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State v. Lamondre Markes Tucker

Court of Appeals of Louisiana, Second Circuit

July 8, 2015

STATE OF LOUISIANA, Appellee
v.
LAMONDRE MARKES TUCKER, Appellant; STATE OF LOUISIANA, Appellee
v.
ALICIA ANN TUCKER, Appellant

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Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana. Trial Court No. 295,498A & 295,498B. Honorable Katherine Dorroh, Judge.

LOUISIANA APPELLATE PROJECT, By: Douglas L. Harville, Counsel for Appellant, Alicia Ann Tucker.

THE CAPITAL APPEALS PROJECT, By: Cecelia Trenticosta, Elizabeth B. Jordan, Counsel for Appellant, Lamondre Markes Tucker.

DALE G. COX, District Attorney, WILLIAM J. EDWARDS, JORDAN B. BIRD, JESSICA D. CASSIDY, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee.

Before DREW, MOORE and PITMAN, JJ.

OPINION

Page 401

[49,822 La.App. 2 Cir. 1] MOORE, J.

In these two consolidated appeals, the defendants, Lamondre Tucker and Alicia Tucker, appeal their convictions for conspiracy to commit jury tampering, a violation of La. R.S. 14:26 and La. R.S. 14:129. Alicia Tucker appeals her sentence of 15 years. For the following reasons, we affirm the convictions and sentences.

Facts

Lamondre Markes Tucker and his mother, Alicia Ann Tucker, were indicted on the charge of conspiracy to commit jury tampering during jury selection in the first degree murder trial of Lamondre. The defendants contacted a member of the jury

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venire, Latisha Griffin, in order to influence her testimony regarding the death penalty.

Lamondre Tucker was charged with first degree murder. Jury selection began on March 14, 2011. On March 17, 2011, Latisha Griffin was questioned as a potential juror during the death penalty qualification phase of jury selection. Griffin, age 22, testified that she knew Lamondre and his mother, Alicia Tucker, from school. She testified that she was opposed to the death penalty. " I don't feel like anyone should take anyone's life with the death penalty," she said. The only circumstance in which she would consider the death penalty, she said, was if the defendant could be released on parole and pose a danger to the public.

Lamondre recognized Griffin during her voir dire testimony. That night, on March 17, 2011, he telephoned his mother, Alicia Tucker, from the Caddo Correctional Center. To prevent the call being traced to him, [49,822 La.App. 2 Cir. 2] Lamondre used the PIN number of another inmate to make the call.[1] Nevertheless, Lamondre was observed on video surveillance placing the phone call and the call was recorded and admitted at trial as Exhibit S-1.

During the phone call, Lamondre told Alicia that he knew one of the potential jurors from school. He identified her as Latisha. As he proceeded to tell his mother what he wanted her to do, he asked her if she knew " Shasha's" (Sh'Taraus Hall) number.

Alicia connected Sh'Taraus to the call so that Lamondre could speak directly to her via a three-way call. Sh'Taraus Hall was Lamondre's cousin and also a friend of Latisha Griffin. When Sh'Taraus was on the line, Lamondre asked her if she still spoke to Latisha. He explained that Latisha was a potential juror in his case, and he wanted to inform her about the jury selection process. Both he and Alicia explained that if one juror voted " not guilty," then the death penalty cannot be imposed. Lamondre asked Sh'Taraus to add Griffin to the three-way call so that he could explain the jury selection process and " see what's up" with Griffin. He said, " I'm really trying to see where she at."

Hall testified at trial that she connected Griffin to the conversation, but that she could not understand everything that Lamondre had said. Prior to adding Griffin to the call, Lamondre confirmed that his mother was still present on the line.

[49,822 La.App. 2 Cir. 3] Griffin testified that she received a phone call from Hall, Lamondre, and Alicia on the night of March 17, 2011. Griffin was aware that she was not supposed to speak with anyone about the case. Lamondre told Griffin that the prosecution was attempting to " trick" the jurors. He told her that the state would try to exclude her from the jury if she said no to the death penalty, as she had during voir dire on March 17, 2011. Lamondre suggested that Griffin should change her testimony on the following day. He told her to testify that, although she knew him from a " football game or just something simple," her knowledge of him would not affect her making a decision in his case. During the conversation, he told Griffin that he had

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access to the jury questionnaire forms and that the potential jurors were not aware that he had access to their personal information, saying " like the one that be talking all crazy, they don't know I got the papers." According to Sh'Taraus Hall, Lamondre stated that he knew where all of the potential jurors lived. She heard him tell Griffin that he did not want her to do something that she did not want to do. Griffin and Hall were then disconnected from the call.

