                              Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #045


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 7th day of September, 2016, are as follows:



BY KNOLL, J.:


2014-KA-1980      STATE OF LOUISIANA v. MARCUS DONTE REED (Parish of Caddo)

                  Retired Judge Michael Kirby sitting ad hoc for Crichton, J.,
                  recused.

                  For the reasons assigned herein, the defendant's conviction and
                  death sentence are affirmed.     This judgment becomes final on
                  direct review when either: (1) the defendant fails to petition
                  timely the United States Supreme Court for certiorari; or (2)
                  that Court denies his petition for certiorari; and either (a) the
                  defendant, having filed for and been denied certiorari, fails to
                  petition the United States Supreme Court timely, under its
                  prevailing rules, for rehearing of denial of certiorari; or (b)
                  that Court denies his petition for rehearing, the trial court
                  shall, upon receiving notice from this Court under La.C.Cr.P.
                  art. 923 of finality of direct appeal, and before signing the
                  warrant of execution, as provided by La .Rev. Stat. 15:567(B),
                  immediately notify the Louisiana Indigent Defense Assistance
                  Board and provide the Board with reasonable time in which: (1) to
                  enroll counsel to represent the defendant in any State post-
                  conviction proceedings, if appropriate, pursuant to its authority
                  under La. Rev. Stat. 15:178; and (2) to litigate expeditiously
                  the claims raised in that application, if filed in the state
                  courts.
                  AFFIRMED.
                  HUGHES, J., concurs with the result.
09/07/16


                           SUPREME COURT OF LOUISIANA

                                        No. 2014-KA-1980

                                   STATE OF LOUISIANA

                                             VERSUS

                                   MARCUS DONTE REED
                                           ON APPEAL
                 FROM THE FIRST JUDICIAL DISTRICT COURT,
                        FOR THE PARISH OF CADDO



KNOLL, J. 1

          This case is a direct criminal capital appeal of defendant’s conviction and

death sentence for the horrific murders of three unarmed young brothers. On

November 10, 2010, a Caddo Parish grand jury returned a three count indictment

against defendant, Marcus Donte Reed, charging him with the August 16, 2010

first-degree murders of Jeremiah Adams, Jarquis Adams, and Gene Adams in

violation of La. Rev. Stat. 14:30. Following five days of jury selection, defendant’s

guilt phase jury trial commenced on September 28, 2013. At the conclusion of the

guilt phase on October 1, 2013, the jury returned a verdict of guilty as charged on

all three counts. Following the penalty phase trial, the jury unanimously returned a

verdict of death, finding the defendant knowingly created a risk of death or great

bodily harm to more than one person. The trial court sentenced defendant to death

in accordance with the jury verdict and denied defendant’s motion for new trial on

January 21, 2014.

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

Marcus Donte Reed. Defendant appeals his conviction and sentence raising 50

assignments of error. We will address the most significant of these assigned errors

1
    Retired Judge Michael Kirby sitting ad hoc for Crichton, J., recused.
in this opinion, and the remaining assignments of error will be addressed in an

unpublished appendix. We have conducted a thorough review of the record, the

law, and the evidence and have found no reversible error. Accordingly, we affirm

defendant’s first-degree murder convictions and the imposition of the death

sentence.

                                        FACTS

      The victims in this case were three brothers. Jeremiah, the oldest of the

three, was a handsome 20-year-old, third-semester engineering student at Southern

University Shreveport. At 6 feet, 2 inches tall and weighing 205 pounds, Jeremiah

was an athlete. While he was in high school, he played football and basketball, and

he ran track. He was a father figure to his two younger brothers, Jarquis and Gene,

and was an active member of his church where he served as an assistant

superintendent, a choir member, and the leader of a little youth group. The day

before he died, Jeremiah attended a Sunday afternoon church picnic where he told

his great aunt, Clara Adams Morgan, about his plans to assume responsibility for

raising his younger brother, Gene, who loved horses and dreamed of being a

veterinarian one day. At that time, Gene was living in Shreveport with Bernice

Adams, the boys’ grandmother and the sister of Clara Morgan. Like the Adams

brothers, sisters Clara Morgan and Bernice Adams enjoyed a close relationship,

and each helped raise the boys since their births. Although Gene loved his

grandmother dearly, he wanted to move out to the country with his great aunt to be

with his two older brothers, Jeremiah and Jarquis. Jeremiah was determined to

make this dream come true for his little brother. However, as shown by the record

evidence, the defendant put an immediate end to all their dreams with his ambush-

style killing of the three brothers. On Monday, August 16, 2010, the evening

following Jeremiah’s heartfelt conversation with his Aunt Clara about Gene,

officers with the Caddo Parish Sheriff’s Office were dispatched to investigate the

                                        2
reported homicide of four individuals at a residence in a rural, heavily wooded

area of southwest Caddo Parish, outside Shreveport, Louisiana. There, officers

discovered the bullet-riddled bodies of Jeremiah and his younger brothers, Jarquis,

who was 18 years of age, and Gene, who had just turned 13 years of age about a

month before. Their bodies were found lying in Jeremiah’s silver Chevrolet Malibu

parked in the front yard of the home where defendant was residing. The windows

were completely shot out. Soon thereafter officers discovered a semi-automatic

rifle hidden under the front porch of the residence. 2

      At 10:28 p.m., officers were dispatched to the scene following a 9-1-1 call

received from James Hendrix. During the guilt phase of defendant’s trial, James

testified that, at the time of the homicides, he resided, along with his wife, his

daughter, and his grandson, across the street from the residence where the brothers’

bodies were found. Shortly after 10 p.m., James drove up to his driveway while he

was talking on his mobile phone. After exiting his vehicle, he noticed his

daughter’s boyfriend, Daniel Jackson, running up to the back of his van, “scared to

death and crying.” According to James, Daniel “had blood on his hands and a little

bit of blood on his clothing.” After asking Daniel some questions, James took

Daniel inside and locked him in the bathroom of the home so that Daniel could

clean himself and could hide. James then returned outside with his gun and called

9-1-1. The 9-1-1 calls, which were admitted into evidence at the guilt phase, reflect

James notified the authorities that Daniel had told him the defendant, Marcus

Reed, had killed four people, had “tried to make [Daniel] help him get them in the

car,” and had threatened to kill Daniel.

      Upon their arrival, officers questioned James and then went to the residence

across the street from James’ home. The scene the officers observed was


2
  The report prepared by Carla White, who was accepted at trial as an expert in firearm
identification, identifies this weapon as the “7.62X39mm Norinco rifle. model SKS. serial
number 25024161.”
                                           3
terrifically gruesome. Officer Matthew Cowden testified that he received the

dispatch at 10:28 p.m. and that he was one of the first officers to arrive at the crime

scene. Immediately, he noticed a black male hanging partially out of the driver’s

side rear door of a silver Chevrolet Malibu. He and two other officers held cover

on the house until other responding units arrived. Detective Keith Fox, who led the

investigation for the Caddo Parish Sheriff’s Office, testified that a stream of

gasoline and blood was flowing from the saturated ground around the vehicle

down the driveway. Detective Terry Richardson of the Caddo Parish Sheriff’s

Office also testified that, as he walked down the driveway closer to the scene, he

could smell “gasoline, automobile type fluids” and blood, and he observed “a large

amount of blood that was actually running in a stream . . . from the car down the

driveway towards the street.” Detective Richardson recalled that, as he walked

closer, he observed

      a gray car with one male partially inside and out of the rear driver’s
      door, and his clothes are pulled down as if he had been dragged either
      in or out. There’s another smaller male deceased in the back seat that
      had very apparent gunshot wounds. By that time the trunk had already
      been open to the gray car, and there was a third victim in the trunk.

The photographs admitted into evidence depicting the scene as officers observed it

upon their arrival show the male hanging out of the driver’s side rear door had a

bloodied white cloth covering his face, his genitals were exposed, his left shoe lay

on the ground next to his body, the other shoe was on his right foot, his feet alone

stretched inside the vehicle, and the rest of his body spread on the ground. At trial,

Detective Richardson testified the officers identified this man hanging out of the

driver’s side rear door as Jeremiah Adams. Detective Richardson testified Gene

Adams was identified as the “smaller male deceased in the back seat.” According

to Detective Richardson, Gene’s body “was still sitting somewhat upright, but he

was slumped over with just a massive wound down the side of his neck and his

face. Also there were fingers that were missing.” Indeed, one of Gene’s fingers

                                          4
was found in the rear dash next to the vehicle’s speakers and behind Gene’s head.

Although Detective Fox described the yard in which the homicides took place as

“very dark” at the time, Detective Richardson explicitly testified the silver

Chevrolet Malibu in which the brothers’ bodies were found was parked near a light

pole which provided enough light to see into the vehicle. Although he could not

give an opinion as to whether he could have seen inside the vehicle through its side

windows as the windows on the four doors “were all shot out,” Detective

Richardson said he could see Gene’s body looking through the vehicle’s

undamaged clear front and rear windows without the aid of additional light.

Detective Richardson testified Jarquis Adams was identified as the third victim

lying face down in the trunk.

      Dr. James Traylor conducted the autopsies of Jarquis and Gene. Dr. Traylor

testified Jarquis suffered two perforating gunshot wounds: (1) one from a bullet

that entered Jarquis’ upper right chest and exited his left upper back and (2) the

other from a bullet that entered Jarquis’ left forehead and exited the back of his

head in the right parietal region. According to Dr. Traylor, the pathology of

Jarquis’ forehead wound was consistent with a scenario in which Jarquis was

lying on the ground, motionless, while the person stood over him and shot him.

Soot found on Jarquis’ skin indicated to Dr. Traylor that the muzzle of the gun was

within six inches of Jarquis’ head when the bullet was fired. According to Dr.

Traylor, young Gene suffered wounds from as few as two gunshots to as many as

five gunshots. Specifically, Gene received a wound on the left side of his face and

wounds to his chest and to the left side of his neck. Gene also suffered a traumatic

amputation of his right index finger and wounds to his index finger and thumb on

his left hand. Dr. Traylor testified that it is possible Gene received these hand

injuries attempting to shield himself from oncoming bullets.

      Dr. Long Jin, who conducted the autopsy of Jeremiah, testified that Jeremiah

                                         5
suffered seven separate gunshot wounds, including: (1) a perforating wound that

entered from the back of Jeremiah’s head behind his left ear and exited the right

temporal bone of his skull, completely destroying his brain; (2) a penetrating

wound to the right neck that entered from the back of Jeremiah’s neck, struck his

right cheekbone, and lodged in the subcutaneous tissue of the right face; (3) a

perforating gunshot wound to the right clavicle that exited the right lateral back;

(4) a graze wound in his right flank; (5) a penetrating wound from a bullet that

entered in Jeremiah’s right lower back and lodged in his right chest wall; (6) a

graze wound in his right mid back; and (7) a graze wound in his right lower back.

Jeremiah also suffered chemical burns from gasoline contact on the back side of

his body, on the posterior aspect of his extremities, and on his left lower leg, which

caused the skin in these areas to “slough off.”

      Notably, although Dr. Traylor testified that Jarquis had marijuana in his

system, in addition to some other prescription drugs, Dr. Traylor and Dr. Jin

confirmed that toxicology reports showed neither 13-year-old Gene nor 20-year-

old Jeremiah had any intoxicating substances in his system. There was “nothing”

in their blood.

      Lead investigator Detective Fox managed a fast-paced evolving situation

immediately following the shootings, gathering evidence at the scene even as

officers diligently scoured the rural, heavily wooded area around the crime scene

for a potential fourth victim and attempted to identify and to capture the suspect

responsible for the carnage. As Detective Fox testified, “It was perpetual motion

trying to coordinate where to go first, who to send where.” Detective Richardson

agreed that it was a dangerous scene and a situation in flux, as officers searched for

a fourth individual and an assailant: “Didn’t know if someone may have been

injured, ran into the woods somewhere.” Detective Richardson testified it was not

until “some days later or at least a day later” that officers determined as part of the

                                          6
investigation that there was not a fourth victim. Meanwhile, members of the Caddo

Parish Sherriff’s Office Crime Scene Unit, led by Sergeant Gary Baird,

meticulously collected evidence in and around the property where the killings

occurred, including a semi-automatic rifle hidden beneath the north corner of the

porch of the residence and a tank top with suspected blood on it that was found

inside of an old abandoned school bus parked in the woods on the same side of the

house as the place where officers recovered the rifle. At trial, Audra Williams, who

was accepted as an expert in the field of DNA analysis, explained the results of a

comparison she performed between a known DNA sample from Jeremiah Adams

and samples from blood stained portions of the tank top. After obtaining DNA

profiles from these samples, Ms. Williams testified the DNA profile obtained from

the testing areas on the tank top “was consistent with being a mixture [of DNA

from at least two individuals]; one major contributor and at least one minor

[contributor].” Ms. Williams determined that the probability that the major

contributor of that DNA on the tank top had come from a randomly selected

individual other than Jeremiah Adams was one in 533 quadrillion.

       Sergeant Baird testified his officers searched the area around the silver

Malibu for evidence of ammunition and for weapons. Although a .45 caliber

semiautomatic pistol was recovered in the tree line behind the residence, no spent

handgun ammunition was found anywhere around the brothers’ vehicle or on the

porch of the residence. 3 The only ballistics evidence officers recovered around the

silver Chevrolet Malibu were several projectiles and shell casings from

ammunition of the type commonly fired from a semi-automatic rifle of the kind

found hidden under the porch of the Jackson residence. Indeed, Carla White, who


3
   Several weapons were recovered in the residence and around the property, including a
“handgun revolver” that was found between the mattresses in the room defendant shared with his
girlfriend and handgun found underneath the back seat of a black vehicle, belonging to the
defendant and his girlfriend, that was parked in the driveway. There was no evidence these
firearms were used in the shooting.
                                              7
was accepted as an expert in the field of firearms identification, testified she

positively determined that some of the shell casings and projectiles were fired by

the rifle found hidden under the porch, while other projectiles and shell casings she

tested had the same class characteristics as other ammunition fired by the hidden

semi-automatic rifle. 4 Notably, Ms. White also positively matched two bullets and

one bullet jacket recovered during the victims’ autopsies to this hidden rifle. After

executing a search warrant of the residence, officers found, soaking in the bathtub,

a pair of yellow plaid shorts. Inside the pocket of these yellow plaid shorts, officers

found a latex glove.

       Officers identified Marcus Reed as a suspect very quickly, as the first

information law enforcement received about this incident from James Hendrix

included the report that Marcus Reed was the perpetrator of the shooting. Although

officers did not observe defendant on the scene at the time of their arrival, they

quickly learned from numerous individuals that Marcus lived, at least

intermittently, at the residence where the homicides occurred along with his

girlfriend, Loshun Jackson, her two children, and her brother, Daniel. Based on

information obtained the morning after the shooting from defendant’s cousin,

Brian Wafer, officers were able to place defendant at the Jackson residence crime

scene during the critical time when they believed the shooting occurred. Brian

admitted receiving a call at 10:23 p.m. from defendant’s brother, David Reed,

telling him to go pick up the defendant at the home of defendant’s girlfriend,

Loshun Jackson. At trial, Brian testified he picked the defendant up on the corner

near the Jackson residence and recalled seeing police cars toward the house. Brian

testified at trial that when defendant entered his vehicle, defendant told him that

“he’s trying to leave the streets alone and they keep drawing him back in.” Brian

4
   According to Ms. White, “When I say same class characteristics it means it has a lot of the
same type of markings, but I cannot say that it is an identification or it is a match back to the gun
. . . . It does not mean that it was fired from this gun and it does not mean that it was not fired
from this gun. So it just means it has the same class characteristics as the barrel of this gun.”
                                                 8
also reluctantly admitted telling police, the morning after the homicides, that

defendant “acted like he was excited” when Brian picked him up on the corner

near the crime scene at the Jackson residence that evening. As part of defendant’s

arrest and booking, Detective Richardson secured the personal effects defendant

was wearing on his person at the time of his arrest, including a pair of plaid boxer

shorts with suspected blood stains on them. At trial, DNA analysis expert Audra

Williams testified she performed a comparison between a known DNA sample

from Jeremiah Adams and samples from the blood stained portions of defendant’s

boxer shorts. After obtaining DNA profiles from these samples, Ms. Williams

testified the DNA profile obtained from the testing areas on the boxer shorts “was

consistent with being a mixture of DNA from at least two individuals; one major

and at least one minor contributor.” Ms. Williams determined the probability that

the major contributor of that DNA on defendant’s boxer shorts had come from a

randomly selected individual other than Jeremiah Adams was one in 533

quadrillion.

