State of Louisiana Versus Teddy Chester

STATE OF LOUISIANA NO. 19-KA-363

VERSUS FIFTH CIRCUIT

TEDDY CHESTER COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON, STATE OF LOUISIANA

NO. 96-2598, DIVISION "K"

HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

February 03, 2021

MARC E. JOHNSON

JUDGE

Panel composed of Judges Marc E. Johnson,

Stephen J. Windhorst, and Hans J. Liljeberg

AFFIRMED

MEJ

SJW

HJL

COUNSEL FOR PLAINTIFF/APPELLEE,

STATE OF LOUISIANA

Honorable Paul D. Connick, Jr.

Thomas J. Butler

Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLANT,

TEDDY CHESTER

Shanita Farris

Rachel I. Conner

AMICUS CURIAE,

THE CENTER FOR INTEGRITY IN FORENSIC SCIENCES AND THE

INNOCENCE NETWORK

Bidish J. Sarma

JOHNSON, J.

Appellant, Teddy Chester, was convicted of first degree murder in violation

of La. R.S. 14:30 on May 14, 1997, after a two-day trial, and the jury

recommended a sentence of death shortly thereafter. Defendant applied for federal

relief after exhausting all avenues for relief in the state court system. The United

States District Court for the Eastern District of Louisiana granted Defendant’s writ

of habeas corpus and ordered the State to either release or retry Defendant. After a

second trial in 2018, Defendant was convicted of second degree murder and

sentenced to life imprisonment. On appeal, Defendant has identified several

assignments of error, which Defendant urges cumulatively, if not individually,

require reversal of his conviction and sentence. For the following reasons, we

affirm Defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of December 27, 1995, Mr. John Adams was shot

and killed inside the cab he operated on Calhoun Street in Kenner, Louisiana, an

area known for drug-related activity. Investigators were told that “Fella,” as Elbert

Ratcliff was known in the area, was involved with the murder. Jefferson Parish

Sheriff’s Office (JPSO) personnel found the fingerprints on business cards found in

Mr. Adams’ cab matched Mr. Ratcliff’s fingerprints. Once apprehended, Mr.

Ratcliff told JPSO that Defendant, Teddy Chester, shot Mr. Adams. Defendant

insisted he was only trying to sell the victim fake drugs, but Mr. Ratcliff shot the

victim while trying to rob him. A grand jury indicted both Defendant and Ratcliff

for the murder of Mr. Adams in April of 1996.

On May 14, 1997, after a two-day trial, a jury found Defendant guilty of first

degree murder, in violation of La. R.S. 14:30, and, two days later, recommended

he be sentenced to death. Defendant unsuccessfully challenged his conviction and

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death sentence in the state courts. Having exhausted all avenues of relief in the

state court system, Defendant filed a federal petition for a writ of habeas corpus

under 28 U.S.C. § 2254(d). On June 11, 2018, the federal court granted the writ

and ordered the State of Louisiana to either retry Defendant or to release him from

state custody within the following 120 days. See Chester v. Vannoy, 16-17754,

2018 WL 2970912, at *1 (E.D. La. June 11, 2018).

On August 16, 2018, the State amended the 1996 indictment to charge

Defendant with second degree murder. On September 13, 2018, a Jefferson Parish

Grand Jury indicted Defendant with second degree murder in violation of La. R.S.

14:30.1, and Defendant was arraigned and pled not guilty. On October 1, 2018, the

United States District Court for the Eastern District gave the State until November

15, 2018, to retry Defendant.

Defendant’s trial began on October 29, 2018.

Nancy Clary, the designated representative for the custodian of records for

the Jefferson Parish Sheriff’s Office (JPSO) 9-1-1 call center, testified that on

December 27, 1995, at 6:15 a.m., a 9-1-1 call came in from 713 Calhoun Street and

the 9-1-1 caller advised that there was a cab parked across the street with its motor

running, doors open, and lights on.

Robert Murphy, a retired JPSO deputy, testified that on December 27, 1995,

he responded to the call regarding an abandoned vehicle in the area around 713

Calhoun Street. When Mr. Murphy, who was less than two minutes away, arrived

at that location, he observed a Kenner cab leaning against a cement object, with its

motor running, its lights on, and the driver-side door open. He observed through

the open driver’s door a white male, later identified as John Adams, slumped in the

driver’s seat with his head back and a wound to the back of his head. Mr. Murphy

secured the crime scene, called for Emergency Medical Services, and notified the

detective bureau, the crime scene division, and his supervisor.

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Mr. Murphy testified that there were cards, including King Cab business

cards, a lottery ticket, miscellaneous pieces of paper on the ground outside of the

cab, business cards on the floor of the vehicle on the driver’s side, and a

photograph lying on the victim’s left thigh. Mr. Murphy testified that the rear

driver-side door was slightly ajar and that there was red liquid pooling in the rear

seat area on the floor. He further testified that there was a plastic bag hanging on

the interior handle of the driver-side rear door and that the bag contained a long

sleeved Guess t-shirt with tags on it.

The trial court qualified Dr. Fraser MacKenzie, who performed the autopsy

of Mr. Adams, as an expert in the field of forensic pathology. Dr. MacKenzie

testified that the cause of death was a gunshot wound to the head and that the

manner of death was homicide. Dr. MacKenzie explained that the firearm was held

firmly against the skin as it was fired. He described the trajectory of the bullet as

having traveled from the lower left back side of the head to the upper right front

side of the head. Dr. MacKenzie testified that a projectile and its copper jacket

were recovered from just inside the victim’s head and fragments of lead were

removed from the skull.

JPSO Lieutenant Ralph Sacks was the lead detective on the case. Lt. Sacks

testified that he learned that on December 27, 1995, at approximately 4:00 a.m.,

someone called the cab company from a pay phone and requested to be picked up

at 713 Calhoun and taken to Susan Park, a neighborhood in Kenner. He stated that

he canvassed the Calhoun Street area but could find no eyewitnesses to the

shooting. He discovered that Mr. Adams had $34.00 in his left shirt pocket and

$260.00 in his wallet, but his pouch was missing. He also stated that he met with

Mr. Adams’ mother, Hazel Adams, who told him that Mr. Adams kept cards in his

pouch.

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Lt. Sacks explained that the people at 713 Calhoun initially did not provide

any helpful information, but a “guy named Franklin” later told him Elbert Ratcliff,

also known as “Fella,” visited the home from time to time. During Lt. Sacks’

investigation, at least two other individuals named “Fella” as a possible suspect.

Lt. Sacks asked the crime lab to compare the fingerprints on the business cards

found at the crime scene to Mr. Ratcliff’s fingerprints, and the prints matched.1 He

subsequently obtained an arrest warrant for Mr. Ratcliff and a search warrant for

his residence at 525 Richard, Apartment 1 in River Ridge. Lt. Sacks testified that

Ratcliff’s last known residence was in close proximity to the scene of the

homicide. On March 5, 1996, Lt. Sacks informed Mr. Ratcliff’s father of the

warrant for his son’s arrest but no items were seized during the search of the home.

Later that day, Mr. Ratcliff contacted Lt. Sacks and was subsequently arrested for

first degree murder.

Lt. Sacks recalled that Mr. Ratcliff implicated Defendant, Teddy Chester, in

the homicide on the way to the detective bureau. Once Mr. Ratcliff arrived at the

detective bureau, he was advised of his Miranda rights, which he waived, and then

he gave a statement. Lt. Sacks presented a photographic lineup to Mr. Ratcliff

containing Defendant’s picture, and Mr. Ratcliff positively identified Defendant.

He recalled that Mr. Ratcliff acknowledged handling the business cards at the

crime scene and removing the pouch. Lt. Sacks attempted to locate Defendant as a

person of interest using a flyer. Lt. Sacks acknowledged that Mr. Ratcliff, in the

third of several recorded statements he made, identified Defendant as the person

who shot John Adams. He later made contact with Defendant’s family and advised

them that he was looking for Defendant.

1

Patricia Cole, who the trial court qualified as an expert in the field of latent print examination and identification,

testified that the fingerprints on two of the State’s exhibits matched Mr. Ratcliff’s right thumb and left thumb

prints.”

19-KA-363 4

Lt. Sacks testified that on March 18, 1996, police were dispatched to a

residence regarding a disturbance. Earlier, Lt. Sacks’ colleague, JPSO Lt. Vincent

Bosco, testified that at approximately 9:00 a.m. that day, he responded to a call at

11108 Newton Street, Apartment C. The dispatcher had advised that a female

caller was having problems with a male. When Lt. Bosco arrived, there were two

females present. One of the females told him that the male inside was the one who

killed the cab driver. He observed a black male dive headfirst out of the second-

story window. He then got on the radio and advised headquarters so more units

could respond and establish a perimeter to contain that individual. Lt. Bosco

testified that the black male was later located, detained, and identified at 429

Upland Street. Lt. Sacks later testified that the male, identified as Defendant, was

taken to the detective bureau along with Quinice Pollard, Defendant’s girlfriend,

and her sister, Kaprice Pollard.2 The sisters gave the police aliases during initial

contact but the police discovered their true identities and that they had warrants so

they were arrested.

On that same day, before speaking with Defendant, Lt. Sacks obtained an

arrest warrant for him and a search warrant for his residence at 308 Jackson Street

in Kenner. He stated that when he went to Defendant’s residence to execute the

search warrant, no one answered the door. Lt. Sacks explained that he entered the

home through an open window he found on the side of the house. During the

search, Lt. Sacks retrieved items, including an Oakland Raiders baseball cap, a pair

of jeans, and a letter. He believed that the cap and the jeans had blood on them.

Lt. Sacks testified that he went to JPSO’s Homicide Division after executing

the search warrant and advised Defendant of his rights on March 18, 1996. He

further testified that Defendant waived his rights and then gave a statement.

2

In this opinion, Quinice Pollard will be referred to as “Ms. Pollard” or “Quinice,” and Kaprice Pollard will be

referred to as “Kaprice.”

19-KA-363 5

In his statement, Defendant said that his date of birth was November 10,

1977, he was eighteen years old, and his highest level of education was eighth or

ninth grade. He stated that in December of 1995, he walked along the tracks down

Tullis Street and went to Calhoun Street where he saw “Fellow”3 standing on the

corner. Defendant said that he had known “Fellow” for a couple of years and that

they had smoked a little “weed” in the past, but he did not know “Fellow’s” real

name. Defendant asserted that “Fellow” wanted to sell or trade a Guess shirt in a

plastic bag for a “rock.” He asked “Fellow” if “any money was coming around,”

and “Fellow” said “yes,” so defendant continued to walk down the street.

Defendant believed “Fellow” was a crack cocaine user but that he had never

seen him use it. He did not know what time it was, but he recalled that it was dark

outside and that the club had closed early. He did not see anyone else out on the

street at that time. Defendant said that he started walking toward Airline from the

tracks and that by the time he made it “down,” the cab driver was coming down

Calhoun Street. He thought the cab driver was “looking for some drugs.”

Defendant recalled that the cab driver stopped and was trying to say something, so

Defendant opened the “back passenger door” and asked him what he wanted. He

said that when he opened the door, he put one foot in and left the other foot

“hanging out.” Defendant then stated that he pulled the door closed to make it

look like he was in the cab “so no police could a stop or nothing.” Defendant

asked the cab driver if he was looking for anything, and the cab driver told him

“no,” so Defendant got out of the cab. Defendant noted that the cab driver pulled

further down the street and then turned around and came back. He said that was

when he saw “Fellow” just “pop up” behind him asking if the cab driver wanted

anything. Defendant told “Fellow” “no,” but “Fellow” still wanted to see on his

3

It is noted that Mr. Ratcliff’s nickname was “Fella,” also spelled as “Feller” and “Fellow” throughout the record

and this opinion also.

19-KA-363 6

own if the cab driver wanted something. He asserted that “Fellow” stopped the cab

driver and got completely in the cab directly behind the cab driver. Defendant

recalled that the cab driver started pulling off slowly and he saw that “Fellow” had

a gun up to the back of the cab driver’s head. Defendant told Lt. Sacks he saw the

cab driver struggling to move the gun from behind his head. He then saw “Fellow”

reach up and pull the radio out.

Defendant stated that the cab speeded up and that was when he heard a

“pow” and saw a flash inside the cab. He thought that after “Fellow” shot the cab

driver, the cab driver must have lost control of the cab, and it went straight into a

pole. “Fellow” was in the car when it crashed. Defendant asserted that “Fellow”

then got out of the back of the cab and opened the driver-side front door. He

believed “Fellow” was checking the cab driver to see if he had “anything on him.”

Defendant saw “Fellow” “fooling around with something,” but he did not know

what it was. He subsequently observed that “Fellow” “ducked off” behind a tree.

Defendant estimated he was approximately fifteen to twenty feet away from

“Fellow” when he observed this. He recalled that the cab driver was a “fat guy”

with white hair and glasses.

Defendant stated that he got behind a tree and attempted to hide from

“Fellow.” “Fellow” then ran towards a “cut” to the next street. Defendant recalled

that before “Fellow” got to the “cut,” he stopped, called him, and waved the gun in

defendant’s direction. Defendant said that the gun was a black .38 revolver.

“Fellow” pointed the gun in his direction and said to “come on.” Defendant told

him “no,” but when “Fellow” said it again in an aggressive way, defendant went

with him. He recalled that he and “Fellow” were running and that “Fellow” was

holding Defendant’s jacket by the shoulder and pulling Defendant along with him.

Defendant stated that after they went over the tracks, “Fellow” told him that if he

told anyone about what had happened, he would kill Defendant, Defendant’s “old

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lady,” and her baby. He said that “Fellow” ran one way and that he ran straight to

his sister’s house on Jackson Street.

No one was home when Defendant arrived, but he eventually told his

girlfriend what happened. He further stated that his “old lady” came back several

times and said that “Fellow” had told her that “if Defendant opened his mouth

about something, there was going to be ‘some drama or something’” between

“Fellow” and Defendant.

Defendant said he did not see if “Fellow” got any blood on him when the

shooting happened. Defendant denied having any blood on his clothes. He

remembered that he was wearing “some green Girbaud,” a black sweater, and a

black jacket. Defendant also remembered that he was wearing a “Dallas” baseball

cap. He guessed that “Fellow” left the plastic bag containing the shirt in the cab

because when “Fellow” went to the cab, he had the bag, and when “Fellow” came

back from the cab, he did not have anything in his hand. He said that “Fellow”

told him that one of his friends had given him the Guess shirt.

Defendant reiterated that when he first saw the cab driver, he approached the

cab because he thought the cab driver might want to buy some crack cocaine that

Defendant was trying to sell. Defendant asserted that there were “a lot of cabs that

buy crack.” He insisted that no one else was out there and “no money was coming

around,” so he was going to leave. He did not know how the cab driver came to be

back there.

Lt. Sacks testified that after Defendant gave his statement, he confronted

Defendant with details of the case and the evidence he recovered from Jackson

Street. As a result, Defendant then provided him with a second (recorded)

statement. In that second statement, Defendant said that “Fellow” stopped the cab

driver on Calhoun Street and got into the back seat directly behind the cab driver.

Defendant said he ran around to the right rear passenger door and got in with one

19-KA-363 8

foot in and one foot out. After he got in, Defendant asked the cab driver if he

wanted anything, and the cab driver said, “no.” He said that “Fellow” “pretended”

to ask the cab driver if he wanted something, but the cab driver said he did not do

anything like that. Defendant explained that “Fellow” then said, “well Mother

F*cker give it up,” and “Fellow” placed the gun to the back of the cab driver’s

head. He further explained that the cab driver tried to move the gun away from his

head.

Defendant recalled that the cab driver said, “ohh Lord not this, not this,” and

that the cab slowly pulled off. Afterwards, “Fellow” reached up and pulled out the

radio because the cab driver was reaching for it. Defendant stated that the cab

driver sped up and that is when the flash went off. He further stated that the cab

driver fell back to where his head was leaning over the front part of the seat to the

back and that was when blood started dripping over Defendant’s left pant leg and

splattered on his arms, hands, jacket, face, hat, and “all over” his legs. Defendant

recalled that after the cab driver was shot, the cab continued to move until it ran

into two small poles. He stated that “Fellow” then jumped out of the cab and began

“checking the man” and his pockets. Defendant said he scooted across the seat and

got out of the cab on the same side as “Fellow,” the driver-side left rear door, and

he ran and hid behind a tree. He saw some cards on the ground after he jumped out.

