Appendix — Tsolainos v. Louisiana

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APPENDIX A — OPINION OF THE FIRST CIRCUIT

COURT OF APPEAL FOR THE STATE OF LOUISIANA

DATED DECEMBER 31, 2003

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2000 KA 1664

STATE OF LOUISIANA

VERSUS

PANOS TSOLAINOS

Judgment Rendered: December 31, 2003

Appealed from the Twenty-Second

Judicial District Court

in and for the Parish of St. Tammany,

State of Louisiana

Case Number 290874

Honorable Donald M. Fendlason, Judge

BEFORE: FOIL, FITZSIMMONS, AND GAIDRY, JJ.

FITZSIMMONS, J.

Defendant, Panos Tsolainos, originally was charged by

grand jury indictment with the first degree murder of his

ex-wife, Deborah Tsolainos, a violation of La. R.S. 14:30.

The state subsequently amended the indictment to charge

defendant with second degree murder, a violation of La. R.S.

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Appendix A

14:30.1. Defendant entered a dual plea of not guilty and not

guilty by reason of insanity. The trial court appointed a sanity

commission. Following a hearing, the trial court found the

defendant competent to stand trial. The issue of the

defendant’s sanity at the time of the commission of the

offense was left for the jury to decide. Defendant moved for

a change of venue, which the trial court denied. Subsequently,

defendant was tried by a jury, and convicted as charged.

The trial court denied defendant’s motion for a new trial and

post-verdict judgment of acquittal. Defendant was sentenced

to life imprisonment at hard labor without benefit of parole,

probation, or suspension of sentence.

Defendant now appeals, urging the following

_assignments of error:

1. The evidence presented to the jury was

constitutionally insufficient to sustain a conviction

for second degree murder. The errors include, but

are not limited to:

(a) Clarissa Tsolainos admitted she perjured herself

at the time of trial, which was confirmed by

the conflicts between her testimony and the

physical evidence;

(b) The District Court denied Mr. Tsolainos’s

Motion in Limine requesting leave to speak

with Ms. Tsolainos after she requested such a

meeting;

(c) The record as a whole reveals that there is no

legally recognizable basis for sustaining a

second degree murder conviction.

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Appendix A

2. The conviction in this Case must be overturned

because Mr. Tsolainos did not receive the

constitutionally mandated fair and impartial trial.

The errors include, but are not limited to:

(a)

(b)

(c)

(d)

The District Court erred in denying Mr.

Tsolainos’s Motion for a Change of Venue

which was supported by extensive expert

testimony and polling data;

The voir dire of prospective jurors in this case

was rendered defective by the District Court’s

failure to permit appropriate detailed individual

questioning of jurors after the uncontroverted

expert polling data reflected an inherent

prejudice by the potential jurors;

The District Court improperly denied

challenges for cause against certain jurors who,

as supported by the pretrial publicity, the

uncontradicted expert testimony, and polling

data, were prejudiced by the pretrial publicity

such that they were not forthcoming under the

circumstances and held a significant bias/taint

against Mr. Tsolainos;

The District Court’s denial of challenges for cause,

after Mr. Tsolainos exhausted his peremptory

challenges, and despite the expert testimony and

polling data which revealed extensive adverse

pretrial publicity, resulted in legally presumed

prejudice against Mr. Tsolainos;

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(e) The jury panel was tainted by the failure of a

juror, Mark Berryhill, to admit his relationship

with a “witness” and to disclose an acrimonious

divorce despite direct questioning on the

topic and this special significance to the

circumstances of this case.

The District Court erred in admitting the state’s

Prieur evidence. The errors include, but are not

limited to:

(a)

(b)

(c)

(d)

The District Court erred in allowing the state

to attempt to prove the existence of a conspiracy

based solely on hearsay statements;

The District Court erred in finding that the

“agreement” stage of a conspiracy was satisfied

by a drug dealer’s (Gerald Branigan) solicitation

of Mr. Tsolainos;

The District Court erred in finding that

confidential police informant (Charles “Tinker”

Schmolke) was ever a member/participant in

any conspiracy;

The District Court erred in finding that there

was an affirmative act in furtherance of the

alleged conspiracy by any of the alleged

participants;

The District Court erred in admitting a recorded

hearsay conversation between Messrs. Branigan

and Schmolke and in finding that it alone was

(f)

(g)

(h)

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Appendix A

sufficient to constitute an affirmative act in

furtherance of an alleged conspiracy;

The District Court erred in allowing, for the first

time in Louisiana, the existence of a conspiracy

to be proven solely on the basis of hearsay and

where the party against whom the evidence

was sought to be used was denied the right

of confrontation against the alleged co-

conspirators;

The District Court erred in allowing any of the

three “Kell” tapes to be played, or referred to,

at trial, especially where Mr. Schmolke

admittedly was not a member of any alleged

conspiracy at the time the recordings were

made;

The District Court erred in refusing to grant a

mistrial after admitting the first “Kell”

recording and then reversing its position and

striking the two subsequent conversations. This

is particularly true since the District Court, over

Mr. Tsolainos’s objection, allowed the jury to

hear the first “Kell” tape prior to its ruling on

the second two. Further, repeated references

were made to the excluded tape recordings by

the state and state’s witnesses. ~

4. The District Court erred in allowing taped prejudicial

hearsay statements from Messrs. Branigan

and Schmolke to be played for the jury when

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Mr. Tsolainos was unable to confront them because

Mr. Schmolke committed suicide shortly prior to

trial and Mr. Branigan asserted his Fifth Amendment

privilege against self-incrimination. The errors

include, but are not limited to:

(a)

(b)

(c)

The District Court denied Mr. Tsolainos his

constitutional right to confront the witnesses

against him;

The District Court improperly denied Mr.

Tsolainos his right of confrontation by denying

a continuance of the second degree murder trial

until after the conspiracy trial, which would

have allowed Mr. Tsolainos to confront Mr.

Branigan and also resolve the legal issues of

the conspiracy as admitted into the instant trial

as evidence;

In addition to prejudicing Mr. Tsolainos on

these issues, the District Court’s refusal to

exclude all of the “Kell” transmissions and

grant Mr. Tsolainos’s motion for a mistrial, not

only prejudiced him with respect to

consideration of the Prieur issue, but also

denied him his right to confrontation of

witnesses against him.

The District Court erred in allowing evidence of

Mr. Tsolainos’s past drug use to be introduced at

the time of trial. The errors include, but are not

limited to:

(a)

(b)

(d)

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Appendix A

The District Court erred in allowing members

of a court-appointed sanity commission to

exceed their mandate and essentially testify as

state consultants. Those doctors then utilized

Statements made during the course of the

confidential sanity proceedings as substantive

evidence against him on the issue of guilt or

innocence;

The District Court erred in admitting

photographs of drug paraphernalia in the

Tsolainos’s home to be introduced for the

express purpose of implying that Mr. Tsolainos

was a drug abuser when he in fact had not lived

in the house for weeks prior to the incident at

issue;

The District Court erred in admitting evidence

of Mr. Tsolainos’s prior drug use in the absence

of Prieur notice;

The District Court erred in allowing evidence

of Mr. Tsolainos’s past drug use when every

mental health professional who testified at the

time of trial indicated that any drug use would

have had no effect on his mental state at the

time of the incident in question.

The District Court erred in refusing to grant

Mr. Tsolainos’s Motion for New Trial based upon

newly discovered evidence pursuant to La. Code

Crim. P. art. 851(3). This issue is reviewable because

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Appendix A

the District Court abused its discretion in denying

the motion and, as such, error of law is presented.

The errors include, but are not limited to:

(a) The District Court applied the wrong legal

(b)

(c)

(d)

standard to the Motion for New Trial. The District

Court acted as a “thirteenth juror” instead of

considering whether a second jury, based on the

newly discovered evidence, would have reached

a different result and if the new evidence would

change the dynamics of the trial;

The District Court erred by holding that Clarissa

Tsolainos’s perjury concerning her mother’s

alcohol consumption on the date of her death

was immaterial;

The District Court erred in finding that Clarissa

Tsolainos’s perjury presented only issues of

credibility rather than directly affecting the

substantive evidence which the jury had to

consider;

The District Court erred in failing to grant the

Motion pursuant to State v. Cherry and State

v. Watts, where the two principal witnesses

were Clarissa Tsolainos, who was an admitted

perjurer, and George Deforrest, who was offered

$20,000 or a new truck for his testimony;

and especially where multiple disinterested

witnesses testified at the Motion for New Trial

hearing that Clarissa Tsolainos (1) told them

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Appendix A

that George Deforrest had lied for her at the

trial, including his statement that he heard the

one incriminating statement by Mr. Tsolainos,

and (2) told them that she had to buy George

Deforrest a new truck or give him $20,000

because he lied for her.

7. The jury verdict should be overturned because of

multiple Brady violations by the state. The specific

violations are fully set forth in Mr. Tsolainos’s

briefing of this error.

8. The District Court erred in admitting Mr. Tsolainos’s

statements.

9. The District Court erred in failing to quash Mr.

Tsolainos’s indictment.

10. Mr. Tsolainos specifically requests that this court

review the entire record of this proceeding for exrors

patent, which would warrant overturning the verdict

in this case.

Finding no merit in any of the assigned errors, we affirm

the defendant’s conviction and sentence.

FACTS

On the evening of July 19, 1998, at approximately 8:00

p.m., Clarissa Tsolainos called 911 from her home on Morgan

Bluff Road in Pearl River, Louisiana. She requested

emergency medical assistance for her mother, Deborah

Tsolainos (the victim). Clarissa informed the operator that

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Appendix A

her father, the defendant, had run over the victim with a

vehicle. Clarissa explained that the victim was stuck beneath

the vehicle and needed immediate assistance. Clarissa further

indicated that the defendant also hit her and her younger

sister, Stephanie, with the vehicle.

St. Tammany Parish Sheriff’s officers and Fire District

personnel responded te the call. Upon arriving at the

residence, sheriff’s officials found the victim’s lifeless body

partially wedged beneath an overturned 1993 Buick Skylark.

The vehicle was positioned at an angle, with the passenger

side on top of the victim’s neck and shoulder area. Despite

all rescue efforts, Mrs. Tsolainos was pronounced dead

shortly thereafter. The defendant, who was still present on

the scene, was arrested and subsequently indicted for murder.

ASSIGNMENT OF ERROR NUMBER ONE

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, the defendant asserts that

the evidence presented at trial was insufficient to support

the second degree murder conviction. More particularly,

defendant argues that the state failed to prove he specifically

intended to kill or to inflict great bodily harm upon the victim.

Defendant claims he accidentally struck the victim when he

misapplied the vehicle’s controls while attempting to leave

the area.’

1. In connection with this assignment of error, the defendant

also argues that new evidence, discovered after trial, indicates that

several prosecutorial witnesses presented perjured testimony before

the jury. This testimony, the defendant contends, renders the state’s

(Cont'd)

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Appendix A

Standard of Review

The standard of review for the sufficiency of evidence

is whether, viewing the evidence in the light most favorable

to the prosecution, a rational trier of fact could conclude that

the state proved the essential elements of the crime beyond a

reasonable doubt. La. Code Crim. P. art. 821. This standard

of review, in particular the requirement that the evidence be

viewed in the light most favorable to the prosecution, obliges

the reviewing court to defer to the actual trier of fact’s rational

credibility calls, evidence weighing, and inference drawing.

State v. Mussall, 523 So.2d 1305, 1308-11 (La. 1988).

Thus, the reviewing court is not permitted to decide whether

it believes the witnesses or whether the conviction is contrary

to the weight of the evidence. State v. Burge, 515 So.2d

494, 505 (La. App. 1* Cir. 1987), writ denied, 532 So.2d 112

(La. 1988); see State v. Houston, 98-2658, p. 5 (La. App.

1* Cir. 9/24/99), 754 So.2d 256, 259.

(Cont'd)

overall evidence insufficient. Because this portion of the defendant’s

argument deals with evidence that was not presented to the jury at

trial, this argument will be addressed with assignment of error number

six, wherein the defendant challenges the trial court’s ruling on his

motion for a new trial. For the purposes of this assignment, we will

consider only the evidence actually introduced before the jury at trial.

The defendant also assigns as error the trial court’s denial of his

motion in limine requesting leave to speak with Clarissa Tsolainos.

However, he failed to articulate the basis for the alleged error, or

cite supporting record references or law in his appellate brief.

Thus, we did not consider the correctness of the denial. See Uniform

Rules Courts of Appeal, Rule 2-12.4.

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Appendix A

Louisiana Revised Statutes 14:30.1 A(1) provides, in

pertinent part, that second degree murder is a killing that

occurs “[w]hen the offender has a specific intent to kill or to

inflict great bodily harm... .” Thus, the state was required

to-prove, beyond a reasonable doubt, that the killing was

done with specific intent to kill or to inflict great bodily harm.

Specific criminal intent is defined as “that state of mind

which exists when the circumstances indicate that

the offender actively desired the prescribed criminal

consequences to follow his act or failure to act.” La. R.S.

14:10(1). Specific intent need: not be proven as a fact, and

may be inferred from the circumstances present and the

actions of the defendant. Specific intent is a legal conclusion

to be resolved ultimately by the trier of fact. State v. Carter,

96-0337, p. 3 (La. App. 1% Cir. 11/8/96), 684 So.2d 432,

434-35.

Trial Testimony of Clarissa Tsolainos

At trial, Clarissa Tsolainos, the defendant’s adopted

daughter (the biological daughter of the victim), testified for

the state. In her testimony, Clarissa indicated that she

personally observed the incident. Clarissa provided a detailed

account of the events leading to the tragic incident. She also

provided pertinent background information on the Tsolainos’s

familial situation.

Clarissa testified that she and her older sister, Melissa

Tsolainos, were the biological children of the victim and had

been adopted by the defendant when they were very young.

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Appendix A

The victim and the defendant later had two children together,

Stephen and Stephanie Tsolainos.?

Clarissa tegited that she loved the defendant and

considered hin/fo be her father. According to Clarissa, the

defendant and the victim enjoyed what Clarissa considered

to be a “great” marriage, that is, until the victim became

addicted to prescription drugs after a back injury. After years

of struggling with the victim’s drug addiction, which

ultimately escalated from prescription pain medications to

heroin, the defendant separated from the victim in 1996 and

eventually filed for a divorce. The defendant maintained sole

custody of the children and use of the Morgan Bluff Road

residence.

After the divorce, the victim moved to St. Louis,

Missouri, to be closer to her family. Clarisse originally

remained in Pearl River with the defendant, but she

eventually moved to St. Louis with the victim. Clarissa lived

with the victim for approximately one year immediately

preceding the incident in question. Clarissa stated that the

victim had turned her life around and was clean and sober

during the time that she lived with her. Clarissa claims the

victim was gainfully employed and drug-free.

According to Clarissa, the victim and the defendant were

involved in ongoing disputes regarding the custody of

Stephen and Stephanie, and settlement of the community

property. On several occasions, Clarissa returned to Louisiana

with the victim to attend family court proceedings on

2. The record establishes that Stephen and Stephanie Tsolainos

were minors at the time of the incident in question.

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Appendix A

these issues in St. Tammany Parish. At a hearing on Friday,

July 17, 1998, while the defendant was in jail on charges

alleging that he had conspired to kill the victim, the victim

was awarded custody of the minor children and temporary

use of the Morgan Bluff Road residence.

The following day, Saturday, July.18, 1998, Clarissa and

the victim worked all day cleaning the residence, which

appeared to have been trashed. Clarissa testified that the

victim had been in a good mood all day because she had

finally gained custody of her young children. Later that

evening, the victim went out with her sister, Carlotta. Clarissa

testified that the victim returned in approximately one to

two hours.

On Sunday, July 19, 1998, Clarissa, the victim, and

Clarissa’s friend, George Deforrest, continued cleaning the

Morgan Bluff Road residence. At approximately noon,

Connie Deville, the defendant’s girlfriend, arrived at the

residence in her mother’s 1993 Buick Skylark. Connie had

come to retrieve some personal property she and the

defendant had stored at the residence. Clarissa and the victim

helped Connie pack some of her things into the Skylark.

