Opinion
2014 KA 1372
09-21-2015
STATE OF LOUISIANA v. CARLOS T. CLEMMONS
Scott M. Perrilloux District Attorney and Patricia Amos Assistant District Attorney Amite, LA Attorneys for Plaintiff/Appellee State of Louisiana Mary C. Hanes Louisiana Appellate Project New Orleans, LA Attorney for Defendant/Appellant Carlos Clemmons
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana
No. 1201002
The Honorable M. Douglas Hughes, Judge Presiding
Scott M. Perrilloux
District Attorney
and
Patricia Amos
Assistant District Attorney
Amite, LA
Attorneys for Plaintiff/Appellee
State of Louisiana
Mary C. Hanes
Louisiana Appellate Project
New Orleans, LA
Attorney for Defendant/Appellant
Carlos Clemmons
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
Defendant, Carlos T. Clemmons, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty, and following a jury trial, was found guilty as charged. The trial court subsequently denied defendant's motion in arrest of judgment, motion for new trial, and motion for postverdict judgment of acquittal. Thereafter, the trial court sentenced defendant to the mandatory term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant filed a motion to reconsider sentence, which the trial court also denied. Defendant now appeals, alleging two counseled assignments of error, one related to the sufficiency of the evidence presented at trial and another alleging that the trial court erroneously granted a state challenge for cause of a prospective juror. He also alleges five pro se assignments of error. For the following reasons, we affirm defendant's conviction and sentence.
FACTS
Around 2:00 a.m. on January 7, 2012, Carolyn Ard and Etoryi McGee (the victim) were walking down Bennett Road in Amite, Louisiana. Ard and McGee were leaving a nearby bar and heading back to Ard's home on Conti Road. As they walked down the street, Ard's nephew (defendant) approached in a vehicle with two other occupants, Nakisha Johnson (Ard's niece) and Laquita Collins. Defendant offered to drive Ard and McGee the short distance to Ard's home.
Upon arriving at Ard's home, everyone exited the vehicle and went into the house. Ard and McGee, who were already intoxicated, continued to drink after leaving the bar. At some point, McGee became belligerent, and defendant agreed to take him home. All of the individuals again entered the vehicle. Defendant drove, with McGee sitting in the front passenger's seat, and the three women in the back seat. McGee apparently became belligerent again, causing defendant to stop the car on Washington Avenue in Roseland. Soon after the car stopped, defendant fired a handgun at McGee. Witness accounts at trial varied regarding whether defendant shot McGee from outside the vehicle, with no attendant scuffle, or from inside the vehicle, during a struggle. McGee suffered four gunshot wounds, at least one of which was fatal. McGee's body was removed from the vehicle, and it was ultimately discovered in a nearby ditch later that morning. Defendant was arrested that night for his involvement in McGee's shooting.
INSUFFICIENT EVIDENCE
In his second counseled assignment of error and his first pro se assignment of error, defendant contends that the evidence at trial was insufficient to support his conviction for second degree murder. In his counseled assignment of error, defendant argues that the evidence demonstrated at trial that he was provoked and acted in sudden passion or heat of blood, thereby mitigating his actions enough to support only a manslaughter conviction. In his pro se assignment of error, defendant argues that he acted in self-defense.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Gir. 6/21/02), 822 So.2d 141, 144.
As applicable here, second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Guilty of manslaughter is a proper responsive verdict for a charge of second degree murder. La. Code Crim. P. art. 814(A)(3). Louisiana Revised Statute 14:31(A)(1) defines manslaughter as a homicide which would be either first degree murder or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the factfinder finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed. The existence of "sudden passion" and "heat of blood" are not elements of the offense but, rather, are factors in the nature of mitigating circumstances that may reduce the grade of homicide. State v. Maddox, 522 So.2d 579, 582 (La. App. 1st Cir. 1988). Manslaughter requires the presence of specific intent to kill or inflict great bodily harm. See State v. Hilburn, 512 So.2d 497, 504 (La. App. 1st Cir.), writ denied, 515 So.2d 444 (La. 1987). It is the defendant who must establish by a preponderance of the evidence the mitigating factors of sudden passion or heat of blood to reduce a homicide to manslaughter. See State ex rel. Lawrence v. Smith, 571 So.2d 133, 136 (La. 1990); State v. LeBoeuf, 2006-0153 (La. App. 1st Cir. 9/15/06), 943 So.2d 1134, 1138, writ denied, 2006-2621 (La. 8/15/07), 961 So.2d 1158. See also Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977).
