FOR IMMEDIATE NEWS RELEASE                                               NEWS RELEASE #011


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinion handed down on the 26th day of February, 2016, is as follows:



BY JOHNSON, C.J.:


2014-KA-0402        STATE OF LOUISIANA v. ROBERT GLEN COLEMAN (Parish of Caddo)

                    Retired Judge Marion F. Edwards,     assigned   as   Justice   ad   hoc,
                    sitting for Crichton, J., recused.

                    For the reasons assigned, defendant’s conviction for first degree
                    murder is affirmed. Defendant’s sentence of death is vacated and
                    set aside and the case is remanded to the district court for a
                    new sentencing hearing.

                    CONVICTION AFFIRMED; DEATH SENTENCE REVERSED; CASE REMANDED FOR
                    FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

                    CRICHTON, J., recused.
                    KNOLL, J., additionally concurs and assigns reasons.
                    WEIMER, J., dissents in part and assigns reasons.
                    GUIDRY, J., dissents in part for the reasons assigned by Justice
                    Weimer.
                    CLARK, J., dissents in part for reasons assigned by Justice
                    Weimer.
02/26/16

                          SUPREME COURT OF LOUISIANA

                                      NO. 2014-KA-0402

                                  STATE OF LOUISIANA

                                            VERSUS

                               ROBERT GLEN COLEMAN

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


JOHNSON, Chief Justice*

       On February 14, 2003, a Caddo Parish grand jury returned an indictment

charging defendant, Robert Glen Coleman, with the January 1, 2003, first degree

murder of 70-year-old Julian L. Brandon, Jr. and the attempted first degree murder of

his wife, 69-year-old Alice Brandon. Counsel was appointed and defendant entered

a plea of not guilty. On January 21, 2005, the state filed an amended indictment,

severing the non-capital offense, and proceeded to trial on one count of first degree

murder as to decedent Julian Brandon.1 On February 17, 2005, a Caddo Parish jury

returned a unanimous verdict of guilty as charged, and, two days later, voted

unanimously to impose the death penalty, having found all four aggravating

circumstances urged by the state, namely that: defendant was engaged in the

perpetration or attempted perpetration of an armed robbery, La. C.Cr. P. art.

905.4(A)(1); the victim was older than 65 years of age, La. C.Cr. P. art. 905.4(A)(10);


       *
           Retired Judge Marion F. Edwards, assigned as Justice ad hoc, sitting for Crichton, J.,
recused.
       1
          The state separately tried co-defendant Brandy A. Holmes. In February 2006, a Caddo
Parish jury found her guilty of the first degree murder of Julian Brandon and unanimously sentenced
her to death. State v. Holmes, 06-2988 (La. 12/2/08), 5 So. 3d 42, cert. denied, Holmes v. Louisiana,
558 U.S. 932, 130 S.Ct. 70, 175 L.Ed. 2d 233 (2009).

                                                 1
defendant created a risk of death or great bodily harm to more than one person, La.

C.Cr. P. art. 905.4(A)(4); and defendant had been previously convicted of armed

robbery, La. C.Cr. P. art. 905.4(A)(3). On appeal, this court found a violation of the

rule in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed. 2d 69 (1986), which

forbids racially discriminatory use of peremptory challenges during jury selection, and

vacated defendant’s conviction and sentence and remanded the case for a new trial.

State v. Coleman, 06-0518 (La. 11/2/07), 970 So. 2d 511.

      Jury selection for defendant’s second trial commenced on January 23, 2012, and

the guilt phase began on January 30, 2012. On February 3, 2012, a Caddo Parish jury

returned a verdict of guilty as charged, and on February 7, 2012, having found the

same four aggravating circumstances as found at his first trial, unanimously agreed

to impose the death penalty. Thereafter, the trial court denied defendant’s motion for

a new trial and, on May 3, 2012, formally imposed the death sentence in accord with

the jury’s determination.

      This is a direct appeal under La. Const. art. V, § 5(D). Defendant appeals his

conviction and sentence raising 38 assignments of error, variously combined into 21

arguments. We will address the most significant of these assignments of error in this

opinion, and the remaining assignments of error will be addressed in an unpublished

appendix. After a thorough review of the law and the evidence, we find no merit in

any of the assignments of error relative to the issue of guilt. Therefore, we affirm the

defendant’s first-degree murder conviction. However, we find error relative to the

state’s failure to provide sufficient notice of evidence of an unadjudicated murder

introduced in the penalty phase. Thus, we vacate defendant’s sentence and remand this

case for a new sentencing hearing.

                                       FACTS



                                           2
       During the early evening hours of January 1, 2003, 70-year-old retired minister,

Julian Brandon, and his 68-year-old wife, Alice Brandon, were attacked in their home.

Crime scene investigators determined that the perpetrators shoved their way into the

Brandon home through the front door and that Mr. Brandon was forced into his dining

room where he was shot through the chin at contact or near-contact range. A portion

of the bullet lodged in his brain and a portion exited and embedded in the ceiling

above him. Mr. Brandon was repeatedly stabbed and cut at some point thereafter. Mr.

Brandon was killed in the attack. Mrs. Brandon was found in a bedroom of the home,

where the perpetrators had placed a pillow over her face and shot her in the head. Mrs.

Brandon survived the attack, although she remained permanently disabled until she

died several years later.

       Months earlier, Tammy Holmes was living with her husband, John Holmes, in

Tylertown, Mississippi.2 In August 2002, John’s daughter, Brandy Holmes, stayed

with the couple a short time before moving in with her new boyfriend, defendant

Robert Coleman. During that time, John owned a .380 pistol which he used regularly

to target shoot in a remote wooded area in Lumberton, Mississippi. Brandy and

defendant visited John and Tammy just before Christmas in 2002. While at their

home, defendant stayed outside to work on his truck, but Brandy made several trips

back and forth between the yard and the home, using a back door near the nightstand

on which John kept his gun. The day after their visit, John noticed his gun was

missing and, despite exhaustive searches, never located it.

       On Christmas Eve 2002, defendant and Brandy left Mississippi to visit

Brandy’s mother, Brenda Bruce, in Shreveport. After settling in at Ms. Bruce’s trailer

home, the pair decided to host a New Year’s Eve party. Terrance Barnes, an

acquaintance of Brandy’s, attended the party and, at some point during the night,
       2
         John Holmes is now deceased, but his testimony at defendant’s first trial was published to
the jury at this trial by agreement of the parties.

                                                3
observed defendant receive a gun, which Barnes described as a “revolver,” from

Brandy’s younger brother, Sean George, in a back bedroom. Later that night,

defendant asked Barnes if he knew where he could “hit-a-lick,” which Barnes

understood to mean that defendant was asking where he could rob someone.

      The Brandons were not discovered for four days, on January 5, 2003, when a

concerned friend, Calvin Hudson, went to check on them. Mr. Hudson observed Mr.

Brandon’s body in a pool of blood through the glass back door of the house and

immediately went to a neighbor’s house to call police. While waiting for police to

arrive, the neighbor, retired Caddo Parish Deputy Sheriff Danny Kent, walked over

to observe the scene for himself. Deputy Kent found the Brandons’ back door

unlocked and entered to check Mr. Brandon’s pulse. Deputy Kent maintained he did

not touch anything in the home - except to check Mr. Brandon’s pulse - and that police

arrived shortly thereafter and secured the scene.

      Sergeant William Gaines was first to respond to the 911 dispatch and also

entered through the back door. According to Sgt. Gaines, it was apparent that Mr.

Brandon had been dead more than a day. After surveying the scene around Mr.

Brandon, Sgt. Gaines followed bloody footprints down the hallway where he heard

a sound coming from the first bedroom and discovered an incapacitated Mrs. Brandon.

There was a bloodstain on the bed and Mrs. Brandon was lying face up on the floor

in a pool of dried blood. Sgt. Gaines notified Mrs. Brandon that he was a police officer

there to help, called for EMT assistance, and cleared the remainder of the house.

According to Sgt. Gaines, although it seemed Mrs. Brandon wanted to say something,

she could not speak and her eyes could only track from side to side. Sgt. Gaines

waited for investigators to arrive and photograph the scene before moving anything,

but noted a jewelry box in disarray and a piece of jewelry on the kitchen floor. After

Mrs. Brandon received initial medical attention from the EMTs, Sgt. Gaines recalled

                                           4
that she was able to answer simple questions, but he did not hear her say anything of

significance to the investigation.

       Deputy Chief Jefferson Akes of the Caddo Parish Sheriff’s Office was another

among the first to respond. Having observed that Mrs. Brandon had suffered a head

wound of indeterminate cause, he immediately dispatched emergency air transport.

Deputy Chief Akes also recalled that although she was initially unresponsive, Mrs.

Brandon began to mumble after EMTs cleaned her mouth but she was unable to give

specific responses.

       The flight medic crew arrived at the scene to transport Mrs. Brandon to the

hospital. While on board the helicopter, paramedic Tommy Adams questioned Mrs.

Brandon about her attackers and she stated that two white persons were responsible.3

Mrs. Brandon was admitted into intensive care and remained there several weeks. She

had a “trach” implanted shortly after being admitted and never spoke again.4 After

Mrs. Brandon was discharged from the hospital, her daughter, Dawn Finley, a nurse,

provided round-the-clock care until Mrs. Brandon passed away in 2008.

       Crime scene investigator Corporal Charlotte Hammontree arrived at the

Brandons’ home shortly after the 911 dispatch and immediately began taking

photographs of the scene. She also collected several samples for DNA testing and

documented everything of apparent significance. In addition, she noted the absence

of spent bullet casings on the premises. Mr. Brandon’s wallet, debit and credit cards,

along with at least four pieces of Mrs. Brandon’s jewelry - including a pearl bracelet

and a gold bracelet with multicolored stones - were missing. Latent prints expert, Lt.
       3
          Adams was deceased by the time of defendant’s second trial. A transcript of Adams’
testimony at defendant’s first trial was published to the jury. In a written addendum, also published
to the jury, Mr. Adams stated, in pertinent part: “I asked her if she knew what happened to her? She
stated yes. I asked was she assaulted, she said yes. I asked her did someone enter their home she
said yes. I asked her if they were white, black or Hispanic. She said white. I asked her if there was
more than one. She said yes two.”
       4
        After the attack, Mrs. Brandon could only nod or shake her head in response to questions,
and even that yielded inconsistent information about her attackers.

                                                 5
Owen McDonnell, brushed five or six areas at the scene for fingerprints, including the

knife blades used on Mr. Brandon and the killers’ apparent points of entry and exit,

but none of the fingerprints lifted at the scene were matched with any person of

interest. On the door leading to the garage, however, detectives documented an area

of dried blood containing a small diamond pattern.

      After securing and surveying the Brandon home, Caddo Parish investigators

gathered information which led them to suspect that Brandy, Sean, and a third person

named Johnny Wright were involved. Captain Bobby Abraham, Sergeant Gary Frake,

Lieutenant Bill Duncan, and lead investigators Sheila Hostnick and Kay Ward,

traveled to the Bruce trailer to locate Brandy and Sean. Ms. Bruce allowed the officers

inside, where they encountered Brandy, Sean, and defendant, along with Ms. Bruce’s

three young grandchildren. Defendant was first observed in a rear bedroom, where he

was not wearing shoes. Brandy, defendant, Sean, and Ms. Bruce voluntarily

accompanied officers to the station for interviews. When asked to come along to the

station, defendant proceeded to put on a pair of black boots that had been on the floor

right next to him. Brandy and defendant were taken in separate cars, and Sean, who

was a minor, went with his mother. Defendant, who was not yet a suspect, traveled

unrestrained in the front seat of Capt. Abraham’s car. Upon arrival at the station, Capt.

Abraham directed defendant to take a seat in the conference room while Brandy was

taken into an interview room.

      After defendant indicated he understood his rights and signed a written waiver,

Det. Ward and Deputy Hostnick interviewed him at 11:20 p.m. Defendant told the

officers he had no knowledge of the murder, he and Brandy had been boyfriend and

girlfriend just a few months, he came with her to Shreveport just before Christmas,

and they had been inseparable since their arrival. Defendant then returned to the

conference room. Some time thereafter, defendant asked to speak with Capt.

                                           6
Abraham. Capt. Abraham brought defendant into his office and the two spoke alone.

Defendant inquired as to “what was going on,” and repeated that he did not know

anything about the homicide. He volunteered further that he did not believe Brandy

was involved either, stating again that they had been at each other’s sides since

arriving in Shreveport on December 24, 2002. During the conversation, Capt.

Abraham observed a “fresh injury” on defendant’s right hand, which defendant

claimed he sustained while working on a bicycle.5 Defendant agreed to have his hands

photographed and then asked to step outside for a cigarette. Capt. Abraham agreed and

accompanied him. After the cigarette, defendant returned to the conference room.

       Capt. Abraham did not record defendant’s initial statements because, in his

experience, a recording device generally tends to keep a subject from speaking openly,

but Capt. Abraham verified that each of defendant’s pre-arrest statements were

voluntary.6 Defendant appeared lucid, relaxed, and extraordinarily calm while at the

station.

       Lt. McDonnell subsequently observed what appeared to be blood on

defendant’s boots and, when he advised defendant as much, defendant claimed the

boots were not his but actually belonged to Brandy’s brother, Sean. Up until that

point, defendant had not said anything to indicate the boots belonged to anyone else.

Lt. McDonnell and Capt. Abraham recognized that the soles of defendant’s boots were

similar to prints at the crime scene and collected his boots along with the other

interviewees’ shoes. Defendant voluntarily relinquished his boots with the disclaimer

that they were his only shoes and that he “wouldn’t be stupid enough to walk into a




       5
           Neither Brandy, Sean nor Johnny Wright had cuts on their hands.
       6
        According to Capt. Abraham, he never threatened defendant nor promised him anything.
At no point before his arrest did defendant request an attorney or decline to answer questions.

                                                7
police station with blood on [them].” To keep defendant from going barefoot, officers

loaned him a pair of rubber boots used by inmates during cleaning.7

       After analyzing the subjects’ shoes, Lt. McDonnell determined that although

Brandy could be excluded as a source of the bloody footprints, defendant could not

be excluded. Defendant’s boots shared the same tread detail, size (nine), and shape as

the print Lt. McDonnell lifted at the crime scene.

       Meanwhile, Deputy Hostnick separately interviewed Brandy. At some point,

Deputy Hostnick stepped away and a male officer granted Brandy permission to use

the restroom unaccompanied. Shortly thereafter, Deputy Hostnick discovered that

Brandy took the opportunity to remove three cassette tapes from the interview room,

pull all the tape out, and flush the jewelry she had been wearing down the toilet.

Brandy was arrested at 10:00 a.m. on January 6, 2003.

       Sometime after defendant gave his boots to detectives, but apparently before

they realized he could not be ruled out as the source of the bloody footprints at the

scene, Det. Jason Morgan drove defendant back to the Bruce trailer.8 On the way,

defendant again sat in the front seat and, as he exited the vehicle, returned the rubber

boots he was loaned at the station. Defendant entered the Bruce trailer wearing only

socks on his feet and Det. Morgan left to return to the station. By the time Det.

Morgan traveled 200-300 yards, however, he received a call advising him to reclaim

defendant. When Det. Morgan arrived back at the trailer, less than two minutes later,

the door to the trailer was open and defendant met him at the doorway with a duffle

bag, still not wearing any shoes. Det. Morgan informed defendant he was needed back


       7
         Lt. McDonnell testified that defendant willingly handed over the shoes but stated these
were the only shoes he owned. Capt. Abraham testified defendant agreed to hand over his shoes to
investigators, but stated he did not have any other shoes to wear at that time.
       8
          Deputy Hostnick released defendant in accordance with policy because she was unaware
at the time there existed any evidence inculpating him, other than the cut on his palm for which he
had provided an explanation.

                                                8
at the station for additional questioning. Defendant agreed, but stated he needed to get

to the bus station afterwards. Det. Morgan gave defendant the rubber boots to wear

back to the station.

      Upon returning to the station, defendant gave his consent for the detectives to

search his duffle bag. The bag contained clothing, but no shoes. Defendant identified

certain items in the duffle bag as his belongings, including a pair of jeans on which

blood evidence connected to the unrelated homicide of Terrance Blaze was later

found.

      Defendant was subsequently placed under arrest for the murder of Julian

Brandon. After his arrest, defendant was transferred to the Caddo Parish Correctional

Center where he was temporarily placed in an intake cell with Collies Sharpes and

Bobby Evans, each of whom had recently been arrested on separate charges. None of

the three knew each other before being placed together in the cell. Defendant made

statements to Sharpes and Evans indicating his involvement in the crime. After

defendant was removed from the intake cell, either Sharpes or Evans called a guard

over and divulged what defendant had said. The following day, Sharpes and Evans

separately gave recorded statements to Caddo Parish Detective Marianna McClure.

      Sharpes testified that during his brief encounter with defendant, defendant

volunteered that he had been arrested for murdering an “old couple up in Blanchard.”

According to Sharpes, defendant stated he instructed his girlfriend Brandy to

“knockoff” the couple to see whether she had what it took to kill and he had taken a

bracelet from the victims during the crime. Sharpes testified that defendant said

Brandy did the killing and attempted to cover her tracks by flushing some of the

victim’s jewelry down the toilet at the police station. Defendant boasted police “didn’t

have anything on him,” and informed his cellmates that he was from Mississippi. In

Sharpes’ appreciation, defendant was excited as he spoke about the crime: his eyes

                                           9
brightened and he appeared gratified and proud of what he said he and Brandy had

done together. Sharpes testified he had not received anything for his testimony, he has

never been an agent of the state, he did not receive information about the crime from

law enforcement, and although he had access to a television in jail he did not see any

related news reports.9

       Cellmate Bobby Evans also testified about his encounter with defendant. At

defendant’s second trial, Evans, who was still incarcerated and a self-described “four-

time loser,” became uncooperative. When called to the stand, he acknowledged his

prior testimony recounting defendant’s January 6, 2003, statements but balked when

asked to relay them again. After a combative exchange with the prosecutor, Evans

explained he had initially disclosed defendant’s statements only because he was

“young and scared,” but he no longer wanted anything to do with defendant’s case

because he still had time left to serve and was worried he might meet defendant again

behind bars. After having his memory refreshed as to the content of his prior

testimony, Evans confirmed that, on January 6, 2003, defendant stated he and his

girlfriend Brandy killed “two old people;” defendant was putting Brandy to a test;

Brandy flushed the victim’s bracelet down the toilet; defendant had blood on his

shoes; defendant buried the murder weapon behind the victims’ home; Brandy’s

brother was present during the murder; Brandy’s brother wore defendant’s shoes and

defendant wore someone else’s shoes, to “throw people off;” Brandy shot the woman

and defendant shot the man; a detective released defendant back to Brandy’s “mama’s

house,” but came back for him; the “old man” hit Brandy with a Budweiser bottle; and

they had tied up the victims. Evans denied that detectives had supplied him with any


       9
         Attorney Pam Smart was appointed to represent both Evans and Sharpes on the charges
they were facing when defendant made the jail cell disclosures. Smart testified she never reached
any plea deals on behalf of Evans or Sharpes in consideration for their testimony against defendant.
According to Smart, the treatment each received was representative of dispositions she has obtained
for similarly situated clients.

