Opinion

State of Louisiana v. Daniel Brandon Prince -Aka- Daniel B. Prince

Court: Louisiana Court of Appeal
Filed: Feb 1, 2017
Cited by: 0 cases
Authority: More cited than 39.7%

The opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

16-260

STATE OF LOUISIANA

VERSUS

DANIEL BRANDON PRINCE

-AKA- DANIEL B. PRINCE

**********

APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT

PARISH OF ACADIA, NO. CR 72,189 I & II

HONORABLE KRISTIAN EARLES, PRESIDING JUDGE

**********

JOHN D. SAUNDERS

JUDGE

**********

Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion,

Judges.

CONVICTIONS AFFIRMED; SENTENCES VACATED;

REMANDED FOR RESENTENCING.

Cooks, J., dissents and assigns written reasons.

Annette Roach

Louisiana Appellate Project

P. O. Box 1747

Lake Charles, LA 70602-1747

(337) 436-2900

COUNSEL FOR DEFENDANT/APPELLANT:

Daniel Brandon Prince

Roger P. Hamilton, Jr.

Assistant District Attorney

Fifteenth Judicial District

P. O. Box 2206

Lafayette, LA 70511

(337) 232-5170

COUNSEL FOR PLAINTIFF/APPELLEE:

State of Louisiana

SAUNDERS, Judge.

On January 15, 2005, the badly-burned bodies of the victims, Angela Matte

and Jackie Campbell, were found at the scene of a trailer fire in Acadia Parish.

Campbell’s remains were found on the floor of the bedroom, and Matte’s remains

were found on the bed springs. There was wire wrapped around Matte’s neck.

Neither the cause of the fire nor the victims’ deaths were determined. However,

evidence indicated that the women were dead before the fire and that Matte was

strangled. A jailhouse informant told investigators, and later testified, that

Defendant, Daniel B. Prince, confessed to killing the women and burning their

bodies. The informant stated Defendant was in a bar in the Rayne area and met the

victims. Defendant allegedly left the bar with them and went to a trailer with the

victims. The informant stated Defendant told him he had sex with the women in

the trailer. According to the informant, Defendant stated he hit one of the women

in the throat and then got on top of her and strangled her to death. He then grabbed

an extension cord and strangled the other woman. He then placed papers

underneath the mattress and started a fire. A witness later stated he saw a man he

identified as Defendant talking to the victims on the night of the murders, at the

Little Easy, a bar in Rayne.

Defendant was arrested after being involved in a traffic stop while driving a

silver Chevrolet pick-up truck, which had been reported stolen. Defendant

confessed to stealing the truck and was arrested at that time. It was this arrest and

subsequent incarceration at the Allen Correctional Center that led to the alleged

admission to his jailhouse cell mate. Police later discovered a witness who saw a

silver truck following the vehicle of one of the victims towards the trailer on the

night of the murders.

An Acadia Parish grand jury indicted Defendant on October 11, 2007,

charging him with two counts of first degree murder, violations of La.R.S. 14:30.

Defendant entered a plea of not guilty to both charges on November 5, 2007. On

that same date, the State declared its intent to seek the death penalty. The parties

selected a jury on January 17-28, 2013, and the jury began hearing evidence on the

latter date. On January 30, a unanimous jury found Defendant guilty as charged on

both counts. In the penalty phase, the jury was deadlocked. On February 8, 2013,

the district court sentenced Defendant to serve life in prison.

On September 30, 2013, Defendant submitted a Motion for Out of Time

Appeal. That motion was denied without a hearing. Defendant sought review of

the trial court’s denial of his Motion for Out of Time Appeal, and on February 10,

2014, this court remanded the matter to the trial court for a hearing in accordance

with State v. Counterman, 475 So.2d 336 (La.1985). State v. Prince, 13-1349

(La.App. 3 Cir. 2/10/14) (unpublished opinion). Upon remand, defense counsel

submitted a “Motion for Out of Time Appeal Order (Or in Alternative – Hearing

on Out of Time Appeal Order)” with an affidavit by Defendant’s attorney stating

Defendant did not waive his right to appeal. On July 3, 2014, the trial court signed

an “Order on Motion for Out of Time Appeal,” granting Defendant an out-of-time

appeal.

On July 31, 2014, the State filed a writ application in this court, seeking

review of the trial court’s grant of the motion for out-of-time appeal. On August

12, 2014, this court granted the State’s writ application, finding the trial court erred

in granting the motion for out-of-time appeal on July 3, 2014, without conducting a

Counterman hearing. State v. Prince, 14-789 (La.App. 3 Cir. 8/12/14)

(unpublished opinion). This court reversed the trial court’s grant of the out-of-time

appeal and remanded for the evidentiary hearing. Defendant sought review in the

supreme court and was denied relief on April 2, 2015. State v. Prince, 14-1817

(La. 4/2/15), 163 So.3d 791.

Despite this court’s August 12, 2014 dismissal of Defendant’s out-of-time

appeal and the pendency of Defendant’s writ in the supreme court, an appeal was

lodged in this court on January 30, 2015. While the appeal was pending in this

court, defense counsel filed a “Motion for Hearing on Out of Time Appeal Order”

in the trial court on April 15, 2015. The trial court held a hearing on May 21,

2015, but Defendant’s trial counsel was not present. The trial court granted the

out-of-time appeal.

On June 1, 2015, appellate counsel informed this court of the May 21, 2015

Counterman hearing and the trial court’s grant of the out-of-time appeal. A few

days later, this court issued a per curiam opinion dismissing Defendant’s appeal.

State v. Prince, 15-85 (La.App. 3 Cir. 6/3/15), 173 So.3d 906. It appears this court

was not aware of appellate counsel’s June 1, 2015 letter, because this court stated

that the trial court had not yet held the Counterman hearing and had not granted a

new out-of-time-appeal. Appellate counsel filed an application for rehearing on

June 17, 2015, asking this court to reconsider its per curiam opinion in light of the

trial court’s May 21, 2015 grant of the out-of-time appeal. On July 29, 2015, this

court denied the request for a rehearing.

Thereafter, on August 12, 2015, the State sought review of the trial court’s

May 21, 2015 grant of Defendant’s out-of-time appeal by filing a writ application

in this court. The State argued that it was denied its right to cross-examination.

This court granted the State’s writ application, stating the following:

WRIT GRANTED AND MADE PEREMPTORY: The State

should have had an opportunity to cross-examine trial counsel at the

hearing conducted on May 21, 2015. The district court’s ruling of that

date is vacated, and the case is remanded for a hearing with live

testimony, including the opportunity for cross-examination of any

witnesses and presentation of evidence by both parties, if deemed

appropriate.

State v. Prince, 15-763 (La.App. 3 Cir. 11/20/15) (unpublished opinion).

On January 11, 2016, the trial court held a hearing, at which the State was

able to cross-examine Defendant’s trial counsel, Thomas Alonzo. The trial court

granted the out-of-time appeal, and the appeal was lodged in this court on April 11,

2016.

Defendant has filed a brief alleging four assignments of error. For the

reasons that follow, we affirm Defendant’s convictions, vacate Defendant’s

sentences, and remand Defendant’s sentences to the trial court for imposition of a

separate sentence on each count of first degree murder in accordance with La.R.S.

14:30.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, Defendant argues the trial evidence was

insufficient to support his convictions. We find the trial evidence was sufficient to

convict Defendant of both counts of first degree murder.

I. State’s Evidence.

Firefighter Dwayne Thevis responded to a fire on January 15, 2005, around

5:15 in the morning. Foy Credeur, Chief of the Branch Volunteer Fire Department

in 2005, testified that the bodies of two women were found in the trailer that was

on fire. Both victims were located in the south bedroom of the trailer, which

suffered the heaviest damage. Monte Briggs of the Acadia Parish Coroner’s Office

testified that Campbell’s body was on the floor. Matte’s body was removed from

the bed springs, at which point Briggs noticed a wire around her neck. Briggs

noted that the wire looked like standard copper wire used in most electrical cords.

Zeb Johnson of the Calcasieu Parish Coroner’s Office testified that the cord around

Matte’s neck appeared to be a lamp cord.