Shortly thereafter, the victim learned that the defendant had

come with Connie and was waiting for her across the street

from the residence. The victim was initially startled by the

defendant’s presence, but later decided to bring Stephen and

Stephanie out to the street to meet with their father. The

victim and the children visited with the defendant for

approximately fifteen minutes. The victim then returned to

the residence and informed Clarissa that the defendant wanted

to see her. Clarissa also went out to the street and visited

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Appendix A

with the defendant. Eventually, without any objection by the

victim, the defendant came onto the property and assisted

Connie in loading the vehicle. Once the vehicle was full, the

defendant and Connie left the area.

Clarissa testified that later that evening, at approximately

6 p.m., as she and the victim prepared to eat dinner, the defendant

and Connie returned to the residence. Because the victim was

already aware that the defendant and Connie would be returning

to the residence, she did not object to the defendant’s presence

on the property. Instead, the victim went outside and assisted

the defendant and Connie with their things. According to Clarissa,

the scene was amicable. In fact, at some time during the visit, the

victim told Clarissa that the defendant and Connie “looked cute

together.”

Later, as Clarissa and George Deforrest continued cleaning

the residence, they heard a loud noise outside.

As Clarissa ran outside to determine the source of the noise,

she heard the engine of the Skylark being revved, as if the

defendant, whom Clarissa observed seated in the driver’s seat,

was depressing the accelerator. Connie was also inside the

vehicle, seated on the passenger side. Outside the vehicle,

the victim was yelling and banging on the vehicle’s hood.

The victim was verbally demanding that the defendant vacate

the property. According to Clarissa, the victim was very angry

and was yelling so much her face was turning red. The victim

eventually approached the passenger side of the vehicle and

began to hit on the window. Clarissa stated that the victim

told Connie that she could come back, but the defendant was

no longer welcome on the property.

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Appendix A

Clarissa testified that when she approached the victim

and questioned her about her actions, the victim “jerked”

Clarissa, practically lifted her off of her feet, and told her to

“Get the ‘f’ back inside.” Clarissa and the victim began to

struggle. As she struggled with the victim, Clarissa observed

the vehicle begin to move backwards. While the vehicle was

backing up, Connie Deville attempted to exit, and fell to the

ground. Then, with Connie outside the vehicle, the defendant

pressed the accelerator, aimed the vehicle at the victim, and

rapidly proceeded forward, striking the victim in the middle.

Because the victim had pushed Clarissa away, the vehicle

only grazed Clarissa. Clarissa claims the vehicie also hit

Stephanie.

Clarissa testified that after the initial impact, the victim

landed on the hood of the Skylark. The vehicle continued to

accelerate and eventually hit a tree. The force of the impact

threw the victim off the hood and onto the ground. The

vehicle flipped over and landed on the victim’s head.

Clarissa immediately ran inside and called for assistance.

Moments later, when she returned to the yard, Clarissa

noticed that the defendant was no longer inside the vehicle.

According to Clarissa, when she asked the defendant to help

her move the vehicle off the victim, the defendant calmly

responded, “she’s dead, she’s dead, she’s dead, she’s dead.”

Clarissa returned inside and called for help again. When

the defendant overheard Clarissa stating that her dad had just

“killed” her mom, he approached Clarissa and told her to

tell the operator the incident was an accident. He claimed,

“it’s the emergency brake, it’s the emergency brake. It was

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Appendix A

the emergency brake, Clarissa, the damn car’s emergency

brake...” Clarissa further testified that Connie Deville told

her, “Clarissa, you have got to tell them it was the emergency

brake, the emergency brake.”

Trial Testimony of George Deforrest

George Deforrest, who was at the Morgan Bluff Road

residence with Clarissa on the day in question, also testified

for the state. Deforrest stated that the defendant and Connie

Deville visited the residence twice that day. The first visit

took place around noon and was uneventful. The defendant

eventually came onto the property, but only after the victim

and Clarissa came out to visit him across the street.

The victim did not object to the defendant’s presence on the

property. Connie and the defendant gathered what they could

fit in the vehicle, indicated that a return trip would be

necessary, and left the area.

Later that same evening, Connie and the defendant

returned to the residence. They parked the Skylark in front

of the opened garage door. While the victim and Connie stood

talking nearby, the defendant loaded items into the vehicle. _

Deforrest testified that the atmosphere was friendly and

everyone was getting along well.

While Deforrest and Clarissa were inside the house, they

heard the victim’s voice screaming outside. Deforrest testified

he also heard “tires squealing.” Clarissa ran out to investigate

and Deforrest followed her shortly thereafter. Upon walking

through the interior door of the residence that opens into the

garage, Deforrest observed the Skylark backing up. The

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Appendix A

defendant was seated in the driver’s seat, and Connie Deville

was on the passenger side. Deforrest observed Connie Deville

fall to the ground when she attempted to step out of the

moving vehicle. The victim was outside the vehicle yelling

and screaming at the defendant. After backing up for

approximately twenty feet, the vehicle came to a stop, the

engine “revved up,” the tires squealed, and the vehicle

proceeded forward. According to Deforrest, the vehicle

rapidly moved forward and struck the victim. The victim

landed on the hood, and the vehicle continued past the garage

opening. As the vehicle moved past the garage, the sound of

the accelerated engine continued. Deforrest testified there

was no sound of the vehicle’s brakes ever being applied.

Deforrest then ran from his position inside the garage

area out into the yard where he observed the vehicle resting

on its passenger side with the victim wedged beneath.

Deforrest ran inside to call for help and Clarissa ran in behind

him. Clarissa took the telephone and instructed Deforrest to

go and help the victim.

Deforrest returned to the vehicle to assist the victim.

Shortly thereafter, Deforrest observed the defendant climbing

out of the driver’s side of the vehicle. Deforrest testified that

as he attempted to remove the vehicle using a jack, he heard

the defendant say, “that f-ing bitch got what she deserved,

she shouldn’t have been running her f-ing mouth off.”

Deforrest continued his attempts to extricate the victim

and eventually asked the defendant for assistance.

The defendant did not respond to the request. Deforrest

continued his rescue efforts until the police and rescue

WAN ERR PR LR AiR EN LEIA TINIE PRACT ME

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Appendix A

personnel arrived. Shortly thereafter, Deforrest gave a taped

statement describing the incident to Detective Robert Juge

of the St. Tammany Parish Sheriff’s Office.

Trial Testimony of Coroner

The state also presented the testimony of Dr. Fraser

Mackenzie, a forensic pathologist with the Jefferson Parish

Coroner’s Office. Dr. Mackenzie performed an autopsy on

the victim on July 20, 1998, wherein he noted numerous

injuries, which included abrasions on the left shoulder area,

left buttocks, scattered on the abdomen, and left lower leg.

Dr. Mackenzie also noted fractures of the posterior first

through fourth ribs on the right side. There was blood in the

right chest cavity, which Dr. Mackenzie attributed to the

breakage of the ribs. The victim’s right upper arm was

fractured. Dr. Mackenzie opined that the bruising of the

victim’s arm and ribs was consistent with the photographs

depicting the victim wedged beneath the vehicle with her

right arm and shoulder in a “very awkward position.”

As for the cause of the victim’s death, Dr. Mackenzie

noted that the position of the heavy vehicle over the torso

portion of the victim’s body would have prevented the chest

from expanding, making it impossible for the victim to

breathe. The inability to breathe would have prevented the

victim from getting any oxygen into her blood. Dr. Mackenzie

also noted that the victim’s carotid artery was severed, an

injury that would have caused the victim to bleed to death.

Dr. Mackenzie opined that severed arteries are usually caused

by deacceleration, meaning the body stops, but the inside

organs do not. Severing of the carotid artery is consistent

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Appendix A

with the victim’s body being thrown from the car and onto

the ground. Dr. Mackenzie stated that the aforementioned

injuries, although potentially fatal, would not have resulted

in the victim’s death instantaneously. The victim could have

lived approximately three to five minutes with each of the

injuries. Considering the facts and circumstances surrounding

the incident, Dr. Mackenzie ruled the victim’s death a

homicide.

Dr. Mackenzie further testified that in connection with

the autopsy, he collected blood and urine samples from

the victim to determine toxicology. The results showed

no evidence of marijuana, cocaine, or opiates (heroin).

The results did, however, reveal the existence of alcohol in ©

the victim’s blood. Dr. Mackenzie testified that the victim’s

blood alcohol level at the time the sample was collected was

.07. This finding, according to Dr. Mackenzie, is inconsistent

with someone who had nothing to drink in the twenty-four

hours immediately preceding death. Instead, Dr. Mackenzie

testified, the finding suggests that the victim consumed

approximately four to five beers within an hour of her death.

Evidence on Previous Conspiracy to Kill Victim

To assist in proving intent to kill, the state introduced

testimony concerning a prior incident in which the defendant

participated in a conspiracy to kill the victim. Detective John

Scallan of the St. Tammany Parish Sheriff’s Office testified

that on June 30, 1998, Charles “Tinker” Schmolke, a

confidential informant, contacted him. Schmolke disclosed

that an individual, named Gerald Branigan, had approached

Schmolke and requested his assistance in killing someone.

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Appendix A

Branigan told Schmolke that the defendant was willing to

pay to have the victim, his ex-wife, killed. To test the accuracy

of this information, Scallan asked Schmolke to meet with

the co-conspirators while wearing an electronic transmitting

and recording device. Schmolke agreed to cooperate with

the investigation.

According to Scallan, there were three meetings during

which Tinker feigned the role of a co-conspirator. Scallan

monitored the conversations of each meeting by listening to

the audio transmissions over the electronic device worn by

Tinker. Scallan also attempted to record the conversations at

each of the meetings. However, due to a malfunction in the

recording device, Scallan successfully recorded the

conversations of only the first meeting.

The first meeting took place on the afternoon of June

30, 1998, at the residence Branigan shared with his girlfriend,

Melanie Johnson. During this meeting, Schmolke, equipped

with the Kell monitoring device, conversed with Branigan

regarding the details of the conspiracy. Scallan testified that

Schmolke’s conversation with Branigan corroborated the

conspiracy information initially relayed by Schmolke. The

conversation was successfully recorded with an audio

recording device stored inside Scallan’s vehicle.

During Scallan’s testimony, the audio recording of the

conversation between Branigan and Schmolke was played

for the jury. At the beginning of the conversation, Schmolke

stated that he wanted to receive an advance payment for his

participation in the planned homicide. Branigan informed

Schmolke that when Branigan asked the defendant for $2,500

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Appendix A

in advance, and another $2,500 after the homicide, the ex-

husband (defendant) said “go.” When Schmolke asked how

the homicide would be accomplished, Branigan replied that

they were going to “O.D.” the intended victim, who was a

heroin addict living in St. Louis, Missouri. Branigan further

stated that the ex-husband was to give him some pictures

and additional information on the intended victim’s location

and where she “hung” out. Schmolke indicated he did not

want to participate in the job blindfolded and wanted to do

the job right. Branigan reiterated that the intended victim

was the ex-wife of the individual who sought their services.

The intended victim was alone, as her daughter, who was

about twenty years old, had moved back to New Orleans and

could not be in their way. Schmolke told Branigan they could

do business if Branigan would split the $2,500 advance

payment with him. Branigan agreed, and said he would talk

to the ex-husband and get the pictures later that night.

Schmolke responded that he wanted to see some of the

pictures if Branigan was able to get them. When Schmolke

asked Branigan what the intended victim’s name was, he

answered that he did not know her first name, but that the

iast name was Tsolainos. Additionally, Branigan indicated

that he and Schmolke would ride to St. Louis on a bus, kill

the ex-wife by giving her a drug overdose, and then return to

Louisiana. At the conclusion of the conversation, Schmolke

affirmed his agreement to participate in the killing.’

3. The jury was provided copies of a revised transcript of the

conversation. The original transcript erroneously listed Detective

Bobby Juge as the officer who monitored the conversation.

In connection with the defense theory that the police botched the

criminal investigation in this case, the original transcript was also

introduced into evidence and presented to the jury at trial.

23a

Appendix A

Det. Scallan further testified that on July 1, 1998,

Schmolke had two additional meetings with Branigan.

Despite the officer’s attempts, these conversations were not

successfully recorded due to a malfunction in the recording

device. Although Det. Scallan had monitored both meetings

as they took place, the trial court sustained the defendant’s

objection and refused to allow Det. Scallan to recount the

contents of the conversations at trial.

The state also presented testimony from Detective Bobby

Juge of the St. Tammany Parish Sheriff’s Office. Det. Juge

testified that he was assigned to the investigation of the

alleged conspiracy on July 6, 1998. After speaking with

Branigan and his girlfriend, Melanie Johnson, Det. Juge

arrested Branigan and charged him with conspiracy to commit

murder. Thereafter, on July 7, 1998, Det. Juge obtained

warrants for the arrest of the defendant and his adopted

daughter, Melissa Tsolainos.* Subsequently, the defendant

and Melissa were arrested and transported to the St. Tammany

Parish jail in Covington, where they both gave statements to

Det. Juge. During Det. Juge’s testimony, the state introduced

a copy of the defendant’s statement into evidence. The taped

statement was played for the jurors, who were also provided

with copies of a transcript of the statement

In the taped statement, made approximately two weeks

before the victim’s death, the defendant admitted that two

months earlier he had been introduced to Branigan, who was

4. Melissa Tsolainos was present during one of Schmolke’s

meetings with Branigan and was alleged to have had knowledge of

the conspiracy plans. Melissa also was charged with conspiracy, but

after a trial, she was acquitted.

24a

Appendix A

referred to as “G” (Gerald Branigan), through his daughter,

Melissa. Defendant stated that he knew Branigan was a hit

man. The defendant asked Branigan if he knew what was

involved in having someone killed. When Branigan asked

why the defendant was seeking this information, the

defendant told Branigan that he was having problems with

his ex-wife because she was trying to gain custody of their

children and half of their assets. Approximately six weeks

later, Schmolke contacted Melissa Tsolainos and asked her

to have the defendant contact him. Schmolke ostensibly was

attempting to put the defendant in contact with Branigan,

but the defendant claimed he had been avoiding Branigan to

keep from giving him a definite answer about the murder.

The defendant did not speak to Schmolke because he talked

to Branigan first. Branigan told him that the hit would

be done.

The defendant told Branigan that the intended victim

was in St. Louis, but did not provide Branigan with her

address or telephone number. The defendant and Branigan

then negotiated a price. The defendant thought he agreed on

$500.00, but later found out that he had misunderstood and

the actual asking price was $5,000.00. They also discussed

payment arrangements. Half of the arranged fee was to be

paid before Branigan left for St. Louis, with the balance to

be paid upon his return. The defendant and Branigan also

arranged a method by which the defendant could inform

Branigan if it was safe to return to St. Tammany Parish after

the murder. The defendant claimed he was supposed to

provide Branigan with the intended victim’s address and a

photograph of her, but he never actually did. The defendant

stated that during his final conversation with Branigan,

25a

Appendix A

Branigan asked the defendant if he still wanted to go forward

with the planned murder. The defendant responded

affirmatively, but instructed Branigan to wait until further

notice.

Defendant also provided information on the extent of

Melissa’s involvement in the conspiracy plans. He indicated

that Melissa knew what he was trying to arrange with

Branigan:

Q.

A.

She knew that you planned on or you were in the

process of getting a hit done?

Yes, and that’s when I explained to her that Melissa,

this is not a good idea, these boys want to do it either

this way or that way, and one of the ways they want

to do it is the overdose, and I don’t know if Mom’s

actually doing that anymore. It would look funny,

and I don’t want to have anything to do with it

anymore, and uh, I did ... I think the whole idea

was a bad idea, you know, and I didn’t want them

bothering her about it either.

Did she know right at that point, when you told her

it was going to be done by an overdose?

Well, that’s when I discussed about, I tried to inform,

I was informing her of what the plan was.

26a

Appendix A

Detective Juge’s Trial Testimony

Det. Juge further testified that on July 19, 1998, he

became involved in the investigation of the murder of the

victim. At approximately 8:15 p.m., Det. Juge was dispatched

to the Morgan Bluff Road residence. Upon determining that

there were eyewitnesses to the incident, Det. Juge spoke with

Clarissa, Stephen Tsolainos, and George Deforrest. Det. Juge

took taped statements from each of them at the residence.

