The DNA sample that ended the search for the Baton Rouge serial killer was taken from Derrick Todd Lee in May 2003 without a search warrant. Investigators from the Louisiana Attorney General’s Office, working the 1998 disappearance of Randi Mebruer and the unsolved killing of Connie Warner, both of Zachary, went to a state judge instead for a subpoena duces tecum ordering Lee to produce a specimen of his DNA. The order was signed on May 5, he was swabbed, and the laboratory matched him to the profile the Multi-Agency Homicide Task Force had been chasing for more than a year. When Lee argued on appeal that the swab was an unconstitutional search, the Court of Appeal for the First Circuit called the question one of first impression in Louisiana and took its answer from a federal decision in South Carolina, In re Shabazz: a subpoena resting on reasonable grounds was a valid way to obtain the sample.
Geralyn Barr DeSoto was twenty-one, a student at Louisiana State University saving for graduate school, and on January 14, 2002, she had a job interview at 2:30 in the afternoon. She paid her spring tuition on campus, sent an email to a professor at 11:41 from the trailer in Addis where she lived with her husband, and never kept the appointment; he came home at seven that evening and found her in the hallway with her throat cut. A West Baton Rouge Parish jury convicted Lee of her second-degree murder by eleven votes to one, and the 2007 opinion affirms the verdict and the sentence. Charlotte Murray Pace, twenty-two, had just washed her new BMW on May 31, 2002, and gone home to the Baton Rouge townhouse she shared with a close friend, to wait for her before they drove to a former roommate’s wedding in Alexandria. The friend arrived at two o’clock and found her on the floor. The Supreme Court of Louisiana’s 2008 opinion, by Justice Knoll, reviews the East Baton Rouge Parish conviction for her murder and the death sentence.
That opinion is the fullest account of the case in the public record, because the State was allowed to put four other murders before the Pace jury, those of Gina Wilson Green, Pam Kinamore, Trineisha Dené Colomb and Carrie Yoder, and the July 2002 attack on a nurse in Breaux Bridge who survived when her son’s car came up the gravel drive and later sat with a sketch artist. Case by case the court sets out the Crime Lab’s DNA work, the leads that had the task force looking for a white man in a white pickup truck, and the defense’s argument that more than five thousand pages of coverage made a fair trial in Baton Rouge impossible; the majority rejected it, and Justice Johnson wrote separately about the trial court’s decision to put off the venue motion until the jury had been chosen. Five one-line writ denials follow, and in September 2015 a per curiam opinion refused post-conviction relief on forty-two claims. Lee died of heart disease on January 21, 2016, still under sentence of death.
Lee was convicted of two murders, Geralyn DeSoto’s and Charlotte Murray Pace’s, and those are the only crimes any court decided he committed. The four other women’s deaths and the attack on D.A. reached the Pace jury as other-crimes evidence, admitted to prove identity; he was never tried for them, and Randi Mebruer and Connie Warner appear here only as the reason investigators wanted his DNA. Much of the forensic detail comes from prosecution experts at a pretrial Prieur hearing. The 2015 opinion records that a defense expert found no spermatozoa on the swabs taken from Pace’s body, a point that went to the rape on which the first-degree murder charge rested, and holds that the remaining evidence was enough.
Opinions of the Supreme Court of Louisiana and its First Circuit Court of Appeal are public records, free to read and to reproduce in full. The Court of Appeal protected the Breaux Bridge survivor itself, calling her D.A. throughout its 2007 opinion; the Supreme Court printed her full name fifty times a year later, and her son’s, and we have used the lower court’s form everywhere. We have also reduced to initials the husbands of Geralyn DeSoto and Pam Kinamore, the friend who found Charlotte Pace and the former roommate whose wedding they were driving to, Carrie Yoder’s boyfriend, a St. Francisville woman whose apartment Lee entered twice, the confidential source who described seeing him with a gun, his girlfriend, the two former coworkers who testified about his abilities at the penalty phase, and five members of the jury panels, and we have left out the street number of Pace’s townhouse because her friend lived there too.
This text was never scanned for us, but the Caselaw Access Project’s copy of these Southern Reporter volumes carries the page markers of the court’s own slip opinions, and nearly every one of them has been garbled into strings like “|4SFBI,” “|a4where” and “| ^required.” We removed all seventy-seven. Where a marker had fused with a word and the word was plain, the word stayed; where it was not, the text stands as it came, so the 2007 opinion still opens on “Pefendant” and a statutory phrase still reads “absence of gfiinistake or accident.” The 2015 opinion has damage of its own, among it “unx-elated homicides,” “re-jhtigateg a claim” and “absent counsel’s faffing.” Twenty-four hyphens split at the end of a printed line have been closed. Nothing has been spell-checked or reworded.
STATE of Louisiana v. Derrick Todd LEE.
No. 2005 KA 0456.
Court of Appeal of Louisiana, First Circuit.
May 16, 2007.
Richard J. Ward, District Attorney, Becky L. Chustz, Assistant District Attorney, Port Allen, Counsel for Appellee State of Louisiana.
Gwendolyn K. Brown, Baton Rouge, Counsel for Defendant/Appellant Derrick Todd Lee.
Before: PARRO, McDONALD, and HUGHES, JJ.
[OPINION BY HUGHES, J. type=majority]
HUGHES, J.
Pefendant Derrick Todd Lee was charged by grand jury indictment with the first degree murder of Geralyn Barr DeSoto, a violation of LSA-R.S. 14:30. The state amended the indictment to charge defendant with second degree murder, a violation of LSA-R.S. 14:30.1. The defendant pled not guilty. After a trial by jury defendant was found guilty as charged. Defendant made an oral motion for a new trial and an appeal. Subsequently, he filed a written motion for a new trial, an amended motion for a new trial, and a notice of intent to appeal. After a hearing, the trial court denied the motion for a new trial. Defendant then made an oral motion for mistrial that was also denied. After the appropriate delays, the trial court sentenced defendant to the mandatory term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals, raising eight assignments of error.
FACTS
D.D. left his Addis trailer home around 7:00 a.m. on January 14, 2002 and drove to work. Geralyn DeSoto, D.D.’s wife and the victim in the instant matter, contacted an employment company about a position listed on the company’s website. Geralyn was a student at Louisiana State University and was planning to attend graduate school in the fall of 2002. She wanted to work and save money to pay her future tuition. Between 9:00 and 10:00 a.m., someone from the agency contacted Geralyn and scheduled a job interview for 2:30 p.m. that day.
Geralyn drove to LSU to pay the tuition for a class she was taking during the spring semester. While there she met and talked with another student. Around 11:00 a.m. she left to return home. At 11:41 a.m. Geralyn sent an e-mail to one of her professors. At 11:50 a.m. a telephone call was ^placed from the telephone in D.D. and Geralyn’s trailer to a phone located at the Exxon refinery in Baton Rouge. The call lasted less than a minute. That afternoon Geralyn failed to appear for her job interview. The employment agency called Geralyn’s home, but there was no answer.
D.D. left his job around 6:15 p.m. He was concerned because he had called his wife several times during the day with no answer. He arrived home around 7:00 p.m. and found the trailer door slightly open. At first he did not believe his wife was home, but when he looked down the hall, he discovered her lying on her side in a pool of blood. D.D. touched his wife’s body and found that it was cold. He also saw that her throat had been cut. He ran to the home of a neighbor, who called the police. Geralyn DeSoto was pronounced dead at the scene.
NON-UNANIMOUS JURY VERDICT
In assignment of error number one, defendant argues that in light of recent jurisprudence, LSA-C.Cr.P. art. 782(A) (providing for jury verdicts of 10 to 2 in cases in which punishment is necessarily confinement at hard labor) violates the Sixth and Fourteenth Amendments of the United States Constitution. Thus, the defendant contends that the 11 to 1 jury verdict was unconstitutional.
The state, citing Louisiana jurisprudence, contends that this issue is well-settled and that the Louisiana Supreme Court has held that a non-unanimous jury verdict does not violate the Constitution.
The punishment for second degree murder is confinement for life at hard labor. See LSA-R.S. 14:30.1(B). Louisiana Constitution Article I, § 17(A) and LSA-C.Cr.P. art. 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than a unanimous jury does not violate a defendant’s right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 82 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La.1982); State v. Shanks, 97-1885, pp. 15-16 (La. App. 1 Cir. 6/29/98), 715 So.2d 157, 164-65.
The defendant’s reliance on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), is misplaced. These Supreme Court decisions do not address the issue of the constitutionality of a non-unanimous jury verdict but rather, address the issue of whether the assessment of facts in determining an increased penalty of a crime beyond the prescribed statutory maximum is within the province of the jury or the sentencing judge. These decisions stand for the proposition that any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Nothing in these decisions suggests that a jury’s verdict must be unanimous. Accordingly, LSA-Const. art. I, § 17(A) and LSA-C.Cr.P. art. 782(A) are not unconstitutional and do not violate the defendant’s Sixth Amendment right to a trial by jury.
This assignment of error lacks merit.
