IN THE SUPREME COURT OF THE

STATE OF LOUISIANA

No. 2014-KA-1980

STATE OF LOUISIANA, Plaintiff-Appellee

v.

MARCUS REED, Defendant-Appellant.

Appeal from Conviction and Death Sentence Imposed

In the First Judicial District, the Parish of Caddo

No.289, 870, Hon. Katherine Dorroh, Presiding.

THIS IS A DEATH PENALTY CASE

APPELLANT'S BRIEF

Blythe Taplin, La. BarNo. 32715 G. Ben Cohen, La. Bar No. 25370 Rachel Lindner, La. Bar No. 34642

THE CAPITAL APPEALS PROJECT

636 Barmme Street New Orleans, La. 70113

Counsel for Appellant, Marcus Reed

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................................. .i

TABLE OF AUTHORITIES ....................................................................................................................... .iv

ASSIGNMENTS OF ERROR ....................................................................................................................... x

STATEMENT OF THE FACTS ................................................................................................................... 1

STATEMENT OF THE CASE ..................................................................................................................... 2

ARGUMENT ................................................................................................................................................ 6

I. THE TRIAL COURT IMPROPERLY EXCLUDED TESTIMONY THAT MARCUS REED TOLD THE ADAMS BROTHERS TO STAY AWAY FROM HIS HOME .......................................... 6

A. Clarence Powell's Testimony was not Hearsay ........................................................................ ?

B. The Excluded Statements Fall Squarely Within the Definition of Res Gestae ......................... 8

C. The Court's Ruling Violated Mr. Reed's Right to Present a Defense ....................................... 9

II. THE COURT PREVENTED MR. REED FROM PRESENTING EVIDENCE BEARING ON

THE RELIABILITY OF HIS ALLEGED CONFESSION TO A JAIL-HOUSE INFORMANT .......... 1 0

A. The Excluded Testimony was not Hearsay ............................................................................. 1 0

B. The Court's Ruling Violated Mr. Reed's Right to Present a Defense ..................................... l2

III. THE COURT FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF JUSTIFIABLE HOMICIDE APPLICABLE TO MR. REED'S CASE, AND ERRONEOUSLY INSTRUCTED JURORS THAT THEY COULD CONSIDER THE POSSIBILITY OF RETREAT ............................ 13

A. The Court Failed to Instruct the Jury on the Elements of Justifiable Homicide ...................... l3

B. The Court Improperly Instructed the Jurors that they Should Consider Retreat as a Factor in Determining Whether Mr. Reed's Actions were Justified .................................................................. IS

C. The Erroneous Instructions Also Prejudiced Penalty Phase Deliberations ............................. 17

D. This Issue is Properly Before this Court .................................................................................. 18

E. To the Extent the Court Faults Defense Counsel for Failing to Request the Instruction Mr. Reed was Prejudiced by the Deficient Performance of His Counsel.. ................................................ 19

IV. MR. REED'S SIXTH AMENDMENT RIGHT TO CONFLICT FREE COUNSEL WAS VIOLATED WHEN THE COURT DENIED DEFENSE COUNSEL'S MOTION TO WITHDRAW.

21

A. Defense Counsel Brought the Conflict of Interest to the Court's Attention Pre-Trial and Sought to Withdraw ............................................................................................................................ 22

B. The Conflict oflnterest had an Adverse Effect on Counsel's Performance ............................ 28

V. THE COURT ERRONEOUSLY DENIED A MISTRIAL AFTER THE TRIAL JUDGE

BEGAN OPENLY CRYING DURING THE VICTIM-IMPACT TESTIMONY ................................. 29

VI. PROSECUTORIAL MISCONDUCT RENDERED THE TRIAL FUNDAMENTALLY UNFAIR .................................................................................................................................................. 32

A. The State Made Unrelenting Personal Attacks on Defense Counsel in the Penalty Phase Closing Argutnents ............................................................................................................................. 33

1

B. The State Argued in the Penalty Phase that Marcus Reed was "Loathsome" for Presenting Mitigating Evidence ........................................................................................................................... 35

C. The State Repeatedly Misstated the Evidence in Culpability-Phase and Penalty-Phase

Argutnents .......................................................................................................................................... 37

D. Prosecutors Threatened to Arrest or Criminally Charge Three Trial Witnesses, Depriving Mr. Reed of Due Process of Law .............................................................................................................. 39

E. The State Failed to Correct the False or Misleading Testimony from Two oflts Witnesses .. 45

VII. THE COURT ERRONEOUSLY RESTRICTED DEFENSE COUNSEL'S EFFORTS TO IMPEACH THE FALSE OR MISLEADING TESTIMONY OF STATE WITNESS ......................... .47

A. The Court Erroneously Found that Re-Cross Examination was not Permitted Under the Law 48

B. The Comt Improperly Restricted Cross-Examination of Detective Keith Fox ...................... .49

VIII. THE COURT EXCLUDED TESTIMONY THAT JARQUIS ADAMS INSTRUCTED

KYLE KING TO BURGLARIZE MARCUS REED'S HOME ............................................................. 49

IX. THE STATE RELIED ON INADMISSIBLE OTHER CRIMES EVIDENCE IN THE CULPABILITY PHASE ......................................................................................................................... 49

A. The State's Evidence was not Relevant to Motive .................................. , .............................. 50

B. Evidence of Past Drug Activity was not Relevant to Disprove Justifiable Homicide ............. 52

C. The Evidence was Unfairly Prejudicial.. ................................................................................. 53

X. THE STATE RELIED ON INADMISSIBLE OTHER CRIMES EVIDENCE IN THE PENALTY PHASE ................................................................................................................................. 54

A. The State Introduced Evidence Relating to Mr. Reed's Prior Conviction through the

Testimony of an Arresting Officer ......................................................................................... , .......... 54

B. The State introduced Allegations of an Unadjudicated and Nonviolent Prior Bad Act

........................... , ................................................................................................................... 58

C. The Testitnony was not Hannless ........................................................................................... 60

XL THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR FIRST DEGREE MURDER AND DEATH SENTENCE ............................................................. 61

A. The State Presented Insufficient Evidence to Prove that the Homicide was not Justified ...... 62

B. The State Presented No Evidence that Mr. Reed "Brought on the Difficulty" ....................... 63

C. Even if Sufficient to Preclude a Finding of Justifiable Homicide, the State's Evidence was

Insufficient to Suppmt a Verdict of First Degree Murder .................................................................. 64

D. The Unreliability of the State's Witnesses Precludes a Conviction for First Degree Murder and the Imposition of the Death Penalty ............................................................................................. 64

XII. THE TRIAL COURT CREATED AN UNCONSTITUTIONALLY DEATH-PRONE JURY WHEN IT ERRONEOUSLY EXCUSED A JUROR WHO DISAPPROVED OF THE DEATH PENALTY, BUT COULD STILL FOLLOW THE RELEVANT LAW ............................................... 69

XIII. THE TRIAL COURT ERRONEOUSLY FAILED TO EXCUSE JURORS WHO COULD

NOT CONSIDER MITIGATING CIRCUMSTANCES ........................................................................ 71

XIV. THE RECORD ON APPEAL IS SEVERELY INADEQUATE ............................................ 73

A. The Trial Court's Failure to Record Over 50 Bench Conferences Obscures Critical Rulings73

ii

B. Untranscribed Hearings Prevent an Adequate Review ofPre-Trial Proceedings ................... 77

XV. THE ALLOTMENT OF MR. REED'S CASE TO FIVE DIFFERENT JUDGES VIOLATED HIS RIGHT TO DUE PROCESS OF LAW ........................................................................................... 78

XVI. THE TRIAL COURT ERRED WHEN IT DENIED MR. REED'S REQUEST FOR A DAUBERT HEARING ON BALLISTICS EVIDENCE. ...................................................................... 79

XVII. ARTICLE 782 OF THE LOUISIANA CODE OF CRIMINAL PROCEDURE IS UNCONSTITUTIONAL ........................................................................................................................ 80

XVIII. THE TRIAL COURT ERRONEOUSLY DENIED MR. REED'S MOTION TO TRANSFER THE TRIAL FROM A COURTHOUSE THAT COMMEMORATED THE CONFEDERACY'S LAST STAND ....................................................................................................... 80

XIX. THE JURY FAILED TO DETERMINE BEYOND A REASONABLE DOUBT THAT DEATH WAS THE APPROPRIATE PUNISHMENT .......................................................................... 82

XX. THE DEATH PENALTY IS UNCONSTITUTIONAL .............................................................. 82

A. The Imposition of the Death Penalty in Louisiana is Arbitrary and Capricious ..................... 83

B. A National Consensus Has Emerged Marking the Evolution of a Maturing Society that the Death Penalty is Excessive ................................... , ............................................................................. 83

CONCLUSION ........................................................................................................................................... 85

CERTIFICATE OF SERVICE ................................................................................................................. 85

iii

TABLE OF AUTHORITIES

Cases

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) ...................................................................................... 37

Abrams v. State, 326 So.2d 211 (Fla. Dist. Ct. App. 1976) ......................................................................... 31

Adams v. United States ex rel. McCann, 317 U.S. 269 (1942) ................................................................... 19

Apprendi v. New Jersey, 530 U.S. 466 (2000) .............................................................................. ., ...... 59, 82

Atkins v. Virginia, 536 U.S. 304 (2002) ...................................................................................................... 84

Bates v. Bell, 402 F.3d 635 (6th Cir. 2005) ................................................................................................. 35

Bates v. Bell, 402 F.3d 635 (6th Cir. 2005) ................................................................................................. 35

Beck v. Alaban1a, 447 U.S. 625 (1980) ....................................................................................................... 80

Beltran v. Cocla·ell, 294 F.3d 730 (5th Cir. 2002) ..................................................................................... .46

Berger v. United States, 295 U.S. 78 (1935) ......................................................................................... 33, 37

Blakely v. Washington, 542 U.S. 296 (2004) ............................................................................................ 82

Blankenship v. Estelle, 545 F.2d 510 (5th Cir. 1977) ................................................................................. .47

Bretl'er v. Quartern1an, 550 U.S. 286 (2007) .............................................................................................. 37

Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009) .......................................................................... 78

Chambers v. Mississippi, 410 U.S. 284 (1973) ................................................................................. 9, 10,49

Crane v. Kentucky, 476 U.S. 683 (1986) ..................................................................................... 9, 10, 12, 13

Crawfordv. Washington, 541 U.S. 36 (2004) ........................................................................... 58

Cuyler v. Sullivan, 446 U.S. 335 (1980) ................................................................................................... 28

Darden v. Wainwright, 477 U.S. 168 (1986) .............................................................................................. 33

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ....................................................... 79

DePew v. Anderson, 311 F.3d 742 (6th Cir. 2002) ..................................................................................... 37

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ........................................................................................ 33

Everett v. Beard, 290 F.3d 500 (3d Cir. 2002) ............................................................................................ 20

Fordv. Wainwright, 477 U.S. 399 (1986) ................................................................................................... 32

Freeman v. Class, 95 F.3d 639 (8th Cir. 1996) ........................................................................................... 21

Furman v. Georgia, 408 U.S. 238 (1972) ................................................................................. 32, 82, 83, 84

Giglio v. United States, 405 U.S. 150 (1972) ............................................................................................. .45

Gray v. Lynn, 6 F.3d 265 (5th Cir. 1993) .................................................................................................... 21

Gray v. Mississippi, 481 U.S. 648 (1987) ............................ , ...................................................................... 71

Gregg v. Georgia, 428 U.S. 153 (1976) ................................................................................................ 82, 84

Hall v. Florida, 134 S. Ct. 1986 (20 14) ...................................................................................................... 85

Hinton v. Alabama, 134 S. Ct. 1081 (2014) ................................................................................................ 19

Holloway v. Arkansas, 435 U.S. 475 (1978) ................................................................. 22, 25, 26, 27, 28,29

Holmes v. South Carolina, 547 U.S. 319 (2006) ..................................................................................... 9, 10

Houston v. Estelle, 569 F.2d 372 (5th Cir. 1978) ........................................................................................ 33

In re Williams, 309 N.E.2d 579 (Ill. 1974) .................................................................................................. 26

Jackson v. Virginia, 443 U.S. 307 (1979) ............................................................................................. 61, 64

Jenkins v. United States, 380 U.S. 445 (1965) ............................................................................................ 31

Johnson v. Mississippi, 486 U.S. 578 (1988) ........................................................................................ 65, 80

Jones v. Alfred H Mayer Co., 392 U.S. 409 (1968) ................................................................................... 80

IV

' \

Kennedy v. Louisiana, 554 U.S. 407 (2008) ............................................................................................... 84

Kirkpatrick v. Whitley, 992 F.2d 491 (5th Cir. 1993) .................................................................................. 46

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) ........................................................................ 79

Lankjordv. Arave, 468 F.3d 578,589 (9th Cir. 2006) ................................................................................ 21

Lockett v. Ohio, 438 U.S. 586 (1978) .............................................................................................. 35, 36, 73

Luchenburgv. Smith, 79 F.3d 388 (4th Cir. 1996) ...................................................................................... 21

Marshall v. United States, 414 U.S. 417 (1974) ......................................................................................... 80

Mickens v. Taylor, 535 U.S. 162 (2002) ............................................................................................... 22, 28

Morgan v. Illinois, 504 U.S. 719 (1992) ............................................................................................... 72, 73

Napue v. Illinois, 360 U.S. 264 (1959) ............................................................................................ 33, 45, 47

Nobles v. Johnson, 127 F.3d 409 (5th Cir. 1997) ....................................................................................... .45

O'Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998) ......................................................................................... .48

Penry v. Johnson, 532 U.S. 782 (2001) ....................................................................................................... 36

People v. Gonzalez, 385 Ill. App. 3d 15, 895 N.E.2d 982 (2008) ......................................................... 20, 21

People v. Rogers, 800 P.2d 1327 (Colo. App. 1990) .................................................................................. 31

People v. Serrano, 286 Ill. App. 3d 485, 676 N.E.2d 1011 (1997) ............................................................. 21

Perez v. Cain, 2008 U.S. Dist. LEXIS 1660 ............................................................................................... 76

Pitchfordv. State, 45 So. 3d 216 (Miss. 2010) ................................... ., ...................................................... 58

Ring v. Arizona, 536 U.S. 584 (2002) ................. ., ................................................................................ 59, 82

Rodgers v. State, 948 So.2d 655 (Fla. 2006) ............................................................................................... 58

Roper v. Simntons, 543 U.S. 551 (2005) ..................................................................................................... 84

Rosell v. ESCO, 549 So.2d 840 (La. 1989) ................................................................................................. 69

Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005) ........................................................................ 58

Salts v. Epps, 676 F.3d 468 (5th Cir. 2012) ................................................................................................ 27

Starr v. United States, 153 U.S. 614 (1894) ................................................................................................ 29

State ex rei. Lawrence v. Smith, 571 So.2d 133 (La. 1990) ........................................................................ 64

State in re D.P.B., 02-1742 (La. 5/20/3), 846 So.2d 753, 755 .................................................................... 14

State v. Allen, 95-1754 (La. 9/5/96), 682 So.2d 713 ................................................................................... 75

State v. Anderson, 06-2987 (La. 9/9/08), 996 So.2d. 973 .......................................................................... 82

State v. Arvie, 505 So.2d 44 (La. 1987) ...................................................................................................... 18

State v. Bairnsfather, 591 So.2d 686 (La. 1991) ......................................................................................... 12

State v. Bell, 603 S.E.2d 93 (N.C. 2004) ..................................................................................................... 59

State v. Bernard, 608 So.2d 966 (La. 1992) .......................................................................................... 24, 76

State v. Blanchard, 776 So.2d 1165 (La. 1/18/01) ...................................................................................... 80

State v. Blank, 04-0204 (La. 4/11/07), 955 So.2d 90 .................................................................................. 12

State v. Boudreaux, 185 La. 434 (La. 1936) ................................................................................................ 62

State v. Brazile, 226 La. 254, 267 (La. 1954) .............................................................................................. 26

State v. Carmouche, 508 So.2d. 792 (La. 1987) ................................................................................... 22, 28

State v. Carr, 331 P.3d 544 (!(an. 2014) ..................................................................................................... 58

State v. Carter, 10-0614 (La. 1/24/12), 84 So .3d 499 ................................................................................. 22

State v. Carter, 559 So.2d 539 (La.App. 2 Cir. 1990) ................................................................................. 21

State v. Chandler, 5 La. Ann. 489 (La. 1850) ............................................................................................. 62

State v. Cisco, 01-2732 (La. 12/3/03), 861 So.2d 118 ................................................................................. 22

State v. Clark, 442 So.2d 1129 (La. 1983) .................................................................................................. 72

State v. Comeaux, 93-2729 (La. 7/2/97); 699 So.2d 16 .............................................................................. 51 v

State v. Cook, 485 So.2d 606 (La.App. 4 Cir. 1986) ................................................................................... 31

State v. Cope, 47889-KW (La. App. 2 Cir 10110112) .................................................................................. 78

State v. Deruise, 98-0541 (La. 4/3/01) 802 So.2d 1224 ............................................................................... 76

State v. Deshotel, 96-0778 (La. 5/31/96) 674 So.2d 260 ........................................................................... .15

State v. Dorsey, 10-0216 (La. 9/7/11), 74 So.3d 603, ................................................................................. 81

State v. Draughn, 05-1825 (La. 1/17/07), 950 So.2d 583 ........................................................................... 39

State v. Edwards, 420 So.2d 663 (La. 1982) ............................................................................................... 24

State v. Evans, 99-1953 (La. 9/17/99), 746 So.2d 1265 .............................................. ., .............................. 50

State v. Everidge, 96-2647 (La. 12/2/97); 702 So.2d 680 .......................................................... 7, 11

State v. Fenner, 94-1498 (La.App. 4 Cir. 11/16/95); 664 So.2d 1315 ........................................................ 65

State v. Ford, 338 So. 2d. 107 (La. 1976) ................................................................................................... 78

State v. Foret, 628 So. 2d 1116 (La. 1993) ........................................................................................... 79, 80

State v. Garcia, 09-1578 (La. 11116/12), 108 So.3d 1 .......................................................................... 22, 26

State v. Green, 493 So.2d 5 88 (La. 1986) ................................................................................................... 18

State v. Gremillion, 542 So.2d 1074 (La. 1989) ...................................................................................... 9, 49

State v. Hammier, 312 So.2d 306 (La. 1975) .............................................................................................. 12

State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219 ....................................................................... 61, 64

State v. Hobley, 98-2460 (La. 12115/99); 752 So.2d 771 ............................................................................ 19

State v. Hoffman, 98-3118, (La. 4/11/00), 768 So.2d 542 ........................................................................... 74

State v. Holmes, 620 So.2d 436 (La.App. 3 Cir. 1993) ............................................................................... 18

State v. Jackson, 608 So.2d 949 (La. 1992) .......................................................................... 5, 54, 56, 57, 59

State v. Jackson, 625 So.2d 146 (La. 1993) ................................................................................................ 50

State v. Jackson, 80 So.2d 105 (La. 1955) .................................................................................................. 39

State v. Jacobs, 99-1659 (La. 6/29/01); 789 So. 2d 1280 ........................................................................... 76

State v. Jenkins, 445 S.E.2d 622 (N.C. Ct. App. 1994) ............................................................................... 31

State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94 .................... ., ...................................................... 54

State v. Jones, 174 La. 1074; 142 So. 693 (La. 1932) ................................................................................. 26

State v. Jones, 474 So.2d 919 (La. 1985) .................................................................................................... 31

State v. Kal1fman, 304 So.2d 300 (La. 1974) .............................................................................................. 39

State v. Kimble, 407 So.2d 693 (La. 1981) .................................................................................................... 8

State v. Landry, 97-0499 (La. 6/29/99), 751 So.2d 214 .............................................................................. 73

State v. Langley, 94-0999 (La. 4/28/94), 639 So.2d 211 ............................................................................. 57

State v. Ledet, 345 So.2d 474 (La. 1977) .......................................... ., .................................................. 50, 51

State v. Lobato, 603 So.2d 739 (La. 1992) .................................................................................................... 8

State v. Lombard, 486 So.2d 106 (La. 1986) .............................................................................................. 64

State v. Lynch, 436 So.2d 567 (La. 1983) ................................................................................................... 15

State v. Manning, 03-1982 (La. 10/19/04), 885 So.2d 1044 ., ..................................................................... 56

State v. Matthe·ws, 464 So.2d 298 (La. 1985) .............................................................................................. 61

State v. Maxie, 93-2158 (La. 4/10/95); 653 So. 2d 526 ............................................................................... 75

State v. McArthur, 97-2918 (La. 10/20/98), 719 So.2d 1037 .......................................................... ., .......... 52

State v. Mickelson, 11-46821 (La. App. 2 Cir 07/19/11); writ denied, 11-1633 (La. 07/22/11) ................. 78

State v. Mickelson, 12-2539 (La. 9/3/14); 149 So.3d 178 ......................................................... 71, 72, 74, 76

State v. Monk, 315 So.2d 727 (La. 1975) ...................................................................................................... 7

State v. Moore, 278 So.2d 781 (La. 1973) .................... ., ............................................................................ 53

State v. Moore, 440 So.2d 134 (La. 1983) ........................... ., ..................................................................... 50 VI

State v. Morris, 157 So.2d 728 (1963) ........................................................................................................ 78

State v. Mussall, 523 So.2d 1305 (La. 1988) ........................................................................................ 64, 69

State v. Owunta, 99-1569 (La. 5/26/00); 761 So.2d 528 ............................................................................. 12

State v. Patterson, 295 So.2d 792 (La. 1974) ........................................................................................ 15, 62

State v. Pinion, 06-2346 (La. 10/26/07); 968 So.2d 131 ....................................................................... 74, 76

State v. Prieur, 277 So.2d 126 (1973) .......................................................... : .................................... 4, 50, 54

State v. Robinson, 3 87 So.2d 1143 (La. 1980) ............................................................................................ 73

State v. Rodrigue, 98-1558 (La. 4/13/99); 734 So.2d 608 ........................................................................... 24

State v. Rubin, 559 So.2d 550 (La.App. 2 Cir. 1990) .................................................................................. 21

State v. Sanders, 93-0001 (La. 11/30/94), 648 So.2d 1272 ................................................................... 57, 61

State v. Shoemaker, 500 So.2d 385 (La. 1987) ............................................................................................. 8

State v. St. Geme, 31 La. Ann. 302 (La. 1879) ............................................................................................ 63

State v. Strickland, 94-0025 (La. 11101/96); 683 So.2d 218 ....................................................................... 19

State v. Sutfield, 354 So.2d 1334 (La. 1978) ............................................................................................... 51

State v. Taylor, 93-2201 (La. 2/28/96), 669 So.2d 364 ............................................................................... 76

State v. Van Winkle, 94-0947 (La. 6/30/95); 658 So.2d 198 ............................................................. 9, 12, 50

State v. Vigee, 518 So.2d 501 (La. 1988) .................................................................................................... 1 0

State v. Webb, 372 So.2d 1209 (La. 1979) .............................................................................................. 7, 8

State v. Wells, 11-0744 (La.App. 4 Cir. 7111/14); 2014 La. App. LEXIS 1764 .................................... 16, 53

State v. Wilkins, 13-2539 (La. 1/15/14), 131 So. 3d 839 ........................................................... 15, 16, 17, 53

State v. Williams, 07-0878 (La. 1/25/08), 831 So.2d 835 ........................................................................... 12

State v. Williams, 375 So.2d 1379 (La. 1979) ............................................................................................. 31

State v. Williamson, 389 So.2d 1328 (La. 1980) .......................................................................................... 18

State v. Wilson, 404 So.2d 968 (La. 1981) .................................................................................................. 33

State v. Wright, 445 So.2d 1198 (La. 1984) ................................................................................................ 31

Stricklandv. Washington, 466 U.S. 668 (1984) .......................................................................................... .19

8-widler & Berlin v. United States, 524 U.S. 399 (1998) ............................................................................. 25

Tassin v. Cain, 517 F .3d 770 (5th Cir. 2008) .............................................................................................. 45

Tennard v. Dretke, 542 U.S. 274 (2004) ................................................................................................... 72

Travelers Ins. Co. v. Ryan, 416 F.2d 362 (5th Cir. 1969) ........................................................................... 31

United States v. Bates, 468 F.2d 1252 (5th Cir. 1972) ................................................................................ 44

United States v. Blackburn, 9 F.3d 353 (5th Cir. 1993) .............................................................................. 45

United States v. Booker, 543 U.S. 220 (2005) .......................................................................................... 82

United States v. Caudle, 606 F .2d 451 (4th Cir. 1979) .............................................................................. .48

United States v. Federick, 78 F.3d 1370 (9111 Cir. 1996) ............................................................................ 35

United States v. Fischer, 531 F .2d 783 (5th Cir. 1976) ............................................................................... 31

United States v. Goodwin, 625 F.2d 693 (5th Cir. 1980) ............................................................................ 44

United States v. Morris, 485 F.2d 1385 (5th Cir. 1973) .............................................................................. 48

United States v. Punch, 722 F.2d 146 (5th Cir. 1983) ................................................................................. 27

United States v. Richardson, 161 F.3d 728 (D.C. Cir. 1998) ...................................................................... 35

United States v. Riggi, 951 F.2d 1368 (3d Cir. 1991) ................................................................................ .48

United States v. Ross, 33 F.3d 1507 (11th Cir. 1994) ................................................................................ .48

United States v. Span, 75 F.3d 1383 (9th Cir. 1996) ..................................... ; ............................................. 20

United States v. Thomas, 488 F.2d 334 (6th Cir.1973) .............................................................................. .44

United States v. Viera, 819 F.2d 498 (5th Cir. 1987) .................................................................................. 44 Vll

United States v. Whitmore, 480 F.2d 1154 (D.C. Cir. 1973) ....................................................................... 33

United States v. Young, 470 U.S. 1 (1985) .................................................................................................. 35

Upjohn Co. v. United States, 449 U.S. 383 (1981) ..................................................................................... 25

Veal v. State, 268 S.W.2d 345 (Tenn. 1954) ............................................................................................... 31

Wainwright v. Witt, 569 U.S. 412 (1985) .............................................................................................. 69, 70

Washington v. Texas, 388 U.S. 14 (1967) ......................................................................................... 9, 10,44

Webb v. Texas, 409 U.S. 95 (1972) ............................................................................................................. 44

Witherspoon v.lllinois, 319 U.S. 510 (1968) ........................................................................................ 69, 71

Woodv. Georgia, 450 U.S. 261 (1981) ....................................................................................................... 22

Zqfiro v. United States, 506 U.S. 534 (1993) .............................................................................................. 20

Statutes and Constitutional P1·ovisions

18 u.s.c. §1201 .......................................................................................................................................... 85

18 u.s.c. § 2113 ......................................................................................................................................... 85

Canst. Com. of Puerto Rico, (1952) Att. II, Sec. 7 ..................................................................................... 85

La. C.Cr.P. art. 703 ................................................................................................................................... 12 La. C.Cr.P. att. 772 .................................................................................................................................. .31 La. C.Cr.P. art. 774 ...................................................................................................................................... 39

La. C.Cr.P. att. 766 ................................................................................................................................... .39 La. C.Cr.P. art 782 ....................................................................................................................................... 81

La. C.Cr.P. att. 797 .................................................................................................................................... 73

La. C.Cr.P. art 798 ....................................................................................................................................... 71

La. C.Cr.P. art. 851 ...................................................................................................................................... 18

La. C.Cr.P. art. 855 ...................................................................................................................................... 18

La. C.Cr.P. art. 858 ...................................................................................................................................... 18

La. C.Cr.P. att. 905.2 ................................................................................................................................ 24 La. C.C.R.P. att. 905.5 .................................................................................................................. 17, 72,73 La. C.Cr.P. art 921 ..................................................................................................................................... 54 La. C.E. art. 403 ..................................................................................................................................... 50, 53

La. C.E. att. 404 ................................................................................................................................... 24, 50 La. C.E. att. 607 .............................................................................................................................. 12, 13, 49

La. C.E. art. 611 .......................................................................................................................................... 49

La. C.E. art. 702 .......................................................................................................................................... 79

La. C.E. att. 801 .................................................................................................................................. 7, 8, 49

La. C.E. art. 803 ............................................................................................................................................ 8

La. C.E. att 843 ...................................................................................................................................... 74, 76

Louisiana Code of Judicial Conduct, Cannon 3 .......................................................................................... 32

La. Canst. Art. I,§ 2 .............................................................................................................................. 10, 37

La. Canst. Att. I, §13 ............................................................................................................................ 10, 19

La. Con st. Art. I, § 16 ......................................................................................................................... passitn

La. Con st. Att. I, § 17 ................................................................................................................................ 73

La. Canst. Art. I, § 19 ................................................................................................................................. 73

LA RULES OF PROF'L CONDUCT, R. 1.6 ............................................................................................. 25

LA RULES OF PROF'L CONDUCT, R. 1.9 ............................................................................................. 25

La. R.S. §14:20 ..................................................................................................................................... passitn

V111

La. R.S. § 14:21 ......................................................................................................................................... 7, 9

La. R.S. § 14:31 ........................................................................................................................................... 65

La. R.S. § 14:94 ............................................................................................................................................ 57

MODEL RULES OF PROF'L CONDUCT R. 1.9 (1983) .................................................................... 24, 25

Unifonn District Cotut Rule, 14.0 ............................................................................................................ 79

U.S. Const. mnend. IV ........................................................................................................................ passitn

U.S. Const. atnend.V ............. · ............................................................................................................. passitn

U.S. Const. atnend. VI. ....................................................................................................................... passitn

U.S. Const. atnend. Vlll ..................................................................................................................... passitn

U.S. Const. amend. XIII ............................................................................................................................ 81

U.S. Const. atnend. XIV ...................................................................................................................... passhn

Other Authorities

A. Schwartz, "A Systemic Challenge to the Reliability and Admissibility of Firearms and Toolmark Identification," 6 COLUMBIA SCIENCE & L. REV. 1 (2005) .................................................................... 80

Cheney C. Joseph & P. Raymond Lamonica, 17 La. Civ. L. Treatise, Criminal Jury Instructions § 6.17 ... .......................................................................................................................................................... 14, 17

"Executions by Year Since 1976," Death Penalty Information Center, available at http://www .deathpenaltyinfo.org/executions-year ................................................................................. 83

Reid Wilson an Scott Clement, "Supp01i for the Death Penalty Still High, but Down," Washington Post, 6/5/2014, avaialble at http:/ /www.washingtonpost.com/blogs/govbeat/wp/20 14/06/05/suppOit-for-death-penalty-still-high-but-down/ ......................................................................................................... 84

Nancy Leong, "Death Penalty Becomes More Rare and More Problematic," Buffington Post, 115/2015,

available at http://www .huffingtonpost.com/nancy-leong/ death-penalty-becomes-mar_ b _ 6404 7 56 .html

................................................................................................................................................................ 84

The Problem of Confederate Symbols: A Thirteenth Amendment Approach, 75 Temple L. Rev. 539, 575 (2002) ...................................................................................................................................................... 80

Tambala Killer Dodges Death Penalty, Caribbean Business, 3/23/2013, available at http://www. carib beanbusinesspr. com/news/tombo la-killer-dodges-death-penalty-825 3 7 .html ............. 8 5

IX

ASSIGNMENTS OF ERROR

1. The trial court improperly excluded testimony that Marcus Reed told the Adams brothers to stay away from his home.

2. The court erred in finding that Clarence Powell's testimony was not hearsay because the testimony was offered to prove that the utterance occurred, not to prove the truth of the facts recited.

3. Clarence Powell's testimony was admissible as res gestae.

4. The court violated Mr. Reed's right to present a defense when it excluded Clarence Powell's testimony.

5. The comt prevented Mr. Reed from presenting evidence bearing on the reliability of his alleged confession to a jailhouse infonnant.

6. The trial court erred in finding that Robert Washington's testimony was hearsay because the testimony was offered to impeach a State witness.

7. The court violated Mr. Reed's Right to present a defense when it excluded Robett Washington's testimony.

8. The comt failed to instruct the jury on the elements of justifiable homicide applicable to Mr. Reed's case.

9. The comt improperly instructed the jury that they should consider retreat as a factor in determining whether Mr. Reed's actions were justified.

10. The erroneous instructions on justifiable homicide prejudiced the penalty phase deliberations.

11. The trial court's failure to properly instruct the jury on the elements of justifiable homicide casts substantial doubt on the fact finding process.

12. Mr. Reed was prejudiced by the deficient performance of his attorneys when defense counsel failed to request jury instructions on the very defense that they presented at trial.

13. Mr. Reed's Sixth Amendment right to conflict free counsel was violated when the comt denied defense counsel's motion to withdraw.

14. Reversal is required because defense counsel brought the conflict of interest to the court's attention pre-trial.

15. The trial comt gave no deference to counsel's assertions that they were conflicted.

16. The trial court erroneously found that the death of Attorney Florence's former client- Jarquis Adams -resolved the conflict of interest.

17. The conflict of interest had an adverse effect on counsel's performance Mr. Reed's conviction on sentence.

, requiring reversal of

18. The court erroneously denied a mistrial after the trial judge began openly crying during the victim­impact testimony.

19. The trial comt erroneously denied a mistrial after prosecutors made unrelenting personal attacks on defense counsel in the penalty phase closing arguments.

20. The State improperly argued in the penalty phase that Marcus Reed was "loathsome" for presenting mitigating evidence.

21. The State repeatedly misstated the evidence in culpability-phase and penalty-phase arguments.

22. Prosecutors improperly threatened to arrest or criminally charge three trial witnesses, depriving Mr. Reed of due process of law.

X

--~-----

23. The State failed to correct false testimony from two of its witnesses, and there is a reasonable

likelihood that it affected the judgment of the jury.

24. The court erroneously restricted defense counsel's effort to impeach the false or misleading testimony of State witnesses.