Later, at the St. Tammany Parish Sheriff’s Office, Det. Juge

advised the defendant of his Miranda rights, obtained a

waiver of those rights, and asked the defendant what

happened. The defendant replied, “I just killed my old lady.

What else you want me to say?” Thereafter, the defendant

made a taped statement to Det. Juge.

In his taped statement, the defendant told the detective

that, on July 19, 1998, he and Connie Deville left Marrero

and traveled to Waveland, Mississippi, to look at real estate.

According to the defendant, the couple pianned to get married

and settle there. While in Waveland, Connie called her home

and learned that Bobby Brown, the maternal uncle of the

defendant’s children, had called her home looking for the

defendant. In response, the defendant contacted Brown and

learned that the victim, who had been granted use of the

Morgan Bluff Road residence, had requested that Connie

Deville come and retrieve the things she had stored in the

garage of the residence. The defendant and Connie

immediately proceeded to the Morgan Bluff Road residence

to retrieve their belongings.

2S ROE RAY MeN RODE TNS ot

27a

Appendix A

Upon arriving near the residence, the defendant exited

the vehicle at a stop sign approximately 100 yards from the

residence and Connie went onto the property. The defendant

Stayed behind due to the conditions of his bond on the

conspiracy charge, which prohibited any contact with the

victim or their minor children. From his position across the

street, the defendant watched as the victim helped Connie

load her belongings into the vehicle.

Sometime later, as Connie continued to load the vehicle,

the victim brought Stephen and Stephanie Tsolainos, the

victim and the defendant’s minor children, out to the street

and allowed them to visit with the defendant. The interaction

between the defendant and the victim was civil, very

amicable. Once Connie finished loading the vehicle, Connie

picked up the defen ‘ant from the street and left the area.

Later that evening, after unloading the vehicle, the

defendant and Connie returned to the residence. The

defendant was driving the vehicle. The defendant entered

the property and he began loading the vehicle while the victim

and Connie stood aside talking. Finally, when the vehicle

was filled, the defendant and Connie prepared to leave. As

they said their goodbyes, Stephanie started to cry. She wanted

to go with her father. As the defendant tried to console

Stephanie, the victim said, “Yeah, you used to be a good

father, that’s why I did this, so you need to get your act

together again.” Annoyed by this comment, the defendant

replied, “you’re a fine one to talk, and uh, at least I didn’t do

heroin and I didn’t take the kids to the projects and put them

in harm[’]s way everyday.” According to the defendant, the

victim became very angry. She started crying, yelling, and

banging on the vehicle.

28a

Appendix A

The defendant stated that he then entered the vehicle,

started the engine, and shifted to reverse. He claimed that he

started moving backwards, but stopped to let Connie get in.

Meanwhile, the victim was still yelling and pounding on the

vehicle’s windshield. Connie kept indicating that the victim

was going to break her mom’s windshield and requesting

that the defendant stop her. The vehicle’s windshield wipers

were engaged and were “going back and forth.” The

defendant depressed the accelerator, but the vehicle did not

move. Somehow, the vehicle was now in neutral. The

defendant then shifted the vehicle into what he thought was

reverse and depressed the accelerator again. The vehicle went

forward and hit the victim.

The defendant denied having any intent to hit the victim.

He claimed he thought the vehicle was in reverse when he

“gunned” the accelerator. Defendant stated his intentions

were to rapidly reverse down the driveway and leave the

premises. He knew that he should not have been at the

residence and was attempting to flee. Defendant claimed he

must have mistakenly shifted the vehicle into drive while

attempting to disengage the windshield wipers. The defendant

was unable to recall whether he ever applied the brakes during

the incident.

The state introduced a copy of the defendant’s taped

statement and a transcript of its contents into evidence.

Detective Juge testified that the defendant showed no remorse

during the taped statement.

2 Be if VMN RRO ROL RT INTER HAH SE IEEE ANANSI ROL IE

29a

Appendix A

Defendant’s Evidence

The defendant took the stand in his own defense.

Defendant admitted striking the victim with the vehicle.

However, he alleged that it was an accident. He claimed he

inadvertently shifted the vehicle into drive while attempting

to disengage the windshield wipers.

In support of the accident theory, the defendant presented

evidence of the design of the Buick Skylark. Dr. Edward

Carnes, an expert human factors ergonomist and human

factors engineer, testified that the Buick Skylark involved in

this case contained several design defects giving rise to

increased potential for “control misapplication” or “operator

error.” The design defects noted by Carnes included the

gearshift lever and windshield wiper lever of similar size

and shape located in close proximity to one another on the

same side of the steering column.

As further support of his control misapplication theory,

the defendant also elicited the testimony of Betty Rodriguez,

the owner of the Buick Skylark.’ Mrs. Rodriguez testified

that although the defendant periodically used her vehicle to

make short trips to the video store, the day of the instant

incident was the first time he ever used the vehicle for any

extended period of time. She further testified that she often

experienced problems differentiating between the gearshift

and the windshield wiper lever.

The defendant also presented the testimony of Connie

Deville. Deville testified that on the date in question, each

5. The record established that Betty Rodriguez is the mother of

the defendant’s girlfriend, Connie Deville.

30a

Appendix A

time the defendant attempted to shift the vehicle, the

windshield wipers would engage.

Regarding the encounter at the Morgan Bluff Road

residence, Deville testified that when she and the defendant

prepared to leave, Stephanie began to cry because she wanted

to go with the defendant. According to Deville, the defendant

then turned to the victim and stated that perhaps the reason

the child did not want to be with the victim was because

of “what [the victim] did to her while she was pregnant.”

This remark, Deville stated, upset the victim, and a verbal

confrontation between the victim and the defendant ensued.

__ During the argument, the victim called for Clarissa to

come and get Stephanie. Deville testified that Clarissa came

outside, got Stephanie, and returned to the house. Thus,

Clarissa was not outside when the defendant struck the victim

with the vehicle.

Deville stated that she was standing near the vehicle,

inside the opened passenger door, when the defendant started

the ignition. The defendant revved the engine and the vehicle

jerked backwards, knocking Deville to the ground.

Meanwhile, the victim and the defendant were still “hollering

back and forth.” As Deville attempted to get up from the

ground, she witnessed the vehicle strike the victim. Deville

testified that neither Clarissa nor Stephanie was hit by the

vehicle, as they were not outside.

Deville claimed the defendant appeared to be “in shock”

immediately after the incident. On cross-examination, Deville

testified that the defendant told her, “[t]hey are going to blame

me for it and it was an accident.”

3la

Appendix A

In support of his insanity defense, the defendant elicited

expert testimony from Dr. John Wilson, a psychologist

specializing in “stress and the effects of stress on

individuals.” Dr. Wilson conducted a one-on-one interview

with the defendant, administered psychological tests, and

reviewed numerous collateral documents regarding the

circumstances surrounding the incident. Dr. Wilson

concluded that the psychosocial stresses of the situation:

including the victim’s rageful state, the victim’s history of

drug abuse and unpredictably violent behavior, the

defendant’s knowledge of the existing restraining order, and

the unexpected forward movement of the vehicle, all

triggered a “hypervigilant” or fear response, which directly

impacted the defendant’s behavior during the incident in

question. Based largely on his clinical evaluation of the

defendant, Dr. Wilson opined the psychosocial stresses

caused emotional escalation of “fear, panic, confusion,

disorientation, [and] increased arousal” in the defendant,

which in turn affected the defendant’s ability to cope with

the situation and to properly operate the vehicle. On cross-

examination, however, Dr. Wilson admitted that the

defendant’s emotional reaction was also due, at least in part,

to “anger.”

After a careful review of the record, we are convinced

that a rational trier of fact, viewing all of the evidence in a

light most favorable to the prosecution, could have concluded

that the state proved beyond a reasonable doubt that the

defendant was guilty of second degree murder. Although the

defendant has asserted repeatedly from the time of the

victim’s death that the incident was accidental, his claim is

inconsistent with the testimony presented by eyewitnesses.

Ms gunna enemies secrecy 8 te se

32a

Appendix A

The guilty verdict in this case indicates that the jury accepted

the testimony of the state’s witnesses, and that the evidence

was sufficient to show the defendant intended to kill the

victim. The jury obviously rejected the defendant’s claim

that he accidentally ran over the victim when he misapplied

the vehicle’s controls. As the trier of fact, the jury is free to

accept or reject, in whole or in part, the testimony of any

witness. State v. Johnson, 99-2114, p. 14 (La. App. 15" Cir.

12/18/00), 800 So.2d 886, 894, writ denied, 2001-0197

(La. 12/7/01), 802 So.2d 641. We find no error in the jury’s

decision to accept the testimony of the state’s witnesses in

this case.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

FAIR TRIAL

In this assignment of error, the defendant contends that

he did not receive a fair and impartial trial. In support of his

contention, the defendant alleges the following trial court

errors: (1) the trial court’s denial of his motion for change of

venue based upon pretrial publicity; (2) the trial court’s

failure to permit appropriate detailed individual questioning

of jurors; (3) the trial court’s denial of the defendant’s cause

challenges against certain jurors based upon pretrial publicity;

and (4) juror Mark Berryhill’s failure to admit his relationship

with a witness and to disclose the acrimonious nature of his

divorce.

33a

Appendix A

Change of Venue

On September 29, 1998, the defendant moved for a

change of venue, arguing that extensive and inflammatory

media coverage and pretrial publicity in this case caused

preconceived public prejudice against the defendant

and made it impossible for him to receive a fair trial in

St. Tammany, Tangipahoa, or Washington Parishes. He argued

that the extent of the preconceived public prejudice against

him necessitated a change of venue. On August 31, 1999,

prior to holding a hearing, the court denied the defendant’s

motion for change of venue as premature, specifically

reserving defendant’s right to re-urge the motion after the

completion of voir dire.°

Subsequently, on October 12, 1999, prior to

commencement of voir dire, the trial court held a hearing on

the defendant’s motion for change of venue. In support of

his contention that the quantum and inflammatory nature of

the pretrial publicity attendant to the case made it impossible

for him to receive a fair trial, the defendant introduced results

from a public opinion poll, several videotapes of news

broadcasts, logs of when the reports were televised, and

copies of the numerous newspaper articles reporting on

the incident.

6. Defendant filed a supervisory writ application with this court

seeking review of the trial court’s ruling on the motion for change of |

venue. In an unpublished decision, this court denied the writ

application. State v. Tsolainos, 99-2401 (La. App. 1* Cir. 10/8/99).

Defendant then sought supervisory review with the supreme court,

which also was denied. State v. Tsolainos, 99-2885 (La. 10/11/99),

748 So.2d 457.

ee eee eee

34a

Appendix A

In addition, the defendant introduced newspaper articles

and news broadcasts reporting on the public bribery case of

22™ Judicial District Court Judge Patricia Hedges. Judge

Hedges was the trial judge responsible for reducing the

defendant’s bond on the conspiracy charges. She was later

indicted for extortion, bribery, and malfeasance in office.’

Judge Hedges was alleged to have committed malfeasance

in office in connection with her reduction of the defendant’s

bond.

At the hearing, the defendant also presented the

testimony of Buster McKenzie, president of Southern Media

and Opinion Research, Inc., who was qualified and accepted

as an expert in public opinion sampling, with particular

expertise in the performance of public opinion polling.

Defendant also presented the testimony of Dr. Hunter

Downing-Alessi®, the head of the Department of Counseling,

Family Studies in Educational Leadership program at

Southeastern Louisiana University. Dr. Downing-Alessi was

qualified and accepted as an expert in the field of licensed

professional counseling.

McKenzie testified that in connection with the instant

case, Southern Media and Opinion Research, Inc. conducted

a formal public opinion survey of registered voters in

7. The defendant was arrested on July 7, 1998 for conspiring

to have the victim killed. Bond was set at $800,000. On July 17,

1998, Judge Hedges reduced the defendant’s bond to $450,000, and

he was released. Two days later, the instant offense occurred.

8. Throughout the record, Dr. Downing-Alessi’s name is

erroneously cited as “Downey-Alessi.”

35a

Appendix A

St. Tammany, Tangipahoa, and Washington Parishes to

determine (1) the extent of media readership and viewership

in the tri-parish area, (2) the awareness of media concerning

the defendant, and (3) what opinions people might hold

with respect to the defendant. In connection with the

polling, investigators interviewed approximately 1200

registered voters (400 from each parish) from the study area.

The defense introduced the collective survey results from

the tri-parish study area, as well as the results from each

individual parish.

Results of the St. Tammany Parish poll indicated that of

the 400 individuals interviewed, more than 80% were familiar

with the facts of the case. However, of the individuals who

were familiar with the case, over 60% indicated that they

had not formed an opinion about the case.

Dr. Downing-Alessi testified regarding the subtle or

subconscious effect that any publicity might have on a

prospective juror. In connection with her testimony,

Dr. Downing-Alessi reviewed literature and research that

indicated that the usual pretrial publicity can prejudice

potential jurors. She opined that the usual remedies; such as

extended voir dire, judicial admonitions, and deliberations

by the jury, are not effective at reducing the publicity-induced

prejudice. She believed that potential jurors tend to

overestimate their ability to be fair and impartial when faced

with emotionally-laden material. After evaluating the results

of the public opinion survey and reviewing the evidence of

pretrial publicity introduced by the defendant, Dr. Downing-

Alessi concluded that a change of venue would be the most

effective remedy to combat the effects of pretrial publicity

in this case.

genres reeeennnseseceeneenreesmanennenenccasescnesnsreenl

36a

Appendix A

At the conclusion of the hearing, the trial court deferred

ruling on the motion until after voir dire. The court held that

voir dire was necessary to determine if actual prejudice

against the defendant existed on the part of the prospective

jurors.

According to the information gathered during voir dire,

approximately forty-eight prospective jurors were questioned.

Of those questioned, the majority, about 85%, had been

exposed to some publicity surrounding this case. Of the jurors

who were familiar with the case, 10 were dismissed for cause

for having formed an opinion about the case based on pretrial

publicity.? The remaining jurors with any knowledge of the

case, all denied that any published accounts of the case would

affect their ability to apply the law in a fair and impartial

manner. In denying the other challenges for cause based on pre-

trial publicity, the trial court reviewed each case and articulated

its reasons for finding that the particular juror could be

impartial. None of the jurors had taken part in the poll.

Although a defendant is not entitled to a jury that is

totally ignorant of the case to be heard, the Louisiana

Constitution grants the accused the right to trial by an

impartial jury. State v. Bennett, 527 So.2d 1126, 1127

(La. App. 1* Cir. 1988). See La. Const. art. I, § 16. “A change

of venue shall be granted when [a defendant] proves that by

reason of prejudice existing in the public mind... , or that

for any other reason, a fair and impartial trial cannot be

obtained in the parish where the prosecution is pending.”

9. Two additional prospective jurors were dismissed for cause

for other reasons.

37a

Appendix A

La. Code Crim. P. art. 622. In deciding whether to grant a

defendant’s motion for change of venue, the trial court must

decide if prejudice or influence will affect either the answers

of the jurors on the voir dire examination or the testimony of

the witnesses at trial. State v. Clark, 442 So.2d 1129, 1132

(La. 1983).

Factors to consider in determining whether a change of

venue is appropriate include:

(1) the nature of pretrial publicity and the

particular degree to which it has circulated in the

community, (2) the connection of governmental

officials with the release of the publicity, (3) the

length of time between the dissemination of the

publicity and the trial, (4) the severity and

notoriety of the offense, (5) the area from which

the jury is to be drawn, (6) other events occurring

in the community which either affect or reflect

the attitude of the community or individual jurors

toward the defendant, and (7) any factors likely

to affect the candor and veracity of the prospective

jurors on voir dire.”

State v. Bell, 315 So.2d 307, 311 (La. 1975).

“In urging a change of venue for his trial, an accused

must establish that there exists such prejudice in the collective

mind of the community that a fair trial is impossible.” State

v. Wilson, 467 So.2d 503, 512 (La.), cert. denied. 474 U.S.

911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985). “The defendant

__must show more than mere public knowledge of facts

38a

Appendix A

surrounding the offense to be entitled to have his trial moved

to another parish.” /d. “In unusual circumstances, prejudice

against the accused sufficient to mandate a change of venue

may be presumed.” State v. Moseley, 587 So.2d 46, 52

(La. App. 2d Cir.), writ denied, 589 So.2d 1066 (La. 1991);

see Dobbert v. Florida, 432 U.S. 282, 302-303, 97 S.Ct.

