Opinion
No. 2012–KA–0879.
2013-12-10
STATE of Louisiana v. Dejean PIERCE, Tyronne Stevenson.
Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State Of Louisiana. Mary Constance Hanes, New Orleans, LA, for Defendant/Appellant, Dejean Pierce.
Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State Of Louisiana. Mary Constance Hanes, New Orleans, LA, for Defendant/Appellant, Dejean Pierce.
Holli Herrle–Castillo, Marrero, LA, for Defendant/Appellant, Tyronne Stevenson.
(Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
ROLAND L. BELSOME, Judge.
The defendants appeal their joint convictions of second degree murder and attempted second degree murder. For the following reasons, we vacate the defendants' convictions and sentences, and remand for further proceedings.
STATEMENT OF THE CASE
The defendants, Dejean Pierce and Tyronne Stevenson, were jointly charged by grand jury indictment with one count of second degree murder, a violation of La. R.S. 14:30.1, and one count of attempted second degree murder, a violation of La. R.S. 14:(27)30.1. Both defendants pleaded not guilty at their arraignment. The trial court denied defendants' motions to suppress the evidence and identification. After a joint trial by a twelve-person jury, both defendants were found guilty as charged on each count. Their post-trial motions were denied, and the defendants each stated that they were ready for sentencing. On their respective convictions for second degree murder, the trial court sentenced each defendant to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Additionally, they received concurrent fifty-year sentences for their attempted second degree murder convictions. This timely appeal followed.
FACTS
On May 17, 2009, Jerrold Smith and Qian Sabatier, who were dating, went to the “Bus Stop” bar at Hickory and Leonidas Streets, in New Orleans. The defendants, Dejean Pierce and Tyronne Stevenson, later entered the bar with their faces partially covered, armed with an AK 47 and 9 mm handgun. They opened fire, firing approximately thirty shots. Qian Sabatier sustained fatal gunshot wounds. Jerrold Smith was injured; but, he survived the attack.
The first names of the victims are spelled as they are in the indictment—“Qian” and “Jerrold.” However, they are spelled “Keyone” and “Gerald” in the trial transcript. In this opinion, we will use the spellings as they appear in the indictment.
He was shot in the back, twice in the head, in his elbow, under his left foot, and had bullet fragments in his knee. The bullet that struck him in his back was still lodged in him, and one bullet that struck him in the head was still lodged behind his ear.
Two days after the shooting, Smith was released from the hospital, and taken to police headquarters. At that time, he named “Duke” and “DJ” as the individuals who had shot him and Qian Sabatier. He later identified both of the defendants in a photographic lineup.
ERRORS PATENT
A review of the record reveals no errors patent on the face of the record.
DISCUSSION
In their respective assignments of error, both defendants assert that the evidence was insufficient to support their convictions. They argue that the State failed to prove the identity of the shooters, as it did not negate the reasonable probability of misidentification.
When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Marcantel, 00–1629, p. 8 (La.4/3/02), 815 So.2d 50, 55 (citation omitted).
When reviewing the sufficiency of the evidence to support a conviction, this court is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which dictates that to affirm a conviction “the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).
In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 02–1869, p. 16 (La.4/14/04), 874 So.2d 66, 79 (citation omitted). Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98–341 (La.1/8/99), 725 So.2d 1291, 1293 (citation omitted). “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992) (citation omitted).
A fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Where rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all evidence most favorable to the prosecution must be adopted on review. Only irrational decisions to convict by the trier of fact will be overturned. State v. Winston, 11–1342, pp. 8 (La.App. 4 Cir. 9/12/12), 100 So.3d 332, 337 (citations omitted).
When the identity of the defendant as the perpetrator is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden under Jackson v. Virginia, supra. State v. Galle, p. 31 (La.App. 4 Cir. 2/13/13), 107 So.3d 916, 935;State v. Everett, 11–714, p. 15 (La.App. 4 Cir. 6/13/12), 96 So.3d 605, 619,writs denied,12–1593, 12–1610 (La.2/8/13), 108 So.3d 77.
The defendants focus on the lack of physical evidence linking them to the crime. They further attack the credibility of Jerrold Smith, the surviving victim and primary witness. They contend that his version of the events was inconsistent and unbelievable.
The defendants also argue that Mr. Smith, a convicted felon and admitted drug dealer, fingered them as the shooters and testified against them to avoid being prosecuted on firearms charges. Although the charges against Mr. Smith were dropped before the instant trial, Mr. Smith testified that he never made an agreement in exchange for his testimony, and he believed that the charges were still pending.
Admittedly, there was no physical evidence definitively linking either defendant to the shootings. However, in his initial statement identifying the defendants as shooters, Smith told Detective Catherine Beckett of the New Orleans Police Department that “DJ” (Pierce) was wearing a black Dickies shirt at the time of the shooting; and, a black Dickies shirt was subsequently found during a search of Pierce's bedroom.
At trial, Smith testified that Pierce was armed with a 9mm handgun with an extended magazine. Eighteen 9mm spent cartridge casings were found at the crime scene, and according to what Detective Beckett said, an extended 9mm caliber magazine was found in the drawer of a nightstand in Pierce's bedroom.
Detective Beckett confirmed that this magazine did not fit the .40 caliber Desert Eagle handgun that also was found in under a mattress in defendant Pierce's bedroom.