25. The court erroneously found that re-cross examination was not permitted under the law.

26. The court improperly restricted cross-examination of Detective Keith Fox.

27. The court improperly excluded testimony that Jarquis Adams instructed Kyle King to burglarize Marcus Reed's home.

28. The State relied on inadmissible other-crimes evidence in the culpability phase that Marcus Reed sold marijuana.

29. Evidence that Marcus Reed sold marijuana was not relevant to motive, and was therefore inadmissible under La. C.E. art. 404(B).

3 0. Evidence of Marcus Reed's past drug activity was not relevant to disprove justifiable homicide.

31. The excessive evidence of Mr. Reed's past drug activity was more prejudicial than probative and should have been excluded under La. C.E. art. 403.

32. In the penalty phase, the State presented inadmissible testimony of an arresting police officer, and not a victim or eyewitness, to prove Mr. Reed's prior bad acts, in violation of State v. Jackson, 608 So.2d 949 (La. 1992).

33. The testimony of Detective Rod Demery violated Mr. Reed's right to confront his accusers.

34. In the penalty phase, the State introduced allegations of an unadjudicated and nonviolent prior bad act

in violation of State v. Jackson, 608 So.2d 949 (La. 1992).

35. The State repeatedly urged jurors to ignore mitigating evidence and sentence Mr. Reed to death based on this inadmissible other-crimes evidence.

3 6. The State presented insufficient evidence to prove beyond a reasonable doubt that the homicide was

not justified.

37. Even if sufficient to preclude a finding of justifiable homicide, the State's evidence was insufficient to support a verdict of first degree murder.

38. The unreliability of the State's witnesses precludes a conviction for first degree murder and the

imposition of the death penalty.

39. The trial court erroneously excused a potential juror who disapproved of the death penalty, but could

still follow the law.

40. The trial court erroneously failed to excuse three jurors who could not consider all mitigating circumstances.

41. The record on appeal is constitutionally inadequate.

42. The district court failed to record over 50 bench conferences, preventing counsel from adequately reviewing the voir dire and trial proceedings.

43. The district comt failed to transcribe several pre-trial hearings, preventing an adequate review of the

record.

44. The allotment of Mr. Reed's case to five different judges violated his right to due process of law.

45. The trial court erred when it denied Mr. Reed's request for a Daubert hearing on ballistics evidence.

46. Article 7 82 of the Louisiana Code of Criminal Procedure is unconstitutional.

Xl

47. The trial court erroneously denied Mr. Reed's motion to transfer the trial from a comthouse that commemorated the confederacy's last stand.

48. The jury failed to determine beyond a reasonable doubt that death was the appropriate punishment.

49. The imposition of the death penalty in Louisiana is arbitrary and capricious.

50. A national consensus has emerged marking the evolution of a maturing society that the death penalty

is excessive.

Xll

STATEMENT OF THE FACTS

On the afternoon of August 16, 2010, one of the victims in this case, Jarquis Adams, broke into Marcus

Reed's house. R. 4878-79. He was accompanied by his friend, Kyle King. Finding the house empty when they

arrived, the two men entered Mr. Reed's home, stole two amplifiers and an X-Box game system, and loaded them

into Mr. King's car. R. 4874-79. After leaving, Jarquis Adams told Mr. King "to turn around so we could go back

and get a gun. He said there was a gun in the house." R. 1586. Mr. King would not go back. R. 223, 1586, 4881.

He left Jarquis around 4:30p.m. and never saw him again. R. 4882-83.

Marcus Reed shared the house with his girlfriend and her two small children. R. 4372-73. When they

came home that evening, they discovered that their front door was kicked in and the house had been burglarized.

R. 624. Mr. Reed spoke to his neighbors, trying to find out if they saw what happened and who committed the

burglary. R. R. 4493, 624.

At 10:00 that same night, Jarquis Adams drove back to Mr. Reed's house in a silver Chevrolet Malibu.

The house stood at the end of a long driveway, surrounded by woods, in a rural pa1i of Caddo Parish. The house

was barely visible from the street. Only a single lamp illuminated the front yard and it was very dark. R. 4324,

4242-46, 4264. At least two other individuals were with Jarquis in the car- his brothers Jeremiah and Gene

Adams. All three were shot and killed in Mr. Reed's front yard.

Three men witnessed the incident: Clarence Powell, Daniel Jackson, and Shannon Garland. Clarence

Powell was staying right next door to Mr. Reed's house on the night of the shooting. He overheard Mr. Reed

having an argument on the telephone shmily before the Adams brothers arrived. Mr. Reed yelled over the phone:

R. 625.

I don't know what the hell y'all think y'all doing and I'm not the one to play with; don't- don't bring this stuff to my house, don't bring it down here; I don't mess around with nobody ...

The victims soon drove up Mr. Reed's long driveway, and another confrontation ensued. Mr. Powell

heard Marcus Reed say, "told you don't come down here. Don't fuck with me. Don't fuck with me." R. 4575, see

also 625. A voice responded, "Motherfucker, I told you, I told you, you ain't shit." Id. Mr. Reed repeated that he

told the Adams brothers not to come to his house, but they continued to taunt and curse at him: "[d]on't turn your

back on me on me ... you punk ass nigger" R. 4575, 625. Mr. Powell then heard someone say "gun," followed by

the sound of gunshots from a handgun and then from a high powered rifle. R. 4540, 4575-76. Other neighbors

also reported hearing a single gunshot, a pause, and then a cluster of gunshots. R. 187.

Daniel Jackson and Shannon Garland were also present at Mr. Reed's house at the time of the shooting.

Their accounts differed from Clarence Powell. Both men sought to exculpate themselves while inculpating Mr.

1

-------------------. ·- --

Reed. Mr. Jackson and Mr. Garland testified that as soon as Jarquis Adams arrived at Mr. Reed's house and got

out of the car Marcus Reed shot him and his brothers. They denied that Mr. Reed had any confrontation with the

victims before opening fire and denied that any of the occupants of the car were armed. R. 4304, 4403. Mr.

Jackson and Mr. Garland reported that Marcus Reed had forced them to move the bodies of the victims before

they both ran away. R. 4390, 4306.

When Caddo Sheriffs arrived at the scene they found the body of Jeremiah Adams (20) hanging out of the

back seat of the Chevrolet Malibu in Mr. Reed's front yard. The body of Gene Adams (13) was slumped down \

next to him in the car. Jarquis Adams (18) was in the trunk of the car. A critical aspect of the initial investigation

was determining how many people arrived with Jarquis Adams right before the shooting. Both Shannon Garland

and Daniel Jackson originally reported that there were four individuals in the Adams's car, R. 95-96, 2212-13,

2219, 4448, but rejected this account at trial. R. 4300, 4354, 4446-48. Sheriffs searched for a possible fourth

victim or witness, but did not find anyone. R. 4639-40. However, they recovered the SKS rifle that was used to

kill the Adams brothers thrown under Mr. Reed's porch, R. 4366, and a .45 caliber pistol in the woods en route

away from the house. R. 4649-50.

Marcus Reed fled the scene and turned himself in to Caddo detectives early the next day. R. 678-81. He

initially denied involvement in the shooting and was charged with three counts of first degree murder. Ultimately,

at trial, appellant acknowledged that he committed the shooting; his defense was that the shooting was justified.

STATEMENT OF THE CASE

Marcus Reed was charged with three counts of first degree murder on August 17,2010. Attorney Richard

Gom·ley was appointed to represent him at trial. R. 37-39. 1 On June 13, 2012, Mr. Gom·ley ale1ted the district

comt that his co-counsel, Attorney J. Florence, previously represented one of the victims, Jarquis Adams, on a

criminal charge. R. 2937-38. Because of Mr. Florence's previous confidential communications with Mr. Adams

and his family, and his confidential communications with Mr. Reed, a conflict of interest had arisen. R. 2937-39,

2942. Defense counsel moved to withdraw from the case and argued that Mr. Florence's ethical obligations to

Jarquis Adams would hinder in their ability to represent Mr. Reed. The comt denied the motion to withdraw,

finding that there was no conflict of interest. R. 2944-45. Counsel remained on the case and, as a result of the

conflict, did not investigate or adduce evidence concerning Jarquis Adams' criminal history or dangerous

character. Counsel did not present evidence about Mr. Adams' background in suppmt of Mr. Reed's justifiable

Attorney Ross Owen was originally appointed as second-chair counsel, but resigned from the capital office on February 15, 2012. R. 2874. Attorney J. Florence then moved into the position of second chair.

2

homicide defense, and did not cross examine Mr. Adams's family members during either the guilt or penalty

phase of the trial. R. 2359.

Trial commenced on September 23, 2013. R. 3289. The facts surrounding the shooting were hotly

contested. The jmy was presented with two competing theories of the case. The defense themy tracked the

testimony of Clarence Powell and Kyle King: Jarquis Adams burglarized Marcus Reed's house, he came back at

10:00 at night to burglarize the house again, he got into a confrontation with Marcus Reed, and Mr. Reed shot him

and the other passengers in the car to prevent another violent felony from occurring at his home. See R.4575-76,

4874-82. The State did not contest that Jarquis Adams burglarized Mr. Reed's house. The State did not contest

that he told Kyle King that he wanted to return to the house to steal more items. The State's themy of the case was

that Mr. Reed "lured" Mr. Adams back to his house with the promise of marijuana, and then shot him and his

brothers as soon they arrived. R. 4888.

To support its case, the State introduced testimony of Daniel Jackson, Shannon Garland, and an inmate at

the Caddo Correctional Center named Teny Denny Matthews. These witnesses testified that Marcus Reed did not

have a confrontation with the victims, he "ambushed" them. R. 4324, 4384, 4660-61. Mr. Jackson and Mr.

Garland's versions of the shooting were wildly inconsistent with their various statements to police and with each

other's testimony. Both men rejected their initial reports that there were four men in the Adams brothers' car. R.

4308-09, 4354, 4446-48. Mr. Garland even testified that Marcus Reed shot Jarquis Adams in the back, without

provocation. R. 4387. This testimony was irreconcilable with the physical evidence that Jarquis Adams was shot

in the chest- not the back. R. 4787, 4807. The only evidence to support the State's theory that Mr. Reed "lured"

the victims to his house was the testimony of two witnesses that they heard Marcus Reed tell an unknown person

over the telephone to come to his house and "pick up a package." R. 4298, 4603. Neither witness identified the

caller as Jarquis Adams. R. 4295-96, 459~. Nevertheless, the State argued that Jarquis Adams was the caller and

that Mr. Reed invited him back to the house just to kill him in his own front yard. R. 4888. The State explained to

the jurors:

If you bring on a difficulty, you can't claim self-defense; you statied it. And he statied it when he lured them over there.

R. 4924.

Mr. Reed was unable to counter the State's theory or adequately present his defense. The court refused to

admit the testimony of witness Clarence Powell that he overheard Mr. Reed having an argument over the

telephone shmily before the Adams brothers arrived and told the person to stay away from his home. R. 625,

4601. The comi erroneously found that any testimony about Mr. Reed's confrontation over the telephone would

be "hearsay" because Mr. Powell was not in the same room with Mr. Reed when he made the telephone call and

3

did not witness his demeanor. R. 4601. Without Mr. Powell's testimony to contend with, the State's theory of the

case went unrebutted.

Mr. Reed was also unable to rebut the testimony of a jail-house informant who claimed that Mr. Reed

confessed to "ambushing" the Adams brothers. The witness, Terry Denny Matthews, testified that he met Marcus

Reed for the first time on a van ride between the Caddo Correctional Center and the comthouse. During that trip,

Mr. Reed allegedly made this confession. R. 4655-70. To discredit Matthews' testimony, the defense called

inmate Robe1t Washington, who was present on that same van ride and pmticipated in the conversation between

Mr. Matthews and Mr. Reed. Although Mr. Washington was prepared to testify that the three men only talked

about motorcycles and the business they would like to start- not Mr. Reed's capital case- the comt excluded this

testimony on the grounds that it was "hearsay." R. 4847, 2292-95.

Mr. Reed was also severely prejudiced by the State's excessive presentation of evidence that Marcus

Reed sold marijuana to a number of his neighbors. Although not relevant to any material fact at issue in the

culpability phase, nearly every lay witness for the State testified about how often they purchased marijuana from

Marcus Reed, how much they purchased, and whether or not Mr. Reed had a "real job." SeeR. 4373, 4451, 4487,

4592-94, 4503-07. The admission of this unrelenting other-crimes evidence constituted reversible error. State v.

Prieur, 277 So.2d 126, 128 (1973).

Throughout the trial the State threatened with arrest or indictment several witnesses who were prepared to

testify favorably for the defense. R. 4469, 4534, 4859. When Clarence Powell appeared late on the morning of

trial, the State threatened to have him arrested. The trial prosecutor argued to the court:

I'm asking that he be arrested. I'm asking for a bench warrant. He was not here at 9:00 when the Comt instructed him to be. He was served. And he's outside and I'd ask that you hook him up.

R. 4534. Defense counsel urged the prosecutors to simply call Mr. Powell to the stand and release him from his

subpoena, but the State countered, "It's my witness and I want him arrested." R. 4534.

When Kyle King appeared at trial, the State immediately notified the court that he would be criminally

charged if he testified that he and Jarquis Adams burglarized Mr. Reed's house on the day of the homicide. The

State tlu-eatened,

I will give notice right now that if he admits to a crime, I'm going to indict him and he probably won't leave this building, because I will secure an arrest warrant for him.

R. 4859. Defense counsel objected, calling the State's actions "out of line" and "abhorrent." R. 4860-62.

When Marcus Reed's cousin, Brian Wafer, testified inconsistently with his statements to police, the trial

prosecutor interrupted his co-counsel's examination and began reading aloud from the pe1jury statute. R. 4469.

This was done in the presence of the jury, causing defense counsel to object and move for a mistrial. Id. While the

4

trial court found that many of the State's actions were improper, it did not take the proper curative actions. R.

4476, 4534-35, 4864-65.

These errors were compounded by the defense's failure to request, and the trial court's failure to give, the

proper instructions on Louisiana's law of justifiable homicide. The jury was never instructed that the use of force

was justified if Mr. Reed reasonably believed that the Adams brothers were attempting to use unlawful force

against a person to commit a burglaty of a dwelling, under La. R.S. 14:20 (A)(3), or if he reasonably believed that

they were attempting to commit a "violent or forcible felony involving danger to life or of great bodily hann," La.

R.S. 14:20(A)(2). Contraty to 14:20(D), the jurors were further instructed that they could consider the possibility

for retreat as a factor in determining if Mr. Reed's actions were necessary. R. 4954. The combination of these

erroneous instructions dramatically lowered the State's burden to prove that the homicide was not justified and

deprived Mr. Reed of a reasonable defense to first degree murder.

Mr. Reed was convicted of three-counts of first degree murder. R. 4960. The penalty phase commenced

on October 2, 2013. R. 4980. The State presented inadmissible testimony about Mr. Reed's prior bad acts,

including allegations that Mr. Reed attempted to bring contraband into the Caddo Correctional Center while

awaiting trial. R. 5013-23. Evidence of this unadjudicated and non-violent prior bad act was baldly inadmissible

under State v. Jackson, 608 So.2d 949 (La. 1992), and introduced over defense counsel's objection. R. 3272,

4969-71. Relying on this inadmissible evidence, the State argued to the jury: "Selling drugs on the outside;

selling drugs on the inside. He stops at nothing. There's no stopping this man." R. 510 8.

The State also presented victim impact testimony from the Adams' aunt, Clara Morgan. Ms. Morgan

provided emotional testimony about her nephews and the impact this homicide had on her family. In the middle of

Ms. Morgan's testimony, the trial judge began openly ctying in full view of the jurors. R. 5045-46. The judge

immediately rushed out of the courtroom at the conclusion of Ms. Morgan's testimony. R. 2195-98. When she

returned, defense counsel moved for a mistrial. R. 5045. The court acknowledged her emotional reaction, but

denied the mistrial. She explained,

This is hard and it's -I'm an emotional person. I am. My emotions show on my face with what I do. They do. And that was very difficult, and I'll say it on the record. But I don't believe that it really impacts the jmy to see any human being moved by that. It's not a comment on the evidence; it's not a comment on someone's testimony; it's not.

R. 5047-48.

The court also denied the defense's request for a mistrial when the State began chastising defense attorney

Richard Goorley in closing arguments. Following Mr. Go01·ley's pleas for mercy in his closing, the State told the

jurors, "Mr. Goorley doesn't really appeal to your higher nature, because what he's doing is threatening you," R.

5127. The jurors were told again and again that Mr. Goorley did not respect them, was threatening them, and

5

calling them killers. "[H]ow he's threatening you is he says unless you do what I tell you, unless you believe in

my New Testament, unless you show mercy to Reed, then you're nothing but a killer ... Now, if that's not a threat,

I don't know what is," the State argued. R. 5127-28. The court disregarded defense counsel's objection and

ultimately ruled that these improper statements were provoked. R. 5136. The State then proceeded to argue that

Jesus Christ called for the death penalty for the killing of a child, relying on the biblical passage, "whoa to you

who would harm one of these, referring to children. It would be better that you had never been bom. A millstone

around your neck and dropped into the sea." R. 5126-27.

The court later acknowledged the lack of decorum during trial, but found that it did not warrant a new

trial because attacks were made by both patties. "They were both bad, okay?," the court explained. "This was a

trial of jabs going back and fmth. I tried to limit that. I tried to control that. Sometimes I was successful,

sometimes I wasn't." R. 5179.

These errors, along with others addressed below, warrant reversal of Mr. Reed's conviction and death

sentence.

ARGUMENT

I. THE TRIAL COURT IMPROPERLY EXCLUDED TESTIMONY THAT MARCUS REEDTOLDTHEADAMSBROTHERSTOSTAY AWAYFROMIDSHOME.

The morning after the homicide, witness Clarence Powell gave a recorded statement to Caddo Parish

Sheriffs. Mr. Powell repmted that he was staying at his parents' home, just 20 feet from Marcus Reed and his

girlfriend's house. He overheard Mr. Reed yelling at someone on the telephone shmtly before the Adams brothers

arrived. Mr. Reed stated to the caller:

I don't know what the hell y'all think y'all doing and I'm not the one to play with; don't- don't bring this stuff to my house, don't bring it down here; I don't mess around with nobody ...

R. 625. When the Adams' car pulled up to the house a shmt time later, Mr. Reed stated "I told you don't come

down here," R. 4575. Mr. Powell heard fighting back and forth, and then gunshots. R. 4575-76, 625-26.

The trial comt excluded Mr. Powell's testimony about the telephone confrontation, finding that it was

inadmissible hearsay. The State's objection on this point and the court's ruling occurred at a bench conference,

and were not transcribed for the record on appeal. R. 4576. However, the comt later explained on the record that it

excluded Mr. Powell's testimony because he was not in the same room with Mr. Reed when he made the call:

THE COURT: ... I ruled it would be hearsay. He's not-- and the reason for that is he wasn't present when the phone call was made; he was at his house 20 yards away. So - and it's not reliable, it's not trustworthy, and so it's hearsay. So that was my ruling on that.

MR. GOORLEY: But he overheard it. Anyway-

THE COURT: Maybe he did; maybe he didn't. But just so the record is clear, my ruling to your objection to Mr. Cox's objection was that it was hearsay. And I didn't say this because I couldn't because we were at the bench; the reason for me ruling is because Mr. Powell's account of it is

6

not reliable and trustworthy so as to make it an exception to the hearsay rule, because he was not present. He didn't witness the declarant's demeanor. He didn't see it happen. So it's not reliable.

R. 4601.

Although the court permitted Mr. Powell to testify about the in-person confrontation that occurred in Mr.

Reed's driveway, R. 4572, it excluded the only evidence that Marcus Reed specifically told the Adams brothers to

stay away from his home. The comi's ruling was incorrect as a matter of state law and devastated Mr. Reed's

defense. In the absence of Mr. Powell's testimony, the State successfully argued that Marcus Reed "lured" the

Adams brothers to his house, and was therefore not entitled the protections of Louisiana's justifiable homicide

statute. See La. R.S. § 14:21. This clear misapplication of the hearsay rule violated Mr. Reed's right to compulsmy

process, a fair trial, and to present a defense under the Sixth, Eighth, and Fomieenth Amendments of the United

States Constitution and Article 1 Section 16 of the Constitution of the State of Louisiana.

A. Clarence Powell's Testimony was not Hearsay

Clarence Powell's testimony about the telephone call was not hearsay. Hearsay is "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. C.E. mi. 801(C). As this Comi has long held, "evidence is non-hearsay which is offered

not to prove the truth of the facts recited, but to prove that the utterance occurred." State v. Monk, 315 So.2d 727,

740 (La. 1975) (emphasis added). Testimony that merely recounts a non-assetiive statement will not constitute

hearsay.

For example, in State v. Everidge, the alleged victim in a sexual assault case testified that the defendant

raped her in the bedroom of her apartment. 96-2647 (La. 12/2/97); 702 So.2d 680, 682. The defendant claimed

that the sex was consensual. The district comi excluded testimony of a defense witnesses "that hours before the

alleged rape, he saw the victim and [the defendant] hug and kiss and overheard the victim arrange a rendezvous

with the defendant," ruling that the testimony was hearsay. 702 So.2d at 683. This Comi reversed, finding that the

testimony "was not offered for the truth of the matter asserted and thus does not fall within the definition of

hearsay." !d. at 685. To illustrate the definition of hearsay, this Court explained:

I d.

[T]he victim stated, 'Come over to my apartment tonight' or words to that effect. The statement was not offered to prove any assertion within the statement such as ownership of the apartment, but to establish the fact that the statement was made. We contrast this scenario to one where a witness states that declarant said, 'John killed Jane.' The matter assetied is that John killed Jane.

In State v. Webb, the defendant was charged with attempted simple burglmy for removing lighting

fixtures from a vacant building. 372 So.2d 1209 (La. 1979). Webb asserted the defense that he took the fixtures,

but had no criminal intent. He attempted to testify at trial that before he entered the building, he met an unknown

man who told him that the building in question was "soon to be demolished and that the owner had no objection

7

to anyone taking whatever he wanted." 372 So.2d at 1210. The district court excluded the testimony on the

grounds that it was hearsay. This Court reversed, finding that the excluded testimony was not offered to prove the

truth of the matter asserted, but "to show defendant's state of mind when he entered the building and his

consequent lack of criminal intent." Id.; see also State v. Lobato, 603 So.2d 739, 746 (La. 1992) (noting that the

statements were "not asse1tions of any fact," but rather, "offered for the purpose of showing that the statements

were in fact made and were relevant and probative, by reason of having been made, to the relationship between

the parties and their cmmection to the criminal enterprise"); State v. Shoemaker, 500 So.2d 385, 388 (La. 1987)

(reversing the conviction based on the exclusion of "statements [that] were being offered to show the contents of

their conversations and not to show the truth of what had been said"); id. at 389 (noting that the trial comt's ruling

"effectively prevented the defendant from presenting his entrapment defense, a substantial violation of a

constitutional right.").

Like the above cited cases, Mr. Powell's testimony was not offered for the truth of any matter asse1ted-

i.e. that Mr. Reed didn't "mess around"- but rather, it was offered to prove that Marcus Reed told a person on the

phone: "don't bring this stuff to my house, don't bring it down here; I don't mess around with nobody." R. 625.

B. The Excluded Statements Fall Squarely Within the Definition of Res Gestae

Even if this Cmut were to find that the testimony was offered to prove the truth of Mr. Reed's asse1tions,

the excluded testimony would fall squarely within the statutmy definition of res gestae. The Code of Evidence

defines as "not hearsay" things said or done that are:

[E]vents speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the pmticipants, and not the words of the pmticipants when narrating the events, and which are necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

La. C.E. a1t. 801(4)? The definition of res gestae is interpreted broadly, including:

[N]ot only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pe1taining to what they heard or observed before, during, or after the commission of the crime, if the continuous chain of events is evident under the circumstances.

State v. Kimble, 407 So.2d 693 (La. 1981). Mr. Reed's confrontation on the telephone occurred

immediately before the shooting. Mr. Reed's later statement to the Adams brothers, "I told you don't

come down here," is evidence that they were the callers. R. 4575. His statement was res gestae.

2 Furthermore, even if this court were to find that Mr. Powell's testimony fit within the definition of hearsay, it would also fall within several exceptions to the hearsay rule: Present sense impression, excited utterance, and then existing mental, emotional or physical condition. La. C.E. att. 803 (1), (2), and (3).

8

C. The Court's Ruling Violated Mr. Reed's Right to Present a Defense

The erroneous exclusion of Clarence Powell's testimony violated Marcus Reed's fundamental right to

present a defense. As this Court has stated, "It is difficult to imagine rights more inextricably linked to our

concept of a fair trial" than a defendant's constitutional right to present a defense. State v. Van Winkle, 94-0947

(La. 6/30/95); 658 So.2d 198, 201; Chambers v. Mississippi, 410 U.S. 284 (1973), Crane v. Kentucky, 476 U.S.

683 (1986), Holmes v. South Carolina, 547 U.S. 319 (2006), Washington v. Texas, 388 U.S. 14 (1967). "The right

of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the

State's accusations." Chambers, 410 U.S. at 294. The constitutional right to present a defense is "abridged by

evidence rules that 'infring[e] upon a weighty interest of the accused' and are "arbitrary' or 'dispropmtionate to

the purposes they are designed to serve." Holmes, 547 U.S. 319 at 324 (citing United States v. Scheffer, 523 U.S.

303, 308 (1998)), see also Van Winkle, 658 So.2d at 202; State v. Vigee, 518 So.2d 501, 503 (La. 1988); State v.

Gremillion, 542 So.2d 1074, 1078 (La. 1989).

Testimony that Marcus Reed fought with the victims or told them to stay away from his house was one of

the most significant pieces of evidence suppmting the theory of justifiable homicide. As the State argued and the

jury was instructed, under La. R.S. §14:21, Mr. Reed could not claim the right to self-defense if he was "the

aggressor" or if he "[brought] on a difficulty." R. 4924, 4955. A defendant who instigates the conflict must

withdraw "in good faith and in such a manner that his adversary knows or should know that he desires to

withdraw and discontinue the conflict" in order to fall under the protections of Louisiana's justifiable homicide

statute. La. R.S. §14:21.

In the absence of Mr. Powell's testimony, the State argued that Marcuse Reed "lured" the victims to his

house, and was therefore the aggressor of this conflict. The State supported its theory with the testimony of two

witnesses - Bridgette Garland and Daniel Jackson - who allegedly witnessed Mr. Reed make a different

telephone call earlier that same evening. These witnesses testified variously that Marcus Reed called someone on

the day of the homicide and told them to come by the house to pick up "a package." R. 4298, 4603. Ms. Garland

testified that Marcus Reed was talking to someone named "Radio," but could not identify the caller. R. 4598-99.

Daniel Jackson did not know who Mr. Reed was speaking to either. R. 4298. In fact, Mr. Jackson explained that

Marcus Reed told the same caller "that the house got broke into and he asked them did he see anybody over here

earlier that day," a question that he was unlikely to ask Jarquis Adams. R. 4357.3

Based on this testimony alone, the State then argued in closing:

3 State witness Glen Merrell testified that he had a very similar conversation with Marcus over the telephone that

evening. See R. 4493 (Glen Menell testifying that he spoke to Marcus Reed over the phone about picking up marijuana and that Mr. Reed asked him if he had "seen anybody at his house that day" because "somebody broke in.").

9

-------

[H]e lured those boys there.

You heard the testimony of Bridget Garland, 'Radio, you need to get over here. I've got your package before I leave out.' Radio was the nickname for Jarquis Adams, because as you see Mr. Reed had spent the afternoon on the telephone trying to find out who the hell did this. And he found out, so he called Jarquis and lured him back under the guise of marijuana ...

R. 4888. The State continued in rebuttal:

He lured them there and he killed them. And Judge Dorroh will tell you in her instructions that an aggressor cannot even claim the right of self-defense.

If you bring on a difficulty, you can't claim self-defense; you started it. And he started it when he

lured them over there.

R. 4924.

Marcus Reed was prevented from rebutting this theory of the case, or presenting reliable and persuasive

evidence that he was justified in using deadly force against Adams brothers. The exclusion of Mr. Powell's

testimony requires reversal of Mr. Reed's conviction and death sentence.

II. THE COURT PREVENTED MR. REED FROM PRESENTING EVIDENCE BEARING ON THE RELIABILITY OF HIS ALLEGED CONFESSION TO A JAIL-HOUSE INFORMANT.

During the defense case, the trial comt again demonstrated a fundamental misunderstanding of the

hearsay rule and its application. The court excluded testimony of a defense witness that was offered solely to

impeach a State witness's testimony that Marcus Reed made a jail-house confession to the murder. The comt's

erroneous evidentiary ruling violated Mr. Reed's constitutional right to contest the State's case and present a

defense, requiring reversal of his conviction and death sentence. U.S. Canst. Amend. VI, VIII, XIV; La. Const.

Att. I, §§ 2, 13, 16; Washington v. Texas, 388 U.S. 14 (1967), Crane v. Kentucky, 476 U.S. 683 (1986).

A. The Excluded Testimony was not Hearsay

Two inmates at the Caddo Correctional Center participated in a conversation with Marcus Reed on a trip

to the district courthouse in 2011. The first, Terry Denny Matthews, testified for the State that Marcus Reed made

several inculpatory statements about his capital case during the trip. R. 4657-70. Mr. Matthews was a professional

confidential informant for the Caddo Parish Sheriffs Office. In March of 2011 he was fired :fi·om this position

because he was "high risk, a drug user, and spreading his information on the street." R. 3266. He was then

arrested and incarcerated in the Caddo Correctional Center, and soon approached law enforcement claiming to

have information about Marcus Reed. Mr. Matthews testified that although he met Marcus Reed for the first time

on that trip to the comthouse, Marcus Reed allegedly told him that he "ambushed" the Adams brothers and

"double tapped" them. R. 4655-70. He testified that Mr. Reed told him that the SKS he used "had so many other

fingerprints on it, he should be, you know, good there as far as his fingerprints being on the weapon." R. 4658.

The only time that Mr. Reed purp01tedly discussed his capital case with Mr. Matthews was on this trip to and

10

( .·

from the courthouse. R. 4656-57. Mr. Matthews reported that there were eight other people on the van ride with

them. R. 4664.

To impeach Mr. Matthews' testimony, the defense called inmate Robert Washington, who was present on

that same trip from the correctional center to the courthouse and participated in the conversation with Mr.

Matthews and Mr. Reed. R. 4846. Mr. Washington first testified that when he and Mr. Matthews and Mr. Reed

were in a holding cell together, no one discussed their case. R. 4846. When counsel asked Mr. Washington

specifically what he and Mr. Matthews and Mr. Reed discussed when they were walking to the van, he responded

"[n]othing at all." R. 4847. The State immediately objected to this line of questioning. Id. Arguments were

conducted at the bench, and were not transcribed for the record on appeal. I d.

After the bench conference, the court instructed Mr. Washington that he could not say what anyone else

said to him. "That would be hearsay and it's not admissible," the comi ruled. Id.

Had the comi permitted, Mr. Washington would have testified in detail about the conversation that he,

Mr. Reed and Mr. Matthews had - testimony that directly contradicted Terry Matthews account. As Mr.

Washington explained post-trial:

I was brought to comi with Marcus Reed and Terry Matthews on the day that Mr. Reed allegedly spoke to Mr. Matthews. It was only the three of us in the holding tank at Caddo Correctional Center. The three of us were talking about motorcycles. We also talked about the things we would want to do it we ever got out of prison. Marcus Reed said that he wanted to start a business where he could hire felons who no one else would hire. I also talked about how I would want to stati a business.

Marcus Reed, Terry Matthews and I then got onto the van to the comihouse. There were other inmates on the van but I sat directly in front of Mr. Reed and Mr. Matthews. I could hear everything they said. They continued to talk about motorcycles and the businesses they would want to stati. Marcus Reed never mentioned his case, the crime he was accused of, or any of the witnesses who may testify against him.

R. 2292-95.4

Like Clarence Powell's testimony, Mr. Washington's testimony was not hearsay. "Hearsay is a statement

made out of comi offered as evidence in court to prove the truth of the matter asserted by the statement."

Everidge, 702 So.2d at 685 (citations omitted). Testimony which is introduced for impeachment purposes only

4 Mr. Washington was also prevented from testifying that inmates at the Caddo Correctional Center had access to newspapers and could learn details about each other's cases that way. R.2296-97.The State objected to this testimony and the court found that it was "not relevant at all." R. 4853.

The State argued in closing that inmate Terry Matthews could only have learned that the Adams brothers were "ambushed" fi·om Marcus Reed and not the media, describing it as "an intimate detail only the killer would know ... " R. 4920. Mr. Washington's omitted testimony would have undermined the State's misuppmted argument. Terry Matthews had full access to news coverage of Mr. Reed's case- media that frequently used words like "ambush" in its reports. See, e.g. R. 2301 (Shrevepmt Times report that "Jerimiah Adams, 20, and his siblings Jarquis, 18, and Jean, 13, were ambushed"); 2345 (KSLA report that "Reed ambushed them with gunfire"); 2349 (KTBS report that "Three brothers-- ages 13, 18 and 20 - - were ambushed and killed Monday night in a dispute believed to be over a video game"); R. 2352 (KTBS repmt that "The brothers were ambushed").

11

and not substantive evidence is not hearsay. State v. Owunta, 99-1569 (La. 5/26/00); 761 So.2d 528, 530, State v.

Bairnsfather, 591 So.2d 686, 689 (La. 1991). The Code of Evidence provides for the introduction of extrinsic

evidence to impeach the credibility of a witness, "including prior inconsistent statements and evidence

contradicting the witness's testimony." La. C.E. ati. 607(D)(2). This impeachment evidence may only be

excluded if "the court determines that the probative value of the evidence on the issue of credibility is

substantially outweighed by the risks of undue consumption oftime, confusion of the issues, or unfair prejudice."

!d.

The testimony the defense sought to introduce fit within the confines of La. C.E. ati. 607. Mr.

