State of Louisiana v. Lee Turner, Jr.

Supreme Court of Louisiana

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #053

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 5th day of December, 2018, are as follows:

BY CRICHTON, J.:

2016-KA-1841 STATE OF LOUISIANA v. LEE TURNER, JR. (Parish of E. Baton Rouge)

This is a direct appeal under La. Const. art. V, § 5(D) by

defendant, Lee Turner, Jr., who was indicted by a grand jury for

the first degree murders of Edward Gurtner, III and Randy Chaney,

committed while engaged in the perpetration of armed robbery.

Following the close of evidence, a jury unanimously found

defendant guilty of two counts of first degree murder and, at the

conclusion of the penalty phase of the trial, unanimously

recommended sentences of death. In his appeal, defendant raises

32 assignments of error. Finding merit to defendant’s assignment

of error related to his “reverse-Witherspoon” challenge, his

sentences are hereby vacated. Finding no merit to his remaining

challenges, his convictions are affirmed, and this matter is

remanded to the trial court for further proceedings.

CONVICTIONS AFFIRMED; DEATH SENTENCES REVERSED; CASE REMANDED FOR

FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

GUIDRY, J., concurs in part, dissents in part, and assigns

reasons.

HUGHES, J., concurs in part and dissents in part for the reasons

assigned by Guidry, J.

12/05/18

SUPREME COURT OF LOUISIANA

No. 2016-KA-1841

STATE OF LOUISIANA

VERSUS

LEE TURNER, JR.

ON APPEAL

FROM THE NINETEENTH JUDICIAL DISTRICT COURT

FOR THE PARISH OF EAST BATON ROUGE

CRICHTON, J.

This is a direct appeal under La. Const. art. V, § 5(D) by defendant, Lee

Turner, Jr., who was indicted by a grand jury for the first degree murders of Edward

Gurtner, III and Randy Chaney, committed while engaged in the perpetration of

armed robbery. Following the close of evidence, a jury unanimously found

defendant guilty of two counts of first degree murder and, at the conclusion of the

penalty phase of the trial, unanimously recommended sentences of death. In his

appeal, defendant raises 32 assignments of error. Finding merit to defendant’s

assignment of error related to his “reverse-Witherspoon” 1 challenge, his sentences

are hereby vacated. Finding no merit to his remaining challenges, his convictions are

affirmed, and this matter is remanded to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On the morning of Sunday, March 27, 2011, Edward “Eddie” Gurtner III and

Randy Chaney reported to work at the Carquest auto store on Airline Highway in

1

See Witherspoon v. Illinois, 391 U.S. 510 (1968) (holding that a prospective juror who would

vote automatically for a life sentence is properly excluded); State v. Robertson, 92-2660 (La.

1/14/94), 630 So. 2d 1278, 1284 (explaining that, in a “reverse-Witherspoon” context, the basis of

the exclusion is that a prospective juror “will not consider a life sentence and . . . will automatically

vote for the death penalty under the factual circumstances of the case before him . . .”).

Baton Rouge. Mr. Gurtner’s oldest son, Joey Gurtner, 2 stopped by the store that same

morning to pick up transmission parts for his own vehicle and bring breakfast to his

father. Before Joey left, his father instructed him to pull his truck around the back of

the store to load boxes. While at the back of the store, Joey noticed a white BMW

parked in the back and saw a man walking along the side of the building. Joey asked

his father who owned the BMW, and Mr. Gurtner replied that it belonged to the

nephew of Leroy Moss, Lee Turner. Joey did not interact or get in close proximity

of the man. Joey finished loading boxes into his truck and left.

Mr. Gurtner’s wife, Elizabeth Gurtner, expected him home at 3:30 or 4:00 that

afternoon, after the store closed at 3:00 p.m. When her husband did not return home,

Mrs. Gurtner began to call both Mr. Gurtner’s cell phone and the Carquest line, but

there was no answer. By 4:45 or 5:00 p.m., with still no sign of her husband, Mrs.

Gurtner and her youngest son, Jamie, then 13 years old, traveled to Carquest to check

on Mr. Gurtner. Upon arriving there, Mrs. Gurtner and Jamie discovered Mr.

Gurtner’s body. Mrs. Gurtner frantically called 911, and the dispatcher instructed

Mrs. Gurtner to leave the store immediately, which she and Jamie did.

Randy Chaney’s wife, Lola Chaney, spoke with her husband around

lunchtime that day, and Mr. Chaney informed her that Braillon Jones, a coworker,

had shown up to work a little late, around 10:00 a.m. At some point that afternoon,

the Chaneys’ son, Trevor Chaney, informed his mother that he had attempted to call

his father at work to ask him a question pertaining to an oil change, but that his father

did not answer the phone. Somewhat alarmed, Mrs. Chaney tried to call her husband

at around 3:15 p.m., but he did not answer. Mrs. Chaney, becoming more anxious,

2

Joey was born Edward Gurtner, IV, but is known as Joey and is hereinafter referred to as such.

2

made several additional calls, all of which also went unanswered. She then instructed

her son to return home so that she could take his vehicle to go check on Mr. Chaney.

As she waited, sheriff’s deputies arrived at her home and informed her that her

husband had been killed at Carquest.

Police arrived at Carquest and initially treated the scene as an active shooter

situation. Officers entered and cleared the building and ultimately discovered the

bodies of Mr. Chaney and Mr. Gurtner. Police then secured and roped off the scene

as additional police units and detectives arrived. Eventually, police discovered that

Braillon Jones had been working at Carquest with both victims on the day of the

murders, and Detective Nicholas Locicero and Captain Todd Morris went to Jones’s

home to interview him in the early morning hours of Monday, March 28, 2011. Jones

accompanied the officers to the police station for an interview. Jones informed

Detective Locicero that a black male wearing a white shirt, black pants, with a

tapered haircut, slim build, with no facial hair, was present inside the Carquest earlier

in the morning on the day of the shootings, as well as when Jones left for the day

just before 3:00 p.m.

Meanwhile, Lead Detective Sergeant Sonya Harden had arrived at the scene

and received information from Joey Gurtner that Turner had been at the store earlier

on the morning of the shootings. Sergeant Harden relayed this information to

Detective Locicero. Detective Locicero prepared a photographic lineup including

the defendant, and returned to Jones’s residence to present him with the lineup. Jones

identified defendant as the person he had seen at the Carquest in the morning and

again in the afternoon while he was working.

Police learned that Turner was a Carquest employee and was scheduled to

report to work later that morning (Monday, March 28, 2011) at 8:00 a.m. at the

3

Carquest location on Government Street. Detective Locicero and Deputy Stephen

Cadarette arrived at that location prior to 8:00 a.m. and waited for Turner. When

Turner arrived, he pulled up in a white 1990 BMW, parked, and entered the store.

The investigators followed him inside, introduced themselves to Turner, and

informed him they were investigating a homicide at Carquest. Detective Locicero

testified that Turner was fully cooperative and wanted to speak with investigators to

clear his name. Turner walked outside with the investigators and, despite seeing a

knife in Turner’s pocket, Detective Locicero did not search Turner (though he did

ask Turner to remove the knife, and Turner complied), nor did Detective Locicero

inform Turner that he was a suspect. After receiving oral consent to search Turner’s

vehicle, Detective Locicero presented Turner with a waiver of search warrant form

for the vehicle, which Turner read and signed. Nothing of evidentiary value was

recovered in the vehicular search.

Detective Locicero transported Turner to the violent crimes unit for further

questioning, though he did not place Turner under arrest. Turner rode in the front

passenger seat of the detective’s truck, and he was not handcuffed. Turner did not

appear to be under the influence of alcohol or other drugs, and had no trouble

communicating with Detective Locicero. Turner was placed in an interview room

by himself and, some time later, Detectives Harden and Locicero entered the room

to begin an interview. The interview would ultimately last approximately 11 hours,

from 9:43 a.m. to 8:30 p.m., though Turner was left alone in the interview room

between rounds of questioning for roughly six of the 11 hours.3

The interview began when Detective Harden initiated the following exchange

3

Turner was permitted several bathroom breaks and was offered food and water.

4

with Turner:

Q: Uh, just as a formality um, before we start the interview, I have

to advise you of your rights. It does not mean you’re in trouble

or going to jail or anything.

A: Okay.

Q: Okay?

A: Yeah.

Q: All right. You have the right to remain silent. Anything you say

can be used against you in court . . .

A: Okay.

Q: You have a right to an attorney. If you cannot afford one, one

will be provided for you. You have the right to have an attorney

present while answering questions. If you choose to answer

questions now without an attorney, you can stop at any time. Do

you understand that?

A: I understand ma’am.

Q: Okay. And you can read and write the English language?

A: Yes ma’am.

Q: You’re good – okay. What I need you to do for me is sign your

name there and print for me saying that you understand your

rights and I’m not forcing you to talk to me.

Turner then executed a waiver of rights form. 4 Turner explained to the

detectives that he worked for Carquest primarily at the Plank Road and Government

Street locations, but that he was going to begin doing some work at the Airline

location. He further explained that he went to the Airline location twice on Sunday,

March 27, 2011, to introduce himself to the store manager in anticipation of

4

The form tracks standard Miranda language and informs the signee that: he has the right to remain

silent; anything said may be used against him in court; he has the right to speak with an attorney

prior to any questioning and that attorney may be present during questioning; if he cannot afford

an attorney, one will be appointed; if he decides to answer questions now without an attorney

present, he can stop answering questions at any time to seek advice from an attorney or for any

other reason.

5

commencing work there. He told the detectives that he first visited the store on

Airline that morning, approximately 30 minutes after the store had opened, and he

introduced himself to the store manager and discussed a mutual acquaintance,

Turner’s uncle, Leroy Moss. Turner then told detectives that after visiting his

girlfriend during the day, he returned to the store just before closing to discuss his

schedule and inquire about the possibility of him becoming a permanent (as opposed

to rotating) employee at the Airline location.

Turner also told detectives that he spoke with a black male driver working at

the store, and that he (Turner) walked around the store to get acquainted with the

layout and learn where things were located. He further stated that Mr. Gurtner

showed him around the store, and that at one point he helped Mr. Gurtner take a few

boxes to the dumpster. The driver left the store before closing time, and Turner stated

he left the store about ten minutes after the driver left. Turner stated that as he was

leaving, Mr. Chaney was “counting the register” and Mr. Gurtner was putting up

stock. No one immediately locked the door behind him as he left. Later in his police

interview, Turner told the detectives the point of his second visit to the Carquest was

to look for parts for his car.

Turner told detectives that after he left the store in the afternoon, he went

home and changed clothes, and then went back to his girlfriend’s house. Turner

stated that at some point later that night, after leaving his girlfriend’s house, he drove

past the Carquest where the shootings occurred and saw the area taped off and a

large police presence. He called Leroy Scales, the store manager for a different

Carquest location, in an attempt to find out what was going on. Turner then parked

his car and joined the growing crowd of people outside the Carquest. He stated in

6

his interview that this was when he first learned there had been a murder. He did not

inform officers on the scene that he had been in the store twice that day.

Turner continued to deny his involvement in the murders, even when

detectives eventually confronted Turner with the facts that he was the last person to

be seen with the victims at 2:47 p.m., and that the victims must have been killed in

the small window of time between when Jones left for the day at 2:47 p.m. and when

one of the victims failed to answer his phone at 3:13 p.m. Turner informed detectives

that he left the store approximately five minutes after Jones left the store, and that,

as he was pulling out of the parking lot, a white woman with a blonde ponytail

driving a blue Camry pulled into the parking lot.

While Turner was being interviewed, the investigation was progressing on

other fronts. Chuck Smith, an investigator with the District Attorney’s office, visited

the crime scene at some point early Monday evening and spotted a gun in a weeded,

bushy area outside the rear of the Carquest building. Smith immediately alerted the

East Baton Rouge Sheriff’s Office, and officers recovered the weapon and sent it to

the crime lab for forensic testing. Additionally, Detective Locicero prepared a search

warrant for the residence that Turner shared with his uncle. The application for the

search warrant was based, in part, on video footage from a nearby business that

showed a white four-door vehicle matching the description of Turner’s vehicle. In

the footage, the vehicle was observed circling the block on which the Carquest was

located three times after 3:00 p.m. The warrant was issued and police executed it

late Monday afternoon. The search revealed $350 in cash wrapped in pay slips from

Pep Boys Auto Parts (Turner’s former employer) in Turner’s bedroom. In trashcans

outside the home, officers found a white garbage bag containing work boots, black

pants, a white t-shirt, black and grey gloves, and two Regions Bank bags. In each

7

bank bag was a deposit slip from the Carquest on Airline Highway––one for $125

and one for $357. The deposit slips were dated March 25, 2011 and March 26, 2011,

the two days before the murders.

Turner, who was still in the interview room, was confronted with photos of

his clothing, the bank bags, and the Carquest register receipts that police found in

the trashcan outside his house. Turner’s adamant denials of any involvement in the

murders immediately gave way to an admission of involvement, though initially

Turner downplayed his own actions.

Confronted with the evidence from his residence, Turner told detectives that

Leroy Scales, a manager at a different Carquest location, had planned and committed

the murders, and had forced Turner into helping him as repayment for helping Turner

secure a job. Turner stated that Scales was already in the building when he arrived

at the Carquest, and that Scales had previously instructed Turner to keep the two

employees busy by talking to them. Turner stated that Scales then told him to leave,

and that he heard one gunshot as he was leaving. Shortly after this confession, the

detectives informed Turner that a gun had been found behind the Carquest, asked

Turner if they would find his prints on it and if, in actuality, he had committed the

murders alone. Turner immediately responded, “Yes, sir.”

Turner explained that Scales had nothing to do with the murders, and gave

details on how the crimes were committed. Turner stated that one of the Carquest

employees “called me a ni**er and I heard him and I just clicked.” Turner proceeded

to explain that he shot Mr. Chaney first, and then forced Mr. Gurtner to remove and

hand over the cash. Mr. Gurtner then attempted to run towards the back of the store,

and Turner stated that he emptied “the clip” firing at Mr. Gurtner from behind. He

explained that the gun was a .38 caliber weapon and that he threw it in the bushes

8

behind the Carquest after he left through the back door. The interview concluded

with Turner explaining that he did not go to the store with the intention to kill

anyone, but when he heard the employee call him a racial slur, he said “to hell with

it.” Turner then requested to call his girlfriend, and the interview ended. Police

immediately arrested Turner and booked him on two counts of first degree murder.

A grand jury indicted Turner on July 1, 2011, on two charges of first degree

murder. Turner was arraigned on July 26, 2011, and entered a plea of not guilty. On

September 12, 2011, the state filed notice of intent to seek the death penalty and

designated two separate statutory aggravating circumstances. In the notice of intent,

the state specified that the prosecution was predicated upon violations of R.S.

14:30(A)(1) and (3) (that the defendant had specific intent to kill or to inflict great

bodily harm and was engaged in the perpetration of armed robbery; and, that

defendant had the specific intent to kill or to inflict great bodily harm upon more

than one person), and that it would allege the corresponding statutory aggravating

circumstances of La. C.Cr.P. art. 905.4(1) and (4) at the sentencing phase (the

offender was engaged in the perpetration or attempted perpetration of armed

robbery; and, the offender knowingly created a risk of death or great bodily harm to

more than one person).

The defense filed several pretrial motions, including a motion to declare La.

C.Cr.P. art. 905.2(B) unconstitutional; a motion to declare the death penalty

unconstitutional; a motion to bar death qualifications and declare La. C.Cr.P. art.

798 unconstitutional; and, a motion to exclude death as a possible punishment. The

trial court heard argument on these motions and denied them on October 11, 2011,

without reasons.

