FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 32246-12 HONORABLE GUY E. BRADBERRY, DISTRICT
F. DeRosier District Attorney Karen C. McLellan Assistant
District Attorney Counsel for Appellee: State of Louisiana
Ikerd Counsel for Defendant/Appellant: Marlon Frank Thomas
composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T.
Amy, and Phyllis M. Keaty, Judges.
PHYLLIS M. KEATY JUDGE
a jury trial, Defendant, Marlon Frank Thomas, was found
guilty of aggravated battery, aggravated burglary, attempted
armed robbery, and attempted armed robbery with a firearm.
The trial court sentenced Defendant to a total of forty years
at hard labor. He now appeals his convictions. For the
following reasons, we affirm.
October 18, 2011, two masked men entered the Lake Charles,
Louisiana, apartment of the victim, Bradford Jacobs,
demanding money. A fight ensued, and the victim was shot in
the back. The victim survived but was unable to identify the
perpetrators. DNA evidence retrieved from a glove found
at the scene linked Defendant to the crime.
was charged by grand jury indictment with one count of
attempted second degree murder, a violation of La.R.S. 14:27
and 14:30.1, and one count of home invasion, a violation of
La.R.S. 14:62.8. Defendant pled not guilty to the charges.
Over defense counsel's objection, the indictment was
later amended to change count two to aggravated burglary, a
violation of La.R.S. 14:60, and to add two additional
charges: count three-attempted armed robbery, a violation of
La.R.S. 14:27 and 14:64, and count four-attempted armed
robbery with a firearm, a violation of La.R.S. 14:27 and
14:64.3. Defendant pled not guilty to the amended
charges. The indictment was amended a second time to correct
the name of the victim in count one and to add more specific
information to counts two, three, and four.
jury trial began on July 13, 2015. The jury retired for
deliberations on July 16, 2015. After sending several notes
to the trial court indicating that they were deadlocked, the
jury returned the following verdicts late that evening: count
one-guilty of aggravated battery (10-2); count two-guilty of
aggravated burglary (11-1); count three-guilty of attempted
armed robbery (11-1); and count four-guilty of attempted
armed robbery with a firearm (11-1). Thereafter, the trial
court ordered a pre-sentence investigation (PSI) and set the
matter for sentencing. Defendant filed a Motion for New
Trial, which the trial court denied after a hearing. On
October 13, 2015, the trial court imposed the following
sentences: count one (aggravated battery)-five years at hard
labor; count two (aggravated burglary)-fifteen years at hard
labor; count three (attempted armed robbery)-thirty-five
years at hard labor; and count four (attempted armed robbery
with a firearm)-five years at hard labor. The trial court
ordered counts one, two, and three to run concurrently with
each other and ordered counts three and four to run
consecutively with each other. Defendant filed a written
motion to reconsider sentence, which the trial court denied
without a hearing.
now appeals, alleging the following assignments of error:
I. Evidence was insufficient to prove beyond a reasonable
doubt that Marlon Thomas was one of the masked men who robbed
the victim in this case.
II. The Trial Court abused its discretion and committed
reversible error by not protecting Marlon Thomas' Sixth
Amendment Rights by securing any waiver from Mr. Thomas of an
actual conflict of interest his attorneys and their law firm
had between their simultaneous representation of him and one
of the State's key, adverse eye-witnesses, over a defense
III. Trial Court erred by allowing the State to ask questions
of Dr. Shimer about medical reports and medical issues
outside the scope of general surgery, the only field in which
he had been accepted as an expert, when the State
deliberately prevented giving the defense notice of such
IV. Trial Court erred in not granting Marlon Thomas'
Motion for a New Trial because the State's comments in
closing that gave the jury the impression that Mr. Thomas had
to be forced to provide his DNA by court order was factually
wrong and impermissibly shifted the burden of proof onto the
defense; thus, an admonition by the court was insufficient to
protect Mr. Thomas' rights.
accordance with La.Code Crim.P. art. 920, all appeals are
reviewed for errors patent on the face of the record. Our
review has revealed one error patent. Defendant was
incorrectly advised at sentencing that he had two years from
that date to file an application for post-conviction relief.