Defendant thought they stayed in the cab for approximately ten minutes.

Defendant stated that “Fellow” ran toward a “cut” to the next street and

made him run with him. He also stated that “Fellow” told him that if he said

anything about what happened, he would kill his “old lady” or other family

members. He asserted that he was wearing blue jeans that night and a black and

white Raiders hat. Defendant denied having a gun that night.

Defendant said that after the shooting, he went to his sister’s house at 308

Jackson Street. He took a bath and put his clothes in a dirty clothes basket.

19-KA-363 9

Defendant said that he left the clothes there and that after a while, his “old lady”

washed them. He stated that she asked him where all the blood had come from, and

he told her that “Fellow” had shot somebody. Defendant claimed that he did not

know what happened to the gun used in the shooting. He explained that he did not

tell the police this information before because he thought by him being in the cab

and getting blood on him, he was “gonna be accused of being a part of it.”

Defendant did not know if “Fellow” or someone else called the cab, but he

insisted that he did not. He stated that he did not know what “Fellow” was going to

do when they got into the cab.

Defendant contended that all he was trying to do was “make a little hussle

[sic]” and to see if he could make some money when suddenly the gun was

produced, and he just “fell into shock.” He recalled “Fellow” telling him that he

left the Guess shirt in the cab. He stated that he did not tell anybody what

happened because of “Fellow’s” threats to kill his family and because of his

probation. He explained that he ran that morning because he thought his “old lady

daddy” had called the police about him.

Defendant indicated that his girlfriend wore his hat and that he did not wash

it. He admitted that the blood should still be on the hat. He reiterated that when he

got in the cab, he thought that it was going to be a drug sale, “me making a lil

money or him making a lil money [sic].” Defendant said that he did not touch the

cab driver’s pockets and that the only things he touched were the outside and the

inside of the door handles. He believed that “Fellow” sold drugs there before and

that he had seen other cab drivers buy drugs there. He thought the victim was the

cab driver who had gone back there to buy drugs before and that was what “really

keyed” him onto trying to sell drugs to him. Defendant stated that if the cab driver

had wanted to buy drugs, he would have sold him some “fake” crack cocaine. He

explained that he himself did not buy the Guess shirt from “Fellow” because all he

19-KA-363 10

had were “fake” drugs, and he did not have enough money. Audiotapes of both

statements were played at trial and jurors were provided with copies of the

transcripts.

Lt. Sacks testified that he arrested Defendant after taking his statements. He

requested scientific testing on Defendant’s clothes, and he obtained a search

warrant for Defendant’s blood. Lt. Sacks recalled that Defendant was

uncooperative and that Defendant said he had already told Lt. Sacks that the blood

on the cap was the cab driver’s blood. He noted that the murder weapon was never

recovered.

On cross, Lt. Sacks acknowledged that the first statement Mr. Ratcliff gave

was “full of demonstrable lies” and that “some of” his second statement was true

and some of it was demonstrably false. Lt. Sacks also agreed that he did not find

any drugs, drug paraphernalia or firearms when he searched Defendant’s sister’s

home.

In December of 1995, Donna LaRocca worked as a cab driver and as an

office manager for King Cab. She testified that she called the JPSO when she saw

an article in the newspaper that said the two individuals arrested for the murder of

the cab driver said that they had never been in “the cab” before. She told the JPSO

that those two individuals rode in her cab both before and after the victim’s

murder. Ms. LaRocca remembered a time, about a week after the victim’s death,

when she picked up the two men, black males in their early twenties, from 525

Richard Street and took them to Farrar in Kenner. Ms. LaRocca asserted that she

had picked both of the men up from 525 Richard before. She said that all the

drivers were “kind of nervous” but she told the men when they called back that she

“personally would come and get them” because “we picked them up all of the

time.” On the way, they questioned Ms. LaRocca about what the police knew

19-KA-363 11

about the murder. She replied that the police were only telling them that they

intended to offer a reward.

Later, a detective showed Ms. LaRocca two sets of photographic lineups.

She positively identified number five in a photographic lineup as an individual

whom she had picked up from 525 Richard numerous times. She learned the man

who lived at 525 Richard and had called for the ride was named “Elbert Ratcliff.”

In the second photographic lineup, although she was able to narrow it down to two

choices, Ms. LaRocca did not positively identify a suspect. Ms. LaRocca was sure,

however, that the two suspects whose pictures appeared in the paper were the two

men in her cab that day.

Quinice Pollard testified that she was eighteen years old when she first met

Defendant at a club in October of 1995 and started dating him. She lived on

Newton Street in River Ridge with her then two-month old daughter and her sisters

at the time. Ms. Pollard stated that she sometimes stayed with Defendant on

Jackson Street where he lived with his sisters. Ms. Pollard testified that Defendant

helped to support her using money he received from a job at a car wash, a

government check for an intellectual disability, and from dealing drugs,

particularly crack cocaine. She recalled that Defendant always wore his gray and

black Raiders hat.

Ms. Pollard testified that Defendant “hung out” with Mr. Ratcliff who was

also known as “Fella.” She knew Mr. Ratcliff, who used and sold drugs, before she

knew Defendant. She further described Defendant and Mr. Ratcliff as friends and

said that Defendant used Mr. Ratcliff to “run” or sell drugs for him. Ms. Pollard

clarified that Defendant and “Fella” sold drugs together, Defendant was the “head”

drug dealer, and Defendant was not intimidated by “Fella.”

In December of 1995, Ms. Pollard and defendant were still dating but had an

on-again, off-again relationship. Ms. Pollard explained that one time, when she

19-KA-363 12

went to his residence to do his laundry, she saw a lot of blood on some of his

clothes. She maintained that she did all of Defendant’s laundry while they were

dating. She asked Defendant about it, and he responded that the blood came from

him and a “guy” whom he had gotten into an altercation with in a club, noting that

he had to pistol whip the “guy.”

Ms. Pollard testified that she first heard about the cab driver’s murder from

her sister, Kaprice. Ms. Pollard saw Defendant at a corner store in her

neighborhood soon after, and Defendant said that he wanted her to come to his

Jackson Street residence so they could talk. She asked him at the store if he knew

anything about the murder, and Defendant told her “no.” Ms. Pollard testified that

she visited Defendant at his residence a few days later. Defendant sat her down at

the kitchen table and told her that he was involved in the cab driver’s murder.

Defendant told her that he was there, and “the other guy” did it, but he asked her to

say that she was with him at the time of the incident in order to create an alibi.

Ms. Pollard recalled that Defendant had a gun when he told her this

information. She had seen the gun before which she described as a .38 revolver and

that it was the type of gun “that you put the bullets in.” She described the gun’s

brown handle, “tint-color” chrome “nose”, and “wheel.” Ms. Pollard indicated that

defendant kept that gun in a small box or under the mattress. Defendant pointed the

gun at her, and Ms. Pollard testified that she was nervous and scared and told him

she would say he was with her. She recalled that Defendant played with that gun

“a lot” and the gun had gone off while Defendant was playing with it before.

After that conversation, Ms. Pollard returned to her apartment and told her

sister, Kaprice, that Defendant had some involvement in the cab driver’s murder.

Ms. Pollard recalled that Defendant subsequently came over to her apartment on a

daily basis asking if she had told anyone about his involvement in the murder. She

testified that she and Defendant talked again about the murder and Defendant told

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her three or four versions of what happened. The first version was the one where

he was at the scene of the crime, “Fella” shot the victim, but Defendant asked her

to provide an alibi for his whereabouts at that time. The second version was that he

and “Fella” were there to rob the cab driver and that “Fella” did it. The third

version was that “Fella” did it. The fourth version was that Defendant and “Fella”

were robbing the cab driver, Defendant put the gun to the cab driver’s head, and

then the gun accidentally went off, and the blood got all over his clothes. Ms.

Pollard testified that she believed that Defendant accidentally shot the victim

because that was the version of events that sounded believable when Defendant

told it to her. She also noted that Defendant provided the most detail in his fourth

version. Ms. Pollard stated that Defendant asked her again to be his alibi.

Defendant also told Ms. Pollard that if “Fella” came to her looking for Defendant

that she should say she had not seen him.

The night before police came to her house to arrest Defendant, Ms. Pollard

recalled that Defendant had his gun with him and that he told her he was going to

California. Defendant asked her to go with him, but Ms. Pollard said she had no

reason to go and asked him to leave. Just as he was leaving, it started to rain, so

Defendant spent the night.

Ms. Pollard testified that, the next morning, she woke up to JPSO coming

through her house with dogs. Defendant dove out the window of her second-floor

apartment. Ms. Pollard later saw the police bring Defendant out of a house around

the corner. Ms. Pollard admitted that she did not go back to her apartment because

she was on probation for a felony plea and knew she could be arrested. She instead

went to Defendant’s home on Jackson Street to “see if I [had] anything in that

house” but the police were there waiting when she arrived. The police later

brought Ms. Pollard to the police station. Ms. Pollard was reluctant to cooperate;

she did not tell the police everything, but she did tell them about the gun and that

19-KA-363 14

she was not involved in the murder. She further testified that “[it] was a lot going

on the interrogation room,” but the police did not hit her, or tell her what to say,

and she went to jail due to an attachment from a misdemeanor case.

Ms. Pollard also testified that she remained in touch with Defendant after he

went to jail. She visited and talked on the phone and exchanged letters with

Defendant. In his letters to Ms. Pollard, Defendant asked her to ask her sister and

others for help. Defendant also asked her to change her statement and to not go to

court. Ms. Pollard explained that she wanted to believe Defendant did not commit

the murder, so she continued to communicate with him even after he began to send

her threatening letters. Those threatening letters, eight of which were admitted

into evidence at trial, led Ms. Pollard to believe that Defendant may try to kill her,

so she eventually severed contact with Defendant.

Ms. Pollard further testified that Defendant asked her to burn the letters, but

she did not do so. Because she was afraid of Defendant, Ms. Pollard recalled that

she wrote him many letters telling him how much she loved and missed him,

although at some point she began dating someone else. Ms. Pollard became

pregnant in November of 1996 with another man’s child and had her second

daughter in July of 1997. By then, she and Defendant were no longer exchanging

letters with one another.

From March 18, 1996 until September of 2018, Ms. Pollard testified, no one

asked her to tell the whole story of what happened until the Assistant District

Attorneys (ADAs) asked. Ms. Pollard insisted that the ADAs did not pressure her

and she never called for the reward money nor ever received any reward. Ms.

Pollard admitted that she had prior convictions of misdemeanor disturbing the

peace in 1994, possession with intent to distribute cocaine in 1994, and felony theft

of goods in 1998. She also testified that there were several attachments for her

arrest in March 1996 due to missed court dates and that she was on two years of

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probation for the cocaine conviction at that time. Ms. Pollard also attributed any

proposed discrepancies in her testimony between the two trials to not wanting to be

involved and not wanting Defendant to be in trouble or die.

Defendant also placed approximately 165 pages of Ms. Pollard’s letters to

Defendant into evidence. In the excerpts selected for Ms. Pollard to read, she

professed her love for Defendant, promised to pray for him, expressed appreciation

for his support, and asked him not to entertain other women. Ms. Pollard also read

excerpts from their letters to one another where they referred to one another as

“wife” and “husband,” and to Ms. Pollard’s child as their child.

At the conclusion of Ms. Pollard’s testimony, she confirmed that she did not

feel safe when Defendant sent letters that said he was “going to kill” her and that

he could send someone to her apartment “to show [her] and just to let [her] know

that he could get to [her]”. She also reiterated that Defendant and “Fella” sold

drugs together and that Defendant was not intimidated by “Fella.”

Anthony Curtis testified that he was incarcerated for conspiracy to distribute

cocaine and was serving a 240-month sentence. He recalled the killing of a cab

driver in December of 1995 on Calhoun. Mr. Curtis explained that he was out

riding with a friend and thought he heard gunshots, but he was drunk and “kind of

high” on marijuana at the time. Mr. Curtis did not see where the gunshots came

from, but he saw the cab. He testified that he saw afterwards that the cab driver had

been shot in the cab and that there were a lot of people out there. Initially, Mr.

Curtis asserted that he could not remember if he saw anyone exit the cab at the

time of the gunshot. However, he read his affidavit dated September 23, 2013 to

refresh his memory; he told the investigator then that he had seen “Teddy” and

“Fella” exit the cab after the gunshots. Mr. Curtis knew Defendant and had seen

him around before. Mr. Curtis further testified that he thought that he saw

Defendant or “Fella” with a weapon, but he was not sure. Later, on redirect, Mr.

19-KA-363 16

Curtis insisted that he did not remember whether he saw Defendant and “Fella”

jump out of the cab that day.

Bonnie Dubourg was qualified by the trial court as an expert in the field of

forensic serology—the identification of biological fluids. Ms. Dubourg previously

worked for JPSO and testified that she tested samples from Defendant’s jeans and

Raiders baseball cap. The stains on the left and right legs of the jeans tested

negative for the presence of blood. She further testified that that the three small

stains on the inside bill of Defendant’s cap tested positive for the possible presence

of blood. Due to the insufficient sample sizes, she did not conduct further analysis.

Ms. Dubourg recalled that she tested the Guess t-shirt “Fella” was trying to sell

that night and that the examination of the “loose crust blood-like substance” on the

shirt yielded a positive serological test for Group O blood. She explained that,

again, the insufficient sample size precluded further analysis. Ms. Dubourg

testified that the victim’s blood type was O and that Defendant’s blood type was A.

Anne Montgomery worked for GenTest Laboratories in the 1990s and

testified that she was responsible for “the forensics department and those testing

and reports and testimony.” The trial court accepted her as an expert in the fields

of molecular biology and DNA analysis. Ms. Montgomery testified that she

conducted DNA testing in the instant case in 1996. She indicated that she obtained

samples from the baseball cap and reference samples from the victim and

Defendant. Ms. Montgomery testified that the DNA test results for the cutting from

the bill area of the baseball cap and the cuttings from the inside of the baseball cap

were consistent with a mixture of the reference blood sample from the victim and

Defendant, and therefore, neither the victim nor the defendant could not be

excluded as DNA donors.

Ms. Montgomery explained that the data suggested there was a minor

contributor and a major contributor. She testified that she looked at two genetic

19-KA-363 17

markers to generate population frequencies. She further explained that

approximately one in 339 Caucasian individuals would have those two genetic

markers in their profile if she looked at random Caucasian individuals and that one

in 707 Hispanic individuals would have those genotypes if she randomly tested

that population. Ms. Montgomery noted that those two genotypes were rarer in the

Black/African-American population than they were in the Caucasian population.

Ms. Montgomery testified although DNA testing in 2018 was much more

discriminating than in 1996, she did not feel that that 2018 testing invalidated or

negated the earlier results in any way. Ms. Montgomery concluded that those tests

used to analyze the samples in 1996 were accurate and state of the art at the time.

Elaine Schneida, JPSO’s DNA Laboratory Director, was accepted as an

expert in the field of forensic DNA analysis. Ms. Schneida testified that she

conducted further testing in August of 2018 on the Raiders baseball cap and the

denim jeans. She stated that she tested several different locations on the baseball

cap for possible blood, but the tests were all negative. She acknowledged that there

was a positive result for blood on the baseball cap previously but explained that

either the sample was consumed or it degraded over time. Ms. Schneida further

stated that she also tested the jeans for possible blood, but all of the spots were

negative. She did not know how the evidence was stored but noted that extreme

heat and/or exposure to humidity or moisture, or light could degrade DNA. Ms.

Schneida stated that the results she obtained did not invalidate the prior positive

result.

