Caddo Parish Public Defender's Office, David R. McClatchey; Capital Appeals Project, James William Craig, G. Benjamin Cohen, New Orleans, LA, Sarah Lynn Ottinger, Cecelia Trenticosta, Richard John Bourke, For Appellant.
Louisiana Department of Justice, James D. Caldwell, Attorney General, Caddo Parish District Attorney's Office, Dale G. Cox, District Attorney, Suzanne Owen, Assistant District Attorney, William Jacob Edwards, Assistant District Attorney, Sarah Midboe, Assistant District Attorney, For Appellee.
Opinion
CLARK, Justice.
**1 This is a direct appeal under La. Const. art. V, § 5(D) by the defendant Lamondre Tucker. In November 2008, a Caddo Parish grand jury indicted the defendant for the first degree murder of Tavia Sills, in violation of La. R.S. 14:30. After a trial, the jury found the defendant guilty as charged. At the conclusion of the penalty phase of the trial, the jury unanimously returned a verdict of death, finding the aggravating circumstances that: (1) the defendant was engaged in the perpetration or attempted perpetration of second degree kidnaping; and (2) the defendant knowingly created a risk of death or great bodily harm to more than one person. The trial court sentenced the defendant to death in accordance with the jury's determination. Defendant now appeals his conviction and sentence, raising 55 assignments
of error, variously combined into 21 arguments. After a thorough review of the law and the evidence, we find no merit in any of the assignments of error. Therefore, we affirm the defendant's conviction and sentence.
**2 FACTS AND PROCEDURAL HISTORY
In September 2008, Tavia Sills was nearly five months pregnant. A few weeks earlier, she had informed 18–year–old Lamondre Tucker that she believed he was the father of her unborn child. On September 9, 2008, Tucker picked Tavia up at the home of her mother, Vickie Britton. Tucker claimed that his sister, Alexis Metcalf, had asked to meet Tavia after learning of the pregnancy. Before leaving, Tavia demonstrated some trepidation; she asked her mother to pray with her and then gave her defendant's phone number.
A few hours later Tucker returned without Tavia and informed Mrs. Britton that, at Tavia's request, he had dropped her off at the apartment of her older sister, Toquilla Sills. Mrs. Britton became alarmed because she knew her daughter Toquilla was not at home, as she had been hospitalized due to complications from her own pregnancy. Mrs. Britton contacted Shreveport police.
Sergeant John Youngblood investigated the missing person report. He spoke with Tucker at his high school, Booker T. Washington. Tucker told him that he had dropped Tavia off at the Prince Village Apartments in Shreveport. Sergeant Youngblood obtained surveillance videos from the apartment complex and discovered that Tucker, Tucker's car and Tavia did not appear in any of the videos.
On September 12, 2008, a couple fishing by a secluded pond near Legardy Street in Shreveport discovered the decomposing body of Tavia Sills floating in the water. Tavia had been shot three times. Two shots perforated soft tissue at the base of her neck and her upper arm. The fatal, penetrating shot was fired into her back, perforated her lung, and fractured a rib.
Tucker accompanied Detective Rod Demery, the lead homicide investigator, and Sergeant Youngblood to the police station the evening of September 12, 2008. Tucker was arrested, Mirandized, and interviewed around midnight. In an audio-recorded **3 interview, Tucker claimed he took Tavia to meet his sister, who was not at home, so he dropped her off at the Prince Village Apartments. Detective Demery informed Tucker that the surveillance video proved that he was lying and the detective indicated that he was turning off the recorder. The detective, however, continued to record the interview. Tucker then explained that he dropped Tavia off on the corner near the Prince Village Apartments at her request (outside the range of the surveillance video). Defendant was transported to jail.
