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State v. Reeves

Supreme Court of Louisiana

October 15, 2018

STATE OF LOUISIANA
v.
JASON M. REEVES

          ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU

          PER CURIAM

         Denied. In 2004, a Calcasieu Parish jury found relator, Jason M. Reeves, guilty of the first degree murder of four-year-old M.J.T.[1] At trial, the state presented evidence that Reeves abducted, raped, and murdered M.J.T. on the afternoon of November 12, 2001. The state's evidence linking Reeves to the murder included semen matching Reeves's DNA profile recovered from M.J.T.'s anus, fibers and dog hairs linking the victim's clothing to Reeves's vehicle, man-trailing dog evidence which tracked Reeves's scent to critical areas associated with the crime, witness statements placing Reeves and his vehicle at the trailer park from which M.J.T. was abducted and the cemetery near which her body was found, and a confession.

         After finding Reeves guilty as charged, jurors unanimously agreed to impose a sentence of death in light of the aggravating circumstances that Reeves was engaged in the perpetration or attempted perpetration of aggravated rape at the time of the murder; that the victim was under the age of 12 years; and that the offense was committed in an especially heinous, atrocious, or cruel manner. The trial court sentenced Reeves to death by lethal injection in accord with the jury's determination. This Court affirmed the conviction and sentence. State v. Reeves, 06-2419 (La. 5/5/09), 11 So.3d 1031, cert. denied, 558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009).

         In 2009, Reeves filed a pro se "shell" application for post-conviction relief. Through counsel, Reeves subsequently amended and supplemented his original application to allege some 18 claims for relief. Two of those claims have already been fully litigated. See State ex rel. Reeves v. Vannoy, 16-2199 (La. 1/23/17), 209 So.3d 87 (finding no abuse of the district court's discretion in denying Reeves's request to further supplement his application for post-conviction relief with a claim under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)); State v. Reeves, 15-1668 (La. 4/4/16), 188 So.3d 257 (denying writs because Reeves failed to prove by a preponderance of the evidence that he suffers from a mental disability that renders him ineligible for execution). The district court denied three other claims on procedural grounds and dismissed four others without prejudice.

         Thereafter, the district court conducted an evidentiary hearing to address the remaining nine claims, all of which urged ineffective assistance of trial counsel. It heard testimony from Kerry Cuccia (lead defense counsel from Reeves's first trial), now-Judge Ronald Ware (lead defense counsel from Reeves's second trial), Rick Bryant (the district attorney who prosecuted Reeves in both trials), and Cynthia Killingsworth (an assistant district attorney who aided Bryant in both trials). The district court also considered a deposition from Charles St. Dizier, a member of Ware's team in the second trial whose primary responsibility was in the penalty phase. After consideration of this evidence, the district court denied each claim, finding them meritless.

         Reeves now assigns eight errors and seeks review of the district court's denial of 10 of his post-conviction claims for relief (one procedural ruling and nine merits rulings). For the following reasons, the district court reached the correct result in denying the application for post-conviction relief.

         In State v. Lee, 14-2374, pp. 8-9 (La. 9/18/15), 181 So.3d 631, 638, another post-conviction capital case, we explained that an "attempt to re-litigate a claim that has been previously disposed of, by couching it as a post-conviction ineffective assistance of counsel claim, [should be] generally unavailing." As we found in Lee, Reeves's post-conviction ineffective assistance of counsel claims predicated upon issues which were in fact resolved on appeal are not truly new claims. The district court correctly dismissed Reeves's first claim-that Ware and his team suffered from "forced ineffectiveness" as a result of their appointment with just over six months to prepare for trial-under La.C.Cr.P. art. 930.4(A). On direct review, this Court devoted considerable attention to the propriety of this substitution of counsel under the circumstances of this case, and we expressly addressed the contention that the trial court erred in failing to grant a continuance. See Reeves, 06-2419, pp. 12- 74, 11 So.3d at 1042-79. Reeves's standalone "forced ineffectiveness" claim finds itself predicated upon these same issues and is barred from review.

