ON APPEAL FROM THE THIRTY-NINTH JUDICIAL DISTRICT COURT FOR THE PARISH OF RED RIVER HONORABLE LEWIS O. SAMS, JUDGE
The opinion of the court was delivered by: Guidry, Justice
Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 24th day of January, 2012, are as follows:
STATE OF LOUISIANA v. TERRANCE CARTER
For the reasons assigned herein, the defendant's conviction and death sentence are affirmed. This judgment becomes final on direct review when either: (1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari; or (b) that Court denies his petition for rehearing, the trial court shall, upon receiving notice from this court under La. C.Cr.P. art. 923 of finality of direct appeal, and before issuing the warrant of execution, as provided by La. R.S. 15:567(B), immediately notify the Louisiana Indigent Defense Assistance Board and provide the Board with reasonable time in which: (1) to enroll counsel to represent the defendant in any state post-conviction proceedings, if appropriate, pursuant to its authority under La. R.S. 15:147; and (2) to litigate expeditiously the claims raised in that application, if filed in the state courts.
Defendant Terrance Carter was indicted on July 19, 2006, by a Red River Parish Grand Jury for the first degree murder of Corinthian Houston in violation of La. R.S. 14:30. After initially pleading not guilty, defendant changed his plea to a dual plea of not guilty or not guilty by reason of insanity.*fn1 The district court denied defendant's motion to suppress his statements following a hearing conducted on July 16, 2008. Upon defendant's motion for change of venue due to extensive pre-trial publicity, the district court granted the change of venue, and by mutual agreement between the defense and the State, venue was relocated to Lincoln Parish. The sequestered jurors were selected in Lincoln Parish and taken to Red River Parish for trial. Jury selection began on September 8, 2008, and was completed on September 19, 2008. Testimony commenced thereafter, and on September 25, 2008, the State and defense concluded their cases. After deliberating, the jury returned the unanimous verdict of guilty of first degree murder. The penalty phase was conducted on September 26, 2008, and, having found the aggravating circumstances of aggravated kidnapping, second degree kidnapping, aggravated arson, and a victim under the age of 12 years, the jury returned with a unanimous recommendation that defendant be sentenced to death.
Defendant filed a motion for new trial, on which the district court conducted a hearing. During that hearing, defendant interrupted counsel and informed him that he wished to withdraw the motion. The district court continued to hear the testimony accepted as a proffer should the motion be withdrawn, but it ultimately granted the state's motion to dismiss two of the claims asserted in the motion. The defense sought writs, and on September 24, 2009, the Second Circuit remanded for the trial court to determine defendant's capacity to withdraw his motion and to rule on defendant's request to withdraw his motion. The district court held a second hearing on October 6, 2009, after which it determined that defendant was competent to withdraw his motion for a new trial, and granted defendant's request to withdraw the motion. The district court sentenced defendant to death on that same day.
Under La. Const. art. V, § 5(D), defendant now appeals his conviction and sentence of death asserting twenty-five assignments of error and three supplemental assignments of error. We address the most significant of these alleged errors in this opinion, and the remaining errors will be addressed in an unpublished appendix. After a thorough review of the law and the evidence, for the following reasons we affirm defendant's first-degree murder conviction and the imposition of the death sentence.
On July 1, 2006, defendant happened upon an acquaintance, George Herring, at a convenience store in Coushatta. Defendant persuaded Mr. Herring to drive him to Natchitoches, claiming he wanted to visit his young son. When they arrived in Natchitoches, however, defendant directed Mr. Herring from house to house in search of a woman named Pamela Fisher, who had recently ended a romantic relationship with defendant. During this fruitless quest, defendant evidently learned that Fisher had rekindled her relationship with Marcus Houston, who was the father of her child, Corinthian Houston. Defendant then directed Mr. Herring to Mr. Houston's residence, where five-year-old Corinthian, the victim, was playing with his older sister and his cousins. Corinthian greeted defendant enthusiastically, defendant took him into Mr. Herring's van, and, after yet another fruitless search for Ms. Fisher, the three drove back to Coushatta. Back in Coushatta, defendant instructed Mr. Herring to drop them off in front of an abandoned house next door to where defendant was living with his mother. Defendant assured Mr. Herring that he had a way to return Corinthian to Natchitoches, so Mr. Herring went home.