Louisiana Code of Criminal Procedure Article 930.8 provides
that a defendant has two years after the conviction and
sentence become final to seek post-conviction relief. The
trial court is directed to inform Defendant of the correct
provisions of La.Code Crim.P. art. 930.8 by sending
appropriate written notice to Defendant within ten days of
the rendition of the opinion and to file written proof in the
record that Defendant received the notice. See State v.
Baylor, 08-141 (La.App. 3 Cir. 11/26/08), 998 So.2d 800,
writ denied, 09-275 (La. 11/20/09), 25 So.3d 795.
of Error Number One
asserts the evidence was insufficient to prove he was one of
the men who robbed the victim. He points out that no witness
identified him as one of the perpetrators, that he did not
confess to the crime, and that his conviction was based on
The analysis for sufficiency of the evidence claims is well
When the issue of sufficiency of evidence is raised on
appeal, the critical inquiry of the reviewing court 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, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing
denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126
(1979); State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105
(La.1982); State v. Moody, 393 So.2d 1212 (La.1981).
It is the role of the fact finder to weigh the respective
credibility of the witnesses, and therefore, the appellate
court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State
ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). In order for this
Court to affirm a conviction, however, the record must
reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir.
5/7/97), 695 So.2d 1367, 1371.
the sole issue is Defendant's identity as the
perpetrator, the supreme court has explained:
[W]hen the key issue is the defendant's identity as the
perpetrator, rather than whether the crime was committed, the
State is required to negate any reasonable probability of
misidentification. Positive identification by only one
witness is sufficient to support a conviction. It is the
factfinder who weighs the respective credibilities of the
witnesses, and this court will generally not second-guess
State v. Hughes, 05-992, pp. 5-6 (La. 11/29/06), 943
So.2d 1047, 1051 (citations omitted).
first witness to testify for the State was Robert Broussard,
Supervisor of Information for Calcasieu Parish 911. Mr.
Broussard identified State's Exhibit 1 as a compact disc
he prepared at the request of the District Attorney's
Office which contained audio recordings of two 911 calls
concerning an October 18, 2011 incident. The recordings were
played for the jury. A caller who identified himself as
"Gregory" stated that he needed police at 410 6th
Street. Gregory explained that he was eating with friends
when two men dressed in black and wearing masks entered the
apartment with guns and began fighting with someone in the
home. He stated that he was able to get out of the apartment
and that as he watched the two intruders later walk away from
the apartment, one of them appeared to have been shot in the
next witness called by the State was Sergeant Franklin
Fondel, a seventeen-year veteran of the Lake Charles Police
Department, who testified extensively about his investigation
in this case. He stated that he responded to the scene after
learning about an incident while monitoring his police radio.
Upon his arrival, he encountered Cristin Kibodeaux
standing in the driveway crying. Ms. Kibodeaux told him that
her friend had been shot. Sergeant Fondel approached the
apartment and saw the victim lying near the doorway. An
Acadian Ambulance had arrived and was preparing to transport
the victim to a hospital.
Sergeant Fondel later met the victim's upstairs neighbor,
Gregory Jones,  in the front yard and learned that Mr.
Jones was in the victim's apartment at the time of the
invasion. Thereafter, Sergeant Fondel had Mr. Jones and Ms.
Kibodeaux brought to the police station to give video
statements to Detective David Roup, who was working the case
with him. Sergeant Fondel requested that headquarters send
Jordan Ashworth, an ID Technician (ID Tech), to process the
scene. He then joined Officer Dustin Fontenot near a red
dumpster at the corner of Hodges and 6th Streets. According
to Sergeant Fondel, Ms. Kibodeaux and another witness had
told Officer Fontenot that they heard a loud boom when the
two suspects ran from the apartment towards Hodges Street
before getting into a white Lumina with dark tinted windows.
Sergeant Fondel stated that when Officer Fontenot opened the
dumpster, it was empty of trash but contained two gloves and
a ski mask.