9

The defense also filed a motion to suppress Turner’s statement, alleging that

Turner did not knowingly and intelligently waive his rights based on misleading

statements by Detective Harden when administering Turner’s Miranda rights that

downplayed the seriousness of the situation. Defendant also argued that the search

of his home was unconstitutional due to a defective warrant, and thus the evidence

seized from his home should be suppressed. Additionally, defendant argued that

because he only confessed to the murders after being presented with the illegally-

obtained evidence, his statements were fruit of the poisonous tree and should be

suppressed on those grounds.

The court held a hearing on defendant’s motion to suppress his confession

over two days. The state played the roughly six hours of video footage of the actual

interview (fast-forwarding through the times Turner was left alone in the room), and

presented the testimony of Detective Harden, Detective Cadarette, Lieutenant

Moore, and Detective Locicero. The witnesses all testified generally that Turner was

cooperative when detectives initially approached him as he reported to work on the

morning after the murders, willingly gave consent for the search of his vehicle, and

that, once transported to the Violent Crimes Unit, he was read his rights directly

from the standard Miranda form, and then knowingly and voluntarily read and

signed the waiver of rights form before questioning. The defense did not call any

witnesses but argued, generally, that Turner had no criminal record and was

unfamiliar with police procedure; that Detective Harden mischaracterized his

Miranda rights as “just a formality;” that Detective Moore threatened defendant with

the death penalty and the prospect of his unborn child seeing a newsflash of his lethal

injection in the future; and, that promises were made that confessing could save his

life. The court denied the motion without reasons.

10

On May 14, 2012, the court heard arguments on defendant’s motion to

suppress the physical evidence recovered from his residence. The state pointed out

that the defense did not allege any intentional misrepresentations in the affidavit

accompanying the application for a search warrant; nonetheless, the state argued,

even omitting the alleged misrepresentations in the affidavit, probable cause existed

to obtain a search warrant for Turner’s residence due to the fact that he was the last

person seen with the victims alive, and the very short timeframe in which the

murders occurred thereafter. The trial court, after reviewing a redacted affidavit,

agreed with the state and denied the motion.

Defendant sought supervisory writs on both rulings, which this Court

ultimately denied. State v. Turner, 12-2030 (La. 1/11/13), 106 So. 3d 554.

While the writ application was pending before this Court, the defense filed a

supplemental motion to suppress, alleging the state intentionally misrepresented

information contained in the search warrant affidavit. The trial court held an

additional hearing on defendant’s motion to suppress on January 9, 2013. 5 As set

forth in detail below, Detective Locicero testified that he prepared the affidavit

accompanying the application for the search warrant of Turner’s residence and that

the affidavit contained information that a vehicle matching the description of

Turner’s vehicle was seen “circling” the block on which the Carquest was located

three times after 3:00 p.m. Though Detective Locicero did not view the video, Baton

Rouge City Police Detective Phillip Chapman did view the footage and testified at

the hearing. Chapman, however, could not definitively state whether the vehicle was

a BMW, nor could he see a driver or license plate. Defendant argued that, at best,

5

The hearing was continued to February 25, 2013.

11

the video evidence shows three different instances in which a white car drove down

a street, not that it was his car. At the conclusion of the hearing, the trial court denied

the motion. Defendant applied for supervisory writs, which this Court denied. State

ex rel. Turner v. State, 14-0225 (La. 2/28/14), 134 So. 3d 1182.

After several continuances, 6 jury selection began on April 13, 2015, and

concluded on April 29, 2015. Over 150 prospective jurors were examined for death

qualification, after which the remaining jurors were subjected to general voir dire.

Each side exercised all of its peremptory challenges.7 Defendant raised eight Batson

v. Kentucky, 476 U.S. 79 (1986), challenges during voir dire, which the trial court

denied. A jury of 12 with two alternates was selected.

Opening statements began on April 30, 2015. The state described how it

believed the crime occurred, summarized the evidence it would present, and

explained how that evidence established the elements of the crime. The defense

urged the jury to hear all of the evidence and consider whether defendant was

actually a cold-blooded killer or a young man who made an impulsive mistake, and

to be fair and keep an open mind.

The state called 26 witnesses during its case-in-chief, including the victims’

wives, investigating officers, crime scene technicians, and experts in the fields of

ballistics, DNA comparison, and latent fingerprint analysis. In addition to the

portions of the investigation detailed above regarding the interview of Turner and

6

Concerning one of defendant’s motions to continue, which was based on funding issues with the

public defender board and inability to procure experts, the court of appeal reversed the trial court’s

denial of the motion to continue. State v. Turner, 14-0369 (La. App. 1 Cir. 4/2/14).

7

Defendant was granted an additional peremptory challenge (for a total of 13) by the court of

appeal when it reversed the trial court’s denial of defendant’s challenge for cause to potential juror

James Walter Green, who was at that time the United States Attorney for the Eastern District of

Louisiana. State v. Turner, 15-0647 (La. App. 1 Cir. 4/24/15).

12

events unfolding contemporaneously therewith, the evidence and testimony

produced at trial revealed that Turner had visited the Government Street Carquest

the day before the murders while Leroy Moore was working. He asked Moore about

how deposits were made and if they were handled personally, or if they were handled

with the use of an armored truck service. Deputy Jackie Hohense, a latent fingerprint

examiner, testified that none of the prints lifted from the crime scene were matched

to Turner, and that there were some unidentified prints from the scene without a

known match. Amber Madere, another latent print analyst, testified that no latent

prints were obtained from the gun recovered from behind the Carquest. Crime scene

investigator Amie Genola testified that she attended the autopsies of both victims,

and took photographs of their injuries. The state introduced multiple photographs of

Mr. Gurtner’s body, showing each of 12 bullet wounds, over a defense objection.

Jeff Godeau, the firearms and crime supervisor for the Louisiana State Police

Crime Lab, also testified. Mr. Godeau analyzed nine cartridges from the scene, and

nine bullets, some from the victims’ bodies and some from the scene. He testified

that all of the bullets were fired from the .38 caliber firearm found outside the

Carquest. The state also called Dr. Bruce Wainer, former forensic pathologist for the

East Baton Rouge Parish Coroner’s Office. Dr. Wainer explained the nature of the

victims’ injuries and noted that Mr. Chaney died from a single gunshot wound to the

back of his head fired at close range, while Mr. Gurtner was shot 12 times, mostly

in the back. The gunshot to Mr. Gurtner’s left flank was fatal.

Jeremy Dubois, an expert in forensic DNA analysis, also testified for the state.

He testified that he received the clothing that was found in the trashcan outside of

defendant’s residence and that all the items were negative for the presence of blood.

Multiple areas of the store were swabbed for DNA, and of the samples that contained

13

sufficient material to conduct an analysis, Turner was excluded as a contributor.

With respect to the gun found behind the Carquest, a mixture of at least two

individuals’ DNA was found on the trigger and slide, including that of an

unidentified person. Turner could not be excluded as a contributor, though both

victims, all Gurtner family members, Mr. Chaney, and Leroy Scales were excluded.

Leroy Moss, defendant’s uncle, also testified for the state. He stated that

Turner called him on the afternoon of the shootings and thanked him for everything

he had done for him. Turner called back later and asked if Leroy had heard about the

shootings. Melanie Williams, defendant’s girlfriend at the time of the shootings and

mother of defendant’s child, also testified. She stated that Turner picked her up on

the afternoon of March 27, 2011, around 3:30 or 4:00 p.m., and that they ran errands

and ate at Applebee’s. Turner later dropped her off at her parents’ house, and

eventually called her later that night and seemed “sorry for what happened” and

“nervous” about what had happened at Carquest. He did not admit to Melanie that

he was involved in the shootings. Melanie also spoke to Turner the next morning

while he was on his way to work and he seemed normal. She testified that she knew

Turner to carry a gun.

The state also played for the jury the 911 call made by Elizabeth Gurtner upon

finding her husband’s body, and the 11-hour video of Turner’s interview/confession.

The defense did not present any witnesses during the guilt phase and rested

on May 4, 2015.

In closing, the state argued that the evidence proved that Turner murdered two

innocent victims in cold blood, all because of greed for money. The defense

presented a short closing argument, urging the jury to find that Turner did not plan

the murders and that they were the result of an impulse of a desperate man. As such,

14

the defense argued, responsive verdicts of second degree murder were appropriate.

On rebuttal, the state argued that the murders were motivated by pure greed and

committed in cold blood, and that the jury should return verdicts of guilty as charged.

Later that day, the jury found Turner guilty as charged of two counts of first degree

murder.

The penalty phase began on May 5, 2015. The state presented victim impact

testimony through six witnesses: the wives of both victims; Mr. Gurtner’s son; and

Mr. Chaney’s stepfather, son, and daughter.

The defense called four former teachers/coaches of defendant; the father of

one of defendant’s ex-girlfriends; Warden Grimes from the East Baton Rouge Parish

Prison; prison/inmate classification expert Jim Aiken; and 11 different current or

former relatives of defendant, including defendant’s older brother, Demarcus Moss,

his mother, Melissa Moss, his father, Lee Turner, Sr., and his maternal grandmother,

Debra Gilbert. Generally, the teachers and coaches described Turner as a quiet and

reserved child with a talent for drawing. Warden Grimes described the faith-based

program in which Turner was involved, and noted that he had no disciplinary “write-

ups” during the years he had been in custody at the parish prison. Mr. Aiken testified

that Turner was a “compliant inmate” and took well to the structure of prison; he

further testified that Turner could be safely maintained in a prison like Angola.

Defendant’s family members detailed his tumultuous childhood. Defendant’s

father was largely absent from his early life, and he was raised primarily by his

mother, Melissa Moss. Melissa suffered from mental health issues, and tried to kill

herself when she was eight months pregnant with defendant by jumping into a pool.8

8

She was rescued and no physical harm was apparently done to Melissa or her unborn child.

15

She had a series of boyfriends throughout Turner’s childhood, some of whom were

abusive to her, often in Turner’s presence. Melissa also on occasion both verbally

and physically abused and was neglectful of Turner.

Relatives stated that Melissa could be a good mother at times, but put her

children second whenever there was a man in her life, which was often. Turner’s

aunt explained that the children of any current man in Melissa’s life were favored,

while the other children were pushed aside. Turner also took on a parental role for

his younger siblings, even though he was young himself. Due to these increased

responsibilities, according to relatives, he had little time to truly have a childhood.

Defense counsel also presented Dr. Mark Cunningham, a clinical and forensic

psychologist, who gave lengthy testimony. He generally opined that Turner suffered

from adverse developmental factors and transgenerational dysfunction resulting

from the unsteady and often un-nurturing environment in which he was raised.

Closing arguments in the penalty phase occurred on May 8, 2015. The state

focused on the innocence of the victims, the impact their deaths had on their families,

and the callousness of defendant’s actions. The state urged the jury not to show

defendant any mercy, because he had not given the victims that courtesy. The

defense urged the jury to see defendant as a person and to find a place in their hearts

to spare his life and show him mercy. The defense highlighted defendant’s lack of

prior criminal history, his clean disciplinary record while in prison, and the frailties

of his life.

The state responded by wondering aloud if Mr. Gurtner begged for his life,

like Turner’s defense was doing now. The state again argued that defendant showed

his victims no mercy or compassion, and thus neither should the jury show him any.

16

Later that day, the jury returned sentences of death, having found the

aggravating factors of creating a risk of death to more than one person and engaging

in the perpetration of or attempted armed robbery both proven beyond a reasonable

doubt. Defendant filed a motion for new trial, arguing several issues, which he urges

again in this appeal, as well as others not raised here, including several allegations

of prosecutorial misconduct. The court denied the motion and all claims raised

therein. Immediately thereafter, Turner waived his sentencing delay, and the court

sentenced him to death by lethal injection. Turner timely filed this appeal.

ARGUMENTS

We now discuss the defendant’s assignments of error.

VOIR DIRE ASSIGNMENTS OF ERROR

Assignment of Error No. 1

Defendant argues he was denied his constitutionally protected rights to a full

voir dire when, in the middle of voir dire, the trial court issued a ruling that prevented

defense counsel from inquiring into prospective jurors’ ability to fairly consider

voting for a life sentence in a case involving a double murder committed during the

course of an armed robbery. We agree with the defendant based on the facts of this

case, and reverse his sentences of death. For the reasons explained below, his

convictions are upheld.

The purpose of voir dire is to determine the qualifications of prospective jurors

by testing their competency and impartiality and to assist counsel in articulating

intelligent reasons for exercising cause and peremptory challenges. State v. Stacy,

96-0221, p. 5 (La. 10/15/96), 680 So. 2d 1175, 1178. The standard for determining

whether a prospective juror may be excluded for cause because of his views on

capital punishment is whether his views would “prevent or substantially impair the

17

performance of his duties as a juror in accordance with his instructions and his oath.”

Wainwright v. Witt, 469 U.S. 412, 424 (1985). See Witherspoon v. Illinois, 391 U.S.

510 (1968) (holding that a prospective juror who would vote automatically for a life

sentence is properly excluded); State v. Sullivan, 596 So. 2d 177 (La. 1992), rev’d

on other grounds, Sullivan v. Louisiana, 508 U.S. 275 (1993).

In a “reverse-Witherspoon” context, “a potential juror who indicates that he

will not consider a life sentence and that he will automatically vote for the death

penalty under the factual circumstances of the case before him is subject to a

challenge for cause by the defendant.” State v. Robertson, 92-2660 (La. 1/14/94),

630 So. 2d 1278, 1284. See Morgan v. Illinois, 504 U.S. 719, 728-29 (1992) (holding

that venire members who would automatically vote for the death penalty must be

excluded for cause, reasoning that any prospective juror who would automatically

vote for death would “fail in good faith to consider the aggravating and mitigating

circumstances,” and thus violate the impartiality requirement of the Due Process

Clause). 9 This is because jurors who cannot consider both a life sentence and a death

sentence are “not impartial,” and cannot “accept the law as given . . . by the court.”

La. C.Cr.P. art. 797(2),(4); State v. Maxie, 93-2158, p. 16 (La. 4/10/95), 653 So. 2d

526, 534-35. In other words, if a prospective juror’s views on the death penalty, as

indicated by the totality of his responses, would “prevent or substantially impair the

performance of their duties in accordance with their instructions or their oaths,”

whether those views are for or against the death penalty, he or she should be excused

for cause. State v. Taylor, 99-1311, p. 8 (La. 1/17/01), 781 So. 2d 1205, 1214; State

v. Hallal, 557 So. 2d 1388, 1389-90 (La. 1990).

9

The “substantial impairment” standard also applies to reverse-Witherspoon challenges. Morgan,

504 U.S. at 732.

18

Although the accused is entitled to full and complete voir dire, La. Const. art.

I, § 17, the scope of counsel’s examination rests within the discretion of the trial

judge, and voir dire rulings will not be disturbed on appeal absent abuse of that

discretion. La. C.Cr.P. art. 786; State v. Robertson, 92-2660 (La. 1/14/94), 630 So.

2d 1278, 1281. The right to a full voir dire does not afford the defendant “unlimited

inquiry” into possible prejudices of prospective jurors, i.e., their opinions on

evidence or its weight, hypothetical questions, or questions of law that call for

prejudgment of facts in the case. State v. Ball, 00-2277, p. 23 (La. 1/25/02), 824 So.