When the victim's father arrived home from work and discovered the victim was missing, the victim's sister told him that defendant had picked him up. Mr. Houston then called Ms. Fisher and the police. Ms. Fisher and the police repeatedly contacted defendant in search of Corinthian throughout the evening, including going to defendant's home, but defendant denied taking Corinthian and was not home when officers arrived there. At some point during this time period, defendant retrieved an extension cord and gasoline can from his mother's washroom next door. Defendant then tied Corinthian to a chair in the abandoned house, poured the gasoline over him, set him on fire, and burned him to death.
Defendant at some point thereafter crossed the street to the home of his neighbor, Huey Williams. Mr. Williams was not home, but defendant obtained an unspecified number of pills of the anti-psychotic medication Geodon from Mr. Williams's house, which he then consumed. Defendant again spoke to police on the phone around 9:30 p.m., and he again denied having taken Corinthian. Thereafter, defendant passed out in Mr. Williams's bed, where Mr. Williams found him sleeping at around 9:45 p.m. Defendant woke around 2 a.m. and returned home. Defendant's mother contacted the police.
On July 2, 2006, officers arrested defendant for kidnapping Corinthian and, between 2:30 and 3:00 a.m., transported him to the police station. After officers arrested defendant, his mother called one of her other sons and asked him to look in the abandoned house next door. She was concerned that Corinthian may have been restrained there, because she found it unusual that defendant had spent so much time there throughout the day. When her son arrived, by the light of his cellular phone (the house had no electricity), he discovered Corinthian's charred body tied to a chair. He returned to his mother's house, and they contacted the police. Defendant waived his rights and gave statements at approximately 1:10 p.m. and 3:40 p.m. on July 2, 2006. Defendant provided a blood sample, and was tested for drugs and alcohol at approximately 6:25 p.m. on July 2, 2006.
Part 1: Alleged Potential Conflict of Interest
Defendant's primary argument on appeal, and the sole error advanced at oral argument, is that one of his two appointed trial attorneys, Daryl Gold, labored under a potential conflict of interest in that counsel himself was facing possible charges in an unrelated criminal offense at the time of defendant's trial-charges that would be prosecuted by the Louisiana Attorney General's Office. Defendant does not allege any specific actions counsel took or failed to take as a result of the potential conflict of interest; instead, he contends the risk of a potential conflict was great, such that the trial court inadequately inquired into the conflict and failed to obtain a valid waiver of conflicted counsel pursuant to State v. Cisco, 01-2732 (La. 12/3/03), 861 So.2d 118. *fn2 He thus asserts the trial court's failure violated his Sixth Amendment right to counsel and necessitates either reversal of the conviction and sentence or, alternatively, a remand for a hearing to determine whether the defendant's waiver of the potential conflict of interest was knowing and intelligent. As discussed below, we find no merit to this assignment of error, because we conclude there has been no showing of an actual conflict of interest that necessitated either counsel's disqualification or a waiver of conflicted counsel by the defendant. Accordingly, the trial court's actions did not deprive the defendant of his Sixth Amendment right to conflict-free counsel.