      During the guilt phase, defendant asserted a justifiable homicide defense,

arguing Jarquis had burglarized the Jackson residence earlier in the day and

planned to return that evening to take more things. In support of this theory,

defendant called Kyle King, one of two witnesses presented in defendant’s guilt

phase case-in-chief, who testified he and Jarquis went to the Jackson residence to

buy marijuana from the defendant. After the two arrived, Jarquis exited Kyle’s

vehicle and came back about five minutes later to confer with Kyle. Kyle then

drove his vehicle all the way down the driveway to the house and turned it around

so it was ready “to leave out.” They then entered the house together. While Jarquis

“went into the back part of the house,” Kyle stayed in the living room and seized

two amps and an Xbox 360 game system. Kyle testified that, after he and Jarquis

left the home around 12:00 p.m. or 12:30 p.m., Jarquis told Kyle “he wanted to go

                                         9
back to the house to get some stuff he should have got the first time [they were]

there.” After this incident, Kyle admitted he and Jarquis spent the rest of the

afternoon at his aunt’s house “trying to get rid of the stolen stuff.” When he left his

aunt’s house around 4:30 p.m., it was the last time he saw Jarquis.

       There was little factual dispute at trial on this score. Every one of the fact

witnesses the State offered who spoke to the defendant before the killings or who

was present at the Jackson residence that evening testified they learned prior to the

homicides that someone had broken into the Jackson residence that day. Indeed,

Daniel Jackson, who lived at the residence with the defendant, and Bridgette

Garland, who spent that evening at the residence, both testified the thief or thieves

had stolen marijuana from the Jackson residence, as well.

       Among the twenty-one witnesses the State presented during the guilt phase

were two eyewitnesses, Daniel Jackson and Shannon Garland. 5 Daniel Jackson

lived at the Jackson residence with his sister Loshun, the defendant, and Loshun’s

two children. It was Daniel’s frantic report of the killings to James Hendrix that

precipitated the 9-1-1 call that dispatched officers to the Jackson residence. At

trial, Daniel recalled that, when the defendant initially learned about the theft from

his home, defendant and Loshun confronted Daniel and accused Daniel of stealing

the items. Eventually, they accepted that he did not steal the items. When asked

whether defendant made any effort to try to find out who did steal the items,

Daniel responded, “He made some calls to my cousin and my grandma [sic]

house,” though Daniel was not exactly certain to whom defendant spoke or what he

said. Daniel perceived that defendant was angry about the theft “[c]ause he was

pacing around on the phone like – you could just tell he was hot about his stuff

came [sic] up missing.” That evening, Daniel testified, the only individuals who


5
  This summation of the facts does not detail the testimony of every one of the State’s witnesses.
Rather, we focus solely on those witnesses whose testimonies we believe were most critical to
the jury’s determination that defendant was guilty of three counts of first-degree murder.
                                               10
remained at the Jackson residence were Loshun, the defendant, Daniel’s friend

Shannon Garland, and Shannon’s wife, Bridgette Garland. Before the shooting, as

it was getting dark, Daniel overheard the defendant call an unknown person and

say, “You need to come home and get your package cause I’m fixing to go.”

According to Daniel, this conversation was heated and, during its course,

defendant asked the unknown person whether “he see anybody over here earlier

that day.” Daniel testified that sometime thereafter he was outside working on the

sound system in his car with Shannon. Loshun and Bridgette left in Shannon’s

truck to go buy some beer and, as they pulled out of the driveway, Shannon

realized he had forgotten to give them money for the beer so he ran down the

driveway and tried to chase the truck. According to Daniel, Shannon had returned

to his side and was helping him with the sound system in his trunk when a gray car

pulled up into the driveway. Although it was dark, Daniel confirmed that the light

pole in the yard provided enough light for him to see. Daniel testified that a man,

who Daniel later learned to be Jarquis, “hopped out” of the front passenger side of

the gray car and said, “Where Marc at?” According to Daniel, defendant said,

“hey,” and then started shooting from the woods with a long rifle at the man.

Daniel identified the semi-automatic rifle officers recovered hidden under the

porch as the firearm defendant used, and he specifically recalled that defendant

was wearing latex gloves—like the one found in the pocket of the yellow plaid

shorts soaking in the Jackson residence bathtub—when he emerged from the

woods shooting. Daniel testified he never saw Jarquis with a weapon, never saw

Jarquis motion toward the defendant like he was going to attack him, and never

saw Jarquis threaten the defendant with words. Although Daniel specifically

remembered defendant shot Jarquis “[t]wice in all,” he could not determine how

many times defendant fired the semi-automatic rifle into the gray vehicle. After the

defendant shot Jarquis the first time,

                                         11
         He walked up to the car and, from the passenger – passenger side back
         seat, shot into the window; walked around and shot into the other
         window. Walked around the car shooting.

(Emphasis added). Daniel testified the defendant was aiming the rifle with each

shot. According to Daniel, after circling the vehicle, the defendant came back

around to the front of the vehicle where Jarquis was laying on his back motionless

and shot Jarquis in the forehead. Thereafter, Daniel testified, defendant “pointed

the gun at me and Shannon and wanted us to put – help him with the persons,

putting them back in the car.” Daniel recalled that defendant declared “[they] better

help him move it or [they] were going to be next.” Although he explicitly denied

helping to move a body into the trunk, Daniel testified that he and Shannon then

helped move the body of “[t]he one that was leaning out the…left side back seat”

of the gray vehicle. (Emphasis added). According to Daniel, Jeremiah’s body was

“so big,” even Daniel, Shannon, and the defendant together were unable to move it

out of the vehicle. Significantly, Dr. Jin, who performed Jeremiah’s autopsy,

corroborated this fact, testifying that Jeremiah was six feet, two inches tall and

weighed 205 pounds at the time of his death. In the process of trying to move

Jeremiah’s body, Daniel testified he got blood on his person, his clothes, and his

shoes.

         On cross-examination, defense counsel elicited testimony from Daniel that

he saw two bodies in the back seat, that he never saw anyone exit the driver’s side

front seat, and that he did not see where the person in the front seat went. Daniel

also denied helping to move Jarquis’ body into the trunk and testified he did not

know who placed Jarquis’ body in the trunk. At times, Daniel’s testimony was

internally inconsistent. On his first day of testimony, Daniel testified on direct

examination that he did not see what defendant did with the rifle and that

defendant “kept it with him when the shooting stopped.” On cross-examination the

next day, Daniel testified that, when James Hendrix pulled into the driveway

                                          12
across the street, defendant “put the gun down and ran.” At this point, Daniel ran

toward James, who made the initial 9-1-1 report. Defense counsel cross-examined

Daniel vigorously on various inconsistencies between the statements Daniel

initially gave to officers and his testimony before the court, including his original

statement that he was inside his car listening to music when the shooting happened.

Although Daniel acknowledged that he initially reported to police that four people

had been in the car, Daniel explained that he could not tell how many people were

in the gray vehicle when it pulled into the driveway. He also testified that he told

James that four individuals had been killed because, when he did not see Shannon

run away at the same time that he did, he thought the defendant had shot Shannon.

Finally, defense counsel cross-examined Daniel thoroughly on Daniel’s initial

failure to reveal to police that Shannon was present when the homicides occurred.

Daniel admitted that he was untruthful with the officers that night because he was

“scared”: “Three people got killed right in front of me.” Elsewhere in his

testimony, Daniel explained he did not tell officers everything he knew that

evening: “I was scared and I thinking [sic] that [defendant] was going to try to

come and finish me and Shannon.”

      The trial testimony of the second eyewitness, Shannon Garland,

corroborated Daniel’s testimony in all significant respects related to defendant’s

actions before, during, and after the shooting. According to Shannon, when

Bridgette and Loshun left together in Shannon’s truck to buy beer, Shannon chased

the truck down the driveway to the road because he had left his can of tobacco in

the truck. When Shannon reached the road, he noticed a car coming. Shannon

testified this car pulled into the driveway, and he began walking up the driveway

behind the vehicle. Shannon recalled that he watched as a man exited the front

passenger side of the vehicle. Shannon testified that this man who did not look

threatening or seem upset “just walked towards me and started talking, wanted to

                                         13
talk to me.” When asked whether he remembered if the man said anything,

Shannon responded, “He never got it out . . . . That’s when Marcus shot him.”

According to Shannon, the defendant emerged from the woods, shot the man, and

said, “I got you.” Shannon identified the semi-automatic rifle officers recovered

hidden under the front porch as the firearm defendant used in the shooting.

Shannon also testified that defendant wore “some plaided, some colorful shorts” at

the time of the shooting. When shown a picture of the yellow plaid shorts officers

found soaking in the bathroom of the Jackson residence with a latex glove in its

pocket, Shannon positively identified those shorts as the ones defendant wore that

night. Shannon recalled, “When [the defendant] shot [the front passenger], [the

front passenger] held his arms out and went to put his arms on my shoulder. And

he wanted to say something, but he couldn’t say nothing. It wouldn’t come out.”

The defendant then “walked around the car shooting the car . . . . kind of like a

video game.” Like Daniel, Shannon testified that defendant “started at the back of

the car and he walked around it clockwise shooting it up.” (Emphasis added.)

Shooting into the windows, defendant fired “[t]oo many [bullets] to count.” After

making his way around the front driver’s side, defendant shot the front passenger,

the initial victim, again while the victim lay on the ground. According to Shannon,

defendant shot the front passenger three times: first, in the back, while Shannon

was standing directly in front of the victim; second, in the chest, while the victim

lay on the ground; and third, in the head, while the victim lay on the ground.

      Although he remembered that Daniel was “standing there on the steps”

during the shooting, Shannon testified he was focused on the defendant and that he

was not able to tell what Daniel was doing at the time because he was scared: “I

didn’t know if he was going to shoot me or not.” According to Shannon, defendant

then “had the gun in his hand and he told us – he pointed the gun over at us and

said put the body in the trunk.” Unlike Daniel, who only testified to attempting and

                                         14
failing to move Jeremiah’s body which officers found hanging out of the driver’s

side rear door, Shannon remembered complying with defendant’s order that he and

Daniel move the body of the man who was shot first and last—that is, Jarquis’

body—into the trunk, where officers later found it. According to Shannon,

defendant then pulled the driver’s body out of the front driver’s seat and told

Daniel and Shannon to “try to pick him up and put him in the trunk.” Consistent

with the testimony provided by Daniel and by Dr. Jin, Shannon testified that he

and Daniel tried to pick Jeremiah’s body up, but it was too heavy. Shannon

specifically recalled the man’s pants “com[ing] down” as they tried to pull his

body. Significantly, this description of Jeremiah’s body corresponds to the

condition in which officers discovered the body when they arrived at the scene.

Shannon testified that defendant then went up on the steps of the house and that

Daniel, who was “[a]cting scared,” ran away when he saw Marcus ascended the

steps: “He took off running and left me standing there.” When Shannon realized

defendant had gone into the house and left him standing there alone, Shannon

“seen a chance” and ran home. Shannon testified that when he arrived at his home,

he locked himself in his bedroom: “I laid there and cried, scared. Didn’t know

what to say, didn’t know what to do. Didn’t want to talk to nobody.” Although

Shannon acknowledged he initially told police officers there were four to five

individuals in the gray car when it pulled up to the Jackson residence, Shannon

explained,

      I was confused at the time. There was a lot going on. I didn’t
      remember exactly. I didn’t know everything at the time . . . . I was so
      scared. I mean I didn’t know what to say. I was so scared. I mean, I
      didn’t know everything at the time.

During a vigorous cross-examination, Shannon testified he did not remember

telling officers that “there were a bunch of people there” at the time of the shooting

or that he did not make it up the driveway before the shooting began. Even when


                                         15
speaking with officers, Shannon maintained he remained frightened: “I didn’t

know if – I didn’t know if Marcus was going to come back and get us or not at the

time. I didn’t know what – if he was still out or if he was still walking free.”

      The only testimony offered that cast any doubt on the essential facts to

which Daniel and Shannon testified came from a witness who admittedly did not

see any of the events as they transpired. Clarence Powell, Loshun Jackson’s

cousin, testified that, on the evening of the homicides, he was visiting his parents’

home, located about 20 yards from the Jackson residence. Clarence testified he was

moving back and forth between his parents’ porch and the kitchen of their home

when he heard a confrontation and then, within a minute or two later, gunshots

from two different guns, first from a handgun and then from a rifle. Because

Clarence was reluctant to use profanity in front of the jury, defense counsel,

Richard Goorley, read to the jury the statement Clarence made to officers the day

after the shooting about the confrontation he allegedly heard:

      Q. Talking about the car drove up.

      A. Uh-huh.

      Q. And you said, I heard him say – that’s Marcus, right –

      A. Yes.

      Q. – I told you don’t come down here. Don’t fuck with me. Don’t
      fuck with me. And then somebody else, a voice I don’t recognize,
      Motherfucker, I told you, I told you, you ain’t shit. You ain’t shit. And
      then I heard a man say, Get the fuck away from here; I’m telling y’all
      I’m telling y’all just leave me alone.

      That was Marcus, right –

      A. Yes.

      Q. – said leave me alone. It was the other guy saying, You ain’t shit,
      right?

      A. Yes.

      Q. Mr. Reed turned to walk off. The guy says, Don’t turn your back
      on me, you bitch ass nigger. Marcus says, Man, I told you don’t come

                                          16
      to my house. Don’t come to my house. I beg don’t come to my house.

             And then later you said, Mr. Reed said I told y’all, I’m telling
      y’all. And the guy, Don’t turn your back on me here, you punk ass
      nigger, you punk ass nigger.

            That was the other person talking to Mr. Reed, right?

      A. Right.

      Q. Don’t turn your back on me.

      A. Yes.

      Q. Then you heard someone say gun?

      A. Yes.

      Q. And then you heard two pistol shots and a bunch of rifle shots?

      A. I don’t know how many pistol shots. I just heard a pistol and a
      rifle.

Although Clarence insisted he heard the reports of two different types of firearms,

officers found no evidence—no spent shell casings from a semiautomatic handgun,

no weapons in the Adams brothers’ vehicle, no revolver to which someone in the

gray vehicle may have had access—that any firearm other than the semi-automatic

rifle identified by Shannon and Daniel and hidden under the front porch of the

Jackson residence was used in the shooting. Aside from the absence of physical

evidence to support Clarence’s version of events, the jury had other reasons to

doubt Clarence’s credibility. Indeed, concerning the confrontation Clarence

allegedly heard, the State impeached Clarence with a later statement Clarence gave

to police officers. Officers asked Clarence, “Do you hear any yelling, screaming,

or just nothing but the sound of gunshots?” Clarence responded, “[A]ll I heard

before the gunshots, people talking.” Moreover, although Clarence testified at trial

that defendant was “[n]owhere near” the abandoned school bus in the woods in

which officers later found the tank top stained with Jeremiah’s blood, the State

impeached Clarence with his prior statement to officers that defendant “came out


                                        17
of the woods by the bus” wearing “bright yellow” shorts. The State also elicited

testimony from Clarence that he worked out of state, that his mother still lived next

door to the Jackson residence, and that he worried about her safety and the safety

of his brother and his sister.