2d 1089, 1110. Louisiana law provides that a party interviewing a prospective juror

may not ask a question or pose a hypothetical that would demand the juror’s pre-

commitment or prejudgment as to issues to be resolved in the case. Id.; see also, e.g.,

State v. Williams, 89 So. 2d 898, 905 (La. 1956) (“It is not proper for counsel to

interrogate prospective jurors concerning their reaction to evidence which might be

received at trial.”); State v. Smith, 45 So. 2d 617, 618-19 (La. 1950) (“[H]ypothetical

questions and questions of law are not permitted in the examination of jurors which

call for a pre-judgment of any supposed case on the facts.”).

This Court’s jurisprudence therefore provides that counsel may not detail the

circumstances of the case and then ask jurors to commit themselves to a particular

verdict in advance of trial. However, a prospective juror must know enough about

the circumstances of the case to indicate whether he or she will be able to return a

sentence of death. State v. Coleman, 2014-0402 (La. 2/26/16), 188 So. 3d 174, 208-

09, cert. denied, 137 S. Ct. 153 (2016). If a juror is not able to return a sentence of

death, he or she is not competent to sit as a capital juror, even where the juror may

also express an abstract or theoretical ability to consider both death and life

sentences. Id. (citing State v. Williams, 96-1023, p.11 (La. 1/21/98), 708 So. 2d 703,

19

714).10 Thus, while seeking to elicit whether a prospective juror is capable of

remaining impartial in the case at hand, counsel must maintain a careful balance of

providing jurors with enough information to indicate whether they can return a

sentence of death, but not enough that it becomes a “pre-commitment” to a particular

outcome.

In order to understand the trial court’s erroneous ruling here, an examination

of the larger context of voir dire is required. The voir dire process was extensive,

consisting of more than 150 jurors questioned over 13 days. The trial court

conducted voir dire with an unusual structure. Death qualification of juror panels

was interspersed with general voir dire of remaining jurors. After panels 1-3 were

death-qualified, there was one panel of general voir dire with the jurors from those

panels who had not been excused for cause. The process repeated with panels 4-9,

10-11, and panel 12.

On the sixth day of voir dire, during death-qualification of panel 6 and the

individual questioning of prospective juror Joette Leblanc, defense counsel posed

the following hypothetical and the received the following answers:

Q: Going back to that hypothetical case where someone has

intentionally killed two completely innocent victims during an

armed robbery. He wanted to kill not just one but two completely

innocent victims. No defenses whatsoever. He was old enough.

He was an adult. He knew right from wrong. In that case, under

those circumstances, from what I hear you saying is that the death

penalty is the only appropriate penalty for you, for you. Is that

fair?

A: Yes.

10

In Williams, this Court held: “We, like our sister states who have addressed the issue, hold that

when a potential juror indicates his or her attitude regarding the mitigating circumstances would

substantially impair his or her ability to return the death penalty, then that juror is properly

excludable for cause.” Williams, 96-1023, pp. 8-10, 708 So. 2d at 712-14. The Court further found

that two prospective jurors who initially indicated theoretical support for the death penalty could

not have returned a death verdict because of the defendant’s age and were therefore unfit to serve

on the capital jury in that case. Id.

20

Q: And that life without parole, in that circumstance, is not enough

punishment. Is that fair?

A: Yes.

The state objected to defense counsel’s questioning, and a bench conference

occurred. The state argued defense counsel was “requiring a commitment” from the

jurors, and was doing so after presenting “the worst possible scenario with no

mitigation” to jurors. The state continued: “He’s boxing them in to saying this is

what I’m going to do and then trying to use it to get people for cause. So I guess my

objection is with Ms. Leblanc and future voir dire.”

Defense counsel responded, arguing that this Court’s decision in Robertson

allows questioning concerning “category-specific cases.” The court eventually

concluded that more discussion of Robertson was necessary, and that they would

proceed with Ms. Leblanc’s questioning but then take a break. The state attempted

to rehabilitate Ms. Leblanc, after which defense counsel challenged her for cause,

and argued that “Ms. Leblanc will not consider a life sentence in a situation where

we have an intentional killing of two completely innocent victims during an armed

robbery.” The court granted the defense challenge for cause and continued voir dire.

Later that same day, during individual questioning of potential juror Stephanie

Jacque (also part of panel 6), defense counsel presented a hypothetical to Ms. Jacque

nearly identical to the one posed to Ms. Leblanc quoted above. 11 Ms. Jacque

11

The hypothetical was as follows:

Let’s say you’re selected to serve on a hypothetical first degree murder case and you and

your fellow jurors in that hypothetical case have considered all the evidence and found that

that defendant intentionally killed two completely innocent victims during an armed

robbery and you and your fellow jurors have considered any possible defenses but it was

not in self-defense. No one forced him to do it. He knew right from wrong. He was an

adult. It was not an accident. In that case, in that hypothetical case, what is the appropriate

penalty for you? Under those circumstances what is the appropriate penalty for you? You

have two choices: life without parole and death penalty.

21

expressed some confusion and, as defense counsel attempted to clarify, the court

interrupted to ask, “[A]re you asking her after the chance to hear any mitigating

circumstances and aggravating circumstances?” At a bench conference, at the urging

of the state, the court instructed defense counsel:

You need to rephrase it to include the part that if there are any

mitigating or aggravating. You don’t have to say there will be. But if

there was any presented, what would her position be. . . You’re asking

for a commitment at that point before she hears anything in the penalty

phase. Y’all convicted him of this crime, intentional robbery of two

people. What is the appropriate penalty . . . You’re not getting the

question clear that you want an answer before they even consider any

other mitigating—evidence of any mitigating circumstances so that

they’re clear this is not the point they’re going to have to decide.

Defense counsel replied that he understood, and Ms. Jacque’s voir dire continued;

she was ultimately challenged for cause by both sides, and the court granted the

challenge. Voir dire continued the rest of the day, largely without incident. At

various points, both sides informed potential jurors that the case at hand dealt with

two victims killed during an armed robbery.

The following morning (the seventh day of voir dire), before beginning death-

qualification voir dire of panel 8, the court issued the following warning:

I have been thinking about jury selection and how it’s going in this case,

and I want y’all to know we are not going to go into the facts of this

case. We are not going into the facts and then ask them what would you

do. That probably is going to affect your hypothetical question. The

problem is its confusing to the jurors. They hear all of one side, nothing

good. They hear the specific facts of this case, and the fact you say it’s

a hypothet doesn’t mean it’s not the facts of this case. . . . but it’s asking

them to prejudge this case.

Defense counsel responded in part by explaining that his purpose in proposing

the hypotheticals was to “make sure they understand how serious it is and how this

is an intentional killing.” The court then asked for authority that supported counsel’s

position that, as phrased by the court, “says you’re entitled to go into the facts of the

22

case[.]” After directing the court’s attention to State v. Robertson,12 the following

exchange took place:

Court: . . . This is really confusing to the jurors, you put them in

the position of being able to deliberate, and all they have

is one side, and you’re asking them to commit, and you’re

asking them—

Defense: When you say commit—

Court: —Could you consider it, and maybe they are already doing

the mental gymnastics in their head, and they deliberated

with themselves, and they say, you know what, I think in

that case, I think I would have to vote for the death penalty.

That’s what this—that’s what this whole process is about,

to consider the facts of the case, everything in the penalty

phase, and them come up with the appropriate penalty. The

fact that that’s [sic] what they come down to, you’re

asking them to prejudge this case and tell you how they

are going to vote in this case; although, it is the worst

possible scenario because you’re leaving out any

mitigating circumstances.

Defense: Well, the way I deal with mitigating circumstances is after

I get their feeling about the death penalty for those

circumstances, I ask them would it matter to you that he

was young. Would it matter to you that—his background,

his childhood.

Court: I have heard the question over and over. . . . the problem

is you’re talking about the exact facts of this case. You’re

asking them to commit. How would you vote. You can call

it anything you want. Would you think that’s the only

appropriate—well, that’s the whole purpose when they go

back there and deliberate. They figure out what the

appropriate penalty for this case is. So you’re asking them

to jump ahead and put that cart before the horse, as you

have been referring to it, and to tell you what they are

going to do, based on this worst possible case scenario. . .

Defense: . . . Again, Your Honor, I’m trying to get not facts of the

case so much as I’m trying to get the category, the category

of armed robbery and intentional killing of two completely

innocent victims.

12

The transcript reads “State versus Robinson.” Presumably, based on defense counsel’s argument

he made the day prior as well as defendant’s brief submitted to this Court, defense counsel meant

State v. Robertson, and thus “Robinson” was either a mistake or transcription error.

23

Court: . . . I said we are not going to talk about the facts of this

case. They already know it’s a double homicide.

. . .So [the state] can’t tell them the specific facts they are

going to prove, and you know, I haven’t heard [the state]

say cold-blooded, completely innocent victims, and all

that stuff, but that applies to everybody. We are not going

to discuss the facts. Nobody is going to be allowed to get

these jurors to commit or prejudge this case.

The court noted the defense’s objection to its ruling, and voir dire resumed.

The issue arose again, however, when defense counsel attempted to include the

armed robbery aggravator in questioning potential juror Lisa Sutherland. Defense

counsel presented the following hypothetical:

They are telling you it’s an armed robbery and two people are dead, and

I have been using the example that the guy goes into a bank to steal, rob

the bank, and ends up shooting a couple of people. That’s the facts, just

use that as an example. In that situation, you have been on the jury. You

have heard all of the evidence. Y’all decided they proved it beyond a

reasonable doubt that it was first degree murder and that you have now

voted for first degree, that it happened during an armed robbery, and

more than one person was killed. What in that—[interrupted by the

state’s objection].

After objection, counsel asked the court if “there is another fact pattern you

would like me to use instead?” The court responded as follows:

[T]here’s nothing that indicates they actually know it’s an armed

robbery. That’s the problem. You are giving them all the facts . . . . And

then asking what you’re going to do. Is there anything that matters to

you? By the way, we haven’t even finished issuing subpoenas yet. So

tell us what you want to hear, this is not a menu, all right, but the bottom

line is you’re not allowed to go into the facts of the case. So you’re

telling them it’s a double homicide, which I told them when they came

in, they know that. I didn’t tell them it’s an armed robbery. They

haven’t gone into the circumstances. So the fact you change it from an

autoparts store to a bank is not significant.

....

Here is the deal. Nobody is allowed to go into the facts. They don’t

need to know it’s an armed robbery. They already know it’s a double

homicide. We tell them that––or I tell them that when they come in.

24

The question is can they fairly consider both possible penalties, weigh

all the evidence, weigh the mitigating circumstances, weigh what is

presented to them and make a determination and not automatically

choose one or the other. (Emphasis added.)

The court noted defendant’s objection and the remainder of voir dire for all of the

remaining panels (including four more panels of jurors and three more panels of

general voir dire) was conducted in accordance with the court’s ruling.

Defendant argues that the court erred in prohibiting any reference to the state’s

allegation of armed robbery and that, as a result, the remainder of defense counsel’s

voir dire was unduly restricted. (“Here’s the deal. Nobody is allowed to go into the

facts. They don’t need to know it’s an armed robbery.”) He points out that eight of

the jurors ultimately seated were selected after the court’s ruling was in place.

Moreover, defendant argues that, without the ability to conduct a full voir dire

following the court’s ruling, he was also unable to intelligently use his remaining

peremptory challenges to remove unfavorable jurors, because he was forced to use

them to remove jurors who might have otherwise been disqualified for cause had

counsel been able to question them concerning their views on the specific category

of first degree murder defendant was facing. Defendant argues that the court’s ruling

and subsequent ramifications amount to reversible error.

We interpret the trial court’s ruling in two parts. The first occurred on the

afternoon of the sixth day of voir dire and reiterated on the morning of the seventh

day. At both of these points, the court primarily seemed to take issue with defense

counsel questioning prospective jurors in a way that asked them to pre-judge or

commit to a certain outcome by, for example, presenting certain specific facts and

then inquiring, “under those circumstances, what is the appropriate penalty for you?”

as counsel had done the day before. As the court explained on the morning of the

25

seventh day of voir dire, “[T]he problem is . . . you’re asking them to commit. ‘How

would you vote[?]’” The second part of the ruling came later that day, when the

judge took issue with defense counsel’s use of one of the state’s allegations, namely,

armed robbery, in its questioning: “Nobody is allowed to go into the facts. They

don’t need to know it’s armed robbery.” (Emphasis added.)

The first part of the court’s ruling, instructing defense counsel that he could

not present a juror with facts and then ask the juror to pre-commit to a verdict,

comports with well-settled jurisprudence of this Court generally disallowing

questions which give detailed case-specific facts to the jury and then ask a juror to

pre-judge the case. See, e.g., Ball, 00-2277, p. 23, 824 So. 2d at 1109-10 (trial court

correctly forbids questions the evident purpose of which is to have prospective juror

pre-commit himself to certain views of the case).

The second portion of the ruling is where the trial court erred. As this Court

explained in Robertson:

[A] potential juror who indicates that he will not consider a life sentence

and that he will automatically vote for the death penalty under the

factual circumstances of the case before him is subject to a challenge

for cause by the defendant. It is irrelevant that the potential juror can

conceive of different factual situations where he might consider voting

for a life sentence where his unwillingness to consider such a sentence

in the case before him is clear.

630 So. 2d at 1284. It logically follows from the plain language of Robertson, then,

that a defendant is entitled to inquire of a potential juror whether, under the more

factual circumstances of the case before her, she would automatically vote for the

death penalty. See, e.g., Morgan, 504 U.S. at 724 n.3 (“The ‘reverse-

Witherspoon’ question may not be the only means of ensuring defendant an impartial

jury, but it is certainly the most direct. The best way to ensure that a prospective

juror would not automatically vote for the death penalty is to ask.”) (citation

26

omitted). The crucial inquiry is the level of specificity permitted in the manner in

which the “factual circumstances of the case” are presented to potential jurors, and

whether, in this case, the court’s ruling improperly curtailed counsel’s ability to

convey those circumstances.

This Court’s decisions in Ball and, more recently, State v. Coleman, 14-0402

(La. 2/26/16), 188 So. 3d 174, are instructive as to the level of specificity allowed

when presenting the factual circumstances of a case to a potential juror during death

qualification. In Coleman, defense counsel informed potential jurors that the state

would present evidence during the penalty phase that Coleman committed a second

murder. The state objected, and the trial court sustained the objection. This Court

quoted with approval the trial court’s reasons for sustaining the objection:

Now, I will agree with [the defense] that you may ask questions

concerning, for example, could you consider imposing a life sentence

if the facts show that the homicide was committed during a burglary?

That’s a permissible question. Could you consider imposing a life

sentence if the facts showed that the defendant attempted to kill more

than one [person]? That’s a permissible question. But you went beyond

that when you went on to say that the state is going to introduce at the

penalty phase evidence to show that a second murder was committed.

That’s far beyond the scope[.] . . .

[T]he defense and the state will be able to ask questions concerning

the general allegations in this case. For example, could you consider

a life [sentence] or a death penalty for someone convicted of murder

involving a burglary? Could you consider imposing a life [sentence]

or a death penalty for someone convicted of a murder involving more

than one? Those are permissible questions. To go beyond that,

particularly when jurors, potential jurors, have consistently shown that

they are open to any and all sentences and to go beyond that any [sic]

ask questions or pose questions of a prospective juror on specific facts

is clearly impermissible under Louisiana law and federal law.

Coleman, 14-0402, pp. 43-44, 188 So. 3d at 208 (emphasis added) (quoting

Crichton, J., then-trial court judge).13

13

The defendant’s death sentence was vacated on other grounds. See Coleman, 14-0402, pp. 78-

80, 188 So. 3d at 229-230.

