FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF
JEFFERSON DAVIS, NO. CR-716-15 HONORABLE CRAIG STEVE GUNNELL,
F. Boustany, II Boustany Law Firm COUNSEL FOR
DEFENDANT-APPELLANT: Kyvonte Latrell Eaglin.
Michael C. Cassidy District Attorney - 31st JDC Bennett R.
LaPoint Assistant District Attorney COUNSEL FOR APPELLEE:
State of Louisiana.
composed of Sylvia R. Cooks, Elizabeth A. Pickett, and
Phyllis M. Keaty, Judges.
ELIZABETH A. PICKETT, JUDGE
defendant, Kyvonte Latrell Eaglin, attended a party at the
American Legion Hall in Jennings on August 8, 2015. An
altercation broke out, and a group moved outside. The
defendant went to his vehicle and retrieved a gun. Shots from
one or more firearms were fired, and the victim, Jawon
Lennette, was killed.
defendant was indicted for second degree murder, a violation
of La.R.S. 14:30.1, on December 16, 2015, as a result of the
shooting on August 8, 2015, that resulted in the death of
Jawon Lennette. Counsel filed a number of pre-trial motions,
including a motion for a hearing pursuant to Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S.Ct. 2786 (1993), and Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999), as
adopted by the Louisiana Supreme Court in State v.
Foret, 628 So.2d 1116 (La.1993).
also filed a motion to declare the defendant indigent and to
provide funds to retain a firearms expert. The trial court
ruled on October 27, 2016, finding the defendant was
indigent. However, the trial court denied the defendant's
request to provide funds for him to retain an expert witness,
and it denied his request to reopen the Daubert
hearing to present new scientific evidence that purportedly
refuted the state's expert's testimony. The defendant
filed a proffer of the new evidence for purposes of appellate
review on November 14, 2016. He also proffered recorded
statements of three witnesses.
case went to trial on November 15, 2016. The jury rendered
the responsive verdict of guilty of manslaughter on November
18, 2016. Although he was tried on a count of second degree
murder, in closing argument the state argued the jury should
return a verdict of guilt for manslaughter. The defendant
filed a motion for new trial on December 6, 2016, which the
trial court denied without a hearing. The defendant asked the
trial court to reconsider the ruling, but the trial court
denied his request on December 14, 2016.
trial court sentenced the defendant to twenty years at hard
labor on January 30, 2017. The defendant made an oral motion
to reconsider his sentence, and the trial court denied it.
The defendant timely appealed.
district judge erred when he denied this indigent
defendant's request for funds to hire a firearms expert.
district judge erred when he allowed the State to argue that
the jury should accept the testimony and opinions of the
State's firearms expert, because the defendant never
called a firearms expert to contradict that testimony.
district judge erred when he concluded that the State's
firearms expert was qualified to testify as a firearms
expert, and that she proved that her testing procedure had
sufficient scientific validity.
district judge erred when he refused to allow the defense to
re-open the Daubert hearing on the State's
firearms expert, after a very recent scientific report was
brought to the court's attention, and filed in the
record, that cast considerable doubt on the scientific basis
for the expert's procedure and conclusion.
district judge erred when he allowed the State unlimited
challenges for cause against all prospective jurors who
expressed reservations about a mandatory life sentence for a
17-year old child.
district judge erred when the defense raised a
Batson challenge, and the State did not give
adequate or legal reasons for removing African-American
district judge erred when he allowed the State to introduce,
as evidence of the defendant's "bad character,
" a copy of a Facebook photograph of the defendant, who
was roughly 13 years old, that falsely portrayed him as a
masked armed robber holding a dangerous pistol to the back of
a child's head, as though ready to shoot the child, that
the judge himself described as "inflammatory."
district judge erred when he refused to allow the defense to
present the testimony of eye witnesses who would have
testified that the defendant appeared to have accidentally
fired a shot at the alleged victim.
district judge erred when he refused to allow the defense to
impeach the State's witnesses with prior inconsistent
statements about how the shooting occurred.
district judge erred, as a matter of law, when he denied the
defendant's motion for new trial, without a hearing.