2290, 2302-03, 53 L.Ed.2d 344 (1977); State v. Clark,

442 So.2d at 1134. “This presumption of prejudice will only

attach when the trial atmosphere is entirely corrupted by press

coverage or when it is entirely lacking in the solemnity and

sobriety to which a defendant is entitled in a judicial system

of fairness.” State v. Mosley, 587 So.2d at 52. If prejudice is

not presumed, the defendant must establish the existence of

actual prejudice on the part of prospective jurors. See State~

v. Goodson, 412 So.2d 1077, 1080 (La. 1982).

Whether a defendant has made the required showing of

more than mere knowledge is a question addressed to the

trial court’s sound discretion, which will not be disturbed on

appeal absent ant affirmative showing of error and abuse of

that discretion. State v. Wilson, 467 So.2d at 512. Although

the trial court possesses a broad range of discretion in this

area, the reviewing court is also required to make an

independent evaluation of the facts to determine whether the

accused received a fair trial unfettered by outside influences.

State v. Daniels, 628 So.2d 63, 70 (La. App. 1st Cir. 1993),

writ denied, 94-3044 (La. 11/15/96), 682 So.2d 752.

We have thoroughly reviewed all of the evidence

submittcd by the defendant in support of the venue motion.

The record reveals that the defendant failed to prove that a

change of venue was necessary in this case. While the

39a

Appendix A

defendant successfully showed that there was extensive

media coverage and general knowledge within the community

about the basic facts of the case, he failed to present sufficient

evidence of an overriding prejudice within the community’s

collective mind that prevented him from receiving a faiz

trial.'° Although many of the prospective jurors responded

that they were aware of the case, and some even indicated

that the publicity they recalled was negative, each individual

juror assured the court that he or she would be able to set

aside that information and decide the case based upon the

law and the evidence presented at trial. Prospective jurors

who indicated that they had formed an opinion that could

not be set aside were excused for cause. Accordingly, we

find no abuse of discretion by the trial court in denying the

defendant’s motion for change of venue. This argument is

without merit.

Individual Questioning of Jurors

Next, the defendant contends that the voir dire of

prospective jurors in this case was defective. Defendant cites

the trial court’s curtailment of his questioning on whether

the presence of children during this incident would affect

the juror’s opinion.

During the voir dire examination of prospective juror

Woodward, counsel for the defendant asked if the

involvement of children in any aspect of the case would affect

Mr. Woodward. In response to an objection by the state, the

10. The news articles and broadcasts concerning the case,

although admittedly numerous, were primarily factual in nature and

tracked the progress of the case.

40a

Appendix A

trial court instructed defense counsel to rephrase the overly

broad question. Counsel for the defendant then specifically

asked if Mr. Woodward would be affected if he learned that

children were involved in this incident. The state again

objected. The trial judge sustained the objection, holding that

the question goes into facts that may come out in the case.

The defendant did not object to the restriction.

Because the defendant failed to object to the trial court’s

restrictions on voir dire, the issue was not preserved for

review. See La. Code Crim. P. art. 841; State v. Edwards,

94-1985, p. 3 (La. App. 4th Cir. 8/23/95), 660 So.2d 907,

908, writ denied, 96-2383 (La. 2/20/98), 709 So.2d 766, cert.

denied, 525 U.S. 856, 119 S.Ct. 137, 142 L.Ed.2d 111 (1998).

Moreover, our review of the transcript of the entire voir dire

examination shows that the trial judge afforded defense

counsel wide latitude when he examined prospective jurors

as to prejudices, predispositions, or misunderstandings

relevant to the central issues of the case.

Cause Challenges

The defendant contends that the trial court erred in

denying his challenges for cause as to twelve prospective

jurors: Ellen Reagin, Carlos Urbina, David Lynch, Kimberly

Normand, Jerry Gill, Jon Woodward, Charles Borden, Walton

Organ, Mildred Allen, Pamela Rossi, Irene Pratt and Carl

Dugas. He argues that the trial court should have granted

these cause challenges for the prospective jurors who had

been exposed to inadmissible inflammatory information

regardless of their professed state of mind. He asserts that

the denial of his challenges for cause forced him to expend

4la

Appendix A

eight of his peremptory challenges during the jury selection

process.'' The defendant eventually exhausted all of his

peremptory challenges.

A trial court is vested with broad discretion in ruling on

challenges for cause, and its ruling will not be reversed unless

a review of the entire voir dire reveals the court abused its

discretion. State v. Jacobs, 99-1659, p. 5 (La. 6/29/01), 789

So.2d 1280, 1284. “Prejudice to the defendant by a trial

[court’s] rulings is presumed when a challenge for cause is

denied erroneously by a trial court and the defendant

ultimately exhausts his peremptory challenges.” State v.

Williams, 01-1650, p. 10 (La. 11/01/02), 831 So.2d 835, 845.

If a potential juror has formed an opinion of the defendant’s

guilt based on pretrial publicity, the trial court should grant

the defendant’s challenge for cause unless the “juror declares,

and the court is satisfied, that he can render an impartial

verdict according to the law and the evidence.” State v.

Frank, 99-0553, pp. 19-20 (La. 1/17/01), 803 So.2d 1, 18,

quoting State v. Smith, 491 So.2d 641, 646 (La. 1986);

La. Code Crim. P. art. 797(2).

A trial court’s refusal to excuse a prospective juror for

cause is not an abuse of discretion where, “after further

inquiry or instruction, the potential juror has demonstrated a

willingness and ability to decide the case impartially

according to the law and the evidence.” State v. Jacobs,

11. While prospective juror Mildred Allen was included in this

assignment of error, the record reflects that Ms. Allen was not

challenged for cause based upon exposure to pretrial publicity.

Ms. Allen was dismissed from jury service as a result of a peremptory

challenge by the state.

42a

Appendix A

99-1659 at p. 5, 789 So.2d at 1284. “If a juror who has

acquired knowledge about the case through the media can

sufficiently lay aside his or her impression of the defendant’s

guilt or innocence and render a verdict based on the evidence

presented, he or she is competent to serve as a juror.”

State v. Frank, 99-0553 at p. 19, 803 So.2d at 18.

We have reviewed carefully the voir dire examination

responses of each of the named jurors. We note that, while

several of the challenged jurors admitted exposure to some

type of pretrial media coverage, they demonstrated only a

cursory familiarity with the facts surrounding the incident

and denied that published accounts of the case would affect

their ability to remain fair and impartial and to apply the law

as directed by the trial judge. Furthermore, although the

defendant claims that each of the following jurors was

challenged for cause based upon exposure to pretrial

publicity, the record before us reveals that such is not

the case.

Prospective juror Reagin was challenged for cause

because she had been a victim of domestic violence. During

questioning, Reagin stated that she had been a victim of

domestic violence and arguably indicated that she may have

sympathy towards the victim. Later in questioning, Reagin

stated that she understood that the state has the burden of

proving the defendant’s guilt. She assured the court that she

would put aside any personal feelings and decide the case

based upon the evidence presented at trial. In denying

defendant’s challenge for cause, the court stated that Reagin

had been successfully rehabilitated. The court noted that

Reagin’s voir dire responses indicated that she could be fair

43a

Appendix A

and impartial. We find no abuse of discretion in the trial

court’s ruling as to prospective juror Reagin.

Prospective juror Urbina was challenged for cause on

the ground that his wife was employed by the St. Tammany

Parish Sheriff’s Office. During general voir dire examination,

prospective juror Urbina indicated that his wife worked in

the St. Tammany Parish Sheriff’s Office. Later, during

individual questioning, Urbina stated that he learned of this

case from his wife. Urbina indicated that his wife did not

provide many details. She only told him that “something big

happened by Pearl River, about where a husband had killed

a wife or something. That’s about it.” He denied hearing

anything from his wife regarding Judge Hedges or anyone

being in jail prior to the instant incident. When questioned

as to whether he had formed an opinion of the case based

upon the information received from his wife, Urbina

responded negatively. He further indicated that the

information he received from his wife would not affect his

ability to remain fair and impartial. The trial court denied

the challenge for cause, noting that Urbina’s wife was new

on the job and worked in the accounting department. We find

no abuse of discretion in the trial court’s ruling. Urbina’s

voir dire responses do not indicate an inability to decide the

case impartially according to the law and the evidence

presented at trial.

As to prospective juror Lynch, the defendant urged a

challenge for cause based upon Lynch’s extensive knowledge

of the facts of the case. In support of the challenge, the

defendant pointed to Lynch’s voir dire response wherein he

indicated that he read approximately ten newspaper articles

44a

Appendix A

on this case and even recalled that one of the co-conspirators

was from River Gardens. The defendant argued that the

prospective juror’s intimate knowledge of the case raised a

serious question as to his ability to be impartial.

Despite his knowledge of the case and the bond reduction

incident, Mr. Lynch indicated he had not formed an opinion

as to the defendant’s guilt or innocence. He acknowledged

that articles appearing in the newspaper are not always an

accurate depiction of the facts. Lynch unequivocally indicated

that he could ignore anything he had read in the paper, and

would decide the case based upon the facts presented at trial.

He assured the court that none of the information previously

gleaned from the printed media would affect his ability to

decide the case in a fair and impartial manner based upon

the evidence presented at trial. In denying the defendant’s

challenge for cause, the trial court noted that based upon

Mr. Lynch’s voir dire responses, the court was satisfied that

the prospective juror could be fair and impartial. We find no

abuse of discretion as to the court’s ruling as to Mr. Lynch.

The defendant challenged prospective juror Normand for

cause based upon voir dire responses, which he contends

suggested that she would have a problem affording the

defendant the presumption of innocence. He argued that there

were lengthy pauses in Ms. Normand’s responses when she

was questioned concerning whether she would require the

defendant to present a defense. In response to the cause

challenge, the trial judge, who was present during the voir

dire examination, commented on Ms. Normand’s responses

stating, “[t]he Court did review her demeanor. The Court

did observe that her answers were deliberate, but the Court

45a

Appendix A

listened very carefully and she said that she could be fair

and that the Court feels and so noted that she would be an

appropriate potential juror in this case.”

Upon reviewing the entirety of Ms. Normand’s voir dire

responses, we fiid no abuse of discretion in the trial court’s

ruling. Ms. Normand recalled the case from the newspaper

and television. She remembered that the ex-wife was killed

and the defendant was driving the car. Ms. Normand

remembered that there were children involved in the incident |

and that Judge Hedges had some connection with the case.

However, Ms. Normand stated that she could decide the case

on the facts presented at trial. She was confident in her ability

to serve as a fair and impartial juror.

Prospective juror Gill was challenged for cause based

on his exposure to television news coverage during the jury

selection process. In response to voir dire examination, Mr.

Gill admitted that he had been watching a television program

the previous night, when he observed a brief news account

indicating that the defendant’s trial may be moved to a

different venue. He indicated that lie was not specifically

watching the news and denied hearing any other information

on the case. In denying the challenge for cause, the triai court

noted, “[t]he court listened very carefully to Mr. Gill’s

testimony and finds that he testified, unequivocally, that he

could be fair and impartial, that he would listen to the law

and evidence, and the Court does not find that his noting

that there may be a change of venue has any significant

bearing upon the ultimate issue to be cited (sic) if he is made

46a

Appendix A

a juror in this case.” !* Again, we find no abuse of discretion

in the trial court’s ruling.

Prospective juror Woodward, also challenged for cause

by the defendant, did not recall the case at all. He indicated

that he did not watch television and rarely read the newspaper.

Mr. Woodward had no knowledge of any of the facts

surrounding the incident or any facts relating to Judge

Hedges. Mr. Woodward did, however, admit that the fact that

someone has been in jail before might raise a question as to

his or her character. The defendant challenged Mr. Woodward

for cause based upon the aforementioned response, which

he believes indicates the juror’s inability to be fair and

impartial. In denying the challenge, the trial court noted that

Mr. Woodward indicated that the fact that a person has been

in jail “might” raise a question as to his or her character, but

would not be definitive on the issue. The court also observed

that the juror’s “demeanor was one of straightforwardness.”

For these reasons, we find no abuse of discretion in the trial

court’s denial of the challenge for cause. :

The defendant’s challenge for cause as to prospective

juror Borden centered around Borden’s indication that

he would have difficulty considering testimony by a

psychologist as opposed to a psychiatrist. The trial court,

in denying the cause challenge, indicated that Mr. Borden

successfully rehabilitated himself on the psychologist versus

12. The trial court stated that it had admonished the entire panel

of prospective jurors to refrain from watching any news commentary

or news programs and from reading any articles concerning the case.

The court further noted for the record that Mr. Gill was late and

missed the admonishment of the Court in that regard.

47a

Appendix A

psychiatrist issue. The court further noted that Mr. Borden

testified that he could not classify the incident as accidental

or criminal based solely upon his recollection of news

accounts or media coverage. In response to voir dire

examination, Mr. Borden admitted that he vaguely recalled

the facts of this case. He did not recall whether the incident

was presented as an intentional act or as an accident.

Mr. Borden stated he was unaware of any connection

the defendant may have had with Judge Hedges. While

Mr. Borden originally stated that he did not agree with many

of the philosophies of psychologists, he ultimately indicated

that if a psychologist testified in this case he would listen

and scrutinize the testimony before drawing a conclusion.

We find no error in the trial court’s denial of defendant’s

challenge for cause as to prospective juror Borden.

Next, the defendant challenges the trial court’s denial

of his challenge for cause as to prospective juror Organ.

The defendant sought to have Mr. Organ excused for cause

based upon his indicating that he would have animosity

toward the defendant’s trial attorneys. During his voir dire

examination, Mr. Organ admitted that he was familiar with

the incident involved in this case. He also recalled that there

were some charges pending against Judge Hedges for letting

someone out of jail. However, he did not recall that the matter

with Judge Hedges was in any way connected to the instant

case. He stated that he understood that as a juror he would

be required to rely solely on the evidence presented at trial

when deciding the case and did not have a problem doing so.

Mr. Organ further indicated that he would not have a problem

affording the defendant the presumption of innocence.

In response to a question regarding whether he had any

48a

Appendix A

animosity towards defense counsel, Mr. Organ replied,

“IT would say, is there animosity in my gut? Yes, it would be

a lie to say there’s no animosity. To say, can I be fair enough

and believe that this gentleman deserves to be treated fairly

and not put in jail for his life if he doesn’t deserve to be

there, then intellectually I would like to think I could make a

fair judgment.” In denying the challenge for cause, the trial

court noted, “(t]he Court also observed the demeanor of this

potential juror. Recognized him to be articulate. Recognized

him to be — possess a good grasp of the questions that had

been put to him. And the Court finds that this juror certainly

rehabilitated himself, answered very candidly to defense

counsel’s questions about the animosity issue. He, I recall

very vividly, he said that he would not hold that against

Mr. Tsolainos.” Considering Mr. Organ’s voir dire response

as a whole, we find no error in the trial court’s denial of the

cause challenge.

The defendant challenged prospective juror Rossi for

cause based upon her voir dire response indicating that she

thought the defendant was in trouble and would expect him

to present a defense. During voir dire, Ms. Rossi indicated

that she vaguely recalled the facts of this case from the

newspaper. She did not recall whether the news media

characterized the incident as an accident or an intentional

act. Ms. Rossi admitted that while she initially found the

incident to be an “unusual coincidence” based upon the

information indicating that there was some trouble in the

family, she did not automatically conclude it was intentional.

Ms. Rossi stated that although she thought the defendant was

in a lot of trouble based upon the fact that the incident

occurred, she was aware that a criminal defendant is not

49a

Appendix A

required to present a defense. Ms. Rossi did not recall any

information indicating that the defendant had been in trouble

before the present charge. Ms. Rossi unequivocally indicated

that she could set aside any personal feelings and rely solely

on the evidence presented at trial. She further indicated that

the information she read on this case did not, in any way,

affect her ability to remain fair and impartial. On the issue

of other crimes evidence, Ms. Rossi indicated that out of

fairness to the defendant, she would require that the state

prove that the offense alleged was actually committed by the

defendant. Ms. Rossi further indicated that she would not

have a problem following the law as instructed by the trial

judge in deciding this case.