Alicia told Lamondre to let Griffin decide what to do, and Lamondre agreed that he did not want Griffin to get into trouble. At the end of the phone call, Alicia indicated that she was coming to visit him that night.

Hall testified that Alicia Tucker called her approximately five minutes after the call above ended on the night of March 17, 2011. Griffin was still on the phone with Hall and included in this second conversation. Alicia told Griffin that she did not want Griffin to do anything that she did not want to do. Hall testified that, on March 18, 2011, she received text messages from [49,822 La.App. 2 Cir. 4] Alicia Tucker. Alicia instructed Hall to remove Griffin's number from her phone.

During voir dire on March 18, 2011, Griffin testified that, " under certain circumstances," she could be " for" the death penalty. She stated that she could consider imposing a life sentence in a case of first degree murder where the victim was pregnant. Eventually Griffin informed the court that she had been contacted by Lamondre on the night of March 17, 2011. She was not seated as a juror in the first degree murder trial of Lamondre Tucker. At the jury tampering trial, she testified that she did not really feel that way and only changed her testimony because of the phone call from the defendant.

Griffin testified that she was afraid after the phone call because she had not heard from Lamondre in a long time and because he indicated that he had access to the potential jurors' personal information. She feared Alicia Tucker, who was not incarcerated. Due to her fear, Griffin was escorted by police officers when she returned to school following this incident.

Griffin testified that she attempted to speak with the jury coordinator about the phone call before her voir dire testimony continued on March 18, 2011. Stacy Winston, the jury coordinator, testified that Griffin asked to speak with her privately, and that she appeared upset. Griffin was directed to speak with the bailiff, Deputy Darrell Smith, about any concerns. Deputy Smith testified that he was approached by Griffin on March 18, 2011, outside of the courtroom. Griffin told him that she lied and needed to tell the truth to the court and attorneys. Deputy Smith informed Judge Ramona [49,822 La.App. 2 Cir. 5] Emanuel that Griffin needed to speak with her regarding individual voir dire and possible false statements.

On April 20, 2011, Lamondre Tucker and Alicia Tucker were indicted on the charge of conspiracy to commit jury tampering. Lamondre and Alicia pled not guilty. Several indictments were filed on January 24, 2014 charging each defendant with conspiracy to commit jury tampering on or about March 17, 2011.

Lamondre's trial began on February 3, 2014, with the selection of a 12-member jury. Latisha Griffin, Sh'Taraus Hall, Stacy Winston, Deputy Darrell Smith, and Deputy Gloria Evans testified on behalf of the state, providing the basis of the facts recited above. Kowanna French was the only witness to testify on behalf of the defense. French was a member of the jury venire in the first degree murder trial of Lamondre Tucker, but was not selected

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as a juror. French testified that she knew Alexis Tucker, Lamondre Tucker's sister, but that she was not contacted by any member of the Tucker family regarding the trial. On February 4, 2014, Lamondre was found guilty of conspiracy to commit jury tampering by a unanimous jury verdict.

On February 27, 2014, Lamondre filed a motion for post-verdict judgment of acquittal and a motion for new trial. Lamondre argued that the evidence presented at trial was insufficient to sustain a conviction for conspiracy to commit jury tampering. Specifically, Lamondre argued that Griffin was not a " juror" in the first degree murder trial. Lamondre also argued that the jury venire in this case did not represent a fair cross-section of the community because African-Americans and African-American males were an underrepresented group. He asserted that the trial court erred in [49,822 La.App. 2 Cir. 6] denying his motion for a subpoena of the jury venire records of Caddo Parish and in failing to quash the jury venire. Lamondre also argued that the trial court erred in admitting the alleged hearsay statements of Alicia Tucker, in failing to allow the introduction of the complete voir dire testimony of Latisha Griffin, and in excluding relevant expert and witness testimony. The motions were denied by the trial court, after a hearing on February 27, 2014, on March 26, 2014. On March 31, 2014, Lamondre was sentenced to 30 years' imprisonment at hard labor.

