State v. EllisState v. Ellis
Randy Ellis was indicted for the second degree murder of his cousin, Donnie Manning, in violation of
Factual background
The incident was a stabbing that occurred in the Cadenhead Street project in Haynesville,
Officer Moore arrived shortly after 11:00 p.m. to find Donnie lying face-up on a foam pad on the living room floor, and the defendant and Clinton Ellis Jr. sitting on a couch. The defendant told Officer Moore, “I didn‘t do anything,” and helped him try to take Donnie‘s pulse. Officer Moore went outside to consult with other officers who had arrived, and during this time the defendant left the room. Moments later, Officers Moore and Walker spotted the defendant crouched and walking between the buildings, apparently trying to leave the scene. Ellis stopped when ordered, and was driven to the police station to protect him from the large crowd that had gathered. Meanwhile, paramedics were unable to revive Donnie and the coroner pronounced him dead at the scene. An autopsy revealed that Donnie‘s blood alcohol content was .43 g/ml.
After obtaining statements from witnesses, Officers Moore and Walker placed Ellis under arrest and advised him of his rights. Ellis declined to make a statement. The officers detected an odor of alcohol about him but testified that he spoke clearly and responded to their questions at booking.
Discussion: Sufficiency of the evidence
By four assignments of error2 Ellis contests the sufficiency of the evidence. Arguing that he was too intoxicated to have the specific intent necessary to support a conviction of second degree murder, he cites several witnesses’ testimony that he was extremely drunk before and during the incident, and the testimony of his expert psychiatrist, Dr. Joe Ben Hayes, that he suffered an intoxicated “blackout” at the time, thus impairing his judgment and making him unable to distinguish right from wrong. He also argues, without elaboration, that the incident was, at best, a form of manslaughter that does not require specific intent.
When the defendant challenges both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine sufficiency, as the defendant may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). The appellate review standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Hearold, 603 So.2d 731 (La.1992).
Ellis was charged with second degree murder, which is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.
Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to the prosecution for that crime.
The State presented the testimony of Andre Manning, Ricky Beene and Clinton Ellis Jr., who established that the defendant and Donnie were arguing and fighting that night; later, the defendant chased and caught Donnie when he fell. Beene and Andre Manning saw the knife in Ellis‘s hand; Manning actually saw the stabbing. Manning testified that Ellis shouted in his pursuit, “I‘ll kill you, m* * * * * f* * * * *, I‘ll kill you“; that after the stabbing, Ellis stuck the knife into the ground and crouched next to Donnie; and that when asked why he did it, Ellis replied something to the effect of, “He shouldn‘t have hit me.” R.p. 407-408.
Notably, Clinton Ellis Jr., the defendant‘s brother, testified that he stopped a fight between the defendant and Donnie, after which the defendant ran toward his mother‘s apartment. Later the defendant returned and pursued Donnie. In an earlier statement to the police, Clinton Ellis Jr. said he saw the knife in his brother‘s hand after he returned from his mother‘s apartment; at trial, however, Clinton was unsure whether his brother had actually gone inside the apartment.
The facts presented—that Ellis fought with the victim, left, secured a knife, then chased, threatened and stabbed him in the chest—are sufficient to prove beyond a reasonable doubt that Ellis had the specific intent to kill or inflict great bodily harm upon Donnie. State v. Ruffins, 597 So.2d 171 (La. App. 2d Cir.1992); State v. Brown, 618 So.2d 629 (La.App. 2d Cir.), writ denied 624 So.2d 1222 (1993); State v. Kirkpatrick, 443 So.2d 546 (La.1983), cert. denied 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 847 (1984).
In support of his claim of intoxication, Ellis called six witnesses who said they had seen him either drinking or drunk on the day of the stabbing; this point is confirmed by several State witnesses. However, their views as to his level of drunkenness varied.3 The major component of Ellis‘s defense was the expert opinion of Dr. Hayes, who examined him in April 1995 (some eight months after the incident) and took his medical history, which included incidents of “blackout” when Ellis was younger. Ellis also told Dr. Hayes that he remembered being on the “trail” about 7:00 p.m., but then recalled nothing until he was at his mother‘s apartment and the police arrived to arrest him. Dr. Hayes concluded that Ellis had an intoxicated blackout at the time of this offense. He felt that Ellis‘s “chemical amnesia” rendered him not judgmentally competent. He also diagnosed chronic alcoholism, intellectual deficit and mild organic brain syndrome.
