment for the killing of the fetus (the motion to quash was

based on double jeopardy), Brown pleaded guilty to manslaughter of the fetus and

appealed. This Court found as an error patent that murder is defined as “the killing

of a human being” (rather than as the killing of a person) and the amendment

redefining “person” had therefore not redefined murder.17

17
  Justice Marcus dissented in Brown, stating:
                 I disagree with the conclusion of the majority that the indictment here,
        charging defendant with the murder of a “fertilized implanted fetus in the womb”
        of its mother does not charge a crime. Homicide (all grades) is the killing of a
        “human being.” La. R.S. 14:29. The question is whether “human being” in the
        homicide statute includes a “fertilized implanted fetus in the womb” of its mother.
        I think so. La. R.S. 14:2(7) defines “person” as including a “human being from
        the moment of fertilization and implantation.” Since the definition of a person
        includes a “human being from the moment of fertilization and implantation,” I
        consider it clear that a “human being” in the homicide statute includes a
        “fertilized implanted fetus in the womb” of its mother. Accordingly, I respectfully
        dissent.
Brown, 378 So.2d at 918 (Marcus, J., dissenting). Regardless, Brown has not been overruled and
its effect is limited since the legislature established the crime of feticide by Acts 1989, No. 777,
§1.

                                                16
      Notwithstanding defendant‟s argument, the decisions in Gyles and Brown do

not answer the question of whether the killing of a pregnant woman and her unborn

child reflects the intent to kill more than one person for purposes of elevating a

second degree murder to the first degree. However, the statutory provisions

following the amendment of the definition of person in the criminal code answer

that question sufficiently. Louisiana R.S. 14:30(A)(3) does not state that it requires

the intent to commit multiple murders; it requires only the intent to kill or inflict

great bodily harm upon more than one person. In determining the scope of a

statute, a court must first look to its language. “If the statutory language is

unambiguous, in the absence of „a clearly expressed legislative intent to the

contrary, that language must ordinarily be regarded as conclusive.‟” United States

v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981)

(quoting Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102,

108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). “Only where ambiguity exists

within the body of the enacted legislation does it become necessary to look further

than the text to determine the legislative intent.” State v. Barbier, 98-2923, p. 5

(La. 9/8/99), 743 So.2d 1236, 1239. Louisiana R. S. 14:30(A)(3) and La. R.S.

14:2(7) are clearly unambiguous. Also, the fact that the legislature established

several grades of criminal feticide (see n.17, infra) does not reflect an intent to

repeal the plain language of La. R.S. 14:30(A)(3) and La. R.S. 14:2(7).

      Furthermore, in State v. Keller, 592 So.2d 1365 (La. App. 1 Cir. 1991), the

First Circuit Court of Appeal considered the same question and reached the same

conclusion. In Keller, Gregory Keller was indicted for the first degree murder of

Andrea Simmons, who was pregnant, based on the specific intent to kill or to

inflict great bodily harm upon more than one person, La. R.S. 14:30(A)(3). Keller

sought to quash the prosecution on the basis that a fetus cannot be considered a

                                         17
person for purposes the multiple-person aggravating element of La. R.S.

14:30(A)(3). The court of appeal noted that La. R.S. 14:30(A)(3) does not require

the actual commission of two murders but rather that defendant have the intent to

kill more than one person. The court found that, although a fetus is not considered

a human being whose unlawful killing constitutes homicide, a fetus is nonetheless

defined as a person in the criminal code. Keller, 592 So.2d at 1366.

      Defendant contends the statutory language is not sufficiently clear to give

him fair warning that he might face a charge of first degree murder for killing a

pregnant woman. The Fair Warning Doctrine, however, demands “no more than a

reasonable degree of certainty.” Boyce Motor Lines v. United States, 342 U.S. 337,

340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952). “The root of the vagueness doctrine is

a rough idea of fairness. It is not a principle designed to convert into a

constitutional dilemma the practical difficulties in drawing criminal statutes both

general enough to take into account a variety of human conduct and sufficiently

specific to provide fair warning that certain kinds of conduct are prohibited.”

Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584

(1972). A Texas court has rejected a fair warning challenge in a similar case. See

Lawrence v. State, 211 S.W.3d 883 (Tex. Ct. App. 2006).

      Regardless, in this case, this Court need not resolve the question of whether

La. R.S. 14:30(A)(3) applies to the murder of a pregnant woman given the

presence of a second aggravating factor, i.e., that the killing took place in

conjunction with a second degree kidnapping, La. R.S. 14:30(A)(1).

      Whether the state proved defendant killed Tavia Sills while engaged in
      a second degree kidnapping.

       Defendant contends the state presented insufficient evidence to show the

murder took place during the course of a second degree kidnapping. He argues

that, to prove he kidnapped the victim, the state must prove more than that he
                                        18
persuaded or enticed the victim to accompany him; the state must also prove that at

some point she had the desire to leave. According to defendant, the only evidence

presented regarding the victim‟s state of mind was an eyewitness (Catherine

Golston) who overheard Tavia scream because she feared the nearby cattle.

Defendant argues that this was not sufficient to prove the victim did not want to

accompany him.            Defendant also contends that the trial court erred by not

instructing the jury that the state must prove the victim expressed the desire or

intent to leave.

          As an initial matter, defendant‟s own statements to police provide evidence

that the victim expressed a desire to leave. According to defendant, the victim

expressed her fear on the path to the pond, she stopped walking, and “[t]hen she go

I don‟t think I can do this no more.”18 Defendant cajoled her into walking again.

After going a bit farther down the path, according to defendant, the victim clearly

expressed the desire to leave: “So then I‟m like come on. So I walk, and we walked

to the other drop off. Then that when she kept saying I‟m ready to go, I‟m ready to

go, to go.”19

          Louisiana R.S. 14:44.1 defines second degree kidnapping as follows:

                 A. Second degree kidnapping is the doing of any of the acts
                 listed in Subsection B wherein the victim is:

                         (1) Used as a shield or hostage;

                         (2) Used to facilitate the commission of a felony or
                         the flight after an attempt to commit or the
                         commission of a felony;

                         (3) Physically injured or sexually abused;

                         (4) Imprisoned or kidnapped for seventy-two or
                         more hours, except as provided in R.S.
                         14:45(A)(4) or (5); or

                         (5) Imprisoned or kidnapped when the offender is
18
     Statement titled “Interview of Lamondre Tucker (after autopsy)” at p. 8.
19
     Id. at 10.
                                                  19
                      armed with a dangerous weapon or leads the
                      victim to reasonably believe he is armed with a
                      dangerous weapon.

              B. For purposes of this Section, kidnapping is:

                      (1) The forcible seizing and carrying of any person
                      from one place to another; or

                      (2) The enticing or persuading of any person to go
                      from one place to another; or

                      (3) The imprisoning or forcible secreting of any
                      person.

Not enumerated among those elements is a requirement that a victim express a

desire to leave. Furthermore, the words “enticing” and “persuading” in the statute

suggest that defendant‟s view of how the offense may be committed is too narrow.

See, e.g., State v. Lee, 02-1793, p. 32 (La. App. 4 Cir. 4/2/03), 844 So.2d 970,

99120 (finding sufficient that a kidnapper lured the victim into his vehicle under the

pretext of arranging for prostitution).

       Defendant also argues that La. R.S. 14:44.1(A)(5) infringes on the

constitutional right to keep and bear arms. He notes that the Louisiana Constitution

was amended to require strict scrutiny to be applied to any restriction on this

right.21   Defendant alleges that the victim voluntarily accompanied him not

knowing that he was carrying a firearm. According to defendant, his commission

of a second degree kidnapping while carrying a firearm (La. R.S. 14:44.1(A)(5))

cannot be used to elevate the grade of murder to first degree because he cannot

become eligible for the death penalty by engaging in a constitutionally protected

activity. Defendant argues this statute is not sufficiently narrowly tailored if it

encompasses constitutionally protected acts.              Because the jury utilized his

constitutionally protected right to keep and bear arms as an aggravating factor,

20
  Writ denied, 03-1247 (La. 10/10/03), 855 So.2d 330.
21
   La. Const. art. I, § 11 provides, “The right of each citizen to keep and bear arms is
fundamental and shall not be infringed. Any restriction on this right shall be subject to strict
scrutiny.”
                                              20
defendant maintains the death sentence must vacated and the conviction reduced to

second degree murder.

       As an initial matter, defendant‟s assertion that the victim accompanied him

unaware that he was carrying a firearm is contradicted by his own statements to

police. According to defendant, the victim expressed fear of the wooded location,

asked if defendant was also afraid, and he responded “That what we got a gun

for.”22 Regardless, defendant became eligible for capital punishment when the jury

found him guilty of intentionally killing a human being while he was engaged in

the perpetration of a second degree kidnapping. Notably, “the right to keep and

bear arms is not „a right to keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose.‟” McDonald v. City of Chicago, 561 U.S.

742, 786, 130 S.Ct. 3020, 3047, 177 L.Ed.2d 894 (2010) (quoting District of

Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 2816, 171 L.Ed.2d 637

(2008)).23 Thus, the U.S. Supreme Court has indicated that “the Second

Amendment protects a personal right to keep and bear arms for lawful purposes”.

Id., 561 U.S. at 781, 130 S.Ct. at 3044 (emphasis added); see also United States v.

Greeno, 679 F.3d 510, 520 (6th Cir. 2012) (“[T]he historical understanding of the

right to keep and bear arms . . . did not extend to possession of weapons for

unlawful purposes. To hold the contrary would suggest that the Second

Amendment protects an individual‟s right to possess a weapon for criminal


22
   Statement titled “Lamondre Tucker (40 minutes)” at p. 3; see also Statement titled “Tucker
Crime Scene (4 1/2 minutes)” at p. 1 (“But I said—she like, „Y‟all gonna be scared to come back
here?‟ I said, „Huh-uh, that‟s what we got a gun for, like that there.‟”). In another version,
defendant said “Okay, I had the gun or whatever you know what I‟m saying. And then she asked
was like why got the gun. I said just, really I just got it.” Statement titled “Interview of
Lamondre Tucker (random)” at pp. 1-2.
23
   In addition, the right to keep and bear arms is not absolute. See, e.g., State v. Eberhardt, 13-
2306, pp. 9-12 (La. 7/1/14), 145 So.3d 377, 383-85 (concluding that R.S. 14:95.1, prohibiting
possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies,
“serves a compelling governmental interest that has long been jurisprudentially recognized and is
grounded in the legislature‟s intent to protect the safety of the general public from felons
convicted of specified serious crimes, who have demonstrated a dangerous disregard for the law
and the safety of others”).
                                                21
purposes.”). Defendant here was engaged in the unlawful act of kidnapping. He

has no constitutional right to use a firearm to facilitate his commission of the

crime. Therefore, the application of strict scrutiny mandated by La. Const. art. I, §

11 does not benefit the defendant who was engaged in criminal behavior.

