FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #011

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinion handed down on the **26th day of February, 2016** , is as follows:

**BY JOHNSON, C.J.** :

2014 -K A -0 402 STATE OF LOUISIANA v. ROBERT GLEN COLEMAN (Parish of Caddo) Retired Judge Marion F. Edwards, assigned as Justice ad hoc, sitting for Crichton, J., recused. For the reasons assigned, defendant’s conviction for first degree murder is affirmed. Defendant’s sentence of death is vacated and set aside and the case is remanded to the district court for a new sentencing hearing.

CONVICTION AFFIRMED; DEATH SENTENCE REVERSED; CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. CRICHTON, J., recused. KNOLL, J., additionally concurs and assigns reasons. WEIMER, J., dissents in part and assigns reasons. GUIDRY, J., dissents in part for the reasons assigned by Justice Weimer. CLARK, J., dissents in part for reasons assigned by Justice Weimer.02/26/16
SUPREME COURT OF LOUISIANA
NO. 2014-KA-0402
STATE OF LOUISIANA
VERSUS
ROBERT GLEN COLEMAN
ON APPEAL FROM THE FIRST JUDICIAL DISTRICT COURT FOR THE PARISH OF CADDO

JOHNSON, Chief Justice * On February 14, 2003, a Caddo Parish grand jury returned an ind ictment charging defendant, Robert Glen Coleman, with the January 1, 20 03, first degree murder of 70-year-old Julian L. Brandon, Jr. and the attempted first degree murder of his wife, 69-year-old Alice Brandon. Counsel was appointed and defendant entered a plea of not guilty. On January 21, 2005, the state filed an a mended indictment, severing the non-capital offense, and proceeded to trial on one count of first degree murder as to decedent Julian Brandon. 1 On February 17, 2005, a Caddo Parish jury returned a unanimous verdict of guilty as charged, and, two day s later, voted unanimously to impose the death penalty, having found all four aggravating circumstances urged by the state, namely that: defendant was en gaged in the perpetration or attempted perpetration of an armed robbery, La. C.Cr. P. art. 905.4(A)(1); the victim was older than 65 years of age, La. C.C r. P. art. 905.4(A)(10);

* Retired Judge Marion F. Edwards, assigned as Justice ad hoc, s itting for Crichton, J., recused.

1 The state separately tried co-defendant Brandy A. Holmes. In F ebruary 2006, a Caddo Parish jury found her guilty of the first degree murder of Juli an Brandon and unanimously sentenced her to death. State v. Holmes , 06-2988 (La. 12/2/08), 5 So. 3d 42, cert. denied, Holmes v. Louisiana , 558 U.S. 932, 130 S.Ct. 70, 175 L.Ed. 2d 233 (2009). 1defendant created a risk of death or great bodily harm to more than one person, La. C.Cr. P. art. 905.4(A)(4); and de fendant had been previously co nvicted of armed robbery, La. C.Cr. P. art. 905.4(A)(3). On appeal, this court f ound a violation of the rule in Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed. 2d 69 (1986), which forbids racially discriminatory use of peremptory challenges du ring jury selection, and vacated defendant’s conviction and sentence and remanded the ca se for a new trial.
State v. Coleman , 06-0518 (La. 11/2/07), 970 So. 2d 511. Jury selection for defendant’s s econd trial commenced on Januar y 23, 2012, and the guilt phase began on January 30, 2012. On February 3, 2012, a Caddo Parish jury returned a verdict of guilty as charged, and on February 7, 201 2, having found the same four aggravating circumstances as found at his first trial , unanimously agreed to impose the death penalty. Thereafter, the trial court denieddefendant’s motion for a new trial and, on May 3, 2012, formally imposed the death sen tence in accord with the jury’s determination. This is a direct appeal under La. Const. art. V, § 5(D). Defend ant appeals his conviction and sentence raising 38 assignments of error, variou sly combined into 21 arguments. We will address the most significant of these assign ments of error in this opinion, and the remaining assignments of error will be address ed in an unpublished appendix. After a thorough review of the law and the evidence, we find no merit in any of the assignments of error relative to the issue of guilt. Therefore, we affirm the defendant’s first-degree murder conviction. However, we find er ror relative to the state’s failure to provide sufficient notice of evidence of an unadjudicated murder introduced in the penalty phase. Thus, we vacate defendant’s se ntence and remand this case for a new sentencing hearing.
FACTS

2During the early evening hours of January 1, 2003, 70-year-old retired minister, Julian Brandon, and his 68-year-old wife, Alice Brandon, were a ttacked in their home. Crime scene investigators determ ined that the perpetrators shov ed their way into the Brandon home through the front door and that Mr. Brandon was fo rced into his dining room where he was shot through the chin at contact or near-cont act range. A portion of the bullet lodged in his brain and a portion exited and embe dded in the ceiling above him. Mr. Brandon was repeatedly stabbed and cut at some p oint thereafter. Mr. Brandon was killed in the attack. Mrs. Brandon was found in a b edroom of the home, where the perpetrators had placed a pillow over her face and sh ot her in the head. Mrs. Brandon survived the attack, although she remained permanently disabled until she died several years later. Months earlier, Tammy Holmes was living with her husband, John Holmes, in Tylertown, Mississippi. 2 In August 2002, John’s daughter, Brandy Holmes, stayed with the couple a short time before moving in with her new boyf riend, defendant Robert Coleman. During that time, John owned a .380 pistol whic h he used regularly to target shoot in a remote wooded area in Lumberton, Mississip pi. Brandy and defendant visited John and Tammy just before Christmas in 2002. While at their home, defendant stayed outside t o work on his truck, but Brandymade several trips back and forth between the yard and the home, using a back door near the nightstand on which John kept his gun. The day after their visit, John not iced his gun was missing and, despite exhaustive searches, never located it. On Christmas Eve 2002, defendant and Brandy left Mississippi to visit Brandy’s mother, Brenda Bruce, in Shreveport. After settling inat Ms. Bruce’s trailer home, the pair decided to host a New Year’s Eve party. Terrance Barnes, an acquaintance of Brandy’s, attended the party and, at some point during the night,

2 John Holmes is now deceased, but his testimony at defendant’s first trial was published to the jury at this trial by agreement of the parties. 3observed defendant receive a gun, which Barnes described as a “ revolver,” from Brandy’s younger brother, Sean Geo rge, in a back bedroom. Later that night, defendant asked Barnes if he knew where he could “hit-a-lick,” which Barnes understood to mean that defendantwas asking where he could rob someone. The Brandons were not discovered for four days, on January 5, 2 003, when a concerned friend, Calvin Hudson, went to check on them. Mr. Hud son observed Mr. Brandon’s body in a pool of blood through the glass back door o f the house and immediately went to a neighbor’s house to call police. While wa iting for police to arrive, the neighbor, retired Ca ddo Parish Deputy Sheriff DannyKent, walked over to observe the scene for himsel f. Deputy Kent found the Brandon s’ back door unlocked and entered to check M r. Brandon’s pulse. Deputy Kent maintained he did not touch anything in the home - except to check Mr. Brandon’s pulse - and that police arrived shortly thereafter and secured the scene. Sergeant William Gaines was first to respond to the 911 dispatc h and also entered through the back door. A ccording to Sgt. Gaines, it was apparent that Mr. Brandon had been dead more than a day. After surveying the scen e around Mr. Brandon, Sgt. Gaines followed bloody footprints down the hallwa y where he heard a sound coming from the first be droom and discovered an incapac itated Mrs. Brandon. There was a bloodstain on the be d and Mrs. Brandon was lying fa ce up on the floor in a pool of dried blood. Sgt. Gaines notified Mrs. Brandon tha t he was a police officer there to help, called for EMT assistance, and cleared the remai nder of the house. According to Sgt. Gaines, although it seemed Mrs. Brandon wante d to say something, she could not speak and her eyes could only track from side to side. Sgt. Gaines waited for investigators to arrive and photograph the scene bef ore moving anything, but noted a jewelry box in disarray and a piece of jewelry on the kitchen floor. After Mrs. Brandon received initial medical attention from the EMTs, Sgt. Gaines recalled

4that she was able to answer simple questions, but he did not he ar her say anything of significance to the investigation. Deputy Chief Jefferson Akes of the Caddo Parish Sheriff’s Offic e was another among the first to respond. Having observed that Mrs. Brandon h ad suffered a head wound of indeterminate cause, he immediately dispatched emergen cy air transport. Deputy Chief Akes also recalled that although she was initially unresponsive, Mrs. Brandon began to mumble after EMTs cleaned her mouth but she wa s unable to give specific responses. The flight medic crew arrived at the scene to transport Mrs. Br andon to the hospital. While on board the he licopter, paramedic Tommy Adams questioned Mrs. Brandon about her attackers and she stated that two white perso ns were responsible. 3
Mrs. Brandon was admitted into intensive care and remained ther e several weeks. She had a “trach” implanted shortly after being admitted and never spoke again. 4 After Mrs. Brandon was discharged from the hospital, her daughter, Da wn Finley, a nurse, provided round-the-clock care un til Mrs. Brandon passed away in2008. Crime scene investigator Corporal Charlotte Hammontree arrived at the Brandons’ home shortly after the 911 dispatch and immediately b egan taking photographs of the scene. She also collected several samples fo r DNA testing and documented everything of apparent significance. In addition, sh e noted the absence of spent bullet casings on the premises. Mr. Brandon’s wallet, debit and credit cards, along with at least four pieces of Mrs. Brandon’s jewelry - inc luding a pearl bracelet and a gold bracelet with multicolored stones - were missing. Latent prints expert, Lt.

3 Adams was deceased by the time of defendant’s second trial. A transcript of Adams’ testimony at defendant’s first trial was published to the jury. In a written addendum, also published to the jury, Mr. Adams stated, in pertinent part: “I asked her if she knew what happened to her? She stated yes . I asked was she assaulted, she said yes . I asked her did someone enter their home she said yes . I asked her if they were white, black or Hispanic. She said w hite . I asked her if there was more than one. She said yes two .”

4 After the attack, Mrs. Brandon could only nod or shake her hea d in response to questions, and even that yielded inconsistent information about her attack ers. 5Owen McDonnell, brushed five or six areas at the scene for fing erprints, including the knife blades used on Mr. Brandon and the killers’ apparent poin ts of entry and exit, but none of the fingerprints lifted at the scene were matched w ith any person of interest. On the door leading to the garage, however, detective s documented an area of dried blood containing a small diamond pattern. After securing and surveying the Brandon home, Caddo Parish inv estigators gathered information which led them to suspect that Brandy, Sean, and a third person named Johnny Wright were involved. Captain Bobby Abraham, Serge ant Gary Frake, Lieutenant Bill Duncan, and lead investigators Sheila Hostnick and Kay Ward, traveled to the Bruce trailer to locate Brandy and Sean. Ms. Br uce allowed the officers inside, where they encountered Brandy, Sean, and defendant, alo ng with Ms. Bruce’s three young grandchildren. Defendant was first observed in a re ar bedroom, where he was not wearing shoes. Brandy, defendant, Sean, and Ms. Bruce v oluntarily accompanied officers to the stati on for interviews. When asked to come along to the station, defendant proceeded to put on a pair of black boots th at had been on the floor right next to him. Brandy and de fendant were taken in separate cars, and Sean, who was a minor, went with his mother. Defendant, who was not yet a suspect, traveled unrestrained in the front seat of Capt. Abraham’s car. Upon arr ival at the station, Capt. Abraham directed defendant to take a seat in the conference roo m while Brandy was taken into an interview room. After defendant indicated he understood his rights and signed a written waiver, Det. Ward and Deputy Hostnick interviewed him at 11:20 p.m. Def endant told the officers he had no knowledge of the murder, he and Brandy had b een boyfriend and girlfriend just a few months, he came with her to Shreveport ju st before Christmas, and they had been inseparable since their arrival. Defendant th en returned to the conference room. Some time ther eafter, defendant asked to speak with Capt.

6Abraham. Capt. Abraham brought defendant into his office and th e two spoke alone. Defendant inquired as to “what wa s going on,” and repeated that he did not know anything about the homicide. He volunteered further that he did not believe Brandy was involved either, stating again that they had been at each o ther’s sides since arriving in Shreveport on Decem ber 24, 2002. During the convers ation, Capt. Abraham observed a “fresh injury” on defendant’s right hand, wh ich defendant claimed he sustained while working on a bicycle. 5 Defendant agreed to have his hands photographed and then asked to step outside for a cigarette. Ca pt. Abraham agreed and accompanied him. After the cigare tte, defendant returned to the conference room. Capt. Abraham did not record defendant’s initial statements bec ause, in his experience, a recording device generally tends to keep a subjec t from speaking openly, but Capt. Abraham verified that each of defendant’s pre-arrest statements were voluntary. 6 Defendant appeared lucid, rela xed, and extraordinarily calm wh ile at the station. Lt. McDonnell subsequently observed what appeared to be blood o n defendant’s boots and, when he a dvised defendant as much, defen dant claimed the boots were not his but actually belonged to Brandy’s brother, S ean. Up until that point, defendant had not said anything to indicate the boots be longed to anyone else. Lt. McDonnell and Capt. Abraham recognized that the soles of de fendant’s boots were similar to prints at the crime scene and collected his boots al ong with the other interviewees’ shoes. Defendant voluntarily relinquished his boo ts with the disclaimer that they were his only shoes a nd that he “wouldn’t be stupid e nough to walk into a

5 Neither Brandy, Sean nor Johnny Wright had cuts on their hands

.
6 According to Capt. Abraham, he never threatened defendant nor promised him anything. At no point before his arrest did defendant request an attorney or decline to answer questions. 7police station with blood on [them].” To keep defendant from go ing barefoot, officers loaned him a pair of rubber boots used by inmates during cleani ng. 7 After analyzing the subjects’ shoes, Lt. McDonnell determined that although Brandy could be excluded as a source of the bloody footprints, defendant could not be excluded. Defendant’s boots shared the same tread detail, si ze (nine), and shape as the print Lt. McDonnell lifted at the crime scene. Meanwhile, Deputy Hostnick separ ately interviewed Brandy. At so me point, Deputy Hostnick stepped away and a male officer granted Brandy permission to use the restroom unaccompanied. Shor tly thereafter, Deputy Hostnick discovered that Brandy took the opportunity to remove three cassette tapes from the interview room, pull all the tape out, and flush the jewelry she had been weari ng down the toilet. Brandy was arrested at 10: 00 a.m. on January 6, 2003. Sometime after defendant gave his boots to detectives, but appa rently before they realized he could not be ruled out as the source of the bl oody footprints at the scene, Det. Jason Morgan drove d efendant back to the Bruce trai ler. 8 On the way, defendant again sat in the front seat and, as he exited the veh icle, returned the rubber boots he was loaned at the stati on. Defendant entered the Bruce trailer wearing only socks on his feet and Det. Morgan left to return to the station . By the time Det. Morgan traveled 200-300 yards, however, he received a call advi sing him to reclaim defendant. When Det. Morgan arrived back at the trailer, less than two minutes later, the door to the trailer was open and defendant met him at the d oorway with a duffle bag, still not wearing any shoes. Det. Morgan informed defendan t he was needed back

7 Lt. McDonnell testified that defendant willingly handed over the shoes but stated these were the only shoes he owned. Capt. Abraham testified defendant agreed to hand over his shoes to investigators, but stated he did not have any other shoes to we ar at that time.