                                                10
information about the crime and stated he had not seen or heard anything about it on

the news. On cross-examination, it was elicited that Evans told Detective McClure

defendant’s skin tone was “really white,” and that when Evans testified before the

grand jury he stated, contrary to his trial testimony, defendant said Brandy shot the

man and defendant shot the woman.

       Investigators determined that neither Sean George nor Johnny Wright were

involved in the Brandon murder. On the day of the murder, Sean was subject to a

court order which required him to stay within 150 feet of his mother’s trailer and was

wearing an ankle bracelet that monitored his whereabouts. After speaking with Sean’s

probation officer, investigators ruled him out as a suspect. Separately, investigators

independently verified Wright’s alibi through multiple sources.

       On the evening of the murder, January 1, 2003, surveillance cameras captured

two individuals attempting to use the ATM at the Northwood Branch of the Hibernia

National Bank in Shreveport, between 7:32 and 7:36 p.m. While the ATM could not

record which card, i.e., which bank account was attempted to be accessed or whose

card was inserted, electronic bank data showed the users inserted a card and supplied

an incorrect PIN. Brandy’s father, John Holmes, reviewed enhanced ATM

surveillance imagery and identified Brandy as the female and testified the black male

with her looked like defendant. Tammy Holmes, Brandy’s stepmother, identified

Brandy and defendant in the same photograph. At 6:55 p.m. and 7:01 p.m. on the

same evening, the bank also recorded two separate failed attempts to withdraw $200

using Mr. Brandon’s ATM card from an ATM inside a convenience store near the

Brandon home. The withdrawals were declined for use of an incorrect PIN. There was

no surveillance camera at this ATM. Testimony established that it was an easy walk

from the Bruce trailer to the Brandon home and to both of these ATM locations.10
       10
             The distance between the Bruce trailer and the Brandon home was less than one quarter
of a mile.

                                                 11
       After Brandy and defendant were arrested, investigators obtained warrants to

search in and around the Bruce trailer. In the bedroom Brandy and defendant shared,

investigators found two pillows with apparent bullet holes, similar to the one found

near Mrs. Brandon, and a box of plastic food prep gloves from a Subway restaurant.

The gloves had a small diamond pattern which was consistent with the diamond

pattern imprinted in the dried blood stain found on the Brandons’ door. Outside the

trailer, just beyond the porch, there was a bottle of bleach and a “little burn pile” of

charred clothing, a mop, a shoe sole, and other fabric. Three spent shell casings and

a clear plastic glove which contained a pearl bracelet and a gold bracelet with

multicolored stones were recovered from a gutter along the roof.

       Investigators also traveled to Lumberton, Mississippi to investigate a link

between Brandy and the weapon used to shoot the victims. With the help of John and

Tammy Holmes and local law enforcement, investigators located the spot where John

used his .380 handgun for target practice. Caddo Parish authorities excised a portion

of a pine tree that had been hit by gunfire and collected spent shell casings from the

ground nearby. Lt. McDonnell extracted a bullet from the tree sample and submitted

it for lab analysis.

       Forensic analyst and ballistics expert Richard Beighley compared the bullets

and spent shell casings and concluded that: (1) the portion of the bullet extracted from

Mr. Brandon’s brain fit with the fragment embedded in the ceiling above him; (2) the

bullet extracted from the Mississippi pine tree was fired by the same weapon, a .380

caliber, that shot Mr. Brandon; (3) the same weapon fired at least one of the bullets

that yielded the shell casings recovered from the gutter at the Bruce trailer;11 and (4)


       11
           The bullets that yielded the other two spent shell casings recovered from the gutter were
also fired from a .380 caliber with the same “class characteristics” as the weapon used to shoot Mr.
Brandon but could not be conclusively matched. “Class characteristics” refer to the shape, size,
location, overall markings, weight, design, quantity of lands and grooves, and width of lands and
grooves of a bullet and its spent casing.

                                                12
the shell casings collected from around the pine tree in Mississippi were from the

same .380 caliber weapon that produced the casings recovered from the gutter at the

Bruce trailer. According to Beighley, that two of the casings from the gutter were

unable to be conclusively matched with the other ballistics evidence was attributable

to the fact that a .380 caliber is an inexpensive gun that variably fires with less force

than is necessary to leave unique impressions on the bullet or its casing.

      As to blood at the scene, DNA testing revealed that blood on the knives

contained Mr. Brandon’s DNA and none of defendant’s DNA was detected. DNA

testing of bloodstains on defendant’s boots, however, revealed the presence of Mr.

Brandon’s DNA, with a statistical probability that it came from someone other than

Mr. Brandon of one in 208 trillion. One of the shell casings recovered from the gutter

at the Bruce trailer also tested positive for Mr. Brandon’s DNA, with a statistical

probability that it came from someone else of one in 2.26 billion.

      Defendant asserted he was innocent and presented his case that he was never

inside the Brandon home, the perpetrators were two white people, as Mrs. Brandon

told paramedic Tommy Adams, and the shoes he wore to the police station belonged

to Sean George. In support of his theory, defendant called his younger brother,

Bradley Brumfield to testify. According to Brumfield, while defendant lived near him

in Tylertown between 2000 and 2002, they were roughly the same size and had a habit

of sharing clothing and shoes, specifically size 10.5 or 11 shoes. Brumfield stated that

he had never seen defendant wearing the size 9 boots in which he was arrested.

Brumfield also stated that, the day before defendant left for Shreveport, he was

helping him work on his truck’s transmission and defendant cut the palm of his right

hand. Brumfield also recalled that when he visited defendant in jail, defendant denied

any involvement in the murder and blamed Brandy for his entanglement in the case.



                                           13
      Mike Brandao, a nurse practitioner who responded with paramedic Tommy

Adams to transport Mrs. Brandon in the medivac helicopter, also testified. According

to Brandao, Mrs. Brandon was alert enough to physically respond while on the

helicopter, i.e., squeeze a hand; although, as a result of the excessive aircraft noise and

the helmet he was required to wear, Brandao did not hear anything that Mrs. Brandon

may have said to Adams. Brandao explained that, as a result of the noise, it is

generally difficult for medical personnel to understand patients on board the

helicopter.

      During the penalty phase of the proceedings, following the jury’s return of the

guilty verdict, the state presented evidence of defendant’s involvement in the

unrelated murder of Terrance Blaze. The evidence indicated defendant and Brandy

committed the murder together in Brandy’s mother’s vehicle three days after the

Brandon murder. The state also presented victim impact evidence concerning how the

crime affected the Brandons’ friends and family. The defense offered mitigation

evidence in an effort to establish defendant’s intellectual disability/mental retardation.

The defense also offered evidence to show he had a difficult childhood.

      The jury was unpersuaded by the mitigation evidence and unanimously

determined a sentence of death should be imposed.


        DENIAL OF MOTION TO SUPPRESS FRUITS OF ILLEGAL
                           DETENTION
                      (Assignment of Error #1)

      Defendant filed a motion to suppress evidence and statements that were

obtained from him the night of January 5, 2003, and the morning of January 6, 2003,

arguing that the evidence and statements resulted from an illegal detention, and that

his intellectual deficits prevented him from knowingly and voluntarily consenting to

the waiver of any of his rights. Specifically, defendant sought to exclude his boots,


                                            14
photos of his boots, photos of his hands, two buccal swabs, his fingerprints, fingernail

scrapings, his duffle bag and its contents, along with his statements that he had been

with Brandy Holmes since his arrival in Shreveport, that the boots he was wearing

were his only shoes, and that he was not stupid enough to walk into the station with

blood on his shoes. Defendant takes issue with the means by which officers procured

him and argues the Fourth Amendment proscribes his removal from a private

residence and prolonged detention without probable cause. Defendant asserts the trial

court should have granted his motion to suppress because he did not voluntarily

consent to go to the station or to the collection of his personal effects. Instead,

defendant claims he acquiesced only as a result of the officers’ coercive tactics,

coupled with his sub-average intellect and intoxicated state.

      An arrest is “the taking of one person into custody by another [through] actual

restraint [that] may be imposed by force or may result from submission of the person

arrested to the custody of one arresting him.” State v. Fisher, 97-1133 (La. 9/9/98),

720 So. 2d 1179, 1183; La. C.Cr. P. art. 201. Whether a person has been arrested is

determined by an objective test; neither the person’s subjective impression nor the

lack of formality of the arrest resolves the issue. State v. Thibodeaux, 414 So. 2d 366,

368 (La.1982). The determination of whether an arrest occurred depends on the

totality of the circumstances, but several factors distinguish an arrest from lesser

infringements on personal liberty. State v. Allen, 95-1754 (La. 9/5/96); 682 So. 2d

713, 719. A prime characteristic of any Fourth Amendment seizure of a person is

whether, under the totality of the circumstances, a reasonable person would not

consider himself or herself free to leave. Id. Ultimately, whether a person has been

arrested depends on circumstances indicating an intent to impose an extended restraint

on the person’s liberty. Id.



                                          15
      We agree with the trial court’s finding that the interaction between defendant

and the detectives does not meet the definition of an arrest or a detention. At the

suppression hearing, defendant testified he only went along to the station because he

felt intimidated. He testified that when he was summoned from Brandy’s bedroom,

Deputy Hostnick unsnapped her holster in an overt show of force and directed him to

come along. In contrast, Deputy Hostnick denied ever unstrapping her holster in

defendant’s presence, either as a show of authority or otherwise. She stated she made

no attempt to use or display her weapon and explained such an act would have been

out of character, especially given that she was trained to never unstrap her holster

unless she intended to use her weapon. Deputy Hostnick testified further that, at no

point before defendant was arrested on the morning of January 6, 2003, did she ever

tell him he had no choice but to comply. According to Deputy Hostnick, and as

Detective Ward independently attested, if defendant had simply said, “I’m not going

with you,” when they initially approached him inside the Bruce trailer, the officers

would have left without him because they lacked probable cause to detain him at that

time. As Detective Ward recalled, defendant was cooperative and did not express any

unwillingness to go to the station. In Detective Ward’s view, it appeared defendant

came along, at least in part, because Ms. Bruce made it clear she did not want him left

unattended with her grandchildren.

      In ruling on the motion to suppress, the trial court weighed these differing

accounts and found defendant voluntarily cooperated and the circumstances did not

rise to a level constituting arrest or detention. The trial court reasonably rejected

defendant’s assertion that he went along to the station because Deputy Hostnick

unsnapped her holster threateningly, in light of Deputy Hostnick’s contrasting

testimony denying the allegation. There is no showing that the court unreasonably

credited Deputy Hostnick’s testimony. Detective Ward’s independent testimony

                                          16
corroborated Deputy Hostnick’s statements indicating that at no point was defendant

told he was required to comply with officers’ requests. Defendant was not handcuffed

or otherwise forcibly restrained. He was not placed in the back of the police vehicle

to be taken to the station. Rather, defendant voluntarily rode to the Sheriff’s office

with Captain Abraham as a front seat passenger. Based on this testimony, the trial

judge reasonably determined defendant was not removed from the trailer against his

will and was therefore not taken into custody at that time.

      The United States and Louisiana Constitutions protect against unreasonable

searches and seizures. U.S. Const. amend. IV; La. Const. art. 1, § 5. If evidence is

derived from an unreasonable search or seizure, the proper remedy is exclusion of the

evidence from trial. Mapp v. Ohio, 367 U.S. 643, 648, 81 S. Ct. 1684, 1688, 6 L.Ed.

2d 1081 (1961); State v. Tucker, 626 So. 2d 707, 710 (La.1993). A search conducted

without a warrant issued upon probable cause is per se unreasonable subject only to

a few specifically established and well-delineated exceptions. State v. Thompson,

11-0915 (La. 5/8/12), 93 So. 3d 553, 574. One of these exceptions is consent. Id. The

state has the burden of proving the consent was given freely and voluntarily. Id.

Voluntariness is a question of fact to be determined by the trial judge under the facts

and circumstances of each case. These factual determinations are to be given great

weight on appellate review. State v. Edwards, 434 So. 2d 395, 397 (La. 1983). The

state bears the burden of proving the admissibility of the evidence seized without a

warrant when the legality of a search or seizure is placed at issue by a motion to

suppress evidence. La. C.Cr. P. art. 703(D). Trial courts are vested with great

discretion when ruling on a motion to suppress. Consequently, the ruling of a trial

judge on a motion to suppress will not be disturbed absent an abuse of that discretion.

State v. Long, 03-2592 (La. 9/9/04), 884 So. 2d 1176, 1179.

      Despite the fact that defendant was not under arrest or officially detained,

                                          17
defendant was nonetheless advised of his Miranda rights at the station. We find no

error in the trial court’s finding that defendant voluntarily waived his rights. At the

suppression hearing, defendant claimed he had consumed half of a “fifth” of Jim

Beam and smoked marijuana during the preceding hours. He also stated, however, that

he did not have any trouble understanding the questions asked of him. Moreover,

Deputy Hostnick and Detective Ward both testified separately that he did not appear

intoxicated and appeared to understand everything they said. The trial court pointed

to defendant’s testimony at the suppression hearing, wherein he acknowledged that

Detective Ward read his Miranda rights to him out loud, while he followed along with

a written copy, and wherein he stated that the Miranda rights were familiar to him

from his previous arrests, and that he understood what Detective Ward was doing and

he agreed to sign the form and talk to her. Defendant further stated he understood he

had a right to be represented by an attorney. The trial court was specifically impressed

with defendant’s ability to relate specific facts about his case and about his prior

arrests, and based on his testimony and noting his prior work history, the court found

defendant was “street smart” and had at least average adaptive skills. Furthermore, in

considering the totality of the circumstances, it is relevant but not dispositive that a

subject has been using intoxicants. State v. Ludwig, 423 So. 2d 1073, 1076 (La. 1983).

Similarly, evidence of intellectual disability, without more, is insufficient to show

involuntariness. See Holmes, 5 So. 3d at 72-73.

      As to the specific circumstances in which physical evidence was collected from

defendant, Detective Ward testified defendant never asked whether he had a choice

in complying with the officers’ requests. According to Lt. McDonnell, defendant

voluntarily relinquished his boots and consented to the collection of his fingerprints,

buccal swabs, and fingernail scrapings at 1:15 a.m. and 10:00 a.m., respectively.

Although defendant maintains that he cooperated at the station only because he felt

                                          18
compelled, he conceded that he never asked whether he was free to leave, never

requested an attorney, never asked to place a call, and, up until his arrest, never

invoked his right to remain silent. According to defendant, when Sgt. McDonnell

asked to photograph his boots and collect his buccal swabs, fingerprints, and

fingernail scrapings, he responded by asking whether he had a choice, to which he

claims Sgt. McDonnell replied in the negative. In contrast, Lt. McDonnell testified

that when he asked for the boots, defendant responded by stating, “you can have them,

but it’s the only shoes I got.”12 And when defendant was informed there were boots

he could borrow, he “took his shoes off and held them out for [Sgt. McDonnell] to

receive and put in a brown paper bag.” When pressed as to whether defendant said

anything further as he gave over his boots, or at any other point during the collection

of evidence, Sgt. McDonnell testified defendant stated, in a “[v]ery relaxed” and

“cooperative” demeanor, “you can have anything you want.” Sgt. McDonnell denied

defendant ever asked whether he had a choice to refuse to provide his boots or other

physical samples. After defendant was returned to the Bruce trailer and then brought

to the station a second time, he arrived carrying a duffle bag which, according to

Detective Ward, he also voluntarily relinquished. In fact, by defendant’s own

admission, he read, understood, and voluntarily signed a written consent to the search

of his bag. Defendant testified at the suppression hearing that the detective read the

consent form to him, and further noted that the detective marked the form so that it

specifically applied to the search of the bag.

       In ruling on the motion to suppress, the trial judge found defendant voluntarily

consented to the collection of his personal effects. The court therefore found all

evidence obtained before his arrest admissible under the consent exception to the

       12
           At trial, Lt. McDonnell explained that although he previously testified defendant stated
“It’s the only shoes I got,” after reviewing his report he confirmed defendant actually used the word
own.

                                                 19
warrant requirement. The court also found that any statements made before his arrest

were admissible because they were made with full understanding of his rights, as

evidenced by his testimony and the wavier he signed upon arrival at the station.

Nothing in the record suggests the trial court unreasonably credited Sgt. McDonnell’s

testimony in concluding that defendant freely and voluntarily relinquished his boots,

buccal swabs, fingernail scrapings, fingerprints, and duffle bag. The trial court

properly examined the voluntariness of defendant’s statements, in addition to

assessing whether he consented to the searches and seizures, and acted within its

discretion in concluding defendant’s rights had not been violated. Defendant shows

no error in the trial court’s ruling.