Fondel explained the layout of the victim's apartment,
describing it as shotgun style with a bedroom/living room,
followed by a kitchen, and then a bathroom which led out the
back door to a patio. Between the toilet area and the back
door, Sergeant Fondel saw a white left-handed garden glove
with black beads which he collected as evidence. When shown
State's Exhibit 17, Sergeant Fondel described it as an
envelope labeled "One gray and white glove" with a
notation that the glove was "Collected from the bathroom
floor and front of back door." Sergeant Fondel examined
the glove and identified it as the glove seized from the
victim's bathroom floor. Sergeant Fondel also recalled
observing three 380 shell casings in the kitchen and two more
in the bathroom, all of which were photographed and logged
into evidence at the police station by the ID Tech.
Sergeant Fondel further testified that witnesses told him
that two males had entered the apartment dressed in black,
wearing ski masks, and carrying weapons. One subject was
described as being short, approximately 5'5", and
the other suspect was described as being tall, approximately
6'1". Through his investigation, Sergeant Fondel
learned that Defendant is 6'0". When asked his next
step in the investigation, Sergeant Fondel stated he
contacted the hospitals to see if anyone had sought treatment
for a gunshot wound since a witness reported seeing one of
the suspects hobbling away from the scene as if he had been
shot. Sergeant Fondel did not learn of anyone other than the
victim receiving treatment for a gunshot wound around the
time of the incident.
Fondel testified that after the scene was processed, he and
the ID Tech went to check on the victim at St. Patrick's
Hospital Emergency Room. The victim, who was in extreme pain,
was being treated for a gunshot wound to his upper right back
and for two cuts to the top of his head that had been
inflicted by the suspects; the ID Tech photographed the
victim's injuries. The victim was unable to provide
Sergeant Fondel with any information regarding who was
responsible for shooting him. Thereafter, the victim
underwent emergency surgery to treat his gunshot wound. The
photographs taken by the ID Tech were shown to the jury
during Sergeant Fondel's testimony.
Fondel testified that two days after the October 18, 2011
incident, he received an anonymous phone call regarding the
identity and location of a subject that was possibly involved
in the incident. The tipster said the subject had suffered a
gunshot wound and was trying to get out of town to seek
medical attention. When Sergeant Fondel and several officers
from the S.W.A.T. team arrived at the address given to them
by the anonymous caller, they were advised by the resident
who answered the door that her friend "Marlon Thomas,
" i.e., Defendant, was there, and they were given
permission to enter the house. Sergeant Fondel found
Defendant in a back bedroom with blood-soaked gauze wrapped
around his left knee. Defendant was placed under arrest and
agreed to get medical attention. During his testimony,
Sergeant Fondel identified a photo depicting a circle around
the area of Defendant's left calf where a bullet was
lodged. Sergeant Fondel stated that after the bullet was
removed from Defendant's leg, it was immediately put into
a jar and given to the ID Tech. Sergeant Fondel testified
that the bullet removed from Defendant and the five casings
found at the victim's apartment were brought to the
Louisiana State Police Crime Laboratory (La. Crime Lab) in
Baton Rouge, Louisiana, by an ID Tech. Defendant was brought
to the detective division after he left the hospital.
Defendant gave a statement wherein he claimed he was shot on
October 18, 2011, around 6:15 p.m., in the Fisherville
area. Defendant admitted that he failed to
report the gunshot to police and to get medical attention. In
his statement, Defendant stated he was in an alley area when
someone drove by and shot him. When asked if anyone reported
shots fired in the Fisherville area at that time, Sergeant
None. I checked with our headquarters. Most of the time when
you have shots fired anywhere in the city, sometime if
someone else would hear shots or something, they would call
just to say shots were fired in the area. We had no shots
fired in that area on that date at 6:15, or any that evening
time. The only shots fired call we had of a shooting  was
on 410 6th Street, where we was [sic] dispatched to.
When the State questioned Sergeant Fondel about the dumpster,
I advised earlier that Officer Dustin Fontenot, after
obtaining that information from the witness, Ms. Kristen
Kibodeaux, he went to that area to check it. And he observed
the ski masks and observed two gloves, which the gloves was
[sic] black and white. The black beads, white, with all black
ski mask that was in the dumpster, the red dumpster.