J^MOTION TO SUPPRESS DNA EVIDENCE
In assignment of error number two, defendant contends that his DNA sample was illegally obtained without a search warrant and that the trial court erred in denying his motion to suppress the DNA evidence.
Defendant’s DNA was obtained by a subpoena duces tecum requested by the Louisiana Attorney General’s Office. Defendant’s DNA profile was matched to the DNA found on the victim in this case and also on D.A., a victim who survived an assault.
The “Motion For Issuance Of Subpoena Duces Tecum” was presented to Judge George H. Ware, Jr. of the 20th Judicial District. The motion explained that the Attorney General’s Office was involved in an investigation of the disappearance of Randi Mebruer and the homicide of Connie Warner, both residents of Zachary, and that a DNA specimen of the defendant was necessary to complete this investigation. The motion indicated that the Department of Justice (Attorney General’s Office) had been assisting the Zachary Police Department since April 27, 1999 in the investigation in the same Zachary subdivision of the disappearance of Ms. Mebruer from her Zachary residence on or about April 18, 1998 and the homicide of Ms. Warner in August of 1992. The motion further stated that the evidence at the Mebruer residence indicated that she was attacked, severely beaten, and abducted from her residence, and that the incident occurred during a four-hour period between 10:30 p.m. on April 18 and 2:30 a.m. on April 19, 1998. The Zachary police knew the defendant had been arrested as a “Peeping Tom,” pursuant to LSA-R.S. 14:284, in the same Zachary subdivision and in St. Francisville, Louisiana.
The motion further stated that on April 20, 1998 Zachary police officers went to defendant’s residence and, with his consent, conducted a cursory search of his residence before being asked by the defendant to leave, and since that time, defendant remained a “viable suspect” in the disappearance of Randi Mebruer and a “possible suspect” in the deaths of five females in Baton Rouge and Lafayette who had been linked by DNA profiling to a serial killer.
The motion further indicated that investigators from the Attorney General’s Office interviewed defendant and his girlfriend, C.G., who both indicated separately that on April 18 about 10:30 p.m., they were at a bar in St. Francisville. When they got into an argument, Ms. Green left and went to her home. The defendant drove to a bar in Alsen, Louisiana. He then left and drove to Ms. Green’s home in Jackson, where he arrived about 1:00 a.m. on April 19. His route to Ms. Green’s home took him directly by the entrance to the Zachary subdivision. Defendant talked to Ms. Green a few minutes and then drove to his home in St. Francisville.
The motion alleged that the Alsen lounge was open for business on April 18-April 19. It detailed defendant’s specific arrests and convictions for attempted unauthorized entry of an inhabited dwelling, simple burglary, “Peeping Tom,” trespassing, stalking, and aggravated battery and noted that some of the arrests were in Zachary. The motion further alleged that defendant was not incarcerated on the dates of Randi Mebruer’s disappearance and the murder of Connie Warner, or of the murders of Charlotte Pace, Gina Green, Pam Kinamore, Trineisha Colomb, and Carrie Yoder.
Finally, the motion indicated that a confidential source (CS) told investigators that defendant had come to his home in Jackson, Louisiana, around midnight “a night or two after Randi Mebruer’s disappearance.” The CS accompanied the defendant to his residence. In his vehicle, defendant had a long-barreled revolver. After ten to fifteen minutes at the defendant’s residence, defendant drove the CS back to his home. Defendant told the CS that he was being harassed by Zachary police about a “missing woman.” The next day the CS heard a news report about a missing Zachary woman. The motion did not give any other specific information as to the timing of defendant’s statement.
An order was signed by Judge Ware on May 5, 2003 authorizing the issuance of a subpoena duces tecum and directing defendant to produce a DNA specimen. The defendant was swabbed and a DNA sample was obtained. Subsequently, after defendant’s DNA was tested and compared, lab reports were issued indicating a high probability that the DNA found on the victim Geralyn DeSoto and on D.A., who survived an attack, was that of the defendant.
At the Motion to Suppress hearing held on May 6, 2004, the only witness called by the state was Danny Mixon, an investigator with the Attorney General’s Office. Mixon testified that he was assigned in April of 1999 to help the Zachary police investigate the Warner and Mebruer cases in which defendant was the main suspect. Connie Warner was killed in 1992 and Randi Mebruer, whose body has never been found, disappeared in 1998. The two victims lived in the same Zachary subdivision. Mr. Mixon further testified that defendant had been arrested on two counts of “Peeping Tom” in the same subdivision and for “Peeping Tom” and stalking in St. Francisville.
Mr. Mixon testified that a search warrant was not sought because it was believed the subpoena duces tecum was sufficient to obtain the DNA sample. He noted that he had previously used a subpoena duces tecum for handwriting samples, phone records, and fingerprints. Mixon and Zachary RPolice Officer Ray Day approached Judge Ware to have the subpoena duces tecum issued. Mixon noted that Judge Ware suggested a “show cause” hearing might be necessary. During Mixon’s meeting with the judge, the Attorney General’s Office was contacted, and the use of the subpoena duces tecum to obtain the DNA sample was advocated. Judge Ware then signed an order authorizing the issuance of the subpoena.
Mixon testified that the subpoena was prepared in conjunction with the Warner and Mebruer cases. He noted that defendant had been caught on more than one occasion “walking, prowling, and peeping in windows” in the Oak Shadows subdivision in which both Ms. Warner and Ms. Mebruer had lived. The investigation indicated that Ms. Mebruer was attacked and abducted between 10:30 p.m. on Saturday, August 18, 1998 and 2:30 a.m. on August 19, 1998. During that time frame, defendant admitted to driving a route that would have taken him past Ms. Mebruer’s Zachary subdivision; however, Mixon acknowledged that this route was the shortest route for defendant to follow to reach his destination. As to the fact that defendant was not in custody on the dates of the Warner and Mebruer attacks, Mixon further acknowledged that thousands of other people were not in jail on those dates. Mixon also testified as to the information received from the CS. According to Mixon, the CS stated that he had gone with defendant to defendant’s home a night or two after Randi Mebruer’s disappearance, that the defendant went into the back of the house, but did not turn on the lights. When he returned to the vehicle, the CS saw the defendant put a revolver in the console of his truck. The defendant told the CS that the Zachary police were harassing him about a missing white woman from Zachary.
At the conclusion of the hearing, the judge denied the motion to suppress. The judge found that the subpoena was essentially a search warrant and that the motion for the subpoena provided sufficient facts to establish probable cause. Defendant subsequently filed an application for supervisory writs, which was denied. State v. Lee, 2004-1129 (LaApp. 1 Cir. 7/16/04) (unpublished), writ denied, 2004-1935 (La.7/30/04), 877 So.2d 997.
In this appeal, defendant contends that the swabbing for his DNA sample was a warrantless search and seizure and did not fall within one of the exceptions for the warrant requirement. He further argues that the subpoena duces tecum was an improper vehicle to obtain his DNA, and the motion for the subpoena did not provide the necessary probable cause for the seizure.
As to the use of the subpoena to obtain the sample, defendant cites jurisprudence as support for his argument that his Fifth Amendment rights were violated. The state responds that the subpoena duces tecum was a valid means to obtain defendant’s DNA sample, and like an affidavit supporting a search warrant, the motion was reviewed by a judge before the subpoena was issued. The state argues a neutral and detached reviewing judge made a determination that probable cause existed to obtain the sample.
Louisiana Code of Criminal Procedure article 66 provides for the issuance of a subpoena and subpoena duces tecum on the basis of reasonable grounds:
A. Upon written motion of the attorney general or district attorney setting forth reasonable grounds therefor, the court may order the clerk to issue subpoenas directed to the persons named in the motion, ordering them to appear at a time and place designated in the order for questioning by the attorney general or district attorney respectively, concerning any offense under investigation by him. The court may also order the issuance of a subpoena duces tecum. Service of a subpoena or subpoena duces tecum issued pursuant to this Article upon motion of the attorney general may be made by any commissioned investigator from the attorney general’s office, or in conformity with Article 734 of this Code.
B. The contumacious failure or refusal of the person subpoenaed to appear is punishable as a contempt of court.
C. The attorney general or district attorney, respectively, may determine who shall be present during the examination and may order all persons excluded, except counsel for the person subpoenaed.
Defendant cites Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), in which the reviewing court determined that a subpoena duces tecum issued by the district attorney’s office under a state statute did not justify a warrantless search and seizure and conferred no right to seize the property referred to in the subpoena. In Mancusi, a union official instituted a habeas corpus proceeding, arguing that evidence ^received against him in the state prosecution had been seized in violation of his Fourth Amendment rights. The Supreme Court found that the search of the union office without a warrant, but with a subpoena duces tecum, was a prohibited, unreasonable search. The subpoena did not qualify as a valid search warrant under the Fourth Amendment because it was issued by the District Attorney himself and thus omitted the indispensable condition that the inferences from the facts of the complaint be drawn by a neutral and detached magistrate instead of law enforcement officers. Mancusi, 392 U.S. at 371, 88 S.Ct. at 2125.
