ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS.
REVERSED; CONVICTION AND SENTENCE REINSTATED.
For Applicant: Hon. James D. Caldwell, Attorney General, LOUISIANA DEPARTMENT OF JUSTICE; Hon. Leon A. Cannizzaro, Jr., District Attorney; Donna R. Andrieu, Assistant District Attorney; Kyle C. Daly, Assistant District Attorney.
For Respondent: Powell Wingfield Miller.
[2013-2007 La. 1] VICTORY, J.
Following defendant's second degree murder trial and his conviction and sentence for the lesser verdict of manslaughter, the Fourth Circuit Court of Appeal vacated defendant's conviction and sentence upon finding that the prosecutor's use of defendant's post-arrest silence, in violation of Doyle v. Ohio, 426 U.S. 610, 96
S.Ct. 2240, 49 L.Ed.2d 91 (1976),
was not harmless because it undercut his plausible self-defense claim. We granted the State's writ application, and, after reviewing the record and the applicable law, reverse the judgment of the court of appeal and reinstate defendant's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
On the evening of September 25, 2009, defendant, Daniel Marshall, ended a love triangle by repeatedly shooting Ronald Hodges, Jr., as Hodges jumped off the porch of a residence on South Scott Street in New Orleans and came toward him. The residence belonged to Ebony Gastinell, the mother of his three children. In all, Hodges sustained five gunshot wounds--two to the back--and projectile fragment abrasions on his right shoulder, arm and hand. The police found nine spent casings fired by a .40 caliber handgun scattered on the ground but did not find any firearms discarded on the scene.
[2013-2007 La. 2] Hodges had been in a romantic relationship with Gastinell for several years, and fathered her three children. He had been separated from her for six months while serving a sentence on a drug conviction before his release in September 2009. During that time, Gastinell began a relationship with defendant, and he sometimes stayed at her residence. After Hodges returned from jail, Gastinell lied to him when he confronted her about her relationship with defendant, as revealed to him by his children living in the house. Gastinell stopped seeing or talking to defendant in that week as she attempted to repair her relationship with Hodges.
On the night of the shooting, Hodges arrived at Gastinell's residence to unclog a toilet. While he was there, defendant knocked on the back door. Gastinell told him to leave. About thirty minutes later, defendant came back and knocked on the front door. Gastinell went out to the front porch and again told defendant to leave, explaining that she was trying to work things out with Hodges. She heard her mother Sandra tell Hodges she wanted to bring him home and then Sandra walked outside to her car. At that time, defendant backed up and stood by the gate in the front yard. Hodges then came out the front door and saw the defendant standing there. Instead of walking down the steps, Hodges jumped off the porch with his hands in the air and rushed at defendant, despite Gastinell's attempt to restrain him. Hodges was nearly six feet tall and weighed over 200 pounds. The much smaller defendant (5'6" and 140 pounds) responded by pulling out his gun and opening fire. Gastinell described the incident as follows:
As [Hodges] came . . . out of the house, he saw [defendant] standing right there. And [defendant] was just staring . . . like he had something on his mind. So when [Hodges] . . . saw him standing over there, he just jumped off the porch and he raised his hands up and he was like, . . . " Say, Homie, I'm not even tripping. I ain't even tripping." And that's when [defendant] just came off his hip with the gun and cocked it and started shooting. There was no altercation, [2013-2007 La. 3] there was no nothing. They never passed words. They never even bumped heads, never.
Gastinell testified that defendant continued to fire even after Hodges, who had turned and tried to run when the shooting began, collapsed on the ground. Sandra Gastinell testified that after Hodges turned and attempted to run, he sustained two bullet wounds to his back and fell to the ground, at which point defendant stood over the prostrate victim and " kept on shooting and kept on shooting." When he finished, he
took off running. Sandra got into her car and pursued him as defendant ran down the street and jumped a fence. When Sandra yelled after him to ask why he had shot Hodges, defendant exclaimed, " Because I told fool not to tell me nothing," and then went over the fence. His arrest followed four days later when he surrendered to the police after Gastinell and her ...