             EVIDENTIARY RULINGS - EXCLUSION OF EVIDENCE
                        (Assignments of Error # 2-5)

Brandy Holmes’ Statements

       Prior to trial, defendant filed a Motion to Admit Evidence, seeking to admit

custodial and noncustodial statements by Brandy Holmes implicating third parties

other than Robert Coleman as the perpetrator in the crime. In his memorandum in

support of the Motion to Admit Evidence, defendant characterized the statements as

follows:13

       1)    A pre-arrest statement to acquaintances Chris Addison, Marvin Brown,
       and Johnny Wright, that she killed some old people;

       2)   A custodial statement denying personal involvement and claiming
       Wright committed the murders;

       3)    A custodial statement that she shot Mr. and Mrs. Brandon and stabbed
       Mr. Brandon while defendant and Wright were both present;

       4)   A custodial statement that she shot both Brandons, that Wright cut Mr.
       Brandon, and that defendant did not participate;

       5)    A custodial statement that she and Wright committed the crimes while
       defendant was at her mother’s trailer;

       13
            The actual statements were not proffered into evidence or otherwise detailed in the record.

                                                   20
      6)    A custodial statement that Sean was not involved, that she and Wright
      planned the attack, and defendant “tagged along” but left saying he wanted
      nothing to do with it;

      7)     A custodial statement that she did not murder anyone;

      8)    A custodial statement that someone other than defendant was present
      with her during the crimes;

      9)    A letter to her mother stating that Wright committed the crime while
      defendant was at the trailer;

      10)    A letter to her friend Shay stating that Wright should take the charge;

      11)    A letter to defendant in which she stated that defendant was innocent.

Defendant argues the trial court’s blanket ruling preventing him from presenting any

of Brandy’s custodial or non-custodial statements resulted in the denial of his right to

present a defense. Defendant argues he was entitled to employ the exculpatory

statements even if those statements did not fit neatly within an exception to the

hearsay rules. Citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038,

1049, 35 L.Ed. 2d 297 (1973), defendant asserts that his Sixth Amendment right to

present a defense trumps state evidentiary rules. Defendant argues the statements were

sufficiently trustworthy to be placed before the jury for its consideration.

      It was established that if called as a witness in this case, Brandy would assert

her Fifth Amendment privilege and refuse to testify. Thus she was unavailable and her

out of court statements were hearsay. Louisiana Code of Evidence article 804(B)

provides certain exceptions to hearsay rules when the declarant is unavailable.

Pertinent here is the exception set out in La. C.E. art. 804(B)(3):

      B. Hearsay exceptions. The following are not excluded by the hearsay
      rule if the declarant is unavailable as a witness:

      (3) Statement against interest. A statement which was at the time of its
      making so far contrary to the declarant’s pecuniary or proprietary
      interest, or so far tended to subject him to civil or criminal liability, or to
      render invalid a claim by him against another, that a reasonable man in
      his position would not have made the statement unless he believed it to
      be true. A statement tending to expose the declarant to criminal liability

                                            21
      and offered to exculpate the accused is not admissible unless
      corroborating circumstances clearly indicate the trustworthiness of the
      statement.

Accordingly, in cases in which the proffered statement against interest was uttered by

a co-defendant, against the co-defendant’s interest, the party who seeks to admit the

statement at his trial for its exculpatory value must first demonstrate its

trustworthiness.

      In Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed. 2d 476

(1994), the Supreme Court addressed the admissibility of a co-defendant’s confession

in the context of the hearsay exception provided by the parallel federal rule for

declarations against interest, Fed. R. Evid. 804(b)(3). Williamson’s co-defendant was

called by the state but refused to testify, and the prosecution was then allowed to

admit the co-defendant’s entire confession, including statements in which he

implicated Williamson. 512 U.S. at 597-98. In reversing the trial court’s ruling

admitting the statement in its entirety, the Supreme Court found that “the most faithful

reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory

statements, even if they are made within a broader narrative that is generally

self-inculpatory.” Id. at 600-01. The Court explained that “Rule 804(b)(3) is founded

on the commonsense notion that reasonable people, even reasonable people who are

not especially honest, tend not to make self-inculpatory statement unless they believe

them to be true.... The fact that a person is making a broadly self-inculpatory

confession does not make more credible the confessions’ non-self-inculpatory parts.

One of the most effective ways to lie is to mix falsehood with truth, especially truth

that seems particularly persuasive because of its self-inculpatory nature.” Id. at 599-

600. The Court stated the district court may not just assume for purposes of Rule

804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession,

and this is especially true when the statement implicates someone else. Id. at 600-01.

                                           22
      Similarly, in State v. Lucky, 96-1687 (La. 4/13/99), 755 So. 2d 845, this court

discussed admissibility of an accomplice’s statement. This court explained “the basis

for the exclusion of an accomplice’s statement even one which is against the

accomplice’s penal interest, is the longstanding perception that custodial confessions

of non-testifying, unavailable codefendants are inherently suspect and presumptively

unreliable as evidence against the defendant.” 755 So. 2d at 857. Moreover, we noted

“the hearsay exception for declarations against penal interest does not allow admission

of non-self-inculpatory statements by accomplices, even if they are made within a

broader narrative that is generally self-inculpatory.” Id. Thus, we held that only the

self-inculpatory parts of an accomplice’s confession should be admitted.

      Straightforward application of this rule to the instant case provides that only

those portions of Brandy’s statements in which she specifically inculpated herself

would have been eligible for admission under La. C.E. art. 804(B)(3). Moreover, of

those self-inculpatory portions, only those for which there existed corroborating

circumstances clearly indicating trustworthiness would satisfy the requirements of La.

C.E. art. 804(B)(3). In State v. Hammons, 597 So. 2d 990 (La. 1992), this court

explained that the burden of satisfying the corroboration requirement is on the

accused, and that the burden may be satisfied by evidence independent of the

statement which tends, either directly or circumstantially, to establish a matter asserted

by the statement. “Circumstantial evidence of the veracity of the declarant as to the

portion of the statement exonerating the accused is generally sufficient. Typical

corroborating circumstances include statements against the declarant’s interest to an

unusual or devastating degree, or the declarant’s repeating of consistent statements,

or the fact that the declarant was not likely motivated to falsify for the benefit of the

accused.” 597 So. 2d at 996-97.

      In defendant’s view, Brandy’s statements “bore the persuasive assurances of

                                           23
trustworthiness” and were deemed trustworthy even by the state, as indicated by its

use of them at Brandy’s trial. Defendant further claims that because some of Brandy’s

statements were corroborated by other evidence they were clearly trustworthy. The

trial court disagreed and denied defendant’s motion to admit the statements, having

found defendant failed to establish their reliability. The court found Brandy’s

statements “extremely inconsistent” and noted defendant had failed to show that

Brandy, who was at the time engaged in a romantic relationship with him, had not

been lying to protect defendant when she implicated someone else.

      We find no error in the trial court’s exclusion of the statements. Not only did

Brandy give several varying accounts, ranging from claiming she was innocent and

not involved at all to admitting her direct personal involvement in Mr. Brandon’s

death, she also gave inconsistent information about her co-perpetrator’s identity and

in some instances directly inculpated defendant. That the state used some of Brandy’s

statements at her separate trial does not indicate they possessed independent worth as

evidence of her co-perpetrator’s identity, which is the purpose defendant asserts they

would have served in his case. As the trial court found, Brandy conjured “a myriad of

possibilities” as to how the crimes occurred, within which she obscured to varying

degrees even her own role. Considering the inconsistent and inherently suspect nature

of Brandy’s statements, the court did not err in finding even those portions in which

she directly implicated herself inadmissible under La. C.E. art. 804(B)(3).

      We also find the exclusion of Brandy’s statements did not violate defendant’s

right to present a defense. The Sixth Amendment of the United States Constitution and

Article I, §16 of the Louisiana Constitution ensure a defendant the right to present a

defense, and, as found in Chambers v. Mississippi, supra, few rights are more

fundamental. In Chambers, the Supreme Court addressed the admission of hearsay

evidence to protect a defendant’s constitutional right to present a defense. Chambers

                                         24
was convicted of murdering a police officer. At trial, he sought to introduce the

hearsay testimony of three individuals to whom a third person, McDonald, had orally

confessed to committing the murder on three separate occasions. The trial court

excluded the hearsay statements. In reversing the conviction, the Supreme Court

found the testimony “bore persuasive assurances of trustworthiness and thus was well

within the basic rationale of the exception for declarations against interest.” The Court

noted:

         The hearsay statements involved in this case were originally made and
         subsequently offered at trial under circumstances that provided
         considerable assurance of their reliability. First, each of McDonald’s
         confessions was made spontaneously to a close acquaintance shortly
         after the murder had occurred. Second, each one was corroborated by
         some other evidence in the case - McDonald’s sworn confession, the
         testimony of an eyewitness to the shooting, the testimony that McDonald
         was seen with a gun immediately after the shooting, and proof of his
         prior ownership of a .22-caliber revolver and subsequent purchase of a
         new weapon. The sheer number of independent confessions provided
         additional corroboration for each. Third, whatever may be the parameters
         of the penal-interest rationale, each confession here was in a very real
         sense self-incriminatory and unquestionably against interest.

410 U.S. at 300-01. Additionally, the Court found the testimony was also critical to

defendant’s defense. “In these circumstances, where constitutional rights directly

affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied

mechanistically to defeat the ends of justice.” Id. at 302.

         However, the Supreme Court has subsequently made clear that the fundamental

right to present a defense does not require the trial court to admit irrelevant evidence

or evidence with such little probative value that it is substantially outweighed by other

legitimate considerations. In Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727,

164 L.Ed. 2d 503 (2006), the Court stated that “while the Constitution thus prohibits

the exclusion of defense evidence under rules that serve no legitimate purpose or that

are disproportionate to the ends that they are asserted to promote, well-established

rules of evidence permit trial judges to exclude evidence if its probative value is

                                           25
outweighed by certain other factors such as unfair prejudice, confusion of the issues,

or potential to mislead the jury.” 547 U.S. at 326.

      In State v. Gremillion, 542 So. 2d 1074, 1078 (La. 1989), this court reversed

defendant’s manslaughter conviction, finding the lower courts’ exclusion of certain

statements violated defendant’s right to present a defense. Defendant sought to

introduce a statement the victim made to the investigating officer in which the victim

was unable to identify his attacker, other to say he was attacked by three white men.

Defendant and the victim had been close friends, having known each other for

approximately eleven years. This court noted that although the statement did not fit

into any of the recognized exceptions to the hearsay rule, it should have, nevertheless,

been admitted into evidence due to its reliability and trustworthy nature. The court

found the statement was corroborated by a similar statement the victim gave to the

treating physician. Thus, while defendant and the victim were close friends, in two

separate statements the victim failed to identify the defendant as his attacker. This

court noted the statement was given to a police officer investigating the crime, and

there was no circumstance to suggest the statement was untrustworthy.

      The hearsay statements defendant sought to introduce in this case are not

comparable to the type of evidence described in Chambers or Gremillion, and clearly

lacked a sufficient degree of reliability. Defendant contends Brandy’s statements were

essential to the extent that they aligned with his theory he was never inside the

Brandon home, the perpetrators were two white people, and the shoes he wore to the

police station belonged to Brandy’s brother. Specifically, he asserts statements in

which Brandy claimed she and Wright (both of whom are Caucasian, unlike

defendant) perpetrated the attack corroborate Mrs. Brandon’s statement that she was

attacked by two white people. Defendant also asserts Brandy’s accounts were

consistent with evidence at the scene, and defendant’s own statement to police, in

                                          26
which he claimed he was wearing Sean’s boots, was corroborated by Brandy’s similar

statement to detectives.

      We do not find these statements so critical that the trial court should have

allowed them, and defendant has failed to show he was denied his fundamental right

to present a defense in their absence. The jury was privy to ample evidence of

Brandy’s guilt. Additional evidence of her guilt, in the form of her own statements or

otherwise, would have only been consistent with the state’s theory of the case and of

no value to the defense. Further, even without Brandy’s statements inculpating

Wright, the issue of Wright’s alleged involvement was presented at defendant’s trial.

Given that the jury knew Wright was initially a suspect, Brandy’s statements in which

she inculpated Wright (along with defendant in some variations) would not have

reasonably affected the jury’s assessment of defendant’s guilt. Moreover, Brandy’s

statement in which she allegedly told police defendant wore her brother’s shoes into

the station because his own were rain-soaked was not specified in defendant’s

“Motion to Admit Evidence” or his memorandum in support. Although defendant now

references it specifically, he has failed to state with particularity what Brandy said or

the circumstances in which she allegedly uttered it. Without more, it remains unclear

that the probative value of such a statement, if it was in fact made, would have

outweighed other legitimate considerations. La. C.E. art. 403.

      Moreover, had any of Brandy’s out-of-court statements been admitted, the state

would have been permitted to present those statements in which she explicitly

inculpated defendant to rebut his selective use of those in which she did not. See La.

C.E. art. 806. Thus, it is unlikely the inclusion of the selected statements would have

reasonably affected the jury’s assessment of defendant’s guilt. La. C.E. art. 103(A)

provides that an error may only be predicated upon a ruling which excludes evidence

if a substantial right of the party is affected. Here, the evidentiary rulings complained

                                           27
of did not rise to the level of an impingement of the defendant’s right to present a

defense at trial. Finally, we note that even if these statements had been erroneously

excluded, that ruling would be subject to the harmless error standard of review.

Holmes, 5 So. 3d at 76; see also State v. Van Winkle, 94-0947 (La. 6/30/95), 658 So.

2d 198, 202. We find no error in the trial court’s ruling.

Measurement of Shoe Size

      Defendant argues he was also deprived of his right to put on a defense when the

trial court prevented him from conducting a measurement of his shoe size using a

Brannock device in front of the jury. Defendant argues this measurement was

necessary to bolster his defense that the blood-spattered boots he wore to the police

station belonged to Sean George. The state’s forensic evidence established the shoes

were a size 9. Defendant sought to demonstrate his shoe size falls between a 10.5 and

11.

      The trial court sustained the state’s objection on the ground that defendant did

not have anyone with experience using the device to conduct the measurement.

Specifically, the court stated:

      I do think we need somebody to measure him. I think the state has a
      good point there. I think he can be measured. But simply for him to step
      on there, I think you need someone to actually administer that device and
      measure him, somebody who has experience in doing that, because that
      isn’t something that is just, for example, a tape measure that one would
      use in every[day] life. So I’m going to sustain the state’s objection
      because that is a very specific device that is not used in everyday
      experience, and it can be manipulated. For example, he can pull his foot
      back, push it forward, so on and so forth, and the jury may or may not be
      able to see that. It’s not the jury’s - the jury shouldn’t measure him, and
      he can’t measure himself. So we need somebody who is qualified and
      has some experience using that device to measure him.…[W]e need
      somebody who is experienced with it to do the measurement and make
      sure his [heel] is all the way back, his toes are down where they’re
      supposed to be, so on and so forth.

      . . . [T]he defendant could easily manipulate this measurement by simply
      causing his arch to, lifting his arch up, pulling his toes back, and that
      would not be easily identifiable by - or flattening his arch if he wants to

                                          28
      make his foot look larger he can simply push down on his arch and cause
      his foot to elongate. It’s - there is (sic) too many ways that that could be
      manipulated without somebody here who has some experience and
      expertise, and frankly I don’t even think just a shoe salesman, I think it
      would actually need to be somebody with some expertise in that
      device….Show that the objection of the state was sustained based on the
      fact that there is no one qualified to administer that measurement present.

Defendant asserts the court erroneously sustained the state’s objection to his foot

measurement and, contrary to the law and common experience, required that he be

measured by someone with experience using a Brannock device.

      Although Louisiana jurisprudence does not contain a bright line rule as to what

sort of physical measurements require accompanying narration by an expert,

defendant does not show the trial court abused its discretion in ruling defendant could

not display his foot measurement without the aid of someone with experience using

the measuring device. Although display of a physical feature is generally considered

demonstrative rather than testimonial, the mode and order of all evidentiary

presentations are subject to court control. La. C.E. art. 611 provides that, although “the

parties to a proceeding have the primary responsibility of presenting the evidence,”

their actions are subject to exercise of reasonable control by the court to ensure

ascertainment of the truth, avoidance of needless consumption of time, and protection

of witnesses from harassment or undue embarrassment. Defendant had no plan to call

anyone, even a lay witness, to conduct his measurement. Rather, the record reflects

defendant planned only to display his feet while standing on the device so jurors could

observe his feet were larger than the shoes he wore into the police station.

Significantly, the trial court did not rule that defendant was barred from demonstrating

his shoe size, but rather made a reasoned determination as to the appropriate means

of doing so. Given that a Brannock device cannot speak for itself, and, as the court

noted, defendant might not have accurately measured his own feet, we find the judge

did not abuse his discretion by ruling defendant needed someone with experience

                                           29
using a Brannock device to ensure the demonstration would be useful to the jury.



Brandy Holmes’ Juvenile Adjudications

      Defendant argues the trial court erroneously denied his request to introduce

Brandy Holmes’ juvenile records. Defendant sought to introduce the records in his

case in chief to rebut the state’s claims that defendant was “training” or testing Brandy

and that they were inseparable partners in crime. Defendant intended to introduce the

records to show that Brandy had a long-standing history of criminal behavior,

including other home invasions, predating her association with defendant.         La. C.E.

art. 609.1(F) provides that juvenile delinquency adjudications are generally

inadmissible for the purpose of attacking witness credibility. When the juvenile

records of a witness are at issue, courts are called upon to determine whether the

impeachment value of the juvenile adjudications is outweighed by the state’s interest

in maintaining the confidentiality of juvenile records. Cases allowing introduction of

such records have presented the issue in terms of the defendant’s constitutional right

to confront the witness. Here, however, Brandy was not a testifying witness, so these

cases are not directly applicable. See, e.g., State v. Chester, 97-2790 (La. 12/1/98),

724 So. 2d 1276; State v. Smith, 437 So. 2d 802 (La. 1983); State v. Toledano, 391 So.

2d 817 (La. 1980).

      As recognized earlier in this opinion, a defendant has a fundamental right to

present a defense. The trial court is nevertheless vested with broad discretion to

determine whether evidence is relevant or, even if relevant, has such little probative

value that it is substantially outweighed by other considerations. La. C.E. art. 403. In

sustaining the state’s objection to Brandy’s juvenile records, the trial court determined

the risk of confusion, misleading the jury, and wasting time, outweighed any probative

value the records might possess. The court credited the state’s assertions that the

                                           30
records were too old and factually unrelated to be relevant in this case and, opined

further that the records actually bolstered the state’s theory because they demonstrated

Brandy’s juvenile history was non-violent. The court also noted the records lacked

any exculpatory value for defendant. Given that the records defendant sought to

present were for non-violent offenses Brandy committed roughly a decade before the

Brandon murder, the trial court did not erroneously determine they were irrelevant

and unfit for the proffered purpose. The fact that as a juvenile Brandy was adjudicated

delinquent for non-violent crimes has no bearing on defendant’s guilt in this case. No

reversible error is shown.