Washington's testimony was not introduced for the truth of the matter asserted - i.e. that Marcus Reed liked

motorcycles and wanted to stmi a business when he got out of prison. Its purpose was to impeach the testimony of

Terry Denny Matthews through contradiction. La. C.E. art. 607(D)(2). The court's ruling was erroneous.

B. The Court's Ruling Violated Mr. Reed's Right to Present a Defense

"Whether rooted directly in the Due Process Clause of the Fomieenth Amendment, or in the Compulsory

Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 'a

' meaningful opportunity to present a complete defense."' Crane, 476 U.S. at 690 (citations omitted). While a

defendant's right is not unrestricted and a trial court may limit testimony that is irrelevant, unreliable, or

cumulative, comts have consistently held that the right to present a defense "would be an empty one if the State

were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such

evidence is central to the defendant's claim of innocence." Crane at 689-90, State v. Williams, 07-0878 (La.

1/25/08), 831 So.2d 835, 843, State v. Blank, 04-0204 (La. 4/11/07), 955 So.2d 90, 133.

As this Comi has held, "the jury is the arbiter of what weight or effect shall be given to a confession, and

therefore, the jury must have before it all the circumstances under which the confession was made." State v.

Hammier, 312 So.2d 306, 310 (La. 1975). Louisiana law authorizes a defendant to introduce evidence at trial

concerning the circumstances surrounding his alleged confession in order to aid the jury in its evaluation. La.

C.Cr.P. att. 703 (G). Article 703,

[G]ives the defendant the right to place before jurors his version of the interrogation for them to consider in assessing the weight and reliability of his statement. This statutory rule has its underpinnings in the Due Process Clause and it necessarily operates independently of any credibility determinations the trial comi may have made in ruling on the voluntariness of a statement as a matter of law.

Williams, 831 So.2d at 843 (finding that the comi erred in excluding the trial testimony of the defendant's mother

that her son requested counsel before his interrogation); Van Winkle, 658 So.2d at 203.

Here the State secured a conviction against Marcus Reed by introducing a confession that he never had

the oppmiunity to contest. Robert Washington's testimony was the only evidence addressing the credibility of Mr.

12

Matthews' claims. Absent this testimony, Mr. Reed was unable to answer "the one question every rational juror

needs answered: If the defendant is innocent, why did he previously admit his guilt?" Crane v. Kentucky, supra, at

689-690.

In closing arguments the State exploited the trial court's erroneous ruling, mocking the defense for calling

a witness who had no value at all:

So this bastion of virtue -- and for the life of me I can't figure out why - waltzes into this courtroom to tell you what? ... I rode on a van with a man named Matthews. And we rode down here to court and then we turned around and rode back. What? What is that?

It's nonsense. Perhaps Mr. Washington came with the idea that he would say something else but elected not to. We don't know. We can only judge what he said, which was nothing.

R. 4893 (emphasis added).

The jury never heard the "something else" that Mr. Washington intended to say. Reversal is required.

III. THE COURT FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF JUSTIFIABLE HOMICIDE APPLICABLE TO MR. REED'S CASE, AND ERRONEOUSLY INSTRUCTED JURORS THAT THEY COULD CONSIDER THE POSSIDILITY OF RETREAT.

Mr. Reed's entire defense presentation at trial was founded on a theory of justifiable homicide on which

the jury was never instructed. As defense counsel argued to the jury, Jarquis Adams committed a burglary at

Marcus Reed's house and then came back to commit another one. R. 4904-05. Under these circumstances, Marcus

Reed had a right to use lethal force and prevent another forcible felony or burglary from occurring at his home,

and had no duty to retreat from the danger. La. R.S. § 14:20 (A)(2), (3), and (D).

However, the trial comt failed to instruct the jury on the elements of justifiable homicide under La. R.S.

§ 14:20(A)(2) and (3), instructing solely on La. R.S. § 14:20(A)(l ). R. 4953. The comt further instructed the jurors,

contrary to 14:20(D), that they could consider the possibility of "retreat" as a factor in their deliberations. R.

4954. Such failures lowered the State's burden of proof and deprived Mr. Reed of the full legal protections of

Louisiana's justifiable homicide statute.

Defense counsel did not object to the erroneous jury instructions at trial. Indeed, trial counsel proposed

the very instructions on justifiable homicide that the comt submitted to the j my. R. 2002. However, this error -

attributable to both the trial comt and Mr. Reed's attorneys- is properly before the Comt on appeal.

A. The Court Failed to Instruct the Jury on the Elements of Justifiable Homicide

The culpability phase instructions precluded a finding of justifiable homicide unless the jmy found that

Mr. Reed killed in self-defense, that he reasonably believed he was in danger of losing life or limb, and that the

killing was necessary to save himself from that danger. The jury was instructed as follows:

If you find that the defendant has raised the defense that his conduct was justified, the State must prove that Mr. Reed's conduct was not justified.

13

A homicide is justifiable if 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.

The danger need not have been real as long as the defendant reasonably believed that he was in actual danger.

R. 4953 (emphasis added). This instruction reflected the justifiable homicide provision created by La. R.S. §14:20

(A)(l).

However, the facts presented at trial provided for a theory of justifiable homicide under La. R.S. § 14:20

(A)(2) and (3), provisions which allow a citizen to use lethal force, regardless of whether the killing is in self-

defense. Section (A)(3) allows a citizen to defend a dwelling against a person whom one reasonably believes is

committing or about to commit a burglary of that dwelling. It provides that a homicide is justifiable:

When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined as R.S. 32:1(40) while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.

La. R.S. § 14:20(A)(3). The statute encapsulates the long held principle that a citizen may stand his ground and

protect his home when threatened. As this Court has explained, "the legislature's enactment of the 'shoot the

burglar' provisions of La. R.S. §14:20(3) or (4) ... eliminated any requirement that the shooter believe himselfto

be 'in imminent danger of losing his life or receiving great bodily harm."' State in re D.P.B., 02-1742 (La.

5/20/03), 846 So.2d 753, 755. Although there was significant evidence that Mr. Reed believed that the victims

were planning on committing a second burglary at his home, the jurors were never instructed on this principle.

La. R.S. § 14:20(A)(2), although placing a slightly lower burden on the State, provides that a homicide is

justifiable:

When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonable believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

Id. In the context of the facts of this case, where Mr. Reed had a reasonable belief that a car-load of individuals

were returning to his dwelling where they previously committed a forcible felony to commit another violent or

forcible felony, this provision offered the protection from criminal liability to which Mr. Reed was entitled. 5

The Lamonica-Joseph instruction contains a separate and distinct justifiable homicide instruction for the prevention

of a violent or forcible felony. See Lamonica & Joseph, Louisiana Civil Law Treatise Series§ 6.19 ("Justifiable Homicide­Prevention ofViolent or Forcible Felony.") (2d ed. 2010).

14

The court's failure to instruct the jury on these two applicable definitions of justifiable homicide

dramatically lowered the State's burden of proof at trial. "It is well settled that a defendant in a homicide

prosecution who asserts that he acted in self-defense does not have the burden of proof on that issue. The State

bears the burden of proving beyond a reasonable doubt that the homicide was feloniously committed and was not

perpetrated in self-defense." State v. Patterson, 295 So.2d 792 (La. 1974), State v. Lynch, 436 So.2d 567 (La.

1983). While it is the State's burden to disprove the elements of justifiable homicide, "[t]he reasonableness of the

accused's perception of the impending harm, as well as the reasonableness of his response, are matters exclusively

for the jury." State v. Deshotel, 96-0778 (La. 5/31/96) 674 So.2d 260. Absent proper instructions, the jury cannot

make this determination.

In closing, the State argued to jurors that Mr. Reed was not permitted to "self-help" m these

circumstances:

Reed finds out that afternoon that his house is burglarized. Why didn't he just pick up the phone and call the police and make a repmt? House got broken into, two amps, XBox --maybe you don't tell them about the other stuff because then you're in trouble but you could tell them about the XBox and the two amps. Make a report anyway.

No, no, no, no. This is called self-help in the business. No, we don't want any police involved; we'll take care of this ourselves. And that was Mr. Reed's modus operandi. No police involved.

R. 4925.6

Such arguments, in combination with the trial court's erroneous instructions, left the jurors with the

undeniable impression that Mr. Reed had no right to defend himself and his prope1ty against a possible burglar.

B. The Court Improperly Instructed the Jurors that they Should Consider Retreat as a Factor in Determining Whether Mr. Reed's Actions were Justified

The trial comt also improperly instructed the jurors that they should consider retreat as a factor in

determining whether Mr. Reed's actions were justified. The jury was instructed as follows:

There are several factors that you should consider in determining whether the defendant had a reasonable belief that the killing was necessary to save himself from that danger. One, the possibility of avoiding the necessity of taking human life by retreat provided, however, that a person who is not engaged in any unlawful activity and is in a place where he or she has a right to be has no duty to retreat before using deadly force to save himself from the danger of losing his life or receiving great bodily harm.

R. 4954 (emphasis added). Such an instruction is strictly prohibited under the 2006 amendments to the justifiable

homicide statute and this Court's recent holding in State v. Wilkins, 13-2539 (La. 1115114), 131 So.3d 839, 840.

6 These arguments no doubt appealed to jurors like Beulah McGraw, who was a 26 year retired veteran of the Shreveport Police Department as was her husband. R. 3846. During voir dire, the State emphasized to Juror McGraw and her panel that a defendant may only claim "self-defense" if he "reasonably believes that he is in eminent danger of losing his life or receiving great bodily harm," R. 3915. The State used as an example an assailant pulling a weapon on Officer McGraw. R. 3916-17.

15

In 2006, as part of a national movement to enshrine the "stand your ground" principle in state criminal

codes, Louisiana's Legislature significantly amended La. R.S. §14:20. The goal of this amendment process was to

reduce the role that a defendant's oppmtunity to retreat could permissibly play in justifiable homicide

deliberations, and it went so far as to explicitly prohibit such a consideration in some specifically delineated

situations.

The Legislature's 2006 amendments to La. R.S. § 14:20 excluded, to various degrees, the opportunity to

retreat as a consideration in deliberations pursuant to these provisions. In La. R.S. 14:20(D), the Legislature

explicitly prohibited the consideration of the possibility of retreat in La. R.S. § 14:20(A)(2) determinations: La.

R.S. §14:20(D) mandates that "no finder of fact shall be permitted to consider the possibility of retreat as a factor

in determining whether or not the person who used deadly force had a reasonable belief that deadly force was

reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or

to prevent the unlawful entry."1 La. R.S. 14:20(D). By contrast, the prior provision in La. R.S. § 14:20(C), which

applied to all of the provisions previously, dictated only that a defendant "shall have no duty to retreat before

using deadly force."8 Notably, where the language of La. R.S. § 14:20(D) explicitly prohibits the consideration of

an oppmtunity to retreat in the situations it addresses, La. R.S. § 14:20(C) appears only to mitigate the mandatmy

nature of such a consideration, thereby permitting fact-finders to consider the oppmiunity to retreat.

As this Court recently held, the effect of the 2006 amendment "was thus to supplant a jurisprudential rule

so deeply entrenched in Louisiana law that some decisions continue to adhere to it to this day." Wilkins, 131

So .3d at 840. In accordance with subsection D, a citizen may act without fear that, "if it came to it, a jury may

nevertheless second guess the decision not to flee from the encounter in assessing whether the use of deadly force

was justified." !d. These amendments made "a substantive change in the law because they directly impact not

only how trials are conducted, and how juries may be instructed, but also how individuals may conduct

themselves when confronted with situations that they perceive, reasonably or not, to present an imminent threat to

their own lives." !d.; see also, State v. Wells, 11-0744 (La. App. 4 Cir. 7/11/14); 2014 La. App. LEXIS 1764, 31-

32 ("Since the 2006 amendments, in cases of self-defense, the Legislature - for its own policy reasons -

explicitly and categorically prohibits the jury from considering the possibility of the killer's retreat in order to

This provision counteracted a specific judicially created rule that allowed jurors and other fact-finders to consider, in their deliberations concerning the reasonableness of a defendant's beliefthat deadly force was necessary, whether a defendant had the opportunity to retreat from a confrontation.

La. R.S. 14:20(C) provides that "[a] person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force."

16

determine whether the killing was 'necessary' to save the killer's own life. The effect of the 2006 amendments

was to supplant a jurisprudential rule deeply entrenched in Louisiana law.").

Indeed, the 2006 comments to the most recent edition of the Joseph and Lamonica treatise clarify that an

instruction on the possibility of retreat is patently improper when the court instructs jurors in accordance with La.

R.S, 14:20(C) and (D). Cheney C. Joseph & P. Raymond Lamonica, 17 La. Civ. L. Treatise, Criminal Jmy

Instructions § 6.17 (2d ed.) ("If the court instructs the jmy in accordance with II. or III., the reference to the

'possibility of retreat' as a factor in determining necessity should not be given.").

Subsection D "effectuates the right conferred by Subsection C on an individual to 'stand his or her

ground' without weighing the possibility of escape or retreat before responding with deadly force, an unqualified

right that did not exist previously in Louisiana." Wilkins at 840. Given the facts adduced at trial, the viability of

Mr. Reed's defense rested on whether the opportunity to retreat was a permissible consideration during

deliberations. The court's improper instruction deprived Mr. Reed of the protections of this substantive change in

the law.

C. The Erroneous Instructions Also Prejudiced Penalty Phase Deliberations

The delivery of these inadequate jury instructions very likely impacted the jury's understanding of

instructions they received before they retired to deliberate at the penalty phase of Mr. Reed's trial, as well. Having

received at the guilt phase of Mr. Reed's trial an improperly limited understanding of justification, the jmy was

then, at the penalty phase, instructed that they must consider statutoty mitigating circumstances, among which is

justification. La. C.Cr.P. ati. 905.5(d).9

The jury instructions delivered at the penalty phase of Mr. Reed's trial did not offer jurors any guidance

in determining the parameters of reasonable belief or moral justification, the two central concepts of La. C.Cr.P.

905.5(d). The erroneous instructions delivered at the guilt phase of Mr. Reed's trial did. Thus, when jurors were

instructed on La. C.Cr.P. ati 905 .5( d), they likely possessed an erroneous understanding of both of those concepts.

Significantly, jurors likely had a mistaken understanding of the scope of justification. While La .R.S.

§ 14:20 A(l) requires the killing in question to be specifically in self-defense to be justified, La. R.S. § 14:20 A(2)

and (3) expand that definition, justifying homicides that take place in order to prevent a forcible felony. Because

jurors received no additional instructions to guide their deliberations on this subject at the penalty phase, they

likely applied this erroneous understanding at the penalty phase, further exacerbating its prejudicial effect.

9 La. C.C.R.P. att. 905.5(d) reads as follows: "the offense was committed under circumstances which the offender reasonably believed to provide a moral justification or extenuation for his conduct."

17

D. This Issue is Properly Before this Court

Defense counsel did not raise this issue before trial. Indeed, as counsel has conceded, he regrettably

proposed jury instruction that did not include the statutory provisions of La. R.S. 14:20 (A)(2) and (3) and (D). R.

2168. This decision was not intentional, and was not recognized until after trial. R. 2167-69. The issue is

nevertheless properly before the Comt on direct appeal.

In Mr. Reed's Motion for New Trial, counsel urged the district comt to consider the merits of the jury

instruction claim at this early stage. The district court had an obligation to address the issue under La. C.Cr.P. mt.

851(4) pursuant to La. C.Cr.P. art. 855, and the authority to address the issue pursuant to La. C.Cr.P. mt. 851 (5).

R. 2127. Arguments were presented to the district court along with affidavits from Mr. Goorley and former

District Attorney Paul Carmouche. R. 2167-69, 2174-76. The district comt denied relief on the merits, finding

that, "I do not believe the Stand Your Ground Instructions were applicable to the facts ofthis case." R. 5194-95.

The trial comt's finding that instructions under 14:20 (A)(2) and (3) were not applicable in this case is an error of

law, subject to review by this court. La. C.Cr.P. att. 858.

Regardless, this Comt has on occasion addressed a trial comt's failure to instruct the jury on the elements

of an offense when the error is not preserved. In State v. Williamson this Court reversed the defendant's

conviction, finding that the district court erroneously instructed the jury on a definition of second degree murder

that had been amended before the offense. 389 So.2d 1328 (La. 1980). "The judge, along with the prosecutor and

counsel for the defense, apparently entertained the misconception that the law as it appeared prior to the 1979

amendment was still in effect at the time of the shooting," and no party objected to the comt's instruction. Id. This

Comt nonetheless held that "it is within the province of this reviewing comt to entettain complaint of

Constitutional violations on appellate review notwithstanding that consideration of such complaint more often

than not is deferred until filing of a writ of habeas corpus." Id.

Although Williamson by no means created a plain error rule of general application, this Court

subsequently found that "[t]he unique facts of Williamson required consideration of an error which cast

substantial doubt on the reliability of the fact-finding process." State v. Arvie, 505 So.2d 44 (La. 1987); see also

State v. Green, 493 So.2d 588 (La. 1986) (absent contemporaneous objection, this Comt considered district

comt's failure to instruct jurors on defendant's prior convictions); State v. Holmes, 620 So.2d 436, 438 (La. App.

3 Cir. 1993) (holding that the contemporaneous objection rule "has an exception where the error is the very

definition of the crime of which the defendant was in fact convicted, and where the record bears full and sufficient

proof of the error which no posterior hearing could augment.").

This Court is again presented with such unique facts in Mr. Reed's case. Like Williamson, the jmy here

was erroneously instructed on the elements of justifiable homicide. Like Williamson, the comt did not take into

18

account the 2006 amendments to the justifiable homicide statute. And like Williamson, the failure to properly

instruct the jury casts substantial doubt on the reliability of the fact-finding process.

E. To the Extent the Court Faults Defense Counsel for Failing to Request the Instruction Mr·. Reed was Prejudiced by the Deficient Performance of His Counsel

If this Court were to find that defense counsel's failure to request the appropriate instruction deprived Mr.

Reed of the right to stand his ground, Mr. Reed was deprived the effective assistance of counsel under the Sixth

Amendment to the United States Constitution and Article I, section 13 of the Louisiana Constitution. Defense

counsel here failed to request jmy instructions on the very theory that they presented at trial. In a case of

justifiable homicide, such a failure was devastating because it is the State's burden to prove beyond a reasonable

doubt that the defendant's actions were not justified. The State was not held to its burden and the jurors were

never told that in the State of Louisiana, Mr. Reed had the right to defend himself and his property from an

advancing intruder. The jurors were never told that they were not "permitted to consider the possibility of retreat

as a factor." La. R.S. § 14:20(D). And the jurors were told that Mr. Reed had to act in self-defense to claim that the

homicide was justified. Counsel's failure to propose the proper instructions or object to the trial comt's etToneous

instructions deprived Mr. Reed of his right to counsel.

"Essential fairness is lacking if an accused cannot put his case effectively in comi." Adams v. United

States ex rei. McCann, 317 U.S. 269, 279 (1942). As the U.S. Supreme Court found in Strickland v. Washington,

The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

466 U.S. 668, 685 (1984). The test for ineffectiveness is two pronged: (1) a "trial attorney's performance [must

fall] below an objective standard of reasonableness" and (2) there must be "a reasonable probability that the result

of the trial would have been different absent the deficient act or omission." Hinton v. Alabama, 134 S. Ct. 1081, 1

(2014). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.

Strickland, 466 U.S. at 690, 694.

"Generally, claims of counsel ineffectiveness are more properly reviewed in post-conviction applications

after an evidentiary hearing." State v. Strickland, 94-0025 (La. 11/1/96); 683 So.2d 218, 231. However, where the

violation is clear from the record on appeal, "the claim may be considered by the appellate court in the interests of

judicial economy." State v. Hobley, 98-2460 (La. 12/15/99); 752 So.2d 771, 792. The record here is sufficient for

this Comt to consider the claim of counsel's ineffectiveness.

As the record reflects, defense counsel presented a theory of justifiable homicide at trial that tracked La

R.S. § 14:20 (A)(2) and (3). As he argued in closing,

19

Why did [the Adams brothers] go over? They went over because Jarquis indicated to the person that he committed the burglary with that he wanted to go back.

Some of you have your own personal weapons for protection. Would you allow a person to burglarize your house, to come back to your house, with a group of people without taking some precaution? Out numbered, out manned, and you know they're up to no good.

What happened is tragic, yes. But [it] was not Marcus that brought it on to himself. It was brought on to him by Jarquis Adams.

R. 4905-06 (emphasis added).

Defense counsel has conceded that his failure to request the proper jury instructions was not a matter of

strategy, but an oversight. As counsel explained in support of the Motion for New Trial: "Had I fully considered

the 2006 Statutory Stand Your Ground Amendment and Justifiable Homicide Provisions, I would have submitted

requested instructions on La. R.S. 14:20(A)(2) and La. R.S. 14:20 (A)(3) and La. R.S. 14:20(D) from Lamonica

and Joseph." R. 2168. Indeed, such an instruction would have mirrored the defense he presented, that "Jarquis

Adams, had burglarized Mr. Reed's home earlier the day of the shooting and that Adams and a car-load of

individuals returned that evening after dark to burglarize the home or rob Mr. Reed." R. 2167. In not requesting

these instructions, defense counsel dramatically lowered the State's burden.

At the hearing on the Motion for New Trial, counsel adduced evidence from former District Attorney Paul

Carmouche, who explained his understanding, "based upon my more than forty years of practice in the criminal

law that the provisions of La. R.S. 14:20 (A)(2) and (3) provide a defendant with a lesser burden of production

and create a higher burden of proof on the prosecution." R. 217 6.

As one comt has aptly stated: "We have a hard time seeing what kind of strategy, save an ineffective one,

would lead a lawyer to deliberately omit his client's only defense," United States v. Span, 75 F.3d 1383, 1390 (9th

Cir. 1996). Where counsel presents an affirmative defense at trial "but then fails ensure that the jury is properly

instructed on that theory, that failure cannot be called trial strategy." People v. Gonzalez, 385 Ill. App. 3d 15, 895

N.E.2d 982, 988 (2008). Given the facts of Mr. Reed's case, and counsel's own admission, the failure to request

proper jury instructions on justifiable homicide was not strategic.

It is well settled that ''juries are presumed to follow their instructions." Zafiro v. United States, 506 U.S.

534, 540 (1993). Comts have consistently found that a defendant was prejudiced within the meaning of the Sixth

Amendment when counsel fails to object to improper jury charges. Such failures are particularly grave where the

jury charges erroneously identified the elements of the offense or omitted the elements of an affirmative defense.

See, e.g., Span, 75 F.3d at 1389 (reversing where counsel failed to request instructions on an excessive force

defense); Everett v. Beard, 290 F.3d 500, 515-16 (3d Cir. 2002) (reversing where counsel failed to object to an

20

improper jury charge on accomplice liability); Luchenburg v. Smith, 79 F.3d 388, 392 (4th Cir. 1996) (reversing

where counsel failed to request an expanded instruction that common law assault is not a "crime of violence");

Gray v. Lynn, 6 F.3d 265, 271 (5th Cir. 1993) (reversing where counsel failed to object to improper instructions

on attempted second degree murder); Freeman v. Class, 95 F.3d 639, 642 (8th Cir. 1996) (reversing were counsel

failed to request a cautionary instruction regarding accomplice testimony); Lanliford v. Arave, 468 F.3d 578, 589

(9th Cir. 2006) (reversing where defense counsel requested erroneous jury instructions on corroboration); State v.

Rubin, 559 So.2d 550, 551 (La. App. 2 Cir. 1990) (reversing where counsel failed to object to an erroneous

instruction on attempted murder); State v. Carter, 559 So.2d 539 (La. App. 2 Cir. 1990) (reversing where counsel

failed to object to an erroneous jury instruction); Gonzalez, 385 Ill. App. 3d 15 (2008) (reversing where defense

counsel failed to request an instruction on his affirmative defense); People v. Serrano, 286 Ill. App. 3d 485, 676

N.E.2d 1011 ( 1997) (reversing where counsel failed to request an instruction on the defense of compulsion).

Under the facts presented here, an instruction on justifiable homicide under § 14:20(A)(2) and (3) and

14:20(D) was warranted. Counsel's failures all but barred a not-guilty verdict unless the jury found that the killing

was necessary to save Mr. Reed's life. La. R.S. §14:20(A)(1). Particularly in a capital case, where the jury's

instruction on ')ustification" impacted both the culpability and penalty phase determinations, counsel's failures

were prejudicial.

IV. MR. REED'S SIXTH AMENDMENT RIGHT TO CONFLICT FREE COUNSEL WAS VIOLATED WHEN THE COURT DENIED DEFENSE COUNSEL'S MOTION TO WITHDRAW.

In 2009, Attorney J. Florence represented the victim in this case, Jarquis Adams, on a criminal charge. R.

2938.10 During that representation Mr. Florence met with Mr. Adams and his family members. R. 2939. Based on

these confidential communications, and Mr. Florence's later confidential communications with Marcus Reed, a

conflict of interest emerged. R. 2938.

Before Mr. Reed's capital trial, defense counsel notified the couti that there was a conflict of interest and

sought to withdraw. R. 2937. In the face of defense counsel's assetiions that Mr. Florence had divided loyalties,

the trial court found that no conflict existed. R. 2944-45. The court did not seek a waiver from Mr. Reed and

denied defense counsel's timely request to withdraw from the case over their vehement objections.

Counsel's warnings came to fruition at trial. As Attorney Florence explained in a post-trial affidavit, his

duty of loyalty to Mr. Adams completely hamstrung his trial presentation. R. 2359-60. The defense did not

investigate Mr. Adams's background. They presented no testimony about Mr. Adams's general character or his

criminal history, although such evidence was both admissible and highly probative to the defense theory of

10 SeeR. 1010 (Jarquis Adams's Rap Sheet).

21

justifiable homicide. !d. They failed to cross examine State witnesses, including Mr. Adams's family members

who presented good character evidence in both the guilt and penalty phases of trial. R. 3260,4837, 4840, 5045.

The court's ruling violated Mr. Reed's right to conflict-free counsel, requiring reversal of his conviction

and death sentence. The Sixth Amendment right to counsel includes the "correlative right to representation that is

free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271 (1981). Although the issue of divided

loyalties most often arises in the context of joint representation, it can arise in a variety of scenarios, including

when an attorney is required to cross examine a former client, or when counsel himself is being prosecuted by the

same agency as his client. See State v. Carter, 10-0614 (La. 1/24/12), 84 So.3d 499, 508-09; State v. Cisco, 01-

2732 (La. 12/3/03), 861 So.2d 118 at 129-30; State v. Carmouche, 508 So.2d. 792, 804 (La. 1987).

When a defendant raises the probable risk of a conflict of interest before trial, the trial court has a duty to

"appoint separate counsel or to take adequate steps to ascet1ain whether the risk was too remote to warrant

separate counsel." Holloway v. Arkansas, 435 U.S. 475, 484 (1978); see also Cisco, 861 So.2d at 130; Carter, 84

So.3d at 509; State v. Garcia, 09-1578 (La. 11/16/12), 108 So.3d 1, 31. Timely raising the conflict of interest

allows the court "the oppot1unity to remedy the conflict by appointing separate counsel." State v. Carmouche, 508

So.2d at 805. Failure to do so requires reversal of the defendant's conviction and sentence.

A. Defense Counsel Brought the Conflict of Interest to the Court's Attention Pre-Trial and Sought to Withdraw

Unlike counsel in the oft-cited case of Mickens v. Taylor, 535 U.S. 162 (2002), defense counsel here

raised the conflict of interest before trial, argued that their performance would be impacted, and attempted to

withdraw. At a pretrial hearing in June 2012, Attorney Richard Gom·ley notified the court that Attorney J.

Florence had previously represented Jarquis Adams. "It's come to our attention that there appears to be a conflict

on this case and that we need to be relieved and new counsel appointed based on the fact that there is a conflict of

interest," Mr. Gom·ley explained. R. 2937-38.

The State objected to the appointment of new counsel on the grounds that it did not perceive any conflict

of interest. R. 2938-39. The State further argued that even ifMr. Florence were conflicted, someone else from Mr.

Goorley's office could replace him- a suggestion that Mr. Gom·ley rejected because he didn't "have any sort of

Chinese wall" in effect in his law office. R. 2939. See La. Rules ofProfl Conduct R. 1.10, State v. Connolly, 06-

0540 (La. 6/2/06); 930 So.2d 951.

Mr. Goorley went on to explain that Mr. Florence was "not allowed ethically to express exactly what

conflict there may be because that's a violation of attorney-client privilege." R. 2941-42. However, counsel

assured that court that "there is a conflict." !d. Without disclosing details of his defense strategy, Mr. Goorley also

22

-~~--------~-~-----~~-- -,

told the court that "because of the nature of the charge this is something that perhaps the Court should look at and

take seriously to make sure that whatever happens only happens once." R. 2942.

The court denied defense counsel's motion to withdraw, finding that there was no conflict of interest. In

so ruling, the court focused on three factors: (1) defense relied only on their assertions of a conflict but presented

no "evidence" to the court, (2) Jarquis Adams was deceased, and (3) Mr. Florence did not raise the conflict until a

year and a half into his representation: R. 2944-45. The comt held that "this does not pose a conflict for Mr.

Goorley or Mr. Florence." R. 2945. The court went on to note that because the conflict was raised at this late date,

"what it's really sought to do is get a continuance on the trial date." R. 2946.

Even after the court's ruling, defense counsel continued to asse1t that there was a true conflict of interest,

and that Mr. Reed's rights were not being protected. R. 2949:

Mr. Florence consulted with Mr. Adams and Mr. Adams's family back when he represented Mr. Adams, and he obtained information from them that is necessary to represent someone.

The other pmt of it is that Mr. Florence has also been privy to statements from Mr. Reed in representing him, and therefore because of that we feel that's where the conflict lies.

R. 2952-54; see also R. 2955. The trial comt maintained its original ruling.

The conflict of interest was raised again in Mr. Reed's Motion for New Trial. There, through pleadings

and an affidavit from Attomey Florence, counsel asserted again that there was a conflict and that it adversely

affected his trial performance. R. 2359. Notably, Mr. Florence averred that his duties to his former client

prevented him from adequately investigating Jarquis Adams's criminal background or cross examining Mr.

Adams's family members. Id.

After reviewing the materials and hearing arguments, the trial court ruled: "I do not find that there was

any conflict of interest because of Mr. Florence's prior representation of Jarquis Adams. Jarquis Adams was dead.

There could be no impeachment of evidence and so there is just no conflict at all." R. 5200.

In light of counsels' objections to their continued representation, and the unique facts of Mr. Reed's case,

the district comt's ruling both pre-trial and on the Motion for New Trial was in error.

1. Jarquis Adams's Death did not Resolve the Conflict oflnterest

In opposing defense counsel's request to withdraw, the State argued that Jarquis Adams's death alleviated

the need to remove Mr. Florence from the case:

[T]he victim who Mr. Florence represented in 2009, of course, is deceased. I can't for the life of me see how there would be a conflict of interest. Clearly the victim could not be impeached so any information that Mr. Florence obtained while he represented the victim could not be used in this case, and that would be to me the keystone factor is is there any confidential communication that Mr. Florence received that could be used to the detriment of Mr. Reed.

23

~~-----' -·

R. 2938-39 (emphasis added). The district court relied on Mr. Adams's death as a basis to find that there was no

conflict of interest, R. 2944, and the trial comt echoed this finding in denying the Motion for New Trial. R. 5200.

Mr. Adams's death did not resolve the conflict.

Prior representation of a victim - even a homicide victim - will not always create a conflict of interest.

But the facts of Marcus Reed's case created a significant risk that counsel's loyalties would be divided. First, as

this is a capital case, the character and propensities of the defendant and the victim were the focus of the penalty

phase. La. C.Cr.P. att. 905.2. Evidence of the victim's criminal convictions or negative reputation in the

community is both admissible and expected in a penalty phase of a capital case when the prosecution introduces

testimony about the victim's w01th and the victim has a criminal history. See State v. Bernard, 608 So.2d 966,

971 (La. 1992).

Second, because Mr. Reed pursued a theory of justifiable homicide, the victim's character and criminal

history was equally relevant in the culpability phase. "Evidence of the victim's dangerous character or threats

against the accused supports a plea of self-defense because it is relevant to show that the victim was the aggressor

and to show that defendant's apprehension of danger was reasonable." State v. Edwards, 420 So.2d 663, 669 (La.

1982). Where there is evidence of a "hostile demonstration or an overt act on the part of the victim," the defendant

may introduce evidence of the victim's "dangerous character" or "evidence of the victim's prior threats against

the accused or the accused's state of mind as to the victim's dangerous character," La. C.Cr.P. art. 404 (A)(2)(a)

and (B)(2); see also State v. Rodrigue, 98-1558 (La. 4/13/99); 734 So.2d608, 610-11.

Third, if the State presented good character testimony about Jarquis Adams in the culpability phase - as

they did, R. 4836- defense counsel was free to present evidence of the victim's bad "character traits" to rebut the

State's evidence. La. C.Cr.P. art. 404(A)(2)(a).

While investigation of Jarquis Adams was critical to Marcus Reed's defense, defense counsel had a

conflicting ethical duty to protect Jarquis Adams and his confidences. Attorneys are required to maintain a general

duty of loyalty to their clients. This duty of loyalty prohibits an attorney from representing another individual in a

"substantially related11 matter in which that person's interests are materially adverse to the interests of' their

former client. LA RULES OF PROF'L CONDUCT, R. 1.9(a); MODEL RULES OF PROF'L CONDUCT R.

1.9(a) (1983). An attorney's duty to maintain client confidences fmther prohibits them from revealing any

"information relating to the representation" of the client in a subsequent case or using that information to the

11 The commentary to the Model Rules of Professional Conduct explains that a matter is "substantially related" when there is "a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter." MODEL RULES OF PROF'L CONDUCT R. 1.9 cmt. 3 (1983).

