APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 15-4483, DIVISION
"A" HONORABLE RAYMOND S. STEIB, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr., Terry M. Boudreaux, Darren A. Allemand
COUNSEL FOR DEFENDANT/APPELLANT, DEXTER ALLEN Prentice L.
composed of Judges Jude G. Gravois, Robert A. Chaisson, and
Marion F. Edwards, Judge Pro Tempore
F. EDWARDS, JUDGE PRO TEMPORE JUDGE
Dexter Allen, appeals his convictions and sentences for two
counts of second degree murder and 21 counts of simple
burglary. For the reasons that follow, defendant's
convictions are affirmed, and his life sentences for his
second degree murder convictions, without benefit of parole,
probation, or suspension of sentence, are affirmed. We remand
this matter to the district court for the imposition of
determinate sentences for defendant's simple burglary
30, 2015, a Jefferson Parish Grand Jury indicted defendant,
Dexter Allen, on two counts of second degree murder (counts
one and two), violations of La. R.S. 14:30.1, and 21 counts
of simple burglary (counts five through 23), in violation of
La. R.S. 14:62. Defendant pled not guilty at his
arraignment on September 11, 2015. On October 11, 2016, the
matter proceeded to a jury trial, at the conclusion of which
on October 17, 2016, defendant was found guilty as charged on
all counts. On November 16, 2016, defendant filed a Motion
For Funds To Conduct Mitigation Investigation, for the
purpose of hiring a juvenile mitigation specialist ahead of
defendant's constitutionally mandated sentencing hearing
under Miller v. Alabama, 567 U.S. 460, 132 S.Ct.
2455, 183 L.Ed.2d 407 (2012). After a hearing on December 5,
2016, the trial court denied defendant's request for
funding. Defendant thereafter requested a continuance of his
sentencing, which the trial court granted on March 6, 2017.
On March 26, 2017, defendant filed a second motion for funds
to hire an expert to "develop evidence in
mitigation" in advance of his Miller hearing.
On April 5, 2017, the trial court denied defendant's
second request for funds, and he filed a writ to this Court
seeking supervisory review of that ruling, which was denied.
State v. Allen, 17-199 (La.App. 5 Cir. 4/18/17)
(unpublished writ), writ denied, 17-0640 (La.
6/29/17), 222 So.3d 48. On April 20, 2017, defendant filed a
motion for new trial, which was denied on that same date.
Also on that date, defendant's Miller hearing
was held, and the trial court continued sentencing.
April 21, 2017, the trial court sentenced defendant to life
in prison without benefit of parole, probation, or suspension
of sentence for counts one and two, and two years on each
count, five through 23, with each two-year sentence to run
concurrently. Defendant's motion for reconsideration of
sentence was denied following a hearing on August 22, 2017.
This appeal follows.
April 22, 2015, officers from the Jefferson Parish
Sheriff's Office were dispatched to 3717 Clifford Drive
in Metairie in response to a 9-1-1 call made by Elizabeth
Branley Pence reporting that she had found her husband, David
Pence, and her son, Nicholas Pence, shot dead in their home.
Sergeant David Roddy was the first officer on the scene; he
entered the home through the open glass storm door on the
side of the house. He described that it was "foggy"
inside the house and immediately noticed the smell of
gunpowder. He found two deceased victims with apparent
gunshot wounds, David Pence seated in a chair and Nicholas
Pence on the ground. After he and other officers cleared the
house-making sure the suspect was no longer present-he
returned to the living room and spoke with Ms. Pence, who was
covered in blood as a result of performing C.P.R. on her son.
Officers from Jefferson Parish Sheriff's Office Crime
Scene spent several hours recovering physical evidence from
the scene, notably, four 12-gauge shotgun shells as well as
lead-like projectiles; a gun was not recovered.
on the scene that night, officers canvassed the neighborhood
to speak with people to see if anyone heard or saw anything.
As a result, they became aware of several car burglaries in
the area. Additionally, officers discovered that one of the
vehicles at the Pence home, a black Mustang, had also been
burglarized. Deputy Christie Babineaux was one such officer
canvassing the neighborhood that evening, and while driving
on Ridgeway Drive, a neighboring street, she observed an Audi
with its trunk open. She spoke with the owner of the vehicle,
Shawn Suggs, who indicated that nothing appeared to be
missing, but noticed a visible palm print on the driver's
side window. Captain Chad Pitfield, who was initially at the
crime scene at the Pence home, went to the scene on Ridgeway
and was able to successfully lift the print from the Audi.