Smith further testified that his son told him that the defendants, “DJ” and “Duke,” were “going to get him;” yet, he admitted that he did not pay attention to the defendants when they walked into the bar with their faces obscured, and turned his back to them before the shooting. While Smith testified that he had a “semi-beef” with defendants, he also said that he recently had seen them after a funeral and they had only given each other “hard stares.” Smith also testified that he felt protected because he was armed—however false that sense of security may have been.
Additionally, Detective Beckett testified that after Tyronne “Duke” Stevenson's arrest, she read him his rights, he said nothing, and refused to sign the rights-of-arrestee form. When she asked him if he wanted to make a statement, he said he had not done anything and asked her what she wanted to know. In Stevenson's presence, Detective Beckett indicated to a Detective Pardo that there were video recordings from the bar, something she admitted was not true. At that point, Stevenson looked up at her and began laughing. He pulled his T-shirt up over his nose, continued to laugh, and said: “You go [sic] video? You got video? Man, just take me to jail.” Stevenson's response to Detective Beckett's interrogation also tends to support the accuracy of Smith's identifications.
The jury clearly credited Jerrold Smith's testimony identifying the defendants as the gunmen. Given Smith's testimony and identification of the defendants together with the evidence taken from Pierce's home and Stevenson's response to Detective Beckett's interrogation, a rational trier of fact could have found beyond a reasonable doubt that defendants Pierce and Stevenson killed Qian Sabatier and wounded Jerrold Smith, while having the specific intent to kill or to inflict great bodily harm upon each victim. Therefore, we find there was sufficient evidence to support the defendants' convictions.
Next, both defendants contend that the trial court erred in granting the State's reverse-Batson challenge, and reseating juror, Cindy Ehrlicher, who was removed on a peremptory strike by Stevenson. , We agree.
Though Pierce did not object to the trial court's initial ruling finding Stevenson's race-neutral reason for striking Ms. Ehrlicher to be “acceptable,” he did expressly object for the record when Stevenson subsequently asserted the additional race-neutral reason that, in a civil matter, Ms. Ehrlicher had voted for the defendant. The trial court then rejected this reason and asked if there were any additional challenges. At that time, Pierce noted his objection to Stevenson's challenge explaining that both defendants were “working together.”
Both defendants argue that the trial court erred in not accepting the race-neutral reason(s) articulated by Stevenson in his strike of Ms. Ehrlicher. The direct consequence of the trial court's ruling and reseating of Ms. Ehrlicher was that Pierce was deprived of his right to strike her for the same reasons the trial court had found unacceptable in Stevenson's attempted strikes. The Louisiana Supreme Court has held that “an erroneous ruling of the court which deprives a defendant of one of his peremptory challenges is a substantial violation of his constitutional right to a fair trial and requires reversal.” State v. Sevin, 243 La. 1023, 150 So.2d 1, 3 (1963). Therefore, if the trial court's rejection of Stevenson's race neutral reason(s) for striking Ms. Ehrlicher was erroneous, then Pierce was also deprived of the right to peremptorily strike her for those same reason(s).
The Louisiana Supreme Court addressed Batson challenges in State v. Nelson, 10–1724, pp. 7–9 (La.3/13/12), 85 So.3d 21, 27–29 (footnotes omitted), stating:
It is noted that Nelson was decided after trial in this case.
In [Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ], the United States Supreme Court held that the use of peremptory challenges to exclude persons from a jury based on their race violates the Equal Protection Clause. Batson, 476 U.S. at 96–98, 106 S.Ct. 1712. The holding in Batson was initially adopted by this Court in State v. Collier, 553 So.2d 815 (La.1989), and has been codified by the legislature in Louisiana Code of Criminal Procedure article 795(C) and (D). While Batson discussed a prosecutor's use of peremptory challenges, its holding is equally applicable to criminal defendants. See, Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992). The Court in McCollum specifically held “the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges.” 505 U.S. at 59, 112 S.Ct. 2348. Further, in State v. Knox, this Court considered whether the State may successfully object during voir dire to a minority defendant's alleged racially discriminatory exercise of peremptory challenges. 609 So.2d 803 (La.1992). We applied McCollum to hold that the State may invoke Batson where a black criminal defendant exercises peremptory challenges against white prospective jurors. Id. at 806. An accusation by the State that defense counsel has engaged in such discriminatory conduct has come to be known as a “reverse-Batson ” challenge.
The Court in Batson outlined a three-step test for determining whether a peremptory challenge was based on race. Under Batson and its progeny, the opponent of a peremptory strike must first establish a prima facie case of purposeful discrimination. Second, if a prima facie showing is made, the burden shifts to the proponent of the strike to articulate a race-neutral explanation for the challenge. Third, the trial court then must determine if the opponent of the strike has carried the ultimate burden of proving purposeful discrimination. Batson, 476 U.S. at 94–98, 106 S.Ct. 1712.See also, State v. Givens, 99–3518 (La.1/17/01), 776 So.2d 443, 448.