24

client's disadvantage. LA RULES OF PROF'L CONDUCT, R. 1.9(C); LA RULES OF PROF'L CONDUCT, R.

1.6; MODEL RULES OF PROF'L CONDUCT R. 1.9 (1983).

"The attorney client privilege is one of the oldest recognized privileges for confidential communications."

Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998). The privilege seeks to encourage "full and frank

communication between attorneys and their clients" and "recognizes that sound legal advice or advocacy serves

public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client."

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The attorney's duty of loyalty and to maintain client

privileges continues on after the conclusion of the representation, and even after the client's death. Swidler, 524

U.S. at 405; see also In re Williams, 309 N.E.2d 579, 581 (Ill. 1974). As the Comt noted in Swidler,

[T]here are weighty reasons that counsel in favor of posthumous application [of attorney-client privilege] ... While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime.

Swidler at 2086.

Any information obtained by Mr. Florence during his representation of Jarquis Adams remained

privileged after Mr. Adams's death. It could not be used to fmther the defense investigation of Marcus Reed's

case or cross-examine Mr. Adams's family members. Here, the State put on evidence of the victim's character by

calling relatives to testify in the culpability phase and penalty phase of trial. The evidence in Mr. Reed's case-

given defendant's plea of self-defense and justifiable homicide, and the hostile demonstration reflected in victim's

approach to the house late at night, the ensuing argument and the single gunshot - would have fmther allowed an

unconflicted lawyer to bring in evidence of the victim's dangerous character to show Mr. Reed's reasonable

apprehension of the danger, and to undermine the state's claim that he was the aggressor.

2. The District Court Gave No Deference to Defense Counsel's Assertion that He was Conflicted

At several points in the conflict hearing, the trial comt complained that defense counsel presented no

"evidence" that there was a conflict of interest. "There is no evidence presented in this proceeding, and again this

has been an argument proceeding ... There is no evidence to suggest that there is any conflict whatsoever," the

comt found. R. 2945; see also 2951 ("There was no evidence taken. No one asked for an evidentiaty hearing.");

2956. The State echoed this assessment, arguing that "saying we have [a conflict] is no evidence at all." R. 2951.

The comt's finding that defense counsel must present "evidence" of a conflict, other than counsel's

representations as an officer of the comt, was erroneous. In Holloway v. Arkansas the U.S. Supreme Comt

addressed the heightened consideration that trial courts must give to an attorney's representation that he is

conflicted, noting that, "most comts have held that an attorney's request for the appointment of separate counsel,

25

---- ~ -~--~~- ------- ~--

based on his representations as an officer of the court regarding a conflict of interests, should be granted." 435

U.S. at 485. Deference to counsel's judgment on this issue is essential because: "(1) a defense attorney is in the

best position to determine when a conflict exists, (2) he has an ethical obligation to advise the comt of any

problem, and (3) his declarations to the court are 'virtually made under oath."' Garcia, 108 So .3d at 30 (quoting

Holloway v. Arkansas, 435 U.S. 475, 485-86 (1978) (internal quotation marks omitted).

More than three decades before the U.S. Supreme Court decided Holloway, this Court reversed a

defendant's conviction where defense counsel notified the trial court that he had a conflict of interest. State v.

Jones, 174 La. 1074; 142 So. 693 (La. 1932). There, counsel was forced to represent the defendant even after he

"announced to the judge, in open comt, 'that because of his [the attorney's] friendship for the deceased [victim]

he was prejudiced against the accused and not able to properly defend him."' Id. at 694. This Comt reversed,

holding that the defendant's right to assistance of counsel "is not afforded by the judge's appointing, to defend the

accused, an attorney who protests that he is so prejudiced against the pmty accused that he catmot properly defend

him." Id. Notably, this Court found that the attorney's assertions, as an officer of the comt, were sufficient to

require appointment of new counsel:

We have no reason to assume that the attorney's declaration, to that effect, in this instance, was made merely for the purpose of evading a duty, or was not true. Attorneys at law are, in a sense, officers of the court, and are under oath; and, when they address the judge solemnly upon a matter before the comt, their declarations are viitually made under oath.

Id.; see also State v. Brazile, 226 La. 254, 267 (La. 1954) (reversing where co-defendants "requested individual

counsel and the joint counsel appointed by the comt stated that the interests were prejudicial, conflicting and

antagonistic").

Here, defense counsel notified the comt that Mr. Florence represented the victim and provided records

reflecting that. Defense counsel explained that he obtained confidential communications from Jarquis Adams, Mr.

Adams' family, and Marcus Reed, and that these communications created a conflict of interest. These arguments

were more than sufficient to notify the comt that there was a substantial conflict of interest and require

appointment of new counsel.

3. The Comt Erroneously Found that Counsel was Merely Seeking a Continuance

The trial comt erroneously found that defense counsel's motion was merely an attempt to receive a

continuance of trial. R. 2946. The court based this finding primarily on the fact that defense counsel did not raise

the conflict of interest until a year and a half into the representation of Mr. Reed. R. 2944-45. There is nothing in

the record to suggest that counsel's assertions were disingenuous.

At the time that attorney J. Florence represented Jarquis Adams he was acting as a public defender. R.

2938. This position would have required Mr. Florence to represent numerous clients, many of whom he may not

26

have immediately remembered by name. As Attorney Goorley explained, after his office performed a check of

Jarquis Adams's records Mr. Florence remembered his representation and communications with Mr. Adams and

his family. R. 2937-39. This check of the victim's records was performed at a late date in patt because,

[W]e have been asking for the last few years from the State of Louisiana information about the prior convictions or criminal activity of the alleged victims. We have received very little, if any, other than some objections to our request. We then looked this up on our own. If you look at the date of when we received that information, it was this morning.

R. 2941, 2953-54 ("As soon as we found out about it ... we notified the Comt.").12 Attorney Goorley assured the

comt that "counsel could be appointed through the Public Defender Board, and since we already have done a

significant amount of work we would share whatever work we have done with them and then could possibly have

this matter set to go at [the scheduled trial date]." R. 2940.

Defense counsel raised the conflict of interest in a timely manner. Mr. Reed was months away from trial

at the time of this hearing. While Holloway permits trial courts to dismiss "untimely" motions that are filed only

for "dilatory purposes," 435 U.S. at 486, the Comt there found that a motion filed the day of trial was timely. Id.

at 476, 484.13 Here, after the court denied counsel's request to withdraw, it was the State and not the defense that

moved to continue the trial date just four months later. R. 2989. Trial commenced more than a year later.

4. The Court Urged Defense Counsel to Disclose Attorney Client Privileges

Although the trial court had already ruled that there was "no conflict," the State re-raised the matter later in

the hearing and suggested that defense counsel could disclose additional details about the conflict of interest in an

in camera hearing. R. 2952. The court posed this option to defense counsel, who declined because it would

violate their ethical obligations. R. 2952, 2955. The court noted for the record that defense counsel was "given the

oppmtunity to present in evidence form under-oath testimony regarding the issue of conflict," but declined to do

so. R. 2956.

An attorney assetting a conflict of interest need not - and cannot - disclose confidential communications

to the trial comt. "Such compelled disclosure creates significant risks of unfair prejudice, especially when the

disclosure is to a judge who may be called upon later to impose sentences on the attorney's clients." Holloway,

43 5 U.S. at 487, n. 11. Although a trial court has a duty to inquire into the basis of the conflict of interest, comts

12 As part of their pre-trial investigation, the defense requested the rap sheets of all victims and witnesses in the case. SeeR. 916, 932, 2875-76. On May 30, 2012, the defense notified the comt that there was still an outstanding request for the victims' complete criminal and juvenile records. R. 2931. Defense counsel filed another written request for the victims' criminal records on June 7, 2012, R. 983, perhaps not recognizing that the State had already provided Mr. Adams's rap sheet at an earlier hearing. R. 2880. On June 11, 2012, the State responded to the defense request that it would produce adult rap sheets of its witnesses, but argued that "[t]he state does not have access to the juvenile records of witnesses nor the victims and hence cannot produce them." R. 1000. The conflict interest hearing occurred two days later.

13 See also Salts v. Epps, 676 F.3d 468, 482 (5th Cir. 2012) (rejecting the State's argument that counsel's motion to withdraw was filed for dilatory purposes); United States v. Punch, 722 F.2d 146, 151 (5th Cir. 1983) (finding that counsel's motion to withdraw was not "made to delay or disrupt trial as she had tried to withdraw weeks before trial began").

27

--··-- ----------~~-----

must be "mindful of the restrictions inherent in the attorney/client privilege." State v. Carmouche, 508 So.2d 792,

805 (La. 1987).

The trial court here improperly insisted that defense counsel disclose confidential information - an action

that would violate their ethical obligations. Defense counsel correctly declined this invitation.

B. The Conflict of Interest had an Adverse Effect on Counsel's Performance

Holloway and its progeny did not place any additional burden on a defendant to demonstrate that the

conflict of interest adversely impacted defense counsel's representation. Where the defendant "and his counsel

tried to avoid [the conflict] by timely objections," reversal is automatic. 435 U.S. at 490.14 Indeed, it is the trial

court's duty to, "refrain from .. .insisting, or indeed, even suggesting, that counsel undertake to concurrently

represent interests which might diverge from those of his first client, when the possibility of that divergence is

brought home to the court." Id. at 485 (quoting Glasser v. United States, 315 U.S. 60, 76 (1942)).

Nevertheless, trial counsel here has conceded that there was an actual impact on his representation of Mr.

Reed. As Attorney Florence explained in a post-trial affidavit, because of his former representation of Jarquis

Adams, he and his co-counsel "felt restricted in our ability to investigate and present evidence of the victim's

criminal history." R. 2359. At both phases of trial, Mr. Florence could not "ethically cross examine Jarquis

Adams's relatives about his character, possible unadjudicated bad acts, or criminal history." R. 2360. Nor could

he "present any evidence that flowed from information [he] learned during [his] representation of Jarquis." Id.

Indeed, the record reflects that counsel made no effott to rebut the good character evidence that the State

introduced in both phases of trial. h1 the culpability phase, Jarquis Adams's aunt testified that Jarquis was

"growing his hair long to donate it to the children with cancer." R. 4836. She testified that his brother, Jeremiah

Adams, was studying engineering at Southern University, and would have been statting his third year there if he

were still alive. R. 4836. Attorney Florence asked no questions on cross-examination, saying only, "Thank you,

Ms. Clara. I'm sorry for your loss." R. 4837. 15

In the penalty phase, Ms. Morgan testified that Jarquis Adams was dyslexic, and because of that "he was

really crazy about people with special needs. Like, he really understood them because he was like that." R.5039.

14 The heightened requirement of demonstrating an "adverse effect" on counsel's performance only applies when the conflict is raised for the first time after trial. See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980); Mickens v. Taylor, 535 U.S. 162, 172-73 (2003) (finding that the "rule applied when the trial judge is not aware of the conflict (and thus not obligated to inquire) is that prejudice will be presumed only if the conflict has significantly affected counsel's perfonnance -- thereby rendering the verdict unreliable, even though Strickland prejudice cmmot be shown.").

15 Bernice Adams, the victims' grandmother also testified in the culpability phase. Like Ms. Morgan, Ms. Adams described the day that she found out her grandsons were killed. R. 4838-39. She testified that she had raised Gene Adams, and identified a picture fi·om his 12th bilthday. Id. Although the testimony of Ms. Morgan and Ms. Adams was highly prejudicial, and inadmissible in the culpability phase of a capital trial, defense counsel did not object and preserve the issue for appeal.

28

She testified that he was the announcement clerk at church, sang in the choir, and rode horses. R. 5040. "And he

was good. He had his ways. He was not perfect, but he was trying," Ms. Morgan told the jury. R. 5039. As with

the culpability phase, defense counsel did not ask any questions of Ms. Morgan. R. 5045.

Trial counsel has attested that evidence of Jarquis Adams's character or criminal history was critical to his

defense of Marcus Reed. The defense "depended upon the argument that Mr. Reed reasonably believed that the

victinis in the case were engaged in a dangerous felony. Patticularly in a capital case where there was evidence of

self-defense or justifiable homicide," his prior representation of the victim restricted his investigation. R. 2359-60.

As this conflict of interest significantly impaired defense counsel's performance and was raised in the

district comt before trial, this Court must reverse.

V. THE COURT ERRONEOUSLY DENIED A MISTRIAL AFTER THE TRIAL JUDGE BEGAN OPENLY CRYING DURING THE VICTIM-IMP ACT TESTIMONY.

It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.

Starr v. United States, 153 U.S. 614, 626 (1894).

During Clara Morgan's victim impact testimony in the penalty phase, the trial judge began openly crying.

In full view of the jury, she wiped her eyes with tissues, covered her mouth, and occasionally held her head down.

R. 2195-98. The judge's crying continued for roughly ten minutes. R. 2198. Tluee seated jurors also began ctying.

R. 2196. After Ms. Morgan concluded her testimony, the trial judge immediately rushed out of the comtroom

without excusing the jury. Id. The comt's behavior was plain to comtroom observers, including one member of

the media who repmted that "Morgan's testimony visibly moved many in the courtroom and jury, including Judge

Katherine Dorroh, who called for a brief recess immediately after the testimony." R. 2316. After the judge exited

the comtroom, jurors were left seated for several minutes until the deputies led them outside. R. 2196-98.

When the judge returned to the bench, defense counsel raised an objection to her emotional display in

front of the jury:

MR. GOORLEY: ... I have to, for the record, state that right before we broke that Your Honor

was visibly impacted by that testimony and that you were you were in tears, as Ms. Prudhomme was, and possibly other people were.

But as the fact finder in this case not the fact finder in the case, but the judge in this case, it is

your duty to, let's say, not comment on the evidence.

And for the record we would just state that the Court's emotional situation and tears was in fact a comment on her testimony. We want to make that patt of the record clear for whatever purposes

may come down the road.

29

R. 5046. 16

The defense moved for a mistrial, which was denied by the trial court. The judge found that her behavior

was similar to others in the comiroom, and that she did not believe that her actions would impact the jury:

[T]hat was very difficult. But my emotions weren't different than many other people in the coutiroom or the jury. I don't believe that my emotions really had any impact on the jury. I kept my head down. I was visibly moved by it, as I'm sure I'm going to be visibly moved by Mr. Reed's family if they testify.

This is hard and it's -I'm an emotional person. I am. My emotions show on my face with what I do. They do. And that was very difficult, and I'll say it on the record. But I don't believe that it really impacts the jury to see any human being moved by that. It's not a comment on the evidence; it's not a comment on someone's testimony; it's not.

So I think everybody shows their emotions in different ways, and I believe every judge that has to

sit through this feels the same way when these impact witnesses take the stand. So I'm going to deny your request for a mistrial at this time, and I'll note your objection for the record.

R. 5047-48.

The penalty phase continued with the testimony of Marcus Reed's family members. Following the

testimony of Mr. Reed's son, the comi sua sponte returned to the subject of emotional displays in the comiroom.

"I want it on the record that both Mr. Florence and Mr. Goorley were emotional during that and their human

feelings showed just like mine," she noted. R. 5085-86. 17

In closing arguments the State reminded the jurors that the bulk of them "didn't have a dry face," when

Clara Morgan testified. R. 5104. In fact, people in the audience, and even the attorneys were crying. "Not one dry

eye except for one person, Mr. Reed." Id.

The court's actions constituted a non-verbal comment on the evidence, rendering Mr. Reed's death

sentence unreliable. "The judge is a figure of overpowering influence, whose every change in facial expression is

noted, and whose every word is received attentively and acted upon with alacrity and without question." Travelers

16 This was not the only time that the trial court had difficulty concealing her emotions in front of the jury. Dming the culpability phase of trial, defense counsel objected to the court's demeanor when responding to him. "I think the jurors were able to view the Court's demeanor, and we would-- and I believe there's been other times where there's been something along those lines have happened, and we would object to that," counsel stated. R. 4368. The court responded that she was "very frustrated with the attorneys' behavior this morning, both sides." Id. Over defense counsel's objection the comt instructed the

jmy:

R. 4369.

17

I know you can probably tell I'm frustrated. I'm frustrated because Lhave to keep sending you out, okay? And that's not directed to either side. I'm frustrated with both equally, okay? You need to understand that,

okay?

When the issue was again raised in the Motion for New Trial proceedings, the trial court again noted that Mr. Goorley and Mr. Florence were crying during the defense penalty phase presentation and that she was "tearful." R. 5184. The Court denied the defendant's Motion for New Trial, finding that "although the Comt was emotional during the victim impact testimony presented by the State the Court, defense counsel and the defendant were also very emotional when the defendant's

victim testimony was presented." R. 5197. The comt fmther found that she instructed the jury to disregard the emotions of the court and the attorneys- an instruction that does not appear anywhere in the trial record. R. 5198.

30

_ .. -

Ins. Co. v. Ryan, 416 F.2d 362,364 (5th Cir. 1969). Given her position, the words and actions of a trial judge may

be seen as an authoritative comment on the evidence, the attorneys, or the defendant himself. Jenkins v. United

States, 380 U.S. 445, 446 (1965) (holding that the judge's comments to the jmy that "You have got to reach a

decision in this case," had "the coercive effect attributed to it"). "[T]he comt must exercise the most scrupulous

care to avoid giving an unfair or one-sided impression." United States v. Fischer, 531 F.2d 783, 786 (5th Cir.

1976).

Pursuant to the Louisiana Code of Criminal Procedure, "The judge in the presence of the jmy shall not

comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the

testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted." La. C.Cr.P.

art. 772. The implementation of Atticle 772 "represents a considered determination that the trial judge's role is

essentially as an impmtial umpire in an adversary trial, rather than as an active pa1ticipant in the development or

presentation of evidence." State v. Williams, 375 So.2d 1379, 1382 (La. 1979).

This prohibition applies with equal weight to "indirect or non-verbal conduct." State v. Jones, 474 So.2d

919, 939 (La. 1985); State v. Wright, 445 So.2d 1198, 1200-01 (La. 1984). A trial judge's non-verbal cues, such

as handing a child-witness a piece of candy, 18 shaking hands with a state-witness, 19 shaking his head during

defense counsel's arguments,20 or turning his back on the defendant21 have all been found to be an improper

comment on the evidence or on the "witness' veracity." State v. Cook, 485 So.2d 606, 609 (La.App. 4 Cir. 1986).

In each of these cases the comts acknowledged the trial judge's power to bolster the government's case or

influence the jury with these subtle signals.22

Here the comt's verbal and non-verbal cues did not give the impression that she was an impartial umpire

in Marcus Reed's capital case. The court conceded that she was emotional on the bench and her actions were

visible to counsel, comtroom observers, and even the jury. Even if the coutt's actions may not have required

18 State v. Cook, 485 So.2d 606, 609 (La.App. 4 Cir. 1986); see also People v. Rogers, 800 P.2d 1327, 1329 (Colo. · App. 1990).

19

20

21

22

Abrams v. State, 326 So.2d 211, 212 (Fla. Dist. Ct. App. 1976).

Veal v. State, 268 S.W.2d 345, 346 (Tenn. 1954).

State v. Jenkins, 445 S.E.2d 622, 624-25 (N.C. Ct. App. 1994).

Cannon 3(A)(4) of the Louisiana Code of Judicial Conduct further provides that:

A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, and shall not permit staff, court officials or others subject to the judge's direction and control to do so. A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the abilities of all litigants, including self-represented litigants, to be fairly heard, provided, however, that in so doing, a judge should not give self-represented litigants an unfair advantage or create an appearance ofpat1iality to the reasonable person.

31

reversal of a defendant's conviction in a non-capital case, in a capital sentencing hearing, where jurors are asked

to decide the ultimate punishment, the introduction of this arbitrary factor was constitutionally intolerable.

Furman v. Georgia, 408 U.S. 238 (1972); Fordv. Wainwright, 477 U.S. 399,411 (1986).

VI. PROSECUTORIAL MISCONDUCT RENDERED THE TRIAL FUNDAMENTALLY UNFAIR.

Throughout both phases of trial prosecutors engaged in behavior that ranged from unprofessional to

outright bullying. Prosecutors denigrated Mr. Reed's attorneys, throwing pens at defense counsel, R. 4584, and

laughing at them during witness examinations. R. 4445 ("Your Honor, I'm going to object to Mr. Cox's - - he's

laughing in the courtroom right now. Now he's laughing louder ... this is a capital murder case. I don't appreciate

his form of humor"). Prosecutors accused the defense of threatening jurors, telling the jury, "Mr. Goorley doesn't

really appeal to your higher nature, because what he's doing is threatening you ... He wants to make you tremble

at the thought of doing your lawful duty." R. 5127-28. The State argued- as grounds for executing Mr. Reed, the

very mitigation that the law considered relevant- that Marcus Reed was "loathsome" for bringing in his children

to cry for the jurors. R. 5130. And in response to the defense argument for mercy, the State claimed that Christ

taught that anyone who killed a child shall have a "millstone around [his] neck and dropped into the sea." R.

5126-27.

Prosecutors repeatedly misstated the evidence presented during the culpability phase, going so far as to

argue that Marcus Reed intended to burn the bodies of the Adams brothers when no witnesses suppmted this

contention. R. 4887. They threatened to indict or arrest three witnesses right before or during their trial testimony.

R. 4469, 4534, 4859. These witnesses included Kyle King and Clarence Powell, who were prepared to testify

respectively that Jarquis Adams burglarized Marcus Reed's house and that he threatened Mr. Reed when he came

back. And prosecutors failed to correct the false testimony of two State witnesses, in violation of Napue v.

Illinois, 360 U.S. 264 (1959). R. 4651, 4668-70.

Although defense counsel objected to the State's misconduct again and again, the trial comt made little

effmt to regulate the prosecutors' actions and often erroneously found that the misconduct was excused because it

occurred on both sides. As the comt explained during the Motion for New Trial proceedings, "They were both

bad, okay? This was a trial of jabs going back and fmth. I tried to limit that. I tried to control that. Sometimes I

was successful. Sometimes I wasn't." R. 5179.

The record on appeal makes clear that the attorneys for the State and defense were not "both bad."

However, even if this Comt were to credit the trial comt's finding, any impropriety on defense counsel's behalf

cannot excuse government overreaching. As the Supreme Court has aptly observed, the prosecutor "is the

representative not of an ordinary pmty to a controversy, but of a sovereignty whose obligation to govern

32

impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal

prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88

(1935). While the prosecutor "may strike hard blows, he is not at liberty to strike foul ones." Id.

The assortment of misconduct that occurred at Mr. Reed's capital trial, both individually and collectively,

violated his constitutional rights to due process, a fair trial and a reliable sentencing proceeding, and requires

reversal.

A. The State Made Unrelenting Personal Attacks on Defense Counsel in the Penalty Phase Closing Arguments

In penalty phase rebuttal arguments the State repeatedly commented that attorney Richard Goorley had a

"fanatically abusive" interpretation of the law, was "obscene and insulting," was "threatening" jurors, and calling

them "killers" and "not Christian." The court ignored defense counsel's objections, and took no action to limit the

prosecutor's arguments. While courts are "tolerant and charitable toward prosecutorial argument, [] both tolerance

and charity have their termini, and these were exceeded here." Houston v. Estelle, 569 F.2d 372, 383 (5th Cir.

1978); State v. Wilson, 404 So.2d 968, 971 (La. 1981); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974);

Darden v. Wainwright, 477 U.S. 168, 181-82 (1986). Claims of prosecutorialmisconduct in closing arguments

must be viewed light of the record as a whole, and improper conduct that is "an isolated, momentary abenation

occurring in the heat of trial," may ultimately be excused. United States v. Whitmore, 480 F.2d 1154, 1158 (D.C.

Cir. 1973). However, "deliberate, calculated and successful effort[s] to prejudice the defendant" will not. Id. The

State's closing arguments infected the entire penalty phase, requiring reversal of Mr. Reed's death sentence.

In defense counsel Richard Goorley's closing arguments he made a conventional plea to jurors to show

mercy on Marcus Reed, and to not punish death with death. R. 5113-19. Jurors were reminded of the testimony of

Marcus Reed's friends and family that Mr. Reed had value to them. Jurors were asked if they believed in the

principles of "vengeance" or "the principles of redemption and the principles of mercy?" R. 5118. The defense

reminded jurors that any reason they had to grant a life sentence is "good enough." I d.

The State, in rebuttal argument, launched unrelenting personal attacks at defense counsel, encouraging

jurors to feel "threatened" and "insulted." The State argued,

So let's take a deep breath and really analyze the law here, because unlike Mr. Go01·ley, I don't think of you as killers and I don't think of the law as vengeful. ...

So now that you have found this defendant guilty of first degree murder under one of those circumstances, you are legally, legally, entitled to consider both punishments. It is only a

fanatical abuse of that analysis that would lead Mr. Goorley to call you killers because you followed the law.

R. 5119-20 (emphasis added).

The State continued,

33

----~~· ----~---~

Mr. Goorley argues to you that if you don't have mercy for Mr. Reed, you're a killer, you're a vengeful killer. Because he used the word vengeance at least five times in his closing remarks in attributing to you that emotion if you had the temerity to simply follow the law.

Besides being obscene, those remarks are deeply insulting to you as citizens, tax paying, hard working citizens who did not choose to be here, who would rather be anywhere but here. But Mr. Goorley, dismissing that as a mere formality, suggests that you are killers and you have vengeance unless you have mercy for Mr. Reed ... that's the argument when you strip the bark off the tree; well, if you don't have any mercy for him, there's nothing I can do for you, because you're lost, you're a vengeful killer. Man, what an argument.

R. 5124-25 (emphasis added).

Again and again the State personally attacked defense counsel and his arguments, urging jurors to find

threats and insult in counsel's pleas for mercy:

But this is another insidious argument that Mr. Goorley would make; well, unless you believe in his interpretation of the Bible, you're no good. You're a vengeful killer. You're not wmthy of consideration ... And it's so easy to get in to this and that's why the argument is so insidious, because Goorley says, This is my view of the Bible and unless you agree with my view of it, there's something wrong with you; you're not merciful; you're not Christian; you're not any good; you're a vengeful killer. Well, that's nonsense.

Because I also remember the same Christ saying, Whoa to you who would harm one of these, referring to children. It would be better that you had never been born. A millstone around your neck and dropped into the sea.

R. 5126-27 (emphasis added).

At the peak of prosecutor's argument, the State boldly told jurors, "Mr. Goorley doesn't really appeal to

your higher nature, because what he's doing is tlU"eatening you," prompting an objection by defense counsel. R.

5127. The comt ignored counsel's objection and instructed him to "sit down." Undeterred, the State continued:

[W]hat he's doing is threatening you . .. and how he's threatening you is he says unless you do what I tell you, unless you believe in my New Testament, unless you show mercy to Reed, then you're nothing but a killer. Now, you can call it anything you want, but I call it a threat. And he even said that would make you part of the killing. Now, if that's not a threat, I don't know what is.

He wants to make you tremble at the thought of doing your lawful duty.

R. 5127-28 (emphasis added).

Defense counsel re-raised his objection at the conclusion of the State's argument and moved for a

mistrial. R. 5135-36. The district court overruled the objection and denied his motion for a mistrial, finding that

defense counsel's argument "provoked some ofthe comments by Mr. Cox." R. 5136.

The court's ruling was erroneous. First, the court's finding that defense counsel invited the State's

comments has no support in the record. There was no misconduct in defense counsel's closing arguments.

Defense counsel implored jurors to show mercy to the defendant and not seek vengeance. Such arguments cannot

be classified as a "threat" and are common in capital sentencing hearings. While improper arguments by the

34

defense may at times "invite" comments that would otherwise be prohibited, a prosecutor may not go beyond

what is necessary to '"right the scale,' in the wake of defense counsel's misconduct." United States v. Young, 470

U.S. 1, 14 (1985). Defense counsel's argument did not warrant such pointed attacks.

Comis regard personal attacks or disparaging remarks about opposing counsel with patiicular

disapproval. See, e.g. Bates v. Bell, 402 F.3d 635, 646-47 (6th Cir. 2005) (reversing the defendant's conviction,

finding that "[i]t is plainly improper for a prosecutor to level a personal attack against opposing counsel"). Such

comments not only exceed the ethical bounds of conduct for a state actor, but may as a consequence suggest to

jurors that "government and the comi are allied in opposition to the defendant and his lawyer," United States v.

Frederick, 78 F.3d 1370, 1380 (9th Cir. 1996) (reversing the defendant's conviction because of prosecutor's

improper closing argument that it is not defense counsel's ''job to ask you to look at all of the evidence. And he is

asking you to look at little bits and pieces. The Government and the Judge will be asking you to consider all of the

evidence in making your decision"); See also United States v. Richardson, 161 F.3d 728, 736 (D.C. Cir. 1998)

(reversing the defendant's conviction upon a finding that the State's closing argument was a "marked attempt by

the prosecutor to potiray defense counsel as an interlopet· in a world to which the other trial patiicipants--the

prosecutor, the defendant, Hazelton and the jurors-belonged"). When improper arguments occur in a non-capital

trial, evidence of guilt may "be sufficient to sustain a conviction despite some prosecutorial misconduct." Bates v.

Bell, 402 F.3d 635, 648-49 (6th Cir. 2005). However, sufficient evidence of guilt "does not immunize the

sentencing phase evaluation of aggravating and mitigating factors" from prosecutorial misconduct. Id. A juror's

decision between life and death is different. Lockettv. Ohio, 438 U.S. 586 (1978).

Here, the State's improper commentary was not isolated to one offhand remark - it was a consistent

theme throughout rebuttal arguments. Over and over again the State told jurors that they should feel threatened by

defense counsel, or that they should feel insulted. Taking the State's arguments to their logical end, jurors could

only conclude that to grant mercy would be to act outside the law. Jurors must follow "the law," not defense

counsel's threats and insults. "[I]f Mr. Gom·ley thinks that that law is heatiless and vengeful and merciless, then

he can go to the legislature and get it changed. That's how we do things in this society. We do not do that by

threatening honest jurors," the State instructed. R. 5129; see also R. 5134. Such arguments had no place at a

capital sentencing hearing, and inflamed the passions and prejudice of the jury.

B. The State Argued in the Penalty Phase that Marcus Reed was "Loathsome" for Presenting Mitigating Evidence

The State improperly argued in closing that Marcus Reed was "loathsome" to ask his children to testify in

the penalty phase, R. 5130, and that the defendant's mitigation presentation showed that Marcus Reed was only

35

interested in "self-preservation at no cost." R. 5099. Jurors were encouraged to ignore relatives' pleas for mercy,

and instead to follow "the law" and sentence Marcus Reed to death. R. 5129.

"[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from

considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a sentence less than death." Lockett, 438 U.S. at 604. At a

capital sentencing hearing, "the jury [must] be able to 'consider and give effect to [a defendant's mitigating]

evidence in imposing sentence."' Penry v. Johnson, 532 U.S. 782, 797 (2001) (quoting Penry v. Lynaugh, 492

U.S. 302,319 (1989)). The State's improper argument in the penalty phase precluded the jurors from giving full

consideration to Mr. Reed's evidence in mitigation.

At the penalty phase, the defense presented the testimony of several of Marcus Reed's friends and

relatives about his good character and religious convictions. Witnesses testified that Marcus was a devoted father

who cared for his children, played games with them, and helped them with their homework. R. 5049-86. This

evidence of good character- and the family's pleas for mercy- was the only mitigating evidence presented by the

defense. However, the jury was implored not only to disregard mitigating qualities, but also to consider the very

act of presenting them as aggravating evidence of Marcus Reed's selfish and devious character:

That man that had his family come in here yesterday and beg for his life. You know what I call that? I call that self-preservation at no cost. That is what I call that. .. And if I could, if the law would allow me to, I would ask Marcus Reed, how many people have to be sacrificed to preserve

you?

R. 5099.

[L]et me bring [my daughter] in here in front of these people and let her look at me in this position and expose her gut wrenching feelings to you. Doesn't matter. Maybe her tears can change their mind. Maybe her tears will be impactful to them. Maybe they will see that I'm needed, that I'm loved, that I have a family, too.

R. 5101.

After asking the jury to discount the testimony of Marcus Reed's children, the State improperly

commented on the fact that Loshun Jackson's children did not testify in support of a life sentence for Mr. Reed. "I

didn't see them here yesterday. They didn't take the stand," the State noted. R. 5102. The State then asked jurors

to consider that Marcus Reed cried only during his family's testimony- not the testimony of the victims' family.

There was "not one dry eye" in the courtroom during Clara Morgan's testimony, the State argued, "except for one

person, Mr. Reed." R. 5104-05.

In rebuttal, the State expanded its arguments and blatantly asserted that if Marcus Reed had good

character he would not have presented any witnesses in the penalty phase:

When you consider the character of this defendant, I respectfully submit that this is his character; he is a criminal, he is a liar, he lied to the police and told them he wasn't there. He is loathsome.

36

That is part of his character, because he used his children and his family to save himself. That is in my view patiicularly loathsome.

A man of character would have told his lawyers, No, sir, you will not do that; you will not bring my daughter here; you will not bring my son here; you will not bring my father here ...

R. 5130; see also R. 5131 ("The defendant never cried when Bernice Adams testified. But, oh, he cried when his

family testified. He sobbed. That is loathsome. That's his character.").

Defense counsel objected to the State's improper reference to "the fact that the defendant never cried

when Ms. Bernice was testifying" and to the absence ofLoshun Jackson's children. R. 5135. The defense moved

for a mistrial, which was denied by the district court. R. 5136.

The State's closing arguments were an improper comment on facts not in evidence, and an ovett plea for

jurors to ignore the mitigation evidence presented by the defense. The mere presentation of mitigating evidence is

insufficient to fulfill the commands of the Eighth and Fomteenth Amendments. "[T]he jury must be allowed not

only to consider such evidence, or to have such evidence before it, but to respond to it in a reasoned, moral

manner and to weigh such evidence in its calculus of deciding whether a defendant is truly deserving of death."