Ms. Schneida testified that she also performed a DNA extraction on cuttings

from the baseball cap and the jeans. She asserted that the partial DNA profile

obtained from the cutting from the stain on the exterior right front pocket of the

jeans was consistent with being a mixture of DNA from at least two individuals,

one major contributor and at least one minor contributor. Ms. Schneida further

19-KA-363 18

asserted that the victim was excluded as the major contributor to the DNA in this

mixture. She testified that, due to the complexity of the mixture, the profile was

determined to be uninterpretable for inclusionary purposes, and therefore, no

conclusion could be made regarding the contributor status of Defendant. She was

also unable to develop any sort of profile from the baseball cap. Ms. Schneida

explained that the 2018 testing was not inconsistent with the findings from 1996

because they tested different sections of the jeans and cap – the samples tested in

1996 were no longer available for her to test.

Louise Walzer is a retired forensics firearm and toolmark examiner who was

recognized as an expert in her field by the trial court. She conducted an

examination on one large lead-like fragment, four small lead-like fragments, and

an unknown caliber copper jacket obtained from the victim during the autopsy.

Ms. Walzer concluded that the jacket was a .38 caliber class ammunition which

was more consistent with a .38 special or a 357 revolver. She noted that the jacket

in the instant case could not have been shot from the three weapons JPSO secured,

clearing other possible suspects JPSO found during their investigation.

Albert Majeau, an investigator for the Jefferson Parish District Attorney’s

Office, testified that, in August of 2018, he collected the jeans and the cap from the

Jefferson Parish Clerk of Court’s evidence custodian’s warehouse and brought

them to the District Attorney’s Office where they were locked in their climate

controlled evidence room. Later that month, he picked up the jeans and the cap

from the DA’s evidence room and delivered them to the Jefferson Parish Crime

Laboratory.

JPSO Chief Deputy Timothy Scanlan, commander of the technical services

bureau, oversaw the crime lab, the crime scene division, the DNA lab, records, and

the 9-1-1 call center. He informed the trial court that he still performed firearm

and toolmark examinations, crime scene reconstruction, and bloodstain pattern

19-KA-363 19

analysis. He was accepted as an expert in the fields of crime scene reconstruction

and bloodstain pattern analysis.

Deputy Scanlan testified that he was not employed with the JPSO in 1995;

however, he reviewed the lab reports, the autopsy report, and the crime scene

photos in the instant case. He concluded that the victim was shot in the back of the

head from the rear of the car going forward. Chief Deputy Scanlan also concluded

that there was post-attack activity after the bloodshed occurred. He noticed that

there was a lot of “stuff” out of place inside and outside of the car and that the

items had been rummaged through. He explained that the victim did not move

around in the car after he was shot but that there was someone who got an

accumulation of blood on himself and then transferred the blood around the car as

he moved from the front of the car rearward.

Chief Deputy Scanlan reviewed the crime scene photographs and testified

that although the victim’s injury was consistent with the shooter being in the rear

seat, he could not tell whether the shooter was in the driver-side or passenger-side

rear seat. He mentioned that a subtle change in the position of the victim’s head

would have changed the angle fairly significantly and that he could not tell whether

the victim moved immediately before he was shot. Chief Deputy Scanlan also

testified that he examined the Raiders baseball cap. He explained that there were

small amounts of blood on the cap that were “nondescript stains,” meaning that

those stains could be spatter stains where blood was projected or flung after the

shooting, or they could be non-spatter stains where the blood was transferred.

Chief Deputy Scanlan testified that he thought the cap had to be off of the head

because the blood stains were underneath the cap. He stated that the cap could have

been off the head lying down or taken off with bloody hands or that blood could

have been flung onto the cap.

19-KA-363 20

After the State rested its case, the defense called Elbert Ratcliff as a witness.

Mr. Ratcliff testified that he was convicted of second degree murder as a principal

for the killing of Mr. Adams and was serving a life sentence. Mr. Ratcliff advised

that he was diagnosed as a schizophrenic around age eleven or twelve. He also

disclosed that he smoked crack every day in his twenties, but still takes Haldol.

Mr. Ratcliff knew people who lived at 713 Calhoun but he did not “hang out”

there. He asserted that people sold drugs on Calhoun and that he was on that street

“a lot.” Mr. Ratcliff stated that those were not his fingerprints at the crime scene,

that he was not present on Calhoun when the victim was murdered, and that he had

not been at the crime scene. Mr. Ratcliff also insisted he did not call King Cab that

night to go from Calhoun to Susan Park because he was in Destrehan with his

cousin, and he also had a car with full insurance. He also testified that he was not

a regular customer of King Cab and Ms. LaRocca lied when she said that she had

seen him in her cab before.

Mr. Ratcliff testified that he only said what the police told him to say. He

explained that the police wanted him to say that he was at the scene or had seen the

deceased victim. He also stated that the police told him that he was going to be

able to go home, that they knew he did not commit the crime but wanted him to

point the finger at someone else, that they knew who did it, and that if he did not

tell them who that person was, he would be booked with first degree murder.

Mr. Ratcliff claimed that everything he told the police was a lie except when

he told them the first time that he was not at the scene. Mr. Ratcliff acknowledged

telling the police that he saw the victim after he died and that he went through the

victim’s “stuff.” He admitted that he told the police during his first statement that

he was “high.” Mr. Ratcliff denied that he and Defendant were partners, or

friends, and he testified that they did not “hang out” together. He explained that he

19-KA-363 21

had chased Defendant off of Calhoun a couple of times trying to “jack” Defendant

and get drugs from him.

Mr. Ratcliff testified that the police wanted him to say in his third statement

that he saw the victim get killed, and he recalled telling Lt. Sacks that Defendant

shot the victim. Mr. Ratcliff claimed that he implicated Defendant because he had

heard “on the street” that Defendant shot the victim. Mr. Ratcliff denied signing

the photographic lineup identifying Defendant as the shooter. He also did not

recall telling the assistant district attorneys that he saw Defendant shoot the victim

that night.

After the defense rested its case, the State called Lt. Sacks as a rebuttal

witness. Lt. Sacks testified that he met with Mr. Ratcliff at the detective bureau,

told him he was under arrest for first degree murder, and advised him of his rights.

He indicated that Mr. Ratcliff waived his rights and gave several statements. Lt.

Sacks asserted that he did not tell Mr. Ratcliff he could go home if he pointed the

finger at someone else. He testified that Mr. Ratcliff told him that he saw

Defendant shoot the victim. Lt. Sacks stated that he showed Mr. Ratcliff a

photographic lineup and Mr. Ratcliff positively identified Defendant as the person

who shot the victim. Lt. Sacks thought Mr. Ratcliff was “coherent” when JPSO

took his statements and he did not know that Mr. Ratcliff was diagnosed with

schizophrenia as a young child. Lt. Sacks recalled that the first time he heard of

Defendant was in the car when he was taking Mr. Ratcliff to jail and Mr. Ratcliff

gave him Defendant’s name. Lt. Sacks emphasized that Mr. Ratcliff’s name came

up several times in his investigation as someone involved in the shooting, but he

did not know who Defendant was and Defendant’s name had not come up in the

investigation prior to Mr. Ratcliff mentioning it.

Six days after the trial began, a twelve-person jury unanimously found

Defendant guilty of second degree murder. On December 12, 2018, Defendant

19-KA-363 22

filed Motions for New Trial, to Bar a Life Without Parole Sentence for

Adolescents as Unconstitutional, and for Post-Verdict Judgment of Acquittal that

were denied on that same date. The trial court also sentenced Defendant to life

imprisonment at hard labor without benefit of parole, probation, or suspension of

sentence. Defendant filed a Motion to Reconsider Sentence that was denied on

February 8, 2019. Defendant then timely filed a Notice of Appeal that was granted

on March 14, 2019.

On appeal, Defendant asserts eighteen assignments of error and argues that,

if not individually, the cumulative errors require his conviction and sentence to be

reversed.

ASSIGNMENTS OF ERROR NUMBER ONE

There is insufficient evidence to support a jury’s finding of second-degree murder.

DISCUSSION

In reviewing the sufficiency of evidence, an appellate court must determine

that the evidence, whether direct or circumstantial, or a mixture of both, 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 have been proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); State v. Neal, 00-674 (La. 6/29/01); 796 So.2d 649, 657, cert. denied,

535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Earls, 12-448 (La.

App. 5 Cir. 12/11/12); 106 So.3d 1149, 1154, writ denied, 13-132 (La. 9/20/13);

122 So.3d 1012. Encompassed within proving the elements of an offense is the

necessity of proving the identity of the defendant as the perpetrator. State v.

Nelson, 14-252 (La. App. 5 Cir. 3/11/15); 169 So.3d 493, 500, writ denied, 15-

685 (La. 2/26/16); 186 So.3d 468. Where the key issue is identification, the

State is required to negate any reasonable probability of misidentification in

order to carry its burden of proof. Id.

19-KA-363 23

Defendant argues that the evidence was insufficient to support his second

degree murder conviction. He contends that there was no direct evidence that he

shot or attempted to rob the victim, and no physical evidence that connected him to

the crime scene, and therefore, the State’s case was strictly circumstantial.

Defendant asserts that the physical evidence was consistent with Mr. Ratcliff being

the shooter, getting blood on his hands, and rummaging through the front of the

cab in an attempt to rob the victim. He further asserts that the forensic evidence

shows that Mr. Ratcliff was sitting behind the victim in the rear driver-side seat

when the victim was shot in the left back of the head and that Defendant was

sitting in the rear passenger-side seat.

Defendant also argues that Ms. Pollard’s testimony was not credible or

reliable because she lied to the police during her interrogation and because she had

an interest in testifying favorably for the State. Defendant contends that Mr.

Ratcliff was a violent, drug addicted, mentally ill man, and therefore, his

statements to the police were not credible or reliable. He maintains that there was

no evidence that he and Mr. Ratcliff planned to rob the victim, or that he had a

weapon, or knew Mr. Ratcliff had a weapon.

The State responds that it presented sufficient evidence to sustain

Defendant’s conviction for second degree murder. It further responds that

Defendant’s claim that there was no direct evidence that he shot or attempted to

rob the victim is untrue. The State points out that he admitted to Quinice Pollard

that he was attempting to rob the victim and that while he was holding the gun to

the victim’s head, it “accidentally” went off. It contends that confessions are

considered to be direct evidence of guilt, citing State v. Faciane, 17-224 (La. App.

5 Cir. 11/15/17); 233 So.3d 195, 207, writ denied, 17-2069 (La. 10/8/18); 253

So.3d 797.

The State further contends that Ms. Pollard’s testimony was sufficient to

19-KA-363 24

sustain the conviction. It argues that even if Defendant “accidentally” shot the

victim and thus did not have the specific intent to kill or to inflict great bodily

harm upon Mr. Adams, by Defendant’s own admission to Ms. Pollard, he was

committing either an armed robbery or an attempted armed robbery of Mr.

Adams which resulted in Mr. Adams’ death. Thus, the State argues that, under

either theory of second degree murder, the evidence was sufficient to support

the conviction.

The State also asserts that Defendant seeks to exculpate himself by claiming

that the forensic evidence supports his innocence; however, the State argues that

the forensic evidence was entirely consistent with Defendant’s guilt. The State

maintains that evidence other than Ms. Pollard’s testimony puts Defendant at the

scene, including Mr. Adams’s blood on defendant’s baseball cap and Defendant’s

statements to Lt. Sacks wherein he placed himself at the scene and acknowledged

being in the cab and getting Mr. Adams’ blood on his baseball cap. The State also

responds that Defendant’s claims regarding Ms. Pollard’s inconsistencies, motives,

and other supposed issues with her testimony were explored by Defendant at trial,

yet the jury chose to find her credible and unanimously found Defendant guilty as

charged.

In cases involving circumstantial evidence, the trial court must instruct the

jury that “assuming every fact to be proved that the evidence tends to prove, in

order to convict, it must exclude every reasonable hypothesis of innocence.” La.

R.S. 15:438. The reviewing court is not required to determine whether another

possible hypothesis of innocence suggested by the defendant offers an

exculpatory explanation of events. Rather, the reviewing court must determine

whether the possible alternative hypothesis is sufficiently reasonable that a

rational juror could not have found proof of guilt beyond a reasonable doubt.

State v. Mitchell, 99-3342 (La. 10/17/00); 772 So.2d 78, 83; State v. Washington,

19-KA-363 25

03-1135 (La. App. 5 Cir. 1/27/04); 866 So.2d 973, 977.

In the absence of internal contradiction or irreconcilable conflict with

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

sufficient to support a requisite factual finding. State v. Caffrey, 08-717 (La.

App. 5 Cir. 5/12/09); 15 So.3d 198, 203, writ denied, 09-1305 (La. 2/5/10); 27

So.3d 297. A reviewing court may impinge on the fact-finder’s discretion only to

the extent necessary to guarantee the fundamental due process of law. State v.

Harris, 02-1589 (La. 5/20/03); 846 So.2d 709, 713 (citing State v. Mussall, 523

So.2d 1305, 1310 (La. 1988)).

Defendant was convicted of second degree murder, which is defined in La.

R.S. 14:30.1 as the killing of a human being when the offender: 1) has specific

intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or

attempted perpetration of one of several enumerated felonies, even though he has

no intent to kill or to inflict great bodily harm. State v. Lewis, 05-170 (La. App. 5

Cir. 11/29/05); 917 So.2d 583, 589-90, writ denied, 06-757 (La. 12/15/06); 944

So.2d 1277. Here, the written jury charges, signed by the trial judge, reflect that

the jury was informed it could convict Defendant under the theory that he had the

specific intent to kill or inflict great bodily harm upon the victim or because

Defendant was engaged in the commission or attempted commission of an armed

robbery.4

Specific intent is “that state of mind which exists when the circumstances

indicate that the offender actively desired the prescribed criminal consequences

4

Armed robbery is defined in La. R.S. 14:64 as “the taking of anything of value belonging to another from the

person of another or that is in the immediate control of another, by use of force or intimidation, while armed with

a dangerous weapon.”

Attempt is defined in La. R.S. 14:27 as “any person who, having a specific intent to commit a crime, does

or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt

to commit the offense intended; and, it shall be immaterial whether, under the circumstances, he would have

actually accomplished his purpose.”

19-KA-363 26

to follow his act or failure to act.” La. R.S. 14:10(1). Because specific intent is a

state of mind, it need not be proven as a fact, but may be inferred from the

circumstances and actions of the accused as well as the extent and severity of the

victim’s injuries. State v. Bone, 12-34 (La. App. 5 Cir. 9/11/12); 107 So.3d 49,

58, writ denied, 12-2229 (La. 4/1/13); 110 So.3d 574. Whether a defendant

possessed the requisite intent in a criminal case is a question for the trier of fact,

and a review of the correctness of this determination is guided by the Jackson

standard. State v. Gonzalez, 07-449 (La. App. 5 Cir. 12/27/07); 975 So.2d 3, 8,

writ denied, 08-228 (La. 9/19/08); 992 So.2d 949.

Specific intent to kill can be inferred from the intentional use of a deadly

weapon such as a knife or a gun. State v. Knight, 09-359 (La. App. 5 Cir.

2/9/10); 34 So.3d 307, 317, writ denied, 10-2444 (La. 10/21/11); 73 So.3d 376.

Specific intent may be inferred from the circumstances and from the defendant’s

actions, and the intent to kill or to inflict great bodily harm may be inferred from

the extent and severity of the victim’s injuries. A defendant’s act of aiming a

lethal weapon and discharging it in the direction of the victim supports a finding

by the trier of fact that the defendant acted with specific intent to kill. State v.

Bonilla, 15-529 (La. App. 5 Cir. 2/24/16); 186 So.3d 1242, 1253, writ denied,

16-567 (La. 5/2/16); 206 So.3d 881, cert. denied, -- U.S. --, 137 S.Ct. 239, 196

L.Ed.2d 183 (2016).

In the instant case, the jury was instructed regarding the law of principals.

Under La. R.S. 14:24, “[a]ll persons concerned in the commission of a crime,

whether present or absent, and whether they directly commit the act constituting

the offense, aid and abet in its commission, or directly or indirectly counsel or

procure another to commit the crime, are principals.” Only those persons who

“knowingly participate in planning or execution of a crime” are principals to that

crime. State v. Pierre, 93-893 (La. 2/3/94); 631 So.2d 427, 428; State v. King, 06-

19-KA-363 27

554 (La. App. 5 Cir. 1/16/07); 951 So.2d 384, 390, writ denied, 07-371 (La.