       In sum, the evidence overwhelmingly proved defendant committed the crime

of second degree kidnapping when he enticed/persuaded Tavia Sills to accompany

him from one place to another and into the woods, for purposes of facilitating the

commission of another felony (her murder) by means of the firearm in his

possession, thereby causing her physical harm (death). Given the jury found this

aggravating circumstance proved beyond a reasonable doubt in the penalty phase,

and considering Louisiana duplicates aggravating circumstances in both phases of

a capital trial, this Court can assume that jurors also found second degree

kidnapping in the guilt phase as an independent basis for returning a general

verdict of guilty as charged. See State v. Wright, 01-0322, p. 15 (La. 11/22/02),

834 So.2d 974, 987 (“[I]n this case, the Court can ascertain the grounds upon

which the jury convicted defendant of first degree murder given that jurors

unanimously found both of the two aggravating factors at sentencing [aggravated

or forcible rape; age of the victim] which the state relied upon during the guilt

phase of trial. Therefore, the jurors most assuredly relied on the victim‟s age when

it found defendant guilty of first degree murder. . . . That being the case, the state‟s

failure to present constitutionally sufficient evidence that the victim was killed

during the course of an aggravated or attempted aggravated rape does not warrant

reversal of the conviction.”) (distinguishing Stromberg v. California, 283 U.S. 359,

51 S.Ct. 532, 75 L.Ed. 1117 (1931).24 Thus, any failure by the state to prove


24
  Stromberg involved the prosecution and conviction of a summer camp counsellor, an avowed
communist, under a California statute that prohibited the display of a red flag (of the sort
defendant raised every day in the course of pledging allegiance to the workers of the world) as
(1) a sign of opposition to organized government, or (2) as an invitation to anarchistic action, or
                                                22
defendant killed Tavia Sills with the specific intent of killing more than one

“person” would not in any event require reversal of the conviction.

                                        Pre-trial Claims

Motion to suppress

       Defendant contends that his statements were not knowingly and voluntarily

made because officers exploited his immaturity and unfamiliarity with police

methods, and they had promised the charge would be reduced to manslaughter and

his mother‟s impounded car would be returned to her if he confessed. Therefore,

defendant contends the trial court erred in denying both his motion to suppress his

statements and motion for new trial on this basis without conducting an evidentiary

hearing.

       If a statement is a product of custodial interrogation, the state must show that

the person was advised before questioning of his right to remain silent; that any

statement he makes may be used against him; and, that he has a right to counsel,

either retained or appointed. Miranda v. Arizona, 348 U.S. 436, 444, 86 S.Ct. 1602,

1612 (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


(3) as an aid to seditious propaganda. Jurors returned a general verdict of guilt under a trial court
instruction that emphasized the use of disjunctive “or” in the statute and thereby permitted them
to find defendant guilty of any of the three ways in which the statute could be violated. In
reversing the defendant‟s conviction, the Supreme Court readily found that clauses (2) and (3) of
the statute passed constitutional muster but that the first clause ran afoul of the First Amendment
and was therefore unconstitutional. To the extent that the trial court‟s general charged permitted
a verdict of guilt based solely on this constitutionally invalid ground, and unable to determine
what jurors actually found in returning their general verdict, the Supreme Court set aside the
defendant‟s conviction and sentence.
        Wright distinguished Stromberg not only on grounds that the Court could determine what
jurors found when they returned their general verdict of guilty as charged but also on grounds
that the aggravating circumstance that the state failed to prove was not, in any event,
unconstitutionally invalid. Similarly, in the present case, the Court can determine the bases upon
which jurors returned their general verdict at the guilty stage and defendant makes no argument
here, beyond a purely statutory claim, that the Eighth Amendment prohibits a state from
punishing the murder of a pregnant woman as a capital offense.
                                                 23
U.S. 469, 470, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980)). Nevertheless, appellate

courts do not review the record de novo but must defer to the finding of the trial

judge “unless his finding is not adequately supported by reliable evidence.” Green,

94-0887 at p. 11, 655 So.2d at 281. A trial court is accorded that deference

“because the evaluation of witness credibility often plays such a large part in the

context of a motion to suppress a confession.” Id.

       The record contains a waiver of rights form signed by defendant. Two

officers testified at the suppression hearing that defendant was repeatedly

Mirandized and waived his rights. The recorded interviews with defendant

captured two instances of the advisement and waiver of his rights.25 At no point in

the recorded interviews does defendant exercise his right to remain silent or ask for

counsel.26 Although defendant testified at the suppression hearing that he did not

remember being Mirandized or signing the waiver, he recognized his signature on

the waiver form and he conceded that he could have been Mirandized but had

forgotten it. Defendant‟s mother testified she had advised her son to ask for a

lawyer, but did not know whether he had done so. The only evidence in the record

supporting defendant‟s allegation that he requested counsel is his own testimony at

the suppression hearing that he requested a lawyer during his third or fourth

interview before accompanying Detective Demery to the drainage canal to locate

the discarded the pistol. The trial court‟s decision to credit the testimony of the

officers is well supported by the record.


25
   Interview titled “Interview of Lamondre Tucker (after autopsy) at pp. 1-3; Interview titled
“Lamondre Tucker (40 minutes)” at pp. 1-2.
26
   Defendant‟s only reference to counsel appears in his statement titled “Tells Tucker Recorder is
off” at p. 25, in which he indicates that his auntie recommended he get a lawyer before he
accompanied Detective Demery to the police station (“I ain‟t—I‟m not—I ain‟t scared. The
only—like I say, the only thing I was scared of—I ain‟t scared of most of this shit or worried
about it. Cause like after today, you know what I‟m saying, my supposedly auntie came up there
talking about „You need to get you a lawyer.‟ I say, „For what?‟ She told, „Cause there‟s people
coming after you.‟ I said, „Why is that?‟ She said, „Well, I don‟t know. That‟s what I just heard.‟
And I was like it ain‟t making no sense. Cause then you turn around and ask me can I walk to
your car.”).
                                                24
       Defendant, however, claims his statements were the result of promises or

inducements.27 When claims of police misconduct are raised, the state must

specifically rebut the allegations. State v. Vessell, 450 So.2d 938, 942-43 (La.

1984). When deciding whether a statement is knowing and voluntary, a court

considers the totality of circumstances under which it is 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).28 Here,

defendant alleges he was promised that the charge would be reduced to

manslaughter and his mother‟s impounded car returned to her if he confessed to an

accidental shooting. The totality of the recorded interviews, however, suggests

otherwise. Detective Demery did, in fact, advise defendant about the distinction

between manslaughter and murder, and did repeatedly exhort defendant to tell the

truth and admit if he did, in fact, kill the victim accidentally. The detective did not,

however, promise that the charge would be reduced. The detective indicated that

he would like to believe the shooting was accidental, he did not wish to believe

defendant was a murderer, and he told defendant that lying made him look worse

both in the eyes of the law and to the community, and in particular to the mother of

his three-year-old son.29 The detective warned defendant that physical evidence

would ultimately reveal what happened and he repeatedly urged defendant to tell

the truth, whatever it may be. He repeatedly assured defendant that if the crime
27
   It is well settled that a confession obtained by any direct or implied promises or by exertion of
improper influence are involuntary and inadmissible as a matter of constitutional law. Hutto v.
Ross, 429 U.S. 28, 29-30, 97 S.Ct. 202, 203-04, 50 L.Ed.2d 194 (1976). Louisiana R.S. 15:451
also prohibits the use of inducements or promises to secure a confession.
28
   The question in each case is generally, under the particular facts and circumstances, whether
the defendant‟s will was overborne at the time he confessed. Leyra v. Denno, 347 U.S. 556, 558,
74 S.Ct. 716, 717, 98 L.Ed. 948 (1954); Watts v. Indiana, 338 U.S. 49, 52, 53, 69 S.Ct. 1347,
1348, 1349, 93 L.Ed. 1801 (1949); Chambers v. Florida, 309 U.S. 227, 237-39, 60 S.Ct. 472,
477-78, 84 L.Ed. 716 (1940).
29
   The detective warned defendant that if he went to prison as a cold-blooded murderer he would
jeopardize his relationship with the mother of his three-year-old son. Appellate courts have
routinely held that “confessions given in response to exhortations to consider the health, well-
being and liberty of close relatives are admissible.” State v. Massey, 535 So.2d 1135, 1141, (La.
App. 2 Cir. 1988) (citing State v. Baylis, 388 So.2d 713, 716 (La. 1980)); State v. Weinberg, 364
So.2d 964, 970 (La. 1978).
                                                25
was, in fact, an accidental shooting, then it would be treated as such. 30 Detective

Demery‟s only reference to defendant‟s mother‟s car appeared in the context of

asking defendant to save everyone the necessity of an extensive investigation.31 It

was not a promise to return the car in exchange for a confession.

       Defendant argues that, even if the detective‟s statements did not amount to

promises, his immaturity and low intellectual functioning would have caused him

to interpret them as such. In support, he offers the opinion of psychologist Dr.

Mark Vigen, obtained on March 11, 2011, in anticipation of the penalty phase.

According to Dr. Vigen, the 18-year-old defendant is a “pseudo adult” who lives

and acts like an adult but thinks like a child.32 The defense did not subject Dr.