Brewer v. Quarterman, 550 U.S. 286, 296 (2007); see also Abdul-Kabir v. Quarterman, 550 U.S. 233, 250

(2007). "When a prosecutor's actions are so egregious that they effectively 'foreclose the jury's consideration of ..

. mitigating evidence,' the jury is unable to make a fair, individualized determination as required by the Eighth

Amendment." DePew v. Anderson, 311 F.3d 742, 748 (6th Cir. 2002) (quoting Buchanan v. Angelone, 522 U.S.

269, 277 (1998)).

The State's arguments prevented the jmy from making a fair and individualized determination of Mr.

Reed's sentence. Mitigating evidence- such as the testimony of a child that he wanted his father to live- was

turned into evidence in aggravation. Mr. Reed was chastised for ctying during his family's testimony, for asking

his children to testify, and then for not asking other children to testify in mitigation. Such arguments violated Mr.

Reed's right to a fair and reliable capital sentencing proceedings under the Eighth and Fomteenth Amendments of

the United States Constitution, and Atticle I, Sections 2 and 16 of the Constitution of the State of Louisiana.

C. The State Repeatedly Misstated the Evidence in Culpability-Phase and Penalty-Phase Arguments

In arguments, the State repeatedly misstated testimony and created theories out of whole cloth in an effort

to convince the jurors that Marcus Reed's actions were not justified. The prosecutor's comments were not "slight

or confined to a single instance," but were "pronounced and persistent, with a probable cumulative effect upon the

jury which cannot be disregarded as inconsequential." Berger v. United States, 295 U.S. 78, 89 (1935). Such

misconduct requires reversal of Mr. Reed's conviction.

37

Along with the State's unsuppmted argument that Mr. Reed "lured" the victim's to his house with the

promise of drugs, R. 4888-89, the State asked jurors to infer that Mr. Reed's actions were not justified from other

pieces of evidence that it never presented. First, the State argued in the culpability phase that if Marcus Reed's

actions were justified, he would have told witness Clarence Powell about it. "If it's truly self-defense, why

doesn't Reed tell Clarence Powell, It was self-defense, buddy," the State asked. R. 4922. Contrary to the State's

arguments, the jurors heard no evidence about what Mr. Reed told Clarence Powell after the shooting. The State

did not elicit this testimony from Mr. Powell, and the defense was prevented from presenting much of what Mr.

Powell heard because of the State's hearsay objections. In fact, in his initial statement to the sheriffs, Mr. Powell

reported that Marcus Reed did tell him that the victims were harassing him. When he saw Mr. Reed immediately

after the shooting, Mr. Reed stated:

I told them don't come down here, I told them to just leave me alone ... First, they robbed me. Then they called back bragging about it and then they come down here.

R. 630. However, the jury never heard this, or any testimony about what Mr. Reed told Mr. Powell.

Even more troubling was the State's argument that Marcus Reed poured gasoline on Jeremiah Adams,

causing chemical burns, and intended to set him on fire. The State presented no evidence to support this theory,

and indeed, its own witnesses contradicted it. In opening statements, the State promised that "you will also hear

from a witness that says after the defendant shot and killed these tlu·ee boys, he then had a liquid and was pouring

it around the vehicle; and, therefore some of that liquid was on the body of Jeremiah Adams." R. 4216-17. No

such testimony was presented.

As the State's witnesses testified, the stream of gasoline came from a pierced gas tank in the victim's car,

not an outside source. Sergeant Gary Baird testified "through the use of rods we were able to find where the

trajectory of one of the bullets punctured the fuel tank." R. 4696; see also R. 4711 and 4722. Corporal Al

Newman also testified that when he examined the victims' car, "[t]he undercarriage had what was a suspected

bullet hole in the bottom of the gas tank." R. 4731. Detective Terry Richardson testified that the stream of

gasoline came "from the vehicle," R. 4262.

Although it presented no evidence that Marcus Reed poured gasoline on the victims, the State continued

to put fmth this gruesome suggestion in closing arguments at both phases of the trial. The jury was inundated with

photographs and testimony about the chemical wounds on Jeremiah Adams' back. See, e.g., R. 4815, 4821-22, R.

4825, 4828. "Would the chemical burns have killed him if he had not been shot?," the State asked the coroner.

"Would they have been painful?" R 4829. In arguments the State described in detail the post-mmiem chemical

burns, stating that the coroner's testimony "gave us another piece of critical evidence in this case that is so cold

38

----------~------------ ---.• _ _l __ _

that it chills my spine, and I believe probably chilled yours." R. 4887. Prosecutors spun this ghastly tale without

support in the evidence presented at trial:

Shooting him is not enough; we have to pour chemical fuel on him to burn him. And you want to know why? Because they were trying to do with Jeremiah's body what they did with Jarquis' body, put it in the trunk. Reed was going to put them all in the trunk and set it afire and burn the car and all three boys into oblivion. That way no one would ever catch Marcus Dante Reed.

R. 4887-88, see also R. 5131 (arguing in the penalty phase that Marcus Reed, "would have burned all

these boys up in the trunk of that car if Daniel Jackson and Shannon Garland hadn't run away").

Such misstatements of the evidence are strictly prohibited. The State is restricted in opening statements

to "the nature of the charge, and ... the nature of the evidence by which the state expects to prove the charge." La.

C.Cr.P. art. 766. Closing arguments, as mandated by Article 774 of the Louisiana Code of Criminal Procedure,

"shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant

may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state's

rebuttal shall be confined to answering the argument of the defendant."

While prosecutors are allowed wide latitude in arguments, "[t]he prosecutor should refrain from argument

which would divert the jUly from its duty to decide the case on the evidence, by injecting issues broader than the

guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the

jury's verdict." State v. Kaufman, 304 So.2d 300, 308 (La. 1974) (quoting the American Bar Association's

Standards relative to the prosecutorial function, Standard 5.8(d)). Where the State explicitly misstates the

evidence in closing arguments and that argument influences the jury and contributes to the verdict, reversal is

required. State v. Draughn, 05-1825 (La. 1117/07), 950 So.2d 583, 614. See also State v. Jackson, 80 So.2d 105,

108 (La. 1955) (finding that prosecutor's remarks about the personal desires of the district attorney's office were

"improper and out of place, and that the trial judge upon objection by counsel for the defendants should have

instructed the jury to disregard them").

Here - without any evidentiary support - the State argued that Marcus Reed lured the victims to his

house, that he did not claim self-defense to Clarence Powell, and that Mr. Reed poured gasoline on the victims in

an attempted arson. This was fiction generated entirely by prosecutors. A conviction and death sentence under

these circumstances cannot stand.

D. Prosecutors Threatened to Arrest ot· Criminally Charge Three Trial Witnesses, Depriving Mr. Reed of Due Process of Law

Nearly every civilian witness called by the State at trial testified inconsistently with their previous

statements to police or testimony before the grand jury. These witnesses admitted to engaging in criminal activity,

39

both on the stand and in private meetings with the District Attorney.23 Daniel Jackson and Shannon Garland gave

wildly inconsistent statements over the three years between the shooting and trial, and provided testimony that

was irreconcilable with each other or the physical evidence. See Argument of Error XI(D). Bridgette Garland

admitted to prosecutors before trial that her grand jury testimony was petjured. She reported that she was on drugs

at all relevant times on the day of the homicide, that her husband had destroyed evidence, and even indicated that

both Mr. Garland and Mr. Jackson were intimately involved in the shooting. R. 2024-25. In response, the State

"assured Bridget. .. that she would not be charged for her conduct or her grand jury testimony," R. 2025.

But when witnesses Kyle King, Clarence Powell and Brian Wafer appeared to testify at trial, the State

struck a different tune. Prosecutors threatened to indict Mr. King if he testified for the defense that he burglarized

Marcus Reed's house. Prosecutors asked the court to arrest Mr. Powell on contempt charges when he appeared

late the morning of trial. Prosecutors read aloud from the petjury statute to Mr. Wafer, in front of the jury, when

he testified inconsistently with his statement to detectives. The State's actions, viewed collectively, deprived Mr.

Reed of due process of law, rendered the trial fundamentally unfair and his death sentence unreliable.

Brian Wafer:

Brian Wafer testified in the State's case in chief that on the night of August 16, 2010, Marcus Reed's

brother called him and ask him to pick up Marcus. R. 4457. Mr. Wafer could not remember the exact time that he

received the call, but remembered it was "fixing to get dark." Id The State attempted to refi.·esh Mr. Wafer's

recollection with a transcript of his prior statement to police in which he stated that he received the call at

10:23pm. R. 4460. The State later played the recording of Mr. Wafer's statement to police to refresh his

recollection. Mr. Wafer explained:

I don't think it was that late, because when David called me, he was at work. And it was a function going on at East Ridge [Country Club]. So I don't think it was that late, though. But it's been a few years ago. It's really kind of hard to remember ...

R. 4468. Mr. Wafer's testimony on this point was significant: it suggested that Marcus Reed was trying to get a

ride away from his house in the country before the Adams brothers got there, not after they were killed.

Mr. Wafer further testified that when he picked Mr. Reed up that night he was standing on the street with

a crowd of people. R. 4461.24 His demeanor was "calm" when they drove away. R. 4466. Mr. Wafer did not recall

what he told police about Mr. Reed's demeanor. R. 4467. When the State showed him a transcript of his

statements three years earlier, Mr. Wafer responded "I don't remember saying that." R. 4467. The State played

23 See2024-25,4412,4373,4376,4412,4450,4487,4489,4490,4493,4504,4592-93.

24 The State asked if Mr. Wafer saw any vehicles. He was asked if he remembered "telling any police officers that you saw police cars?" R. 4462. Mr. Wafer responded, "Yeah. I just told you all that last week when I talked to y'all. See, that's what I was asking you, be specific what you saying." !d.

40

---------- ~~-- --

another portion of Mr. Wafer's statement to police. He was asked again, "could you hear your answer before

Detective Richardson said, Was he acting mad?" R. 4468. Mr. Wafer responded again that he couldn't hear

anything, and defense counsel concurred that he also couldn't hear Mr. Wafer's answer on the recording. Id.

Although Assistant District Atto{:ney Prudhomme was conducting the examination of Mr. Wafer,

Assistant District Attorney Cox interrupted her examination and addressed Mr. Wafer directly:

Q. My name is Dale Cox. I met you once before. I'm going to get specific with you, okay, Mr. Wafer?

A. Yes, sir.

Q. I want to read you something and then I'm going to ask you a couple of questions. Revised Statute 14:123, perjury - -

R. 4469 (emphasis added).

Defense counsel immediately objected to Mr. Cox reading from the pe1jury statute and the jury was

removed from the courtroom. Mr. Cox argued,

In long and in short, he's lied to this jury, and I want him to know that lying to this jury in a capital murder case carries up to 40 years in the State penitentiary. That may or may not influence Mr. Wafer's ability to conform his testimony to the truth, but only he will know that. But I think it's fair examination.

R. 4469-70.

Defense counsel moved for a mistrial. R. 4470. "[T]he fact that he makes that statement in front of the

jury is an indication that the State itself presumes this person to be lying. And I don't think that that is proper for

any witness for the State to do so during direct examination," the defense argued. R. 4470. The court denied the

defense request for a mistrial, but found that it wasn't proper for the prosecutor to read from the pe1jury statute. R.

4473; see also 4475. The court nonetheless permitted the state to instruct Mr. Wafer tl~at if he falsely testified "he

can be charged with a felony and the punishment is a sentence of hard labor." R. 4474.25 Defense asked that the

court instruct the jury to disregard Mr. Cox's earlier statements. The court denied this request. R. 4475.

When the jury returned, the State instructed Mr. Wafer that he had to be truthful while under oath and that "if

the State chose to, [he] could be charged with pe1jury," R. 4476. Mr. Wafer was further instructed that the penalty

for pe1jury was "five to 40 years." R. 4477.

The State then went over Mr. Wafer's testimony again about when he received the call to pick up Mr. Reed.

The State asked, "[a]ccording to the transcript around 10:23 at night, correct?" and Mr. Wafer testified that was

correct. R. 4482. "[Y]ou picked him up at the corner? .. .l0:23 at night?" the State asked again. R. 4483. "That's

what the transcript say," Mr. Wafer responded. Id.

25 The court also admonished Assistant District Attorney Cox for intenupting his co-counsel's examination. "We're not going to switch. If they had done that, there would have been all kinds of objections and fireworks, so we're not going to switch in the middle of the examination of the witness," the court warned. R. 4474.

41

--~~~~--~~ ---- ~~~ ~~-

Clarence Powell:

The second witness threatened with arrest was Clarence Powell, Marcus Reed's neighbor. In the year

before trial the State sought and obtained a material witness warrant for Mr. Powell, asking that he be held

without bond. R. 10.26 Mr. Powell subsequently appeared at the office of the District Attorney on September 23

and 24, 2013 to give supplemental statements to the State. Two assistant district attorneys and two Caddo

detectives were present. Over the next two days prosecutors and detectives went through Mr. Powell's initial

statements to police and pressed him about whether he would testify at trial consistently with them. R. 1649-1747.

Trial commenced later that year. When Mr. Powell arrived late on the morning of trial, the State sought to

have him arrested again. R. 4534. Defense counsel protested that the State could simply call Mr. Powell to the

stand and then release him from his subpoena. Id. The State rejected this course: "No. It's my witness and I want

him arrested. Now, if the Court doesn't want to do that, I understand. But that's my motion." Id. The comt denied

the State's motion, explaining, "[e]verybody is late and everybody has issues sometimes, so I'm going to deny it.

He's here and I would like to proceed." R. 4534-35.

Mr. Powell testified in the State's case-in-chief that he heard gunshots on the night of the homicide,

walked over to Mr. Reed's house a few minutes later and saw the victims' bodies and Mr. Reed close by. R. 4539-

43. When Mr. Powell explained that the gunshots he heard came from two different kinds of guns, the prosecutor

suggested that he had never previously reported this:

[Mr. Cox]. Have you ever told anybody that before today?

A. Yes.

Q. That you heard a handgun?

A. Yes.

Q. Who did you tell?

A. You.

Q.Me?

A. Yes, sir.

Q. And when did you tell me that?

A. The one of the times you had me come up here, you subpoenaed me -- well, sent a warrant out for my arrest.

R. 4541. The record is clear Mr. Powell told this same prosecutor only a few months earlier that he heard two

different guns that night. SeeR. 1676 ("[Dale Cox]: Going back to the gunshots, how many handgun shots did

you hear?; A: About two- two or three; [Dale Cox]Two or three? And how many rifle shots?; A: Maybe about-

over five or six; [Dale Cox]And how were they spaced? Was it handgun shots first?; A: Handgun shots first.").

26 Transcripts of this proceeding were not included in the record on appeal.

42

----------- ----

"---

By cross-examination, Mr. Powell was noticeably reluctant to testify about the altercation he overheard at

Marcus Reed's house. When defense counsel asked if he heard anything before the shooting, Mr. Powell

responded that he only heard "basically people saying, What's up now?" R. 4573. After reviewing his statement

to the sheriffs in 2010, Mr. Powell refused to tell the jury what he heard. "I don't want to speak in that language.

It's just a bunch of profanity," he testified. R. 4574. Ultimately, defense counsel was forced to read aloud from

Mr. Powell's prior statement while Mr. Powell confinned that this was what he heard. R. 4574-75. "Mr. Powell,

you didn't want to be here, did you?," defense counsel asked. "No, sir," the witness answered. R. 4576.

Kyle King:

The third witness prosecutors threatened was Kyle King. When Mr. King appeared at trial to testify for

the defense, the State immediately threatened to have him arrested. Although Mr. King informed the Caddo

sheriffs in 2010 that he burglarized Marcus Reed's house with Jarquis Adams, and testified to this before the

grand jury, the State asserted that it would indict him for the burglary if he testified to this at trial:

I will give notice right now that if he admits to a crime, I'm going to indict him and he probably won't leave this building, because I will secure an arrest warrant for him.

R. 4859.

Defense counsel immediately objected to the State's threats. Counsel notified the court of the exculpatory

nature of Mr. King's potential testimony, arguing that "the fact that the state would not allow such evidence in a

case where a person is facing the death penalty is abhorrent." R. 4860. The court reviewed Mr. King's testimony

before the Grand Jury on November 9, 2010, and found that Mr. King admitted to his criminal activities back then

and the State "has had plenty of time to charge him." R. 4864. The State continued:

MS. PRUDHOMME: That's correct, Your Honor. The State was just advising that he does need to be made aware that he might need legal counsel. And if he says no, he says no. But he should at least be advised of that.

THE COURT: Well, he wasn't advised of that before he gave either ofthese statements [to police or the Grand Jury].

MS. PRUDHOMME: I understand, Your Honor. But as lawyers I'm just saying this setting, I just believe that it is proper for him to be advised of that.

THE COURT: I think it's improper and borderline intimidation if he's advised of that. ...

R. 4864-65.

The defense notified the comt that Mr. King was already informed of the State's threats to indict him. R.

4865. After substantial argument, the State withdrew its request to instruct Mr. King on his rights, but not its

threat to criminally charge him:

MR. GOORLEY: If you withdraw your objection, does that mean you're not going to indict him?

MR. COX: I'm withdrawing my objection. I don't think he needs any advisement of any kind. I agree with the Court. Let him come testify to whatever he will.

43

MR. GOORLEY: I think we need to know, Your Honor.

MR. COX: I don't owe him an explanation for anything that we do. Atiicle 61 ofthe Code of Criminal Procedure says the DA decides who to charge, when to charge, and what to charge.

R. 4866.

As Mr. King was now at risk, he needed to be advised of his rights, the defense contended. The comi

ultimately found that the State's actions were "somewhat intimidating," but not a threat. R. 4868. The comt

ordered that Mr. King be advised of his rights, and defense counsel complied. R. 4868-69. Mr. King stated that he

was still willing to testify, and so did. R. 4869.

In closing arguments, the State brought the jury's attention to the fact that Mr. King could be criminally

charged for his admissions at trial. The State suggested that defense counsel be held accountable for putting Mr.

King at risk:

They put this kid on to convict himself of committing a burglary, which is what he just did, in front of the District Attorney, in front of the judge, in front of the jury, in front of God Almighty.

He calls a convicted burglar, a convicted felon, who admits on the stand to a felony. To what? To what end? To prove that Jarquis Adams committed the burglary? Fine I'll spot them that. So what do you do? Kill the kid? Nonsense. Pure unadulterated nonsense. And now this kid's in trouble.

R. 4893-94.

The State's actions violated Mr. Reed's basic rights to due process. "The right to offer the testimony of

witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to

present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the

truth lies." Washington v. Texas, 388 U.S. 14, 19 (1967). Threats against a witness from either the State or the

comi can "effectively dr[ive] that witness off the stand, and thus deprive[] the petitioner of due process of law

under the Fomieenth Amendment." Webb v. Texas, 409 U.S. 95, 98 (1972). "Threats against witnesses are

intolerable ... If such a due process violation occurs, the comt must reverse without regard to prejudice to the

defendants." United States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980), United States v. Viera, 819 F.2d 498,

503 (5th Cir. 1987).

Where a State's threats of criminal charges prevent a defendant from cross-examining the State's

witnesses or presenting witnesses in his defense, a fundamental element of due process of law is violated.

However, a witness need not refuse to testify altogether in order to demonstrate a violation. As the comts have

acknowledged, a witness's hesitant testimony after such threats can equally hinder the defendant's presentation.

"There is an obvious and considerable difference between the free and open testimony anticipated of a voluntary

witness and the perhaps guarded testimony of a reluctant witness who is willing to appear only at the command of

the comi." United States v. Thomas, 488 F.2d 334, 336 (6th Cir.1973). Moreover, where the State makes such

44

remarks in the jury's presence, the comments "clearly infringe[] upon the jury's credibility determining process."

United States v. Bates, 468 F.2d 1252, 1255 (5th Cir. 1972).

Here, the State's threats of criminal charges occurred not once, not twice, but tlu·ee times. These actions

individually and cumulatively deprived Mr. Reed of his right to due process and a fair trial under the Sixth and

Fourteenth Amendments of the United States Constitution.

E. The State Failed to Correct the False or Misleading Testimony from Two of Its Witnesses

The State failed to correct the false or misleading testimony of witnesses Keith Fox and Terry Denny

Matthews, denying Mr. Reed due process of law in violation of the Fourteenth Amendment. "The deliberate

deception of a court and jurors by the presentation of known false evidence is incompatible with 'rudimentary

demands of justice."' Giglio v. United States, 405 U.S. 150, 153 (1972). Where a prosecutor knowingly elicits

false testimony or "allows it to go unconected when it appears," appellant is entitled to relief if ''the false

testimony could ... in any reasonable likelihood have affected the judgment of the juty." Napue v. Illinois, 360

u.s. 264,269-71 (1959).27

1. Detective Keith Fox Falsely Testified that No One Reported that There was a Fourth Person in the Adams' Car

Evidence that there were four people in the Adams brothers' car was critical to Mr. Reed's defense. The

identification of a fourth person would explain why Clarence Powell heard gunshots from a handgun, although

sheriffs did not find any guns on the victims' bodies. It would explain how a .45 caliber pistol ended up in the

woods near Mr. Reed's house. Both of the eyewitnesses to the shooting- Daniel Jackson and Shannon Garland-

originally reported that four people arrived with the victims that night. Daniel Jackson reported this to his father-

in-law within minutes of the shooting. R. 4238. Shannon Garland repmied this in his initial statement to Caddo

sheriffs the next morning. There, Mr. Garland stated with cet1ainty there were at least four people in the Adams'

car when they pulled up to Marcus Reed's house. "There was four in it. I know that," Mr. Garland stated. R. 2213.

When asked again how many people arrived with the Adams brothers Mr. Garland verified that "[t]here was like I

said, five, four-four or five -four that I know, four in the car." R. 2219. When Marcus Reed shot his gun he was

"with the three guys standing" near the car. R. 2255.

Yet at trial, Detective Keith Fox downplayed the possible presence of a fourth person. He testified that

although the officers were searching for a fourth victim or witness during the initial hours of the investigation,

there was no fomih person. R. 4634, 4639-40. When defense counsel asked if someone repotied that there was a

fomih victim in the car, Detective Fox testified that there were not:

27 See also Tassin v. Cain, 517 F.3d 770,781 (5th Cir. 2008); Kirkpatrickv. Whitley, 992 F.2d 491,497 (5th Cir. 1993); Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997); Beltran v. Cockrell, 294 F.3d 730, 735 (5th Cir. 2002); United States v. Blackburn, 9 F.3d 353, 357 (5th Cir. 1993).

45

Q. You received information that there were four people in the car. You found three people. You were looking for a fom1h person?

A. Well, it was never specified that the fourth victim was in a car. It was just --

Q. It wasn't?

A: No, sir.

Q. Did you talk to Shannon?

A. Shannon Garland?

Q. Yes.

A. Yes, sir.

Q. Didn't he say there were four people in the car?

R. 4651 (emphasis added).

The State failed to correct this false testimony, and objected to defense counsel's attempts to impeach

Detective Fox. Id. In closing arguments, prosecutors then argued that that if there was a fourth person, the

eyewitnesses would have seen him: "Why didn't Daniel see a fom1h person? Why didn't Shannon see a fom1h

person? Because there was no fom1h person." R. 4916. The State argued that the only person who repm1ed that

there were four people was Daniel Jackson, who mistakenly believed that Shannon Garland had also been killed:

Where this whole fom1h person thing came from was what you heard about from the very first witness, James Hendrix.

He said, Daniel came over to my house screaming Marcus killed four people. And that, of course, is what Mr. Hendrix repm1ed to 911. .. That is the only place this fom1h person ever came from. Mr. Goorley has taken that and he has turned it in to a proven fact; as we all know there were four people. That's not true.

Daniel Jackson said, l said four people because after I ran Shannon was still there and I thought he had killed Shannon. That's the fourth person. That's all it is. To believe that there was a fomth person is to ignore reality and is to ignore all the evidence.

R. 4915-16.

2. Terry Denny Matthews Falsely Testified that He did not Speak to His Wife About Marcus Reed's Case

Inmate Terry Denny Matthews testified a trial that everything he knew about Marcus Reed's case came

from Mr. Reed. He denied that he ever spoke to his wife about the homicide, or that he ever said this to Detective

Keith Fox. R. 4668-69. This testimony was demonstrably false. In his recorded interview with Keith Fox, Mr.

Matthews told the Detective that he was married and that he spoke to his wife over the phone about Mr. Reed's

case before making a formal statement. As he explained in 2011,

"Now my wife heard about it, because I called her on the phone, and was like, or she come to visit me and I was tellin her on the phone- which I'm sure you all can pull all that. And I was like, this dude said he killed three people, and she was like "yeah, over an X-Box or something, they were kids." And I was like, "yeah, I never heard about that." So I never knew anything about it, but the bus ride, and when I got into the housing, when I got back from com1, I just kind of ask around and that's what their story was.

Exhibit S-2 at 14:05-14:44 (Notice Hearing, 9-23-13).

46

----~. ~ ----- -------·----

Rather than correct Mr. Matthews' false testimony on re-direct, the State exacerbated the problem. The

prosecutor questioned Mr. Matthews about his marital status while he was an inmate at the Caddo Correctional

Center, eliciting more misleading testimony:

Q. Mr. Matthews, before you were cut off you were saying something to the effect of when you spoke with someone while incarcerated you didn't even know your wife then.

A. No, ma'am.

Q. And you're speaking about the person you're married to now?

A. Yes, rna' am.

Q. When you were incarcerated at CCC, were you married to the person you're married to now?

A. No, ma'am. I wasn't married. I was with someone else for a long time, but we weren't-- no, ma'am.

MS. PRUDHOMME: Thank you.

R. 4670.

When defense counsel sought to "clarify" Mr. Matthews' testimony the State objected to any re-cross

examination. ''No. No. No surrebuttal," the State argued. !d. The court denied defense counsel's request. !d. The

State then exploited Mr. Matthews' false testimony in closing arguments. Prosecutors assured the jurors of Mr.

Matthews' credibility because "[h]e didn't know anything about this case, but he sure had a lot of details for

someone who didn't even know about this case until Marcus Donte Reed chatted him up." R. 4919.

Regardless of the witnesses' intent, Detective Fox and Mr. Matthews' false testimony violated the

precepts of Napue. This violation turns on the government's knowledge that the testimony was false or misleading

and their failure to correct it. 360 U.S. at 269. At best, the testimony described above was misleading on critical

facts that suppmied Mr. Reed's defense or his efforts to impeach State witnesses. Com1s will not "tolerate

prosecutorial pmiicipation in technically correct, yet seriously misleading, testimony," Blankenship v. Estelle, 545

F.2d 510,513 (5th Cir. 1977). Where a witness's testimony, although technically true, conveys a false impression

to the jury, a violation under Giglio and Napue has occurred. !d.

VII. THE COURT ERRONEOUSLY RESTRICTED DEFENSE COUNSEL'S EFFORTS TO IMPEACH THE FALSE OR MISLEADING TESTIMONY OF STATE WITNESS.

The trial court compounded the State's Giglio and Napue violations by shutting down defense counsel's

attempts to correct the false or misleading testimony of State witnesses. First, when Terry Detmy Matthews

testified that he did not speak to his wife about Mr. Reed's case, was not married at the time of his incarceration,

and did not tell Detective Fox that, the court denied defense counsel's request for re-cross examination to clarify

the witness's testimony. Next, when Detective Fox testified that no one ever repmied there was a fourth victim in

the Adams' car, the court denied defense counsel's attempts to impeach the witness on this point, finding that the

testimony would be hearsay. The court erred on both counts.

47

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A. The Court Erroneously Found that Re-Cross Examination was not Permitted Under the Law

Following re-direct of Terry Matthews, the trial court ruled that defense counsel was not entitled to re­

cross examination. It's "not permitted under the law," the court held. R. 4670. This legal conclusion was

incorrect. Under La. C.E. art. 611(D), "[w]hen the court has allowed a party to bring out new matter on redirect,

the other parties shall be provided an oppmiunity to recross on such matters." While the decision to permit or

deny re-cross examination is generally within the sound discretion of the trial co uti, the denial of re-cross on new

and material matters infringes on the defendant's Sixth Amendment right to confront witnesses. United States v.

Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991); United States v. Caudle, 606 F.2d 451, 457-58 (4th Cir. 1979);

O'Brien v. Dubois, 145 F.3d 16, 27 (1st Cir. 1998); United States v. Morris, 485 F.2d 1385, 1387 (5th Cir. 1973).

The trial court's denial of re-cross was not a product of sound discretion, but a basic misunderstanding of

the Code of Evidence. Earlier in the trial, the comi also denied re-cross examination of witness Clarence Powell

when the State elicited new (and misleading) testimony on re-direct. After cross-examination, the State attempted

to impeach Mr. Powell's testimony that he heard Marcus Reed fighting with the victims with his allegedly

inconsistent statement to police. In Mr. Powell's interview with sheriffs he was asked if he heard someone

"screaming and running off' right after the shooting, because other people in the neighborhood repotied this. R.

1693. Mr. Powell responded that he heard gunshots and people talking, but not anyone screaming "like on TV."

Id. "That was not Mr. Reed's voice," he said. Id.

Prosecutors took the single statement "that was not Mr. Reed's voice," to suggest that Mr. Powell did not

hear any confrontation. R. 4586. On re-direct Mr. Powell protested that he didn't know the context that he made

that statement in. "[T]here's something missing in there," he assetied. Id. The State again pushed him to admit or

deny that he made the statement and Mr. Powell responded, "I'm going to have to say no, because I don't know

what was asked." Id. The State continued, "So somebody doctored that up? That's not what you said?" R. 4586.

Mr. Powell denied making the statement because "I don't understand." R. 4587.

Following the State's examination defense counsel requested re-cross examination. "[H]e brought up

some statements that the witness made that was not brought up in cross-examination. So that's new things I should

be allowed to cross on," the defense argued. R. 4589-90. The court denied defense counsel's request for

"sunebuttal." R. 4590.

"[T]he absence of proper confrontation threatens the ultimate integrity of the fact-finding process. Thus,

to allow redirect examination on new material but to deny recross-examination on the same material violates the

Confrontation Clause." United States v. Ross, 33 F.3d 1507, 1518 (11th Cir. 1994) (citation omitted). Here the

comi's rulings restricted Mr. Reed's right to confront the witnesses against him, and allowed false or misleading

testimony to go unchallenged.

48

B. The Court Improperly Restricted Cross-Examination of Detective Keith Fox

When defense counsel attempted to impeach Detective Fox's testimony that no one ever repmied that

there was a fomih person in the Adams' car, the court sustained the State's objection that Detective Fox's

testimony would be "hearsay." R. 4651. The comi's ruling was erroneous.

Defense counsel's question did not seek to elicit hearsay testimony, but to attack the credibility of the lead

detective on Marcus Reed's case. A patiy may attack the credibility of a witness intrinsically "concerning any

matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony." La. C.E. Art.

607(C). When Detective Fox testified that no one ever repmied that there was a fourth victim in the car defense

counsel was permitted to attack his testimony with evidence that disproving its truthfulness. But even if this Court

were to find that the excluded testimony was hearsay, the trial court's ruling nonetheless violated Mr. Reed's right

to present a defense. "[W]here constitutional rights directly affecting the ascetiaimnent of guilt are implicated, the

hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers, 410 U.S. at 302. The

comi's ruling here "impermissibly impaired [Mr. Reed's] right to present a defense to the crime with which he

was charged," by excluding testimony from the lead detective that Shannon Garland reported there was a fomih

person in the car. State v. Gremillion, 542 So.2d 1074, 1078-79 (La. 1989).

VIII. THE COURT EXCLUDED TESTIMONY THAT JARQUIS ADAMS INSTRUCTED KYLE KING TO BURGLARIZE MARCUS REED'S HOME.

The defense attempted to present testimony from witness Kyle King that he burglarized Marcus Reed's house

with Jarquis Adams. As Mr. King had previously repmied to police and the grand jury, when he and Jarquis

Adams arrived at Mr. Reed's house that day, Jarquis went inside alone. He then came back to the car and told Mr.

King, "There's two amps and an Xbox in there, do you want to get them?" R. 1583. At trial the State objected to

any testimony about what Jarquis Adams told Mr. King, and the court ruled that Mr. King could not testify about

what anyone said to him during the burglary. R. 4876. The comi's ruling was erroneous. Mr. Adams's statements

were res gestae because they were made "under the immediate pressure of the occurrence," were "impulsive and

spontaneous words" and were made as pati of one continuous criminal transaction. La. C.E. art. 801(4).

Moreover, as Mr. Adams's active participation in the burglaty was the cornerstone of Mr. Reed's defense, the

exclusion of this testimony violated his rights under the Sixth and Fomieenth Amendments of the United States

Constitution and Article I, Section 16 of the Louisiana Constitution.

IX. THE STATE RELIED ON INADMISSffiLE OTHER CRIMES EVIDENCE IN THE CULPABILITY PHASE.

The State elicited improper other crimes testimony during the culpability phase of trial alleging that

Marcus Reed regularly and historically sold marijuana to several of his neighbors. Although not relevant to any

49

material fact at issue, nearly every single lay witness testified in detail about Mr. Reed's drug activities over

several months and the fact that he didn't have a "real job." This unrestrained and irrelevant testimony did not fall

within any exception under La. C.E. art. 404(B) and prejudiced Mr. Reed's right to a fair trial, due process of law

and the presumption ofi1mocence. See State v. Prieur, 277 So.2d 126, 128 (1973), U.S. Canst. V, VI, XIV.

Other crimes evidence is presumptively prejudicial because there is a "substantial risk that [it] may

detract from the constitutional right to be presumed innocent until proven guilty beyond a reasonable doubt of the

crime charged," State v. Ledet, 345 So.2d 474, 478 (La. 1974). As this Court has explained, "[i]n order for a

person to be found guilty of a crime, the state must prove beyond a reasonable doubt that the accused committed

the crime with which he stands charged, not that he may have committed it because he is a bad man who has

committed other offenses on other occasions." Id.