In denying the challenge for cause, the trial court noted

that it observed Ms. Rossi’s demeanor and her responses to

the questions posed and was impressed with her answers.

The court found that Ms. Rossi’s voir dire responses indicated

that she could be fair and impartial and that she was not

unduly swayed by any pretrial publicity. After reviewing

Ms. Rossi’s voir dire responses and the findings of the trial

court, we find that the trial court correctly denied the

defendant’s challenge for cause as to this potential juror.

The defendant challenged prospective juror Pratt for

cause based upon her inability to be fair and impartial.

Specifically, the defendant pointed to Ms. Pratt’s voir dire

response wherein she indicated that she believed that Judge

Hedges did something wrong. The trial court noted that while

Ms. Pratt did mention that she thought Judge Hedges did

something wrong, she indicated that she would not hold this

against the defendant. The court concluded that Ms. Pratt

50a

Appendix A

indicated that she could put aside anything she may recall

about Judge Hedges and follow the law as instructed by the

court. After reviewing the record and considering Ms. Pratt’s

voir dire responses as a whole, we find no error in the trial

court’s determination that Ms. Pratt could be a fair and

impartial juror. The trial court did not abuse its discretion in

denying the challenge for cause as to Ms. Pratt.

Finally, the defendant challenged prospective juror Dugas

for cause based upon his inability to be impartial. The

defendant noted that although Mr. Dugas stated that he would

do his best, he expressed some reservations about whether

his best would be good enough. Defendant argued Mr. Dugas

never unequivocally stated that he would be able to set aside

prior feelings in deciding this case.

In denying the challenge for cause, the trial court stated

that it “listened very carefully to Mr. Dugas’s individual voir

dire and was impressed with his thoughtfulness, his articulate

answers, and also his understanding of media and how they

often have a spin or slant or it’s a one-sided presentation.”

After noting that the voir dire responses provided by

Mr. Dugas were similar to the responses of a prospective

juror in State v. “Blaise,”'’ the trial court denied the

challenge for cause.

Our review of the record reveals that during voir dire

examination, when asked what he recalled about the case,

Mr. Dugas generally recalled that there was an initial incident,

13. The case referred to by the trial court actually is State v.

Glaze, 439 So.2d 605 (La. App. 1* Cir. 1983)

Sla

Appendix A

then a controversial situation regarding bail with Judge

Hedges, and then this incident occurred shortly thereafter.

Mr. Dugas recalled that there was substantial controversy

surrounding Judge Hedges’ actions. In fact, he indicated that

he recalled more about Judge Hedges and the investigation

than he did about the instant offense. As to whether he

believed Judge Hedges did anything wrong, Mr. Dugas stated

that he did not have sufficient details from which to draw a

conclusion. While Mr. Dugas admitted that he was initially

affected by the notably one-sided information provided by

the news media, he later stated that in acting as a juror in a

trial, he would put all of the outside information aside and

listen to all of the facts presented. He further indicated that,

“everything would have to be proved.” When asked if he

would expect the defendant to present a defense, Mr. Dugas

stated that the law, as he understood it, provided that

a criminal defendant is innocent until proven guilty at

trial. When further questioned as to whether the defendant’s

failure to take the stand would leave questions in his mind,

Mr. Dugas replied, “I don’t think so.”

After carefully examining the record and reviewing the

entirety of Mr. Dugas’s voir dire responses, we cannot say

that the trial judge abused his discretion in concluding that

Mr. Dugas could render a fair and impartial decision

according to the law and evidence. Thus, the trial court did

not abuse its discretion in denying the challenge for cause as

to prospective juror Dugas.

52a

Appendix A

Juror Mark Berryhill

The defendant’s next argument concerns juror Mark

Berryhill. The defendant contends that the jury venire was

tainted by Mr. Berryhill’s failure to disclose the fact that he

was acquainted with Charles “Tinker” Schmolke, and that

he had experienced an acrimonious divorce.

A motion for new trial based upon the supposition that

injustice has been done the defendant requires a showing

that actual injustice or prejudice occurred. La. Code Crim.

P. art. 851. Specifically, on the issue of misstatements of

jurors, “the defendant must show that he was prejudiced by

the misstatement for a new trial to be warranted.” State v.

Johnson, 32,910, p. 5 (La. App. 2™ Cir. 01/26/00), 750 So.2d

398, 403-04, writ denied, 2000-0911 (La. 11/3/00), 773 So.2d

140. The trial court has broad discretion in determining the

impartiality of jurors. The court’s ruling will not be disturbed

absent a showing of abuse of discretion. State v. Winn, 412

So.2d 1337, 1344 (La. 1982).

On February 25, 2000, the defendant filed a Motion for

a New Trial and Post Verdict Judgment of Acquittal based

upon newly discovered evidence and tile existence of a

prejudicial error or defect in the proceedings. In support of

the motion, the defendant alleged, among other things,

that evidence discovered after the trial revealed that juror

Mark Berryhill was acquainted with Tinker Schmolke, the

confidential informant in the conspiracy case. The defendant

contends that Mr. Berryhill was impliedly biased, and that

the defendant was prejudiced by his presence on the jury

and denied a fair trial. The defendant further alleged that

53a

Appendix A

Mr. Berryhill’s ability to be fair and impartial was further

complicated by his failure to disclose problems in his divorce.

The record in this case reveals that during general voir

dire, counsel for the state and for the defense read their

prospective witness lists. Neither the state’s nor the defense’s

list included Tinker Schmolke, who had died before the trial.

Thereafter, the trial court asked if any of the veniremen

knew any of the named witnesses. Mr. Berryhill did not respond.

Subsequently, counsel for the defense presented the

following question to the veniremen: “[h]ave any of you

personally been involved in or had a close relative or close

friend who has [sic] involved in a divorce that didn’t go

smoothly? Anybody?” When asked to elaborate on this

inquiry, counsel stated, “[w]ell, a term that lawyers use is

acrimonious between two parties, fighting with each other

over the divorce, community property settlement, things of

that nature. Anybody have that experience in their personal

life or close friends?” Again, Mr. Berryhill did not respond.

At the hearing on the motion for a new trial, the defendant

presented testimony from Ronald Frazier, a private investigator,

who indicated that he interviewed the members of the jury

after the trial. Frazier testified his interview of Mr. Berryhill

revealed that Mr. Berryhill knew Tinker Schmolke and that

Mr. Berryhill had been involved in an acrimonious divorce

that included criminal charges against him and his ex-wife."

14. The evidence contained in the record revealed that Berryhill

had two prior divorces, only one of which is the subject of this

assignment of error.

S4a

Appendix A

After a hearing, the trial court denied the motion.

The trial court stated:

First, as to the fact the defendant discovered after

trial that one of the jurors, Mr. Berryhill, was

acquainted with Tinker Schmolke, the confidential

informant in the case. The court notes that although

the defendant complains that the State did not

list Tinker on its list of witnesses which was read

to the prospective jurors, the defendant knew

well in advance of trial that the tape of Tinker’s

conversations with Gerald Branigan, a co-

conspirator would be played for the jury.

The State and the defendant knew that Tinker

had died several months prior to trial, and because

of that the tape would be essential to the State to

establish a case of conspiracy. That issue was the

subject of a Prieur hearing which was conducted

approximately one month prior to trial, after which

the court ruled that the tape would be admissible.

Given that ruling, the credibility of Tinker would

be an issue and the defendant did attack Tinker’s

credibility at trial based on other grounds. The

defendant could have ascertained whether any

potential jurors knew Tinker by simply asking the

jurors themselves whether any of them knew or

had heard of him. This would not have involved a

voir dire of the potential jurors on Tinker or his

relation to the case as asserted by the defendant,

or getting into facts, for that matter, is another

way of saying it.

55a

Appendix A

The court always, when it conducts that aspect

of the voir dire examination asks the parties to

read their witnesses, witness list, may call list,

and although that may have something to do

with the facts it does not get into a voir dire

examination of the essential facts of the case. And

that I think would be an objectionable ground if

in voir dire you start discussing with the juror,

what is your opinion concerning defenses that may

be raised with the facts that may be presented.

That is clearly improper voir dire. But, to ask the

mere question, do any of you know the late Tinker

Schmoike, would have been appropriate and

would not have been objectionable.

The defendant’s failure to exercise reasonable

diligence on this issue warrants the denial

of defendant’s motion on this ground.

Notwithstanding that, however, the court does not

find that Mr. Berryhill’s knowledge of Tinker

constitutes an error in the proceeding which was

prejudicial to the defendant. Mr. Berryhill testified

that he was only casually acquainted with Tinker,

a fact which was verified by Tinker’s live-in

girlfriend, Sheryl Johnson, who testified that in

four or five years prior to Tinker’s death she never

saw Mr. Berryhill with Tinker, and in fact, had

never met or even seen Mr. Berryhill until the

hearing today.

Regarding Mr. Berryhill’s favored response

to defense’s questions regarding divorces which

56a

Appendix A

did not go smoothly, his answer or failure to

answer during voir dire are not untrustworthy or

deceptive based on the record and his testimony _

today. The question, as phrased by defense counsel

asked the potential jurors for an opinion or

judgment call on their part. Nothing presented

today indicates that Mr. Berryhill did have a

divorce which did not go smoothly or was

acrimonious in any way.

The court notes that it is not essential that a

defendant know every single detail or fact about

a potential juror’s past in order to intelligently -

exercise peremptory challenges, and finds that the

information provided today by Mr. Berryhill

regarding his divorces was not relevant to the

question posed by counsel during voir dire. This

information does not constitute prejudicial error

and would not have changed the verdict in

any way.

Considering the reasons provided by the trial court and

based on the entire record before us, we find no abuse of

discretion in the trial court’s denial of defendant’s motion.

We also find no evidence in this record that would indicate

that defendant was denied his constitutional right to a fair

and impartial jury. This assignment of error lacks merit.

57a

Appendix A

ASSIGNMENTS OF ERROR NUMBERS THREE

AND FOUR PRIEUR ERRORS

In these assignments of error, the defendant contends

that the trial court erred in allowing the state to introduce

evidence of other alleged crimes or bad acts. Specifically,

the defendant complains of the trial court’s ruling allowing

the state to introduce evidence of his participation in a

purported conspiracy to commit the first degree murder of

the victim. The defendant’s argument is essentially twofold.

First, defendant contends that the introduction of the

conspiracy evidence violated La. Code Evid. art. 404(B) and

State v. Prieur, 277 So.2d 126 (La. 1973), which require

that the state first show that the alleged other crime was

actually committed. Defendant avers that the state failed to

sufficiently prove that the crime of conspiracy occurred.

Secondly, defendant argues that the state’s evidence of a

conspiracy, which he contends consisted of a single tape- .

recorded conversation between Branigan and Schmolke, was

inadmissible hearsay.

For the following reasons, we find no error in the trial

court’s finding that the state proved a prima facie case of

conspiracy. Nor do we find error in the court’s allowing the

recorded conversation between Branigan and Schmolke to

be introduced into evidence and played before the jury. Thus,

the trial court did not err or abuse its discretion in denying

the defendant’s motion for mistrial.

58a

Appendix A

Other Crimes Evidence

Because the introduction of evidence of other crimes may

unduly prejudice the jury and deny the accused the right to a

fair trial, evidence of other crimes or wrongs is generally

inadmissible. State v. Schleve, 99-3019, p. 13 (La. App.

1* Cir. 12/20/00), 775 So.2d 1187, 1197, writs denied,

01-0210, 01-115 (La. 12/14/01), 803 So.2d 983, 804 So.2d-

647, cert. denied, 537 U.S. 854, 123 S.Ct. 211, 154 L.Ed.2d

88 (2002). This rule of exclusion stems from the “substantial

risk of grave prejudice to a defendant” from the introduction

of evidence regarding his or her unrelated criminal acis.

Prieur, 277 So.2d at 128. However, when evidence of other

crimes or bad acts tends to prove a material issue and has an

independent relevance other than to show that the defendant

is a bad person, it may be admitted by certain exceptions.

La. Code Evid. Art. 404(B)(1) sets out the purposes for which

evidence of other crimes or bad acts may be admitted:

Except as provided in Article 412, evidence

of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show

that he acted in conformity therewith. It may,

however, be admissible for other purposes, such

as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of

mistake or accident, provided that upon request

by the accused, the prosecution in a criminal case

shall provide reasonable notice in advance of trial,

of the nature of any such evidence it intends to

introduce at trial for such purposes, or when it

relates to conduct that constitutes an integral part

59a

Appendix A

of the act or transaction that is the subject of the

present proceeding.

“Even when the other crimes evidence is offered for a

purpose allowed under Article 404, the evidence is not

admissible unless it tends to prove a material fact at issue or

to rebut a defense. The probative value of the extraneous

crimes evidence must outweigh its prejudicial effect.” State

v. Jacobs, 99-0991, p. 24 (La. 5/15/01), 803 So.2d 933, 951,

cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707

(2002); La. Code Evid. art. 403.

Prior to trial of this matter, the state filed the appropriate

notice of intent to use other crimes evidence. The state sought

to introduce the conspiracy evidence to demonstrate not only

the defendant’s intent to kill and his motive for killing his

ex-wife, but also to rebut the defendant’s allegations that

this was an accidental killing.

Following a hearing, the trial court found that the

conspiracy evidence was relevant and admissible. In written

reasons, the court concluded that the evidence presented at

the hearing was sufficient to prove that the defendant, Melissa

Tsolainos, and Gerald Branigan were engaged in a conspiracy

to murder the victim. The court further found that there was

an overt act in furtherance of the conspiracy: specifically,

Branigan’s act of contacting Schmolke to solicit his

participation in the murder. The court noted that at the time

Branigan contacted him, Schmolke was not a state agent or

confidential informant. Moreover, Branigan contacted

Schmolke again after Schmolke went to the police. Although

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Appendix A

Schmolke could not actually act in furtherance of the

conspiracy, Branigan’s actions were that of a conspirator."°

On appeal, the defendant contends that the conspiracy

evidence was inadmissible because the state failed to prove

any act in furtherance of the conspiracy. He argues that

because Schmolke was not a conspirator, his acts cannot be

attributed to the conspiracy. Thus, the discussions evince only

the agreement phase of a conspiracy. Defendant argues that

to conclude that the discussions between Branigan and

Schmolke were acts in furtherance of a conspiracy, would

eviscerate the requirement of La. R.S. 14:26, which requires

the state to prove both an agreement, or combination of two

or more persons, and an act in furtherance.

La. R.S. 14:26(A) provides in pertinent part as follows:

Criminal conspiracy is the agreement or

combination of two or more persons for the

specific purpose of committing any crime;

provided that an agreement or combination to

commit a crime shall not amount to a criminal

conspiracy unless, in addition to such agreement

or combination, one or more of such parties does

an act in furtherance of the object of the agreement

or combination.

15. The defendant sought supervisory review of the trial court’s

ruling on the admissibility of the other crimes evidence with this

court. In an unpublished decision, this court denied the writ

application. State v. Tsolainos, 99-2401 (La. App. 1* Cir. 10/08/

99). Defendant then filed a supervisory writ application with the

supreme court, which also was denied. State v. Tsolainos, 99-2885

(La. 10/11/99), 748 So.2d 457.

6la

Appendix A

In State v. Richards, 426 So.2d 1314 (La. 1982), the

Louisiana Supreme Court discussed the overt act requirement

of a conspiracy in connection with a first degree “murder for

hire” charge. The defendant claimed the evidence was

insufficient to establish an overt act and, thus, there was

insufficient evidence of guilt.

Defendant Richard'* was identified as the hit man. The

conspirators included Joseph France, the client; Jim McGuire,

a friend who gave France the name of the hit man; and

Richard. Immediately after giving Richard’s name to France,

McGuire contacted federal agents and worked out a deal

involving some pending charges. McGuire wore a wire

transmitter through several meetings. During the meetings,

Richard agreed to commit the murder, informed the others

how he would dispose of the weapon, agreed on a fee of

$6000.00, and worked out an arrangement by which McGuire

would know the deed had been done. Richard told the others

he wanted to perform the hit within a week and asked

McGuire for a down payment of $1500.00. McGuire later

gave him an envelope with money supplied by the police.