The United States Supreme Court and this court have thoroughly examined the relationship between conflicting interests and effective assistance of counsel. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); State v. Wille, 595 So.2d 1149, 1153 (La. 1992); State v. Carmouche, 508 So.2d 792, 797 (La. 1987); State v. Edwards, 430 So.2d 60, 62-63 (La. 1983); State v. Marshall, 414 So.2d 684, 687-88 (La. 1982). The issue of conflicting loyalties usually arises in the context of joint representation, but it can also arise in other scenarios. For example, an attorney may run into a conflict when "he or she is required to cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney." State v. Cisco, 01-2732, p. 17, 861 So.2d at 129-30 (quoting State v. Tart, 93-0772, p. 19 (La.2/9/96), 672 So.2d 116, 125, and citing State v. Kirkpatrick, 443 So.2d 546, 552 (La.1983)). A potential conflict may also arise when counsel himself is under criminal investigation or has been charged with criminal conduct, especially if the suspected or alleged conduct is related to counsel's representation of the defendant or the charges against counsel are being investigated or prosecuted by the same prosecutor who is trying counsel's client. See, generally, Anne Bowen Poulin, Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?, 47 Am. Crim. L. Rev. 1135, 1162-77 (2010).
In a pretrial context, regardless of how the conflict of interest issue arises, the trial court has two options to avoid a conflict of interest: appoint separate counsel or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant separate counsel. Cisco, p. 17, 861 So.2d at 129-30; Tart, pp. 19-20, 672 So.2d at 125 (relying on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)); State v. Edwards, 430 So.2d 60, 62 (La.1983); State v. Marshall, 414 So.2d 684, 687-88 (La.1982). Failure to do one or the other in a case in which an actual conflict exists requires reversal. Cisco, p. 17, 861 So.2d at 129-30 (relying on Holloway, 435 U.S. at 480, 98 S.Ct. at 1181, and State v. Carmouche, 508 So.2d 792, 805 (La.1987) (on reh'g)). As we stated in State v. Franklin, 400 So.2d 616, 620 (La. 1981), "if an actual conflict exists, there is no need for a defendant to prove that he was also prejudiced thereby." Because defendant has asserted only an unknowing and unintelligent waiver of conflict-free counsel, and not prejudice, we are called upon to determine whether an actual conflict of interest existed and, if so, whether the defendant knowingly and intelligently waived his right to conflict-free counsel.*fn3
This court in State v. Kahey, 436 So.2d 475, 485 (La.1983), accepting the definition set forth in Zuck v. Alabama, 588 F.2d 436, (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979), defined an actual conflict of interest as follows:
If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to the other client.
See also Dane S. Ciolino, ed., Louisiana Rules of Professional Conduct, Rule 1.7 comment 3 (L.S.B.A.2001) ("As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent.").
To show an actual conflict, a defendant must prove, through specific instances in the record, that his attorney was placed in a situation inherently conducive to divided loyalties. Tart, p. 19, 672 So.2d at 125. The burden of proving an "actual conflict of interest," rather than a "mere possibility of conflict," rests upon the defendant. Franklin, 400 So.2d at 620. The inherent dilemma in conflict of interest situations stems from what counsel finds himself compelled to refrain from doing. Holloway v. Arkansas, 435 U.S. at 490.
Although the transcript of the suppression hearing does not so reflect, counsel was arrested at the Red River Parish courthouse after the conclusion of defendant's July 16, 2008 hearing on his Motion to Suppress. The trial court, clearly recognizing the possibility either of a potential conflict of interest or of an adverse effect on counsel's performance as a result of the arrest, addressed the "incident" during a pretrial hearing on August 14, 2008. There is no indication in the record either of the precise basis for counsel's arrest or of the possible charges against counsel to be investigated by the Caddo Parish Grand Jury; however, counsel explained to the trial court:
.I'll go ahead and just state it for the record. I believe it was on July 16. Was that the last time we were in court? Based upon a complaint filed by my ex-wife with the Caddo Parish Sheriff's department I was arrested. And I think that's probably a concern as to whether or not I can keep my mind on this trial or whether or not I'm going to be thinking about my situation. The Caddo Parish District Attorney's office recused itself. It's in the hands of the Attorney General's Office, and the earliest they're going to do anything, if they do anything, is have a Grand Jury on October 14, to decide whether or not there will be an indictment. And, if that Grand Jury is impaneled on October 14, I'm going to testify. So, I can tell you I have no problem keeping my mind on this case. But, you know what, to keep the record clear, you probably need to ask Mr. Carter if he's got a problem with it. I'm just thinking that could come back to bite everybody later.