Dr. Terry Welke, accepted as an expert in the field of forensic pathology,

was unable to determine the cause of the victims’ deaths. Due to the low level of

carbon monoxide in the victims’ bodies, Dr. Welke opined that they were likely

dead before the fire. When asked if the wire around Matte’s neck could have been

a necklace, Dr. Welke testified he did not think so but could not completely

dismiss that possibility.

Several hours before the fire, John Babineaux saw the victims at a bar, the

“Little Easy.” Babineaux saw a guy on his cell phone talking with the victims.

Babineaux described the guy as Caucasian, wearing a white-buttoned up shirt, and

having a tattoo on his arm. When shown a photo line-up, Bandeaux identified

Defendant as the man he saw socializing with the victims. When Babineaux left

the bar at 1:30, the victims and Defendant were still there. On re-direct, Babineaux

stated that Defendant was shooting pool at the bar that night.

Gary Daigle testified he was with Babineaux at the “Little Easy” on January

14, 2005. Daigle remembered seeing the victims at the bar that night. Daigle also

remembered that one of the victims, Campbell, “took interest in” a guy playing

pool. Daigle described the guy as slim, kind of tall, wearing a white muscle shirt,

having a goatee, and having tattoos on his arm. On cross-examination, Daigle

testified that he thought the guy Campbell was interested in was named “Dustin.”

Daigle also read from a previously made statement wherein he stated he saw

another guy at the bar and that guy was interested in the other victim, Matte.

Cordtney Otten testified that during the early morning hours of January 15,

2005, she saw the victims being followed by a truck. The victims lived a few

houses down from Otten. Later, when Otten woke up to use the bathroom, she saw

a truck going really fast out of the victims’ driveway. Otten described the truck as

silver and thought the truck was a Chevrolet. On cross-examination, Otten stated

she did not remember seeing anything in the back of the truck. Although Otten

testified she thought the truck’s windows were tinted, she also stated she did not

remember. Otten admitted, however, that in a statement she gave on September 7,

2005, she said there was a toolbox in the back of the truck, and she stated the

windows of the truck were tinted.

Approximately two weeks after the victims were found dead, Defendant

was apprehended in Lafayette Parish while driving a silver Chevy truck that had

been stolen on December 29, 2004. Sergeant Kim Verrett of the Vermillion Parish

Sheriff’s Department testified that on December 29, 2004, she investigated the

theft of a silver 2005 Chevy truck. The truck was recovered when it was stopped

while being driven by Defendant. According to Sergeant Verrett, Defendant

admitted to taking the truck. On cross-examination, Sergeant Verrett testified that

she could not see a toolbox in the photograph of the truck. As for the tint of the

windows, Sergeant Verrett testified the windows appeared to be either rolled down

or not tinted.

Deputy Kip Judice testified he took Defendant into custody after pulling him

over and determining he was driving a stolen truck. According to Deputy Judice,

the truck did not have a toolbox. Deputy Judice also testified the truck’s windows

were not tinted.

A brown leather jacket, a black leather jacket, two muscle shirts, blue jeans,

and boxers were collected from the stolen truck Defendant was driving. No DNA

from either victim was detected on the items recovered from the truck.

Although Defendant was ultimately determined to be the main suspect in the

murders, Detective Phyllis LeJeune of the Acadia Parish Sheriff’s Office testified

that Jason Fruge was considered a suspect early in the investigation. Fruge was

dating Matte’s daughter. Fruge was already at the scene of the fire when the fire

truck arrived, and, according to one of the deputies, was dressed in his fire gear.

Another person saw Fruge at the scene “standing and observing.”

Detective LeJeune testified that one of the officers at the scene told her that

Fruge was acting strangely. According to another witness, Fruge had been a

suspect in other fires in the Branch area. Detective LeJeune testified that Fruge

was a suspect in a subsequent fire that occurred on June 13, 2005 in a nearby area.

When Detective LeJeune took Fruge’s statement on January 15, 2005, she

noticed that he had bruises on his face and hands. According to the detective, she

later learned that Fruge had the bruises a week to two weeks before the date in

question.

Jeremy Matte contacted the police and stated he was told by Jason Fruge that

he had started the fire. The police chose to disregard Jeremy Matte’s statement,

because he was related to Angela Matte.

Detective LeJeune developed Defendant as the main suspect because she

received information that he was inside the bar, and she received a letter and

voluntary statement from Michael Hayes stating Defendant confessed to the

murders. Defendant was identified by John Babineaux in a photographic line-up as

a person he saw talking to Campbell in the Little Easy.

Michael Hayes testified that he and Defendant were in the same dorm at

Allen Correctional Center. During one of their conversations, Defendant asked

Hayes if a fire would destroy DNA evidence. Defendant eventually told Hayes

that he killed two women. According to Hayes, Defendant told him the following:

A. He said he was in a bar in Rayne and they had a party going on.

A girl had a birthday. And he was up there drinking and everything.

And he said that they had come up and asked him to dance, and he

said he didn’t dance but he ended up playing pool with them. And he

said they bought him some drinks, and when they pulled out to pay for

the drinks there was some – he noticed a large sum of money and

everything. He said that, you know, that went on for a while and then

he left and he went back to a place he was staying.

Q. And what happened?

A. He returned back to the bar, went in there again and went to

talking to them. If I remember right, he said he had a friend of his that

called him about some other business they had going on. And then he

said they had called for the last alcohol, the last drink, and he had

went outside before they did. And then when they came out he said,

“Luck would have it, that I just happened to park right next to them.”

He said, “We started talking, and they asked me did I want to go with

them?” And he said, “Yeah, but y’all leave first.” And so they left

first. He said there was another person in the parking lot with a girl

leaning over the door, over talking to him, he said, but he didn’t think

they’d seen him. And he said, well, they left and so he pulled out a

little bit later so people wouldn’t see him following. And he noticed

that they had pulled over on the side of the road so he kind of slowed

down behind them, flashed the lights and they went on. He said they

came to Branch, Louisiana and went down like a dirt road to a trailer

house.

Q. And what happened?

A. He said that he went to the back with the one lady, and said

that they had had intercourse. And the other girl stayed up front. And

he said they eventually had a conversation about her coming back

there, too, and they had hollered for her. The other girl had hollered

for her but she wouldn’t come back there, so he went up to get her.

He said that they had smoked a joint and went to talking. And then he

went on back to the back and eventually she came back there, and he

said he had intercourse with both of them. He then said that one girl

was kind of getting jealous of the other one, because the one he was

originally back there with was showing him more attention. And I’m

going to say, the heavy set girl started getting upset and wanted him to

leave, and telling him to leave, that she was going to call the law and

have him throwed out. And he said he hit her in her throat with his

fist and she fell down beside the bed, like gasping for air. And he got

down on top of her and strangled her. He made a big deal out of the

fact that the other girl never made - she was emotionless. She never

screamed, never nothing. He said he thought that she thought they

were going to be an item or something. And he said after he strangled

her, you know, he knew he couldn’t leave a witness so he grabbed an

extension cord from an electric heater and he strangled the other girl

with it. He said then he took the money they had. He said it was about

Twenty-five Hundred Dollars ($2,500.00). Then he said he had a lot

of trouble getting the heavy girl back up on the bed, and he thought

about trying to make - start a fire with the electric heater but he had

pulled the extension cord out and he didn’t know how long it would

take for that to catch up on fire. So he piled a bunch of paper

underneath the mattress and started it on fire. And he said it went

quicker than he thought it would go. And so he got out of the house

and he got in the vehicle. He said he started to take their car, but then

he said they could link it to him, so he got in the truck. And he went

up the road and he realized he was going to [sic] the wrong way. He

said there was a woods [sic] between that trailer then another trailer.

And so when he turned around and come back it was completely

engulfed in flames, and he realized he had left the extension cord

around that one girl’s neck. He wanted to make it look like the house

just caught on fire. And he said he left.

