United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE.
matter was referred to this United States Magistrate Judge
for the purpose of conducting a hearing, including an
evidentiary hearing, if necessary, and submission of proposed
findings of fact and recommendations for disposition pursuant
to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable,
Rule 8(b) of the Rules Governing Section 2254 Cases in the
United States District Courts. Upon review of the record, the
Court has determined that this matter can be disposed of
without an evidentiary hearing. See 28 U.S.C. §
2254(e)(2). Therefore, for all of the following reasons,
IT IS RECOMMENDED that the petition be
DISMISSED WITH PREJUDICE.
Trent Lyons, is a state prisoner incarcerated at the
Louisiana State Penitentiary in Angola, Louisiana. On October
26, 2012, he was convicted of second degree murder under
Louisiana law. On January 14, 2013, he was sentenced to a
term of life imprisonment without benefit of probation,
parole, or suspension of sentence. On January 31, 2014, the
Louisiana Fifth Circuit Court of Appeal affirmed his
conviction and sentence. The Louisiana Supreme Court then denied
his related writ application on November 7, 2014,
his motion for reconsideration on January 16,
about March 16, 2015, petitioner filed an application for
post-conviction relief with the state district
court. That application was denied on August 24,
2015. His related writ applications were then
likewise denied by the Louisiana Fifth Circuit Court of
Appeal on November 3, 2015,  and by the Louisiana Supreme
Court on September 23, 2016.
22, 2017, petitioner filed the instant federal application
seeking habeas corpus relief. The state thereafter filed a
response conceding that the application was timely but
arguing that petitioner's claims do not warrant
Standards of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) comprehensively overhauled federal
habeas corpus legislation, including 28 U.S.C. § 2254.
Amended subsections 2254(d)(1) and (2) contain revised
standards of review for pure questions of fact, pure
questions of law, and mixed questions of both. The amendments
“modified a federal habeas court's role in
reviewing state prisoner applications in order to prevent
federal habeas ‘retrials' and to ensure that
state-court convictions are given effect to the extent
possible under law.” Bell v. Cone, 535 U.S.
685, 693 (2002).
pure questions of fact, factual findings are presumed to be
correct and a federal court will give deference to the state
court's decision unless it “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2); see also 28 U.S.C. §
2254(e)(1) (“In a proceeding instituted by an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear
and convincing evidence.”).
pure questions of law and mixed questions of law and fact, a
federal court must defer to the state court's decision on
the merits of such a claim unless that decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. §
2254(d)(1). Courts have held that the “‘contrary
to' and ‘unreasonable application' clauses [of
§ 2254(d)(1)] have independent meaning.”
Bell, 535 U.S. at 694.
the “contrary to” clause, the United States Fifth
Circuit Court of Appeals has explained:
A state court decision is contrary to clearly established
precedent if the state court applies a rule that contradicts
the governing law set forth in the [United States] Supreme
Court's cases. A state-court decision will also be
contrary to clearly established precedent if the state court
confronts a set of facts that are materially
indistinguishable from a decision of the [United States]
Supreme Court and nevertheless arrives at a result different
from [United States] Supreme Court precedent.
Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010)
(internal quotation marks, ellipses, brackets, and footnotes
the “unreasonable application” clause, the United
States Supreme Court has held: “[A] state-court
decision is an unreasonable application of our clearly
established precedent if it correctly identifies the
governing legal rule but applies that rule unreasonably to
the facts of a particular prisoner's case.”
White v. Woodall, 134 S.Ct. 1697, 1706 (2014).
However, the Supreme Court cautioned:
Section 2254(d)(1) provides a remedy for instances in which a
state court unreasonably applies this Court's precedent;
it does not require state courts to extend that precedent or
license federal courts to treat the failure to do so as
error. Thus, if a habeas court must extend a rationale before
it can apply to the facts at hand, then by definition the
rationale was not clearly established at the time of the
state-court decision. AEDPA's carefully constructed
framework would be undermined if habeas courts introduced
rules not clearly established under the guise of extensions
to existing law.
Id. (citations and quotation marks omitted).