Batson Step One
In the instant case, the State made a reverse-Batson challenge after Stevenson struck Ehrlicher. Ehrlicher was the eighth white juror to be stricken. Thus, the challenge was based on the number of strikes to white jurors. The trial court found that the State made a prima facie showing of racial discrimination, and Stevenson offered race-neutral reasons for his strikes. Since Stevenson offered reasons explaining the use of peremptory challenges, the correctness of the trial court's finding of a prima facie case of discrimination is moot. See Nelson, 10–1724 at p. 10, 85 So.3d at 29.
In State v. Sparks, 88–17, p. 37 (La.5/11/11), 68 So.3d 435, 468, the Supreme Court noted that, in order to establish a prima facie case of discrimination, the moving party must: 1) demonstrate that the opposing party's challenges were directed at a member or members of a cognizable group; 2) show that the challenges were peremptory, rather than for cause; and 3) show circumstances sufficient to create an inference that the opposing party struck the venire person because of his or her membership in that particular group.
Batson Steps Two and Three
Thus, the analysis proceeds to a review of the trial court's actions pursuant to step two and three of Batson. In the instant reverse-Batson case, step two involved defendant Stevenson presenting race-neutral reasons for his peremptory challenges made up until the point of the State's reverse-Batson objection, to rebut the prima-facie showing of intentional racial discrimination. Batson, 476 U.S. at 97, 106 S.Ct. 1712;Nelson, 10–1724, p. 11, 85 So.3d at 30. The reasons do not have to be persuasive, or even plausible, for at the second step of the Batson inquiry the issue is the facial validity of the striking party's explanation. Nelson, supra (citation omitted). Unless a discriminatory intent is inherent in the striking party's explanation, the reason offered will be deemed race-neutral. Id.
When offering race-neutral reasons for the stricken jurors, Stevenson mistakenly asserted that Ehrlicher had stated that her father had been murdered and that her husband had been abducted at gunpoint. At that time, both the State and the trial court asserted that that had been another juror, not Ehrlicher. Pierce then indicated that Stevenson was “one off,” and that Ehrlicher was the victim of a car theft. The State agreed, stating: “Stolen car.” After Stevenson offered race-neutral reasons for the remaining jurors, the trial court stated that it did not find all of Stevenson's answers “acceptable.” It further explained that Ehrlicher would be re-seated on the jury. Stevenson then argued that she was the victim of a stolen car and the instant crime was a “victim crime.” The trial court responded: “She's now on the jury. I don't find your race-neutral reason to be grounds to cut her. I find that to be a violation of Batson.” In the same challenge conference, Stevenson requested to “revisit” the issue of now-reseated juror Ehrlicher, and the trial court granted that request, with no objection from the State. At that time, he explained that she had voted for the defendant in a civil matter, which was “the same thing as voting for the State in a criminal matter.” The trial court indicated that Ehrlicher was still on the jury, and both defendants objected.
The record indicates that Ms. Ehrlicher was actually the victim of two car thefts.
The transcript from voir dire indicates that Ehrlicher served on a jury in a civil case that ultimately settled. Though Stevenson was again mistaken, neither the State nor the trial court challenged the correctness of his assertion.
In Nelson, which is heavily relied upon by Pierce, the Supreme Court noted that the burden in providing a facially neutral reason under the Batson analysis was one of “production and not one of persuasion” and cautioned against combining steps two and three of the Batson analysis. Nelson, 10–1724, pp. 14–15, 85 So.3d at 32. Where the trial court requires a superficially race-neutral and gender-neutral reason to be at least minimally persuasive during the second step of the Batson analysis, the trial court impermissibly shifts the burden of proof from the party challenging the use of peremptory strikes. Id., 10–1724, p. 16, 85 So.3d at 32. Of course, once the opposing party has presented facially neutral reasons for exercising his peremptory challenges, “an issue of fact is joined, and the trial court must assess the weight and credibility of the explanation in order to determine whether there was purposeful discrimination in the use of the challenge.” State v. Collier, 553 So.2d 815, 820 (La.1989) (citation omitted). In so doing, the trial court must conclude that the opposing party's reasons are both neutral and reasonable and not pretextual. Id., 553 So.2d at 821 (citation omitted).
Ultimately, the Nelson Court concluded that the trial court erred in granting the state's “reverse-Batson ” motion. More specifically, it found that “[a]lthough none of the proffered reasons appears to inherently violate equal protection, the court nonetheless rejected nine of them for no specific reason. In rejecting defendants' proffered race-neutral reasons, the trial court reasoned that defendants failed to rebut the State's prima facie case of discrimination, essentially finding the defendants' reasons not persuasive enough.” Nelson, 10–1724, p. 16, 85 So.3d at 32–33. Accordingly, it found that the trial court improperly shifted the burden of proof to the defendant when it rejected the defendant's race-neutral reasons “without conducting an analysis of any of the considerations indicative of purposeful discrimination.” Id. See also State v. Bourque, 12–1358, p. 7 (La.App. 3 Cir. 6/5/13), 114 So.3d 642, 648 (where the court held that the trial court impermissibly shifted burden of proof to defendant, at second stage of inquiry into State's reverse-Batson claim, by rejecting as nonpersuasive defendant's proffered race-neutral justifications for exercise of peremptory challenges against white males, without requiring State to prove purposeful discrimination).