district judge erred by failing to properly consider the
mitigating factors when imposing the sentence and imposed an
accordance with La.Code Crim.P. art. 920, all appeals are
reviewed by this court for errors patent on the face of the
record. After reviewing the record, we find there are no
OF ERROR NUMBER THREE
defendant argues the trial court erroneously held the
state's firearms expert was qualified to testify and that
she proved her testing procedure had sufficient scientific
509 U.S. 579, "set forth a means for determining
reliability of expert scientific testimony and answered many
questions as to proper standards for admissibility of expert
testimony." Foret, 628 So.2d at 1121. When
considering reliability, the trial court should first perform
"a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be
applied to the facts in issue." Daubert, 509
U.S. at 592-93. Illustrative, not exclusive, factors bearing
on that assessment include whether the theory or technique
can be and has been tested, whether it has been subjected to
peer review and publication, "the known or potential
rate of error . . . and the existence and maintenance of
standards controlling the technique's operation, "
and general acceptance of the theory or technique in the
scientific community. Id. at 594. This gatekeeping
function "applies not only to testimony based on
'scientific' knowledge, but also to testimony based
on 'technical' and 'other specialized'
knowledge." Kumho Tire, 526 U.S. at 141. The
inquiry must be applied to the facts of each particular case.
supreme court adopted a three-part inquiry to determine the
admissibility of expert testimony in Cheairs v. State ex
rel. Department of Transportation &
Development, 03-680 (La. 12/3/03), 861 So.2d 536.
Quoting from the Eleventh Circuit's opinion in City
of Tuscaloosa v. Harcros Chemicals, Inc., 158
F.3d 548, 562 (11th Cir.1998), cert. denied, 528
U.S. 812, 120 S.Ct. 309, and cert. denied, 528 U.S.
812, 120 S.Ct. 47 (1999), the court held expert testimony is
(1) the expert is qualified to testify competently regarding
the matters he intends to address; (2) the methodology by
which the expert reaches his conclusions is sufficiently
reliable as determined by the sort of inquiry mandated in
Daubert; and (3) the testimony assists the trier of
fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to
determine a fact in issue.
Cheairs, 861 So.2d at 542. The Daubert
evaluation applies to the second of these prongs.
trial court heard the defendant's Daubert motion
on September 21, 2016. The state offered Michelle Cazes as
its firearms analysis expert. Ms. Cazes worked at the Louisiana
State Police Crime Laboratory in crime scene and firearms
analysis. She began her college studies at Southeastern
Louisiana University, majoring in accounting. However, when
Our Lady of the Lake College in Baton Rouge began offering a
degree in forensic science, Ms. Cazes transferred and
obtained her degree in that field.
graduation, Ms. Cazes was accepted into a two-year training
process with a Bureau of Alcohol, Tobacco, and Firearms (ATF)
training academy. During the first phase of the program, she
did research and wrote papers. In the second phase, she spent
four months in Maryland "doing hands on exercises and
training." The third phase gave her "mock evidence
to work up like casework." She returned to Maryland for
the fourth phase to "testify in like a mock trial."
She received a certificate and has completed a competency and
proficiency test each year
outside company administers annual tests to evaluate Ms.
Cazes's competency at the crime lab. Ms. Cazes has not
given any wrong answers in any of the tests; she testified,
"I've had all the correct answers." Ms. Cazes
previously qualified as an expert forensic firearm analyst in
four different Louisiana courts. At the time of the
Daubert hearing, Ms. Cazes was in the process of
becoming certified in firearm analysis with the Association
of Firearm and Tool Mark Examiners (AFTE). She was already
certified in crime scene analysis. Additionally, the crime
lab is accredited by AFTE and falls under its protocol.
Cazes's method of analysis is to examine, compare, and
reach a conclusion regarding evidence. Everything is
verified. By doing the analysis this way, "developing
the class characteristics, individual detail, and then the
conclusion, every one [sic] would also come up with the same
thing" because her procedures are generally accepted
in the scientific community.
to Ms. Cazes, the procedures have also been subjected to peer
review, published in peer-reviewed journals, and shown to be
reliable. Validation studies over the past fifty years have
shown the ability to "distinguish between two firearms
[and] the markings between them[.]" When "anything
falls in the threshold or the gray area[, ] and it
doesn't meet the threshold for identification, " Ms.
Cazes's practice is to "err on the side of
caution" and give a result of inclusive.
case, Ms. Cazes received one live cartridge, one mushroom
copper-jacketed bullet, two nine-millimeter cartridge cases
(fired rounds), and three .40 caliber cartridge cases for
analysis. She was able to identify the fired bullet as a
nine-millimeter caliber. The same bullet was tested for DNA
at the crime lab.