When a defendant claims self-defense in a homicide case, the state has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. See State v. Fisher, 95-0430 (La. App. 1st Cir. 5/10/96), 673 So.2d 721, 723, writ denied, 96-1412 (La. 11/1/96), 681 So.2d 1259. A homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. La. R.S. 14:20(A)(1); State v. Lilly, 552 So.2d 1036, 1039 (La. App. 1st Cir. 1989).
In the instant case, defendant does not deny that he shot McGee. Rather, he argues that because of the circumstances surrounding the shooting, his actions were mitigated by sudden passion or heat of blood caused by provocation sufficient to deprive an average person of his self-control or cool reflection. In the alternative, defendant argues that he shot McGee out of self-defense after a "serious physical struggle." The circumstances surrounding the incident were communicated at trial through the conflicting testimonies of the three women who also occupied the vehicle. Defendant did not testify at trial.
Ard testified on behalf of the state. Ard described that things began to get out of control during the late-night gathering at her home. She stated that Johnson (her niece) began to pick on McGee, causing him to curse at her and Collins to chime in on Johnson's behalf. Ard testified that because of the arguing, McGee used defendant's cell phone to call his mother and request she come to pick him up. When his mother apparently declined, McGee asked defendant to bring him home, and defendant agreed. Ard gathered McGee's belongings, and the five individuals entered defendant's vehicle. Ard described that she sat in the back middle seat, with Johnson seated behind defendant (the driver) and Collins seated behind McGee.
Ard stated that they drove around for about an hour and a half, but not necessarily in the direction of McGee's home. During this time, the argument between McGee, Johnson, and Collins continued. Ard testified that her niece physically assaulted McGee, at which time McGee, Johnson, and Collins began "passing licks" over Ard's head. Ard described this action as a kind of hand fight, during which she was struck on the head. At that point, the vehicle stopped, and Ard witnessed defendant exit the car. She saw McGee put his hands up and say, "[I]t ain't got to be like this, [b]ro." Ard then heard approximately seven gunshots as she took cover on the floorboard of the back seat. Ard noted that she and the victim were the only people remaining in the vehicle when the shooting occurred. On direct examination, Ard stated that "[s]omebody" opened the front passenger's side door and let McGee's body fall out onto the street. However, on cross-examination, Ard testified that defendant reached over, opened the passenger's side door, and pushed McGee's body out of the vehicle.
Following the shooting, Ard rode with the remaining occupants of the vehicle to an area carwash. She stated that she watched as someone used one of McGee's T-shirts to wipe up blood from the front seat while someone else vacuumed up glass from the broken front passenger's side window. Ard explained that defendant threatened her not to call the police. She also testified that she never saw the victim with a gun.
Johnson also testified on behalf of the state. Johnson stated that McGee became belligerent at Ard's home. She described that McGee began to call Ard vulgar names and make statements about her sexual history. In contrast to Ard's testimony, Johnson testified that it was Ard who asked the victim to leave and defendant who offered to drive him home. She stated that despite her ongoing argument with McGee, Ard decided to accompany them to bring the victim home because she wanted to stop at a convenience store to buy more beer for herself.
Johnson described the seating arrangements differently than Ard did. While she placed defendant, McGee, and herself in the same positions, Johnson testified that Ard was seated behind McGee, and Collins was seated in the back middle seat. Johnson stated that defendant did not take McGee to his home because McGee requested a destination change part of the way through their ride. He asked to be dropped off in Roseland. Johnson testified that the previous argument between Ard and McGee got worse as they continued to drive, at which point she and Collins began to argue with McGee. She heard defendant tell McGee to calm down. She then witnessed as things turned physical, with Ard getting hit by McGee's swinging arms. Soon thereafter, Johnson felt the car begin to stop, and she exited the vehicle. She heard one gunshot before she turned to see defendant standing and shooting into the car. After approximately five shots, defendant told Johnson and Collins to get back into the car. Johnson testified that she did not know how McGee was removed from the vehicle.