The State countered with the testimony of Dr. Norman L. Mauroner, an expert in forensic psychiatry. He did not dispute that a blackout could have occurred or that Ellis‘s drunkenness could have impaired his judgment; however, he testified that around 50% of people who commit homicides have amnesia from the act. From reviewing the police
Faced with these conflicting expert opinions, the jury was entitled to accept whichever one better explained the facts of the incident.
Finally Ellis urges, without discussion, that “at the most, the State may have presented sufficient proof to convict the defendant of the form of manslaughter that does not require specific intent.” Br., 12. Because we conclude that the proof of specific intent was sufficient under Jackson v. Virginia, supra, and not rebutted by the evidence of intoxication, we decline to consider any argument based on the misdemeanor manslaughter rule of
These assignments lack merit.
Challenges for cause
By his first five assignments, Ellis contests the District Court‘s refusal to grant his challenges for cause of prospective jurors Linda Strother, Imogene Ware, Lola Walker, Jack Ruff and Gerald Moring.
The State constitution guarantees to the defendant the “right to full voir dire examination of prospective jurors[.]”
Art. 797. Challenge for cause
The state or the defendant may challenge a juror for cause on the ground that:
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(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.
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(4) The juror will not accept the law as given to him by the court[.]
The trial judge is vested with broad discretion in ruling on challenges for cause; his ruling will be reversed only when a review of the entire voir dire reveals an abuse of discretion. State v. Cross, 93-1189 (La. 6/30/95), 658 So.2d 683, and citations therein; State v. George, 26,867 (La.App. 2d Cir. 4/5/95), 652 So.2d 1382, writ denied 95-1151 (La. 9/29/95), 660 So.2d 855. A challenge for cause is not warranted where a prospective juror has volunteered an opinion seemingly prejudicial to the defense, but subsequently on further inquiry has demonstrated the ability and willingness to decide the case impartially according to the law and evidence. State v. Eastin, 419 So.2d 933 (La.1982); State v. Heard, 408 So.2d 1247 (La.1982); State v. Wiley, 614 So.2d 862 (La. App. 2d Cir.1993).
When a defendant uses all his peremptory challenges, a trial court‘s erroneous ruling depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence. State v. Cross, supra. To prove there has been reversible error warranting reversal of the conviction and sentence,
The record shows that the voir dire examination consisted largely of general questions posed by the court, State and defense to collective panels of 12 to 18 prospective jurors. Individual questioning of panel members usually occurred when, by a show of hands, one member indicated he or she had a question or “problem” with an area of the applicable law. The minutes also show that Ellis exhausted his peremptory challenges. R.p. 17. The only issue on appeal is the propriety of the ruling on the challenge for cause of each contested juror.
Prospective juror Linda Strother. She initially asked to be excused for extreme inconvenience or undue hardship; this was denied. She stated she was employed as director of nursing at the Dialysis Center of Minden. When questioned by defense counsel, she stated that the defendant‘s failure to testify would not bear on her decision, but she would “wonder” why he did not testify. Defense counsel followed up by asking if his failure to testify “might enter into” her decision; she replied, “Not really. I feel like I would have to know the defendant to make that decision.” R.p. 165. Later, defense counsel asked the panel if anyone had a problem with the law that the defendant could “get off because he was drunk.” Ms. Strother replied, “I have a problem with it. I mean, not that I could not ... I mean, if that‘s the way the law reads, that‘s the way it reads. But, I might not agree with it.” Defense counsel then asked the panel, “Who would have a problem doing that, setting aside their feelings and applying the law?” According to the transcript, several prospective jurors responded by raising their hands; at first counsel did not name Ms. Strother, but later named her. R.pp. 179-180. The prosecutor then asked the panel generally if any of them would not apply the law; several raised their hands, and he discussed it with them, but Ms. Strother did not raise her hand. R.pp. 181-183. He finally asked, “Okay. Anyone else that couldn‘t apply the law?” The transcript relates, “No response.” R.p. 184.
Ellis‘s first ground for challenging Ms. Strother for cause is that she would “wonder” about the defendant‘s failure to testify. However, she also stated this would “not really” enter her decision. R.p. 165. In State v. Wiley, supra, this court considered a prospective juror who initially commented she would “wonder” about a defendant who failed to testify, but also stated she would base her decision on her own assessment of the defendant‘s guilt or innocence. The trial court denied the defendant‘s challenge for cause, and we affirmed. The situation with Ms. Strother is substantially the same as that presented in State v. Wiley, supra, and her statements do not amount to such a refusal to apply the law as to subvert the trial court‘s ruling on the challenge.