Likewise, our review of the record reflects that the Stevenson's proffered reasons for exercising his peremptory challenges were facially race-neutral. Challenges that a prospective juror has been a victim of crime, and as to the nature of one's vote in a civil trial have been recognized as valid, race-neutral reasons for defeating a Batson claim. State v. Jacobs, 09–1304, pp. 6, 12–13 (La.4/5/10), 32 So.3d 227, 232, 235. Thus, when the trial court rejected those reasons without requiring the state to prove purposeful discrimination, it impermissibly shifted the burden of proof to Stevenson. Therefore, we find that the trial court erred in granting the State's reverse-Batson challenge.
Though the State argues this error is harmless, it implicates a constitutional right guaranteed to the defendant by the State of Louisiana; thus, a harmless error analysis is inappropriate. An accused has a constitutionally guaranteed right to peremptorily challenge jurors. La. Const. art. I, § 17. See also, Nelson, 10–1724, p. 23, 85 So.3d at 37;State v. Lewis, 12–1021, p. 13 (La.3/19/13), 112 So.3d 796, 803;State v. Thompson, 495 So.2d 328, 330 (La.App. 4 Cir.1986); and State v. Seals, 09–1089 (La.App. 5 Cir. 12/29/11), 83 So.3d 285, 315,writ denied,12–293 (La.10/26/12), 99 So.3d 53, and cert. denied,––– U.S. ––––, 133 S.Ct. 2796, 186 L.Ed.2d 863 (U.S.2013).
The State, however, is not afforded the same constitutional right to peremptory challenges. Its right is statutory only. SeeArticle I, § 17; and La.C.Cr.P. art. 799.
The rationale of State v. Hills, 241 La. 345, 129 So.2d 12 (1960), still provides excellent guidance as to the scope of voir dire examination:
... The intelligent exercise of the right of rejection, by use of ... peremptory challenges, is the meat of the privilege[.]
17 La. Civ. L. Treatise, Criminal Jury Instructions § 8:4 (3d ed.).
Here, the trial court erroneously refused to accept the race-neutral reasons offered by Stevenson, depriving him of his state constitutional right to reject her by way of peremptory challenge. This pre-trial error “is a structural one, affecting the framework within which the trial proceeded,” requiring reversal. State v. Bourque, 12–1358, p. 8 (La.App. 3 Cir. 6/5/13), 114 So.3d 642, 649. Compare: Lewis, 12–1021, p. 796, 112 So.3d at 799 (where the Supreme Court distinguished the constitutional right to peremptory challenges and the statutory right to backstrike, finding that the right to use a peremptory challenge to backstrike a provisionally accepted juror implicates a statutory right not guaranteed by the constitution; therefore, it is subject to the harmless error analysis).
Pierce's right to peremptorily challenge Ms. Ehrlicher was also deprived when he objected to the second race-neutral reason offered by Stevenson, and the trial court acknowledged the objection, along with the fact that the defendants were working together.
In Nelson, the trial court improperly merged steps two and three during a reverse-Batson challenge. Id., 10–1724, p. 16, 85 So.3d at 32. The Supreme Court vacated the defendants' convictions and sentences due to the trial court's faulty application of Batson, as well as its error in formulating a remedy for the alleged violation, which included a deprivation of their peremptory challenges. Id., 10–1724, pp. 16–17, 25, 85 So.3d at 32–33, 38–39. Significantly, two Justices wrote separately to explain that the holding on the reverse-Batson issue was reversible error; thus any discussion regarding the validity of the trial court's remedy was dicta. Id., 10–1724, p. 25, 85 So.3d at 39 (Victory, J., concurring in the result) (Guidry, J., concurring in part, dissenting in part). Likewise, in the instant case, the trial court's ruling on the reverse-Batson challenges was reversible error.
There is jurisprudence indicating that it would be proper to remand the case to allow the State to rebut the race-neutral reasons offered by the defendant, and direct the trial court to make an express determination, nunc pro tunc, regarding purposeful discrimination. See State v. Maxwell, 09–2235 (La.4/16/10), 33 So.3d 155 (where the Supreme Court remanded the case to allow the State the opportunity to offer race-neutral reasons once this Court found that the defense made a prima facie case for discrimination). If the trial court were able to make a nunc pro tunc determination that purposeful discrimination existed, the need for reversal would be obviated. However, since the trial judge who participated in the instant voir dire is no longer on the bench, we find remand inappropriate. See State v. Myers, 99–1803, p. 6 (La.4/11/00), 761 So.2d 498, 502 (where the Supreme Court found that the trial court observes firsthand the racial composition, demeanor, and general atmosphere of the voir dire, which simply cannot be replicated from a cold transcript). Consequently, the error cannot be remedied, and reversal is required.
DECREE
Consequently, we vacate both of the defendants' convictions and sentences and remand the matter to the trial court for further proceedings. Having found merit with the defendants' assertions of error regarding the State's reverse-Batson challenge, we pretermit their remaining assignments of error.
REVERSED AND REMANDED. TOBIAS, J., concurs.
TOBIAS, J., concurs.
I respectfully concur in the majority's decision that holds that the evidence was sufficient to convict the defendants. However, I write separately to address why, in this case, I find that a reversal and remand is necessary under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
I read the evidence in this case as a bit stronger than the majority. Accordingly, I restate the facts as follows:
I.