Cazes compared the two nine-millimeter cartridge cases to
each other and determined they were "fired in the same
unknown firearm." Additionally, "the jacketed
hollow point cartridge . . . was microscopically compared to
the cartridge case . . . and was determined to have been
cycled through the same action of the same unknown
firearm." Ms. Cazes found the markings on the
nine-millimeter cases and the live round to be "similar
as far as they showed the same . . . class characteristics
and then some - the same individual detail."
further microscopically compared the three .40 caliber
cartridge cases and determined they had been fired from
"the same unknown Glock or Glock-type firearm." She
examined breech, chamber, extractor, ejector, and feed marks.
The .40 caliber cases seemed to be fired from the same
weapon; they "had the same firing pin shape, size, and
then the individual detail." Ms. Cazes's findings
were twice-verified, once in technical review and again in
administrative review. She believed there was no rate of
error. The protocol uses pattern matching. Ms. Cazes
[Y]ou want the patterns to line up identical[ly]. If
they're slightly off or completely off - if they're
slightly off but you have some that line up, then that - like
I said, that would go in the inconclusive area. If they
exactly line up, that would be the identification. And then
if they're totally off or just totally different class
characteristics, then that would be the elimination.
bullet found with the victim's blood on it was fired from
a nine-millimeter firearm, but Ms. Cazes could not say it was
fired from the same weapon as the other cases. She testified
it would require the gun or another bullet from it to make
that comparison. Because no firearms were recovered in this
case, and she could not identify the firearm from which that
bullet was fired, she concluded two or three weapons could
have been fired at the scene. The trial court found Ms.
Cazes's methodology was accepted under the
Daubert standard, and it accepted her as a forensic
firearm analyst. The state proved her educational background
in the field of forensic science, a specific in-depth
training program in forensic science, and her proficiency in
the field, verified by annual competency tests. The defendant
submitted nothing to show she was not qualified to testify as
an expert in forensic firearms analysis in this case.
that the state presented sufficient evidence to satisfy the
standards of Daubert, 509 U.S. 579, and of
Cheairs, 861 So.2d 536. Ms. Cazes testified her
methodology was verified, accepted in the scientific
community, subjected to peer review, and shown to be
reliable. Others doing the same analysis would reach the same
conclusion because of these standard procedures. This
assignment of error lacks merit.
OF ERROR NUMBER FOUR
defendant contends the district court erred when it refused
to re-open the Daubert hearing after the defendant
brought a recent scientific report to the court's
attention and filed it into the record. He alleges the report
cast considerable doubt on the scientific basis for Ms.
Cazes's procedure and conclusion.
assignment of error, the defendant states the law allows a
trial court to review and reconsider an interlocutory ruling
prior to final judgment if substantial justice is served. The
defendant contends this applies to the report he submitted to
the court. The defendant makes no argument. He cites only one
case, Ryan v. State Farm Mutual Automobile Insurance
Co., 10-961, 10-962 (La.App. 1 Cir. 12/22/10), 68 So.3d
563, writ denied, 11-172 (La. 4/1/11), 60 So.3d
1250. That case merely states "a trial judge may, at his
discretion, change the substance or the result of
interlocutory rulings." Id. at 566.
defendant's brief fails to identify how the trial court
abused its discretion in failing to reopen the
Daubert hearing. The brief notes, "This request
was addressed at [Record] Pages 199-209; 220-234; [and]
715-731." However, the defendant may not incorporate
arguments made in the trial court into his appellate brief by
reference. Bennett v. Hughes, 03-1727 (La.App. 4
Cir. 5/26/04), 876 So.2d 862, writ denied, 04-1599
(La. 6/30/04), 877 So.2d 122. Such a reference is
insufficient to constitute briefing of this assignment of
error. Uniform Rules- Courts of Appeal, Rule 2-12.4;
Theriot v. Bourg, 96-466 (La.App. 1 Cir. 2/14/97),
691 So.2d 213, writ denied, 97-1151 (La. 6/30/97),
696 So.2d 1008.
defendant's reply brief, however, argues knowledge of
scientific information casting doubt on the validity of an
expert's qualifications, procedure, or opinion requires
the trial court to reopen the Daubert hearing.
Failure to reopen it, the defendant contends, is an abuse of
the trial court's discretion.