8 Deputy Hostnick released defendant in accordance with policy b ecause she was unaware at the time there existed any evidence inculpating him, other than the cut on his palm for which he had provided an explanation. 8at the station for additional que stioning. Defendant agreed, bu t stated he needed to get to the bus station afterwards. De t. Morgan gave defendant the r ubber boots to wear back to the station. Upon returning to the station, def endant gave his consent for the detectives to search his duffle bag. The bag contained clothing, but no shoes . Defendant identified certain items in the duffle bag as his belongings, including a pair of jeans on which blood evidence connected to the unrelated homicide of Terrance Blaze was later found. Defendant was subsequently placedunder arrest for the murder o f Julian Brandon. After his arrest, defendant was transferred to the Cad do Parish Correctional Center where he was temporarily p laced in an intake cell with C ollies Sharpes and Bobby Evans, each of whom had recently been arrested on separat e charges. None of the three knew each other before being placed together in the c ell. Defendant made statements to Sharpes and Evans indicating his involvement in t he crime. After defendant was removed from the in take cell, either Sharpes or E vans called a guard over and divulged what defendant had said. The following day, S harpes and Evans separately gave recorded statements to Caddo Parish Detective M arianna McClure. Sharpes testified that during his brief encounter with defendan t, defendant volunteered that he had been arrested for murdering an “old cou ple up in Blanchard.” According to Sharpes, defendant s tated he instructed his girlfr iend Brandy to “knockoff” the couple to see whether she had what it took to ki ll and he had taken a bracelet from the victims during the crime. Sharpes testified that defendant said Brandy did the killing and attempted to cover her tracks by flu shing some of the victim’s jewelry down the toilet at the police station. Defendant boasted police “didn’t have anything on him,” and informed his cellmates that he was f rom Mississippi. In Sharpes’ appreciation, defendant was excited as he spoke about the crime: his eyes

9brightened and he appeared gratified and proud of what he said he and Brandy had done together. Sharpes testified he had not received anything f or his testimony, he has never been an agent of the state, he did not receive informatio n about the crime from law enforcement, and although he had access to a television in jail he did not see any related news reports. 9 Cellmate Bobby Evans also testified about his encounter with de fendant. At defendant’s second trial, Evans , who was still incarcerated anda self-described “fourtime loser,” became uncooperative. When called to the stand, he acknowledged his prior testimony recounting defe ndant’s January 6, 2003, stateme nts but balked when asked to relay them again. After a combative exchange with the prosecutor, Evans explained he had initially disclosed defendant’s statements onl y because he was “young and scared,” but he no longer wanted anything to do with defendant’s case because he still had time left to serve and was worried he migh t meet defendant again behind bars. After having his memory refreshed as to the conten t of his prior testimony, Evans confirmed that, on January 6, 2003, defendant stated he and his girlfriend Brandy killed “two old people;” defendant was puttin g Brandy to a test; Brandy flushed the victim’s bracelet down the toilet; defendant had blood on his shoes; defendant buried the murder weapon behind the victims’ h ome; Brandy’s brother was present during the murder; Brandy’s brother wore de fendant’s shoes and defendant wore someone else’s shoes, to “throw people off;” Bra ndy shot the woman and defendant shot the man; a detective released defendant back to Brandy’s “mama’s house,” but came back for him; the “old man” hit Brandy with a Budweiser bottle; and they had tied up the victims. Evans denied that detectives had supplied him with any

9 Attorney Pam Smart was appointed to represent both Evans and S harpes on the charges they were facing when defendantmade the jail cell disclosures. Smart testified she never reached any plea deals on behalf of Evans or Sharpes in consideration f or their testimony against defendant. According to Smart, the treatment each received was representat ive of dispositions she has obtained for similarly situated clients. 10information about the crime and stated he had not seen or heard anything about it on the news. On cross-examination, it was elicited that Evans told Detective McClure defendant’s skin tone was “really white,” and that when Evans t estified before the grand jury he stated, contrary t o his trial testimony, defendan t said Brandy shot the man and defendant shot the woman. Investigators determined that neither Sean George nor Johnny Wr ight were involved in the Brandon murder. On the day of the murder, Sean was subject to a court order which required him to stay within 150 feet of his m other’s trailer and was wearing an ankle bracelet that monitored his whereabouts. After speaking with Sean’s probation officer, investigators ruled him out as a suspect. Se parately, investigators independently verified Wright ’s alibi through multiple sources. On the evening of the murder, January 1, 2003, surveillance cam eras captured two individuals attempting to use the ATM at the Northwood Bran ch of the Hibernia National Bank in Shreveport, between 7:32 and 7:36 p.m. While the ATM could not record which card, i.e., which bank account was attempted to be accessed or whose card was inserted, electronic bank data showed the users insert ed a card and supplied an incorrect PIN. Brandy’s fath er, John Holmes, reviewed enhanc ed ATM surveillance imagery and identified Brandy as the female and te stified the black male with her looked like defendant. Tammy Holmes, Brandy’s stepmoth er, identified Brandy and defendant in the same photograph. At 6:55 p.m. and 7 :01 p.m. on the same evening, the bank also recorded two separate failed attemp ts to withdraw $200 using Mr. Brandon’s ATM card from an ATM inside a convenience s tore near the Brandon home. The withdrawals were declined for use of an incor rect PIN. There was no surveillance camera at this ATM. Testimony established that it was an easy walk from the Bruce trailer to the B randon home and to both of these ATM locations. 10

10 The distance between the Bruce trailer and the Brandon home wa s less than one quarter of a mile. 11After Brandy and defe ndant were arrested, investigators obtaine d warrants to search in and around the Bruce trailer. In the bedroom Brandy and defendant shared, investigators found two pillows with apparent bullet holes, sim ilar to the one found near Mrs. Brandon, and a box of plastic food prep gloves from a Subway restaurant. The gloves had a small diamond pattern which was consistent wit h the diamond pattern imprinted in the dried blood stain found on the Brandon s’ door. Outside the trailer, just beyond the porch, there was a bottle of bleach an d a “little burn pile” of charred clothing, a m op, a shoe sole, and other fabric. Three s pent shell casings and a clear plastic glove which contained a pearl bracelet and a go ld bracelet with multicolored stones were recove red from a gutter along the roof

. Investigators also traveled to Lumberton, Mississippi to invest igate a link between Brandy and the weapon us ed to shoot the victims. With the help of John and Tammy Holmes and local law enfor cement, investigators located the spot where John used his .380 handgun for target practice. Caddo Parish authori ties excised a portion of a pine tree that had been h it by gunfire and collected spent shell casings from the ground nearby. Lt. McDonnell extracted a bullet from the tree s ample and submitted it for lab analysis. Forensic analyst and ballistics e xpert Richard Beighley compare d the bullets and spent shell casings and concluded that: (1) the portion of the bullet extracted from Mr. Brandon’s brain fit with the fragment embedded in the ceili ng above him; (2) the bullet extracted from the Mississippi pine tree was fired by th e same weapon, a .380 caliber, that shot Mr. Brandon; (3) the same weapon fired at le ast one of the bullets that yielded the shell casings recovered from the gutter at the Bruce trailer; 11 and (4)

11 The bullets that yielded the other two spent shell casings rec overed from the gutter were also fired from a .380 caliber with the same “class characteris tics” as the weapon used to shoot Mr. Brandon but could not be conclusively matched. “Class character istics” refer to the shape, size, location, overall markings, weight, design, quantity of lands a nd grooves, and width of lands and grooves of a bullet and its spent casing. 12the shell casings collected from around the pine tree in Missis sippi were from the same .380 caliber weapon that produced the casings recovered fr om the gutter at the Bruce trailer. According to Beighley, that two of the casings f rom the gutter were unable to be conclusively matched with the other ballistics evi dence was attributable to the fact that a .380 caliber is an inexpensive gun that vari ably fires with less force than is necessary to leave unique impressions on the bullet or its casing. As to blood at the scene, DNA testing revealed that blood on th e knives contained Mr. Brandon’s DNA and none of defendant’s DNA was det ected. DNA testing of bloodstains on defendant’s boots, however, revealed the presence of Mr. Brandon’s DNA, with a statistical probability that it came fromsomeone other than Mr. Brandon of one in 208 trillion. One of the shell casings re covered from the gutter at the Bruce trailer also tested positive for Mr. Brandon’s DNA , with a statistical probability that it came from some one else of one in 2.26 billi on. Defendant asserted he was innocent and presented his case that he was never inside the Brandon home, the perpe trators were two white people , as Mrs. Brandon told paramedic Tommy Adams, and the shoes he wore to the police station belonged to Sean George. In support of his theory, defendant called his younger brother, Bradley Brumfield to testify. According to Brumfield, while def endant lived near him in Tylertown between 2000 and 2002, they were roughly the same size and had a habit of sharing clothing and shoes, specifically size 10.5 or 11 sho es. Brumfield stated that he had never seen defendant wear ing the size 9 boots in which h e was arrested. Brumfield also stated that, the day before defendant left for S hreveport, he was helping him work on his truck’s transmission and defendant cut the palm of his right hand. Brumfield also recalled th at when he visited defendant injail, defendant denied any involvement in the murder and blamed Brandy for his entangl ement in the case.

13Mike Brandao, a nurse practitione r who responded with paramedic Tommy Adams to transport Mrs. Brandon in the medivac helicopter, also testified. According to Brandao, Mrs. Brandon was alert enough to physically respondwhile on the helicopter, i.e., squeeze a hand; although, as a result of the excessive aircraft noise and the helmet he was required to wear, Brandao did not hear anythi ng that Mrs. Brandon may have said to Adams. Brandao explained that, as a result of the noise, it is generally difficult for medical personnel to understand patient s on board the helicopter. During the penalty phase of the proceedings, following the jury ’s return of the guilty verdict, the state presen ted evidence of defendant’s inv olvement in the unrelated murder of Terrance Blaze. The evidence indicated defe ndant and Brandy committed the murder together in Brandy’s mother’s vehicle thre e days after the Brandon murder. The state also presented victim impact evidence concerning how the crime affected the Brandons’ friends and family. The defense of fered mitigation evidence in an effort to establish defendant’s intellectual dis ability/mental retardation. The defense also offered eviden ce to show he had a difficult ch ildhood. The jury was unpersuaded by the mitigation evidence and unanimo usly determined a sentence of death should be imposed.

DENIAL OF MOTION TO SUPPRESS FRUITS OF ILLEGAL DETENTION (Assignment of Error #1) Defendant filed a motion to suppress evidence and statements th at were obtained from him the night of January 5, 2003, and the morning of January 6, 2003, arguing that the evidence and statements resulted from an illeg al detention, and that his intellectual deficits preve nted him from knowingly and volu ntarily consenting to the waiver of any of his rights. Specifically, defendant sought to exclude his boots,

14photos of his boots, photos of his hands, two buccal swabs, his fingerprints, fingernail scrapings, his duffle bag and its contents, along with his stat ements that he had been with Brandy Holmes since his arrival in Shreveport, that the bo ots he was wearing were his only shoes, and that h e was not stupid enough to walk into the station with blood on his shoes. Defendant takes issue with the means by whi ch officers procured him and argues the Fourth Amendment proscribes his removal from a private residence and prolonged detenti on without probable cause. Defen dant asserts the trial court should have granted his motion to suppress because he did not voluntarily consent to go to the station or to the collection of his person al effects. Instead, defendant claims he acquiesced only as a result of the officers ’ coercive tactics, coupled with his sub-average in tellect and intoxicated state. An arrest is “the taking of one person into custody by another [through] actual restraint [that] may be imposed by force or may result from sub mission of the person arrested to the custody of one arresting him.” State v. Fisher , 97-1133 (La. 9/9/98), 720 So. 2d 1179, 1183; La. C.Cr. P. art. 201. Whether a person has been arrested is determined by an objective test; neither the person’s subjectiv e impression nor the lack of formality of the arrest resolves the issue. State v. Thibodeaux , 414 So. 2d 366, 368 (La.1982). The determination of whether an arrest occurred depends on the totality of the circumstances, but several factors distinguish an arrest from lesser infringements on personal liberty. State v. Allen , 95-1754 (La. 9/5/96); 682 So. 2d 713, 719. A prime characteristic of any Fourth Amendment seizur e of a person is whether, under the totality of the circumstances, a reasonable person would not consider himself or herself free to leave. Id . Ultimately, whether a person has been arrested depends on circumstan ces indicating an intent to impos e an extended restraint on the person’s liberty. Id

.

15We agree with the trial court’s finding that the interaction be tween defendant and the detectives does not meet the definition of an arrest or a detention. At the suppression hearing, defendant testified he only went along to the station because he felt intimidated. He testified that when he was summoned from B randy’s bedroom, Deputy Hostnick unsnapped her holster in an overt show of force and directed him to come along. In contrast, Deputy Ho stnick denied ever unstrappin g her holster in defendant’s presence, either as a show of authority or otherwis e. She stated she made no attempt to use or display her weapon and explained such an a ct would have been out of character, especially giv en that she was trained to neve r unstrap her holster unless she intended to use her weapon. Deputy Hostnick testifie d further that, at no point before defendant was arrested on the morning of January 6 , 2003, did she ever tell him he had no choice but to comply. According to Deputy Ho stnick, and as Detective Ward independently atte sted, if defendant had simply said, “I’m not going with you,” when they initially appr oached him inside the Bruce trailer, the officers would have left without him because they lacked probable cause to detain him at that time. As Detective Ward recalled, defendant was cooperative and did not express any unwillingness to go to the station. In Detective Ward’s view, i t appeared defendant came along, at least in part, because Ms. Bruce made it clear s he did not want him left unattended with her grandchildren. In ruling on the motion to suppress, the trial court weighed th ese differing accounts and found defendant volunt arily cooperated and the cir cumstances did not rise to a level constituting arrest or detention. The trial cou rt reasonably rejected defendant’s assertion that he went along to the station because Deputy Hostnick unsnapped her holster threateningly, in light of Deputy Hostnic k’s contrasting testimony denying the allegation. T here is no showing that the court unreasonably credited Deputy Hostnick’s testimony. Detective Ward’s independ ent testimony

16corroborated Deputy Hostnick’s statements indicating that at no point was defendant told he was required to comply with officers’ requests. Defendant was not handcuffed or otherwise forcibly restrain ed. He was not placed in the back of the police vehicle to be taken to the station. Rather, defendant voluntarily rode to the Sheriff’s office with Captain Abraham as a front seat passenger. Based on this t estimony, the trial judge reasonably determined defendant was not removed from the trailer against his will and was therefore not taken into custody at that time. The United States and Louisiana Constitutions protect against u nreasonable searches and seizures. U.S. Cons t. amend. IV; La. Const. art. 1 , § 5. If evidence is derived from an unreasonable sear ch or seizure, the proper reme dy is exclusion of the evidence from trial. Mapp v. Ohio , 367 U.S. 643, 648, 81 S. Ct. 1684, 1688, 6 L.Ed. 2d 1081 (1961); State v. Tucker , 626 So. 2d 707, 710 (La.1993). A search conducted without a warrant issued upon pr obable cause is per se unreason able subject only to a few specifically established and well-delineated exceptions. State v. Thompson , 11-0915 (La. 5/8/12), 93 So. 3d 553, 574. One of these exceptio ns is consent. Id. The state has the burden of proving the consent was given freely an d voluntarily. Id. Voluntariness is a question of fact to be determined by the tri al judge under the facts and circumstances of each case. T hese factual determinations ar e to be given great weight on appellate review. State v. Edwards , 434 So. 2d 395, 397 (La. 1983). The state bears the burden of proving the admissibility of the evid ence seized without a warrant when the legality of a search or seizure is placed at i ssue by a motion to suppress evidence. La. C.Cr. P. art. 703(D). Trial courts are v ested with great discretion when ruling on a motion to suppress. Consequently, t he ruling of a trial judge on a motion to suppress will not be disturbed absent an a buse of that discretion. State v. Long , 03-2592 (La. 9/9/04), 884 So. 2d 1176, 1179. Despite the fact that defendant w as not under arrest or officia lly detained,

17defendant was nonetheless advised of his Miranda rights at the station. We find no error in the trial court’s finding that defendant voluntarily w aived his rights. At the suppression hearing, defendant claimed he had consumed half of a “fifth” of Jim Beam and smoked marijuana during the preceding hours. He also s tated, however, that he did not have any trouble understanding the questions asked o f him. Moreover, Deputy Hostnick and Detective Ward both testified separately th at he did not appear intoxicated and appeared to understand everything they said. Th e trial court pointed to defendant’s testimony at the suppression hearing, wherein he acknowledged that Detective Ward read his Miranda rights to him out loud, while he followed along with a written copy, and wherein he stated that the Miranda rights were familiar to him from his previous arrests, and that he understood what Detectiv e Ward was doing and he agreed to sign the form and talk to her. Defendant further s tated he understood he had a right to be represented by an attorney. The trial court w as specifically impressed with defendant’s ability to relate specific facts about his cas e and about his prior arrests, and based on his testim ony and noting his prior work h istory, the court found defendant was “street smart” a nd had at least average adaptive skills. Furthermore, in considering the totality of the circumstances, it is relevant b ut not dispositive that a subject has been using intoxicants. State v. Ludwig , 423 So. 2d 1073, 1076 (La. 1983). Similarly, evidence of intellectual disability, without more, i s insufficient to show involuntariness. See Holmes , 5 So. 3d at 72-73. As to the specific circumstances in which physical evidence was collected from defendant, Detective Ward testified defendant never asked wheth er he had a choice in complying with the officers’ requests. According to Lt. McDo nnell, defendant voluntarily relinquished his boots and consented to the collect ion of his fingerprints, buccal swabs, and fingernail scrapings at 1:15 a.m. and 10:00 a .m., respectively. Although defendant maintains that he cooperated at the station only because he felt

18compelled, he conceded that he n ever asked whether he was free to leave, never requested an attorney, never asked to place a call, and, up unt il his arrest, never invoked his right to remain silent. According to defendant, whe n Sgt. McDonnell asked to photograph his boots and collect his buccal swabs, fin gerprints, and fingernail scrapings, he responde d by asking whether he had a c hoice, to which he claims Sgt. McDonnell replied in the negative. In contrast, Lt. McDonnell testified that when he asked for the boot s, defendant responded by statin g, “you can have them, but it’s the only shoes I got.” 12 And when defendant was informed there were boots he could borrow, he “took his s hoes off and held them out for [ Sgt. McDonnell] to receive and put in a brown paper bag.” When pressed as to wheth er defendant said anything further as he gave over his boots, or at any other poi nt during the collection of evidence, Sgt. McDonnell tes tified defendant stated, in a “[ v]ery relaxed” and “cooperative” demeanor, “you can have anything you want.” Sgt. McDonnell denied defendant ever asked whether he had a choice to refuse to provi de his boots or other physical samples. After defendant was returned to the Bruce tra iler and then brought to the station a second time, he arrived carrying a duffle bag which, according to Detective Ward, he also voluntarily relinquished. In fact, by d efendant’s own admission, he read, understood, and voluntarily signed a writte n consent to the search of his bag. Defendant testified at the suppression hearing that the detective read the consent form to him, and further noted that the detective marke d the form so that it specifically applied to t he search of the bag. In ruling on the motion to suppress, the trial judge found defe ndant voluntarily consented to the collection of his personal effects. The court therefore found all evidence obtained before his arrest admissible under the consen t exception to the

12 At trial, Lt. McDonnell explained that although he previously testified defendant stated “It’s the only shoes I got ,” after reviewing his report he confirmed defendant actually u sed the word own
. 19warrant requirement. The court also found that any statements m ade before his arrest were admissible because they were made with full understanding of his rights, as evidenced by his testimony and the wavier he signed upon arriva l at the station. Nothing in the record suggests the trial court unreasonably cre dited Sgt. McDonnell’s testimony in concluding that defendant freely and voluntarily r elinquished his boots, buccal swabs, fingernail scrapings, fingerprints, and duffle ba g. The trial court properly examined the voluntarine ss of defendant’s statements, in addition to assessing whether he consented to the searches and seizures, an d acted within its discretion in concludi ng defendant’s rights had not been violat ed. Defendant shows no error in the trial court’s ruling.
EVIDENTIARY RULINGS - EXCLUSION OF EVIDENCE (Assignments of Error # 2-5) Brandy Holmes’ Statements Prior to trial, defendant filed a Motion to Admit Evidence, see king to admit custodial and noncustodial statements by Brandy Holmes implicat ing third parties other than Robert Coleman as the perpetrator in the crime. In h is memorandum in support of the Motion to Admit Evidence, defendant characterize d the statements as follows: 13 1) A pre-arrest statement to acquaintances Chris Addison, MarvinBrown, and Johnny Wright, that she killed some old people; 2) A custodial statement denying personal involvement and claimi ng Wright committed the murders; 3) A custodial statement that sh e shot Mr. and Mrs. Brandon and stabbed Mr. Brandon while defendant and Wright were both present; 4) A custodial statement that sh e shot both Brandons, that Wrigh t cut Mr. Brandon, and that defendant did not participate; 5) A custodial statement that she and Wright committed the crime s while defendant was at her mother’s trailer;

