217 So. 3d 651
La. Ct. App.2017Background
- On Oct. 18, 2011 two masked men entered Bradford Jacobs’s Lake Charles apartment; Jacobs was shot but survived; a gray/white glove recovered from the apartment bathroom contained a mixed DNA profile to which Marlon Thomas could not be excluded. Five .380 shell casings were recovered at the scene.
- Two witnesses placed two masked Black males (one tall, one short) at the scene; a 911 caller reported one perpetrator appeared hobbling as if shot.
- Two days later police located Thomas with a gunshot lodged in his leg; a projectile removed from his leg and his blood/DNA were submitted to the crime lab.
- A grand jury indicted Thomas; after trial a jury convicted him of aggravated battery, aggravated burglary, attempted armed robbery, and attempted armed robbery with a firearm; total sentence 40 years hard labor.
- Thomas appealed raising four issues: (1) insufficiency of evidence as to identity; (2) conflict of interest (counsel/PD office previously represented a State witness); (3) expert testimony beyond scope (surgeon testifying about trajectory); (4) improper prosecutorial remarks suggesting Thomas refused blood/DNA and shifting burden.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Thomas) | Held |
|---|---|---|---|
| Sufficiency of evidence as to identity | DNA mixture from glove in apartment linked Thomas (could not be excluded); projectile and witness reports corroborate; jury could reject alternate theories | No witness identified Thomas; evidence circumstantial, DNA was a mixed profile and inconclusive; bullets not matched to a firearm | Conviction affirmed — viewed in light most favorable to prosecution, jury rationally rejected Thomas’s hypothesis of innocence |
| Conflict of interest (PD office previously represented witness Cristin Kibodeaux) | Any representation was remote; no actual conflict; witness waived any potential conflict on record; no lapse in representation shown | PD attorneys (same office) had represented the witness; a waiver from Thomas should have been secured; trial court failed to investigate an actual conflict | No reversible error — court found no actual conflict; even if conflict existed, Thomas did not show a lapse in representation |
| Expert testimony scope (Dr. Shimer, general surgeon, opined on bullet trajectory) | Dr. Shimer could rely on medical records and testify about wound path; trial court allowed testimony and defense cross-examined; any excess was harmless | State failed to disclose use of Dr. Shimer on trajectory and elicited testimony beyond his ballistics expertise, prejudicing defense | Testimony on wound entry/movement within surgeon’s expertise allowed; trajectory opinions beyond ballistics might exceed expertise but any error was harmless given other strong evidence |
| Improper closing remarks/new trial (prosecutor’s comment that Thomas refused blood and court order was needed) | Remarks rebutted defense theory and explained why evidence was obtained; not a direct or impermissible indirect comment on failure to testify; jury admonished | Prosecutor mischaracterized record making jury think Thomas refused DNA/blood and burden shifted; warranted mistrial or new trial | No mistrial/new trial — remarks not a direct or impermissible indirect comment on silence; admonition given; comments did not sufficiently prejudice verdict |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
- State v. Hughes, 943 So.2d 1047 (La. 2006) (identity and misidentification principles)
- State v. Garcia, 108 So.3d 1 (La. 2012) (conflict-of-interest principles for public defender office)
- State v. Carmouche, 508 So.2d 792 (La. 1987) (actual conflict, trial court duties, reversal if protections lacking)
- State v. Cisco, 861 So.2d 118 (La. 2003) (trial judge’s available remedies to protect Sixth Amendment rights)
- State v. Falgout, 198 So.3d 1232 (La. App. 4 Cir.) (DNA mixture evidence sufficient to identify defendant despite lack of eyewitness ID)
- State v. Tucker, 181 So.3d 590 (La. 2015) (even with actual conflict, defendant must show lapse in representation)
- State v. Calloway, 1 So.3d 417 (La. 2009) (reviewing appellate deference when jury rejects exculpatory theory)