Ellis‘s second ground for challenging Ms. Strother for cause is that she allegedly would not apply the defense of intoxication; and that after her initial statement to this effect, neither the court nor the State endeavored to rehabilitate her. In support he correctly cites State v. Cross, supra, which holds:
A trial judge‘s refusal to excuse a prospective juror for cause is not an abuse of discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, where subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and evidence. [Citations omitted.] However, where as here, there has been no attempt to rehabilitate Warner subsequent to his remarks expressing his opinion in this area, the challenge for cause should have been granted.
93-1189, at p. 8; 658 So.2d at 687.
Ellis contends that as in Cross, there was no specific effort to rehabilitate Ms. Strother, thus subverting the court‘s denial of the challenge. We concede that the record showing is minimal, containing no spoken assertion from Ms. Strother that she would accept the law. However, unlike in Cross, this record is not devoid of effort to instruct the juror.
Prospective juror Imogene Ware. Ellis challenged Ms. Ware on grounds that she could not apply the law of intoxication. Defense counsel asked other prospective jurors, but not Ms. Ware, about this point on voir dire. The prosecutor then said, “There‘s a big difference between having a problem setting aside your feelings and applying the law and simply saying I cannot apply that law. So, I‘d like to find out.” R.p. 181. Ms. Ware replied, “I don‘t know if I could or not. I don‘t think I could. * * * I‘m not sure if I could.” R.p. 182. At this point another juror said, “I don‘t really think everybody understands the question.” The court and the prosecutor then explained:
THE COURT: Alright. I‘d like to ask this question. If somebody doesn‘t like night hunting, does that mean you * * * wouldn‘t convict somebody of night hunting just because you don‘t like the law? I mean, that‘s how I want it phrased. Would you ask it in that regard?
MR. HATCH (Prosecutor): Just because you don‘t like the fact that the law as it relates to intoxication would prevent a conviction on a specific intent crime, does that mean you could not apply the law as the judge tells it to you? And, I think that‘s the question ...
R.p. 182.
The prosecutor asked the panel if they could not apply the law; three jurors responded that they could not, and one said she was uncertain. Ms. Ware voiced no further problem with applying the law. When the prosecutor asked if “anyone else * * * couldn‘t apply the law,” the transcript reports, “No response.”
Even in view of State v. Cross, supra, the record supports a finding that Ms. Ware initially expressed uncertainty that she could apply the law of intoxication. If nothing else had occurred, then her responses would indeed be “qualified by uncertainty.” State v. James, 459 So.2d 1299 (La.App. 1st Cir. 1984), writ denied 463 So.2d 600 (1985); State v. Munzy, 464 So.2d 1040 (La.App. 1st Cir.), writ denied 468 So.2d 1203 (1985). However, after further explanation and discussion she sufficiently demonstrated that this would no longer be a problem for her. The trial court watched the sequence of questions and responses and was entitled to conclude that she was rehabilitated. We cannot say this was an abuse of discretion. This assignment lacks merit.
Prospective juror Lola W. Walker. Ellis urges the trial court should have dismissed this prospective juror for cause. Defense counsel asked, “The mere fact that Mr. Ellis has been arrested, would that raise in any of your minds that he must be guilty of something?” Ms. Walker replied, “It would make me wonder.” R.pp. 227-228. Later, she indicated that if the vote were taken right then, she could vote not guilty. R.p. 233. The prospective juror‘s expression of “wonder” about the defendant‘s failure to testify does not require a dismissal for cause. State v. Wiley, supra. Likewise, Ms. Walker‘s “wonder” about the fact of arrest, considered
Ellis also urges that Ms. Walker did not agree with the defense of intoxication, as opposed to applying it. The colloquy, however, makes it clear that she could apply the law, even if she disagreed with it. R.p. 233. This is equivalent to accepting the law as instructed and satisfies
Prospective jurors Jack Ruff and Gerald Moring. Ellis urges these jurors should have been dismissed because they would fault the defendant for not testifying. Mr. Ruff initially stated that he had no problem with it, but felt it would be “beneficial” for him to testify, especially if he was innocent; he would want to hear the defendant‘s side of the story. He added, “I still would try to make a fair judgment.” R.p. 226. When the juror expresses some doubt about the defendant‘s failure to testify but affirms that he would decide the case strictly on the evidence presented, the trial court is entitled to find that the juror would accept the law as instructed. State v. Wiley, supra; State v. Mims, 524 So.2d 526 (La.App. 2d Cir.), writ denied 531 So.2d 267 (1988).
