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State v. Darby

Court of Appeals of Louisiana, Fifth Circuit

November 15, 2017



          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Thomas J. Butler Megan L. Gorman Kellie M. Rish.


          Panel composed of Judges Jude G. Gravois, Robert M. Murphy, and Stephen J. Windhorst

          GRAVOIS JUDGE.

         Defendant, James Darby, appeals his conviction for second degree murder, a violation of La. R.S. 14:30.1. On appeal, he argues that there was insufficient evidence to convict him. After thorough consideration of the evidence and the applicable law, we affirm defendant's conviction and sentence.


         On April 7, 2016, a Jefferson Parish Grand Jury indicted defendant, James Darby, with the second degree murder of his former girlfriend, Tracey Marshall, a violation of La. R.S. 14:30.1. On April 8, 2016, defendant was arraigned and pled not guilty to said charge.

         Defendant filed motions to suppress the evidence and statement, which were denied on September 9, 2016. Thereafter, on February 14-18, 2017, the case was tried before a twelve-person jury, which found defendant guilty as charged of second degree murder.

         On February 21, 2017, defendant's motions for a new trial and post-verdict judgment of acquittal were denied. On that same date, after defendant waived sentencing delays, the trial court sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant filed a written motion, and also made an oral motion, for reconsideration of sentence, which were denied. Defendant then filed a timely motion for an appeal following sentencing on February 21, 2017, which was granted that same day. On appeal, defendant contests the sufficiency of the evidence used to convict him of the second degree murder of Tracey Marshall.


         At approximately 9:40 p.m. on the evening of December 13, 2015, Deputy Henry Dejean of the Jefferson Parish Sheriff's Office responded to a call at 2409 Avenue Mont Marte in Terrytown, Louisiana, of shots fired in the area. Deputy Dejean canvassed the area where he was told the gunshots had originated, but due to inclement weather, could not locate any evidence of a shooting. The following morning, the victim Tracey Marshall's neighbor, Kalie Alberti, called the police after she observed Ms. Marshall's head hanging out of the shattered driver's-side window of her vehicle in the parking lot of their condominium complex.

         Ms. Marshall, who was employed by the Jefferson Parish Sheriff's Office as a deputy, had been in a long-term relationship with defendant before their break-up in November of 2015. As a result of their break-up, Ms. Marshall moved out of defendant's residence in New Orleans and into a condominium next door to Ms. Alberti. Ms. Alberti recalled that a few days before Ms. Marshall's murder, she received a phone call from defendant, who asked her whether she had seen Ms. Marshall because he had been unable to reach her. Defendant then told Ms. Alberti that he believed Ms. Marshall was seeing someone else based on his seeing a silver Expedition parked in the parking lot of Ms. Marshall's condominium. Ms. Alberti told defendant that the Expedition belonged to her (Ms. Alberti's) boyfriend and not to Ms. Marshall. Defendant concluded their conversation by explaining to Ms. Alberti that Ms. Marshall "owed" it to him to at least answer his phone call. Based on the information Ms. Alberti provided, defendant was developed as a suspect in Ms. Marshall's murder.

         Jefferson Parish Sheriff's Office Deputy Ian Donahue was the first officer to arrive on the scene of the homicide. Upon arrival, Deputy Donahue discovered that Ms. Marshall's car window had been shattered and that she had been shot.[1]Dr. Susan Garcia, an expert in the field of forensic pathology, conducted an autopsy on Ms. Marshall. Dr. Garcia testified that the cause of Ms. Marshall's death was multiple gunshot wounds, and the manner of death was classified as a homicide. Dr. Garcia noted five separate entrance wounds located on various parts of the victim's body, including her chin, the left side of her arm, the left side of her head, and her upper back. Further, based on the imprints on Ms. Marshall's chin, Dr. Garcia opined that she was likely turned to her left, as if looking out of the window, when the first shot was fired, the imprints having been caused by the shattered window glass.

         Deputy Donahue secured the scene of the homicide and began searching for evidence. An empty black gun holster was found a block away in a neighbor's yard and was submitted for DNA analysis, but had insufficient DNA for comparison. Detective Thomas Gai also participated in the recovery of evidence from the scene. A series of eight .45-caliber casings located near Ms. Marshall's vehicle, a projectile located next to a nearby dumpster, two projectiles located inside Ms. Marshall's vehicle, and Ms. Marshall's fully loaded service weapon were recovered, confirming that she had not fired her weapon at the time she was shot. Two cellular phones belonging to Ms. Marshall were also recovered. It was determined that the .45-caliber casings had been fired from the same weapon and were consistent with a Glock automatic pistol. The projectiles were further found to be consistent with .45-caliber class ammunition, and the gun holster discovered in the neighboring yard was determined to be capable of fitting a Glock .45-caliber pistol. Detective Gai testified that there was damage to the driver-side window, consistent with a projectile entering the window, and several bullet holes found inside the vehicle, which were consistent with gunshot rounds having been fired into the vehicle from the driver's side and exiting on the passenger side.

         A neighbor, Gary Barnes, told the police that he had heard a series of gunshots around 9:30 p.m. on the night of December 13, 2015. When he glanced out of his window, he saw a vehicle cross his driveway at a high rate of speed, disregarding the posted stop sign. He described the vehicle as a four-door medium-sized vehicle, dark in color, but that he could not see the driver.

         The day following Ms. Marshall's murder, her boyfriend, Gerald Francis, contacted the Jefferson Parish Sheriff's Office after learning of her death. Pursuant to an interview with Mr. Francis, it was learned that Ms. Marshall and Mr. Francis had been dating for approximately two months prior to her murder. Around 6:15 p.m. on December 13, 2015, Ms. Marshall and Mr. Francis met at the Walgreens on St. Charles Avenue in New Orleans, each in their own vehicles. From there, they walked across the street to Houston's Restaurant for dinner, and then proceeded to the French Quarter where they listened to live music before concluding the evening at Club Good Times II. Mr. Francis then drove Ms. Marshall to her vehicle at the Walgreens where they parted ways. While on his way home, Mr. Francis spoke to Ms. Marshall on the phone until she reached her home in Terrytown. At that point, because it was raining heavily, Ms. Marshall advised Mr. Francis that she was going to wait in her car until the rain stopped. They were still talking when during their conversation, Ms. Marshall suddenly said "boy" as if "somebody scared her, " and then her phone went dead.

         Mr. Francis stated that he attempted to call Ms. Marshall back several times, and sent her text messages to see if everything was okay, but received no response. The following morning around 6:00 a.m., Mr. Francis again attempted to call and text Ms. Marshall as they typically spoke during Ms. Marshall's drive to work, but again he received no response.[2] Later that day, Mr. Francis was watching the news when he learned that Ms. Marshall had been murdered. It was at that time that he contacted the police.

         Elizabeth Memtsas, a friend of Ms. Marshall, recalled a phone conversation she had with Ms. Marshall one day in 2015, where Ms. Marshall was very upset and voiced her desire to leave defendant, but stated that she was unable to do so because defendant would never allow it due to his jealous nature. She further recollected a time in 2015 when she and Ms. Marshall were shopping and noticed that defendant had been following them. She stated that Ms. Marshall told her to "stay calm, " then "exchanged words" with defendant before he drove off. In another instance, Ms. Memtsas heard defendant arguing with Ms. Marshall while he was on speakerphone and told Ms. Marshall that she needed ...

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