In order to guard against this risk of unfair prejudice, this Court requires that the State demonstrate that

the other crimes evidence "is not merely repetitive and cumulative, is not a subterfuge for depicting the

defendant's bad character o[r] his propensity for bad behavior, and that it serves the actual purpose for which it is

offered." State v. Evans, 99-1953 (La. 9/17/99), 746 So.2d 1265, 1266 (quoting Prieur, 277 So.2d at 130). The

State must establish that the evidence is "substantially relevant for some other purpose than to show the

defendant's general criminal character" in that it "tend[s] to prove a material fact genuinely at issue." State v.

Moore, 440 So.2d 134, 137 (La. 1983). It must also demonstrate that the prejudicial qualities of the incidents do

not outweigh their probative value. State v. Jackson, 625 So.2d 146 (La. 1993); La. C.E. art. 403.

In Mr. Reed's case, the State failed to meet these requirements for each of the prior bad acts that it

introduced. The overwhelming evidence of Mr. Reed's drug activity had little or no relevance to the ultimate

question of whether or not he was guilty of first degree murder. It simply characterized him as a drug dealer with

a propensity for criminal activity. The trial court's ruling admitting this testimony violated mticles 401, 403, and

404 of the Louisiana Code of Evidence, as well as Mr. Reed's right to a fair trial, due process, and reliable

determination of punishment. Mr. Reed is entitled to a new trial.

A. The State's Evidence was not Relevant to Motive

At a pre-trial Prieur hearing, the State attempted to demonstrate that Mr. Reed's drug activity provided

him with a motive to kill Jarquis Adams and his brothers. This connection between Mr. Reed's history of selling

marijuana and the subsequent homicide was strained, at best. The State was able to establish that Marcus Reed

sold marijuana to several of his neighbors in the Four Forks area, including Glen Menell, R. 3085, Shannon

Garland, R. 3022, 3087; and Bridgette Garland R. 3022, 3088-89. Detectives testified that all three witnesses

contacted Mr. Reed about buying marijuana on the day of the homicide. R. 3087, 3088-89.

50

Detectives also alleged that the victim, Jarquis Adams, had purchased marijuana from Marcus Reed in the

past. R. 3102. However, no witness reported to detectives that they saw Mr. Adams purchase marijuana on the

day of the homicide. Id. Indeed, as is borne out by Kyle King's statement to police, when Mr. Adams came to

Marcus Reed's home on the day in question he did not purchase drugs- he found the house empty and decided to

burglarize it. R. 1586, see also 4880 (Kyle King's trial testimony). Detective Fox twice testified at the Prieur

hearing that there was no evidence that the subsequent shooting was connected to marijuana:

Q: [By Counsel for the Defense]: Okay. Were you above to get any evidence, other any evidence that they were killed in relationship to some drug activity?

A:No.

R. 3073-74.

Q [By Counsel for the State]: Okay. Did you receive information from anyone, and if so, what is their name, that this shooting was over drugs?

A: I didn't get any information that it was over drugs.

R. 3077-78.

Notwithstanding this testimony, the State argued that the other crimes evidence was admissible under

404(b) to prove "intent" because "[t]his is a drug deal or dmg mishap gone bad and three people are now dead."

R. 3115. The State further argued that the evidence was relevant to prove "absence of mistake," because it would

show that Jarquis Adams bought marijuana from Marcus Reed in the past. "Jarquis Adams is not some stranger

just coming upon Mr. Reed and in an effort to protect his home or his property, I've got to shoot this threatening

person," the State argued. R. 3114. The State claimed the evidence was "not just to show that Mr. Reed

supposedly is a drug dealer or does drugs or has people in or around his home consuming drugs." R. 3113.

The court concluded that evidence of Mr. Reed's various drug activities established a motive for the

shooting and was admissible under 404(b ). R. 3141.

The comt's ruling was in error: evidence of Mr. Reed's alleged drug activity was not relevant to motive.

Relevance requires a showing that the evidence at issue "tends to prove a material fact genuinely at issue." State

v. Ledet, 345 So.2d 474, 478 (La. 1977). In cases where the asserted relevance of evidence is motive, this Court

requires that the State demonstrate a specific nexus between the acts at issue and the charged crime. Motive "must

be more than a general one, such as gaining wealth .... [i]t must be a motive factually peculiar to the victim and

the charged crime." State v. Sut.field, 354 So.2d 1334, 1337 (La. 1978).

The State presented no evidence at trial that the homicide was "a drug deal gone bad." Both the State and

the defense argued that the impetus for the homicide was Jarquis Adams's burglary: The defense argued that Mr.

Reed shot the victims to protect himself from a second forcible felony and the State argued that he shot them out

51

ofrevenge.28 Kyle King, the only witness to Jarquis Adams's burglary, made no mention oftaking marijuana. He

testified that he and Jarquis stole "two amps and an Xbox 360" from Mr. Reed's home, R. 4879. There was even

conflicting testimony from the State's own witnesses about whether marijuana was stolen from the house at all,

and no witness singled drugs out as a motive for the shooting.29

Regardless, the State did not limit its other crimes evidence to a single allegation that Jarquis Adams stole

drugs from Mr. Reed's home. The State asked nearly every single lay witness extensive questions about their drug

transactions with Mr. Reed. It asked about the role that the marijuana sales played in the witness' friendships with

Mr. Reed. R. 4373, 4451. It asked the witnesses how long they'd been purchasing marijuana from Mr. Reed, R.

4451, 4487, 4592-93, how regularly they purchased marijuana from Mr. Reed, R. 4373-74, 4593; and how much

money they spent on marijuana they purchased from Mr. Reed. R. 4593-94, 4488, 4503-07. The State asked the

witnesses whether they knew of Mr. Reed selling marijuana to other people in the area. R. 4487, 4593. It asked

whether the sales were Mr. Reed's sole source of income, or whether he had a "regular job." R. 4487-88, 4593.

These incidents variously took place over the course of several months, not just on the day of the

homicide, and had no connection to the burglary or the Adams brothers. The evidence was clearly designed to

characterize Mr. Reed as a drug dealer- an individual who regularly broke the law, several times a week, over the

course of the past year. As this Court has held, if "the other crimes evidence does not tend to show a motive to

commit this patticular crime against this particular victim, it merely shows a character trait and is inadmissible

character evidence." State v. McArthur, 97-2918 (La. 10/20/98), 719 So.2d 1037, 1042.

B. Evidence of Past Drug Activity was not Relevant to Disprove Justifiable Homicide

While the State did not argue, and the trial comt did not find, that Mr. Reed's past drug activity impacted

the applicability of La. R.S. 14:20 to this case, the issue is easily disposed of.

As an initial matter, the State did not present any evidence that Mr. Reed was engaged in unlawful

conduct at the time that the shooting took place. While witnesses reported that individuals at the house smoked

marijuana earlier in the evening, R. 4376, and that they unsuccessfully attempted to buy marijuana that day, R.

28 In its opening statement, for example, the Defense argued that "[e]arly in the day on August 16th, 2010, Jarquis Adams broke in to the home of Marcus and Loshun violating their safety and security, burglarizing their home" and that "[l]ater that day, that night when it got dark, Jarquis Adams went back." R. 4218. In its closing argument, the State, too, argued that the burglary occurred: "But of course Marcus Reed had a good reason for all this, because somebody had the gall to break into his house and take an Xbox, two amplifiers, and some marijuana." R. 4886

29 Daniel Jackson testified that Marcus said the burglars stole "Two amps, an XBox, and some weed." R. 4293. The amps and the X-box belonged to Mr. Reed, but Mr. Jackson didn't know who the drugs belonged to. R. 4294. Bridgette Garland also testified that she heard Marcus say that the burglars took "[h]is marijuana, a speaker, and an XBox." R. 4598. However, Shannon Garland testified that he was sitting on Mr. Reed's porch with this same group of people and never heard Mr. Reed mention that someone broke into the house. R. 4380. Glen Merrell also testified that he spoke to Mr. Reed about the break-in, but made no mention of drugs being stolen. R. 4493.

52

4375-76, these activities had ceased by the time the Adams brothers arrived. Bridgette Garland and Loshun

Jackson were driving to the store to buy beer, R. 4322, 4378, Daniel Jackson and Shannon Garland were repairing

the sound-system of his car, R. 4323-24, and Mr. Reed was standing somewhere around the house or property

when the Adams's car approached. R. 4324,4383-84.

Regardless, the protections of La. R.S. 14:20 (A)(1), (2), and (3) apply to a defendant even if he is

engaged in criminal activity. Only the protections of paragraph La. R.S. 14:20 (A)(4) would "not apply when the

person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of,

or possession of, with intent to distribute a controlled dangerous substance," La. R.S. 14:20(A)(4)(b).

Moreover, as the Fomth Circuit Comt of Appeal recently found in State v. Wells, the 2006 amendments to

the justifiable homicide statute apply with equal weight to do defendants who may be engaged in "unlawful

activities" at the time of the homicide. The addition of 14:20(D) "explicitly and pategorically prohibits the jmy

from considering the possibility of the killer's retreat in order to determine whether the killing was 'necessary' to

save the killer's own life." State v. Wells, 13-2539 (La. 1115/14); 131 So. 3d 839 (La. App. 4 Cir. 7/11/2014). The

court's finding followed this Court's recent opinion in State v. Wilkins, 13-2539 (La. 1/15/14); 131 So. 3d 839,

840 ("The overall effect ofthe 2006 amendments was thus to supplant a jurisprudential rule so deeply entrenched

in Louisiana law that some decisions continue to adhere to it to this day.").

Finally, the State's pre-trial argument that evidence of drug activity was necessary to demonstrate Mr.

Reed's familiarity with Jarquis Adams does not stand up. R. 3114. Mr. Reed's knowledge of Jarquis Adams was

not a material fact at issue. Indeed, his prior contact with Jarquis was the cornerstone of Mr. Reed's defense and

was necessary to demonstrate the reasonableness of his actions. It was Mr. Reed who presented evidence, over

the State's objection, that Jarquis Adams came to his house on the day of the homicide and then decided to

burglarize it. It was Mr. Reed who presented evidence that Jarquis planned to return to the house and commit a

second burglary. And it was Mr. Reed who attempted to elicit testimony that Jarquis Adams called him

threatening to come back. Evidence that Mr. Reed allegedly sold marijuana was not relevant to establishing any

genuine issue of material fact.

C. The Evidence was Unfairly Prejudicial

After a comt has found that bad acts evidence is relevant, it must still conduct an inquiry balancing

prejudice and probity, and "if the prejudicial effect outweighs the probative value of evidence of other offenses,

such evidence should be excluded." State v. Moore, 278 So.2d 781, 788 (La. 1973). See also La. C.E. art 403.

Evidence of Mr. Reed's alleged patticipation in drug activity should have been excluded because its unfairly

prejudicial effect far outweighed any probative value it provided jurors.

53

The sheer volume of the State's evidence created an unfair risk that jurors would give "excessive weight

to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to

take the proof of it as justifying a condemnation irrespective of guilt of the present charge." Prieur, 277 So.2d at

128, citing I Wigmore, Evidence§ 194 (3rd Ed.). Jurors were inundated with testimony about how often Mr. Reed

sold marijuana, how much, and to whom. The State capitalized upon the prejudicial qualities of this evidence in

closing statements, refetTing to Mr. Reed as a "drug dealer" who "makes his living selling marijuana," R. 4886,

and describing those who had been present with him on the day of the shooting as "people whose lifestyle put

them right in the middle of the mud." R. 4919. In essence, the State argued that because Mr. Reed was a bad man,

who had sold marijuana, that he did not deserve either the presumption of innocence or the benefit of the doubt.

By the time jurors retired to deliberate, they had a clear picture of a man with a long and consistent

history of undeterred criminal conduct. It cannot be said that the jury's verdict was surely unattributable to this

impression. La. C.Cr.P. art 921; State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 100-01 (holding that

errors leading to improper admission of evidence subject to harmless-error analysis; error harmless if verdict

"surely unattributable" to error). Mr. Reed is entitled to a new trial.

X. THE STATE RELIED ON INADMISSffiLE OTHER CRIMES EVIDENCE IN THE PENALTY PHASE.

In its penalty phase case-in-chief, the State presented testimony about Marcus Reed's prior bad acts that

was entirely and explicitly prohibited under this Court's holding in State v. Jackson, 608 So.2d 949 (La. 1992).

The State introduced testimony that Marcus Reed attempted to bring contraband into the Caddo Parish

Correctional Center- an unadjudicated and non-violent offense. Jackson at 955. The State presented evidence of

Mr. Reed's prior conviction for illegal use of a weapon through testimony of the arresting officer, not a victim or

eyewitness to the offense. Jackson at 954. As nearly one hundred percent of the State's presentation was

inadmissible under clear state and federal jurisprudence and violated Mr. Reed's right to confront his accusers, his

sentence of death must be reversed.

A. The State Introduced Evidence Relating to Mr. Reed's Prior Conviction through the Testimony of an Arresting Officer

On May 17, 2011, the State notified defense counsel of its intent to introduce evidence in the penalty phase

of Mr. Reed's prior conviction for illegal use of a weapon. R. 815, 900-04. A hearing pursuant to State v. Jackson

was held on June 13, 2012. Supp. R. at 5.30 There, the State presented the testimony of the arresting officer,

Detective Rod Demery.

30 Several motions were addressed during the hearing on June 13t11• Transcripts relating to three motions were

transcribed for the original record on appeal. The remainder of the transcripts from that day were later lodged with this Court in a supplemental record.

54

Detective Demery testified that on October 15, 2007, Mr. Reed and his wife were driving near Hollywood

Street in Shreveport when a man in another car cut them off. Supp. R. at 6-7. Mr. Reed and the man had "angry

words" at the intersection. Supp. R. at 7. The man then produced a handgun and fired shots at Mr. Reed and his

wife.Jd. Mr. Reed responded by firing two shots into the side of the man's car with a small handgun. Supp. R. at

7-8. When Mr. Reed drove off, the man followed him, shooting at the back of his car. Supp. R. at 9. When

questioned by officers, the occupant of the other car - Terrance Williams - reported that he did shoot into the

back of Mr. Reed's car, but only did so after Mr. Reed shot into the side of his car first. Supp. R. at 8-10.

Detective Demery further testified that after the incident, Mr. Reed drove to his cousin's house nearby and

obtained an SKS rifle "in case of problems." Supp. R. at 9. When he saw police officers in the street, Mr. Reed

flagged them down and told them what happened. Id. Mr. Reed, his wife, and Mr. Williams were all charged with

illegal use of a weapon. Supp. R. at 10.

Detective Demery was not present on the scene and did not witness this incident. The only repmted

witnesses were the pa1ticipants, and two women named Latoya Ellis and Latoya Simmons. Supp. R. at 16-17.

Detective Demery surmised that these women may have been employees at a Church's Chicken near where the

shooting occurred. Supp. R. at 17. Detective Demery was also not a victim of the shooting. On cross-examination,

defense counsel asked the detective who the victim of the shooting would be:

Q. The only victim was Mr. Marcus Williams?

A. No. Actually--

Q. Who were the other victims?

A. -- the victim was the State of Louisiana. The illegal use of weapon there is no specific -­we didn't list a specific victim. If that were the case, they would be victims against each other. I believe the officer who wrote the initial report listed himself as the victim.

Supp. R. at 11-12.

The State objected that this line of questioning was not relevant. Defense counsel argued that it was

relevant because State v. Jackson limits admissible testimony to the actual victims of the offense. Supp. R. at 12.

The State responded,

Should this case go to a penalty phase, then, of course, ·we would introduce all the witnesses in the case, including the victims. But for this purpose for today it is not necessary that we do that.

Supp. R. at 13 (emphasis added).31

The district court ruled that evidence relating to Mr. Reed's conviction for illegal discharge of a weapon

met "the criteria of the Supreme Court Jackson case in all respects" and was therefore admissible in Mr. Reed's

31 The State also offered into evidence the bill of information charging Mr. Reed, the certified minutes of his guilty plea, and the fingerprint attachment sheet. Supp. R. at 19. Officer Owen McDonnell testified that the fingerprints taken from Marcus Reed after his conviction matched that of the defendant. Supp. R. at 20-22.

55

penalty phase, should a penalty phase occur. Supp. R. at 25.

By 2013, Judge Katherine Dorroh was presiding over Mr. Reed's capital trial. Despite the State's assurance

to the previous judge that it would introduce evidence of Mr. Reed's conviction tlU"ough the victims or

eyewitnesses to the shooting, it failed to do so at trial.

On the first day of the penalty phase of Mr. Reed's trial, the State notified defense counsel and the court

of its intent to call only Detective Demery in its case in chief. R. 4972. Defense counsel immediately objected to

the arresting officer's testimony, arguing- for the second time- that if the State intended to introduce the facts of

the offense it must do so through the testimony of "the person [] involved in that offense to prove that offense was

committed." R. 4973.

Disregarding the precepts of State v. Jackson, the trial comi ruled that Detective Demery's testimony was

admissible. !d. As to defense counsel's complaint that the State had to present this evidence through the testimony

of the victim, the comi responded:

That's your call. If you want to call him, you're free to do that.

R. 4973.

Over defense objection, Detective Demery testified at length about the shooting. R. 4996-5008. His

testimony relied on hearsay statements from witnesses at the scene, R. 4997-98, 5004, reports of other patrol

officers, id., a description of court proceedings that he was not present for, R. 5000-01, and his interviews with

Marcus Reed, his wife, and the other shooter. R. 4997. Detective Demery's memory of his personal conversation

with Mr. Reed was often times spotty. R. 4999 ("I don't remember the time frame"); R. 5000 ("I don't remember

the entire conversation"); R. 5005 ("I don't remember the details of why he went to get the SKS; I just know he

did it. I don't remember the conversation"). However, he painted a detailed picture of a man who put the lives of

Caddo citizens in danger because someone cut him off in traffic.

1. Detective Demery's Testimony was Inadmissible Under State v. Jackson

Detective Demery's testimony in its entirety was inadmissible under the clear guidelines set forth by this

Comi in State v. Jackson and its progeny. In Jackson, this Comi recognized the unfairly prejudicial qualities that

prior convictions can have when introduced at the capital phase of a trial, and concluded that "[b ]ecause evidence

of every conviction, no matter how minor the crime, may tend to inject an arbitrmy factor into the hearing, some

limitations are necessary." 608 So.2d at 954.

Where the State intends to introduce a prior conviction, this Comi has limited the evidence to only "the

document certifying the fact of conviction and ... the testimony of the victim or of any eyewitness to the crime."

!d. (emphasis added), State v. Manning, 03-1982 (La. 10119/04), 885 So.2d 1044, 1092. The testimony of a police

officer such as Detective Demety "qualifies as hearsay under LSA-La. C.E. 801(C), and thus does not qualify as

56

competent and reliable." State v. Sanders, 93-0001 (La. 11/30/94), 648 So.2d 1272, 1290. The testimony of any

law enforcement officer who did not witness the criminal conduct is inadmissible.

In Jackson, this Comt also "specifically prohibit[ ed] evidence of the original charge when the conviction

is for a lesser offense." 608 So.2d at 954. The admission of witness testimony relevant to a more serious charge

than the defendant pleaded guilty to "risks juror confusion and arbitrary sentencing recmmnendations." State v.

Langley, 94-0999 (La. 4/28/94), 639 So.2d 211, 212; Sanders, 648 So.2d at 1289-90.

Finally, the State must provide notice of its intent to introduce such evidence "well in advance of trial."

State v. Comeaux, 93-2729 (La. 7/2/97); 699 So.2d 16, 22. Such notice must be "sufficiently detailed to allow the

defendant to know the exact unrelated conduct he must be prepared to meet in the sentencing hearing and

sufficiently in advance of trial to allow reasonable preparation .... " Jackson, 608 So.2d at 957.

The trial comt's ruling here violated each of these enumerated guidelines. Notwithstanding its earlier

pledge to defense counsel and Judge Crichton, the State did not present the testimony of a victim or eyewitness to

the shooting at the penalty phase. Detective Demery's testimony far exceeded the mere fact of Mr. Reed's prior

conviCtion, and it detailed specific events that he did not witness. The allegations presented through Detective

Demery were also consistent with a far more serious offense than illegal use of a weapon under La. R.S.

14:94(A).32 Detective Demety alleged that during the incident bullets entered a nearby restaurant while customers

and employees were inside. An employee at the Church's Chicken or Popeye's Chicken "called the police; said

that she and the other employees got on the floor after the firearms or the bullets went tlll'ough the building." R.

4997-98. The patrol officers "discovered that Mr. Reed and another individual got into a shoot-out." R. 4997. At

a minimum, these allegations were consistent with 14:94(E)- an offense which Mr. Reed was not charged with or

convicted of. Indeed, Detective Demety's testimony at the pre-trial hearing demonstrates that the bullets that

allegedly entered the Church's Chicken likely came from Terrance Williams's gun, not Mr. Reed's. While Mr.

Reed fired two shots into Mr. Williams's car and drove off, Mr. Williams followed Mr. Reed and his wife through

the streets of Shrevepmt, firing several shots into the back of their car.

2. The Trial Court's Ruling Violated Mr. Reed's Right to Confront his Accusers

"In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses

against him." U.S. Canst. amend. VI. The Confrontation Clause of the Sixth Amendment prohibits the admission

32 Illegal Use of a Weapon under 14:94(A) is defined as:

Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.

Mr. Reed pleaded guilty, and was sentenced to eighteen months at hard labor suspended, and 12 months of probation, pursuant to La. R.S. 14:94(C). R. 5003.

57

of testimonial hearsay unless the witnesses are unavailable and the defendant has had a prior opp01tunity to cross-

examine them. Crawford v. Washington, 541 U.S. 36 (2004). Although the United States Supreme Comt has yet

to address whether a defendant retains his constitutional right to confrontation in the penalty phase of a capital

trial, several comts have found that he does. See Pitchford v. State, 45 So. 3d 216, 252 (Miss. 201 0), Rodgers v.

State, 948 So. 2d 655,663 (Fla. 2006), State v. Carr, 331 P.3d 544,723 (Kan. 2014), State v. Bell, 603 S.E.2d 93,

115-116 (N.C. 2004), Russeau v. State, 171 S.W.3d 871, 880-81 (Tex. Crim. App. 2005).

As Detective Demery relied on the reports of witnesses that Mr. Reed had no opportunity to confront, the

introduction of the other crimes evidence violated Mr. Reed's right to confrontation and a fair and reliable

sentencing hearing under the Sixth, Eighth and Fourteenth Amendments.

B. The State introduced Allegations of an Unadjudicated and Nonviolent Prior Bad Act

Less than three weeks before trial, the State filed a Supplemental Notice of Intent to Use Other Crimes

Evidence at the Sentencing Hearing. R. 1994. The State gave notice that it intended to introduce evidence in the

penalty phase that Mr. Reed "made phone calls while being housed at Caddo Correctional Center to outside

individuals in an eff01i to bring in contraband." I d.

A hearing pursuant to State v. Jackson was held on the first day of jury selection. R. 3206. There,

Detective Terry Richardson testified that in the course of investigating another inmate, Bryant Thomas, he

listened to recorded telephone calls from the Caddo Correctional Center that suggested to him that Marcus Reed

was attempting to bring contraband into the facility. R. 3208-09. The calls were made on Mr. Thomas's "SO

number," but Detective Richardson recognized Marcus Reed's voice. "We didn't know what was being passed,"

he explained. R. 3211. Money was not discussed on these phone calls, nor did anyone on the phone call name a

"particular illicit substance." The callers used "code words" on the calls. R. 3215-16. However, it was Detective

Richardson's opinion that Mr. Reed was talking to his family members "about possibly narcotics being brought

in." R. 3214.33 Detective Richardson admitted that he had no evidence that Mr. Reed brought contraband into the

jail, or that one of his family members ever attempted to bring contraband into the jail. The entire facility was

under video surveillance at that time. R. 3228-31.

Over defense objection, the comt held that Detective Richardson's testimony was admissible in the

penalty phase because it was "relevant to the defendant's character." R. 4969-70. The comi elaborated:

33

I will state that the penalty phase, the rules are very broad about evidence that can come in concerning the defendant's character, because the defendant's character is in fact the issue, one of the issues.

On cross-examination Detective Richardson conceded that earlier in one of the calls the man he identified as Marcus Reed asked the caller if he could send him a "couple hundred dollars because he needed shoes." R. 3222. However, Detective Richardson stated his opinion that Mr. Reed said he needed something, he was not talking about "somebody coming to put

money on their books at an ATM machine in the lobby." !d.

58

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R. 4971.

Detective Richardson testified at length in the penalty phase about Mr. Reed's attempts to bring

contraband into the jail, and Detective Richardson's personal suspicions that this contraband would have been

drugs. R. 5009-20. Despite these suspicions, no correctional officer ever seized contraband of any kind from

Marcus Reed or his family. R. 5023.

Like Detective Demery's testimony, the whole of Detective Richardson's testimony was inadmissible

under State v. Jackson. In Jackson, this Comi established limitations on unadjudicated "prior bad acts" presented

at the penalty phase of a capital trial. These limitations were this Court's effoti to "insure that due process is not

violated by the injection of arbitrary factors into the jury's deliberations and to prevent a confusing or

unmanageable series of mini-trials of unrelated and unadjudicated conduct during the sentencing hearing." 608

So.2d at 955.

This Comi mandated that in order to be admissible, evidence of unadjudicated criminal conduct must

concern an offense that "involves violence against the person of the victim." Jackson, 608 So.2d at 955 (emphasis

added). "The propensity to commit first degree murder is the focus of the capital sentencing hearing," this Court

explained, and "[w]hile crimes of violence against the person indicate moral qualities and character traits pertinent

to the propensity to commit first degree murder," other non-violent offenses are "not necessarily probative of that

propensity and are less relevant in a capital sentencing hearing." Id. Detective Richardson's testimony regarding a

possible attempt to smuggle in contraband violated Jackson's explicit mandate. The offenses alleged were

unadjudicated, and in no way involved "violence against the person of the victim."

Moreover, the State presented scant evidence that Mr. Reed attempted to bring anything into the facility,

let alone narcotics. Prior to trial, counsel sought to prevent the state from sentencing Mr. Reed to death based

upon evidence not proved beyond a reasonable doubt. R. 920-24. Counsel argued that the admission of other

crimes evidence not previously proven beyond a reasonable doubt in a jury trial violate the Sixth Amendment. I d.

The trial comi denied the motion, Supp. R. at 65, and Mr. Reed was sentenced to death based upon claims that

Mr. Reed patiicipated in a conspiracy to introduce contraband. Counsel maintains that Mr. Reed should not be

sentenced to death based upon allegations not proven beyond a reasonable doubt, and that this Court's decision in

State v. Jackson allowing the state to proceed on a lesser standard of proof is unconstitutional. See Ring v.

Arizona, 536 U.S. 584 (2002) and Apprendi v. New Jersey, 530 U.S. 466, 494 (2000). However, even under this

Court's Jackson juris prudence, the introduction of this evidence was error requiring reversal.

59

C. The Testimony was not Harmless

The testimony of Detectives Demery and Richardson made up the greater part of the State's penalty phase

presentation. Their testimony was met with the highly emotional testimony of Marcus Reed's father, uncle, aunt,

cousin, spiritual advisor, and young children. All of Marcus's family members told a consistent story of a man

who cared for his children and all of those around him. His step-daughter Kiandra testified that,

He's always been there. I didn't have my biological father. And, like, he's always been there, so that's my father. .. He raised me. From the time I was two he took me in and-- I mean, he's a great guy. He's a great father.

R. 5050.

She explained that even if Mr. Reed was sentenced to life in prison she could always visit him and write

him because "This is the guy who has always been there for me." R. 5051. Marcus's uncle testified consistently

that Marcus had always cared for the children around him. "I know he loved kids ... When I went by his house to

check with him and check with his family, he fixed dinner for the kids, took care of them, changed their clothing

for them, you know, made sure they was doing their homework," he testified. R. 5067.

Marcus's sixteen year-old cousin Whitney told jurors that Marcus was like "the big brother that I never

had, because he was always there for me and he like kept me out of trouble," R. 5080. Whenever Whitney did

poorly in school Marcus would help her and say that "it's not good to do what I was doing and that it would hurt

my parents, you lmow, what I was doing." R. 5081. She asked the jury to spare Marcus's life because,

[H]e still has a purpose. And it would affect -- I know it affected other families, but it would really affect ours, too. And I would really ask if he could still have his life.

R. 5082. Marcus's young son Cameron testified about his father, how he's good to other people and takes care of

him and his siblings. R. 5083-84. When defense counsel told Cameron that he looked like his father, he

responded, "He try his best to look like me." R. 5084. Cameron testified that his little brother visited Marcus in

jail and told him "if he could he'll break my dad out of jail" because "he loves his daddy." R. 5084

In closing arguments the State urged jurors to ignore these witnesses' pleas because Marcus Reed was

only interested in "self-preservation":

This penalty phase is not about Marcus' son; it's not about his daughter, his little cousin, his uncles, his minister, his aunt ... And the truth is as each of them testified yesterday and my heart went out to them, I wanted to ask them one question: Do you really know who you're up here testifYing for? Because the person they described is not the person that was introduced to you on Saturday.

R. 5100-02.

The State argued that although Marcus's family did not know the truth, R. 5102-03, the jurors had seen

evidence of his "consistent" criminal behavior. This behavior could not be stopped by the prison walls:

[W]hat' s he been trying to do while he's in jail? Set up contraband exchanges. The detective told you that based on his experience, drugs and money, based on the language that was used.

60

----- ------

Consistent. Selling drugs on the outside; selling drugs on the inside. He stops at nothing. There's no stopping this man .

. . . He sacrifices everybody for himself. I don't care if I get my cousin involved; I don't care if I get my brother David involved; I need my stuff.

The detective used a different word. Remember when he said, Oh, I tried it; this is good. It's drugs. He stops at nothing. Rehabilitation is not suitable for him.

R. 5108-09 (emphasis added).

The State further urged jurors to consider Mr. Reed's disregard for the innocent bystanders when he got

into a gun battle with Terrance Williams in2007. It argued that this, too, was consistent with his character:

But what is Marcus doing at 4:20 during the day? He's shooting out of his vehicle, putting other people's lives in danger, wherein which the detective told you the person that called 911 said a bullet just went through the window at this restaurant I'm at and we've all hit the floor. An innocent bystander. That's what Marcus did This is what Marcus does.

R. 5107 (emphasis added).

The State argued that the mitigating circumstance of "no significant prior history of criminal conduct"

did not apply to Mr. Reed. Indeed, it was Marcus Reed's "character" to "slaughter" a motorist who cuts him off in

traffic- just like he murdered the Adams brothers. R. 5121-22, 5106-08.

Given the extent of the improper evidence presented, and the State's exploitation of that evidence in

argument, it cannot be said that the "the death penalty in this case was surely unattributable to the improper

admission of evidence at the penalty phase." State v. Sanders, 93-0001 (La. 11/30/94), 648 So.2d 1272, 1291.

XI. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR FIRST DEGREE MURDER AND DEATH SENTENCE

While there was clearly sufficient evidence that Marcus Reed shot the three victims, the critical question

before the jury was whether the homicide was justified. "When the accused assetts justification as a defense to

murder, the state bears the burden of proving beyond a reasonable doubt that the killing was not justified." State v.

Matthews, 464 So.2d 298, 299 (La. 1985); see also State v. Patterson, 295 So.2d 792 (La. 1974). When reviewing

the sufficiency of the evidence, "the relevant question is 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Higgins, 03-1980 (La. 4/l/05), 898

So.2d 1219, 1226.

Viewing the evidence in a light most favorable to the prosecution, no rational juror could have found that

Marcus Reed did not reasonably believe that the man who just burglarized his house and was returning at 10:00

p.m. with a car load of people, intended to cause him great bodily hann, to commit a forcible felony, or to commit

a second burglary. La. R.S. 14:20 (A)(l)-(3). Under the unique circumstances of this case, the State presented

insufficient evidence that the homicide was not justified.

61

A. The State Presented Insufficient Evidence to Prove that the Homicide was not Justified

The circumstances of this homicide created a reasonable belief that lethal force was necessary under La.

R.S. 14:20. A homicide is justifiable when it is:

(1) ... 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 necessaty to save himself from that danger.

(2) ... committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessmy for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

(3) ... committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.

La. R.S. 14:20(A).

The danger to the defendant need not be real in order for his actions to be justified under A(l). Nor is it

necessary that a felony was in fact about to be committed under A(2) and A(3). The defendant need only have a

reasonable belief that either he is in imminent danger, or that the victims are about to commit a forcible felony or

a burglmy. While the "reasonable belief' principal was codified in La. R.S. 14:20, it has long been recognized in

Louisiana jurisprudence. h1 the 1936 case of State v. Boudreaux, the Court held that the substance of the

justifiable homicide law provides that a lethal force is justified:

When, from the nature of the attack, there is reasonable ground to believe there is a design to destroy the life of the accused, or commit any known felony on his person ... And again: 'A man may repel force by force, in defense of his person, habitation, or property, against one who manifestly, by violence or surprise, attempts to commit a felony, such as murder, robbery, etc. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger; and, if he kill him in so doing, it is justifiable homicide.

185 La. 434, 440 (La. 1936).34

Kyle King's testimony demonstrated that Jarquis Adams was planning a second burglary or a forcible

felony at Mr. Reed's house. Mr. King testified that Jarquis broke into Mr. Reed's house earlier that day. 4874-79.

He testified that Jarquis told him that he wanted to return to steal more items. 4879-80. Mr. King was the only

testifying witness who spoke to Jarquis Adams on the day of the homicide, and his testimony was consistent with

his initial reports to law enforcement. SeeR. 223-24, 1586.

34 See also State v. St. Geme, 31 La. Ann. 302, 304 (La. 1879) (holding that the court's instructions were proper where they left the question of the defendant's "reasonable ground to believe" to the jury); State v. Chandler, 5 La. Ann. 489, 490-91 (La. 1850) (holding that if there is an attack "of such a nature as to afford reasonable ground to believe that the design is to destroy life or to cotrunit a felony upon the person assaulted, the killing of the assailant in such case will be justifiable homicide in self-[ defense].")