The defendants Dejean Pierce and Tyronne Stevenson were convicted of the 17 May 2009 second degree murder of Qian Sabatier (“Qian”) and the attempted second degree murder of Jerrold Smith (“Jerrold”).
Testimony of Cindy Woods
New Orleans Police Department (“NOPD”) Assistant Police Communications 911 supervisor Cindy Woods identified an audio recording of a 911 call under NOPD item # E–21968–09, and a written incident recall reflecting that call and incident. The audio recording was played for the jury. Ms. Woods confirmed on cross examination that no description of the perpetrators was mentioned in the 911 call.
Testimony of Catherine Beckett
NOPD Detective Catherine Beckett was assigned to the homicide division on 17 May 2009. She investigated a shooting on that date at the “Bus Stop” bar at 8540 Hickory Street in New Orleans. Detective Beckett identified photographs of the scene, where she found an almost completely unresponsive female on the floor of the bar and a male, both having sustained multiple gunshot wounds. Numerous spent cartridge casings were on the ground, approximately thirty-AK47 casings and seventeen–9 mm casings. Because the male victim was in so much pain, the only thing she was able to learn from him was his name, before he was taken away by EMS. She also identified a Heckler & Koch .45 caliber semi-automatic handgun found in the bar that had blood stains on its grip. Detective Beckett instructed the crime scene technician to collect a sample of that blood. Nine to eleven witnesses were in the bar.
She learned from one witness, Jacqueline Washington, that two black males had been the perpetrators. The witness believed the perpetrators had something covering their faces. The witness told Detective Beckett that when she went to assist the male victim he took a weapon from his pocket and handed it to her, and she placed it on a shelf in the kitchen. The detective noticed that Ms. Washington had a blood stain on her hand, and so she instructed the crime scene technician to take a blood sample from that stain. Detective Beckett testified that seven bullets and nine bullet fragments were recovered from the female victim, Qian's, body during an autopsy. She identified those items in evidence.
Detective Beckett interviewed shooting victim Jerrold at police headquarters on 19 May 2009; Detective Nathan McGee was also present. Jerrold came directly from the hospital, where he had been since being shot. Detective Beckett presented Jerrold a rights-of-arrestee form, advising him of his rights and that he was under investigation for being a felon in possession of a firearm and for possession of a firearm in an alcoholic beverage outlet. Jerrold waived his rights and gave a statement admitting that he had the .45 caliber handgun in his pocket at the time he was shot because he had been told by family members that his life was in danger. He stated that “DJ” and “Duke” shot him and killed Qian. He described “Duke” as short, wearing his hair in short twists, and wearing a white T-shirt. He said “Duke” had been armed with the AK47. Jerrold described “DJ” as taller than “Duke,” wearing his hair in a longer (than “Duke's”) dreadlock style, and wearing black Dickies pants and a black Dickies shirt. He said “DJ” was armed with a 9 mm firearm with a very long extended magazine.
The detective described how Detective McGee prepared a photo lineup containing a photo of the defendant, Dejean “DJ” Pierce. He also determined that “Duke” was the defendant, Tyronne Stevenson. Detective Beckett prepared a lineup containing defendant Stevenson's photo. Jerrold identified each defendant as one of the two shooters in the respective lineups containing their photos.
Detective Beckett further explained that she was in the process of securing arrest warrants for the two defendants and search warrants for their residences when she was contacted by Detective McGee—who had left the office and was in the neighborhood where defendant Stevenson resided. Detective McGee informed her that he had observed defendant Stevenson standing outside in that neighborhood. Detective McGee arrested Mr. Stevenson at that time, thus circumventing the need for Detective Beckett to execute an arrest warrant and search warrant at the same time when it might have been possible to locate the guns involved in the crimes in Mr. Stevenson's residence. A SWAT team executed search and arrest warrants at the residence of Dejean Pierce. A Desert Eagle .40 caliber semi-automatic handgun was recovered underneath a mattress in defendant Pierce's bedroom, as well as what Detective Beckett described as an extended 9 mm caliber magazine, which was found inside the drawer of a nightstand in that room. Detective Becket replied in the negative when asked whether the 9 mm caliber magazine fit the .40 caliber handgun recovered. Also recovered from Mr. Pierce's room was a black Dickies shirt matching the description given by Jerrold of the shirt worn by the “DJ.”
Detective Beckett also testified that they obtained a search warrant for a Dodge Charger automobile. Inside of it they found a handwritten letter and a temporary vehicle registration. The detective also identified two cell phone bills and a hospital bill addressed to Dejean Pierce, 9003 Nelson Street, the bills having been recovered from the same bedroom where the other evidence was recovered.
The detective identified a rights-of-arrestee form she presented to defendant Stevenson, dated 19 May 2009 at 10:40 p.m., which he refused to sign. She testified that when she read Mr. Stevenson his rights, he said nothing. When she asked him if he wanted to make a statement, he said he had not done anything and asked the detective what she wanted to know. Detective Beckett said she indicated to a Detective Pardo (in Mr. Stevenson's presence) that there were video recordings from the bar. She admitted this was untrue. However, she testified that at that point Mr. Stevenson looked up at her and began laughing. He pulled his T-shirt up over his nose, continued to laugh, and said: “You go [sic] video? You got video?” He then said, “Man, just take me to jail.”