Therefore, when the Supreme Court's “cases give no
clear answer to the question presented, let alone one in [the
petitioner's] favor, it cannot be said that the state
court unreasonably applied clearly established Federal
law.” Wright v. Van Patten, 552 U.S. 120, 126
(2008) (quotation marks and brackets omitted). The Supreme
Court has also expressly cautioned that “an
unreasonable application is different from an incorrect
one.” Bell, 535 U.S. at 694. Accordingly, a
state court's merely incorrect application of Supreme
Court precedent simply does not warrant habeas relief.
Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011)
(“Importantly, ‘unreasonable' is not the same
as ‘erroneous' or ‘incorrect'; an
incorrect application of the law by a state court will
nonetheless be affirmed if it is not simultaneously
the AEDPA standards of review are strict and narrow, they are
purposely so. As the United States Supreme Court has held:
[E]ven a strong case for relief does not mean the state
court's contrary conclusion was unreasonable.
If this standard is difficult to meet, that is because it was
meant to be. As amended by AEDPA, § 2254(d) stops short
of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings. It preserves
authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state
court's decision conflicts with this Court's
precedents. It goes no farther. Section 2254(d) reflects the
view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through
appeal. As a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state
court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)
(citations omitted; emphasis added); see also
Renico v. Lett, 559 U.S. 766, 779 (2010)
(“AEDPA prevents defendants - and federal courts - from
using federal habeas corpus review as a vehicle to
second-guess the reasonable decisions of state
Supreme Court has expressly warned that although “some
federal judges find [28 U.S.C. § 2254(d)] too confining,
” it is nevertheless clear that “all federal
judges must obey” the law and apply the strictly
deferential standards of review mandated therein. White
v. Woodall, 134 S.Ct. 1697, 1701 (2014).
direct appeal, the Louisiana Fifth Circuit Court of Appeal
summarized the facts of this case as follows:
On October 18, 2011, Wilbert Decou and defendant engaged in
an altercation stemming from an incident between defendant
and Desmond Parker, the son of Decou's girlfriend, which
had occurred on the previous evening.
On the date of the incident, defendant approached Decou and
asked him if he wanted to fight. Defendant then went back in
the direction from which he came. Decou went inside his
house, and then returned wearing gloves and appeared prepared
for a fight. Decou had cut the fingers off of his gloves.
Decou was also wearing a shirt.
Defendant returned, told Decou to come on and fight and
stated that he fights for a living. Decou put his arms up in
a defensive position, and then, Decou and defendant began
throwing fists at each other. The fight was witnessed by two
men, Warren Mosley and Otis Gary, and also by Desmond Parker.
According to Gary, not less than four or five punches passed
between defendant and Decou.
During the three minute fight, Decou caused defendant to move
backwards. Once defendant realized that Decou was really
fighting back and was unafraid, defendant pulled out a
military knife with a seven to eight inch blade. When
defendant pulled the knife, Decou ran towards the street.
After it appeared that defendant was gaining ground, Decou
turned around. Decou raised his hands in an unsuccessful
attempt to block the knife or in an attempt to swing at
defendant. As soon as defendant caught up with Decou, he
jammed Decou under his arm with a knife, and Decou dropped
down to his knees in the street. According to Gary, defendant
said, “I told you I was an ‘f-ing' killer,
now look you see, ” while standing over Decou.
According to Mosley, after the defendant stabbed Decou, he
stated that this is what he did for a living.
Parker testified that he thought Decou was knocked out and
had only lost the fight. After he walked towards Decou to
help him up, he saw a pool of blood coming from Decou's
side. Parker removed his own shirt and used it to put
pressure on Decou's wound to stop the bleeding. As Parker
and a nurse from across the street performed CPR and
attempted to revive Decou, Parker saw defendant running away.
Defendant later returned to the scene, but then again left.
