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Clark v. Cain

United States District Court, W.D. Louisiana, Shreveport Division

December 10, 2018

DEMARCUS CLARK #587170
v.
N. BURL CAIN

          FOOTE, JUDGE

          REPORT AND RECOMMENDATION

          MARK L. HORNSBY, U.S. MAGISTRATE JUDGE

         Introduction

         A Caddo Parish jury convicted Demarcus Clark (“Petitioner”) of armed robbery, and he was sentenced to serve 60 years. The conviction and sentence were affirmed on appeal. State v. Clark, 107 So.3d 644 (La.App. 2d Cir. 2012), writ denied, 113 So.3d 210 (La. 2013). He also pursued a post-conviction application in state court. Petitioner now seeks federal habeas corpus relief based on (1) an alleged Confrontation Clause violation in connection with the admission of a DNA report and related testimony and (2) claims of ineffective assistance of counsel. For the reasons that follow, it is recommended that his petition be denied.

         Facts

         On July 1, 2008, at around 3:00 a.m., a Pontiac Bonneville, later determined to have been stolen, entered the parking lot of the Ace in the Hole Casino at the Relay Station, located on Highway 1 in south Caddo Parish. The only persons inside the casino were an unarmed security guard and a casino employee. Three men got out of the Bonneville and entered. A fourth man remained in the car. The three men who entered were completely covered by masks or bandanas, and they wore latex gloves. One wore a paintball mask and carried a silver handgun. The second wore a paintball mask and carried an AK-47. The third man, later determined to be Petitioner, wore a bandana over his face and carried a black handgun.

         Petitioner worked as a security guard at the casino. A few days before the robbery, he told a casino bartender that the unarmed guards would make the place easy to rob. Petitioner knew where the money was located in the cash register, a separate drawer underneath liquor bottles, and in a small safe in the back room. He knew that most of the money was not in the safe but instead in a backroom cabinet called “the cage” that could be accessed with the bartender's keys. A detective testified that it would not be obvious to a visitor that either the drawer or the cage was a place money would be kept.

         Surveillance video showed that Petitioner entered the casino and immediately locked the outside door. One robber held the security guard on the floor with the AK-47 pointed into his back. The robber with the silver handgun pointed his weapon at the clerk and asked her about the keys, cash drawers, and the back room. The clerk cooperated and dropped her keys. Petitioner swept cash from the drawer and the cash register into a bag. He went to the back room and immediately emptied the cage, grabbed the safe, and took it and the bag of money to the car. The two employees were tied up and had their mouths taped. The entire robbery, which netted over $20, 000 in cash, took about five minutes. Petitioner did not return to work after the robbery.

         Police found the Bonneville abandoned a short distance away, and it contained latex gloves, masks, clothes, and the security guard's cell phone. Fingerprints found in the car led to the arrest of Shacory Bell, who was later convicted of participating in the robbery. A detective interviewed Petitioner after finding out that he had been a security guard at the casino. The detective suspected the robbers had military training, based on his own military training and the precision and tactics he saw in the operation. Petitioner said he had served in the Marine Reserves and received urban warfare training. Petitioner refused to voluntarily provide a DNA sample or fingerprints, and he said he had been asleep at his girlfriend's apartment on West 70th Street at the time of the crime. When Petitioner was alone in the interview room, a hidden camera recorded him searching for recording devices, calling his mother to ask that she say she told him not to give DNA or fingerprints, and using a tissue to clean the rim of a cup he had used and the Miranda waiver form that he touched. The detective later obtained a warrant and collected a DNA sample and fingerprints.

         The investigation soon led to the arrest of Michael Smith. He confessed and testified at Petitioner's trial that he was the getaway driver. Smith said that he knew two of the other men before the robbery, and one of them was the contact with Petitioner. Smith said that Petitioner planned the robbery and insisted that he would be the one to gather the money because he had worked at the casino. Petitioner had also been the one to instruct everyone to take off their masks, bandanas, and gloves and leave them in the Bonneville, which turned out to be a flaw in the plan. They moved the money and safe to Petitioner's car and drove it to his sister's house, where they later divided the money.

         Deputies had found the Bonneville hours after the robbery. Fingerprints recovered from items inside the car belonged to Shacory Bell and Michael Smith, but no fingerprints for Petitioner or the fourth man were found. The masks, gloves, and other items were collected. Petitioner's DNA was found on a latex glove. A paintball mask contained DNA for Petitioner, Bell, and Jackson (the fourth man).

         Petitioner told detectives that he had been at his girlfriend's house asleep at the time of the robbery. His cell phone records, however, indicated that he placed 13 calls just prior to the robbery. Smith testified that Petitioner made several calls on the way to the casino. Records show that Petitioner's last call before the robbery was made from less than a mile from the casino. Petitioner testified at trial and denied his involvement in the crime or knowing the other men. He admitted that he told some people that the casino would be easy to rob. He said that he had given away some latex gloves that were left over from a former exterminator job.

         Confrontation Clause Claim

         A. Background Facts

         More than six months before trial, the state served the defense with a copy of a certified lab report from North Louisiana Crime Lab and stated its intent to offer the report into evidence pursuant to La. R.S. 15:499-501. Tr. 1952-66. The statutes provided that a defendant served with such notice could request that the “person making the examination or analysis” be required to appear for trial to testify and be cross-examined. Otherwise, the court could receive the certificate in evidence as prima facie proof of the facts shown in it.

         Audra Williams, a forensic DNA analyst with the crime lab, was accepted without objection as an expert in DNA analysis. She testified about her education and qualifications. She had been accepted as an expert in other courts, and she conducted technical reviews of DNA analysis performed by other members of her lab. She identified the report, and it was admitted into evidence. The report reflected that DNA taken from a piece of a latex glove and the interior of a paintball mask, both found in the abandoned getaway car, contained Petitioner's DNA. Ms. Williams explained that the analyst who did the underlying testing no longer worked at the lab, but Williams “wrote the report” after reviewing the analyst's notes, pictures, and personal notes in the case folder. Williams said that she “actually took ownership of the case when [the other analyst] left, and I reviewed her notes, wrote the report, and somebody had to come along and review my report and her notes as well.” She emphasized, “I wrote the report.” The report is labelled: “Analyzed By: Audra Williams.”

         A cutting of several inches of the glove material was tested on both sides. Ms. Williams testified that one side of the glove showed a DNA profile that was a mixture of two persons, a major and a minor. Petitioner's DNA could not be excluded as the major contributor. The odds that the DNA came from someone other than Petitioner are 1 in 192 trillion. The other side of the glove contained a similar mixture. Petitioner's DNA could not be excluded as the major contributor of that sample, with a 1 in 50.9 trillion probability that the DNA came from someone else. The sample of the nose area of a paintball mask was a mixture of DNA from Petitioner and two other men who participated in the robbery. Those men could not be excluded as the source of the DNA, but 99.7% of the world's population could be excluded. Williams testified that it was her expert opinion that the DNA on the glove came from Petitioner, and he could not be excluded as a contributor to the DNA on the mask.

         Petitioner argues in his federal petition that the state violated his Sixth Amendment Confrontation Clause rights by using “invalid and false certified certificate of analysis (DNA Report) through the inadequate, hearsay and false in court testimony of surrogate DNA analyst at his trial.” He complains that Ms. Williams did not personally perform or observe the underlying testing, and only testimony from the former employee who conducted that work would satisfy the Confrontation Clause. A review of the state court decisions, and application of the AEDPA standards, show that the claim lacks merit.

         B. State ...


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