Late the next morning, after attending the autopsy, Detective Demery interviewed Tucker at the jail. The detective allowed Tucker to call and speak with his mother. Tucker then admitted that he had taken Tavia to the pond where her body was found. Near the pond, Tucker claimed he found a tackle box containing a pistol. Tucker claimed that when he held the pistol up it accidentally discharged, twice, hitting Tavia. Tucker said he then ran away and discarded the gun in a drainage canal near Linear Street just off of Dr. Martin Luther King Drive. Tucker agreed to accompany the detective to show
him where he discarded the gun. A diver recovered a CZ .40 caliber semi-automatic pistol from the drainage canal. A firearms examiner later determined that three .40 caliber cartridge cases found by the pond were ejected when this pistol was fired. The firearms examiner was unable to determine, however, that the fatal bullet recovered during the autopsy was fired by the pistol (although it had the same general class characteristics).
Tucker, after being interviewed repeatedly throughout the day on September 13, 2008, eventually abandoned the tackle box story and admitted he had obtained the pistol from Marcus Taylor a few days before the shooting. Tucker said Taylor **4 had accompanied them to the pond. Tucker claimed he offered to teach Tavia to shoot and he handed her the pistol. He said he tried to grab it back from her because she wasn't holding it in a safe manner, which is when it discharged twice accidentally. Tavia was shot and fell to the ground. Taylor suggested they call the police but Tucker was frightened and pushed Tavia, who was still alive, into the pond. Tucker said he then shot her again, deliberately this time to be certain she was dead, and Taylor used a branch to push her farther out into the water. Although the third shot would have been imminently fatal, the coroner could not exclude the possibility that Tavia had drowned.
During the course of the investigation, several witnesses were interviewed. Alexis Metcalf, Tucker's sister, confirmed that Tucker did not bring Tavia to meet her on September 9, 2008. Tavia's sister, Toquilla, confirmed that she was at the hospital on that date and said that Tavia in fact had visited her there earlier that day. Tamara Bates, the mother of Tucker's three-year-old son, told police she and Tucker had argued about the status of their relationship when she learned of Tavia's pregnancy just a few days before Tavia was reported missing. Chasmine Hamilton, Tucker's close friend, said Tucker confided in her when he learned Tavia was pregnant and expressed the desire to beat Tavia to cause a miscarriage. Charles Wilson, Tucker's friend, said that Tucker had asked him on September 11, 2008, to claim he saw him drop Tavia off at the Prince Village Apartments. Glen Taylor, another friend of Tucker, told police that Tucker told him that he and Marcus Taylor pushed Tavia into the pond, Tucker shot her, Tavia asked Tucker what he was going to tell his mother, and then Tucker shot her again. Catherine Golston, who lives near the pond, said she heard a young woman screaming nearby and looked and saw that she was pregnant. According to Golston, the young woman was afraid of the cattle that pastured along the path to the pond. Golston **5 also heard Tucker's voice, which she recognized, trying to calm the young woman. Later she heard two gunshots and then a third.
Subsequent DNA testing proved that Tucker was not the father of Tavia's unborn child. Expert witnesses estimated that the male fetus was 19 weeks old, healthy, and barring unforeseen complications, believed Tavia would have carried him to full term and given birth to a
healthy infant. The experts indicated that a 19–week–old fetus is not viable outside of the womb.
Tucker was indicted for first degree murder. By bill of particulars, the state clarified that Tucker committed first degree murder by killing Tavia Sills while engaged in the perpetration of a second degree kidnapping and when he had the specific intent to kill or inflict great bodily harm upon more than one person. Tucker filed a motion to suppress his statements, in which he contended they were involuntarily and unknowingly made, as well as made after he invoked his right to remain silent and to the assistance of counsel. The motion was denied after an evidentiary hearing held on March 10, 2010. At the hearing, the state presented the testimony of Detective Demery and Sergeant Youngblood that Tucker voluntarily accompanied them to police headquarters, was Mirandized, signed a rights waiver, and voluntarily gave a series of increasingly incriminating statements after initially denying any involvement. The defense presented the testimony of Tucker's grandmother, Ora Ellis, Tucker's mother, Alicia Tucker, and Tucker. According to Alicia Tucker and her son, Detective Demery promised that if Tucker would confess to an accidental shooting then the charge would be reduced to manslaughter and her impounded car would be returned to her.
