The opinion
Judgment rendered December 17, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.
No. 56,617-KA
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
Versus
DARIUS TYRESE PERSLEY Appellant
*****
Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 386,867
Honorable Christopher T. Victory, Judge
*****
LOUISIANA APPEALS AND Counsel for Appellant
WRIT SERVICE
By: Christopher A. Aberle
JAMES E. STEWART, SR. Counsel for Appellee
District Attorney
MARGARET E. RICHIE GASKINS
CHRISTOPHER BOWMAN
Assistant District Attorneys
*****
Before STEPHENS, THOMPSON, and ELLENDER, JJ.
STEPHENS, J.,
This criminal appeal arises out of the First Judicial District Court,
Parish of Caddo, State of Louisiana, the Honorable Chris Victory, Judge,
presiding. The defendant, Darius T. Persley, and his co-defendant Quinton
Peace, were indicted for the second degree murder of Chavez Parker. The
two men were tried separately; Peace, who went to trial first, was convicted
as charged of second degree murder. Peace’s conviction was on appeal at the
time of Persley’s trial, and he also had pending charges in Texas. Persley was
found guilty by a unanimous jury of second degree murder and sentenced to
the mandatory term of life imprisonment at hard labor without the benefit of
probation, parole, or suspension of sentence.
Persley has appealed his conviction, urging error in the trial court’s
ruling allowing, over objection by defense counsel and Persley’s co-
defendant, the prosecution to call Peace as a witness when the State’s
attorney knew that Peace’s conviction for the same offense was not yet final
and that he would assert his Fifth Amendment rights on the stand.
FACTS AND PROCEDURAL BACKGROUND
Persley was one of two people seen running away from a red car with
its doors and trunk open in the complex parking lot of the Linwood Homes
Apartments in the early morning hours of December 21, 2021, by Shreveport
Police Department (“SPD”) officers on patrol. After a brief pursuit and
search, Persley and his female companion were apprehended and taken into
custody. The deceased victim, Chavez Parker, was hanging out of the front
passenger side of the red Chevrolet Impala. Persley was not armed, but he
had a pair of bloody socks in one of his hands.1 Peace, his co-defendant,
was apprehended in Fort Worth, Texas, in January 2022. On March 18,
2022, a Caddo Parish grand jury returned a true bill charging Persley and
Peace with the second degree murder of Chavez Parker, a violation of La.
R.S. 14:30.1. Persley waived formal arraignment and pled not guilty to the
charge on June 1, 2022. Pursuant to an unopposed motion to sever filed by
the State, on June 17, 2023, the trial court ordered that the trials of Persley
and Peace be severed. Peace was tried and convicted of second degree
murder in November 2023, and his appeal was pending at the time of
Persley’s trial in February 2025.2
A unanimous jury found Persley guilty of second degree murder on
February 13, 2025. His motions for new trial and post-verdict judgment of
acquittal were denied in open court on February 24, 2025, and Persley was
sentenced to the mandatory term of life imprisonment at hard labor without
the benefit of probation, parole, or suspension of sentence.
Testimony Adduced at Trial
Ashlynn Bergeaux testified that during the late hours of December 20
and early morning hours of December 21, 2021, she was “riding around”
with Persley and Peace in Peace’s SUV. Ms. Bergeaux was not familiar with
the area; she was in Shreveport from south Louisiana to visit Persley. Ms.
Bergeaux, who was intoxicated, fell asleep in the back seat of the vehicle,
because they had been riding around for a long time. She recalled that
1
The socks were seized, bagged, and handed over to CSI officers upon their
arrival at the scene.
2
Peace’s conviction was affirmed by this Court in State v. Peace, 56,374 (La.
App. 2 Cir. 8/27/25), 418 So. 3d 1133.
2
Persley and Peace got out of the vehicle at some point to get some weed to
smoke.