Fondel described a close-up picture of the ski mask and two
gloves found in the dumpster. When asked if he was able to
make any connection between the items found in the dumpster
and Defendant's accomplice, Dione Daugherty, Sergeant
Yes. After those items were submitted to our Southwest Crime
Lab here in Lake Charles, Louisiana. And - - and in December,
a hit came back off of those gloves and the ski mask, which
came back from a CODIS hit to Dionte Dougherty [sic], at
which time we was - -had to obtain DNA from Dionte Dougherty
[sic] so it can be compared to the CODIS hit that the crime
lab had discovered. And once they discovered that and we got
the DNA, we submitted back to the crime lab, and they
compared it, and it came back positive to Dionte Dougherty
cross-examination, Sergeant Fondel stated he was told that
Joshua Plummer was at the victim's residence prior to
the incident. When asked if Mr. Plummer's name came up
during Defendant's interview, Sergeant Fondel stated that
"it probably did." Mr. Plummer's name also came
up in his interview with the victim, Bradford Jacobs.
According to Sergeant Fondel, the victim stated that Mr.
Plummer had been at his residence between 2:00 and 8:00 p.m.
on the day of the incident and that Mr. Plummer knew the
victim had a large amount of cash. Sergeant Fondel learned
that Mr. Plummer left quite suddenly just before the
incident. Sergeant Fondel did not interview Mr. Plummer at
Fondel noted that the name Anthony Batiste came up in his
investigation, but not as having involvement in the incident
in question. As a result, he did not interview Mr. Batiste.
Sergeant Fondel stated that when he investigated the shooting
death of Mr. Batiste that occurred after this incident, he
noted in his report that Mr. Batiste's nickname was
"Toodie." The following colloquy took place
regarding names mentioned by the current victim in his
Q. Okay. Now, returning back to your interview with Mr.
Bradford Jacob[s]. In that interview did he indicate that one
of the gunmen was referring to the other as
"Toodie" or "Tootie"?
A. He mentioned a "Toodie."
Q. Uh-huh. He also did mention the name Anthony Batiste?
A. I don't recall right off if he did or not, sir.
re-direct, the State asked Sergeant Fondel how he put aside
other suspects and focused on Defendant. Sergeant Fondel
Due to evidence that was submitted to the lab regarding 
witnesses, the two witnesses that was [sic] in the residence
at the time of this incident. That evidence was sent to the
lab, and once DNA was obtained Mr. Batiste along with Joshua
Plumber was [sic] excluded from this investigation.
Fondel concluded by stating that no evidence was recovered in
his investigation of this matter that pointed to either Mr.
Plummer or Mr. Batiste.
Ashworth, a crime scene technician for the Lake Charles
Police Department, testified that Sergeant Fondel requested
her presence at the scene of the incident. She collected five
380 shell casings at the scene and later a projectile that
was removed from Defendant at the hospital. Ms. Ashworth
identified Defendant as the person from whom the projectile
was removed and State's Exhibit 42 as the projectile
taken from Defendant's leg.
Vincent, a registered nurse at Lake Charles Memorial Hospital
briefly testified at trial to identify a vial of blood
collected from Defendant on June 26, 2012, for purposes of
DNA analysis. Monica Quaal, the DNA technical leader of the
Southwest Louisiana Crime Laboratory in Lake Charles,
Louisiana, was accepted as an expert in DNA analysis. Ms.