Alicia Tucker was tried by jury on August 4-6, 2014. She was convicted as charged by a vote of 11 to 1. She filed motions for post-verdict judgment of acquittal, a presentence investigation, and for a new trial. The district court denied the motions at the sentencing hearing, and after delays were waived, sentenced Alicia to 15 years at hard labor with credit for time served. A motion to reconsider sentence was denied. This appeal followed.

Because the facts and issues raised are intertwined, we consolidated the two appeals for appellate review.

Discussion

Lamondre urges 26 assignments of error, including sufficiency of evidence claims, errors related to a motion to subpoena prosecutors, a defense expert disclosure, a subpoena for capital trial defense attorneys, a motion for a post-indictment preliminary examination, a subpoena for information related to jury pools and venires, a motion to recuse prosecutors, a motion to bar the prosecution from making statements indicating personal knowledge of facts, a motion requesting that the jury be instructed on the [49,822 La.App. 2 Cir. 7] law of contempt, and a motion that the jury be charged with contempt as an alternative verdict.

In her appeal, Alicia alleges 10 assignments of error, several of which are the same or similar to Lamondre's assignments of error.

Sufficiency of Evidence Claims: Lamondre's Assignments of Error 1-4; Alicia's Assignment of Error 1

Both defendants contend that the evidence was insufficient to support their convictions for conspiracy to commit jury tampering because Ms. Griffin was not a " juror" in Lamondre's murder trial, but rather merely a " prospective juror" in the jury venire. Additionally, Lamondre alleges that the state failed to prove that the purpose of his telephone contact with Latisha Griffin was for the purpose of influencing her, and the state failed to prove any direct or indirect threat to Griffin.

Alicia argues that the state failed to prove that she entered into an agreement with Lamondre for the purpose of jury tampering, and neither she nor Lamondre committed an act in furtherance of that

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alleged agreement. Both defendants allege that the state failed to prove required elements of the offense, namely, that the purpose of the contact was to influence Ms. Griffin or that any threats were made.

The standard of appellate review for a sufficiency of the evidence claim 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 proven 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. Tate, 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, [49,822 La.App. 2 Cir. 8] 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Crossley, 48,149 (La.App. 2 Cir. 6/26/13), 117 So.3d 585.

Both defendants were convicted of conspiracy to commit jury tampering. A " [c]riminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination." La. R.S. 14:26.

The offense of jury tampering is defined by La. R.S. 14:129(A):

Jury tampering is any verbal or written communication or attempted communication, whether direct or indirect, made to any juror in a civil or criminal cause, including both grand and petit jurors, for the purpose of influencing the juror in respect to his verdict or indictment in any cause pending or about to be brought before him, otherwise than in the regular course of proceedings upon the trial or other determination of such cause. To constitute the offense of jury tampering, the influencing or attempt to influence the juror must be either:
(1) For a corrupt or fraudulent purpose, or
(2) By violence or force, by threats whether direct or indirect.

Thus, in order to sustain these convictions, the evidence must be sufficient beyond a reasonable doubt to prove the following elements:

(1) An agreement between Lamondre and Alicia to commit jury tampering.
(2) An act by either Lamondre or Alicia in furtherance of that agreement.
(3) A direct or indirect verbal or written communication with a juror
[49,822 La.App. 2 Cir. 9] (4) for the purpose of influencing the juror in respect to his verdict or indictment . . .
(5) for a corrupt or fraudulent purpose, or by threats, violence or force.

The threshold question in this assignment is whether Ms. Griffin was a " juror" for purposes of the offense of jury tampering prohibited by La. R.S. 14:129. Ms. Griffin was a member of the venire and thus a prospective juror, but she was not impaneled or sworn in as a juror in the murder trial of Lamondre. We have found no case law from Louisiana deciding whether a member of the jury venire is a " juror" under La. R.S. 14:129.

The starting point in the interpretation of any statute is the language of the statute itself. State v. Johnson, 2003-2993, p. 11 (La.10/19/04), 884 So.2d 568, 575. The purpose of statutory interpretation is to ascertain legislative intent and the reason or reasons which prompted the legislature to enact the law. State v. Brooks, 2009-2323 (La. 10/19/10), 48 So.3d 219; Theriot v. Midland Risk Insurance Co., 95-2895 (La. 5/20/97), 694 So.2d 184. " Legislative intent is the fundamental question in all cases of statutory interpretation;

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rules of statutory construction are designed to ascertain and enforce the intent of the statute." Theriot, 95-2895, 684 So.2d at 186, 694 So.2d at 186. The best evidence of legislative intent or will is the wording of a statute. State v. Johnson, supra 884 So.2d at 575.