McGuire was also supposed to give Richard the name and

address of the victim, but instead told Richard he would call

and furnish the information later. When McGuire left the

meeting, Richard was arrested for the conspiracy to commit

first degree murder. Richards, 426 So.2d at 1315-16.

16. The case is captioned “State v. Richards.” We note,

however, that the text of the case refers to the defendant as “Richard.”

For the purpose of this opinion we will use “Richard” to refer to the

defendant and “Richards” when referring to the case.

62a

Appendix A

In discussing the overt act requirement, the court noted

it could be any act accompanying or following th ement

done in furtherance of the object of the agreement. The court

further noted that the initial agreement to commit the murder

was consummated at the first meeting between McGuire and

Richard. The second meeting, used to transmit the victim’s

name and the down payment, was in furtherance of the

conspiracy. The court quoted with approval language from

State v. D’Ingianni, 217 La. 945, 47 So.2d 731, 733 (1950),

as follows:

Any act, such as a visit by one of the parties to

his coconspirator for the purpose of discussing

details, might suffice as an overt act to complete

a criminal conspiracy although such an act would

be regarded as merely preparatory in a prosecution

for an attempt. [Emphasis added by court in

Richards]

The court then concluded that the evidence was

sufficient. Richards, 426 So.2d at 1317.

D’Ingianni involved a charge of conspiracy to defraud

an insurance company by the defendant’s filing a false claim

on jewelry supposedly taken during a faked robbery.

D’Ingianni, 47 So.2d at 731-32. The information alleged

that two of the conspirators rode in a car with the third

(the insured) from Canal Street to a location outside of New

Orleans and “thereafter left the said D’Ingianni on the

pretense of having taken the said D’Ingianni by force and

violence in said automobile and by force and violence robbed

63a

Appendix A

said D’Ingianni of the aforesaid items of jewelry. . .”

D’Ingianni, 47 So.2d at 732.

The defendant claimed the bill failed to properly charge

conspiracy because it did not allege the ccnspirators

committed an act in furtherance of the conspiracy. Noting

the bill of information alleged the men had ridden in the car

together, the court then concluded as follows:

The complaint of counsel for appellant is

founded upon the fallacious theory that some step

would have had to be taken by one or more of the

conspirators with respect to the insurance

company in order to have set the conspiracy in

motion. In arguing thus, counsel confuse the overt

act in the crime of conspiracy with that required

for an unlawful attempt to commit an offense as

denounced by Article 27 of the Criminal Code.

In conspiracy, it is the combination of minds in

an unlawful purpose which is the foundation of

the offense. [Citations omitted.] Tie reason why

an overt act is required in order for a conspiracy

to be punishable “‘is to afford a locus poenitentiae,

when either or all the conspirators may abandon

the unlawful purpose.” [Citations omitted. ]

As above stated, the overt act may be any act in

furtherance of the agreement; a fortiori, it is not

necessary that it constitute the crime and the

question whether it serves to support.the object

of the conspiracy is one of fact for the jury.

On the other hand, it is necessary, in prosecutions

for attempt, for the State to prove an overt act

64a

Appendix A

tending directly toward the accomplishment by the

accused of his object to commit the offense

intended; mere preparation is not enough. Article

27, Cr. Code. Any act, such as a visit by one of

the parties to his co-conspirator for the purpose

of discussing details, might suffice as an overt act

to complete a criminal conspiracy although such

an act would be regarded as merely preparatory_

in a prosecution for an attempt.

D’Ingianni, 47 So.2d at 733.

Herein, the defendant essentially argues that the

conspirators had to “do” something in furtherance of the

conspiracy to kill Deborah Tsolainos. However, the

conspirators did not need to perform some action that would

constitute or would be part of an actual attempt to commit

the crime. Under D’Ingianni and Richards, once the

defendant asked Branigan to kill the victim and Branigan

agreed, the additional acts of agreeing on a price, working

out a method by which defendant could let Branigan know if

it were safe for him to return to St. Tammany Parish, agreeing

to furnish a photograph of Deborah Tsolainos to Branigan,

and Branigan’s contacting Schmolke, were acts taken in

furtherance of the conspiracy. All of those actions are found

in defendant’s own statement. Although no down payment

was made and defendant’s statement actually indicated there

may have been a misunderstanding as to the actual price,

a price for the act was clearly discussed. While defendant

claimed he was trying to avoid Branigan, the defendant

admittedly discussed the act with Branigan more than once,

but never withdrew from the conspiracy.

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Appendix A

Thus, the trial court’s conclusion that a basis under Prieur

was established was correct. This argument lacks merit.

Hearsay

To admit the otherwise inadmissible out-of-court

statements, La. Code Evid. art. 801(D)(3)(b) required the

state to make a prima facie showing of the existence of the

conspiracy. Defendant contends that the state failed in its

burden. He avers that because Schmolke was never part of

the alleged conspiracy, the recorded conversation between

him and Branigan was inadmissible hearsay.

Hearsay is defined as “a statement, other than one made

by the declarant while testifying at the present trial or hearing,

offered in evidence to prove the truth of the matter asserted.”

La. Code Evid. art. 801(C). If such a statement is offered for

any other purpose, such as proof only that the statement was

made, then the statement is not hearsay. State v. Thomas,

589 So.2d 555, 568 (La. App. 1* Cir. 1991); State v. Byrd,

540 So.2d 1110, 1113 (La. App. 1* Cir.), writ denied, 546

So.2d 169 (La. 1989).

La. Code Evid. art. 801 provides in pertinent part as follows:

D. Statements which are not hearsay. A statement

is not hearsay if:

(3) Relational and privity admissions.

The statement is offered against a party, and the

statement is:

* * *k *

66a

Appendix A

(b) A statement by a declarant while

participating in a conspiracy to commit a crime

or civil wrong and in furtherance of the objective

of the conspiracy, provided that a prima facie case

of conspiracy is established. . . .

La. Code Evid. art. 801(D)(3)(b).

“A prima facie case of conspiracy is presented when the

state introduces evidence which, if unrebutted, would be

sufficient to establish the facts of the conspiracy.” State v.

Lobato, 603 So.2d 739, 746 (La. 1992). Hearsay evidence

can be used to determine the prima facie case. See State v.

Myers, 545 So.2d 981 (La. 1989); La. Code Evid. art. 104(A).

A trial court’s determination as to whether the state has made

a prima facie showing of a conspiracy will not be overturned

absent clear error. See Lobato, 603 So.2d at 746-47.

In Lobato, the Louisiana Supreme Court considered a

claim that tapes recorded with the assistance of a confidential

informant were admissible. The Court concluded that the

tapes were admissible as non-hearsay. The false statements

contained within the tapes were not made in furtherance of

the conspiracy and were presented to the jurors as false

statements intended to induce the co-conspirators to act. The

true statements by defendant were admissible as admissions

against his own interest. The true statements by the other

conspirators were found admissible as statements in

furtherance of the conspiracy. Lobato, 603 So.2d 745-46.

67a

Appendix A

In the instant case, to prove the requisite prima facie

case of conspiracy, the state introduced the testimony of

Detectives Robert Juge and John Scallan, both of whom had

extensive and intimate knowledge of the conspiracy

investigation that led to the defendant’s arrest. The state also

offered the transcript and audio recording of the June 30,

1998 meeting between co-conspirator Branigan and the

confidential informant Schmolke. During the meeting,

Branigan solicited Schmolke’s participation and explained

the murder plans agreed on by the defendant and himself.

The state also introduced the taped statement the defendant

provided to police upon his arrest on the conspiracy charge.

In the statement, the defendant admitted that he and Branigan

had several conversations during which they established a

price and method for the murder, and devised a plan to protect

the perpetrators from returning to St. Tammany Parish if the

plan to make the death appear accidental went awry.

As previously noted, the standard for a prima facie case is

the establishment of facts which, if unrebutted, would

establish the facts of the conspiracy. In this case, defendant’s

statement alone supports the existence of the conspiracy.

The recorded conversation between Branigan and Schmolke,

which further indicates the defendant’s knowledge of and

participation in the conspiracy, serves to bolster the prima

facie case. Thus, we find the state provided sufficient

evidence to show a prima facie case of conspiracy.

The trial court correctly determined that the statements

made by Branigan in the recorded conversation constitute

non-hearsay statements by a co-conspirator. However,

Schmolke’s statements, made while acting as an informant,

cannot be considered non-hearsay co-conspirator statements

68a

= Appendix A

pursuant to La. Code Evid. art. 801(D)(3)(b). Nevertheless,

we agree with the trial court’s ruling and rationale admitting

Schmolke’s statements in the recorded conversation into

evidence. Schmolke’s statements were offered to provide

context for Branigan’s statements and not to prove the truth

of the matters asserted therein. Furthermore, the court

cautioned the jury that Schmolke’s statements in the

recordings were to be considered only to place Branigan’s

statements in context. Accordingly, we find that Schmolke’s

statements are not hearsay. See La. Code Evid. arts. 801(C)

& (D)(3)(b). This argument has no merit.

Right of Confrontation

Additionally, defendant argues that he was denied his

right of confrontation by the admission of recorded

conversations. In support of his claim, he cites Schmolke’s

suicide prior to trial, and Branigan and Melissa Tsolainos’s

assertion of their Fifth Amendment privilege against

incriminating themselves and their refusal to testify.

In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65

L.Ed.2d 597 (1980), the Supreme Court resolved the

relationship between the rules of hearsay and the

Confrontation Clause. The Court held:

In sum, when a hearsay declarant is not present

for cross-examination at trial, the Confrontation

Clause normally requires a showing that he is

unavailable. Even then, his statement is

admissible only if it bears adequate “indicia of

reliability.” Reliability can be inferred without

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Appendix A

more in a case where the evidence falls within a

firmly rooted hearsay exception.

Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539.

The co-conspirator’s declaration is a firmly rooted hearsay

exception. State v. Ester, 458 So.2d 1357, 1365 (La. App.

2nd Cir. 1984), writ denied, 464 So.2d 313 (La. 1985). From

our review of this record, we find that the contested statement

in the instant case was a co-conspirator’s statement with

referential “indicia of reliability.” Thus, its admission into

evidence was not a violation of the confrontation clause. This

argument lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

ADMISSIBILITY OF EVIDENCE OF

DEFENDANT’S PAST DRUG USE

In this assignment of error, the defendant contends that

the trial court erred in allowing the state to introduce evidence

of the defendant’s prior crack cocaine usage. Defendant

objects to the court’s ruling that defendant “opened the door”

to the issue of his drug use and maintains that this evidence

only showed he is a “bad man” and was not relevant.

Defendant also contends that the trial court erred in allowing

the state to use Doctors Salcedo and Thompson as rebuttal

witnesses.

In response to the defendant’s pleas of not guilty and

not guilty by reason of insanity in this case, the trial court

appointed Dr. John Thompson and Dr. Raphael Salcedo to

examine the defendant and determine his competency to stand

70a

Appendix A

trial and his sanity at the time of the commission of the

alleged offense. After hearing evidence from Dr. Thompson

and Dr. Salcedo, the trial court concluded that defendant was

competent to proceed. During his interviews with each doctor,

defendant admitted to prior use of crack cocaine, as recently

as the day he met with Branigan, within a month or so of the

victim’s death. Defendant indicated he was a recreational

cocaine user and consumed approximately $200.00 worth of

cocaine any given weekend.

At trial of this matter, the defendant presented the

testimony of Dr. Edward W. Carnes, a human factors engineer.

Dr. Carnes was accepted as an expert ergonomist and human

factors engineer for purposes of his testimony. His task was

to consider the potential for human error, specifically, control

misapplication, during defendant’s use of the car during this

incident. In connection with his evaluation, Dr. Carnes

examined the design of other Buick Skylarks; reviewed the

depositions of Clarissa Tsolainos, Connie Deville, and Betty

Ann Rodriguez; the police reports; the defendant’s recorded

statements; the reports of the sanity commission doctors; and

a videotape of the car and the scene of the incident.

Dr. Carnes testified regarding the design of the Skylark,

observing that the levers for the windshield wiper and the

gearshift were similar in size and shape, were located on the

same side of the steering column, and operated in the same

direction of movement. He opined these “design defects”

could cause “control misapplication” with potential for

operator error in reaching for one lever, but inadvertently

hitting the other. He explained, if the operator intended to

7la

Appendix A

push a lever up, the windshield wipers either activated,

or the car would go into reverse, depending on the lever.

Dr. Carnes evaluated the situation considering defendant’s

account that immediately before the incident, the victim was

yelling, hitting the car, and attempting to climb up the front

end and that the defendant intended to back out of the

driveway and leave. He opined that the defendant suffered

from “hypervigilance” or panic caused by stress induced

either by defendant’s inadvertently engaging the windshield

wipers, as claimed by defendant, or by the victim’s actions.

According to Dr. Carnes, the defendant’s hypervigilant

condition explains why defendant, in a state of confusion,

was unable to stop the car during the incident. He opined

that hypervigilance and control misapplication “are

reasonable explanations for the incident.” Dr. Carnes

conceded, however, that “any stress” could have induced

the hypervigilance.

During cross-examination, Dr. Carnes conceded that an

intentional act could have caused the incident and related

that the documents he examined contained “so many

discrepancies” that it was hard for him to put it all together

as a scientist. There was some reference to the emergency

brake, but his understanding was that it was functional.

Dr. Carnes indicated he was unaware that the defendant

originally told Clarissa that a malfunction in the vehicle’s

emergency brake was the cause of the accident. There was

no gas pedal-brake confusion.

72a

Appendix A

Next, the defendant presented testimony from Dr. John

Wilson, a psychologist. Dr. Wilson was asked to assess what,

if any, psychological factors impacted defendant’s behavior

on the day of the incident, particularly in respect to operation

of the Buick Skylark vehicle. Dr. Wilson concluded that

defendant suffered from “post-traumatic stress disorder,

chronic” and “generalized anxiety disorder, and dysphemia

disorder (mild depression).” He concluded that those

conditions were caused by the victim’s history of addiction

to prescription medications, heroin, and her behavior during

that period of their lives. | ¢

In a hearing outside the presence of the jury, the court

heard Dr. Wilson’s testimony as to whether he considered

relevant the information on defendant’s drug use. He opined

it was not, considering that he had no information that

defendant used drugs on the day of the incident. Dr. Wilson

conceded that crack cocaine was highly addictive. He further

conceded, hypothetically, that if defendant had used crack

cocaine as recently as a couple of weeks prior to the incident,

withdrawal from the drug could have contributed to

“defendant’s rageful state” at the time of the incident.

At the conclusion of this hearing, the court found that:

...the defendant cannot raise the issue of his

mental state and preclude his relative recent use

of crack cocaine which has a profound effect upon

a person’s mental condition and even outward

manifestations of that condition.

73a

Appendix A

The court determines that the prior crack

cocaine usage could be relevant on questioning

this expert’s report that was prepared in

connection with these proceedings.

The court ruled that issues regarding the defendant’s prior,

but fairly recent, drug usage, and what effect, if any, it had

on his actions on the date in question, were issues for the

jury to decide.

Thereafter, the state notified the court and the defendant

that it planned to call Drs. Salcedo and Thompson to rebut

the defendant’s evidence regarding his mental and emotional

state at the time of the incident. The defendant objected and

a hearing was held. The court heard testimony from Drs.

Salcedo and Thompson outside the presence of the jury.

Both doctors indicated that prior to examining the defendant

they informed him of the non-confidential nature of the

interview. During his examination with both doctors, the

defendant indicated he recreationally used marijuana and

crack cocaine. Both doctors testified regarding the possible

effects of cocaine usage and withdrawal symptoms, and how

they would impact the validity of the diagnosis of Drs. Carnes

and Wilson. The doctors also testified regarding the

defendant’s state of mind at the time of the commission of

the incident.

The defendant in this case entered a plea of not guilty

and not guilty by reason of insanity. In connection with the

pleas, the defendant presented expert testimony suggesting

the cause of the incident was stress-induced hypervigilance.

