# State of Louisiana v. Lee Turner, Jr. > Supreme Court of Louisiana · December 5, 2018 · 263 So. 3d 337 URL: https://www.frixlaw.com/law-library/cases/4347587 ## Case - **Full name:** STATE of Louisiana v. Lee TURNER, Jr. - **Court:** Supreme Court of Louisiana - **Decided:** December 5, 2018 - **Citations:** 263 So. 3d 337 - **Precedential status:** Published - **Opinion:** Opinion by Crichton - **Judges:** Crichton - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4347587 ## Opinion text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4347587. Public record. Not legal advice.