APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 16-2002, DIVISION
"I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr. Terry M. Boudreaux Thomas J. Butler Megan L.
Gorman Kellie M. Rish.
COUNSEL FOR DEFENDANT/APPELLANT, JAMES DARBY Holli A.
composed of Judges Jude G. Gravois, Robert M. Murphy, and
Stephen J. Windhorst
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.
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.
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
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.
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.
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.
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.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
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.
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.
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
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. 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.
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 ...