13 The actual statements were not proffered into evidence or othe rwise detailed in the record. 206) A custodial statement that Sean was not involved, that she an d Wright planned the attack, and defendant “tagged along” but left sayin g he wanted nothing to do with it; 7) A custodial statement tha t she did not murder anyone; 8) A custodial statement that someone other than defendant was p resent with her during the crimes; 9) A letter to her mother stating that Wright committed the crim e while defendant was at the trailer; 10) A letter to her friend Shay s tating that Wright should take the charge; 11) A letter to defendant in whic h she stated that defendant was innocent. Defendant argues the trial court’s blanket ruling preventing hi m from presenting any of Brandy’s custodial or non-custodial statements resulted in the denial of his right to present a defense. Defendant argues he was entitled to employ the exculpatory statements even if those statements did not fit neatly within an exception to the hearsay rules. Citing Chambers v. Mississippi , 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed. 2d 297 (1973), defendant asserts that his Sixth Amendment right to present a defense trumps state e videntiary rules. Defendant arg ues the statements were sufficiently trustworthy to be pl aced before the jury for its c onsideration. It was established that if calle d as a witness in this case, Br andy would assert her Fifth Amendment privilege and refuse to testify. Thus she w as unavailable and her out of court statements were hearsay. Louisiana Code of Evidenc e article 804(B) provides certain exceptions to hearsay rules when the declarant is unavailable. Pertinent here is the excepti on set out in La. C.E. art. 804(B) (3): B. Hearsay exceptions. The following are not excluded by the he arsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which was at the ti me of its making so far contrary to the declarant’s pecuniary or propriet ary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him ag ainst another, that a reasonabl e man in his position would not have made t he statement unless he believ ed it to be true. A statement tending to expose the declarant to crimina l liability

21and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthines s of the statement. Accordingly, in cases in which the proffered statement against interest was uttered by a co-defendant, against the co-d efendant’s interest, the party who seeks to admit the statement at his trial for its exculpatory value must first dem onstrate its trustworthiness.
In Williamson v. United States , 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed. 2d 476 (1994), the Supreme Court addressed the admissibility of a co-d efendant’s confession in the context of the hearsay exception provided by the paralle l federal rule for declarations against interest, Fed. R. Evid. 804(b)(3). William son’s co-defendant was called by the state but refused to testify, and the prosecution was then allowed to admit the co-defendant’s entire confession, including statement s in which he implicated Williamson. 512 U.S. at 597-98. In reversing the tri al court’s ruling admitting the statement in its entirety, the Supreme Court foun d that “the most faithful reading of Rule 804(b)(3) is that it does not allow admission o f non-self-inculpatory statements, even if they are mad e within a broader narrative th at is generally self-inculpatory.” Id. at 600-01. The Court explained that “Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonab le people who are not especially honest, tend not to make self-inculpatory statem ent unless they believe them to be true.... The fact that a person is making a broadly self-inculpatory confession does not make more cre dible the confessions’ non-sel f-inculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpat ory nature.” Id. at 599- 600. The Court stated the district court may not just assume fo r purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someo ne else. Id . at 600-01.

22Similarly, in State v. Lucky , 96-1687 (La. 4/13/99), 755 So. 2d 845, this court discussed admissibility of an accomplice’s statement. This cour t explained “the basis for the exclusion of an accomplice’s statement even one which i s against the accomplice’s penal interest, is the longstanding perception that custodial confessions of non-testifying, unavailable c odefendants are inherently susp ect and presumptively unreliable as evidence against the defendant.” 755 So. 2d at 85 7. Moreover, we noted “the hearsay exception for declar ations against penal interest does not allow admission of non-self-inculpatory statements by accomplices, even if they are made within a broader narrative that is ge nerally self-inculpatory.” Id . Thus, we held that only the self-inculpatory parts of an accomplice’s confession should be admitted. Straightforward application of this rule to the instant case pr ovides that only those portions of Brandy’s statements in which she specifically inculpated herself would have been eligible for a dmission under La. C.E. art. 804( B)(3). Moreover, of those self-inculpatory portions, only those for which there exi sted corroborating circumstances clearly indicating trustworthiness would satisfy the requirements of La. C.E. art. 804(B)(3). In State v. Hammons , 597 So. 2d 990 (La. 1992), this court explained that the burden of s atisfying the corroboration requi rement is on the accused, and that the burden may be satisfied by evidence indep endent of the statement which tends, either directly or circumstantially, to establish a matter asserted by the statement. “Circumstantia l evidence of the veracity of the declarant as to the portion of the statement exonerating the accused is generally s ufficient. Typical corroborating circumstances include statements against the decl arant’s interest to an unusual or devastating degree, or the declarant’s repeating of consistent statements, or the fact that the declarant was not likely motivated to fals ify for the benefit of the accused.” 597 So. 2d at 996-97. In defendant’s view, Brandy’s statements “bore the persuasive a ssurances of

23trustworthiness” and were deemed trustworthy even by the state, as indicated by its use of them at Brandy’s trial. Defendant further claims that be cause some of Brandy’s statements were corroborated by other evidence they were clearl y trustworthy. The trial court disagreed and denied defendant’s motion to admit th e statements, having found defendant failed to estab lish their reliability. The court found Brandy’s statements “extremely inconsiste nt” and noted defendant had fai led to show that Brandy, who was at the time enga ged in a romantic relationship with him, had not been lying to protect defendant when she implicated someone els e. We find no error in the trial court’s exclusion of the statemen ts. Not only did Brandy give several varying accounts, ranging from claiming she was innocent and not involved at all to admitting her direct personal involvemen t in Mr. Brandon’s death, she also gave inconsiste nt information about her co-perp etrator’s identity and in some instances directly incul pated defendant. That the state used some of Brandy’s statements at her separate tri al does not indicate they possess ed independent worth as evidence of her co-perpetrator’s identity, which is the purpose defendant asserts they would have served in his case. As the trial court found, Brandy conjured “a myriad of possibilities” as to how the crimes occurred, within which she obscured to varying degrees even her own role. Consid ering the inconsistent and inh erently suspect nature of Brandy’s statements, the court did not err in finding even t hose portions in which she directly implicated herself inadmissible under La. C.E. art . 804(B)(3). We also find the exclusion of Brandy’s statements did not viola te defendant’s right to present a defense. The Sixth Amendment of the United S tates Constitution and Article I, §16 of the Louisiana Constitution ensure a defendant the right to present a defense, and, as found in Chambers v. Mississippi , supra , few rights are more fundamental. In Chambers , the Supreme Court addressed the admission of hearsay evidence to protect a defendant’s constitutional right to prese nt a defense. Chambers

24was convicted of murdering a police officer. At trial, he sough t to introduce the hearsay testimony of three individuals to whom a third person, McDonald, had orally confessed to committing the murder on three separate occasions. The trial court excluded the hearsay statements. In reversing the conviction, t he Supreme Court found the testimony “bore persuasive assurances of trustworthin ess and thus was well within the basic rationale of the exception for declarations ag ainst interest.” The Court noted: The hearsay statements involved in this case were originally ma de and subsequently offered at trial under circumstances that provided considerable assurance of their reliability. First, each of McD onald’s confessions was made spontaneously to a close acquaintance shor tly after the murder had occurred. Second, each one was corroborate d by some other evidence in the case - McDonald’s sworn confession, the testimony of an eyewitness to the shooting, the testimony that McDonald was seen with a gun immediately after the shooting, and proof o f his prior ownership of a .22-caliber r evolver and subsequent purcha se of a new weapon. The sheer number of independent confessions provide d additional corroborati on for each. Third, whatever may be the p arameters of the penal-interest rationale, each confession here was in a very real sense self-incriminatory and unque stionably against interest. 410 U.S. at 300-01. Additionally, the Court found the testimony was also critical to defendant’s defense. “In these circumstances, where constitutio nal rights directly affecting the ascertainment of guilt are implicated, the hearsa y rule may not be applied mechanistically to defeat the ends of justice.” Id . at 302. However, the Supreme Court has subsequently made clear that the fundamental right to present a defense does not require the trial court to admit irrelevant evidence or evidence with such little probative value that it is substan tially outweighed by other legitimate considerations. In Holmes v. South Carolina , 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed. 2d 503 (2006), the Court stated that “while the Const itution thus prohibits the exclusion of defense evidence under rules that serve no leg itimate purpose or that are disproportionate to the ends that they are asserted to prom ote, well-established rules of evidence permit trial judges to exclude evidence if it s probative value is

25outweighed by certain other factors such as unfair prejudice, c onfusion of the issues, or potential to mislead the jury.” 547 U.S. at 326.
In State v. Gremillion , 542 So. 2d 1074, 1078 (La. 1989), this court reversed defendant’s manslaughter conviction, finding the lower courts’ exclusion of certain statements violated defendant’s right to present a defense. Def endant sought to introduce a statement the victimmade to the investigating offi cer in which the victim was unable to identify his attacker, other to say he was attack ed by three white men. Defendant and the victim had beenclose friends, having known e ach other for approximately eleven years. Thi s court noted that although the statement did not fit into any of the recognized exceptions to the hearsay rule, it s hould have, nevertheless, been admitted into evidence due to its reliability and trustwor thy nature. The court found the statement was corroborated by a similar statement the victim gave to the treating physician. Thus, while defendant and the victim were c lose friends, in two separate statements the victim f ailed to identify the defendant as his attacker. This court noted the statement was given to a police officer investi gating the crime, and there was no circumstance to sugge st the statement was untrustw orthy. The hearsay statements defendant sought to introduce in this ca se are not comparable to the type of evidence described in Chambers or Gremillion , and clearly lacked a sufficient degree of reliability. Defendant contends B randy’s statements were essential to the extent that the y aligned with his theory he wa s never inside the Brandon home, the perpetrators we re two white people, and the s hoes he wore to the police station belonged to Brandy’s brother. Specifically, he a sserts statements in which Brandy claimed she and Wright (both of whom are Caucasian , unlike defendant) perpetrated the att ack corroborate Mrs. Brandon’s st atement that she was attacked by two white people. Def endant also asserts Brandy’s a ccounts were consistent with evidence at the scene, and defendant’s own stat ement to police, in

26which he claimed he was wearing Sean’s boots, was corroborated by Brandy’s similar statement to detectives. We do not find these statements so critical that the trial court should have allowed them, and defendant has f ailed to show he was denied hi s fundamental right to present a defense in their absence. The jury was privy to am ple evidence of Brandy’s guilt. Additional evidence of her guilt, in the form o f her own statements or otherwise, would have only beenconsistent with the state’s the ory of the case and of no value to the defense. Further, even without Brandy’s stateme nts inculpating Wright, the issue of Wright’s alleged involvement was presented at defendant’s trial. Given that the jury knew Wright was initially a suspect, Brandy ’s statements in which she inculpated Wright (along with defendant in some variations) would not have reasonably affected the jury’s assessment of defendant’s guilt. Moreover, Brandy’s statement in which she allegedly told police defendant wore her brother’s shoes into the station because his own were rain-soaked was not specified in defendant’s “Motion to Admit Evidence” or his memorandum in support. Althou gh defendant now references it specifically, he h as failed to state with particu larity what Brandy said or the circumstances in which she allegedly uttered it. Without mo re, it remains unclear that the probative value of such a statement, if it was in factmade, would have outweighed other legitimate cons iderations. La. C.E. art. 403. Moreover, had any of Brandy’s out-of-court statements been admi tted, the state would have been permitted to present those statements in which she explicitly inculpated defendant to rebut his selective use of those in whi ch she did not. See La. C.E. art. 806. Thus, it is unlikely the inclusion of the select ed statements would have reasonably affected the jury’s assessment of defendant’s guilt. La. C.E. art. 103(A) provides that an error may only be predicated upon a ruling whi ch excludes evidence if a substantial right of the party is affected. Here, the evid entiary rulings complained

27of did not rise to the level of an impingement of the defendant ’s right to present a defense at trial. Finally, we not e that even if these statement s had been erroneously excluded, that ruling would be s ubject to the harmless error st andard of review.
Holmes , 5 So. 3d at 76; see also State v. Van Winkle , 94-0947 (La. 6/30/95), 658 So. 2d 198, 202. We find no error inthe trial court’s ruling.
Measurement of Shoe Size Defendant argues he was also deprived of his right to put on a defense when the trial court prevented him from conducting a measurement of his shoe size using a Brannock device in front of the jury. Defendant argues this mea surement was necessary to bolster his defense that the blood-spattered boots he wore to the police station belonged to Sean George. The state’s forensic evidence established the shoes were a size 9. Defendant sought to demonstrate his shoe size fa lls between a 10.5 and
11. The trial court sustained the state’s objection on the ground t hat defendant did not have anyone with experience using the device to conduct the measurement. Specifically, the court stated: I do think we need somebody to measure him. I think the state h as a good point there. I think he can be measured. But simply for hi m to step on there, I think you need someone to actually administer that device and measure him, somebody who has experience in doing that, because that isn’t something that is just, fo r example, a tape measure that one would use in every[day] life. So I’m going to sustain the state’s obj ection because that is a very specific device that is not used in ever yday experience, and it can be manipulated. For example, he can pull his foot back, push it forward, so on and so forth, and the jury may or may not be able to see that. It’s not the jury’s - the jury shouldn’t meas ure him, and he can’t measure himself. So we need somebody who is qualified and has some experience using that d evice to measure him....[W]e need somebody who is experienced with it to do the measurement and m ake sure his [heel] is all the way back, his toes are down where th ey’re supposed to be, so on and so forth. . . . [T]he defendant could easily manipulate this measurement by simply causing his arch to, lifting his arch up, pulling his toes back , and that would not be easily identifiable by - or flattening his arch if he wants to

28make his foot look larger he can simply push down on his arch and cause his foot to elongate. It’s - there is (sic) too many ways that that could be manipulated without somebody here who has some experience and expertise, and frankly I don’t even think just a shoe salesman, I think it would actually need to be somebody with some expertise in that device....Show that the objection of the state was sustained base d on the fact that there is no one qualified to administer that measurem ent present. Defendant asserts the court err oneously sustained the state’s o bjection to his foot measurement and, contrary to th e law and common experience, required that he be measured by someone with experi ence using a Brannock device. Although Louisiana jurisprudence does not contain a bright line rule as to what sort of physical measurements require accompanying narration byan expert, defendant does not show the trial court abused its discretion i n ruling defendant could not display his foot measurement without the aid of someone wit h experience using the measuring device. Although display of a physical feature is generally considered demonstrative rather than testim onial, the mode and order of al l evidentiary presentations are subject to court control. La. C.E. art. 611 p rovides that, although “the parties to a proceeding have the primary responsibility of pres enting the evidence,” their actions are subject to exercise of reasonable control by the court to ensure ascertainment of the truth, avoidance of needless consumption o f time, and protection of witnesses from harassment or undue embarrassment. Defendant had no plan to call anyone, even a lay witness, to conduct his measurement. Rather, the record reflects defendant planned only to display his feet while standing on th e device so jurors could observe his feet were larger than the shoes he wore into the po lice station. Significantly, the trial court did not rule that defendant was barred from demonstrating his shoe size, but rather made a reasoned determination as to the appropriate means of doing so. Given that a Brannock device cannot speak for itse lf, and, as the court noted, defendant might not have accurately measured his own fee t, we find the judge did not abuse his discretion by ruling defendant needed someone with experience

29using a Brannock device to ensure the demonstration would be us eful to the jury.