Photographs seized from Brandy Holmes’ Room

      Defendant also asserts the trial court erred in refusing to allow him to introduce

18 photographs that were seized during a search of Brandy’s bedroom in her mother’s

trailer. Defendant states these photos depict a number of other African-American men

with whom Brandy was friends, and in some of the photos the males were making

lewd gestures or gang signs. Defendant sought admission of these photos to show the

jury that the “fuzzy” African-American man depicted in the Hibernia ATM

surveillance video photos could have just as easily been one of her other male friends.

      In sustaining the state’s objection to the introduction of the photos, the trial

court determined the risk of confusion, misleading the jury, and wasting time,

outweighed any probative value the photos might have possessed. Specifically, the

court found:

      The jury has a photograph of two individuals standing at an ATM, they
      have photographs of the arrest of Mr. Coleman, and Mr. Coleman is
      seated in court, and they can look at those photographs and determine if
      that appears to be him or not. To simply flood the jury with a bunch of
      pictures of African-American males, I don’t see any probative value
      quite frankly. I mean, if that were the case every time we had a
      photograph of a suspect we could simply flood the jury with a box full
      of pictures and make the argument, well, it could have been any one of
      these people whether they were white, black, Hispanic, or purple, green,

                                          31
      whatever they are. I just don’t see the probative value.

      Photographs which illustrate any fact, shed light upon any fact or issue in the

case, or are relevant to describe the person, place or thing depicted are generally

admissible. See, e.g., State v. Magee, 11-0574 (La. 9/28/12), 103 So. 3d 285, 323;

State v. Lanieux, 09-675 (La. App. 5 Cir. 3/9/10), 39 So. 3d 606, 609; State v. Lindsey,

404 So. 2d 466, 475 (La. 1981). A trial court’s ruling with respect to the admissibility

of photographs will not be overturned unless it is clear the prejudicial effect of the

evidence outweighs its probative value. Magee, 103 So. 3d at 323; Lindsey, 404 So.

2d at 475. Additionally, although the accused may introduce any legal evidence

tending to prove that another person may have committed the crime with which the

defendant is charged, such evidence may be excluded where it does not sufficiently

connect the other person to the crime, as, for example, where the evidence is

speculative or remote, or does not tend to prove or disprove a material fact in issue at

the defendant’s trial. Holmes, 547 U.S. at 327.

      We find the trial court did not abuse its discretion when it excluded the photos.

Contrary to defendant’s assertions, evidence that Brandy, or someone else who used

her bedroom, associated with African-American men other than defendant does not

indicate that any of those individuals had any connection to the Brandon murder. The

photos by no means constituted non-speculative proof of any third-party’s guilt in this

case and were wholly irrelevant.

Cumulative Prejudice

      Defendant claims that the cumulative prejudice arising from the trial court’s

evidentiary rulings constitutes reversible error. Defendant argues the trial court’s

rulings on these issues, prohibiting him from presenting evidence in support of his

defense of innocence, violated his right to confront the evidence against him and to

present a complete defense. Because we find no error in these individual rulings, we

                                          32
also find no prejudice simply from considering the issues cumulatively. Further,

although cast as a grievance about the cumulative prejudice he alleges he has suffered,

his complaint is akin to the oft-rejected “cumulative error” claim. This court has

reviewed cumulative error arguments and universally found that harmless errors,

however numerous, do not aggregate to reach the level of reversible error. See, e.g.,

State v. Strickland, 93-0001 (La. 11/1/96), 683 So. 2d 218, 239; State v. Tart, 94-0025

(La. 2/9/96), 672 So. 2d 116, 164; State v. Copeland, 530 So. 2d 526, 544-45 (La.

1988); State v. Sheppard, 350 So. 2d 615, 651 (La. 1977). Defendant offers no

compelling reason why the court should alter its position.

                   JAILHOUSE INFORMANT TESTIMONY
                        (Assignments of Error # 6 & 7)

      Defendant argues the state was erroneously allowed to introduce the testimony

of two jailhouse informants, Bobby Evans and Collies Sharpes, who were temporarily

in the same holding cell with defendant immediately following his arrest. Defendant

asserts their statements were unreliable on their face and their testimony did not meet

the heightened standards for reliability in a capital case. Defendant points out the

statements were internally inconsistent and inconsistent with evidence at the crime

scene: Evans has given differing statements as to whether defendant shot either

victim; some of Sharpes’ statements differed materially from Evans’ statements;

Sharpes’ account evolved; and portions of Evans’ statements were inconsistent with

the evidence at the crime scene. Additionally, defendant argues their testimony was

unreliable because, at the time of their cooperation, both witnesses were facing

criminal charges and both expressed a desire and hope for leniency in exchange for

information against defendant. Defendant asserts regardless of whether Evans and

Sharpes actually received favorable treatment in exchange for providing information,

their hope or expectation of leniency at the time they approached the police is


                                          33
sufficient to establish a significant bias undermining the reliability of this evidence.

      After review of the record, we do not find the trial court abused its discretion

in admitting the testimony. Defendant was given ample opportunity to attack the

witnesses’ credibility at trial, and was able to address the inconsistencies in their

testimony. The inconsistencies were also highlighted by defense counsel in closing

argument:

      You heard the testimony of Collies Sharpes and Bobby Evans. And I told
      you in opening, those two witnesses statements would be [inconsistent]
      with each other, they weren’t the same as each other, [they] weren’t the
      same as facts we know to be proven. They were, they had information
      that they could not have otherwise had, that is one thing I’ll agree with
      Mr. Cox on, and I’ll explain that in a moment. Mr. Sharpes told you that
      Robert said that Brandy killed both of them. I asked him that question,
      are you sure about it, yes. Mr. Evans reluctantly here, tells Detective
      McClure sometime after the intake that Robert said that he killed the
      woman and Brandy killed the man.

      That didn’t work, so when he testified at the grand jury he flipped it, and
      Robert killed the man and Brandy killed the woman. He also admitted
      saying that Reverend Brandon, Robert had told him Reverend Brandon
      had hit Brandy in the face with a Budweiser bottle. Well, that was false.
      He also said Robert told him they tied them up, and that was false. He
      also told him that Robert had buried a gun in the backyard, and that was
      false. So the statements are not consistent with each other, they’re not
      consistent with known facts.

We find the jury had a full opportunity to consider the inconsistencies in the

statements and was able to consider what weight, if any, to give their testimony.

      Moreover, although the possibility of state leverage over a witness arising from

pending criminal charges is highly relevant to establish bias or interest, any potential

bias arising from pending charges goes to the jury’s credibility determination, not the

admissibility of the testimony. See State v. Vale, 95-1230 (La 1/26/96), 666 So. 2d

1070, 1072; State v. Rankin, 465 So. 2d 679, 681 (La. 1985); State v. Brady, 381 So.

2d 819, 821-22 (La. 1980). The jury was made aware that Sharpes and Evans faced

unrelated charges when defendant made the disclosures to them. Defense counsel

emphasized that circumstance in his closing argument and theorized for the jury that

                                          34
the witnesses actually obtained the details they claimed defendant divulged by other

means:

      We know that Bobby Evans, in April, shortly after giving those
      statements was facing [five] to 20 years, and received a sentence of three
      years concurrent with his two-year sentence on yet another felony, okay.
      But the most convincing evidence that you will have that you know
      Collies Sharpes and Bobby Evans were telling you a story was the
      statement about Brandy flushing the jewelry. When I asked each and
      every detective, officer, anyone that was at the police station that night,
      I said, did you let them, did you let Sean and Brandy talk, get their
      stories together? No, we keep them separate, that’s proper procedure,
      there is no way we would let them be together, they’re kept separate. I
      said, well, what about Robert and Brandy, none, separated. What about
      Brenda Bruce and Sean George and Robert, no, they’re separated.

      Now, here is the point. They kept them separated, which is exactly what
      they do, they don’t want people talking to each other, there is no way
      Robert knew Brandy flushed that jewelry. Because they were separated,
      they weren’t allowed to talk, they weren’t allowed to get their stories
      straight, there was no way that Robert knew Brandy flushed that jewelry.
      So he’s taken directly to Caddo Correction, he’s put in with Collies
      Sharpes, Bobby Evans, then all of a sudden detectives come and speak,
      and Collies Sharpes and Bobby Evans somehow have information that
      Robert Coleman himself could not possibly have possessed. To me that
      is the most convincing evidence that Collies Sharpes and Bobby Evans
      are telling you a story.

The jury also heard testimony from the attorney who represented them relative to

those criminal charges that neither Sharpes nor Evans received any leniency in return

for their cooperation in defendant’s case. For these reasons, we find no error in the

admission of this testimony.

      Defendant additionally argues he was denied due process because the state

failed to disclose inconsistencies in Sharpes and Evans testimony, as well as evidence

indicating that Evans was coerced into testifying. Specifically, defendant complains

the state waited until five days before trial to disclose that Evans’ grand jury testimony

was inconsistent with his initial statement as to whether it was defendant or Brandy

who shot each victim, and it was clear from Evans’ trial testimony that the state forced

him to take the stand against his will.


                                           35
      The suppression of evidence favorable to the accused violates due process

where the evidence is material either to guilt or punishment, without regard to the

good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 88, 83 S.Ct.

1194, 1197, 10 L.Ed. 2d 215 (1963). Favorable evidence includes both exculpatory

evidence and impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105

S.Ct. 3375, 3380, 87 L.Ed. 2d 481 (1985); State v. Knapper, 579 So. 2d 956, 959 (La.

1991). Moreover, late disclosure of favorable evidence may require reversal if the

timing significantly impacted the defendant’s opportunity to effectively present the

material. State v. Kemp, 00-2228, (La. 10/15/02), 828 So. 2d 540, 545-46. Still, Brady

and the decisions that follow do not establish a general rule of discoverability and the

state’s failure to disclose or late disclosure does not automatically mandate a reversal.

Rather, the defendant must first show he suffered prejudice as a result. La. C.Cr. P. art.

921; see also United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct 2392, 2400, 49 L.Ed.

2d 342 (1976); State v. Willie, 410 So. 2d 1019, 1030 (La. 1982).

      Here, defendant complains the state’s late and limited disclosures prevented him

from effectively presenting evidence which would have undermined Evans’

credibility. Specifically, defendant complains the state waited too long to disclose that

Evans’ testimony before the grand jury was inconsistent and that he was forced to

testify at the second trial. As set out above, however, the jury was well aware that

Evans gave a differing account as to defendant’s claims concerning who shot each

victim and knew that Evans was less than enthusiastic about testifying at the re-trial.

In fact, defense counsel exploited the inconsistencies among Evans’ prior statements

for the jury. Moreover, Evans clarified why he was reluctant to testify at the re-trial:

he had time left to serve and was fearful he might cross paths with defendant again

behind bars. Defendant fails to show he was prejudiced by the late disclosure or that

the state suppressed anything capable of undermining the verdict. As a result of

                                           36
Evans’ testimony, the jury was aware the state took measures to ensure his testimony

at the second trial, and defendant possessed an adequate opportunity to cross-examine

Evans as to the veracity of his testimony. Thus, we find no error in trial court’s ruling.

      ADMISSION OF OTHER CRIMES EVIDENCE - GUILT PHASE
                    (Assignment of Error # 13)

      After a pretrial Prieur14 hearing, the trial court ruled the state would be allowed

to introduce testimony from Terrance Barnes. Barnes testified that on the night prior

to the Brandon murder, he met defendant at Brandy’s New Year’s Eve party and he

observed defendant holding a revolver and later in the evening defendant asked

Barnes if he knew where he could “hit a lick,” meaning commit a robbery. Defendant

argues this evidence was not relevant for a legitimate purpose, and any probative

value was outweighed by its prejudicial effect. Defendant argues the testimony should

have been excluded because the gun observed by Barnes was not linked in any way

to the Brandon murder, as proven by ballistics evidence. Further, defendant argues

Barnes’ testimony that he understood the phrase “hit a lick” to mean defendant wanted

to know where he could commit a robbery should not have been admitted because

defendant submitted evidence that the phrase has many common meanings, and has

different meanings in different states. Thus, Barnes’ belief as to the meaning of the

phrase was purely speculative. Defendant further argues because the gun shed no light

on the crime, it only served to prejudice the jury against him for a completely

unrelated bad act and should have been excluded under La. C.E. art. 403.

      La. C.E. art. 404(B)(1) generally prohibits courts from admitting evidence of

other crimes or bad acts to prove a defendant’s bad character. However, such evidence

is admissible if the state establishes an independent relevant reason, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake


      14
           State v. Prieur, 277 So. 2d 126, 130 (La. 1973).

                                                 37
or accident. La. C.E. art. 404(B)(1). At the Prieur hearing, investigator Don Ashley,

who had thirty-seven years of law enforcement experience, testified regarding Barnes’

encounter with defendant. Mr. Ashley testified he understood the phrase “hit a lick”

to mean that defendant wanted to commit a robbery. Mr. Ashley inquired about the

meaning of the phrase in defendant’s native Tylertown, Mississippi, and learned that

the meaning there was the same: “The vernacular in the street is that the first thing

when somebody is talking about doing a lick it’s some type of robbery….[T]he

common impression when you say a lick is that you’re going to do a robbery.” After

the hearing, the trial court found:

      The testimony is that a witness stated that on the day before the murder
      . . . the defendant was asking him where he could hit a lick, and that he
      also observed him with a small firearm, a handgun. The following day
      the victims or Mr. Brandon was murdered, and the prosecution wishes
      to introduce evidence of the conversation taking place the day before.
      The Court has had many occasions, many cases where the term hit a lick
      was used. In the Court’s experience it has always been relating to
      committing a robbery. The Court finds that this certainly fits within the
      intent of Article 404(B). It does tend to show evidence such as proof of
      motive, opportunity, intent, preparation, plan, knowledge, and absence
      of mistake or accident. Certainly all fit within the parameters of 404(B).
      For those reasons the Court will allow the evidence to be introduced.

      The trial court has broad discretion in weighing the probative versus prejudicial

value of evidence under La. C.E. art. 403, and its ruling on the admissibility of

evidence pursuant to La. C.E. art. 404B(1) will not be disturbed absent an abuse of

discretion. See State v. Bordenave, 95-2328 (La. 4/26/96), 678 So. 2d 19, 21; State v.

Carter, 15-99 (La. App. 5 Cir. 7/29/15), 171 So. 3d 1265, 1280; State v. Waterhouse,

14-1048 (La. App. 4 Cir. 6/19/15), 171 So. 3d 1113, 1115. Evidence that defendant

possessed a gun, whether it was actually the murder weapon or not, and evidence that

defendant asked Barnes where he could “hit a lick,” a phrase understood to be an

expression of desire to commit a robbery or theft, was independently relevant to and

probative of defendant’s motive, opportunity, intent, and preparation in connection


                                          38
with his invasion of the Brandon home the very next day. Thus, we find no abuse in

the trial court’s discretion in admitting the evidence.

                          LIMITATION OF VOIR DIRE
                            (Assignment of Error # 15)

      Defendant argues he was denied his right to a full and fair voir dire when the

trial court improperly limited the scope of voir dire by disallowing defense counsel

to inquire into a prospective juror’s attitudes about penalty phase aggravators,

specifically a defendant’s involvement in a second homicide. Defendant argues he

must be able to determine a prospective juror’s opinion on the specific aggravating

factors in this case without discussing specific facts in order to determine if a juror is

eligible to serve.

      As a general matter, an accused in a criminal case is constitutionally entitled to

a full and complete voir dire examination. La. Const. art. I, § 17. However, the scope

of counsel’s examination rests within the sound discretion of the trial judge and voir

dire rulings will not be disturbed on appeal absent a clear abuse of that discretion. La.

C.Cr. P. art. 786; State v. Tilley, 99-0569 (La. 7/6/00), 767 So. 2d 6, 19. Further, the

right to a full voir dire does not afford the defendant unlimited inquiry into possible

prejudices of prospective jurors, including their opinions on evidence, or its weight,

hypothetical questions, or questions of law that call for any prejudgment of supposed

facts in the case. State v. Ball, 00-2277 (La. 1/25/02), 824 So. 2d 1089, 1110. A party

interviewing a prospective juror may not ask a question or pose a hypothetical which

would demand a commitment or prejudgment from the juror or which would pry into

the juror’s opinions about issues to be resolved in the case. Ball, 824 So. 2d at 1110;

Tilley, 767 So. 2d at 19. “It is not proper for counsel to interrogate prospective jurors

concerning their reaction to evidence which might be received at trial.” Ball, 824 So.

2d at 1110.


                                           39
       In the present case, defense counsel questioned prospective jurors, in particular

Mr. Robert Horne, about whether he believed the only appropriate penalty would be

a death sentence in a case in which the jury unanimously found the defendant guilty

of first degree murder under the sort of circumstances present in this case:

       [Q:] …I would like to start with Mr. Horne. Assuming that you have a
       situation where you and 11 other jurors have found beyond a reasonable
       doubt that the defendant has committed an intentional murder, again it’s
       not committed in the heat of passion, the person was not legally insane,
       it was not self-defense or defense of others, he wasn’t so intoxicated that
       he couldn’t formulate a specific intent and in addition to that there were
       one of the other factors such as the victim was over the age of 65 or
       under the age of 12 or it was committed in the course of an armed
       robbery or an aggravated burglary, for you, Mr. Horne, for you at that
       point is death the only appropriate penalty?

The state objected that the question was “limiting the jurors to a specific and arbitrary

point,” and precluding the prospective juror from considering any mitigating

circumstances, which he would have been required to consider. The defense

responded that it was a “very clean Morgan v. Illinois question” which simply put the

juror in a position where he has found someone guilty of first degree murder and

queried whether he would still be open to imposing a life sentence.15 The court

overruled the state’s objection and permitted defense counsel to proceed.

Subsequently, prospective juror Horne made clear that he would have to hear the

whole case and everything from each side before determining whether to give a

sentence of life or death.