By entering this plea and presenting this defense, the

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Appendix A

defendant tendered the issue of his mental state at the time

of the incident. Therefore, Drs. Salcedo’s and Thompson’s —

testimony regarding their assessment of the defendant’s

mental condition at the time of the offense and any factors

that would have directly affected it is genuinely relevant to

the issue tendered to the jury. “By claiming, (sic) the benefits

of his plea of insanity, he cannot offer that from the past or

present which is favorable to his contention, but at the same

time withhold from the jury’s consideration (if the state offers

it) that which is unfavorable to his plea.” State v. Brown,

619 So.2d 692, 695-96 (La. App. 4th Cir. 1993). We agree.

This argument lacks merit.'’

ASSIGNMENT OR ERROR NUMBER SIX

MOTION FOR A NEW TRIAL

In this assignment of error, the defendant contends that

the trial court erred in denying his second motion for a new

trial in light of newly discovered evidence that Clarissa

Tsolainos and George Deforrest presented perjured testimony

at trial.'* This evidence, the defendant contends, renders the

17. In this assignment of error, the defendant also argues the

state failed to provide Prieur notice regarding its intent to use

evidence of his prior drug usage. The record in this case reveals this

argument was not presented in the trial court. Because the defendant’s

basis for argument on appeal is different from the argument presented

at the hearing below, this issue has not been preserved for appellate

review and will not be considered. La. Code Crim. P. art. 841.

18. The defendant filed two motions for a new trial. In the first

motion, the defendant sought a new trial based on allegations

concerning juror Mark Berryhill.

~ new evidence is material; (3) the failure to discover the

75a

Appendix A

state’s overall evidence insufficient and warrants a new trial.

Defendant further argues that the trial court erroneously acted

as a thirteenth juror in deciding his new trial motion.

Grounds for seeking a new trial are set forth in La. Code

Crim. P. art. 851. That article provides in pertinent part:

The court, on motion of the defendant, shall grant

a new trial whenever:

* * * * *

(3) New and material evidence that,

notwithstanding the exercise of

reasonable diligence by the defendant,

was not discovered before or during the

trial, is available, and if the evidence had

been introduced at the trial it would

probably have changed the verdict or

judgment of guilty. ...

Thus, under Article 851(3), a new trial shall be granted

when: “(1) new evidence was discovered after trial; (2) the

evidence was not due to a lack of diligence on the part of the

defense; and (4) had the evidence been introduced, the verdict

or judgment of guilty probably would have been changed.”

State v. Watts, 2000-0602, p. 6 (La. 1/14/03), 835 So.2d

441, 447. In evaluating whether or not the newly discovered

evidence warrants a new trial, the test to be employed is not

simply whether another trier of fact might render a different

verdict, but whether the new evidence is so material that it

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Appendix A

should produce a verdict different from that rendered at

trial. State v. Henderson, 99-1945, p. 15 (La. App. 1* Cir.

6/23/00), 762 So.2d 747, 758, writ denied. 2000-2223

(La. 6/15/01), 793 So.2d 1235. The trial court’s denial of a

motion for new trial will not be disturbed absent a clear abuse

of discretion. State v. Maize, 94-0736, pp. 27-28 (La. App.

1* Cir. 5/5/95), 655 So.2d 500, 517, writ denied, 95-1894

(La. 12/15/95), 664 So.2d 451.

At a hearing on the second motion for a new trial, Cherie

Breaux, an acquaintance of Clarissa, testified that during a

conversation at a birthday party of Clarissa’s younger brother

Stephen, Clarissa stated “George [Deforrest] lied for me on

the stand and I owe him $20,000 or a truck... .” Although

Breaux surmised that Clarissa was referring to the defendant’s

criminal trial, Breaux admitted, on cross-examination, that

Clarissa did not mention a specific trial, criminal or civil.

Breaux further testified that Clarissa did not reveal the

substance ox nature of the lie.

David Showalter testified that he overheard the

conversation wherein Clarissa told Breaux that Deforrest lied

for her in court. Like Breaux, Showalter indicated that

Clarissa did not specifically say which court proceeding she

was referring to and did not provide the substance of the lie.

Next, Jessie Polk, whose wife is an acquaintance of

Clarissa, testified that once, while out partying, Clarissa

indicated that she was not present when the defendant ran

over the victim. On another occasion, according to Polk,

when Clarissa was staying with him and his wife, she broke

down and cried, stating that she had not witnessed the

incident in question because she was not outside.

77a

Appendix A

Sheree Bossier (Sheree), Mr. Polk’s wife, testified that

she and Clarissa became friends when Clarissa was placed

in the Bossier home as a foster child back in 1994 or 1995.

Bossier testified that on the day the incident occurred, she

received a call indicating that Clarissa’s mother had been

injured. Sheree stated she and her mom went to the Morgan

Bluff Road residence, and Stephen Tsolainos stated that when

the incident occurred, “he had to run inside and get his sissy

[Clarissa] to come outside because he was scared, he didn’t

know what to do.” On cross-examination, when informed

that Stephen provided a statement indicating that Clarissa

was outside and questioned as to whether she misunderstood

Stephen’s comment to her, Sheree indicated she heard him

clearly, but stated that Stephen “could have possibly been

confused too.” Sheree further testified that on at least three

separate occasions Clarissa told her that she was not outside

when the incident occurred.

Pat Bossier, Sheree’s mother and an acquaintance of the

Tsolainos family, also testified. Mrs. Bossier testified that

she was present on the night of the incident when Stephen

indicated that he had to run inside and get Clarissa after his

dad ran over his mom. She further testified that Clarissa, on

one other occasion, stated that she and Deforrest were not

outside when the incident occurred.

In opposition to the motion for new trial, the state

presented the testimony of Det. Juge. In his testimony, Det.

Juge indicated that shortly after arriving at the Morgan Bluff

Road residence on the night of the incident, he obtained

recorded statements from Clarissa, Deforrest, and Stephen.

Det. Juge testified that every statement taken in connection

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Appendix A

with his investigation of the incident, including the statement

taken from the defendant, indicated Clarissa was outside.

Det. Juge testified that Stephen, in his statement,

indicated, “Clarissa saw the wreck.” Det. Juge further

testified that in her statement on the night of the incident,

Clarissa indicated that she had been outside when the

defendant ran over the victim. She also indicated that she

and her sister, Stephanie, were also hit with the vehicle.

Det. Juge further testified regarding the taped statement he

took from the defendant on the night of the incident. In the

statement, while describing the verbal encounter between him

and the victim, the defendant indicated, “I was trying to tell

Clarissa who I was yelling at,” thereby indicating that Clarissa

was outside.

Clarissa also testified at the hearing. She denied ever

telling anyone she was not outside. Clarissa testified that her

prior testimony at the defendant’s trial was truthful. Clarissa

explained that the testimony of the defendant’s witnesses at

the hearing was untrue and motivated by money.

A copy of a tape of the call Clarissa made to 911 was

introduced at the hearing and played for the court. During

the call, Clarissa indicated that her father ran over her mother.

Clarissa told the operator that the vehicle also struck her and

her sister.

Deforrest testified he was not given anything for his

testimony at the defendant’s trial. He further testified that

Clarissa was outside when the incident occurred and went

inside afterwards.

79a

Appendix A

At the conclusion of this hearing, the trial court denied

the motion for a new trial. The trial court provided oral

reasons for its ruling.

Subsequently, on August 19, 2002, in connection with

his contention that Clarissa and Deforrest provided perjured

testimony at his trial, the defendant filed a Motion to Reset

the Motion for New Trial for the Taking of Additional

Evidence. On February 25, 2003, the trial court reopened

the hearing.

At the February hearing, Clarissa, now a witness for the

defense, testified that she was on probation when she testified

at the first new trial hearing. Clarissa testified that, as she

understoud it, there was a warrant for her arrest outstanding

at that time. She stated that on the date of the first hearing

she spoke with her probation officer prior to appearing to

testify. Clarissa claimed her probation officer, Dena Lopez,

asked Clarissa if she could pass a drug screen that day.

Clarissa responded that she would not. Clarissa testified that

she would not have been able to pass a drug screen because

she was under the influence of marijuana and Xanax at that

time.

Clarissa also testified regarding a written statement she

provided to defense counsel on January 14, 2002. In her

statement, Clarissa admitted she was under the influence of

Xanax at the first hearing. She further indicated that the

assistant district attorney who prosecuted the defendant’s case

had her warrant lifted and “was giving [her] a secona chance

since [she] had violated probation.” Clarissa also indicated

she could have said she “lied on the stand” as Cherie Breaux

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Appendix A

indicated in the first hearing. Clarissa explained that she did

not recall exactly what she lied about, except her statement

indicating that her mother hadn’t been drinking on the day

she was killed. Clarissa went on to admit that the victim “had

become an alcoholic at the time. Not on heroin but she did

drink a lot.” Towards the end of the statement, Clarissa

indicated that she could have said that Deforrest wanted her

to give him some money or buy him a truck, but she did not

recall making that statement.

On cross-examination, Clarissa again admitted that she

had lied about the victim’s alcohol consumption on the day

of the incident. However, Clarissa unequivocally stated that

she did not lie about what she saw that evening. Clarissa

further stated that her offer to give Deforrest money or help

him get a truck was unrelated to his testimony at the

defendant’s criminal trial.

Sam Gebbia, a felony investigator for the District

Attorney’s office, accompanied Clarissa to see her probation

officer on the day of the first hearing. He testified that Clarissa

never indicated that she would have failed a drug screen.

On the second day of the hearing, Dena Lopez, Clarissa’s

probation officer, testified that she met with Clarissa on

November 26, 2001, to discuss the conditions of her

probation. During this meeting, Clarissa was five or six

months pregnant. Clarissa told Lopez that she violated her

probation because she did not have any money to pay her

fines and monthly probation fees. Clarissa further explained

the additional hardships she was experiencing, particularly

putting her child up for adoption in California. Lopez

8la

Appendix A

testified, although the prosecutor in the defendant’s case had

called Lopez and asked for leniency in regards to Clarissa’s

probation violation, that she would have given Clarissa a

second chance anyway. Lopez denied Clarissa ever stated

that she would fail a drug screen.

On appeal, the defendant alleges that the testimony

presented at the motions for a new trial, particularly Clarissa’s

testimony regarding the victim’s alcohol consumption,

probably would have produced a different verdict. He asserts,

had the jury been aware of the state of the victim’s alcohol

consumption, it probably would have concluded the victim

was the aggressor in the incident, which, he avers, would

have resulted in a different verdict. The defendant further

contends that had the jury been aware of Clarissa’s promise

to give Deforrest money, it would have possibly disregarded

Deforrest’s testimony regarding the comment made by the

defendant upon exiting the vehicle.

In its initial ruling on the second motion for new trial,

the court stated:

It is the duty and responsibility of the court to

evaluate the witnesses’ testimony and give what

weight the court feels that that testimony deserves.

Thus, it becomes an issue of credibility of the

witnesses and also not only for the hearing that is

before the court today; but the credibility of the

witnesses that testified before the trier of facts,

which is a jury of twelve persons, here in this very

courtroom.

82a

Appendix A

The court after giving the credit that it feels

the witnesses deserves comes to the conclusion

that the defendant is not entitled to a new trial.

As previously noted, when ruling on a motion for new

trial based upon newly discovered evidence, a trial court’s

duty is not to weigh the new evidence or “determine what is

true or false in light of the additional information.” State v.

Watts, 2000-0602 at pp. 8-9, 835 So.2d at 448. Thus, it

appears the trial court applied an incorrect standard in

deciding this motion for a new trial. —-

However, the trial court further found that the evidence

of Clarissa’s testimony would not change the jury’s verdict,

a finding based on the correct standard. The court did not

find Clarissa’s testimony regarding the victim’s alcohol

consumption to be material because this issue was adequately

put before the jury at trial. In addition, the court concluded

that evidence presented, regarding whether Clarissa gave or

intended to give Deforrest money, did not show that Clarissa

was compensating Deforrest for his testimony at the criminal

trial.

We find no error in these conclusions. Although Clarissa

admitted she lied about the victim’s alcohol consumption,

we note, as did the trial court, this issue was already before

the jury by virtue of Dr. MacKenzie’s testimony and the

autopsy report. Everyone who was present at the scene,

including Clarissa and Deforrest, testified that the victim was

angrily beating on the hood and the windshield of the vehicle

while yelling profanities. Even in light of this evidence and

the trial court’s instruction on the possibility of the responsive

83a

Appendix A

verdict of manslaughter, the jury convicted the defendant of

second degree murder. Thus, it is clear that evidence of the

victim’s alcohol use, and Clarissa’s admitted perjury on that

issue, would not have changed the outcome.

As to the testimony indicating that Clarissa allegedly

stated she was not outside, we note that, from the moment

she made the 911 call until her testimony at the second motion

for a new trial; Clarissa never wavered in her claim that she

personally witnessed the incident. Likewise, Deforrest, in

his statement to police on the night of the incident, his

subsequent testimony at the defendant’s trial, and his

testimony at the motion for new trial, consistently indicated

that Clarissa was outside during the incident. Given the

consistency of this evidence, and the other evidence

submitted at trial, we are unable to conclude that the contrary

testimony, of individuals admittedly acquainted with the

defendant, would have produced a different verdict or would

have changed the jury’s verdict.

Therefore, after a careful review of the record, we do

not find that defendant has met all the requisites for the

granting of his motion for new trial based upon newly

discovered evidence. Although the trial court may have

articulated the incorrect standard in its reasons for denying

the motion, the end result was correct. The defendant’s

motion for a new trial was properly denied. This assignment

of error lacks merit.

84a

Appendix A

ASSIGNMENT OF ERROR NUMBER SEVEN

BRADY VIOLATIONS

In this assignment of error, with little or no elaboration

or argument, the defendant lists twenty-two instances wherein

he contends that the state withheld or suppressed information

favorable to him, in violation of open-file discovery and

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963). The defendant argues that the state’s failure to

disclose the referenced items warrants reversal of his

conviction. In response, the state avers that the items referred

to by the defendant (1) were produced at trial and do not

constitute the sort of Brady violations discussed in the

jurisprudence, (2) were clearly not relevant or not Brady

material, or (3) did not exist or were events that occurred

after the trial of this matter.

The purpose of pretrial discovery procedures is to

“eliminate unwarranted prejudice [to a defendant] which

could arise from surprise testimony.” State v. Mitchell, 412

So.2d 1042, 1044 (La. 1982). Discovery procedures enable

a defendant to properly assess the strength of the state’s case

against him in order to prepare his defense. State v. Roy,

496 So.2d 583, 590 (La. App. 1* Cir. 1986), writ denied,

501 So.2d 228 (La. 1987). If a defendant is lulled into a

misapprehension of the strength of the state’s case by the

failure to fully disclose, such a prejudice may constitute

reversible error. State v. Ray, 423 So.2d 1116, 1118 (La.

1982).

Under the United States Supreme Court decision of

Brady, the state, upon request, must produce evidence that

85a

Appendix A

is favorable to the accused where it is material to guilt or

punishment. This rule has been expanded to include evidence

that impeaches the testimony of a witness where the reliability

or credibility of that witness may be determinative of guilt

or innocence. Giglio v. U.S., 405 U.S. 150, 154, 92 S.Ct.

763, 766, 31 L.Ed.2d 104 (1972). Where a specific request

is made for such information and the “subject matter of such

a request is material, or indeed if a substantial basis for

claiming materiality exists, it is reasonable to require the

prosecutor to respond either by furnishing the information

or by submitting the problem to the trial judge” for an in

camera inspection. U.S. v. Agurs, 427 U.S. 97, 106, 96 S.Ct.

2392, 2399, 49 L.Ed.2d 342 (1976); see State v. Cobb, 419

So.2d 1237, 1241 (La. 1982).

The test for determining materiality was firmly

established in U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375,

87 L.Ed.2d 481 (1985), and has been applied by the Louisiana

Supreme Court. State v. Rosiere, 488 So.2d 965, 970

(La. 1986). The evidence is material only if there is a

reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different. A “reasonable probability” is a probability sufficient

to undermine confidence in the outcome. Bagley, 473 U.S.

at 682, 105 S.Ct. at 3383.

After a thorough review of the record for each alleged

violation, and consideration of the applicable legal precepts,

we find that the defendant has failed to demonstrate any

prejudice to his case or that the information would have

changed the result of the trial. In both his original and reply

86a

Appendix A

briefs, the defendant merely cites what he alleges to be

violations of Brady and open-file discovery procedures, then

generally asserts that he was prejudiced. The defendant fails

to specify what “favorable evidence” was withheld from him,

and does not provide any focused argument on how the

alleged breaches specifically prejudiced his case or how

disclosure to defense counsel would have changed the result.