Vigen‟s expert opinion to adversarial testing by calling him to testify at the penalty

phase but rather attached his report to a post-verdict motion.33 As is noted below in

the context of defendant‟s claim that his immaturity and low intellectual
30
   Courts have held that a mild exhortation to tell the truth, or a remark that if the defendant
cooperates the officer will “do what he can” or “things will go easier,” will not negate the
voluntary nature of a confession. State v. Petterway, 403 So.2d 1157, 1159-60 (La. 1981); State
v. Magee, 93-0643 (La. App. 3 Cir. 10/5/94), 643 So.2d 497; State v. English, 582 So.2d 1358,
1364 (La. App. 2 Cir.), writ denied, 584 So.2d 1172 (1991). Even informing a defendant that
others (district attorney, judge, etc.), will be advised of any cooperation is not sufficient
inducement to overcome the free and voluntary nature of a confession. State v. Vernon, 385
So.2d 200, 204 (La. 1980). Notably, in State v. Lavalais, 95-0320 at 7, 685 So.2d at 1053, this
Court held that an officer‟s comments to the defendant that he would likely receive more
favorable treatment if he confessed as opposed to failing a polygraph examination did not
constitute inducements rendering the subsequent confession involuntary.
31
   See Statement titled “Tells Tucker Recorder is off” at pp. 32-33.
32
   R.6 at 1317.
33
   In reviewing the trial court‟s ruling on a defendant‟s motion to suppress, this Court has stated
that it will look to the totality of the evidence presented at the motion to suppress hearing and the
trial. State v. Burkhalter, 428 So.2d 449, 455 (La. 1983); State v. West, 408 So.2d 1302, 1308
(La. 1982) (“Although the state put on no evidence at the hearing on the motion to suppress, we
look to the totality of the evidence produced both at that hearing and at trial when we assess
whether the state has carried its burden”). However, this Court has noted further that “this
jurisprudential rule will only be applied where the defendant has filed a motion to suppress
alleging a statement was inadmissible on a specific constitutional ground and later a reviewing
court looks to his trial testimony, in addition to the testimony presented at the motion hearing, to
determine whether the motion to suppress should have been granted on those grounds.” State v.
Montejo, 06-1807, p. 25 (La. 5/11/10), 40 So.3d 952, 969. Thus, “[t]he jurisprudential rule is not
applied where the grounds for suppression were not asserted in the motion to suppress.” Id. Just
as the Court has “never allowed a defendant to allege facts for the first time in trial testimony
which would support a new argument for suppression of evidence”, id., 06-1807 at 25, 40 So.3d
at 969-70, defendant may not allege a new basis for suppressing his statements for the first time
in a motion for new trial supported by evidence he did not present earlier, in the absence of a
showing of new and material evidence not discovered before despite the exercise of reasonable
diligence, La. C.Cr.P. art. 851(3). Here, defendant has not shown reasonable diligence.
                                                 26
functioning render him ineligible for the death penalty, Dr. Vigen determined that

defendant has a full scale IQ of 74. Nonetheless, although defendant was required

to repeat his senior year of high school because he failed American History, he did

complete the other years of school. His school records indicate that his grades

varied widely, ranging from As to Fs, with a final GPA of 2.02. During the police

interview defendant indicated that he could read and write and demonstrated no

confusion. Defendant‟s football coach described him as a “thinking” player. For

comparison, see State v. Green, 94-0887, pp. 7-19 (La. 5/22/95), 655 So.2d 272,

278-84 (mildly intellectually disabled defendant‟s waiver of rights was knowing

and intelligent, even though psychologist testified defendant was unable to

comprehend his rights; psychologist also testified defendant was educable and

could be made to understand rights, police officers testified defendant understood

his rights in part because of his prior criminal history); State v. Istre, 407 So.2d

1183, 1186-87 (La. 1981) (19-year-old who had I.Q. of 68 and who did not know

his own age intelligently waived rights, which were explained in simplistic terms

that he apparently understood); see also State v. Brown, 414 So.2d 689, 696 (La.

1982) (“„[M]oderate mental retardation and low intelligence or illiteracy do not of

themselves vitiate the ability to knowingly and intelligently waive constitutional

rights and make a free and voluntary confession.‟”) (citations omitted); but see

State v. Anderson, 379 So.2d 735, 736 (La. 1980) (fact that defendant was an

illiterate, unemployed 17-year-old with the mental age of 8 and an I.Q. of between

50 and 69, coupled with ambivalent police testimony about whether he ever

understood the rights they attempted to explain to him, supported a conclusion that

he was incapable of understanding his rights or the ramifications of foregoing

them; hence, there was no knowing, intelligent waiver).

      Most significant, Detective Demery allowed the adult defendant to speak

                                        27
with his mother twice during the interviews. Defendant‟s mother testified that she

waited only 10 minutes at the police station before being allowed to see her son.

She said she met with him privately for 10-20 minutes. Defendant also testified at

the suppression hearing that he was permitted to meet with his mother at his

request. The recorded statements show that the detective acceded to defendant‟s

request to speak with his mother on the phone when he was interviewed the next

day at jail. The state sufficiently rebutted defendant‟s allegations of police

misconduct and the totality of the circumstances supports the trial court‟s

determination that defendant made a knowing, intelligent, and voluntary waiver of

his rights.

                                      Voir Dire Claims

Biased and Non-representative Jury

       Defendant contends that the death qualification process produces a biased

jury that does not represent a fair cross section of the community but instead

systematically excludes African Americans. Defendant alleges death qualification

excluded 51.3% of African Americans while excluding only 20% of non-African

Americans. Defendant also alleges death qualified juries are more prone to convict.

Defendant argues separate guilty and penalty phase juries should have been used

so that the jury that considered his guilt could better reflect the community.34

Defendant also argues that the use of a death qualified jury violates the Eight

Amendment because it gives no opportunity for the evolving standards of decency

of the community to be reflected in jury verdicts.35 Defendant contends the trial

34
   The First Circuit has determined that bifurcated juries in capital trials are not authorized in
federal law. See United States v. Green, 407 F.3d 434 (1st Cir. 2005), cert. denied, 546 U.S. 962,
126 S.Ct. 497, 163 L.Ed.2d 365 (2005); see also Federal Death Penalty—Bifurcated Trials—
First Circuit Holds that Judges may not Impanel Separate Juries for Guilt and Penalty Phases in
Capital Cases, 119 Harv. L. Rev. 654 (2005).
35
    This view is advocated for by Susan Raeker-Jordan, A Pro-Death, Self-Fulfilling
Constitutional Construct: The Supreme Court’s Evolving Standard of Decency for the Death
Penalty, 23 Hastings Const. L.Q. 455, 537-46 (1996). The Supreme Court of California rejected
it in People v. Taylor, 48 Cal.4th 574, 603-04, 108 Cal.Rptr.3d 87, 121-22, 229 P.3d 12, 41
                                               28
court erred in denying his motion for new trial on this basis without conducting an

evidentiary hearing.

       Louisiana C.Cr.P. art. 798, governing causes for challenge by the state, was

drafted to conform to the constitutional requirements set forth in Witherspoon v.

Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d. 776 (1968) (holding that a

prospective juror who would vote automatically for a life sentence is properly

excluded). See also Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83

L.Ed.2d 841 (1985). In Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90

L.Ed.2d 137 (1986), the U. S. Supreme Court held that the Constitution does not

prohibit excluding potential jurors under Witherspoon or that “death qualification”

resulted in a more conviction-prone jury. Likewise, this Court has repeatedly

rejected the claim that the Witherspoon qualification process results in a death-

prone jury. State v. Robertson, 97-0177, pp. 19-20 (La. 3/4/98), 712 So.2d 8, 25-

26; State v. Sullivan, 596 So.2d 177, 186-87 (La. 1992); State v. Lindsey, 543

So.2d 886, 896 (La. 1989); State v. Brown, 514 So.2d 99, 103-04 (La. 1987); State

v. Bates, 495 So.2d 1262, 1272 (La. 1986); State v. Ford, 489 So.2d 1250, 1259

(La. 1986); State v. Ward, 483 So.2d 578, 582-83 (La. 1986); State v. Jones, 474

So.2d 919, 927 (La. 1985); State v. James, 431 So.2d 399, 402 (La. 1983).

       During voir dire, defense counsel objected that the death qualification

process was working to disproportionately remove African-Americans from the


(2010) (citations omitted):

       We likewise find flawed the premise underlying defendant‟s assertion that death
       qualification, by eliminating the segment of the community that opposes the death
       penalty, skews the data courts typically rely on to determine “evolving standards
       of decency” for Eighth Amendment purposes. Through the death qualification
       process, individuals may be excused not only for their unyielding opposition to
       capital punishment but also for their intractable support of it. We reject
       defendant‟s contention that death qualification is irrational because it disqualifies
       individuals based on their moral beliefs when the penalty phase determination is
       “„inherently moral and normative.‟” Disqualified jurors are properly excused for
       cause, not on the basis of their personal, moral beliefs regarding the death penalty,
       but because of their inability to “temporarily set aside their own beliefs in
       deference to the rule of law.”
                                                29
jury. In McCree, 476 U.S. at 165, 106 S.Ct. at 1760, the Supreme Court held that

the Constitution does not “prohibit the removal for cause, prior to the guilt phase of

a bifurcated capital trial, of prospective jurors whose opposition to the death

penalty is so strong that it would prevent or substantially impair the performance of

their duties as jurors at the sentencing phase of the trial.” In particular, the Court

rejected McCree‟s contention that “death qualification” prior to the guilt phase of

the trial violated his right under the Sixth and Fourteenth Amendments to an

impartial jury selected from a representative cross section of the community. Id.,

476 U.S. at 184, 106 S.Ct. at 1770. The Supreme Court explained that the fair cross

section requirement applies only to venires, not to petit juries. Id., 476 U.S. at 173,

106 S.Ct. at 1765. Accordingly, petit juries do not have to “reflect the composition

of the community at large.” Id. More importantly, it was pointed out that, even if

this requirement were applied to petit juries, no fair cross section violation would

be established when “Witherspoon-excludables” were dismissed from a petit jury,

because they do not constitute a distinctive group for fair cross section purposes.

Id., 476 U.S. at 174, 106 S.Ct. at 1765. In Buchanan v. Kentucky, 483 U.S. 402,

107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the Court reiterated those views and then

indicated “[g]iven this conclusion, there is no reason to address petitioner‟s

description of the result of the „death qualification‟—the race, sex, political party,

and age composition of the jury in his case.” Buchanan, 483 U.S. at 416 n.17, 107

S.Ct. at 2914 n.17.