62

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If credited by the fact-finders, Clarence Powell's testimony demonstrated that Mr. Reed had a reasonable

belief that he was in imminent danger, or that lethal force was necessary to prevent a forcible felony. Mr. Powell

testified that there was a confrontation between Mr. Reed and the Adams brothers. R. 4575. He testified that Mr.

Reed told the Adams brothers to leave him alone. Id. He testified that two different types of guns were fired - a

pistol and a rifle. R. 4541. Caddo Detective Keith Fox testified that he was told that there may be a fourth victim

or witness, and that his officers searched the area for the fourth man. R. 4639. Detective Fox testified that he

found a .45 caliber pistol in the woods new Mr. Reed's house, R. 4649, and that he heard gunshots near the scene

shortly after he arrived. R. 463 9. Both of the State's eyewitnesses admitted at trial that they originally repmied to

sheriffs there were four people in the Adams brothers' car. While Shannon Garland testified that he "lied" in his

initial repmi, Daniel Jackson testified that there could have been four people in the car. R. 4350, 4448.

Yet even if the jury rejected all of Mr. Powell's testimony, and the testimony about a fomih man in the

car, the evidence presented at trial was insufficient. The State conceded at trial that Jarquis Adams burglarized

Marcus Reed's house on the day of the homicide. Virtually all of the State's witnesses testified that Mr. Reed's

house stood at the end of a long driveway, that it was very dark when the Adams brothers anived- so dark that

the witnesses could barely see down the driveway. R. 4413, 4242, 4245-46, 4246, 4301, 4323, 4379-80, 4413.

The Adams brothers drove all the way up to Mr. Reed's house before he fired his gun. R. 4346-47. While La. R.S.

14:20 does not give a citizen authorization to kill any person who may be committing a felony, the evidence

presented at Mr. Reed's trial demonstrated beyond a reasonable doubt that lethal force was justified.

B. The State Presented No Evidence that Mr. Reed "Brought on the Difficulty"

While the State argued at trial that Marcus Reed "lured" the Adams brothers to his house, R. 4889, and

the jury was instructed on § 14:21, R. 4955, the State presented no evidence to support this theory. The State relied

on the testimony of Bridgette Garland that Marcus Reed called someone named "Radio" and told him to come to

the house. Ms. Garland could not identify who "Radio" was, other than the fact that he was a man. R. 4599. In

fact, when Ms. Garland testified about this phone call before the Grand Jury she did not mention the nickname

"Radio," or make any connection between the phone call and the victims. She merely testified that she heard

Marcus tell "somebody to hurry up and get over there because he was about to be out of pocket." R. 203 7.

The State surmised that the phone call Bridgette Garland overheard was made to Jarquis Adams.

Prosecutors assured the comi that "we will later know [Radio] as Jarquis Adams," R. 4600. No such evidence was

ever presented. No witness ever identified Jarquis Adams as "Radio." Indeed, Daniel Jackson testified that Jarquis

Adams did not go by a nickname. R. 4317. Unable to keep its own unsupported theory straight, the State even

asked Mr. Jackson if Jarquis Adams went by the name "Rodeo" and he testified that he did not. R. 4296.

63

The State's theory that Marcus Reed "lured" Jarquis Adams to his house just to murder him in his own

driveway (and that Mr. Adams willingly returned, unarmed, without any unlawful intent) was implausible and

unsuppmted. "[T]he due process standard of review under Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, does not

sanction juror speculation if the evidence is such that a reasonable factfinder must have a reasonable doubt."

Higgins, 898 So.2d at 1232. As the prosecutor's arguments cannot be considered evidence, no reasonable juror

could infer that Marcus Reed invited the Adams brothers back to his home.

C. Even if Sufficient to Preclude a Finding of Justifiable Homicide, the State's Evidence was Insufficient to Support a Verdict of First Degree Murder

The State's witnesses testified that after Marcus Reed discovered the burglmy of his house, he was vety

upset. R. 4369, 4660. They testified that when the Adams brothers arrived back at the house, Mr. Reed

immediately shot and killed them. R. 4302-03, 4385. Shannon Garland testified that the shooting was so rapid, it

was like a "video game." R. 4385. Even if the jury rejected the testimony of Clarence Powell and Kyle King in its

entirety, and accepted the testimony of Daniel Jackson and Shannon Garland, the evidence presented at trial

nonetheless made out a case for manslaughter, not murder.

Manslaughter is defined as:

A homicide which would be murder under either Atticle 30 (first degree murder) or Atticle 30.1 (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 jmy 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

La. R.S. § 14:31.

Jarquis Adams's actions on the day of the homicide, including his decision to return to Mr. Reed's house

at 10:00 p.m. with a car full of people, would have deprived an average person of self-control and cool-reflection.

According to the State's witnesses, Mr. Reed acted immediately, leaving no time for his blood to cool. "[A]

rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could only have found

defendant guilty of manslaughter." State ex rei. Lawrence v. Smith, 571 So.2d 133, 136 (La. 1990); State v.

Lombard, 486 So.2d106 (La. 1986).

D. The Unreliability of the State's Witnesses Precludes a Conviction for First Degree Murder and the Imposition of the Death Penalty

Although a conviction based on eyewitness testimony is generally sufficient, this Court has reversed

convictions where the eyewitness testimony presents "internal contradiction or irreconcilable conflict with the

physical evidence," or "numerous eccentricities, unusual coincidences and lack of corroboration." Higgins, 898

So.2d at 1226; State v. Mussall, 523 So.2d 1305, 1311 (La. 1988). While the reviewing court must accept all

reasonable credibility determinations and inferences made by the jmy, such determinations must fall "within the

64

bounds of rationality." Higgins at 1232; see also State v. Fenner, 94-1498 (La. App. 4 Cir. 11116/95); 664 So.2d

1315, 1321-22 (finding that "[b]ecause of the many variations and conflicting testimony of the witnesses, no

rational trier of fact could find that the defendant did not act in defense of another").

Even where the evidence is sufficient to convict, appellate comis must still ensure the reliability of a

defendant's death sentence. "The fundamental respect for humanity underlying the Eighth Amendment's

prohibition against cruel and unusual punishment gives rise to a special 'need for reliability in the determination

that death is the appropriate punishment' in any capital case." Johnson v. Mississippi, 486 U.S. 578, 584 (1988).

Even assuming that the evidence was sufficient to prove that Mr. Reed committed first degree murder, and that

his actions were justified, the unreliability of the evidence requires that his sentence be vacated.

Shannon Garland and Daniel Jackson:35

No rational juror could credit the testimony of Daniel Jackson and Shannon Garland.

Over the three years of investigating, Caddo detectives and prosecutors made a concerted effmi to

interview, andre-interview, Daniel Jackson and Shannon Garland. Both men gave at least four statements each to

Caddo Sheriffs - some recorded, some not. R. 96, 183, 191, 222, 248, 249, 250, 2201, 4396.36 Their stories

changed significantly from statement to statement. By trial, the credibility of these men was undermined by the

myriad of inconsistent statements, the physical evidence, and the contradictmy testimony of other witnesses.

Shannon Garland's initial statement to police corroborated Clarence Powell's account of the shooting in

many respects. He told police that he saw at least four people arrive in the Adams brothers' car right before the

shooting. R. 2212-13, R. 2219. When police asked if he heard anyone say anything before the gunshots, Mr.

Garland responded:

Oh, God! Talking, just jibber - I mean, jibber jabberish. I don't know I can't say a word of- I can't pinpoint, you know.

R. 2226.

Yet by trial Mr. Garland rejected his original account. He testified that it was too dark to see how many

people were in the victims' car. R. 4380. He denied ever telling the police that he was certain there were four

35 Although not raised by defense counsel at trial, Daniel Jackson and Shatmon Garland both had significant criminal histories and were arrested on unrelated charges during the course of the investigation into Marcus Reed's criminal case. Daniel Jackson was convicted in 2007 for illegal use of a weapon. R. 1017. On September 27, 2010, Mr. Jackson was arrested on a charge of "loud music." R. 1017. Caddo sheriffs brought him in to the station the next day to give another

statement about the Marcus Reed case- by that time his fifth. R. 250. On November 15, 2011, Mr. Jackson was arrested again -this time on a felony theft charge. R. 1017. On May 12,2012, Mr. Jackson pled guilty to possession of marijuana and evading arrest in Carthage, Texas. R. 1008-09. Shannon Garland had prior charges of attempted simple burglary, domestic abuse and battery, and driving while intoxicated. R. 1057-59. On April 9, 2011, Shannon Garland was atTested for operating a vehicle while under suspension. R. 1058-59. He was arrested yet again on June 1, 2012. R. 1059.

36 Only the transcript of Shannon Garland's initial statement to sheriffs is included in the record on appeal. The remainder of the statements are summarized in various reports.

65

people, R. 4446, and then, after reviewing his statement, testified that it was a lie. R. 4448. He testified that no

one spoke to Mr. Reed before the shooting. R. 4383-84. Incredibly, Mr. Garland testified that Marcus Reed

jumped out of the woods and shot Jarquis Adams in the back without provocation. R. 4387. This highly

aggravated new version of the shooting was irreconcilable with the physical evidence. As the State's expert

testified at trial, Jarquis Adams was not shot in the back. R. 4807. Mr. Adams sustained two bullet wounds- one

through the chest and one through the front of his head. R. 4787, 4789. Further, Mr. Garland claimed that Mr.

Adams was standing directly in front of him when Marcus Reed shot him through his back. Blood spattered all

over him when the bullet went through. R. 4418. Mr. Garland could not explain how he remained unharmed when

the bullet passed through Mr. Adams.

Like Shannon Garland, Daniel Jackson's account of the shooting changed significantly over the course of

several interviews with Caddo sheriffs. Mr. Jackson originally reported that two cars drove up to Marcus Reed's

house that night- the first had an "unknown amount of people inside," and the second arrived "about a minute or

two afterwards with some more males inside." R. 96. Yet at trial he testified that there was only one car. Unlike

his previous statements that Marcus Reed came from the house, R. 96, or from the driveway, R. 191, or from near

the light pole, R. 222, Mr. Jackson testified at trial that Marcus Reed jumped out of the woods and shot Jarquis

Adams. R. 4301. Although he originally repmted that Marcus Reed shot at four people, Mr. Jackson testified that

he was mistaken. R. 4308-09. He then testified on cross-examination that there may have been four people in the

car. R. 4354. Mr. Jackson testified that there were two people in the back seat of the car (Jeremiah and Gene), but

could not account for where the driver went. R. 4364.37

The accounts that Daniel Jackson and Shannon Garland related at trial were not only inconsistent with

their earlier statements, but they were also entirely inconsistent with each other. Mr. Garland testified that he was

standing in the street when the victims arrived. R. 4378-79. Mr. Jackson testified that Shannon was helping him

work on his car. R. 4323, 4362. While Mr. Jackson testified that Shannon was standing right next to him near his

car when the shots rang out, R. 4347, Mr. Garland placed himself at the top ofthe driveway on the other side of

the yard. R. 4416-18. By cross-examination, Mr. Garland testified that he no longer remembered where he was

standing. R. 4425.

While Shannon Garland testified that Jeremiah Adams was driving the car, R. 4390, Mr. Jackson testified

that Jeremiah was sitting in the back seat. R. 4364. While Mr. Garland testified that he and Daniel moved Jarquis

Adams's body into the trunk, R. 4390, Mr. Jackson denied that this was ttue. R. 4308. Mr. Garland fmther

37 Daniel Jackson also claimed that he ran directly to James Hendrix's house to repmt the shooting, R. 4308, although this story could not account for how a shitt with his DNA and Jeremiah Adams's DNA was recovered from an old bus on the other side ofthe woods. R. 306, 1562, 4649.

66

testified that he left Marcus Reed's house as it was getting dark and did not return for at least two hours. R. 4376-

77. This would have him arriving at the house at almost the exact time of the shooting. Mr. Jackson, on the other

hand, testified that Shannon was present at the house all evening.

Bridgette Garland:

Bridgette Garland was not present at Marcus Reed's house during the shooting. Her testimony at trial was

used ostensibly to prove Mr. Reed's actions earlier in the day and after the shooting. Ms. Garland testified that

Marcus Reed was upset when he found out about the burglary. She testified that he was pacing around his yard,

talking on the phone. She testified that Mr. Reed said, "whenever they come and he was going to kill them and

whoever was with them; he didn't care." R. 4603-04. She testified that he talked to someone named "Radio" and

told him to pick up a package. She testified that Mr. Reed brought out a gun at some point and put on latex

gloves. R. 4604. She testified that Mr. Reed went and stood in the woods. ld By the time she left, however, Mr.

Reed had put the gun away and was standing in the front yard. R. 4606.

Virtually all of Ms. Garland's testimony was inconsistent with her earlier statements to police and with

her testimony before the grand jury. As defense counsel elicited at trial, Ms. Garland did not tell the grand jury

that Mr. Reed threatened to kill the people who robbed him. R. 4620. She did not tell them that he brought out a

gun and stood in the woods. Id. She did not tell them that Marcus Reed put on latex gloves. Id. Indeed, in Ms.

Garland's original statement to police she reported several details about what occulTed at Mr. Reed's house that

night, but never mentioned the gun, the threats, or the gloves. R. 202-03. Ms. Garland's earlier account was

consistent with her husband's, which reported that Mr. Reed was not wearing gloves at the time of the shooting.

See R. 248 ("Marcus was not wearing gloves")?8

In the week before trial Ms. Garland gave an additional unrecorded statement to the District Attorney,

indicating that Shalmon Garland and Daniel Jackson were intimately involved in the homicide, and that her

husband burned all of his clothing before speaking to police. R. 2024-25. Bridgette rep01ted that she was under

the influence of Lortab and marijuana "at all pettinent times the evening of the triple homicide." R. 2025. In light

of this and other new facts that Bridgette Garland reported right before trial, the State "assured Bridget that she

would not be charged for her conduct or her grandjmy testimony," ld.

38 The subject of latex gloves no doubt stemmed from Caddo Sheriffs alleged discovery of single glove amongst the physical evidence. Kelly Reed, the crime scene investigator who collected the majority of the physical evidence fi·om Mr. Reed's house did not testify at trial. Her supervisor testified in her stead that Ms. Reed found the latex glove in a pair of shorts recovered fi·om Marcus Reed's house. R. 4710, 4720-21. However, Kelly Reed's written report does not mention finding a latex glove. R. 144-49. Undoubtedly concerned that this plastic glove was left behind by an absent-minded crime lab technician, the State questioned Kelly Reed's supervisor, Sgt. Baird, about what kind of gloves his office purchases. R. 4688-89. He asserted that the crime lab only buys Nitrile gloves, because people have latex allergies. Jd. The State's only explanation for why it did not call Kelly Reed to testify was that she had moved out of state. R. 4248.

67

---. ···~ -----·-·

While Ms. Garland attributed her many inconsistencies to her fear of the defendant and his family, R.

4618-21, 4623, these alleged fears did not prevent her from speaking to law enforcement on several occasions

about Mr. Reed's involvement in the homicide.

Terry Denny Matthews:

The State also presented the testimony of Terry Denny Matthews, an inmate at the Caddo Correctional

Center. Mr. Matthews testified that Marcus Reed confessed to "ambushing" the Adams brothers on the vety first

day they met in jail. R. 4655-70. Mr. Matthews was a known confidential infonnant for the Caddo Sheriffs

Depat1ment who was terminated from his employment on March 29, 2011. R. 3252. Mr. Matthews was then

arrested and put in jail on March 30, 2011 (the very next day). R. 3253. According to Detective Keith Fox, Mr.

Matthews was fired from his job as an informant because he was "high risk, a drug user, and spreading his

information on the street." R. 3266. Mr. Matthews's testimony was also contradicted by inmate Robert

Washington, who reported that he was present during the conversation between Mr. Matthews and Mr. Reed, and

at no time was this capital case discussed. R. 2292-95. Mr. Matthews also denied ever speaking to anyone about

Mr. Reed's case before he contacted detectives. When asked if he spoke to his wife about the case, Mr. Matthews

claimed he had not, and said that he was not even married at the time of his incarceration. R. 4668, 4670. Mr.

Matthews' testimony was directly contradicted by his statement to police, where he stated that he spoke to his

wife about Mr. Reed's case, and she told him that Mr. Reed killed the victims "over an X-Box or something, they

were kids." Exhibit S-2 at 14:05-14:44 (Notice Hearing, 9-23-13).

Glen Merrell:

Glen Merrell lived roughly 300 yards from Marcus Reed's house. R. 4486. He testified at trial that on the

night of the homicide he spoke to Marcus Reed on the telephone. Mr. Reed asked if Mr. Merrell had "seen

anybody at his house that day." R. 4493. Mr. Merrell told him that he didn't. While on the phone with Mr. Reed

later that evening Glen heard gunshots. R. 4494. He testified that Mr. Reed told him that "him and Shannon were

shooting at the fox. We've been having a problem with a fox getting the chickens." R. 4495. Although the State

would later argue that Marcus Reed shot the Adams brothers while he was on the telephone with Mr. Merrell, this

theory was completely contradicted by Daniel Jackson and Shannon Garland's various accounts. Neither man

ever testified that Marcus Reed was talking on his house phone, while hiding in the woods, while shooting three

people with an SKS rifle.

Mr. Merrell was incarcerated at the time of trial. R. 4485. When asked if he ever spoke to deputies about

getting something in exchange for his assistance on this case, Mr. Merrell testified, "I don't recall. It's been a

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while." R. 4516. When asked if he was specifically looking for assistance on his copper theft case, Mr. Merrell

testified, "I don't remember." Jd?9

The testimony of the State's witnesses was internally contradictory, inconsistent with their earlier

statements, and in some cases, physically impossible. As this Court held in Musall,

[A] reviewing court may not disregard its duty under due process of law as interpreted by Jackson v. Virginia simply because the record contains testimony which tends to support each fact necessary to constitute the crime. If the court finds that no rational trier of fact viewing all of the evidence from a rational pro-prosecution standpoint could have found guilt beyond a reasonable doubt, the conviction cannot stand constitutionally.

523 So.2d 1305 at 3111; see also Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989) (finding that "[w]here

documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or

implausible on its face, that a reasonable fact finder would not credit the witness's story, the cout1 of appeal may

well find manifest error or clear wrongness even in a finding purpottedly based upon a credibility

determination"). No rational trier of fact could find that Marcus Reed was guilty of first degree murder and

sentence him to death based on this evidence.

XII. THE TRIAL COURT CREATED AN UNCONSTITUTIONALLY DEATH-PRONE JURY WHEN IT ERRONEOUSLY EXCUSED A JUROR WHO DISAPPROVED OF THE DEATH PENALTY, BUT COULD STILL FOLLOW THE RELEVANT LAW.

The trial comt erroneously granted the State's cause challenge to Prospective Juror Bobbie Alexander.

Although Ms. Alexander mticulated an opposition to the death penalty, she was not sufficiently impaired in the

performance of her duties to warrant the Cout1's ruling. Wainwright v. Witt, 569 U.S. 412, 424 (1985). The

erroneous exclusion of Juror Alexander contributed to the creation of an unfairly death-prone jury- the very smt

of "tribunal organized to return a verdict of death" the United States Supreme Comt cautioned against in

Witherspoon v. Illinois, 319 U.S. 510, 520 (1968)- in violation of Mr. Reed's constitutional rights to due process,

a fair trial, and a reliable determination of sentence. 40

Although Prospective Juror Bobbie Alexander told the Com1 that she was opposed to the death penalty,

she also clearly indicated that she would be capable of following the law and considering the imposition of that

sentence. In fact, she twice contradicted suggestions to the contrary by counsel for the State,

39 Two days after Glen Merrell made his second statement to Caddo Sheriffs he appeared at the First Judicial District Court and entered a plea of guilty to simple burglary. R. 759. The comt suspended his sentence of one year confmement at hard labor and placed him on supervised probation. Id. Mr. Merrell then gave another statement to sheriffs about this case, claiming this time that Marcus Reed was engaged in significant drug activity. R. 206-07. Caddo sheriffs arrested Mr. Merrell again in February and March of2011. R. 1037.

40 Because of the incomplete nature of the record in this case, a large pmtion of the arguments and rulings on challenges to jurors that were asserted during general voir dire were not recorded. Counsel has addressed the unconstitutionality of the incomplete record in Argument of Error XIV, but also here reserves the right to address any erroneous rulings that may be discovered later in time.

69

MR. COX: Would it be correct to say that under no circumstances could you ever return a death penalty no matter what the evidence showed?

MS. ALEXANDER: No.

MR. COX: That's i1ot true or that is true?

MS. ALEXANDER: Not true.

MR. COX: Tell me how you think about the death penalty. Are you open to imposing it?

MS. ALEXANDER: I'm against it.

MR. COX: Does being against it does that mean that no matter what evidence was presented to you, you would never vote for a death penalty?

MS. ALEXANDER: No.

R. 3434. Despite the fact that Ms. Alexander rated herself as a five on the State's Witherspoon scale, she did so

with no explanation, and she subsequently concluded that she would be able to consider imposing the death

penalty in the only hypothetical situation that was presented to her. R. 3453 ("Yeah, I'd consider it.").

The State challenged juror Alexander on the grounds that she was opposed to the death penalty and had

rated herself a five. The State mischaracterized Ms. Alexander's answers during voir dire, arguing that she

"would not consider it under any circumstances," R. 3494, a claim which, as mentioned above, Ms. Alexander

herself had already twice refuted. The court granted the State's cause challenge over defense objection,

erroneously finding that Ms. Alexander told the court that "I'm not for death under no circumstances," and "no

matter what evidence is presented, I would never vote for the death penalty." R. 3494-95.

The Comi's ruling was incorrect on both the facts and the law. The United States Supreme Court has

repeatedly held that jurors cannot be excluded purely on the basis of their general opposition to the death penalty.

In Witherspoon, the Comi reasoned that "a man who opposes the death penalty, no less than one who favors it,

can make the discretionary judgment entrusted to him ... and can thus obey the oath he takes as a juror." 391 U.S.

at 522. Concluding that the exclusion of such a juror would undermine the impartiality that the Sixth and

Fourteenth Amendments of the United States Constitution require, Id., the Comi found that such exclusions were

only appropriate when the juror at issue was "irrevocably committed. . .to vote against the penalty of death

regardless of the facts and circumstances that might in the of the proceedings. In Wainwright v. Witt, the Comi

later clarified that "the standard is whether the juror's views would 'prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his oath." 569 U.S. at 424, citing

Adams v. Texas, 448 U.S. 38, 45 (1980).

Under the Louisiana Code of Criminal Procedure, the State must meet two prongs in order to justify the

challenge to a juror on these grounds: in addition to the conscientious objection at issue, the juror in question must

also have indicated that he either (a) would automatically vote against the imposition of capital punishment

"without regard to any evidence that might be developed at the trial of the case against him," (b) that his attitude

70

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towards the death penalty would "prevent or substantially impair him from making an impmtial decision as a juror

in accordance with his instructions under oath," or (c) that his attitude towards the death penalty would "prevent

him from making an impmtial decision as to the defendant's guilt." La. C.Cr.P. ati 798(2).

Contrary to the claims of both the State and the Comt, Prospective Juror Alexander never stated she

would be unable to consider the imposition of the death penalty; in fact, she gave no indication that she would be

unable to follow the law as instructed. In response to the only hypothetical posed during voir dire, she specified

she would be able to consider the death penalty. The trial comt erred under Witherspoon and its progeny when it

granted the State's challenge for cause. A death sentence imposed by a jury from which even one such juror has

been excluded cannot stand. Gray v. Mississippi, 481 U.S. 648, 659 (1987).

XIII. THE TRIAL COURT ERRONEOUSLY FAILED TO EXCUSE JURORS WHO COULD NOT CONSIDER MITIGATING CIRCUMSTANCES.

Over the course of voir dire, several prospective jurors made it clear that they would be unable to remain

impartial and follow the law given to them by the court during penalty phase deliberations. Prospective Jurors

Hill, Brock, and Durden all told the comt that in instances involving harm to a child, they would be unwilling to

consider a range of statutorily mandated mitigating circumstances.

In each case, the aggregate of the individual prospective juror's answers made it clear that he should have

been excused. As this Court has repeatedly recognized, most recently in State v. Mickelson, 12-2539 (La. 9/3/14);

149 So.3d 178, although a juror who has expressed bias may ultimately be rehabilitated, the denial of a cause

challenge to such a juror is reversible error when no such attempt has been made. Mickelson, 149 So.3d at 38. In

such cases, this Comt has found that "the risk that the district court's denial of the defendant's challenges for

cause might have 'infected defendant's capital sentencing is unacceptable in light of the ease with which that risk

could have been minimized."' Id., citing Morgan v.Illinois, 504 U.S. 719, 736 (1992).

Prospective Juror Tarig Hill

Prospective Juror Tarig Hill was insistent that in some cases, he would be unable to consider mitigating

circumstances in his penalty phase deliberations. From the outset of voir dire, he made it clear that he would be

especially sensitive to cases involving juvenile victims. R. 3432-33. In response to the only hypothetical scenario

posed to him throughout voir dire, a situation involving harm to a child, he responded that he would not consider

any of the mitigating circumstances that Louisiana law requires he consider. R. 3469. Even after both counsel for

the State and counsel for the Defense instructed him that jurors must consider mitigating circumstances, R. 3471,

he insisted that he might not be able to do so, depending on the circumstances of the case. R. 34 71-72. He

explained that in a scenario where a defendant "commits a crime against children," he could not consider all

mitigating circumstances. R. 34 71. Prospective Juror Hill demonstrated that he would be substantially impaired in

71

his ability to consider mitigating circumstances in a case that involved harm to a child, and neither the State nor

the Court made any effort to rehabilitate him. The trial court's refusal to remove him for cause was error.

Prospective Jurors Sherry Durden and Clinton Brock

Prospective Jurors Sherry Durden and Clinton Brock also suggested that they would be unable to follow

the mandates of La. C.Cr.P. art 905.5 in the context of a crime involving harm to a child. Ms. Durden, in response

to the only hypothetical posed to her, told the court that in a case involving a child kidnapping, she would be

unable to consider two statutorily mandated mitigating circumstances: a defendant's lack of significant prior

history of criminal activity (La. C.Cr.P. art 905.5(a)) and the youth of the offender at the time of the offense. (La.

C.Cr. P. art 905.5(f)). R. 3548-52. Prospective Juror Brock also responded to a hypothetical involving harm to a

child by explaining that he'd be unwilling to consider La. C.Cr.P. art 905.5(a) as a mitigator. R. 3547-52. The

court erroneously denied defense counsel's cause challenge to each of these jurors, R. 3577-83.

The trial comt abused its discretion when it denied Mr. Reed's challenges to these three individuals.

Throughout Mr. Reed's trial, the State repeatedly emphasized the fact that one of the brothers killed in the

shooting at issue was 13 years old. R. 4214, 4270, 4801, 4838, 4986, 4988-89, 5033, 5036, 5099. Thus, although

the State did not explicitly pursue the age of the victim as an aggravating factor in this case, it became a central

theme at trial, particularly during the penalty phase. All three prospective jurors indicated that under such

circumstances, they would find it difficult to remain impartial and follow the law as given to them by the court:

each specifically stated that, in a case involving injury to a child, he or she would be unable to consider a range of

the mitigating circumstances mandated by La. C.Cr.P. Art 905.5.

As this Court recently reiterated in State v. Mickelson, "[w]hile a juror has the discretion to assign

whatever weight the juror deems appropriate to any aggravating and mitigating circumstance established by the

evidence, the juror must be willing to consider mitigating evidence relevant to the character and propensities of

the defendant (which is the focus of a capital sentencing hearing) and must be willing to fairly consider a life

sentence." 149 So.3d at 186 The United States Supreme Comt has also consistently held that the Eighth

Amendment allows capital defendants to challenge jurors who indicate "that mitigating evidence is not wmth

their consideration and that they will not consider it." Morgan v. Illinois, 504 U.S. 719, 736 (1992). See also

Lockett v. Ohio, 438 U.S. 586 (1978); Tennard v. Dretke, 542 U.S. 274, 278 (2004) (holding that the Eighth

Amendment requires that jurors be able to "consider and give effect" to mitigating circumstances). A challenge

for cause should be granted even if the juror declares an ability to remain impattial, when the juror's response

reveals facts from which bias, prejudice, or impartiality may be reasonably inferred. See State v. Clark, 442 So.2d

1129, 1134 (La. 1983) (stating that "a juror's assurances that he is equal to the task cannot be dispositive of the

accused's rights."). In Mr. Reed's case, each of the three jurors at issue should have been removed for cause:

72

each demonstrated that he was unable to "accept the law as given to him by the comt," La. C.Cr.P. mi. 797(4),41

and that he was "not impartial, whatever the cause of his partiality." La. C.Cr.P. mt 797(2). The comt's errors

violated Mr. Reed's rights to a full and fair voir dire and to challenge jurors peremptorily under Atticle I, § 17(A)

of the Louisiana State Constitution, as well as his right to an impattial jury under the 61h and 141

h Amendments of

the United States Constitution. Because counsel for Mr. Reed exhausted each of the allotted 12· peremptory

challenges, R. 4172, prejudice is presumed; even a single wrongful denial of a cause challenge constitutes

reversible error. Mickelson, 149 So. 3d at 185, citing State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278,

1280-81.

XIV. THE RECORD ON APPEAL IS SEVERELY INADEQUATE.

The record in Mr. Reed's case is unconstitutionally deficient. It omits critical information about defense

pre-trial motions and voir dire proceedings, as well as objections and rulings during both phases of Mr. Reed's

capital trial. Such an inadequate record violates Mr. Reed's rights under the Sixth, Eighth, and Fourteenth

Amendments of the United States Constitution, and his right to a complete record under the Constitution of the

State of Louisiana. The Louisiana Constitution expressly guarantees the right to a complete appellate record.

Atticle I, § 19 provides that "[n]o person shall be subjected to imprisonment or forfeiture of rights or property

without the right to judicial review based upon a complete record of all evidence upon which the judgment is

based." In addition, Atticle 84 3 of the Louisiana Code of Criminal Procedure mandates the full recordation of all

proceedings.42 The incomplete record prevents Mr. Reed from identifying trial errors, entitling him to a new trial.

State v. Robinson, 387 So.2d 1143 (La. 1980); State v. Landry, 97-0499 (La. 6/29/99), 751 So.2d 214 (reversing

capital conviction based upon inadequate record).

A. The Trial Court's Failure to Record Over 50 Bench Conferences Obscures Critical Rulings

Before trial, the defense moved for a complete recordation of all pre-trial and trial proceedings. R. 844.

The State did not oppose the motion. Indeed, the State acknowledged the need for a complete record of all

objections and arguments, explaining,

This is a good issue to bring to the Comt's attention, your Honor. Of course we have no objection to everything being recorded pretrial and trial. In fact, this is something that I think is done far too often, and that is bench conferences in capital litigation.

Supp. R. at 49.

41 The Louisiana Code of Criminal Procedure mandates that jurors consider specific mitigating circumstances during the penalty phase of a capital trial. La. C.Cr.P. mt 905.5 (enumerating the circumstances that "shall" be considered mitigating)

42 Article 843 mandates that "In felony cases ... the clerk or comt stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel." La. C.Cr.P. art. 843.

73

The court ordered that all of the proceedings must be recorded and held that "from this point forward I

don't want to have any bench conferences up here off the record," Supp. R. at 50. Despite this ruling, the

subsequent trial judge failed to record several bench conferences and arguments, at least twenty nine times during

voir dire, and twenty three times during the trial itself.

In reviewing a trial court's failure to record bench conferences, this Court conducts a "case-specific

inquiry to determine whether the failure to record the conferences results in actual prejudice to the defendant's

appeal." State v. Pinion, 06-2346 (La. 10/26/07); 968 So.2d 131, 134. In Mr. Reed's case, it is clear that many of

these conferences were not inconsequential and prohibits an adequate review of the record.

1. Untranscribed Bench Conferences Prevent an Adequate Review of Voir Dire Proceedings

At least 27 unrecorded bench conferences occurred over the course of voir dire.43 During general voir

dire, the majority of the challenges either party exercised against jurors took place at the bench and were not

transcribed.44 With a few exceptions,45 the court never indicated which party struck the jurors who were removed,

it never indicated whether those jurors were removed through the exercise of a peremptory strike or a successful

cause challenge, and it never indicated whether either party had unsuccessfully attempted to challenge a juror for

cause. Even where undersigned counsel has been able to identify unsuccessful defense cause challenges, See R.

3499 (erroneously denying defense cause challenge to Prospective Juror Tarig Hill), 3577-80 (erroneously

denying defense cause challenge to Clinton Brock), 3580-83 (erroneously denying defense cause challenge to

Prospective Juror Sherry Durden), the record contains no information connecting either party to the exercise of

any specific peremptory strike against any specific juror. In felony cases, Louisiana requires that the trial court

record not only the evidentiary portions of the trial but also the "examination of prospective jurors ... and

objections, questions, statements, and arguments of counsel." State v. Hoffinan, 98-3118, (La. 4/11/00), 768

43 SeeR. 3379, 3417, 3452, 3487, 3512, 3532, 3533, 3540, 3562, 3597 (twice), 3650, 3656, 3658, 3727, 3784, 3793, 3894,3924-25,3995,4045,4102 4156,4160,4038,4172.

44 General voir dire proceedings involved the questioning of only three panels of jurors. The majority of the challenges, arguments, and rulings on prospective jurors that occurred during this phase took place during unrecorded "breaks" that the trial court held after the questioning of each panel was completed. R. 3924, 4038, 4156. Upon retutn from each of those breaks, the court announced, on the record, each of the jurors who were to be removed, as well as each of the jurors who had been tentatively accepted to serve on the jury. R. 3924-25, 4038, 4172. As mentioned above, however, it failed to record several critical details about each of these "breaks."

