                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                          NEWS RELEASE #027


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 26th day of June, 2019, are as follows:



PER CURIAM:


2017-KP-0649      STATE OF LOUISIANA   v. DARRELL TOUBYA THOMAS (Parish of Caddo)

                  Accordingly, we find the district court erred in failing to
                  correctly apply the deferential Strickland standard. Therefore,
                  we vacate the district court’s ruling that granted defendant a
                  new trial, and we reinstate the conviction and sentence.

                  VACATED.
06/26/19


                     SUPREME COURT OF LOUISIANA


                                No. 2017-KP-0649

                            STATE OF LOUISIANA

                                     VERSUS

                        DARRELL TOUBYA THOMAS


           ON SUPERVISORY WRITS TO THE FIRST JUDICIAL
                DISTRICT COURT, PARISH OF CADDO



PER CURIAM

      Defendant Darrell Toubya Thomas was unequivocally identified by both

Traavis and Stephan Harris as the person who exited a black SUV and commenced

firing at them. The shooting took place near the Take-a-Bag store on Milam Street

in Shreveport on December 13, 2010. Traavis’s right leg was amputated because of

the shooting.

      Defendant was not a stranger to the Harris brothers, and he left town after

the shooting. Defendant, his girlfriend Ronisha Taylor, and her mother Rhonda

Taylor admitted at trial that they were present during the shooting in a black SUV

belonging to defendant’s mother. All three said they heard gunshots, they denied

seeing the shooter, and they denied that anyone else was in the SUV with them.

The jury who heard this testimony found defendant guilty of attempted first degree

murder, and the district court sentenced him as a second-felony offender to serve

55 years imprisonment at hard labor without parole eligibility.

      Just over one month after trial, defendant through new counsel filed a

motion for new trial claiming that Cordarly Chapple arrived with defendant and the
Taylors in the SUV, and that Chapple was the real shooter. According to

defendant, Rhonisha and Rhonda would have identified Chapple if trial counsel

had asked them. Defendant also provided the district court with an affidavit by

Chapple in which he claimed he was the shooter and that defendant was innocent.

      After the district court denied the motion for new trial, the court of appeal

affirmed the conviction and sentence. State v. Thomas, 48,530 (La. App. 2 Cir.

12/4/13), 131 So.3d 84. The court of appeal found that a new trial was not

warranted by newly discovered evidence:

      The claim that Rhonda and Rhonisha knew who the shooter was and
      would have testified that it was Chapple if only defense counsel had
      asked them shows that the evidence upon which the motion for a new
      trial is based is not newly discovered evidence. If Chapple was in the
      vehicle with the defendant and the Taylors, then they all would have
      known that he was the shooter. However, no one mentioned Chapple
      at trial or even that someone else was with them in the SUV.
      Moreover, a review of the trial transcript shows, contrary to what has
      been asserted by Mr. Keene in support of the motion for a new trial,
      that the Taylors had the opportunity when questioned by trial counsel
      for the defense to identify the shooter as Chapple.

      ....

      The above testimony from trial shows that trial counsel, Mr.
      Scarborough, directly questioned the Taylors about whether they
      could identify the shooter. Both women testified under oath that they
      could not. The Taylors had the opportunity to identify Chapple as the
      shooter and did not do so. The purported new evidence could have
      easily been discovered prior to or during trial if the Taylors had gone
      to the police with the information they apparently now claim to have
      had about the shooter or if they had testified differently at trial.

Thomas, 48,530, pp. 10–11, 131 So.3d 90. The court of appeal also commented

unfavorably on defendant’s claim that trial counsel rendered ineffective assistance

in investigating the case:

      Here, defendant claims that trial counsel did not properly investigate
      the case to discover the real perpetrator of the crime, allegedly
      Chapple. As previously addressed, trial counsel directly questioned
      the Taylors at trial about whether they could identify the shooter, and
      both testified that they could not. None of the defendant’s witnesses,
      including the defendant himself, identified any other person as the

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      shooter when questioned by trial counsel. The jury heard and rejected
      the testimony that the defendant was not the shooter. This case turned
      on the credibility of the witnesses, and the jury chose to accept the
      testimony of the Harris brothers, who identified the defendant as the
      shooter within hours of the incident, over the testimony of the
      defendant and his witnesses, who simply claimed that the defendant
      did not do it.

Thomas, 48,530, p. 13, 131 So.3d at 91–92. Nonetheless, the court of appeal

relegated this claim to future collateral review where additional evidentiary

development could occur:

      Nevertheless, the defendant did not have the opportunity in the trial
      court to produce evidence to show that trial counsel was ineffective in
      investigating the matter and failing to discover that Chapple was,
      allegedly, the actual perpetrator. Though we note from the record that
      trial counsel did question the defense witnesses about the actual
      shooter during their testimony, the record does not contain sufficient
      evidence to allow this court to otherwise evaluate an ineffective
      assistance of counsel claim as it otherwise relates to the Chapple
      affidavit. Therefore, we pretermit any ruling on the ineffective
      assistance of counsel claim, which is preserved for the defendant to
      raise, if he so chooses, by application for post-conviction relief.