Even if a discovery or Brady violation did occur in any of

the instances referenced by the defendant, it would not

constitute reversible error without actual prejudice to the

defendant’s case. See Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963); see also State v. Francis,

2000-2800, pp. 5-6 (La. App. 1% Cir. 9/28/01), 809 So.2d

1029, 1033. Furthermore, the record does not reflect any

manner in which defendant might have been lulled into a

misapprehension of the strength of the state’s case. For these

reasons, we find that this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER EIGHT

SUPPRESSION OF DEFENDANT’S CONFESSION

In this assignment of error, defendant claims his taped

statement of July 20, 1998, following his arrest for the murder

charge, should have been suppressed. Defendant claims the

statement was involuntary because it was made in response

to inducements by Det. Juge. Defendant also claims the

statement itself contains a number of bizarre references, _

which should have caused serious concern for his state of

mind.

87a

Appendix A

Prior to trial, the defendant filed a motion to suppress

his taped statements.'? Along with several complaints

regarding the chain of custody, problems with the transcripts,

and condition of the tapes, the defendant argued the

statements were in violation of his constitutional rights.

As to the July 20, 1998 statement, the defendant argued it

should have been suppressed because (1) it was induced by

a promise to release his girlfriend, and (2) he was under the

influence of an obvious mental impairment at the time he

gave the statement. Following a hearing, the trial court denied

the motion. Defendant filed a supervisory writ application

with this court seeking review of the trial court’s ruling on

the motion to suppress. In an unpublished decision, this court

denied the writ application. State v. Tsolainos, 99-2401

(La. App. 1* Cir. 10/08/99). Defendant then filed a

supervisory writ application with the supreme court, which

also was denied: State v. Tsolainos, 99-2885 (La. 10/11/99),

748 So.2d 457.

Although a pretrial determination of the admissibility

of evidence does not absolutely preclude a different decision

on appeal, “judicial efficiency demands that this court accord

great deference to its pretrial decisions on admissibility unless

it is apparent, in light of a subsequent trial record, that the

determination was patently erroneous and produced an unjust

result.” State v. Johnson, 438 So.2d 1091, 1105 (La. 1983);

see State v. Humphrey, 412 So.2d 507, 523 (La. 1982)

(on rehearing).

19. The defendant made two separate taped statements. His first

statement was made on July 7, 1998, following his arrest on the

conspiracy charges. The second taped statement, on July 20, 1998,

was made following the defendant’s arrest for the instant offense.

88a

Appendix A

By this assignment of error, defendant again seeks review

of the trial court’s ruling denying his motion to suppress his

July 20, 1998 taped statement.” However, the assignment of

error presents no new argument. The record in this case fully

supports our previous decision on the issue presented in the

writ application and is devoid of any additional evidence that

would lead us to change the conclusion we previously

reached. Accordingly, we maintain our previous finding that

the defendant’s statement was freely and voluntarily given.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER NINE

MOTION TO QUASH INDICTMENT

In this assignment of error, the defendant contends that

the trial court erred in failing to grant his motion to quash

the indictment. The motion was based on the state’s failure

to record or transcribe the grand jury proceedings.

The defendant, who wished to search for inconsistencies in

testimony, argues that the state’s failure to record and

transcribe the grand jury proceedings in this case warrants

reversal of his conviction.

On October 5, 1999, the defendant filed a Motion and

Order for In Camera Inspection of Grand Jury Testimony

based upon alleged inconsistent statements by Detective Juge

and Clarissa Tsolainos. In response to this motion, the state,

in its Answer to Defendant’s Request for Supplemental

20. Although the defendant mentions both of his statements in

his assignment of error, he provides argument on his second statement

only. Thus, the defendant has abandoned any error assigned to the

first statement.

89a

Appendix A

Discovery, indicated that a transcript of the grand jury

proceedings did not exist. Consequently, the defendant filed

a Motion to Re-urge the Motion to Quash the Indictment

alleging that the state’s failure to record the grand jury

proceedings violated several constitutionally guaranteed

rights.*! A hearing was held on October 12, 1999, at the

conclusion of which the trial court denied the motion, stating:

*** Tn regard to the motion to reurge the motion

to quash the indictment on the grounds that the

grand jury proceedings involving this case were

not transcribed and thus putting the defendant at

a disadvantage, the Court would reflect that a

grand jury is an accusatory body. There is no

particular provision in the law that absolutely

requires all proceedings of a grand jury be

transcribed. And thus the Court, when confronted

with a situation where there’s no transcript of the

grand jury proceedings involving the indictment

in this case, the Court cannot order something to

be produced that doesn’t exist.

And the Court finds further that in light of

the law in not requiring it and that it’s

discretionary and that based on the argument that

historically the proceedings of the grand jury are

not transcribed, this Court denies the motion to

quash the indictment.

21. In his motion to quash, the defendant stated, “[w]hen the

State chose not to transcribe the grand jury proceedings, thereby

assuring that Mr. Tsolainos could not receive a copy, they violated

the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments

to the U.S. Constitution.”

90a

Appendix A

The defendant’s claim is unfounded. The trial court

correctly noted that there is no provision in the law that

requires all grand jury proceedings be recorded or transcribed.

La. Code Crim. P. art. 433, which lists the persons who “may”

be present at the sessions of the grand jury, is permissive.

The language of the statute merely allows for “a person sworn

to record the proceedings of and the testimony given before

the grand jury” to be present during grand jury sessions. La.

Code Crim. P. art. 433; see also La.Code Crim. P. art. 441.

Contrary to the defendant’s assertions, nothing in the

language of the statute or in any existing Louisiana

jurisprudence mandates the presence of such an individual

or that the proceedings be recorded.

Moreover, as a general rule, grand jury proceedings

are to be kept secret. State v. Ates, 418 So.2d 1326, 1329

(La. 1982). “While there may be instances in which a party’s

need for grand jury materials outweighs the need for

continued secrecy, that need must be demonstrated with

particularity.” State v. Sims, 32,461, p. 3 (La. App. 2™ Cir.

10/27/99), 745 So.2d 151, 155, writ denied, 99-3384 (La. 5/

12/00), 762 So.2d 71, citing State v. Trosclair, 443 So.2d

1098, 1103 (La. 1983), cert. dismissed, 468 U.S. 1205, 104

S.Ct. 3593, 82 L.Ed.2d 889 (1984).. The burden is on the

party requesting the transcript to show great prejudice or

injustice. A general request for transcripts “does not satisfy

the requirement of demonstrative particularized need.” Jd.

We cannot find that the defendant’s request to inspect

the grand jury transcripts, wherein he sought to discover

whether any inconsistent statements existed, sufficiently

meets the threshold requirement of showing a particularized

9la

Appendix A

need. Accordingly, the defendant has failed to show how the

absence of recorded or transcribed proceedings prejudiced

his constitutional rights or warranted a reversal.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TEN

ERRORS PATENT

In his final assignment of error, the defendant requests

that this court examine the record for errors patent. Because

this court routinely reviews the record for errors patent, such

a request is unnecessary. Under La. Code Crim. P. art. 920(2),

our patent error review is limited to errors discoverable by a

mere inspection of the pleadings and proceedings without

inspection of the evidence. After review of the record in these

proceedings, we find no errors patent.

For the foregoing reasons, defendant’s conviction and

sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

92a

APPENDIX B — MINUTES OF TRIAL COURT

REGARDING SENTENCING

Wednesday, April 26, 2000 :

COURT MET THIS DAY PURSUANT TO

ADJOURNMENT, PRESENT AND PRESIDING, HIS

HONOR, DONALD M. FENDLASON, JUDGE DIVISION

“H”, RONALD T. GRACIANETTE AND SCOTT

GARDNER, ASSISTANT DISTRICT ATTORNEY’S,

RODNEY J. STRAIN, JR., SHERIFF AND MALISE

PRIETO, CLERK OF COURT (BAILIFF, CHERYL

HANSON AND COURT REPORTER, CYNTHIA GEBBIA)

290874H

STAT 2 OF LOUISIANA

VS

PANOS TSOLAINOS

The defendant being present in open Court attended by

his Counsel, Robert Stern and Kim Abramson and this matter

being on assignment for a motion for New Trial, the Defense

at this time request the sequestration of all witnesses, which

Court so ordered and same was done.

The Defense at this time read into the record items which

he requested that the Court take Judicial Notice of and the

Court so noted.

93a

Appendix B

The Defense at this time offered, introduced and filed

into evidence the following item:

D-14 Transcript from the trial of Gerald Brannigan and

Melissa Tsolainos held on January 26, 2000

Evidence was heard on behalf of the Defense with the

following witness giving testimony:

1. Ron Frazier

The Defense at this time offered, introduced and filed

into evidence the following items:

D-1 St. Tammany Parish Sheriff’s Office Case Resume

for Item #07-0318-98

D-2 Det. Scallan’s field notes regarding Item

87-01318-98

D-3 Transcript of statement taken from Joy Kahl on

February 15, 2000

D-4 Transcript of statements taken from Mark B.

Berryhill on February 21, 2000 and on February 29, 2000

94a

Appendix B

Wednesday, April 26, 2000

D-4-T Envelope containing the audio tape of the

statements taken from Mark Berryhill on February 21, 2000

and February 29, 2000 and the statement taken from Joy Kahl

on February 15, 2000

D-5 Handwritten statement taken from Cheryl Johnson

on February 24, 2000

D-6 Extract of Minute Entry from #305319 dated

November 3, 1999, State of La. vs. Cheryl Johnson

D-7 Copy of incident report from Pearl River County,

Mississippi in regards to Jason Turner and Charles

Schmolker, Case #MR140-95

D-8 -Copy of Indictment from Pearl River County,

Mississippi and Order of Nolle Prosse in regards to Charles

Schmolker, Cause #8463-1

D-9 St. Tammany Parish Sheriff’s Office Incident

report on death of Charles Schmolke

D-10 Corornor’s report on death of Charles Schmolke

D-11 Copy of pages frora the PDR on the drug Xanax

D-12 Copy of divorce of Mark B. Berryhill #80270

D-13 Copy of divorce of Mark B. Berryhill #92-11976

95a

Appendix B

Evidence was heard on behalf of the Defense with the

following witnesses giving testimony:

2. Mark Berryhill

3. Joy Kahl

4. Cheryl Johnson

This being the noon hour, Court recessed for lunch.

The defendant being present in open Court attended by

his Counsel, Robert Stern and Kim Abramson, argument was

heard on behalf of the Defense and the State and submitted

to the Court and Court recess.d briefly.

The defendant being present in open Court attended by

his Counsel, Robert Stern and Kim Abramson, Court at this

time read into the record his reasons for judgment and filed

same in written form. Court denied the

Wednesday, April 26, 2000

Motion for New Trial.

The Defense at this time waives formal delays in

sentencing; whereupon Court imposed the following

sentence:

PANOS TSOLAINOS, being over the age of 17 years of

age and having previously been found guilty by a Jury of

having violated R.S. 14:30.1 by committing second degree

96a

Appendix B

murder of Deborah Tsolainos, Court sentences the defendant

to serve a period of life imprisonment at hard labor without

the benefit of parole, probation or suspension of sentence.

Upon motion of the Defense, Court ordered the defendant

be held in the St. Tammany Parish Jail until Wednesday,

May 3, 2000.

Court advised the defendant of the time limitations in

which to file any Application for Post-Conviction Relief.

The Defense informed the Court of their intent to file a

motion for Appeal, which Court will grant when the written

motion is filed.

97a

APPENDIX C — VEDICT OF THE JURY

VEDICT OF THE JURY

WE, the jury, find the defendant, PANOS TSOLAINOS,

Guilty

s/ [illegible]

FOREPERSON

October 23, 1999

DATE

COVINGTON, LOUISIANA

NUMBER: 290874

DIVISION: “H”

22nd JUDICIAL DISTRICT COURT

PARISH OF ST. TAMMANY

STATE OF LOUISIANA

s/ Connie Mays

Deputy Clerk

STATE OF LOUISIANA

VERSUS

PANOS TSOLAINOS

FILED: October 23, 1999

98a

Appendix C

POSSIBLE VERDICTS

GUILTY;

GUILTY OF MANSLAUGHTER;

NOT GUILTY.

99a

APPENDIX D — INDICTMENT

FILED AUGUST 13, 1998

STATE OF LOUISIANA

Parish of St. Tammany

Twenty-Second Judicial District Court Term,

19

The Grand Jurors of the State of Louisiana, duly

impaneled and sworn in and for the body of the Parish of St.

Tammany, in the name and by the authority of the said State,

upon their oath find and presents:

That one, PANOS TSOLAINOS late of the Parish of St.

Tammany, on the /9TH day of JULY, in the year of our Lord,

one thousand nine hundred and NJNTY EIGHT, in the Parish

of St. Tammany, aforesaid, and within the jurisdiction of the

Twenty-second Judicial District Court of Louisiana, for the

Parish of St. Tammany: 4/26/99 amend to 14:30.1 Second

Degree Murder

R.S. 14:30 FIRST DEGREE MURDER, by killing

DEBORAH TSOLAINOS in the second degree.

contrary to the form of the Statutes of the State of Louisiana

in such cases made and provided, and against the peace and

dignity of the same.

s/ [illegible]

District Attorney, 22nd Judicial

District of Louisiana

100a

Appendix D

NO.

STATE OF LOUISIANA

versus

PANOS TSOLAINOS

INDICTMENT FOR

R.S. 14:30 FIRST DEGREE MURDER

A true bill

A TRUE BILL

s/ [illegible]

Foreman of the Grand Jury

10la

APPENDIX E — FELONY BILL OF INFORMATION

FILED AUGUST 6, 1998

FELONY BILL OF INFORMATION

STATE OF LOUISIANA - PARISH OF ST. TAMMANY

TWENTY-SECOND JUDICIAL DISTRICT

TO THE HONORABLE THE TWENTY SECOND

JUDICIAL DISTRICT COURT OF LOUISIANA, sitting in

and for the Parish of St. Tammany, comes now into open

Court the undersigned District Attorney of the Twenty-

Second-Judicial District of Louisiana, in the name and by

the authority of said State, informs said Honorable Court.

That the person(s) named and identified below, late of the

Parish of St. Tammany on or about the date below described,

in the Parish of St. Tammany aforesaid and within the

jurisdiction of the Twenty-Second Judicial District in and

for the Parish of St. Tammany, State of Louisiana and contrary

to the form of the Statutes of the State of Louisiana in such

cases made and provided, and against the peace and dignity

of the same did violate:

DEFENDANT’S NAME AND DATE OF BIRTH:

1. PANOS TSOLAINOS

2. MELISSA TSOLAINOS

3. GERALD BRANIGAN

DATE OF OFFENSE: BETWEEN THE 25™ DAY OF

JUNE, 1998 AND THE 6™ DAY OF

JULY, 1998

102a

Appendix E

R.S. 14:26:30 CONSPIRACY TO COMMIT FIRST

DEGREE MURDER, by conspiring to kill Deborah Tsolainos

in the first degree.

s/ Walter P. Reed

WALTER P. REED

DISTRICT ATTORNEY

22ND JUDICIAL DISTRICT

STATE OF LOUISIANA

103a

APPENDIX F— ORDER DENYING APPLICATION FOR

REHEARING OF THE COURT OF APPEAL, FIRST

CIRCUIT, STATE OF LOUISIANA

FILED FEBRUARY 9, 2004

COURT OFAPPEAL, FIRST CIRCUIT

STATE OF LOUISIANA

22nd Judicial District Court

Case #: 290874

St. Tammany Parish

RE: Docket Number 2000-KA-1664

STATE OF LOUISIANA

--Versus--

PANOS TSOLAINOS

On Application for Rehearing filed 01/13/2004

Rehearing DENIED

s/ Frank Foil

Frank Foil

s/ Brady M. Fitzsimmons

Brady M. Fitzsimmons

s/ E. James Gaidry

E. James Gaidry

Filed FEB 09 2004

s/ Christine L. Crow

Christine L. Crow, Clerk