Jury selection began on March 14, 2011, and was completed on March 19, 2011. Six panels of approximately 16 prospective jurors each were examined. Eight prospective jurors were excluded by joint agreement. For each panel, death **6 qualification preceded general voir dire. During death qualification, the state challenged 35 prospective jurors for cause, of which 33 were granted, and the defense challenged 12 prospective jurors for cause, of which 6 were granted. During general voir dire, the state made three cause challenges, of which two were granted without objection by the defense, and the defense made 12 cause challenges, of which 8 were granted (6 without objection by the state). Nineteen peremptory challenges were exercised including two backstrikes. A jury of 12 with 2 alternates was selected.
During jury selection three significant events occurred. First, the defense filed motions to quash on the basis that the state had not given notice that it was
seeking the death penalty. Specifically, the defense noted the state had not filed a notice of intent to seek the death penalty and argued that although the state had responded with particulars identifying that it was proceeding under La. R.S. 14:30(A)(1) and (3) regarding the offense, it had not clarified that it would seek a capital penalty in accordance with La. R.S. 14:30(C)(1). After these motions were denied, the defense sought supervisory review and the court of appeal denied writs on the showing made. Second, after the state challenged prospective juror Richard Clark (a black male) based on his opposition to the death penalty, the
**7 defense objected that the death qualification process was disproportionately excluding blacks from the jury. However, the defense emphasized that it was neither asserting a
Batson challenge nor accusing the prosecutors of exercising challenges on the basis of race. Third, after prospective juror Latisha Griffin changed her views on the death penalty overnight, a brief recess followed after which defense counsel informed the court they believed someone had spoken with this prospective juror and persuaded her to change her answers. Griffin was examined and admitted that she had received a three-way telephone call the night before in which Tucker urged her to change her answers to questions about the death penalty. Defense counsel then moved to withdraw based on a conflict of interest resulting from being witnesses to jury tampering by their client; the trial court denied the motion.
Opening statements commenced on March 20, 2011. The state described how it believed the crime occurred, summarized the evidence it would present, and explained how that evidence established the elements of the crime. The defense acknowledged that a tragedy had occurred and expressed its sympathy, reminded the jury of the state's burden of proof, and asked the jury to keep an open mind until they heard all of the evidence. The state presented the testimony of 22 witnesses, including three members of the victim's family, four friends or family of Tucker, seven law enforcement officers, two obstetricians, a forensic DNA analyst, a firearms examiner, and a forensic pathologist. The defense rested without presenting any testimony or evidence.
In closing, the state summarized the elements of the offense and the evidence proving them; emphasized that Tavia Sills and her unborn child were **8 both alive and healthy when last seen with Tucker; argued Tucker's specific intent could be inferred from his admission that he fired a final shot to ensure the victim died; noted that Tucker's story changed several times during police interviews; argued Tucker killed Tavia Sills to save his relationship with Tamara Bates; and emphasized Tucker has never shown remorse. The defense's brief closing remarks follow:
Good evening, ladies and gentlemen. I will not belabor the evidence in this case, ladies and gentlemen, simply because the facts are not in dispute. What is in dispute is the legal analysis. What we submit to you is that Lamondre is guilty of the second degree murder of Ms. Tavia Sills and the feticide of her unborn child; that is, the killing of the
unborn child with specific intent to kill or inflict great bodily harm. Thank you.
R. 18 at 3849–50. In rebuttal, the state responded that the crime is not a second degree murder but rather a cold-blooded killing. The state described the crime to the jury, emphasizing the fear Tavia would have experienced. During the state's rebuttal, Tucker created a disturbance and was removed from court at the request of the defense. The state then continued its closing remarks, emphasizing Tucker could have sought medical attention but instead chose to push the victim into the water and shoot her again. Thus, the state argued the crime was too cold-blooded to be a second degree murder.