Thomas, 48,530, pp. 13–14, 131 So.3d at 92.

      That evidentiary development followed albeit without the benefit of trial

counsel’s testimony because he was by then deceased. Chapple also invoked his

Fifth Amendment right against self-incrimination and refused to testify at the

evidentiary hearing.

      Rhonda Taylor testified that Chapple was in the SUV with her, defendant,

and Rhonisha when they drove to the scene, and that when they arrived Chapple

stepped out and began shooting. When impeached with her trial testimony that she,

Ronisha, and defendant were the only ones in the SUV and that she did not see the

shooter, she explained she was frightened and that there were several people

shooting. Ronisha Taylor testified that Chapple “came out of nowhere, shooting”

and she initially claimed (but then retracted) that she had identified him as the

shooter at trial. She then also explained that she testified at trial that she had not

                                          3
seen the shooter because she was scared. Finally, an investigator for the Public

Defender’s Office, which was appointed to represent defendant originally before

he obtained private counsel, testified he had interviewed the Taylors. They told

him that there was an unknown man with them in the SUV. They also told him

they did not see the shooter. The investigator was unable to obtain the unknown

man’s identity from defendant.

      The testimony of Rhonda and Ronisha Taylor at the evidentiary hearing

contained numerous inconsistencies, was contradicted by their testimony at trial,

and appeared malleable and subject to revision as it progressed. The district court

acknowledged that these witnesses lacked credibility. Nonetheless, the district

court found defendant was entitled to a new trial because counsel rendered

ineffective assistance. The district court erred.

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

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

this Court in State v. Washington, 491 So.2d 1337, 1339 (La. 1986), a reviewing

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

      The Strickland test of ineffective assistance affords a “highly deferential”

standard of review to the actions of counsel to eliminate, as far as possible, “the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s

conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. A court therefore “does not sit to

second-guess strategic and tactical choices made by trial counsel.” State v. Myles,

389 So.2d 12, 39 (La. 1980). As such, there is “a strong presumption that counsel’s

                                           4
conduct falls within the wide range of reasonable professional assistance” and

merits “highly deferential” treatment. Strickland, 466 U.S. at 689, 104 S. Ct. at

2065.

        Defendant fails to show that counsel acted unprofessionally when his

investigation failed to identify Chapple as an alternative suspect. Accepting for the

sake of argument that Chapple arrived in the vehicle with defendant and the

Taylors and that they watched as he started shooting, defendant and his witnesses

actively and repeatedly concealed that information until after trial. Post-trial

counsel only learned this information from defendant and the Taylors, and

defendant fails to show any other pathway by which trial counsel could have

discovered Chapple’s alleged involvement. The record shows that the Taylors told

pre-trial investigator Fred King they did not see the shooter, the police were unable

to locate any witnesses who could identify the shooter (other than the Harris

brothers, who identified defendant as the shooter), and the Taylors and defendant

all testified at trial that they did not see the shooter.

        Defendant also claims he is factually innocent of the shooting. Notably,

however, the district court did not afford relief on that basis. Furthermore, an

affidavit accompanied by the affiant’s refusal to testify in conjunction with the

testimony of two witnesses who are found to lack credibility by the district court

would be not be enough to show entitlement to relief. See generally State v.

Conway, 01-2808 (La. 4/12/02), 816 So.2d 290, 291 (assuming post-conviction

claims of actual innocence not based on DNA evidence are cognizable, they must

be supported by new, material, noncumulative and conclusive evidence which

meets an extraordinarily high standard, and which undermines the prosecution’s

entire case).

        The district court also based its ruling on the determination that trial counsel

                                             5
should have objected to the State’s references to an unrelated but highly publicized

murder. The trial transcript reflects, however, not that the State remarked on an

unrelated but highly publicized murder trial; the State cross-examined defendant

about his association with a person who was involved in an unrelated but highly

publicized murder as a means of impeaching defendant’s testimony on direct as to

why the victims might wrongly assume he was the one who shot at them. Since the

prosecutor’s comments were made in the context of permissible cross-examination,

counsel had no grounds for a successful objection, so did not err in failing to

object.

      Furthermore, 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. Here, the State presented testimony at trial from the two

victims, who had known defendant since childhood, that defendant ran at them

while firing several shots, striking Traavis Harris in the leg. Defendant offers

nothing to undermine the strength of this identification.

      Accordingly, we find the district court erred in failing to correctly apply the

deferential Strickland standard. Therefore, we vacate the district court’s ruling that

granted defendant a new trial, and we reinstate the conviction and sentence.

Defendant has now fully litigated his application for post-conviction relief in state

court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-

conviction procedure envisions the filing of a second or successive application

only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within

the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in

2013 La. Acts 251 amended that article to make the procedural bars against

                                          6
successive filings mandatory. Defendant’s claims have now been fully litigated in

accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can

show that one of the narrow exceptions authorizing the filing of a successive

application applies, defendant has exhausted his right to state collateral review.

The district court is ordered to record a minute entry consistent with this per

curiam.




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