                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #012


FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 13th day of March, 2018, are as follows:


PER CURIAM:


2016-KP-1285      STATE OF LOUISIANA v. LANDON D. QUINN (Parish of Orleans)

                  Here, the eyewitness identified relator from a photographic
                  lineup and testified at two trials. At all times, the eyewitness
                  was adamant that relator was the shooter. He highlighted
                  relator’s eyes, eyebrows, nose, and high cheekbones as the
                  distinctive characteristics leading to his identification. He
                  correctly told the police that they would find no shell casings.
                  The surveillance footage from a nearby business also confirmed
                  the eyewitness’s account that the shooter ran up with his head
                  and lower face obscured by a white t-shirt, leaving the neck hole
                  to expose the portion of the shooter’s face the eyewitness
                  described. It is also significant that the affidavit does not
                  indicate that the eyewitness said the person in the booking photo
                  was not the shooter; the eyewitness simply indicated that the
                  shooter had shorter hair.

                  Finally, we note that a person with short twists in his hair
                  appears on the surveillance video, and relator had short twists
                  in his hair when arrested 24–48 hours after the shootings. While
                  the affidavit may call into question the eyewitness’s ability to
                  accurately discern the style of hair beneath a t-shirt worn over
                  it, the likelihood of a different result if that information had
                  been used at trial appears conceivable but not substantial, and
                  is insufficient to undermine confidence in the outcome of the
                  second trial. Therefore, we reverse the district court’s ruling
                  that granted relator a new trial and we reinstate relator’s
                  convictions and sentences.

                  REVERSED.

                  JOHNSON, C.J., dissents and assigns reasons.
03/13/18


                     SUPREME COURT OF LOUISIANA


                                No. 2016-KP-1285

                            STATE OF LOUISIANA

                                     VERSUS

                              LANDON D. QUINN


       ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT
              COURT FOR THE PARISH OF ORLEANS



PER CURIAM

      After the jury could not reach a verdict in relator’s first trial, the jury in

relator’s second trial found him guilty of two counts of second degree murder in

connection with the 2009 shooting deaths of Matthew Miller and Ryan McKinley.

On the night of the shooting, an eyewitness told police that they would not find any

shell casings because the shooter used a revolver. The following day, the

eyewitness identified relator as the shooter from a photographic lineup. The

eyewitness testified at both trials and unequivocally identified relator as the

shooter.

      The convictions were affirmed on appeal. State v. Quinn, 12-0689 (La. App.

4 Cir. 8/21/13), 123 So.3d 320, writ denied, 13-2193 (La. 3/14/14), 134 So.3d

1195. After direct review was completed, relator sought post-conviction relief on

the ground that, inter alia, counsel rendered ineffective assistance at the second

trial by failing to utilize a statement obtained from the eyewitness by a defense

investigator. Specifically, the eyewitness told the defense investigator that the

shooter’s hair was shorter than that depicted in a booking photograph taken at the
time of relator’s arrest around 24–48 hours after the shootings. The defense

investigator memorialized his interview with the eyewitness in an affidavit that

was provided to counsel, who represented relator in his second trial but did not

utilize the affidavit or call the investigator to testify.

       The district court granted relator a new trial after conducting an evidentiary

hearing. The district court found that counsel at relator’s second trial were in

possession of the affidavit and that the defense investigator would have made a

compelling witness who could have challenged the strength of the eyewitness

identification. The court of appeal denied the state’s writ application. State v.

Quinn, 16-0150 (La. App. 4 Cir. 6/10/16) (unpub’d). The court of appeal found

that the affidavit “strongly suggests that the defendant was mistakenly identified as

the perpetrator.” Quinn, 16-0150, p. 2. For the following reasons, we find that the

courts below erred in those determinations.

