APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 509-203, SECTION " C" . Honorable Benedict J. Willard, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR STATE OF LOUISIANA.
Kevin V. Boshea, ATTORNEY AT LAW, Metairie, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Judge Edwin A. Lombard, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano). LANDRIEU, J., CONCURS IN THE RESULT. LOBRANO, J., CONCURS IN THE RESULT.
Edwin A. Lombard, Judge
[2014-0332 La.App. 4 Cir. 1] The defendant, David Marx, appeals his conviction for the second degree murder of his wife, Mary Marx. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant's conviction and sentence.
Relevant Facts and Procedural History
Mrs. Marx was murdered on May 25, 2011, with two arrows fired from a crossbow. On October 20, 2011, the defendant was charged by indictment with two counts: (1) second degree murder in violation of La. Rev. Stat. 14:30.1 and (2) obstruction of justice in the second degree murder charged in Count 1. He pleaded
not guilty to both charges at his arraignment on November 2, 2011, and, on the morning of trial (December 2, 2013), the trial court granted the State's motion to sever the offenses. On December 6, 2013, the defendant was found guilty by a twelve-person jury of second degree murder. On December 10, 2013, the defendant filed a combined motion for a new trial and for reconsideration of the trial court ruling on the defendant's motion to suppress his statement. On that date, the defendant also waived legal delays and the trial court sentenced him to [2014-0332 La.App. 4 Cir. 2] life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence
The defendant timely appeals his conviction, arguing trial court errors and insufficiency of the evidence.
Error Patent Review
A review of the record reveals no errors patent on the face of the record.
Sufficiency of the evidence
Appellate counsel challenges the sufficiency of the evidence, arguing that if the defendant's statement (confessing to the murder) were suppressed, the remaining evidence is insufficient to support his conviction. This issue is raised as the fourth and final assignment of error in appellate counsel's brief; the first three assignments of error pertain to purported trial errors related to the suppression of the statement. However, when sufficiency of the evidence is raised as an issue, the court always reviews the entirety of the record before considering other assignments of error to determine whether, in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), viewing all the evidence as a whole, in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id. (emphasis added). Thus, our review necessarily includes the defendant's statement because " [i]t is well-settled that the entirety of the evidence, whether properly or improperly admitted, is to be considered by the reviewing court when assessing a conviction for sufficiency of the evidence." State v. Duncan, 2011-0563, p. 10 (La.App. 4 Cir. 5/2/12), 91 So.3d 504, 512 (citing State v. Hearold, 603 So.2d 731, 734 (La. 1992)); see also Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (if reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the [2014-0332 La.App. 4 Cir. 3] evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient).
The following relevant evidence was adduced at trial. Pertinent to our review is whether the State made the required showing under La. Rev. Stat. 14:30.1 that the offender had a " specific intent to kill or inflict great bodily harm." La. Rev. Stat. 14.30.1.
In May 2011, the defendant was a Chief Petty Officer in the U.S. Navy, stationed in Norfolk, Virginia, but his wife and son lived at the Marx residence, 717 Nunez Street, in the Algiers Point neighborhood of New Orleans. The next door neighbor, Tina Brown, testified that they had been neighbors for four years and she frequently saw Mrs. Marx taking her son, Ian, to and from school. On the evening of May 25, 2011, when Ms. Brown returned home from work about 5:30 p.m., she was approached by a military police officer who requested that she pick Ian up from his school on the grounds of the U.S. Navy base. Accordingly, Ms. Brown followed the officer to the school and returned home with the child. Ian walked around the side of the residence toward the back
and started screaming hysterically; Ms. Brown called 911. She was unsuccessful in her attempt to reach the defendant by telephone that evening, but spoke to him the next day. According to Ms. Brown, the defendant explained " he had just gotten his cell phone back or he had trouble with his phone" and had noticed a lot of messages. He also indicated that he had spoken to Detective Barrett Morton of the New Orleans Police Department (NOPD) and was aware of his wife's death.
Special Agent Leonard Blue of the Naval Criminal Investigative Service (NCIS) testified that he was notified of the homicide because the victim was the [2014-0332 La.App. 4 Cir. 4] wife of a member of the U.S. Navy. Accordingly, on the evening of May 25, 2011, Agent Blue went to the crime scene and spoke with Detective Morton. He ascertained that the defendant was stationed in Norfolk, Virginia, but on leave until the end of May. Agent Blue identified State Exhibit 4, the military leave request authorization, pointing out that the defendant requested the leave on May 13, 2011, with a return date of May 27, 2011. According to Agent Blue, the defendant was not located or contacted by phone on the night of the murder because his cell " phones" were turned off.
Agent Blue testified that his role in the investigation was to coordinate the military and NOPD. As such, NCIS agents in Norfolk began a visual surveillance of the defendant, NCIS agents in Dallas, Texas, interviewed Mrs. Marx's mother, and NCIS agents in Pensacola, Florida (listed on the defendant's original leave authorization request) retrieved a receipt from the Red Roof Inn in Pensacola (State Exhibit 6) that showed when the defendant checked in and checked out. According to Agent Blue, NCIS closed its case when the defendant retired from the military in November 2012. On cross-examination, Agent Blue confirmed that the defendant's cell phone records did not indicate that he was anywhere in the vicinity of the crime scene.