      Defendant conceded during voir dire that the state was not acting from racial

animus or intentionally using the death-qualification process as a proxy for race,

rather it was the death-qualification process itself that was flawed. Approximately

94% of the state‟s cause challenges during death qualification were granted. In

contrast, 50% of the defense‟s cause challenges were granted during death

                                          30
qualification. However, the defense only objected to five of the state‟s 35 cause

challenges. Of those five, the defense made no effort to question these prospective

jurors further36 to determine whether they could not and would not

“conscientiously obey the law” or rather they merely “firmly believe[d] that the

death penalty is unjust [but] may nevertheless serve as jurors in capital cases so

long as they state clearly that they are willing to temporarily set aside their own

beliefs in deference to the rule of law”,37 as defendant characterized them for the

first time in his motion for new trial. In contrast, when the defense challenged

prospective jurors for cause on the basis that they were unable to consider a life

sentence as required by law, the state attempted to instruct those prospective jurors

on the law, the necessity of considering both penalties as well as all aggravating

and mitigated circumstances, and then questioned them on their ability and

willingness to do so.38 This claim is without merit.

Denial of Cause Challenge

       Defendant claims the trial court failed to exclude jurors whose responses

revealed they were unable to give meaningful consideration to a life sentence.

Defendant identifies eight prospective jurors who defendant claims should have

been removed for cause: John Forehand; Robert Litton; Alvin Coco; Robert

Rogers; Clarence Hicks; Joy Birch; Patricia Johnson; and Anita Spencer.

       “[A] challenge for cause should be granted, even when a prospective juror

declares his ability to remain impartial, if the juror‟s responses as a whole reveal

facts from which bias, prejudice or inability to render judgment according to law

may be reasonably implied.” State v. Hallal, 557 So.2d 1388, 1389-90 (La. 1990).

36
   For example, defense counsel declined the opportunity to question prospective juror Richard
Clark further but rather insisted that the state‟s cause challenge simply be denied based on the
disproportionate effect of death qualification. R.14 at 3050. The trial court later indicated that
both the state and the defense had the same opportunity for individual voir dire on these
concerns. R.15 at 3241.
37
   McCree, 476 U.S. at 176, 106 S.Ct. at 1766.
38
   See, e.g., R.13 at 2839, 2850, 2885,
                                               31
Prejudice is presumed when a challenge for cause is denied erroneously by a trial

court and the defendant ultimately exhausts his peremptory challenges.39 State v.

Robertson, 92-2660 at 3-4, 630 So.2d at 1280; State v. Ross, 623 So.2d 643, 644

(La. 1993). A trial court is vested with broad discretion in ruling on challenges for

cause and its rulings will be reversed only when a review of the voir dire record as

a whole reveals an abuse of discretion. State v. Cross, 93-1189, pp. 6-7 (La.

6/30/95), 658 So.2d 683, 686-87; State v. Robertson, 92-2660 at 4, 630 So.2d at

1280.

        A review of the voir dire record as a whole reveals no abuse of discretion.

        John Forehand

        John Forehand initially indicated that he would not consider a life sentence

for one who intentionally kills more than one person. However, after the pertinent

law was explained to him, he indicated that he could consider a life sentence for

one who intentionally kills more than one person and he would consider all

mitigating circumstances. With further questioning, it became apparent that Mr.

Forehand had initially misinterpreted the question as a request to commit to vote

for a life sentence rather than to consider it as one of two possible penalties.

        Juror Robert Litton

        Robert Litton stated that he believed the death penalty was appropriate for

intentional and violent murders but he also said that he could consider either

penalty depending on the circumstances. He believed a life sentence was more

39
   Even in capital cases, the defendant must use one of his remaining peremptory challenges to
remove the juror on his way to ultimately exhausting his challenges to preserve review of the
trial court‟s denial of a cause challenge. See, e.g., State v. Campbell, 06-0286, p. 71 (La.
5/21/08), 983 So.2d 810, 856 (“[A]n erroneous ruling on a challenge for cause which does not
deprive a defendant of one of his peremptory challenges does not provide grounds for reversing
his conviction and sentence. A defendant thus must use one of his remaining peremptory
challenges curatively to remove the juror or waive the complaint on appeal, even in a case in
which he ultimately exhausts his peremptory challenges.”). The record in the present case does
not clearly indicate which party exercised each peremptory challenge. Nonetheless, the record
does contain the statement that the defense was exercising its last peremptory challenge. See
R.15 at 3406-07. Furthermore, defendant alleges, and the state concedes, see state‟s brief at p.
46, that the defense exhausted its full allotment of peremptory challenges.
                                              32
suitable for an accidental killing and death more suitable for intentional killings,

and he initially indicated he would not consider a life sentence for one who

intentionally kills more than one person or kills while committing a kidnapping.

He initially stated that the only mitigating circumstance he would consider is

insanity. After he was repeatedly instructed that the law required him to consider

both penalties and all mitigating circumstances, he ultimately acquiesced that he

would be able to follow the law as instructed.

      Alvin Coco

      Alvin Coco initially stated that he supported the death penalty but could

consider both sentencing options. He believed the death penalty was appropriate

for planned murders but he would not vote for it automatically. He initially stated

that he would not consider a life sentence for one who intentionally kills more than

one person or while committing a kidnapping. He also initially indicated that the

only mitigating circumstance he would find significant is if one were only a

principal to the offense. After being repeatedly instructed on the pertinent law, he

ultimately indicated that he could consider either penalty and all mitigating

circumstances.

      Robert Rogers

      Robert Rogers initially stated that he “probably could” consider a life

sentence for one who intentionally kills but he was unsure whether he could

consider a life sentence for one who kills while committing a kidnapping and he

said he probably could not consider a life sentence for one who intentionally kills a

pregnant woman. When asked if that meant he would automatically vote for death

for one who murders a pregnant women, he responded no and he clarified that he

only meant he would not have a problem with voting for death under those

circumstances.

                                         33
      Clarence Hicks

      Clarence Hicks initially stated that it would be “very difficult” not to return a

death verdict for one who intentionally killed more than one person but he also

stated that he could return a life verdict. He clarified that he leaned toward a death

verdict for a multiple murderer but that he could consider both sentencing options

depending on the circumstances.

      Joy Birch

      Joy Birch initially stated that she could consider either penalty, she

emphasized the gravity of the decision, and she indicated that she would not

automatically vote for either penalty. She indicated that she leaned toward the

death penalty for someone who intentionally kills a woman he knew was pregnant

but she would consider both penalties and it would depend on the circumstances of

the offense. She insisted that she could be fair and open-minded and that she could

consider a life sentence for one who killed a pregnant woman.

      Patricia Johnson

      Patricia Johnson initially stated that she could consider a life sentence but

she also stated that, for first degree murder, she was “more likely” to vote in favor

of death. She revealed that her friend was murdered in 1996 and she expressed

concern for her ability to be fair and impartial because of that experience.

However, she ultimately concluded that she could keep that experience from

unduly influencing her decision-making and she would decide the present case

solely on the evidence presented at this trial.

      Anita Spencer

      Anita Spencer stated that she supported the death penalty but could vote for

either a life or death sentence. She believed a death sentence is appropriate for a

senseless murder.     She initially indicated that she would not consider a life

                                           34
sentence for one who kills more than one person and the only mitigating

circumstance she would consider is insanity.               After being instructed on the

pertinent law, she said that she was confused when she answered earlier but now

that she understood the law she could consider both sentencing options.

       After reviewing the questions asked these jurors and their responses in their

context, the prospective jurors, in varying degrees,40 favored the death penalty as a

general principle but when instructed on the governing law indicated they could

adhere to it. Some showed some initial confusion as to what was being asked,

which was clarified by further instruction on the law. The defense inquired into

their feelings divorced from the context of the legal framework in which they

would operate.41 But when fully informed of their obligations if selected, the

prospective jurors all indicated their ability and willingness to consider both

sentencing options and all mitigating circumstances as instructed. “[E]ven 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 [inferred].” State v. Jones, 474 So.2d 919, 929

(La. 1985). Yet a refusal to disqualify a prospective juror on grounds he is biased

does not constitute reversible error or an abuse of discretion if, after further

examination or rehabilitation, the juror demonstrates a willingness and ability to

decide the case fairly according to the law and evidence. State v. Howard, 98-

0064, pp. 7-10 (La. 4/23/99), 751 So.2d 783, 795-97. A review of the full transcript

indicates that the state successfully rehabilitated these eight prospective jurors and

40
   The defense asked all prospective jurors to rate their views on a scale of 1 to 7, in which 1
represented always favoring a death sentence, 4 was neutral, and 7 represented always favoring a
life sentence. These prospective rated themselves as follows: John Forehand (4), Robert Litton
(2), Alvin Coco (4), Robert Rogers (4), Clarence Hicks (4.5), Joy Birch (4), Patricia Johnson
(2.5), and Anita Spencer (2). Notably, none rated themselves a 1 on the defense‟s scale and
several were neutral.
41
   Defense counsel in fact conceded that counsel was “not asking of you what the law is . . .
[w]hat we‟re talking about now is your feelings and how you personally feel”. R.14 at 3020; see
also R.14 at 3019 (“I‟m not asking what the law is.”).
                                              35
their responses as a whole demonstrate a willingness and ability to decide the case

fairly according to the law and evidence. Defendant‟s claim is without merit.

                                   Guilt Phase Claims

Right to Counsel

      Defendant contends he was denied his right to counsel, who labored under

an actual conflict of interest and should have been allowed to withdraw after

informing the court about the efforts of defendant and his mother to coach a

prospective juror Latisha Griffin, who was opposed to the death penalty, about

what to say during death qualification so that she would not be removed for cause.

Defendant argues defense counsel, after they became potential witnesses to jury

tampering, were unable to communicate with him (or his mother) freely and could

not fully advocate for him after the conflict arose. For example, defendant alleges

counsel stopped sharing information about prospective jurors and jury selection

strategy and potential witnesses and what questions they might be asked for fear of

being accused of facilitating jury and witness tampering. Defendant complains that

counsel did not cross-examine 18 of 24 witnesses, cross-examined the remaining

witnesses for the state only briefly, rested without calling any witnesses for the

defense, and conceded during closing remarks that defendant was guilty of second

degree murder and feticide. Finally, defendant alleges he was not informed that

counsel would concede in his closing remarks that defendant was guilty of second

degree murder and feticide, and he did not wish counsel to do so.