Rules-Courts of Appeal, Rule 2-12.6, requires a reply brief
to be "strictly confined to rebuttal of points urged in
the appellee's brief." Where a reply brief
"goes beyond mere rebuttal and attempts to raise a new
legal argument[, ]" an appellate court should not
address the new issues. McGregor v. Hospice Care of
Louisiana in Baton Rouge L.L.C., 09-1355, 09-1356, p. 9
(La.App. 1 Cir. 2/12/10), 36 So.3d 281, 287 n.2, writ
denied, 10-832 (La. 5/28/10), 36 So.3d 258.
defendant's original brief did not allege an abuse of
discretion by the trial court. While it argued the trial
court could have reopened the Daubert hearing, it
did not state why it should have. We do not consider the
arguments advanced in the reply brief as proper rebuttal
consider this assignment of error abandoned. See
Bennett, 876 So.2d. 869.
OF ERROR NUMBER ONE
defendant contends the trial court erred by denying his
request for funds to hire a firearms expert. Once again, the
defendant refers to his numerous filings in the trial court
to explain his need for a firearms expert. Our courts do not
allow this practice. Uniform Rules-Courts of Appeal, Rule
2-12.4; Theriot, 691 So.2d 213.
none of the motions to which the defendant's appeal brief
refers requested funding except "Defendant's Motion
for Declaration of Indigency, and for Funds for a Forensic
Firearms Expert, " filed on October 18, 2016. That
motion sought funding to refute Ms. Cazes's expert
testimony "that in her scientific opinion the bullets
and/or cartridge casings were cycled through the action
and/or fired from the same unknown firearm."
defendant's appellate brief states, "We also know
now that the bullet casings may have fingerprints on them,
and that evidence can be obtained with the assistance of a
firearms expert." That issue was not brought before the
trial court. Rather, counsel for both parties questioned Ms.
Cazes at the Daubert hearing about her methodology
of comparing bullets and casings. She concluded two or
possibly three firearms were present at the scene. Again at
trial, she testified to the possibility of three guns firing
the bullet fragment and cartridge casings.
into her trial testimony, during cross-examination, Ms. Cazes
was asked for the first time about fingerprints being set
into bullets when they are fired. This issue was not raised
before that point. Ms. Cazes testified fingerprints could be
obtained from a live round or from casings "picked up
after the firing process[.]" She was questioned about
whether body salts could etch fingerprints into a casing when
a gun was fired. She testified that as a firearms expert she
does not test for fingerprints and further testing for that
process was not performed by the lab in this case because it
was not requested.
court may not consider the defendant's request to fund an
expert to testify about whether fingerprints can be etched on
fired casings because the issue was not raised in the trial
court. The defendant never asked the trial court anything
about funding for such tests. Although his brief states we
"know now" about this possibility, he identifies no
source of that knowledge or how or when he became aware of
it. No expert testified regarding this possibility or whether
this actually occurs. Defense counsel discussed the theory
with Ms. Cazes at trial:
Q. . . . . Somebody loading bullets will probably finger the
bullets in order to load them into a cylinder or a magazine,
right? They might touch it.
A. Yes, sir.
Q. And so by touching them, it leaves tiny quantities of
salty sweat with each time they touch it, right?
Q. All right. And then when the bullet is fired away from its
casing, there's tremendous heat and instantly transfers
that salty sweat to the metal. It vaporizes the moisture, and
it sets the salts for those prints. Does that make sense?
A. Yes, sir.
Q. Okay. And the salts become molten and a chemical reaction
with metal etches of the fingerprints are permanently into
A. Yes, sir.
Q. Makes sense.
colloquy is nothing more than counsel's testimony, not
questioning, about a theory not established by any evidence
other than Ms. Cazes's one word responses. If the
defendant wanted to establish this possibility, which seems
to indicate that it might be possible, and obtain the
concomitant tests, he could have asked the trial court to
fund the hiring of this type of expert. He did not, and he
may not raise the issue on appeal. Uniform Rules-Courts of
Appeal, Rule 1-3.
defendant's appellate brief, however, correctly argues
the Fourteenth Amendment guarantees him a fair opportunity to
present a defense. To obtain funding for an expert witness,
the defendant must show "a need for the funding by
establishing with a reasonable degree of specificity what
type of expert is needed and the purpose for which the expert
is required." State v. Lee, 05-2098, p. 41 (La.
1/16/08), 976 So.2d 109, 137, cert. denied, 555 U.S.