5/4/07); 956 So.2d 600.

An individual may only be convicted as a principal for those crimes for

which he personally has the requisite mental state. King, supra. The mental state

of one defendant may not be imputed to another defendant. Thus, mere presence

at the scene of a crime does not make one a principal to the crime. Id. However,

“[i]t is sufficient encouragement that the accomplice is standing by at the scene

of the crime ready to give some aid if needed, although in such a case it is

necessary that the principal actually be aware of the accomplice’s intention.”

State v. Anderson, 97-1301 (La. 2/6/98); 707 So.2d 1223, 1225 (per curiam). In

State v. Hill, 98-1087 (La. App. 5 Cir. 8/31/99); 742 So.2d 690, 696-97, writ

denied, 99-2848 (La. 3/24/00); 758 So.2d 147, this Court upheld the defendant’s

second degree murder conviction after the jury determined he was at least a

principal to the crime. This Court determined that: 1) the defendant chose to

remain with the co-defendant, at the murder scene, with knowledge, by his own

admission, that his co-defendant planned to rob the victim; 2) the defendant did

nothing to prevent the crime; and 3) the defendant did not come to the victim’s

aid after the shooting, but rather fled the scene. See also State v. Page, 08-531

(La. App. 5 Cir. 11/10/09); 28 So.3d 442, 449-50, writ denied, 09-2684 (La.

6/4/10); 38 So.3d 299.

In the instant case, the State introduced evidence to show that Defendant

either killed the cab driver or was at least a principal to the crime. Quinice Pollard

testified that Defendant was her ex-boyfriend, that he and Mr. Ratcliff sold drugs

together, and that Defendant was the “head drug dealer.” She further testified

that, although Defendant offered several explanations about what happened that

early morning, she believed Defendant when he told her that while he and Mr.

Ratcliff were attempting to rob the cab driver, Defendant put the gun to the cab

19-KA-363 28

driver’s head, and the gun accidentally discharged, and blood got on his clothes.

Ms. Pollard testified that Defendant owned a revolver which she had seen before

and had with him when he told her about what happened. She also testified that,

while Defendant was incarcerated, he sent letters to her asking her to change her

statement, to not present at court to testify, to talk to her sister about changing her

statement, and to talk to other people about helping him out. Quinice also testified

that in some of the letters, Defendant threatened to kill her or to send someone

else to kill her if she betrayed him.

Lt. Sacks testified that Defendant gave a statement wherein he explained

that he and Mr. Ratcliff got into the backseat of the cab, after which Defendant

tried to sell fake drugs to the victim, and Mr. Ratcliff “pretended” to sell a Guess

shirt. Defendant stated to Lt. Sacks that when the cab driver said he was not

interested in buying anything, Mr. Ratcliff told the driver to “give it up.”

Defendant said that then the cab driver slowly pulled off and reached for the

radio, after which Mr. Ratcliff shot him in the head. Defendant noted that the

victim’s blood got on his clothing. In his statement, Defendant said that after the

shooting, they exited the vehicle, Mr. Ratcliff rummaged through the front seat

and the victim’s pockets. Defendant noticed some business cards on the ground.

Lt. Sacks also testified that Defendant exclaimed that the blood on his cap was the

cab driver’s blood when Defendant tried to avoid having his blood sample drawn.

We find that the evidence is sufficient under the Jackson standard to support

Defendant’s second degree murder conviction. Similar to Page, supra, Defendant

remained with Mr. Ratcliff at the scene, did nothing to prevent the crime, fled the

scene rather than render aid to the victim, and did not attempt to report the

shooting. Defendant, through statements to police and his girlfriend at the time,

placed himself at the scene of the crime. Defendant’s statement to the police was

that he tried to sell “fake drugs” then Mr. Ratcliff attempted to sell the victim a

19-KA-363 29

shirt, before Mr. Ratcliff shot the cab driver. Mr. Ratcliff testified that he only

implicated Mr. Chester because the police told him to, but Lt. Sacks and Ms.

Pollard testified that Defendant himself admitted he was involved. According to

Ms. Pollard, Defendant said that he accidentally shot the victim, but also said that

Mr. Ratcliff shot the victim. We find that the evidence is sufficient to establish

that Defendant was either the shooter or a principal to the shooting. The trier of

fact shall evaluate credibility, and when faced with a conflict in testimony, is free

to accept or reject, in whole or in part, the testimony of any witness. State v.

Bradley, 03-384 (La. App. 5 Cir. 9/16/03); 858 So.2d 80, 84, writs denied, 03-2745

(La. 2/13/04); 867 So.2d 688 and 08-1951 (La. 1/30/09); 999 So.2d 750. After

listening to the testimony and considering all of the evidence, the jury found the

State’s witnesses more credible. It is not the function of the appellate court to

assess credibility or re-weigh the evidence. State v. Smith, 94-3116 (La. 10/16/95);

661 So.2d 442, 443.

ASSIGNMENT OF ERROR NUMBER TWO

The trial court erred in admitting Mr. Chester’s custodial statements.

DISCUSSION

The State has the burden of proving the admissibility of a purported

confession or statement by the defendant. La. C.Cr.P. art. 703(D); State v. Arias-

Chavarria, 10-116 (La. App. 5 Cir. 9/28/10); 49 So.3d 426, 433, writ denied, 10-

2432 (La. 2/25/11); 58 So.3d 460. The trial court’s denial of a motion to suppress

is afforded great weight and will not be set aside unless the preponderance of the

evidence clearly favors suppression. State v. Bellow, 07-824 (La. App. 5 Cir.

3/11/08); 982 So.2d 826, 829.

Before an inculpatory statement made during a custodial interrogation may

be introduced into evidence, the State must prove, beyond a reasonable doubt, that

19-KA-363 30

the defendant was first advised of his Miranda rights, that he voluntarily and

intelligently waived them, and that the statement was made freely and voluntarily

and not under the influence of fear, intimidation, menaces, threats, inducements, or

promises. State v. Loeb, 09-341 (La. App. 5 Cir. 2/23/10); 34 So.3d 917, 924-25,

writ denied, 10-681 (La. 10/15/10); 45 So.3d 1110.

Defendant argues that the trial court erred by denying the motions to

suppress his statements because of Defendant’s limited intellect and diminished

mental capacity, and because the State did not adequately prove that those

statements were voluntarily and intelligently given and were not the product of

coercion. Defendant’s statements were made to detectives over a five-hour period.

Lt. Sacks testified that Defendant, who had only turned eighteen years old a few

months prior, arrived at the bureau at 11:00 am on March 18, 1996 and was

advised of his Miranda rights by Deputy Rocky Burr. He further testified that he

got Defendant something to drink and made bathroom facilities available if he

needed them. Lt. Sacks said that he advised Defendant of his Miranda rights using

a standard JPSO waiver of rights form. He said that he read the form out loud and

gave Defendant an opportunity to read the form for himself and Defendant did not

have any questions.

After Defendant signed the form, there was an unrecorded pre-interview,

before he made a recorded statement. Lt. Sacks advised that Defendant did not ask

to stop or ask for an attorney. Lt. Sacks spoke with Defendant again before taking

another recorded statement and he testified that, again, Defendant did not request

to stop or ask for an attorney. He further stated that he did not do anything to force,

threaten, or coerce Defendant into making another statement.

Lt. Sacks testified that Defendant exclaimed, “I already told you that it was

the cab driver’s blood,” while JPSO attempted to execute a search warrant to

obtain a sample of Defendant’s blood for comparative analysis. Lt. Sacks testified

19-KA-363 31

that Defendant was not re-advised of his Miranda rights, but his statement, made

before his blood was drawn, which defense counsel argues was involuntary and

unreliable, was made prior to being held down by deputies and not in response to

questioning.

A determination of voluntariness is made on a case-by-case basis, depending

on the totality of the facts and circumstances of each situation. The admissibility

of a confession or statement is a determination for the trial judge, and the judge’s

conclusions on the credibility and weight of the testimony relating to the voluntary

nature of the confession or statement are entitled to great weight and will not be

overturned unless unsupported by the evidence. Testimony of the interviewing

police officer alone may be sufficient proof that a defendant’s statements were

freely and voluntarily given. Arias-Chavarria, 49 So.3d at 433.

In determining whether the trial court’s ruling on the motion to suppress is

correct, an appellate court is not limited to the evidence presented at the

suppression hearing; it may also review relevant evidence presented at trial. State

v. Poupart, 11-710 (La. App. 5 Cir. 2/28/12); 88 So.3d 1132, 1140, writ denied,

12-705 (La. 10/8/12); 98 So.3d 867.

In State v. Doyle, 11-597 (La. 3/23/11); 56 So.3d 948, 949, the supreme

court ruled that a “defendant may introduce evidence of mental retardation, defect,

and/or diminished capacity at the guilt stage of trial as part of the circumstances

surrounding the making of a confession for jurors to consider in determining the

weight or probative value given the statement.” “This limited purpose stands in

contrast to introducing such evidence on the issue of guilt or innocence.” See

generally, La. C.Cr.P. art. 651 (“When a defendant is tried upon a plea of ‘not

guilty,’ evidence of insanity or mental defect at the time of the offense shall not be

admissible.”)

19-KA-363 32

The Louisiana Supreme Court has noted that diminished mental or

intellectual capacity does not itself vitiate the ability to knowingly and intelligently

waive constitutional rights and make a free and voluntary confession. State v.

Benoit, 440 So.2d 129, 131 (La. 1983). Thus, low intellect, moderate mental

retardation, or diminished mental capacity does not per se and invariably vitiate

capacity to make a knowing and intelligent Miranda waiver. State v. Manning, 03-

1982 (La. 10/19/04); 885 So.2d 1044, 1074, cert. denied, 544 U.S. 967, 125 S.Ct.

1745, 161 L.Ed.2d 612 (2005). In cases involving allegations of diminished

mental capacity, a defendant has the burden of proving the existence of any mental

abnormality that might render his confession per se involuntary. A diminished

intellectual capacity does not alone vitiate the ability to knowingly and intelligently

waive constitutional rights and make a free and voluntary confession. The critical

factor is whether the defendant was able to understand the rights explained to him

and voluntarily gave the statement. State v. Pugh, 02-171 (La. App. 5 Cir.

10/16/02); 831 So.2d 341, 352-53.

In State v. Chester, 15-2304 (La. 12/16/16); 208 So.3d 338, after his

conviction for first degree murder and sentence of death on direct appeal was

affirmed, Defendant filed an application for post-conviction relief arguing that

his counsel erred in litigating the motion to suppress his custodial statements

because she failed to show the statements were not made pursuant to a valid

waiver. Defendant argued that he was a scared-eighteen-year-old with

intellectual disabilities—circumstances which should have prompted counsel to

argue that he could not have understood his rights well enough to knowingly and

intelligently waive them.

The Louisiana Supreme Court found that because Defendant expressly

waived his rights, the question was whether his waiver was knowing and

intelligent under the totality of the circumstances, including his “background,

19-KA-363 33

experience, and conduct,” and that his alleged diminished capacity was but one

factor to consider. The supreme court further found:

His assertion that it was nevertheless invalid because of his

youth and low intellect, as evinced by his reading and language

comprehension deficits, without more, is insufficient to vitiate

his waiver. See State v. Brown, 414 So.2d 689, 696 (La. 1982).

(“[M]oderate mental retardation and low intelligence or

illiteracy do not of themselves vitiate the ability to knowingly

and intelligently waive constitutional rights and make a free

and voluntary confession.”) (citations and internal quotes

omitted); see also State v. Holmes, 06-2988, pp. 20-21, 43 (La.

12/2/08), 5 So.3d 42, 59-60, 72-73 (defendant with IQ of 77

and fetal alcohol syndrome made knowing and intelligent

waiver); Green, 94-0887, pp. 7-19, 655 So.2d at 278-845

(mildly retarded defendant’s waiver was knowing and

intelligent, despite psychologist’s testimony that he was unable

to comprehend his rights, because psychologist also testified he

was educable and could be made to understand, and officers

testified he understood, at least partially because of his criminal

history); compare State v. Istre, 407 So.2d 1183, 1186-87 (La.

1981) (19-year-old with IQ of 68 who did not know his own

age intelligently waived his rights, which were explained in

simplistic terms); and State v. Anderson, 379 So.2d 735, 736

(La. 1980) (fact that defendant was an illiterate, unemployed

17-year-old with the mental age of 8 and an IQ between 50 and

69, coupled with ambivalent police testimony about whether he

understood the rights, supported conclusion he was incapable of

executing a valid waiver).

Under the circumstances, we find that the state would

have carried its burden of proving that Chester’s waiver was

knowing and intelligent, had trial counsel attacked the

statements’ admissibility on these grounds. Thus, Chester

cannot show that his motion to suppress would have been

granted but for trial counsel’s omission. See generally Ortiz-

Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003)

(petitioner must show the overlooked motion would have been

meritorious and a reasonable probability of a different verdict

absent the alleged error) (citing Kimmelman v. Morrison, 477

U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). [Footnote

added].

Id. at 344-45. We find that, although Defendant stated that he had a limited

education and could not read very well, he did not prove the existence of any

5

State v. Green, 94-887 (La. 5/22/95); 655 So.2d 272.

19-KA-363 34

mental abnormality that might render his confession per se involuntary.6

Defendant further complains that his pre-interviews were not recorded.

He made this same complaint in his motion to suppress statements, and it was

also raised in Defendant’s previous appeal. In State v. Flowers, 16-130 (La.

App. 1 Cir. 9/19/16); 204 So.3d 271, writ denied, 16-1871 (La. 9/6/17); 224

So.3d 983, the defendant argued that the trial court erred in denying his motion

to suppress his statement. He complained that only eight minutes of a three-and-

one-half-hour interview were recorded. According to the defendant, he was

denied his rights under La. R.S. 15:4507 because a portion of the interview was

not recorded and the hours that the defendant was alone in the room with the

detective likely would offer some explanation as to what led the defendant to

make the statement. The appellate court found that the defendant’s confession

was properly admitted in compliance with La. R.S. 15:450. It further found that,

despite the fact that not all of the defendant’s conversation with the detective

was taped, the entire tape recording of the confession was played before the jury

at the defendant’s trial, and the detective explained what was discussed during

the remainder of the conversation. The appellate court noted that according to

the detective, prior to the recorded statement, he explained the allegations and

6

Additionally, the record reflects that on November 12-15, 2013, the trial court held an extensive hearing

regarding Defendant’s claim of mental retardation pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153

L.Ed.2d 335 (2002), prior to the granting of federal habeas corpus relief (on different grounds). In Atkins v.

Virginia, the Supreme Court held that the execution of mentally retarded persons (now referred to as intellectually

disabled persons) constitutes excessive punishment and therefore violates the Eighth Amendment. Although the

contents of the Atkins hearing and the ruling were not admitted into evidence at the suppression hearing or at trial in

the instant case, it is noted that the same judge who presided over that hearing presided over the trial in the instant

case. In a written judgment dated December 5, 2013, the trial court stated that Defendant had an average IQ, and

the judge denied Defendant’s claim, stating in pertinent part:

In summary, Petitioner fails to meet his burden of proving he is mentally retarded by

preponderance of evidence. Petitioner did not submit sufficient evidence to meet this burden.

Moreover, the State presented ample evidence that Petitioner is not mentally retarded. The

court has had the opportunity to observe Petitioner in court on several occasions, and is

impressed with petitioner’s intellectual abilities to discuss complicated legal issues with an

obvious degree of understanding. Petitioner has also filed numerous pleadings and has a strong

grasp of the law in areas at issue.

7

La. R.S. 15:450 provides:

Every confession, admission or declaration sought to be used against any one must be

used in its entirety, so that the person to be affected thereby may have the benefit of any

exculpation or explanation that the whole statement may afford.

19-KA-363 35

charges to the defendant. Id. at 278-80; State v. Chism, 08-474 (La. App. 5 Cir.