      Every defendant is entitled to “representation that is free from conflicts of

interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d

220 (1981). An actual, as opposed to a potential, conflict of interest exists “when,

during the course of the representation, the attorney‟s and defendant‟s interests

„diverge with respect to a material factual or legal issue or to a course of action.‟”

                                         36
Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993) (quoting Cuyler v. Sullivan, 446

U.S. 335, 356 n.3, 100 S.Ct. 1708, 1722 n.3, 64 L.Ed.2d 333 (1980)), cert. denied,

511 U.S. 1022, 114 S.Ct. 1407, 128 L.Ed.2d 79 (1994). In Mickens v. Taylor, 535

U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), the U.S. Supreme Court further

clarified the meaning of “actual conflict” for the purposes of the Sixth Amendment

when the claim is raised for the first time in a post-verdict context. Under Mickens,

a conflict that deprives a defendant of his constitutional right to the effective

assistance of counsel is “precisely a conflict that affected counsel’s performance −

as opposed to a mere theoretical division of loyalties.” Mickens, 535 U.S. at 171,

122 S.Ct. at 1243 (emphasis in original). The court stated that “defects in

assistance [of counsel] that have no probable effect upon the trial‟s outcome do not

establish a constitutional violation.” Id., 535 U.S. at 166, 122 S.Ct. at 1240.

      Although a defendant generally is required to demonstrate prejudice to

prevail on a claim of ineffective assistance of counsel, Strickland v. Washington,

466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), prejudice is

presumed when counsel is burdened by an actual conflict of interest. Id. at 692,

104 S.Ct. at 2067; United States v. Iorizzo, 786 F.2d 52, 58 (2d Cir. 1986). This

presumption is “fairly rigid.” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.

Moreover, “once the defendant establishes that there was an actual conflict, he

need not prove prejudice, but simply that a „lapse in representation‟ resulted from

the conflict.” Iorizzo, 786 F.2d at 58 (quoting Cuyler, 446 U.S. at 349, 100 S.Ct. at

1718). To prove a lapse in representation, a defendant must “demonstrate that

some „plausible alternative defense strategy or tactic might have been pursued,‟

and that the „alternative defense was inherently in conflict with or not undertaken

due to the attorney's other loyalties or interests.‟” United States v. Levy, 25 F.3d

146, 157 (2d Cir. 1994) (quoting Winkler, 7 F.3d at 309).

                                          37
       Courts generally disqualify trial counsel pretrial if it appears counsel will or

should be called as a witness at trial. See, e.g., United States v. Kwang Fu Peng,

766 F.2d 82, 86 (2d Cir. 1985); see also United States v. Locascio, 6 F.3d 924, 933

(2d Cir. 1993) (noting that “[e]ven if the attorney is not called, however, he can

still be disqualified, since his performance as an advocate can be impaired by his

relationship to the events in question”). Here, however, defense counsel had no

relationship to the offense for which defendant was on trial. There appeared to be

no necessity for counsel to be called as a witness in the present trial 42 after the state

advised that they would not use this incident in its case-in-chief. Furthermore,

defendant has not alleged that defense counsel was involved in any way in the jury

tampering. Thus, the conflict here is speculative rather than actual.

       In Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1985), the

Supreme Court determined that the Sixth Amendment right to assistance of counsel

is not violated when an attorney refuses to cooperate with defendant in presenting

perjured testimony at trial. Whiteside sought a new trial on the basis that defense

counsel warned him before trial not to falsely testify that he saw “something

metallic” in the victim‟s hands to bolster his claim of self-defense, and counsel

threatened to inform the court if Whiteside committed perjury. Whiteside, 475 U.S.

at 161-62, 106 S.Ct. at 991-92. The Supreme Court found that counsel‟s “conduct

fell within the wide range of professional responses to threatened client perjury

acceptable under the Sixth Amendment.” Id., 475 U.S. at 166, 106 S.Ct. at 994.

The court noted that counsel‟s obligation to provide effective assistance “is limited

to legitimate, lawful conduct compatible with the very nature of a trial as a search

for truth” and did not extend to “in any way assisting the client in presenting false

evidence or otherwise violating the law”. Id. Additionally, the court found that
42
  Furthermore, according to the state, defense counsel were not even called as witnesses after
additional charges were later levied against defendant and his mother arising from this jury
tampering incident. State‟s brief at p. 62-63.
                                             38
defense counsel had a “special duty . . . to prevent and disclose frauds upon the

court”. Id., 475 U.S. at 168-69, 106 S.Ct. at 995. Therefore, the Court found that

counsel‟s action did not amount to any “failure to adhere to reasonable

professional standards that would in any sense make out a deprivation of the Sixth

Amendment right to counsel.” Id., 475 U.S. at 171, 106 S.Ct. at 996. The court

further reviewed the record and found it showed “the accused enjoyed continued

representation within the bounds of reasonable professional conduct” and “at most

[Whiteside] was denied the right to have the assistance of counsel in the

presentation of false testimony”. Id., 475 U.S. at 174, 106 S.Ct. at 998.

      Similarly, in the present case defense counsel responded ethically to

Tucker‟s attempt at corrupting the judicial process by inserting a “poison pill” into

the jury by committing jury tampering, which, when committed in the context of a

capital trial, is a felony offense punishable by a maximum sentence of 99 years

imprisonment at hard labor. La. R.S. 14:129(B)(2)(a). Counsel acted within the

dictates of Rule 3.3(b) of the Rules of Professional Conduct, which provides: “A

lawyer who represents a client in an adjudicative proceeding and who knows that a

person intends to engage, is engaging or has engaged in criminal or fraudulent

conduct related to the proceeding shall take reasonable remedial measures,

including, if necessary, disclosure to the tribunal.” Counsel‟s adherence to the rule

did not deprive Tucker his right to the assistance of counsel.

      Furthermore, the interests of defendant and defense counsel did not diverge

at all with respect to any fact, legal issue, or course of action. An “actual conflict”

exists only when “the attorney‟s and defendant‟s interest diverge with respect to a

material factual or legal issue or to a course of action.” United States v. Moree,

220 F.3d 65, 69 (2d Cir. 2000) (citation and internal quotations omitted). Although

defense counsel allege they felt obliged to keep certain information from defendant

                                          39
during the remaining voir dire to prevent another jury tampering incident, that

prudent decision does not demonstrate an alternative strategy existed that was in

conflict with or not undertaken due to counsel‟s other loyalties or interests.

Although defendant complains that defense counsel cross-examined only six of the

state‟s witnesses at trial, nothing indicates that this decision was anything other

than strategy or that it was in any way connected to the incident that occurred

during voir dire. Similarly, although defense counsel allege defendant‟s mother

misinterpreted a question asked her in the penalty phase and revealed defendant

was previously arrested for rape, it appears the state likely would have confronted

defendant‟s character witnesses with this fact regardless.

      Defendant alleges he did not acquiesce in the decision of defense counsel to

admit guilt of second degree murder and feticide in closing. In Florida v. Nixon,

543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), the U.S. Supreme Court

instructed:

             An attorney undoubtedly has a duty to consult with the client
      regarding “important decisions,” including questions of overarching
      defense strategy. Strickland, 466 U.S., at 688, 104 S.Ct. 2052. That
      obligation, however, does not require counsel to obtain the defendant's
      consent to “every tactical decision.” Taylor v. Illinois, 484 U.S. 400,
      417-418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (an attorney has
      authority to manage most aspects of the defense without obtaining his
      client's approval). But certain decisions regarding the exercise or
      waiver of basic trial rights are of such moment that they cannot be
      made for the defendant by a surrogate. A defendant, this Court
      affirmed, has “the ultimate authority” to determine “whether to plead
      guilty, waive a jury, testify in his or her own behalf, or take an
      appeal.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77
      L.Ed.2d 987 (1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1, 97
      S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C. J., concurring).
      Concerning those decisions, an attorney must both consult with the
      defendant and obtain consent to the recommended course of action.

Nixon, 543 U.S. at 187, 125 S.Ct. at 560. The Nixon court distinguished, however,

between the decision to plead guilty and the decision to concede factual guilt at the

close of a trial. Nixon, 543 U.S. at 188-89, 125 S.Ct. at 561. Therefore, the Nixon

                                         40
court found the state court had applied the incorrect legal standard because it had

failed to appreciate the realities of defending against a capital charge:

              The Florida Supreme Court‟s erroneous equation of Corin‟s
       concession strategy to a guilty plea led it to apply the wrong standard
       in determining whether counsel‟s performance ranked as ineffective
       assistance. The court first presumed deficient performance, then
       applied the presumption of prejudice that United States v. Cronic, 466
       U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), reserved for
       situations in which counsel has entirely failed to function as the
       client‟s advocate. The Florida court therefore did not hold Nixon to
       the standard prescribed in Strickland v. Washington, 466 U.S. 668,
       104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which would have required
       Nixon to show that counsel's concession strategy was unreasonable.
       As Florida Supreme Court Justice Lewis observed, that court‟s
       majority misunderstood Cronic and failed to attend to the realities of
       defending against a capital charge. Nixon III, 857 So.2d, at 180-183
       (opinion concurring in result).

Nixon, 543 U.S. at 189-90, 125 S.Ct. at 561-62; see also Haynes v. Cain, 298 F.3d

375, 381 (5th Cir. 2002) (commenting that “those courts that have confronted

situations in which defense counsel concedes the defendant‟s guilty for only lesser-

included offenses have consistently found these partial concessions to be tactical

decisions, and not a denial of the right to counsel. As such, they have analyzed

them under the two-part Strickland test.”).

       In this case, defendant has not presented a claim of ineffective assistance of

counsel under Strickland at this juncture. Thus far, he has shown no per se

violation of the Sixth Amendment resulting from an actual conflict of interest.

Therefore, any potential conflict of interest or associated ineffective assistance of

counsel claims that may arise are deferred for collateral review. 43

Right to Be Present During Rebuttal in Guilt Phase

       Defendant, who was removed from court when he became disruptive at the

request of defense counsel, contends he was denied the right to be present during


43
   The Nixon court noted that the record in that case established defense counsel attempted to
inform his client of the strategy but defendant was “unresponsive”. Nixon, 543 U.S. at 189, 192,
125 S.Ct. at 561, 563. In contrast, defendant here alleges he was never informed by counsel of
the intended strategy.
                                              41
the state‟s rebuttal argument in the guilt phase. He argues that his presence at his

capital trial cannot be waived by counsel.

      One of the most basic of the rights guaranteed by the Confrontation Clause

is the accused‟s right to be present in the courtroom at every stage of his trial.

Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892).