One of the points defense counsel attempted to make at trial was that Hayes

could have learned about the wire found around Matte’s neck from someone other

than Defendant. Chief Credeur testified that although they were instructed not to

say anything about the wire, everyone at the scene knew that something was

wrapped around Matte’s neck. When asked if the wire around Matte’s neck was

common knowledge in the Branch community, Chief Credeur replied, “Probably

so.” According to Detective Phyllis LeJeune, the fact that wire was found around

Matte’s neck was not released to the public. However, Detective LeJeune

acknowledged she could not keep the information from getting out, but believed

the information did not get out since there were not many people at the scene when

the wire was discovered. Detective LeJeune did state when she questioned Jeremy

Matte, he knew about the wire. Detective LeJeune did not know how Jeremy

found out about the wire. Jeremy testified he heard a rumor that a cord was found

around Matte’s neck. Hayes testified he did not know any of these facts prior to

his conversation with Defendant.

When asked if he was given any benefit or promised anything for his

testimony, Hayes replied, “No.” Hayes also testified he had no grudge against

Defendant and testified because it was the right thing to do.

On cross, defense counsel accused Hayes of being a liar because of his

previous convictions of forgery and identity theft. At the time of his testimony,

Hayes was still on parole. When asked if he was a paid snitch, Hayes replied,

“Absolutely not.” Defense counsel showed Hayes a DOC document that said in

July 2009, Hayes had $16,521.00 in his prison account. Hayes explained that he

worked there for almost two years. When asked about his prior convictions, Hayes

stated that his first conviction was in 2005 and was for identity theft.

Subsequently, when asked why he told the trial court in March 2011, that he had

only one felony conviction in 2006 instead of two felony convictions (forgery and

identity theft), Hayes replied:

A. Well, I think it’s probably a misunderstanding. And let me tell

you why I think that.

Q. Okay. All right.

A. You’re counting felony arrests. I’m counting as a first offender.

Everything was run concurrent. I was put in prison over one (1)

sentence.

Later, when Hayes was further questioned about telling the court he was a first

felony offender even though he was actually a second felony offender, Hayes

continued to explain that he believed he was a first offender since the sentences

were ordered to run concurrently.

When questioned about the fact that his sentences were eventually “reduced”

to eight years, Hayes agreed that in 2006 he received a notice from the Department

of Corrections that he was serving a thirteen-year sentence. Hayes explained that

before he went to Phelps Correctional, his prison “rap” sheet indicated that his

sentence was eight years. When he arrived at Phelps, the “rap” sheet indicated his

sentence was thirteen years. At that time, Hayes asked the trial court in Sabine

Parish to clarify how it intended the sentences to be served. According to Hayes,

the trial court stated that it intended the sentences to be served concurrently. When

defense counsel asked Hayes if he had his sentence reduced after becoming a

snitch, the following colloquy took place:

A. No, sir, I didn’t have it reduced, I had it clarified.

Q. Excuse me. It was clarified for you - - (interrupted)

....

BY ALONZO – CONTINUED:

Q. So, the clarification in your sentence from thirteen (13) years to

eight (8) years occurred after you became a rat, right?

BY THE WITNESS:

A. Okay. Will you allow me to explain something?

Q. Sure. Yes, sir.

A. Okay. When I went to prison I got eight (8) years. I

voluntarily revoked myself on the first charge, the five (5) years.

There’s no use – I did it. There was no use to continue to fight

anything; do it, get over it and move on in my life. I voluntarily got

with them, I revoked myself. The Judge – it’s in your minutes, also,

sir. You can read. Before I ever wrote a statement on him – that it’s

eight (8) years. But every prison you go to has a computation

department. And each one of them people, they read something

differently. At every prison I went to except the last one, it was

always eight (8) years.

Q. Okay. Fair enough. I’m sorry. Were you finished?

A. And when I got to Phelps they did compute (sic) it, read the

five (5) and the eight (8) and made it a thirteen (13). I argued it out

saying it was to be ran concurrently together, and so it would be the

five (5) is ate up by the eight (8), it would be eight (8) years. I didn’t

have any of my paperwork. And I had noone [sic] that could get it, so

all I could do was to write a motion and have the Judge reclarify it. I

did that. They changed it back to the original eight (8) that it was

before I ever, what you want to call, snitched on him.

Hayes testified that he did not know his lawyer sent a letter to the District

Attorney asking for Hayes to be paroled in exchange for his testimony against

Defendant. Defense counsel introduced a letter written by Hayes’ attorney to

District Attorney Mike Harson. In the letter, Hayes’ attorney stated that he wanted

the District Attorney’s assistance in getting Hayes paroled in exchange for his

testimony against Defendant. Although he testified he did not know about the

letter, Hayes said he did tell his attorney to “get this parole fixed for me.” When

asked if he had some charges dismissed in December 2007, after he became a

snitch, Hayes responded, “Yes, sir.” Hayes explained that the charges were for

“bank fraud” and were dismissed because “the statute of limitations run out on

them.”

Detective LeJeune testified that Hayes never asked for a reduction in his jail

time. The detective testified that she would be surprised to hear Hayes hired a

lawyer to seek a reduction in his sentence in exchange for his testimony. Detective

LeJeune stated that she believed Hayes.

II. Defense Witnesses.

Kami Richard, a barmaid at the Little Easy in Rayne, testified that on

January 14, 2005, she saw two women at the bar, and she remembered it was one

of the women’s birthday. Richard remembered seeing one of the women trying to

flirt with a man having tattoos and wearing a leather jacket. According to Richard,

the man did not seem interested in the woman. Richard thought the man left

before the women left, but she was not sure. After being shown her previous

statement, Richard testified that the man with the leather jacket left before the

women left. Richard thought the women left with another man.

The owner of the Little Easy Bar, Charmaine Gallet Billings, testified there

were about twenty-five to thirty people in the bar the night the victims were there.

Billings remembered escorting the victims out of the bar at about 1:45, closing

time. Billings acknowledged that in her statement, she said the victims left with “a

little grey haired man.”

Jason Domingue testified that after the fire, he found a duffel bag in a field

about a mile and a half to two miles from the fire. The duffel bag had a ski mask

in it. Defendant was excluded as a contributor of DNA found on the mask.

Brian Fontenot, the arson and fire investigator for the Louisiana State Fire

Marshal’s Office in January 2005, testified that Jason Fruge was initially a suspect

in the fire. Fontenot testified that although he could not confirm that Fruge was a

suspect in other fires, he knew that Fruge was involved in other fires. Additionally,

Fontenot testified that Fruge may have been part owner of a property that caught

fire after the fire in question. On cross-examination, Fontenot acknowledged that

he has never arrested Fruge for arson.

David Clark, who lived near the scene of the fire, testified he smelled smoke

when letting his dog out at dawn. He walked towards the fire, and stated when the

sheriff shined his spotlight at the smoking trailer, Jason Fruge appeared in the

smoke. Clark testified that Fruge was not in his fireman clothes. Accordig to

Clark, no other policemen or firemen were at the scene at that point. Clark stated

that Jason Fruge was the first person he saw come out of the vicinity of the fire.

Jessica Trahan, Matte’s daughter, testified that three days before she died,

Matte expressed displeasure with her other daughter, Dana, for dating Jason Fruge

and for “doing drugs.” According to Trahan, her mom was trying to get Dana to

quit dating Fruge. Two weeks earlier, Trahan had a conversation with her mom

regarding the fact that Fruge knew her mom did not want him dating Dana.

Trahan could not remember the specifics of the conversation, so defense counsel

had her read her previous statement:

A. (Witness examines document.) “We were sitting down talking and

she was telling me how she was going to have to find a new place to

live and a new job because she just seen trouble coming there and

stuff. Then I asked her, you know, what was the problem and stuff

about her not being around - - Then I asked her, you know, what the

problems and stuff about her not being around Jason because he

wasn’t a good influence on her, and Dana must have told Jason or

something because Jason found out. And at work he had cornered my

mom when she was throwing out trash out the back door, and she,

whenever she was going to go back in the corner, her, and he put his

hand on the screen door or on the door and he told her, ‘Look, you

need to keep your f---ing nose out of me and Dana’s business or

you’re going to find yourself in a roaring fire and I’m the f---ing

person to do it.’ My mom . . .” (Crying by witness.)

When asked why she was suspicious of Fruge after her mom was murdered,

Trahan responded:

A. Because he ended up saying that. I mean, naturally you would

think that. As soon as we found out, you know, she was murdered, we

were looking for answers.