Surveillance camera footage3 from Melara Avenue in Shreveport
shows a person, later identified as the victim, Chavez Parker, approaching a
parked vehicle, subsequently identified as his red Chevrolet Impala, at 4:33
a.m. on December 21, 2021. Parker got into the driver’s seat of the Impala
and backed it up into a driveway. By 4:37 a.m. he had finished moving his
vehicle; video footage shows that Parker remained inside his car with the
headlights on. At 4:49 a.m., a white Mitsubishi SUV subsequently identified
as belonging to Peace approached Parker’s Impala. Peace was driving the
SUV, Persley was in the front passenger seat, and Ms. Bergeaux was in the
back seat. By 4:57 a.m., the white SUV was parked approximately one
house away from Parker’s car.
At 4:58 a.m., the surveillance footage shows Persley exiting the front
passenger side of the white SUV and getting into Parker’s Impala. During
his walk to Parker’s vehicle, Persley was sending messages to Parker via
Facebook Messenger to make it look as if he had not met up with Parker that
morning. Video footage also shows Peace getting out of the driver’s side of
the white SUV at 4:58 a.m. approaching Parker’s vehicle. Surveillance
footage at 5:01 a.m. shows that both men were inside the Impala with the
victim. Nine minutes later, at 5:10 a.m., both Persley and Peace got out of
Parker’s car and ran back to Peace’s SUV. Both men got back into the white
SUV. Ms. Bergeaux, who had been sleeping in the back seat of the white
3
State’s Exh. EE.
3
SUV, was awakened by the sound of gunshots. One minute later, the video
footage shows Peace’s vehicle gone from the scene.
Ms. Bergeaux testified that when Persley and Peace got back into
Peace’s SUV, she was confused and thought that Persley had been shot.
They drove around for a short time. At 5:20 a.m. security camera footage
shows Peace’s white SUV returning to where Parker’s red Impala was
parked. The footage confirms that between the time that Peace’s SUV left
the scene at 5:11 a.m. and its return at 5:20 a.m., no other cars or persons
approached the victim’s vehicle. The white SUV stopped almost in front of
Parker’s red Impala. Peace got out of the driver’s seat of the SUV and ran to
the red Impala. While Persley and Ms. Bergeaux were sitting in the SUV, he
told her that she had to drive. Ms. Bergeaux told Persley that she didn’t
want to because she had poor vision and seizures. Persley, who had a gun,
said that he didn’t know how to drive and to get in the front seat and drive or
he would kill her. Ms. Bergeaux testified that she couldn’t remember
whether Persley had the gun pointed at her, but she remembered getting into
the front seat, starting to shake, and not being able to reach the pedal.
Surveillance footage shows Peace’s white SUV being driven away from the
scene in a jerky, hesitant manner.
At 5:22 a.m., video footage shows Peace driving Parker’s red Impala
away from the scene in the opposite direction. As Ms. Bergeaux drove,
Persley directed her where to go. At 5:30 a.m., Persley sent another message
to Parker via Facebook Messenger in an attempt to distance himself from the
crime. Ms. Bergeaux recalled driving Persley to some apartments, where
they saw Peace. She testified that she went upstairs into one of the units
because she had to go to the bathroom. Ms. Bergeaux wanted to stay in the
4
apartment, but Peace and Persley told her she had to come downstairs with
them. After she walked outside with Persley and Peace, they led her over to
a car; she saw a dead body inside the car.
SPD Corporal Rodney Medlin and trainee SPD Officer Trevor
Pinckley were patrolling the area of the Linwood Homes Apartments in the
early morning hours of December 21, 2021. Cpl. Medlin4 testified that he
was driving the marked patrol unit with Ofc. Pinckley in the passenger seat.
At 6:03 a.m., they observed a red Chevy Impala in the apartment complex
parking lot with its trunk and all four doors open. The officers also saw a
black male later identified as Persley and a white female later identified as
Ms. Bergeaux standing near the Impala. When they noticed the police car,
Persley and Ms. Bergeaux took off running. It was raining at the time, and
Persley pushed Ms. Bergeaux “into the water” when they saw the police.
Because she was cold and scared, Ms. Bergeaux ran into the laundry room of
the complex and hid by the dryers.
Cpl. Medlin jumped out of the patrol unit and began pursuing Persley
and Ms. Bergeaux on foot, while Ofc. Pinckley drove around to the other
side of the building to cut the pair off from a potential escape route. Ofc.
Pinckley apprehended Persley in front of the laundry room, and Cpl. Medlin
found Ms. Bergeaux hiding behind a dryer in the laundry room. Both were
taken into custody.