27

This Court’s decision in Ball also drew a distinction between counsel

presenting jurors with a permissible “one or two circumstances which might play a

critical role in the trial” on the one hand, and, on the other, presenting a detailed

“narrative summary of what the undisputed evidence would show at trial.” 00-2277,

p. 23, 824 So. 2d at 1110. The Ball Court noted that the more descriptive and detailed

the narrative summary, the more likely counsel will run afoul of this Court’s general

rule barring pre-commitment of jurors to a particular result when counsel then asks

whether they would “consider” reaching that result. Id. The detailed narrative

summary that defense counsel used in Ball and which the majority found

problematic is illustrative of questioning that is not permissible: counsel presented

to each death qualification panel the elements of first degree murder as charged,

specifically, that defendant was charged with killing the victim, not as an accident,

but as an intentional act during an armed robbery of a barroom, disclosing that the

victim, a Budweiser beer distributor, coincidentally arrived at the bar during the

robbery, and courageously intervened when he was shot. Id. at 1104, n.12. The level

of case-specific detail used by defense counsel in Ball is well beyond what defense

counsel here presented to the jurors.

The trial court’s ruling in this case categorically prohibiting counsel from

referencing armed robbery to the jury runs afoul of Coleman and Ball. The general

allegations of the case at hand necessarily included the fact that there were two

victims and that the victims were killed during an armed robbery. Indeed, these were

the exact statutory aggravators set forth in the state’s notice of intent to seek the

death penalty. See R.S. 14:30(A)(1), (3). As such, a question posed to potential jurors

that included a reference to the charged element of armed robbery would comport

with the permissible questions quoted above in Coleman. Likewise, a general

28

reference to armed robbery does not come near the level of detail the Court found

problematic in the extensive narrative summary in Ball. The trial court’s blanket

prohibition against referencing armed robbery was therefore an abuse of discretion.

Notably, the court’s erroneous ruling came in response to a question posed by

defense counsel that was also arguably improper, at least insofar as it called for the

juror’s pre-commitment to a verdict in response to an overly specific statement of

facts. Defense counsel’s question that prompted the court’s ruling asked the jury to

consider a set of facts where “a guy goes into a bank to steal, rob the bank, and ends

up shooting a couple of people. That’s the facts, just use that as an example.” This

presentation of facts is more specific than the questions approved of in Coleman,

though not as detailed as the narrative this Court found improper in Ball. However,

instead of merely sustaining an objection to the overbroad nature of defense

counsel’s hypothetical, the court overcorrected when it prohibited any reference that

might inform the jury that the state alleged defendant committed the double murders

during the course of an armed robbery.

Defendant argues that the court’s ruling rendered his right to a “full and

complete voir dire” unconstitutionally inadequate, and points to juror Sherri Harris

as an example of an unqualified juror being seated. Defense counsel asked Ms.

Harris about one of the answers on her questionnaire that indicated she felt the death

penalty was appropriate in certain cases. She stated:

In a case where someone is defenseless like a child or an elderly person

or something like that or something just totally violent, I would not—I

mean, honestly if it’s something horrendous, there’s not even a reason

for a trial. In my mind I already have a decision made that that is not a

good choice for that person’s life. . . .

But in a child or an elderly person or something like that, someone that

totally is innocent and defenseless, then there’s no questions asked.

29

Upon further questioning, she reiterated: “I just think there are some crimes that are

so horrendous that [they] should just automatically get the death penalty.” In

response to the state attempting to revisit some of her answers, Ms. Harris noted that

she would likely be for “automatic death in cases that are very violent, in children,

and blah, blah, blah, you know.” (Emphasis added.) At the conclusion of

questioning, neither side challenged Ms. Harris.

Defendant’s argument that he was unable to effectively question Ms. Harris

during her death-qualification voir dire is persuasive. Ms. Harris made clear that she

felt some crimes automatically deserved the death penalty, particularly very violent

crimes and those involving children, and, to use her own words, “blah, blah, blah,

you know.” Because the trial court ruling prevented defendant from asking whether

a double homicide committed in the course of an armed robbery was one of those

crimes, defendant could not discern whether Ms. Harris would automatically vote

for the death penalty under the circumstances before her. In other words, the defense

could not ask whether armed robbery was one of the “blah, blah, blahs”

circumstances to which Ms. Harris was referring. See Morgan, 504 U.S. at 724 n.3

(“The ‘reverse-Witherspoon’ question may not be the only means of ensuring

defendant an impartial jury, but it is certainly the most direct. The best way to ensure

that a prospective juror would not automatically vote for the death penalty is to ask.”)

(citation omitted). Ultimately, neither side challenged Ms. Harris and she was seated

as a juror. Thus, defendant’s jury included at least one juror who, when presented

with the factual circumstances of his case, might automatically vote for death.14

14

Defendant makes a similar argument in his supplemental brief regarding seated jurors Ashley

Andrews and Patricia Borskey. During voir dire, Ms. Andrews testified that she would

automatically vote for the death penalty for “certain crime[s].” She further stated that she

“wouldn’t just impose the death penalty for any crime. It would have to be a certain crime . . . [a]

certain circumstance.” Because of the trial court’s ruling, defendant was unable to inquire if armed

30

The state responds to defendant’s argument by asserting that the trial court’s

ruling is consistent with jurisprudence that prevents counsel from “going into the

facts and then asking jurors for a commitment.” As discussed above, however,

informing potential jurors that the state alleges defendant to have committed the

double murders during an armed robbery is not an impermissible incursion into the

specific “facts” of the case so as to trigger the prohibition on seeking a pre-committal

or a prejudgment of the case. The state also notes that all of the selected jurors, even

the eight seated after the court’s ruling, demonstrated “absolute neutrality as to their

application of the death penalty.” While it is true that most jurors, when presented

with the more generalized questions of whether they could be impartial and follow

the law, answered in the affirmative, “this [C]ourt has rejected the contention that

unjustified restrictions on voir dire can be cured by a response on the part of a

prospective juror that he will follow the law as given to him by the judge when the

juror is unaware of the complexity of the law and where that law involves such a

basic right of the defendant.” State v. Hall, 616 So. 2d 664, 669 (La.1993) (citing

State v. Lee, 559 So. 2d 1310, 1316 (La. 1990); State v. Brumley, 320 So. 2d 129

(La. 1975)).

robbery combined with double homicide was one of the “certain crimes” to which Ms. Andrews

referred. Though this situation is not as stark as Ms. Harris’s “blah, blah, blah,” defense counsel

may be correct that the one clarifying question they were prohibited from asking by the trial court’s

ruling is the question that could have made a difference in determining whether Ms. Andrews

would automatically vote for death in these circumstances.

The situation with Ms. Borskey is different. Defendant challenged Ms. Borskey for cause, arguing

that she could not take into account mitigating factors and based upon the fact that her son was

murdered. The trial court focused on the murder, noting that “[Ms. Borskey] knows that doesn’t

have anything whatsoever to do with this case” and pointing out that her answers did not indicate

the murder would “even come into play” in her decision-making. The court further focused on

Ms. Borskey’s comments regarding mitigating factors, indicating she would “consider everything

that’s presented to her and make a decision that she thinks is fair, because, in her words, this is

dealing with a person’s life.” Thus, the cause challenge as to Ms. Borskey appears primarily related

to the murder of her son, and only secondarily to the mitigating factors in the Morgan-Witherspoon

analysis, not the aggravating factors. See also infra, Assignment of Error Nos. 3, 4.

31

Considering the above, the trial court’s ruling restricting death-qualification

voir dire rendered the voir dire inadequate as to a critical aspect of defendant’s case:

whether a juror was predisposed to or would automatically vote for the death penalty

if he was found guilty as charged. As such, we find that the ruling was error. See

Morgan, 504 U.S. at 739 (“[T]he inadequacy of voir dire leads us to doubt that

petitioner was sentenced to death by a jury empaneled in compliance with

the Fourteenth Amendment.”) (internal quotation marks omitted).

Remedy. Defendant argues that the curtailing of his voir dire requires reversal

of both his sentences and his convictions. For the reasons that follow, we disagree,

finding the error requires only reversal of defendant’s sentences of death.

As an initial matter, federal law requires reversal of defendant’s sentences in

the context of a Morgan/Witherspoon error. See Witherspoon, 391 U.S. at 521-22

(“[W]e hold that a sentence of death cannot be carried out if the jury that imposed

or recommended it was chosen by excluding veniremen for cause simply because

they voiced general objections to the death penalty or expressed conscientious or

religious scruples against its infliction.”) (emphasis added); 15 Morgan, 504 U.S. at

729 (“[B]ased on the requirement of impartiality embodied in the Due Process

Clause of the Fourteenth Amendment, a capital defendant may challenge for cause

any prospective juror who maintains such views [of voting automatically for the

death penalty]. If even one such juror is empaneled and the death sentence is

15

In declining to overturn the conviction, the Witherspoon Court explained:

We simply cannot conclude, either on the basis of the record now before us or as a matter

of judicial notice, that the exclusion of jurors opposed to capital punishment results in an

unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.

In light of the presently available information, we are not prepared to announce a per se

constitutional rule requiring the reversal of every conviction returned by a jury selected

as this one was.

391 U.S. at 517-18 (emphasis added).

32

imposed, the State is disentitled to execute the sentence.”) (emphasis added).

Because we found the trial court erred in curtailing death-qualification questioning

in violation of Witherspoon, Morgan, and Louisiana jurisprudence, we likewise find

the sentences must be reversed.

Defendant argues that the Louisiana Constitution requires more. Specifically,

La. Const. art. I, § 17 gives the accused “a right to full dire examination of

prospective jurors and to challenge jurors peremptorily.” See also State v. Divers,

94-0756 (La. 9/5/96), 681 So. 2d 320, 323 (“An erroneous ruling depriving an

accused of a peremptory challenge violates his substantial rights and constitutes

reversible error.”); State v. Taylor, 03-1834 (La. 5/25/04), 875 So. 2d 58, 62 (same);

State v. Ball, 00-2277 (La. 1/25/02), 824 So. 2d 1089 (same). This right to “full voir

dire” has been interpreted broadly. In State v. Boen, the Court stated: “The

[i]ntelligent exercise of the right of rejection, by use of those twelve peremptory

challenges, is the meat of the privilege, and can be substantially weakened by a

restriction of questions the answers to which might be regarded as informative of a

juror’s attitude and therefore of vital importance to his defense.” 362 So. 2d 519,

521 (La. 1978). See also State v. Williams, 457 So. 2d 610 (La. 1984) (“The purpose

of voir dire examination is to determine the qualifications of prospective jurors by

testing their competency and impartiality. It is designed to discover bases for

challenges for cause and to secure information for an intelligent exercise of

peremptory challenges.”). The converse of this is that peremptory challenges

exercised unintelligently do not fulfill the criminal defendant’s right to full use of

each peremptory challenge allotted to him.

Defendant claims that he was prohibited from intelligently using his

peremptory challenges because of the trial court ruling. In previous cases where we

33

have reversed both the conviction and sentence related to death qualification of

jurors, the problematic questioning arose out of erroneously denied cause challenges,

which required a defendant to exercise a peremptory challenge. As a result, there

was a clear record of why the juror should have been excused for cause. For instance,

in Robertson, defendant argued that the trial judge erred in denying his challenge for

cause of a prospective juror, thereby requiring him to exercise a peremptory

challenge. 92-2660, 630 So. 2d at 1279. This Court quoted at length the transcript

setting forth the colloquy with the prospective juror and why it was clear the cause

challenge was erroneously denied. Id. at 1281-82. Likewise, in Maxie, the defendant

similarly claimed an error in denying his challenge for cause, depriving him of the

right to use the peremptory challenge on another juror. 93-2158, p. 15, 653 So. 2d at

534. And, as in Robertson, the Court quoted at length a transcript making clear the

prospective juror should have been challenged for cause.

No such record exists here. Defendant points to four jurors (Mary Johnson,

Tammy Salter, Justin McNeely, and Elizabeth Wilson) on whom he used peremptory

challenges when “he reasonably feared [those jurors] held disqualifying bias and

would have been excusable for cause, if counsel had been able [to] pose the required

case specific questions to expose that bias.” This argument is conclusory and

requires speculation beyond which this Court will engage. Defendant points to no

specific response for any juror to indicate he exercised peremptory challenges on

them due to the erroneous restriction on voir dire. Instead, our review of the record

indicates defendant’s challenges to these jurors could have occurred for a variety of

reasons unrelated to the reverse-Witherspoon error.

Defendant initially challenged Ms. Johnson for cause, but after it was denied,

used a peremptory challenge to remove her. Defense counsel made several

34

arguments to the trial court in challenging Ms. Johnson, none of which involved the

issue of aggravating factors. Defense counsel argued to the trial court that Ms.

Johnson had a predisposition toward the death penalty. (“[I] clearly said you have

heard the case, you found him guilty what are you thinking, and she said the death

penalty. She said it twice to me.”) Defense counsel also argued that she could not

consider two of the mitigating factors, including youth. Further, she had previously

served on a capital case in which the jury had decided not to impose the death

penalty, although she stated she voted in favor of death as part of the jury. See also

infra, Assignment of Error Nos. 3, 4.

Prospective juror Ms. Salter’s questionnaire indicated a bias in favor of the

death penalty. For instance, asked to describe her feelings about imposing the death

penalty in a case were a defendant has been convicted of murder, she checked the

box: “I am strongly in favor of the death penalty and feel it should be imposed upon

conviction of murder, with very few exceptions.” She also checked off a box

indicating her feeling that the death penalty was used “not often enough,” writing:

“Someone who plans to kill & carries plan through should suffer the consequences

of death. Also, that is one less person society funds to live.” Further, when asked

whether she would look to the defense counsel to prove the defendant is not guilty,

she checked “Yes” and elaborated “That is their job to prove innocence.”

Prospective juror Mr. McNeely’s questionnaire demonstrated a similar

inclination toward the death penalty. As with Ms. Salter, asked to describe his

feelings about imposing the death penalty in a case were a defendant has been

convicted of murder, he checked the box: “I am strongly in favor of the death penalty

and feel it should be imposed upon conviction of murder, with very few exceptions.”

He also checked boxes that stated: “We are too lenient on criminals; people who

35

break the law deserve harsher punishment”; ”The death penalty is the best crime

preventative”; “People sentenced to death are not executed quickly enough”; and

“People serving life in prison don’t really serve for their life, they get out after __

[left blank] years.” Other questions could also have led defendant to exercise a

peremptory challenge on Mr. McNeely. When asked whether he believed African

American males “commit disproportionately more crimes than males of other ethnic

groups,” he marked “Yes.” He also marked “Yes” when asked “In a murder case

where the death penalty is being sought by the prosecution, do you believe the

accused is more likely to be guilty?”

As to prospective juror Ms. Wilson, defendant’s reason for exercising a

peremptory challenge on her appears to be entirely unrelated to her opinion on the

death penalty and instead related to her status as an attorney. Ms. Wilson initially

sought to be recused for hardship, explaining to the court that she is an attorney and

had depositions, hearings, and a tentative mediation scheduled for the coming weeks,

though she ultimately conceded she could make alternative arrangements. Defense

counsel later asked the judge to revisit the hardship issue, stating: “I don’t have a

challenge for cause, other than what she said about her hardship.” In any event, the

reasons in the record are scarce, if they exist at all.

In short, defendant points to nothing in the record to demonstrate he was

unable to intelligently exercise a peremptory challenge, and thereby lost a

peremptory challenge, as a result of the trial court’s erroneous ruling restricting voir

dire on the aggravating factor of armed robbery. Thus, there was no corresponding

violation of the Louisiana Constitution. As such, the trial court’s error requires

36

reversal of defendant’s death sentences, but does not necessitate a reversal of the

convictions under the Louisiana Constitution.16

Assignment of Error No. 2

Defendant asserts that the trial court erred when it failed to remove a juror

who the defense challenged for cause, contending that the juror was unable to assure

the court that the 1995 murder of her son would prevent her from being impartial.