**9 On March 22, 2011, the jury found defendant guilty as charged of first degree murder. The penalty phase commenced on March 23, 2011. In its opening remarks, the state asked the jury to consider the circumstances of the offense and Tucker's character and propensities, and the state summarized the evidence presented at trial with an emphasis on defendant's cold-heartedness. The defense informed the jury that, rather than discussing the crime, it would tell the jury about the other 18 years of Tucker's life, which included an unstable home environment with abusive men, as well as his efforts to turn his life around through football.
The state presented three victim-impact witnesses: Vickie Britton (the victim's mother), Toquilla Sills (the victim's older sister), and Lashun Gipson (the victim's godmother). Mrs. Britton described her daughter as a student studying at Southern University to become a phlebotomist who was excited about her pregnancy and was well-loved by the community. She testified that she was profoundly affected by her daughter's death. Toquilla Sills described how the victim helped care for her children despite working two jobs and attending school. She said they were both looking forward to raising their children together closely. Ms. Sills described experiencing drastic weight loss following the loss of her sister and what would have been her first nephew. Lashun Gipson described how she first met the victim and how closely they bonded. Ms. Gipson described the victim as being like a daughter to her.
The defense presented six witnesses: Alicia Tucker (Tucker's mother), Alexis Metcalf (Tucker's older sister), Danny Blackman (who was at one time involved with Tucker's mother), Kevin Richardson (Tucker's cousin), Rev. Rickey Moore (who employed Tucker on occasion), and Kalan Washington (Tucker's former teacher, football coach, and mentor). Alicia Tucker described how she had a series of tumultuous
relationships with abusive men and drug dealers, and
**10 claimed the family was displaced so often that she could not recall the number of residences Tucker lived in or schools he attended. During her testimony, pictures from her family scrapbook were projected for the jury. Of particular note during her testimony (as is discussed below), is that when defense counsel asked her the opened ended question “What happened at Booker T. Washington?”, she responded that her son had been accused of rape after engaging in consensual sex with a younger girl. Alexis Metcalf testified that Tucker treated her sons and his own son well. Danny Blackman testified he considered Tucker to be like a stepson. Blackman said Tucker loved horses, played football, and never gave him any trouble. Kevin Richardson described Tucker as an easy going person who enjoyed playing with children. Rev. Rickey Moore testified that he hired Tucker to help care for his horses and to teach his son to ride. Kalan Washington said Tucker, who participated in his youth mentoring program, was a smart player who could have gone on to play college football. According to Washington, Tucker would stand up for other children and became frustrated when he believed something was unfair.
The state vigorously cross-examined the defense witnesses. The state elicited that defendant, at age 13, was accused of shooting a neighboring child with a BB gun; was repeatedly disciplined at school for fighting; and pleaded guilty to misdemeanor carnal knowledge after being accused of rape. The state asked Blackman, Richardson, and Washington if they were familiar with the nature of the crime Tucker was convicted of committing. The state showed these witnesses two crime scene photos and asked whether it would change their opinion of Tucker's character if he admitted he had committed the crime. The defense objected during the testimony of two of the witnesses and moved for a mistrial. The defense **11 objected to the state giving Blackman details of the crime of which he was not aware. The trial court sustained the objection and admonished the state not to testify. The defense also objected to state's badgering of Washington (who provided several rambling and non-responsive answers during the state's cross-examination). The trial court denied the motions for mistrial.
In closing, the state depicted defendant as a cold-blooded murderer who callously destroyed a family and tried to get his friends to cover for him. The state noted his poor school disciplinary record and that he was previously convicted of misdemeanor carnal knowledge of a juvenile. The state characterized the defense mitigation case as establishing only that Tucker likes horses and football. The state argued Tucker killed the victim believing he could then simply go off to college to play football. Regarding Alicia Tucker's scrapbook, the state noted that the victim's family will not have the opportunity to make a comparable one. The state claimed that Tucker has never expressed any remorse.