Thomas Evans, a forensic death investigator for the JPSO and
a paramedic, was one of the responders to the scene. At
trial, he testified that his responsibilities were to
identify the body, notify the family, and locate and document
any wounds, property, clothing, and evidence to relay to the
pathologist. He noticed a penetrating wound to the
deceased's right chest. After searching the
deceased's clothing and body, he found a pocket knife and
metal wrapped in electrical tape in the deceased's right
front pocket. The pocket knife was folded, closed, void of
blood and was returned to the deceased's family. Also,
Evans removed cloth gloves, which were not weighted, from the
deceased's hands. In addition, the deceased was
shirtless, and a shirt was found underneath the body.
The defense disputed Mr. Mosley and Mr. Gary's version of
events. Randon Brown testified at trial on behalf of the
defense that Decou had been like a second father to him for
10 years, and he would see him every day. According to Brown,
after the dispute between defendant, and Parker and his
mother had been resolved, Decou said that he and defendant
were going to fight every day and that he would “f* * *
that n* * * * * up.” Then, Decou prepared to fight by
putting on gloves, removing his shirt and switching his
slippers for tennis shoes.
After defendant pulled up in his driveway and exited his car,
defendant and Decou began fighting in the middle of the
street. Brown testified that he witnessed Decou pull the
knife out of his back pocket, and that he, Brown, knew it was
a knife because he saw the glare. When Decou pulled out the
knife, defendant grabbed his arm and wrestled with him. Then,
Decou was on the ground, and defendant walked away moving
toward him. Brown testified that as defendant walked towards
him, he saw that defendant did not have anything in his hand.
He also saw that defendant had cuts on his arm and his eye
was bleeding. Brown testified that he was telling the truth
and was not testifying because he did not like Decou. Brown
stated that he did not want to come forward at first because
he was stuck in the middle and Decou was his family and a
friend. He explained that he was testifying under subpoena
and if he had a choice he would not have come.
The day after the incident, defendant accompanied by his
sisters and girlfriend, met with an attorney located at
Tulane Avenue and Broad Street. Defendant's girlfriend,
Cindy Armstead, testified that defendant's arms were cut
and swollen, and his face was swollen. She stated that the
defendant did not have those marks before the fight. In her
opinion, the wounds appeared to be stab wounds and appeared
to be fresh, although she also admitted that there was
scabbing. She further stated that defendant kept repeating
that Decou had wanted to fight. After pictures of defendant
were taken at the law office, he voluntarily turned himself
into at the Jefferson Parish jailhouse and was booked with
second degree murder.
Autopsy results revealed that Decou died as a result of a
single stab wound to the chest which resulted in lethal
injury to his heart and pulmonary artery. The wound was
consistent with a single-edged blade like a kitchen knife,
and it was unable to be determined whether or not the blade
was serrated. The stab wound was more than two inches in
length and six inches in depth.
claims that the prosecutor engaged in misconduct by failing
to disclose material favorable evidence to the defense in
violation of Brady v. Maryland, 373 U.S. 83 (1963).
In the state post-conviction proceedings, the district court
denied that claim, holding:
Petitioner claims that the State failed to disclose evidence
that witness Gary sought inducements for his testimony at
trial. However, petitioner fails to provide any evidence in
support of this claim. Petitioner fails to state with any
particularity the factual basis for relief. LSA-C.Cr.P. art.
926(3). On the showing made, this claim will be
thereafter sought review by the Louisiana Fifth Circuit Court
of Appeal. That court likewise denied relief, holding:
[R]elator alleged that the State failed to disclose evidence
that the witness, Otis Gary, sought inducements in exchange
for his trial testimony against relator. Again, the district
court, citing La. C.Cr.P. art. 926(B)(3), found that
“petitioner fails to provide any evidence in support of
this claim. Petitioner fails to state with any particularity
the factual basis for relief.”
In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), the United States Supreme Court held
“the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of
the prosecution.” Id., 373 U.S. at 87, 83
S.Ct. at 1196-97. The State's constitutional duty to
disclose favorable evidence is not breached unless the
omission is sufficiently significant to result in the denial
of the defendant's right to a fair trial. State v.
Jacobs, 99-991 (La. 5/15/01), 803 So.2d 933, 948,
cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151
L.Ed.2d 707 (2002).