Persley did not have a weapon on him when he was detained, but Cpl.
Medlin noticed that Persley was holding a pair of bloody socks in one hand.
4
During his testimony, Cpl. Medlin discussed the crime scene diagram and
photographs with the jury, which were entered into evidence as State’s Exhs. B and C,
respectively.
5
Cpl. Medlin put the socks in a paper bag and gave the bag to the SPD crime
scene investigation (“CSI”) unit officers at the scene. DNA analysis
performed by forensic scientist Kari Dicken with the North Louisiana
Criminalistics Laboratory in Shreveport established that the blood on the
socks was a match for the victim’s DNA.
After Ofc. Pinckley placed Persley in the back of the patrol car, he
returned to the red Impala, where he observed the dead body of a heavyset
black male, later identified as the victim, Chavez Parker, hanging out of the
front passenger side door of the vehicle. Ofc. Pinckley also saw bloody
napkins, Clorox wipes, and rags strewn throughout the car as if someone had
been trying to clean evidence from it.
SPD Corporal Cody Walsworth performed the crime scene
investigation in this case. From outside of the apartment complex near the
Impala and foot chase with Persley, Cpl. Walsworth recovered a bottle of
rubbing alcohol5 and several items with what he suspected to be blood on
them—a bottle of lotion, a spray bottle, and three tissues. Cpl. Walsworth
testified that, from his experience as a crime scene investigator, he believed
that the bloody tissues and alcohol were indications that someone had been
attempting to clean or remove evidence from the Impala. He also recovered
a black cloth ski/face mask from the Impala’s windshield.6 Subsequent
DNA analysis performed by Ms. Dicken determined that Persley’s DNA was
consistent with DNA found on the mask. Ms. Dicken also found that it was
the victim’s blood on the socks recovered from Persley.7
5
The rubbing alcohol container was entered into evidence as State’s Exh. E.
6
The ski mask was entered into evidence as State’s Exh. D.
7
The socks were entered into evidence as State’s Exh. A.
6
The inside of the Impala, including the trunk, were cluttered with
random objects. Swirl marks were on the front passenger window and there
were clean spots on the otherwise dirty front passenger door, which appeared
to Cpl. Walsworth to be from attempts to clean off or wipe down the window
and door. On the front driver’s side of the vehicle, blood flowed down the
upper and lower parts of the seat and down the center console. Three spent
cartridge casings were recovered from the Impala—one from the crevice
between the upper and lower seat cushions of the front passenger seat, the
second from inside the vehicle, and a third from the rear passenger
compartment. Cpl. Walsworth explained photographs of the crime scene to
the jury.8
Cpl. Walsworth also collected evidence from Units 250 and 292 of the
Linwood Homes Apartments. Peace resided at apartment number 292, and
his mother lived at apartment number 250. While officers did not find a
9mm weapon in either apartment, an empty 9mm ammo box was found in
one bedroom of apt. 292, and a gun box for a SCCY CPX-1 9mm pistol with
the Serial No. 936310 was found in the second bedroom of apt. 292. Cpl.
Walsworth explained photographs of the searches to the jury.9
Dr. Long Jin, the forensic pathologist who performed Parker’s
autopsy, testified that multiple gunshots were the cause of his death.10 There
were four penetrating gunshot wounds. One bullet, State’s Exh. O, entered
Parker’s head through his right temple; it was removed from his left
8
These photos were entered into evidence as State’s Exh. I.
9
These photos were entered into evidence as State’s Exh. J.
10
Dr. Jin’s autopsy report was entered into evidence as State’s Exh. N; photos of
the autopsy were entered into evidence as State’s Exh. S.
7
temporal scalp. Dr. Jin stated that this bullet penetrated Parker’s brain and
was likely a fatal wound. A second bullet, State’s Exh. P, entered the
victim’s body from the top of his right shoulder and was recovered from his
right lateral chest. A third bullet, State’s Exh. Q, entered Parker’s right
cheek and was recovered from his left maxillary sinus. The fourth bullet,
State’s Exh. R, entered the victim’s neck on the right side and was recovered
from the deep tissue on the left side of his neck. According to Dr. Jin, this
was also likely a fatal bullet wound, as this projectile perforated Parker’s
spinal column very close to where it connects to the brain stem.