Terry Barrett, a New Orleans Rapid Transit Authority (RTA) bus driver and resident of Algiers Point since 1989, testified that at about 7:00 a.m. on May 24, 2011, he was trimming a tree in front of his residence on Slidell Street and, because he and his neighbors " looked out for each other," he paid attention when he saw a male parking a white Ford Escape on the corner of Slidell and Teche Streets. According to Mr. Barrett, the vehicle was facing in his direction and he could see a white male inside. The next morning, Wednesday, May 25, 2011, he [2014-0332 La.App. 4 Cir. 5] noticed the same vehicle parked at the same corner. Mr. Barrett left to get a newspaper and, upon his return, saw the same individual from the previous day walk from around the corner of Nunez Street to the vehicle, enter it, and drive off. Mr. Barrett testified that he thought the vehicle had a Texas license plate and that he had never seen the individual in the neighborhood before.
Later that night (Wednesday, May 25, 2011), Mr. Barrett observed a crowd on Nunez Street and learned about the murder. The next evening, Thursday, he spoke with his neighbor, Arthur Sangacruze, about the strange man they had both observed in the neighborhood and then walked with Mr. Sangacruze around the corner to speak to a police officer at the murder scene. On Friday (May 27, 2011), Mr. Barrett went to police headquarters and, upon being shown a photo lineup (State Exhibit 8), identified the photograph of the person he had seen in his neighborhood on Tuesday and Wednesday. When asked at trial (in December 2013) if he thought he could recognize the person he had seen in the white Ford Escape (in
May 2011), Mr. Barrett replied that he should be able to, but that he had not seen the individual before or since that time. Mr. Barrett confirmed that the person he observed in 2011 had a moustache. He did not identify anyone in court.
Mr. Sangacruze, a concrete construction worker and resident of Slidell Street in 2011, testified that while sitting on his porch on the morning of May 25, 2011, he saw an unfamiliar white male. He explained that there were only two white couples living on the block and everybody in the neighborhood knew each other. According to Mr. Sangacruze, the man walked to what he remembered as a white SUV parked on Slidell Street between Nunez and Teche Streets, entered it, and drove off. Mr. Sangacruze learned of the murder later that day and the following day, after talking to Mr. Barrett, went with Mr. Barrett to talk to police at the [2014-0332 La.App. 4 Cir. 6] murder scene. He identified the photo lineup (State Exhibit 9) where, on May 27, 2011, he identified the defendant in photo number three and signed the back of it. Mr. Sangacruze was not asked whether he could identify anyone in court. He conceded that he had described the white stranger to police as having a moustache and confirmed that the person he saw did not have a " military" haircut. According to Mr. Sangacruze, the individual left in the vehicle at approximately 9:00 a.m. on the day of the murder, but he could not recall whether the man was carrying anything while walking toward the SUV.
NCIS Investigator Bruce J. Dutcher, of the Norfolk, Virginia, NCIS office, identified photographs he had taken during the search of the defendant's apartment and of a white 2008 Ford Escape, bearing Texas license plates. The searches were conducted pursuant to a " Permissive Authorization for Search and Seizure" (PASS). One photograph depicted a box for a crossbow scope that, according to Investigator Dutcher, was discovered underneath the front passenger seat of the white Ford Escape. In addition, two cell phones were recovered from the vehicle.
NCIS Special Agent Michael Folker (also of the Norfolk, Virginia, NCIS office) testified that he was assigned to aid the NOPD in its investigation and, accordingly, conducted initial surveillance and coordinated with the Virginia Beach Police Department SWAT team in detaining the defendant outside his apartment in Virginia Beach. After the defendant was detained and handcuffed, Agent Folker obtained the " PASS" (State Exhibit 10) which was signed by the defendant and Michele Conry, who resided in the apartment with the defendant, authorizing the search of the defendant's vehicle and apartment. The defendant [2014-0332 La.App. 4 Cir. 7] was transported to the Virginia Beach Police Department and interviewed by Agent Folker. A DVD of the interview (State Exhibit 21) was played for the jury and Agent Folker identified the defendant's handwritten statement (State Exhibit 21), as well as the " Military Subject's Acknowledgement and Waiver of Rights" (State Exhibit 24), which the defendant initials and signs in the video.
Agent Folker testified that he also interviewed Ms. Conry. He conceded that he talked to the defendant when he was arrested but denied conducting a pre-interview with defendant or talking to him off camera. Agent Folker stated that the defendant was extremely cooperative and freely signed the authorization to search
form. He admitted that he tried to make the defendant feel comfortable in an effort to get the defendant to confess to the crime. He also conceded that he identified the defendant's son as his " soft spot" and used his wife's abuse of their son as a " theme" in the interview.
Detective Morton, the lead NOPD homicide investigator in the murder, testified that he received notification of Mrs. Marx's death at 6:00 p.m. on May 25, 2011. When he arrived at the scene, he saw no signs that the shot-gun residence had been burglarized; rather, a camcorder and other electronic devices, including a " tablet notebook," a television, and a newer MAC computer appeared undisturbed and, although the victim's purse was open, her checkbook and wallet remained at the scene. Likewise, Detective Morton observed no signs of a forced entry (the front door had been forced open by a neighbor only after the victim's son saw his mother's body on the floor through a window). The victim was positioned such that her legs were in the kitchen and the rest of her body was in a bedroom. Detective Morton identified a diagram of the residence and photographs of the crime scene, including one showing the victim's purse on her shoulders.
[2014-0332 La.App. 4 Cir. 8] Detective Morton testified that he called and left a voice message for the defendant who did not return his call until 7:00 p.m. the next day. When Detective Morton informed him that his wife had been killed in New Orleans, the defendant asked no questions concerning his wife's death, ...