Detective Beckett confirmed on cross examination by counsel for defendant Stevenson that the victims were alive when she arrived on scene shortly after the initial dispatch call went out. She stated that she filled out the request form to have some of the items of evidence tested, such as the recovered spent cartridge casings, spent bullets, and bullet fragments. She did not recall whether these items were tested. However, she later replied that counsel for defendant Stevenson was correct when he asked: “So—and just so I'm clear, there were no prints on the spent casings, right?” She also testified in response to a question by that same defense counsel that “fingerprints are unobtainable from a spent casing.”
Detective Beckett did not submit samples of blood located in various parts of the bar for testing. A cell phone was recovered, but its ownership was never determined. She confirmed that, while Jerrold screamed out in pain at the scene, he never screamed out anything like “Duke' shot me,” “Tyronne shot me,” “DJ' shot me” or “Dejean shot me.” Detective Beckett confirmed that there were from eight to twelve people in the bar at the time of the shootings. It was learned from witnesses that each shooter had something concealing part of his face during the attack. Neither defendant was identified for police that night at the scene. When Detective Hamilton went to the hospital he learned that Qian had expired, and he learned from Jerrold that two individuals shot him. Detective Beckett confirmed that at that time Jerrold did not identify either of those persons as “Duke” or “DJ,” and not identify the shooters by their nicknames until 19 May 2009, after he was released from the hospital.
Detective Beckett further confirmed on cross examination that when Jerrold was released from the hospital, she instructed the Second Police District to have Jerrold transported to the homicide unit, where he was advised of his rights relative to his being under investigation for possession of a firearm by a convicted felon and possession of a firearm in an alcoholic beverage outlet. It was at this time, 19 May 2009, that Jerrold first identified the shooters as “DJ” and “Duke.” Detective Beckett confirmed that Jerrold was not arrested, although he admitted to possessing the .45 caliber handgun in the Bus Stop bar. Jerrold was later arrested on the gun charges, but they were refused by the District Attorney's Office. The detective also confirmed that she had made arrangements to have Jerrold placed in a “safe house” in connection with the District Attorney's Office's witness protection program.
The detective also confirmed on cross examination that no fingerprint evidence connecting defendant Stevenson to any of the spent cartridge casings was found at the scene. She said Jerrold told her he had not been drinking at the time of the shooting and she did not ask him whether he had been using any drugs that evening. She did not know the content of any toxicology tests on Jerrold's blood from when he was treated for the gunshots at the hospital. Detective Beckett testified that the shooters were essentially directly in front of everyone in the bar, given that it was a very small bar. Other than Ms. Washington, no one gave a description of the alleged perpetrators because, Detective Beckett testified, they were so terrified they did not want to talk. She said all they kept saying was that they saw big guns and hit the ground. She subsequently contacted witnesses to have them come to her office and view the photo lineups, but they were not willing to do so.
Detective Beckett confirmed on further cross examination that when Mr. Pierce was arrested at his residence by SWAT team members, he did not resist. The detective confirmed that the black Dickies shirt seized from defendant Pierce's bedroom was never tested for gunshot residue. Nothing of evidentiary value was recovered during a search of the Dodge Charger belonging to Mr. Pierce.
On redirect examination, Detective Beckett testified Jerrold reported that “DJ” had a bandana covering part of his face that fell down at some point and that “Duke” had a white T-shirt pulled up that also fell down. She replied in the negative when asked whether Jerrold had sought any consideration concerning possible firearms violations committed by him in exchange for information as to the perpetrators of the shootings.
Testimony of Kenneth Leary
Retired NOPD Officer Kenneth Leary was qualified by stipulation as an expert in the field of “the identification and comparison of ballistics.” Officer Leary worked in the firearms examination unit from 1989 until 2010, and had dusted objects for fingerprints prior to then, from 1984 to 1989. He testified that the .40 caliber Desert Eagle handgun recovered from Mr. Pierce's residence had no connection to the ballistics evidence recovered from the crime scene and the body of Qian. He testified that he had never recovered a fingerprint from a fired/spent cartridge casing. He explained that the chances of a fingerprint remaining on a cartridge casing after the explosion that is the firing of a gun were “not that great.” Officer Leary also testified on cross examination concerning gunshot residue. He stated that during the firing of a gun different chemical compounds in the gases coming out of the firearm could be transferred to the victim's clothing (if the victim is close enough), to the shooter's hand, or to the shooter's clothing if the firearm is positioned close enough to the shooter's body. He confirmed that every time the firearm is discharged the potential exists for gunshot residue to be expelled from the weapon. He confirmed that a test exists to determine whether gunshot residue is present on a person's clothing, and that such a test could be done in the NOPD Crime Lab.
Testimony of Tarez Cook
New Orleans Police Officer Tarez Cook, who worked with the NOPD Crime Lab, processed the crime scene and wrote a report. He identified evidence collected at the scene and photographs he took thereat.