The defense, in closing, asked the jury to spare defendant's life, emphasizing that Tucker was an immature high school teenager who acted uncharacteristically under the pressure of repeating his last year of high school and his complicated relationships with Tamara Bates and the victim. The defense dismissed the state's cross examination as involving minor things that many children engage in, such as poor
behavior at school and misuse of BB guns. Regarding remorse, the defense argued that children typically show no remorse and suggested that lack of remorse might be considered a mental defect,
i.e., a mitigating circumstance. The defense pleaded for life in prison so that Tucker would have the opportunity to develop remorse. Noting that defendant has a son, the defense asked the jury to not act in anger and do something they would regret later.
The state responded in rebuttal that defendant's repeated expulsions and **12 suspensions suggest he lacks the capacity to learn from his mistakes or develop remorse. Although the defense characterized Tucker as lacking mental capacity, the state noted that his coach had described him as an intelligent football player with college potential. Although the defense characterized Tucker as impulsive, the state countered that the crime was coldly planned. In conclusion, the state contended that death was the only penalty proportionate to the harm inflicted on the victim's family.
At the conclusion of the penalty phase, the jury returned a verdict of death. Shortly thereafter, the Louisiana Capital Assistance Center enrolled to represent Tucker on appeal and filed numerous motions, culminating in an omnibus motion for new trial. On June 29, 2011, the trial court denied the omnibus motion and sentenced Tucker to death in accordance with the jury's determination.
Tucker subsequently filed a motion to reconsider sentence in which he contended that his immaturity in conjunction with his diminished capacity renders him ineligible for the death penalty because he was just five months past his eighteenth birthday at the time of the crime and he has a full scale IQ of 74. He also filed a motion for new trial, alleging that the victim's mother had forgiven him and found peace; he was not the shooter; and he had evidence rebutting the state's negative depiction of him in the penalty phase. Following the trial court's denial of these motions, defendant appealed directly to this Court.
LAW AND ANALYSIS
Primary Claims
**13
Sufficiency of the Evidence
Whether intentionally shooting a pregnant woman constitutes intent to kill or harm more than one person.
Defendant contends he is the first person convicted of first degree murder under La. R.S. 14:30(A)(3) (intent to kill or harm more than one person) for killing a pregnant woman and her unborn child. He argues that feticide does not elevate second degree murder to a capital offense under La. R.S. 14:30, as written, and, therefore, the evidence does not support a conviction for first degree murder.
Defendant notes that this Court determined in State v. Gyles, 313 So.2d 799, 801 (La.1975) that a “defendant's conduct of striking the pregnant woman and causing the stillbirth of the child is not punishable as a ‘murder’ under the definition of that
crime in the Louisiana statutes and those of other jurisdictions.” He also notes that this Court again found that feticide is not homicide despite the legislative amendment to La. R.S. 14:2(7) that expanded the definition of person to include the unborn.
State v. Brown, 378 So.2d 916 (La.1979). Defendant contends that, despite this jurisprudential context and subsequent legislative action establishing several degrees of feticide, the legislature has not indicated that it intends La. R.S. 14:30(A)(3) and La.C.Cr.P. art. 905.4(4) to encompass the unborn. Thus, defendant argues, lenity requires interpreting any ambiguity in these provisions in his favor. Defendant also contends the trial court erroneously instructed the jury by refusing to inform it that a pregnant woman and her unborn child cannot be considered more than one person for purposes of La. R.S. 14:30(A)(3).