12/16/08); 3 So.3d 41, writ denied, 09-153 (La. 10/2/09); 18 So.3d 102.

In State v. Thibodeaux, 98-1673 (La. 9/8/99); 750 So.2d 916, cert. denied,

529 U.S. 1112, 120 S.Ct. 1969 (2000), the defendant maintained that his due

process rights were violated because the officer talked to him while the tape

recorder was turned off. The Louisiana Supreme Court held:

[T]here is no due process requirement that a statement given to the

police must be recorded. Nor is there any support in the record for

the Defendant’s claim that a portion of his statement was unrecorded

somehow violated his due process rights or coerced him into giving a

confession. The law does not require the production of non-existent

portions of the confession or portions which cannot be recalled. State

v. Marmillion, 339 So.2d 788, 793 (La. 1976). In the absence of proof

to the contrary, the fact that the purported statement of the accused as

testified to by the investigating officer does not consist of a verbatim

reiteration of the conversation between them due to the witness’s

inability to recall or other valid explanation does not violate the rights

of the accused. State v. Lefevre, 419 So.2d 862, 867 (La.1982).

Id. at 923-24.

Even though there were unrecorded pre-interviews, we find Defendant’s

custodial statements were properly admitted in compliance with La. R.S. 15:450.

As in Flowers, the record in the instant case reflects that both of Defendant’s

custodial statements were played before the jury in their entirety and that Lt. Sacks

explained what was discussed during the remainder of the conversation. Also, as

in Chism, we find that the jurors in the instant case were made aware of the

circumstances under which Defendant made the incriminating statements to the

lieutenant (then detective) and that the jury had an adequate basis for deciding the

credibility issue against Defendant. Further, the law does not require the

production of non-existent portions of the confession or portions which cannot be

recalled. See Thibodeaux, supra.

Next, Defendant argues that the statements should have been suppressed

because he was detained and questioned for a long period of time. Defendant said

19-KA-363 36

that he was detained and/or questioned for approximately six hours. Lt. Sacks

testified that Defendant was brought to the detective bureau at 11:00 a.m. The

rights of arrestee form is dated March 18, 1996, at 1536 hours (3:36 p.m.). The

record reflects that Defendant’s first statement was taken at 4:22 p.m., and his

second statement was taken at 5:11 p.m. and concluded at 5:34 p.m.

In State v. Green, 19-123 (La. App. 5 Cir. 12/26/19); 286 So.3d 1230, this

Court found that the length of the interview did not render the defendant’s

statement involuntary. This Court recognized that “[a]lthough the statement was

approximately twelve and one-half hours long, the length of the interview was not

attributable to coercion, but rather, it was precipitated by the defendant’s deception

in denying his involvement in the homicides for many hours.” Id. at. 1240. This

Court further found that with respect to the conditions surrounding the statement,

the videotaped statement reflected that the defendant was allowed to use the

restroom and was given something to eat and drink. This Court noted that the

video also showed that the defendant rested and slept alone for periods of time in

the chair he was sitting in during the twelve-and-one-half-hour period. See also

State v. Bradley, 03-384 (La. App. 5 Cir. 9/16/03); 858 So.2d 80, writs denied, 03-

2745 (La. 2/13/04); 867 So.2d 688 and 08-1951 (La. 1/30/09); 999 So.2d 750;

State v. Blank, 04-204 (La. 4/11/07); 955 So.2d 90, cert. denied, 552 U.S. 994, 128

S.Ct. 494, 169 L.Ed.2d 346 (2007).

In the instant case, Defendant was at the detective bureau from 11:00 a.m.

until approximately 5:30 p.m. During that time, there were two pre-interviews and

two recorded statements. Although Defendant was detained approximately six and

one-half hours, he was not questioned the entire time. This Court finds, as we did

in Green and Bradley, that the length of the interview was not attributable to

coercion, but rather, it was precipitated by Defendant’s deception in his initial

19-KA-363 37

statement. Also, we note that Defendant was given something to drink and

allowed to use the bathroom facilities as needed. Defendant also argued that there

was no proof that in the lengthy time periods during which the tape recorder was

intentionally turned off, no law enforcement officer exerted any coercion,

intimidation, or undue influence on him. However, Lt. Sacks testified that none of

the JPSO investigators in the homicide division applied any force or coercion to

Defendant for him to make a statement. Further, he knowingly and voluntarily

waived his rights and never invoked his right to remain silent while speaking to Lt.

Sacks. Therefore, we find that the trial court did not err in denying the motion to

suppress on this ground.

Defendant additionally contends that his statement at the time his blood was

drawn should have been suppressed. Lt. Sacks recalled that he went to the

correctional facility and met with Defendant in the medical pod to advise Defendant

that he had a search warrant to obtain blood from him. He testified that Defendant

then said, “I already told you it was the cab driver’s blood.” Lt. Sacks said that he

did not ask Defendant any questions. Lt. Sacks recalled that Defendant was

uncooperative and had to be held down on a gurney by three deputies so medical

personnel could procure the sample. He did not believe Defendant was handcuffed

at the time. He further testified that he did not re-advise Defendant of his Miranda

rights. Lt. Sacks stated that he did not force, threaten, or coerce Defendant into

making that statement at the time his blood was drawn.

The obligation to provide Miranda warnings attaches when a person is

questioned by law enforcement after he has been taken into custody or otherwise

deprived of his freedom of action in any significant way. Miranda, 384 U.S. at

444, 86 S.Ct. at 1612; State v. Payne, 01-3196 (La. 12/4/02); 833 So.2d 927, 934.

As such, Miranda warnings are applicable only when it is established that the

19-KA-363 38

defendant has been subject to a “custodial interrogation.” Interrogation under

Miranda refers not only to express questioning but also to any words or actions on

the part of the police (other than those normally attendant to arrest and custody)

that the police should know are reasonably likely to elicit an incriminating

response from the suspect. Payne, 833 So.2d at 938.

Spontaneous and voluntary statements, not given as a result of police

interrogation or compelling influence, are admissible without Miranda warnings

even where a defendant is in custody. State v. Castillo, 389 So.2d 1307, 1310 (La.

1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1004 (1981). Police

officers are not obliged to ignore spontaneous and unsolicited statements by

someone in custody, as long as the statements do not result from police-initiated

custodial interrogation or questioning “reasonably likely to elicit an incriminating

response.” State v. Ross, 95-1798 (La. 3/8/96); 669 So.2d 384, 386. Even if a

suspect is in custody, one’s spontaneous statements need not be suppressed

because they are not the product of custodial interrogation. See State v. Smith, 00-

1838 (La. 5/25/01); 785 So.2d 815, 817.

In the instant case, the record reflects that Lt. Sacks informed Defendant of

his intention to draw blood pursuant to the warrant, after which Defendant made a

spontaneous statement to Lt. Sacks that the blood on the cap was the cab driver’s

blood. We find that Defendant’s spontaneous statement to Lt. Sacks was not made

in response to questioning, and therefore, it need not be suppressed.

Based on the foregoing, we find that the trial court did not abuse its

discretion by denying Defendant’s motion to suppress his statements.

ASSIGNMENT OF ERROR NUMBER THREE

The trial court erred in allowing the State to admit fifty-two pages of incomplete

letters.

19-KA-363 39

DISCUSSION

Defendant argues that the trial court erred by allowing the State to admit

fifty-two pages of incomplete and confusing letters that he allegedly wrote to his

girlfriend, Quinice Pollard. He further argues that the letters were more prejudicial

than probative and should have been excluded. Defendant contends that the

letters were the product of an immature and cognitively-disabled teenager

struggling to do what he could to help his case. He also contends that the letters

painted a one-sided version of their communication. Defendant asserts that he

never told Ms. Pollard to lie but instead to “help him out.” He maintains that the

context of the letters is unclear and impossible to clarify given the passage of time

and his right not to testify.

The State responds that the trial court did not err by admitting letters

Defendant wrote to Ms. Pollard. It further responds that it introduced the letters

to show Defendant’s threats toward Ms. Pollard and his attempts to get her to not

cooperate with the prosecution. The State maintains that it was not attempting to

“cherry pick” parts of the letters and that it introduced all of the letters in its

possession subject to agreed-upon redactions. It argues that ruling the letters

inadmissible due to missing pages that could not be located would lead to absurd

and inequitable results as the Louisiana Supreme Court “likely recognized” in

State v. Marmillion, 339 So.2d 788 (La. 1976).

The State asserts that probative evidence should not be rendered

inadmissible due to limited portions of evidence being unavailable through no

fault of the State or of Defendant. It further asserts that Defendant was free to

explore the incomplete nature of the letters and to posit his own interpretation of

the content of the letters to the jury. The State contends that while Defendant

claimed the incomplete letters only showed that he was a dangerous ex-boyfriend

19-KA-363 40

who threatened to kill Ms. Pollard, the defense, during cross-examination of Ms.

Pollard, highlighted for the jury the parts of the letters where Defendant

demonstrated care toward Ms. Pollard and her daughter. The State argues that

under the circumstances, there is no violation of La. R.S. 15:450, which requires

that every declaration must be used in its entirety.

On August 31, 2018, the State filed State’s Notice of Intent to Use Other

Acts Evidence Pursuant to La. C.E. Article 404(B). In that notice, the State sought

to introduce evidence of other acts at trial, namely, multiple letters Defendant

wrote to his girlfriend, Quinice Pollard, while he was incarcerated. In the letters,

Defendant threatened to kill Ms. Pollard if she left him for another man and told

her to change her statement, testify that she did not remember what Defendant

told her, or if she saw him with the gun, and to tell her sister and the other

witnesses to help by not coming to court. The State indicated that the letters

written to Quinice to attempt to dissuade her from testifying about his confessions

were highly probative and relevant to prove identity, opportunity, plan, intent,

guilty knowledge, and absence of mistake or accident.

On September 7, 2018, at the hearing on the motion, the trial judge denied

the motion in limine to exclude the evidence, explaining that she was allowing the

letters in their entirety. The court also asked counsel to try to come to a consensus

on redacting portions of the letters.

Defendant filed a writ application challenging the trial judge’s ruling. On

September 14, 2018, this Court denied the writ application, stating in pertinent

part:

In its motion filed pursuant to La. C.E. art. 404(B), the State

first requested leave to introduce letters relator wrote to his girlfriend,

Quinice Pollard, and her sister, Kaprice Pollard, which include threats

and attempts to influence their testimony against him. The State notes

that in his statement, relator claimed Elbert Ratcliff shot the victim

and relator further claimed he was unaware of the armed robbery

committed by Ratcliff and was just trying to sell fake drugs to the

19-KA-363 41

victim. The State notes that Quinice Pollard and her sister, Kaprice,

will testify that relator confessed to participating in the armed robbery

and murder. The State argues that relator’s threats and attempts to

influence their testimony is relevant to negating relator’s defense and

establishing his guilty knowledge and intent to commit the murder.

Other crimes evidence may be used to prove knowledge when

proof of such knowledge is required to establish guilt. State

v.Silguero, 608 So.2d 627, 629 (La. 1992); State v. Leday, 11-1022

c/w 12-54 (La. App. 5 Cir. 6/28/12), 97 So.3d 501, 505, writ denied,

12- 1765 (La. 3/1/13) 108 So.3d 788. Guilty knowledge is used to

negate an innocent explanation for an undoubtedly unlawful act, as

possibly done unknowingly. Id.

We find the trial court did not abuse its discretion in granting

the State’s motion to introduce relator’s jailhouse letters. We agree

with the State’s position that the letters contain relevant evidence to

establish guilty knowledge and further agree the probative value of

these letters outweighs any potential prejudice. We further note that at

the hearing on this motion, the State offered to redact irrelevant

portions of the letters if relator does not want to introduce the letters

in their entirety.

See State v. Chester, 18-K-525 (La. App. 5 Cir. 9/14/18) (unpublished writ

disposition).

On September 17, 2018, defense counsel moved to exclude any of the

letters that were incomplete. The prosecutor responded that the trial court had

already ruled that all of the letters were admissible. Later that day, Defendant

filed a Motion in Limine to Exclude Incomplete Statements Attributed to the

Defendant. In that motion, Defendant acknowledged the existing order allowing

the letters to be admitted but argued that they should not be admitted because the

letters were missing pages and La. R.S. 15:450 prohibited the introduction of

incomplete confessions, admissions, or declarations. Defendant contended that

introduction of these letters in their current form would cause a material injustice

at trial as statements attributed to him would be presented to the jury without a

full understanding of the context and circumstances surrounding the statements.

On September 19, 2018, at the hearing on the motion, the prosecutor

responded that the issue was moot, noting that he had attached all of the letters to

19-KA-363 42

his 404(B) motion, the objection was not raised timely, and the trial court and this

Court had already found those letters to be admissible. After hearing arguments

of counsel, the trial judge denied the motion to exclude the letters, stating in

pertinent part:

With respect to - - with respect to the statements, I mean, I’m

sorry, the letters, there’s been - - there’s a mo - - there’s been a motion

to exclude the letters on the grounds of lack of completeness. And I

think it’s 15:450 if I’m not mistaken is the statute that applies. What

has been produced and what is going - - what is intended to be offered

is all that is available to the State. The State’s not attempting to

cherry-pick parts and not present others. I believe that the intent of

15:450 is satisfied here, and I am denying the request to exclude the

letters.

Defendant filed a writ application challenging the trial court’s ruling.

This Court denied the writ, stating in pertinent part:

A motion in limine presents an evidentiary matter that is subject

to the great discretion of the trial court. State v. Calderon, 16-690

(La. App. 5 Cir. 4/12/17); 220 So.3d 830, 837. An appellate court will

not disturb the trial court’s rulings on the State’s motions in limine

absent an abuse of discretion. Id.

On the showing made, we do not find the trial court erred in

denying Relator’s motion. We note that Relator has an adequate

remedy on appeal in the event of a conviction. Accordingly, the writ

application is denied.

See State v. Chester, 18-K-542 (La. App. 5 Cir. 9/20/18) (unpublished writ

disposition)

Ultimately, the trial court admitted Defendant’s letters to Ms. Pollard for

record purposes only and without redactions, as well as Ms. Pollard’s letters to

Defendant, which the defense asserted showed that Ms. Pollard was not afraid of

Defendant and the two enjoyed a close, loving relationship at some point.

Under the doctrine of “law of the case,” an appellate court will generally

refuse to reconsider its own rulings of law on a subsequent appeal in the same

case. State v. Falcon, 13-849 (La. App. 5 Cir. 3/12/14); 138 So.3d 79, 87-88, writ

denied, 14-769 (La. 11/14/14); 152 So.3d 877. Reconsideration of a prior ruling is

warranted when, in light of a subsequent trial record, it is apparent that the

19-KA-363 43

determination was patently erroneous and produced unjust results. Id. We find

that there is no additional evidence in the subsequent trial record that would

suggest that this Court’s prior determination on this issue was patently erroneous

or produced unjust results and decline to reconsider this Court’s previous rulings

regarding the motion to exclude the letters.

ASSIGNMENT OF ERROR NUMBER FOUR

The trial court erred in failing to conduct a Daubert hearing for the 1996 DNA

testing.

ASSIGNMENT OF ERROR NUMBER FIVE

The trial court erred in admitting unreliable and prejudicial DNA evidence.

DISCUSSION8

Defendant argues that the trial court erred by failing to conduct a Daubert9

hearing for the 1996 testing; however, he failed to brief that assignment of error.

All specifications or assignments of error made to the courts of appeal must be

briefed; the court may consider as abandoned any specification or assignment of

error which has not been briefed. Uniform Rules – Courts of Appeal, Rule 2-

12.4; State v. Camp, 16-473 (La. App. 5 Cir. 3/15/17); 215 So.3d 969, 973.

Because Defendant has failed to brief this assignment, we will consider it waived

and pretermit further discussion of the issue.

Defendant also argues that the trial court erred by admitting unreliable and

prejudicial DNA evidence. He contends that the introduction of DNA evidence

which connected the victim to a blood spot found on a cap seized from his

brother’s house had such a low statistical probability of being Mr. Adams’ blood

that it unfairly prejudiced him at trial. He further argues that the statistical

8

The assignments of error are discussed together because they are related, and Defendant addresses them

together in his brief.