The grounds for which a juror may be challenged for cause are set out in La.

C.Cr.P. art. 797. The relevant ground raised in this assignment of error is if “[t]he

juror is not impartial, whatever the cause of his partiality.” La. C.Cr.P. art. 797(2).

In ruling on a challenge for cause, the trial court is vested with broad discretion and

its ruling will be reversed only when the voir dire record as a whole reveals an abuse

of discretion. State v. Robertson, 92-2660 (La. 1/14/94), 630 So. 2d 1278, 1280-81;

State v. Ross, 623 So. 2d 643, 644 (La. 1993). “[A] challenge for cause should be

granted, even when a prospective juror declares his ability to remain impartial, if the

juror’s responses as a whole reveal facts from which bias, prejudice or inability to

render judgment according to law may be reasonably implied.” State v. Hallal, 557

So. 2d 1388, 1389-90 (La. 1990). Reversible error is demonstrated and prejudice is

presumed in cases in which a defense challenge for cause was erroneously denied

and the defendant ultimately exhausted his peremptory challenges. La. C.Cr.P. art.

799; Robertson, 92-2660, pp. 3-4, 630 So. 2d at 1280; Ross, 623 So. 2d at 644.17

16

Our review of the record also makes clear that any error during death qualification did not infect

general voir dire. It is unclear from the record whether the trial court’s ruling even extended to

general voir dire. And, moreover, there is no significant difference between general voir dire

questioning before and after the ruling (i.e., there was no attempt before the ruling to question

jurors about the armed robbery aggravator, and no attempt after the ruling either).

17

This rule is different at the federal level. See United States v. Martinez-Salazar, 528 U.S. 304

(2000) (exhaustion of peremptory challenges does not trigger presumption of prejudice arising

from district court’s erroneous denial of cause challenge). However, at the federal level a defendant

may choose whether to exercise a peremptory challenge to cure the error, or to seat the juror and

37

Here, defendant exhausted his peremptory challenges; thus, he need only show that

the trial court abused its discretion when it denied any one of his cause challenges.

In her juror questionnaire, prospective juror Patricia Borskey disclosed that,

in 1995, her son was involved in a fight wherein he was punched, fell and hit his

head, and ultimately died as a result of his injuries. During voir dire, Ms. Borskey

explained the circumstances of her son’s death: her son left a restaurant with a group

of people, some of whom were white, and some of whom were black. Someone

outside the restaurant made a reference to a black girl being with her son’s group.

Ms. Borskey’s son went back to talk to the man, which ultimately resulted in a

physical altercation. Her son was “sucker-punched,” fell, and hit his head on the

street. He was on life support for a week before Ms. Borskey ultimately “let him go.”

Ms. Borskey further explained that her son was “in with some skin heads,” and that

there was a truckload of skin heads coming down to kill the man who had punched

her son. Knowing this, the man turned himself in, but did not go to trial. Defense

counsel first questioned Ms. Borskey concerning whether “the fact that [her] son

was killed” would “be a problem” for her. She responded negatively, explaining that

“My son’s death was a different situation.” Defense counsel later questioned Ms.

Borskey about her ability to remain impartial; specifically whether, after hearing

victim impact testimony, she could still be objective or was going to be “so

emotionally tied in this combination with your son?” Ms. Borskey replied, “I’d like

to say no, but I really can’t answer that question truthfully because I have never done

this.” She was not questioned further on this topic.

then raise the error on appeal if convicted. Id. at 315. In Louisiana, however, a defendant must use

one of his peremptory challenges curatively to remove the juror, thus reducing his remaining

peremptory challenges, or waive any complaint on appeal. See, e.g., State v. Connolly, 96-1680,

p. 8 (La. 7/1/97), 700 So. 2d 810, 818.

38

Defendant challenged Ms. Borskey for cause, arguing that Ms. Borskey stated

that she would not give weight to certain mitigating circumstances such as education

and background, and that she was therefore disqualified for service. Defendant also

argued that Ms. Borskey would be unable to remain impartial in light the fact that

her son was murdered, which remained “emotional for her.” The court denied the

challenge, noting that Ms. Borskey went into “great detail” concerning her son’s

murder, and specifically stated that she knew it had nothing “whatsoever to do with

this case.” The court further noted that she started out by saying that she could keep

an open mind, and that the totality of her answers indicated that she would take this

very seriously and consider everything presented to her.

That a prospective juror personally has been the victim of a crime will not

necessarily preclude that prospective juror from serving on a jury. State v. Dorsey,

10-0216, p. 3 (La. 9/7/11), 74 So. 3d 603, 631. A prospective juror’s relationship to

a person who was the victim of a crime likewise does not disqualify a prospective

juror from serving. See id.; State v. Nix, 327 So. 2d 301, 326 (La. 1975) (prospective

juror’s relationship to a murder victim insufficient to establish cause for excusing

venireman). Given that Ms. Borskey stated her ability to remain impartial, and to

accept and apply the law given by the court, including keeping an open mind and

considering everything presented to her, the record does not support defendant’s

claim that she should have been excused on the basis of her son’s murder.

Assignments of Error Nos. 3, 4

Defendant argues that the trial court erred by denying cause challenges to

three prospective jurors who gave answers during voir dire that indicated they were

unwilling to consider mitigating evidence or fairly consider mitigating evidence

39

under the circumstances of the case. Defendant also contends that this error deprived

him of the right to intelligent exercise of his peremptory challenges.

As discussed above, in ruling on a challenge for cause, the trial court is vested

with broad discretion and its ruling will be reversed only when the voir dire record

as a whole reveals an abuse of discretion. Robertson, 92-2660, 630 So. 2d at 1281;

Ross, 623 So. 2d at 644. A prospective juror should be excluded if his views on

capital punishment would “prevent or substantially impair the performance of his

duties as a juror in accordance with his instructions and his oath.” Witherspoon, 391

U.S. 510; Witt, 469 U.S. at 424; Sullivan, 596 So. 2d 177, rev’d on other grounds,

508 U.S. 275. Jurors who cannot consider both a life sentence and a death sentence

are “not impartial,” and cannot “accept the law as given . . . by the court.” La. C.Cr.P.

art. 797(2),(4); Taylor, 99-1311, p. 8, 781 So. 2d at 1214; Maxie, 93-2158, p. 16,

653 So. 2d at 534-35. A trial court’s refusal to disqualify a prospective juror does

not constitute reversible error or an abuse of discretion if, after further examination

or rehabilitation, the juror demonstrates willingness and ability to decide the case

fairly according to the law and evidence. State v. Howard, 98-0064, p. 7 (La.

4/23/99), 751 So. 2d 783, 795; Robertson, 630 So. 2d at 1281. Further, a prospective

juror who simply indicates a personal preference for the death penalty need not be

stricken for cause. State v. Tate, 01-1658, pp. 17-18 (La. 5/20/03), 851 So. 2d 921,

936; State v. Lucky, 96-1687, p. 6 (La. 4/13/99), 755 So. 2d 845, 850.

We now turn to a discussion of each of the seated and prospective jurors that

defendant challenges in this assignment of error.

A. Patricia Borskey

With respect to seated juror Patricia Borskey, in addition to his above

argument concerning the murder of Ms. Borskey’s son, defendant argues that she

40

would not give meaningful consideration to evidence about defendant’s background

offered in mitigation. Defendant specifically points to the following exchange

between defense counsel and Ms. Borskey:

Borskey: I don’t know that background and education really matters,

because there have been people that were well educated that in

the heat of the moment committed a crime, as well as those that

have come up rough and hard and didn’t get an education that

have done the same type of crime. So I don’t think, myself,

background and education has any sway in it whatsoever.

Defense: And that would be a mitigating circumstance. So you’re saying

you could not consider that?

Borskey: I just don’t think it really would sway.

The state then questioned Ms. Borskey further, asking whether she would be willing

to consider such evidence. She responded that she would be “willing to hear it, be

willing to consider it, but how much it weighs, you know, against one way or the

other would be something I’d have to really put a lot of thought into.”

Despite defendant’s assertions to the contrary, Ms. Borskey clearly stated that

she would consider such mitigating evidence, but that she was not sure how much

weight it would carry for her. The fact that a juror may not give as much weight to

some mitigating circumstances as a defendant would have liked is not an indication

of her unsuitability for service. Coleman, 14-0402, p. 63, 188 So. 3d at 219; see also

La. C.Cr.P. art. 797. Defendant shows no error in the trial court’s denial of his

challenge for cause to Ms. Borskey.

B. Mary Johnson

Defendant argues that prospective juror Mary Johnson had a disqualifying

predisposition toward the death penalty and testified that she would not consider

youth as a mitigating factor. Defendant notes that although Ms. Johnson initially

responded that she could keep an open mind, she later stated that she would be

41

predisposed to the death penalty after finding a defendant guilty of intentionally

killing more than one person, and she could not consider youth or intoxication in

mitigation. Defendant used a peremptory challenge to remove Ms. Johnson.

Ms. Johnson first explained that she had previously served on a jury in a

capital case in which the jury had decided not to impose the death penalty, although

she voted in favor of death. She further stated that despite that experience, she could

keep an open mind about this case and she saw no reason why she could not give

both sides a fair chance. Upon questioning by defense counsel concerning whether

she would be predisposed toward the death penalty if defendant were found guilty

of first degree murder with more than one victim, she replied “not necessarily” and

that “it would be dependent on what all was throughout the trial.” Upon defense

counsel’s rephrasing of the question to indicate the evidentiary/guilt phase of the

trial would be over at that point, Ms. Johnson responded she would “probably” be

predisposed to the death penalty, but she could also consider mitigating

circumstances. When specifically asked if she could consider age, however, Ms.

Johnson responded, “No.” Defense counsel ended questioning by asking, again,

whether Ms. Johnson would be predisposed to the death penalty, to which she

answered “probably, yes.”

The state redirected, and asked whether, just based on a finding of guilty, Ms.

Johnson would “necessarily” impose the death penalty, to which she replied, “no,

not necessarily.” She further confirmed that she would give meaningful

consideration to the age of the offender despite her previous answer to defense

counsel. Upon follow-up questioning from defense counsel, Ms. Johnson again

stated that if defendant was found guilty of first degree murder involving more than

42

one victim, she would “probably” be predisposed to the death penalty but she would

need more facts, and that she is predisposed to the death penalty “most of the time.”

Defendant challenged Ms. Johnson for cause, arguing that she was

predisposed to the death penalty and would not consider two mitigating

circumstances. The court denied the challenge, and found that the only time she said

she was predisposed was when defendant “gave her the worst possible case

scenario[.]”

Ms. Johnson’s answers, while somewhat contradictory, did not rise to the

level of indicating that she would not be able to remain fair and impartial. After the

law was more fully explained to her, she confirmed she would consider the

mitigating circumstances and would keep an open mind. As noted above, a

prospective juror who simply indicates a personal preference for the death penalty

need not be stricken for cause. Tate, 01-1658, pp. 17-18, 851 So. 2d at 936; Lucky,

96-1687, p. 6, 755 So. 2d at 850. Considering all the above, defendant fails to show

the trial court abused its discretion in denying this challenge for cause.

C. Sean Singleton

Defendant argues that the trial court erred in denying his challenge for cause

to prospective juror Sean Singleton, because his answers indicated that his views on

capital punishment substantially impaired his ability to follow the law and give

meaningful consideration to mitigation, including defendant’s youth. Defendant

used a peremptory challenge to remove Mr. Singleton.

Defense counsel asked Mr. Singleton if it would be important to him to

consider the age of the offender in determining whether to vote for life or death. Mr.

Singleton replied, “No. No. The age is not—no, no, that’s not. That’s not a

determinant for me, no. The age hasn’t anything to do with it.” The state then

43

questioned Mr. Singleton again, and, after informing him that he would have to

meaningfully consider all enumerated mitigating circumstances, Mr. Singleton

acknowledged he would consider and weigh all of the circumstances along with all

of the other facts of the case. Specifically with respect to age, Mr. Singleton replied

that “Of course, I would consider it. . . . I’ll consider it but I’m just not going to let

that just be my final, you know, just that helps me to make my mind up.” Defense

counsel followed-up with Mr. Singleton asking whether he could “honestly consider

age, as a reason to spare the life?” Mr. Singleton replied that he could put that “into

the equation” and that he would definitely consider it and do so without hesitation.

After Mr. Singleton became aware that the law required him to give

meaningful consideration to all mitigating circumstances, his answers clearly

indicate a willingness to consider the age of the offender in determining whether to

impose a life sentence or the death penalty. In denying defendant’s challenge for

cause, the trial court stated: “[H]e said he would listen to everything. He did say he

would consider the age. He would consider all of that. Based on his answers as a

whole I deny the challenge.”

The record supports the trial court’s reasons for denying these challenges, and

defendant shows no abuse of discretion in the trial court’s denial of this challenge

for cause. Accordingly, there is likewise no error with respect to defendant’s right

to the intelligent exercise of his peremptory challenges as to these jurors.

Assignment of Error No. 5

Defendant argues that the trial court committed reversible error when it

granted three state challenges for cause to three prospective jurors who disapproved

of the death penalty, despite voir dire testimony from the excused jurors

demonstrating that they could vote for either life imprisonment or the death penalty.

44

La. C.Cr.P. art. 798, 18 which governs cause challenges made by the state, was

drafted to conform to the constitutional requirements of Witherspoon v. Illinois,

supra, which held that a prospective juror who would vote automatically for a life

sentence is properly excluded. The basis of exclusion under La. C.Cr.P. art.

798(2)(b), which incorporates the Witherspoon standard, as clarified by Witt, is that

the juror’s views “would prevent or substantially impair him from making an

impartial decision as a juror in accordance with his instructions and his oath.” 469

U.S. at 424. Witherspoon further dictates that a capital defendant’s rights under the

Sixth and Fourteenth Amendments to an impartial jury prohibits the exclusion of

prospective jurors “simply because they voiced general objections to the death

penalty or expressed conscientious or religious scruples against its infliction.” Id.,

391 U.S. at 522-23.

We will now discuss each of the prospective jurors that defendant challenges.

A. Karla Kiper

Ms. Kiper, in response to initial questioning by the court, stated that she was

not sure whether she could fairly consider imposing the death penalty due to her

moral and religious feelings concerning the death penalty. In response from

questioning by the state, Ms. Kiper further stated that she “would want to stay away

18

La.C.Cr.P. art. 798 provides, in pertinent part:

It is good cause for challenge on the part of the state, but not on the part of the

defendant, that: . . . .

(2) The juror tendered in a capital case who has conscientious scruples against the

infliction of capital punishment and makes it known:

(a) That he would automatically vote against the imposition of capital punishment

without regard to any evidence that might be developed at the trial of the case before

him;

(b) That his attitude toward the death penalty would prevent or substantially impair

him from making an impartial decision as a juror in accordance with his instructions

and his oath; or

(c) That his attitude toward the death penalty would prevent him from making an

impartial decision as to the defendant’s guilt[.]

45

from the death penalty,” and that in her mind the state “would be at a disadvantage

because [she doesn’t] know if [she] could vote for someone to go to the death

penalty.” She further confirmed that she was philosophically opposed to the death

penalty, and reiterated this throughout the remainder of the state’s questioning, as

well as during defense counsel’s questioning.

Despite this, defendant argues that Ms. Kiper’s answers on her juror

questionnaire were much less definitive on the issue. She gave examples in her

questionnaire of when she felt the death penalty would be appropriate, and included

“when the crimes are planned, very violent, and when perpetrators demonstrate no

remorse or regard for life.”