Q. But also, he had some marks on his face, remember?

A. He had a scratch under his eye and nose, but my sister – my

sister said – Dana told me that it was whenever he fell out of the truck.

She was with him when it happened before my mom had passed

away. She was in the truck with him.

On cross-examination, Trahan stated now she did not think either Dana or

Fruge had anything to do with her mom’s death.

Lavence Matte, the ex-husband of Angela Matte, testified he spoke with

Matte the day before her death. When asked if Matte expressed concern about

Jason Fruge, Matte responded:

A. Yes, sir.

Q. Tell me specifically what she told you.

A. We got back to her house, and, of course, she got out. She says,

“I need to tell you something.”

Q. Would you speak into the speaker phone just - - (interrupted)

A. When I got there – of course, she got out the car. She says, “I

need to tell you something.” I said, “What do you want to tell me.”

My little girl, Shelby, was with me, which we made Shelby get out the

car and walk to see her little brothers, her little half-brothers. She

started to cry and she says, “Baby, I was threatened.” I said, “What

you mean you was threatened?”. She said, “Jason threatened me. He

said if I didn’t stay out of him and Dana’s relationship he was going to

kill me and burn me in the trailer and get away with it because he was

a volunteer fireman.” And she cried. I said, “Do you want me to talk

to him?”, I said, “There’s no danger with that little worm. He ain’t

going to do nothing.” She said, “No, don’t talk to him. I’m scared.”

That’s about all she had to say on that.

The next witness for the defense, Kayla Comeaux, testified that Jason Fruge

dated her cousin, Tessa. A few months after the fire, Comeaux heard Fruge say

that he started the fire because he was mad at Tessa. Comeaux further explained:

“They were fighting. I guess he said it to scare her, but he said he put a gallon of

gas over some candles and that’s how he did it.”

The final witness to testify was Dr. Dean Foster, who was accepted as an

expert in corrections and sentencing. According to Dr. Foster, Michael Hayes was

in Allen Correctional Center in December 2006, for twenty-three days–a time

during which Defendant was also there. After about a week of being in the same

dorm as Defendant, Hayes contacted the Fire Marshal’s Office. Dr. Foster testified

that he was asked to look at Hayes’ file for any unusual occurrences after Hayes

came forward as an informant. According to Dr. Foster, some really good things

began happening to Hayes right after he became an informant. Hayes was

transferred to a better prison and was ultimately placed in the lowest security state

prison. Second, he was quickly promoted to inmate counsel substitute. Third, Dr.

Foster mentioned the fact that Hayes’ sentences were amended from consecutive to

concurrent. Dr. Foster explained how the modification occurred as follows:

A. I mean, there is a sentencing history there. He got the five (5) year

sentence initially, and then the next year he came back on additional

charges and got an eight (8) year sentence. And as he explained in

Court yesterday afternoon, he had his probation revoked at that time,

although not exactly under the circumstances that he described, but

had his probation revoked and the Judge at that time, at the probation

revocation the Judge imposed a five (5) year sentence on him and did

not specify in the minutes whether it was to be concurrent or

consecutive. And the rule is under the Code of Criminal Procedure

883, that if it’s not specified concurrent, then it becomes consecutive.

So, the DOC officials were just following their rules, which says if the

Judge doesn’t say concurrent, it’s consecutive. So, as far as they were

concerned, he was serving an eight (8) year sentence and a five (5)

year sentence. So, you have to serve one (1), or half (1/2) of one

under his Good Time rules before you get into serving the other half

(1/2), the other sentence.

Q. And just to be clear, that became – excuse me – that changed

after he became a snitch?

A. After he became a snitch he went back to Sabine and the two

(2) sentences were rolled back into one (1) eight (8) year concurrent

sentence.

When asked what happened when Hayes went to work for the work release

program in Lake Charles, Dr. Foster explained:

A. I’ve read through the reports, yes. He was supposed to be

working at one address, but he was being delivered each day to a

different address, which was a house, according to the reports, that

were [sic] owned by either him or his girlfriend, and spending time

there during the day instead of being on the job site where he was

supposed to be working.

Q. Was he committing any kind of fraud upon the State by doing

that?

A. He was violating the terms of work release, so he was subject to

any charges that would result from that.

Q. I’m trying to determine, was he double-dipping, working

somewhere else and getting paid somewhere else, too; do you know?

A. I have no idea about his finances. What appears in the record is

how much money he had in his account at the halfway house when he

was sent back into State custody for violating the terms of work

release, which was Sixteen Thousand Five Hundred and Twenty-one

Dollars ($16,521.00) that he had accumulated in the fifteen (15)

months that he was working at the work release facility.

Q. Did you find that unusual?

A. It’s a good sum of money. It depends upon that job that he has,

you know, how much he’s working and other things. It’s more than

ordinary. I was involved with halfway house facilities in Lafayette,

and somebody who was working offshore at a good job that really

couldn’t spend much money out of their account would sometimes

accumulate, you know, One Thousand Dollars ($1,000.00) a month

or more. So, not obviously fraudulent or anything incorrect about it.

Q. Okay, that’s fair.

A. But unusual. I mean, it was more money than most inmates

would earn; yes.

Q. And did anything else happen that was unusual after he gets

charged with the escape? He goes up -- What happens next?

A. Well, he’s returned to State custody. He’s put in jail in

Calcasieu then he’s transferred back into Hunt, which is the Adult

Reception Diagnostic Center at St. Gabriel. He goes back to Hunt for

a few weeks. He has his disciplinary hearing there, in which -- Well,

it’s postponed twice, and then when he goes to the hearing he’s found

not guilty of escape, where there’s another charge which is just kind

of general prohibited behavior. But he is found guilty of what’s called

21H, which is a consensual sexual offense while in custody.

Q. What was that about?

A. I don’t have the details of the report, so, you know, I don’t

know who he was having sex with. I think I know from, you know,

from the description of the violation who he was having sex with, but

I can’t tell you what went on at the disciplinary hearing.

Q. Okay.

A. He was not charged with a criminal offense.

Q. Okay.

A. They have a separate court in the DOC that handles disciplinary

matters that’s called an Escape Court. They would deal with that kind

of context. So, the Escape Court is very serious, because if you’re

found guilty of escape from this kind of facility - if you just run away

from the halfway house then they would take away all of your good

time. So, he would have lost all of his good time that he had

accumulated, four (4) years of good time that would have seriously

impacted his release date from prison.

Q. How would that have -- What would have been the effect if he

gets caught, if he gets that -- (interrupted)

A. He wouldn’t have been discharged in 2009 at his - the

September 16th release date that he was scheduled for, he would still

be in prison today if he had not, if he had not - if his good time had

been cancelled for escape or for violating the rules. They could have

charged him with escape and taken it all away, or a serious

disciplinary violation, they would have - the punishment can be up to

one hundred eighty (180) days of good time removal for the sexual

activities or other rule violations, they can take away up to one

hundred eighty (180) days for that. But he had no time taken away.

Q. So, if that had happened, what you just explained, he would

have shown up here yesterday in an orange suit with handcuffs on,

right?

A. He would still be in custody. I don’t know how he would have

been dressed; but, yeah.

When asked if he believed Hayes received special treatment after becoming

a snitch, Dr. Foster replied:

A. All of the good things that happened to him after he came

forward as a snitch, in my opinion, the combination of occurrences

was very unusual; like, you know, like he had a guardian angel over

his shoulder watching his progress through the system.

Legal Analysis

The analysis for insufficiency of the evidence claims is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the

critical inquiry of the reviewing court is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100

S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,

436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);

State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact

finder to weigh the respective credibility of the witnesses, and

therefore, the appellate court should not second guess the credibility

determinations of the triers of fact beyond the sufficiency evaluations

under the Jackson standard of review. See State ex rel. Graffagnino,

436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)).

In order for this Court to affirm a conviction, however, the record

must reflect that the state has satisfied its burden of proving the

elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant suggests the informant, Michael Hayes, could have learned about

the wire found wrapped around Matte’s neck by someone other than Defendant.

Although the lead investigator indicated the information regarding the wire was

withheld from the public, some testimony elicited by Defendant suggested the

presence of the wire could have been known in the community. Defendant also

observes that he was not seen leaving the bar with the victims, there was no

showing that his DNA was at the scene, and when he was arrested, his only injuries

were a few scratches on his wrist.