9

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

19-KA-363 44

probability of a match was so low as to be more prejudicial than probative. He

also contends that the State relied on the statistic of one in 339 Caucasian men

and women matching the profile of the blood found on the cap to support its

position that Defendant was inside of the cab during the shooting. Defendant also

asserts that the prosecutor overstated the probative value of the test results during

closing arguments. He argues that because the DNA testing did not produce

relevant results and confused the jury into believing that it proved more than it

did, this Court must grant him a new trial.

The State responds that the trial court did not abuse its discretion by

admitting this DNA evidence. It further responds that Defendant’s protestations

relative to the probative value of the DNA evidence properly go to the weight of

the evidence rather than its admissibility. The State argues that the mere fact that

the statistical probabilities from tests performed in 1996 are not as discriminating

as the statistical probabilities from tests performed with modern technology does

not make the scientific methodology “unreliable” in any way. It also argues that

the scientific methodology is reliable because the statistical probabilities can be

trusted to be what they purport to be, and it is properly the function of the jury to

decide what weight, if any, to accord to those statistical probabilities. The State

asserts that Defendant extensively cross-examined the State’s witnesses as to the

statistical probabilities at issue and presented to the jury Defendant’s account of

why the jury should place no weight on the DNA evidence.

In the instant case, the State also argues that under the law of the case

doctrine, this Court need not revisit this issue because nothing has changed from

the trial court’s first ruling prior to the first trial. On April 23, 1997, prior to

Defendant’s first trial, a hearing was held on Defendant’s motion for admissibility

of DNA testing. At that hearing, Anne Montgomery testified, and the trial judge,

not the same judge as in the instant case, allowed the DNA evidence to be

19-KA-363 45

admitted at trial. Under the doctrine of law of the case, an appellate court will

generally refuse to reconsider its own rulings of law on a subsequent appeal in the

same case. Falcon, supra.

In State v. Langley, 10-969 (La. App. 3 Cir. 4/6/11); 61 So.3d 747, 765-67,

writ denied, 11-1226 (La. 1/20/12); 78 So.3d 139, cert. denied, 568 U.S. 841,

133 S.Ct. 148, 184 L.Ed.2d 73 (2012), the third circuit stated that a review of the

jurisprudence had found no case in which the law of the case doctrine had been

applied to a trial judge’s rulings on issues that were ruled upon by an earlier trial

judge in a prior trial of the same case. The third circuit found that the law of the

case doctrine was not applicable to the case before it because the trial at issue

was not a later stage of the prior trials. Although the doctrine manifests the

appellate court’s general practice not to re-litigate decided matters, the doctrine

is not a limit on judicial authority. See id. Therefore, in this case, because this

new trial is not a later stage of the prior trial, we find that the law of the case

doctrine is not applicable in this instance.

On August 31, 2018, Defendant filed a Motion to Exclude DNA Evidence

Where Statistical Probability of a Match is So Low as to be More Prejudicial

than Probative. In that motion, Defendant moved to exclude the DNA evidence

on the cap and asked for a Daubert hearing. At the hearing on the motion,

defense counsel argued that the prior DNA testing done in 1996 on the cap

should be excluded because it was more prejudicial than probative and because

the statistics were so common as to not have any relevance to whether Defendant

was wearing that cap on the night the victim was killed. The prosecutor

responded that the nature of the probability did not make the evidence irrelevant.

Rather, he contended that it went to the weight of the evidence and that the jury

could determine how much weight, if any, to give it. After hearing arguments of

counsel, the trial court denied the motion, finding that the evidence was relevant

19-KA-363 46

and that defense counsel could make their arguments about the weight it

deserved. Defense counsel noted her objection to the trial court’s ruling.

At trial, Anne Montgomery, qualified as an expert in the fields of

molecular biology and DNA analysis, testified that she conducted DNA testing

in the instant case in 1996 on the baseball cap and that neither the victim nor the

Defendant could be excluded as DNA donors. Ms. Montgomery noted that she

looked at two genetic markers to generate population frequencies, and she

explained that approximately one in 339 Caucasian individuals would have

those two genetic markers in their profile if she looked at random Caucasian

individuals.

Ms. Montgomery testified that between 1996 and 2018, DNA science had

evolved and expanded. When Ms. Montgomery was contacted about the instant

case, she recommended re-testing the evidence using “today’s markers” – the

standard at the present time is fifteen to twenty-two markers for a composite

profile, versus only two markers in 1996. The increased numbers of markers

make DNA tests more sensitive and the analysis results more discriminating, Ms.

Montgomery explained. The Jefferson Parish Crime Lab re-tested samples from

the jeans and baseball cap in evidence. The crime lab was unable to generate a

profile due to either the inadequate sample size or degradation of the evidence

after twenty-plus years; however, that did not invalidate or negate her 1996

results. Ms. Montgomery also testified that there was nothing in the way DNA

testing was done in 2018 that would cause her to have any doubt in the accuracy

of the results she obtained in 1996. Nevertheless, she testified that the methods

she used to conduct DNA analysis in 1996 were considered to be state of the art

at the time and that the improved testing methods do not render the 1996 test

results unreliable or invalid.

Ms. Schneida testified that she was the JPSO DNA Director and the trial

19-KA-363 47

court qualified her as an expert in the field of forensic DNA analysis. Ms.

Schneida testified that she conducted further testing in August of 2018 on the

Raiders baseball cap for possible blood, but the results were negative. She

acknowledged that there was a positive result for blood on the baseball cap

previously but explained that either the sample was consumed or it degraded over

time. She did not know how the evidence was stored but noted that extreme heat,

exposure to humidity or moisture, or light could degrade DNA. Ms. Schneida

also felt that the inability to redo DNA testing, due to the lack of forensic

material available for testing, did not invalidate the prior positive result.

As a general matter, under La. C.E. art. 702, “if scientific, technical, or

other specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education, may testify ... in the form of an opinion

or otherwise.” State v. Mosley, 08-1318 (La. App. 5 Cir. 5/12/09); 13 So.3d 705,

714, writ denied, 09-1316 (La. 03/5/10); 28 So.30.d 1002; State v. Higgins, 03-

1980 (La.4/1/05); 898 So.2d 1219, 1239, cert. denied, 546 U.S. 883, 126 S.Ct.

182, 163 L.Ed.2d 187 (2005).

The decision whether to reject or accept the person as an expert falls to the

great discretion of the trial court, whose rulings will not be disturbed absent an

abuse of that discretion. State v. Craig, 95-2499 (La. 5/20/97); 699 So.2d 865,

870, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997).

With regard to the relevance of DNA testing, La. R.S. 15:441.1 provides

that “[e]vidence of deoxyribonucleic acid profiles, genetic markers of the blood,

and secretor status of the saliva offered to establish the identity of the offender of

any crime is relevant as proof in conformity with the Louisiana Code of

Evidence.” In State v. Ledet, 00-1103 (La. App. 5 Cir. 7/30/01); 792 So.2d 160,

173, writ denied, 01-2451 (La. 9/30/02); 825 So.2d 1185, this Court found that it

19-KA-363 48

was clear from La. R.S. 15:441.1 that the Louisiana Legislature intended DNA

evidence to be admissible absent a showing that the evidence was unreliable. This

Court acknowledged that Louisiana courts had recognized that DNA “typing” was

sufficiently scientifically reliable to cross the admissibility threshold and that both

federal and other state courts had found, in general, that DNA profiling is a

reliable technique and is admissible. It noted that both federal and other state

courts had found that, in general, DNA profiling was a reliable technique and was

admissible.

La. R.S. 15:441.1 provides that DNA evidence is relevant to establish

identity. See Ledet, supra. Further, defense counsel extensively cross-examined

Ms. Montgomery regarding the DNA evidence, eliciting testimony that the

statistical probabilities in 1996 were not as discriminating as those of today.

Additionally, it was the function of the jury to determine what weight, if any, to

give the DNA evidence. A determination of the weight of evidence is a question

of fact, resting solely with the trier of fact who may accept or reject, in whole or

in part, the testimony of any witnesses. State v. Silman, 95-154 (La. 11/27/95);

663 So.2d 27, 35. Accordingly, we find that the trial court did not abuse its

discretion by denying the motion to exclude the DNA testing in this case. The

evidence and testimony given at trial regarding the DNA test results show that at

least two people’s blood were on the cap, and Defendant and the victim could not

be excluded as donors. We further find that the trial court did not err in admitting

the DNA evidence as it was cumulative of Defendant’s statements to the police

where he placed himself in the cab at the time of the shooting and his statement to

Lt. Sacks that the blood on the cap was the victim’s blood.10

10

Compare State v. Williams, 17-0312 (La. App. 4 Cir. 12/20/17); 234 So.3d 1040, 1054, “Even if the trial court

erred in admitting the evidence regarding the preliminary gunshot residue test, we find that the error was harmless.

This Court has recognized that ‘[w]here improperly admitted evidence is merely corroborative and cumulative of

other properly introduced evidence, it is considered harmless error.’”

19-KA-363 49

ASSIGNMENT OF ERROR NUMBER SIX

The trial court erred in excluding expert testimony on Mr. Chester’s vulnerability

and false confession.

DISCUSSION

Defendant argues that the trial court abused its discretion by excluding

expert testimony on his vulnerability, mental capacity, and false confession that

violated his Sixth Amendment right to present a defense. He contends that the

trial court accepted Dr. Gregory DeClue as an expert in forensic psychology but

erroneously failed to recognize him as an expert in police psychology as it related

to false confessions. Defendant argues that although he did not confess to a crime

he did not commit, he did make false statements due to his diminished mental

capacity. He asserts that his defense was that there was no reliable forensic

evidence that linked him to the crime and that his false statements regarding

being inside of the cab at the time of the shooting, wearing a Raiders cap, having

blood on his clothes and hat, and that the blood belonged to the cab driver should

not be believed. Defendant argues that this error requires reversal.

The State responds that the trial court did not abuse its discretion by

excluding Dr. DeClue’s testimony. It contends that while a defendant has a

constitutional right to present a defense, constitutional guarantees do not assure

the defendant the right to the admissibility of any type of evidence, but rather,

only that which is deemed trustworthy and has probative value. The State points

out that the law is unsettled, and the jurisprudence is split as to whether expert

testimony on false confessions should be admissible in a criminal trial. It submits

that expert testimony on false confessions is not even relevant in the instant case

given that Defendant did not confess to the police; rather, it explains that

Defendant gave statements which, while placing him on the scene, were

essentially inculpatory, with the Defendant claiming that he was in the wrong

19-KA-363 50

place at the wrong time.

In any event, the State contends that even if the testimony could have some

marginal relevance, the trial court did not abuse its broad discretion in excluding

it. The State argues that Dr. DeClue, who never met or tested Defendant, never

met the detectives, never analyzed the interrogation techniques, and never

reviewed important information, would have little to offer the jury except for the

abstract conclusions that false confessions can occur, that an individual of limited

intelligence could potentially be vulnerable to police pressure, and that

“contaminating” an interrogation such as by feeding a suspect information could

potentially taint the results. The State further contends that all of these abstract

conclusions were within the understanding of average jurors and that having Dr.

DeClue testify to these conclusions would only invade the province of the jury

and waste time by telling the jury what it already could be expected to know. The

State further submits that there is not a sufficient showing of scientific reliability,

either in this case, or as to this “science” in general, to justify admissibility.

On August 31, 2018, Defendant filed Motion to Admit Expert Testimony

on False Confessions. In that motion, Defendant stated that he wished to call Dr.

Gregory DeClue as an expert witness to explain the existence of false

confessions, the factors that create vulnerability in individuals to falsely confess,

and the situational factors in interrogations or other circumstances that can lead to

false confessions, in order to educate and assist the jury in assessing the weight to

be given to the evidence of confessions the State intended to present. Defendant

also stated that he intended to call Dr. DeClue regarding the reliability of the

interrogation process and not the truthfulness of witnesses. He asserted that Dr.

DeClue’s testimony would be relevant to the voluntariness of Defendant’s

statements and that he did not intend for Dr. DeClue to give an ultimate

conclusion or opinion as to whether the confessional statements made were false.

19-KA-363 51

On September 6, 2018, the State filed State’s Motion in Limine and

Opposition with Incorporated Memorandum to Exclude Expert Testimony on

False Confessions. In its opposition, the State submitted that the law suggested

that there was support both for and against the admissibility of expert testimony

on false confessions. The State argued that the majority of the cases had

permitted expert testimony on false confessions where there was evidence that

Defendant suffered from a mental disorder that caused him to make such

inculpatory statements. It further argued that the instant case is distinguishable

because Defendant does not assert any claim that such statements were made

pursuant to a mental disorder that caused the Defendant to make such statements.

The State contended that there had been no showing made that: (1) the expert’s

scientific, technical, or other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue; (2) the testimony is based

on sufficient facts or data; (3) the testimony is the product of reliable principles

and methods; and (4) the expert has reliably applied the principles and methods to

the facts of the case. The State also contended that the testimony Defendant

wished to elicit from Dr. DeClue was not relevant, it did not assist the trier of

fact, and what, if any, probative value it had was substantially outweighed by the

danger of undue prejudice, confusion of the issues, and was misleading to the

jury. The State maintained that Defendant never claimed that he gave a false

confession prior to the filing of the motion to admit expert testimony and that his

motion to suppress statements was devoid of such a claim.

On September 7, 2018, at the hearing on the motion, the trial court decided

that a Daubert hearing was necessary. She also ordered defense counsel to

provide a report to the State.

On September 17, 2018, the State filed State’s Supplemental Motion in

Limine and Opposition with Incorporated Memorandum to Exclude Expert

19-KA-363 52

Testimony. In its supplemental opposition, the State argued that the expert’s

testimony should also be excluded because Defendant failed to comply with the

discovery articles. The State pointed out that despite assurances in court from

defense counsel that a report would be provided by September 12, 2018, it had

not received any expert report from this proposed expert or any written list of

materials upon which his conclusion was based and the opinion and reason as

required by La. C.Cr.P. art. 725.

On September 19, 2018, a Daubert hearing was held. At that hearing, the

trial court admitted Defense Exhibit D3, in globo—twelve documents relied upon

by Dr. DeClue—into evidence for purposes of the hearing. Dr. DeClue testified

that he was a forensic psychologist. After listening to Dr. DeClue’s educational

and employment background, the trial court accepted him as an expert in the field

of forensic psychology but not in police psychology.

Dr. DeClue further testified that suspects and witnesses sometimes make

false confessions. He stated that there had been controlled studies of false

confessions that were subject to peer review. He asserted that an interview could

be “contaminated” if the police tell details of the crime to the media, witnesses,

or suspects because it could make it difficult to know whether details in the

suspect’s statement came from actual knowledge.

Dr. DeClue testified that best practices for police interrogation had been

developed, which were to record the entire interaction, to investigate before you

interrogate, to hold back details that would likely be known by the person who

committed the crime, and to use non-leading questions. Dr. DeClue testified that

there were best practices with respect to special precautions that should be taken

with juveniles, mentally impaired people, and people who were deemed

vulnerable. He explained that some police deliberately mislead or lie or

inadvertently say something that is false during an interrogation and that those

19-KA-363 53

people with limited cognitive ability and other vulnerable populations are

considered to be more at risk to succumb to that type of pressure and come to

believe in that moment that they would be better off by saying that they

committed the crime even if they did not.

Dr. DeClue stated that he had reviewed materials from the instant case

which included Defendant’s statements, police records, school records,

psychological reports, SSI materials, and witness statements. He learned that

Defendant only completed the seventh grade and had to repeat first, second, and

third grades. Dr. DeClue maintained that up until the time of his questioning by

the police, the records were clear that he had difficulty learning and that he was

classified as mentally retarded as a child and received disability benefits for that.