The state challenged Ms. Kiper for cause, and the court granted the state’s

challenge. The court noted that although her questionnaire answers and her in-court

testimony varied a great deal, Ms. Kiper stated that she had thought a lot about it

since she filled out the questionnaire. The court also noted that her body language

and discussion of her moral, religious and philosophical feelings against the death

penalty all implied that she would be substantially impaired in making that decision.

Although Ms. Kiper’s questionnaire answers are slightly less conclusive than

her subsequent in-court statements, the record as a whole supports the trial court’s

ruling. Notably, the court considered Ms. Kiper’s body language as one factor in

determining that she would be substantially impaired in making a decision in the

penalty phase, and defendant does not show that the trial court abused its discretion

in granting the state’s challenge. See, e.g., State v. Wessinger, 98-1234 (La. 5/28/99),

736 So. 2d 162, 176, (no abuse of discretion in granting challenge to juror who

showed “obvious discomfort at the mere thought of possibly having to consider

46

imposing the death penalty on another human being” because answers show that her

beliefs could indeed “substantially impair” her from fulfilling her duties as a juror).

47

B. Sakina Browder

Defendant argues that Ms. Browder would have readily imposed the death

penalty in many types of cases, and that she testified she would consider it in the

type of case at bar. As such, defendant argues that the trial court erroneously granted

the state’s challenge for cause with respect to Ms. Browder.

During the court’s initial questioning of Ms. Browder, she stated: “I could

consider both, but I don’t think it’s my place to decide if somebody live[s] or die[s].”

When the court asked if she could consider the death penalty, she replied “I don’t

think I could. . . . No.” She then qualified that answer to explain that she does not

think she could consider the death penalty “unless it was dealing with a child or

something. But other than that, no, I don’t think I could.” Ms. Browder never

significantly wavered from this view throughout the state and the defense’s

questioning. She clarified that although she told defense counsel she would consider

the death penalty, she would listen to the evidence but would not actually vote for

the death penalty.

The trial court granted the state’s challenge for cause as to Ms. Browder,

noting that although she did say that she could listen to everything, “[t]he bottom

line is she said she could never vote for the death penalty.” The court’s ruling is

supported by the record, and because Ms. Browder indicated that she would

automatically vote for a life sentence except in cases dealing with children or elderly

victims, the trial court did not err in granting the state’s challenge for cause with

respect to Ms. Browder. La. C.Cr.P. art. 798(2)(a); Witherspoon, supra.

C. Karen Allen

Ms. Allen engaged in an in-depth discussion regarding her views on capital

punishment. During the court’s questioning, Ms. Allen stated that something she has

48

often said in her life is that she is “not someone’s judge or jury,” and that she would

“potentially” be an automatic vote for a life sentence. During the state’s questioning,

she explained that she is Catholic and worked for a Catholic-based healthcare

organization. She further stated that her work and religion would potentially prevent

her from returning a death sentence. Upon further questioning, Ms. Allen stated that

she did not know if she could vote for the death penalty. Defense counsel then

questioned Ms. Allen, and in response to the question of whether she could consider

both the death penalty and life without parole, she responded, “Consider both of

those? Yes.” Immediately thereafter, however, when asked if she could vote for the

death penalty if she felt like it was appropriate, Ms. Allen responded that she was

not sure. The court then asked Ms. Allen one final question: “Would your beliefs

substantially impair you in making that decision?” to which Ms. Allen replied, “I

think because of my own experiences as a child, I really think so.”

The state challenged Ms. Allen for cause, arguing that she would be

substantially impaired from voting for the death penalty. Defense counsel countered

by arguing that her religious views were not a reason to disqualify her from service.

The court responded and granted the challenge, giving the following reasons:

[La.C.Cr.P. art. 798] thinks [religious views] is [a reason for

disqualification] when they put in there that’s one of the reasons for a

challenge for cause, if their views would substantially impair them from

making an impartial decision. I mean, that’s what all these other

questions are trying to get to. After listening to all the other answers—

and every question—I know it doesn’t show up on the record because

it’s just a transcript. She was really struggling with her answers on that,

bending over backwards to make sure that she answered it correctly,

according to what she believed. That’s the impression I got from it. And

she specifically told me that she thought it would substantially impair

her. She also explained some of the reasons why. She’s Catholic. She

works for a Catholic charity—or not charity but a healthcare

organization. And I believe her answers. And based on all of them, I

grant that challenge.

49

The record shows that Ms. Allen was uncomfortable with the death penalty,

and repeatedly stated that she was very unsure if she could vote for the death penalty.

Moreover, the trial court appears to have, in part, relied on its own observations of

Ms. Allen’s body language, which is impossible to glean from a transcript. The

totality of her answers supports the court’s finding that Ms. Allen’s beliefs would

substantially impair her ability to be impartial, and defendant fails to show that the

court abused its discretion in granting this challenge. La.C.Cr.P. art. 798(2)(b); see

Wessinger, 98-1234, 736 So. 2d at 176.

Assignments of Error Nos. 6, 7

In these assignments of error, defendant argues the state impermissibly struck

seven black potential jurors based upon their race. As a result, he argues, although

the parish is nearly 50% black, only two black people served on the jury in this

interracial murder case. Defendant raised Batson objections to all seven strikes.

In Batson v. Kentucky, 476 U.S. 79, (1986), the Supreme Court held that it is

an equal protection violation for the state to exercise its peremptory strikes to remove

jurors from the venire panel solely on the basis of the juror’s race. Batson provides

a three-step process to guide courts faced with a claim of racial discrimination in the

voir dire process:

First, a defendant must make a prima facie showing that a peremptory

challenge has been exercised on the basis of race[; s]econd, if that

showing has been made, the prosecution must offer a race-neutral basis

for striking the juror in question[; and t]hird, in light of the parties’

submissions, the trial court must determine whether the defendant has

shown purposeful discrimination.

Foster v. Chatman, --- U.S. ---, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v.

Louisiana, 552 U.S. 472, 476-77 (2008)). 19 The burden of persuasion never shifts

19

In certain instances, where the state volunteers race-neutral reasons for its strike, the court may

collapse steps one and two of the Batson analysis, see Hernandez v. New York, 500 U.S. 352

50

from the opponent of the strike. However, after establishing a prima facie case of

racial discrimination, the burden of production shifts to the proponent of the strike

to articulate race-neutral reasons for its actions. “The neutral explanation must be

one which is clear, reasonable, specific, legitimate and related to the particular case

at bar.” State v. Collier, 553 So.2d 815, 820 (La. 1989) (adopting the holding of

Batson). If a race-neutral explanation is tendered, the trial court must decide whether

the defendant has proven purposeful discrimination. Purkett v. Elem, 514 U.S. 765

(1995) (per curiam) (citations omitted). A reviewing court owes the district judge’s

evaluations of discriminatory intent great deference and should not reverse them

unless they are clearly erroneous. Hernandez v. New York, 500 U.S. 352, 364 (1991);

Batson, 476 U.S. at 98, n.21 (“Since the trial judge’s findings in the context under

consideration here largely will turn on evaluation of credibility, a reviewing court

ordinarily should give those findings great deference.”).

The race-neutral explanation does not need to be persuasive, and unless a

discriminatory intent is inherent in the explanation, the reason offered will be

deemed race-neutral. Purkett, 514 U.S. at 768. The Hernandez court explained:

A neutral explanation in the context of our analysis here means an

explanation based on something other than the race of the juror. At this

step of the inquiry, the issue is the facial validity of the prosecutor’s

explanation. Unless a discriminatory intent is inherent in the [party’s]

explanation, the reason offered will be deemed race neutral.

Hernandez, 500 U.S. at 359.

In this case, after questioning over 150 individuals during Witherspoon death

qualification, 47 panelists remained for general voir dire. Of the 47, 15 were black,

(1991); State v. Green, 94-0887, p. 25 (La. 5/22/95), 655 So. 2d 272, 288 (“A trial judge’s demand

that a prosecutor justify his use of peremptory strikes is tantamount to a finding that the defense

has produced enough evidence to support an inference of discriminatory purpose.”).

51

two were Hispanic, and 30 were white. These 47 panelists were split into five groups

to cover general voir dire topics. Defendant filed a written Batson motion after the

second round of general voir dire, in which he challenged the state’s first six

peremptory strikes, five of which were used to exclude black panelists, and one for

a Hispanic panelist.20

In hearing that motion, the trial court found that the defense had not made a

prima facie showing of discriminatory intent, but because “someone else will be

looking at this,” ordered the state to offer race-neutral reasons anyway. The court

heard the state’s reasons, found them to be race-neutral, and after hearing rebuttal

from defense counsel, denied the challenges.

The state used its seventh peremptory challenge to strike black female Lanell

Craig after the third round of general voir dire, and the defense objected pursuant to

Batson. The court found that defendant failed to make a prima facie showing,

pretermitting any further discussion.

Finally, after the fourth round of general voir dire, the state used its eleventh

peremptory strike on black male Michael Smith, and defendant again raised a Batson

objection. Again, the court did not find a prima facie case of discrimination, but still

ordered the state to provide a race-neutral reason. The court found the state’s reason

race neutral, and denied the motion. The seated jury ultimately consisted of nine

white jurors, two black jurors, and one Hispanic juror.

Notably, while the presence of one minority juror on the panel does not alone

defeat a Batson challenge, it remains a relevant circumstance for the court to

20

The state exercised three peremptory strikes after the first round of general voir dire, and three

after the second round.

52

consider in assessing the prosecutor’s overall intent. State v. Duncan, 99-2615, p. 27

(La. 10/16/01), 802 So. 2d 533, 552.

As an initial matter, with the exception of the Batson motion concerning

Lanell Craig, the court ordered the state to provide race-neutral reasons for each

strike at issue, even though it specifically found that defendant had failed to make a

prima facie case. Thus, although the trial court took the position that the Batson

claims therefore never reached step two in the analysis, the court nevertheless

solicited and considered the prosecutor’s articulated race-neutral reasons (again,

with the exception of Lanell Craig), and, after defense rebuttal, found the state’s

reasons sufficient and effectively ruled on the ultimate issue of discriminatory intent.

Defendant’s argument that the trial court erred in failing to find that defendant had

made a prima facie showing of discriminatory intent––with the notable exception of

Lanell Craig––is therefore moot. Hernandez, 500 U.S. at 359; Green, 94-0887, p.

25, 655 So. 2d at 288.

Each challenge is discussed below.

A. Brandi Guidry

The state used its first peremptory challenge to remove Brandi Guidry, a black

female. In her questionnaire, Ms. Guidry indicated that she is an opponent of the

death penalty, writing “I do not believe in capital punishment” four times; checking

the box next to “I am personally, morally, or religiously opposed to the death penalty

and would never vote for the death penalty under any circumstances;” and indicating

that she would agree if the legislature abolished the death penalty. Despite these

written answers, during the individual death qualification stage, Ms. Guidry

backtracked. When asked if she was against capital punishment, she initially

responded “I said that because I feel like each party has the opportunity to be heard.

53

If after I hear the evidence presented in the trial, I may believe in capital punishment.

I can go either way.” She further indicated that “under the right circumstances,” she

could vote for the death penalty. Under questioning from defense counsel, she

indicated that she had not pre-committed to a penalty. Upon questioning from the

court as to what had changed since the time she filled out the questionnaire, Ms.

Guidry stated that she did not have any information to persuade her towards

imposing the death penalty when she filled out the form and that she would not vote

to give someone the death penalty without any information surrounding the case.

The state challenged Ms. Guidry for cause on the basis of her answers on the

questionnaire. The court denied the challenge because, despite her answers on the

form, she stated in court that she would consider everything.

In offering its reasons for striking Ms. Guidry, the state explained that she was

adamantly opposed to the death penalty on her questionnaire, citing the multiple

times she had written that she did not believe in capital punishment but then had a

“complete about-face after reading an article on the internet.” The state explained

that her drastic change in opinion was the reason for the strike. Though defendant

correctly points out that the state erred in asserting that Ms. Guidry attributed her

change in heart to an internet article,21 and asserts that this misrepresentation by the

state is further evidence of the state’s discriminatory intent, the record supports the

state’s assertion that it decided to strike Ms. Guidry because of the “about-face” in

her stated ability to impose a death sentence.

Defendant further argues that seated white juror Patti Suire also gave answers

21

To the contrary, Ms. Guidry was adamant that nothing in particular sparked the change. It is

possible that the state confused this juror with Ms. Malancon, discussed below, who stated that she

was concerned about the death penalty in part due to the cost, which she read about in an article.

54

that differed from her initial questionnaire, and yet the state accepted her. Defendant

asserts that this disparate treatment of a similarly situated juror is further evidence

of the state’s discriminatory intent. A review of the questionnaire and voir dire

responses reveals that these jurors were not similarly situated. Ms. Suire’s responses

on her questionnaire concerning the death penalty were more equivocal than Ms.

Guidry’s. Whereas Ms. Guidry was adamantly (and repeatedly) opposed to the death

penalty in her questionnaire, Ms. Suire indicated she was merely “unsure.” She

responded she was “not sure” of her opinion concerning the death penalty and the

best reasons to impose the penalty; she believed the death penalty was used

“appropriately;” and checked the box next to the statement “I am not opposed to the

death penalty, but feel it should be used as a punishment for murder in only very

special cases.” During questioning, Ms. Suire responded that she would not be

predisposed to either a life or a death sentence, but that she could vote for death and

would be “comfortable” making that decision if it came down to it.

Thus, though Ms. Suire seemed somewhat unsure (albeit, supportive of the

death penalty) in her responses on the questionnaire, her responses during

questioning merely shored up any uneasiness. Unlike Ms. Guidry, Ms. Suire did not

display a complete reversal of her beliefs between filling out her questionnaire and

answering individual questions during voir dire. Defendant therefore fails to show

any disparate treatment of a similarly situated white juror.

In sum, the record supports the notion that Ms. Guidry did in fact have a

significant change in opinion between her questionnaire and in-court statements. The

totality of Ms. Guidry’s responses left the state with questions as to Ms. Guidry’s

position on the death penalty and whether she could actually vote to impose it. Given

that uncertainty, the state’s decision to excuse Ms. Guidry peremptorily does not

55

appear to have been founded on race, and no discriminatory intent appears to have

been at play. See State v. McCoy, 14-1449, p. 84 (La. 10/19/16), 218 So. 3d 535,

593, rev’d on other grounds, McCoy v. Louisiana, 16-8255, --- U.S. ---, 138 S. Ct.

1500 (2018). Accordingly, defendant fails to show any Batson violation with respect

to Ms. Guidry’s removal.

B. Ernest Watson

The state used its second peremptory challenge to strike Ernest Watson, a

black male. In his questionnaire, Mr. Watson left large portions pertaining to the

death penalty blank. He did indicate that he felt the death penalty was used unfairly,

and that he was personally, morally, or religiously opposed to the death penalty and

would have difficulty making an impartial decision about the defendant’s guilt or

innocence if the death penalty were a possible sentence. During death qualification

questioning, Mr. Watson stated that he would consider both the death penalty and a

life sentence, and that he would not automatically vote for one or the other; that he

felt the death penalty has been used unfairly in “certain cases,” though he could not

give a particular case; he agreed the death penalty was appropriate in certain cases;

he felt that “a person that’s incarcerated for the rest of their life, to me that’s death

anyway;” the death penalty is “kind of let[ting] them off a little bit easier;” he would

be more inclined to go with a life sentence, though it would not be automatic either

way; a person’s youthfulness might sway him towards the death penalty, and he

would not consider a person’s age as a reason to consider a life sentence. Upon

further questioning by the state as to why he felt the death penalty had been used

unfairly, he explained that, years ago, he felt that it was racist.