Brandy Holmes’ Juvenile Adjudications Defendant argues the trial court erroneously denied his request to introduce Brandy Holmes’ juvenile records. Defendant sought to introduce the records in his case in chief to rebut the state’s claims that defendant was “training” or testing Brandy and that they were inseparable partners in crime. Defendant int ended to introduce the records to show that Brandy had a long-standing history of crim inal behavior, including other home invasions, pre dating her association with defendant. La. C.E. art. 609.1(F) provides that juven ile delinquency adjudications are generally inadmissible for the purpose of attacking witness credibility. When the juvenile records of a witness are at issue, courts are called upon to de termine whether the impeachment value of the juven ile adjudications is outweighed b y the state’s interest in maintaining the confidentiality of juvenile records. Cases a llowing introduction of such records have presented the issue in terms of the defendant ’s constitutional right to confront the witness. Here, however, Brandy was not a testif ying witness, so these cases are not directly applicable. See, e.g., State v. Chester , 97-2790 (La. 12/1/98), 724 So. 2d 1276; State v. Smith , 437 So. 2d 802 (La. 1983); State v. Toledano , 391 So. 2d 817 (La. 1980). As recognized earlier in this opinion, a defendant has a fundam ental right to present a defense. The trial court is nevertheless vested with broad discretion to determine whether evidence is rel evant or, even i f relevant, ha s such little probative value that it is substantially outweighed by other consideratio ns. La. C.E. art. 403. In sustaining the state’s objection to Brandy’s juvenile records, the trial court determined the risk of confusion, misleading the jury, and wasting time, o utweighed any probative value the records might possess. The court credited the state’s assertions that the

30records were too old and factually unrelated to be relevant in this case and, opined further that the records actually bolstered the state’s theory because they demonstrated Brandy’s juvenile history was non-violent. The court also notedthe records lacked any exculpatory value for defendant. Given that the records def endant sought to present were for non-violent offenses Brandy committed roughly a decade before the Brandon murder, the trial court did not erroneously determine they were irrelevant and unfit for the proffered purpose. The fact that as a juvenil e Brandy was adjudicated delinquent for non-violent crimes has no bearing on defendant’s guilt in this case. No reversible error is shown. Photographs seized from Brandy Holmes’ Room Defendant also asserts the trial court erred in refusing to all ow him to introduce 18 photographs that were seized during a search of Brandy’s bedroom in her mother’s trailer. Defendant states these photos depict a number of other African-American men with whom Brandy was friends, and in some of the photos the mal es were making lewd gestures or gang signs. Defendant sought admission of thes e photos to show the jury that the “fuzzy” African-Ame rican man depicted in the Hibe rnia ATM surveillance video photos could have just as easily been one of her other male friends. In sustaining the state’s objection to the introduction of the photos, the trial court determined the risk of confusion, misleading the jury, an d wasting time, outweighed any probative value the photos might have possessed. Specifically, the court found: The jury has a photograph of two individuals standing at an ATM , they have photographs of the arrest o f Mr. Coleman, and Mr. Coleman is seated in court, and they can look at those photographs and det ermine if that appears to be him or not. To simply flood the jury with a bunch of pictures of African-American males, I don’t see any probative v alue quite frankly. I mean, if that were the case every time we had a photograph of a suspect we could simply flood the jury with a b ox full of pictures and make the argumen t, well, it could have been anyone of these people whether they were white, black, Hispanic, or purpl e, green,
31whatever they are. I just don’ t see the probative value. Photographs which illustrate any fact, shed light upon any factor issue in the case, or are relevant to describe the person, place or thing de picted are generally admissible. See, e.g. , State v. Magee , 11-0574 (La. 9/28/12), 103 So. 3d 285, 323;
State v. Lanieux , 09-675 (La. App. 5 Cir. 3/9/10), 39 So. 3d 606, 609 ; State v. Lindsey , 404 So. 2d 466, 475 (La. 1981). A trial court’s ruling with res pect to the admissibility of photographs will not be overturned unless it is clear the pr ejudicial effect of the evidence outweighs its probative value. Magee , 103 So. 3d at 323; Lindsey , 404 So. 2d at 475. Additionally , although the accused may introduce any legal evidence tending to prove that another pe rson may have committed the cri me with which the defendant is charged, such evid ence may be excluded where it do es not sufficiently connect the other person to the crime, as, for example, where t he evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial. Holmes , 547 U.S. at 327. We find the trial court did not abuse its discretion when it ex cluded the photos. Contrary to defendant’s asserti ons, evidence that Brandy, or so meone else who used her bedroom, associated with African-American men other than de fendant does not indicate that any of those individuals had any connection to th e Brandon murder. The photos by no means constituted non-speculative proof of any thi rd-party’s guilt in this case and were wholly irrelevant. Cumulative Prejudice Defendant claims that the cumulative prejudice arising from the trial court’s evidentiary rulings constitutes re versible error. Defendant arg ues the trial court’s rulings on these issues, prohibiting him from presenting eviden ce in support of his defense of innocence, violated hi s right to confront the eviden ce against him and to present a complete defense. Because we find no error in these i ndividual rulings, we

32also find no prejudice simply from considering the issues cumul atively. Further, although cast as a grievance about the cumulative prejudice he alleges he has suffered, his complaint is akin to the oft-rejected “cumulative error” cl aim. This court has reviewed cumulative error arguments and universally found that harmless errors, however numerous, do not aggregat e to reach the level of revers ible error. See, e.g. , State v. Strickland , 93-0001 (La. 11/1/96), 683 So. 2d 218, 239; State v. Tart , 94-0025 (La. 2/9/96), 672 So. 2d 116, 164; State v. Copeland , 530 So. 2d 526, 544-45 (La. 1988); State v. Sheppard , 350 So. 2d 615, 651 (La. 1977). Defendant offers no compelling reason why the c ourt should alter its position.
JAILHOUSE INFORMANT TESTIMONY (Assignments of Error # 6 & 7) Defendant argues the state was erroneously allowed to introduce the testimony of two jailhouse informants, Bobby Evans and Collies Sharpes, w ho were temporarily in the same holding cell with defendant immediately following h is arrest. Defendant asserts their statements were unreliable on their face and thei r testimony did not meet the heightened standards for reliability in a capital case. Def endant points out the statements were internally inconsistent and inconsistent with e vidence at the crime scene: Evans has given differing statements as to whether defen dant shot either victim; some of Sharpes’ stateme nts differed materially from Ev ans’ statements; Sharpes’ account evolved; and portions of Evans’ statements wer e inconsistent with the evidence at the crime scene. Additionally, defendant argues their testimony was unreliable because, at the time of their cooperation, both witn esses were facing criminal charges and both expre ssed a desire and hope for lenie ncy in exchange for information against defendant. Defendant asserts regardless of whether Evans and Sharpes actually received favorable treatment in exchange for p roviding information, their hope or expectation of leniency at the time they approach ed the police is

33sufficient to establish a signifi cant bias undermining the reli ability of this evidence. After review of the record, we do not find the trial court abus ed its discretion in admitting the testimony. Defendant was given ample opportuni ty to attack the witnesses’ credibility at trial, and was able to address the in consistencies in their testimony. The inconsistencies we re also highlighted by defense counsel in closing argument: You heard the testimony of Collies Sharpes and Bobby Evans. And I told you in opening, those two witnesses statements would be [incons istent] with each other, they weren’t the same as each other, [they] we ren’t the same as facts we know to be prove n. They were, they had informa tion that they could not have otherw ise had, that is one thing I’ll agree with Mr. Cox on, and I’ll explain that in a moment. Mr. Sharpes told you that Robert said that Brandy killed both of them. I asked him that question, are you sure about it, yes. Mr. Evans reluctantly here, tells D etective McClure sometime after the intake that Robert said that he kill ed the woman and Brandy killed the man. That didn’t work, so when he testified at the grand jury he fli pped it, and Robert killed the man and Brandy killed the woman. He also admi tted saying that Reverend Brandon, Robert had told him Reverend Bran don had hit Brandy in the face witha Budweiser bottle. Well, that was false. He also said Robert told him they tied them up, and that was fa lse. He also told him that Robert had buried a gun in the backyard, and that was false. So the statements are not consistent with each other, th ey’re not consistent with known facts. We find the jury had a full opportunity to consider the inconsi stencies in the statements and was able to cons ider what weight, if any, to giv e their testimony. Moreover, although the possibility of state leverage over a wi tness arising from pending criminal charges is highly relevant to establish bias o r interest, any potential bias arising from pending charges goes to the jury’s credibility determination, not the admissibility of the testimony. See State v. Vale , 95-1230 (La 1/26/96), 666 So. 2d 1070, 1072; State v. Rankin , 465 So. 2d 679, 681 (La. 1985); State v. Brady , 381 So. 2d 819, 821-22 (La. 1980). The jury was made aware that Sharpes and Evans faced unrelated charges when defendant m ade the disclosures to them. Defense counsel emphasized that circumstance in h is closing argument and theori zed for the jury that

34the witnesses actually obtained the details they claimed defend ant divulged by other

means: We know that Bobby Evans, in April, shortly after giving those statements was facing [five] to 20 years, and received a senten ce of three years concurrent with his two-year sentence on yet another felo ny, okay. But the most convincing evidence that you will have that you kn ow Collies Sharpes and Bobby Evans were telling you a story was th e statement about Brandy flushing the jewelry. When I asked each and every detective, officer, anyone that was at the police stationthat night, I said, did you let them, did you let Sean and Brandy talk, get their stories together? No, we keep the m separate, that’s proper proc edure, there is no way we would let them be together, they’re kept sep arate. I said, well, what about Robert and Brandy, none, separated. Whatabout Brenda Bruce and Sean George and Robert, no, they’re separated. Now, here is the point. They kept them separated, which is exac tly what they do, they don’t want people talking to each other, there is no way Robert knew Brandy flushed thatjewelry. Because they were separated, they weren’t allowed to talk, the y weren’t allowed to get their stories straight, there was no way that Robert knew Brandy flushed thatjewelry. So he’s taken directly to Caddo Correction, he’s put in with Co llies Sharpes, Bobby Evans, then all of a sudden detectives come and speak, and Collies Sharpes and Bobby Evans somehow have information th at Robert Coleman himself could not possibly have possessed. To me that is the most convincing evidence that Collies Sharpes and Bobby Evans are telling you a story. The jury also heard testimony from the attorney who represented them relative to those criminal charges that neither Sharpes nor Evans received any leniency in return for their cooperation in defendant’s case. For these reasons, w e find no error in the admission of this testimony. Defendant additionally argues he was denied due process because the state failed to disclose inconsistencies in Sharpes and Evans testimo ny, as well as evidence indicating that Evans was coerced into testifying. Specifically , defendant complains the state waited until five days before trial to disclose that Evans’ grand jury testimony was inconsistent with his initia l statement as to whether it wa s defendant or Brandy who shot each victim, and it was clear from Evans’ trial testim ony that the state forced him to take the stand against his will.

35The suppression of evidence favorable to the accused violates due process where the evidence is material either to guilt or punishment, w ithout regard to the good or bad faith of the prosecution. Brady v. Maryland , 373 U.S. 83, 88, 83 S.Ct. 1194, 1197, 10 L.Ed. 2d 215 (1963). Favorable evidence includes both exculpatory evidence and impeachment evidence. United States v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed. 2d 481 (1985); State v. Knapper , 579 So. 2d 956, 959 (La. 1991). Moreover, late disclosure o f favorable evidence may requ ire reversal if the timing significantly impacted the defendant’s opportunity to ef fectively present the material. State v. Kemp , 00-2228, (La. 10/15/02), 828 So. 2d 540, 545-46. Still, Brady and the decisions that follow do not establish a general rule o f discoverability and the state’s failure to disclose or late disclosure does not automat ically mandate a reversal. Rather, the defendant must first show he suffered prejudice as a result. La. C.Cr. P. art. 921; see also United States v. Agurs , 427 U.S. 97, 112, 96 S.Ct 2392, 2400, 49 L.Ed. 2d 342 (1976); State v. Willie, 410 So. 2d 1019, 1030 (La. 1982). Here, defendant complains the s tate’s late and limited disclosures prevented him from effectively presenting evidence which would have undermine d Evans’ credibility. Specifically, defendant complains the state waitedtoo long to disclose that Evans’ testimony before the grand jury was inconsistent and tha t he was forced to testify at the second trial. As set out above, however, the jury was well aware that Evans gave a differing account as to defendant’s claims concern ing who shot each victim and knew that Evans was less than enthusiastic about tes tifying at the re-trial. In fact, defense counsel exploited the inconsistencies among Ev ans’ prior statements for the jury. Moreover, Evans clarified why he was reluctant to testify at the re-trial: he had time left to serve and was fearful he might cross paths with defendant again behind bars. Defendant fails to show he was prejudiced by the l ate disclosure or that the state suppressed anything capable of undermining the verdic t. As a result of

36Evans’ testimony, the jury was aware the state took measures to ensure his testimony at the second trial, and defenda nt possessed an adequate opport unity to cross-examine Evans as to the veracity of his testimony. Thus, we find no err or in trial court’s ruling.
ADMISSION OF OTHER CRIMES EVIDENCE - GUILT PHASE (Assignment of Error # 13) After a pretrial Prieur 14 hearing, the trial court ruled the state would be allowed to introduce testimony from Terrance Barnes. Barnes testified that on the night prior to the Brandon murder, he met def endant at Brandy’s New Year’s Eve party and he observed defendant holding a revol ver and later in the evening defendant asked Barnes if he knew where he could “hit a lick,” meaning commit a robbery. Defendant argues this evidence was not relevant for a legitimate purpose, and any probative value was outweighed by its prejudicial effect. Defendant argue s the testimony should have been excluded because the gun observed by Barnes was not l inked in any way to the Brandon murder, as proven by ballistics evidence. Furthe r, defendant argues Barnes’ testimony that he understood the phrase “hit a lick” to mean defendant wanted to know where he could commit a robbery should not have been ad mitted because defendant submitted evidence that the phrase has many common me anings, and has different meanings in different s tates. Thus, Barnes’ belief as to the meaning of the phrase was purely speculative. Defendant further argues because the gun shed no light on the crime, it only served to prejudice the jury against him for a completely unrelated bad act and should ha ve been excluded under La. C.E. art. 403. La. C.E. art. 404(B)(1) generally prohibits courts from admitti ng evidence of other crimes or bad acts to prove a defendant’s bad character. However, such evidence is admissible if the state establishes an independent relevant reason, such as proof of motive, opportunity, intent, prep aration, plan, knowledge, iden tity, absence of mistake

14 State v. Prieur , 277 So. 2d 126, 130 (La. 1973). 37or accident. La. C.E. art. 404(B)(1). At the Prieur hearing, investigator Don Ashley, who had thirty-seven years of law enforcement experience, testi fied regarding Barnes’ encounter with defendant. Mr. Ashley testified he understood th e phrase “hit a lick” to mean that defendant wanted to commit a robbery. Mr. Ashley i nquired about the meaning of the phrase in defendant’s native Tylertown, Mississi ppi, and learned that the meaning there was the same: “The vernacular in the street i s that the first thing when somebody is talking about doing a lick it’s some type of r obbery....[T]he common impression when you say a lick is that you’re going to d o a robbery.” After the hearing, the trial court found: The testimony is that a witness stated that on the day before the murder . . . the defendant was asking hi m where he coul d hit a lick, a nd that he also observed him with a small firearm, a handgun. The followin g day the victims or Mr. Brandon was murdered, and the prosecution wi shes to introduce evidence of the conversation taking place the day before. The Court has had many occasions, many cases where the term hita lick was used. In the Court’s experience it has always been relating to committing a robbery. The Court finds that this certainly fits within the intent of Article 404(B). It does tend to show evidence such as proof of motive, opportunity, intent, prep aration, plan, knowledge, and absence of mistake or accident. Certainly all fit within the parameters of 404(B). For those reasons the Court will allow the evidence to be intro duced. The trial court has broad discretion in weighing the probative versus prejudicial value of evidence under La. C.E. art. 403, and its ruling on th e admissibility of evidence pursuant to La. C.E. art. 404B(1) will not be disturbe d absent an abuse of discretion. See State v. Bordenave , 95-2328 (La. 4/26/96), 678 So. 2d 19, 21; State v.
Carter , 15-99 (La. App. 5 Cir. 7/29/15), 171 So. 3d 1265, 1280; State v. Waterhouse , 14-1048 (La. App. 4 Cir. 6/19/15), 171 So. 3d 1113, 1115. Evidence that defendant possessed a gun, whether it was actually the murder weapon or n ot, and evidence that defendant asked Barnes where he could “hit a lick,” a phrase un derstood to be an expression of desire to commit a robbery or theft, was independ ently relevant to and probative of defendant’s motive, opportunity, intent, and prepa ration in connection

38with his invasion of the Brandon home the very next day. Thus, we find no abuse in the trial court’s discreti on in admitting the evidence.
LIMITATION OF VOIR DIRE (Assignment of Error # 15) Defendant argues he was denied his right to a full and fair voi r dire when the trial court improperly limited th e scope of voir dire by disall owing defense counsel to inquire into a prospective juror’s attitudes about penalty p hase aggravators, specifically a defendant’s involve ment in a second homicide. De fendant argues he must be able to determine a prospective juror’s opinion on the specific aggravating factors in this case without discussing specific facts in order to determine if a juror is eligible to serve. As a general matter, an accused in a criminal case is constitut ionally entitled to a full and complete voir dire e xamination. La. Const. art. I, § 17. However, the scope of counsel’s examination rests within the sound discretion of the trial judge and voir dire rulings will not be disturbed on appeal absent a clear abu se of that discretion. La. C.Cr. P. art. 786; State v. Tilley , 99-0569 (La. 7/6/00), 767 So. 2d 6, 19. Further, the right to a full voir dire does not afford the defendant unlimit ed inquiry into possible prejudices of prospective jurors, including their opinions on e vidence, or its weight, hypothetical questions, or questions of law that call for any p rejudgment of supposed facts in the case. State v. Ball , 00-2277 (La. 1/25/02), 824 So. 2d 1089, 1110. A party interviewing a prospective juror may not ask a question or pose a hypothetical which would demand a commitment or prejudgment from the juror or whic h would pry into the juror’s opinions about issues to be resolved in the case. Ball , 824 So. 2d at 1110; Tilley , 767 So. 2d at 19. “It is not proper for counsel to interrogat e prospective jurors concerning their reaction to evidence which might be received at trial.” Ball , 824 So. 2d at 1110.