         Next, Reeves argues that Ware rendered ineffective assistance by failing to utilize three experts called by Cuccia in the first trial: 1) a DNA expert to testify that the sample recovered from the victim's anus was "too pristine" given the circumstances of where and when her body was located; 2) a fingerprint expert who purportedly would have testified that the latent prints found on the victim's arm and inner thigh could exclude Reeves as a source; and 3) a traffic engineer to cast doubt upon the state's proposed timeline of events.

          Under the standard for ineffective assistance of counsel set out in Strickland v. Washington466 U.S. 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a reviewing court must reverse a conviction if the petitioner establishes (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. Whether to call a witness is within the ambit of trial strategy. See State v. Johnson, 619 So.2d 1102, 1109 (La.App. 4 Cir. 1993).

         Ware explicitly testified at the evidentiary hearing that he did not have a strategic reason for opting not to call any of these witnesses. However, he did not testify that he was unaware of these witnesses because of any lack of preparation; instead, Ware stated he felt "certain" and "sure" that he reviewed these witnesses' testimony from the first trial. He cited no funding issues with respect to securing the presence of any of these witnesses, but in one case-concerning the fingerprint expert-he explained that there might have been trouble locating the witness.

         It is simply impossible to determine from the evidence elicited at the evidentiary hearing why Ware did not call at least two of these proposed witnesses. "Judicial scrutiny of counsel's performance must be highly deferential. . . . Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. That Ware proceeded differently than did Cuccia is not itself indicative of deficient performance, especially where Ware's testimony lends little insight into exactly why these witnesses were not called.

         Even assuming deficient performance, however, Reeves has failed to prove resultant prejudice. Though these three witnesses may have cast doubt upon certain portions of the state's case, the evidence introduced at the post-conviction proceedings does not rise to the level of proving that the omission of this testimony at the second trial "more likely than not altered the outcome in the case." See Strickland, 466 U.S. at 693, 104 S.Ct. at 2068. In addition to the evidence these witnesses' testimony may have undermined, the state also presented fiber evidence, man-trailing dog evidence, eyewitness identifications, and Reeves's confession. This claim lacks merit.

         Next, Reeves asserts that Ware failed to take adequate steps to challenge or otherwise confront the state's evidence from the man-trailing dog handler, including securing a defense expert to attack the dog's reliability and challenging the dog's qualifications.

         The man-trailing dog and its handler were the subject of an assigned error on direct appeal. At that time, Reeves argued that the trial court erred in failing to hold a Daubert hearing concerning the dog and handler's expertise. This Court explained that Ware objected both pretrial and at trial to the introduction of this evidence, and:

Thereafter, Mark Holmes, a detective with the Port Arthur, Texas Police Department, and the K-9 handler for the man-trailing dog which participated in the investigation of this matter, "Bo," was examined in the presence of the jury on his own training, certification, and experience, as well as on his dog's pedigree, training and experience. Only after this foundation was laid did the state elicit testimony regarding their involvement in the investigation.

Reeves, 06-2419, p. 110 (unpub'd appx.).

         Thus, the dog and handler's qualifications were probed before the jury, even if Ware himself might not have "challenged" them. While Ware expressed some regret at the evidentiary hearing about how he handled the cross-examination of this witness, counsel's choices of which questions to ask on cross-examination fall well within the ambit of trial strategy. See, e.g., State v. Brooks, 94-2438, pp. 6-7 (La. 10/16/95), 661 So.2d 1333, 1337. Although Ware could not articulate at the evidentiary hearing why he failed to ask certain questions of the dog handler, Reeves's current claims rely improperly upon the "distorting effects of hindsight" cautioned against in Strickland, 446 U.S. at 689, 104 S.Ct. at 2065.

         Additionally, though Reeves faults Ware for failing to call a counter-expert, he fails to demonstrate that funding was (or could have been made) available or the nature of that proposed expert's testimony. See La.C.Cr.P. art. 930.2; see also Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) ("[T]o prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner must name the witness, demonstrate that the witness was available to testify and would have done so, set out ...


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