Defendant further observes that Hayes testified that Defendant told him he

took twenty-five hundred dollars from the victims. However, the testimony of

Cordtney Otten, a friend of the victims, suggested it was highly unlikely that the

victims would be in possession of that amount of money. One victim worked as a

waitress, and the other victim also did restaurant work. Defendant complains the

State presented no evidence that either victim possessed such an amount of money

and presented no motive for the murders.

Also, Otten’s description of the truck she saw differed from the truck

Defendant was apprehended in. She described a truck with a toolbox and tinted

windows, but the truck Defendant was apprehended in lacked either feature. It was

also established at trial that Otten and Jason Fruge were related. Detective

LeJeune testified he believed Otten was Jason Fruge’s half-sister.

Defendant also notes Jason Fruge was considered a suspect in the murders,

and was seen near the trailer while it was still aflame. There was conflicting

testimony as to whether Fruge was at the scene in his fire gear. Angela Matte’s

daughter and ex-husband testified that a few days before her death, the victim had

told them that Fruge had threatened to burn down the trailer with her in it. Another

witness, Kayla Comeaux, claimed that Fruge had confessed to burning the trailer.

Defendant also alleges that Fruge was implicated in other fires in the area.

In addition, Defendant argues Hayes’ testimony that Defendant used a heater

cord as a ligature and considered using the heater to start the fire did not comport

with the testimony that there was no heater in the trailer. Finally, Defendant

emphasizes the testimony of Dr. Foster that jailhouse informants, also known as

jailhouse “snitches,” are unreliable.

In its brief, the State argues that it presented evidence through the testimony

of Michael Hayes that Defendant committed the murders and started the fire. The

jury, the State asserts, chose to believe Hayes. Additionally, the State asserts

Defendant presented his theory that Jason Fruge was the perpetrator, and the jury

did not find this theory plausible.

Defendant’s thesis here, as it was at trial, is that Hayes is a liar who

benefitted from testifying for the State. The evidence is clear that there was no

DNA evidence tying Defendant to the murders. Clearly, the jury could only have

reasonably found Defendant guilty by accepting as true the testimony of Michael

Hayes.

We are unwilling to say on appellate review that the evidence was

insufficient to convict Defendant of the murders of Angela Matte and Jackie

Campbell. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2:

In his second assignment of error, Defendant argues the district court

erred by overruling Defendant’s objections to the State’s opening statement. He

also cites jurisprudence for the standard of review:

If the appellate court finds that the prosecutor’s argument contained

improper remarks, a reversal is warranted only if the court is

thoroughly convinced that the jury was influenced by the remarks and

that they contributed to the verdict. State v. Jarman, 445 So.2d 1184

(La.1984). Credit should be accorded to the good sense and

fairmindedness of jurors who have heard the evidence. State v.

Dupre, 408 So.2d 1229 (La.1982); State v. Dilton [Robinson, 490

So.2d 501 (La.App. 4 Cir. 1986)]. State v. Deboue, 496 So.2d 394,

403 (La.App. 4 Cir. 1986), writ denied, 501 So.2d 229 (La.1987).

The following colloquy occurred during the State’s opening

statement:

BY MR. HAMILTON:

As humans evil is among us every day in a different shape -- (interrupted)

BY MR. ALONZO:

Judge, I object. I’d like to approach the bench, Your Honor.

[WHEREUPON, A SIDEBAR CONFERENCE WAS HELD.]

BY MR. ALONZO:

Did he just say, “As humans evil is among us every day.”?

BY MR. HAMILTON:

Yes.

BY MR. ALONZO:

Judge, that’s totally improper argument.

BY MR. HAMILTON:

No, it’s not. I can say whatever I want. This is opening statements.

BY MR. GARROT:

No, you can’t say whatever you want.

BY MR. ALONZO:

No, you can’t. Judge, he can argue the facts of the case. He can’t talk about

crime outside of the courthouse, “Evil is among us every day.” Everybody

is scared about crime. That’s not what this case is about. That’s totally

improper argument.

BY MR. HAMILTON:

It’s an abstract theory.

BY MR. ALONZO:

You cannot argue -- (interrupted)

BY MR. HAMILTON:

It’s abstract, it is not argument.

BY MR. ALONZO:

You cannot argue -- (interrupted)

BY MR. HAMILTON:

This is an abstract – (interrupted)

BY MR. ALONZO:

Judge, I’d like to know where he’s going so we can question this. I’m sorry,

Judge. I don’t think that’s proper.

BY MR. HAMILTON:

This is an abstract statement. It’s not specifically going anywhere. I mean --

(interrupted)

BY THE COURT:

I don’t think he referred to anybody with that statement. It’s just a general

statement. And I’ll overrule your argument at this time, provided that you

don’t continue along those lines.

BY MR. HAMILTON:

Okay.

BY THE COURT:

In other words, we’re going to get to the case at hand.

BY MR. HAMILTON:

Yeah, I will get to it.

BY THE COURT:

I’ll note your objection.

BY MR. ALONZO:

Okay. Thank you, Judge.

....

OFF THE RECORD

BACK ON RECORD

BY THE COURT:

If y’all do have problems -- We’re going to unplug them. If you have

problems hearing, let us know.

OFF THE RECORD

BACK ON RECORD

BY THE COURT:

All right. Continue.

BY MR. HAMILTON:

As humans evil is among us every day in different shapes, a different color,

a different form. The dictionary defines evil as the fact of suffering and

wrongdoing, or something that brings sorrow, distress or calamity. Evil has

no limit as to who it will victimize. Evil will strike at dawn, during the day

or at night.

What is evil? Evil is the wrongs that people do. We must protect our

communities from evil acts.

BY MR. ALONZO:

Judge, if we could make another objection. I apologize, Your Honor, but we

have to make another objection on the record, Judge.

BY THE COURT:

Okay. Come on around.

[WHEREUPON, A SIDEBAR CONFERENCE WAS HELD.]

BY MR. ALONZO:

Judge, let me just state the basis for my objection and reiterate it, Your

Honor. I know it’s somewhat redundant, but, Judge, you cannot argue to the

community that it’s dangerous out there, it’s evil out there. This is about

this case and about the facts of this case and about whether or not Danny

Prince did that. You can’t try to scare the jury to make them render an

improper verdict. And that’s what he’s doing. “It’s dangerous out there.

There’s crime out there.” Your Honor, that’s totally improper. That’s the

basic 101 - - (interrupted)

BY MR. GARROT:

Your Honor - - (interrupted)

BY THE COURT:

Okay, only one (1) argument. We’re not going to have both arguing.

BY MR. GARROT:

Yes, sir.

BY THE COURT:

And I understand your argument. And I would imagine you’re just about - -

(interrupted)

BY MR. HAMILTON:

Yeah. I’m just about done. I’ve got a couple of more sentences and then I’ll

get into this case. I mean, it’s totally improper that they don’t allow me to

argue – not argue, but give my opening statement. These statements, I’ve

given numerous juries and have never had any problems with - -

(interrupted)

BY THE COURT:

I’ve overruled your objection.

BY MR. ALONZO:

Okay, Judge. Just note - -

(interrupted)

BY MR. GARROT:

Please note our objection.

Later, Defendant renewed his objection and asked the trial court to instruct

the jury to disregard the State’s remarks. The trial court advised that it would

consider giving an instruction to the jury to disregard the State’s comments and to

not consider sympathy and prejudice. During its closing instructions to the jury,

the trial court instructed the jurors that opening statements and closing arguments

were not to be considered as evidence and that they were not to be “influenced by

sympathy, passion, prejudice, or public opinion.” As Defendant notes, the State

returned to the theme of “evil” in its closing argument. However, Defendant did

not object at that point. Appellate counsel suggests an objection during closing

argument would have been fruitless since the trial court had already denied

Defendant’s challenge to the “evil” line of argument.

Appellate counsel asserts the State’s comments were “improper, immaterial,

irrelevant and beyond the permissible scope of opening and closing statements as

set forth in Articles 766 and 774.” Louisiana Code of Criminal Procedure Article

766 states the following regarding the scope of the State’s opening statement:

The opening statement of the state shall explain the nature of the

charge, and set forth, in general terms, the nature of the evidence by

which the state expects to prove the charge.