Collins testified on behalf of the defense. Collins testified similarly to Johnson about the argument at Ard's house as being between Ard and McGee as a result of the victim's belligerence. Collins also described the seating arrangements in the vehicle as Johnson had, with herself in the middle back seat and Ard seated behind McGee. Further, she testified that it was McGee who changed his intended destination midway through the trip.
However, Collins testified differently regarding the circumstances leading up to the shooting. Collins described that McGee began to call everyone "bitch," and that she, Ard, and Johnson were requesting defendant to put him out of the car. Collins stated that defendant began slowing the car down to do so when McGee began to swing a gin bottle, ultimately hitting Ard in the head. Collins testified that, from her middle seat, she witnessed an altercation between defendant and McGee. Although she never saw a weapon, Collins heard approximately six to seven gunshots, which she assumed the defendant fired. Collins testified that all of the gunshots occurred while both the defendant and McGee were completely inside the vehicle. According to Collins, only Johnson was outside the vehicle during the shooting. Collins stated that the defendant then exited the vehicle and walked around to the passenger's side door, from which he pulled McGee from the vehicle. Collins testified that Ard told defendant "thank you" following the shooting. Collins stated that she did not see who initially had the gun.
Of the three eyewitnesses who testified at trial, only Collins stated that she felt like the defendant's actions saved her life. She testified that had she been in the same situation as the defendant on that night, she would have reacted the same way. In contrast, Ard testified that she never believed McGee was going to hurt her in any way. She stated that if she had a gun on the night of the incident, she would not have shot the victim. Ard believed that no one in the car needed protection from McGee. Like Ard, Johnson testified that she never believed herself to be in any real danger as a result of McGee's actions. She stated that once the car had stopped, and she was able to exit it, she believed the situation to be over. Johnson also said that she would not have shot McGee if she had possessed a gun.
While each of the three eyewitnesses testified to different versions of the incident, the following facts are not particularly in dispute. First, McGee became agitated beginning at Ard's house, and the defendant agreed to take him home. McGee's belligerence continued during the car ride, and at some point, he turned to the back seat and began to swing his arms. There was no indication that McGee ever directed his aggression toward the defendant. Finally, at the time the defendant shot McGee, the vehicle had come to rest, and at least one occupant (Johnson) had successfully exited it.
Based upon the facts and circumstances presented at trial, the jury could reasonably have concluded that the defendant had a specific intent to kill McGee and that there was no evidence of sudden passion or heat of blood. Deliberately pointing and firing a deadly weapon at close range are circumstances that support a finding of specific intent to kill. State v. Broaden, 99-2124 (La. 2/21/01), 780 So.2d 349, 362, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001). Though McGee was undoubtedly engaged in a confrontation or argument with the back seat passengers of the vehicle, two of these passengers testified that they felt no actual threat from McGee's actions. These same two passengers testified that the defendant shot an unarmed McGee from a position outside of the vehicle, rather than during a scuffle inside the vehicle. This testimony was corroborated by that of Detective Raymond Lentz, who calculated the trajectory of one bullet path as originating outside the vehicle. Like Johnson, the defendant had the option to exit the vehicle to remove himself from McGee's presence. In fact, the defendant might have had an even better opportunity than Johnson not to engage in violence because he was not one of the apparent targets of McGee's aggression.
When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). It is clear from the guilty verdict that the jury rejected the theory that the defendant was so angry when he shot McGee, or was so provoked by McGee just prior to the shooting, that he was deprived of his self- control and cool reflection. Questions of provocation and time for cooling are for the jury to determine under the standard of the average or ordinary person with ordinary self-control. If a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act. State v. Leger, 2005-0011 (La. 7/10/06), 936 So.2d 108, 171, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). Based on the testimonies of Ard and Johnson, the jury could have reasonably concluded that the defendant's actions were unreasonable under the circumstances.