Mancusi is distinguishable from the instant case. Although both cases involved the initiation of a subpoena duces tecum by the prosecuting entity, in this case a judge reviewed the facts presented before the subpoena was ordered. The instant situation is unlike Mancusi, where no review by a judge was involved.
Defendant further contends that the information from the CS in the motion for the subpoena should not be considered in determining probable cause, because the motion failed to provide a basis for the reliability of the informant. He further argues that if the information from the CS were excised, the motion fails to provide probable cause.
The CS, identified at the Motion to Suppress hearing as L.S., recalled seeing defendant around midnight “a night or two” after Mebruer’s disappearance. During that meeting, defendant had a handgun in his truck and told L.S. that Zachary police were harassing him about a missing woman from Zachary. The next night, L.S. saw a television news report on Ms. Mebruer’s disappearance and assumed that the defendant was talking about her.
However, the motion only indicates that the conversation occurred a “night or two” after the abduction and does not give a specific date. The testimony at the hearing does not clarify the exact date or the exact time that Zachary officers visited the defendant at his home on April 20 or when L.S. had the conversation with the defendant. A “night or two” could have put the conversation with L.S. after the Zachary officers talked with the defendant. Thus, the CS’s information was helpful but not essential in establishing grounds for the issuance of the subpoena.
We note, however, that the motion submitted to Judge Ware was not under oath or affirmation as required by the Fourth Amendment, and we respectfully disagree with the trial court that the state’s use of an LSA-C.Cr.P. art. 66 subpoena duces tecum to acquire a DNA sample from the defendant was the equivalent of obtaining a search warrant.
Search warrants are authorized under the Fourth Amendment of the U.S. Constitution only upon a showing of probable cause “supported by Oath or affirmation” and particularly describing the place to be searched and the persons or things to be seized. Louisiana Code of Criminal Procedure article 162 thus provides, “A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.” In contrast, an LSA-C.Cr.P. art. 66 subpoena is issued upon the motion of the attorney general or district attorney; no sworn statement is required. The information presented to obtain the court order in this case was not supported by oath or affirmation. Thus the requirements for a warrant were not met.
Because the validity of the use of an LSA-C.Cr.P. art. 66 subpoena duces tecum to acquire a DNA sample appears to be a case of first impression in Louisiana, we adopt the rationale set forth in In re Shabazz, 200 F.Supp.2d 578, 581 (D.S.C. 2002). Although Shabazz involved a subpoena duces tecum issued by a grand jury, we find the reasoning employed by that court in finding the subpoena a valid means of obtaining a saliva sample equally applicable to an LSA-C.Cr.P. art. 66 subpoena duces tecum authorized by a trial court judge. In both instances an intervening authority (either a grand jury or a trial judge) passes on the reasonableness of the individualized suspicion that the subject of the subpoena has been involved in the alleged crime, thereby reducing the possibility of prosecutorial abuse.
The obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels — the “seizure” of the “person” necessary to bring him into contact with government agents and the subsequent search for and seizure of the evidence. It is well-established that “a physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable.” In re Shabazz 200 F.Supp.2d at 581, citing Skinner v. Railway Labor \uExecutives’ Ass’n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989) (drug and alcohol testing of railroad employees), Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood test for alcohol), and Winston v. Lee, 470 U.S. 753, 760-61, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (order to compel surgical operation to remove a bullet). However, what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection; accordingly, subpoenas compelling voice samples, handwriting samples, fingerprints, and hair samples are not “searches” and therefore do not implicate the Fourth Amendment. Id., citing U.S. v. Dionisio, 410 U.S. 1, 8, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), U.S. v. Mara, 410 U.S. 19, 21-22, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), Davis v. Mississippi 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and In re Grand Jury Proceedings (Mills), 686 F.2d 135, 139 (3d Cir. 1982), cert. denied, 459 U.S. 1020, 103 S.Ct. 385, 74 L.Ed.2d 516 (1982). In contrast, acquiring scrapings below a defendant’s fingernails, breathalyzer tests, and urine samples are “searches” within the meaning of the Fourth Amendment, as held in Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), and Skinner, 489 U.S. at 613-14, 109 S.Ct. 1402, 103 L.Ed.2d 639. See In re Shabazz, 200 F.Supp.2d at 582.
[5] Nevertheless, as pointed out by the Shabazz court, the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. Thus, under certain circumstances, searches and seizures may be permissible under the Fourth Amendment “based on suspicions that, although ‘reasonable,’ do not rise to the level of probable cause.” In re Shabazz, 200 F.Supp.2d at 583, citing New Jersey v. T.L.O, 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Shabazz court reasoned that probable cause need not be a prerequisite for the issuance of a grand jury subpoena ordering a DNA saliva test because the very purpose of requesting the information is to ascertain whether probable cause exists.
The Shabazz court concluded that the privacy concerns that led the Supreme Court to require probable cause in other cases are not as pronounced with a saliva swab because it is not as intrusive as a blood test or a surgical bullet-removal procedure. Although the saliva swab involves a slight invasion of a person’s bodily integrity, it is not a “surgical procedure” and therefore does not fall within SchmerbePs threshold requirement of probable cause, so no showing of probable cause is needed before the issuance of a subpoena duces tecum requiring a saliva sample. In re Shabazz, 200 F.Supp.2d at 584.
The purpose of the saliva sample is plainly to advance the law enforcement objective of determining whether a suspect was involved in illegal physical contact with a victim. Therefore, although a showing of probable cause is not necessary, a subpoena duces tecum requiring a saliva swab must be based on reasonable individualized suspicion that a suspect was engaged in criminal wrongdoing. In re Shabazz, 200 F.Supp.2d at 584-85.
Another consideration is whether the “means and procedures employed” in taking the saliva sample were in themselves reasonable under the Fourth Amendment. To determine the reasonableness of procedures to obtain physical evidence, the “extent to which the procedure may threaten the safety or health of the individual” and the “extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity” should be “[wjeighed against ... the community’s interest in fairly and accurately determining guilt or innocence.” A balancing of these factors in the Shabazz case led the court to conclude that the procedure used to obtain the saliva swab was plainly “reasonable” under the Fourth Amendment, because there was no evidence that the saliva swab presented any safety or health risk to the suspect, and secondly, because saliva sampling is a relatively minor intrusion into a suspect’s interest in personal privacy and bodily integrity (the sample is obtained by simply swabbing the inside of the mouth and does not involve any risk of pain or embarrassment). The Shabazz court further reasoned that on the public interest side of the equation, the government has a clear interest in obtaining DNA as highly probative evidence of identifying, or eliminating, a suspect. Further, a saliva swab is much less intrusive than the blood sample upheld by the Supreme Court in Schmerber. And it is easily distinguishable from the surgical procedure at issue in Winston, which was potentially dangerous and was of uncertain evidentiary value. Thus, the means and procedures used to obtain the saliva sample in Shabazz were found to be “reasonable” under the Fourth Amendment. In re Shabazz, 200 F.Supp.2d at 585.
In the instant case, as previously stated, the subpoena duces tecum was sought in conjunction with the investigation of the murders of two Zachary women. In the motion prepared by the Attorney General’s Office, seeking a subpoena duces tecum for the production of a DNA specimen from the defendant, the facts and circumstances of the kidnapping and/or murders of Randi Mebruer and Connie Warner were set forth. The motion further stated that the defendant had “previously been observed and later subsequently arrested by [Zachary Police Department] officers as a Peeping Tom in the Oak Shadows Subdivision where Mebruer and Warner resided.” Immediately following the disappearance of Ms. Mebruer, the motion states that the defendant and his then-girlfriend were interviewed, and that the interview revealed that the defendant had driven past Ms. Mebruer’s subdivision during the time that she was alleged to have been murdered. The motion further stated that defendant was considered by law enforcement as a suspect in that murder as well as in connection with the Baton Rouge area serial killer murders.
The defendant’s criminal history was also detailed in the motion and included: a 1988 conviction for attempted unauthorized entry of an inhabited dwelling in St. Francisville; a 1993 conviction of simple burglary of an inhabited dwelling in Zachary; a 1996 plea of nolo contendere to charges of Peeping Tom and resisting arrest in Lake Charles; a 1998 conviction on two counts of Peeping Tom and resisting arrest in Zachary; a 1999 conviction of stalking; and a 2000 conviction of aggravated flight in St. Francisville following an altercation in a bar with his girlfriend and law enforcement, while on probation from a prior conviction. It was also stated in the motion that defendant was not incarcerated at the time that any of the following crimes were committed: the 1992 murder of Connie Warner; the 1998 disappearance of Randi Mebruer; nor the 2001 murder of Gina Wilson Green, the 2002 murder of Charlotte Murray Pace, the 2002 murder of Pam Kinamore, the 2002 murder of Trineisha Dene Colomb, or the 2003 murder of Carrie Yoder, whose murders were linked to a serial killer by DNA profiling. Further, the motion presented facts provided by a confidential informant, who indicated that he had accompanied the defendant to his St. hsFrancisville house within one or two days of the disappearance of Ms. Mebruer, that defendant had complained that Zachary police officers were “harassing” him over a missing woman, and that defendant had armed himself with a revolver.