39In the present case, defense counsel questioned prospective jur ors, in particular Mr. Robert Horne, about whether he believed the only appropriat e penalty would be a death sentence in a case in which the jury unanimously found the defendant guilty of first degree murder under the sort of circumstances present in this case: [Q:] ...I would like to start with Mr. Horne. Assuming that you h ave a situation where you and 11 other jurors have found beyond a rea sonable doubt that the defendant has committed an intentional murder, a gain it’s not committed in the heat of passion, the person was not legall y insane, it was not self-defense or defense of others, he wasn’t so into xicated that he couldn’t formulate a specific intent and in addition to thatthere were one of the other factors such as the victim was over the age of 65 or under the age of 12 or it was committed in the course of an arm ed robbery or an aggravated burglary, for you, Mr. Horne, for you at that point is death the only appropriate penalty? The state objected that the question was “limiting the jurors t o a specific and arbitrary point,” and precluding the prospective juror from considering a ny mitigating circumstances, which he would have been required to consider. T he defense responded that it was a “very clean Morgan v. Illinois question” which simply put the juror in a position where he has found someone guilty of first degree murder and queried whether he would still be open to imposing a life sente nce. 15 The court overruled the state’s objection and permitted defense counsel t o proceed. Subsequently, prospective juror Horne made clear that he would have to hear the whole case and everything from each side before determining whe ther to give a sentence of life or death. As defense counsel pursued substantially the same line of inqui ry with prospective juror Mr. Claude Clary, Jr., the state objected whe n counsel divulged further that she anticipated the state would attempt to show th at defendant acted as a principal in another homicide:

15 In Morgan v. Illinois , 504 U.S. 719, 726, 112 S.Ct. 2222, 119 L.Ed. 2d 492 (1992), t he Supreme Court held that venire members who would automatically vote for the death penalty must be excluded for cause, reasoning that any prospective juror aut omatically voting for death would fail to consider the evidence of the aggravating and mitigating circ umstances, thus violating the impartiality requirement of the Due Process Clause. 40Defense counsel : Can you give me some examples of things that you would want to hear in deciding between life and death? Mr. Clary : Does this person have a histo ry of criminal, has he killed before, was he a drug dealer, whatever. Defense counsel : And let’s assume that you found out that the person did have a history of criminal behavior. Is that a fact that wo uld prevent you from considering both life and death at that point? Mr. Clary : It still wouldn’t have prevented it, but I mean it would have to be what’s the nature of it. Defense counsel : I mean I’m not going to try to hide the ball on you. The state has alleged, and we certainly do not agree, but the s tate has alleged, and you will hear eviden ce if you were to get to a pen alty phase in trial - the state has alleged that Mr. Coleman was a princip al in another murder. Given those facts would you still be open -
Prosecutor : You Honor, I would like to lodge an objection, please. The court : Okay, Mr. Bailiff. Ladies a nd gentlemen, we are going to have you retire to the jury room. . . .
Prosecutor : Your Honor, [defense counsel] made the reference that the state has alleged that Mr. Coleman has participated in another murder which is entirely fact specific and an impermissible reference to the murder of Terrance Blaze and what I believe the idea is to tain t the entire panel by getting extremely inflammatory talking about another m urder. Her example touches on what the state’s allegations are and is going to be putting facts at play trying to disqualify two white males. I would point out that the defense both times when they [began] the que stioning have started with trying to target white males. I just want to make the part of the record because that’s obviously where they have bee n. We saw how she badgered the first man, and this time my specific o bjection is she is getting into a very fact-specific inquiry about Terrance Blaze which should not be part o f the voir dire process. The court: Response? Defense counsel : Your Honor, the case law is very clear, both federal and state, that in order to serve as a juror in a first-degree murder case that a person has to be open to both life and death in this cas e. I think State v. Allen Robertson talks about that, State v. Maxie , State v. Divers

.... The court: Well, you know, I reviewed that case last night after you had brought it up last night. Can you show me where State v. Divers says that? Defense counsel : I may be - I know that Divers was along the same

41lines as Robertson . If I’m wrong about that, I apologize, but I know certainly Robertson says it very specifically, and I can show you the language specifically from Robertson .... It says that a prospective juror can conceive of certain situations where he might vote for life imprisonment rather than death is inconsequential where that same juror has clearly stated he could only vote for the death penalty in the case before him. The fact scenario in Robertson was that it was a killing of more than one person and there we re jurors who said that they c ould consider - I apologize, but I don’t want to be mixing up cases. A juror said, “Well, you know if it’s a double murder, then I could onl y vote for the death penalty,” and that juror was allowed to or the defens e cause challenge was denied. The defense had to use a peremptory, I be lieve. . . . [And the Louisiana Suprem e Court] found that that use of the peremptory was reversible error because the challenge, the defe ndant’s challenge for cause should have been granted because even thoug h there were cases where the juror could consider life he could not con sider life in the case before him.... In this case the state has made certai n allegations such as a victim ove r 65 in the perpetration of an aggravated burglary or an armed robbery, and one of the other allegations that the state has made is that Mr. Coleman has committed a separate mur der... and so if a juror could consider life in other circumstances bu t not in this case he is not qualified to serve. The court: So your argument is you should be allowed to ask questions concerning specific facts in this case? Defense counsel: That’s correct, your Honor. I think that’s Louisiana Supreme Court law.... The court: ...[Y]ou are questioning these prospective jurors concerning specific facts in this case. Do you have a case that gives you the authority to do that? After recessing to consider the parties’ positions, the trial c ourt sustained the state’s objection, finding some measure of fact-sensitive questioning p ermissible as long as the questions did not pertain directly to specific evidence to be adduced during the proceedings: Before this trial began I instructed all counsel to read and be familiar with State v. Ball , 824 So. 2d 1098, Louisiana Supreme Court 2002 opinion and also State v. Hall , 616 So. 2d 664, Louisiana Supreme Court 1993. If all counsel have not read that opinion for this partic ular trial, I will instruct you to do so once again. *** Now, I will agree with [the defense] that you may ask questions concerning, for example, could you consider imposing a life sen tence if the facts show that the homicide was committed during a burglary?

42That’s a permissible question. Could you consider imposing a li fe sentence if the facts showed that the defendant attempted to ki ll more than one [person]? That’s a permissible question. But you went beyond that when you went on to say that the state is going to introdu ce at the penalty phase evidence to show that a second murder was committ ed. That’s far beyond the scope of sa ying, “Could you consider a li fe [sentence] under the field facts in this case?” You may do that , but to go beyond that and say that the state is going to introduce eviden ce concerning a second homicide that might have occurred is going far afield particularly...when Mr. Horne made it completely clear throughout his entire voir dire that he is going to accept eith er - that he could impose either a death pena lty or a life [sentence]. He ra ted himself as a [three] which is dead in th e middle. He said he would have to hear all the facts before he decides the penalty...He is open to both penalties, can go either way. [T]he defense and the state will be able to ask questions conce rning the general allegations in this cas e. For example, could you consid er a life [sentence] or a death penalty for someone convicted of murder i nvolving a burglary? Could you consider imposing a life [sentence] or a death penalty for someone convicted of a murder involving more than o ne? Those are permissible questions. To go beyond that, particularl y when jurors, potential jurors, have consistently shown that they are open to any and all sentences and to go beyond that any ask questions or po se questions of a prospective juror on specific facts is clearly i mpermissible under Louisiana law and federal law. Later in voir dire, the court elaborated on its ruling by expla ining that, once a prospective juror’s neutrality as to application of the death p enalty has been established, the defense is not permitted to attempt to elicit his opinion or expected reaction as to specific facts of this case: My ruling on the specific objection is when you went beyond and went into the penalty phase concerning other evidence that may or may not come out, and trying to get a juror who has clearly demonstrate d a very neutral position to precommit on their position . . . in violat ion of State v. Ball . Alright. So I don’t know how I can make it any clearer. We find no error in the trial court’s ruling. This court has ne ver found the right to a full voir dire entitles the defense to carry out a fishing expedition, using specific evidence it anticipates will be a dduced at trial to detect late nt biases it suspects individual venire members may be harboring. To the contrary, th e jurisprudence clearly provides that counsel may not divulge specific facts of the case and then ask

43jurors to commit themselves to a verdict based thereon. Ball , 824 So. 2d at 1110. As the trial court found in this case, the defense was not preclud ed from eliciting venire members’ views as to whether and when the death penalty is appr opriate. The court’s ruling in this case correctly allowed for voir dire questions a imed at revealing honest opinions as to what sort of circumstances, whether aggravating or mitigating, would sway individuals in one direction or the other. The trial court ’s determinations were also in line with well-established jurisprudence which provides that a prospective juror who, having been equipped by whatever avenue with enough information about the particular case, indicates t hat he will be unable to return a sentence of death, is unqualified to sit as a capital ju ror, although he may have exp ressed an abstract or theoretical ability to consider both death and life. See State v. Williams , 708 So. 2d 703 (La. 1998); State v. Comeaux , 514 So. 2d 84 (La. 1987).
SPECIFIC JUROR ISSUES (Assignments of Error #14, 16 - 22) Janet Davis (Assignment of Error #14) On the first day of the guilt phase of the trial, before the se lected jurors were sworn in and prior to opening statements, juror Janet Davis adv ised the courtroom bailiff that someone had told her something about the case. Ms. Davis was brought in the courtroom for individua l questioning by the court: The court : Ms. Davis, the bailiff indicated to me that you told him that somebody had said something concerning the case to you, and you wanted to bring that to the Court’s attention. Ms. Davis : Yes. I just wanted you to know that someone inadvertently told me this morning that this was a retrial. The court : Okay. Ms. Davis : And I had that information, s o I wanted you to know that. The court : All right. How did the information come to you? Ms. Davis : On the, well, they just cam e downstairs and told me.

44The court : And is that, was there any discussion that took place about that? Ms. Davis : No, no, because I stopped and I said, you are not supposed to tell me anything. I said, I’m not supposed to know one thing

. The court : Okay. And did that influen ce you in any form or fashion? Ms. Davis : No, it did not. The court : Can you set aside any information that you might have heard about this case and base your opinion solely on the evide nce that you hear in the courtroom? Ms. Davis : Yes, sir. The court : Do you understand that the defendant is presumed innocent, and that is a serious presumption, and that the State carries the burden of proving beyond a reasonable doubt the charges that they allege? Do you understand that? Ms. Davis : Yes, sir. The court : And can you apply that presumption? Ms. Davis : Yes, sir. The court : Regardless of anything that you might have heard? Ms. Davis : Yes, sir. The court : What was the fullest extent of what you heard? Ms. Davis : Verbatim? The court : Yes. Ms. Davis : He came downstairs, and he said the case is State versus Robert Coleman, and he said, and this is a retrial. And that’s when, I mean, the whole thing shocked me because it was 6:00 in the morning making coffee, and as soon as that was said I said, don’t say a nything. I said, you’re not supposed to say a nything to me. So that was th e entire conversation. The court : Okay. All right.... The court gave the state and de fense the opportunity to questio n Ms. Davis, but both sides declined. The defense then challenged Ms. Davis for cause , asserting defendant had “an absolute right to have j urors that are not aware that i t is a retrial or draw any

45inferences from that.” The defen se further expressed concern th at Ms. Davis could unintentionally share this inform ation with the other jurors. T he court then returned Ms. Davis to the courtroom a nd further advised her: The court : ...Ms. Davis let me emphasize to you, it is extremely important that you not discuss at all with any of the other jur ors what you have informed the court of. Ms. Davis : I haven’t. The court : Have you said anything to them at all? Ms. Davis : Not a word, not a word. The court : Well, keep it that way, okay . Do not discuss anything that you’ve heard. And once again, can you put aside anything that y ou were told by anyone or anything that you’ve heard, can you set that aside and be fair and impartial in this case? Ms. Davis : Yes, I can. The court : Can you base the totality of your opinion, can you base your opinion on the evidence that you are going to hear in this case ? Ms. Davis : Yes, sir. The court : Can you apply the presumption at this time that the defendant is presumed innocent and hold the state to [its] burd en of proof beyond a reasonable doubt? Ms. Davis : Yes, sir. The court : All right. Thank you very muc h. Do not discuss anything that you’ve told us with any of the other jurors at any time. T hank you, ma’am. The trial court denied the cha llenge for cause, noting it was c onvinced Ms Davis could remain fair and impartial. The court stated Ms. Dav is had been very forthcoming throughout the totality of the voir dire and appear ed sincere in her impartiality. The court then returned the entire jury to the co urtroom to ensure no one else had learned information about the case: The court : I want to ask each of you if since the last time we talked to you if any of you have heard anything about this case from any source at all.... If any of you have heard anything about the case since we talked

46to you last please raise your hand. All right. And no one is ra ising their hand. The jury was sworn in and trial commenced. The trial court further supplemented its ruling on Ms. Davis, finding her credibility exceptional becaus e she immediately disclosed the information to the bailiff and requested that it be disclosed to the court. Further, the court observed Ms. Davis to be truthful and forthc oming throughout the entirety of her vior dire. La. C.Cr. P. art. 797 sets forth the grounds for which a juror may be challenged for cause. Two of these grounds are pertinent here, namely, tha t “[t]he juror is not impartial, whatever the cause o f his partiality” and “[t]he jur or will not accept the law as given to him by the court.” La. C.Cr. P. art. 797(2) and (4) . “[A] challenge for cause should be granted, even when a prospective juror declares his a bility to remain impartial, if the juror’s responses as a whole reveal facts fro m which bias, prejudice or inability to render judgment according to law may be reasona bly implied.” State v.
Hallal , 557 So. 2d 1388, 1389-90 (La. 1990). Reversible error is demo nstrated and prejudice is presumed in cases in which a defense challenge for cause was erroneously denied and the defendant ultimatel y exhausted his peremptory ch allenges. State v.
Jones , 03-3542 (La. 10/19/04), 884 So. 2d 582, 588; State v. Ross , 623 So. 2d 643, 644 (La. 1993). Here, defendant e xhausted his peremptory challe nges; thus, he need only show that the trial court abused its discretion when it de nied any one of his challenges for cause. In ruling on a challenge for cause, the trial court is vested w ith broad discretion and its ruling will be reversed only when the voir dire record as a whole reveals an abuse of discretion. State v. Odenbaugh , 10-0268 (La. 12/6/11), 82 So. 3d 215, 237;
State v. Robertson , 630 So. 2d 1278, 1281 (La. 1994). After individually intervie wing Ms. Davis twice, the trial judge denied defendant’s challenge f or cause because he

47was thoroughly convinced she could remain fair and impartial an d set aside her knowledge that the proceeding was a retrial. The court noted fu rther Ms. Davis had been very forthcoming and appeared sincere in her impartiality. Given that Ms. Davis stated her ability to remain impartial and to accept and apply the law given by the court, the record does not support defendant’s claim that she s hould have been excused. There is nothing in the record which indicates Ms. Dav is had knowledge of the outcome of the prior trial or the reason for a retrial. Nothing about the fact that this trial was a retrial is inherently prejudicial without further knowledge. The fact that Ms. Davis became aware that this was a retrial was, in and of itsel f, neutral information. Nothing in the record indicates Ms. Davis was incapable of serv ing impartially in this case or that there existed any legitimate basis for her exclusi on. Thus, we find no reversible error in the trial c ourt’s denial of defendant’s cha llenge for cause. Denial of Cause Challenges Defendant argues six challenges for cause were improperly denie d by the trial court. Defendant asserts three jurors - Glenda May, Anita Raine r, and Lena Kelly - testified they would automatica lly impose the death penalty for first degree murder. Defendant also asserts three jurors - Cynthia Bates, Anita Rain er, and Jennifer McMullen - indicated they could not accept mental retardation a nd/or mitigating circumstances. A prospective juror may be challenged for cause if he is not im partial, “whatever the cause of his partiality,” or if he will not accep t the law as given by the court. La. C.Cr. P. art. 797(2) a nd (4). As this court explaine d in State v. Ball : [A] challenge for cause should be granted, even when a prospect ive juror declares his ability to remain impartial, if the juror’s respon ses as a whole reveal facts from which bias, prejudice or inability to r ender judgment according to law may be reasonably implied. The proper standard for determining when a prospective juror may be exclud ed for cause because of his views on capital punishment is whether the juror’s views would “prevent or substantially impair the performance of his

48duties as a juror in accordance with his instructions and his o ath.” Witherspoon v. Illinois , 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 776 (1968). In a “reverse- Witherspoon “ context, the basis of the exclusion is that a prospective juror will not consider a life sentence a nd ... will automatically vote for the death penalty under the factual circ umstances of the case before him ... Jurors who cannot consider both a li fe sentence and a death sentence are “not impartial,” and cannot “accept th e law as given ... by the court.” In other words, if a prospective juror ’s views on the death penalty are such that they would “prevent or substant ially impair the performance of their duties in accordance with their instructions or their oaths,” whether those views are for or ag ainst the death penalty, he or she should be excused for cause. The failu re to disqualify a venireman unable to consider both life and death a s penalties constitutes reversible error. 824 So. 2d at 1102-03. (Internal citations removed). Yet the tr ial court’s refusal to disqualify a prospective juror does not constitute reversible e rror or an abuse of discretion if, after further examination or rehabilitation, the juror demonstrates willingness and ability to decide the case fairly according to the law and evidence.
State v. Howard , 98-0064 (La. 4/23/99), 751 So. 2d 783, 795; Robertson , 630 So. 2d at 1281. Thus, a prospective juror who simply indicates a perso nal preference for the death penalty need not be stricken for cause. State v. Tate , 01-1658 (La. 5/20/03), 851 So. 2d 921, 936; Lucky , 755 So. 2d at 850. Additionally, a juror must consider any mitigating circumstance s (statutory or otherwise) before determining whether or not the death sentence should be imposed. La. C.Cr. P. art. 905.3. While a juror has the discretion to as sign whatever weight the juror deems appropriate to any mitigating circumstance establis hed by the evidence, the juror must be willing to consider mitigating evidence relev ant to the character and propensities of the defendant and must be willing to fairly con sider a life sentence.
State v. Miller , 99-0192 (La. 9/6/00), 776 So. 2d 396, 402-03. Glenda May (Assignment of Error #17) Defendant asserts the trial court erroneously denied his challe nge for cause as to Glenda May. Defendant argues Ms. May’s responses to voir dir e questioning reveal