Persley’s co-defendant, Peace, was arrested in Fort Worth, Texas, by
Officer Robert McElyea of the Fort Worth Police Department (“FWPD”).
When Peace was taken into custody by the FWPD, a 9mm SCCY model
CPX-1 with Serial No. 936310 was seized after it was found inside the
apartment in which Peace was arrested.11
Philip Stout, an expert in forensic firearms examination, testified that
he examined the projectiles recovered from Parker’s body and the 9mm
pistol seized from Peace at the time of his arrest in Fort Worth. Stout
determined that three out of the four projectiles recovered from the victim’s
body had been fired by the 9mm SCCY model CPX-1 pistol bearing Serial
No. 936310—the projectiles admitted as State’s Exhibits O, P, and Q, which
corresponded to the bullet wounds to Parker’s right temple, right shoulder,
and right cheek. The fourth projectile, State’s Exhibit R, which
corresponded to the fatal wound in Parker’s neck, could not have been fired
by the pistol recovered in Fort Worth, according to Stout. However, the
11
An NLCL Weapon Report was entered into evidence as State’s Exh. U, and an
NLCL Certified Report was entered into evidence as State’s Exh. V.
8
class characteristics of the rifling on the fourth projectile were consistent
with the rifling marks made only by SCCY brand firearms. Therefore, the
fourth bullet, opined Stout, was fired by a second weapon also manufactured
by SCCY.
SPD Sergeant Monique Coleman testified that on the morning of
December 21, 2021, after Persley was advised of and waived his Miranda
rights, she interviewed him. During the interview, he was repeatedly
untruthful. Persley claimed at first that he did not know Chavez Parker, but
that he discovered Parker’s body in the Linwood Homes Apartments parking
lot and had been trying to render aid to the victim when the police
apprehended him. When Persley did admit to knowing Parker and having
been present at the scene of the crime, Persley identified Peace as the other
person who was present. Persley told Sgt. Coleman that he was afraid of
Peace, and that Peace had committed the murder. Persley stated that Peace
had forced him to go back to the apartments. Persley repeatedly denied that
he and Peace had attempted to rob Parker, who Persley claimed “didn’t have
anything on him.”
Sgt. Coleman also testified about incriminating text messages between
Persley and Peace and Facebook Messenger communications between
Persley and Parker that SPD discovered during their investigation. Some of
the messages were read aloud to the jury by Sgt. Coleman and transcripts
were entered into evidence.12
12
State’s Exhs. AA, CC, and DD.
9
DISCUSSION
Arguments of the Parties
Persley’s only assignment of error is that the trial court erred, when
over the objection of Peace and Peace’s counsel, the State was allowed to
call Peace to testify, knowing that his conviction was not final and that he
would assert his Fifth Amendment rights on the stand.
According to Persley, the ADA’s attempt to use statutory immunity
under the circumstances of this case was not proper because the State used
Peace’s hostility and his reliance on the Fifth Amendment to show the jury
what an evil man Persley was associated with. Persley suggests that the
State knew or should have known that Peace would not have cooperated.
The calling of a witness to assert his Fifth Amendment protection in front of
a jury is not permitted as a matter of law.
Appellate counsel urges that the animosity between the ADA and
Peace was unfairly attached to Persley to intentionally prejudice the jury
against him. The prosecutor, having been the ADA who tried Peace, already
knew how the witness would behave before he took the stand. Peace’s
hostility became even more clear after the first question was asked.
Furthermore, the idea of immunity was “insupportable” as Peace had already
been convicted of the instant charge (although this conviction was not yet
final) and had pending charges in another jurisdiction. For the State to claim
that Louisiana authorities could “nullify” Peace’s Fifth Amendment rights
under these circumstances was indefensible. According to Persley, the State
lacked good faith in its offering of Peace’s testimony in this case. Its use of
La. C. Cr. P. art. 439.1 immunity was not actually for the purpose of getting
10
testimony, urges Persley. Instead, it was for the improper purpose of getting
Peace before the jury.