      The testimony of other witnesses who were present at the Jackson residence

prior to the shootings also corroborated the version of events described by Daniel

and Shannon. Shannon Garland’s then-wife, Bridgette Garland, was also present at

the Jackson residence on the night of the homicides. At trial, Bridgette testified she

remembered defendant saying that someone had taken an amplifier, an Xbox, and

marijuana from the Jackson residence. Bridgette recalled defendant was making

phone calls in an effort to try to determine who had stolen his things. Bridgette

remembered overhearing a phone call in which defendant told a person whose

nickname was “Radio” “to come back over, that he had a package for them to

come pick up and get here before he ran out.” By “package,” Bridgette understood

that defendant was referring to marijuana. Bridgette testified that, after this

conversation ended, defendant spoke about the burglars and “said that whenever

they come . . . he was going to kill them and whoever was with them; he didn’t

care.” Bridgette recalled defendant went into the house and brought back onto the

porch a “long black [gun] and it had like a round clip from the bottom.” Bridgette

positively identified the rifle officers had found hidden under the porch as the gun

defendant had with him. Bridgette also testified that defendant brought out white

latex gloves from the house and that she watched defendant put these gloves on his

hands. Bridgette further confirmed the glove found in the pocket of the yellow

plaid shorts soaking in the bathroom of the Jackson residence was the same type of

glove she saw defendant wearing that evening. After putting the gloves on his

hands, defendant “walked around in the yard” and then later “hid in the woods”

with the gun. Bridgette described defendant’s demeanor at this point as “angry.”

                                         18
Shortly thereafter, Bridgette left the house—on the pretext of purchasing more beer

with defendant’s girlfriend, Loshun—because she was “scared” of the defendant:

“His anger, he was hostile, and he was talking about killing people, so I wanted to

get out of there.” By the time Loshun and Bridgette left the Jackson residence,

defendant had come out of the woods but he no longer had the rifle with him.

Bridgette testified that, after purchasing beer, her truck ran out of gas on the way

back to the Jackson residence, and she and Loshun started walking on foot back

toward the house. Bridgette recalled that, during this trek, she received a call on

her cell phone from defendant who asked to speak to Loshun. Because her phone

would only work on speaker phone at the time, Bridgette clearly overheard

defendant tell Loshun that “he needed help getting all the bodies out of his yard.”

Like Daniel and Shannon, after a vigorous cross-examination by defense counsel,

Bridgette admitted that initially she was not completely truthful in her statements

to officers or in her grand jury testimony because she was afraid for her life.

Bridgette further testified defendant’s brother, David Reed, called about a week

after the shooting, threatening he would “blow up [hers and Shannon’s] house” if

she and Shannon testified against the defendant. Significantly, Bridgette’s

statement received independent corroboration through the guilt phase testimony of

Corporal Dexter White. Indeed, during Bridgette’s testimony, she related that,

while she and Loshun walked home, a police officer saw them, stopped his vehicle,

and offered them a ride home. The women accepted his offer and directed him to

take them to Bridgette’s house. The deputy told them he could not take them all the

way to their destination because “an incident happened and he had to get to it

immediately.” Bridgette testified he dropped them off at “Pecan Road.” According

to Bridgette, while she and Loshun were in the police vehicle, she heard over the

police radio that there had been a shooting in the vicinity of the Jackson residence.

At trial, Corporal White testified, that just prior to his arrival at the crime scene, he

                                           19
observed two women as they walked down the road. The women explained to him

that their truck had broken down, and he dropped them off at “Pecan Farms”

before he proceeded to the crime scene.

      After hearing this testimony along with the testimony of several other

witnesses and considering all of the evidence, a unanimous jury found defendant

guilty of the first-degree murders of Jeremiah, Jarquis, and Gene Adams and

determined defendant should be sentenced to death as punishment for these crimes.

      Having carefully studied the entire record, we note the evidence of the

homicide is not seriously in dispute. The dispositive issue turns purely on a

credibility determination—was the defendant justified in killing the three brothers.

The defendant rests primarily on the inconsistencies between the witnesses’

statements to law enforcement officers and their testimonies at trial to support his

argument of insufficient evidence to prove he was not justified in killing Jeremiah,

Jarquis, and Gene Adams. As will be detailed below, we have carefully examined

all of defendant’s assignments of error and find them meritless.

                              ASSIGNMENTS OF ERROR

Sufficiency of the Evidence

                              Assignment of Error 36

      Defendant argues the State presented insufficient evidence to support a

conviction for first-degree murder and the imposition of a death sentence.

Specifically, defendant contends (1) the State presented insufficient evidence to

prove beyond a reasonable doubt that the homicides were not justified; (2) the

State’s evidence was insufficient to support a verdict of first-degree murder; and

(3) the unreliability of the State’s witnesses precludes a conviction for first-degree

murder and the imposition of the death penalty.

      In reviewing the sufficiency of the evidence to support a conviction, an

appellate court in Louisiana is controlled by the standard enunciated by the United

                                          20
States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). State v. Captville, 448 So.2d 676, 678 (La. 1984). Applying

the Jackson standard, the appellate court must determine the evidence, viewed in

the light most favorable to the prosecution, was sufficient to convince a rational

trier of fact that all of the elements of the crime had been proved beyond a

reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Captville, 448 So.2d

at 678.

       To obtain a conviction for first-degree murder in this case, the State was

required to prove beyond a reasonable doubt that defendant killed a human being

when he had the specific intent to kill or to inflict great bodily harm upon more

than one person. La. Rev. Stat. 14:30(A)(3). Specific intent may be inferred from

the circumstances surrounding the offense and the conduct of the defendant. La.

Rev. Stat. 14:10(1); State v. Butler, 322 So.2d 189, 192-93 (La. 1975). Specific

intent to kill may also be inferred from a defendant’s act of pointing a gun and

firing at a person. State v. Williams, 383 So.2d 369, 373 (La. 1980); State v.

Procell, 365 So.2d 484, 492 (La. 1978).

       As to the issue of justifiable homicide, when the defendant asserts he acted

in self-defense, the State bears the burden of establishing beyond a reasonable

doubt that the defendant did not act in self-defense. State v. Taylor, 02-1834, p. 7

(La. 5/25/04), 875 So.2d 58, 63; State v. Brown, 414 So.2d 726, 728 (La. 1982). A

homicide is justifiable “[w]hen committed in self-defense by one who reasonably

believes that he is in imminent danger of losing his life or receiving great bodily

harm and that the killing is necessary to save himself from that danger.” La. Rev.

Stat. 14:20(A)(1); State v. Guinn, 319 So.2d 407, 408-09 (La. 1975). 6 However, an

aggressor may not claim self-defense without showing he first withdrew from the

conflict in good faith and in such a manner that his adversary knew or should have
6
 Because defendant only requested jury instructions under La. Rev. Stat. 14:20(A)(1), we do not
address La. Rev. Stat. 14:20(A)(2) and (3) (the “stand your ground” defenses).
                                              21
known of his intention to withdraw and discontinue the conflict. See La. Rev. Stat.

14:21.

         Although defendant admits there was “clearly” sufficient evidence that he

shot Jeremiah, Jarquis, and Gene, defendant contends there was not sufficient

evidence to prove beyond a reasonable doubt that the killings were not justified.

We disagree. The eyewitness testimony of Daniel Jackson and Shannon Garland

established defendant emerged from the darkness of the woods shooting at Jarquis,

who was not carrying a weapon and who did not threaten or attack the defendant.

Indeed, based on the eyewitness testimony, at most, Jarquis was able to inquire,

“Where Marc at?” before the defendant began shooting at him. Both Daniel and

Shannon testified defendant then proceeded clockwise around the vehicle, shooting

out the windows in the process, as he savagely and without provocation killed 13-

year-old Gene and oldest brother Jeremiah before completing his circuit by again

shooting a motionless Jarquis in the head as he lay on the ground. Daniel’s

testimony that defendant was wearing latex gloves while he shot the three

victims—corroborated by Bridgette Garland’s testimony that she saw defendant

put on latex gloves before walking off into the woods with the semi-automatic rifle

he used to kill the brothers and by the officers’ recovery of a latex glove inside the

pocket of the shorts multiple witnesses testified the defendant was wearing at the

time of the homicides, found soaking in a bathtub in the residence where defendant

lived—leads to the inevitable conclusion that defendant’s decision to kill Jarquis

Adams and “whoever was with [him]” was premeditated and cold-blooded.

Daniel’s and Bridgette’s testimony that defendant made phone calls during that

afternoon in an attempt to identify the perpetrator of the burglary and Bridgette’s

testimony defendant ended a phone call directing a person to come over to pick up

a “package” and then expressed to Bridgette his desire to “kill them and whoever

was with them” further buttress this conclusion, as does the evidence the State

                                         22
presented that defendant tried to conceal the murder weapon, hide the victims’

bodies, and destroy additional evidence by washing his clothing before ultimately

fleeing the bloodied killing scene.

      Defendant relies heavily on the testimonies of Kyle King and Clarence

Powell to support his argument that Jarquis returned to the Jackson residence to

steal more items and that defendant acted based on a reasonable belief that he was

in imminent danger. The jury, however, evidently made a credibility determination

and rejected defendant’s theory of justifiable homicide. Indeed, contrary to

Clarence Powell’s testimony that he heard the report of a handgun followed by

several rifle gunshots, no evidence was ever found to support the theory that

someone in the Adams brothers’ vehicle fired a handgun at defendant that

evening. Eyewitnesses denied seeing any weapons other than the semi-automatic

rifle wielded by the defendant, and crime scene investigators did not find any

handgun or handgun ammunition in or around the brothers’ vehicle. Even

excluding the ample testimony of fact witnesses, we find the autopsy results—

including (1) Dr. Traylor’s testimony concerning the defensive wounds to Gene’s

hands and the pathology of the wound to Jarquis’ forehead which was consistent

with the eyewitness testimony that defendant shot Jarquis in the head at close range

as he lay on the ground motionless after already having been shot in the chest and

(2) Dr. Jin’s testimony that three of Jeremiah’s wounds entered through the back of

his body—preclude any reasonable inference defendant acted in self-defense when

he killed the Adams brothers. Based upon the copious testimony and evidence

presented by the State, a rational trier of fact could have soundly concluded that

defendant did not have a reasonable fear for his life. This claim is meritless.

                                  Assignment of Error 37

      In a similar vein, defendant argues, even if the jury rejected the testimony of

Clarence Powell and Kyle King and accepted the testimony of Daniel Jackson and

                                          23
Shannon Garland, the evidence presented at trial made out a case for manslaughter,

not murder. We disagree. Under La. Rev. Stat. 14:31(A)(1), manslaughter is a

homicide which would either be first or second degree murder but the offense is

committed in sudden passion or heat of blood immediately caused by provocation

sufficient to deprive an average person of his cool reflection and self-control. The

elements of “sudden passion” and “heat of blood” are mitigating factors in the

nature of a defense and, when such factors are established by a preponderance of

the evidence, a verdict for murder is inappropriate. La. Rev. Stat. 14:31(A)(1);

State v. Lombard, 486 So.2d 106, 110-11 (La. 1986); State v. Tompkins, 403 So.2d

644, 648 (La. 1981). Provocation and time for cooling off are questions for the jury

to be determined under the standard of the average or ordinary person, one with

ordinary self-control. See Reporter’s Comment to La. Rev. Stat. 14:31; State v.

Walker, 50 La. Ann. 420, 422, 23 So. 967 (1898).

      Although Daniel and Shannon both testified about how quickly the shooting

itself occurred, the testimony established that almost 10 hours elapsed between the

burglary and the shooting. While the defendant had a significant amount of time to

cool off prior to the homicides, the evidence established defendant spent this

period of time attempting to identify the burglars and preparing to exact his

revenge by ambush. Daniel Jackson’s eyewitness testimony that defendant was

wearing latex gloves at the time of the shooting, Bridgette Garland’s testimony that

she saw defendant don latex gloves before entering the woods with the semi-

automatic rifle, and the recovery of a latex glove in the shorts witnesses say

defendant wore that evening further support the jury’s conclusion that defendant

acted not in the heat of “sudden passion,” but in cold blood. Although Clarence

Powell’s testimony about what he allegedly heard could have suggested some kind

of confrontation occurred prior to the shooting, the jury evidently chose to credit

the eyewitness testimony of Daniel Jackson and Shannon Garland who testified,

                                        24
consistent with the physical evidence, that the victims were unarmed and that they

did not exhibit any provocative or aggressive action toward defendant. A rational

trier of fact could have soundly concluded defendant failed to establish the

requisite mitigating factors by a preponderance of the evidence to prove

manslaughter. This claim fails.

                                  Assignment of Error 38

      In his final assignment of error related to the sufficiency of the evidence,

defendant argues the unreliability of the State’s witnesses precludes a conviction

for first-degree murder and the imposition of the death penalty. First, defendant

points to several inconsistencies in Shannon Garland’s and Daniel Jackson’s

testimonies. Essentially, Shannon’s account of events diverges from Daniel’s

account with respect to where in the yard he and Daniel were situated at the time

of the shooting. Likewise, Daniel provides a different account as to where

precisely he and Shannon stood at the time of the homicides. Significantly,

however, both men provide substantially the same account of defendant’s actions

at the time of the homicides. Indeed, both men recall defendant emerging from the

darkness of the woods and shooting an unarmed, unthreatening Jarquis. Both men

testified defendant then walked clockwise around the vehicle beginning with the

back passenger side, shooting out the windows and killing the other two brothers in

the vehicle. Consistent with the autopsy results, both witnesses reported that

defendant shot a motionless Jarquis in the head as he lay on the ground, after

defendant had already shot him in the chest. Given how quickly the shootings

occurred and how intensely violent they were, it is of little surprise and of less

significance that Daniel and Shannon had difficulty remembering the precise

vantage point from which they witnessed this sudden, violent, and unprovoked

carnage.

      Defendant also argues Shannon’s testimony could not be credited because

                                         25
Shannon testified defendant first shot Jarquis in the back as Jarquis stood directly

in front of Shannon, yet autopsy results show Jarquis was shot in the upper right

chest. Although Dr. Traylor testified Jarquis was not shot in the back, he also

testified, based upon the angle at which the bullet entered the victim’s upper right

chest, he could not exclude the possibility that Jarquis was shot as he turned to his

right to face the muzzle end of the weapon. Given this testimony, we find the

autopsy results do not necessarily contradict Shannon’s testimony.

      Defendant next contends no rational juror could credit the testimony of

Shannon Garland, Daniel Jackson, and Bridgette Garland given inconsistencies

between their trial testimony and various pre-trial statements they made to officers

and to the grand jury. Defense counsel thoroughly and vigorously cross-examined

these witnesses and fully explored for jurors the inconsistences in their prior

statements and testimony. Specifically, concerning the possibility of a fourth

victim, Shannon and Daniel both admitted they initially informed police that more

than three people were in the vehicle. Shannon testified to being confused and

scared during his questioning following the shooting. Multiple witnesses testified

to Daniel’s hysterical demeanor after the homicides, with Detective Cowden, one

of the first officers on the scene, describing Daniel as “very afraid, very scared . . .

very disturbed, very upset.” Daniel testified his report that four individuals were

killed was based on his fear defendant had killed Shannon, as well. Notably, all

three of these witnesses testified to their fear of retribution from the defendant or

from his family if they told officers everything they knew, with Bridgette

specifically alleging she received a phone call from defendant’s brother who

threatened he would “blow up [hers and Shannon’s] house” if she testified against

the defendant. Notwithstanding the discrepancies clearly brought out through

cross-examination, the inconsistences did little to discredit their testimony at trial

about defendant’s motive, preparation, and execution of these three killings. When

                                          26
there is conflicting testimony as to factual matters, the resolution of which depends

on witness credibility, a matter of weight of evidence rather than its sufficiency is

presented. Tibbs v. Florida, 457 U.S. 31, 46, 102 S.Ct. 2211, 2220-21, 72 L.Ed.2d

652 (1982) (“This resolution of conflicting testimony in a manner contrary to the

jury’s verdict is a hallmark of review based on evidentiary weight, not evidentiary

sufficiency.”). In the absence of internal contradiction or irreconcilable conflict

with the physical evidence, one witness’s testimony, if believed by the trier of fact,

is sufficient to support a factual conclusion. State v. Higgins, 03-1980, p. 6 (La.