Quaal stated that she received a black ski mask, a set of
gloves, and a separate glove. On the black ski mask and set
of gloves, Ms. Quaal found nothing relating to Defendant. On
the separate glove found on the victim's bathroom floor,
however, Ms. Quaal found a mixture of DNA from at least two
people. She explained that she found skin cells, or contact
DNA, left from contact with that glove. When Ms. Quaal
compared the contact DNA found in the glove with a reference
sample from Defendant, she could not exclude Defendant from
being a contributor. Ms. Quaal testified that she could
exclude 99.9999992 percent of the Caucasian population,
99.999996 percent of the African American population, and
99.999997 percent of the Hispanic population. She was able to
affirmatively exclude the victim as a contributor to the DNA
found inside the separate glove.
cross-examination, Ms. Quaal testified that she had reference
samples from Defendant, the victim, and Mr. Daugherty but not
from Mr. Batiste or Mr. Plummer. She agreed that she did not
know who the other DNA belonged to and could not exclude
either Mr. Batiste or Mr. Plummer because she did not have
reference samples from them. On re-direct, Ms. Quaal
explained that the inside of a glove is a good place to find
DNA since a person's skin cells will be scratched off
Watson, Jr., a forensic scientist with the La. Crime Lab was
accepted as an expert in firearms examination. Mr. Watson was
provided with five 380 caliber cartridge cases and one bullet
in connection with this matter. He stated that the five
cartridges did not have enough detail to determine whether
they were fired from the same firearm. While the bullet
provided to him was a "380 auto caliber, " Mr.
Watson was unable to say that the bullet came from one of the
casings found at the scene. On cross-examination, Mr. Watson
stated that the five cartridges were made by three different
Richard Shimer, a staff surgeon at Lake Charles Memorial
Hospital, testified as an expert in general surgery. Dr.
Shimer treated the victim for the gunshot wound he received
in this incident. Over defense counsel's objection, Dr.
Shimer was allowed to review and testify regarding a report
prepared by a Dr. Gray, the physician who removed that bullet
from Defendant's leg. Dr. Shimer testified that the
bullet entered Defendant's leg above his knee and did not
exit. When asked about the trajectory of the bullet, Dr.
Shimer stated that he could not say whether or not the bullet
was shot from above. On cross-examination, Dr. Shimer agreed
he was not an expert in ballistics.
Kibodeaux testified that the victim called her on October 18,
2011, asking her to pick up some cigarettes and alcoholic
beverages for him because he had been drinking all day and
did not want to drive. As she walked toward the victim's
apartment around 9:00 p.m., she saw two men standing outside
in the backyard. Both men were wearing dark clothing and
jackets with hoods. She described one as short and one as
tall, estimating that the tall man was 6'0" to
6'1" and the short man was 5'4" to
5'5". Ms. Kibodeaux stated that the two men were
"black guys, " the taller one being darker and the
shorter one being lighter skinned. When Ms. Kibodeaux walked
into the apartment, the victim and someone named Greg was
there. At some point after she arrived, Ms. Kibodeaux turned
around to see two men wearing masks and gloves standing in
the kitchen next to the victim. The shorter man had a handgun
pointed at the victim. When the taller man held up a handgun,
the victim turned, and the shorter man hit the victim in the
head with his gun. Ms. Kibodeaux screamed, put her hands over
her face, and started backing away from them. She stated she
did not want to look at the two men because she did not want
to see their faces. The men asked the victim,
"Where's the money? Give us money, " and the
victim told them he did not have any money. The men shouted
for someone to turn the television volume up loud and
demanded that the victim take off his clothes. The victim
refused and began fighting with the shorter man. Ms.
Kibodeaux heard the shorter man tell the tall man, "Man,
E.O, E.Z" or something along those lines. As she ran out
of the apartment, she heard two gunshots. As she reached the
second door to exit the building, she heard two or three more
shots. Ms. Kibodeaux then ran toward a nearby house and
banged on the door saying, "Please help me." When
the couple inside cracked the door open, Ms. Kibodeaux told
them, "Please call 911. There's two men with guns. I
believe they shot my friend. Please help." Thereafter,
the couple shut the door in her face so she hid on their
porch. Soon the two assailants came walking toward her. She
described the men's behavior as odd, stating:
A. Yeah, I mean, they were - - they were walking very calm,
casual. They weren't fleeing the scene. They weren't
running. They weren't looking around nervously. They were
walking, afternoon stroll, and went up the street. As soon as
I see them, you know, I remember being flabbergasted at first
at how they were leaving the scene so nonchalantly, but I
ducked back down after I saw them walking. I ducked down
hoping they wouldn't see me.