Persley also complains that the prosecutor in his rebuttal relied
improperly on his exchange with Peace to emphasize how “horrific”
Persley’s co-defendant was. “The irrelevant fact that a man [the prosecutor]
convicted was hostile became a cornerstone of the State’s case against Mr.
Persley.”
Persley contends that he was entitled to a trial focused solely on the
evidence, not one that turned into a sideshow involving Peace’s disrespect
and hostility for the ADA who prosecuted him. This turned Persley’s trial
into a matter of vindication for the prosecutor and created error that affected
Persley’s substantial rights to a fair trial under the U.S. and Louisiana
Constitutions.
The State argues that Persley’s assignment of error lacks merit
because at the time of Persley’s trial, the State had a good faith belief that
the immunity granted to Peace was valid. Peace’s attorney did not object on
the grounds that his testimony could subject him to prosecution in Texas on
state law charges; therefore, the State was not on notice that any alleged
Texas charges might render the immunity granted insufficient to meet Fifth
Amendment standards. Thus, the State attempted to compel Peace’s
testimony in this case “with the good faith belief that Peace would be unable
to assert his Fifth Amendment rights on the stand, because [it] believed that
those rights had been superseded by the immunity grant.”
When a prosecutor reasonably believes that a witness cannot validly
exercise his Fifth Amendment rights, reversible error is not committed if that
witness “invalidly asserts” his Fifth Amendment rights in front of the jury.
11
In this case, the record shows that the prosecution had a good faith belief
that the immunity granted to Peace was valid, and that he could not
“justifiably” assert his Fifth Amendment rights in front of the jury.
The State acknowledges that the record shows that Peace already
knew that the prosecutor disliked him and knew prior to calling him to the
stand that Peace might be hostile. Nonetheless, the State has a right to call a
witness known to be hostile or untruthful to test whether the witness will
testify truthfully under oath and subject to the penalties of perjury and
contempt. Peace had made statements after his arrest in Fort Worth that
directly implicated Persley as his co-conspirator in the murder of Chavez
Parker. The ADA put Peace on the stand as a witness to elicit those
statements from him under oath.
Once on the stand, Peace stated his name and agreed that he was
currently in Angola serving a sentence for second degree murder. The
prosecutor’s third question was, “Do you remember when you were arrested
in 2022 for the murder of Chavez Parker?” This question was asked in an
attempt to have Peace affirm or deny his prior statement under oath. Peace’s
reply was inconsistent with his prior statement. Instead, what he said was,
“That man [Persley] did not kill anyone. If he did, I would not be serving a
life sentence in Angola.” Because this statement was directly contradictory
to his prior statement to police, the prosecutor was within his rights in
continuing to question Peace in front of the jury in an attempt to impeach
Peace’s credibility.
The State asserts that the fact that the prosecution only tried two
tactics to impeach Peace’s earlier testimony weighs heavily in favor of its
good faith in this case. According to the State, if its purpose for calling
12
Peace to the stand had been to reflect poorly on Persley, it would have
continued trying to impeach Peace in front of the jury notwithstanding the
fact that he had mentioned his Fifth Amendment rights.
With the jury out of the courtroom, the prosecutor played portions of
Peace’s recorded interview with Fort Worth police to impeach his prior
testimony that Persley did not kill Parker. After playing the video/audio
recording, the ADA asked Peace whether the recording had refreshed his
memory. Peace’s response was to spout profanity at the prosecutor again.
The ADA asked Peace two more questions about his prior statement and
asked for three more contempt charges against Peace in response to his
unresponsive, hostile answers. At that point the prosecutor declined to
question Peace further, and defense counsel did not cross-examine Peace.
Regarding Persley’s argument about improprieties in the prosecutor’s
closing argument, the State asserts that the ADA instead instructed the jury
to disregard both Peace’s testimony and his bad behavior. The State points
out that the only testimony Peace gave before he got hostile was that he was
currently in prison for Parker’s murder, and that Persley did not kill Parker.
Peace contradicted his prior statements to police to testify in Persley’s favor.
The prosecutor’s discussion of Peace in his closing argument was on rebuttal
and was an attempt to do damage control regarding Peace’s untruthful
testimony in Persley’s favor, urges the State.