Even though the State does not possess or have knowledge of
evidence, it is not necessarily absolved of its
responsibilities under Brady because the prosecutor
has a duty to learn of any favorable evidence known to the
police and others acting on the government's behalf in
the case. State v. Louviere, 00-2085 (La. 9/4/02),
833 So.2d 885, 896, cert. denied, 540 U.S. 828, 124
S.Ct. 56, 157 L.Ed.2d 52 (2003). The State is not obligated,
however, to furnish a defendant with information he already
has or can obtain with reasonable diligence.
Louviere, 00-2085 at 14, 833 So.2d at 897.
There is no Brady violation where a defendant had
knowledge of the essential facts permitting him to take
advantage of any exculpatory information or when the evidence
is available to defendant, and therefore, the information
cannot be found to have been suppressed by the State. Rather,
the court indicated that Brady proscribes when there
is a withholding of favorable and material evidence from the
defense. State v. Hobley, 98-2460, p. 25 (La.
12/15/99), 752 So.2d 771, 786 n.10, cert. denied,
531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000).
Our review of this writ application reveals that
relator's allegation of a Brady violation is
vague and conclusory. First, in the instant matter, relator
does not specifically allege which, if any, information was
not known to him or his trial counsel prior to trial.
Further, as to his specific claim that Mr. Gary sought an
inducement in exchange for his trial testimony, relator has
failed to provide any evidence of inducements sought or given
in exchange for testimony. We find no error in the district
court's ruling ….
Louisiana Supreme Court then likewise denied relief, holding:
“Relator … fails to show the state withheld
evidence in violation of Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215
AEDPA places severe limitations on this Court's review of
the state court's decision rejecting petitioner's
Brady claim. The United States Fifth Circuit Court
of Appeals has explained:
Under AEDPA, [a federal court] do[es] not decide de
novo whether a state prisoner has sufficiently proven a
Brady violation. See Yarborough v.
Alvarado, 541 U.S. 652, 665, 124 S.Ct. 2140, 158 L.Ed.2d
938 (2004) (“We cannot grant relief under AEDPA by
conducting our own independent inquiry into whether the state
court was correct as a de novo matter.”);
Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002)
(en banc) (“We have no authority to grant
habeas corpus relief simply because we conclude, in our
independent judgment, that a state supreme court's
application of [federal law] is erroneous or
incorrect.”). Rather, [a federal court] decide[s]
whether the state court's Brady determination
resulted in a decision that is contrary to, or involved an
unreasonable application of, clearly established federal law.
Busby v. Dretke, 359 F.3d 708, 717 (5th Cir. 2004).
Dickson v. Quarterman, 462 F.3d 470, 477-78 (5th
noted, in the last reasoned state court opinion addressing
petitioner's claim, the Louisiana Supreme Court correctly
identified Brady as the clearly established federal
law governing petitioner's claim. Because the state court
correctly identified controlling precedent and because
petitioner has not pointed to (and the undersigned's
research has not found) a United States Supreme Court case
with materially indistinguishable facts reaching a contrary
result, this Court need only determine whether the state
court's application of Brady was
“unreasonable.” For the following reasons, it was
United States Supreme Court has held:
A Brady violation occurs when the government fails
to disclose evidence materially favorable to the accused.
This Court has held that the Brady duty extends to
impeachment evidence as well as exculpatory evidence, and
Brady suppression occurs when the government fails
to turn over even evidence that is known only to police
investigators and not to the prosecutor.
Youngblood v. West Virginia, 547 U.S. 867, 869-70
(2006) (internal citations and quotation marks omitted).
Therefore, to prevail on a Brady claim, a petitioner
“must show that (1) the state withheld evidence, (2)
the evidence was favorable to the accused, and (3) the
evidence is material to guilt or punishment.”