He noted that Defendant’s IQ testing had been inconsistent and that he had

trouble reading and writing. Therefore, Dr. DeClue concluded that Defendant

could have been a vulnerable person when he was questioned by the police in the

instant case. Dr. DeClue noted that he had never met Defendant or administered

any tests to him. He said that it was still possible that he might meet with

Defendant and conduct tests on him. He opined that the statements of Quinice

and Kaprice Pollard contained examples of contamination and psychological

coercion, which could contribute to a false statement. Dr. DeClue also stated that

he did not meet with the detectives, that he did not know about the detectives’

experience and training, and that he did not review the Atkins hearing.

Following Dr. DeClue’s testimony, defense counsel and the State argued

their respective positions. The trial court then denied the motion to allow Dr.

DeClue to testify, stating in pertinent part:

Okay. I don’t even think it’s a close question here. Dr.

DeClue never met Mr. Chester. He never evaluated whether

Mr. Chester gave a false confession, nor did he analyze the

interrogation techniques used. He would ask the jury to apply

19-KA-363 54

science and abstract with only remote if any connection

between the testimony and the facts of this case.

I don’t think he has anything more than abstract scientific

notions, and he does not recognize - - apply recognized

acceptable principles to Mr. Chester’s particular circumstances.

He offers only that false confessions can occur.

I think that the testimony is not helpful and does invade

the province of the jury. And I do think that probative value if

any is substantially outweighed by the danger of misleading the

jury and jury confusion. So there would be prejudice.

I think the jury’s capable of using its common sense and

common knowledge to determine the reliability of the

Defendant’s statement, is capable of understanding the reasons

it may be unreliable without the assistance of Dr. DeClue’s

opinions.

Again, he never met with Mr. Chester. He’s going to

make a determination or base his opinion on vulnerability of

Mr. Chester on Mr. Chester’s early school records and an SSI

determination of retardation. I find his information is

incomplete and conclusions are not reliable. And in fact, he

admits no factual basis for him to reach conclusions to a

reasonable degree of certainty, and yet he’s - - he doesn’t shy

away from doing so despite those admissions.

Also he wants to be able to get in - - He said the two

purposes were to get in the information about the SSI and the

early school struggles and to have - - tell the jury about the

dangers of contamination. I just - - I just don’t think that this is

going to be helpful to the jury at all.

Also I have to say I did find the doctor’s responses to

questioning to be largely evasive, and I thought - - I felt that

he was intentionally obtuse at times.

And for all those reasons I am not allowing his

testimony.

Defense counsel objected to the trial court’s ruling.

As a general matter, under La. C.E. art. 702, “if scientific, technical, or

other specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education, may testify ... in the form of an opinion

or otherwise.” See Mosley, supra. Notably, the supreme court has placed

19-KA-363 55

limitations on this codal provision in that “[e]xpert testimony, while not limited to

matters of science, art or skill, cannot invade the field of common knowledge,

experience and education of men.” State v. Stucke, 419 So.2d 939, 945 (La.

1982). See also State v. Young, 09-1177 (La. 4/5/10); 35 So.3d 1042, 1046-47,

cert. denied, 562 U.S.1044, 131 S.Ct. 597, 178 L.Ed.2d 434 (2010). Although

relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury. La. C.E. art. 403. The decision whether to reject or accept

the person as an expert falls to the great discretion of the trial court, whose rulings

will not be disturbed absent an abuse of that discretion. See Craig, supra.

In Foret, supra, the Louisiana Supreme Court adopted the test set forth in

Daubert, supra, regarding proper standards for the admissibility of expert

testimony which requires the trial court to act in a gatekeeping function to ensure

that any and all scientific testimony or evidence admitted is not only relevant,

but reliable. See Chauvin, supra.

In State v. Lamonica, 09-1366 (La. App. 1 Cir. 7/29/10); 44 So.3d 895,

900- 07, writ denied, 10-2135 (La. 2/18/11); 57 So.3d 331, the defendant argued

that his expert witness should have been allowed to testify at trial about false

confessions and the influence of “high-control” groups or cults. The first circuit

found no reason to disturb the trial court’s ruling. Although the facts in Lamonica

are different from those in the instant case, the first circuit discussed the law in

general regarding false confessions. The first circuit stated that there was little

case law in Louisiana on false confessions in a police interrogation setting. It

further stated that the law in other jurisdictions suggested that there was support

both for and against the admissibility of expert testimony on false confessions.

The appellate court noted that various courts had found it inappropriate to admit

this testimony, citing United States v. Griffin, 50 M.J. 278, 285 (U.S.A.F. 1999);

19-KA-363 56

State v. Cobb, 30 Kan. App. 2d 544, 43 P.3d 855, 869 (2002); State v. Tellier,

526 A.2d 941, 944 (Me. 1987); State v. Davis, 32 S.W.3d 603, 608-09 (Mo. App.

2000); State v. Free, 351 N.J.Super. 203, 798 A.2d 83, 95-96 (2002); Green v.

State, 55 S.W.3d 633, 640 (Tex. App. 2001), cert. denied, 535 U.S. 958, 122

S.Ct. 1366, 152 L.Ed.2d 360 (2002); and Vent v. State, 67 P.3d 661, 669 n. 37

(Alaska App. 2003). The first circuit in Lamonica also noted that other courts

had permitted expert testimony on false confessions, citing United States v. Shay,

57 F.3d 126, 132-34 (1st Cir. 1995); Callis v. State, 684 N.E.2d 233, 239 (Ind.

App. 1997); State v. Buechler, 253 Neb. 727, 572 N.W.2d 65, 72-74 (1998); State

v. Baldwin, 125 N.C.App. 530, 482 S.E.2d 1, 5 (1997); and Vent, 67 P.3d at 669

n.36. It asserted that, of the aforementioned cases, cases that had upheld the

admissibility of expert testimony on false confessions, all were concerned with

false confessions in a police interrogation setting.

In a case similar to the instant one, State v. Smith, 14-1744 (La. App. 1 Cir.

4/24/15); 2015 WL 1893288 (unpublished opinion), the defendant argued that the

trial court erred in denying his motion to admit expert testimony on false

confessions and on the influence of interrogation methods. He argued that this

testimony would have assisted the jury in determining whether his statement that

he was present during the murders was false. In Smith, the expert testified at the

hearing regarding false confessions, noting that he had met with the defendant and

determined that he had personality issues that made him vulnerable to pleasing

others. The appellate court found no abuse of discretion in the trial court’s ruling,

finding that there was merit to the trial court’s concerns regarding the scientific

reliability and relevance of the expert’s testimony. The first circuit noted that the

defendant did not provide law enforcement with a confession; rather, he simply

stated that he was at the park while someone else committed the crimes. Further,

the appellate court asserted that the jury heard testimony regarding the length of

19-KA-363 57

time that the defendant was interrogated, the receipt and waiver of his Miranda

rights, and the content of the questions that led to the statement. Additionally, the

first circuit found that because the expert did not indicate how or if studies related

to false confessions translated into an ability to determine when a false confession

had occurred or how often one may occur, it was unclear whether there was any

way to test the accuracy of an unconfirmed confession. It also found that the jury

was capable of using its common knowledge in deciding the issue of scientific

reliability of the defendant’s statement and was capable of understanding reasons

that the statement may be unreliable without the assistance of expert testimony.

In United States v. Dixon, 261 Fed. Appx. 800 (5th Cir. 2008), the

defendant argued that the district court abused its discretion by excluding Dr.

DeClue’s testimony regarding false confessions. Dr. DeClue never evaluated

whether Dixon had given a false confession nor did he analyze the interrogation

techniques used on Dixon. The district court made an oral ruling excluding Dr.

DeClue’s proffered testimony, concluding that “Dr. DeClue would ask the jury to

apply a science in the abstract only, ... [with] too remote a connection between his

testimony and the facts of this case....” The appellate court found that Dr.

DeClue’s proffered testimony did not apply recognized or accepted principles to

Dixon’s particular circumstances. It further found that Dr. DeClue offered only

the general proposition that false confessions can occur. Accordingly, the

appellate court found that even if the district court could have properly admitted

the evidence, it was not “manifestly erroneous” to exclude it.

In the instant case, we find that the trial court did not abuse its discretion by

excluding Dr. DeClue’s testimony regarding false confessions. First, testimony on

false confessions was not relevant in the instant case because Defendant did not

confess to committing the crime. Rather, he said that he was in the cab attempting

to sell fake drugs to the cab driver when Mr. Ratcliff shot the victim in the head.

19-KA-363 58

Also, the jury heard Defendant’s statements and testimony regarding the length of

time that Defendant was interrogated, the circumstances surrounding the

interrogation, the receipt and waiver of his Miranda rights, and the content of the

questions that led to the statements. We conclude that the jury was capable of

using its common knowledge in deciding the issue of reliability of Defendant’s

statements and was capable of understanding reasons that the statements might be

unreliable without the assistance of expert testimony.

Further, Dr. DeClue did not meet and evaluate Defendant, nor did he meet

the detectives who interrogated him. Dr. DeClue did not review the experience

and training of the detectives, the interrogation techniques used, or a transcript of

the Atkins hearing. In addition, Dr. DeClue indicated that he would be offering

testimony that, based on his limited review of Defendant’s records, Defendant

was a vulnerable person. Also, he planned to offer testimony that interrogations

can be contaminated when officers provide details of the crime to a defendant.

However, Dr. DeClue acknowledged that the jury would determine whether

contamination of the interrogation actually occurred. Considering the foregoing,

we find that the trial court did not abuse its discretion by excluding Dr. DeClue’s

testimony from trial.

ASSIGNMENT OF ERROR NUMBER SEVEN

The prosecutor made improper statements during closing arguments.

DISCUSSION

Defendant argues that the prosecutors’ closing arguments contained highly

prejudicial unsupported theories that he was the shooter or was involved in the

attempted armed robbery, which he contends were not based on any evidence

presented at trial. Defendant also argues that in rebuttal closing arguments, the

prosecutor misrepresented the population frequency for the two genetic markers

19-KA-363 59

analyzed in the DNA profile, thus misstating the strength of the DNA evidence

in this case and creating the impression that it was stronger than the evidence

that was actually established.

Defendant further asserts that the prosecutor made statements during

closing arguments, including that if a person was shot in the back of the head,

he would fall forward. Defendant argues that no witness testified to such a

conclusion. He points out that the prosecutor also stated during closing

arguments that if someone puts a gun to the back of your head, you are going to

turn, so the gun would then be positioned in the middle of the back of the head.

He contends that the prosecutor also alleged that the shooter was smaller than

the victim. Defendant notes that there was no testimony to support these

statements.

Additionally, Defendant argues that during closing arguments, after

conceding that it could not prove that defendant had blood on his jeans, the State

shifted from proving its evidence to attacking how the defense thoroughly cross-

examined DNA witnesses and mentioned the DNA statistics in closing

arguments. He also argues that the State improperly shifted the burden in its

closing arguments. Defendant asserts that the prosecutor’s misconduct is

grounds for reversal as it misled the jury about the law and the elements the

State had to prove and misled the jury to misinterpret the evidence.

The State responds that Defendant’s guilt was based on the evidence

presented at trial, and therefore, its closing arguments were proper. The State

further responds that it made an inadvertent mathematical miscalculation during

its closing argument and that the numbers appear closer to 0.2 percent rather

than 0.02 percent. However, it argues that although defense counsel objected,

she did not articulate a basis for the objection; thus, this issue has not been

preserved for review pursuant to La. C.Cr.P. art. 841(A). The State also argues

19-KA-363 60

that raising this issue in a motion for new trial does not suffice to preserve it for

review. It maintains, however, that if this Court should find that this claim has

been preserved, Defendant is not entitled to relief. The State contends that the

mistakes in its closing argument did not influence the jury or contribute to the

verdict. It asserts that it told the jury during closing argument that the numbers

were one in 339 but merely miscalculated how those numbers translated to

percentages. It also asserts that the jury saw the evidence and was instructed that

closing arguments were not evidence.

The State further responds that defense counsel did not object to the

comments Defendant refers to in his brief, namely, that if you are shot in the

back of the head you will fall forward and for the jury to use its common sense.

As such, the State contends that these issues have not been preserved for review

pursuant to La. C.Cr.P. art. 841(A). The State further notes that in any event,

there was nothing improper about suggesting to the jury what “common sense”

would show. With respect to Defendant’s complaints of “burden shifting” in the

State’s closing argument, the State argues that calling into question why

Defendant would take a certain course of action in arguing his case was not

“burden shifting.” Furthermore, the State points out that the jury was instructed

that the State bears the burden of proof.

Defendant challenges comments made during the prosecutor’s rebuttal

argument regarding DNA probabilities, “burden shifting,” and common sense.

During his rebuttal argument, the prosecutor stated in pertinent part:

MR. RUSHTON:

Now, we talked to you briefly about the DNA. The

DNA in this case I told you was not going to be the be-

all, end-all. But I feel -- I feel like there -- it needs to be

addressed, is that this is not one in every 1300 people

walking around with that DNA. The DNA expert told

you that’s not true. That’s a mischaracterization of the

19-KA-363 61

evidence. It said one in 339 Caucasians that’s

consistent, consistent with one in 339.

You have to remember that this is also not from

the tip of the cap. You remember that tip of the cap

piece of evidence was not enough to develop a full

profile. It’s from the -- it’s from the inside of the cap

where there were bloodstains that tested presumptively

positive for blood. And this -- You remember when

they went through the statistics here. This is -- And

Anne Montgomery told you that this area here, you’ve

got about ten percent of the Caucasian population,

you have -- this type here, about two percent. And

you can multiply those together to figure out the

statistics. And one way to say that is one person in

every 339. It’s important to remember what that -- this

population frequency. 2.95 to the negative 3. So one in

339 may sound like it was -- it is not like one in ten

billion. Not even close. But we're still talking about .02

percent of the Caucasian population.

MS. CONNER:

Objection.

THE COURT:

Overruled.

MR. RUSHTON:

.02 percent. That’s something. And again,

that’s -- Move back three decimal places. And

you’re at .02. Just like here where we have ten

percent, that’s where that comes from. Now, the

jeans, maybe they got the wrong jeans. Maybe Quinice

washed them, and they couldn’t get a profile. Can’t tell

you much about the jeans.

But also Defense counsel spent all that time talking about

the DNA. Why challenge that?

MS. CONNER:

Objection.

MR. RUSHTON:

19-KA-363 62

They’re –

MS. CONNER:

Burden-shifting.

MR. RUSHTON:

It’s not burden-shifting, Judge. I’m asking why

she make – I’m try -- asking them that question, why

she’s making that argument.

THE COURT:

Overruled.

MR. RUSHTON:

Thank you.

They're already saying that he’s out there. Now they

want to move him back outside the car, back to the first

statement. That’s what they’re trying to do, trying to move

him back outside the car to try to get you to disregard the

DNA evidence even though it was their own expert that was

hired by them just as well -- also by the State to come in here

and testify about it.

Now, the real reason is because they know the evidence

shows that Teddy Chester is in the back of that cab. He says it,

Ms. Pollard says it, and the evidence is consistent with that

when you look at the scene.

I want to talk about the scene. Now, if you recall, Chief

Scanlan told you about how the -- basically can’t really say

what side of the -- what side of the seat the shooter was

positioned based on just his -- just his looking at the

bloodstain. He can’t say it’s consistent with the shot from the

back, but it depends on the -- how the body was positioned

right before that shot to figure out exact -- to say exactly

where the shot came from.

And the Defense would have you believe that Elbert

Ratcliff goes and is sitting right behind him, maybe Teddy

Chester beside him, maybe not. They didn’t really hone in on

that. And that Elbert Ratcliff shot him from the back.

19-KA-363 63

They're assuming. And the assumpt -- what they’re

assuming there is that you have is that John Adams is sitting

straightforward in the seat and gets shot from the back here

(indicating) at the time. But what you can see is how he’s

slumped over and back towards the middle. If you’re shot in

the back of the head, even at an angle, you're not going to --

Common sense tells you you're not going to -- you’re going

to fall forward.