Finally, the State urges that if the trial court erred in allowing the State
to call Peace as a witness or to continue questioning him in front of the jury,
this constituted harmless error in light of the overwhelming evidence against
Persley in this case. Because the verdict rendered in this case was surely
13
attributable to the abundance of other evidence against the defendant, the
State urges this Court to affirm Persley’s conviction.
Analysis
The privilege against self-incrimination granted by the U.S.
Constitution’s Fifth Amendment is also assured by Louisiana Constitution’s
Article I, § 16, which provides that “[n]o person shall be compelled to give
evidence against himself.” The Fifth Amendment privilege against self-
incrimination extends to non-defendant witnesses, Ohio v. Reiner, 532 U.S.
17, 21, 121 S. Ct. 1252, 1254, 149 L.Ed.2d 158 (2001), who are not required
to answer questions “where the answers might incriminate [them] in future
criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316,
322, 38 L. Ed. 2d 274 (1973).
It is improper conduct for either the prosecution or the defense to
knowingly call a witness who will claim a privilege for the purpose of
impressing on the jury the fact of the claim of the privilege. State v. Duhon,
332 So. 2d 245, 247 (La. 1976); State v. Berry, 324 So. 2d 822, 830 (La.
1975), cert. denied, 425 U.S. 954, 96 S. Ct. 1731, 48 L. Ed. 2d 198 (1976).
Reversible error can occur when the prosecution makes a “conscious and
flagrant” attempt to build its case out of inferences arising from use of the
testimonial privilege or when inferences from a witness’s refusal to answer
adds critical weight to the prosecution’s case in a form not subject to cross-
examination. Namet v. United States, 373 U.S. 179, 83 S. Ct. 1151, 10 L.
Ed. 2d 278 (1963); State v. Laviolette, 06-92, p. 14 (La. App. 5 Cir. 9/26/06),
943 So. 2d 527, 535, writ denied, 06-2585 (La. 5/18/07), 957 So. 2d 149.
The prohibition against the prosecutor’s calling before the jury a
witness who he knows will assert a privilege not to testify is designed not
14
only to prevent the jury from drawing improper inferences from the fact of
the witness’ claiming the privilege, but also to deter the prosecutor from
using bad faith trial tactics. State v. Wille, 559 So. 2d 1321 (La. 1990), cert.
denied, 506 U.S. 880, 113 S. Ct. 231, 121 L. Ed. 2d. 167 (1992). Claims of
privilege are preferably determined outside the presence of the jury, since
undue weight may be given by a jury to the claim of privilege and due to the
impossibility of cross-examination as to its assertion. State v. Duhon, supra;
State v. Berry, supra.
We first note that there is no merit to Persley’s argument that the State
took advantage of the ADA’s unpleasant exchange with Peace to turn the
trial into a sideshow involving Peace’s disrespect and hatred for the ADA
who prosecuted him. The record clearly refutes this contention. The
prosecution’s closing argument was made by an ADA who did not prosecute
or engage with Peace; there was no reference to the State’s failed attempt to
elicit testimony from Peace in the closing of the prosecution. However, in
his closing argument, defense counsel told the jury:
[W]e had a lot of testimony from the stand, none more exciting
than the testimony we got from Quinton Peace. He said a
whole lot without saying a whole lot. But what was the first
thing he said when he took the stand? He looked at my client,
he looked at you’all, and he said, ‘That man ain’t killed nobody.
If he did, I wouldn’t be in prison.’ And then the testimony got a
lot more colorful, and we won’t get into that. But a man who
has admitted to killing someone, who has been convicted of
killing someone, who has nothing to lose, why would he then
put more on himself? Why would he do that? . . .
In open court before the Lord and everybody, [Peace] told my
colleague to eat a d*ck. Do you remember that? He even said
F you. And I promised I wasn’t going to get into that, because
I thought it was extremely disrespectful, but that’s what
happened. But this is the guy that’s the bully. This man right
here (indicating) is the one that set all this up. This is the one
that is responsible for the death of Mr. Parker.
15
Thereafter, the ADA who prosecuted Peace (and attempted to question
Peace at Persley’s trial) gave the rebuttal argument. This ADA’s rebuttal
included the following remarks:
Now, let’s talk about the testimony of Quinton Peace. I don’t
think he likes me that much, you know. I’m not on his
Christmas card list. I don’t care. Now, [defense counsel]
would have you believe that means [his] client is innocent.