Based on the facts stated in the motion for issuance of the subpoena duces tecum, we find that there was reasonable and sufficiently individualized suspicion that the defendant may have been involved in the Zachary crimes involving Ms. Warner and Ms. Mebruer to justify the issuance of the subpoena duces tecum. Whether or not the facts presented in the motion could also have sustained a finding of probable cause is irrelevant; the very purpose of the subpoena is to collect additional evidence sufficient to support probable cause, or to rule the defendant out as a suspect.
We further find that the means and procedures employed in obtaining the sample were not in themselves unreasonable. After obtaining the court order from the 20th Judicial District Court judge, investigator Danny Mixon, along with several other law enforcement officers, went to the defendant’s residence and presented him with the subpoena. According to Mr. Mixon, the defendant did not object to the DNA testing. Mixon indicated that he accompanied defendant into his living room, where defendant sat down. Mixon then swabbed both the left and right sides of defendant’s mouth. The defendant was not taken into custody at that time.
Based on the facts and circumstances presented in this case, we find no merit in defendant’s challenge to the issuance and execution of the subpoena duces tecum ordering DNA sampling. Accordingly, the trial court did not err in denying the Motion to Suppress the DNA evidence.
OTHER CRIMES EVIDENCE
In assignment of error number three, defendant contends that the trial court erred in permitting evidence of other crimes, wrongs, or acts to be introduced at trial.
The state filed a notice of intent to use evidence of other crimes, wrongs, and acts pursuant to LSA-C.E. art. ■ 404(B) and State v. Priewr, 277 So.2d 126 (La.1973), to show “motive, opportunity, intent, preparation, plan and system, knowledge, and absence of mistake or accident” at trial. The written notice specifically refers to evidence of the killing of Trineisha Colomb on November 21, 2002 and the attempted rape and attempted murder of D.A. on July 9, 2002. The notice further refers to defendant’s convictions for attempted unauthorized entry of an inhabited dwelling, simple burglary of an inhabited dwelling, and stalking, and arrests for aggravated burglary and “Peeping Tom.”
Evidence concerning the crimes against Ms. Colomb and D.A. was presented at a Priewr hearing and at trial. Lt. Joseph Arthur Boyd, an investigator in the St. Martin Parish Sheriffs Office, testified at the hearing about the attempted rape and attempted murder of D.A. While cooking lunch, D.A. heard a knock at the front door of her mobile home. She opened the door and saw a man, later identified as the defendant, standing outside. He indicated that he was looking for a family named Montgomery and asked if she knew them. D.A. replied that she did not, and the defendant asked to use her telephone and telephone book. D.A. took the items to the defendant on her porch and closed the door. She returned to the porch after the defendant used the telephone. He asked if her husband knew the family. When D.A. replied that her husband was not at home and that he did not know the family, defendant produced a knife, forced D.A. into her home, and demanded that she lead him to the bedroom. D.A. responded that they could stay in the living room. Defendant began choking the woman. He demanded that she remove her underwear and that she lie on the floor. D.A. complied and the defendant, who had removed his shorts and underwear, attempted to have intercourse, but was unable to obtain an erection. The defendant then started beating D.A. on her head and face. He also tried to strangle her with a telephone cord. When the defendant heard D.A.’s son drive up, he fled through the back door, stomping on the woman’s stomach. D.A.’s son saw the defendant’s vehicle and assumed it belonged to someone visiting his mother. Once inside, the son discovered his mother was injured and bleeding; the son ran outside and attempted to follow defendant’s vehicle with his own vehicle, but the assailant was able to flee and the woman’s son returned home to help his mother.
Detective Boyd testified that he and Lafayette Parish Sheriffs Office Detective Sonny Stutes began comparing information from D.A.’s ease and that of Trineisha Dené Colomb, a serial killer victim. DNA found on Ms. Colomb’s body matched that of the perpetrator in the serial killer cases in Baton Rouge. Detective Boyd stated that he was aware Ms. Colomb was the first African-American female victim linked to the serial killer and that he knew that D.A. was an African-American female. Detective Boyd asked the crime lab to retest the dress that D.A. was wearing at the time of her assault look specifically for “contact DNA.” D.A. had reported that her attacker had been sweating profusely. A partial profile of the DNA from perspiration on the dress indicated that the unknown serial killer could not be excluded as the source of the DNA found on D.A.’s dress.
With D.A.’s assistance, a computerized composite drawing of D.A.’s attacker was completed. Detective Boyd testified that the drawing resembled the- defendant. Subsequently, Boyd had a meeting with the Serial Killer Task Force and a decision was made to release the drawing to the public. As a result, law enforcement officers received tips that led to the eventual arrest of the defendant for the murder of Geralyn DeSoto.
Carolyn Booker, qualified as an expert in the field of forensic DNA analysis, also testified at the Prieur hearing. She performed DNA testing at the Acadiana Crime Lab. She testified D.A.’s dress was negative for semen, but had stains containing DNA. Booker indicated that the defendant, an African-American, could not be excluded as a contributor of the DNA, but that 99% of the African-American population would be excluded. At trial, Ms. Booker acknowledged that D.A.’s husband also could not be excluded as a minor contributor of the DNA found on her dress.
Ms. Booker also conducted analysis of DNA from a vaginal swab of Ms. Colomb. The profile of the sperm cells from the swab matched defendant’s known profile. She concluded with reasonable scientific certainty that defendant was the source of the male DNA and the sperm taken from Ms. Colomb’s body. She testified that the probability of selecting a random individual with the same profile would be one in thirty trillion.
Gina Pineda was qualified as an expert in molecular biology and forensic DNA analysis and testified at the Prieur hearing and at trial. She was employed by Relia-gene Lab, a private lab that performed Y-STR testing on fingernail clippings and a vaginal swab from Ms. DeSoto, the victim in the instant matter, and a vaginal swab from Ms. Colomb. This type of testing could not be done at the state crime lab.
Ms. Pineda explained that there are two types of DNA. The Y-STR test is conducted for DNA that is only on the male Y chromosome. Thus, the test attempts to find male DNA and was performed on the fingernail scrapings from Ms. DeSoto. This was done because the sample taken from Ms. DeSoto’s fingernails was of poor quality and was “overwhelmed” with her female DNA. The DNA extracted from Ms. DeSoto’s fingernail scrapings indicated a male contributor and revealed that defendant was a potential contributor of the DNA, while excluding 99.8% of the African-American population as potential donors. This figure was determined by using a random data base of 1605 individuals of African-American descent. Ms. Pineda acknowledged on cross-examination that when the Louisiana State Police Crime Lab tested the DNA found on Ms. DeSoto, a male chromosome was not detected. She further testified that there was more than one male donor of the DNA found under Ms. DeSoto’s fingernails and that Ms. DeSoto’s husband could not be excluded as a minor donor. Ms. Pineda admitted that paternal relatives of the defendant could not be excluded as potential donors of the DNA sample taken from Ms. DeSoto. She explained that the Y-STRs are inherited straight from the father, so a man will have the same Y-STR profile as his father, brother, and any individuals related through the paternal line.
The state argued that in order to counter the possibility that a male relative of the defendant actually perpetrated the crime, the Y-STR profile derived from the DNA sample taken from Ms. DeSoto was compared to and found to be consistent with Y-STR testing performed on a DNA sample from the Colomb case, where defendant was established with reasonable scientific certainty as the perpetrator, and the probability of selecting a random individual with the same profile was stated as one in thirty trillion. The match of male DNA profiles from the Colomb and DeSoto cases thus excluded the possibility of male relatives of the defendant as possible perpetrators of the DeSoto crime.
In addition to evidence from the D.A. and Colomb cases, “other acts” that the state sought to introduce were incidents that occurred on February 19, 1997; July 31, 1997; and August 19, 1999. Zachary Police Department Sergeant Roderick Ennis testified at the Prieur hearing and at trial that on February 19, 1997, at about 9:00 p.m., he was patrolling the Oak Shadows subdivision when he saw the defendant. Ennis, who lived in the subdivision, knew that the defendant did not live there. He stopped him and asked for his identification. Defendant stated he had left it in his vehicle, which had broken down. Defendant indicated that he was going to his girlfriend’s house to use the telephone, but did not know the girlfriend’s name or where she lived. Upon frisking the defendant, Ennis found a knife in his front pocket. He noted that the defendant was wearing brown, western-type boots with a thick heel and had a pair of work gloves. When Ennis dropped the defendant off at his vehicle, Ennis noticed that it was a new truck that started immediately when defendant turned on the ignition. Sergeant Ennis testified that he did not arrest the defendant that night and that defendant did not commit a crime, but because there had been a rash of “Peeping Tom” Igfincidents in the area and because both Connie Warner and Randi Mebruer had lived in the subdivision, he prepared a report.
Zachary Police Department Lt. David McDavid testified at the hearing that on July 31, 1997, he investigated two “Peeping Tom” complaints in the Oak Shadows subdivision in Zachary. The defendant was arrested in the area for these incidents, and Lt. McDavid later learned that the defendant had been seen in the same, area in February of that year. Defendant was subsequently convicted of the “Peeping Tom” offenses.