In Kennedy v. Louisiana, 554 U.S. 407, 421, 128 S.Ct. 2641, 2650–51, 171 L.Ed.2d 525 (2008), the United States Supreme Court determined that “a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth **14 Amendments.” In making that determination, the court noted that “the death penalty is not invariably unconstitutional”. Id., 554 U.S. at 420, 128 S.Ct. at 2650 (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Rather, the court noted that “capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution.” Id. (quoting Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 1194, 161 L.Ed.2d 1 (2005) and Atkins v. Virginia, 536 U.S. 304, 319, 122 S.Ct. 2242, 2251 153 L.Ed.2d 335 (2002)) (internal quotes omitted).
We have found no constitutional impediment to including offenders who intentionally kill women they know are pregnant in that narrow category. In fact, of the 32 states that at present authorize capital punishment, seven provide that the intentional killing of a pregnant woman is an aggravating factor that may justify a death sentence. Ariz.Rev.Stat. § 13–751(F)(9) (“the murdered person was under fifteen years of age, was an unborn child in the womb at any stage of its development or was seventy years of age or older”); Colo.Rev.Stat. Ann. § 18–1.3–1201(5)(q) (“[t]he victim was a pregnant woman, and the defendant intentionally killed the victim, knowing she was pregnant”); Del.Code Ann. tit. 11, § 4209(e)(1)(p) (“The victim was pregnant”); Ind.Code § 35–50–2–9(b)(16) (“The victim of the murder was pregnant and the murder resulted in the intentional killing of a fetus that has attained viability”); 42 Pa. Cons.Stat. Ann. § 9711(d)(17) ( “At the time of the killing, the victim was in her third trimester of pregnancy or the defendant had knowledge of the victim's pregnancy”); Tenn.Code Ann. § 39–13–204(i)(16)15 (“The murder was committed against a pregnant woman, and the defendant intentionally killed the victim, knowing that she was
pregnant”); Va.Code Ann. § 18.2–31(11) (“The willful, deliberate, and premeditated killing of a pregnant woman by one who knows that the woman is pregnant and has the intent to cause the involuntary termination of the woman's pregnancy without a live birth”). Furthermore, in Florida a killing that would be capital murder if the pregnant woman died is capital murder if the mother survives but her unborn child dies.
Fla. Stat. Ann. § 782.09(1)(a). Therefore, the question presented here is not whether Louisiana
may include the intentional killing of a pregnant woman among the aggravating factors that render an offender eligible for capital punishment but whether it
has, which is a matter of statutory interpretation.
Louisiana R.S. 14:30(A)(3) provides that first degree murder is the killing of a human being “[w]hen the offender has a specific intent to kill or inflict great bodily harm upon more than one person.” Louisiana R.S. 14:2(7) defines “person” in the criminal law to include “a human being from the moment of fertilization and implantation”. Thus, pursuant to these two statutory provisions, first degree murder does include the killing of a human being (the pregnant woman) when the offender has the specific intent to kill or inflict great bodily harm upon more than one person (the pregnant woman and the implanted conceptus).
Defendant argues that the killing of a fetus is not murder (and under subsequent legislative enactments it is, in fact, feticide) and therefore the legislature could not have intended first degree murder to encompass the murder of a pregnant woman with the intent to kill both her and her unborn child. In support of his argument, defendant relies on the decisions in State v. Gyles, 313 So.2d 799 (La.1975) and State v. Brown, 378 So.2d 916 (La.1979). In Gyles, Arthur Ray **16 Gyles physically assaulted a woman who was eight-months pregnant and caused her to miscarry. He appealed his conviction for second degree murder of the stillborn child. Relying on the common law, which deemed that only those born alive are human beings, this Court found that conduct which causes an unborn child to be born dead does not constitute murder. The legislature responded by amending La. R.S. 14:2(7), which simply had indicated that a person includes a body of persons, whether incorporated or not, to provide: “ ‘Person’ includes a human being from the moment of fertilization and implantation and also includes a body of persons, whether incorporated or not.” 1976 La. Acts 256. Then, in State v. Brown, supra, the Court considered the question whether the legislative amendment altered the definition of murder and the holding of Gyles. In Brown, Michael Brown killed Harriet St. Andre, who was pregnant. He was indicted separately with two counts of second degree murder. The jury found Brown guilty of manslaughter in the death of St. Andre. After the trial court overruled Brown's motion to quash the indictment for the killing of the fetus (the motion to quash was based on double jeopardy), Brown pleaded guilty to manslaughter of the fetus and appealed. This Court found as an error patent that murder is defined as “the killing of a human being” (rather than as the killing of a person) and the amendment redefining “person” had therefore not redefined murder.