45 The only challenges for cause occmTing during general voir dire that were recorded are joint challenges to prospective jurors Barbara Baker, Nicole Bennett, and Yvette McCullough from Panel A, R. 3893, a joint challenge to prospective juror Rose Bogan from Panel B, and a joint cause challenge to prospective Juror Sandra Miller, R. 4101-03, as well as the State's successful cause challenges to prospective jurors Sharon Starks and Gloria Douglas from Panel C. R. 4156-63. The only peremptory challenges that appear at all documented in the record are the backstrike defense counsel exercised against prospective juror Vicki Castille, R. 4038, the peremptory strikes that the State assetted defense counsel exercised against Prospective Jurors Turman and Robinson, R. 4177, and the strikes that the State exercised against prospective jurors Casanova, Hubbell, Durden, and George. R. 4172.

74

So.2d 542, 586; La. C.E. art 843.46 The trial court's violation of this mandate made it vitiually impossible to

sufficiently review the proceedings for error.47

In its current state, the record prevents counsel from perfecting any claims involving the erroneous denial

of cause challenges. Counsel has identified at least three instances during the death qualification round of voir

dire in which the trial court's denial of defense cause challenges were erroneous. R. 3499, 3577-80, 3580-83. In

the case of each of these prospective jurors, defects in the record make it unclear whether counsel for the defense

re-urged these challenges during general voir dire. In addition, although it is clear from the record that defense

counsel exhausted each of its allotted peremptory challenges, R. 4172 ("the State still has peremptories left.

Defense is out."), the record does not permit counsel for the defense to determine whether defense counsel was

forced to exercise a peremptory challenge against contested jurors.48 Of the three prospective jurors at issue, one

juror, Tarig Hill, was ultimately excused from the jury for unclear reasons and by unknown patiies, R. 3925.49

The record also prevents appellate counsel from fully reviewing jury selection proceedings for any

instances in which the trial comi erroneously denied defense counsel's cause challenges during general voir dire.

Given the present state of the record, a reasonable possibility exists that counsel made still other cause challenges

before excusing jurors peremptorily, but that those challenges were not recorded. Such challenges would likely

have occurred after the bench conferences at the end of each panel, the very proceedings that were not recorded.

This Court has, in some instances, found that alternative sources of information in the record, such as juty

strike sheets or trial court minutes, adequately mitigate the prejudice of an incomplete record,50 but no such

46 The only challenges for cause occurring during general voir dire that are in any way documented in the record are joint challenges to prospective jurors Barbara Baker, Nicole Bennett, and Yvette McCullough from Panel A, R. 3893, a joint challenge to prospective juror Rose Bogan from Panel B, and a joint cause challenge to prospective Juror Sandra Miller, R. 4101-03, as well as the State's successful cause challenges to prospective jurors Sharon Starks and Gloria Douglas from Panel C. R. 4156-63. The only peremptory challenges that appear at all documented in the record are the backstrike defense counsel exercised against prospective juror Vicki Castille, R. 4038, the peremptory strikes that the State asserted defense counsel exercised against Prospective Jurors Turman and Robinson, R. 4177, and the strikes that the State exercised against prospective jurors Casanova, Hubbell, Durden, and George. R. 4172.

47 The defects in the record obscuring voir dire rulings are patticularly prejudicial because they address the very sort of errors this Comt has demonstrated an interest in remedying. See State v. Mickelson, 12-2539 (La. 9/3/14); 149 So.3d 178 (reversing capital conviction based on erroneous denial of cause challenge); State v. Jacobs, 99-1659 (La. 6/29/01 ); 789 So. 2d 1280 (same); State v. Maxie, 93-2158 (La. 4/10/95); 653 So. 2d 526 (same).

48 This analysis is critical to perfecting an appellate claim concerning the erroneous denial of cause challenges. See State v. Mickelson, 12-2539 (La. 9/3/14); 149 So.3d 178, 185. ("this court has long recognized that when a defendant is forced to utilize a peremptory challenge to correct an error in denying a challenge for cause and thereafter exercises all available peremptory challenges on other prospective jurors, a substantial right of the defendant, guaranteed by the Louisiana constitution, is affected.").

49 The remaining jurors appear to have been addressed as follows: the State exercised a backstrike against Prospective Juror Sheny Durden, R. 4172, and Prospective Juror Clinton Brock was ultimately empaneled. I d.

50 See State v. Allen, 95-1754 (La. 9/5/96), 682 So.2d 713, 722 (holding that the court's failure to record arguments at the bench concerning peremptory challenges was harmless when challenges for cause and arguments on the challenges were fully transcribed in the record and the minutes clearly reflected which jurors had been excused peremptorily and whether the

75

evidence exists in Mr. Reed's case. Jury strike sheets were not included in the record. Although this Court ordered

the district court to complete the record with the juror questionnaires, the court failed to do so. 51 While the trial

court's minutes do document the number of successful cause and peremptory challenges made by each party

during each panel, R. 13-15, they do not adequately supplement the information obscured by the unrecorded

bench conferences. The minutes do not document the specific jurors each party chose to exclude, and they make

no mention of unsuccessful cause challenges at any point during voir dire. The defects in the voir dire transcripts

alone so undermine counsel's ability to review the record for errors that they unfairly prejudice Mr. Reed's

appeal. Pinion, 968 So.2d at 136 (vacating second degree murder conviction and sentence when the trial court's

failure to record bench conferences "made it impossible to determine which jurors were challenged for cause and

which jurors were peremptorily excused.").

2. Untranscribed Bench Conferences During Trial Obscure Objections, Arguments, and Rulings Made During Trial

The transcripts of culpability and penalty phase proceedings at Mr. Reed's trial contain at least 24

additional untranscribed bench conferences.52 These defects limit defense counsel's ability to identify errors that

occurred during trial. Given this Court's application of the contemporaneous objection rule, State v. Taylor, 93-

2201 (La. 2/28/96), 669 So.2d 364, cert. denied, 5,19 U.S. 860 (1996), the failure to record bench conferences

precludes any determination of whether errors were preserved for review somewhere off the record.

In fact, the incomplete record makes it impossible to tell whether a number of different errors that appear

in the record are properly preserved. Examples of seemingly unpreserved error include:

• The Presentation of Victim Impact Testimony in the Culpability Phase of Trial: During the culpability phase of Mr. Reed's trial the State presented lengthy improper victim impact testimony from two witnesses - Clara Morgan and Bernice Adams. R. 4833-39. Although admissible in the penalty phase of a capital trial, victim impact testimony is inadmissible in the culpability phase. See Perez v. Cain, 2008 U.S. Dist. LEXIS 1660, 88-89 (E.D. La. Jan. 7, 2008) (affirmed by Perez v. Cain, 2008 U.S. App. LEXIS 11515 (5th Cir., 2008) (reversing conviction on federal habeas review, holding that testimony by the victim's widow was inadmissible at the culpability phase oftrial); State v. Bernard, 608 So. 2d 966, 972 (La. 1992).

• The State's Excessive Use of Gruesome Photographs: During the testimony of nearly every lay witness, and two expert witnesses, the State presented photographs of the bodies of the three

State or the Defense had exercised the challenge); State v. Deruise, 98-0541 (La. 4/3/01) 802 So.2d 1224, 1233-37 (holding that the trial court's failure to record bench conferences in which peremptory and cause challenges occmTed did not prejudice the appeal when the jury strike sheet was available for review and detailed the exercise of peremptory challenges by both sides).

51 Upon noticing that the questimmaires were not included in the record, Mr. Reed requested that this comt order the trial comt to supplement the record with them, and this Comt granted that request. Order, 12/1/14. To date, the questionnaires have not been added.

52 R. 4256,4328,4367,4425,4437,4446,4463,4465,4505,4517,4576,4627,4814,4841,4847,4858,4874,4880, 4884,4995,5075,5087,5135,5146.

76

victims. R. 4263,4268-71, 4311-15; 4399-4402,4610,4786,4795,4820,4824-25. The excessive presentation of gruesome photographs at trial is improper. State v. Morris, 157 So.2d 728 (1963).

• The Denial of Mr. Reed's Right to Confront Investigator Kelly Reed: At trial, the State neglected to present the testimony of Kelly Reed, the crime scene investigator who collected the majority of the evidence taken from Mr. Reed's home. Instead, her immediate supervisor, Sergeant Gary Baird, testified about the items collected from the house, R. 4710-22. Among the facts that Sgt. Baird testified to was the existence of a latex glove among the evidence presented at trial. Although Sergeant Baird claimed it was recovered from the crime scene, in actuality, it does not appear in Kelly Reed's written report of items taken from the scene. R. 144-149. The State's failure to call Kelly Reed violated Mr. Reed's right to confront witnesses against him.

• The State's Repeated Use of Leading Questions: The State's examinations of its principal lay witnesses at trial were peppered with leading questions. The State led Daniel Jackson through his account of the shooting and the moments immediately afterwards, as well as through his identification of related photographs.53 It led Glen Merrell through his account of a drug transaction with Mr. Reed and a discussion of his first interaction with law enforcement officers.54 The State led Bridgette Garland through her testimony about purchasing marijuana from Mr. Reed.55 The State's questioning violated mticle 611 of the Louisiana Code of Evidence, and undermined Mr. Reed's right to due process and a fair trial.

The defects in the record also prohibit defense counsel from fully examining errors that are clearly

preserved. Many of the unrecorded bench conferences appear to obscure information that is relevant to critical

issues appellate counsel has raised on appeal. Rulings during these unrecorded bench conferences appear to have

contributed to the improper exclusion of exculpatory testimony by Clarence Powell, see Argument of Error I, and

the exclusion of Robert Washington's critical testimony, see Argument of Error II.

B. Untranscribed Hearings Prevent an Adequate Review of Pre-Trial Proceedings

The record in Mr. Reed's case is also missing transcripts of entire hearings. The comt minutes document

eighteen pre-trial hearings that have not been transcribed. R.. 1 -13. Among these hearings are three taking place

on February 26, 2013, April 4, 2013, and May 24111 2013, at which the trial court addressed a material witness

warrant request for Clarence Powell. R. 10-11. The State's pre-trial treatment of Mr. Powell is highly relevant to

Mr. Reed's appellate claims concerning prosecutorial misconduct. See Argument of Error VI(D). Although "a

slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination

53 See, inter alia, R. 4306 (Q: at some point Marcus Reed quit shooting, correct? A: yes, sir. Q: When he quit shooting

tell the jury what Marcus reed did and what he said"), 4307 (Q: Now, at some point you and Shmmon Garland gave up on the idea of moving the body from the car, right? A: Yes, Sir. Q: What did Marcus say to you about moving the bodies?"), R.

4308 (Q: and you and Shannon were both witnesses to this shooting?") 4309 (Q: he didn't want JJ to see you bloody? A: yes,

sir. Q: So did you clean yourself up? A: Yes, Sir ... Q: Was there a lot of blood on you? A: Yes, Sir. Q: A lot of blood on

your clothes? A: Yes, Sir. Q: Did you also have a lot of blood on your skin? A: Yes, sir.") R. 4310 (Q: And at some point the

police came? A: Yes, sir. Q: And they talked to you? A: Yes, sir .... Q: and you told them what you knew? A: Yes, Sir. Q:

And you told them basically what you've told us here today? A: Yes, Sir. See also R. 4311-15( counsel for the state leading

Mr. Jackson through the identification of photographs).

54 See, inter alia, R. 4491 (Q: why did you call him? A: I needed something to relive stress. Q: You wanted drugs? A: Yes, Sir. Q: Specifically you wanted marijuana? A: Yes, sir.) R. 4497 ("Q: and they were with the sheriffs depmtment? A:

yes, sir. Q: and they wanted to speak with you? A: Yes, sir. Q: Did they also want to speak with Marcus Reed? A: Yes, Sir. .. Q: and you gave the phone to detective Richardson and he spoke to Marcus Reed?" R. 4514-15.

55 SeeR. 4592-93

77

ofthe appeal" does not provide grounds for reversal, State v. Ford, 338 So.2d. 107, 109 (La. 1976), the absence of

18 pre-trial proceedings, some of which addressed the potential harassment of exculpatory witnesses, cannot be

deemed inconsequential.

XV. THE ALLOTMENT OF MR. REED'S CASE TO FIVE DIFFERENT JUDGES VIOLATED IDS RIGHT TO DUE PROCESS OF LAW.

On August 19, 2010, Marcus Reed's case was randomly allotted to Judge Leon Emanuel, Section 1 of the

First Judicial District Court. R. 1. Although Mr. Reed's case remained in Section 1, five separate Judges presided

over the various pre-trial and trial proceedings. Judge Emanuel sat on the case for roughly four months, until it

was allotted to Judge Roy Brun. R. 2. Judge Brun presided over the case for all of2011, including three pre-trial

hearings. R. 2833, 2839, 2844. By February of2012, the case was realloted to Judge Scott Crichton. R. 4. Judge

Crichton presided over the case from February of 2012 to January of 2013, during which time he issued pretrial

orders pertaining to the admissibility of other-crimes evidence in the penalty phase, the complete recordation of

all proceedings, and defense counsel's request to withdraw from the case. R. 2935-81; Supp. R. at 1-91. By

January 23, 2013, Mr. Reed's case was allotted to Judge Ramon Lafitte. R. 10. Judge Lafitte presided over the

case for a brief period, issuing a pre-trial order regarding the admissibility of prior bad acts under La. C.E.

404(B). R. 3140-43. The case was then allotted to Judge Katherine Dorroh in April of 2013. R. 11. Mr. Reed's

trial commenced six months later, with Judge Dorroh presiding. R. 13.

There is no explanation in the record for why Mr. Reed's case was allotted to five different judges in three

years, but it resulted in a violation of the his right to a fair trial before a fair tribunal. Caperton v. A. T. Massey

Coal Co., 556 U.S. 868, 876 (2009). Evidentiary rulings made by one judge were disregarded by the next. While

Judge Crichton ruled that all trial proceedings must be recorded, Judge Dorroh failed to record most bench

conferences. Supp. R. at 50. While the State assured Judge Crichton that it would introduce Mr. Reed's prior

conviction through the testimony of victims or eyewitnesses, it argued the opposite to Judge Dorroh. Supp. R. at

13, R. 4972. While Judge Lafitte narrowed the evidence admissible under att. 404(B), Judge Donoh allowed the

State to expand it. R. 3141. Defense counsel was unable to rely on pre-trial orders to prepare their case, and trial

rulings were left to a judge who had not heard any of the relevant evidence presented at pre-trial hearings. The

constant shifting of judges violated the principles of random reallotment codified in Uniform District Court Rule

14.0, and violated Mr. Reed's right to due process. See State v. Cope, 47889-KW (La. App. 2 Cir 10/10/12)

("Transfer of an allotted case without the consent of all parties requires a showing of good cause for the

transfer"); State v. Mickelson, 11-46821 (La. App. 2 Cir 07/19/11); writ denied, 11-1633 (La. 7/22/11) (Moore, J.,

dissenting) (finding that the transfer of a capital cases "appears more calculated to serve the former's convenience

than the principle of meaningful, random allotment").

78

XVI. THE TRIAL COURT ERRED WHEN IT DENIED MR. REED'S REQUEST FOR A DAUBERT HEARING ON BALLISTICS EVIDENCE.

The trial court erred when it denied defense counsel's request for a Daubert hearing on the subject of

ballistics evidence, in violation of Mr. Reed's right to due process and a fair trial under the Fifth, Sixth, and

Fourteenth Amendments ofthe United States Constitution, as well as Article I, Sections 2 and 16 of the Louisiana

State Constitution. It is the trial court's responsibility as the "gatekeeper" to ensure that expett testimony is both

relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993). This duty "entails

a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid

and of whether that reasoning or methodology properly can be applied to the facts at issue," Id., at 592-93. See

also State v. Foret, 628 So.2d 1116 (La. 1993) (adopting the test of admissibility set fmth in Daubert); La. C.E.

art 702; and it extends to testimony involving "technical" or "other specialized knowledge," as well as scientific

expertise. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). To assist trial courts in this assessment, the

Comt suggested the following general observations are appropriate: 1) whether the theory or technique can be and

has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the

known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific

community. Daubert, 509 U.S. at 592-94.

In Mr. Reed's case, however, the comt undertook no such analysis. The comt made no review of the

publications, methodology, or rate of error of ballistics testing, yet concluded that this kind of evidence was not

"some sort of offbeat type of proposed expert testimony," denied Mr. Reed's request for a hearing. R. 2978.

As counsel for Mr. Reed attempted to argue, R. 2976-77, the reliability of ballistics evidence, or "firearms

identification," is highly questionable. At least two studies by the National Resource Council of the Academy of

Sciences have expressed grave concerns on just this subject. See D.L. Cork, et al., BALLISTIC IMAGING (The

National Academies Press 2008)("Ballistic Imaging Report"); STRENGTHENING FORENSIC SCIENCE IN THE

UNITED STATES: A PATH FORWARD (National Academies Press 2009)("Forensic Sciences Repmt") (included in

the record at R.1 091- 1500).56 Firearms identification is problematic because it is founded upon "subjective

determination[s] based on intuition and experience," Forensic Sciences Repott, at 154. It "lack[s] a precisely

defined process," in patt because the ballistics professional association, the Association of Firearm and Toolmark

Examiners (AFTE), "does not provide a specific protocol." Id. at 155. The AFTE has adopted a "themy of

identification," but that document, which is "the best guidance available for the field of toolmark identification,

56 See also A. Schwartz, "A Systemic Challenge to the Reliability and Admissibility of Firearms and Toolmark

Identification," 6 COLUMBIA SCIENCE & L. REV. 1 (2005)(discussing the shortcomings offireanns identification).

79

does not even consider, let alone address, questions regarding variability, reliability, repeatability, or the number

of correlations needed to achieve a given degree of confidence." Id.

Had the trial comt conducted the examination of the proposed testimony that its gatekeeping function

demands, it would have found that the field of firearms identifications suffers from serious deficits in many of the

areas of inquiry that Daubert recommends. It cannot be said, beyond a reasonable doubt, that the trial court's error

in admitting such unfairly prejudicial testimony did not influence the jury's verdict. Foret, 628 So.2d at 1130.

XVII. ARTICLE 782 OF THE LOUISIANA CODE OF CRIMINAL PROCEDURE IS UNCONSTITUTIONAL.

Article 782 of the Louisiana Code of Criminal Procedure is unconstitutional in its requirement that in capital

cases, responsive verdicts must be unanimous.57 Article 782's responsive verdict unanimity requirement violates

state and federal equal protection provisions because it treats capital defendants differently from non-capital

defendants, and without a rational basis. See State v. Blanchard, 776 So.2d 1165, 1168 (La. 1/18/01); Marshall v.

United States, 414 U.S. 417 (1974). Chief among the prejudicial effects of this disparate treatment is the unfair

coercive "capital specific, atiificial barrier" that the provision presents to jurors' consideration of lesser charges.

Beck v. Alabama, 447 U.S. 625, 638 (1980). This barrier "enhance[s] the risk of an unwarranted conviction," in

violation of state and federal due process provisions. "[S]uch a risk catmot be tolerated in a case in which the

defendant's life is at stake." Id. at 637. The same coercive phenomenon also creates an unacceptable risk that the

death penalty will be imposed in an arbitrary and capricious fashion: the provision effectively expands the

universe of defendants exposed to the death penalty. This phenomenon is contrary to the "special need for

reliability in the determination that death is the appropriate sentence in any case." Johnson v. Mississippi, 486

U.S. 578, 584 (1988). Atiicle 782 is unconstitutional under the equal protection and due process provisions of

both state and federal constitutions.

XVIII. THE TRIAL COURT ERRONEOUSLY DENIED MR. REED'S MOTION TO TRANSFER THE TRIAL FROM A COURTHOUSE THAT COMMEMORATED THE CONFEDERACY'S LAST STAND.

Mr. Reed is an African-American man, prosecuted in a courthouse that commemorated the Confederacy's

Last Stand. The presence of a monument celebrating the cause of the Confederacy outside the Comthouse where

Mr. Reed was tried violated his rights under the Fifth, Sixth, Eight, Thhieenth58 and Fomieenth Amendments.

57 Mr. Reed filed a motion challenging the constitutionality of La. C. Cr. P. art 782. R. 937. The trial court rejected this

motion summarily. Supp. R. at 74.

58 Congress not only outlawed slavery through its enactment of the Thirteenth Amendment. It also outlawed all badges and incidents of slavety. See Jones v. Alfred H Mayer Co., 392 U.S. 409, 441 (1968) (reaffirming "badges and incidents of servitude" language of The Civil Rights Cases, 109 U.S. 3, 20-21 (1883)). The confederate flag is an emblem of slavery. It "carries a historical message, the tune of which is anti-American and heaps praise on a defunct regime, whose principal tenets included black racial and intellectual inferiority." Alexander Tsesis, The Problem ofCorifederate Symbols: A Thirteenth Amendment Approach, 75 Temple L. Rev. 539, 575 (2002). The flag at Caddo Courthouse violates African­American citizens' right to be free from all badges and incidents of slavery.

80

Prior to trial, the defense asked the Court to transfer the trial to a comihouse that did not have a

monument celebrating the Confederacy's effmi to resist the effmi of Union Soldiers during the civil war. This is

decidedly distinct from a monument that acknowledged the loss of all veterans of war, as the monument

celebrates the Last Stand of the Confederacy and was raised as a "tribute of honor and respect memorializing the

deeds and valor ofthe men who so gallantly, nobly and conscientiously defended the cause of 1861-65." SeeR.

817. The monument is on parish property, as pmi of state action causing counsel to observe:

R. 818.

The monument is so prominent that to force Mr. Reed, a black man, to be tried by a jury in a comihouse so constructed is to violate the due process clause of the Fifth Amendment, as applied to the State of Louisiana through the Fourteenth Amendment, the right to a fair trial by jmy pursuant to the Sixth Amendment as applied to the State of Louisiana through the Fomieenth Amendment, as well as the Thilieenth Amendment and the Equal Protection clause of the Fourteenth Amendment.

At the hearing on the Motion, the State argued "In Felton Dorsey, the Louisiana Supreme Comi has

already addressed this issue, your Honor, and found that it lacked merit." Supp. R. at 38. When the State claimed

that the only issue was the presence of the Confederate Flag, which had been withdrawn, the defense re-urged its

argument that the trial in the presence of the monument celebrating the cause of the Confederacy was

unconstitutional. Jd. at 39. The State argued in response "the Supreme Court has addressed those issues in Felton

Dorsey and rejected them." Jd.

The trial court denied the motion, observing that "[t]he Court has reviewed the Dorsey decision by the

Louisiana Supreme Comt. As I recall Chief Justice Kimble writing for the majority addressed that issue. The

motion to transfer the trial is denied." Jd.

In State v. Dorsey, 10-0216 (La. 9/7/11); 74 So.3d 603, 635, this Comt responded to the appellant's

challenge to the presence of the Flag and the Monument noting that it "would be offensive to some," but declined

to reverse the death sentence because Mr. Dorsey's attorney had failed to object to the presence of the flag, the

monument or complain about its influence on the makeup of the jury. For the State and the lower court to find

this decision a "merits ruling on the monument or the flag" misreads the entire decision. Here, prior to trial

defense counsel specifically complained about the role that race discrimination had on the influence of the

proceedings -counsel did the vety thing this Comt directed counsel to do in Dorsey.

There is no greater offense to the Equal Protection Clause than government favoritism of one race over

another. The Monument carries the message of white supremacy in the political process and halls of

government. 59 In patiicular, the monument suggests that the rights of African-American citizens are of less value.

59 See United States v. Blanding, 250 F.3d 858, 861 (4th Cir. 2001) ("It is the sincerely held view of many Americans, of all races, that the confederate flag is a symbol of racial separation and oppression. And, unfortunately, as uncomfortable as it is to admit, there are still those today who affirm allegiance to the confederate flag precisely because, for them, that flag is

81

As noted in the Motion in the district court, and uncontested by the State, the State participated in the construction

of the Confederate monument in front of the Caddo Courthouse by providing the land and funds to do so. Mr.

Reed was impacted by the presence of the monument. Reversal is required.

XIX. THE JURY FAILED TO DETERMINE BEYOND A REASONABLE DOUBT THAT DEATH WAS THE APPROPRIATE PUNISHMENT.

The Louisiana legislature has codified the state sentencing scheme in such a way that life without the

possibility of parole is the maximum punishment unless the jury decides, after considering the mitigating

evidence, that death is the appropriate punishment. The Louisiana Code of Criminal Procedure miicle 905.3 states

unambiguously that "a sentence of death shall not be imposed unless the jmy . . . after consideration of any

mitigating circumstances determines that the sentence of death should be imposed." The trial court here failed to

instruct the jury on a "standard" for determining which punishment to impose on Mr. Reed. In Ring v. Arizona,

the Court explained:

The dispositive question, we said, is "one not of form, but of effect." If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact -- no matter how the State labels it -- must be found by a jury beyond a reasonable doubt.

536 U.S. 584, 602 (2002). Ring clarified that the Apprendi rule applies to capital sentencing proceedings.

Apprendi v. New Jersey, 530 U.S. 466, 476 (2000) (holding that any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt),

see also United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004).

Appellant acknowledges this Court has ruled adversely on this same issue. See State v. Anderson, 06-

2987 (La. 9/9/08), 996 So. 2d 973, 1015. However, he maintains that his sentence of death must be reversed as

neither the verdict form nor the statutory scheme reflects that the jury determination on penalty was made

"beyond a reasonable doubt."

XX. THE DEATH PENALTY IS UNCONSTITUTIONAL.

The Eighth Amendment draws "its meaning from the evolving standards of decency that mark the

progress of a maturing society," Gregg v. Georgia, 428 U.S. 153, 172-173 (1976) (quoting Trap v. Dulles, 356

U.S. 86, 101 (1958)). The Amendment is not static, but rather, must be interpreted in "a flexible and dynamic

manner." Id. at 171. As Justice Brennan outlined in Furman, there are four principles inherent in the Cruel and

Unusual Punishment Clause of the Eighth Amendment: (1) the "punishment must not be so severe as to be

degrading to the dignity of human beings"; (2) the punishment must not be inflicted arbitrarily; (3) the

identified with racial separation. Because there are citizens who not only continue to hold separatist views, but who revere the

confederate flag precisely for its symbolism of those views, it is not an irrational inference that one who displays the confederate flag may harbor racial bias against African-Americans.")

82

punishment must not be "unacceptable to contemporary society"; and (4) the punishment must not be

"unnecessary and therefore excessive." Furman v. Georgia, 408 U.S. 238, 271-79 (1972). Addressing the second

principle, Justice Brennan concluded that "When the punishment of death is inflicted in a trivial number of the

cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily.

Indeed, it smacks of little more than a lottery system." Furman, 408 U.S. at 293-95 (Brennan, J. concurring).

A. The Imposition of the Death Penalty in Louisiana is Arbitrary and Capricious

As it was at the time of Furman,60 the sentence of death is now arbitrarily applied in this country. In 2012,

only 43 individuals were executed in the United States, only 39 in 2013, and only 35 in 201461- numbers

mirroring those that led the Furman Court to conclude that the punishment was cruel and unusual.62 In Louisiana,

the sentence of death is imposed so infrequently when compared to the high number of non-negligent homicides

that it is akin to being struck by lightning. Only one individual has been executed in the state in the past thirteen

years. In 2012, although there were roughly 350 non-negligent homicides in the state, only one defendant was

sentenced to death. Marcus Reed was one of only two defendants sentenced to death in 2013, both out of Caddo

Parish. In Furman, the United States Supreme Court, looking at similar numbers, held that the application of the

death penalty was arbitraty and capricious:

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. . . But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fomteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

408 U.S. at 309-10 (Stewart, J.).

B. A National Consensus Has Emerged Marking the Evolution of a Maturing Society that the Death Penalty is Excessive

A majority of Americans now favor life imprisonment without parole over the death penalty. A poll

released on June 5, 2014, by ABC News and the Washington Post shows that a majority of Americans-52%-

60 At the time that Furman was decided, the nation had seen a "steady decline in the infliction of this punishment in every decade since the 1930's." Furman v. Georgia, 408 U.S. 238, 291(1972). From 1960 to 1962, only 48 individuals were executed. From 1963-1964, 36 individuals were executed. !d. Addressing these dwindling numbers, the court found that "[w]hen a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied." !d. at 293 (Bre1man, J. concurring).

61 "Executions by Year Since 1976" http://www.deathpenaltyinfo.org/executions-year (last checked February 8, 2015).

62 Furman v. Georgia, 408 U.S. 238, 291 (1972) (Brennan, J. concuning).

83

prefers a punishment of life imprisonment over the death penalty. By contrast, only 42% of Americans prefer the

death penalty over a punishment of life imprisonment without parole- the lowest percentage in 15 years.63

In the past two decades, the U.S. Supreme Court has consistently limited the class of offenders and

offenses for which the sentence of death may apply. See Atkins v. Virginia, 536 U.S. 304 (2002), Roper v.

Simmons, 543 U.S. 551 (2005), and Kennedy v. Louisiana, 554 U.S. 407 (2008). With each case, the Court has

echoed the judgment of the Furman Comi, that "[ e ]volving standards of decency must embrace and express

respect for the dignity of the person, and the punishment of criminals must conform to that rule." Kennedy, 554

U.S. at 420. Notably, a majority of Justices who originally decided Gregg, have now determined that the "death

penalty experiment" on the whole has failed.

A majority of states have abandoned the death penalty altogether, either in law or in practice.64 Indeed

more states have abolished the death penalty than at the time of Furman.65 In nineteen jurisdictions, a person

could never be sentenced to death today. Eighteen states plus the District of Columbia have abolished the death

penalty. The highest courts of New York and Massachusetts ruled their respective death penalty statutes

unconstitutional, and no legislation has been enacted to introduce the death penalty. The other sixteen states and

the District of Columbia have prohibited capital punishment through legislation or constitutional guarantee.66 In

four additional states, moratoria exist. Governors in Oregon, Colorado, Washington and Pennsylvania have

essentially stopped the application of the death penalty. Similar to Oregon, Colorado had executed only one

person in the past 47 years. Washington has executed only five people in a half-century. In Pennsylvania,. the

Governor elect announced that a moratorium would be in place beginning January 20, 2015. Pennsylvania has

executed only three people- all volunteers - in the last fifty years.

At least seven other states and the federal government exhibit a degree of long-term disuse that rivals

Oregon, Colorado and Washington. New Hampshire, which has only one occupant on its death row, has not

63 http://www. wash ingtonpost. com/b logs/ govbeat/wp/20 14/06/05/support-for-death-penalty-still-high-but -clown! (last checked February 8, 2015). Even in the death penalty states, a plurality (49%) prefers life imprisonment.

64 Cf Nancy Leong, Death Penalty Becomes More Rare and More Problematic, Buffington Post, 1/5/2015. http://www.huffingtonpost.com/nancy-leong/death-penalty-becomes-mor _ b _ 6404 7 56.html

65 At the time of Furman, eleven states had abolished capital punishment. See Furman v. Georgia, 408 U.S. 238 ( 1972) referencing Appendix I.

66 In addition to these states, Puetto Rico, an unincorporated territory of the United States with a population of 3.6 million people has constitutionally prohibited capital punishment. See Const. Com. of Pue1to Rico, (1952) Art. II, Sec. 7 ("The right to life liberty and the enjoyment of property is recognized as a fundamental right of man. The death penalty shall not exist."). Because of Pue1to Rico's status as a Commonwealth of the United States, it is subject to federal jurisdiction, and the federal government has recently sought the death penalty on federal charges in a number of cases. However, no death sentences have resulted. Cf Tambala Killer Dodges Death Penalty, Caribbean Business, 3/23/2013 (noting the fifth time federal prosecutors sought death fi·om a Puerto Rico jury, and the fifth time the jury had returned life). The article observed that the "defense sought to appeal to broad opposition to capital punishment among Puerto Rico residents," asking the jury to ensure "the shadow of the death penalty won't fall on this beautiful island." I d.

84

performed an execution in 86 years. Wyoming has executed one person in fifty years and its death row is empty.

Kansas, as the Supreme Comt recently noted, "has not had an execution in almost five decades." Hall v. Florida,

134 S. Ct. 1986, 1997 (2014). Indeed, since adopting its current capital punishment statute in 1994, no death

sentence has survived its initial appellate review. Idaho, Montana, Nebraska, and South Dakota-and the Federal

Government67 have performed only three executions each over the past 50 years. Moreover, of the sixteen

executions that these eight states have performed over the last fifty years, more than a quarter have involved

inmates who volunteered for execution.

In sum, thitty-one jurisdictions, including the District of Columbia and the federal government, have

either abolished the death penalty or have imposed one or fewer executions per decade over the past half-century.

CONCLUSION

Accordingly, for all of the foregoing reasons and any other reasons revealed by the record, Mr. Reed

respectfully requests that this Comt reverse his conviction and death sentence, and remand for a new trial and/or

sentencing hearing.

~w;;nitteJ;v

BLYTHE TAPLIN, La. BarNo. 32715 G. BEN COHEN, La. Bar No. 25370 RACHEL LINDNER, La. Bar No. 34642

THE CAPITAL APPEALS PROJECT 636 Baronne Street

New Orleans, LA 70113

Tel: 504-529-5955 Fax: (504) 558 0378

CERTIFICATE OF SERVICE

I hereby certify that this document was sent by first class mail, postage pre-paid, or delivered by hand, upon:

Suzanne Owen, Assistant District Attorney, Caddo Parish 525 Marshall St.

Shreveport, LA 71101

on this t l day of March, 2015.

/!YVvr/0= Blythe Taplin

67 Death sentences from traditional federal capital crimes such as murder during the course of a bank robbery or kidnapping, 18 U.S. C. 1201,2113, are few. Mr. Reed does address sui generis offenses such as murder by use of a weapon of mass destmction, killing of a prison guard by a federal prisoner, terrorism, or treason.

85