I hear a noise, and I remember taking mental note, I was
saying to myself this is when you need to try to get mental
notes of what they look like or what they're doing. So,
as I heard a noise I was trying to get a mental note of what
. . . .
Q. What did the noise sound like?
A. It sounded like a lid being slammed. It sounded to me like
a trash can lid or something like that being slammed, you
know, because I have the big bin trash cans at my house and
I'll open it, you know, and when I'm done, boom.
. . . .
A. Because after I heard it and looked back up I noticed a
dumpster, not a trash can sitting on the road. I noticed a
dumpster in a front yard, as if the house were being
renovated, you know, and I said right then that's what
that noise was, that dumpster. So, as soon as I saw the
police officers I said, "You need to check that
dumpster. I heard that dumpster. I believe they put something
in the dumpster. You need to check that dumpster."
Ms. Kibodeaux saw the intruders leave, she went back to the
apartment and found the victim lying on the floor with a
gunshot wound. When she went to the kitchen to get a rag, Ms.
Kibodeaux noticed her car keys were missing. A few minutes
later, she heard sirens. When the police officers arrived,
she told them that the men had driven off toward 12th Street
in what she believed was a "white Lumina." On
cross-examination, Ms. Kibodeaux stated that she did not know
which one of the two men fired any of the gunshots. She did
not recall either of the two men limping as they were walking
away after the incident, but she clarified that she could not
see their feet.
Fondel was recalled as a witness and was asked about several
photographs marked as State's Exhibits, 47, 48, and 49
which were images of the victim's kitchen counter.
Sergeant Fondel identified items in the photographs,
including a bag with a pack of cigarettes and a bottle of
beer, a scale, and a plastic bag containing powder residue.
He then testified regarding State's Exhibit 50, a
photograph of a loveseat in the victim's living room upon
which there were several items that had been removed from the
victim's pocket: a large amount of U.S. paper currency, a
cell phone, and a brown medicine bottle containing what
appeared to be rocks of cocaine. According to Sergeant
Fondel, the victim admitted to owning the cocaine in the
brown bottle. On cross-examination, defense counsel
questioned Sergeant Fondel about Mr. Plummer. The defense
then introduced a document which Sergeant Fondel identified
as showing that Mr. Plummer had been sentenced to twenty
years after being convicted of home invasion. On re-direct,
Sergeant Fondel explained that he had arrested Mr. Plummer on
August 24, 2012, on a matter unrelated to his investigation
of Defendant or Mr. Daugherty regarding the shooting of
Bradford Jacobs, the victim in this matter.
victim was the next witness to testify. He stated that on the
day of the incident, he had played video games with Mr.
Plummer at his apartment from about noon until 8:00 p.m. He
explained that he had known Mr. Plummer for approximately
thirteen years. After Mr. Plummer left the victim's
apartment, the victim's friend, Gregory Jones remained,
and a short time later, Ms. Kibodeaux, arrived. The victim
and Ms. Kibodeaux were talking at the counter when two guys
wearing masks and gloves walked in with guns. The two men
brought the victim to his bed and asked him where his money
was. When asked if he recognized Mr. Plummer's voice, the
A. Right and neither one of them could possibly be Josh
because Short was two inches shorter than me and Josh is two
inches taller than me and Tall is too tall to be Josh and
he's also dark skinned.
Q. So I want to clarify for the Jury. When you talked about
Short and you talked about Dark, you're talking about the
two guys in the masks, right?
Q. Because you couldn't see their faces.
A. No. I couldn't see their faces. On Short you could see
underneath his neck right here and that's how I knew he
was light-skinned and also he had his sleeves rolled up so I
knew he was light-skinned; and Dark, I could tell under his
eyes with his mask and by his mouth he was brown skinned like
Q. So Short and Dark, they didn't even match the physical
description of Josh?