824, 129 S.Ct. 143 (2008). He must also show "it is more
likely than not the expert assistance will be required to
answer a serious issue or question raised by the State's
or defense's theory of the case, and that denial would
result in an unfair trial." Id. If a defendant
meets that burden, "the trial court is to order the
state to provide those funds." Id. The trial
court's denial is subject to review under an abuse of
discretion standard. Id.
defendant's motion sought funding to hire an expert to
refute Ms. Cazes's testimony "that in her scientific
opinion the bullets and/or cartridge casings were cycled
through the action and/or fired from the same unknown
firearm[, ]" based on the report by the President's
Council of Advisors on Science and Technology (PCAST) dated
September 2016. The report was entered into evidence at trial
as Exhibit D-3. Pertinent portions of the report were filed
into the record as part of "Defendant's Motion for
Declaration of Indigency, and for Funds for a Forensic
Firearms Expert" on October 18, 2016. The trial court
denied that motion.
defendant's motion argued the report showed Ms.
Cazes's methodology to be invalid in spite of having had
the expert's report for seven months. The defendant filed
the motion just a few weeks prior to the scheduled trial on
November 15, 2016. At the hearing of the motion on October
27, 2016, the defendant's counsel repeatedly told the
trial court he was not seeking a continuance of the trial.
However, at the hearing three weeks before the scheduled
trial, defense counsel refused to answer the trial
court's question as to whether he had an expert in mind.
The trial court tried several ways to obtain an answer to
THE COURT: My question to you, have you consulted a
firearm's [sic] expert since March? Have you consulted
one at this point in time? Yes or no? A simple question.
MR. BOUSTANY: Judge -
THE COURT: A simple question.
MR. BOUSTANY: What I do representing the defendant, I think -
THE COURT: You're requesting a firearm's [sic] expert
from this Court so you have to tell me whether you have one
or not, okay? Because you want me to pay you for it.
MR. BOUSTANY: I can't have one if [Defendant] can't
afford it. I can't expect a firearm expert to consult
with me when I don't pay them. That's why we are
here. I have to pay the firearm's [sic] expert.
THE COURT: So you're telling me you do not have a
firearm's [sic] expert and you have not contacted on[e]
or sought one out since March?
MR. BOUSTANY: No, I'm not telling you that. No, I'm
not telling you that.
Counsel told the trial court his unidentified expert:
would testify that the casings that the [S]tate's expert
said she looked at and they looked like they had similar
markings and as a result she gave an opinion that they would
have been fired from the same gun even though the gun was not
recovered, and that she has a zero error rate, that testimony
is what we need an expert for. It is that testimony itself
that we will need an expert.
defendant received Ms. Cazes's expert report in March of
2016. As previously noted, he did not seek funding for his
own expert until approximately seven months later. At the
hearing of the motion, defense counsel told the trial court:
And so the [S]tate's position appears to be that the
casings that were found came from only one gun, and that gun
had to be the defendant's gun, and that means that the
defendant shot the alleged - the victim.
contrary, the state's expert testified at the hearing she
believed, based on her examination of the casings recovered
from the scene, using pattern matching methodology, that at
least two and possibly three guns were present.
defendant seeks to challenge Ms. Cazes's qualifications
and methodology based solely on this new report.
Daubert and Kumho Tire set the standard for
determining the reliability and admissibility of expert
testimony, and that standard may not be added to, subtracted
from, or altered by an advisory report.
the question the defendant wanted an expert to answer was
whether the casings Ms. Cazes examined were fired from the
same gun. Specifically, he said he wanted an expert to say
there was more than one gun fired at the scene. Ms. Cazes
answered that question favorably to the defendant. She
testified at the Daubert hearing and at trial about
the possibility of three guns being present at the scene. The
jury heard her testify she could not determine whether the
bullet fragment recovered that had the victim's DNA was
fired from the same gun as the casings because she did not
have a gun to examine. Thus, the defendant did not show how a
firearms expert would have aided him in the defense of his
case, and the trial court did not err in denying the motion.
OF ERROR NUMBER TWO
defendant contends the trial court erred by allowing the
state to tell the jury in its closing argument that it should
accept the testimony and opinions of the state's firearms
expert when he never called a firearms expert to contradict
that testimony, and his motion to fund such an expert was
the state's closing rebuttal argument, counsel said:
Mr. Boustany, the defendant, [sic] got up here and - and he
gave his opinion about how this stuff got there, and how the
shots were fired and everything. Did you hear one defense
expert get up there and say what he said? There was no
defense testimony that supported Mr. Boustany's
statements about how these shots were fired (indicating) and
how that stuff got there. Not one expert witness called by
the defense. There was no evidence of that.
counsel requested a sidebar conference where he pointed out
the defendant had no obligation to present any evidence, and
the burden was on the state. He asked "that [the state]
not make that argument, " and he asked for a jury
instruction to disregard counsel's remarks.