In offering its reasons for striking Mr. Watson, the state informed the court

that Mr. Watson had indicated on his questionnaire that he was personally, morally,

56

or religiously opposed to the death penalty and would have difficulty making an

impartial decision about the defendant’s guilt or innocence if the death penalty were

a possible sentence; that he left several questions related to the death penalty blank

on his questionnaire; that he could not give any examples of why he thought the

death penalty was used unfairly; and that, several times, he stated that the death

penalty is easier than a life sentence and an “easy way out.”

Considering Mr. Watson’s answers (and lack thereof on his questionnaire) in

their entirety, his responses align with the state’s assertion that he was inconsistent

in his position and support the state’s explanation for striking him. See State v.

Juniors, 03-2425 at pp. 31-32, 915 So. 2d at 318 (Although “an equivocal response

in answer to whether [a prospective juror] could legitimately consider voting for

death . . . may not have risen to the level of a sustainable challenge for cause, it does

support the race-neutral reasons furnished by the State after defense counsel objected

on Batson grounds to the peremptory strike against [the prospective juror].”). See

also Uttecht v. Brown, 551 U.S. 1 (2007) (“[W]hen there is ambiguity in the

prospective juror’s statements,” the trial court is “entitled to resolve it in favor of the

State.”). Defendant shows no error in the court’s denial of his Batson challenge with

respect to Mr. Watson.

C. Morgan Weir

The state used its third peremptory challenge to strike Morgan Weir, a black

female. In her questionnaire, Ms. Weir indicated that the death penalty is “sad” but

sometimes necessary; the best reasons to impose the death penalty are if the person

has shown themselves to be a threat to others multiple times and all other actions

have been exhausted; the best reasons not to impose the death penalty are if the

person is remorseful and takes responsibility for the crime; the death penalty is

57

appropriate when a defendant “just cannot stop harming others;” and she would be

“shocked, yet slightly relieved” if Louisiana abolished the death penalty. During her

death qualification questioning, Ms. Weir stated that she agrees with the fact that the

death penalty is an option for certain murders, including when more than one person

was murdered and when the defendant is not going to stop hurting others; she is open

to considering all aggravating and mitigating circumstances; and, how young the

defendant is would be relevant to her in determining an appropriate penalty.

During her general voir dire questioning, when asked whether she thought it

was “fair” to use an investigation technique where a detective would lie to a suspect

and tell him that another suspect had told police that he was the perpetrator, in order

to extract a confession, Ms. Weir responded by asking: “Can you define fair?” When

told this was about her own personal opinion, Ms. Weir responded that “I guess so,

yeah,” to the question of whether she would consider such an inculpatory statement

as evidence. Later, when defense counsel again asked about opinions on police

officers lying to suspects in order to extract statements, Ms. Weir stated that “I don’t

know. I’m not going to say I’m okay with it.” When defense counsel followed up by

asking whether “it” is something she would consider in making her decision, Ms.

Weir responded, “I’d consider everything, so, yes.”

When instructed to offer its reasons for striking Ms. Weir, the state explained

that “she expressed a great deal of concern through body language as well as her

comments on the record” as to the police interrogation techniques involving

misrepresentations; she asked a question about the difference between first and

second degree murder; she “expressed a very serious concern about imposing the

death penalty and when it might be necessary;” she felt the best reason to impose the

death penalty was if the person was “a threat to others multiple times and all other

58

options have been exhausted”; she felt remorse and taking responsibility were

reasons not to impose the death penalty; and, again, she “she would need to know

this person is not going to stop hurting people” in order to impose the death penalty.

The state further explained its concern that in light of the planned defense mitigation

witnesses, “Ms. Weir’s focus on whether or not this individual will stop hurting

people would take a priority in her mind over what this man actually did.”

As an initial matter, defendant is correct that the state’s characterization of

Ms. Weir as having a “very serious concern” about imposing the death penalty is an

overstatement. Both Ms. Weir’s responses on the questionnaire and during

questioning indicated that she felt the death penalty was appropriate in certain

circumstances. Though she never gave an exhaustive list of what she considered

those circumstances to be, when asked for an example, she responded that one such

circumstance would be when a person is “just not going to stop hurting other

people.” Similarly, on her questionnaire when asked what she felt was the best—but

not the only—reason to impose the death penalty, she answered, “if the person has

shown themselves to be a threat to others multiple times and all other options have

been exhausted.”

Thus, the state’s justification for striking Ms. Weir—because “she would need

to know this person is not going to stop hurting people [in order to vote for the death

penalty],”—is a mischaracterization of her responses, and is unpersuasive as a

genuinely race-neutral justification for striking Ms. Weir. Moreover, despite the

state’s apparent concern over Ms. Weir’s responses, the state never questioned Ms.

Weir concerning these responses, which this Court has found to be an indication of

discriminatory intent. See State v. Harris, 01-0408, p. 8 (La. 6/21/02), 820 So. 2d

471, 476 (that potential jurors are challenged on the basis of a claimed bias, without

59

being questioned about such bias, raises a strong inference of exclusion on the basis

of race alone); State v. Collier, 553 So. 2d 815, 822 n.11 (La. 1989).

Defendant also points out that although the state gave several reasons for

striking Ms. Weir, there were several white jurors (Nella Barnard, Patrice Saucier,

and Malcolm Jarrell), none of whom the state struck, who gave similar answers that

indicated they would want to know a person’s proclivity for violence and risk of

recidivism in determining whether to impose a life sentence or the death penalty.

The fact that the state did not strike similarly situated white jurors is not, alone,

grounds to find the reason for the strike pretextual. See State v. Juniors, 03-2425, p.

31 (La. 6/29/05), 915 So. 2d 291, 317-18 (“[T]he fact that a prosecutor excuses one

person with a particular characteristic and not another similarly situated person does

not in itself show that the prosecutor’s explanation was a mere pretext for

discrimination. The accepted juror may have exhibited traits which the prosecutor

could have reasonably believed would make him desirable as a juror.”) (citing State

v. Collier, 553 So. 2d at 822).

Here, each white juror whom defendant argues gave similar answers differed

significantly enough from Ms. Weir so as to preclude any meaningful comparison

and negate any inference of discriminatory intent. See, e.g., Hebert v. Rogers, 890

F.3d 213, 223 (5th Cir. 2018) (“While a comparator-juror is not required to be

identical in all regards, the comparator-juror must be similar in the relevant

characteristics.”). Patrice Saucier, for example, answered that the best reason for

imposing the death penalty was “if there is no doubt that he/she would impose this

on another victim,” similar to Ms. Weir, but also indicated she thought the death

penalty was used appropriately, failed to list any reasons why the death penalty

should not be imposed or any circumstance when a life sentence without parole

60

would be appropriate, and indicated that she was “generally in favor of the death

penalty and feel it should be imposed upon conviction of murder, with very few

exceptions.” Defendant exercised a peremptory challenge on Ms. Saucier.

Likewise, with respect to seated white juror Mr. Jarrell, the only time Mr.

Jarrell referenced recidivism during his questioning was when the prosecutor asked

him what type of things he would like to hear during the penalty phase to help him

decide whether to impose a life sentence or the death penalty. In response to that

question, Mr. Jarrell listed several things that would be important to him, one of

which was “whether they would be a danger to other people in a correctional system,

that type of thing.” This statement arguably reflects a concern for the state’s ability

to incarcerate a defendant safely, and does not necessarily imply a concern for

general recidivism. Whereas Ms. Weir referenced a defendant’s propensity to

continue harming others more than once in her questionnaire and during voir dire,

this was Mr. Jarrell’s only reference to recidivism. Nonetheless, even if Ms. Weir

and Mr. Jarrell could be considered similarly situated in terms of their views on

recidivism, defendant fails to point out that Mr. Jarrell differed in other ways from

Ms. Weir. Notably, Mr. Jarrell agreed with the statement, “We are too lenient on

criminals; people who break the law deserve harsher punishment.” Additionally,

when asked how he would feel if Louisiana repealed the death penalty, he remarked

that he “prefer[s] the state keep the death penalty as an option.”

Ms. Barnard, a seated white female juror, placed little emphasis on recidivism

or reform in either her questionnaire responses or during voir dire. Ms. Barnard

indicated on her questionnaire that death would be an appropriate punishment for a

premediated murder or a murder of a child, though life imprisonment would be

appropriate for “multiple violent offenses,” and that the best reason not to impose

61

the death penalty is if the murder was “spur of the moment” and the defendant

exhibited no prior violence. In determining whether to sentence someone to life or

death, Ms. Barnard indicated she would want to know: if the crime was “heinous,”

whether the defendant exhibited similar prior behavior or had a pattern of using

excess violence, and if the victim had a weapon or was a child. Thus, although Ms.

Barnard indicated a past pattern of violence and criminal record would be something

she would want to know about and consider in determining the sentence, she never

referenced recidivism or the defendant’s future propensity to harm others. As such,

Ms. Barnard does not appear to have been similarly situated to Ms. Weir on the

issues of recidivism so as to allow for a meaningful comparison.

The state’s additional proffered reason for striking Ms. Weir—that she

“expressed a great deal of concern through body language” and that she made

comments during general voir dire concerning the use of misleading interrogation

techniques—are supported by the record. Moreover, body language has been found

to be a race-neutral reason defeating a Batson claim. See United States v. Bentley-

Smith, 2 F.3d 1368, 1374 (5th Cir. 1993); State v. Seals, 95-0305, p. 8 (La. 11/25/96),

684 So. 2d 368, 374-75, rev’d on other grounds, 00-2738 (La. 10/25/02), 831 So. 2d

828 (noting reasons found acceptable include body language, lack of eye contact,

the failure to make eye contact, juror inattention and juror “not too bright”); State v.

Aubrey, 609 So. 2d 1183, 1187 (La. App. 3 Cir. 1992) (venire woman maintained

excessive eye contact with one of defendants).22

22

Defendant also argues that several white jurors raised similar concerns with interrogation

techniques used but were not struck by the state, and asserts this disparate treatment as further

evidence of discriminatory intent. Because this reason proffered by the state was coupled with the

prosecutor’s observation that Ms. Weir’s body language evinced a level of discomfort with the

police interrogation techniques, and because the credibility of such an observation is impossible

to glean from a cold record, defendant’s argument that white jurors who gave similar responses

were kept by the state is unpersuasive.

62

Defendant focuses on each reason the state gave for striking Ms. Weir in a

vacuum, without acknowledging that Ms. Weir exhibited several characteristics

undesirable to the state, and not just one, that it found excusable in another juror. In

Miller-El v. Dretke, the Supreme Court held that there was no need for jurors to share

every characteristic in order for a comparison to be meaningful. 545 U.S. 231, 306

(2005) (“None of our cases announces a rule that no comparison is probative unless

the situation of the individuals compared is identical in all respects, and there is no

reason to accept one.”). Therefore, despite the state’s mischaracterization of some

of Ms. Weir’s responses and its failure to question Ms. Weir with respect to her

purported “serious concerns” about imposing the death penalty, her voir dire answers

as a whole support the state’s proffered reasons for striking her. Given the broad

discretion Batson affords the trial judge in ruling on the fact-bound question of

whether race was significant in determining who was challenged and who was not,

an appellate court should not substitute its evaluation of the record for that of the

trial court. See Hernandez v. New York, 500 U.S. at 364 (“[T]he trial court’s decision

on the ultimate question of discriminatory intent represents a finding of fact of the

sort accorded great deference on appeal.”); Batson, 476 U.S. at 98 n.21 (“Since the

trial judge’s findings in the context under consideration here largely will turn on

evaluation of credibility, a reviewing court ordinarily should give those findings

great deference.”). Defendant shows no error in the denial of his Batson motion with

respect to Ms. Weir.

D. Nedra Price

The state used its fourth peremptory strike to back strike Ms. Price, a black

female. In her death qualification questioning, Ms. Price stated that her sister was

killed when Ms. Price was very young but that she did not remember many details,

63

and that her sister’s killer was serving a life sentence; in determining an appropriate

punishment, she would want to know “if they have remorse” and if they could truly

show “that they wouldn’t commit a crime like that ever again;” she would consider

youth in determining punishment because she does not believe in “just putting

people in the prison system” and saying “that’s it;” and, she believes “sometimes

people, they can come back out with society and still be just like everyone else.”

In offering its reasons for striking Ms. Price, the state offered that Ms. Price

“wants to know the remorse, the lack of recidivism” and that youthfulness was also

important to her. The state also referenced Ms. Price’s comment that sometimes

people could come out of prison and pose no future threat, and the state further noted

that, on her questionnaire, when asked under what circumstances she thought life

imprisonment without parole was appropriate, she responded “if a person is highly

unlikely to commit the crime again.” The state explained its concern with Ms. Price

was “her focus[] on that risk of recidivism,” given that defendant planned to focus

on his good behavior and his capacity to be a reformed prisoner, she would be

susceptible to this defense argument, and thus the state struck her for this reason.

On its face, this explanation appears both race-neutral and plausible.

Defendant, however, emphasizes the state’s disparate treatment of seated white

jurors who gave similar answers concerning recidivism, reform, and/or remorse in

their questionnaires, notably Malcolm Jarrell and Patricia Borskey.

Mr. Jarrell’s responses on his questionnaire and during questioning were not

as focused on recidivism as Ms. Price’s answers. Mr. Jarrell, like Ms. Price, did

check the box on the questionnaire agreeing with the statement that “people in prison

have the opportunity to turn their life around and seek forgiveness and peace.”

However, the only time Mr. Jarrell referenced recidivism during his questioning was

64

when the prosecutor asked him what type of things he would like to hear during the

penalty phase to help him decide whether to impose a life sentence or the death

penalty. In response, Mr. Jarrell listed several things that would be important to him,

one of which was “whether they would be a danger to other people in a correctional

system, that type of thing.” This statement, which refers only to a defendant’s

propensity to be contained in prison, differs from the statement Mr. Price gave,

which implied she believed a defendant’s youthfulness was indicative of a lower risk

of recidivism and/or better chance of reform—which she in turn stated would be

good reasons to impose a life sentence.

Nonetheless, even if Ms. Price and Mr. Jarrell could be considered similarly

situated in terms of their views on recidivism/reform, defendant fails to point out

that Mr. Jarrell differed from Ms. Price in other significant ways. Notably, Mr. Jarrell

agreed with the statement, “We are too lenient on criminals; people who break the

law deserve harsher punishment,” and, when asked how he would feel if Louisiana

repealed the death penalty, he remarked that he “prefer[s] the state keep the death

penalty as an option.”

Ms. Borskey is also not similarly situated to Ms. Price such that a meaningful

comparison may be made. The state, in striking Ms. Price, relied primarily on Ms.

Price’s focus on a likelihood of recidivism. It is true that Ms. Borskey, when asked

what would be important to her in determining life versus death, responded, “Some

remorse for one thing.” Ms. Borskey, like Ms. Price, also checked the questionnaire

box next to the statement “People in prison have the opportunity to turn their life

around and seek forgiveness and peace.” However, unlike Ms. Price, Ms. Borskey

otherwise never touched on reform or recidivism in her questionnaire or during her

voir dire answers.

65

Defendant has failed to show that any similarly situated white juror was

treated differently than Ms. Price. Thus, because the state’s reason for removing her

was race-neutral and plausible, he shows no error in the trial court’s denial of his

Batson motion as to Ms. Price.