4/1/05), 898 So.2d 1219, 1226. Credibility determinations are within the sound

discretion of the trier of fact and will not be disturbed unless clearly contrary to the

evidence. State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369. In

this case, there were inconsistencies among the testimonies of various witnesses

regarding factual matters, so the issue was the weight of the evidence and not its

sufficiency. As such, it was within the jury’s discretion to accept the State’s

witnesses and find the defendant guilty of three counts of first-degree murder.

Because the jury’s credibility determinations in this case were not clearly contrary

to the evidence and, indeed, were amply supported by the evidence, we find no

error in the jury’s decision to credit the testimony of these witnesses.

      Defendant further argues the testimony of Glen Merrell, another witness for

the State, contradicted Shannon’s and Daniel’s accounts, rendering their

eyewitness accounts unreliable. Glen testified that he was on the phone with

defendant around the time of the shootings, that defendant asked him to “hang on

for a minute,” and that Glen then heard “a bunch of gunshots.” Defendant argues

this testimony undermines Shannon’s and Daniel’s testimonies because neither

testified to seeing defendant on the phone as he came out of the woods. This

contention is meritless. We fail to see how Glen’s waiting “for a minute” on the

phone while the homicides occurred contradicted the eyewitnesses’ accounts of the

                                          27
shooting.

      Lastly, defendant maintains no rational juror could rely on the testimony of

former inmate Terry Matthews, who testified during the guilt phase that, while at

Caddo Correctional Center together, defendant confessed to Terry that “he laid and

waited and ran out and ambushed” the Adams brothers. Defendant argues Terry’s

account is incredible (1) because he was formerly terminated as a confidential

informant for the Caddo Parish Sheriff’s Office for being a high risk, heavy drug

user who was “spreading his information on the street,” (2) because the testimony

of inmate Robert Washington contradicted Terry’s testimony, and (3) because he

testified inconsistently concerning whether or not he spoke to, and obtained

information from, his wife about defendant’s case. After reviewing Terry’s

testimony, we believe a rational juror could have found his testimony to be

credible. Indeed, the jury heard from Terry that he provided this information to

officers days before his release on a conviction for “simple burglary or burglary”

because he “[f]elt it was the right thing to do.” By the time of his testimony, Terry

remained on probation but had been employed for two years, he traveled from out

of state to provide his testimony, and he was a married father of two daughters

with one child on the way. Although Robert Washington, who at the time of trial

remained jailed at Caddo Correctional Center on convictions for forcible rape of a

child and second degree kidnapping of that same child, testified that he was present

at all times during which Terry claimed to have received this confession from

defendant and that he never heard defendant discuss his capital case, it was within

the jury’s discretion to determine what weight to assign to each witnesses’

testimony. Finally, defendant strenuously argues Terry’s statement to officers was

inconsistent with his trial testimony because, contrary to his original statement in

which he mentioned speaking with his “wife” about the shooting, Terry denied

speaking with anyone about defendant’s case. Defense counsel cross-examined

                                         28
Terry thoroughly on this point. Given the testimony Terry offered was fully

consistent with the eyewitness testimony of Daniel Jackson and Shannon Garland,

a rational juror could have found Terry’s testimony to be credible. Accordingly, we

find this assignment meritless, as well.

Jury Instructions

                        Assignments of Error 8 through 11

      Defendant argues that the trial court failed to instruct the jury on the

elements of justifiable homicide applicable to his case, La. Rev. Stat. 14:20(A)(2)

and (3) and erroneously instructed jurors to consider the possibility of retreat

contrary to La. Rev. Stat. 14:20(D). In defendant’s “Request and Order for Written

Jury Charges and Instructions,” he requested the following instructions on

justifiable homicide and retreat in pertinent part:

      A homicide is justifiable if committed in self-defense by one who
      reasonably believes that he is in imminent danger of losing his life or
      receiving great bodily harm and that the killing is necessary to save
      himself from that danger.

      The danger need not have been real, as long as the defendant
      reasonably believed that he was in actual danger.

      There are several factors that you should consider in determining
      whether Mr. Reed had a reasonable belief that the killing was
      necessary to save himself from that danger:

      (1) the possibility of avoiding the necessity of taking human life by
          making a safe retreat, provided however, that a person who is not
          engaged in any unlawful activity and is in a place where he has a
          right to be has no duty to retreat before using deadly force to save
          himself from the danger of losing his life or receiving great bodily
          harm. He may stand his ground and meet force with force . . . .

      These requested instructions on justifiable homicide reflect only the

provision of La. Rev. Stat. 14:20(A)(1) and, along with the instruction on retreat,

also mirror the instructions that were provided to the jury at the conclusion of the

guilt phase of trial. As such, it appears defense counsel did not request the

inclusion of the “stand your ground” provisions under La. Rev. Stat. 14:20(A)(2),

                                           29
(A)(3), or (D). Indeed, defense counsel requested the very instructions to which

defendant now objects. Thus, there exists no error for this Court to review.

La.C.Cr.P. art. 807; State v. Rayford, 348 So.2d 990, 990 (La. 1977). Further,

defense counsel voiced no objection to the court’s jury instructions during the guilt

phase. Accordingly, these assignments of error were not preserved for appellate

review. La.C.Cr.P. art. 841; State v. Wessinger, 98-1234, pp. 19-20 (La. 5/28/99),

736 So.2d 162, 180-81 (scope of review in capital cases is limited to alleged errors

to which counsel contemporaneously objects).

                               Assignment of Error 12

      Defendant also claims trial counsel rendered ineffective assistance by failing

to request jury instructions on justifiable homicide under La. Rev. Stat.

14:20(A)(2) and (3) and by requesting an instruction directing the jury to consider

the possibility of retreat contrary to La. Rev. Stat. 14:20(D).

      Under the standard for ineffective assistance of counsel set out in Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984),

adopted by this Court in State v. Washington, 491 So.2d 1337, 1338-39 (La. 1986),

a reviewing court must reverse a conviction if the defendant establishes (1) that

counsel’s performance fell below an objective standard of reasonableness under

prevailing professional norms, and (2) counsel’s inadequate performance

prejudiced defendant to the extent that the trial was rendered unfair and the verdict

suspect. Generally, a claim for ineffective assistance of counsel is properly raised

in an application for post-conviction relief. State v. Burkhalter, 428 So.2d 449, 456

(La. 1983). This enables the district judge to conduct a full evidentiary hearing on

the matter. State v. Seiss, 428 So.2d 444, 449 (La. 1983). Because the record in this

case discloses the evidence needed to decide the issue of ineffective assistance of

counsel and because defendant has raised the issue by assignment of error on



                                          30
appeal, we will address the issue now in the interest of judicial economy. See, e.g.,

State v. Ratcliff, 416 So.2d 528, 530-32 (La. 1982).

       Here, despite appellate counsel’s claim to the contrary, a review of the

record does not reveal trial counsel rendered constitutionally deficient assistance.

Defense counsel arguably made a professional error by failing to request

instructions under La. Rev. Stat. 14:20 (A)(2), (A)(3), and (D), as the defense

theorized at trial that Jarquis Adams returned to defendant’s residence with the

intent to further burglarize defendant’s home and that defendant had a reasonable

belief the use of deadly force was necessary to prevent a violent or forcible felony.

Even assuming error on the part of trial counsel, given the evidence presented by

the State thoroughly and overwhelmingly discredited defendant’s self-defense

theory, defendant fails to show any resulting prejudice from trial counsel’s failure

to request the jury instructions at issue. Thus, counsel’s errors in failing to request

additional jury instructions on justifiable homicide and in requesting an instruction

concerning the possibility of retreat do not undermine confidence in the verdict

returned by the jury. Thus, it cannot be said defendant’s conviction and death

sentence resulted from a breakdown in the adversarial process that renders the

result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Accordingly, this

claim fails.

Prosecutorial Misconduct

      Defendant argues that prosecutors’ conduct at various points throughout the

guilt and the penalty phases of defendant’s capital trial, both individually and

collectively, violated his constitutional rights to due process, a fair trial, and a

reliable sentencing proceeding.

                        Assignments of Error 19 through 21

      Three of the five assignments of error concerning this asserted prosecutorial

misconduct involve statements prosecutors made during the guilt and the penalty

                                          31
phase closing arguments. As a general matter, closing arguments in criminal cases

“shall be confined to evidence admitted, to the lack of evidence, to conclusions of

fact that the state or defendant may draw therefrom, and to the law applicable to

the case.” La.C.Cr.P. art. 774. Louisiana jurisprudence on prosecutorial

misconduct allows prosecutors considerable latitude in choosing closing argument

tactics. The trial judge has wide discretion in controlling the scope of closing

argument. State v. Prestridge, 399 So.2d 564, 580 (La. 1981). Even if the

prosecutor exceeds these bounds, a reviewing court will not reverse a conviction

due to an improper remark during closing argument unless the court is thoroughly

convinced the argument influenced the jury and contributed to the verdict, “as

much credit should be accorded the good sense and fairmindedness of jurors who

have seen the evidence and heard the arguments, and have been instructed

repeatedly by the trial judge that arguments of counsel are not evidence.” State v.

Martin, 93-0285, p. 18 (La. 10/17/94), 645 So.2d 190, 200; see State v. Jarman,

445 So.2d 1184, 1188 (La. 1984); State v. Dupre, 408 So.2d 1229, 1234 (La.

1982).

         In his nineteenth assignment of error, defendant argues that “[i]n penalty

phase rebuttal arguments the State repeatedly commented that defense attorney

Richard Goorley had a ‘fanatically abusive’ interpretation of the law, was ‘obscene

and insulting,’ was ‘threatening’ jurors, and calling them ‘killers’ and ‘not

Christian.’” In particular, he points to portions of the State’s rebuttal in which the

prosecutor made personal remarks towards defense counsel:

                So let’s take a deep breath and really analyze the law here,
         because unlike Mr. Goorley, I don’t think of you as killers and I don’t
         think of the law as vengeful . . . .

                So now that you have found this defendant guilty of [first-
         degree] murder under one of those circumstances, you are legally,
         legally, entitled to consider both punishments. It is only a fanatical
         abuse of that analysis that would lead Mr. Goorley to call you killers
         because you followed the law.

                                           32
      ....

       And Mr. Goorley argues to you that if you don’t have mercy for
Mr. Reed, you’re a killer, you’re a vengeful killer. Because he used
the word vengeance at least five times in his closing remarks in
attributing to you that emotion if you had the temerity to simply
follow the law.

       Besides being obscene, those remarks are deeply insulting to
you as citizens, tax paying, hard working citizens who did not choose
to be here, who would rather be anywhere but here. But Mr. Goorley,
dismissing that as a mere formality, suggests that you are killers and
you have vengeance unless you have mercy for Mr. Reed.

      ....

       Because that’s the argument when you strip the bark off the
tree; well, if you don’t have any mercy for him, there’s nothing I can
do for you, because you’re lost, you’re a vengeful killer. Man, what an
argument.

        And then the Bible. You know, what I don’t understand is why
we can’t leave God out of this. I mean, the law does not talk about the
Bible. The law does not talk about God. The law talks about
aggravating circumstances and mitigating circumstances and it talks
about the circumstances of the offense and it talks about the character
and the propensity of the victim and the character and propensity of
the defendant. But nowhere does it talk about the Bible. Nowhere
does it talk about God.

       But this is another insidious argument that Mr. Goorley would
make; well, unless you believe in his interpretation of the Bible,
you’re no good. You’re a vengeful killer. You’re not worthy of
consideration. And remember what the man said. And Mr. Goorley
referred to Him as that man. I refer to Him as Jesus Christ, the son of
the living God. But be that as it may. When you do to these the least
of my brethren, you do to me. And he said that.

     Does that mean that doesn’t apply to the Adams brothers?
When you slaughter them, didn’t then you slaughter Him?

       And it’s so easy to get in to this and that’s why the argument is
so insidious, because Goorley says, This is my view of the Bible and
unless you agree with my view of it, there’s something wrong with
you; you’re not merciful; you’re not Christian; you’re not any good;
you’re a vengeful killer. Well, that’s nonsense.

       Because I also remember the same Christ saying, Whoa [sic] to
you who would harm one of these, referring to children. It would be
better that you had never been born. A millstone around your neck
and dropped into the sea.


                                  33
             So does that mean my version of the New Testament is better or
      worse? No. I think the thing that we can do here best is to leave God
      out of it. He didn’t make this happen and He’s not responsible. . . .

             Mr. Goorley appeals to your better nature, unlike Ms.
      Prudhomme and I who appeal to your baser nature. Geez. Well, where
      do I start with that? No, Ms. Prudhomme and I do not appeal to your
      baser nature and, no, Mr. Goorley doesn’t really appeal to your higher
      nature, because what he’s doing is threatening you. He’s a little
      smooth about it –
             ....

             – but what he’s doing is threatening you…

             ....

            And why – and how he’s threatening you is he says unless you
      do what I tell you, unless you believe in my New Testament, unless
      you show mercy to Reed, then you’re nothing but a killer. Now, you
      can call it anything you want, but I call it a threat. And he even said
      that would make you part of the killing. Now, if that’s not a threat, I
      don’t know what is.

            He wants to make you tremble at the thought of doing your
      lawful duty. . . .

             ....

             You know, Christ said to Mary Magdalene, when they wanted
      to stone her to death for being an adulteress, Does no one condemn
      you? Then I don’t condemn you. But the defense argument is I
      condemn you unless you do what I tell you to do.

             The State – and this is a quote – the State calls for vengeance,
      death, death, death, heartless and no mercy. No. No. No. The State
      asks you to carefully consider the evidence, to carefully consider the
      character and propensities of the defendant and the victims and the
      victims’ families, and to carefully consider the impact that the murder
      of these boys has had on the victims’ families. That is not heartless. It
      is not merciless. It is not vengeful. It is the law. And if Mr. Goorley
      thinks that that law is heartless and vengeful and merciless, then he
      can go to the legislature and get it changed. That’s how we do things
      in this society. We do not do that by threatening honest jurors.

      At the conclusion of the State’s rebuttal, defense counsel objected to the

State’s improper remarks and moved for a mistrial. The district court overruled the

defendant’s objection and denied his motion for mistrial, ruling:

      I did find that your statements provoked some of the comments by
      Mr. Cox. Threatened is a strong word, but you told the jury – and my
      notes reflect – to elect the death penalty would make them part of the

                                         34
       killing, and we’ve had enough killing. Do you want to stoop to the
       level of being heartless and showing no mercy?

Defense counsel noted his objection for the record. 7

       While the State should refrain from making personal attacks on defense

strategy and counsel, State v. Brumfield, 96-2667, p. 9 (La. 10/20/98), 737 So.2d

660, 666; see also State v. Duplessis, 457 So.2d 604, 608 (La. 1984) (prosecutor’s

comment that “a bus full of witnesses would not be enough for defense counsel

because he was a ‘very skillful lawyer’” improper), in this case, it appears the State

was not commenting on counsel’s character but rather responding to his

argument, which suggested that to elect the death penalty would amount to an act

of vengeance. Indeed, as evident from the State’s comments, defense counsel

invited the commentary on the Bible with the following statement, among others:

       But the State calls for vengeance, vengeance, vengeance; death, death,
       death. That’s what they’re saying. I’m calling on what we learned
       when we were growing up every Sunday; what you do to the least of
       my brethren, you do to me.

That being the case, it does not appear the State’s argument exceeded the proper

scope of rebuttal. See La.C.Cr.P. art. 774 (“The state’s rebuttal shall be confined to

answering the argument of the defendant.”). Even assuming the prosecutor

exceeded the bounds of proper rebuttal argument, the trial court clearly acted

within its discretion when it denied the mistrial motion. See La.C.Cr.P. art. 775;

State v. Sanders, 93-0001, p. 21 (La. 11/30/94), 648 So.2d 1272, 1288; State v.

Smith, 430 So.2d 31, 44 (La. 1983) (Mistrial is a drastic remedy generally, and the

determination “of whether prejudice has resulted lies in the sound discretion of the

trial judge.”). This assignment of error lacks merit.