DiLosa v. Cain, 279 F.3d 259, 262-63 (5th Cir.
argues that the state suppressed impeachment evidence, i.e.
information that Otis Gary sought the state's assistance
in resolving an outstanding criminal matter in exchange for
his testimony at petitioner's trial. However, the record
conclusively disproves that claim. This issue was explored in
great detail at the time Gary testified at trial. At the
commencement of his testimony, Gary testified that he had an
outstanding traffic attachment but understood that he would
receive no assistance from the state on that matter in
exchange for his testimony. On cross-examination, he then
denied that he had asked the state for assistance with
respect to the attachment. However, at that point in
Gary's testimony, the prosecutor stated that Gary had in
fact requested assistance, although such assistance was
denied. The prosecutor further noted that he had previously
provided that same information in a letter to defense
counsel, although defense counsel denied reading the
letter. The parties eventually entered into the
following stipulation concerning the matter in the presence
of the jury:
MR. SCHLEGEL [the prosecutor]:
Your Honor, the State will offer the following stipulation.
An attachment was issued by a judge in Second Parish Court,
Parish of Jefferson, on March 14th, 2012, under Case Number
S836062, for the arrest of Otis Gary.
Does the defense accept?
MR. REGAN [defense counsel]:
Otis Gary requested assistance from Mr. Scott Schlegel
regarding the above attachment, but that request was denied
by Mr. Schlegel. Mr. Gary was specifically told that he would
receive nothing in exchange for his testimony. Does the
defense accept that stipulation?
I accept that stipulation.
it is clear that the information at issue, i.e. that Gary
unsuccessfully sought the state's assistance with respect
to his own criminal matters in exchange for his testimony in
petitioner's case, was relayed to the defense prior to
or, at the very latest, at trial, there is no basis
for concluding that the state court decision denying
petitioner's Brady claim constituted an
unreasonable application of clearly established federal law
as determined by the Supreme Court of the United States. On
the contrary, “[t]he Supreme Court has never
expressly held that evidence that is turned over to the
defense during trial has been ‘suppressed'
within the meaning of Brady.” Powell v.
Quarterman, 536 F.3d 325, 335 (5th Cir. 2008) (emphasis
petitioner has failed to demonstrate that the state
court's decision denying his Brady claim
“was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States, ”
28 U.S.C. § 2254(d)(1), this Court should defer to the
state court's decision and likewise deny the claim.
Right to Present a Defense/Right to
next claims that the trial court denied him his right to
present his defense by unduly hampering his ability to
cross-examine Desmond Parker. In the state post-conviction
proceedings, petitioner presented this as two separate but
related claims. The district court denied relief, first
addressing the purported denial of petitioner's right to
present a defense and holding:
Petitioner fails to state with any particularity the factual
basis for relief. LSA-C.Cr.P. art. 926(3). As the State
points out in its response, petitioner references a portion
of the transcript describing the victim's violence with
the witness's mother, and not of the incident resulting
in the charged offense. This is not relevant to the case at
hand. Petitioner fails to show how counsel was presented
[sic] from presenting overt, hostile or violent acts of the
victim towards the defendant.
Furthermore, the record, as well as the appellate decision,
reflects that defense counsel did in fact present evidence
supporting the defense's theory of self-defense. The
court finds no merit to this claim.
the remaining aspects of the claim, the district court then
Petitioner fails to state with any particularity the factual
basis for relief. LSA-C.Cr.P. art. 926(3). Petitioner claims
that the trial court erred in limiting defense counsel's
cross-examination of Desmond Parker in regards to the
victim's violence and overt acts. However, as the State
points out, the portions of the transcript which are
referenced by petitioner refer to the testimony of Warren
Mosely, not Desmond Parker. Petitioner fails to provide any
evidence in support of this claim, and fails to show any
prejudice. On the showing made, this claim will be
thereafter sought review by the Louisiana Fifth Circuit Court
of Appeal. Likewise treating this as two separate claims,
that court also denied relief. The Court of Appeal first
In its August 24, 2015 ruling, the district court considered
relator's argument that the trial court erred in denying
him the right to present his theory of self-defense and
present the victim's violent propensities and overt acts
toward him. Again, the district court, citing La. C.Cr.P.
art. 926(B)(3), denied his claim on the basis that relator
failed to state with any particularity the factual basis for
relief. Further, the district court noted that the record, as
well as the appellate decision, reflected that trial counsel
did present evidence supporting defense's theory of
Here, we find that relator has failed to demonstrate how the
district court erred in its denial of his claim that the
trial court prevented him from presenting his self-defense
theory. Thus, we denied relief.