Nonetheless, defendants who engage in disruptive conduct may be removed from

the courtroom under certain circumstances. See generally Illinois v. Allen, 397 U.S.

337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). As previously mentioned, during the

state‟s rebuttal argument in the guilt phase, defense counsel requested that

defendant be removed to stem his disruptive behavior and counsel clarified that

this was at defendant‟s own request. Defendant disputes that he wished to be

removed and complains that the trial court did not engage in a colloquy to

determine that his request was knowingly and voluntarily made. Regardless,

assuming the trial court erred in not first warning defendant under Illinois v. Allen

or in not inquiring further into the validity of the waiver asserted by defense

counsel, a violation of defendant‟s right to be present at all stages of trial may

constitute harmless error if a reviewing court determines beyond a reasonable

doubt that the error did not influence the verdict. See Rushen v. Spain, 464 U.S.

114, 117-19 & n.2, 104 S.Ct. 453, 455-56, 78 L.Ed.2d 267 (1983). Based upon our

review of the record in this case, we conclude defendant‟s absence during the final

moments of the state‟s rebuttal was harmless.

                              Penalty Phase Claims

Prosecutorial Misconduct

      Defendant complains the state engaged in misconduct when it cross-

examined defense witnesses during the penalty phase by assuming facts not in

evidence, misstating what the witnesses said, bullying the witnesses, and alleging

                                         42
prior bad acts by defendant without first providing notice. He alleges the state

fabricated an incident in which he shot a BB gun at his mother‟s abusive boyfriend

and repeatedly questioned witnesses about it.44

       Defendant complains the state cross-examined defense witnesses about his

juvenile arrest, his school disciplinary record, his failure to support his son, and his

guilty plea to misdemeanor carnal knowledge for having consensual sex with a 14-

year-old when he was 17. Defendant alleges he was arrested at age 11 after he

accidentally shot a 12-year-old neighbor with a BB gun and the state cross-

examined several witnesses about this incident despite giving notice to the defense

that the state was not planning to introduce this evidence in its case-in-chief.

Defendant contends witnesses incorrectly recalled that he was 13 years old at the

time of this incident, and argues the prosecutor engaged in misconduct by using

this incorrect information in argument despite the prosecutor‟s knowledge of his

correct age from the police report. Defendant moved for a new trial based on what

he characterized as newly discovered evidence indicating the victim was uninjured

in this incident.45 Defendant argues every school infraction and his struggles as a

young father are not “bad acts” suitable for consideration in the penalty phase of a

capital trial. Defendant also argues the state repeatedly misrepresented the incident

that led to his guilty plea to misdemeanor carnal knowledge as a rape.

       Defendant contends that the state‟s cross-examination in all of these areas as


44
   Although the testimony about this incident was vague and not necessarily indicative of any
misconduct by defendant, there is no basis to conclude the state fabricated it. Defendant‟s mother
recalled an incident in which the police were called to her home regarding a report that Chad
Lewis had been shot with a BB gun. She denied defendant was the shooter but instead blamed a
neighbor. Other witnesses did not recall this incident. After those witnesses indicated they were
unfamiliar with the incident, the state ceased further questioning regarding it. Regardless, the
defense did not object when the state inquired into this matter on cross.
45
   The fact that the victim‟s injury was trivial was presented to the jury through the testimony of
defendant‟s mother. The fact that the defense subsequently obtained additional evidence showing
the injury was trivial does not satisfy the standard of La. C.Cr.P. art. 851(3), which requires:
“New and material evidence that, notwithstanding the exercise of reasonable diligence by the
defendant, was not discovered before or during the trial, is available, and if the evidence had
been introduced at the trial it would probably have changed the verdict or judgment of guilty.”
                                                43
well as on the details of the crime was not responsive to the witness‟s testimony on

direct and outside of the proper scope of cross as well as outside of the witness‟s

personal knowledge. He further contends that, because the state gave no notice

that it would elicit information about his juvenile arrest, his school disciplinary

record, his lack of support of his son, and his prior guilty plea to misdemeanor

carnal knowledge, he was unable to rebut the state‟s misleading and inaccurate

depiction of him during the penalty phase. Thus, defendant argues the trial court

should have conducted an evidentiary hearing on his motion for new trial in which

he could have fully rebutted the state‟s presentation.

      At the penalty phase of a capital trial, the character and propensities of the

defendant are at issue. State v. Jackson, 608 So.2d 949 (La. 1992); State v. Brooks,

541 So.2d 801, 808 (La. 1989). As this Court stated in Jackson, 608 So.2d at 953,

“the usual prohibition against the prosecution‟s initiation of the inquiry into

defendant‟s character is simply not applicable in the penalty phase, where the focus

on character is one of the statutory means of channeling the jury‟s sentencing

discretion.” Furthermore, as this Court emphasized in State v. Sepulvado, 93-2692,

p. 10 (La. 4/8/96), 672 So.2d 158, 166, “[c]learly if the defense intends to develop

a certain view of the defendant‟s background, the state should be allowed to elicit

information to contradict these assertions.” Thus, “neither law nor justice permits

a defendant to foist a spurious reputation upon a jury because the State is so limited

in its cross-examination of the character witnesses.” State v. Banks, 307 So.2d

594, 599 (La. 1975).

      A review of the record shows that the state‟s cross-examination was an

acceptable response to the assertions of the defense‟s character witnesses. Defense

witnesses testified that defendant planned to attend college on a football

scholarship, he cared for his son and treated him well, he also treated other

                                          44
children well, defendant was only involved in typical teenage problems at school,

he loved animals and football, he was always helpful, he is easy-going with a good

sense of humor, he had been employed caring for horses, he attended Vacation

Bible School, he participated in a youth program called the Buffalo Soldiers, and

he would stand up for children who were being bullied. That defendant was

repeatedly suspended from school, frequently involved in fights, misused a BB

gun, pleaded guilty to misdemeanor carnal knowledge of a juvenile after the victim

reported she was raped, and inadequately supported his son and the mother of his

child, were fair areas of inquiry to allow the state to respond to the depiction of

defendant‟s character and propensities presented by the defense.

      Furthermore, the defense did not object to these lines of questioning by the

state during cross-examination. Therefore, any complaint about them is waived.

La. C.Cr.P. art. 841; State v. Wessinger, 98-1234, p. 20 (La. 5/28/99), 736 So.2d

162, 180-81 (reviving the contemporaneous objection rule for the penalty phase as

well as guilt phase of a capital trial). The defense objected to the badgering of a

defense witness Kalen Washington. The transcript clearly evidences the state‟s

frustration with Washington‟s meandering and evasive answers. However, the trial

court did not err in finding the state‟s questioning formed no basis for granting the

drastic remedy of a mistrial. See generally State v. Tribbet, 415 So.2d 182, 186

(La. 1982) (mistrial is drastic remedy and, except when mandatory, is warranted

only when trial error results in substantial prejudice to defendant depriving him of

reasonable expectation of fair trial).

                                Miscellaneous Claims

Confederate Flag

       Defendant complains that he was convicted and sentenced to death in a

courthouse in front of which flew a Confederate flag. Defendant contends the flag

                                         45
and its close association with lynching and slavery intimidates African-American

jurors and predisposes white jurors to impose the death penalty. Defendant alleges

that over half of African-Americans were removed during voir dire based on their

opposition to the death penalty, and defendant argues that the presence of the flag

prompted their views, making it possible to exclude them from the jury.46

According to defendant, the flag was used to systematically remove African-

Americans from the jury. He argues the trial court erred in denying his motion for

new trial on this basis without conducting an evidentiary hearing.

       This Court faced a similar claim in State v. Dorsey, 10-0216 (La. 9/7/11), 74

So.3d 603. See id., 10-0216 at 46, 74 So.3d at 635 (“[D]efendant contends the

presence of a confederate flag memorial outside of the courthouse in Caddo Parish

injects an arbitrary factor−race−into the capital sentencing decision.”). In Dorsey,

the Court discussed McCleskey v. Kemp, 418 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d

262 (1987) and recognized that to establish a violation of the Equal Protection

Clause, a defendant must prove, as McCleskey underscored, “the existence of

purposeful discrimination,” and “that the purposeful discrimination „had a

discriminatory effect‟ on him.” McCleskey, 481 U.S. at 292, 107 S. Ct. at 1767

(citing Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599

(1967) and Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84

L.Ed.2d 547 (1985)). Discriminatory purpose “implies the decision maker selected

or reaffirmed a particular course of action at least partly because of, not merely in

spite of, its adverse effects on an identifiable group.” Dorsey, 10-0216 at 50, 74

So.3d at 637 (internal quotation marks omitted). Measured against the McClesky

standard, the Court concluded that Dorsey‟s claim of endemic racial discrimination

did not provide any basis for setting aside either his conviction or sentence:
46
  As mentioned previously, the defense objected to only five of the state‟s cause challenges and,
despite having the opportunity, it made no effort to rehabilitate the prospective jurors challenged
by the state for their views on the death penalty.
                                                46
      [E]ven conceding Caddo Parish placed the confederate memorial outside the
      district courthouse at the turn of the century, refurbishing and reaffirming it
      half a century later with the confederate battle flag, defendant has made no
      showing the parish currently maintains the memorial because of the adverse
      effect it would have on the administration of the criminal justice system with
      respect to black defendants. Defendant also failed to show the memorial
      creates an environment giving rise to a constitutionally significant and
      unacceptable risk that one or more of the jurors in his case acted with
      discriminatory intent in returning his or her verdict, particularly at the
      sentencing stage of the proceedings on the basis of his color and not on the
      moral culpability of his acts and his individual character.

Dorsey, 10-0216 at 50, 74 So.3d at 638. Defendant here fails to show purposeful

discrimination and the state‟s success in challenging jurors with scruples against

capital punishment is attributable to the strategy chosen by the defense.

Batson Challenge in Motion for New Trial

      Defendant contends the trial court erred in finding he could not assert a

Batson challenge in a motion for new trial. He claims the state used peremptory

challenges to remove four of nine African-American prospective jurors and there

was no apparent race-neutral reason for removing Rachel Foreman, who defendant

contends expressed similar views to other prospective jurors who were not

challenged.