trial court responded, "Okay. This - this is the way I
look at it: He can make the argument that's your
presentation. It's just your opinion." Defense
counsel agreed. The trial court then told counsel, "But
you can't say the defendant did not put on any
evidence." Again, defense counsel agreed. When defense
counsel again requested an instruction, the trial court told
the jury, "Ladies and gentlemen of the jury, the
defendant - again, the defendant does not have to put on any
evidence, okay. Also, the statements of the attorneys is
[sic] not evidence." Defense counsel lodged no objection
and made no further mention regarding the issue.
assignment of error lacks merit. Defense counsel stopped the
state's closing argument, requested the sidebar, and
agreed with what the trial court told the state's
counsel. He requested a special instruction to the jury, and
he got it. The defendant has identified no erroneous conduct
by the trial court regarding this issue.
OF ERROR NUMBER FIVE
defendant contends the trial court erred by allowing the
state unlimited challenges for cause against all prospective
jurors who expressed reservations about a mandatory life
sentence for a seventeen-year-old child. In other words, he
argues too many potential jurors were excused because they
may have been unable to convict a minor who would be
sentenced to mandatory life in prison.
Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455
(2012), the United States Supreme Court held mandatory life
imprisonment without the possibility of parole for defendants
under the age of eighteen at the time of the offense violated
the federal constitutional prohibition on cruel and unusual
punishment. The defendant here was seventeen years old at the
time of this offense.
voir dire, the state told prospective jurors the
sentence for a defendant convicted of second degree murder is
mandatory life in prison. When one potential juror asked
whether such a defendant would be eligible for parole, both
the state and the trial court told the potential juror the
law required life without benefit of probation, parole, or
suspension of sentence.
counsel did not contemporaneously object to this misstatement
of the law during that particular discussion. When the state
requested specific potential jurors be excused for cause,
only then did defense counsel state, outside the presence of
the venire, "actually the U.S. Supreme Court has said
you can't give a juvenile life[.]" This statement by
defense counsel is also not a correct statement of law. Even
then, he did not object to what was told to the venire.
Rather, he objected to the state's causal challenge,
stating, "I don't think that [the potential juror]
has said that if the Court instructed him that he would have
to apply the law that he could not apply the law." His
objection does not address the misstatement of the law.
in voir dire, the state again asked the panel
whether the fact the defendant would receive life
imprisonment with a guilty verdict would prevent the jurors
from returning such a verdict. Again, defense counsel did not
object. He did not assign the erroneous statement of the law
as error in his appellate brief. Indeed, had he done so, this
court would be prohibited from considering such an assignment
pursuant to La.Code Crim.P. art. 841 because counsel made no
defendant's argument is unreasonably circular.
Presumably, he would have wanted to seat people on the jury
who could not convict him of second degree murder because
they did not want him sentenced to mandatory life. The reason
those potential jurors thought the defendant would receive a
life sentence resulted from the trial court's and the
state's erroneous portrayal of the law. The defendant did
not object to that erroneous portrayal nor did he ask any
questions regarding this issue during his questioning of
potential jurors. Had he done so and had the trial court
correctly instructed the jury on the law, those potential
jurors who were released for cause for that reason may have
been able to fairly convict the defendant as charged, knowing
of the possibility of parole. Defense counsel, however, never
actually made an objection on the record and never asked for
a corrected instruction.
defendant's reply brief erroneously states the defendant
asked the trial court to correctly instruct the jury on the
penalty for second degree murder before the trial, and the
trial court gave the wrong instruction. The record reflects
no such request. The trial court again advised the jury
immediately before opening statements and during jury
instructions before they retired, that second degree murder
carried a mandatory life sentence with no possibility for
parole. The defendant entered no objection. In fact, when
asked, he specifically said he had no objection to the jury
instructions. As shown above, he merely argued against the
state's challenges for cause.
reply brief further argues "all of the prospective
jurors heard the wrong law, and all had to commit to
following that unconstitutional law. None should have been
seated in the first place. All the defendant could do was to
try to remove the worst of the jurors . . . ." The
defendant did not make this argument in his original
appellate brief. He may not raise new arguments in his reply.
Uniform Rules-Courts of Appeal, Rule 2-12.6.
the defendant used only eleven of his twelve peremptory
challenges. This assignment of error does not complain that
the defendant had to use his peremptory challenges in order
to exclude "the worst of the jurors"; it complains
that the state was allowed to remove too many jurors ...