Testimony of Samantha Huber
Dr. Samantha Huber, qualified by stipulation as an expert in forensic pathology, performed an autopsy on Qian. The victim sustained twenty-two gunshot wounds, multiple abrasions from bullet fragments hitting her body, and minor blunt force injuries. All but two of the bullet wounds were received from the back, and all of them traveled at a downward angle from top to bottom. Fourteen of them were perforating or through-and-through wounds. Some of the wounds, around the hips and legs, suggested that she was most likely in a sitting position, with her legs at a ninety-degree angle to her body. The most serious gunshot wound was one that perforated her aorta, which caused her death from blood loss. Dr. Huber collected fifteen projectiles from Qian's body. She found no evidence that would lead her to conclude that Qian had been used as a human shield.
Testimony of Jerrold Smith
Jerrold testified that he used to live in the “Pigeon Town” neighborhood of New Orleans, where he grew up. The corner of Hickory and Leonidas Streets is in that neighborhood. Jerrold was thirty-one years old at the time of trial. He had previously been convicted of possession of cocaine with intent to distribute and distribution of heroin. He replied in the negative when asked whether he was still in “that life.” He explained that he had a sixteen-year old son whom he did want to follow down the road he had been. He stated that his own father had been killed in 2008 at Hickory and Leonidas Streets, across the street from where he had been shot at the Bus Stop bar.
Jerrold testified that on 17 May 2009, he and Qian, whom he used to date, went to the Bus Stop bar. He was eating with his back turned to the door, while Qian had gone to play video poker. He identified the .45 caliber Heckler & Koch handgun he had in his possession that evening. He saw “Duke” and “DJ” enter the bar, but did not think anything of it and turned back around. He subsequently heard shots and started to turn around but was shot before he could do so. Jerrold testified that he, “Duke,” and “DJ” previously had what he characterized as a “semi-beef.” However, he said he had seen them a week or so earlier and they had just given each other hard stares. He said the first shot hit him in his back and did not see who fired that shot. When asked who was shooting, he said it was “Duke” and “DJ.” He said that on that evening “DJ” had his hair in dreadlocks and was wearing all black, with a t-shirt and a handkerchief. “Duke” had a white t-shirt over his face and was armed with an “AK” rifle.
Jerrold said he went to the floor, the only place he said he could go. He estimated about thirty shots had been fired at him and Qian. He was shot in the back, twice in the head, in his elbow, under his left foot, and had bullet fragments in his knee. The bullet that struck him in his back was still lodged in him, and one bullet that struck him in the head still remained behind his ear. When the shooting stopped and “Duke” and “DJ” left, he stated he was still holding onto to Qian's hand. She was spitting up blood. He did not fire any shots, although he had the gun for protection. An officer on the scene asked Jerrold if the shootings had anything to do with his father, and he told the officer “no.”
Jerrold stated that he was transported from the crime scene to the hospital, where he remained for two days. When he left the hospital he was transported by NOPD officers to police headquarters, where he was advised of his rights. He admitted that he was in possession of crack cocaine on the day of the shooting and had been selling it, and that he also had smoked marijuana that day. He answered all the questions asked of him by the police. He did not ask for a deal or offer them a deal in exchange for his cooperation.
Jerrold identified the two respective photographic lineups in which he identified the defendants. He also identified them in court as the individuals who shot Qian and him.
He admitted on cross examination that on 14 November 2009, he was arrested in Baton Rouge for theft of goods, resisting an officer, and possession of marijuana. He admitted that he pleaded guilty to those charges. He also admitted to pleading guilty relative to a May 2010 charge of criminal damage to property and felony theft. He maintained that he thought he only had the two drug convictions, as he had testified to on direct examination. Jerrold confirmed, as he had on direct examination, that he acquired the handgun he was carrying the evening of the shootings in exchange for crack cocaine. He admitted that the prosecutor had informed him that his post-shooting hospital toxicology tests had been positive for cocaine and marijuana. He admitted that he had cocaine in his mouth when he was inside the bar, but did not know whether he spit that cocaine out or had swallowed it.
Jerrold testified that the lights were dim inside the Bus Stop bar that night. He recognized “Duke” and “DJ” the moment they entered the bar, emphasizing that he knew them. He admitted that, although he was eventually arrested for possessing the gun in the bar as a convicted felon (he turned himself in), he was released without having to post a bond. It was unclear to him if he was arrested on both possession of a firearm by a convicted felon and possession of a firearm in an alcoholic beverage outlet. He was shown a document reflecting that a May 2009 charge of being a convicted felon in possession of a firearm was refused by the district attorney on 3 November 2009. Jerrold said he had been unaware the charge had been refused, and that he believed it was still pending. He indicated he had not really been concerned about having a pending gun charge. He denied that he was lying so he would not go back to jail for being a felon in possession of a firearm or possessing a firearm in an alcoholic beverage outlet. Jerrold confirmed that his son told him that “Duke” and “DJ” were going to kill him, yet he still saw them enter the bar and had turned back around before the shooting.
II.
In the case at bar, the defendants/appellants raise a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) issue. They contend that the peremptorily-challenged juror, Cindy Ehrlicher, was improperly seated on the jury over the defense's objection.
See also Snyder v. United States, 554 U.S. 908, 128 S.Ct. 2947, 171 L.Ed.2d 874 (2008).
In addition, defendant/appellant Tyronne Stevenson raises as error the trial court's denial of his motion for mistrial as to (a) the state's reference to the defense not having evidence forensically tested and (b) other crimes committed by them. However, in light of the reversal for a Batson violation, I find we may pretermit a discussion of those issues.