       “The Sixth Amendment, applicable to the States by the terms of the

Fourteenth Amendment, provides that the accused shall have the assistance of

counsel in all criminal prosecutions.” Missouri v. Frye, 566 U.S. 134, 138, 132

S.Ct. 1399, 1404, 182 L.Ed.2d 379 (2012). The United States Supreme Court has

long recognized that the right to counsel is the right to the effective assistance of

counsel. See McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449,

25 L.Ed.2d 763 (1970) (citing Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100

L.Ed. 77 (1955); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680

(1942); Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940);

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). Claims of

ineffective assistance of counsel are generally governed by the standard set forth

by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984), and adopted by this Court in State v. Washington, 491

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So.2d 1337, 1339 (La. 7/18/86).

      To prevail on such a claim, a defendant must first show that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland, 466

U.S. at 687–88, 104 S.Ct. at 2064 The Supreme Court further noted that “[a]n error

by counsel, even if professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error has no effect on the judgment.” Id.,

466 U.S. at 691, 104 S.Ct. at 2066. Additionally, the Court reasoned “[t]he purpose

of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the

assistance necessary to justify reliance on the outcome of the proceeding.

Accordingly, any deficiencies in counsel’s performance must be prejudicial to the

defense in order to constitute ineffective assistance under the Constitution.” Id.,

466 U.S. at 691–92, 104 S.Ct. at 2067. Thus, the Strickland court held that the

“defendant must [also] show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id., 466 U.S. at 694, 104 S.Ct. at 2066. The court

further explained that in making a determination of ineffectiveness of counsel, “the

ultimate focus of inquiry must be on the fundamental fairness of the proceeding

whose result is being challenged. In every case the court should be concerned with

whether, despite the strong presumption of reliability, the result of the particular

proceeding is unreliable because of a breakdown in the adversarial process that our

system counts on to produce just results.” Id., 466 U.S. at 696, 104 S.Ct. at 2053–

54.

      At the heart of the present case is a purported difference in relator’s hairstyle

as it appeared at the time of the shootings and 24–48 hours later at the time of his

arrest. Notably, a t-shirt over the shooter’s head concealed his hair and the lower

                                          3
portion of his face at the time of he shootings. The eyewitness, however, indicated

that he recognized relator by his nose, eyes, and cheekbones, which were exposed

through the neck hole of the shirt. He also indicated that he could perceive beneath

the covering that relator’s hair was short and tight to his head. In a booking

photograph taken 24–48 hours after the shootings, however, relator’s hair had short

twists. Relator contends counsel’s failure to use this discrepancy to impeach the

eyewitness’s credibility constituted ineffective assistance. Under the circumstances

presented here, we disagree with relator’s contention.

       The first trial began on July 29, 2010. The eyewitness testified that he was in

his truck talking on the phone when he saw two white males walking in the area.

After the males walked past his vehicle, the eyewitness saw someone else “run up

the street real quick” and point a gun at the men. He described that this person—

the shooter—had a t-shirt covering his head like a mask, with the shirt covering

“the top part of the head, and down, and across like the top part of his mouth.” The

shooter’s cheeks, eyes, and nose were exposed through the neck hole, and he

approached from the same direction that the two males had been walking. The

eyewitness unequivocally identified relator as the shooter. In describing his lineup

identification, the eyewitness stated that what stood out were relator’s nose, high

cheekbones, and eyes. On cross-examination, defense counsel asked the

eyewitness whether relator had the same hairstyle then as he had at trial, to which

he replied, “No, he did not.” On redirect, the state asked the eyewitness what

relator’s hairstyle looked like during the shooting. The eyewitness stated that he

could tell relator had a short hairstyle because the t-shirt was pulled tight and the

lighting was good where the incident occurred. As noted above, the jury was

unable to reach a verdict in the first trial.