Louisiana Code of Criminal Procedure Article 774 states the following

regarding the scope of closing argument:

The argument shall be confined to evidence admitted, to the lack of

evidence, to conclusions of fact that the state or defendant may draw

therefrom, and to the law applicable to the case. The argument shall

not appeal to prejudice. The state’s rebuttal shall be confined to

answering the argument of the defendant.

Appellate counsel also asserts that the State’s remarks violated Rule 3.4(e)

of the Rules of Professional Conduct:

A lawyer shall not:

....

(e) In trial, allude to any matter that the lawyer does not reasonably

believe is relevant or that will not be supported by admissible

evidence, assert personal knowledge of facts in issue except when

testifying as a witness, or state a personal opinion as to the justness of

a cause, the credibility of a witness, the culpability of a civil litigant or

the guilt or innocence of an accused . . . .

La.Rules Prof.Conduct, Rule 3.4(e).

The supreme court has explained:

Prosecutors may not resort to personal experience or turn argument

into a plebiscite on crime. State v. Eaton, 524 So.2d 1194, 1208

(1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807

(1989); State v. Barrow, 410 So.2d 1070, 1075 (La.), cert. denied,

459 U.S. 852, 103 S.Ct. 115, 74 L.Ed.2d 101 (1982); State v.

Prestridge, 399 So.2d 564 (La.1981). However, before this court will

reverse on the basis of improper argument it must be thoroughly

convinced the jury was influenced by the remarks and such

contributed to the verdict. Eaton, supra. “In making this

determination, the court gives credit to the good sense and fair-

mindedness of the jury.” Eaton, 524 So.2d at 1208. See also Taylor,

93-2201 at p. 21, 669 So.2d at 375.

State v. Williams, 96-1023, p. 15 (La. 1/21/98), opinion corrected (La.

5/28/98), 708 So.2d 703, 716, cert. denied, 525 U.S. 838, 119 S.Ct. 99

(1998).

Defendant appears to acknowledge that the remarks at issue are subject to a

harmless error analysis.

In addition to La.Code Crim.P. art. 766, the State, in its brief, cites La.Code

Crim.P. art. 770, regarding mistrial:

Upon motion of a defendant, a mistrial shall be ordered when a

remark or comment, made within the hearing of the jury by the judge,

district attorney, or a court official, during the trial or in argument,

refers directly or indirectly to:

(1) Race, religion, color or national origin, if the remark or comment

is not material and relevant and might create prejudice against the

defendant in the mind of the jury;

(2) Another crime committed or alleged to have been committed by

the defendant as to which evidence is not admissible;

(3) The failure of the defendant to testify in his own defense; or

(4) The refusal of the judge to direct a verdict.

An admonition to the jury to disregard the remark or comment shall

not be sufficient to prevent a mistrial. If the defendant, however,

requests that only an admonition be given, the court shall admonish

the jury to disregard the remark or comment but shall not declare a

mistrial.

The State argues that its comment during the opening did not fall within the

purview of La.Code Crim.P. art. 770.

The State also notes La.Code Crim.P. art. 771:

In the following cases, upon the request of the defendant or the state,

the court shall promptly admonish the jury to disregard a remark or

comment made during the trial, or in argument within the hearing of

the jury, when the remark is irrelevant or immaterial and of such a

nature that it might create prejudice against the defendant, or the state,

in the mind of the jury:

(1) When the remark or comment is made by the judge, the district

attorney, or a court official, and the remark is not within the scope of

Article 770; or

(2) When the remark or comment is made by a witness or person other

than the judge, district attorney, or a court official, regardless of

whether the remark or comment is within the scope of Article 770.

In such cases, on motion of the defendant, the court may grant a

mistrial if it is satisfied that an admonition is not sufficient to assure

the defendant a fair trial.

While Defendant objected to the remarks at issue, he did not request a

mistrial. As mentioned earlier, Defendant renewed his objection after the opening.

The trial court stated that it would advise the jury not to be moved by emotion and

ultimately gave such an instruction. Thus, we find the dictates of La.Code Crim.P.

art. 771 were satisfied.

We also find there is little likelihood the remarks influenced the jury and

contributed to the verdict. Pursuant to Williams, we find that the possible influence

of the remarks does not rise to the level of thoroughly convincing this court that

they improperly influenced the verdict. As discussed in the previous assignment of

error, the core of the case was the credibility of Michael Hayes, whose testimony

was corroborated by other evidence at trial and obviously believed by the jury.

The State’s appeal to the general idea of evil did not clearly have a bearing on the

credibility issue. Also, a true contemplation of general evil might just as easily

have led the jury to doubt Hayes. It is clear he is not a “model citizen,” and the

district court allowed Defendant to explore the issue of whether Hayes was merely

trying to save his own neck at Defendant’s expense.

For the reasons discussed, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3:

In his third assignment of error, Defendant alleges the State introduced false

testimony from Michael Hayes, thus violating Napue v. Illinois, 360 U.S. 264, 79

S.Ct 1173 (1959). The supreme court has stated the following regarding a Napue

violation:

This contention implicates the decision in Napue v. Illinois, 360 U.S.

264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). To prove a Napue claim,

the accused must show that the prosecutor acted in collusion with the

witness to facilitate false testimony. When a prosecutor allows a state

witness to give false testimony without correction, a conviction gained

as a result of that perjured testimony must be reversed, if the witness’s

testimony reasonably could have affected the jury’s verdict, even

though the testimony may be relevant only to the credibility of the

witness. Id. at 269, 79 S.Ct. 1173. Furthermore, fundamental fairness

to an accused, i.e., due process, is offended “when the State, although

not soliciting false evidence, allows it to go uncorrected when it

appears.” Id. When false testimony has been given under such

circumstances, the defendant is entitled to a new trial unless there is

no reasonable likelihood that the alleged false testimony could have

affected the outcome of the trial. Giglio v. United States, 405 U.S.

150, 92 S.Ct. 763, 31 L.Ed 2d 104 (1972).

State v. Broadway, 96-2659, p. 17 (La. 10/19/99), 753 So.2d 801, 814, cert.

denied, 529 U.S. 1056, 120 S.Ct. 1562 (2000).

Defendant attempts to characterize Hayes’ trial testimony as false.

Defendant states that at a pretrial hearing, Hayes claimed to be a first offender, but

at trial he acknowledged having two convictions. Defendant claims this should

have alerted the State that Hayes’ credibility was suspect. Defendant also argues

that while some charges in Hayes’ background, such as bank fraud, may have been

properly excluded from use in cross-examination, they should also have led the

State to doubt its own witness’s truthfulness.

Defendant also argues that during trial, the State failed to clarify with Hayes

whether he knowingly had his attorney seek help from the State to obtain parole in

exchange for his testimony against Defendant. Further, he argues the State failed

to clarify with Hayes whether he had ever actually applied for parole.

In its brief, the State contends that Napue is distinguishable since the State

did not solicit Hayes to speak with Defendant and since Hayes was not given any

benefits in exchange for his cooperation. The State notes that Hayes was already

incarcerated with Defendant when Defendant engaged Hayes in a conversation

about the murders. The State further asserts Defendant’s confession to Hayes was

an admission by a party and, thus, not hearsay. Finally, the State contends defense

counsel was allowed wide latitude in cross-examining Mr. Hayes as to his prior

convictions.

As noted by appellate counsel, the following is the standard to be used in

determining whether a new trial should be granted because of a Napue violation:

[T]he grant of a new trial based upon a Napue violation is proper only

if: (1) the statements at issue are shown to be actually false; (2) the

prosecution knew they were false; and (3) the statements were

material.

State v. Reel, 10-1737, p. 16 (La.App. 4 Cir. 10/3/12), 126 So.3d 506,

517, writ denied, 12-2433 (La. 4/12/13), 111 So.3d 1018 (citation

omitted).