Officers also were able to recover surveillance video from
homes in the neighborhood. Detective William Roniger, the
lead detective in the homicide case, was informed of the
series of vehicle burglaries in the neighborhood surrounding
the Pence home and thought the murders and the burglaries
video from John Hennessey's home at 3625 Clifford Drive
depicts a black male approaching his wife's Porsche
Cayenne parked in the driveway, lifting the vehicle's
door handle, and then walking away. Later on in the video, a
set of feet, that came from the direction of where the
subject walked, returned to the view of the camera. At a
later point, the video depicts something falling to the
ground where the feet were. Later, a purse belonging to one
of the victims of the car burglaries was found in that
location. The feet come back into camera view later from the
direction of the Pence home.
Roniger spoke with Christopher Meyer and Alex Underwood,
friends of Nicholas Pence, who were at the Pence house
earlier the evening of April 22, 2015. Mr. Meyer and Mr.
Underwood were at the Pence home with Nicholas, hanging out
in the garage with three other friends after their flag
football game; they indicated they left around 11:40 p.m. Mr.
Underwood testified that as he was leaving the Pence home, he
noticed a white Toyota Highlander coming down the street with
no headlights on that "pulled off to the opposite side
of the street for a brief moment, " then stopped and
started traveling back down the street, but then changed
directions. Further depicted in the surveillance video was a
white Toyota Highlander with no headlights on, driving toward
the Pence home around the time of the murders. Other
surveillance video from Kathryn Fitzpatrick's home at
4000 Ridgeway Drive depicts the same white Toyota Highlander
traveling southbound on Ridgeway Drive toward West Esplanade
Avenue, which is near the on-ramp to I-10 East at Bonnabel
Boulevard. Detective Roniger testified regarding the likely
path of travel from the Pence home to the I-10 East ramp at
Bonnabel as the Automated License Plate Recognition System
(A.L.P.R.) captured a Toyota Highlander, bearing the license
plate YCB-052, getting on I-10 East at 11:56 p.m. After
getting this information, he investigated the vehicle and
discovered that it had been reported stolen in a carjacking
by the owner, Shalacia Leflore, earlier on April 22, 2015.
Detective Roniger also discovered that the fingerprints that
were taken from the Audi on Ridgeway Avenue belonged to a
person named Haraquon DeGruy.
on this information, he contacted Detective Pat DiGiovanni to
employ the U.S. Marshals Task Force to locate Haraquon DeGruy
as well as the Toyota Highlander. Detective DiGiovanni
eventually located Ms. DeGruy at an apartment complex in New
Orleans East, as well as the Toyota Highlander, which was
found parked nearby. Detective DiGiovanni decided to surveil
the Highlander as they did not know the number of the
apartment in which Ms. DeGruy was located. Ultimately, during
the day on April 24, 2015, officers who were monitoring the
Highlander observed it on the move. Officers followed the
vehicle, which was traveling at an extremely low rate of
speed, which indicated to the officers that the person in the
Highlander knew he was being followed.
officers decide to "trap" the Highlander, that is,
position their vehicles in front and behind the subject
vehicle to prevent it from moving. Officers in the vehicle
behind the Highlander activated its lights and sirens, and
officers, who were wearing the U.S. Marshal tactical vest,
exited the vehicles, announced their presence as police, and
approached the Highlander with guns drawn. As they approached
the Highlander, the vehicle turned right to escape the trap,
nearly striking Detective Harley Smith, who jumped out of its
path in order not to be hit. A high-speed chase of the
Highlander ensued, which ended up on the I-10 Highrise
Bridge, after the Highlander struck another vehicle. The
driver of the Highlander, who was later identified as
defendant, Dexter Allen, exited the vehicle and began to flee
on foot. After an extensive foot chase, officers ultimately
found defendant hiding in the Industrial Canal, and he was
taken into custody. The passenger of the vehicle, Haraquon
DeGruy, was also apprehended.
as he was involved in a car crash, was transported to a
nearby hospital to be cleared before being transported to
prison. Detective David Deroche, the lead investigator of the
vehicle burglaries, arrived at the hospital and noticed
defendant staring at his badge, which he was wearing on his
belt next to his gun. Detective Deroche described that when
he first arrived at the hospital, defendant seemed "not
concerned, playful, smiling a lot, " but when defendant
spotted his badge, his demeanor changed to "more
serious." Since Detective Deroche did not want to alert
defendant he was suspected in the homicides and wanted him to
be relaxed, he informed him that he was a "burglary
detective from Jefferson Parish…investigating some
door pulls" and that defendant had "some more
serious things to worry about concerning that car [defendant
was] driving." After Detective Deroche said that, he
described that defendant looked away and smiled and returned
to his previous demeanor.
