# Appendix — Tsolainos v. Louisiana

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1397%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1186

## Text

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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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Appendix A

(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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Appendix A

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

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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

22a

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.

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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)

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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.

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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.

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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.

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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

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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.

65a

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

69a

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

74a
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

76a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1397%3A2. Public record. Not legal advice.