Likewise, the evidence presented by the state was sufficient to negate the defendant's claim of self-defense. While Collins testified to a scuffle between McGee and the defendant, both Johnson and Ard stated that no such struggle occurred. Though McGee was undoubtedly belligerent, the state presented evidence sufficient to show that he was not an imminent threat of loss of life or great bodily harm to the defendant or the other passengers in the vehicle. Therefore, the jury could have reasonably concluded that the defendant did not shoot McGee in self-defense.
The jury heard the testimony and viewed the evidence presented to it at trial and found the defendant guilty as charged. As was his right, the defendant did not testify. See U.S. Const. amend. V; La. Const. art. I, § 16. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Moreover, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). The guilty verdict indicates the determination by the jury that, for whatever reason the defendant had, he shot McGee four times with the specific intent to kill him and in the absence of the mitigating factors of manslaughter or self-defense. We cannot say that the jury's determination was irrational under the facts and circumstances presented to it. Ordodi, 946 So.2d at 662.
After a thorough review of the record, we find that the evidence supports the jury's guilty verdict. We are convinced that viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the second degree murder of McGee. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam) (An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury.).
This assignment of error is without merit.
CHALLENGE FOR CAUSE
In his first counseled assignment of error, the defendant contends that the trial court erred in granting one of the state's challenges for cause of a prospective juror. He argues that because the state exhausted its peremptory challenges, the trial court's granting of this challenge for cause had the effect of allowing the state more peremptory challenges than it was entitled to by law.
An accused in a criminal case is constitutionally entitled to a Ml and complete voir dire examination of the prospective jurors and to the exercise of peremptory challenges. La. Const. art. I, § 17(A). The purpose of voir dire examination is to determine prospective jurors' qualifications by testing their competency and impartiality and discovering bases for the intelligent exercise of cause and peremptory challenges. State v. Burton, 464 So.2d 421, 425 (La. App. 1st Cir.), writ denied, 468 So.2d 570 (La. 1985). A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. A trial court is accorded great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion. State v. Martin, 558 So.2d 654, 658 (La. App. 1st Cir.), writ denied, 564 So.2d 318 (La. 1990); see also La. Code Crim. P. art. 797. Louisiana Code of Criminal Procedure art. 800(B) provides that the erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.
The state exhausted all of its peremptory challenges in the instant case. Therefore, the defendant contends that the trial court erred in granting the state's challenge for cause of prospective juror Arthur Holden. The basis of the state's challenge for cause of Mr. Holden was that he "clearly stated that he could not sit in judgment of somebody on a Second Degree Murder charge with a sentence being, life." Defense counsel opposed this challenge for cause, arguing that Mr. Holden had been rehabilitated.
The relevant exchange between the state and Mr. Holden is as follows:
State: Okay. Ultimately at the end of the day, I'm going to ask y'all, obviously, to vote guilty and that's something that I'll ask y'all to do. Y'all are going to listen to the whole case.
Can everyone here make a determination of guilt?
At the end of the day, I mean, this is - we talked about earlier, this Defendant is charged with Second Degree Murder. It carries a life sentence.
Is there anybody here who thinks they can't vote guilty, because of the penalty?
Pass [the microphone] to Mr. Holden.
Mr. Holden: To be fair, the evidence, like I say, I listened to the Judge, earlier, my cousin was up for murder and to be honest again, I was part of being partially blamed for that, they was like, they was thinking that he was covering up for me. So, I could relate to the charges, also, myself. But when I [sic] comes to me having to sit there and determining, you know, facing this future, as far as life in prison, like the lady said earlier, it could be a lesser charge of manslaughter. So, it would finally wound up in the beginning, it was just the charge, take it to the fullest degree, when possibly it could be a lesser charge.
State: Okay, so, you are going to have a problem with it being Second Degree Murder, is that fair to say?
Mr. Holden: Yes.
Mr. Holden had responded previously during voir dire that his cousin had been convicted of murder. At that time, he stated that his cousin's conviction would not affect his ability to sit for this case. --------
Mr. Holden had responded previously during voir dire that his cousin had been convicted of murder. At that time, he stated that his cousin's conviction would not affect his ability to sit for this case. --------
The defendant argued that the trial court misconstrued Mr. Holden's response on the topic of a life sentence. In his brief, he characterizes Mr. Holden's answer to the state's question as one indicating that he "could not promise he would find the defendant guilty of second degree murder if the defendant was guilty of only a lesser offense."