       As defense counsel pursued substantially the same line of inquiry with

prospective juror Mr. Claude Clary, Jr., the state objected when counsel divulged

further that she anticipated the state would attempt to show that defendant acted as a

principal in another homicide:
       15
          In Morgan v. Illinois, 504 U.S. 719, 726, 112 S.Ct. 2222, 119 L.Ed. 2d 492 (1992), the
Supreme Court held that venire members who would automatically vote for the death penalty must
be excluded for cause, reasoning that any prospective juror automatically voting for death would fail
to consider the evidence of the aggravating and mitigating circumstances, thus violating the
impartiality requirement of the Due Process Clause.

                                                 40
Defense counsel: Can you give me some examples of things that you
would want to hear in deciding between life and death?

Mr. Clary: Does this person have a history of criminal, has he killed
before, was he a drug dealer, whatever.

Defense counsel: And let’s assume that you found out that the person
did have a history of criminal behavior. Is that a fact that would prevent
you from considering both life and death at that point?

Mr. Clary: It still wouldn’t have prevented it, but I mean it would have
to be what’s the nature of it.

Defense counsel: I mean I’m not going to try to hide the ball on you.
The state has alleged, and we certainly do not agree, but the state has
alleged, and you will hear evidence if you were to get to a penalty phase
in trial - the state has alleged that Mr. Coleman was a principal in another
murder. Given those facts would you still be open -

Prosecutor: You Honor, I would like to lodge an objection, please.

The court: Okay, Mr. Bailiff. Ladies and gentlemen, we are going to
have you retire to the jury room. . . .

Prosecutor: Your Honor, [defense counsel] made the reference that the
state has alleged that Mr. Coleman has participated in another murder
which is entirely fact specific and an impermissible reference to the
murder of Terrance Blaze and what I believe the idea is to taint the entire
panel by getting extremely inflammatory talking about another murder.
Her example touches on what the state’s allegations are and is going to
be putting facts at play trying to disqualify two white males. I would
point out that the defense both times when they [began] the questioning
have started with trying to target white males. I just want to make the
part of the record because that’s obviously where they have been. We
saw how she badgered the first man, and this time my specific objection
is she is getting into a very fact-specific inquiry about Terrance Blaze
which should not be part of the voir dire process.

The court:   Response?

Defense counsel: Your Honor, the case law is very clear, both federal
and state, that in order to serve as a juror in a first-degree murder case
that a person has to be open to both life and death in this case. I think
State v. Allen Robertson talks about that, State v. Maxie, State v.
Divers.…

The court: Well, you know, I reviewed that case last night after you
had brought it up last night. Can you show me where State v. Divers says
that?

Defense counsel: I may be - I know that Divers was along the same

                                    41
      lines as Robertson. If I’m wrong about that, I apologize, but I know
      certainly Robertson says it very specifically, and I can show you the
      language specifically from Robertson…. It says that a prospective juror
      can conceive of certain situations where he might vote for life
      imprisonment rather than death is inconsequential where that same juror
      has clearly stated he could only vote for the death penalty in the case
      before him. The fact scenario in Robertson was that it was a killing of
      more than one person and there were jurors who said that they could
      consider - I apologize, but I don’t want to be mixing up cases. A juror
      said, “Well, you know if it’s a double murder, then I could only vote for
      the death penalty,” and that juror was allowed to or the defense cause
      challenge was denied. The defense had to use a peremptory, I believe.
      . . . [And the Louisiana Supreme Court] found that that use of the
      peremptory was reversible error because the challenge, the defendant’s
      challenge for cause should have been granted because even though there
      were cases where the juror could consider life he could not consider life
      in the case before him…. In this case the state has made certain
      allegations such as a victim over 65 in the perpetration of an aggravated
      burglary or an armed robbery, and one of the other allegations that the
      state has made is that Mr. Coleman has committed a separate murder…
      and so if a juror could consider life in other circumstances but not in this
      case he is not qualified to serve.

      The court: So your argument is you should be allowed to ask questions
      concerning specific facts in this case?

      Defense counsel: That’s correct, your Honor. I think that’s Louisiana
      Supreme Court law….

      The court: …[Y]ou are questioning these prospective jurors concerning
      specific facts in this case. Do you have a case that gives you the authority
      to do that?

After recessing to consider the parties’ positions, the trial court sustained the state’s

objection, finding some measure of fact-sensitive questioning permissible as long as

the questions did not pertain directly to specific evidence to be adduced during the

proceedings:

      Before this trial began I instructed all counsel to read and be familiar
      with State v. Ball, 824 So. 2d 1098, Louisiana Supreme Court 2002
      opinion and also State v. Hall, 616 So. 2d 664, Louisiana Supreme Court
      1993. If all counsel have not read that opinion for this particular trial, I
      will instruct you to do so once again.

                                      ***
      Now, I will agree with [the defense] that you may ask questions
      concerning, for example, could you consider imposing a life sentence if
      the facts show that the homicide was committed during a burglary?

                                           42
      That’s a permissible question. Could you consider imposing a life
      sentence if the facts showed that the defendant attempted to kill more
      than one [person]? That’s a permissible question. But you went beyond
      that when you went on to say that the state is going to introduce at the
      penalty phase evidence to show that a second murder was committed.
      That’s far beyond the scope of saying, “Could you consider a life
      [sentence] under the field facts in this case?” You may do that, but to go
      beyond that and say that the state is going to introduce evidence
      concerning a second homicide that might have occurred is going far
      afield particularly…when Mr. Horne made it completely clear
      throughout his entire voir dire that he is going to accept either - that he
      could impose either a death penalty or a life [sentence]. He rated himself
      as a [three] which is dead in the middle. He said he would have to hear
      all the facts before he decides the penalty…He is open to both penalties,
      can go either way.

      [T]he defense and the state will be able to ask questions concerning the
      general allegations in this case. For example, could you consider a life
      [sentence] or a death penalty for someone convicted of murder involving
      a burglary? Could you consider imposing a life [sentence] or a death
      penalty for someone convicted of a murder involving more than one?
      Those are permissible questions. To go beyond that, particularly when
      jurors, potential jurors, have consistently shown that they are open to any
      and all sentences and to go beyond that any ask questions or pose
      questions of a prospective juror on specific facts is clearly impermissible
      under Louisiana law and federal law.

Later in voir dire, the court elaborated on its ruling by explaining that, once a

prospective juror’s neutrality as to application of the death penalty has been

established, the defense is not permitted to attempt to elicit his opinion or expected

reaction as to specific facts of this case:

      My ruling on the specific objection is when you went beyond and went
      into the penalty phase concerning other evidence that may or may not
      come out, and trying to get a juror who has clearly demonstrated a very
      neutral position to precommit on their position . . . in violation of State
      v. Ball. Alright. So I don’t know how I can make it any clearer.

      We find no error in the trial court’s ruling. This court has never found the right

to a full voir dire entitles the defense to carry out a fishing expedition, using specific

evidence it anticipates will be adduced at trial to detect latent biases it suspects

individual venire members may be harboring. To the contrary, the jurisprudence

clearly provides that counsel may not divulge specific facts of the case and then ask


                                              43
jurors to commit themselves to a verdict based thereon. Ball, 824 So. 2d at 1110. As

the trial court found in this case, the defense was not precluded from eliciting venire

members’ views as to whether and when the death penalty is appropriate. The court’s

ruling in this case correctly allowed for voir dire questions aimed at revealing honest

opinions as to what sort of circumstances, whether aggravating or mitigating, would

sway individuals in one direction or the other. The trial court’s determinations were

also in line with well-established jurisprudence which provides that a prospective

juror who, having been equipped by whatever avenue with enough information about

the particular case, indicates that he will be unable to return a sentence of death, is

unqualified to sit as a capital juror, although he may have expressed an abstract or

theoretical ability to consider both death and life. See State v. Williams, 708 So. 2d

703 (La. 1998); State v. Comeaux, 514 So. 2d 84 (La. 1987).

                           SPECIFIC JUROR ISSUES
                        (Assignments of Error #14, 16 - 22)

Janet Davis (Assignment of Error #14)

      On the first day of the guilt phase of the trial, before the selected jurors were

sworn in and prior to opening statements, juror Janet Davis advised the courtroom

bailiff that someone had told her something about the case. Ms. Davis was brought in

the courtroom for individual questioning by the court:

      The court: Ms. Davis, the bailiff indicated to me that you told him that
      somebody had said something concerning the case to you, and you
      wanted to bring that to the Court’s attention.

      Ms. Davis: Yes. I just wanted you to know that someone inadvertently
      told me this morning that this was a retrial.

      The court:    Okay.

      Ms. Davis: And I had that information, so I wanted you to know that.

      The court:    All right. How did the information come to you?

      Ms. Davis: On the, well, they just came downstairs and told me.

                                          44
      The court:    And is that, was there any discussion that took place about
      that?

      Ms. Davis: No, no, because I stopped and I said, you are not supposed
      to tell me anything. I said, I’m not supposed to know one thing.

      The court:    Okay. And did that influence you in any form or fashion?

      Ms. Davis: No, it did not.

      The court: Can you set aside any information that you might have
      heard about this case and base your opinion solely on the evidence that
      you hear in the courtroom?

      Ms. Davis: Yes, sir.

      The court: Do you understand that the defendant is presumed innocent,
      and that is a serious presumption, and that the State carries the burden of
      proving beyond a reasonable doubt the charges that they allege? Do you
      understand that?

      Ms. Davis: Yes, sir.

      The court:    And can you apply that presumption?

      Ms. Davis: Yes, sir.

      The court:    Regardless of anything that you might have heard?

      Ms. Davis: Yes, sir.

      The court:    What was the fullest extent of what you heard?

      Ms. Davis: Verbatim?

      The court:    Yes.

      Ms. Davis: He came downstairs, and he said the case is State versus
      Robert Coleman, and he said, and this is a retrial. And that’s when, I
      mean, the whole thing shocked me because it was 6:00 in the morning
      making coffee, and as soon as that was said I said, don’t say anything. I
      said, you’re not supposed to say anything to me. So that was the entire
      conversation.

      The court:    Okay. All right….

The court gave the state and defense the opportunity to question Ms. Davis, but both

sides declined. The defense then challenged Ms. Davis for cause, asserting defendant

had “an absolute right to have jurors that are not aware that it is a retrial or draw any

                                           45
inferences from that.” The defense further expressed concern that Ms. Davis could

unintentionally share this information with the other jurors. The court then returned

Ms. Davis to the courtroom and further advised her:

      The court: …Ms. Davis let me emphasize to you, it is extremely
      important that you not discuss at all with any of the other jurors what you
      have informed the court of.

      Ms. Davis: I haven’t.

      The court:    Have you said anything to them at all?

      Ms. Davis: Not a word, not a word.

      The court: Well, keep it that way, okay. Do not discuss anything that
      you’ve heard. And once again, can you put aside anything that you were
      told by anyone or anything that you’ve heard, can you set that aside and
      be fair and impartial in this case?

      Ms. Davis: Yes, I can.

      The court: Can you base the totality of your opinion, can you base your
      opinion on the evidence that you are going to hear in this case?

      Ms. Davis: Yes, sir.

      The court: Can you apply the presumption at this time that the
      defendant is presumed innocent and hold the state to [its] burden of proof
      beyond a reasonable doubt?

      Ms. Davis: Yes, sir.

      The court: All right. Thank you very much. Do not discuss anything
      that you’ve told us with any of the other jurors at any time. Thank you,
      ma’am.

      The trial court denied the challenge for cause, noting it was convinced Ms

Davis could remain fair and impartial. The court stated Ms. Davis had been very

forthcoming throughout the totality of the voir dire and appeared sincere in her

impartiality. The court then returned the entire jury to the courtroom to ensure no one

else had learned information about the case:

      The court: I want to ask each of you if since the last time we talked to
      you if any of you have heard anything about this case from any source
      at all…. If any of you have heard anything about the case since we talked

                                          46
      to you last please raise your hand. All right. And no one is raising their
      hand.

The jury was sworn in and trial commenced. The trial court further supplemented its

ruling on Ms. Davis, finding her credibility exceptional because she immediately

disclosed the information to the bailiff and requested that it be disclosed to the court.

Further, the court observed Ms. Davis to be truthful and forthcoming throughout the

entirety of her vior dire.

       La. C.Cr. P. art. 797 sets forth the grounds for which a juror may be challenged

for cause. Two of these grounds are pertinent here, namely, that “[t]he juror is not

impartial, whatever the cause of his partiality” and “[t]he juror will not accept the law

as given to him by the court.” La. C.Cr. P. art. 797(2) and (4). “[A] challenge for cause

should be granted, even when a prospective juror declares his ability to remain

impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice

or inability to render judgment according to law may be reasonably implied.” State v.

Hallal, 557 So. 2d 1388, 1389-90 (La. 1990). Reversible error is demonstrated and

prejudice is presumed in cases in which a defense challenge for cause was erroneously

denied and the defendant ultimately exhausted his peremptory challenges. State v.

Jones, 03-3542 (La. 10/19/04), 884 So. 2d 582, 588; State v. Ross, 623 So. 2d 643,

644 (La. 1993). Here, defendant exhausted his peremptory challenges; thus, he need

only show that the trial court abused its discretion when it denied any one of his

challenges for cause.

      In ruling on a challenge for cause, the trial court is vested with broad discretion

and its ruling will be reversed only when the voir dire record as a whole reveals an

abuse of discretion. State v. Odenbaugh, 10-0268 (La. 12/6/11), 82 So. 3d 215, 237;

State v. Robertson, 630 So. 2d 1278, 1281 (La. 1994). After individually interviewing

Ms. Davis twice, the trial judge denied defendant’s challenge for cause because he


                                           47
was thoroughly convinced she could remain fair and impartial and set aside her

knowledge that the proceeding was a retrial. The court noted further Ms. Davis had

been very forthcoming and appeared sincere in her impartiality. Given that Ms. Davis

stated her ability to remain impartial and to accept and apply the law given by the

court, the record does not support defendant’s claim that she should have been

excused. There is nothing in the record which indicates Ms. Davis had knowledge of

the outcome of the prior trial or the reason for a retrial. Nothing about the fact that this

trial was a retrial is inherently prejudicial without further knowledge. The fact that Ms.

Davis became aware that this was a retrial was, in and of itself, neutral information.

Nothing in the record indicates Ms. Davis was incapable of serving impartially in this

case or that there existed any legitimate basis for her exclusion. Thus, we find no

reversible error in the trial court’s denial of defendant’s challenge for cause.

Denial of Cause Challenges

       Defendant argues six challenges for cause were improperly denied by the trial

court. Defendant asserts three jurors - Glenda May, Anita Rainer, and Lena Kelly -

testified they would automatically impose the death penalty for first degree murder.

Defendant also asserts three jurors - Cynthia Bates, Anita Rainer, and Jennifer

McMullen - indicated they could not accept mental retardation and/or mitigating

circumstances.

       A prospective juror may be challenged for cause if he is not impartial,

“whatever the cause of his partiality,” or if he will not accept the law as given by the

court. La. C.Cr. P. art. 797(2) and (4). As this court explained in State v. Ball:

       [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. The proper
       standard for determining when a prospective juror may be excluded for
       cause because of his views on capital punishment is whether the juror’s
       views would “prevent or substantially impair the performance of his

                                            48
      duties as a juror in accordance with his instructions and his oath.”
      Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 776
      (1968). In a “reverse-Witherspoon “ context, the basis of the exclusion
      is that a prospective juror will not consider a life sentence and ... will
      automatically vote for the death penalty under the factual circumstances
      of the case before him ... Jurors who cannot consider both a life sentence
      and a death sentence are “not impartial,” and cannot “accept the law as
      given ... by the court.” In other words, if a prospective juror’s views on
      the death penalty are such that they would “prevent or substantially
      impair the performance of their duties in accordance with their
      instructions or their oaths,” whether those views are for or against the
      death penalty, he or she should be excused for cause. The failure to
      disqualify a venireman unable to consider both life and death as penalties
      constitutes reversible error.

824 So. 2d at 1102-03. (Internal citations removed). Yet the trial court’s refusal to

disqualify a prospective juror does not constitute reversible error or an abuse of

discretion if, after further examination or rehabilitation, the juror demonstrates

willingness and ability to decide the case fairly according to the law and evidence.

State v. Howard, 98-0064 (La. 4/23/99), 751 So. 2d 783, 795; Robertson, 630 So. 2d

at 1281. Thus, a prospective juror who simply indicates a personal preference for the

death penalty need not be stricken for cause. State v. Tate, 01-1658 (La. 5/20/03), 851

So. 2d 921, 936; Lucky, 755 So. 2d at 850.

      Additionally, a juror must consider any mitigating circumstances (statutory or

otherwise) before determining whether or not the death sentence should be imposed.

La. C.Cr. P. art. 905.3. While a juror has the discretion to assign whatever weight the

juror deems appropriate to any mitigating circumstance established by the evidence,

the juror must be willing to consider mitigating evidence relevant to the character and

propensities of the defendant and must be willing to fairly consider a life sentence.

State v. Miller, 99-0192 (La. 9/6/00), 776 So. 2d 396, 402-03.

Glenda May (Assignment of Error #17)

      Defendant asserts the trial court erroneously denied his challenge for cause as

to Glenda May. Defendant argues Ms. May’s responses to voir dire questioning reveal


                                          49
an inability to give meaningful consideration to a life sentence. Ms. May’s statement

that she would want to hear everything before making a decision was clearly a result

of her desire to give an appearance of understanding the process after repeated

objections by the state during defense counsel’s questions on the death penalty.

      A review of the voir dire transcript demonstrates that when first asked her view

of the death penalty, Ms. May responded she was “absolutely” in favor of it. However,

the whole of her responses indicates she would not automatically impose a death

sentence, but would need to hear all the penalty phase evidence, including mitigating

circumstances, before deciding which sentence was appropriate. Ms. May replied in

the affirmative when asked whether she would be open to “every possible mitigating

circumstance that could be presented” before reaching a decision, and likewise

expressed willingness to first determine whether defendant was intellectually disabled

and therefore exempt from capital punishment. When examined by the defense, Ms.