      The U.S. Supreme Court has never defined timeliness for a Batson claim. In

Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991),

the Court found that states retain considerable discretion to fashion their own rules

governing timeliness. Id. (“[A] state court may adopt a general rule that a Batson

claim is untimely if it is raised for the first time on appeal, or after the jury is

sworn, or before its members are selected.”). Nonetheless, the Court‟s discussion

in Batson makes clear that it envisioned an objection raised during the jury

selection process. The Batson court stated that it would leave it to trial courts to

determine “whether it is more appropriate . . . upon a finding of discrimination . . .

to discharge the venire and select a new jury from a panel not previously

                                         47
associated with the case . . . or to disallow the discriminatory challenges and

resume selection with the improperly challenged jurors reinstated on the venire.”

Batson, 476 U.S. at 99 n.24, 106 S.Ct. at 1725 n.24 (citations omitted). The latter

option would not exist once the jury had been sworn and the evidentiary trial had

started. See Jones v. Butler, 864 F.2d 348, 370 (5th Cir. 1988) (on petition for

rehearing) (“The Supreme Court‟s analysis in Batson presumed that an objection

would be made promptly, probably before the venire was dismissed.”), cert.

denied, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989).

      Every federal circuit to address the issue thus far has determined that a

Batson claim is waived if not raised during jury selection. See Morning v. Zapata

Protein (USA), Inc., 128 F.3d 213, 216 (4th Cir. 1997) (finding that “a Batson

challenge raised after the venire has been excused has been raised too late”);

McCrory v. Henderson, 82 F.3d 1243, 1246-49 (2d Cir. 1996) (finding Batson

challenges are waived if not raised during jury selection); United States v. Forbes,

816 F.2d 1006, 1011 (5th Cir. 1987) (finding that “[n]ow it is too late for

appellants to insist on an explanation they did not request at trial”); Government of

the Virgin Islands v. Forte, 806 F.2d 73, 75-76 (3rd Cir. 1986) (finding defendant

“waived his objection to the prosecutor‟s use of her peremptory challenges by

failing to make a contemporaneous objection during jury selection”); see also

United States v. Dobynes, 905 F.2d 1192, 1196-97 (8th Cir.) (finding that a

defendant who raised a Batson claim for the first time one week after the

conclusion of the trial had forfeited the objection), cert. denied, 498 U.S. 877, 111

S.Ct. 206, 112 L.Ed.2d 167 (1990); cf. United States v. Tomlinson, 764 F.3d 535,

536 (6th Cir. 2014) (finding a Batson claim not waived because it was asserted

before the jury was sworn and trial commenced).

      Three state supreme courts which held, prior to Batson, that a prosecutor‟s

                                         48
use of peremptory challenges on the basis of race violated provisions of their state

constitutions all appear to have recognized that such an objection must be raised

during jury selection when it can easily be remedied. See State v. Neil, 457 So.2d

481, 486 & n.9 (Fla. 1984); Commonwealth v. Soares, 377 Mass. 461, 491, 387

N.E.2d 499, 517-18, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110

(1979); People v. Wheeler, 22 Cal.3d 258, 263, 280, 282, 148 Cal. Rptr. 890, 583

P.2d 748, 752, 764, 765 (1978). Subsequently, state appellate courts have

determined that a Batson challenge must be asserted before the jury is sworn,47 and

a Batson claim is waived if not asserted until after the verdict.48

       Thus, the overwhelming weight of authority is contrary to defendant‟s

position that a Batson challenge asserted for the first time in a motion for new trial

post-verdict is timely. Defendant‟s reliance on Alex v. Rayne Concrete Service,

05-1457 (La. 1/26/07), 951 So.2d 138, is misplaced. That decision did not address

the question of timeliness and waiver at all; it resolved “a split among the court of

appeal regarding whether a Batson/Edmonson challenge in a civil trial must be

taken to the appellate court by supervisory writ or whether it may be considered on

appeal following the conclusion of the trial”. Alex, 05-1457 at 1, 951 So.2d at 141.

Plaintiff in that case did not wait until after obtaining an unfavorable verdict but

rather asserted his Batson challenge at the end of jury selection. See id., 05-1457 at

2, 951 So.2d at 142. This Court did state “in light of the United States Supreme

Court‟s decision in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d

196 (2005), that a defendant may rely on „all relevant circumstances‟ to raise an

inference of purposeful discrimination under Batson, and not just the reasons

proffered by the State in making the peremptory challenge, it seems reasonable, if

47
   See State v. Parrish, 327 Mont. 88, 92, 111 P.3d 671, 674 (Mt. 2005); State v. Rodriguez, 6
Neb. App. 67, 76, 569 N.W.2d 686, 692 (Neb. App. 1997); see also Stegall v. State, 628 So.2d
1006, 1009 (Ala. Crim. App. 1993) (stating that “whether the appellant‟s Batson objection was
untimely is governed by whether the remaining venire members had been released”).
48
   Philmon v. Baum, 865 S.W.2d 771, 775 (Mo. App. 1993).
                                             49
not necessary in some circumstances, for a party to wait until after the entire trial is

over to seek review of the peremptory challenge.” Alex, 05-1457 at 9, 951 So.2d at

146. That comment, however, explicitly refers only to the necessity of seeking

“review” and cannot reasonably be read as relieving a party from the necessity of

timely objecting. This claim is without merit.

Newly Discovered Evidence

      Defendant contends he presented newly discovered evidence that he was not

the shooter and the victim‟s mother forgave him. The evidence that he was not the

shooter consists of an anonymous letter. Defendant argues this mitigation evidence

would have swayed at least one juror and the trial court erred in denying the

motion without conducting an evidentiary hearing.

      This Court has repeatedly noted that in order to obtain a new trial based on

“newly discovered evidence,” the defendant has the burden of showing that “(1)

the new evidence was discovered after trial, (2) the failure to discover the evidence

at the time of the trial was not caused by lack of diligence, (3) the evidence is

material to the issues at trial, and (4) the evidence is of such a nature that it would

probably have produced a different verdict.” State v. Hammons, 597 So.2d 990,

994 (La. 1992); State v. Knapper, 555 So.2d 1335, 1339 (La. 1990); State v.

Prudholm, 446 So.2d 729, 735 (La. 1984); State v. Talbot, 408 So.2d 861, 884 (La.

1980). An anonymous letter of unknown provenance that lacks any indicia of

reliability is not material. Cf. United States v. Garner, 940 F.2d 663 (6th Cir. 1991)

(commenting that it was “highly unlikely” that an anonymous letter would be

admitted at trial); cf. also Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997)

(describing an anonymous letter as “uncorroborated and unreliable”); State v.

Potter, 148 Vt. 53, 64, 529 A.2d 163, 169-70 (1987) (finding an anonymous letter

“would not provide reasonable assurance of a different result, primarily because it

                                          50
raised problems of authentication and hearsay and would not be admissible on

retrial”).

       The fact that the victim‟s mother in this case has found some measure of

peace after sentencing is not newly discovered material evidence providing a

ground for a new trial under La. C.Cr.P. art. 851(3). Defendant‟s assignment of

error is without merit.

Diminished Capacity

        Defendant contends a death sentence cannot be imposed because he was

barely over the age of 18 and his IQ is 74. Because of his diminished mental

capacity, defendant argues his maturity level is less than his chronological age and

therefore a death sentence constitutes cruel and unusual punishment.

       In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005),

the U.S. Supreme Court held that “the death penalty cannot be imposed upon

juvenile offenders, 543 U.S. at 575, 125 S.Ct. at 1198, and the court further drew

the line between juvenile and adult offenders at age 18, 543 U.S. at 574, 125 S.Ct.

at 1197. Defendant here was over 18 years of age when he murdered Tavia Sills.

Nonetheless, he claims that because of his immaturity there is little practical

difference between himself and an offender who commits murder before reaching

the age of 18 years. However, the Supreme Court drew the line at age 18 well

aware of the “objections always raised against categorical rules,” id., 543 U.S. at

574, 125 S.Ct. at 1197, driven by two rationales: there was “objective indicia of

consensus” against sentencing juvenile offenders to death in that, for example,

most States had already rejected that possibility; and the death penalty “is a

disproportionate punishment” because juvenile offenders as a class are less

culpable than adult offenders. Id., 543 U.S. at 563-69, 125 S.Ct. 1191-95. No

similar consensus exists against executing adult offenders and, although defendant

                                         51
therefore cannot benefit from the categorical prohibition of Roper v. Simmons, he

had the opportunity to present his immaturity to the jury in the penalty phase as a

mitigating circumstance. See United States v. Mitchell, 502 F.3d 931, 981 (9th Cir.

2007) (finding that it “may well be true that [defendant] is less mature than the

average 20 year old. But whether true or not, and whether that mitigates against his

crime, is a question the Constitution permits to be answered on a case-by-case

basis.”).

       In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002),

the U.S. Supreme Court determined that the Eighth Amendment “„places a

substantive restriction on the State‟s power to take the life‟ of a mentally retarded

offender.” Atkins, 536 U.S. at 321, 122 S.Ct. at 2252 (quoting Ford v. Wainwright,

477 U.S. 399, 405, 106 S.Ct. 2595, 2599, 91 L.Ed.2d 335 (1986)). The present

defendant did not attempt to prove that he should have the benefit of that

categorical prohibition by following the procedure provided by La. C.Cr.P. art.

905.5.1, which was enacted to effectuate the mandate of Atkins. He simply

submitted Dr. Vigen‟s expert opinion that he has a full scale IQ of 7449 in

conjunction with a post-verdict motion. As previously mentioned, defendant did

not present that expert‟s opinion to the jury in the penalty phase.

       Defendant, in essence, argues that his two near misses at qualifying for the

categorical prohibitions established in Roper v. Simmons and Atkins v. Virginia,

when viewed together, should qualify him for a new categorical prohibition under

the Eighth Amendment, as yet unestablished by the U.S. Supreme Court, against

executing those who are less culpable because of their immaturity in conjunction

with their below average intelligence. As noted above, those considerations are

49
  In Hall v. Florida, ___ U.S. ___, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), the U.S. Supreme
Court determined that the Florida Supreme Court‟s interpretation of a Florida statute as barring a
defendant from presenting a claim that he cannot be executed because of his intellectual
disability when he has an IQ score above 70 is unconstitutional because it fails to consider the
margin of error.
                                               52
indeed mitigating circumstances that are relevant to the jury‟s determination in the

penalty phase. But defendant‟s argument by post-verdict motion and on appeal that

he is less culpable for these reasons is not sufficient to override the jury‟s

determination that death was the appropriate penalty in this instance. This claim is

without merit.