Peremptory challenges are required in criminal cases under our state constitution. La. Const. art. I, § 17. Federal constitutional law does not recognize a right to peremptory challenges, such being a matter of state law. See Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009). Most states do provide peremptory challenges in some form. Id., citing Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948).
Under Batson and its progeny, it is (a) not only the right of the accused to have the juror of his choosing who has been removed improperly, but (b) also the right of the juror to serve. See Batson, 476 U.S. at 87, 91, 106 S.Ct. 1712. Because the trial judge placed Ms. Ehrlicher on the jury panel, the latter is not an issue.
Louisiana courts have not directly addressed the question of whether a harmless error, La.C.Cr.P. art. 921, analysis is applicable to a Batson challenge. Other courts around the country have applied a harmless error analysis to a Batson challenge under certain circumstances.
The Louisiana Supreme Court has held that the harmless-error analysis is the appropriate standard of review of a district court ruling prohibiting a defendant from using a peremptory challenge to back strike a provisionally-challenged juror in violation of La.C.Cr.P. art. 799.1. State v. Lewis, 12–1021, p. 13 (La.3/19/13), 112 So.3d 796, 804.
In Rivera, supra, the United States Supreme Court addressed this issue and approved of the harmless error analysis applied by the Illinois Supreme Court after the trial court denied the defendant's use of a peremptory challenge, believing that the defense was discriminating against a particular prospective juror. Dissatisfied with the proffered reasons given by defense counsel for challenging the prospective juror, the trial court denied the challenge and the juror was seated. The defendant was found guilty of first degree murder.
The case was eventually heard by the Illinois Supreme Court. That court rejected the defendant's ultimate argument that the improper seating of the juror ranked as reversible error without a showing of prejudice. Citing the United States Supreme Court's guiding decisions, the Illinois court observed that “the Constitution does not confer a right to peremptory challenges.” Id., 556 U.S. at 155, 129 S.Ct. 1446. Accordingly, the Illinois court held that the denial of Rivera's peremptory challenge did not qualify as a structural error requiring automatic reversal. The court saw no indication that Rivera had been “tried before a biased jury, or even one biased juror.” Id. [emphasis by the court]. In that regard, the court stressed that Rivera did “not suggest that Gomez [the juror in dispute] was subject to recusal for cause.” Id.
The Illinois court, relying on both federal and state precedents, proceeded to consider whether it was “clear beyond a reasonable doubt that a rational jury would have found [Rivera] guilty absent the error.” Id. After reviewing the trial record, the court concluded that: “Gomez's presence on the jury did not prejudice Rivera because any rational trier of fact would have found [Rivera] guilty of murder on the evidence adduced at trial.' ”
Because Ms. Ehrlicher served on the jury and voted with the eleven other jurors for conviction of the appellants in their unanimous twelve-to-zero verdicts, I do not agree that a reversal is automatically required. Under Louisiana law, a ten to two verdict would have been enough to convict these defendants. La.C.Cr.P. art. 782. Instead, I would first consider whether it was clear beyond a reasonable doubt that a rational jury would have found these defendants guilty absent the error. This requires that we review in detail the trial record in order to ascertain whether the error is harmless or not. See State v. Hearold, 603 So.2d 731 (La.1992). In light of the law regarding Batson challenges, we can only properly address the Batson issues if we do so in pari materia with the appellants' arguments regarding the sufficiency of the evidence. The Batson arguments may be harmless if the evidence overwhelmingly supports the verdicts of guilt and/or no rational jury would have returned a verdict of not guilty. That is, the harmless error must be so beyond a reasonable doubt. As the Louisiana Supreme Court recently stated:
An example of a case where a harmless error analysis would be especially appropriate, but not the facts in the case at bar, would be the following: a person is convicted of second degree murder by an eleven-to-one jury verdict where the evidence consists, inter alia, of the testimony of ten eyewitnesses to the wrongful act that was also captured from two different angles by two different high-definition video cameras, one of which belonged to the police and the other belonging to a private business, all in broad daylight.
Nevertheless, a trial error does not provide grounds for reversal of a defendant's conviction and sentence unless it affects substantial rights of the accused. SeeLa.C.Cr.P. art. 921; State v. Johnson, 94–1379, pp. 16–17 (La.11/27/95), 664 So.2d 94, 101–02. The test is whether there is a reasonable possibility the error might have contributed to the conviction and whether the court can declare a belief that the error is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 22–23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967); State v. Green, 493 So.2d 1178, 1185 (La.1986). The reviewing court must find the verdict actually rendered by this jury was surely unattributable to the error. Johnson, 94–1379 at 18, 664 So.2d at 101–02;Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)....
State v. Magee, 11–0574, pp. 45–46 (La.9/28/12), 103 So.3d 285, 318;see also State v. Nelson, 10–1724 (La.3/13/12), 85 So.3d 21.
III.
From my reading of the cold record, I would have found the defendants guilty as charged beyond a reasonable doubt. However, I cannot say (because of the credibility issues and the failure of eyewitnesses, save Jerrold, to testify) that Ms. Ehrlicher may have convinced three or more of her fellow jurors, who may have been leaning to acquittal, to vote for conviction of the 153defendants. Therefore, I respectfully concur.