E. Denise Malancon

The state used its fifth peremptory challenge to back strike Denise Malancon,

a black female. On her questionnaire, Ms. Malancon indicated: her brother was the

victim of a (still unresolved) homicide in 2008; she felt the appropriate punishment

for murder was life without parole; the death penalty, while it might give some

consolation to the victim’s family, does not bring back a loved one; the best reason

to impose the death penalty is when someone intentionally causes harm to others in

a violent way; the best reason not to impose the death penalty is one caused harm to

others without premeditation; the death penalty is too costly to taxpayers due to the

appeal process; the death penalty is appropriate when the defendant committed cold-

blooded acts without remorse; and, a life sentence without the possibility of parole

is an appropriate sentence when the defendant shows remorse. Ms. Malancon also

checked the space next to the sentiment: “I am philosophically opposed to the death

penalty, but would be able to vote guilty if the state proved the defendant guilty of

murder beyond a reasonable doubt.” Ms. Malancon also indicated she agreed with

the following statements: “Our penalties and sentences are too harsh; we need to

focus on rehabilitation;” “we should look at all the circumstances surrounding the

crime and the person to determine the appropriate punishment;” “people in prison

have the opportunity to turn their life around and seek forgiveness and peace;” and,

“innocent people have been convicted and sentenced to die.”

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During death qualification questioning, Ms. Malancon initially responded that

she would not automatically consider the death penalty or a life sentence over the

other and would make that determination based on all the information she has. Upon

being questioned by the state about how she felt about serving on a death penalty

case, she responded that she was not exactly sure, that it would depend on the

evidence presented, and that she would not rush to judgment. When asked what

would be important to consider before deciding between the death penalty and a life

sentence, she responded that she was not sure, but that “I guess depending on the

type of crime that was committed, if there was . . . some additional history of other

type of crimes and maybe the nature of the crimes, the character of the person, you

know, prior to or the individual . . . that they were, things like that, and I guess if

they . . . had, you know, showed some remorse for what had occurred[.]” When

asked about her response on her questionnaire concerning the cost to taxpayers of

the death penalty, Ms. Malancon responded that she had seen something recently in

the news that indicated it sometimes takes up to 20 years for appeals to be completed,

but that this would not be a reason for her not to impose the death penalty. When

specifically asked if she agreed with the death penalty, Ms. Malancon responded,

“In some instances, I think it’s applicable. I can’t say which.” Ms. Malancon also

explained that although she does have some religious and/or philosophical

opposition to the death penalty, she could “follow the evidence and make whatever

decision based on the evidence[.]”

Upon questioning from defense counsel, Ms. Malancon discussed her

brother’s murder, and explained that she would not hold that against defendant nor

allow it to cloud her judgment in this case. She also explained that the cost of housing

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an inmate would not factor into her decision concerning the penalty, and that she

could be fair and impartial.

In explaining its reasons for striking Ms. Malancon, the state pointed to her

questionnaire response in which she indicated she was philosophically opposed to

the death penalty. The state further noted that “she on several occasions indicated

that the death penalty does not bring the victims back” and “expressed a serious

concern and focus about the cost of the death penalty, and that it was used too often.”

The state also noted that on question number 85 of the survey, which asks, in

determining whether to sentence someone to life or death imprisonment, what would

you want to know about: a) the crime; b) the person convicted; c) the victim; and d)

anything else, Ms. Malancon wrote “N/A” next to a)–d). The state asserted that this

would indicate that “she under no circumstances would consider the death penalty.”

The state pointed also to her responses that the death penalty may give the family

consolation but that it does not bring back lost loved ones, that punishments were

too harsh, and that the focus should be on rehabilitation. Lastly, the state offered:

“She also expressed a focus upon remorse when being questioned as a reason that

she thought would be important not to impose the death penalty. And the state does

not want individuals on the jury who would make the remorse their primary focus.

It causes us concern.”

Defendant correctly points out that, although the state argued that Ms.

Malancon “stated on several occasions that the death penalty does not bring the

victims back,” this was not the case. Ms. Malancon did write that on her

questionnaire, but did not reference this during her testimony. Defendant also

correctly notes that, although Ms. Malancon did indicate a concern for the cost of

the death penalty, she explained that this was due to a recent news article she read,

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and indicated that the cost would not be a reason for her not to vote for the death

penalty. Defendant also points out that, although the state appeared primarily

concerned with Ms. Malancon’s potential focus on remorse, the state’s strategy of

showing that he was not, in fact, remorseful, would tend to negate this concern.

The state, however, was correct to note that Ms. Malancon did indicate on her

questionnaire that she felt the system should focus more on rehabilitation, which, as

noted in discussion of other potential jurors in this section, was problematic for the

state because it knew the defense planned to present evidence of defendant’s good

behavior in prison and potential for reform. Moreover, the state pointed out Ms.

Malancon’s questionnaire response in which she expressed that she was

philosophically opposed to the death penalty.

The totality of Ms. Malancon’s answers indicates inconsistency in her attitude

concerning the death penalty, and some uneasiness with its use and application.

Thus, the state’s decision to peremptorily strike her does not appear founded on race.

See State v. Juniors, 03-2425 at pp. 31-32, 915 So.2d at 318 (Although “an equivocal

response in answer to whether [a prospective juror] could legitimately consider

voting for death ... may not have risen to the level of a sustainable challenge for

cause, it does support the race-neutral reasons furnished by the State after defense

counsel objected on Batson grounds to the peremptory strike against [the prospective

juror].”); see also Uttecht v. Brown, 551 U.S. 1, 7 (2007) (“[W]hen there is

ambiguity in the prospective juror’s statements,” the trial court is “entitled to resolve

it in favor of the State.”). Defendant shows no abuse of discretion in the court’s

denial of his Batson challenge with respect to Ms. Malancon.

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F. Savannah Jule

The state used its sixth peremptory strike to back strike Savannah Jule, a

Hispanic female. Defendant concedes that Ms. Jule does not fit into the state’s

alleged pattern of striking black jurors, but argues that the state’s exclusion of her is

relevant to the question of intentional racial discrimination.

In stating its reasons for striking Ms. Jule, the state explained that Ms. Jule

expressed concern about the interrogation techniques police may use, and indicated

that she was very concerned about potential false confessions. The state also noted

that Ms. Jule was “extremely” young (age 25). Lastly, the state noted that Ms. Jule

indicated she would need to find the defendant “absolutely guilty” before even

considering the death penalty.

The record supports the state’s assertion that Ms. Jule expressed concerns

about false confessions in the face of investigative techniques used in this case.

During general voir dire, she explained her opinion that “[s]ometimes people just

get tired of being questioned or they feel like they are under a lot of pressure, and

it’s just like I’m going [to] say whatever I have to say to get you to leave me alone,”

and further stated that “if you feel like there’s somebody saying you were at this

crime scene when you weren’t there, I think there is a chance that that person is

going to admit to something that they didn’t do[.]” Considering that the state’s case

at the guilt phase relied heavily on defendant’s confession, obtained after 11 hours

of police custody and some misrepresentations made by the interviewing detectives,

Ms. Jule’s concerns about those very circumstances producing false confessions was

a legitimate and race-neutral reason to strike her from the jury.

Defendant, however, argues that seated white jurors Patricia Borskey,

Suzanne Carter and Kristen Procell, and Mary Johnson (on whom defendant

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ultimately exercised a peremptory challenge), expressed similar concerns and yet

were not struck by the state. Hence, he argues this proffered reason was merely a

pretext for race.

The record establishes that these other jurors, however, did not give responses

concerning interrogation techniques that were as lengthy or as specific as those Ms.

Jule gave. Ms. Jule specifically stated that she felt that under the types of police

interrogation techniques used in this case (i.e., misrepresentations), she could foresee

a suspect giving a false confession. Ms. Carter, however, only remarked that she felt

that she would be “delirious” after being questioned for 12 to 14 hours straight,

circumstances that did not exist in Turner’s police interrogation. Ms. Procell

remarked that she could see how certain techniques could “kind of wear [a suspect]

down” and “possibly . . . force them to say [things]” but was not as detailed or as

unequivocal in her remarks as Ms. Jule. Ms. Johnson simply stated that she felt the

“exact same” as Ms. Procell, without elaboration.

Ms. Borskey appears to have shared Ms. Jule’s concerns regarding

interrogation techniques, albeit her response was not as lengthy. Ms. Borskey stated

that she “does not like the fact that police are allowed to lie to make someone come

up to the truth just because they get tired of someone badgering them, and perhaps

they coerced a confession that really isn’t true.” Even if this alone could be

considered similar, Ms. Borksey displayed several characteristics that Ms. Jule did

not, which undercuts any comparison based solely on the two jurors’ similar feelings

about interrogation techniques. Ms. Borksey, unlike Ms. Jule, indicated she could

“not think of any” reasons not to impose the death penalty on her questionnaire and

she indicated she was “generally in favor of the death penalty and feels it should be

imposed upon conviction of murder, with very few exceptions.”

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Under these circumstances, defendant shows no abuse of discretion in the

court’s denial of his Batson challenge with respect to Ms. Jule.

G. Lanell Craig

The state used its seventh peremptory challenge to back strike Lanell Craig, a

black female. At the time it made the challenge, the state had used six of its seven

strikes to remove black jurors, with the other strike being used to remove a Hispanic

juror, Ms. Jule. Defense counsel noted that although the court had denied its earlier

Batson challenges as to the state’s first six challenges, “this continues to still be a

pattern.” The court responded:

Well, I didn’t find there was a pattern [before]. I made [the state] give

her reasons and found [the state’s] reasons were race neutral and gender

neutral. And do you have something else other than [that the state] used

a peremptory on another one?”

Defense counsel responded in the negative: “No, your Honor,” to which the court

responded, “All right,” before the court moved on to consider the next available

jurors, implicitly finding that defendant had again failed to make a prima facie

showing under the first step of Batson.

The state’s use of six of seven strikes exercised against black jurors, or

roughly 85% of its challenges, could support a conclusion that the trial judge did

abuse his discretion in finding that the defense had failed to pass Batson’s first step.

Cf. Johnson v. California, 545 U.S. 162, 170 (2005) (because Batson did not mean

to impose an onerous burden as the first step in its analysis, a defendant need produce

only “evidence sufficient to permit the trial judge to draw an inference that

discrimination has occurred.”).

This Court has held, however, that bare statistics alone are insufficient to show

a prima facie case of discrimination. State v. Duncan, 99-2615, p. 22 (La. 10/16/01),

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802 So. 2d 533, 550 (citing United States v. Moore, 895 F.2d 484, 485 (8th Cir.

1990)). In Duncan, the defendant argued that racial discrimination could be inferred

from the record, which showed the state had struck 84% of prospective black jurors

and only 12% of prospective white jurors, using five of its eight peremptory

challenges to strike black jurors. This Court held, “there is not a per se rule that a

certain number or percentage of the challenged jurors must be black in order for the

court to conclude a prima facie case has been made out.” 99-2615 at 22, 802 So. 2d

at 549-50. However, the Court explained that “such number games, stemming from

the reference in Batson to a ‘pattern’ of strikes, are inconsistent with the inherently

fact-intense nature of determining whether the prima facie requirement has been

satisfied.” 99-2615 at 22, 802 So. 2d at 550. This Court further explained that it is

important for a defendant to come forward with facts, not numbers alone, when

asking the trial judge to find a prima facie case. Id. (citing Moore, 895 F.2d at 485).

Consequently, in Duncan this Court held the defendant’s reliance on bare statistics

to support a prima facie case of race discrimination was misplaced.

Here, despite statistical support for an inference of discrimination, when the

court ruled on this particular Batson challenge, it had just found that the state’s use

of its prior six challenges to remove five black and one Hispanic juror did not involve

purposeful discrimination. Thus, it was not against a blank slate that defendant made

the objection with respect to Ms. Craig; rather, the court had already determined that

defendant had failed to show that the state engaged in any purposeful discrimination

in its first six challenges, and thus the state’s seventh challenge, albeit made against

another black juror, was to some extent set apart from the first six. In effect, by

arguing to the court that using six out of seven challenges against black jurors

revealed a pattern of discrimination, defendant was attempting to piggy-back this

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seventh objection onto his earlier (failed) objections concerning state’s first six

challenges, which had already been deemed non-discriminatory. Having found no

purposeful discrimination concerning the state’s first six strikes, it is difficult to see

how defendant can show, without more, that the seventh strike continued a

discriminatory pattern which the trial court justifiably found not to exist. Because

defendant has failed to offer any other evidence from which to infer discriminatory

intent, the trial court did not abuse its discretion in finding that defendant had not

made a prima facie case with respect to Lanell Craig.

H. Michael Smith

Mr. Smith, a black male, indicated in his jury questionnaire that: he had an

overall good impression of law enforcement; the best reason to impose the death

penalty is to keep the streets safe; the best reason not to impose the death penalty is

to reform a person; and he was generally in favor of the death penalty. During death

qualification, Mr. Smith stated that he had been the victim of an armed robbery

committed by an acquaintance, but that he did not think that would influence him in

this trial and he was not that traumatized by it; he could consider all mitigating

evidence; he would probably vote for the death penalty in a double-homicide

committed during an armed robbery, but would be open to a life sentence; and, in

determining punishment he would consider whether the defendant was “beyond

redemption,” and whether the defendant was remorseful. No challenges were made

afterwards. The state later used its eleventh peremptory challenge to back strike Mr.

Smith and, after defendant raised a Batson objection, the trial court noted that “once

again, it’s one more. We have gone through all the other strikes, and I did not find a

pattern. I don’t find one now, but I will have [the state] provide her race-neutral

reasons for striking Mr. Smith.”

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The state responded that it “boil[ed] down to one thing” from Mr. Smith’s

questionnaire that the state “just cannot let go of,” and that was his response to “what

is the best reason not to impose the death penalty?” Mr. Smith’s response was “to

reform a person.” The state further noted that it knew the defense would be calling

witnesses to talk about how defendant had not caused any problems in prison, and

the prosecutor noted that she “just can’t let go of that.” Defense counsel responded,

recounting Mr. Smith’s remarks that he would probably vote for the death penalty

unless defendant showed remorse or redemption. The state responded again,

explaining that the remorse and redemption angle was precisely why they were using

the strike on Mr. Smith. The court responded: “I find they are race neutral reasons

why the state would strike Mr. Smith. That Batson motion is denied.”

The state’s concern that Mr. Smith would focus on defendant’s ability to be

reformed by a life sentence as opposed to the death penalty was a race-neutral reason

to strike Mr. Smith. The state was aware that the defense planned to present evidence

of defendant’s good behavior in prison as well as the argument that, if his life was

spared, he had a chance at reformation and/or redemption.

Defendant argues the state’s proffered reason was a pretext for race. First,

defendant correctly notes that, despite its apparent inability to “let go of” Mr. Smith’s

questionnaire response concerning the best reason not to impose the death penalty,

the state never questioned Mr. Smith regarding that response at all. Such a lack of

questioning undercuts the persuasiveness of an otherwise race-neutral reason. See

Harris, 01–0408, p. 8, 820 So.2d at 476; Collier, 553 So. 2d at 822 n.11.

Defendant also points out that several seated white jurors—Ms. Barnard, Ms.

Phelps, Mr. Jarrell, Ms. Procell, and Ms. Borskey, along with several other white

jurors who were peremptorily struck by the defense—gave similar responses

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concerning reform/redemption, and the state did not strike those jurors. This,

defendant argues, is further evidence that the proffered reason was pretext for race.

Defendant argues these jurors had similar concerns because they all checked a box

on their questionnaires indicating they felt “people in prison have the opportunity to

turn their life around and seek forgiveness and peace.” This response on the

questionnaire, however, differs from Mr. Smith’s response.

This text is long and has been trimmed here. Open the source document for the complete record.