The trial court then questioned the defendant, who indicated that he had heard what counsel said and that he did not have any concerns or issues regarding counsel being able to represent him adequately. Defendant further indicated to the court that he did not have any questions for counsel and that he wished for counsel to continue with his representation.
Similarly, co-counsel Elton Richey stated he had seen no indication counsel was suffering from undue pressure that would impede his ability to concentrate on defendant's case, but that he, Richey, would remain "on the watch out for that," and that "at present I think he's doing just fine and he's able to focus on the case with me and discuss the case with me and work with the team and the client. But these things change and develop and whatever, I don't know. . . . And if at some point in time, I just want the Court to know that -- You're asking me and if that changes I'll let you know." Cliff Strider, representing the State, related that up to that point in the proceedings counsel had appeared thoroughly familiar with the proceedings and that he had observed no adverse affect on counsel's representation of defendant. The trial court also observed that counsel's representation had been "of the highest quality." On that basis, the trial court determined there was no need either for a continuance of trial or for a request for substitute counsel. In effect, then, the court found neither an actual conflict of interest nor circumstances that would impair counsel's representation of the defendant.
We find no error in the trial court's determination that separate counsel was not required under these circumstances. Although we agree that a potential conflict of interest could arise where the district attorney's office prosecuting counsel's client is simultaneously investigating or prosecuting counsel, this is not such a situation.*fn4 Here, the Caddo Parish District Attorney's office, which had initially investigated the matter involving counsel, recused itself from investigating or prosecuting counsel, and the Louisiana Attorney General's Office had taken over those duties. The District Attorney for Red River Parish was the investigator and prosecutor for defendant's murder charge. Although the defendant argues the Attorney General oversees the district attorneys, including the District Attorney for Red River Parish, the office prosecuting defendant, any potential conflict of interest remains only that, a potential one, as there was no showing the Attorney General's office had any direct or indirect role in the actual prosecution of defendant on the Red River Parish murder charge. In this case, counsel was under investigation by a different prosecutor and the pending charges against counsel were not related in any way to the murder charge against the defendant or counsel's representation of the defendant; therefore, the risk of a potential conflict of interest was greatly attenuated. See Poulin, 47 Am. Crim. L. Rev. 1162-77; see also State v. Wille, 559 So.2d 1321 (La. 1990), appeal after remand, 595 So.2d 1149 (La. 1992)(although counsel had been convicted of a federal felony and represented defendant as part of community service condition on his suspended sentence, no actual conflict existed and defendant suffered no specific prejudice). The trial court here made sufficient inquiry into the matter and, from our review of the record, reasonably concluded that separate counsel was not required in this case; therefore, the trial court took "adequate steps to ascertain whether the risk of a conflict of interest [was] too remote to warrant separate counsel." Tart, 93-0772 at 19-20, 672 So.2d at 125. Defendant has failed to demonstrate that his counsel labored under an actual conflict of interest, and thus no specific waiver of conflicted counsel was required.*fn5
Part 2: Alleged introduction of investigating officer's personal opinion of defendant's credibility
Defendant next argues the trial court erred in permitting the state to read defendant's statement into evidence because the statements included annotations by the transcribing officer that communicated the officer's impressions of defendant's veracity. Specifically, he claims Deputy Sidney Jacobs typed the following lines into the transcript of the interview with defendant, which the judge permitted the jury to hear and see, thereby permitting a witness to comment on the credibility of the defendant who testified on his own behalf:
J.T. Lying about the last time see saw [sic] Corinthian. (eyes)
Telling the truth, more or less, about the last time he saw the mother. (eyes)
Defendant also claims the court erred in admitting the transcript because it contains notations describing defendant's body language during the statement. Defendant posits that these notations constitute inadmissible "pop psychology":
SJ What day was it, do you know? The last time you saw Corinthian, what day was it?
T (Eyes up and to the left) I don't know. . . .
SJ What do you know about the fact that Corinthian is dead?