**17 Notwithstanding defendant's argument, the decisions in
Gyles and
Brown do not answer the question of whether the killing of a pregnant woman and her unborn child reflects the intent to kill more than one person for purposes of elevating a second degree murder to the first degree. However, the statutory provisions following the amendment of the definition of person in the criminal code answer that question sufficiently. Louisiana R.S. 14:30(A)(3) does not state that it requires the intent to commit multiple
murders; it requires only the intent to kill or inflict great bodily harm upon more than one
person. In determining the scope of a statute, a court must first look to its language. “If the statutory language is unambiguous, in the absence of ‘a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.’ ”
United States v. Turkette, 452 U.S. 576, 580,
101 S.Ct. 2524, 2527,
69 L.Ed.2d 246 (1981) (quoting
Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108,
100 S.Ct. 2051, 2056,
64 L.Ed.2d 766 (1980)). “Only where ambiguity exists within the body of the enacted legislation does it become necessary to look further than the text to determine the legislative intent.”
State v. Barbier, 98–2923, p. 5 (La.9/8/99),
743 So.2d 1236, 1239. Louisiana R.S. 14:30(A)(3) and La. R.S. 14:2(7) are clearly unambiguous. Also, the fact that the legislature established several grades of criminal feticide (
see n. 17,
infra ) does not reflect an intent to repeal the plain language of La. R.S. 14:30(A)(3) and La. R.S. 14:2(7).
Furthermore, in State v. Keller, 592 So.2d 1365 (La.App. 1 Cir.1991), the First Circuit Court of Appeal considered the same question and reached the same conclusion. In Keller, Gregory Keller was indicted for the first degree murder of Andrea Simmons, who was pregnant, based on the specific intent to kill or to inflict great bodily harm upon more than one person, La. R.S. 14:30(A)(3). Keller sought to quash the prosecution on the basis that a fetus cannot be considered a **18 person for purposes the multiple-person aggravating element of La. R.S. 14:30(A)(3). The court of appeal noted that La. R.S. 14:30(A)(3) does not require the actual commission of two murders but rather that defendant have the intent to kill more than one person. The court found that, although a fetus is not considered a human being whose unlawful killing constitutes homicide, a fetus is nonetheless defined as a person in the criminal code. Keller, 592 So.2d at 1366.
Defendant contends the statutory language is not sufficiently clear to give him fair warning that he might face a charge of first degree murder for killing a pregnant woman. The Fair Warning Doctrine, however, demands “no more than a reasonable degree of certainty.” Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952). “The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed
to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.”
Colten v. Kentucky, 407 U.S. 104, 110,
92 S.Ct. 1953, 1957,
32 L.Ed.2d 584 (1972). A Texas court has rejected a fair warning challenge in a similar case.
See
Lawrence v. State, 211 S.W.3d 883 (Tex.App.-Dallas 2006).
Regardless, in this case, this Court need not resolve the question of whether La. R.S. 14:30(A)(3) applies to the murder of a pregnant woman given the presence of a second aggravating factor, i.e., that the killing took place in conjunction with a second degree kidnapping, La. R.S. 14:30(A)(1).
Whether the state proved defendant killed Tavia Sills while engaged in a second degree kidnapping.