Criminal statutes are generally subject to strict construction under the rule of lenity. State v. Carouthers, 618 So.2d 880, 882 (La. 1993). The principle of lenity is premised on the idea that a person should not be criminally punished unless the law provides a fair warning of what conduct [49,822 La.App. 2 Cir. 10] will be considered criminal. State v. Piazza, 596 So.2d 817, 820 (La. 1992). The rule is based on principles of due process that no person should be forced to guess as to whether his conduct is prohibited. Piazza, 596 So.2d at 820.[2]

Following these rules of interpretation, we conclude that the term " juror" in La. R.S. 14:129 includes a person summoned as a prospective juror. The statute does not exclude venire members summoned to jury duty, nor does it strictly limit the reach of the statute only to impaneled jurors, including grand and petit jurors. The statute proscribes any verbal or written communication made to any juror for the purpose of influencing his verdict or indictment " in any cause that is pending or about to be brought before him. . . ." . We ascertain the intent of the legislature in enacting this statute is to prevent acts that, by influencing a juror in order to gain an unfair advantage, obstruct the fair and impartial trial of jury cases in our courts. Because any threat or attempt to influence a person summoned for jury duty (i.e., a " prospective juror" ) in a pending trial impairs the administration of justice in exactly the same way that justice is impaired by a threat or influence of an impaneled " juror," we conclude that the term " juror" in the statute includes a " prospective juror" within its reach.

Our conclusion is supported by statutes[3] and jurisprudence from other [49,822 La.App. 2 Cir. 11] state and federal courts who have decided this same issue:

In Nobles v. State, 769 So.2d 1063 (1 Dist. Ct.App. st Fla. 8/30/2000), the appellant appealed his conviction for jury tampering on grounds that the juror he allegedly threatened was only a prospective juror who had not been selected to serve in his case. Similar to Louisiana's statute, the Florida statute used only the term " juror" in defining the jury tampering offense. The court of appeal affirmed the conviction, holding that the term " juror" included a person who has received a jury summons and therefore might be selected to decide a case.

Similarly, in United States v. Jackson, 607 F.2d 1219 (8th Cir. 1979), the defendant appealed his conviction for jury tampering for his attempt to influence a member of the venire on grounds that the federal statute only proscribed threatening conduct or attempts to influence " any grand or petit juror." 18 U.S.C. § 1503. Citing

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United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553 (1921)[4], the court held that a venireman comes within the scope of the statute though he was not selected or sworn.

For these reasons, we conclude that Latisha Griffin was a juror for purposes of La. R.S. 14:129.

To sustain a conviction for " conspiracy to commit jury tampering," the state must show that the defendant, in agreement with at least one other person, communicated with a juror for the " purpose of influencing the juror in respect to his verdict." Alicia contends that the evidence of conspiracy is [49,822 La.App. 2 Cir. 12] insufficient because there was no evidence of an agreement between her and Lamondre whereby she would contact Sh'Taraus in order for her to contact Ms. Griffin. Lamondre contends he was merely trying to instruct Griffin regarding voir dire, not to influence her verdict, and Alicia contends that she was merely a listener to the conversations between Lamondre, Hall, and Griffin.

After reviewing the transcript of the telephone conversation between Lamondre and Alicia and the testimony of Hall and Griffin regarding the telephone communication between Lamondre, Alicia, Hall and Griffin, we conclude that the evidence is sufficient beyond a reasonable doubt to support the defendants' convictions for conspiracy. During the initial conversation between Lamondre and Alicia, Lamondre told his mother that he knew a person on the jury, but he was cautious about disclosing her name. He said:

Lamondre : And you won't believe who one of the jurors is. Now we, I'm, I'm, I'm trying to call and make some arrangement to tell her how the process going to go before it go so she won't say the wrong thing and they try to keep her off, because I want her to be one of the jurors. I don't want to call her name, you know what I'm saying.
Alicia : Don't call it then.

Nevertheless, Lamondre identified the prospective juror anyway to his mother as " Latisha."

Lamondre : Yeah, used to like her and everything. She, she know who I am and everything. She's, I know her real good. Hey, this what I want you to do.
* * *
But I ain't--I ain't tripping that though--you ...

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