Similarly, Gerald Moring stated that the defendant‘s failure to testify would cause some doubt in his mind. R.p. 227. However, he also stated that if the vote were taken then, he would vote not guilty. R.p. 229. His responses on the whole showed that he could accept the law as instructed. State v. Eastin, supra.
Ellis finally contends that Mr. Moring did not agree with the intoxication defense. The response does not indicate, however, that he could not apply it. R.p. 233. Thus the court was entitled to find he would apply the law as instructed,
Peremptory challenges
By his eighth assignment Ellis urges the State systematically exercised peremptory challenges to exclude African Americans from the jury on account of their race, contrary to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and
Under Batson, a peremptory challenge by the State cannot be based solely on the race of the prospective juror. A successful Batson argument requires the defendant to make a prima facie case of race-based exclusion, i.e., that the pertinent circumstances raise an inference that the prosecutor used peremptory challenges to exclude venire members of a cognizable racial group solely on the basis of race. State v. Collier, 553 So.2d 815 (La.1989); State v. Tucker, 591 So.2d 1208 (La.App. 2d Cir. 1991), writ denied 594 So.2d 1317 (1992). The defendant need not be a member of the excluded class. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Once the defendant makes his prima facie showing, the burden shifts to the State to establish race-neutral reasons for its peremptory challenges. These reasons need not rise to the level of a challenge for cause, but must be more than the prosecutor‘s belief that a prospective juror would be biased because of his race. State v. Tucker, supra; State v. Mamon, 26,337 (La.App. 2d Cir. 12/16/94), 648 So.2d 1347. A neutral explanation must be clear, reasonably specific, legitimate and related to the case at bar. State v. Collier, supra. The trial court‘s findings as to purposeful discrimination depend largely on credibility evaluations and are thus entitled to great deference by the reviewing court. Id., 553 So.2d at 818; Batson v. Kentucky, 476 U.S. at 98, 106 S.Ct. at 1724 (note 21).
Apart from the fact that Ms. Howard and Mr. Easter were excluded from the jury, Ellis offers no other evidence in support of his prima facie case. The trial court found that he did not meet his burden, and did not require the State to give reasons for the exercise of its peremptory challenges.
The State‘s comments about Mr. Easter‘s attitude and attire are matters that the trial court could see and assess for itself; Ellis does not contend that they are erroneous, and we perceive no abuse of the court‘s discretion. State v. Collier, supra; State v. Mamon, supra. Moreover, a lack of interest or responsiveness is a race-neutral reason to excuse the juror. State v. Collier, supra; State v. Wiley, 513 So.2d 849 (La.App. 2d Cir.1987), writ denied 522 So.2d 1092 (1988).
Ellis did not in the trial court contest as inaccurate the State‘s race-neutral explanations involving Ms. Howard‘s son and Ms. Roberts‘s brother, so he cannot now complain of them. State v. Powell, 598 So.2d 454, 462-463 (La.App. 2d Cir.), writ denied 605 So.2d 1089 (1992); United States v. Forbes, 816 F.2d 1006, 1011 (5th Cir.1987). Moreover, legal problems involving a prospective juror‘s family members are considered to be race-neutral grounds for the peremptory challenge. State v. Powell, supra; United States v. Forbes, supra.
This assignment lacks merit.
Motion for mistrial
By his sixth assignment Ellis urges the trial court erred in denying the motion for mistrial he lodged during voir dire. On the first day of trial, Assistant District Attorneys James Hatch and David M. Newell were in the courtroom; Mr. Hatch was trying the instant case, and Mr. Newell was present for other cases. While Ellis‘s jury venire was present, Mr. Newell stated in open court that an unrelated defendant had “pled last week.” R.p. 95. Ellis objected, requesting a mistrial and that the jury venire be quashed. Both at the time and on appeal Ellis concedes he can cite no authority to support the motion for mistrial, but asks the court to review it.
None of the grounds for mandatory mistrial are present.
Art. 775. Mistrial; grounds for
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Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771. * * *
The decision to grant or deny a mistrial for prejudicial conduct rests within the trial court‘s discretion, and will not be disturbed absent an abuse of discretion. State v. Smith, 433 So.2d 688 (La.1983); State v. Walker, 26,026 (La.App. 2d Cir. 5/4/94), 637 So.2d 583, writ denied 94-1369 (La. 9/30/94), 642 So.2d 868.
As noted, Ellis does not specify how the contested remark prejudiced him in any way. Mr. Newell was referring to another case, and did not even mention the defendant‘s name. R.p. 95. It is surely common knowledge that some criminal defendants plead guilty, while Ellis steadfastly protested his innocence. There is no showing whatsoever that this remark prejudiced Ellis or compromised his right to a fair trial. State v. Walker, supra. The assignment lacks merit.