On August 19, 1999, St. Francisville Police Department Officer Archie Lee took statements from three women who lived in the St. Francisville Square Apartments. Each of the women stated that the defendant had been stalking them in the apartment complex, and each identified defendant’s picture in a photographic lineup. One of the women, C.W.D., indicated that the defendant had entered her apartment on two occasions without her consent. The defendant was arrested later that day and subsequently pled guilty to “Peeping Tom” offenses. At trial, C.W.D. gave a more detailed description of her encounters with the defendant. During one of the incidents, the defendant walked up as she was unlocking her apartment door and walked with her into her apartment. He got himself something to drink, sat down, proceeded to question C.W.D. and repeatedly asked her to go out with him. He also stated that he could rape her if he wanted. He only left when she walked out of the apartment and he followed her.
After the Prieur hearing, the trial court ruled it would allow the following other acts evidence to be introduced at trial: the murder of Colomb, the attempted rape and attempted murder of D.A., the February 19,1997 stop of defendant while in Warner and Mebruer’s subdivision [ ^including the discovery of a knife on defendant’s person, the July 31, 1997 arrest in the same subdivision for two acts of “Peeping Tom”, and the 1999 incidents when defendant approached a St. Francisville Square Apartments resident and a few days later was seen again at the same apartment complex and was convicted of “Peeping Tom” offenses. The trial judge concluded that each of the crimes or acts had been proven by clear and convincing evidence and could be used at trial to show knowledge, plan, and preparation and that the probative value of the evidence outweighed the prejudicial effect.
Defendant sought review of the trial court’s ruling, and this court denied the writ. The supreme court denied defendant’s writ seeking review. State v. Lee, 2004-1205 (La.App. 1 Cir. 7/16/04) (unpublished), writ denied, 2004-1936 (La.7/30/04), 877 So.2d 997.
Article 404(B)(1) of the Code of Evidence provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Generally, evidence of other crimes committed by the defendant is inadmissible due to the substantial risk of grave prejudice to the defendant. To admit “other crimes” evidence, the state must establish that there is an independent and relevant reason for doing so, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of gfiinistake or accident, or that it relates to conduct that constitutes an integral part of the act. The Louisiana Supreme Court has also held admissible evidence of other crimes exhibiting almost identical modus operandi or system, committed in close proximity in time and place. Evidence of other crimes, however, is not admissible simply to prove the bad character of the accused. Furthermore, the other crimes evidence must tend to prove a material fact genuinely at issue, and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Millien, 2002-1006, p. 10 (La.App. 1 Cir. 2/14/03), 845 So.2d 506, 513-14, citing State v. Tilley, 99-0569, p. 18 (La.7/6/00), 767 So.2d 6, 22, cert. denied, 532 U.S. 959, 121 S.Ct. 1488,149 L.Ed.2d 375 (2001).
The procedure to be used when the state intends to offer evidence of other criminal offenses was formerly controlled by State v. Prieur. Prior to its repeal by 1995 La. Acts, No. 1300, § 2, LSA-C.E. art. 1103 provided that the notice requirements and clear and convincing evidence standard of Prieur and its progeny were not overruled by the Code of Evidence. Prieur dealt with LSA-R.S. 15:445 and LSA-R.S. 15:446, now-repealed statutes, which addressed the admissibility of other crimes evidence. Under Prieur, the state was required to give a defendant notice, both that evidence of other crimes would be offered against him, and upon which exception to the general exclusionary rule the state intended to rely. Additionally, the state had to prove by clear and convincing evidence that the defendant committed the other crimes. Millien, 2002-1006 at p. 10, 845 So.2d at 514.
1994 La. Acts, 3d Ex. Sess., No. 51 added LSA-C.E. art. 1104 and amended LSA-C.E. art. 404(B). Article 1104 provides that the burden of proof in pretrial Prieur hearings “shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404.” The amendment to LSA-C.E. art. 404(B) inserted the language “provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes” into the article.
The burden of proof required by Federal Rules of Evidence Article IV, Rule 404, is satisfied upon a showing of sufficient evidence to support a finding by the jury that the defendant committed the other crime, wrong, or act. The Louisiana Supreme Court has yet to address the issue of the burden of proof required for the admission of other crimes evidence in light of the repeal of LSA-C.E. art. 1103 and the addition of LSA-C.E. art. 1104. However, numerous Louisiana appellate courts, including this court, have held that the burden of proof is now less than “clear and convincing.” Millien, 2002-1006 at p. 11, 845 So.2d at 514.
If the prosecution is using other crimes evidence to show “identity,” the law requires that the facts of the cases be so “peculiarly distinctive” that one must logically say they are the work of the same person, but if the state wishes to use such evidence to show defendant’s “intent,” the standard is lower, and the state must only show that the crimes are similar. State v. Langley, 95-2029, p. 6 (La.App. 4 Cir. 9/4/96), 680 So.2d 717, 721, writ denied, 96-2857 (La.2/7/97), 688 So.2d 498. Where testimony shows that factual circumstances of prior acts and the crime charged are virtually identical, evidence of other crimes is corroborative of the victim’s testimony and establishes a system or plan. State v. Lewis, 95-0769, p. 5 (La.App. 4 Cir. 1/10/97), 687 So.2d 1056, 1059, writ denied, 97-0328 (La.6/30/97), 696 So.2d 1004. Where identity is genuinely at issue, system evidence has relevance independent of a defendant’s criminal propensity and should be admitted if it meets the other tests of admissibility. State v. Ester, 436 So.2d 543, 546 (La. 1983).
In State v. Bell, the Louisiana Supreme Court found that while there were some similarities between the two crimes, the prior crime was not “so distinctively similar to the charged crime (especially in time, place, and manner of commission) that one may reasonably infer that the same person was the perpetrator.” Bell was charged with armed robbery and the state sought to introduce evidence of another robbery. The supreme court found that there were many differences between the two robberies, including the race of the perpetrators and the type of weapons used, and that the identity exception to inadmissibility must be limited to cases in which the crimes are genuinely distinctive. The crimes involved robberies of bars at night and occurred within two months of one another in Ascension Parish. The perpetrators in both cases were described as wearing dark hooded sweatshirts or Starter jackets. During both robberies, the perpetrators disengaged the telephone at the scene. The only evidence directly connecting Bell to the crime was the testimony of two co-perpetrators who were charged with participation in the robbery, but had not yet been tried. The supreme court found that the sufficiency of the evidence presented by the co-perpetrators easily would be upheld if the prosecutor had not introduced inadmissible evidence for the purpose of influencing the jury’s determination of defendant’s guilt and then emphasized in argument the role of that evidence in the guilt determination. The court found that it could not conclude with any confidence that the jury’s guilty verdict was surely unattributable to the erroneous admission of evidence of a prior armed robbery committed by defendant, especially since the prosecutor exploited the inadmissible evidence in rebuttal closing argument. The supreme court found that this court concluded correctly that the other crimes evidence was erroneously admitted. A harmless error analysis was conducted, the conviction was reversed, and the case was remanded for a new trial. State v. Bell, 99-3278, pp. 4-8 (La.12/8/00), 776 So.2d 418, 421-23,
The balancing test of LSA-C.E. art. 403 is conducted if the other crimes evidence is admissible. Article 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.
In the instant case, defendant argues that the only real issue at trial was the identity of the victim’s assailant, and that the facts of the instant offense and the other crimes are not so distinctively similar that they meet the necessary standard to be introduced at trial. As to the other crimes involving Colomb and D.A., defendant argues that the use of the evidence about the DNA test results in those cases allowed the state to introduce those results during the DeSoto trial, and that this evidence highly impacted the jury, as prospective jurors had indicated in voir dire that DNA evidence was infallible. Defendant further argues that the facts presented as to each crime do not show that there were distinctive similarities; rather they were commonplace. Additionally, defendant contends that the other crimes evidence was not used for limited purposes as required, but to cast him as the serial killer suspected in numerous Baton Rouge murders. He contends that the state did not use this evidence for the stated purpose to show identity of the perpetrator through system or modus operandi.
The state argues that the Colomb and D.A. cases are similar to the DeSoto case because the defendant’s DNA was found on each of the victims. This is a bootstrap argument. DNA evidence is not an “act” and cannot by itself constitute an act similar to the crime charged that would make evidence of that act admissible in the trial of the crime charged. Absent the requisite similarity between the crime charged and the other “acts,” evidence of the other acts is not admissible at the trial of the crime charged. DNA evidence alone cannot bootstrap the other act into being “similar.” DNA is a type of evidence, not a crime, wrong, or act.
Analysis of the three crimes at issue shows that while the DeSoto case and the D.A. case are distinctively similar, the Colomb case is not. While all three victims were in a violent bloody struggle and beaten in the head and face, scenarios unfortunately common to many murder and rape cases, here the similarities end. Ms. Colomb was raped, Mrs. DeSoto and D.A. were not. A knife was used in the DeSoto and D.A. crimes, but not in the Colomb case. Cordless phones were missing in DeSoto and D.A., but not Colomb. DeSoto and D.A. were attacked in their homes at midday, Colomb’s body was found far from her house. There was evidence of a “stomp” in the DeSoto and D.A. cases, but not in Colomb. Telephone calls were placed from the homes of DeSoto and D.A., but not from that of Colomb.