A. No, sir.
Q. Did they sound like Josh?
A. No, sir.
asked if he knew what money the intruders were talking about,
the victim stated he had no idea, but he guessed they may
have been talking about the money Mr. Plummer knew the victim
was going to use to buy rims for his truck. The victim stated
that he had approximately $4, 000.00 in his apartment which
he had received from Entergy for a power outage that had
damaged some of his appliances. The victim admitted that he
had been drinking and had smoked some marijuana on the day of
When asked to describe the incident, the victim stated:
A. The guy sat me on the bed. Once again he asked where the
money was. I told him I didn't have any money. So he taps
me on top of the head with the gun. And I told him don't
do that again. Don't hit me with the gun again. So he
went to do it - - well, before that he asked me to take off
my clothes. And I said no, I'm not taking off my clothes
either. So like I said, he went to hit me with the gun again
and I just started fighting him, beating him. I walked him
all the way to the kitchen because my house went living room,
kitchen and bathroom. So I just punched him all the way to
Q. So you started fighting back?
. . . .
Q. What happens once you get to the bathroom?
A. I leaves[sic] him in the tub and he's hollering.
Q. What do you mean you leave him in the tub? You pushed him
into the tub?
A. I punched him in the tub; I pushed him in the tub, so
he's hollering to the back door. I don't know what he
was hollering, but I see somebody come into the back door. I
went to hit him twice. I think I connected once and then I
got shot. I heard pow pow and got shot. I hit the floor like
all the life came out of me. While I was on the floor I hear
cling, cling outside and I didn't know what that was. So
two or three days later after waking up at the hospital I
realized that one of the guys shot himself and I see the
pictures that you had, so I put two and two together and he
must have tripped over the - -
I'm going to have to object. This is speculation.
Q. Let me ask you this way, Brad: you said you heard clink,
Q. This clink, clink sound, this was after the shots were
A. Yes. This is when I was on the ground.
Q. So after you were on the ground you hear clink, clink.
What did you think that clink, clink sound was at the time?
. . . .
A. I didn't have no idea at that time.
(Alteration in the original). The victim then explained that
the back door leading from his bathroom connected to the back
porch where a weight bench was located. When asked if he
could give any specific information about what "Tall
dark, " did that night, the victim replied:
I can't say anything really about Tall dark, but he was
there because Short had me in the front with the gun saying
everything, pointing the gun to my head, telling me [to] take
all my clothes off and trying to get me to take all my
clothes off. I really didn't see Tall until the end.
point, the victim heard "Short" holler something,
and "Tall" came in. After the victim tried to hit
"Tall, " he heard two gunshots. The victim stated
that in his statement to police, he mentioned the name
"Anthony Batiste" because that was the name
"surfacing around" on the street.
cross-examination, the victim admitted he originally told
police that he pulled the bottle of crack cocaine out of the
pocket of Anthony Batiste during the struggle. He explained
that originally he was afraid "they was [sic] going to
try to make this out of a drug case, " but he eventually
recanted that statement. According to the victim, he used the
scale found in his apartment to weigh cocaine for personal
use and to make sure he was not shorted when he purchased
marijuana. After his memory was refreshed with a prior
statement he made to Sergeant Fondel, the victim remembered
telling him that the gunmen were not wearing gloves. When
asked if he told Sergeant Fondel that one of the gunmen was
calling the other one "Tooty, Tuchi, [or] Tooty, "
the victim responded:
A. A friend of mine, Greg Jones that was there, that's
what he said he was hollering out.
Q. But do you remember?
A. I don't recall saying that to Mr. Fondel, but I might
have but that's what my friend, Greg, said they were
re-direct, the victim testified that his memory was good at
the time he spoke with Sergeant Fondel on November 30, 2011,
but that he was in a wheelchair due to injuries caused by the
gunshot he received, and he was on doctor-prescribed
medication at the time. The State asked the victim the
Q. Brad, if they weren't wearing gloves[, ] do you
remember seeing their hands?
A. Yes, sir. I don't recall them having gloves on. I
remember seeing Short's, like I said, his sleeve was
pulled up. That's how I know he was bright, and you could
see all under his neck area. That's how I knew it was
bright. And then Tall was dark because you could see in his
mask around his eyes that he was dark like me; and also I
could see under his neck that he was dark like me.
victim testified that he could see the gunmen's wrist