Sequestered voir dire
By his seventh assignment Ellis urges the trial court erred in denying his
There is no provision in Louisiana law which prohibits or requires the sequestration of prospective jurors for individual voir dire. State v. Bourque, 622 So.2d 198, 224 (La.1993), and citations therein. The manner in which voir dire is conducted, such as whether the jurors should be called singly or in groups of a certain number, is left to the trial court‘s discretion.
Ellis alleges, without elaboration, that he was caught in the dilemma of needing to show special circumstances (prejudice) before he could get individual voir dire, but of needing individual voir dire in order to show prejudice. However, for the reasons discussed in the motion for mistrial, we do not find that the contested remark was prejudicial. Ellis does not contend that anything else supplied the special circumstances required to have individual voir dire. Without such a showing, we find no abuse of the trial court‘s discretion. See State v. Caston, 583 So.2d 42, 45 (La.App. 2d Cir.), writ denied 585 So.2d 575 (1991). This assignment lacks merit.
Admission of photographs
By his 10th and 11th assignments Ellis urges the court erred in admitting into evidence Exhibit S-2, a close-up photo of Donnie‘s stab wound, because it was highly prejudicial, cumulative and without probative value; and in admitting Exhibits S-4 and S-5, photos of the alleged crime scene, because there was no proper foundation, and they were prejudicial, cumulative and without probative value. Without elaboration, he contends that the photos lacked probative value under
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or waste of time.
A photo need not be identified by the person who took it to be admissible in evidence. It suffices if the photo is shown to have been accurately taken and to be a correct representation of the subject in controversy. State v. Robertson, 358 So.2d 931 (La.1978). A proper foundation for admitting a photo into evidence is laid when a witness having personal knowledge of the subject depicted therein identifies it. State v. Lewis, 478 So.2d 665 (La.App. 2d Cir. 1985); State v. Moore, 419 So.2d 963 (La. 1982). Sufficiency of identification rests
As for Exhibit S-2, the forensic pathologist who performed the autopsy, Dr. Brenda Reams, testified about the wound, the possible instrument used, the path and angle of the instrument, and the resultant injuries. The photo was used to illustrate her testimony. The trial court was therefore entitled to find it had probative value. State v. Bourque, supra. Moreover, there is very little blood in the photo, which mainly shows a clean wound. The trial court did not abuse its discretion in admitting it. State v. London, 559 So.2d 510 (La.App. 2d Cir.), writ denied 565 So.2d 941 (1990).
Ellis objected to Exhibits S-4 and S-5 for lack of foundation; the trial court sustained the objection. R.pp. 296-297. The State then asked Officer Moore if the photos looked like what he saw on the night of the crime; he replied that they did. R.p. 299. The court then overruled Ellis‘s objection.6 Because Officer Moore‘s testimony satisfies the requirements of State v. Robertson, supra, the trial court did not abuse its discretion in finding a sufficient foundation for Exhibits S-4 and S-5. Officer Moore also used the photos to help depict the crime scene; thus the trial court did not abuse its discretion in finding that their probative value outweighed their potentially prejudicial effect. State v. Davis, supra. These assignments lack merit.
Improper closing argument
By his 11th assignment Ellis urges the trial court erred by not granting, on its own motion, a mistrial when it sustained an objection to the State‘s closing argument as inappropriately appealing to the prejudice, sympathy and emotions of the jury. This is the passage that elicited Ellis‘s objection:
Now, you‘ve heard it and you‘ve heard it and you‘ve heard it. The defendant chased him and he fell. Before he could get up, [indicating] five inches deep. Pretty purposeful. Pretty purposeful. Can you imagine that‘s what it sounded like in your chest, someone you know‘s chest?
R.p. 533.
Ellis‘s counsel immediately objected outside of the hearing of the jury. The court ultimately sustained the objection, citing
Ellis now urges that the State‘s closing argument must be confined to the evidence admitted, the lack of evidence, conclusions drawn therefrom and applicable law.
Ellis does not contend, and we do not find, that the prosecutor‘s comments were such as to require a mistrial under
By his final assignment Ellis asks this court to review the record for errors patent, a procedure which we are statutorily obligated to perform.
The trial court failed to inform Ellis of the prescriptive period for post conviction relief, as required by
Conclusion
For the reasons expressed, Randy Ellis‘s conviction is AFFIRMED.