       Defendant broadly argues in his twentieth assignment of error that the State

improperly commented on his presentation of mitigating evidence in the penalty


7
  Defendant re-urged this claim in his motion for new trial, which the trial court denied ruling
that “Both sides responded to each other’s comments, but I don’t think any of the comments
made justify a motion for new trial.”
                                              35
phase of his trial. Specifically, he points to statements prosecutors made in the

closing and the rebuttal arguments of the penalty phase of his trial in which the

State commented that defendant was “loathsome” and willing to sacrifice his

family to preserve himself because he made the decision to allow his family to

testify on his behalf in mitigation. Because defense counsel did not object to the

prosecutor’s allegedly improper comments concerning defendant’s presentation of

mitigating evidence, this aspect of defendant’s claim was not preserved for review.

La.C.Cr.P. art. 841; Wessinger, 98-1234, pp. 19-20, 736 So.2d at 180-81 (reviving

contemporaneous objection rule for the penalty phase as well as guilt phase of a

capital trial). Even absent the procedural bar, this claim is meritless as prosecutors

did not argue “that a particular factor should not be a mitigating circumstance” but

instead sought “to disprove the existence of a mitigating factor.” State v. Hampton,

98-0331, p. 22 (La. 4/23/99), 750 So.2d 867, 886.

      On a similar note, defendant contends the State improperly commented on

defendant’s failure to call Loshun Jackson’s children to testify as mitigation

witnesses and on defendant’s emotionless state during the victim-impact

testimony. Defense counsel objected to these improper remarks and requested a

mistrial, which the trial court denied ruling “there’s no grounds for a mistrial

because of those comments.” Defense counsel noted his objection for the record.

      In reference to defendant’s failure to show emotion, evidence that a capital

defendant shows no remorse does not inject arbitrariness into the proceedings, as a

lack of remorse is “relevant to the character and propensities of the defendant.”

State v. Juniors, 03-2425, p. 63 (La. 6/29/05), 915 So.2d 291, 336 (citing State v.

Wilson, 467 So.2d 503, 523 (La. 1985) (citing State v. Summit, 454 So.2d 1100,

1108 (La. 1984) (rev’d on other grounds, Summit v. Blackburn, 795 F.2d 1237 (5th

Cir. 1986)). As a comment directed to defendant’s character and propensities, the

statement was permissible. Second, as to the remarks concerning defendant’s

                                         36
failure to call Loshun Jackson’s children as mitigation witnesses, the absence of

witnesses constitutes permissible comments on the lack of evidence. See

La.C.Cr.P. art. 774. Accordingly, given the broad latitude afforded to the

prosecutor during closing arguments, it cannot be said these few comments

sprinkled over a 20-page closing argument were so egregious as to warrant the

drastic remedy of a mistrial. Martin, 93-0285, p. 18, 645 So.2d at 200. These

claims have no merit.

      In his twenty-first assignment of error, defendant complains that in guilt and

penalty phase arguments, “the State repeatedly misstated testimony and created

theories out of whole cloth in an effort to convince the jurors that Marcus Reed’s

actions were not justified,” which influenced the jury. Specifically, defendant

argues three instances the State misstated evidence, namely: (1) “Marcus Reed

lured the victims to his house;” (2) “he did not claim self-defense to Clarence

Powell;” and (3) “Mr. Reed poured gasoline on the victims in an attempted arson.”

Because defense counsel did not object to any of these comments during the

State’s opening and/or closing arguments at the guilt and the penalty phases, the

defendant failed to preserve the issues for review. La.C.Cr.P. art. 841; Wessinger,

98-1234, pp. 19-20, 736 So.2d at 180-81. Even absent the procedural bar, given the

staggering breadth of the evidence presented against defendant, we are not “firmly

convinced that the jury was influenced by the remarks and that they contributed to

the verdict.” State v. Taylor, 93-2201, p. 19 (La. 2/28/96), 669 So.2d 364, 375.

Thus, we detect no reversible error.

                              Assignment of Error 22

      Next, defendant asserts the State deprived defendant of due process of law

when it “improperly threatened to arrest or criminally charge three trial witnesses,”

namely: (1) Brian Wafer; (2) Clarence Powell; and (3) Kyle King. As to Brian

Wafer, who is defendant’s first cousin, during its direct examination, the State

                                         37
played a pertinent portion of Mr. Wafer’s recorded interview and allowed Mr.

Wafer to review the transcript of the statement as he could not recall how he

described defendant’s demeanor. Even then, Mr. Wafer testified he had no

recollection of his statements. Prosecutor, Dale Cox, then addressed Mr. Wafer: “I

want to read you something and then I’m going to ask you a couple of questions.

Revised Statute 14:123, perjury—”Before the prosecutor could read any further,

defense counsel objected. The court then excused both the jury and Brian Wafer.

Outside of the presence of the jury, defense counsel requested a mistrial on the

basis that the prosecutor began to read the perjury statute in front of the jury. After

considering the defense’s motion for mistrial, the trial court denied the motion for

mistrial and instructed the State not to read the statute but only to “remind [Mr.

Wafer] he’s under oath”:

      [Y]ou can remind him he’s supposed to tell the truth; you can remind
      him if it’s determined that he’s not telling the truth what the
      consequences are and that he can be charged with a felony and the
      punishment is a sentence of hard labor.

Defense counsel noted his objection for the record. The State then went on to

remind Brian that he was under oath and that the penalty for perjury is five to 40

years at hard labor.

      We find the trial court did not err in denying the motion for mistrial.

Defendant fails to show the perjury charges would have been unwarranted. Thus,

he does not demonstrate an improper influence on the witness. See generally State

v. Muse, 363 So.2d 462, 468-69 (La. 1978) (prosecutor may tell witness outside of

the presence of jury that he will charge witness with perjury if testimony not in

accord with previous statements); State v. Selmon, 343 So.2d 720, 721 (La. 1977)

(prosecutor may remind witness of consequences of perjury); State v. Spotville,

308 So.2d 763, 766 (La. 1975) (finding no error where prosecutor read perjury

statute to witness in presence of jury where the witness’ testimony was not in


                                          38
accord with previous statements). Accordingly, the trial court did not abuse its

wide discretion when it denied defense’s motion for a mistrial.

      With respect to Clarence Powell, the record reflects that on the morning of

September 30, 2013, Clarence, who was under subpoena and instructed to appear

for 9:00 a.m., was not present in court. The State requested a bench warrant

without bond. After a break was taken, Clarence arrived at court. Outside of the

witness’ presence, the State maintained its request for a bench warrant and for

Clarence Powell’s arrest. The court denied the motion. Under La.C.Cr.P. art. 21,

failure to comply with a subpoena is a direct contempt of court. Thus, it does not

appear the prosecutor’s request for a bench warrant due to Clarence’s failure to

appear in court at the instructed time constituted an act of misconduct. Moreover,

the record reflects that Clarence Powell was not present in the courtroom when the

prosecutor requested the bench warrant. Thus, the prosecutor’s statements could

not have influenced the witness’ subsequent testimony.

      Lastly, defendant argues that, before Kyle King entered the courtroom to

testify in defendant’s guilt phase case-in-chief, the State threatened to arrest him

based upon his upcoming testimony about his participation in the burglary of

defendant’s residence. The record reflects that out of the presence of the jury and

of Kyle King, the State objected on the record:

      I think at the very least he needs to be advised of his Miranda rights
      before he gives testimony in this court, because I will give notice right
      now that if he admits to a crime, I’m going to indict him and he
      probably won’t leave this building, because I will secure an arrest
      warrant for him.

In response, defense counsel argued:

      They’ve already questioned him. Apparently they gave him some sort
      of inclination [sic], testimony before in front of the Grand Jury, that
      they were not going to [pursue a charge]. Now the only time they’re
      going to bring it up is when the defense intends to use it.




                                         39
After reviewing Kyle’s statement to the police and grand jury testimony, the trial

court noted for the record that “[t]he State has had plenty of time to charge him

because of his admission of a crime before—under oath before the Grand Jury. So

I don’t really see what difference it makes if he testifies again.” The prosecutor

withdrew his objection, commenting, “I don’t think [Mr. King] needs any

advisement of any kind. I agree with the Court. Let him come testify to whatever

he will.” The court ordered that Kyle be brought back into the courtroom and that

he be advised of his rights outside the presence of the jury. Kyle testified that he

understood he could be charged with burglary if he testified at trial and that he did

not wish to assert his Fifth Amendment rights and request a lawyer.

       As an initial matter, the trial court did not err in ordering Kyle King be

advised of his right to invoke the Fifth Amendment privilege, as any testimony he

gave concerning his participation in the burglary of defendant’s residence would be

self-incriminating. 8 Moreover, because the State withdrew its objection before the

trial court ruled, it is unclear how these arguments outside of the presence of the

jury and the witness prejudiced the defendant. Further, defendant was not deprived

of his right to present a defense as Kyle King waived his Fifth Amendment

privilege and willingly testified to his participation in the burglary of defendant’s

residence. Defendant fails to show the State’s actions constituted prosecutorial

misconduct.

       This assignment of error is meritless.

                                     Assignment of Error 23

       Finally, defendant complains that the State failed to correct the false or

misleading testimony of two witnesses, Detective Keith Fox and Terry Matthews.



8
  Notably, a witness may invoke the Fifth Amendment privilege only when he has reasonable
cause to apprehend danger of self-incrimination from a direct answer. State v. Brown, 514 So.2d
99, 109 (La. 1987).


                                              40
      As a general matter, if a prosecutor allows a State witness to give false

testimony without correction, a reviewing court must reverse the conviction gained

as a result of that perjured testimony, even though the testimony goes only to the

credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173,

1177, 3 L.Ed.2d 1217 (1959); State v. Williams, 338 So.2d 672, 677 (La. 1976).

Even if the State does not solicit the false testimony, its failure to correct it “when

it appears” violates due process guarantees. Napue, 360 U.S. at 269, 79 S.Ct. at

1177; State v. Ellender, 354 So.2d 500, 503 (La. 1978). When such false testimony

goes before the jury, the defendant must receive a new trial unless there is no

reasonable likelihood that the alleged false testimony could have affected the

outcome of the trial. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766,

31 L.Ed.2d 104 (1972); State ex rel. Shilling v. Whitley, 92-3312 (La. 4/29/94), 637

So.2d 459.

      First, defendant claims Detective Keith Fox gave untruthful testimony as to

the existence of a fourth individual in the victims’ vehicle. Defendant fails to point

to any false testimony. Detective Fox testified on direct examination that when he

arrived at the crime scene the night of August 16, 2010, his team had received

information “that there may be a fourth victim.” He testified the investigatory

team continued to search for a possible fourth victim the following day, but he

noted the search did not lead to the discovery of a fourth victim. On cross-

examination, as defense counsel attempted to elicit information from Detective Fox

that he had received information of the fourth person “in the car,” Detective Fox

clarified he “just had information that four people had been shot,” and “it was

never specified that the fourth victim was in the car.” When defense counsel asked

Detective Fox whether he spoke to Shannon Garland, the State made a hearsay

objection, the trial court sustained the objection, and defense counsel ended his



                                          41
examination before Detective Fox could have the opportunity to explain himself

further.

      As an initial matter, the record is devoid of any allegation the State acted in

collusion with Detective Fox or that Detective Fox made contradictory statements.

Moreover, because Shannon Garland was not interviewed until the following

morning, during the early hours of the investigation, officers only had the initial

statements made by Daniel Jackson who informed James Hendrix after fleeing the

crime scene that four individuals had been shot. Thus, it does not appear Detective

Fox had knowledge of whether the fourth potential victim had been observed

inside of the vehicle at this point during the investigation. Furthermore, defense

counsel thoroughly cross-examined both eyewitnesses, Daniel Jackson and

Shannon Garland, concerning their prior statements made to police officers about

the number of persons inside of the victims’ vehicle. Thus, the jury was fully

aware of the substance of Daniel’s and Shannon’s initial reports as they related to

the presence of a potential fourth person in the vehicle. This claim is meritless.

      Defendant also contends Terry Matthews testified on cross-examination that

he did not speak with anyone about defendant’s case and, in particular, that he did

not speak to his wife about the matter nor did she inform him of any information

she learned from news reports concerning defendant’s case. In support of this

argument that Terry Matthews testified falsely, defendant points to his recorded

interview with Detective Keith Fox from 2011, in which Terry mentions telling his

“wife” about defendant’s admissions to him and explains his “wife” responded,

“yeah, over an X-box or something, they were kids.” Although it does appear

Terry Matthews previously gave an inconsistent statement in reference to whether

he spoke to his previous girlfriend, whom he referred to as his “wife,” about

defendant’s case, defendant fails to show the prosecutor was aware Terry

Matthews’ testimony was false. Cf. State v. Doleman, 02-0957, p. 18 (La. App. 4

                                          42
Cir. 12/4/02), 835 So.2d 850, 862 (“The mere fact that witnesses testified

differently at different proceedings [separated by six years] does not prove that

they testified falsely. At best, such conflicting testimony indicates that they may

have recalled things differently [with the passage of time]. Furthermore, it cannot

be presumed that [the] prosecutor has knowledge that a witness’s answer is false

simply because the witness may have testified somewhat differently at a prior

proceeding.”). In the instant case, Terry gave his statement to Detective Fox in

2011, and trial did not begin until September 28, 2013. Defendant had a copy of

the recorded interview at trial and had an opportunity to cross-examine this witness

to impeach his credibility. It was up to defense counsel to explore the discrepancies

between Terry Matthews’ recorded interview and his trial testimony. Nevertheless,

given the overwhelming evidence of defendant’s guilt based on eyewitness

testimony and incriminating physical evidence and autopsy results, it does not

appear the discrepancies in Mr. Matthews’ testimony affected the outcome of the

verdict. This claim fails.

Hearsay

                         Assignments of Error 1 through 4

      Defendant next claims the court improperly excluded testimony from a

witness who was prepared to testify defendant warned the victims to stay away

from his residence before the instant homicides occurred. Specifically, defendant’s

neighbor, Clarence Powell, overheard defendant arguing with an individual on the

telephone, yelling

      I don’t know what the hell y’all think y’all doing and I’m not the one
      to play with; don’t—don’t bring this stuff to my house, don’t bring it
      down here; I don’t mess around with nobody . . . . He said I don’t
      mess with nobody, I stick to my fucking self . . . .

According to Clarence in his initial statement to police, he overheard defendant

having this telephone conversation about 30 minutes before he heard a


                                         43
confrontation between defendant and an unknown voice in defendant’s yard.

       At trial, the State objected to the introduction of this testimony as

inadmissible hearsay, and the court sustained the objection, ruling that

       [Mr. Powell] wasn’t present when the phone call was made; he was at
       his house 20 yards away. So – and it’s not reliable, it’s not
       trustworthy, and so its hearsay . . . Mr. Powell’s account of it is not
       reliable and trustworthy so as to make it an exception to the hearsay
       rule, because he was not present. He didn’t witness the declarant’s
       demeanor. He didn’t see it happen. So it’s not reliable.

Defense counsel noted his objection for the record. According to defendant, the

testimony was admissible as non-hearsay under the res gestae exclusion to the

hearsay rule.

       Hearsay is a statement, other than one made by the declarant while testifying

at the present trial, offered in evidence to prove the truth of the matter asserted.

La.C.E. art. 801(C). Hearsay is inadmissible unless it falls within an exception.

La.C.E. art. 802. La.C.E. art. 801(D)(4) excludes from hearsay things said and

done

       under the immediate pressure of the occurrence, through the
       instructive, impulsive and spontaneous words and acts of the
       participants, and not the words of the participants when narrating the
       events, and which are necessary incidents of the criminal act, or
       immediate concomitants of it, or form in conjunction with it one
       continuous transaction.

The res gestae hearsay exclusion in Louisiana is broad and includes not only

spontaneous utterances and declarations made before or after the commission of

the crime, but also testimony of witnesses and police officers pertaining to what

they heard or observed during or after the commission of the crime if a continuous

chain of events is evident under the circumstances. See State v. Huizar, 414 So.2d

741, 748 (La. 1982); State v. Kimble, 407 So.2d 693, 698 (La. 1981).