       Relator was retried on June 14, 2011. The eyewitness testified similarly at

                                                4
the second trial as he had at the first. He again identified relator as the shooter and

described the neck part of the t-shirt as exposing his eyes, cheeks, and nose. On

cross-examination, he stated that the shirt “went across the top part of [the

shooter’s] mouth,” and he agreed with defense counsel that he would have seen

“essentially above the upper lip to the forehead.” Defense counsel also elicited

testimony wherein the eyewitness admitted his own criminal history. On redirect,

the eyewitness again stated that the distinctive characteristics of relator’s face were

“[h]is cheekbones, his nose, his eyes, his eyebrows.” Neither the state nor defense

questioned the eyewitness about the shooter’s hairstyle at this trial. Before resting,

the state introduced video footage and still photographs from a public crime

camera located outside the convenience store the victims visited immediately

before the shootings. The state contended this evidence showed relator lurking

outside the store just before the shooting. This evidence was not presented to the

jury in the first trial. Notably, the person depicted on the crime camera wore his

hair in short twists.

       There appears to be little dispute that counsel had received the affidavit and

should have been aware of its content. Although the state speculates as to why

counsel might have strategically decided not to utilize the affidavit or call the

defense investigator to testify, it is clear that the affidavit was relevant to the

eyewitness identification and no error is apparent in the district court’s

determination that counsel erred under Strickland’s first prong in not utilizing this

information. It is not as readily apparent, however, that there is a substantial

likelihood of a different outcome, as required under Strickland’s second prong, if

counsel had used this information. The United States Supreme Court cautioned in

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) as

follows:

                                          5
      In assessing prejudice under Strickland, the question is not whether a
      court can be certain counsel’s performance had no effect on the
      outcome or whether it is possible a reasonable doubt might have been
      established if counsel acted differently. Instead, Strickland asks
      whether it is reasonably likely the result would have been different.
      This does not require a showing that counsel’s actions more likely
      than not altered the outcome, but the difference between Strickland’s
      prejudice standard and a more-probable-than-not standard is slight and
      matters only in the rarest case. The likelihood of a different result
      must be substantial, not just conceivable.

Richter, 562 U.S. at 111–12, 131 S.Ct. at 791–92 (internal citations and quotation

marks omitted).

      Here, the eyewitness identified relator from a photographic lineup and

testified at two trials. At all times, the eyewitness was adamant that relator was the

shooter. He highlighted relator’s eyes, eyebrows, nose, and high cheekbones as the

distinctive characteristics leading to his identification. He correctly told the police

that they would find no shell casings. The surveillance footage from a nearby

business also confirmed the eyewitness’s account that the shooter ran up with his

head and lower face obscured by a white t-shirt, leaving the neck hole to expose

the portion of the shooter’s face the eyewitness described. It is also significant that

the affidavit does not indicate that the eyewitness said the person in the booking

photo was not the shooter; the eyewitness simply indicated that the shooter had

shorter hair.

      Finally, we note that a person with short twists in his hair appears on the

surveillance video, and relator had short twists in his hair when arrested 24–48

hours after the shootings. While the affidavit may call into question the

eyewitness’s ability to accurately discern the style of hair beneath a t-shirt worn

over it, the likelihood of a different result if that information had been used at trial

appears conceivable but not substantial, and is insufficient to undermine

confidence in the outcome of the second trial. Therefore, we reverse the district


                                           6
court’s ruling that granted relator a new trial and we reinstate relator’s convictions

and sentences.

REVERSED




                                          7
  03/13/18



                     SUPREME COURT OF LOUISIANA

                                   No. 2016-KP-1285

                            STATE OF LOUISIANA

                                      VERSUS

                                  LANDON D. QUINN

       ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT
                  COURT FOR THE PARISH OF ORLEANS


JOHNSON, C.J. dissents and assigns reasons.
      I cannot find the district court abused its discretion in granting the

defendant’s application for post-conviction relief and ordering a new trial. In my

view, defense counsel failed to investigate, research, or properly prepare

defendant’s case in light of the obvious problems with the identification of

defendant as the perpetrator. Thus, I would affirm the ruling of the district court

granting defendant a new trial.




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