Court of Appeal then continued:
Again, regarding this claim, the district court, citing La.
C.Cr.P. art. 926(B)(3), found that relator failed to state
with any particularity the factual basis for relief and
denied relief. In denying this claim, the district court
stated: “However, as the State points out, the portions
of the transcript which are referenced by petitioner refer to
Warren Mosely, and not Desmond Parker. Petitioner fails to
provide any evidence in support of this claim, and fails to
show any prejudice.”
Our review of the writ application and its attachments reveal
that relator has failed to demonstrate how the district court
erred in its denial of his claim that he was denied his right
to confront his accusers and cross-examine the State's
witnesses. Thus, we deny relief.
Louisiana Supreme Court then also denied relief, holding that
petitioner's claim was “repetitive and/or
unsupported. La.C.Cr.P. art. 930.2; La.C.Cr.P. art.
entitled to federal habeas relief, petitioner must show that
the foregoing state court decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). For the following
reasons, it is clear that he has not made that showing.
United States Supreme Court has held: “Under the Due
Process Clause of the Fourteenth Amendment, criminal
prosecutions must comport with prevailing notions of
fundamental fairness. We have long interpreted this standard
of fairness to require that criminal defendants be afforded a
meaningful opportunity to present a complete defense.”
California v. Trombetta, 467 U.S. 479, 485 (1984);
accord Boyer v. Vannoy, 863 F.3d 428, 451 (5th Cir.
the United States Supreme Court has expressly noted:
While the Constitution thus prohibits the exclusion of
defense evidence under rules that serve no legitimate purpose
or that are disproportionate to the ends that they are
asserted to promote, well-established rules of evidence
permit trial judges to exclude evidence if its probative
value is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead
Holmes v. South Carolina, 547 U.S. 319, 326 (2006).
petitioner claimed self-defense, and he argues that he was
unduly hampered in his ability to pursue that defense by the
trial court's rulings curtailing the cross-examination of
extent that petitioner is contending that he was thwarted in
his effort to have the jury made aware of evidence indicating
that Decou, not petitioner, was the initial aggressor in this
incident, that contention is clearly rebutted by the record.
On both direct-examination and cross-examination, Parker
testified extensively concerning the incident, and several
parts of his testimony indicated that Decou instigated the
confrontation and was the aggressor in the incident.
Specifically, Parker testified:
(1) Prior to the incident, petitioner
apologized for wrongly accusing Parker's mother
of interfering in petitioner's personal business, and
Parker was satisfied with that
(2) The following day, Decou stated that he was not
satisfied with the apology, and he prepared to fight
(3) Parker then witnessed the ensuing altercation and saw
petitioner punch Decou, causing him to fall.
(4) Parker went to Decou and saw blood “squirting out
of his side.”
(5) Petitioner, who had briefly left, then returned to Decou,
but Parker told petitioner to move away.
(6) Parker speculated that Decou was
“high” from smoking marijuana prior to the
(7) Decou had a “bad temper” and was
“frequently” in fights.
therefore clear that the defense was not deprived of the
opportunity to make the jurors aware that Decou's actions
provoked the altercation which resulted in his
extent that petitioner is also contending that the trial
court improperly limited in his attempt to elicit evidence
that the victim had a propensity for violence, that
contention is likewise meritless. As already noted, Parker
testified that Decou had a “bad temper” and was
“frequently” in fights. Moreover, although the
trial court sustained the prosecutor's objection to a
question concerning whether Decou had ever been convicted of
violence against Parker's mother, that ruling was proper.
On that issue, the transcript reflects the following exchange
during the cross-examination of Parker:
Q. … And if I could ask you about [Decou], one more
thing, I mean [Decou] and your mother had an on and off
Q. In fact, [Decou] had been convicted of beating your mom
Note my objection.
I ask that it be stricken.
Stricken from the record.
Can we - may we approach?
(Whereupon the following proceedings were held at ...