       Under the res gestae exclusion, statements must be spontaneous words of the

participants which are necessary incidents of the criminal act. Here, although Mr.

Powell overheard defendant arguing with an unknown individual on the telephone

                                         44
shortly before the homicides occurred, he did not personally observe defendant

speaking on the telephone, or witness the crimes for that matter. Therefore, Mr.

Powell could not ascertain defendant’s emotional state to indicate whether he made

the statements “under immediate pressure of the occurrence,” La.C.E. art.

801(D)(4). Thus, under the circumstances, it is not evident that defendant’s

statements on the telephone acted as a prelude to the criminal acts, and the

exclusion is not applicable.

      Alternatively, defendant argues the court improperly excluded the testimony

because the statement was not hearsay—that is, because it was not offered for the

truth of the matter asserted but to show that the utterance occurred. In support,

defendant points to this Court’s instructive explanation in State v. Everidge

concerning what kind of statements constitute hearsay:

      In order to fall within the definition of hearsay, the statement must be
      offered to prove the truth of the statement’s contents. To illustrate this
      point, the victim stated, “Come over to my apartment tonight” or
      words to that effect. The statement was not offered to prove any
      assertion within the statement such as ownership of the apartment, but
      to establish the fact that the statement was made. We contrast this
      scenario to one where a witness states that declarant said, “John killed
      Jane.” The matter asserted is that John killed Jane.

96-2665, p. 7 (La. 12/2/97), 702 So.2d 680, 685. The State disputes defendant’s

assertion that this statement is not hearsay. In support, the State cites the following

language from the Second Circuit’s opinion in State v. Hicks:

      [T]he mere assertion that the hearsay rule does not apply, if the
      statement is offered only for the fact that it was stated and not as proof
      of the fact in the statement, is not a correct statement of the law. Any
      testimony could be admitted under this reasoning by the fiction that
      the testimony is elicited “for the mere fact it was stated” rather than
      for its truth. There must be some purpose in admitting the testimony
      other than to show the truth of the matter.

607 So.2d 937, 946-47 (La. App. 2 Cir. 1992). Notably, the hearsay objection in

Hicks arose when defense counsel, on cross-examination, asked a police officer

whether the owner of a bar remembered the victims being present at her bar. 607


                                          45
So.2d at 946. While the testimony defense attempted to elicit in Hicks was clearly

offered for the truth of the matter asserted—that is, that the victims were or were

not present at the bar on the evening in question—Clarence Powell’s statement was

not offered for the truth of the statement but was offered to show defendant’s state

of mind prior to the shooting. As we explained in State v. Brown,


      One of the traditional hearsay exceptions allows the introduction of
      extrajudicial declarations at trial to prove the state of mind of the
      declarant. State v. Sheppard, 371 So.2d 1135 (La.1979); State v.
      Weedon, 342 So.2d 642 (La.1977). Thus, whether the declaration is a
      direct assertion of the speaker’s state of mind (hearsay) or whether the
      declaration tends to indirectly establish the declarant’s state of mind
      (non-hearsay), Louisiana jurisprudence admits the declaration if the
      declarant’s state of mind is at issue or is relevant to prove a fact at
      issue. State v. Martin, [458 So.2d 454, 461 (La. 1984)] (relevancy is a
      requirement for both the hearsay and non-hearsay extrajudicial
      declarations).
562 So.2d 868, 877-78 (La. 1990); see State v. Raymond, 245 So.2d 335, 340 (La.

1971) (the victim’s extrajudicial declaration of fear of or revulsion by defendant

made several hours before the homicide was admitted as relevant, non-hearsay

circumstantial evidence concerning the victim’s state of mind about defendant).

Because we find defendant’s statement tended to indirectly establish defendant’s

state of mind which was at issue in this case, the statement was a non-hearsay

statement which should not have been excluded.


      Nevertheless, we find this error was harmless. Although the court excluded

this testimony which, defendant asserts, could have supported his theory of self-

defense at trial, the court permitted Mr. Powell to testify—over the State’s

objection—to overhearing a confrontation with strikingly similar content between

defendant and an unknown voice immediately prior to the shooting. Thus, it does

not appear the court’s exclusion of this portion of Mr. Powell’s testimony

compromised defendant’s right to present a defense. We are convinced that, given

the overwhelming evidence of defendant’s guilt, the jury’s verdict in this case was


                                        46
surely unattributable to this error. La.C.Cr.P. art. 921; Chapman v. California, 386

U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Sullivan v. Louisiana, 508

U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); Sanders, 93-0001,

p. 17, 648 So.2d at 1286.

      Accordingly, these assignments of error fail.

                                 Assignment of Error 27

      Defendant also argues the trial court improperly excluded as hearsay

testimony from Kyle King that the victim, Jarquis Adams, informed him of

specific items to steal from defendant’s residence. Specifically, the defense elicited

testimony that, after driving to defendant’s residence, Kyle remained in the vehicle

while Jarquis went inside the home. Defense counsel elicited further testimony that

Jarquis returned to Kyle’s vehicle after inspecting the Jackson residence, that he

said something to Kyle, and that they then together proceeded to burglarize the

home. The jury heard all of this testimony. Defendant, however, contends the trial

court erred because it refused to allow Kyle to testify about what precisely Jarquis

said immediately prior to the burglary—that is, that Jarquis indicated to Kyle,

“There’s two amps and an Xbox in there, do you want to get them?” The State

objected to the introduction of this testimony as inadmissible hearsay, and the court

ruled that the statement was hearsay and further explained that Mr. King could

only “testify about things that happened, what he observed, not what was said

during the burglary.” The defense noted its objection for the record.

      Defendant contends the statements were res gestae. However, as discussed

above, under the res gestae exclusion, statements must be spontaneous words of

the participants which are necessary incidents of the criminal act. As an initial

matter, although the burglary of his residence arguably speaks to defendant’s

motive in the instant homicides, the burglary occurred almost 10 hours before the

homicides. As such, it does not qualify as a statement which is “the necessary

                                         47
incident[]of the criminal act, or immediate concomitant[] of it, or [which] form[s]

in conjunction with it one continuous transaction.” La.C.E. 801(D)(4). Moreover,

this statement does not constitute “impulsive or spontaneous” words made “under

the immediate pressure of the occurrence.” La.C.E. art. 801(D)(4). Instead, the

statement—an explanation of what Jarquis saw inside defendant’s home—was

primarily narrative in nature. See State v. Jacobs, 281 So.2d 713, 715 (La. 1973)

(declaration by the victim not considered res gestae when it is narrative rather than

spontaneous); cf. State v. Hunter, 343 So.2d 143, 144 (La. 1977) (victim’s

spontaneous statement immediately after the crime, in the excitement of the

occurrence, is generally considered res gestae). As such, the trial court properly

found the res gestae exclusion inapplicable. Additionally, given that Kyle King

provided ample testimony at trial as to Jarquis’ involvement in the burglary of

defendant’s residence and his intent to return to defendant’s residence to steal

additional items, it is difficult to discern any prejudice from the trial court’s

exclusion of this statement. This claim fails.

                            Assignments of Error 5 through 7

      Next, defendant claims the trial court erred in excluding portions of Robert

Washington’s testimony which was offered to impeach Terry Matthews’ testimony

concerning a series of incriminating statements defendant made to Mr. Matthews

and in Mr. Matthews’ presence while incarcerated at Caddo Correctional Center.

As defense counsel attempted to elicit information from Mr. Washington about the

content of the conversations he had with Mr. Matthews and defendant as they

walked to the van, the State objected to the entire line of questioning as improper

extrinsic impeachment evidence and as to relevancy. The court held a bench

conference and, subsequently on the record, informed Mr. Washington, “[Y]ou

can’t say what anybody else said to you. That would be hearsay and it’s not

admissible.” Defendant argues that Mr. Washington’s testimony did not constitute

                                          48
hearsay as it was to be introduced to impeach the testimony of Terry Matthews

through contradiction under La.C.E. 607(D)(2) and that the court’s error in

excluding the testimony denied defendant his right to present a defense.

      Because defense counsel did not object to the trial court’s ruling excluding

Mr. Washington’s testimony, these claims were not preserved for review.

La.C.Cr.P. art. 841; Wessinger, 98-1234, pp. 19-20, 736 So.2d at 180-81 (appellate

review in capital cases is limited to alleged errors for which the complaining party

lodged a contemporaneous objection). Even absent the procedural bar, however,

defendant shows no reversible error. Because the testimony of Terry Matthews was

corroborative of the eyewitness testimony of Daniel Jackson and Shannon Garland

and given the overwhelming testimonial and physical evidence presented by the

State to prove defendant’s guilt, defendant fails to show the exclusion of this

evidence had a substantial and injurious effect on the jury’s verdict. La.C.Cr.P. art.

921; Chapman, 386 U.S. at 24, 87 S.Ct. at 828; Sullivan, 508 U.S. at 279, 113

S.Ct. at 2081; Sanders, 93-0001, p. 17, 648 So.2d at 1286.

      Accordingly, these assignments of error fail.

Inadmissible Other Crimes Evidence Admitted in the Guilt Phase

                       Assignments of Error 28 through 31

      In his next argument, defendant claims that the State presented inadmissible

other crimes evidence alleging that defendant was a well-known marijuana dealer

in the neighborhood. On January 23, 2013, the court conducted a hearing on the

admissibility of evidence concerning defendant’s drug activity. The State argued

the drug activity was relevant to show intent, knowledge, absence of mistake, plan,

and motive and claimed the purpose of the introduction of the evidence was not

“just to show that Mr. Reed supposedly is a drug dealer or does drugs or has people

in or around his home consuming drugs” but rather to show that victim Jarquis

Adams knew defendant and previously participated in drug transactions with

                                         49
defendant at his residence. Further, the State maintained the drug activity was

relevant to this case because defendant was a known drug dealer and because

Jarquis allegedly stole drugs from defendant’s home the day the homicides

occurred.

      On January 29, 2013, the court ultimately granted the State’s request and

found the State offered sufficient evidence to prove that the homicides were

committed in connection with drug activity. In particular, the court found:

      In connection with the drugs there was some testimony, of course,
      they, of the incident, the testimony about a quarter pound of weed
      coming up missing, I’m reading from the transcript, and that Mr.
      Reed, of course, felt that his home had been burglarized and possibly
      the weed had been taken from his home as well as other items to
      include an amp, Xbox and other items.

      As far as motive, I think was argued by Ms. Prudhomme, that motive
      was one of the items that was present in connection with the evidence
      of drugs is that he felt the drugs were taken from his home, and even
      there was some testimony about another individual who took him to
      get some drugs and other individuals sitting at his house on the date in
      question waiting to purchase drugs from Mr. Reed. I do believe that
      the State has satisfied its burden in connection with the drugs and that
      the drugs and the evidence of that activity or those acts can be
      admitted.

Defense counsel then asked the court to clarify its ruling with respect to the

admission of this evidence of drug activity:

      MR. GOORLEY: Your Honor, I have a question, if I may about the
      evidence as to the drugs. I understand the part of the ruling about
      anything may [sic] allege to be taken at that time which would have
      been the marijuana that was alleged to have been taken. I think what
      the State is attempting to introduce is evidence that there was drug
      activity going on there. Is the Court ruling that evidence is
      admissible? That’s what they were trying to get in.

      THE COURT: It’s my understanding they were trying to get in drug
      activity insofar as testimony about one of the individuals, whose name
      escapes me now, took Mr. Reed to pick up drugs while other
      individuals were even at his house, two individuals were at his house
      saying they were waiting to purchase drugs.

      MS. PRUDHOMME: That’s correct, Your Honor, that witness’s
      name would be [Glen Merrell].

      THE COURT: That’s the individual who actually took him, I believe.

                                         50
       MS. PRUDHOMME: Shannon and Bridgett[e] Garland were waiting.

       THE COURT: Shannon and Bridgett[e] Garland were waiting to
       purchase drugs. Evidence of—and then, of course, testimony about
       quarter pound of drugs, weed, coming up missing—hold on. Let me
       finish so you understand then you might have a further question.
       Quarter pound of weed missing, I’m saying all of this activity goes to
       motive.

       MR. GOORLEY: All the evidence about drug activity is admissible,
       is that what you’re ruling?

       THE COURT: Yes.

       The defense counsel noted his objection for the record and gave notice of his

intent to seek supervisory review. On April 11, 2013, the court of appeal denied

writs on the showing made. State v. Reed, 48,342 (La. App. 2 Cir. 4/11/13)

(unpub’d). 9

       Generally, courts may not admit evidence of other crimes or bad acts to

show the defendant is a man of bad character who acted in conformity with his bad

character. La.C.E. art. 404(B)(1). However, the State may introduce evidence of

other crimes or bad acts if it has established an independent relevant reason—i.e.,

to show the defendant’s motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or accident—or if the evidence relates to conduct

constituting an integral part of the act or transaction that is the subject of the

present proceeding. State v. Prieur, 277 So.2d 126, 130 (La. 1973). Currently,

Prieur does not require a pre-trial evidentiary hearing on the question of the

admissibility of other crimes evidence; it requires only that, before such evidence

is introduced, the State makes the requisite showing outside of the presence of the

jury. State v. Lukefahr, 363 So.2d 661, 665 (La. 1978). La.C.E. arts. 401 and 402

establish the broad principle that relevant evidence—evidence having any tendency


9
  Defendant subsequently raised the issue in his motion for new trial, in which Judge Dorroh
found that the “404(B) ruling by Judge Lafitte was not erroneous,” nor was the ruling “restricted
in any way.”


                                               51
to make the existence of any fact that is of consequence to the determination of the

outcome more or less probable—is admissible unless provided otherwise. La.C.E.

art. 403 allows the trial judge to exclude relevant evidence if, among other things,

“its probative value is substantially outweighed by the danger of unfair

prejudice….” Article 403, thus, operates in the context of character and propensity

evidence. Although such evidence is quite likely to be relevant, its use is carefully

limited because of a substantial danger of unfair prejudice. See State v. Kahey, 436

So.2d 475, 487 (La. 1983) (“Generally, evidence of other acts of misconduct is not

admissible. The introduction of such evidence merely to prove that the defendant is

a ‘bad man’ involves constitutional problems because of the danger that a

defendant may be tried for a charge of which he has no notice, for which he is

unprepared, and which unfairly prejudices him in the eyes of the jury.”).

      A trial court’s ruling on the admissibility of the additional other crimes

evidence will not be disturbed absent an abuse of discretion. See State v.

Henderson, 12-2422, pp. 3-4 (La.1/4/13), 107 So.3d 566, 568; State v. Gordon, 13-

0495, p. 23 (La. App. 4 Cir. 7/16/14), 146 So.3d 758, 772.

      First, defendant argues the trial court erred when it ruled the evidence

admissible because the alleged drug activity was not relevant to motive.

Specifically, defendant claims the State failed to present evidence the homicides

were a result of a “drug deal gone bad” and, instead, elicited testimony from

“nearly every single lay witness” about his or her history of drug transactions with

defendant, e.g., how long each had been purchasing marijuana from the defendant,

how regularly each purchased from him, whether the sales were defendant’s only

source of income, and whether he had a “regular job.” Contrary to defendant’s

assertions, evidence of drug activity that occurred at defendant’s residence was

admissible to show defendant’s motive in the instant homicides. Here, evidence

that defendant was a known drug dealer in the neighborhood, whose marijuana

                                         52
supply had been stolen from his residence on the day of the homicides, clearly

established his motive to identify the alleged burglar, Jarquis Adams, who

previously purchased marijuana from him, and to kill him that same day.

      Next, defendant claims, “Mr. Reed’s past drug activity impacted the

applicability of La. Rev. Stat. 14:20 to this case.” In particular, defendant argues

the State failed to present evidence that defendant “was engaged in unlawful

conduct” when the shooting occurred. Accordingly, defendant maintains the State

failed to disprove the defense’s theory of justifiable homicide. However, with

respect to Prieur, the State was not required to disprove the defendant’s theory of

self-defense but was required to prove defendant was a known marijuana dealer in

the neighborhood. Based on Bridgette Garland’s testimony concerning the

telephone call she heard directing the person on the other end to come pick up a

“package” which Bridgette understood to mean “marijuana,” the State argued that

the promise of marijuana is what brought Jarquis back to the Jackson residence.