49an inability to give meaningful consideration to a life sentenc e. Ms. May’s statement that she would want to hear everything before making a decision was clearly a result of her desire to give an appear ance of understanding the proces s after repeated objections by the state during de fense counsel’s questions on t he death penalty. A review of the voir dire transcript demonstrates that when fir st asked her view of the death penalty, Ms. May re sponded she was “absolutely” in favor of it. However, the whole of her responses indicates she would not automaticall y impose a death sentence, but would need to hear all the penalty phase evidence , including mitigating circumstances, before deciding which sentence was appropriate. Ms. May replied in the affirmative when asked whether she would be open to “every possible mitigating circumstance that could be presented” before reaching a decisio n, and likewise expressed willingness to first determine whether defendant was intellectually disabled and therefore exempt from capital punishment. When examined by the defense, Ms. May clarified that her sentencing decision would depend strictl y on the evidence presented. When defense counsel posed a factual scenario in whi ch a defendant was found guilty of first degree murder and the state had establish ed aggravating factors, without mention of any mitigating circumstances, Ms. May opined death would be the appropriate penalty. However, aft er the court clarified for the entire panel that jurors are required to consider all mitigating circumstances in the pe nalty phase, it became apparent that her response to t he defense hypothetical could no t fairly be viewed as a retreat from her earlier testimony in which she stated she wo uld consider all the evidence and remain open to mitigating circumstances. Throughout voir dire, defense counsel’s questions to members of the venire who initially identified themselves as more supportive of the d eath penalty gave rise to objections from the state and repeated interjections from th e court as to the requirement for consideration of mitigating circumstances. The trial court also

50expressed frustrati on over defense couns el’s questioning: All right. Well, there has been a pattern of defense counsel as king the question, and, frankly, it’s a very long compounded question, a nd then you ask, “Is that your answer?” without actually allowing them to answer. I mean their answer is basically a yes or a no. And so that’s the problem that I have with the way that you are phrasing the ques tion. You are giving them a very long compounded question and asking them , “Is that your answer?” So I don’t think that the record is going to reflect based on your questions the potential juror’s true feelings and opinions about the death penalty. I can continue to give them the instruction to include or to co nsider all mitigating circumstances. We can do it the long way or you can include that and allow them to expand on their answers, but you are rea lly not giving them much opportunity to give their response. You are supplying the answer for them on many of these questions. And I’m going t o look at the totality of their responses as is the Supreme Court shou ld they have an opportunity to review this record, and it’s the totalit y of their responses that are important. A trick question leading a person who has never been in this si tuation before into saying, “Uh-huh, that’s my response” is not really helpful to the process.... That Ms. May was open to the possibility of a life sentence was apparent from her response to defense counsel’s effort to clarify her earlier inq uiry, in which Ms. May stated: “For me I believe in the death penalty, but what I said was I want to hear everything, and then I would make my decision.” When further pr essed, she reiterated her open-minded stance. The whole of her voir dire responses indicates that Ms. May was willing and capable of remaining impartial and correctly applying the law s upplied by the judge. Accordingly, the trial court di d not erroneously deny defendant ’s challenge for cause.
Anita Rainer (Assignment of Error #18) Defendant argues Anita Rainer’s voir dire answers also reveal s he was substantially impaired from considering a life sentence for a d efendant who is found guilty of first-degree murder. Ms. Rainer stated she believed the death penalty was appropriat e only in certain

51cases and rated herself a “3,” m eaning she was open to both sen tences, would listen to all evidence, and would make her decision based thereon. Whe n questioned by the defense about whether she would automatically vote for a death sentence in a case in which the victim was over age 65 and killed intentionally durin g a burglary, Ms. Rainer responded “[f]or that type of crime and everything was l aid out, I mean he studied it, the intent, death penalty would be it. I mean if ev erything was out there on board and I could see it straight, I would lean toward the death penalty.” She then stated that, rather than “lean” toward the death penalty, she w ould actually go for it if convinced that the perpetrator had “studied,” i.e., planned the killing. In later questioning, however, Ms. Rainer stated, if chosen, she would h onestly consider any mitigating circumstances before reaching her sentencing verdict : ...I would just have to see how - you know, everything was laid o ut, but I could go with life, you know, sentence life, but I would justhave to really just kind of, you know, go with - see what’s laid out th ere, you know, all the evidence and everything. I would just have to see , but I could, you know - I’m just trying to think here. I would see fi rst and then if I thought instead of the death penalty I could go the life s entence I could. It became evident during the court’s individualized questioning of Ms. Rainer that her earlier answers indicating she would automatically choose deathwere the result of her misunderstanding of the relevant law: The court : Would you automatically vote for a death penalty under the circumstances I have described? Ms. Rainer : I don’t know that I would do an automatic death, no, but it would be - I mean, like I said, if it’s already - if the personis found guilty of first-degree murder and it says by law that he is dea th penalty, yes, I could do that. That is the law. The court promptly clarified tha t the law never requires the im position of the death penalty and Ms. Rainer subsequen tly reiterated her ability to h onestly consider both sentences before making a decision. The trial court denied the challenge for cause, noting that Ms. Rainer rated herself as a “3,” meaning she was open to both sentences,

52and the totality of her responses indicated she was equally ope n to either sentence. The court stated “in response to some of the defense questions she indicated that she would be predisposed to death penaltyat best, but again predispositi on does not disqualify a juror.” The court further st ated Ms. Rainer’s responses as a whole indicated she is a very neutral prospective juror, and her responses indicated s he would seriously consider each option of life in prison or a death penalty, and her responses show consistently that she would have to see and hear everything and that she would consider all the evidence that was presented. After a review of the transcript, based on the totality of her voir dire responses, we find no error in the trial c ourt’s denial of defendant’s cha llenge for cause. Lena Key (Assignment of Error #19) Defendant argues his cause challe nge as to Ms. Key should have been granted. Defendant asserts although Ms. Key initially characterized hers elf as undecided about the death penalty, during the c ourse of voir dire she demonstra ted an inability to meaningfully consider a life se ntence for an intentional murder

. Ms. Key initially described herself as undecided on whether she supports the death penalty and rated herself as a “2.” When questioned wheth er, once the state had proven the elements of first degree murder beyond a reasonable doubt she would “absolutely” impose the death penalty, Ms. Key stated she wouldinstead listen to all the penalty phase evidence and consider both options before dec iding. Ms. Key testified further she thought the death penalty was appropriate for first degree murder but confirmed she would, based on the facts presented, determin e whether it was appropriate under the circumstan ces. When questioned by defense counsel whether, in a scenario where she had been selected as a juror and found the defendant guilty of first degree murder of a victim over age 65 and committed durin g a burglary, Ms. Key stated she would consider a sentence of life or death and would not automatically vote

53for death. But when pushed further, Ms. Key gave a somewhat con fusing and entirely inconsistent answer indicating she believed death was the only appropriate penalty in those circumstances. When later examined individually by the co urt, however, she stated unequivocally that, if chosen, she would honestly consid er any mitigating circumstances before deciding wh ich sentence was appropriate. The court : ...So my question to you, Ms. Key, is if you got to the sentencing portion, before you decided what the appropriate sen tence should be, whether it is the death sentence or whether it is a life sentence, your individual thought, before you decided that for yourself w ould you consider all the mitigating circ umstances that were offered to you? Ms. Key : Yes, sir. The court : Would you give them honest consideration? Ms. Key : Yes, sir. The court : Okay. In the situation that I described where the defendant was found guilty of first-degree murder because he had specific intent to kill during a burglary, during a robbery, specific intent to ki ll or inflict great bodily harm on more than one and the victim was over age 65, some or all of that, could you honestly consider a life in pris on sentence for that defendant? Ms. Key : Yes, sir. The court : You could? Ms. Key: Yes, sir. The court : Could you consider a death penalty for that person? Ms. Key : Yes, sir. The court : As you are sitting here today - - and I’m not asking you i f you get there how you are going to vote because that would be an inappropriate question for you . But as you are sitting here tod ay, could you tell me if you have a tendency to lean one direction or the other in the case that I described to you, specific intent to kill durin g a burglary, during a robbery, age over 65 or specific intent to kill and in flict great bodily harm on more than one? Ms. Key : Intent to kill because he hurt more than one. The court : Okay. So what would be your tendency in that sentence?

54Ms. Key : With intent to k ill more than one or he killed more than one, if it were just one I would sentence him. The court : Okay. Explain that to me a little bit. Ms. Key : You know, like if he just killed one like burglary, I say sentence him, you know, give him time. The court : The life sentence? Ms. Key : Yes, sir, because, you know, he probably just act - - you know, because he got caught. But, you know, if he killed more than one, I sentence him death. The court : Would you automatically sentence a defendant to either lif e or death without considering all the mitigating circumstances? Ms. Key : I would consider it. The court : You will consider it? Ms. Key : Yes, sir. The court : Would you give it honest consideration? Ms. Key : Yes, sir. In denying the defense challenge for cause, the court found the inconsistencies among Ms. Key’s responses attributable to confusion, rather than an i nability to fairly consider all the evidence: Okay. With regard to Ms. Key, sh e did seem to be somewhat confu sed about the process initially. She did give some responses that w ere rather confusing to the court which indicated to the court that she di dn’t really understand how the process workedand the law pertaining theret o, but she was very consistent with regard to her willingness to be op en to consider both sides. They were some times (sic) inarticulately given which is again the reason why I had her brought in for individu al voir dire . . . . After the court examined her it was very clear to the court tha t under the circumstances alleged in this cas e of first-degree murder durin g burglary, robbery, more than one or over th e of 65 that she could conside r a life imprisonment or a death penalty. Some of the comments that I have written down for her is, “Yes, I could consider giving life or death under the circumstances of this c ase.” She rated herself as a 2. She did indicate that she would favor dea th at some point in her responses, but she also indicated that she could g ive serious

55consideration to mitigating circumstances and impose life impri sonment as well. I really think that some of her responses were indicative of ei ther not understanding the question or being led, one or the other, whic h again is why I purposefully asked very open questions to find out her an d the other prospective jurors’ opinions on these issues. And the cou rt is convinced that Ms. Key will give a serious and honest consideration to both [sentencing options]. A review of the entire voir dire record demonstrates that the trial court did not erroneously deny the defense ch allenge for cause to Ms. Key. Cynthia Bates (Assignment of Error #20) Defendant argues juror Cynthia Bates was unable to decide the i ssue of mental retardation, leaving her ability t o properly follow the law sub stantially impaired. When examined by defense counsel, Ms. Bates initially respondedshe did not agree with the law on intellectual disability in capital cases and elaborated her concerns about applying the law: Defense counsel : Ms. Bates, how do you feel about that law?
Ms. Bates : I don’t agree with it. Defense counsel : Would it be a pr oblem for you if you were on a jury and the trial proceeded to a penalty phase and that evidence wa s presented to you, is that something that you would have a hard time following?...
Ms. Bates : No, I wouldn’t have a problem. I mean, I don’t agree with the law, but the law is the law.

*** Defense counsel : Would you be inclined to find the defendant not mentally retarded because you don’t agree with the law?
Ms. Bates : I don’t see how I can say s omebody is mentally retarded. I don’t see how I can say somebody is that. Even if I have the ev idence - I don’t see how I can tell how somebody is going to be retarded . I mean, whether you have evidence in front of you, I mean, how could - I’m not a doctor. I’m not - I don’t kno w how you’re supposed to...say. Defense counsel : So that would be a decision that you would have a difficult time making? Because if you were selected to serve as a juror, you would be asked to make that determination, if this case wer e to proceed to a penalty phase.

56Ms. Bates : To decide if some body was mentally retarded, yeah, I would have a problem trying to decide if somebody - yeah, I’d have a problem with it. When the court further questioned Ms. Bates, after having expla ined the evidentiary and fact-finding process by which jurors reach a determination as to intellectual disability, Ms. Bates confirmed that her difficulty was limited to concern about how she, as a layperson, might make a mental health diagnosis. She verified she would not be inclined to make a finding, in the event that defendant had actually established his intellectual disability, that he was not intellectually disable d so that he may be put to death. In denying the defense challenge f or cause, the trial court fou nd that Ms. Bates ultimately indicated she could accept the intellectual disabili ty law and possessed reservations only as to how the conclusion would be reached by the jury. The court reasoned that such a concern was one that “probably just about anybody would have,” and one which Ms. Bates, if chosen, appeared fully capable of h andling “like anyone else would.” Viewing Ms. Bates’ responses as a whole, we find the trial court did not abuse its discretion in denying the defense challenge for cause

. Anita Rainer (Assignment of Error #21) Defendant argues Anita Rainer s hould have also been excluded be cause she would hold defendant to a higher burden of proof for mental ret ardation than what the law requires, and thus could not follow the law. During voir dire, the prosecutor and Ms. Rainer engaged in the following exchange: Ms. Rainer : ...I have got to know without a doubt, you know, if the person is retarded or not.
Prosecutor : Okay. That’s a level of certainty that you want, right? Ms. Rainer : Yes, sir.

57Prosecutor : There are certain legal standards to which things have got to be proven in criminal court, and you will hear a lot of this , okay? And clear and convincing is one that you will hear. Beyond a reason able doubt is one that you will hear. What I hear you telling me is that you want to be convinced of it very , very much. Is that correct? Ms. Rainer : True.
Prosecutor : If the law said that it had to be something less than a hundred percent certainty, do you think you could make that dec ision or do you think that for you persona lly you would have to be a hun dred percent certain before you coul d find somebody mentally retarde d? Ms. Rainer : I would have to make a hundred percent sure that they are not. After further explanation from th e prosecutor regarding the meanings of the burden of proofs, Ms. Rainer agreed she would not require a level of c ertainty beyond what the law requires:
Prosecutor : ...It’s not that you are a doctor. It’s not that you have conducted the tests and all that . Does that make it simpler for you? Ms. Rainer : Yes.

*** Prosecutor : Would you require a level of certainty beyond what the law requires – Ms. Rainer : No.
Prosecutor : –meaning would you have to be more sure than that level of certainty the judge said was necessary? Ms. Rainer : Just what the judge said, just what is necessary. After review of the record, we find no error in the trial court ’s refusal to excuse Ms. Rainer for cause. Rather than indicating she would require the defense to carry a heavier burden than the law r equires, Ms. Rainer’s initial di alogue with the prosecutor appears to show that she would have wanted to be cer tain defendant was not intellectually disabled before she could consider imposing a death sentence: “I would have to make a hundred percent sure that they are not [in tellectually disabled].” Additionally, after further examin ation, Ms. Rainer expressed that she would follow

58the law as provided by the judge. In light of the totality of h er voir dire responses, the record shows the court did not e rroneously deny the challenge f or cause as to Ms. Rainer. Jennifer McMullen (Assignment of Error #22) Defendant argues the trial court erred in denying his challenge for cause as to Jennifer McMullen because she c ould not adequately consider the mitigating factors of a difficult childhood and a follower. When initially questioned, Ms. McM ullen disclosed she considere d herself as being “for” the death penalty in some cases, and rated herself a “2,” stating, “I believe there are certain acts where th e death penalty is appropriate, ...but, you know, I don’t know yet what the facts would be so I would be able to consider life as well.” When pressed further, she stated that in a case in which specific in tent was proven, the murder occurred during a robbery, and the victim was over the a ge of 65, she didn’t know that she would be “50/50" unde r those “extreme” circumstan ces, but that she was still open to a life sentence. When questioned by the defen se as to how she would vote in such a case, Ms. McMullen indicated she would be more l ikely to impose the death penalty, stating, “... I don’t know if I could say 100 perc ent, but, you know, if it were a crime, a premeditated cr ime against an e lderly person , I could consider the life [sentence], but I don’t know that there would be much of amargin for the life there,” before verifying that h er decision, either way, would n ot be automatic. After the trial judge re-instructed the panel as to the law on mitigating circumstances, Ms. McMullen expressed a willingness to follow the law although she was still predisposed to the death penalty: “I mean if the judg e says you have to look at these circumstances and consid er them, you know, I would wan t to do what was according to the law, but I do believe that I would be predispo sed to opting for the death penalty.” She further expl ained that she would never say someone would

59automatically be sentenced to death, but she favors the death p enalty. Ms. McMullen admitted she was unsure what sort of circumstances would cause her to gravitate toward a life sentence, and indicated she may not give much wei ght to evidence that defendant had a “horrible childhood” because her own father had suffered similar circumstances but “didn’t opt to [kill].” Ms. McMullen further expressed that she was unsure whether evidence of a difficult childhood would make a d ifference. The court subsequently conducted additional individual voir dir e of Ms. McMullen: The court : Now, what I want to know is, can you tell me that you will honestly consider all the mitigating circumstances in a case be fore you arrive at your individual sentence? Ms. McMullen : Yes, if that’s what you inst ruct me to do, I have to. The court : Okay. But what I’m asking you is, would you honestly do that? It’s going to be the instruction, but what I want to know is will you actually consider those circumstances. Ms. McMullen : I mean, yes, I would have to. I think it would be the right thing to do, you know. The court : When you say, “ I have to do” do you have to because I told you you had to – Ms. McMullen : No. The court : – or in your mind do you have to because – Ms. McMullen : I have to. The court : And would you automatically vote for a death penalty in the circumstances that I have just described to you or would you co nsider also a life in prison? Ms. McMullen : I don’t – I don’t believe I would automatically. The court : You don’t believe you would automatically what? Ms. McMullen : Consider. I mean I don’t think I would automatically vote for the death penalty. I mean I’m trying to go down – it’s hard to generalize when – I know what you are saying about the case has been, you know, decided up to a certainpoint with my fellow jurors, but it is – you know, it’s just hard for me to say yes or no were I in th at situation.