We find that the facts of the instant case, when compared to the facts of the case of D.A., are so peculiarly distinctive that the evidence of the D.A. case, including DNA evidence, was prpperly admitted at trial. We cannot reach the same conclusion with respect to the evidence in the Colomb case. The cases are not distinctively similar. Nor are we persuaded by the state’s argument that the Colomb evidence was admissible to counter the possibility that one of the defendant’s male relatives perpetrated the DeSoto crime. This end could have been accomplished by testing and comparing male DNA from a known sample of the defendant rather than comparing a sample of the defendant taken from the body of Ms. Colomb. Furthermore, D.A. identified defendant at trial as her attacker.
Likewise, the various Peeping Tom, stalking, and burglary/unauthorized entry crimes, wrongs, and acts should not have been admitted. While these acts are perhaps similar to each other, and tend to paint the defendant as a sexual predator, they are not similar to the DeSoto crime. This evidence was prejudicial character evidence meant to be excluded by Prieur and Article 404(B)(1) of the Code of Evidence.
The erroneous admission of other crimes, wrongs, or acts evidence is a trial error subject to harmless error analysis on appeal. State v. Johnson, 94-1379, pp. 16-17 (La.11/27/95), 664 So.2d 94, 101. The test for determining whether an error is harmless is whether the verdict actually rendered in this case “was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182(1993); Johnson, 94-1379 at p. 14, 664 So.2d at 100.
In the case at hand, we find that the other acts evidence erroneously admitted was harmless and that the defendant’s conviction was surely unattributable to the error. The DNA evidence in the instant case showed a high probability that the defendant was the perpetrator, excluding as possible DNA contributors 99.8 % of the African-American population, although not excluding defendant’s paternal relatives or the victim’s husband as a minor contributor. Furthermore, the DNA evidence from the D.A. case excluded 99.9 % of the African-American population, but the defendant and D.A.’s husband were not excluded. However, D.A. identified the defendant as her attacker. Other physical evidence also linked the defendant to the instant crime, including his proximity, a boot print, the knife wounds, and the telephone call from the victim’s phone to defendant’s former place of employment.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number four, defendant argues that without the other crimes evidence, the remainder of the evidence introduced was insufficient to support the conviction. He contends that the remaining evidence (DNA analysis indicating a male member of his family was the perpetrator, a boot print at the scene of the murder possibly made by defendant’s boot, that he traveled a route on the day of the murder that brought him within 200 yards of the victim’s home, and that defendant carried a knife consistent with the type of knife used to kill the victim) is insufficient to prove he killed the victim.
The state argues that the evidence, particularly the DNA evidence found under the victim’s fingernails, places defendant at the murder scene and indicates he was the killer.
The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also LSA-C.Cr.P. art. 821; State v. Wright, 98-0601, p. 2 (LaApp. 1 Cir. 2/19/99), 730 So.2d 485, 486, writ denied, 99-0802 (La.10/29/99), 748 So.2d 1157, writ denied, 2000-0895 (La.l1/17/00), 773 So.2d 732.
When analyzing circumstantial evidence, LSA-R.S. 15:438 provides: “[Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This statutory test is not a purely separate one from the Jackson constitutional sufficiency standard. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Shanks, 97-1855, pp. 3-4 (La.App. 1 Cir. 6/29/98), 715 So.2d 157, 159. The reviewing court is required to evaluate the circumstantial evidence in the light most favorable to the prosecution and determine if any alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Fisher, 628 So.2d 1136, 1141 (La.App. 1 Cir.1993), writs denied, 94-0226 and 94-0321 (La.5/20/94), 637 So.2d 474 and 476. As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 98-1407, p. 6 (La.App. 1 Cir. 4/1/99), 734 So.2d 800, 805, writ denied, 99-1386 (La.10/1/99), 748 So.2d 439.
There were no eyewitnesses to directly connect defendant with the murder, and the evidence presented at trial was circumstantial. The evidence showed that a boot print at the scene of the murder matched a print made from one of defendant’s boots, and that defendant carried on his person a knife consistent with the type of knife that coüld have made the wounds the victim received. The state also presented evidence showing it was possible that on the day of the murder the defendant, on his way to get a paycheck from his former employer, traveled a route within 200 yards of the victim’s home, and that a call placed from the victim’s telephone within the estimated time of the murder was made to a number assigned to an area in a plant where defendant had previously worked. Other evidence included the results of analysis of DNA obtained from the victim’s fingernails that could not exclude defendant and his paternal relatives as a source, but could exclude 99.8% of the African-American population. Additional evidence showed that DNA test results obtained from the crimes involving D.A. indicated the defendant could not be excluded as the perpetrator in the D.A. case. Additionally, D.A. provided a police sketch of her attacker to law enforcement, and it resembled the defendant. She identified him in a photographic lineup, and she identified him as her attacker at trial.
Therefore, after a thorough review of the record and the evidence contained therein, we are convinced that a rational trier of fact could have concluded beyond a reasonable doubt that the evidence was sufficient to exclude every reasonable hypothesis of innocence, to negate any reasonable probability of mi'sidentification, and to prove that defendant was the perpetrator.
This assignment of error lacks merit.
CHANGE OF VENUE
In assignment of error number five, defendant argues that the trial court erred in denying his motion to change venue, which was based upon the failure to obtain a fair and impartial jury due to the effect of pretrial publicity on the venire. Specifically, defendant argues that misinformation about the crime and extensive media coverage saturated the community and inflamed feelings against him. He contends that every one of the prospective jurors questioned, including the seated jurors, was familiar with the facts of the case and his reputation as the suspected serial killer.
The state responds that the exposure to media coverage is not the criteria for finding the venire was tainted. Rather, it is the impact of the exposure that is reviewed to determine if the community was prejudiced and an impartial and fair trial could not be held in the place of original venue.
The record shows the trial court deferred its ruling on the motion for change of venue until after the venire had been questioned about its knowledge of the case. Several times during voir dire defense counsel reiterated the motion, which the trial judge denied. Near the end of voir dire, defense counsel reurged his motion to change venue. The judge denied the motion and stated, in pertinent part:
[T]o expect people not to know anything about it [the case] would be absurd. I don’t think there’s a square inch of ground in this state where people have not heard of this case, I don’t believe it. I just don’t believe it.
The ultimate issue for determination and what Mr. Lee is entitled to is a right to a trial by fair and impartial jurors, that’s what he’s entitled to, that’s what the law grants him.
A defendant is guaranteed an impartial jury and a fair trial. LSA-Const. art. I, § 16; State v. Brown, 496 So.2d 261, 263 (La.1986); State v.Bell, 315 So.2d 307, 309 (La.1975). To accomplish this end, the law provides for a change of venue when a defendant establishes he will be unable to obtain an impartial jury or a fair trial at the place of original venue. State v. Bell, 315 So.2d at 309.
Louisiana Code of Criminal Procedure article 622 provides, in pertinent part:
A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue, the trial court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial. State v. Hoffman, 98-3118, p. 6 (La. jPll/00),36 768 So.2d 542, 552, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000).
In unusual circumstances, prejudice against the defendant may be presumed. Unfairness of a constitutional magnitude will be presumed in the presence of a trial atmosphere that is utterly corrupted by press coverage or that is entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob. See State v. David, 425 So.2d 1241, 1246 (La.1983). Otherwise, the defendant bears the burden of showing actual prejudice. State v. Vaccaro, 411 So.2d 415, 423-24 (La.1982).
Whether a defendant has made the requisite showing of actual prejudice is a question addressed to the trial court’s sound discretion, which will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion. Several factors are pertinent in determining whether actual prejudice exists, rendering a change in venue necessary: (1) the nature of pretrial publicity and the degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. State v. Manning, 2003-1982, pp. 7-9 (La.10/19/04), 885 So.2d 1044, 1061-62, cert denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005).
In the present case, a review of these factors demonstrates the trial court did not abuse its discretion when it denied the motion. As to the factor of pretrial publicity and the degree it circulated in the community, defendant submitted, in the form of a proffer, approximately six local newspaper articles published a few days before and during voir dire. As acknowledged by the trial judge in one of his rulings on the motion to change venue, the voir dire revealed that almost all the prospective jurors examined responded they had some exposure to the instant case or the serial killer cases.
As noted earlier, defendant is not entitled to a jury entirely ignorant of his case and cannot prevail merely by showing a general level of public awareness about the crime. In several cases, high exposure to publicity before the trial did not result in reversible error for the failure to change venue. In State v. Frank, 99-0553, pp. 16-17 (La.1/17/01), 803 So.2d 1, 16-17, 110 out of 113 venire members (97%) had been exposed to some publicity surrounding the case, and 89% of the prospective jurors indicated they had been exposed to information about the case on more than one occasion or from multiple sources. See also Hoffman, 98-3118 at p. 9, 768 So.2d at 555 (72 out of 90 prospective jurors (80%) had awareness of the case before trial); State v. Connolly, 96-1680, p. 5 (La.7/1/97), 700 So.2d 810, 815 (although 120 out of 139 potential jurors (86.33%) possessed some knowledge about the crime, most had only a vague recollection of the surrounding facts).