Thus, it was an issue of fact as to whether or not defendant was engaged in drug

activity, or at least the pretense of drug activity, at the time of the homicides. Even

assuming defendant was not engaged in drug activity at the time the homicides

occurred, evidence establishing defendant’s acquaintance with the victim because

of his drug sales in the community was admissible to prove motive, opportunity,

intent, knowledge, and absence of mistake.

      Finally, defendant argues the probative value of this evidence was

substantially outweighed by the risk of unfair prejudice to the defendant, in

violation of La.C.E. art. 403. He explains jurors “were inundated with testimony

about how often Mr. Reed sold marijuana, how much, and to whom,” and argues

the State “capitalized upon the prejudicial qualities of this evidence in closing

statements, referring to Mr. Reed as a ‘drug dealer’ who ‘makes his living selling

marijuana.’” In the instant case, it is apparent the evidence of Jarquis’ acquaintance

                                          53
with defendant, due to previous drug transactions that occurred at defendant’s

residence, was offered to establish defendant had the intent and motive to commit

the instant homicides. It was not offered to show defendant had a bad character.

Specifically, the State presented evidence at trial that defendant’s residence was

burglarized the same day the homicides occurred, and marijuana was stolen.

Further testimony revealed defendant was successful in identifying the burglar and,

according to Bridgette Garland, subsequently expressed his intent to kill that

person upon arrival at his residence. Notably, the defense presented the testimony

of Kyle King at trial who admitted to burglarizing defendant’s home along with

victim Jarquis Adams on the day the homicides occurred. Based upon these

circumstances, it does not appear the trial court abused its discretion in admitting

the other crimes evidence. Therefore, evidence of regular drug activity that

occurred at defendant’s residence was properly admissible to show intent, motive,

opportunity, and absence of mistake, and the introduction of this evidence was not

outweighed by any prejudicial effect. See Prieur, 277 So.2d at 128. Given the

veritable mountain of evidence the State presented to prove defendant was guilty

of the first-degree murders of Jeremiah, Jarquis, and Gene, we have no concerns

the jury judged him guilty “on a ground different from proof specific to the offense

charged.” See Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650,

136 L.Ed.2d 574 (1997).

      These assignments of error fail.

Inadmissible Other Crimes Evidence Admitted in the Penalty Phase

                       Assignments of Error 32 through 35

      Defendant maintains that the trial court erred in allowing evidence of

defendant’s prior conviction through the testimony of an arresting officer and

evidence of defendant’s unadjudicated and non-violent attempt to bring contraband

into the Caddo Parish Correctional Center.

                                         54
      On May 17, 2011, the State filed a “Notice of Intent to Use Other Crimes

Evidence at Sentencing Hearing,” in which it sought to introduce evidence of

defendant’s 2007 prior felony conviction for illegal use of a weapon. At a hearing

held on June 13, 2012, the trial court heard Detective Rod Demery’s testimony

concerning the investigation of the crime, defendant’s subsequent confession, and

police officer Owen McDonnell’s testimony as to fingerprint identification. In its

ruling, the trial court found the “evidence meets all the criteria of the Supreme

Court Jackson case in all respects. Accordingly, this evidence is admissible at the

sentencing hearing of the district attorney’s case in chief.” The defense counsel

noted his objection for the record.

      On September 4, 2013, the State filed a “Supplemental Notice of Intent to

Use Other Crimes Evidence at Sentencing Hearing,” in which it sought to

introduce evidence defendant made phone calls to family members while housed at

the Caddo Correctional Center in an effort to introduce contraband into the jail.

Before the penalty phase of trial, the trial court ruled that

             the tapes and the testimony of Detective Richardson are
             admissible and are relevant to the defendant’s character, but
             they will be admitted with the following limitations: The
             State—or qualifications, whatever you want to call them:

                    The State may use the jail calls to establish Mr. Reed
             used another inmate’s SO number to place the calls to his
             family members. They can establish that one of the purposes of
             the calls was to—was for Mr. Reed to attempt to get friends
             and/or family members to bring unknown contraband into the
             jail, which is against the jail rules.

                    Detective Richardson, subject to cross-examination, can
             voice his opinion based upon his years of experience in the field
             of police work as to what the contraband he believes Marcus
             Reed was attempting to get into the jail. And I want it made
             clear to the jury that Mr. Reed was not actually caught with
             contraband, but it was his attempt to do so that goes to his
             character.

      La.C.Cr.P. art. 905.2 provides, “The sentencing hearing shall focus on the

circumstances of the offense, the character and propensities of the offender, and

                                           55
the victim, and the impact that the crime has had on the victim, family members,

friends, and associates.” It is well-settled the State is entitled to introduce evidence

of a capital defendant’s unrelated convictions at the penalty phase as reflective of

his character and propensities. State v. Jackson, 608 So.2d 949, 954 (La. 1992). A

large amount of highly relevant evidence usually will not result in the injection of

an arbitrary factor into the capital sentencing hearing, although arguably there may

reach a point where the sheer magnitude and details of the evidence, while highly

probative, impermissibly shifts the jury’s focus from its primary function of

determining the appropriate sentence for this offense and this offender. State v.

Comeaux, 93-2729, p. 11 (La. 7/1/97), 699 So.2d 16, 22-23. Jackson specifically

limited “the evidence supporting the conviction to the document certifying the fact

of conviction and to the testimony of the victim or of any eyewitness to the crime.”

Jackson, 608 So.2d at 954. “This limitation . . . prohibit[s] witness testimony

relevant to the original offense of which the defendant was charged in an unrelated

matter and to which the defendant pleaded guilty to a lesser offense.” State v.

Langley, 94-0999, p. 1 (La. 4/21/94) 639 So.2d 211, 212.

      As to the admission in penalty phase hearings of unrelated and

unadjudicated crimes evidence to prove the defendant’s character and propensities,

in State v. Brooks, 541 So.2d 801 (La. 1989), this Court approved the State's

introduction in its case-in-chief in the penalty phase of two unrelated

and unadjudicated murders once the trial judge determined that: (1) the evidence of

the defendant’s commission of the unrelated criminal conduct is clear and

convincing; (2) the proffered evidence is otherwise competent and reliable;

and (3) the unrelated conduct has relevance and substantial probative value as to

the defendant’s character and propensities. Brooks, 541 So.2d at 814. In State v.

Jackson, the Court granted pre-trial writs to establish limitations on admissibility

of unrelated and unadjudicated criminal conduct in capital sentencing hearings.

                                          56
Jackson incorporated the three-pronged test from Brooks. Jackson, 608 So.2d at

955. Jackson also added the additional limitation that the evidence of the

unadjudicated criminal conduct must involve violence against the person of the

victim for which the period of limitation for instituting prosecution had not run at

the time of the indictment of the accused for capital murder. Id. In State v.

Comeaux, 93-2729, p. 10, 699 So.2d at 22, this Court revisited the issue and noted

the thrust of Jackson was not to exclude any evidence that was significantly

relevant to the defendant’s character and propensities, no matter what the amount

of the evidence was, but rather to maintain the jury’s focus on their function of

deciding the appropriate penalty by eliminating marginally relevant evidence that

does not aid the jury in performing this function. This Court then set out to provide

guidelines to help determine whether character and propensity evidence is

admissible at the penalty phase. This Court held,

      Evidence that establishes the defendant in the recent past has engaged
      in criminal conduct involving violence to the person is highly
      probative of the defendant’s character and propensities. Such
      evidence generally would not inject an arbitrary factor into a capital
      sentencing hearing, especially when the conduct involves the same or
      similar crime committed in a similar manner. On the other hand, the
      type of evidence that tends to inject arbitrary factors into a capital
      sentencing hearing usually is evidence which is of only marginal
      relevance to the jury’s determination of the character and propensities
      of the defendant.

Comeaux, 93-2729, p. 11, 699 So.2d at 22 (emphasis added).

      Defense counsel did not object to the State’s use of Detective Demery, who

was neither a victim nor an eyewitness of this crime, to establish the fact of

defendant’s prior conviction and the facts surrounding it. Accordingly, defendant

did not preserve these issues for appeal. La.C.Cr.P. art. 841; Wessinger, 98-1234,

pp. 19-20, 736 So.2d at 180-81. Even absent the procedural bar, defendant’s claim

fails. We note defendant alleges a violation of a jurisprudential rule, not a statutory

rule. Despite the technical violation of Jackson, after reviewing the record, it does


                                          57
not appear the testimony and evidence presented by Detective Demery injected an

arbitrary factor into the jury deliberations. Detective Demery’s testimony

concerning defendant’s prior conviction was presented in a concise and efficient

manner, with his entire testimony consuming only 13 pages of the penalty phase

transcript. The jury was properly aware of defendant’s past conviction because

such evidence is relevant to his character and propensities. The jury was presented

with overwhelming evidence in this case that showed defendant shot three

unarmed victims, including a 13-year-old boy, multiple times with a semi-

automatic rifle. Although it was arguably error for Detective Demery to testify to

defendant’s prior conviction for illegal use of a weapon, we find no prejudice is

apparent in the method employed by the State to convey the appropriate

information of defendant’s criminal record to the jury, and Detective Demery’s

testimony does not undermine the confidence in the death penalty verdict. These

claims fail.

      As to the introduction of evidence concerning the unadjudicated conspiracy

to bring unknown contraband into a penal institution, the State presented the

testimony of Detective Terry Richardson, who testified concerning his

investigation into defendant’s participation in a scheme to bring contraband into

Caddo Correctional Center. Although defense counsel urged several arguments for

the exclusion of evidence concerning this unadjudicated act, defense counsel never

argued Jackson required its exclusion because this conduct involved a nonviolent

unadjudicated act and never urged this point as a basis for his objection. 608 So.2d

at 955. It is well settled that a new basis for an objection may not be urged for the

first time on appeal. La.C.Cr.P. art. 841(A) (“It is sufficient that a party, at the time

the ruling or order of the court is made or sought, makes known to the court the

action which he desires the court to take, or of his objections to the action of the

court, and the grounds therefor.”) (emphasis added); State v. Butler, 12-2359, p. 5

                                           58
(La. 5/17/13), 117 So.3d 87, 89; State v. Stoltz, 358 So.2d 1249, 1250 (La. 1978).

Because defense counsel never asserted this ground as the basis of his objection,

defendant did not preserve this issue for review. Absent this procedural bar,

however, we find this claim is meritless. Even assuming error ad arguendo,

considering Det. Richardson’s testimony only spanned 22 pages of the over 160

total pages of penalty phase transcript, given the appropriateness of the State’s

introduction of defendant’s prior conviction for illegal use of a weapon as bearing

on the character and propensities of defendant and, most importantly, given the

overwhelming evidence that defendant brutally killed three unarmed young men,

defendant fails to show here that introduction of this conspiracy evidence injected

an arbitrary factor into the proceedings such that it impermissibly shifted the jury’s

focus from its primary function of determining the appropriate sentence for this

offense and this offender. Comeaux, 93-2729, p. 11, 699 So.2d at 22-23. This

claim is meritless.

      In sum, after a thorough review of the record, we do not find the trial court’s

admission of Detective Demery’s testimony concerning defendant’s prior

conviction for illegal use of a weapon and of Detective Richardson’s testimony

concerning the contraband conspiracy injected an arbitrary factor in the jury’s

sentencing decision. In light of the overwhelming and devastating evidence of

defendant’s crimes and of the aggravating factor—that defendant killed each of the

three victims when he had the specific intent to kill or to inflict great bodily harm

upon more than one person—supporting the jury finding that defendant committed

three counts of first-degree murder, defendant has not demonstrated reversible

error here. Thus, Assignment of Error 35 is meritless, as well.




                                         59
Trial Judge’s Emotional Display during Penalty Phase Testimony

                                Assignment of Error 18

       Defendant argues the trial court erroneously denied a mistrial after the trial

judge began openly crying during the victim impact testimony of Clara Morgan,

the great aunt of the victims. Defendant claims the “court’s actions constituted a

non-verbal comment on the evidence, rendering Mr. Reed’s death sentence

unreliable.”

       During the penalty phase of the trial, the State presented the victim impact

testimony of the victims’ great aunt, Clara Morgan. At the conclusion of her

testimony, the defense noted the trial judge’s emotional reaction for the record, and

the trial transcript reads in pertinent part:

       MR. GOORLEY: Your Honor, I realize Ms. Clara Morgan’s
       testimony was heartfelt. I don’t think that anybody in the courtroom
       wasn’t affected by her testimony, and all our hearts went out to her
       and that caused emotion from everyone here, including me, including
       Mr. Reed, including Mr. Florence.

               But I have to protect the record, Your Honor—

       THE COURT: I understand.

       MR. GOORLEY: —and, therefore, I have to, for the record, state that
       right before we broke, that Your Honor was visibly impacted by that
       testimony and that you were—you were in tears, as Ms. Prudhomme
       was, and possibly other people were.

             But as the fact finder in this case—not the fact finder in the
       case, but the judge in this case, it is your duty to, let’s say, not
       comment on the evidence.

             And for the record we would just state that the Court’s
       emotional situation and tears was in fact a comment on her testimony.
       We want to make that part of the record clear for whatever purposes
       may come down the road.

       MR. COX: Well, is there a motion before the Court?

       Mr. GOORLEY: Yes, Your Honor. I would ask for a mistrial.

       MR. COX: We respectfully oppose the mistrial. We’ll stipulate that
       Your Honor is human and we’ll stipulate that any emotion that you
       may have shown in this matter was not a comment on the evidence.

                                            60
             What the code refers to by a comment on the evidence is if the
      judge were to say or infer to the jury the credibility of a witness or
      truthfulness or untruthfulness of a witness. To even suggest that
      honest human emotion is a comment on the evidence just—it shows
      how jaded the defense is and how jaded they’ve become that, you
      know—anyway, I object.

      MR. GOORLEY: Your Honor, may I just comment on one thing?

      THE COURT: I don’t want to hear any more about it. Frankly I’m
      sick of the two of you, all of you, taking jabs at each other. And to
      quote Harmon Drew who said this in a trial that I had before him
      several years ago when he was still a district court judge, This is a
      heck of a way to make a living. It is.

            And that was very difficult. But my emotions weren’t different
      than many other people in the courtroom or the jury. I don’t believe
      my emotions really had any impact on the jury. I kept my head down.
      I was visibly moved by it, as I’m sure I’m going to be visibly moved
      by Mr. Reed’s family if they testify.

             This is hard and it’s—I’m an emotional person. I am. My
      emotions show on my face with what I do. They do. And that was
      very difficult, and I’ll say it on the record. But I don’t believe that it
      really impacts the jury to see any human being moved by that. It’s not
      a comment on the evidence; it’s not a comment on someone’s
      testimony; it’s not.

            So I think everybody shows their emotions in different ways,
      and I believe every judge that has to sit through this feels the same
      way when these impact witnesses take the stand.

             So I am going to deny your request for a mistrial at this time,
      and I’ll note your objection for the record.

      Significantly, prior to penalty phase closing arguments, the trial judge asked

both the State and the defense “if either side believes an additional instruction is

necessary concerning the emotions that took place yesterday.” Both parties

declined her offer to provide the jury with an additional instruction.

      The defense raised this issue again in its omnibus motion for new trial. The

trial court denied relief on the issue, noting “although the Court was emotional

during the victim impact testimony presented by the State[,] the Court, defense

counsel and the defendant were also very emotional when the defendant’s victim

testimony was presented.”