In responding to the state's challenge for cause, defense counsel argued Mr. Holden had been rehabilitated because he responded during her voir dire of him that he would be able to sit in judgment of someone on a second degree murder charge, with its potential life sentence. She also stated that Mr. Holden had said he would be able to listen to the evidence and make a determination of guilt based on it.
Despite defense counsel's assertion to the trial court that she had voir dired Mr. Holden regarding the life sentence, there is no such conversation in the record. Defense counsel's only exchange with Mr. Holden concerned his prior knowledge of the case, which he stated would not affect his ability to serve on the jury.
Reviewing the transcript of voir dire as a whole, we find that the trial court did not err or abuse its discretion in granting the state's challenge for cause of Mr. Holden. Despite the defendant's characterization of Mr. Holden's statements in his brief and the somewhat rambling nature of the statement itself, the fact remains that Mr. Holden responded affirmatively to the state's question about having a problem with the mandatory life sentence. Mr. Holden admitted to having a problem, because of his past experiences, with the charge of second degree murder and its penalty. Moreover, no one rehabilitated Mr. Holden following the above colloquy. Based upon the totality of the circumstances, the trial court properly granted the state's challenge for cause of Mr. Holden because of his stated difficulty of rendering an impartial verdict according to the law and evidence. See La. Code Crim. P. art. 797(2).
This assignment of error is without merit.
EVIDENCE OF VICTIM'S HOSTILE CHARACTER
In his second pro se assignment of error, the defendant contends that he was denied the constitutional right to present a defense. Particularly, he argues that he was not allowed to introduce "any overt acts of [the victim's] hostile character in a plea of self-defense."
In this assignment of error, the defendant states that evidence of the victim's violent propensities and dangerous character was relevant to show that McGee was the aggressor and that the defendant's apprehension of danger was reasonable. However, the defendant does not describe this evidence with any particularity nor does he point to a ruling of the trial court excluding this type of evidence.
This assignment of error is unreviewable as set out by the defendant.
FAILURE TO DISCLOSE VICTIM'S CRIMINAL HISTORY
In his third pro se assignment of error, the defendant argues that the state failed to disclose the victim's criminal history, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The defendant's claim lies in contrast to the information about the victim that is provided in the record. The record contains the state's response to the defendant's discovery motion, which includes a computerized printout of information about the victim that lists his prior arrests. This information is clearly identifiable as relating to the victim, Etoryi D. McGee, and it lists prior arrests for remaining after being forbidden, disturbing the peace, resisting an officer, DWI, possession of alcoholic beverages in a motor vehicle, and operating a vehicle with a suspended license. There is no basis in the record to conclude that the state suppressed evidence favorable to the accused where the evidence was material either to guilt or to punishment.
This assignment of error is without merit.
DEFENDANT DENIED RIGHT TO TESTIFY
In his fourth pro se assignment of error, the defendant argues that his constitutional rights were violated when his attorney refused to allow him to testify at trial.
A defendant has a constitutionally protected right to testify on his own behalf. See State v. James, 2005-2512 (La. 9/29/06), 938 So.2d 691 (per curiam). In State v. Hampton, 2000-0522 (La. 3/22/02), 818 So.2d 720, 729-30, the Louisiana Supreme Court considered the defendant's claim that his express desire to testify had been abridged. Therein, testimony by trial counsel at a hearing conducted on the defendant's application for postconviction relief established that the defendant had asserted his desire to testify from the beginning of his relationship with counsel, and counsel acknowledged that he erroneously told the defendant that the determination of whether the defendant would testify was a decision that counsel should make. After finding merit in the defendant's claim that his right to testify had been abridged and concluding that the abridgment was not harmless error, the court developed standards to assist future courts in determining whether a defendant had waived his right to testify or had chosen not to testify for strategic purposes. Adopting a framework first developed in the federal court system, the court established the following criteria:
In determining whether a defendant's right to testify was violated or waived by his silence during trial, we can look to Passos-Paternina v. United States, 12 F.Supp.2d 231 (D.P.R. 1998) affirmed, 201 F.3d 428 (1st Cir. 1999) (per curiam), for guidance. As a guideline, the Passos-Paternina court held:
(1) absent extraordinary circumstances that should alert the trial court to a conflict between attorney and client, the court should not inquire into a criminal defendant's right to testify. The court should assume, that a criminal defendant, by not 'attempting to take the stand,' has knowingly and voluntarily waived his right;Hampton, 818 So.2d at 729-30 (quoting Passos-Paternina v. United States, 12 F.Supp.2d at 239-40). The criteria adopted in Hampton and derived from Passos-Paternina are therefore guidelines not only for prevailing on the merits of the claim, but also for making the claim with sufficient particularity to withstand summary denial on the pleadings without further evidentiary proceedings. James, 938 So.2d at 691.