T (eyes up and to the left.) (micro-expression)
At trial, the defense objected when the state entered a written copy of defendant's statement into the record during Detective Johnny Taylor's testimony.
The defense objected on the grounds the statement was neither written by the defendant nor recorded, but rather it was a non-verbatim summary of the conversation between detectives and the defendant, including the observations of the detective who typed it, and because the typist was not present to authenticate the document. As a result, Deputy Jacobs, who typed the transcript, was called in to authenticate the document. Later, when Jacobs returned to testify about the statement, the defense objected to his explanation of the comments on defendant's eye movements on the grounds that Jacobs lacked formal training and the comments merely constituted Jacobs's personal observations and opinion on defendant's truthfulness. The defense also objected on the grounds that credibility determinations are questions for the factfinder.
After Jacobs authenticated the statement, Detective Taylor was called back to the stand and testified in pertinent part that he did not know what the comments about defendant's eyes or the term "micro-expression" meant. Taylor did not testify in any way regarding defendant's credibility. After Taylor's testimony, Deputy Jacobs was called back in to testify. He explained that the comments about defendant's eye movements and the term "micro-expression" were his observations of defendant during the interview, and he noted them down while typing the transcript because he did not want to interrupt the transcript to note them elsewhere. He stated that the comments were his personal observations, that he had no formal training, and that the jury should not infer anything from his notes. At no point did Jacobs testify that the comments about defendant's eye movements or the term "micro-expression" related to defendant's credibility.
Despite defendant's claim, Deputy Jacobs's comment that defendant was lying in his statement was otherwise admissible as an opinion rationally based on Jacobs's first-hand perceptions. La.C.E. art. 701; State v. Moses, 367 So.2d 800, 805-06 (La. 1979)(officer's opinion as to whether witness's answers were responsive, whether statement seemed sincere, and whether statement sounded made-up were admissible common sense inferences based on observation and experience); State v. Meyers, 02-1296, pp. 8-10 (La. App. 3 Cir. 3/5/03), 839 So.2d 1183, 1189-90 (officer's opinion that defendant's statement was "bogus" admissible when not a comment on defendant's guilt); State v. Debrow, 34,161, pp. 12-13 (La. App. 2 Cir. 3/2/01), 781 So.2d 853, 863 (officer's opinion testimony admissible where based on experience as law enforcement officers and given in direct response to defense attempts to attack credibility).
The notes regarding defendant's eye movements and "micro-expression" do not, in our view, constitute a comment on defendant's credibility, because nowhere in the statement or trial testimony did Jacobs or Taylor interpret those notes as having any particular meaning. There was nothing to indicate to the jury that those notes were anything other than descriptions of defendant's behavior during the interview, like other notes Jacobs included, such as, "(eyes slowly closing, shakes head side to side)" and "(shaking head side to side)." Accordingly, we find no merit to this assignment of error.*fn6
Part 3: Defendant's Motion for New Trial
Defendant raises several intertwined claims relating to the hearing on his motion for new trial. We will initially address the defendant's arguments that the trial court should have appointed a sanity commission before allowing the defendant to withdraw the motion for new trial, that his withdrawal of the motion for new trial was invalid and denied him due process, and that his counsel was permitted to violate the attorney/client privilege when he testified at the motion for new trial. In addition, we will address the merits of several issues raised in the motion for new trial. The remaining issues related to the motion for new trial are addressed in the unpublished appendix. For the reasons that follow, we find no reversible error in the trial court's rulings with regard to the motion for new trial and the defendant's withdrawal of that motion.
On February 2, 2009, the defense filed a motion captioned as a Motion to Upset Court Date And Motion For New Trial And Motion To Bar Imposition of The Death Penalty On The Basis Of Defendant's Incurable Mental Disorder and a Supplemental Motion for New Trial. As grounds for his motion for new trial, defendant alleged that the verdicts of guilt and death were contrary to the law and the evidence; rulings of the court show prejudicial error; trial was undermined by errors or defects not known to the defense before the verdict; new and material evidence, not previously available despite due ...