                                          61
      As a general matter, mistrial is a drastic remedy which should only be

declared upon a clear showing of prejudice by the defendant. La.C.Cr.P. art. 775;

Smith, 430 So.2d at 44; State v. Wilkerson, 403 So.2d 652, 659 (La. 1982) (mere

possibility of prejudice is not enough to warrant mistrial). In addition, a trial judge

has broad discretion in determining whether conduct is so prejudicial as to deprive

an accused of a fair trial. Sanders, 93-0001, pp. 20-21, 648 So.2d at 1288-89; State

v. Wingo, 457 So.2d 1159, 1166 (La. 1984).

      La.C.Cr.P. art. 772 prohibits comments on the evidence by the judge

whether “recapitulating the evidence, repeating the testimony of any witness, or

giving an opinion as to what has been proved, not proved, or refuted.” See State v.

Williams, 375 So.2d 1379, 1381 (La. 1979) (reversible error if judge makes any

comment expressing or implying his or her opinion with regard to a material

issue); State v. Hodgeson, 305 So.2d 421, 430 (La. 1974) (purpose of Art. 772 “is

to insure that the jury is in fact the judge of the law and the facts on the question of

guilt or innocence . . . .”). The prohibition extends to indirect, non-verbal conduct.

State v. Wright, 445 So.2d 1198, 1200 (La. 1984). Although La.C.Cr.P. art. 772

precludes the judge from commenting in the presence of the jury upon the facts of

the case, to constitute reversible error, improper comments must have influenced

the jury and contributed to the verdict. State v. Johnson, 438 So.2d 1091, 1102 (La.

1983); State v. Gallow, 338 So.2d 920, 922 (La. 1976). Moreover, a trial judge’s

remarks constitute harmless error if those remarks do not imply an opinion as to

the defendant’s guilt or innocence. State v. Joseph, 437 So.2d 280, 282 (La. 1983).

Further, courts have traditionally upheld denials of motions for mistral based on

emotional outbursts when a defendant fails to show their influence upon the jury

prejudiced his right to a fair trial. State v. Clark, 02-1463, p. 32 n.25 (La. 6/27/03),

851 So.2d 1055, 1079.

      Here, the record reveals that, out of the presence of the jury, the trial judge

                                          62
admitted she was “visibly moved” by the testimony. However, she acknowledged

she kept her head down and her emotions “weren’t different than many other

people in the courtroom or the jury.” It appears the trial court did not abuse its

discretion when it found the emotional display did not impact the jury and did not

constitute a comment on the evidence. Notably, at the conclusion of the family

testimony presented by the defense in the penalty phase, out of the presence of the

jury, the trial judge stated for the record that “both Mr. Florence and Mr. Goorley

were emotional during that and their human feelings showed just like mine.” 10 The

record reflects the judge, the prosecutors, the defense counsel, the jury, and the

witnesses all exhibited emotional responses during the testimony of both the

victims’ and the defendant’s family members. The record clearly demonstrates that

this case was a tragic and violent experience for the family members both of the

victims and of the defendant. Nevertheless, “we must credit the jurors with the

good sense and fair-mindedness to see these outbursts for what they were, the

natural and irrelevant expression of human emotion, and not let the outbursts

influence their decision on defendant’s penalty.” Wessinger, 98-123, p. 24, 736

So.2d at 183. A review of the record does not reveal the trial judge’s emotional

response exhibited in the courtroom implied an opinion as to the penalty that

should be imposed or had any actual influence on the jury. Defendant fails to show

abuse of discretion which would warrant the substitution of this Court’s judgment

for that of the trial judge who conducted the trial and who was in the best position

to assess impact upon the jury. This claim is meritless.

                                  CAPITAL SENTENCE REVIEW

          In the discharge of the duty imposed by the legislature to “review every

sentence of death to determine if it is excessive,” La.C.Cr.P. art. 905.9, this Court

will review the record in a capital case to determine: (1) whether the sentence was

10
     The attorneys did not respond to or dispute the judge’s statement.
                                                  63
imposed under the influence of passion, prejudice or any other arbitrary factors; (2)

whether the evidence supports the jury’s finding of a statutory aggravating

circumstance; and (3) whether the sentence is disproportionate to the penalty

imposed in similar cases, considering both the crime and the defendant. La.S.Ct.

Rule 28, §1. In the present case, Rule 28 review demonstrates defendant’s death

sentence is not excessive.

      The Uniform Capital Sentence Report reveals defendant is a black male born

on April 4, 1977. He was 33 years of age at the time of the offense and is now 39

years of age. He is divorced and has two children, who were 15 years of age and 10

years of age in 2014 when the Uniform Capital Sentence Report was completed. In

terms of education, defendant has completed the 11th grade. His employment

history includes Libbey Glass, Albertson’s, and Building Supply. He also

previously worked for the Shreveport Housing Authority, where he was an

inspector. His most recent employment was in 2008 at Wal-Mart in the produce

department. Immediately prior to incarceration, he applied for disability because of

an injury to his arm he allegedly received as a child. Specifically, he reported he

was unable to straighten one of his arms and the condition limited his employment

options. He was previously convicted of misdemeanor simple battery in 1997,

misdemeanor illegal carrying of weapons in 2002, and misdemeanor loud music in

2002, and he pled guilty to illegal use of weapons in 2007.

Passion, Prejudice, or Other Arbitrary Factors

      As discussed below, the record reveals no indicia of passion, prejudice, or

arbitrariness.

      First, defendant argues that race plays a “deleterious role in the

administration of capital punishment in Caddo Parish” and in the determination of

whether any given homicide was committed in self-defense. However, it appears

defendant did not present this claim to the District Court where the necessary

                                         64
factual development could occur. The claim rests on speculation, unsupported

allegations, and the fact that during the five year period in which defendant was

prosecuted, Caddo Parish was responsible for 40 percent of death sentences in the

state. Notably, in the instant case, defendant and the victims were African

Americans as were four members of the jury.

      Second, defendant argues the prosecutor’s impermissible references to

religion in penalty phase closing arguments introduced passion and prejudice in the

present case. As an initial matter, it does not appear defendant presented this claim

in the District Court by contemporaneous objection. La.C.Cr.P. art. 841;

Wessinger,    98-1234,    pp.   19-20,   736    So.2d    at   180-81   (reviving   the

contemporaneous objection rule for the penalty phase as well as guilt phase of a

capital trial). Nevertheless, as discussed above, we find this claim to be meritless.

Pursuant to La. C.Cr.P. art. 774, arguments by counsel may not appeal to prejudice

and must be limited to the evidence admitted, the lack of evidence, conclusions of

fact drawn from the evidence by the state or defense, and the applicable law. Art.

774 is applicable to capital sentencing procedure by virtue of La.C.Cr.P. art. 905.2

which adopts, insofar as they are applicable, the general provisions of the Code of

Criminal Procedure as the procedure to be followed during the sentencing phase of

the bifurcated trial. However, while this court may look to Art. 774 to determine if

argument was improper, in reviewing whether it is reversible error, it must

determine whether the argument introduced passion, prejudice or any other

arbitrary factor into the proceedings which contributed to the jury’s

recommendation of the death penalty. State v. Lindsey, 404 So.2d 466, 483 (La.

1981). Furthermore, although courts have denounced references to religion, most

have not held that such references warrant a reversal of the sentence. See e.g.,

United States v. Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st Cir. 1995) (“[A]

reference to religion does not necessarily require reversal.”).

                                          65
       As detailed more fully in our discussion of Assignments of Error 19 through

21, a review of the record reveals the prosecutor only referenced religion on

rebuttal in response to defense counsel’s references to the New Testament in his

closing argument. In addition, the references in the instant case did not recommend

that the jury rely on “religion” in making their decision. On the contrary,

prosecutor directly requested the jury leave religion out of their decision making

process:

       You know, what I don’t understand is why we can’t leave God out of
       this. I mean, the law does not talk about the Bible. The law does not
       talk about God. The law talks about aggravating circumstances and
       mitigating circumstances and it talks about the circumstances of the
       offense and it talks about the character and propensity of the
       defendant. But nowhere does it talk about the Bible. Nowhere does it
       talk about God.

Cf. Jones v. Kemp, 706 F.Supp. 1534, 1558-60 (N.D. Ga. 1989) (death sentence set

aside where capital sentencing jury allowed to consider Bible). Consequently, it

cannot be concluded the prosecutor’s comments introduced passion, prejudice or

any other arbitrary factor into the proceedings.

       The record does not reveal any potential indicia of passion, prejudice, or

arbitrariness. Defendant, a 33-year-old black male, killed three unarmed

individuals, including a 13-year-old boy, immediately upon their arrival to his

home, and received a sentence of death from a unanimous jury consisting of two

black females, two white females, two black males, and six white males, during the

selection of which no Batson challenge was asserted. 11 Thus, defendant fails to

prove his allegations of either racism or references to religion in closing arguments

contributed to the verdict.

Aggravating Circumstances

       As demonstrated by the jury’s verdict during the guilt phase of the trial, the


11
  Notably, the State asserted a reverse Batson challenge, which the trial court denied ruling that
the State failed to make a prima facie showing “that the peremptory challenges exercised by
[defendant] were on the basis of race.”
                                               66
State presented constitutionally sufficient evidence to prove beyond a reasonable

doubt that defendant killed each of the three victims when he had the specific

intent to kill or to inflict great bodily harm upon more than one person, and that his

actions were not justifiable in self-defense. La.C.Cr.P. art. 905.4(A)(4); see

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) As

discussed above, the record amply supports this determination. The State’s

evidence of defendant’s motive and premeditation in the killings, his continuous

firing of the semi-automatic rifle inside of the victims’ vehicle, and his subsequent

actions taken to distance himself from the shooting, overwhelmingly proved

defendant had the specific intent to kill Jarquis Adams, and his two brothers,

Jeremiah Adams and Gene Adams, when he acted with the specific intent to kill or

inflict great bodily harm on more than one person. Hence, the jury’s sentencing

decision in this case does not appear to be arbitrary or capricious. See State v. Roy,

681 So.2d 1230, 1242 (La. 1996). Consequently, defendant’s sentence of death is

firmly grounded upon the jury’s finding beyond a reasonable doubt that defendant,

as he committed each of these murders, did so while he “knowingly created a risk

of death or great bodily harm to more than one person.” La.C.Cr.P. art.

905.4(A)(4).

Proportionality

      The federal Constitution does not require a proportionality review. Pulley v.

Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). However, comparative

proportionality review remains a relevant consideration in determining the issue of

excessiveness in Louisiana. State v. Burrell, 561 So.2d 692, 710 (La. 1990); State

v. Wille, 559 So.2d 1321, 1341 (La. 1990).

      According to the State, since 1976, 48 persons—excluding defendant—have

been indicted for first-degree murder in Caddo Parish, of which 20 have been

found to deserve a sentence of death by a jury. Of death sentences not reversed,

                                         67
eight involved intent to kill more than one person.

      A review of the capital verdicts from Caddo Parish does not suggest that

Marcus Donte Reed received a disproportionately harsh sentence. As noted above,

eight cases resulted in a death sentence when the defendant had the intent to kill

more than one person. See State v. Tucker, 13-1631 (La. 9/1/15), 181 So.3d 590

(defendant shot his pregnant girlfriend three times, killing her and the unborn

child); State v. Dorsey, 10-0216 (La. 9/7/11), 74 So.3d 603 (Dorsey tied a 79-year-

old woman to a chair, ransacked her home, bludgeoned her 52-year-old son to

death with sufficient force to cause his broken skull to lacerate his brain, set him

on fire, and left the woman tied to a chair in her burning home); State v. Holmes,

06-2988 (La. 12/2/08), 5 So.3d 42 (defendant and her boyfriend forced their way

into the home of 70-year-old Julian Brandon and 68-year-old Alice Brandon, shot

Julian, then stabbed and slashed him to death, and robbed Alice before shooting

her in the head); State v. Edwards, 97-1797 (La. 7/2/99), 750 So.2d 893 (Edwards

and an accomplice shot and killed Victoria Kennedy and shot and beat Gerald

Kennedy, who received multiple skull fractures but survived, while robbing them

at their apartment); State v. Cooks, 97-0999 (La. 9/9/98), 720 So.2d 637 (Cooks

along with four others entered a home in Shreveport to steal marijuana from the

occupants and a struggle ensued and Cooks shot and killed one victim and also

directed the shooting of two other surviving victims); State v. Tyler, 97-0338 (La.

9/9/98), 723 So.2d 939 (Tyler shot and killed the manager of a fast food restaurant

in the course of an armed robbery, and he also shot two other employees in the

head, but they survived the injuries); State v. Davis, 92-1623 (La. 5/23/94), 637

So.2d 1012 (Davis committed two separate murders in the course of two armed

robberies); State v. Code, 91-0998 (La. 11/29/93), 627 So.2d 1373 (a vicious serial

killer was convicted of brutally killing four people, including one whom he nearly

decapitated and another whom he made sit in the blood of her murdered daughter

                                         68
before being killed herself, and he was found to have killed four other people as

well).

         Here, it is appropriate for the Court to look beyond the First Judicial District

Court and conduct a statewide proportionality review. Cf. State v. Davis, 92-1623,

pp. 34-35 (La. 5/23/94), 637 So.2d 1012, 1030-31. Louisiana juries have not

hesitated in imposing the death penalty in a variety of cases involving multiple

deaths or when a defendant risks death or great harm to more than one person. See

State v. Scott, 04-1312 (La. 1/19/06), 921 So.2d 904 (two female bank tellers shot

during bank robbery; first-degree murder convictions affirmed, case remanded for

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

(2002)); State v. Brown, 03-0897 (La. 4/12/05), 907 So.2d 1 (couple kidnapped

from their home, both shot and then found burned in their torched vehicle); State v.

Wessinger, 98-1234 (La. 5/28/99), 736 So.2d 162 (ex-employee returned to

restaurant, shot three employees and killed two); State v. Robertson, 97-0177 (La.

3/4/98), 712 So.2d 8 (couple stabbed to death in their home during an aggravated

burglary); State v. Baldwin, 96-1660 (La. 12/12/97), 705 So.2d 1076 (defendant

shot and killed his estranged wife and the three men who were with her at the

time); State v. Tart, 93-0772 (La. 2/9/96), 672 So.2d 116 (defendant killed an

elderly couple with a hunting knife during the commission of an aggravated

burglary and armed robbery or simple robbery of the couple’s jewelry store); State

v. Taylor, 93-2201 (La. 2/28/96), 669 So.2d 364 (ex-employee returned to

restaurant, killed one employee, and attempted to kill another); State v. Sanders,

93-0001 (La. 11/30/94), 648 So.2d 1272 (husband killed estranged wife and new

boyfriend); State v. Deboue, 552 So.2d 355 (La. 1989) (defendant killed two

children in an apartment he and his brother intended to burglarize).

         Because this Court has overwhelmingly upheld death sentences in such

cases and due to the horrific nature of defendant’s brutal and senseless killing of

                                            69
the three unarmed Adams brothers, we find the death sentence imposed in this case

is not disproportionate.

                                          DECREE

      For the reasons assigned herein, the defendant’s conviction and death

sentence are affirmed. This judgment becomes final on direct review when either:

(1) the defendant fails to petition timely the United States Supreme Court for

certiorari; or (2) that Court denies his petition for certiorari; and either (a) the

defendant, having filed for and been denied certiorari, fails to petition the United

States Supreme Court timely, under its prevailing rules, for rehearing of denial of

certiorari; or (b) that Court denies his petition for rehearing, the trial court shall,

upon receiving notice from this Court under La.C.Cr.P. art. 923 of finality of direct

appeal, and before signing the warrant of execution, as provided by La. Rev. Stat.

15:567(B), immediately notify the Louisiana Indigent Defense Assistance Board

and provide the Board with reasonable time in which: (1) to enroll counsel to

represent the defendant in any State post-conviction proceedings, if appropriate,

pursuant to its authority under La. Rev. Stat. 15:178; and (2) to litigate

expeditiously the claims raised in that application, if filed in the state courts.




AFFIRMED.




                                           70
09/07/16



                    SUPREME COURT OF LOUISIANA

                               No. 2014-KA-1980

                           STATE OF LOUISIANA

                                     VERSUS

                           MARCUS DONTE REED

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



Hughes, J., concurs in the result.




                                       1