May clarified that her sentencing decision would depend strictly on the evidence

presented. When defense counsel posed a factual scenario in which a defendant was

found guilty of first degree murder and the state had established aggravating factors,

without mention of any mitigating circumstances, Ms. May opined death would be the

appropriate penalty. However, after the court clarified for the entire panel that jurors

are required to consider all mitigating circumstances in the penalty phase, it became

apparent that her response to the defense hypothetical could not fairly be viewed as

a retreat from her earlier testimony in which she stated she would consider all the

evidence and remain open to mitigating circumstances.

      Throughout voir dire, defense counsel’s questions to members of the venire

who initially identified themselves as more supportive of the death penalty gave rise

to objections from the state and repeated interjections from the court as to the

requirement for consideration of mitigating circumstances. The trial court also

                                          50
expressed frustration over defense counsel’s questioning:

      All right. Well, there has been a pattern of defense counsel asking the
      question, and, frankly, it’s a very long compounded question, and then
      you ask, “Is that your answer?” without actually allowing them to
      answer. I mean their answer is basically a yes or a no. And so that’s the
      problem that I have with the way that you are phrasing the question. You
      are giving them a very long compounded question and asking them, “Is
      that your answer?” So I don’t think that the record is going to reflect
      based on your questions the potential juror’s true feelings and opinions
      about the death penalty.

      I can continue to give them the instruction to include or to consider all
      mitigating circumstances. We can do it the long way or you can include
      that and allow them to expand on their answers, but you are really not
      giving them much opportunity to give their response. You are supplying
      the answer for them on many of these questions. And I’m going to look
      at the totality of their responses as is the Supreme Court should they
      have an opportunity to review this record, and it’s the totality of their
      responses that are important.

      A trick question leading a person who has never been in this situation
      before into saying, “Uh-huh, that’s my response” is not really helpful to
      the process….

That Ms. May was open to the possibility of a life sentence was apparent from her

response to defense counsel’s effort to clarify her earlier inquiry, in which Ms. May

stated: “For me I believe in the death penalty, but what I said was I want to hear

everything, and then I would make my decision.” When further pressed, she reiterated

her open-minded stance.

      The whole of her voir dire responses indicates that Ms. May was willing and

capable of remaining impartial and correctly applying the law supplied by the judge.

Accordingly, the trial court did not erroneously deny defendant’s challenge for cause.

Anita Rainer (Assignment of Error #18)

      Defendant argues Anita Rainer’s voir dire answers also reveal she was

substantially impaired from considering a life sentence for a defendant who is found

guilty of first-degree murder.

      Ms. Rainer stated she believed the death penalty was appropriate only in certain


                                         51
cases and rated herself a “3,” meaning she was open to both sentences, would listen

to all evidence, and would make her decision based thereon. When questioned by the

defense about whether she would automatically vote for a death sentence in a case in

which the victim was over age 65 and killed intentionally during a burglary, Ms.

Rainer responded “[f]or that type of crime and everything was laid out, I mean he

studied it, the intent, death penalty would be it. I mean if everything was out there on

board and I could see it straight, I would lean toward the death penalty.” She then

stated that, rather than “lean” toward the death penalty, she would actually go for it

if convinced that the perpetrator had “studied,” i.e., planned the killing. In later

questioning, however, Ms. Rainer stated, if chosen, she would honestly consider any

mitigating circumstances before reaching her sentencing verdict:

      …I would just have to see how - you know, everything was laid out, but
      I could go with life, you know, sentence life, but I would just have to
      really just kind of, you know, go with - see what’s laid out there, you
      know, all the evidence and everything. I would just have to see, but I
      could, you know - I’m just trying to think here. I would see first and then
      if I thought instead of the death penalty I could go the life sentence I
      could.

It became evident during the court’s individualized questioning of Ms. Rainer that her

earlier answers indicating she would automatically choose death were the result of her

misunderstanding of the relevant law:

      The court: Would you automatically vote for a death penalty under the
      circumstances I have described?

      Ms. Rainer: I don’t know that I would do an automatic death, no, but it
      would be - I mean, like I said, if it’s already - if the person is found
      guilty of first-degree murder and it says by law that he is death penalty,
      yes, I could do that. That is the law.

The court promptly clarified that the law never requires the imposition of the death

penalty and Ms. Rainer subsequently reiterated her ability to honestly consider both

sentences before making a decision. The trial court denied the challenge for cause,

noting that Ms. Rainer rated herself as a “3,” meaning she was open to both sentences,

                                          52
and the totality of her responses indicated she was equally open to either sentence. The

court stated “in response to some of the defense questions she indicated that she would

be predisposed to death penalty at best, but again predisposition does not disqualify

a juror.” The court further stated Ms. Rainer’s responses as a whole indicated she is

a very neutral prospective juror, and her responses indicated she would seriously

consider each option of life in prison or a death penalty, and her responses show

consistently that she would have to see and hear everything and that she would

consider all the evidence that was presented.

      After a review of the transcript, based on the totality of her voir dire responses,

we find no error in the trial court’s denial of defendant’s challenge for cause.

Lena Key (Assignment of Error #19)

      Defendant argues his cause challenge as to Ms. Key should have been granted.

Defendant asserts although Ms. Key initially characterized herself as undecided about

the death penalty, during the course of voir dire she demonstrated an inability to

meaningfully consider a life sentence for an intentional murder.

      Ms. Key initially described herself as undecided on whether she supports the

death penalty and rated herself as a “2.” When questioned whether, once the state had

proven the elements of first degree murder beyond a reasonable doubt she would

“absolutely” impose the death penalty, Ms. Key stated she would instead listen to all

the penalty phase evidence and consider both options before deciding. Ms. Key

testified further she thought the death penalty was appropriate for first degree murder

but confirmed she would, based on the facts presented, determine whether it was

appropriate under the circumstances. When questioned by defense counsel whether,

in a scenario where she had been selected as a juror and found the defendant guilty of

first degree murder of a victim over age 65 and committed during a burglary, Ms. Key

stated she would consider a sentence of life or death and would not automatically vote

                                          53
for death. But when pushed further, Ms. Key gave a somewhat confusing and entirely

inconsistent answer indicating she believed death was the only appropriate penalty in

those circumstances. When later examined individually by the court, however, she

stated unequivocally that, if chosen, she would honestly consider any mitigating

circumstances before deciding which sentence was appropriate.

      The court: …So my question to you, Ms. Key, is if you got to the
      sentencing portion, before you decided what the appropriate sentence
      should be, whether it is the death sentence or whether it is a life sentence,
      your individual thought, before you decided that for yourself would you
      consider all the mitigating circumstances that were offered to you?

      Ms. Key:     Yes, sir.

      The court:   Would you give them honest consideration?

      Ms. Key:     Yes, sir.

      The court: Okay. In the situation that I described where the defendant
      was found guilty of first-degree murder because he had specific intent to
      kill during a burglary, during a robbery, specific intent to kill or inflict
      great bodily harm on more than one and the victim was over age 65,
      some or all of that, could you honestly consider a life in prison sentence
      for that defendant?

      Ms. Key:     Yes, sir.

      The court:   You could?

      Ms. Key:      Yes, sir.

      The court:   Could you consider a death penalty for that person?

      Ms. Key:     Yes, sir.

      The court: As you are sitting here today - - and I’m not asking you if
      you get there how you are going to vote because that would be an
      inappropriate question for you. But as you are sitting here today, could
      you tell me if you have a tendency to lean one direction or the other in
      the case that I described to you, specific intent to kill during a burglary,
      during a robbery, age over 65 or specific intent to kill and inflict great
      bodily harm on more than one?

      Ms. Key:     Intent to kill because he hurt more than one.

      The court:   Okay. So what would be your tendency in that sentence?


                                           54
      Ms. Key: With intent to kill more than one or he killed more than one,
      if it were just one I would sentence him.

      The court:   Okay. Explain that to me a little bit.

      Ms. Key: You know, like if he just killed one like burglary, I say
      sentence him, you know, give him time.

      The court:   The life sentence?

      Ms. Key: Yes, sir, because, you know, he probably just act - - you
      know, because he got caught. But, you know, if he killed more than one,
      I sentence him death.

      The court: Would you automatically sentence a defendant to either life
      or death without considering all the mitigating circumstances?

      Ms. Key:     I would consider it.

      The court:   You will consider it?

      Ms. Key:     Yes, sir.

      The court:   Would you give it honest consideration?

      Ms. Key:     Yes, sir.

In denying the defense challenge for cause, the court found the inconsistencies among

Ms. Key’s responses attributable to confusion, rather than an inability to fairly

consider all the evidence:

      Okay. With regard to Ms. Key, she did seem to be somewhat confused
      about the process initially. She did give some responses that were rather
      confusing to the court which indicated to the court that she didn’t really
      understand how the process worked and the law pertaining thereto, but
      she was very consistent with regard to her willingness to be open to
      consider both sides. They were some times (sic) inarticulately given
      which is again the reason why I had her brought in for individual voir
      dire . . . .

      After the court examined her it was very clear to the court that under the
      circumstances alleged in this case of first-degree murder during burglary,
      robbery, more than one or over the of 65 that she could consider a life
      imprisonment or a death penalty.

      Some of the comments that I have written down for her is, “Yes, I could
      consider giving life or death under the circumstances of this case.” She
      rated herself as a 2. She did indicate that she would favor death at some
      point in her responses, but she also indicated that she could give serious

                                           55
      consideration to mitigating circumstances and impose life imprisonment
      as well.

      I really think that some of her responses were indicative of either not
      understanding the question or being led, one or the other, which again is
      why I purposefully asked very open questions to find out her and the
      other prospective jurors’ opinions on these issues. And the court is
      convinced that Ms. Key will give a serious and honest consideration to
      both [sentencing options].

A review of the entire voir dire record demonstrates that the trial court did not

erroneously deny the defense challenge for cause to Ms. Key.

Cynthia Bates (Assignment of Error #20)

      Defendant argues juror Cynthia Bates was unable to decide the issue of mental

retardation, leaving her ability to properly follow the law substantially impaired.

      When examined by defense counsel, Ms. Bates initially responded she did not

agree with the law on intellectual disability in capital cases and elaborated her

concerns about applying the law:

      Defense counsel: Ms. Bates, how do you feel about that law?

      Ms. Bates: I don’t agree with it.

      Defense counsel: Would it be a problem for you if you were on a jury
      and the trial proceeded to a penalty phase and that evidence was
      presented to you, is that something that you would have a hard time
      following?…

      Ms. Bates: No, I wouldn’t have a problem. I mean, I don’t agree with
      the law, but the law is the law.

                                      ***
      Defense counsel: Would you be inclined to find the defendant not
      mentally retarded because you don’t agree with the law?

      Ms. Bates: I don’t see how I can say somebody is mentally retarded. I
      don’t see how I can say somebody is that. Even if I have the evidence -
      I don’t see how I can tell how somebody is going to be retarded. I mean,
      whether you have evidence in front of you, I mean, how could - I’m not
      a doctor. I’m not - I don’t know how you’re supposed to…say.
      Defense counsel: So that would be a decision that you would have a
      difficult time making? Because if you were selected to serve as a juror,
      you would be asked to make that determination, if this case were to
      proceed to a penalty phase.

                                          56
         Ms. Bates: To decide if somebody was mentally retarded, yeah, I would
         have a problem trying to decide if somebody - yeah, I’d have a problem
         with it.

When the court further questioned Ms. Bates, after having explained the evidentiary

and fact-finding process by which jurors reach a determination as to intellectual

disability, Ms. Bates confirmed that her difficulty was limited to concern about how

she, as a layperson, might make a mental health diagnosis. She verified she would not

be inclined to make a finding, in the event that defendant had actually established his

intellectual disability, that he was not intellectually disabled so that he may be put to

death.

         In denying the defense challenge for cause, the trial court found that Ms. Bates

ultimately indicated she could accept the intellectual disability law and possessed

reservations only as to how the conclusion would be reached by the jury. The court

reasoned that such a concern was one that “probably just about anybody would have,”

and one which Ms. Bates, if chosen, appeared fully capable of handling “like anyone

else would.” Viewing Ms. Bates’ responses as a whole, we find the trial court did not

abuse its discretion in denying the defense challenge for cause.

Anita Rainer (Assignment of Error #21)

         Defendant argues Anita Rainer should have also been excluded because she

would hold defendant to a higher burden of proof for mental retardation than what the

law requires, and thus could not follow the law.

         During voir dire, the prosecutor and Ms. Rainer engaged in the following

exchange:

         Ms. Rainer: …I have got to know without a doubt, you know, if the
         person is retarded or not.

         Prosecutor: Okay. That’s a level of certainty that you want, right?

         Ms. Rainer: Yes, sir.


                                            57
      Prosecutor: There are certain legal standards to which things have got
      to be proven in criminal court, and you will hear a lot of this, okay? And
      clear and convincing is one that you will hear. Beyond a reasonable
      doubt is one that you will hear. What I hear you telling me is that you
      want to be convinced of it very, very much. Is that correct?

      Ms. Rainer: True.

      Prosecutor: If the law said that it had to be something less than a
      hundred percent certainty, do you think you could make that decision or
      do you think that for you personally you would have to be a hundred
      percent certain before you could find somebody mentally retarded?

      Ms. Rainer: I would have to make a hundred percent sure that they are
      not.

After further explanation from the prosecutor regarding the meanings of the burden

of proofs, Ms. Rainer agreed she would not require a level of certainty beyond what

the law requires:

      Prosecutor: ...It’s not that you are a doctor. It’s not that you have
      conducted the tests and all that. Does that make it simpler for you?

      Ms. Rainer: Yes.

                                       ***
      Prosecutor: Would you require a level of certainty beyond what the law
      requires –

      Ms. Rainer: No.

      Prosecutor: –meaning would you have to be more sure than that level
      of certainty the judge said was necessary?

      Ms. Rainer: Just what the judge said, just what is necessary.

      After review of the record, we find no error in the trial court’s refusal to excuse

Ms. Rainer for cause. Rather than indicating she would require the defense to carry

a heavier burden than the law requires, Ms. Rainer’s initial dialogue with the

prosecutor appears to show that she would have wanted to be certain defendant was

not intellectually disabled before she could consider imposing a death sentence: “I

would have to make a hundred percent sure that they are not [intellectually disabled].”

Additionally, after further examination, Ms. Rainer expressed that she would follow

                                          58
the law as provided by the judge. In light of the totality of her voir dire responses, the

record shows the court did not erroneously deny the challenge for cause as to Ms.

Rainer.

Jennifer McMullen (Assignment of Error #22)

      Defendant argues the trial court erred in denying his challenge for cause as to

Jennifer McMullen because she could not adequately consider the mitigating factors

of a difficult childhood and a follower.

      When initially questioned, Ms. McMullen disclosed she considered herself as

being “for” the death penalty in some cases, and rated herself a “2,” stating, “I believe

there are certain acts where the death penalty is appropriate, …but, you know, I don’t

know yet what the facts would be so I would be able to consider life as well.” When

pressed further, she stated that in a case in which specific intent was proven, the

murder occurred during a robbery, and the victim was over the age of 65, she didn’t

know that she would be “50/50" under those “extreme” circumstances, but that she

was still open to a life sentence. When questioned by the defense as to how she would

vote in such a case, Ms. McMullen indicated she would be more likely to impose the

death penalty, stating, “… I don’t know if I could say 100 percent, but, you know, if

it were a crime, a premeditated crime against an elderly person, I could consider the

life [sentence], but I don’t know that there would be much of a margin for the life

there,” before verifying that her decision, either way, would not be automatic.

      After the trial judge re-instructed the panel as to the law on mitigating

circumstances, Ms. McMullen expressed a willingness to follow the law although she

was still predisposed to the death penalty: “I mean if the judge says you have to look

at these circumstances and consider them, you know, I would want to do what was

according to the law, but I do believe that I would be predisposed to opting for the

death penalty.” She further explained that she would never say someone would

                                           59
automatically be sentenced to death, but she favors the death penalty. Ms. McMullen

admitted she was unsure what sort of circumstances would cause her to gravitate

toward a life sentence, and indicated she may not give much weight to evidence that

defendant had a “horrible childhood” because her own father had suffered similar

circumstances but “didn’t opt to [kill].” Ms. McMullen further expressed that she was

unsure whether evidence of a difficult childhood would make a difference.

      The court subsequently conducted additional individual voir dire of Ms.

McMullen:

      The court: Now, what I want to know is, can you tell me that you will
      honestly consider all the mitigating circumstances in a case before you
      arrive at your individual sentence?

      Ms. McMullen: Yes, if that’s what you instruct me to do, I have to.

      The court: Okay. But what I’m asking you is, would you honestly do
      that? It’s going to be the instruction, but what I want to know is will you
      actually consider those circumstances.

      Ms. McMullen: I mean, yes, I would have to. I think it would be the
      right thing to do, you know.

      The court: When you say, “ I have to do” do you have to because I told
      you you had to –

      Ms. McMullen: No.

      The court: – or in your mind do you have to because –

      Ms. McMullen: I have to.

      The court: And would you automatically vote for a death penalty in the
      circumstances that I have just described to you or would you consider
      also a life in prison?

      Ms. McMullen: I don’t – I don’t believe I would automatically.

      The court: You don’t believe you would automatically what?

      Ms. McMullen: Consider. I mean I don’t think I would automatically
      vote for the death penalty. I mean I’m trying to go down – it’s hard to
      generalize when – I know what you are saying about the case has been,
      you know, decided up to a certain point with my fellow jurors, but it is
      – you know, it’s just hard for me to say yes or no were I in that situation.

                                          60
      The court: Absolutely, And none of us here are trying to get you to tell
      us what you are going to vote because frankly you don’t know.

      Ms. McMullen: Right, right.

      The court: It would be inappropriate for any of us to ask you how you
      are going to vote if you are in the situation. That’s not what we are here
      to do. What we are here to do is to find out if you would give honest
      consideration to the two possible sentences in the event that you were in
      that situation.

      Ms. McMullen: I mean, yes, I think I would.

      The court: Would you honestly consider a death penalty as a possible
      verdict?

      Ms. McMullen: Yes.

      The court: Would you honestly consider a life in prison as a possible
      verdict?

      Ms. McMullen: Yes.

      The court: Would you be substantially impaired from imposing either
      one of those sentences?

      Ms. McMullen: I don’t think so, no.