60The court : Absolutely, And none of us here are trying to get you to te ll us what you are going to vote because frankly you don’t know. Ms. McMullen : Right, right. The court : It would be inappropriate for any of us to ask you how you are going to vote if you are in the situation. That’s not what we are here to do. What we are here to do is to find out if you would give honest consideration to the two possible sentences in the event that y ou were in that situation. Ms. McMullen : I mean, yes, I think I would. The court : Would you honestly consider adeath penalty as a possible verdict? Ms. McMullen : Yes. The court : Would you honestly c onsider a life in prison as a possible verdict? Ms. McMullen : Yes. The court : Would you be substantially impai red from impos ing either one of those sentences? Ms. McMullen : I don’t think so, no. In denying the challenge for cau se, the trial court found Ms. M cMullen qualified to serve impartially and found that she clearly indicated an abili ty and willingness to consider everything required by law. The overall tenor of Ms. M cMullen’s voir dire responses demonstrated that she took her responsibilities serio usly and gave consideration to her answers. Th at, when probed in the abstract , she indicated she would perhaps not have given some mitigating circumstances as much weight as defendant would have liked is not an indication of her unsuitab ility for service. La. C.Cr. P. art. 797. Viewing Ms. McMullen’s responses as a whole, we find the trial court did not abuse its discreti on in denying the challenge for cause. DUTY TO INQUIRE INTO DEFENDANT’S ASSERTION OF RIGHT TO TESTIFY (Assignment of Error #8) Defendant claims he was denied hi s fundamental right to testify , despite having

61requested to testify at the clo se of the penalty phase. Defendant asserts his attorneys prevented him from taking the st and and the trial judge failed to make a proper inquiry into his desire to exercise this fundamental right. The record in this case reflects that after both sides rested i n the penalty phase, court resumed the following morning. The trial court asked if e ither the state or defense had anything to put on the record before closing argume nts began. Both sides responded negatively. The trial resumed with closing arguments from the state and defendant. Immediately prior to instructing the jury, the defen dant expressed a desire to speak: Defendant : Excuse me, Your H onor. I have question I want to ask you please, sir.
Court : Excuse me. Defendant : Your Honor, I would like to address the Court myself. Is there any kind of way that I can take the stand at this point r ight here?
Court : No sir. The trial has concluded. Defendant : I want to take the stand in my penalty phase, Your Honor. Do I have a right to speak befor e my sentence is cast upon me?
Court : You had a right to speak, sir, but the penalty phase is con cluded. Defendant : But according to my attorneys I was waiting and trying to address the Court before the Sta te took the stand and I wanted to address the Court. My attorney denied me the right myself to address th e jury before the State took the stand, Your Honor.
Court : Sir, we have been here, you have been present during all of these proceedings. You knew that the penalty phase is concluded. In f act, at the close of the last night I asked if there was any motions fo r either side, and I informed each side that that was the final time to propos e any motions. The State said they ha d none, the defense said they ha d none. I made it very clear that closing arguments would take place at 9:00 o’clock this morning. We were here, I asked if there was anythi ng to be put on the record before the jury came in. The State had nothin g, the defense had nothing. The closing arguments have been made and I am going to instruct the jury. This case is concluded, sir. And if you wanted to take the stand you certainly had the right to do that. You’v e been here before, you know how this process works. You have five attorney s representing you, and there is no question in my mind that you knew that

62you had the right to do that. Defendant : No, sir.
Court : And you did not do that. And th e case is now concluded, and I will instruct the jury when we c ome back at five minutes until. Undoubtedly, a criminal defendant has the right to take the witness stand to testify in his own defense. Rock v. Arkansas , 483 U.S. 44, 52, 107 S.Ct. 2704, 2709, 97 L.Ed. 2d 37 (1987). However, that right is not unqualified, and the Supreme Court has recognized that the “right may, in appropriate cases, bow t o accommodate other legitimate interests in the criminal trial process.” Rock , 483 U.S. at 55. Further, the Court noted that “numerous state procedural and evidentiary rul es control the presentation of evidence, and do not offend the defendant’s rig ht to testify.” Id . at 55
n. 11. Louisiana limits testimony to the evidentiary stage of trial, and the trial court has discretion to permit the introduction of additional evidenc e prior to argument. See State v. Celestine , 443 So. 2d 1091, 1096 (La. 1983); State v. Bonnano , 373 So. 2d 1284, 1292-93 (La. 1979); State v. Peer , 189 La. 795, 180 So. 640, 642 (La. 1938);
State v. Hackett , 166 La. 261, 117 So. 141, 142 (La. 1928); La. C.Cr. P. art. 7 65(5). 16
In State v. Dauzart , 99-3471 (La. 10/30/00), 769 So. 2d 1206, this court discussed arbitrary application of this rule. In Dauzart , defense counsel called a final witness at the close of its case for purposes of identifying medical recor ds. A recess followed after which defense counsel informed the court he would rest subject to introducing the medical records. The court immediately ordered the records introduced, excused the jurors and then met with counsel to cull out the relevant d ocuments. 769 So. 2d at

16 La. C. Cr. P. art. 765 (5) provides: The normal order of trial shall be as follows: *** (5) The presentation of the evidence of the state, and of the d efendant, and of the state in rebuttal. The court in its discretion may permit the introducti on of additional evidence prior to argument. 631209. Additionally, a discussion was held regarding the court’s general charge to the jury, during which counsel informed the court that defendant “h as thought about it and decided he wishes to take the witness stand.” The trial court d enied defendant’s motion to reopen his case. On the following morning, trial resu med its normal course from closing argument to the court’s jury instructions, and the jury’s verdict. Id. This court reversed the conviction, holding the trial court’s refusa l to reopen the defendant’s case for the defenda nt’s testimony after the defens e had rested was an abuse of discretion and violatedthe defendant’s due process ri ght to testify. Id. We found the court arbitrarily refused to allow the defense to reo pen its case “under circumstances in which the slight deviation from normal practic e would have had no impact on the orderly flow of trial from jury selection to verd ict and in which strict adherence to the order of trial specified by art. 765(5) cost r elator his only opportunity to face jurors and persuade them of his version of events.” Id . at 1208. In so doing, this court further explained: Louisiana limits testimony to the evidence-taking stage of tria l. La. C.Cr. P. art. 765(5). Applied to the accused, this rule of procedure simply imposes a commonsense requirement that the right to testify be exercised in a timely fashion. In the present case, timeliness was foremo st in the mind of the trial judge when he steadfastly refused to allow th e defense to reopen its case, after it had ostensibly rested, for purpose s of allowing relator to testify, as counsel had committed him to do so in hi s opening remarks to the jurors. However, restrictions of a defe ndant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. The order of trial specified in La. C.Cr. P. art. 765(5) does n ot generally impose an arbitrary restriction on the accused’s right to testi fy because the court also possesses the discretion under the statute to re open the evidence at any time before closing arguments to permit the tak ing of additional testimony.
Id . (Internal citations omitted). Unlike the circumstances in Dauzart , in this case defendant did not express a desi re to testify until after the c lose of evidence and after closing arguments in the penalty phase by both sides. Under the se circumstances, we

64find defendant’s reque st to testify was untimely and we find no error in the trial court’s refusal to allow him to testify at that point in the tr ial. Additionally, we do not find the trial court violated a duty to inquire into the defendant’s right to testify. In State v. Hampton , 00-0522 (La. 3/22/02), 818 So. 2d 720, this court established criteria to aid trial courts in det ermining whether a defendant has waived his right t o testify or simply chose not t o do so for strategic
purposes: (1) absent extraordinary circumstances that should alert the tr ial court to a conflict between attorney and client, the court should not in quire into a criminal defendant’s right to testify. The court should assum e, that a criminal defendant, by not “attempting to take the stand,” has knowingly and voluntarily waived his right; (2) the court must consider whe ther the petitioner has waived h is right to testify.... [The defendant can only] rebut that presumption ... by showing that his attorney caused him to forego his right to tes tify [ (a) by alleging specific facts, including an affidavit by the defendan t’s trial counsel] from which the court could reasonably find that trial counsel ‘told [the defendant] that he was legally forbidden to testify or in some similar way compelled him to rem ain silent ... [ (b) by demonstrating from the record] that those specific factual allegations would be credible

... 818 So. 2d at 729-30 (citing Passos-Paternina v. United States , 12 F.Supp. 2d 231 (D.P.R.1998); see also State v. Shaw , 06-2467 (La. 11/27/07), 969 So. 2d 1233,1246. The record indicates that timeliness was foremost in the trial judge’s mind when he refused to allow defendant t o take the stand after each side had rested its case in the penalty phase and submitted its closing argument. As the trial judge found, defendant did not seek to testify until afte r the penalty phase concludedand the court had already asked both parties more than once whether they had anything fur ther to present and was met with negative responses. Defendant offers nothing from the record to justify his delay in seeking to testify but merely intimates that his a ttorneys prevented him from speaking up sooner. Considering the guidelines set forth i n Hampton , defendant has failed to rebut the trial c ourt’s finding that he waived hi s right to testify.

65The defense also relies on some general remarks made by defenda nt prior to trial as indicative of his desire to testify. Before counsel wa s assigned to this trial, defendant stated in court “I woul d like to invoke my Fifth Amen dment, if I would please, to participate in any proceedings that come before this case....” Defendant also submitted a pro se motion to suppress, which included his reque st to testify at the suppression hearing. Nothing in these pretrial remarks express a desire to testify or indicated an attempt to take the stand at trial. Further, we no te that defendant did testify at the suppression hearing per his request. Additionall y, defendant points to unsolicited comments made by his brother, Bradley Brumfield, during his testimony at the penalty phase, wherein Mr. Brumfield stated: “Y’all migh t not see Robert talking over there, and he might be sitting there still, I know he wants to say something....” However, defendant made no statement at that time that he wanted to testify on his behalf. The first indication that defendant want ed to testify was after closing arguments were completed and the trial court was ready to instruct the jury. These vague pre-trial statements by defendant were insufficientto assert his right to testify. We find no error in the trial court’s ruling.
PENALTY PHASE
INCONSISTENT EVIDENCE / THEORIES AT PENALTY PHASE (Assignment of Error #10) Defendant asserts the state violated his right to due process, a fair and reliable sentencing, and his right to counsel by presenting an inconsist ent theory and inconsistent evidence of the Terrance Blaze homicide at the pen alty phase of his trial. Defendant argues he is entitled to a new penalty phase because the state was allowed to present testimony from its bloodstain expert, Mark Rogers, w hich contradicted testimony he gave at both defendant’s first trial and at co-def endant Brandy Holmes’ trial, despite the state’s notice and assurances that the evide nce presented at the

66penalty phase would be identical to that presented in defendant ’s first trial. Specifically, Rogers’ testimony in the penalty phase implicated defendant as the shooter in the Blaze homicide, contradicting testimony he gave during defendant’s first trial and at Brandy’s trial which implicated Brandy as th e shooter. We find merit in this assignment of error. Generally, evidence of other crimes, wrongs, or bad acts is notadmissible at trial to prove a defendant’s bad character. La. C.E. art. 404(B ). In Prieur , this court held that such evidence is generally inadmissible because of th e “substantial risk of grave prejudice to the defendant.” 277 So. 2d at 128. However, the state can introduce evidence of other crimes, wrongs or acts if it establishes an i ndependent and relevant reason such as proof of motive, opportunity, intent, preparatio n, plan, knowledge, identity, or absence of mistake or accident. La . C.E. art. 404( B)(1). Moreover, the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. Separate and apart from the show ing of relevancy and prejudice, the state must also prove the defendant committed th e other acts, and satisfy the r equirements set forth in Prieur , i.e., the state must provide the defendant with notice before trial that it intends to offer prior crimes evidence. State v. Garcia , 09-1578 (La. 11/16/12), 108 So. 3d 1, 39. However, unlike the guilt phase o f a trial, the character of th e defendant is automatically at issue in a capital sentencing hearing. La. C.C r. P. art. 905.2. Beginning with our decision in State v. Sawyer , 422 So. 2d 95, 104 (La.1982), this court held that Article 905.2 au thorizes the introduction of ev idence of convictions for unrelated crimes at a capital sentencing hearing, even if the d efendant does not place his character at issue. This court eventually recognized the ne cessity of standards governing the admission in the penalty phase of evidence of unr elated and unadjudicated criminal conduct, such as had been set forth in Prieur , with regard to

67the admission of other crimes evidence in the guilt phase of tr ial. In State v. Brooks , 541 So. 2d 801 (La.1989), we held that before the state can introduce evidence of unrelated and unadjudicated criminal conduct in the penalty pha se, the trial judge must determine that: (1) the eviden ce of the defendant’s commission of the unrelated criminal conduct is clear and convincing; (2) the proffered evi dence is otherwise competent and reliable; and (3) the unrelated conduct has relev ance and substantial probative value as to the defe ndant’s character and propensitie s. 541 So. 2d at 814. We revisited the issue in State v. Jackson , 608 So. 2d 949 (La. 1992), wherein we reaffirmed the standard set forth in Brooks , and also limited the type of evidence admissible to criminal conduct which involves violence against the person of the victim, and to that conduct for which the period of limitation for instituting prosecution had not run at the time of the indictment of the ac cused for the first degree murder for which he is being tried. 608 So. 2d at 955. We furth er reiterated that due process requires that when a prosecutor intends to use evidence of unrelated criminal conduct in a capital sentencing hearing to increase the punishm ent for the charged crime, the defendant must be no tified so that he can prepare to rebut or defend against the evidence. Id . at 957. This court explained that “adequate notice, sufficien tly detailed to allow the defendant to know the exact unrelated con duct he must be prepared to meet in the sentencing hearing and sufficiently in advance of trial to allow reasonable preparation of a defense, is essential to provide me aning to the defendant’s corresponding due process right of a reasonable opportunity to be heard at the capital sentencing hearing.” Id . The hearing to determine whether other crimes evidence is admissible in the penalty phase is often called a “Jackson” hea ring. State v. Draughn , 05-1825 (La. 1/17/07), 950 So. 2d 583, 606. The state provided the required Jackson notice relative to defendant’s first trial, and a Jackson hearing was held to determine the admissibility of that eviden ce. Prior

68to the retrial, defendant file d a motion seeking an amended Jackson notice from the state. During a pretrial motion hearing, the state opposed the motion, asserting there was no need to file a new Jackson notice because one had been filed in the first trial and the evidence would be the s ame. The prosecutor stated: Your Honor, our reasons to that is that there was a Jackson Notice filed in it, and the Jackson evidence in this case remained the same. We do not see a need to amend it. We have already litigated this issue, and we’re not seeking to relitigate the same. Our reliance on the record is that not only are they given a Jackson notice, they’re given a very fully developed, exactly what the witn esses said in the last trial no tice, when you couple the notice that was filed plus the trial transcripts , they’re on kind of an uber notice, and we don’t see a need to amend it. The court granted the defendant’s motion “out of an abundance o f caution.” The state subsequently filed a supplemental Jackson notice that it intended to introduce evidence of defendant’s prior criminal convictions as previousl y noticed, as well as evidence that defendant participated in and committed a homicid e upon Terrance Blaze on or about Janua ry 2003, within days of the instant offe nse. At a pretrial hearing on that same day, the state advised the court that it h ad filed the supplemental notice. The prosecutor stated: I had filed another supplemental Jackson notice alleging that we intend to prove the defendant’s invol vement in the Terrance Blaze homi cide. We intend to use exactly the sam e testimony that was previously adduced, and I re-alleged his tw o prior convictions, to which h e’s already admitted in open court during the course of this hearin g. So I’ll defer to defense counsel if there is anything else about the no tice that they now deem to be defective. The state further clarified that the notice “identified the pri or convictions that we intend to use and alleges the da te of the homicide, incorporate s only by reference the transcript since that gives very precise notice of exactly whattestimony we would adduce to meet our burden under Jackson .” The state also confirmed once more that it intended “to present exactly t he same penalty phase evidence .” Despite the state’s notice and repeated guarantees to defendant and the court

69that the evidence and testimony would be identical to that prev iously set forth, the state intentionally presented contradictory testimony that defe ndant, not Brandy, shot Blaze in the back of the head. During the state’s opening statement during the penalty phase, the prosecutor told the jury that defendant and Brandy killed another person, and that Mr. Blaze was shot in the back of the head by defendant. The state then calle d Rogers as a witness to present testimony regarding de fendant’s involvement in the B laze homicide. Rogers testified he was able to recons truct the Blaze crime scene afte r examination of photographs of the vehicle in which Blaze was shot and examinat ion of blood found on a pair of jeans and boots belonging to the defendant. The ev idence indicated defendant was seated in the driver’s seat of the vehicle, Blaze was shot in the back of the head while seated in the fr ont passenger seat, and Brandy H olmes was seated in the back seat of the vehicle. Rogers testified: Q (prosecutor) : Do you have an opinion about the configuration of Mr. Blaze’s body when that blood was deposited? A: (Rogers) : Yes. From the blood to have been deposited in, on the ashtray as it was, Mr. Blaze would have had to have been lookin g to his right when the wound was inflicte d with the left portion...or the back portion of his head to the left or towards the driver’s side of the vehicle. Q : So he would have been effectively looking in the direction of the right passenger’s side window?
A : That’s correct. Q : Now, with respect to the bl ood that was found on the bluejean s and on the boots, do you have an opini on about where the person was sitting that, when that blood was deposited?
A : That person would have had to have been sitting to the left o f the person in the front seat. Had they been sitting anywhere else i n the vehicle the seats would have occluded those bloodstains from be ing deposited there, and that pattern logically makes sense as a po rtion of the continuation of the pattern that deposited blood on the right s ide of the ashtray. Q : So in your opinion when Mr. Blaze was actively bleeding from his

70head wound there would have been a person seated to his immediate left in the driver’s seat; is that correct?
A : Well, when the shot was fired, when the wound was inflicted h e would have been sitting to his immediate left. Q : And so the driver’s, right side of the driver’s jeans and the right side of his boots would have been exposed to that blood?
A : Some of it, yes.