In Napue, it was determined that the State knew that a witness lied when the

witness denied that he had been promised consideration for his testimony against

Napue. Thus, the first two of the above requirements were met. The court in

Napue further determined that “[h]ad the jury been apprised of the true facts, . . . it

might well have concluded that Hamer had fabricated testimony in order to curry

the favor of the very representative of the State who was prosecuting the case in

which Hamer was testifying . . . .” Id. at 1177. Thus, the Napue court concluded:

As previously indicated, our own evaluation of the record here

compels us to hold that the false testimony used by the State in

securing the conviction of petitioner may have had an effect on the

outcome of the trial. Accordingly, the judgment below must be

reversed.

Napue, 79 S.Ct. at 1177.

In the present case, we find Defendant has failed to prove his Napue claim.

Although Defendant raises suspicions as to Hayes’ credibility, Defendant fails to

prove that Hayes’ testimony was false, much less that the State knew it was false.

As to Hayes’ testimony regarding his first/second offender status, we find

that Hayes was thoroughly questioned at trial and explained his confusion as to his

offender status. Hayes’ alleged “false” testimony regarding whether he knew his

attorney requested help with his parole was also thoroughly examined in front of

the jury. Thus, it did not go “uncorrected.” Furthermore, a comparison of Hayes’

trial testimony with the testimony given by his attorney at a pre-trial hearing does

not show Hayes’ trial testimony was false. At trial, Hayes said he did not know his

attorney sent a letter requesting help with his parole. Although the attorney copied

Hayes with the letter, he did not know if Hayes received the letter. At the pre-trial

hearing, Hayes’ attorney did testify that Hayes knew of his efforts to get him

paroled in exchange for his testimony. At trial, Hayes testified that he told his

attorney to get his parole “fixed.” Thus, Defendant has failed to prove that Hayes

testified falsely at trial.

Finally, the issue of whether Hayes received any benefits in exchange for his

testimony against Defendant was explored in detail during defense counsel’s cross-

examination of Hayes as well as during the testimony of Dr. Foster, Defendant’s

expert on Corrections and Sentencing.

The supreme court has explained:

This Court has held on numerous occasions a witness’s “hope or

knowledge that he will receive leniency from the state is highly

relevant to establish his bias or interest.” State v. Brady, 381 So.2d

819, 821-22 (La.1980); see also State v. Vale, 95-1230, p. 4

(La.1/26/96), 666 So.2d 1070, 1072. “It is difficult to imagine a

greater motivation to lie than the inducement of a reduced sentence,

but courts uniformly hold that such a witness may testify so long as

the government's bargain with him is fully ventilated so that the jury

can evaluate his credibility.” United States v. Cervantes-Pacheco,

826 F.2d 310, 315 (5th Cir.1987) (footnote omitted). Moreover,

Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)

and Giglio [v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766

(1972)] both hold, when the “reliability of a given witness may well

be determinative of guilt or innocence,” nondisclosure by prosecutor

of evidence going to the credibility of a witness denies the defendant

due process. Napue, 360 U.S. at 269, 79 S.Ct. at 1177; Knapper, 579

So.2d at 959.

State v. Garcia, 09-1578, pp. 51-52 (La. 11/16/12), 108 So.3d 1, 37, cert.

denied, __ U.S. __, 133 S.Ct. 2863 (2013).

Even though Hayes claimed he received no benefit in exchange for his

testimony against Defendant, we find the issue of whether or not he received a

benefit was explored before the jury. Thus, we find that Defendant fails to prove

that Hayes’ testimony was improperly submitted to the jury and, thus, failed to

prove that he is entitled to a new trial. For the reasons discussed, this assignment

lacks merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error, Defendant asserts the trial court erred in

overruling his request for a “great caution” jury instruction regarding the testimony

of Michael Hayes. We do not find merit in this assignment of error. For the

reasons that follow, we find the jury was properly instructed as to the great caution

it must use when weighing snitch testimony.

On July 5, 2011, Defendant filed a “Motion for Special Jury Instructions

Regarding Snitch Testimony.” The proposed jury instruction reads as follows:

An incentivized witness is defined as one who may be eligible for

some benefit as a result of his assistance in the investigation or

prosecution of another person. Whether the witness was involved in

the offense for which Defendant is charged or not, corroboration is

desirable, but it is not always indispensable. The jury may convict on

his uncorroborated testimony. And while it is not the rule of law, it is

rather the rule of our experience in dealing with that class of

testimony that while you may convict upon the uncorroborated

testimony of an incentivized witness, still you should act upon his

testimony with great caution, subject to careful examination of the

weight of the other evidence in this case. And you are not to convict

upon such testimony alone unless satisfied, after a great careful

examination of its truth, that you feel you can safely rely on it. What

the law means by corroboration of the testimony of an incentivized

witness is not merely the corroboration of the witnesses narrative and

the mere details of how the crime was committed, but some real and

independent corroboration tending to implicate Defendant in the

commission of the offense charged. It is not sufficient to corroborate

an incentivized witness as to the facts of the case. Generally, he

should be corroborated as to some material fact which tends to prove

that the accused was connected with the crime that’s charged. In

determining the reliability of the testimony of an incentivized witness

you should take into account several factors indicating the extent to

which his testimony is credible, including: 1) explicit or implied

inducements that the witness received, may receive, or will receive; 2)

the prior criminal history of the witness; 3) evidence that the witness

is a “career informant” who has testified in other criminal cases; and

4) any other factors that might tend to render the witness’ testimony

unreliable.

When the trial court addressed this motion, it stated that it would defer its

ruling until the charging conference just prior to the jury’s retirement for

deliberations. At the jury charge conference, defense counsel asked the trial court

about the “snitch testimony” instruction that had been previously discussed. The

following colloquy occurred regarding the requested charged:

BY ALONZO:

Judge, I know it doesn’t say that in the record, but what it does say,

Your Honor, what it says is that if there is no other corroborating – I

can’t say that word.

BY GARROT:

Corrobo (sic).

BY ALONZO:

- - corroborating evidence in addition to the testimony of the snitch

then that’s the appropriate charge. And in this case, there is no other

testimony that corroborates the testimony of Hayes.

BY HAMILTON:

There is corroborating - -

(Interrupted)

BY THE COURT:

I disagree. The trier of fact could conclude something otherwise

because of the other witnesses to some of these other things.

BY ALONZO:

I think the jury needs to be instructed, particularly in this case,

because it is critical to the State’s case, the snitch testimony, that that

type of testimony is looked upon with suspicion by judges like you,

Judge, and by jurors in general.

BY THE COURT:

I’m not giving that charge, but I’ll - -

(interrupted)

BY ALONZO:

Just note our objection for the record.

BY THE COURT:

I’ll note your objection.

BY ALONZO:

It’s under State versus Divers.” [sic]

The trial court gave the jury the following instruction regarding the

evaluation of witnesses:

As jurors you alone determine the weight and credibility of the

evidence. As the sole judges of the credibility of witnesses and of the

weight of their testimony deserves, you should scrutinize carefully the

testimony and circumstances under which the witness has testified. In

evaluating the testimony of a witness, you may consider his ability

and opportunity to observe and remember the matter about which he

testified, his manner while testifying, any reason he may have for

testifying in favor of or against the State or Defendant, and the extent

to which the testimony is supported or contradicted by the evidence.

The testimony of a witness may be discredited by showing that

the witness will benefit in some way by Defendant’s conviction or

acquittal, that the witness is prejudiced, or that the witness has any

other reasons or motive for not telling the truth.

The issue is whether the trial court abused its discretion in failing to give the

great caution instruction requested by Defendant.

The court in State v. Divers, 38,524, p. 13 (La.App. 2 Cir. 11/23/04), 889

So.2d 335, 352-53, writ denied, 04-3186 (La. 4/8/05), 899 So.2d 2, cert. denied,

546 U.S. 939, 126 S.Ct. 431 (2005), discussed “great caution” instructions in cases

involving uncorroborated snitch testimony:

Such “great caution” instructions are required when a case involves

uncorroborated accomplice testimony. However, such instructions

are not mandatory where an accomplice’s or snitch’s testimony is

materially corroborated. State v. Castleberry, 1998-1388

(La.4/13/99), 758 So.2d 749, cert. denied, 528 U.S. 893, 120 S.Ct.