In denying the challenge for cause, the trial court found Ms. McMullen qualified to

serve impartially and found that she clearly indicated an ability and willingness to

consider everything required by law. The overall tenor of Ms. McMullen’s voir dire

responses demonstrated that she took her responsibilities seriously and gave

consideration to her answers. That, when probed in the abstract, she indicated she

would perhaps not have given some mitigating circumstances as much weight as

defendant would have liked is not an indication of her unsuitability for service. La.

C.Cr. P. art. 797. Viewing Ms. McMullen’s responses as a whole, we find the trial

court did not abuse its discretion in denying the challenge for cause.

        DUTY TO INQUIRE INTO DEFENDANT’S ASSERTION OF
                       RIGHT TO TESTIFY
                      (Assignment of Error #8)

      Defendant claims he was denied his fundamental right to testify, despite having

                                         61
requested to testify at the close of the penalty phase. Defendant asserts his attorneys

prevented him from taking the stand and the trial judge failed to make a proper inquiry

into his desire to exercise this fundamental right.

      The record in this case reflects that after both sides rested in the penalty phase,

court resumed the following morning. The trial court asked if either the state or

defense had anything to put on the record before closing arguments began. Both sides

responded negatively. The trial resumed with closing arguments from the state and

defendant. Immediately prior to instructing the jury, the defendant expressed a desire

to speak:

      Defendant: Excuse me, Your Honor. I have question I want to ask you
      please, sir.

      Court: Excuse me.

      Defendant: Your Honor, I would like to address the Court myself. Is
      there any kind of way that I can take the stand at this point right here?

      Court: No sir. The trial has concluded.

      Defendant: I want to take the stand in my penalty phase, Your Honor.
      Do I have a right to speak before my sentence is cast upon me?

      Court: You had a right to speak, sir, but the penalty phase is concluded.

      Defendant: But according to my attorneys I was waiting and trying to
      address the Court before the State took the stand and I wanted to address
      the Court. My attorney denied me the right myself to address the jury
      before the State took the stand, Your Honor.

      Court: Sir, we have been here, you have been present during all of these
      proceedings. You knew that the penalty phase is concluded. In fact, at
      the close of the last night I asked if there was any motions for either side,
      and I informed each side that that was the final time to propose any
      motions. The State said they had none, the defense said they had none.
      I made it very clear that closing arguments would take place at 9:00
      o’clock this morning. We were here, I asked if there was anything to be
      put on the record before the jury came in. The State had nothing, the
      defense had nothing. The closing arguments have been made and I am
      going to instruct the jury. This case is concluded, sir. And if you wanted
      to take the stand you certainly had the right to do that. You’ve been here
      before, you know how this process works. You have five attorneys
      representing you, and there is no question in my mind that you knew that

                                           62
         you had the right to do that.

         Defendant: No, sir.

         Court: And you did not do that. And the case is now concluded, and I
         will instruct the jury when we come back at five minutes until.

         Undoubtedly, a criminal defendant has the right to take the witness stand to

testify in his own defense. Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 2709,

97 L.Ed. 2d 37 (1987). However, that right is not unqualified, and the Supreme Court

has recognized that the “right may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.” Rock, 483 U.S. at 55. Further, the

Court noted that “numerous state procedural and evidentiary rules control the

presentation of evidence, and do not offend the defendant’s right to testify.” Id. at 55

n. 11.

         Louisiana limits testimony to the evidentiary stage of trial, and the trial court

has discretion to permit the introduction of additional evidence prior to argument. See

State v. Celestine, 443 So. 2d 1091, 1096 (La. 1983); State v. Bonnano, 373 So. 2d

1284, 1292-93 (La. 1979); State v. Peer, 189 La. 795, 180 So. 640, 642 (La. 1938);

State v. Hackett, 166 La. 261, 117 So. 141, 142 (La. 1928); La. C.Cr. P. art. 765(5).16

In State v. Dauzart, 99-3471 (La. 10/30/00), 769 So. 2d 1206, this court discussed

arbitrary application of this rule. In Dauzart, defense counsel called a final witness at

the close of its case for purposes of identifying medical records. A recess followed

after which defense counsel informed the court he would rest subject to introducing

the medical records. The court immediately ordered the records introduced, excused

the jurors and then met with counsel to cull out the relevant documents. 769 So. 2d at


         16
          La. C. Cr. P. art. 765 (5) provides:
        The normal order of trial shall be as follows:
        ***
        (5) The presentation of the evidence of the state, and of the defendant, and of the state in
rebuttal. The court in its discretion may permit the introduction of additional evidence prior to
argument.

                                                63
1209. Additionally, a discussion was held regarding the court’s general charge to the

jury, during which counsel informed the court that defendant “has thought about it and

decided he wishes to take the witness stand.” The trial court denied defendant’s

motion to reopen his case. On the following morning, trial resumed its normal course

from closing argument to the court’s jury instructions, and the jury’s verdict. Id. This

court reversed the conviction, holding the trial court’s refusal to reopen the

defendant’s case for the defendant’s testimony after the defense had rested was an

abuse of discretion and violated the defendant’s due process right to testify. Id. We

found the court arbitrarily refused to allow the defense to reopen its case “under

circumstances in which the slight deviation from normal practice would have had no

impact on the orderly flow of trial from jury selection to verdict and in which strict

adherence to the order of trial specified by art. 765(5) cost relator his only opportunity

to face jurors and persuade them of his version of events.” Id. at 1208. In so doing,

this court further explained:

      Louisiana limits testimony to the evidence-taking stage of trial. La. C.Cr.
      P. art. 765(5). Applied to the accused, this rule of procedure simply
      imposes a commonsense requirement that the right to testify be exercised
      in a timely fashion. In the present case, timeliness was foremost in the
      mind of the trial judge when he steadfastly refused to allow the defense
      to reopen its case, after it had ostensibly rested, for purposes of allowing
      relator to testify, as counsel had committed him to do so in his opening
      remarks to the jurors.

      However, restrictions of a defendant’s right to testify may not be
      arbitrary or disproportionate to the purposes they are designed to serve.
      The order of trial specified in La. C.Cr. P. art. 765(5) does not generally
      impose an arbitrary restriction on the accused’s right to testify because
      the court also possesses the discretion under the statute to reopen the
      evidence at any time before closing arguments to permit the taking of
      additional testimony.

Id. (Internal citations omitted). Unlike the circumstances in Dauzart, in this case

defendant did not express a desire to testify until after the close of evidence and after

closing arguments in the penalty phase by both sides. Under these circumstances, we


                                           64
find defendant’s request to testify was untimely and we find no error in the trial

court’s refusal to allow him to testify at that point in the trial.

       Additionally, we do not find the trial court violated a duty to inquire into the

defendant’s right to testify. In State v. Hampton, 00-0522 (La. 3/22/02), 818 So. 2d

720, this court established criteria to aid trial courts in determining whether a

defendant has waived his right to testify or simply chose not to do so for strategic

purposes:

       (1) absent extraordinary circumstances that should alert the trial court to
       a conflict between attorney and client, the court should not inquire into
       a criminal defendant’s right to testify. The court should assume, that a
       criminal defendant, by not “attempting to take the stand,” has knowingly
       and voluntarily waived his right;

       (2) the court must consider whether the petitioner has waived his right
       to testify.... [The defendant can only] rebut that presumption ... by
       showing that his attorney caused him to forego his right to testify [ (a) by
       alleging specific facts, including an affidavit by the defendant’s trial
       counsel] from which the court could reasonably find that trial counsel
       ‘told [the defendant] that he was legally forbidden to testify or in some
       similar way compelled him to remain silent ... [ (b) by demonstrating
       from the record] that those specific factual allegations would be credible
       ...

818 So. 2d at 729-30 (citing Passos-Paternina v. United States, 12 F.Supp. 2d 231

(D.P.R.1998); see also State v. Shaw, 06-2467 (La. 11/27/07), 969 So. 2d 1233,1246.

       The record indicates that timeliness was foremost in the trial judge’s mind when

he refused to allow defendant to take the stand after each side had rested its case in the

penalty phase and submitted its closing argument. As the trial judge found, defendant

did not seek to testify until after the penalty phase concluded and the court had already

asked both parties more than once whether they had anything further to present and

was met with negative responses. Defendant offers nothing from the record to justify

his delay in seeking to testify but merely intimates that his attorneys prevented him

from speaking up sooner. Considering the guidelines set forth in Hampton, defendant

has failed to rebut the trial court’s finding that he waived his right to testify.

                                            65
      The defense also relies on some general remarks made by defendant prior to

trial as indicative of his desire to testify. Before counsel was assigned to this trial,

defendant stated in court “I would like to invoke my Fifth Amendment, if I would

please, to participate in any proceedings that come before this case....” Defendant also

submitted a pro se motion to suppress, which included his request to testify at the

suppression hearing. Nothing in these pretrial remarks express a desire to testify or

indicated an attempt to take the stand at trial. Further, we note that defendant did

testify at the suppression hearing per his request. Additionally, defendant points to

unsolicited comments made by his brother, Bradley Brumfield, during his testimony

at the penalty phase, wherein Mr. Brumfield stated: “Y’all might not see Robert

talking over there, and he might be sitting there still, I know he wants to say

something….” However, defendant made no statement at that time that he wanted to

testify on his behalf. The first indication that defendant wanted to testify was after

closing arguments were completed and the trial court was ready to instruct the jury.

These vague pre-trial statements by defendant were insufficient to assert his right to

testify. We find no error in the trial court’s ruling.

                                 PENALTY PHASE

     INCONSISTENT EVIDENCE / THEORIES AT PENALTY PHASE
                    (Assignment of Error #10)

      Defendant asserts the state violated his right to due process, a fair and reliable

sentencing, and his right to counsel by presenting an inconsistent theory and

inconsistent evidence of the Terrance Blaze homicide at the penalty phase of his trial.

Defendant argues he is entitled to a new penalty phase because the state was allowed

to present testimony from its bloodstain expert, Mark Rogers, which contradicted

testimony he gave at both defendant’s first trial and at co-defendant Brandy Holmes’

trial, despite the state’s notice and assurances that the evidence presented at the


                                            66
penalty phase would be identical to that presented in defendant’s first trial.

Specifically, Rogers’ testimony in the penalty phase implicated defendant as the

shooter in the Blaze homicide, contradicting testimony he gave during defendant’s

first trial and at Brandy’s trial which implicated Brandy as the shooter. We find merit

in this assignment of error.

      Generally, evidence of other crimes, wrongs, or bad acts is not admissible at

trial to prove a defendant’s bad character. La. C.E. art. 404(B). In Prieur, this court

held that such evidence is generally inadmissible because of the “substantial risk of

grave prejudice to the defendant.” 277 So. 2d at 128. However, the state can introduce

evidence of other crimes, wrongs or acts if it establishes an independent and relevant

reason such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. La. C.E. art. 404(B)(1). Moreover, the

probative value of the extraneous crimes evidence must outweigh its prejudicial effect.

Separate and apart from the showing of relevancy and prejudice, the state must also

prove the defendant committed the other acts, and satisfy the requirements set forth

in Prieur, i.e., the state must provide the defendant with notice before trial that it

intends to offer prior crimes evidence. State v. Garcia, 09-1578 (La. 11/16/12), 108

So. 3d 1, 39.

      However, unlike the guilt phase of a trial, the character of the defendant is

automatically at issue in a capital sentencing hearing. La. C.Cr. P. art. 905.2.

Beginning with our decision in State v. Sawyer, 422 So. 2d 95, 104 (La.1982), this

court held that Article 905.2 authorizes the introduction of evidence of convictions for

unrelated crimes at a capital sentencing hearing, even if the defendant does not place

his character at issue. This court eventually recognized the necessity of standards

governing the admission in the penalty phase of evidence of unrelated and

unadjudicated criminal conduct, such as had been set forth in Prieur, with regard to

                                          67
the admission of other crimes evidence in the guilt phase of trial. In State v. Brooks,

541 So. 2d 801 (La.1989), we held that before the state can introduce evidence of

unrelated and unadjudicated criminal conduct in the penalty phase, the trial judge must

determine that: (1) the evidence of the defendant’s commission of the unrelated

criminal conduct is clear and convincing; (2) the proffered evidence is otherwise

competent and reliable; and (3) the unrelated conduct has relevance and substantial

probative value as to the defendant’s character and propensities. 541 So. 2d at 814.

      We revisited the issue in State v. Jackson, 608 So. 2d 949 (La. 1992), wherein

we reaffirmed the standard set forth in Brooks, and also limited the type of evidence

admissible to criminal conduct which involves violence against the person of the

victim, and to that conduct for which the period of limitation for instituting

prosecution had not run at the time of the indictment of the accused for the first degree

murder for which he is being tried. 608 So. 2d at 955. We further reiterated that due

process requires that when a prosecutor intends to use evidence of unrelated criminal

conduct in a capital sentencing hearing to increase the punishment for the charged

crime, the defendant must be notified so that he can prepare to rebut or defend against

the evidence. Id. at 957. This court explained that “adequate notice, sufficiently

detailed to allow the defendant to know the exact unrelated conduct he must be

prepared to meet in the sentencing hearing and sufficiently in advance of trial to allow

reasonable preparation of a defense, is essential to provide meaning to the defendant’s

corresponding due process right of a reasonable opportunity to be heard at the capital

sentencing hearing.” Id. The hearing to determine whether other crimes evidence is

admissible in the penalty phase is often called a “Jackson” hearing. State v. Draughn,

05-1825 (La. 1/17/07), 950 So. 2d 583, 606.

      The state provided the required Jackson notice relative to defendant’s first trial,

and a Jackson hearing was held to determine the admissibility of that evidence. Prior

                                           68
to the retrial, defendant filed a motion seeking an amended Jackson notice from the

state. During a pretrial motion hearing, the state opposed the motion, asserting there

was no need to file a new Jackson notice because one had been filed in the first trial

and the evidence would be the same. The prosecutor stated:

      Your Honor, our reasons to that is that there was a Jackson Notice filed
      in it, and the Jackson evidence in this case remained the same. We do not
      see a need to amend it. We have already litigated this issue, and we’re
      not seeking to relitigate the same. Our reliance on the record is that not
      only are they given a Jackson notice, they’re given a very fully
      developed, exactly what the witnesses said in the last trial notice, when
      you couple the notice that was filed plus the trial transcripts, they’re on
      kind of an uber notice, and we don’t see a need to amend it.

The court granted the defendant’s motion “out of an abundance of caution.” The state

subsequently filed a supplemental Jackson notice that it intended to introduce

evidence of defendant’s prior criminal convictions as previously noticed, as well as

evidence that defendant participated in and committed a homicide upon Terrance

Blaze on or about January 2003, within days of the instant offense. At a pretrial

hearing on that same day, the state advised the court that it had filed the supplemental

notice. The prosecutor stated:

      I had filed another supplemental Jackson notice alleging that we intend
      to prove the defendant’s involvement in the Terrance Blaze homicide.
      We intend to use exactly the same testimony that was previously
      adduced, and I re-alleged his two prior convictions, to which he’s
      already admitted in open court during the course of this hearing. So I’ll
      defer to defense counsel if there is anything else about the notice that
      they now deem to be defective.

The state further clarified that the notice “identified the prior convictions that we

intend to use and alleges the date of the homicide, incorporates only by reference the

transcript since that gives very precise notice of exactly what testimony we would

adduce to meet our burden under Jackson.” The state also confirmed once more that

it intended “to present exactly the same penalty phase evidence.”

      Despite the state’s notice and repeated guarantees to defendant and the court


                                          69
that the evidence and testimony would be identical to that previously set forth, the

state intentionally presented contradictory testimony that defendant, not Brandy, shot

Blaze in the back of the head.

      During the state’s opening statement during the penalty phase, the prosecutor

told the jury that defendant and Brandy killed another person, and that Mr. Blaze was

shot in the back of the head by defendant. The state then called Rogers as a witness

to present testimony regarding defendant’s involvement in the Blaze homicide. Rogers

testified he was able to reconstruct the Blaze crime scene after examination of

photographs of the vehicle in which Blaze was shot and examination of blood found

on a pair of jeans and boots belonging to the defendant. The evidence indicated

defendant was seated in the driver’s seat of the vehicle, Blaze was shot in the back of

the head while seated in the front passenger seat, and Brandy Holmes was seated in

the back seat of the vehicle. Rogers testified:

      Q (prosecutor): Do you have an opinion about the configuration of Mr.
      Blaze’s body when that blood was deposited?

      A: (Rogers): Yes. From the blood to have been deposited in, on the
      ashtray as it was, Mr. Blaze would have had to have been looking to his
      right when the wound was inflicted with the left portion…or the back
      portion of his head to the left or towards the driver’s side of the vehicle.

      Q: So he would have been effectively looking in the direction of the right
      passenger’s side window?

      A: That’s correct.

      Q: Now, with respect to the blood that was found on the bluejeans and
      on the boots, do you have an opinion about where the person was sitting
      that, when that blood was deposited?

      A: That person would have had to have been sitting to the left of the
      person in the front seat. Had they been sitting anywhere else in the
      vehicle the seats would have occluded those bloodstains from being
      deposited there, and that pattern logically makes sense as a portion of the
      continuation of the pattern that deposited blood on the right side of the
      ashtray.

      Q: So in your opinion when Mr. Blaze was actively bleeding from his

                                          70
      head wound there would have been a person seated to his immediate left
      in the driver’s seat; is that correct?

      A: Well, when the shot was fired, when the wound was inflicted he
      would have been sitting to his immediate left.

      Q: And so the driver’s, right side of the driver’s jeans and the right side
      of his boots would have been exposed to that blood?

      A: Some of it, yes.

      ***
      Q: Based on your review of the evidence that you saw, both within the
      car as well as on the boots and the pants, is it your opinion that Terrance
      Blaze was shot in the head while he was seated in the front seat, the
      passenger’s side of that car?

      A: Yes, it is.

      Q: Do you have an opinion, Captain Rogers, about the placement of the
      barrel of the gun at the time the wound was inflicted, where the gun
      might be located?

      A: It would be in reasonable close proximity, but I was unable from the
      information provided to determine a distance.

      Q: How about direction? The direction of the gun or the relationship of
      the position of the gun to the head?

      A: It was just about directly behind it.