(2) the court must consider whether the petitioner has waived his right to testify.... [The defendant can only] rebut that presumption . . . by showing that his attorney caused him to forego his right to testify [(a) by alleging specific facts, including an affidavit by the defendant's trial counsel] from which the court could reasonably find that trial counsel 'told [the defendant] that he was legally forbidden to testify or in some similar way compelled him to remain silent . . . '[(b)
by demonstrating from the record] that those 'specific factual allegations would be credible . . . .'
The defendant states in his brief that trial counsel informed him that she would not allow him "to take the stand for any reason." He argues that he repeatedly informed trial counsel that he wished to testify in his own defense, but she ultimately made the determination about who was allowed to testify. The defendant states that trial counsel never informed him that it was his right to choose whether to testify.
Despite defendant's assertions, the record is simply devoid of any evidence that supports his claims. There was no open or apparent conflict between defense counsel and the defendant reflected in the transcript of any of the proceedings. Therefore, there were no "extraordinary circumstances" under Hampton that required the trial court to inquire into the defendant's waiver of his right to testify. Further, the defendant cannot show any specific facts in the record where his trial counsel abridged his right to testify.
This assignment of error is without merit.
MISREPRESENTATION OF PHYSICAL EVIDENCE
In his final pro se assignment of error, the defendant contends that the state deliberately misrepresented physical evidence. He argues that the state improperly introduced a T-shirt into evidence and elicited testimony describing it as containing blood stains, despite not having scientifically tested the shirt.
The defendant points to the testimonies of three sheriff's officers - Detective Steven Jenkins, Detective Mike Moore, and Detective Raymond Lentz - as fabricated testimony regarding blood stains on a T-shirt that was recovered following the defendant's arrest. Detective Jenkins testified that when the defendant was arrested, he was wearing a white T-shirt. Detective Jenkins observed this T-shirt to be stained with a red substance that he believed to be blood. Defense counsel objected to Detective Jenkins's determination that the substance was blood, and the trial court sustained that objection.
Detective Moore testified that he recalled seeing some spots on the defendant's T-shirt. He thought that the T-shirt had been sent to the crime lab for testing, but admitted that it might have been an oversight if that did not happen. Detective Moore did not identify the spots on the defendant's T-shirt as blood stains. Detective Lentz did not testify at all regarding the defendant's T-shirt.
Defense counsel did not object when Detective Jenkins first testified that he perceived the spots to be blood. Further, even though counsel objected the second time that Detective Jenkins referred to the spots as being blood and the trial court sustained the objection, counsel did not ask the trial court to admonish the jury to disregard the earlier testimony. The only possible issue as to which the testimony could have been pertinent was the issue of the defendant's identity as the shooter. This was not a contested issue at trial.
This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED. CHUTZ, J., concurs and assigns additional reasons.
I respectfully concur for the purpose of pointing out that the defendant was in no way prejudiced by Detective Jenkins' testimony regarding his belief that the spots on the defendant's tee-shirt were blood. The only possible relevancy of this testimony was to establish the defendant's identity as the person who shot the victim by showing the defendant's presence at the scene. At trial, however, the defendant did not dispute that he shot the victim. Therefore, regardless of whether it was properly admitted, Detective Jenkins' testimony clearly was harmless beyond a reasonable doubt. See La. C.Cr.P. art. 921. The verdict returned by the jury was surely unattributable to any alleged error in the admission of this testimony. See Sullivan v. Louisiana , 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).