Defendant contends the state presented insufficient evidence to show the murder took place during the course of a second degree kidnapping. He argues that, to prove he kidnapped the victim, the state must prove more than that he **19 persuaded or enticed the victim to accompany him; the state must also prove that at some point she had the desire to leave. According to defendant, the only evidence presented regarding the victim's state of mind was an eyewitness (Catherine Golston) who overheard Tavia scream because she feared the nearby cattle. Defendant argues that this was not sufficient to prove the victim did not want to accompany him. Defendant also contends that the trial court erred by not instructing the jury that the state must prove the victim expressed the desire or intent to leave.
As an initial matter, defendant's own statements to police provide evidence that the victim expressed a desire to leave. According to defendant, the victim expressed her fear on the path to the pond, she stopped walking, and “[t]hen she go I don't think I can do this no more.” Defendant cajoled her into walking again. After going a bit farther down the path, according to defendant, the victim clearly expressed the desire to leave: “So then I'm like come on. So I walk, and we walked to the other drop off. Then that when she kept saying I'm ready to go, I'm ready to go, to go.”
Louisiana R.S. 14:44.1 defines second degree kidnapping as follows:
A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
(5) Imprisoned or kidnapped when the offender is **20 armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.
Not enumerated among those elements is a requirement that a victim express a desire to leave. Furthermore, the words “enticing” and “persuading” in the statute suggest that defendant's view of how the offense may be committed is too narrow. See, e.g., State v. Lee, 02–1793, p. 32 (La.App. 4 Cir. 4/2/03), 844 So.2d 970, 991 (finding sufficient that a kidnapper lured the victim into his vehicle under the pretext of arranging for prostitution).
Defendant also argues that La. R.S. 14:44.1(A)(5) infringes on the constitutional right to keep and bear arms. He notes that the Louisiana Constitution was amended to require strict scrutiny to be applied to any restriction on this right. Defendant alleges that the victim voluntarily accompanied him not knowing that he was carrying a firearm. According to defendant, his commission of a second degree kidnapping while carrying a firearm (La. R.S. 14:44.1(A)(5)) cannot be used to elevate the grade of murder to first degree because he cannot become eligible for the death penalty by engaging in a constitutionally protected activity. Defendant argues this statute is not sufficiently narrowly tailored if it encompasses constitutionally protected acts. Because the jury utilized his constitutionally protected right to keep and bear arms as an aggravating factor, **21 defendant maintains the death sentence must vacated and the conviction reduced to second degree murder.
Clarence Hicks
Clarence Hicks initially stated that it would be “very difficult” not to return a death verdict for one who intentionally killed more than one person but he also stated that he could return a life verdict. He clarified that he leaned toward a death verdict for a multiple murderer but that he could consider both
sentencing options depending on the circumstances.
Joy Birch
Joy Birch initially stated that she could consider either penalty, she emphasized the gravity of the decision, and she indicated that she would not automatically vote for either penalty. She indicated that she leaned toward the death penalty for someone who intentionally kills a woman he knew was pregnant but she would consider both penalties and it would depend on the circumstances of the offense. She insisted that she could be fair and open-minded and that she could consider a life sentence for one who killed a pregnant woman.
Patricia Johnson
Patricia Johnson initially stated that she could consider a life sentence but she also stated that, for first degree murder, she was “more likely” to vote in favor of death. She revealed that her friend was murdered in 1996 and she expressed concern for her ability to be fair and impartial because of that experience. However, she ultimately concluded that she could keep that experience from unduly influencing her decision-making and she would decide the present case solely on the evidence presented at this trial.
Anita Spencer
Anita Spencer stated that she supported the death penalty but could vote for either a life or death sentence. She believed a death sentence is appropriate for a senseless murder. She initially indicated that she would not consider a life **35 sentence for one who kills more than one person and the only mitigating circumstance she would consider is insanity. After being instructed on the pertinent law, she said that she was confused when she answered earlier but now that she understood the law she could consider both sentencing options.