There is no dispute that this testimony contradicted Rogers’ previous testimony. The

state admits that at defendant’s first trial Rogers testified it was likely the shot came

from behind and it was less likely the driver was the shooter.17 The state likewise

admits Rogers unequivocally testified at Brandy’s trial that “considering that the

blood stains on the right leg, on the ashtray, and on the boot are consistent with high

velocity impact spatter and they can also be consistent with expirated blood or blood

expelled out of the mouth after it pools, I would put the person inflicting the wound

being in the back seat of the vehicle and Mr. Coleman wearing the blue jeans and the



      17
           Coleman I, 06-KA-518, R. 4943.


                                            71
boot in the front driver’s seat of the vehicle....”18

       Defense counsel cross-examined Rogers, attempting to point out inconsistencies

between this testimony and testimony he gave at defendant’s first trial:19

       Q (defense counsel): Captain Rogers, isn’t it your opinion that the person
       that was wearing the jeans and the shoes was not the person who
       administered the shot?

       A: No, that’s not my [opinion] at all.

       Q: Do you remember testifying at some previous hearings?

       A: Yes, I do.

       Q: Do you remember testifying that it was less likely that the driver was
       the shooter, that it was more likely that the shot came from behind in the
       backseat?

       A: I don’t recall testifying to that exactly, but it may have been based on
       other information that I had.

       Q: Well, what other information would that have been that you don’t
       have today?

       A: I don’t, I have more information today than I did then, but I’m not
       familiar with that exact -

       Q: Captain Rogers, I’m going to show you a document where you
       testified at a previous hearing. Could you read what I have highlighted
       there? You don’t have to read it out loud, just to yourself. Now that
       you’ve had a chance to read that is your memory refreshed? . . .

       A: Yes, sir.

       Q: Do you remember testifying to that?

       A: I specifically don’t remember testifying to that. I do remember that
       discussion being held, but based on what I read and the parts in front of
       and behind that, that answer has given, seems to be inconsistent with the
       testimony I gave above and underneath that answer.

       Q: Okay. But when you were asked, based on where Terrance Blaze
       received the bullet to his head and based on everything else that we’ve
       looked at here, is it more likely in your opinion or less likely that the
       18
            State v. Holmes, 06-KA-2988, R. 6035-36.
       19
          According to defendant, because defense counsel was caught off guard by Rogers’
testimony, counsel was unable to immediately access transcripts from Brandy’s trial. Therefore,
defense counsel only used transcripts from defendant’s first trial to cross-examine Rogers.

                                               72
      driver was the shooter. Your answer was, I think it was less likely that
      the driver was the shooter?

      A: That’s what the transcript reflects, yes, sir.

      Q: Okay. But that’s not what you said?

      A: Once again, that’s what the transcript says I said. I can’t tell you that
      the transcript is in error or incorrect, I may have misspoke.

      Q: Thank you, Captain.

On re-direct, Rogers explained that the inconsistent statement in his prior testimony

was itself in conflict with the remainder of his testimony at the earlier proceeding:

      Q: (prosecutor): Captain Rogers, I would like you to explain to the jury
      why you would think that that was a misspeak on your part.

      A: Based on the information that prior to that response I was discussing
      the bloodstains on the driver’s pants leg and on the driver’s boot, and
      below that I was discussing the, where Mr. Blaze was sitting and where
      he was looking when the wound was inflicted, so incorporating all of
      that together, that response that it was less likely the driver was the
      shooter seems to be inconsistent with the other testimony that I gave. So
      once again, I don’t know if I misspoke or if I was misinterpreted when
      I spoke, I don’t know which one of those two things it is, but it seems to
      be inconsistent within the transcript.

      Q: Do you have an opinion about whether the driver was the shooter?

      A: Yes, I do.

      Q: And what is your opinion?

      A: I believe the shot originated from the driver’s area of the vehicle with
      Mr. Blaze looking to his right with the rear aspect of his head presented
      to the driver’s area of the vehicle.

      Q: And what do you base that opinion on?

      A: The fact of the very small spatter that’s consistent with back spatter
      that’s present on the right side of the ashtray and on the right leg and
      right boot of the bluejeans and the boot.

      Although defendant did not lodge a contemporaneous objection to Rogers’

testimony, he objected and moved for a mistrial the following day, arguing the state

should not have been allowed to present this completely different theory and


                                          73
inconsistent evidence regarding the shooter in the Blaze homicide. The trial court

ruled the motion was untimely, and further stated defendant had ample time to

cross-examine Rogers. The court noted defendant had a full staff of attorneys, had

access to all of the prior transcripts, and did cross-examine Rogers on the

inconsistencies. Further, the court stated it would allow defendant to call Rogers as

a witness in his penalty phase case.

      Based on the facts of this case, it is clear the state failed to provide defendant

with sufficient notice of the other crimes evidence it intended to introduce at the

penalty phase. Pursuant to Jackson, the defendant is entitled to notice of the “exact

unrelated conduct he must be prepared to meet.” 608 So. 2d at 957. While the state’s

written Jackson notice gave notice that “defendant participated in and committed a

homicide upon Terrance Blaze,” the state purposefully misled the defendant

concerning the evidence it intended to present at the penalty phase and gave defense

counsel numerous assurances that its penalty phase evidence and testimony would

mimic what it presented at defendant’s first trial. The state even emphasized that

because defendant was in possession of the previous trial transcripts, he had “uber”

notice of the evidence and testimony that would be presented. The state’s

representations were effectively part of the Jackson notice. Thus, Rogers’ testimony

that defendant was the shooter in the Blaze homicide did not conform with the

Jackson notice provided by the state.

      This court reviews a Jackson error for harmless error. Tart, 672 So. 2d at 132.

The inquiry is whether the capital sentence actually rendered in this trial was surely

unattributable to the error. Id. In State v. Langley, 95-1489 (La. 4/14/98), 711 So. 2d

651, 667, this court stated, relative to the admission of other crimes evidence at the

penalty phase:

      A defendant must show a “substantial risk of grave prejudice” arising out

                                          74
      of inadmissible or surprise admission of other crimes evidence. The
      purpose of limiting evidence of unadjudicated criminal activity is to
      prevent surprise, undue prejudice, and the injection of an arbitrary factor
      into the jury’s deliberations. There is no presumption of prejudice.

We find defendant demonstrated undue prejudice due to the lack of proper notice of

the other crimes evidence.

      Because defendant did not have notice of the change in Rogers’ testimony,

defendant was not able to prepare a defense to the assertion he was the shooter in the

Blaze homicide. Notably, because the state assured the court and defendant the

evidence would be exactly the same as it previously presented, the court did not

conduct a new Jackson hearing. Thus, there was not a determination made by the court

as to whether Rogers’ new testimony and opinion met the clear and convincing

standard of proof. Because defendant was not provided with proper notice, he had no

forensic experts in place to challenge Rogers. Further, defendant had no line of cross-

examination prepared to challenge Rogers’ opinion or the science on which his

opinion was based. While defense counsel attempted to point out the inconsistencies

in Rogers’ testimony on cross-examination, counsel could not effectively challenge

Rogers’ actual opinion that defendant was the shooter. The surprise was not “cured”

simply because defendant was allowed to cross-examine Rogers.

      Moreover, we find it likely that evidence defendant was the actual shooter in

the Blaze homicide thwarted defendant’s reliance on residual doubt going into the

penalty phase and defendant’s penalty phase argument that he was merely a follower

of Brandy Holmes. Because the evidence presented defendant in a more culpable light

before the jury, we cannot say this evidence had no effect on the sentencing decision.

The state’s presentation of evidence that defendant was the shooter in the Blaze

homicide allowed the state to argue defendant deserved a more severe punishment

than a life sentence. At the closing of the penalty phase, the state argued:


                                          75
      He deserves worse, he has done worse. He deserved a life sentence as
      soon as you said he was guilty of first-degree for which we thank you,
      he’s at a life sentence, well, what about the death of Terrance Blaze.
      Does that not warrant some greater consideration of a more severe
      penalty? Does that not say, you know what, life in prison satisfies some
      sense of justice, but, you know, he didn’t just kill one person, and he
      didn’t just do it in a snap decision. He did it savagely, he did it
      deliberately, and he did it twice. And he already came to that day having
      committed an armed robbery, having committed other crimes. That’s’
      simply not enough to say, but you, sir, are the same as these other people
      who may have only made one mistake or made a series of smaller
      mistakes. This is worse, this is more deserving of our ultimate penalty.

Because the sentencing hearing focuses on the character and propensities of the

offender, the issue of relative culpability is a critical issue in the penalty

determination. There is no doubt the state’s portrayal of defendant as the actual

shooter in the Blaze homicide, rather than merely a principal, impacted defendant’s

sentencing phase mitigating factor of lesser involvement in the offense and thus was

arguably material to the jury’s penalty determination. See Bradshaw v. Stumpf, 545

U.S. 175, 187, 125 S.Ct. 2398, 2407-08, 162 L.Ed. 2d 143 (2005). There is more than

a reasonable probability that the jury may not have reached a unanimous decision of

death had they not heard evidence that defendant was the actual shooter in another

homicide. In State v. Comeaux, 93-2729 (La. 7/1/97), 699 So. 2d 16, 22, this court

stated: “Just as the Supreme Court of the United States in Gregg20 established

safeguards … necessary for the valid imposition of a death sentence, this court has

established significant safeguards against the wanton and freakish imposition of

capital punishment when the prosecution offers evidence of unrelated and

unadjudicated criminal conduct.” One of these safeguards is the requirement of proper

notice to the defense. The state’s failure to comply with this safeguard resulted in a

violation of defendant’s right to due process.

      Likewise, we also find the inconsistent positions taken by the state violated


      20
           Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed. 2d 859 (1976).

                                               76
defendant’s due process rights. This court has held that due process forbids the state

from employing inconsistent and irreconcilable theories to secure convictions against

individuals for the same offenses arising from the same event. Holmes, 5 So. 3d at 62;

State v. Scott, 04-1312 (La. 1/19/06), 921 So. 2d 904, 957. The state contends its

theory has been consistent - that defendant and Brandy committed these crimes

together - and Rogers’ testimony does not change that theory. We disagree. In State

v. Lavalais, 95-320 (La. 11/25/96), 685 So. 2d 1048, this court considered defendant’s

argument regarding the state’s inconsistent positions during the penalty phase. In

Lavalais, the defendant contended the prosecution violated his due process rights

when it disputed at the penalty phase evidence of the mitigating factor that defendant

was acting under his co-defendant’s domination and control, but presented evidence

of the same at the co-defendant’s trial. 685 So. 2d at 1056. This court found the state’s

position in the two trials did not rise to the level of fundamental unfairness. Id. at

1056-57. We reasoned that although the state’s positions in defendant’s trial and the

co-defendant’s trial may appear inconsistent at first glance, this appearance results

from the fact that the state’s emphasis as to culpability was different in the two trials.

Id. at 1056. Contrary to Lavalais, the state’s actions in this case went beyond the

product of the state’s argument as to degree of culpability. Here, the state actually

presented inconsistent evidence in the form of Rogers’ changed testimony regarding

the identity of the Blaze shooter based on the forensic evidence. Although the state

attempted to explain Rogers’ previous testimony as a “misspeak,” we cannot ignore

that Rogers twice testified at two different trials the shot that killed Blaze came from

the back seat, thus implicating Brandy as the shooter. We find it unlikely that Rogers

simply “misspoke” when he asserted that opinion at both defendant’s first trial and

Brandy’s trial. To allow the state to advance inconsistent evidence and theories of the

Blaze homicide directly in contravention of its Jackson notice undermines confidence

                                           77
in the fairness and reliability of the sentencing phase of the trial and the death sentence

imposed. We find the inconsistencies in the state’s position rose to the level of

fundamental unfairness and thus infringed upon defendant’s right to due process.

      The Eighth Amendment requires a heightened need for reliability in the

determination that a death sentence is the appropriate punishment in a specific case.

See Caldwell v. Mississippi, 472 U.S. 320, 323, 341, 105 S.Ct. 2633, 2637, 2645, 86

L.Ed. 2d 231 (1985). “[T]he penalty of death is qualitatively different from a sentence

of imprisonment, however long. Death, in its finality, differs more from life

imprisonment than a 100-year prison term differs from one of only a year or two.

Because of that qualitative difference, there is a corresponding difference in the need

for reliability in the determination that death is the appropriate punishment in a

specific case.” Woodson v. N. Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49

L.Ed. 2d 944 (1976). The state’s presentation of inconsistent evidence and theories of

the Blaze homicide and the state’s failure to give defendant proper notice of this

change in evidence and testimony incurably tainted the sentencing process. Thus, we

cannot conclude the defendant’s death sentence was surely unattributable to the error.

We find the jury’s sentencing decision in this case does not meet the standard of

reliability required by the Eighth Amendment. The Supreme Court has stated that

“although the prosecutor must prosecute with earnestness and vigor and may strike

hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S.

78, 88, 55 S.Ct. 629, 79 L.Ed. 2d 1314. In this case, the state’s repeated false

representations regarding the Jackson evidence it intended to introduce crossed the

line to foul blows.

       Although we do not lightly reverse the jury’s determination, we are obligated

to find reversible error for the above reasons. Therefore, we vacate defendant’s



                                            78
sentence and remand this case for a new sentencing hearing.21

                                         DECREE

       For the reasons assigned, defendant’s conviction for first degree murder is

affirmed. Defendant’s sentence of death is vacated and set aside and the case is

remanded to the district court for a new sentencing hearing.



CONVICTION AFFIRMED; DEATH SENTENCE REVERSED; CASE
REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.




       21
          Because we find this error mandates a new sentencing hearing, we pretermit discussion
of the defendant’s remaining penalty phase assignments of error.

                                              79
02/26/16


                               SUPREME COURT OF LOUISIANA

                                             NO. 2014-KA-0402

                                         STATE OF LOUISIANA

                                                    VERSUS

                                     ROBERT GLEN COLEMAN



KNOLL, J., additionally concurring.

           Although I concur fully in the majority opinion, I write separately to

emphasize how critical it is for the State to be forthright and prompt when giving

notice of its intent to use “other crimes” evidence during the guilt phase of a capital

trial. As the majority opinion points out, we have described “adequate notice” for

the introduction of such evidence in a capital sentencing hearing as notice that is

(1) “sufficiently detailed to allow the defendant to know the exact unrelated

conduct he must be prepared to meet in the sentencing hearing” and (2)

“sufficiently in advance of trial to allow reasonable preparation of a defense.”1

Here, although the State gave pre-trial notice of its intent to prove defendant’s

“involvement in the Terrance Blaze homicide,” it was not until the State delivered

its guilt phase opening statement in the presence of the jury that it indicated it

intended to prove—contrary to its theory in Brandy Holmes’ trial and its theory in

the defendant’s first trial—that Mr. Blaze was shot in the back of the head by the

defendant. Indeed, the notice the State provided in this case was neither

“sufficiently detailed” nor “sufficiently in advance of trial” to constitute “adequate

notice” for due process purposes.

           Given the grave and final nature of capital punishment and the precious

resources the people of this State dedicate to ensuring justice is done in these most
1
    State v. Jackson, 608 So.2d 949, 957 (La. 1992) (emphasis added).
serious cases, the State’s unreasonable delay in giving notice concerning such a

crucial piece of evidence is indefensible. This practice tends to inject

gamesmanship into the proceedings which we will not tolerate. There is absolutely

no excuse for this type of practice, especially when the defendant’s life hangs in

the balance. In my view, the State would have been better off not introducing the

expert’s testimony at all rather than risking the reversal the law compels us to order

in this case. Notwithstanding defendant’s opportunity to cross-examine this expert

witness, the change in this witness’ expert testimony is too critical a change in

evidence, and the State’s failure to timely notify the defendant of this change is

certainly unduly prejudicial to defendant at the penalty phase of trial in a capital

case.

        Moreover, under these facts, I do not believe defendant’s objection and

motion for mistrial the following morning was untimely. Given the State’s

repeated assurances that its penalty phase evidence would be the same as it was in

defendant’s first penalty phase trial, the changes in the State’s theory and in the

expert’s testimony completely blindsided defendant. Other than a hastily-prepared

cross-examination of the expert witness, there was no time for the defendant to

thoroughly and thoughtfully prepare a strategy to respond to this unexpected

evidence. Thus, in my view, it was not unreasonable for defendant to lodge his

objections to the State’s failure to notify him of these changes on the following

morning when court resumed.

        For these reasons, I agree with the majority’s decision to grant the defendant

a new penalty phase trial.




                                           2
02/26/16

                      SUPREME COURT OF LOUISIANA


                                     NO. 2014-KA-0402

                                 STATE OF LOUISIANA

                                           VERSUS

                               ROBERT GLEN COLEMAN


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



WEIMER, J., dissenting in part.

         I respectfully dissent from the majority opinion insofar as it vacates the

defendant’s sentence and remands this case for a new sentencing hearing. The general

rule is that “[a]n irregularity or error cannot be availed of after verdict unless it was

objected to at the time of the occurrence.” La. C.Cr.P. art. 841. This rule, commonly

known as the contemporaneous objection rule, was extended to apply to the penalty

phase of capital trials in State v. Wessinger, 98-1234, p. 20 (La. 5/28/99), 736 So.2d

162, 181.

         In this case, there is no dispute, and the majority opinion acknowledges, that

“defendant did not lodge a contemporaneous objection to Rogers’ testimony.” Slip

op. at 75. As a result, under prevailing jurisprudence, defendant failed to preserve his

claim of a Jackson1 violation for review. La. C.Cr.P. art. 841; Wessinger, 98-1234

at 20, 736 So.2d at 181.

         I would affirm the judgment below in its entirety.




1
    State v. Jackson, 608 So.2d 949 (La. 1992).
02/26/16

                   SUPREME COURT OF LOUISIANA

                             NO. 2014-KA-0402

                          STATE OF LOUISIANA

                                 VERSUS

                       ROBERT GLEN COLEMAN

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



GUIDRY, Justice, dissents in part for the reasons assigned by Justice Weimer.
02/26/16

                    SUPREME COURT OF LOUISIANA

                              NO. 2014-KA-0402

                           STATE OF LOUISIANA

                                   VERSUS

                         ROBERT GLEN COLEMAN

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


CLARK, J., dissents in part for the reasons assigned by Justice Weimer.




                                        1