Toyota Highlander was later processed by the Jefferson Parish
Crime Lab. Items that were stolen from the burglarized
vehicles were located in the Toyota Highlander. Latent
fingerprints were also taken from the exterior of the
Highlander, which matched both defendant and Ms. DeGruy.
Detective Thomas Gai, who participated in the processing of
the Highlander, explained that relative to the homicide
investigation, he was looking for several items he knew were
taken from inside of the Pence home, in addition to items
that would be pertinent to the burglary investigation.
Importantly, a CVS card belonging to David Pence was found
inside of the Highlander, which through Ms. Pence, the
detectives knew was taken from her purse inside the home at
the time of the murders. A search warrant was obtained for
defendant's home at 2227 Arts Street in New Orleans.
Deputy Gabriel Faucetta assisted in the search of
defendant's home. He testified that the home was a
"raised shotgun, " and as he was looking underneath
the home, he located a shotgun on top of one of the floor
rafters. Deputy Ryan Singleton, a crime scene technician,
retrieved the 12-gauge Mossberg shotgun from underneath the
house. He explained that he found one spent shotgun shell and
three live rounds still inside the gun. Detective Gai
explained that the spent shotgun shell was significant as he
knew from ballistics inside the Pence home that there were
five shells that were fired at the time of the murders, but
only four were recovered from the home. From inside of the
home, other items consistent with those that were stolen in
the burglaries were recovered, as well as items belonging to
the victim of the carjacked Toyota Highlander.
Singleton also explained he swabbed the shotgun for DNA;
analysis showed that the DNA profile from the swab of the
shotgun's stock, trigger guard, and grip was a mixture of
a major and minor contributor and that defendant's DNA
was consistent with the DNA for the major contributor.
Ballistics analysis further showed that all the spent shotgun
shells recovered from the Pence home, as well as the one that
was recovered from inside the shotgun, were fired by the
12-gauge Mossberg shotgun that was recovered from
Gai and Detective Roniger obtained an arrest warrant for
defendant for the murders of David and Nicholas Pence and
interviewed defendant while he was in custody at Orleans
Parish Prison. Detective Gai described that during the
beginning of the interview defendant "didn't seem
too very worried, " but later his demeanor changed, and
"he appeared to be more worried and scared regarding
specifically questions of the homicide at 3717
Clifford." In his statements, defendant indicated he
committed the vehicle burglaries; however, he denied
involvement in the murders.
first assignment of error, defendant contends that the trial
court violated his Eighth Amendment right against excessive
punishment when it failed to authorize the appropriate
funding for defense counsel to secure experts who would
research and compile all relevant mitigating factors on
Allen's behalf in preparation of the Miller
noted above, defendant previously sought supervisory review
from this Court after the trial court denied defendant's
second request for funds to hire an expert in advance of his
Miller hearing. In finding no error in the trial
court's denial for expert funding at that time, we
Defendant was seventeen years old at the time of the
offenses. Thus, he is clearly entitled a hearing pursuant to
Miller v. Alabama, supra, and La. C.Cr.P.
art. 878.1 to determine whether the mandatory life sentence
for his second degree murder convictions should be imposed
with or without parole eligibility. La. C.Cr.P. art. 878.1(B)
sets forth factors to be considered at the sentencing hearing
and provides as follows:
At the hearing, the prosecution and defense shall be allowed
to introduce any aggravating and mitigating evidence that is
relevant to the charged offense or the character of the
offender, including but not limited to the facts and
circumstances of the crime, the criminal history of the
offender, the offender's level of family support, social
history, and such other factors as the court may deem
relevant. Sentences imposed without parole eligibility should
normally be reserved for the worst offenders and the worst
In this case, defense counsel is requesting funding, citing
to various constitutional articles and State v.
Touchet, 93-2839 (La. 9/6/94), 642 So.2d 1213, to
conduct a proper Miller hearing and to allow him to
employ a mitigation investigator, a fact investigator, a
psychologist, an expert in trauma, and a prison adjustment
In State v. Touchet, supra at 1221-1222,
the Louisiana Supreme Court discussed expert funding as
At the hearing on expert funding, whether ex parte
or contradictory, the defendant must first show a need for
the funding. The defendant must show with a reasonable degree
of specificity what type of expert is needed and for what
purpose. In other words, the indigent defendant requesting
governmental funding for the securing of expert assistance
must show that it is more likely than not that the expert
assistance will be required to answer a serious issue or
question raised by the prosecution's or defense's
theory of the case. If the defendant meets this burden, then
the court is to order that the funds be provided by the
state. If the defendant fails to meet this burden, and the
proceedings were held ex parte, ...