Endemic racism in Caddo Parish

       Defendant contends that his sentence violates the Eighth Amendment

because he is an African-American man who was prosecuted in Caddo Parish,

which made it more likely that he would receive a death sentence than if he had

been prosecuted elsewhere.

      In Dorsey, 10-0216 at 51, 74 So.3d at 638, this Court found defendant did

not first present his claim to the trial court that racism pervades Caddo Parish and

that race and parish together are the best predictors of who will face a capital

prosecution. In the present case, defendant argued in support of his motion to

prevent the flying of the Confederate flag that the death penalty is

disproportionately applied to black offenders who kill white victims and that

African-Americans represent about 20% of the population of Caddo Parish while

about 78% of those tried for first degree murder in Caddo Parish are African-

Americans. That, however, is not the same argument defendant asserts for the first

time on appeal, i.e., black males are more likely to be convicted of first degree

murder and sentenced to death in Caddo Parish than any other jurisdiction as a

result of endemic racism. Regardless, assuming arguendo, that defendant‟s motion

placed this claim before the trial court, the only support offered by defendant is a

study showing that six death sentences were imposed in Caddo Parish between

2004 and 2009, compared to four in East Baton Rouge, two in Ouachita, two in

Jefferson, one each in Red River, West Baton Rouge, St. Tammany, Livingston,

                                         53
Calcasieu, and St. Mary parishes. Robert J. Smith, The Geography of the Death

Penalty and Its Ramifications, 92 B.U.L. Rev. 227, 281-89 (2012). That is not

sufficient to prove the death penalty is disproportionately applied against African-

American men in Caddo Parish because of endemic racism. Defendant‟s claim is

without merit.

                        CAPITAL SENTENCE REVIEW

      In the discharge of the duty imposed by the legislature to “review every

sentence of death to determine if it is excessive,” La. C.Cr.P. art. 905.9, this Court

will review the record in a capital case to determine: (1) whether the sentence was

imposed under the influence of passion, prejudice or any other arbitrary factors; (2)

whether the evidence supports the jury‟s finding of a statutory aggravating

circumstance; and (3) whether the sentence is disproportionate to the penalty

imposed in similar cases, considering both the crime and the defendant. La. S.Ct.

Rule 28, § 1. In the present case, Rule 28 review demonstrates that defendant‟s

death sentence is not excessive.

Passion, Prejudice, or Other Arbitrary Factors

       There are very few potential sources of passion, prejudice, or other arbitrary

factors in the present case, aside from the allegation that racism pervades Caddo

Parish, which factor the defendant contends is the best predictor of who will

receive a death sentence in Louisiana. As discussed above, however, the defendant

did not present that claim to the district court where the necessary factual

development could occur, and the claim rests on speculation, unsupported

allegations, and the fact that Caddo Parish has imposed just two more death

sentences than the parish that has imposed the next greatest number (the statistical

significance of which is unknown). Defendant also argues that he is likely

ineligible for a death sentence under Atkins v. Virginia, supra. As noted above,

                                         54
defendant has not presented this claim following the procedure outlined in La.

C.Cr.P. art. 905.5.1 and did not even present Dr. Vigen‟s opinion regarding his

mental functioning to the jury in the penalty phase. The record does not reveal any

potential indicia of passion, prejudice, or arbitrariness. Defendant, an 18-year-old

black male, killed his pregnant girlfriend and received a sentence of death from a

jury consisting of eight white females, two black females, and two white males,

during the selection of which no Batson challenge was asserted. Although the

defendant attributes the verdict to racism, the defendant's allegations in this regard

are unproved.

Aggravating Circumstances

      As demonstrated by the jury's verdict during the guilt phase of the trial, the

state presented sufficient evidence to prove beyond a reasonable doubt that

defendant killed the victim while engaged in the perpetration of a second degree

kidnapping, and when the offender knowingly created a risk of death or great

bodily harm to more than one person. A review of the record suggests that the

evidence was sufficient to support such a determination. Defendant was the last

person seen with the victim. Defendant confessed to the crime and took police to

the location where the murder weapon could be found. A witness saw defendant

and the frightened victim as they walked to the location where the victim‟s body

was later found and the witness heard gunshots. Although the defendant initially

claimed he dropped the victim off at her sister‟s apartment, surveillance video

contradicted this claim. Defendant ultimately claimed he shot the victim

accidentally, and admitted he then shot her a final time to make certain that she

was dead rather than seeking help.

      As discussed above, the state‟s evidence overwhelmingly proved defendant

committed the crime of second degree kidnapping when he enticed/persuaded

                                         55
Tavia Sills to accompany him from one place to another and into the woods, for

purposes of facilitating the commission of another felony (her murder) by means of

the firearm in his possession, thereby causing her physical harm (death). The jurors

found this aggravating circumstance proved beyond a reasonable doubt in the

penalty phase of the trial. Therefore, even if the jury‟s additional finding that

defendant knowingly created a risk of death or great bodily harm to more than one

person is erroneous because Tavia Sill‟s unborn child is not a person for purposes

of La. C.Cr.P. art. 905.4(A)(4), that error does not require reversal of the penalty

phase verdict because it did not introduce an arbitrary factor into the proceedings.

See State v. Welcome, 458 So.2d 1235, 1245 (La. 1983) (“This court has taken the

position that where more than one statutory aggravating circumstance is found by

the jury, the failure of the one circumstance does not so taint the proceedings as to

invalidate any other aggravating circumstance found and the sentence of death

based thereon.”); see also State v. Thibodeaux, 98-1673, p. 15 (La. 9/8/99), 750

So.2d 916, 928 (In the context of Rule 28 review, the existence of an arbitrary

factor requires this court to find an error of such magnitude that it undermines

confidence in the jury's sentencing verdict, . . . .”). Evidence that Tavia Sills was

pregnant inevitably would have come before jurors to provide them with

defendant‟s motive for an otherwise an unexplained murder, i.e. that he killed her

to protect his relationship with Tamara Bates, the mother of his three-year-old son.

See State v. Williams, 93-2707 (La. 3/11/94), 633 So.2d 147, 149 (“Motive is not

an essential element of murder, but a lack of motive may properly be considered as

a circumstance mitigating against specific intent.”) (internal quotation marks and

citation omitted).

Proportionality

      The federal Constitution does not require a proportionality review. Pulley v.

                                         56
Harris, 465 U.S. 37, 42-50, 104 S.Ct. 871, 875-79 (1984). However, comparative

proportionality review remains a relevant consideration in determining the issue of

excessiveness in Louisiana, State v. Burrell, 561 So.2d 692, 699-700 (La. 1990);

State v. Wille, 559 So.2d 1321, 1341-42 (La. 1990); State v. Thompson, 516 So.2d

349, 356-57 (La. 1987), although the Court has set aside only one death penalty as

disproportionately excessive under the post-1976 statutes, finding in that one case,

inter alia, a sufficiently “large number of persuasive mitigating factors.” State v.

Sonnier, 380 So.2d 1, 9 (La. 1979); see also State v. Weiland, 505 So.2d 702, 707-

10 (La. 1987) (in case reversed on other grounds, dictum suggesting that death

penalty disproportionate).

       The Uniform Capital Sentence Report reveals that defendant is a black male

born on April 3, 1990. He was 18 years old at the time of the offense and is now

almost 25 years old. He is unmarried and has one child (now approximately 10

years old). He completed the 11th grade. He has no significant employment history

and previously pleaded guilty to misdemeanor carnal knowledge of a juvenile. He

was frequently suspended from school.

       According to the state, since 1976, 46 persons (excluding defendant) have

been indicted for first degree murder in Caddo Parish, of which 18 have been

found to merit a sentence of death by a jury.50 Of death sentences not reversed, two

were committed during kidnappings, eight involved intent to kill more than one

person, and seven involved female victims.

       A review of the capital verdicts from Caddo Parish does not suggest that

Lamondre Tucker received a disproportionately harsh sentence. As noted above,

two cases resulted in a death sentence when the perpetration of a kidnapping was

an aggravating circumstance. In Dorsey, 10-0216, 74 So.3d 603, defendant and a

50
  Defendant disputes the state‟s numbers and alleges that there have been at least 313 first degree
murder cases in Caddo Parish that have not result in a death sentence and that are relevant to the
issue of proportionality.
                                                57
codefendant were interrupted while committing a home invasion/armed robbery by

the return of the male victim. The two subdued the victim, demanded money, and

then defendant pistol-whipped the victim before setting him on fire. In State v.

Wilson, 03-1229 (La. 3/30/05), 899 So.2d 551, defendant and codefendants

abducted the female victim. Defendant repeatedly raped the victim before shooting

her in the head and leaving her body by the roadside. Although defendant Tucker

engaged in less brutality than that exhibited by Dorsey or Wilson, the present case

is not out of place when viewed in proper context. Tucker, through guile, abducted

his pregnant girlfriend and lured her to a secluded location where he could kill her.

He shot her twice, he apparently planned or attempted to set her on fire, and then

shot her a third time to be certain that she was dead. With the help of an

accomplice, Tucker used a large branch to push her body out into the pond in an

attempt to hide the evidence. He then discarded the murder weapon in a drainage

canal and tried to enlist the aid of friends in concealing his involvement in the

crime.

         In view of the foregoing, the proportionality review does not give the Court

undue pause. The death penalty imposed on the defendant, Lamondre Tucker, for

the first degree murder of Tavia Sills is not disproportionate.

                                       DECREE

         For the reasons assigned herein, the defendant‟s conviction and death

sentence are affirmed. In the event this judgment becomes final on direct review

when either: (1) the defendant fails to petition timely the United States Supreme

Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a)

the defendant, having filed for and been denied certiorari, fails to petition the

United States Supreme Court timely, under its prevailing rules, for rehearing of

denial of certiorari; or (b) that Court denies his petition for rehearing, the trial

                                           58
judge shall, upon receiving notice from this Court under La. C.Cr.P. art. 923 of

finality of direct appeal, and before signing the warrant of execution, as provided

by La. R.S. 15:567(B), immediately notify the Louisiana Public Defender Board

and provide the Board with reasonable time in which: (1) to enroll counsel to

represent the defendant in any state post conviction proceedings, if appropriate,

pursuant to its authority under La. R.S. 15:178; and (2) to litigate expeditiously the

claims raised in that original application, if filed, in the state courts.

       AFFIRMED




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