As to the connection of government officials with the release of the publicity, some of the newspaper articles during voir dire included comments made by the trial judge likening the use of juror challenges to a game of chess. Most of the pretrial articles do not include comments by government officials, although one article includes a discussion of the evidence by the prosecutors. In the newspaper on that same day are extensive articles about the victim and about the defendant, his upbringing, his past criminal history, and facts about the other alleged serial killer cases.
Regarding the factor of the length of time between the publicity and the trial, the newspaper articles proffered by defendant indicate that the news coverage was extensive just prior to the start of voir dire and was ongoing during the trial. Although not documented by defendant, other areas in the record indicate there was extensive publicity during the investigation of the serial killer murders, at the time defendant was arrested for the murders, and at the time the victim in this case was alleged to be one of the victims of the serial killer. However, during voir dire, the trial judge repeatedly admonished the venire to avoid media coverage of the case. There is nothing in the record to indicate that any of the prospective jurors did not abide by the trial court’s admonishment. Without doubt the severity and notoriety of the offense and the other crimes to be established at trial were significant and extensive. The victim in the instant offense was alleged to have been one of more than five victims of the same offender. As noted by the trial judge, there was doubt that anyone in the state would not have heard of the serial killer cases.
The area from which the jury was drawn was in West Baton Rouge Parish, where the offense occurred. West Baton Rouge Parish is separated by the Mississippi River from East Baton Rouge Parish, where most of the other alleged serial killer crimes were committed. However, both parishes are within the coverage of the same print and electronic news media.
As shown by the record of the voir dire, many persons in the community were affected by the numerous murders of women by the alleged serial killer. Many people were more cautious during the time the murders were being committed. Some members of the community altered their laqlifestyles and obtained guns or mace to protect themselves. Among the prospective jurors questioned, the majority did not make significant changes in their lifestyle. However, a number of the venire indicated they became more relaxed and less fearful after the defendant was in custody and identified by law enforcement officials as the serial killer.
It does not appear that there were other factors that affected the candor and veracity of the prospective jurors on voir dire. Instead, as noted by the trial judge, the prospective jurors appeared to be quite truthful when questioned. Some prospective jurors indicated they had familiarity with the case or had heard opinions about defendant’s guilt or innocence from sources other than the media, presumably from discussions with friends or family, but almost all indicated they were able to set aside this information. Although there may have been a sense in the community that the defendant was the killer in the instant case and in the serial killer cases, the record does not indicate that this opinion prevented defendant from receiving a fair trial. Most of the prospective jurors and all of the seated jurors with an opinion about the defendant’s guilt or innocence stated they were able to put aside this opinion and base their verdict only upon the evidence introduced at trial.
Based upon our review of the factors and the record before us, we find no abuse of the trial court’s discretion in denying defendant’s motion for change of venue.
CHALLENGES FOR CAUSE
In assignment of error number six, the defendant argues that the trial court erred by repeatedly denying his challenges for cause.
An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. LSA-Const. art. I, § 17(A). The purpose of voir dire examination is to determine prospective jurors’ qualifications by testing their competency and impartiality and discovering bases for the intelligent exercise of cause and peremptory challenges. State v. Robertson, 97-0177, p. 18 (La.3/4/98), 712 So.2d 8, 25, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998).
Louisiana Code of Criminal Procedure article 797 provides for challenges of prospective jurors for cause as follows:
The state or the defendant may challenge a juror for cause on the ground that:
(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to - the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.
A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. State v. Martin, 558 So.2d 654, 658 (La.App. 1 Cir.), writ denied, 564 So.2d 318 (La.1990). A trial judge is vested with discretion in ruling on challenges for cause, and only where it appears upon review of the voir dire examination as a whole that the judge’s exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will this court reverse the ruling of the trial judge. See Martin, 558 So.2d at 658.
Defendant contends that the trial court erred in denying the challenges for cause as to all the seated jurors, except for Mr. L. and Mr. A., because each juror was partial, unable to accept the law, or biased due to adverse pretrial publicity. He also contends that prospective jurors W.K., S.C., and P.A. were biased. None of these three were chosen for the jury.
As to defendant’s general allegation concerning the seated jurors, without any specific argument or facts related to any one particular juror, the state responds that it is “unable to specifically' refute such a baseless allegation.” We agree that defendant’s assignment of error as to the ten seated jurors lacks specificity. Nevertheless, we have reviewed the entire voir dire, including that of the seated jurors, and find no error.
The defendant does make specific allegations regarding three prospective jurors who were unsuccessfully challenged for cause. Specifically, as to prospective juror W.K., the state responds that W.K. assured the trial court that she could put aside her previously formed opinion on the issue of guilt or innocence and apply the law as given by the court. During voir dire, W.K. indicated she could be fair and would rely on 'the evidence in determining her verdict. Later during questioning, W.K. indicated that she had seen television news reports about the defendant. Once she learned that defendant was arrested, she stopped being concerned about her safety. W.K. further stated that, although she had talked to her co-workers about the case, she did not form nor express an opinion about defendant’s guilt or innocence.
142There is no indication that W.K. was biased or prejudiced against defendant or that she could not follow the law as given to her by the trial judge. She did not indicate that she had developed an opinion; she merely had been concerned about her safety when hearing news reports of homicides in the general area. Thus, the judge’s ruling denying the challenge for cause as to W.K. was not an abuse of discretion.
S.C.’s answers to initial voir dire questioning indicated that he could put aside any opinion he may have had and follow the law as explained by the trial judge. S.C. further indicated that he had heard television news reports and read newspaper accounts regarding defendant as far back as one and one-half years before he was called for jury duty. He recalled hearing that defendant’s DNA matched that of the killer and that he believed defendant was guilty. Although he initially commented that he would not want to have himself on the jury if he were being tried, S.C. later stated he hoped he could put aside his belief about defendant. S.C. followed up his answers by stating he could put aside any opinion and had not understood the question at first. The pertinent part of the colloquy during voir dire is as follows:
Q. At some point did you form an opinion in your mind as to whether you thought he was guilty or innocent?
A. MR. COPE: As I said earlier, yes, that he was guilty.
Q. And when did you form that opinion?
A. MR. COPE: Probably at the beginning of the — whenever it came down that they caught the suspected serial killer, that the DNA matched, and....
Q. So at that point you started thinking he was probably guilty?
A. Right, right.
I43Q. Did anything happen during those, all the time he’s been in jail, from whenever you first heard about it, that changed your mind?
A. MR. COPE: Not really.
Q. You’ve heard nothing to change your opinion?
A. MR. COPE: Not particularly, no, sir.
Q. So you still hold that opinion?
A. MR. COPE: I can put it aside, but yeah, I still hold that opinion.
Q. I understand. You still are going to start with the opinion that Mr. Lee is guilty?
A. MR. COPE: Correct.
Q. So somehow you’ve got to get rid of that opinion.
A. MR. COPE: Well, I can put it aside.
Q. How are you going to put it aside?
A. MR. COPE: If I was sitting in that chair right now and somebody was accusing me and I know I’m innocent, I would expect them to put it aside.
Q. Well, let me ask you this: knowing what you know in your mind and knowing that today as you sit here you have an opinion that you think he’s guilty, let’s switch it and you were sitting in that chair and you were accused, would you want someone like you?
A. MR. COPE: No, I wouldn’t.
Q. Why not?
A. MR. COPE: Well, hopefully I would have it in the back of my mind that you think you could put everything aside and start off clean—
Q. Good question, hopefully.
A. MR. COPE: Hopefully.
Q. But you’re not sure?
A. MR. COPE: I could put it aside, so yes, I would say I want me on the— as a juror.
I44Q. Okay. First, you said you didn’t—
A. MR. COPE: I didn’t understand, I understand now.
Q. But you’ve changed your mind and you would want you?
A. MR. COPE: Right.
Q. What did you do different once you heard about Mr. Lee and these murders?
A. MR. COPE: Do differently as in?
Q. I mean like—
A. MR. COPE: Nothing.
Q. Did you have a fiancee or wife at the time?
A. MR. COPE: It didn’t directly involve us as in everyday living. We didn’t go out and get a gun or mace or anything like that.
Q. You didn’t?
A. MR. COPE: Oh, no, I wasn’t worried about that.
Q. Did you check on your fiancee more?
A. MR. COPE: Not particularly.
Q. Not at all?
A. MR. COPE: I think she can handle herself.
Q. Does she carry a gun?
A. MR. COPE: No.
Q. And if she were out at night in the Baton Rouge area?
A. MR. COPE: I would be worried, but—
Q. You were worried then?
A. MR. COPE: I would be worried, yeah. But as any day, even before that, I didn’t have my wife or a fiancee then, but you know, my mother, my brother, and my sister or something like that.