*** Q : Based on your review of the evidence that you saw, both withi n the car as well as on the boots and the pants, is it your opinion that Terrance Blaze was shot in the head while he was seated in the front sea t, the passenger’s side of that car?
A : Yes, it is. Q : Do you have an opinion, Captain Rogers, about the placement o f the barrel of the gun at the time th e wound was inflicted, where th e gun might be located?
A : It would be in reasonable close proximity, but I was unable f rom the information provided to determine a distance. Q : How about direction? The direc tion of the gun or the relation ship of the position of the gun to the head?
A : It was just about directly behind it. There is no dispute that this testimony contradicted Rogers’ pr evious testimony. The state admits that at defendant’s first trial Rogers testified i t was likely the shot came from behind and it was less likelythe driver was the shooter. 17 The state likewise admits Rogers unequivocally testified at Brandy’s trial that “c onsidering that the blood stains on the right leg, on the ashtray, and on the boot are consistent with high velocity impact spatter and they can also be consistent with expirated blood or blood expelled out of the mouth afte r it pools, I would put the perso n inflicting the wound being in the back seat of the vehicle and Mr. Coleman wearing the blue jeans and the

17 Coleman I, 06-KA-518, R. 4943.

71boot in the front driver’s seat of the vehicle....” 18 Defense counsel cross-examined Rogers, attempting to point out inconsistencies between this testimony and testim ony he gave at defendant’s fir st trial: 19 Q (defense counsel) : Captain Rogers, isn’t it your opinion that the person that was wearing the jeans and the shoes was not the person who administered the shot?
A : No, that’s not my [opinion] at all. Q : Do you remember testifying at some previous hearings?
A : Yes, I do. Q : Do you remember testifying that it was less likely that the d river was the shooter, that it was more likely that the shot came from be hind in the backseat?
A : I don’t recall testifying to that exactly, but it may have be en based on other information that I had. Q : Well, what other information would that have been that you do n’t have today?
A : I don’t, I have more information today than I did then, but I ’m not familiar with that exact - Q : Captain Rogers, I’m going to show you a document where you testified at a previous hearing. Could you read what I have hig hlighted there? You don’t have to read it out loud, just to yourself. No w that you’ve had a chance to read that is your memory refreshed? . .

. A : Yes, sir. Q : Do you remember testifying to that?
A : I specifically don’t remember testifying to that. I do rememb er that discussion being held, but based on what I read and the parts i n front of and behind that, that answer has given, seems to be inconsisten t with the testimony I gave above and underneath that answer. Q : Okay. But when you were asked, based on where Terrance Blaze received the bullet to his headand based on everything else th at we’ve looked at here, is it more likely in your opinion or less likel y that the

18 State v. Holmes , 06-KA-2988, R. 6035-36.

19 According to defendant, because defense counsel was caught off guard by Rogers’ testimony, counsel was unable to immediately access transcripts from Brandy’s trial. Therefore, defense counsel only used transcripts from defendant’s first tr ial to cross-examine Rogers. 72driver was the shooter. Your answer was, I think it was less li kely that the driver was the shooter?
A : That’s what the transcr ipt reflects, yes, sir. Q : Okay. But that’s not what you said?
A : Once again, that’s what the transcript says I said. I can’t t ell you that the transcript is in error or i ncorrect, I may have misspoke. Q : Thank you, Captain. On re-direct, Rogers explained that the inconsistent statement in his prior testimony was itself in conflict with the remainder of his testimony at the earlier proceeding: Q: (prosecutor): Captain Rogers, I would like you to explain to the jury why you would think that tha t was a misspeak on your part.
A : Based on the information that prior to that response I was di scussing the bloodstains on the driver’s pants leg and on the driver’s b oot, and below that I was discussing the, where Mr. Blaze was sitting an d where he was looking when the wound was inflicted, so incorporating a ll of that together, that response that it was less likely the driver was the shooter seems to be inconsistent with the other testimony that I gave. So once again, I don’t know if I misspoke or if I was misinterpret ed when I spoke, I don’t know which one of those two things it is, but it seems to be inconsistent within the transcript. Q : Do you have an opinion about wh ether the driver was the shoot er?
A : Yes, I do. Q : And what is your opinion?
A : I believe the shot originated from the driver’s area of the v ehicle with Mr. Blaze looking to his right with the rear aspect of his head presented to the driver’s area of the vehicle. Q : And what do you base that opinion on?
A : The fact of the very small sp atter that’s consistent with bac k spatter that’s present on the right side of the ashtray and on the righ t leg and right boot of the bluejeans and the boot. Although defendant did not lodge a contemporaneous objection to Rogers’ testimony, he objected and moved for a mistrial the following d ay, arguing the state should not have been allowed to present this completely differe nt theory and

73inconsistent evidence regarding the shooter in the Blaze homici de. The trial court ruled the motion was untimely, and further stated defendant had ample time to cross-examine Rogers. The court noted defendant had a full staf f of attorneys, had access to all of the prior transcripts, and did cross-examine R ogers on the inconsistencies. Further, the c ourt stated it would allow defen dant to call Rogers as a witness in his penalty phase case. Based on the facts of this case, it is clear the state failed t o provide defendant with sufficient notice of the other crimes evidence it intended to introduce at the penalty phase. Pursuant to Jackson , the defendant is entitled to notice of the “exact unrelated conduct he must be prepared to meet.” 608 So. 2d at 9 57. While the state’s written Jackson notice gave notice that “defendant participated in and committe d a homicide upon Terrance Blaze,” the state purposefully misled th e defendant concerning the evidence it intended to present at the penalty p hase and gave defense counsel numerous assurances that its penalty phase evidence and testimony would mimic what it presented at defe ndant’s first trial. The state e ven emphasized that because defendant was in possession of the previous trial trans cripts, he had “uber” notice of the evidence and testimony that would be presented. T he state’s representations were effectively part of the Jackson notice. Thus, Rogers’ testimony that defendant was the shooter in the Blaze homicide did not co nform with the
Jackson notice provided by the state. This court reviews a Jackson error for harmless error. Tart, 672 So. 2d at 132. The inquiry is whether the capita l sentence actually rendered i n this trial was surely unattributable to the error. Id . InState v. Langley , 95-1489 (La. 4/14/98), 711 So. 2d 651, 667, this court stated, relative to the admission of other crimes evidence at the penalty phase: A defendant must show a “substantial risk of grave prejudice” a rising out

74of inadmissible or surprise admission of other crimes evidence. The purpose of limiting evidence of unadjudicated criminal activityis to prevent surprise, undue prejudice, and the injection of an arbi trary factor into the jury’s deliberations. T here is no presumption of preju dice. We find defendant demonstrated undue prejudice due to the lack of proper notice of the other crimes evidence. Because defendant did not have notice of the change in Rogers’ testimony, defendant was not able to prepare a defense to the assertion he was the shooter in the Blaze homicide. Notably, because the state assured the court an d defendant the evidence would be exactly the same as it previously presented, the court did not conduct a new Jackson hearing. Thus, there was not a determination made by the court as to whether Rogers’ new testimony and opinion met the clear and convincing standard of proof. Because defendant was not provided with prop er notice, he had no forensic experts in place to cha llenge Rogers. Further, defendant had no line of crossexamination prepared to challenge Rogers’ opinion or the scienc e on which his opinion was based. While defense counsel attempted to point out the inconsistencies in Rogers’ testimony on cross-ex amination, counsel could not ef fectively challenge Rogers’ actual opinion that defendant was the shooter. The surp rise was not “cured” simply because defendant was allo wed to cross-examine Rogers. Moreover, we find it likely that evidence defendant was the actual shooter in the Blaze homicide thwarted defe ndant’s reliance on residual do ubt going into the penalty phase and defendant’s pen alty phase argument that he wa s merely a follower of Brandy Holmes. Because the evidence presented defendant in a more culpable light before the jury, we cannot say this evidence had no effect on t he sentencing decision. The state’s presentation of evidence that defendant was the sho oter in the Blaze homicide allowed the state to argue defendant deserved a more s evere punishment than a life sentence. At the clo sing of the penalty phase, the state argued:

75He deserves worse, he has done worse. He deserved a life senten ce as soon as you said he was guilty of first-degree for which we thank you, he’s at a life sentence, well, w hat about the death of Terrance Blaze. Does that not warrant some greater consideration of a more seve re penalty? Does that not say, you know what, life in prison satis fies some sense of justice, but, you know, he didn’t just kill one person , and he didn’t just do it in a snap deci sion. He did it savagely, he di d it deliberately, and he did it twice. And he already came to that day having committed an armed robbery, having committed other crimes. That ’s’ simply not enough to say, but you, sir, are the same as these o ther people who may have only made one mistake or made a series of smaller mistakes. This is worse, this is more deserving of our ultimate penalty. Because the sentencing hearing focuses on the character and pro pensities of the offender, the issue of relative culpability is a critical issue in the penalty determination. There is no doubt the state’s portrayal of defen dant as the actual shooter in the Blaze homicide, rather than merely a principal, impacted defendant’s sentencing phase mitigating factor of lesser involvement in the offense and thus was arguably material to the jury’s penalty determination. See Bradshaw v. Stumpf , 545 U.S. 175, 187, 125 S.Ct. 2398, 2407-08, 162 L.Ed. 2d 143 (2005) . There is more than a reasonable probability that the jury may not have reached a u nanimous decision of death had they not heard eviden ce that defendant was the actual shooter in another homicide. In State v. Comeaux , 93-2729 (La. 7/1/97), 699 So. 2d 16, 22, this court stated: “Just as the Supreme Court of the United States in Gregg 20 established safeguards ... necessary for the v alid imposition of a death sent ence, this court has established significant safeguards against the wanton and freak ish imposition of capital punishment when the prosecution offers evidence of unre lated and unadjudicated criminal conduct.” On e of these safeguards is the requirement of proper notice to the defense. The state’s failure to comply with this safeguard resulted in a violation of defendant’s right to due process. Likewise, we also find the inconsistent positions taken by the state violated

20 Gregg v. Georgia , 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed. 2d 859 (1976). 76defendant’s due process rights. T his court has held that due pr ocess forbids the state from employing inconsistent and irreconcilable theories to secu re convictions against individuals for the same offenses arising from the same event. Holmes , 5 So. 3d at 62;
State v. Scott , 04-1312 (La. 1/19/06), 921 So. 2d 904, 957. The state contend s its theory has been consistent - that defendant and Brandy committe d these crimes together - and Rogers’ testimony does not change that theory. W e disagree. In State v. Lavalais , 95-320 (La. 11/25/96), 685 So. 2d 1048, this court considereddefendant’s argument regarding the state’s inconsistent positions during th e penalty phase. In
Lavalais , the defendant contended the prosecution violated his due proc ess rights when it disputed at the penalty phase evidence of the mitigatin g factor that defendant was acting under his co-defendant ’s domination and control, but presented evidence of the same at the co-defendant’s trial. 685 So. 2d at 1056. Th is court found the state’s position in the two trials did not rise to the level of fundame ntal unfairness. Id. at 1056-57. We reasoned that although the state’s positions in def endant’s trial and the co-defendant’s trial may appear inconsistent at first glance, this appearance results from the fact that the state’s emphasis as to culpability was d ifferent in the two trials.
Id . at 1056. Contrary to Lavalais , the state’s actions in this case went beyond the product of the state’s argument as to degree of culpability. He re, the state actually presented inconsistent evidence in the form of Rogers’ changed testimony regarding the identity of the Blaze shooter based on the forensic evidenc e. Although the state attempted to explain Rogers’ previous testimony as a “misspeak, ” we cannot ignore that Rogers twice testified at two different trials the shot that killed Blaze ca me from the back seat, thus implicating Brandy as the shooter. We find it unlikely that Rogers simply “misspoke” when he asserted that opinion at both defenda nt’s first trial and Brandy’s trial. To allow the state to advance inconsistent evid ence and theories of the Blaze homicide directly in contravention of its Jackson notice undermines confidence

77in the fairness and reliability of the sentencing phase of the trial and the death sentence imposed. We find the inconsiste ncies in the state’s position ro se to the level of fundamental unfairness and thus infringed upon defendant’s righ t to due process. The Eighth Amendment requires a heightened need for reliability in the determination that a death sentence is the appropriate punishme nt in a specific case. See Caldwell v. Mississippi , 472 U.S. 320, 323, 341, 105 S.Ct. 2633, 2637, 2645, 86 L.Ed. 2d 231 (1985). “[T]he penalty of death is qualitatively d ifferent from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of on ly a year or two. Because of that qualitative difference, there is a correspondin g difference in the need for reliability in the determination that death is the appropri ate punishment in a specific case.” Woodson v. N. Carolina , 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49 L.Ed. 2d 944 (1976). The state’s presentation of inconsistent e vidence and theories of the Blaze homicide and the state’s failure to give defendant pr oper notice of this change in evidence and testimony incurably tainted the sentenc ing process. Thus, we cannot conclude the defendant’s d eath sentence was surely unattributable to the error. We find the jury’s sentencing decision in this case does not me et the standard of reliability required by the Eighth Amendment. The Supreme Courthas stated that “although the prosecutor must prosecute with earnestness and vi gor and may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States , 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 2d 1314. In this case, the state ’s repeated false representations regarding the Jackson evidence it intended to introduce crossed the line to foul blows. Although we do not lightly reverse the jury’s determination, we are obligated to find reversible error for the above reasons. Therefore, we v acate defendant’s

78sentence and remand this case for a new sentencing hearing. 21
DECREE For the reasons assigned, defendant’s conviction for first degr ee murder is affirmed. Defendant’s sentence of death is vacated and set asid e and the case is remanded to the district court for a new sentencing hearing.

CONVICTION AFFIRMED; DEATH SENTENCE REVERSED; CASE REMANDED FOR FURTHER PROCEED INGS NOT INCONSISTENT WITH THIS OPINION.

21 Because we find this error mandates a new sentencing hearing, we pretermit discussion of the defendant’s remaining penalty phase assignments of error

. 7902/26/16

SUPREME COURT OF LOUISIANA NO. 2014
- KA
- 0402 STATE OF LOUISIANA VERSUS ROBERT GLEN COLEMAN

KNOLL, J., additionally concurring . Although I concur fully in the majority opinion, I write separately to emphasize how critical it is for the State to be forthright and prompt when giving notice of its intent to use “other crimes” evidence during the guilt phase of a capital trial. As the majority opinion points out, we have described “adequate notice” for the introduction of such evidence in a capital sentencing hearing as notice that is (1) “ sufficiently detailed to allow the defendant to know the exact unrelated conduct he must be prepared to meet in the sentencing hearing ” and (2)

“

sufficiently in advance of trial to allow reas onable preparation of a defense.” 1 Here, although the State gave pre - trial notice of its intent to prove defendant’s “involvement in the Terrance Blaze homicide,” it was not until the State delivered its guilt phase opening statement in the presence of th e jury that it indicated it intended to prove

— contrary to its theory in Brandy Holmes’ trial and its theory in the defendant’s first trial

— that Mr . Blaze was shot in the back of the head by the defendant

. Indeed , the notice the State provided in this case was neither “sufficiently detailed” nor “sufficiently in advance of trial” to constitute “adequate notice” for due process purposes. Given the grave and final nature of capital punishment and the precious resources the people of this State dedicate to ensuring justice is done in these most

1 State v. Jackson , 608 So.2d 949, 957 (La. 1992) (emphasis added)

.2 serious cases, the State’s unreasonable delay in giving notice concerning such a crucial piece of evidence i s in defensible . This practice tends to inject gamesmanship in to the proceedings which we will not tolerate. There is absolutely no excuse for this type of practice , especially when the defendant’s life hangs in the balance . In my view, the State would have been better off not introducing the expert’s testimony at all rather than risking the reversal the law compel s us to order in this case. Notwithstanding defendant’s opportunity to cross

- examine this expert witness, the ch ange in this witness’ expert testi mony is too critical a change in evidence, and the State’s failure to timely notify the defendant of this change is certainly unduly prejudicial to defendant at the penalty phase of trial in a capital

case. Moreover, under these facts, I do not b elieve defendant’s objection and motion for mistrial the following morning was untimely. Given the State’s repeated assurances that its penalty phase evidence would be the same as it was in defendant’ s first penalty phase trial, the changes in the State’s theory and in the expert’s testimony completely blindsided defendant. Other than a hastily

- prepared

cross - examination of the expert witness, there was no time for the defendant to thoroughly and thoughtfully prepare a strategy to respond to this unexpected evidence

. Thus, in my view, it was not unreasonable for defendant to lodge his objections to the State’s failure to notify him of these changes on the following morning when court resumed

. For these reasons, I agree with the majority’s decision to grant the defendant a new penalty phase trial.

### 02/26/16 SUPREME COURT OF LOUISIANA

NO. 2014-KA-0402
STATE OF LOUISIANA
VERSUS
ROBERT GLEN COLEMAN

ON APPEAL FROM THE FIRST JUDICIAL DISTRICT COURT FOR THE PARISH OF CADDO

WEIMER, J. , dissenting in part. I respectfully dissent from the majority opinion insofar as it vacates the defendant’s sentence and remands this case for a new sentencing hearing. The general rule is that “[a]n irregularity o r error cannot be availed of a fter verdict unless it was objected to at the time of the occurrence.” La. C.Cr.P. art. 8 41. This rule, commonly known as the contemporaneous obj ection rule, was extended to ap ply to the penalty phase of capital trials in State v. Wessinger , 98-1234, p. 20 (La. 5/28/99), 736 So.2d 162, 181. In this case, there is no dispute, and the majority opinion ack nowledges, that “defendant did not lodge a contemporaneous objection to Rogers’ testimony.” Slip op. at 75. As a result, under prevailing jurisprudence, defend ant failed to preserve his claim of a Jackson 1 violation for review. La. C.Cr.P. art. 841; Wessinger , 98-1234 at 20, 736 So.2d at 181. I would affirm the judgment below in its entirety.

1 State v. Jackson , 608 So.2d 949 (La. 1992).02/26/16 SUPREME COURT OF LOUISIANA NO. 2014
- KA
- 040 2 STATE OF LOUISIANA VERSUS ROBERT GLEN COLEMAN ON APPEAL FROM TH E FIRST JUDICIAL DISTRICT COURT FOR THE PARISH OF CADDO

GUIDRY, Justice , diss ents in part for the reasons assigned by Justice Weimer .1 02/26/16 SUPREME COURT OF LOUISIANA NO. 201 4
- K A
- 0402 STATE OF LOUISIANA VERSUS ROBERT GLEN COLEMAN
ON APPEAL FROM THE FIRST JUD I CIAL DISTRICT COURT FOR THE PARISH OF CADDO
CLARK, J ., dissents in part for the reasons assigned by Justice Weimer.