What did [Peace] do more? Curse at me? Call me names? Or
declare [defense counsel’s] client’s innocence?
His motivation, our journey, me and Mr. Peace, our journey is
done. Whatever I did or did not do to him, it’s over at this
point. His motivation had nothing to do with the search for
truth. His motivation was his hatred of me. . . . [Peace] knew
exactly who I was, and he was calling me by name. He had an
axe to grind with me. Motivation to lie.
Clearly, the defendant cannot be allowed to take advantage of his co-
defendant’s favorable statement, then cry “foul” that the prosecution
had to do damage control in its rebuttal.
However, there is merit to Persley’s claim that the State (and the trial
court) did not handle this situation properly. The State knew that Peace’s
appeal was pending before this Court—it was a party thereto. Furthermore,
the State knew or should have known that Peace had pending charges in
Texas—he was arrested and brought back from Fort Worth to stand trial in
Shreveport. The immunity agreement was invalid on its face and thus of
questionable value to Peace, who understandably was reluctant to testify and
subject himself to further criminal liability.
The jury in this case should not have been exposed to any of the
drama between the ADA and Peace, and the trial judge erred in allowing it to
take place in his courtroom. At the very least, there first should have been a
“run through” of the questions the ADA would ask to gauge how Peace
would respond held out of the jury’s presence, since this same ADA had
16
only months before prosecuted and convicted Peace of the second degree
murder of the victim that Persley was on trial for killing. However, there is
no excuse for the trial court to have allowed the prosecutor to continue
following Peace’s first hostile outburst.
This situation went off the rails from the start when Peace made a
claim, favorable to Persley, contradictory to what Peace had told Fort Worth
police after his arrest. The prosecutor knew it and should have immediately
asked the trial court for a sidebar. The profanity and disrespect from Peace,
the ADA’s request for numerous contempt charges in response, and Peace’s
invocation of his Fifth Amendment privileges were unnecessary and should
not have happened while Persley was on trial.13
However, any errors committed by the trial court and the State
regarding Peace and his Fifth Amendment rights against self-incrimination
are harmless. These missteps were overshadowed by all of the other
evidence and testimony that was introduced at trial regarding Persley’s guilt,
such as the text messages between Persley and Peace, Facebook Messenger
communications between Persley and the victim, shell casings from two
firearms establishing that there were two kill shots from weapons fired by
two shooters, security camera footage from Melara Avenue near the victim’s
home and also from the Linwood Homes Apartment complex where the
victim’s car was taken, bloody socks with the victim’s blood on them found
in Persley’s hands when he was apprehended, the black ski mask containing
13
We agree with appellate counsel that the trial court should not have forced, at
the ADA’s request, defense counsel to waive, in the jury’s presence, his right to cross-
examine Peace. Persley’s counsel obviously had tactical reasons for not wanting to do
so, and it is neither the State nor the trial court’s bailiwick to second-guess such a
decision, particularly when the witness is a recently convicted co-defendant who has
acted in front of the jury of counsel’s client in the manner that Peace did.
17
Persley’s DNA recovered from the red Impala, testimony of police regarding
Persley’s statement, and the weapon recovered from Peace upon his arrest in
Texas which forensics experts matched to three of the four projectiles
recovered from the victim’s body.14 We reiterate that Peace’s testimony was
self-incriminating and exculpatory of Persley, vitiating any harm it may have
caused.
There is no merit to the defendant’s assignment of error.
CONCLUSION
For the reasons set forth above, the conviction and sentence of the
defendant, Darius T. Persley, are affirmed.
AFFIRMED.
14
See, Namet v. United States, supra; State v. Chairs, 12-363, p. 17 (La. App. 5
Cir. 12/27/12), 106 So. 3d 1232, 1244, writ denied, 13-0306 (La. 6/21/13), 118 So. 3d
413; State v. Chambers, 95-0898, p. 11 (La. App. 4 Cir. 12/28/95), 666 So. 2d 716, 722,
writ denied, 96-1699 (La. 7/30/97), 697 So. 2d 593.
18