Well, how does he end up like that? Now, we don’t

have a video camera to go inside that cab and come back and

show you. But that – If you look at that positioning, when you

think about the other evidence, you think about what makes

sense. John Adams is coming there to pick up a fare at 713

Calhoun. That fare -- If somebody comes up and is outside the

car talking to him about buying crack or something like that,

you know -- they know -- you heard that he’s not involved in

that kind of thing. He’s out of there. You’ve got to get

somebody to get into the cab, pretend to be the fare, start to

distract him. That’s Elbert Ratcliff’s role. Gets in, slides

across, got the Guess shirt, starts talking to him about, hey,

man, you want to buy this shirt, pretending to try to sell the

shirt just like the defendant tells you.

Gets him distracted. That’s when Teddy Chester gets in

the -- in the seat behind the victim. Tells him to give it up. He

said he tells you that Elbert Ratcliff says that. It’s him doing

it.

And how -- and how do you know that that’s how it

happened? Use your common sense. If someone puts a gun to

the back of your head and says give it up, doesn’t matter how

cool you are. In that first moment when you feel the gun in the

back of your head, you’re going to turn. And as you turn, that

gun that’s in the middle of the back of your head, to the right

side (indicating), with that gun pressed up against the Teddy

Chester’s finger on the trigger, goes off.

How do you know that’s not Elbert Ratcliff? Defense

counsel spent a whole lot of time talking to you about how big

he is, how little Teddy Chester is. Having that bullet travel

through John Adams’ brain. Up. That shooter is much smaller

than John Adams, and the physical evidence on the scene

shows you that.

(Emphasis added).

Closing arguments in criminal cases should be restricted to the evidence

admitted, to the lack of evidence, to conclusions of fact that may be drawn

therefrom, and to the law applicable to the case. The State’s rebuttal shall be

19-KA-363 64

confined to answering the argument of the defendant. See La. C.Cr.P. art. 774;

State v. Honor, 19-379 (La. App. 5 Cir. 1/29/20); 289 So.3d 249, writ denied,

20-370 (La. 7/24/20); 299 So.3d 72.

Prosecutors are allowed wide latitude in choosing closing argument tactics;

however, this latitude is not without limits. State v. Draughn, 05-1825 (La.

1/17/07); 950 So.2d 583, 614, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169

L.Ed.2d 377 (2007); State v. Greenup, 12-881 (La. App. 5 Cir. 8/27/13); 123

So.3d768, 775, writ denied, 13-2300 (La. 3/21/14); 135 So.3d 617; State v.

Vansant, 14-1705 (La. App. 1 Cir. 4/24/15); 170 So.3d 1059, 1063. A prosecutor

should refrain from argument that tends to divert the jury from its duty to decide

the case on the evidence by injecting issues broader than the guilt or innocence of

the accused under the controlling law or by making predictions of the

consequences of the jury’s verdict. State v. Messer, 408 So.2d 1354, 1356 (La.

1982). Even where a prosecutor’s argument has exceeded the scope of Article 774

or is deemed to be improper, a reviewing court should credit the good sense and

fairmindedness of the jurors who have heard the evidence. State v. Williams, 96-

1023 (La. 1/21/98); 708 So.2d 703, 716, cert. denied, 525 U.S. 838, 119 S.Ct. 99,

142 L.Ed.2d 79 (1998).

The trial judge has broad discretion in controlling the scope of closing

arguments, and a conviction will not be reversed on the basis of improper closing

argument unless thoroughly convinced that the remarks influenced the jury and

contributed to the verdict. See Draughn, 950 So.2d at 614; Vansant, 170 So.3d at

1063.

In State v. Spencer, 93-571 (La. App. 5 Cir. 1/25/94); 631 So.2d 1363,

1369, writ denied, 94-488 (La. 2/3/95); 649 So.2d 400, the defendant argued that

the trial court erred in denying his motion for a mistrial after closing argument.

This Court noted that the defense objected after the State had concluded its

19-KA-363 65

rebuttal instead of immediately when the contested statement was made. This

Court stated that the failure to contemporaneously object prevented the trial

court from immediately remedying the situation if corrective action had been

necessary. Similarly, in State v. Paul, 15-501 (La. App. 5 Cir. 1/27/16); 185

So.3d 188, 201, this Court, citing Spencer, supra, found that the defendant’s

failure to object during or after the State’s closing arguments prevented him

from raising the issue on appeal. This Court found that since the defendant did

not contemporaneously object to the alleged inflammatory statement made by

the State and only moved for a mistrial after the jury had retired for deliberation,

the trial court did not have the opportunity to remedy the situation had corrective

action been necessary.

In the instant case, Defendant argues that the prosecutor’s closing

arguments contained highly prejudicial unsupported theories that he was the

shooter or was involved in the attempted armed robbery, which he contends

were not based on any evidence presented at trial. However, as was discussed

previously, a rational trier of fact could have found that the evidence was

sufficient under the Jackson standard to support the conviction. Contrary to

Defendant’s assertion, there was ample evidence to show that Defendant was the

shooter or at least a principal to the shooting.

With respect to the prosecutor’s argument about the DNA probabilities,

Defendant is not entitled to relief. The record reflects that the prosecutor told the

jury that the DNA probabilities regarding the blood found on the cap were one in

339 or .02 percent. The percentage would actually be approximately .29 percent.

Even if the prosecutor told the jury an incorrect percentage, he correctly stated

that it was one in 339 at approximately the same time he said it was .02 percent.

Also, the jury had the benefit of seeing the actual evidence and was instructed

that opening and closing arguments were not evidence. Further, we find that the

19-KA-363 66

DNA test results were cumulative since Defendant admitted to Lt. Sacks that he

was present in the cab at the time of the shooting and that the blood on the cap

belonged to the victim.

Considering Defendant’s complaint that the prosecutor incorrectly shifted

the burden during his rebuttal argument, the record reflects that the prosecutor

informed the jury that the State had the burden of proof. Also, the prosecution

calling into question why defense counsel would spend a lot of time talking

about DNA evidence in her closing argument was not “burden shifting.” The

prosecutor drew the jury’s attention to the fact that defense counsel wanted the

jury to disregard the DNA evidence.

Also, defense counsel did not object when the prosecutor told the jury to

use common sense when considering the evidence and what it showed.

Therefore, the issue has not been preserved for review pursuant to La. C.Cr.P.

art. 841(A). Nevertheless, even if the prosecutor’s comments were outside the

proper scope of closing arguments, we find that Defendant is still not entitled to

relief. The court must be thoroughly convinced that the argument influenced the

jury and contributed to the verdict before reversing a conviction based on

misconduct during the closing arguments. State v. Franklin, 15-1060 (La. App. 4

Cir. 8/24/16); 198 So.3d 1222, 1231, writ denied, 16-1754 (La. 9/6/17); 224

So.3d 982.

After reviewing the prosecutors’ closing and rebuttal arguments, and

considering the entirety of the record, we find that the jury verdict was reasonable

based on the evidence presented by the State having found nothing in the record to

demonstrate that the prosecutor’s comments regarding common sense, burden

shifting, or DNA probabilities so influenced the jury and contributed to the verdict

that it would warrant a reversal of the conviction and sentence.

19-KA-363 67

ASSIGNMENT OF ERROR NUMBER EIGHT

The State has not fulfilled complied with Brady v. Maryland requirement. [sic]

ASSIGNMENT OF ERROR NUMBER NINE

The trial court erred in permitting Quinice Pollard to testify.

ASSIGNMENT OF ERROR NUMBER TEN

The trial court prevented Mr. Chester from fully cross examining Quinice Pollard.

DISCUSSION

Defendant argues that the State failed to produce crucial evidence of

Quinice Pollard’s criminal history, which directly undermined her credibility and

revealed her personal interest in cooperating with the prosecution. He contends

that by doing so, the State violated his due process rights to exculpatory

evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104

(1972). He further contends that on the eve of the retrial date, September 16,

2018, the State disclosed substantial new impeachment information regarding

Ms. Pollard’s criminal history from 1994 to 1996 that had never been produced.

He asserts that the State did not provide documentation as to the disposition on

these charges.

Defendant also argues that the trial court’s ruling that the State could call

Ms. Pollard as a witness after suppressing this critical evidence before trial for

twenty-two years violated his due process rights. He maintains that without this

information, his right to confront Ms. Pollard was violated. Additionally, he

contends that the trial court limited defense counsel’s cross-examination of Ms.

Pollard. Defendant asserts that without the ability to cross-examine her

regarding her bias in the first trial, and subsequent inconsistent testimony, the

jury could not fully assess whether her testimony was first given in hope or in

exchange for leniency in her criminal cases.

19-KA-363 68

The State responds that prior to Defendant’s second trial, it turned over

information relative to Ms. Pollard’s criminal record, and Defendant sought

“Brady sanctions,” claiming that the State should be penalized for this

information supposedly not being turned over in advance of Defendant’s first

trial and further claiming that, because the information was incomplete, the State

should be prohibited from calling Ms. Pollard as a witness. It further responds

that the trial court twice denied the request for “Brady sanctions,” that Defendant

sought writs, and that this Court and the Louisiana Supreme Court denied writs.

The State asserts that this Court ruled that any Brady violation prior to the first

trial was cured by the granting of a new trial and further ruled that

notwithstanding certain gaps in the information, there was nothing to

demonstrate that the State withheld anything. The State also asserts that this

Court further noted that Defendant would have an opportunity to cross-examine

Ms. Pollard at trial.

The State submits that with respect to this portion of Defendant’s

argument, this Court should decline to revisit this issue under the law of the

case doctrine as there is nothing new that justifies this Court revisiting its prior

decision. The State argues that if this Court finds otherwise, its position is that

the trial court did not err in denying the request for “Brady sanctions.” It

contends that it turned over everything in its possession and complied with its

obligations pursuant to Brady. The State argues that it has no duty to provide

Defendant with information which he already has or which he can obtain on his

own with due diligence. It further argues that it cannot produce that which does

not exist in the records and that it is unaware of any precedent dictating that the

remedy for an incomplete criminal record of a State’s witness is to forever bar

that witness from testifying.

With respect to the Confrontation Clause, the State asserts that the

19-KA-363 69

jurisprudence is clear that the Confrontation Clause guarantees only an

opportunity for effective cross-examination. The State notes that while

Defendant complains that the trial court curtailed the cross-examination into

previous arrests, La. C.E. art. 609.1 restricts cross-examination to prior

convictions. It also notes that although there is “somewhat” of a jurisprudential

exception for pending charges leading to bias, Ms. Pollard had no pending

charges at the time she testified at the second trial. The State asserts that the trial

court followed the rules of evidence in disallowing Defendant from going into

arrests where Ms. Pollard did not deny her convictions. It submits that

Defendant extensively cross-examined Ms. Pollard relative to her inconsistent

statements, her not being forthcoming to the police, her letters to and from

Defendant, her alleged bias, and other aspects of her account. The State

maintains that even if the trial court erred, which it denies, any error during

cross-examination was harmless.

On September 17, 2018, Defendant filed Motion for Sanctions Based on

Brady and Giglio Violation. In that motion, Defendant asserted that the day

before trial, the State disclosed substantial impeachment information as to

Quinice Pollard, namely, that she was arrested on March 18, 1996, for two

counts of battery on a police officer, resisting an officer, and disturbing the

peace, and that she had a 1996 charge for possession of a controlled dangerous

substance. Defendant moved for sanctions based on the State’s withholding of

this information for two decades, including exclusion of Ms. Pollard as a witness

at trial.

On September 19, 2018, at the hearing on the motion, after hearing

arguments of counsel, the trial judge denied the motion for sanctions, stating,

“And the information is certainly available now. It’s not hard to understand, and

it shouldn’t delay the matters. You’re certainly allowed to use it by law. I am not

19-KA-363 70

going to exclude a witness at this point. The request for Brady sanctions is

denied.”

On September 24, 2018, Defendant filed Supplemental Motion for

Sanctions Based on Prosecutorial Misconduct and Continued Brady and Giglio

Violations. On that same date, at the hearing, defense counsel argued that

records were missing regarding Ms. Pollard’s criminal history, and therefore, she

should be excluded from testifying. Defense counsel stated that according to

the rap sheet given to the defense, Ms. Pollard was arrested on May 2, 1994, for

resisting arrest and battery on a police officer and was sentenced to ninety days

probation, which she violated; on November 21, 1995, she was arrested for a

controlled dangerous substance; on November 28, 1995, she violated her

probation; and on December 22, 1995, she was arrested on an attachment

regarding that first probation and an additional charge of disturbing the peace.

Defense counsel asserted that at the time Ms. Pollard was interviewed in

the instant case by Lt. Sacks, she had six charges of violation of probation and

an attachment. Defense counsel pointed out that there was no information on

JeffNet with respect to any of those charges and that the record had been missing

since 1998. She noted that the record was missing for both of the co-defendants

also. Defense counsel explained that there were issues in First Parish Court and

at the 24th Judicial District Court and that it was suspicious that there were no

entries between December of 1995 and 2013.

The prosecutor responded that there was no evidence of mass conspiracy

to remove documents and be lenient with Ms. Pollard. He further responded that

Ms. Pollard received no special consideration for her testimony for the upcoming

trial. He also pointed out that defense counsel could question Lt. Sacks, Chief

Deputy Scanlan, and Ms. Pollard at trial regarding any favors she might have

been given. The prosecutor noted that he had provided defense counsel with Ms.

19-KA-363 71

Pollard’s “DOC” record which showed she was sentenced to two years.

After hearing arguments of counsel, the trial court denied the motion,

stating, “Okay. There are certainly - - there are certainly some questions here

and missing - - some missing documents apparently. However, I don’t think it’s

- - it supports the conclusions that Defense counsel’s urging. And you certainly

can cross-examine Ms. Pollard. And so, I am going to deny the motion.”

Defendant filed a writ application with this Court challenging the

trial court’s ruling. This Court denied the writ, stating in pertinent part:

On the showing made, we find that defendant is not entitled

to the relief requested. First, any violations with respect to the

State’s failure to disclose information about Quinice Pollard’s

criminal history prior to the first trial have been remedied by the

granting of a new trial. Second, the State did comply with its duty

to provide relator with exculpatory information prior to the second

trial. We acknowledge relator’s argument that the information

disclosed by the State had gaps in the time periods relating to the

records provided and therefore left many unanswered questions.

However, we have nothing to suggest that the State withheld any

exculpatory information or committed any type of prosecutorial

misconduct with regard to the disclosure of information. Third,

defense counsel will have the opportunity to cross-examine the

State’s witnesses at this second trial, including the opportunity to

cross-examine them, as allowed by law, about Quinice Pollard’s

criminal history as well as the time gaps and missing information in

the documents provided by the State.

See State v. Chester, 18-558 (La. App. 5 Cir. 10/16/18) (unpublished writ

disposition), writ denied, 18-1747 (La. 10/26/18); 254 So.3d 695.

The arguments presented by Defendant herein are essentially the same as

those made in his prior writ application. Under the discretionary principle of law

of the case, an appellate court will generally refuse to reconsider its own rulings

of law on a subsequent appeal in the same case. State v. Burciaga, 05-357 (La.

App. 5 Cir. 2/27/06); 924 So.2d 1125, 1128; State v. Junior, 542 So.2d 23, 27

(La. App. 5 Cir. 1989); writ denied, 546 So.2d 1212 (La. 1989). The principle is

applicable to all decisions of an appellate court, not solely those arising from full

19-KA-363 72

appeal. State v. Johnson, 06-859 (La. App. 5 Cir. 4/11/07); 957 So.2d 833, 840.

One reason for imposition of the doctrine is the avoidance of indefinite re-

litigation of the same issue, but it will not be applied in cases of palpable former

error. Id. Reconsideration is warranted when, in light of a subsequent trial

record, it is apparent that the determination was patently erroneous and produced

unjust results. State v. Davis, 03-488 (La. App. 5 Cir. 11/12/03); 861 So.2d 638,

641 n.2, writ denied, 03-3401 (La. 4/2/04); 869 So.2d 874; In re K.R.W., Jr., 03-

1371 (La. App. 5 Cir. 5/26/04); 875 So.2d 903, 905.

Here, Defendant has failed to cite to any new facts adduced at trial or

additional jurisprudence tending to indicate that this Court’s prior disposition

was patently erroneous and produced an unjust result. However, since prior

denial of supervisory writs does not preclude reconsideration of the issue on

appeal,

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