220, 145 L.Ed.2d 185 (1999). Testimony is materially corroborated

“if there is evidence that confirms material points in an accomplice’s

tale, and confirms Defendant’s identity and some relationship to the

situation.”

State v. Schaffner, 398 So.2d 1032, 1035 (La.1981); State v.

Castleberry, supra.

The need for such an instruction is due to the fact that ‘“rewarded informant

testimony’ may be inherently untrustworthy.” Perry v. New Hampshire, 132 S.Ct

716, 728 (2012), citing Kansas v. Ventris, 556 U.S. 586, 594, 129 S.Ct. 1841

(2009).

In Divers, the Second Circuit found that the trial court’s denial of

Defendant’s requested jury instruction was not an abuse of discretion because the

“snitch” testimony was corroborated. The “snitch” testimony in Divers was given

by an individual with “about 12 felony convictions” in the first trial and by the

second trial “had about 16 convictions.” Divers, 889 So.2d at____.

Testimony is materially corroborated “if there is evidence that confirms

material points in an accomplice’s tale, and confirms Defendant’s identity and

some relationship to the situation.” State v. Schaffner, 398 So.2d 1032, 1035

(La.1981).

Here, the “snitch” testimony was corroborated because other evidence

confirmed that Defendant had contact with the two ladies on the night of the

murders while shooting pool at a bar. Further, other evidence confirmed that

Defendant was driving a silver truck, and a silver truck was seen on the night of the

murders driving to and from the location of the murders.

Neither the State nor Defendant mentions the fact that the above jury charge

was given to the jury. Appellate counsel’s argument that the “great caution” jury

instruction should have been given presumes that the instruction given by the trial

court was not sufficient.

This court has found a very similar instruction to be sufficient. In State v.

Guillory, 97-179, p. 40 (La.App. 3 Cir. 3/11/98), 715 So.2d 400, 422, writ denied,

98-955 (La. 10/9/98), 726 So.2d 17, Defendant requested the following proposed

jury instruction:

The Court instructs the jury that the law looks with

suspicion and distrust on the testimony of an accomplice

or a snitch who provides evidence against a defendant for

partial immunity from punishment, or for pay, or for

other personal advantage. You should weigh this

testimony with great care and caution and suspicion.

In judging the testimony of accomplices and

snitches and deciding on what weight–if any–you should

give this testimony, you should look upon it with distrust

and suspicion and you should determine whether the

testimony has been affected by his interest in this matter

or his prejudice against Defendant. In deciding whether

you believe the testimony of any accomplice or snitch in

this case you should keep this in mind.

Instead of giving the above proposed instruction, the trial court in Guillory

instructed the jury as follows:

As jurors you alone determine the weight and credibility of the

evidence. As the sole judges of the credibility of witnesses and of the

weight their testimony deserves, you should scrutinize carefully the

testimony of a witness, you may consider his or her ability and

opportunity to observe and remember the matter about which he or

she testified, his or her manner while testifying, any reason he or she

may have for testifying in favor of or against the State or Defendant,

and the extent to which the testimony is supported or contradicted by

other evidence.

Id.

Finding the trial court’s refusal to include Guillory’s requested charge was

not error, this court stated:

La.Code Crim.P. art. 807 provides that “a requested special charge

shall be given by the court if it does not require qualification,

limitation, or explanation, and if it is wholly correct and pertinent. It

need not be given if it is included in the general charge or in another

special charge to be given.” We find that the charge given to the jury

adequately explained their duty to determine credibility and the

refusal to include Defendant’s requested charge was not error.

Id.

Since the charge given in the present case was very similar to the charge

given in Guillory, this court finds the jury in the present case was adequately

explained its duty to determine credibility; thus, the trial court’s refusal to include

the requested “great caution” charge was not error.

As stated previously, appellate counsel’s argument assumes that no “great

caution” instruction was given or that the instruction given by the trial court was

not sufficient. Thus, appellate counsel’s argument focuses on whether or not such

an instruction was required in the present case. This court finds the instruction that

was given satisfied the requirement of a “great caution” instruction, and no further

analysis is necessary.

Appellate counsel argues there was little corroboration of the material points

of Hayes’ testimony. Further, appellate counsel asserts that almost all of the

details to which Hayes testified were common knowledge in the Branch

community. The details that were not common knowledge, appellate counsel

contends, were inconsistent with other testimony. Appellate counsel argues:

With regard to the wire found around the neck of one of the victims,

despite the detective’s testimony that this fact was kept quiet, it was

common knowledge in the community within a month of the fire.

Additionally, Hayes testified that Prince told him it was a cord to a

heater. The daughter of Angela Matte stated there was no heater in

the room. Further, no determination was made as to whether the wire

was a cord or a piece of jewelry. Additionally, Hayes testified that

Prince stole twenty-five hundred dollars from the women; other

witnesses said it was highly unlikely they would have had that much

cash. Due to the inconsistencies with other evidence and lack of

material corroboration of the snitch’s testimony, the limiting

instruction was proper.

The State, on the other hand, asserts that Hayes’ testimony was

corroborated, obviating the need for a “great caution” instruction:

In the case at bar, Hayes provided details of the crime that

corroborated other witnesses’ statements. Defendant provided Hayes

with a story where he met the women at a bar and went back to the

trailer with them. Those statements were corroborated by John

Babineaux. Moreover, Defendant’s cell phone records placed him in

the area and making a telephone call on his cell phone. There is

further evidence that Defendant used a wire to strangle on the [sic]

victims and fled in a truck once he started the fire. The truck was seen

by Cordtney Otten. Furthermore, the coroner and investigators

confirmed that a wire was around the neck of Angie Matte when they

found her body.

As discussed in the first assignment of error, we agree that Hayes’ testimony

was corroborated–there was evidence that confirmed material points of Hayes’

testimony as to what Defendant told him, and there was evidence that confirmed

Defendant’s relationship to the crime. Thus, even if this court had found the

instruction given by the trial court to be insufficient, we must consider the

discretion given to the trial court to run a jury trial and the great deference given to

jury verdicts, thus a “great caution” instruction was unnecessary in the present

case, and it is not required that these instructions be given.

DECREE

Defendant’s convictions are affirmed. Defendant’s sentence, however, is

vacated and remanded to the trial court for imposition of a separate sentence on

each count of first degree murder in accordance with La.R.S. 14:30.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR

RESENTENCING.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

16-260

STATE OF LOUISIANA

VERSUS

DANIEL BRANDON PRINCE

-A/K/A- DANIEL B. PRINCE

COOKS, J., dissenting.

I respectfully dissent from the majority opinion’s affirmance of Defendant’s

conviction. While I am reluctant at any time to set aside a jury’s verdict, I find the

trial court abused its discretion in failing to give the required appropriate great

caution instruction, which may have precluded the jury from reaching a verdict

based on the law and facts. Therefore, I would vacate the jury’s verdict and remand

the matter to the trial court for a new trial.

Defendant maintains here, as he did at trial, that Michael Hayes is a liar who

received numerous benefits in exchange for testifying for the State. As the

majority opinion notes, the evidence is clear that there was no DNA evidence tying

Defendant to the murders. Thus, the jury could only have found Defendant guilty

by accepting as true the testimony of Michael Hayes. I find merit in Defendant’s

assignment of error that the trial court erred in overruling his request for a great

caution jury instruction relating to the “snitch testimony” of Michael Hayes. Had

the jury been properly cautioned as to the longstanding rule that accomplice and

snitch testimony is inherently unreliable and still chose to accept as true the

testimony of Michael Hayes, the jury’s decision to believe Michael Hayes could

suffice to support Defendant’s conviction. However, for the reasons that follow I

find the jury was not properly instructed as to the great caution it must use when

weighing snitch testimony.

As the majority noted, Defendant’s appellate counsel assigned as error the

trial court’s decision to overrule his request for a “great caution” jury instruction

regarding the snitch testimony of Michael Hayes. Defendant filed a “Motion for

Special Jury Instructions Regarding Snitch Testimony.” The proposed jury

instruction reads as follows:

An incentivized witness is defined as one who may be eligible for

some benefit as a result of his assistance in the investigation or

prosecution of another person. Whether the witness was involved in

the offense for which the defendant is charged or not, corroboration is