Q. And when Mr. Lee was arrested did you feel relieved?
A. MR. COPE: I could say yeah, I felt a little bit more relieved.
14SAfter reviewing the answers as a whole, it appears that S.C. indicated that he was able to be an impartial juror and that the trial court did not abuse its discretion in denying defendant’s challenge for cause as to S.C.
P.A. stated she would have to “see the evidence and weigh it” before rendering a verdict. She further indicated that if defendant exercised his right not to testify, she would not hold that decision against him. P.A. admitted seeing media coverage on television and seeing pictures of women who were missing and alleged murder victims of the serial killer. However, she did not hear any opinion of defendant’s guilt or innocence and she had not formed an opinion herself. She reiterated that she would not allow the media coverage to interfere with her decision and would base her verdict only on the evidence presented at trial. She could be fair and put aside anything heard about the case.
The record shows that P.A. consistently indicated that she could put aside any information she had received about defendant outside of trial, could follow the law in deciding the case, and could be a fair and impartial juror. The trial court’s denial of the challenge for cause as to P.A. was not error.
This assignment of error lacks merit.
INTRODUCTION OF VIDEOTAPE OF CRIME SCENE
In assignment of error number seven, defendant contends that the trial court erred in allowing the jury to be shown a videotape of the crime scene. He argues the video was gruesome and unnecessary to the state’s case because the jury also had still photographs of the crime scene to view. The state responds that the videotape did not unfairly prejudice the defendant. Instead, the videotape depicted the crime scene as it was found, corroborated other evidence, and illustrated facts in the case.
Even when the cause of death is not at issue, the state is entitled to the moral force of its evidence and postmortem photographs of murder victims are admissible to prove corpus delicti, to corroborate other evidence establishing cause of death, location, or placement of wounds, as well as to provide positive identification of the victim.
The issue of admissibility of a videotape is similar to the issue of the admissibility of still photographs; a videotape, like a photograph, may be admissible to corroborate other testimony in a case, such as: location of the body, manner of death, specific intent to kill, cause of death, and the number, location, and severity of wounds. State v. Davis, 92-1623, pp. 23-24 (La.5/23/94), 637 So.2d 1012, 1026, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994); State v. Pooler, 96-1794, pp. 42-43 (La.App. 1 Cir. 5/9/97), 696 So.2d 22, 50, writ denied, 97-1470 (La.11/14/97), 703 So.2d 1288. Photographs that illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place, or thing depicted, are generally admissible, provided their probative value outweighs any prejudicial effect. The fact that the photographs are gruesome does not of itself render the photographs inadmissible. Merely because the videotape may be “cumulative” evidence does not render the tape inadmissible. A trial court’s ruling on the admissibility of such evidence will be disturbed only if the prejudicial effect of the evidence outweighs its probative value. LSA-C.E. art. 403; Pooler, 96-1794 at p. 43, 696 So.2d at 51.
147As in Pooler, the videotape in this case depicts the scene of the crime as the police officers found it. The tape shows the doorway of the victim’s residence, the layout of her trailer including the kitchen/living room where she was confronted, the hall/laundry area leading to the bedroom, and bedroom where the victim’s body was found. The videotape also shows the victim’s body on the floor of the bedroom and the blood spatter. These matters corroborate testimony and illustrate the facts in the case. The majority of the tape does not focus on the victim’s body.
The probative value of this evidence outweighed any prejudicial effect. The videotape is no more gruesome than the still pictures introduced at trial and fully depicts the trailer’s layout and the blood spatter, which the still pictures were unable to do. Accordingly, we find that the trial court correctly allowed this evidence to be admitted over the defendant’s objection.
MOTION FOR NEW TRIAL AND MOTION TO QUASH INDICTMENT
In assignment of error number eight, defendant argues that the trial court erred in denying his Motion for New Trial and/or Motion to Quash. Defendant argues that he filed his motion after trial when he discovered that neither of the two assistant district attorneys who prosecuted the case, Mr. Tony Clayton and Ms. Becky Chustz, was competent to represent the state. Specifically, defendant contends that because there was no oath of office on file with the Secretary of State, neither assistant had the authority to prosecute the case against him or the authority to conduct the grand jury proceedings. Thus, he should receive a new trial.
The motion for new trial is based upon the supposition that injustice has been done the defendant, and unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. LSA-C.Cr.P. art. 851. In order to obtain a new trial based on newly discovered evidence, the defendant has the burden of showing: (1) the new evidence was discovered after trial, (2) the failure to discover the evidence at the time of trial was not caused by lack of diligence, (3) the evidence is material to the issues at trial, and (4) the evidence is of such a nature that it probably would have produced a different verdict. State v. Smith, 96-0961, p. 7 (La. App. 1 Cir. 6/20/97), 697 So.2d 39, 43.
The motion alleges that the new evidence (that the prosecutors did not have the authority to act as assistant district attorneys) was discovered after the trial ended. At the hearing on the motion, there was a stipulation between defendant and the state that the assistant district attorneys were lawyers in good standing and employees of the Office of the District Attorney. Witnesses who testified included the District Attorneys of East Baton Rouge Parish and West Baton Rouge Parish, the two assistant district attorneys, Tony Clayton and Becky Chustz, and an employee of the Secretary of State.
The transcript of the hearing indicates that Mr. Richard Ward, Jr., the District Attorney for the 18th Judicial District Court, identified Mr. Clayton’s written oath of office. He had no independent recollection of the signing of the document on September 16, 2003, but was adamant that he did not sign the oath on August 6, 2004, the date it was faxed to the Secretary of State’s Office. He recalled that defendant’s trial was ongoing on the August date and that he had not signed any such document at that time.
During Mr. Ward’s testimony, the trial judge noted that the parties stipulated that the filing of the oath with the Secretary of State took place on August 6, 2004. Mr. Ward further testified that at the beginning of the investigation and handling of the instant criminal proceeding, the assistant district attorneys at issue were employed by him and had the authority to prosecute the case.
Mr. Clayton testified that he signed the oath of office on September 16, 2003. He also recalled being administered the oath of office by Mr. Ward. Deborah Turner, the supervisor of the Secretary of State’s Commissions Division, testified that she saw two letters from Mr. Ward addressed to Governor Mike Foster. One was dated September 16, 2003, appointing Mr. Clayton as an assistant district attorney and requesting a commission and oath of office. Her office received these letters on September 17 and September 19, 2003. A notation on the bottom of the letters indicates that the commission, oath of office, identification card, and Code of Governmental Ethics were mailed from the Secretary of State’s office on October 7, 2003.
Ms. Turner also verified that Ms. Chustz had received documents from the Secretary of State that would not have been issued unless her office had received an oath and a request for a commission. Although a search for an oath had proved fruitless, Ms. Turner testified that after six years on file the relevant documents might well have been transferred to archives.
It thus seems probable that Mr. Clayton and Ms. Chustz executed oaths. However, even absent oaths, they were clearly authorized to prosecute the case under Article 63 of the Code of Criminal Procedure by District Attorney Ward, who tried the case with them.
In denying the motion for new trial, the trial judge questioned whether any injustice had been done to defendant. The judge also cited Thibodeaux \mv. Comeaux, 243 La. 468, 488-89, 145 So.2d 1, 8 (1962), cert. denied, 372 U.S. 914, 83 S.Ct. 729, 9 L.Ed.2d 721 (1963), which recognized that a public officer’s failure to qualify under the law does not vitiate his acts if he fulfills the requirements of a de facto officer. Thibodeaux indicates that a person is a de facto officer if he exercises the duties of his office under color of a valid appointment, but fails to conform to some requirement, such as taking an oath. Herein, the trial judge found that there was no question that the District Attorney appointed Mr. Clayton and Ms. Chustz as his assistants.
After a careful review of the record, we find no abuse of discretion in the trial court’s denial of the defendant’s motion. First, defendant did not allege in his motion or sustain his burden of showing that the newly discovered evidence would have resulted in a different verdict. Second, as argued by the state at the hearing, defendant did not show any prejudice that resulted to him by the prosecutors’ possible failure to have filed their oaths of office with the Secretary of State. Last, we agree with the trial court that it is clear that both of the assistant district attorneys were appointed to their positions by Mr. Ward, and even if they did not fulfill all the requirements, such as the filing of an oath of office, they would have acted in a de facto capacity as prosecutors.
This assignment of error lacks merit.
CONVICTION AND SENTENCE AFFIRMED.
Other decisions are in accord with Shabazz, upholding use of a subpoena to obtain DNA evidence collected via a saliva sample and/or buccal swab following a reasonableness review. See U.S. v. Garcia-Ortiz, (D.P.R. 12/23/05) (2005 WL 3533322); People v. Watson, 214 I11.2d 271, 292 Ill.Dec. 1, 825 N.E.2d 257 (1/21/05), cert, denied, 546 U.S. 1139, 126 S.Ct. 1141, 163 L.Ed.2d 1003 (2006); U.S. v. Swanson, 155 F.Supp.2d 992 (C.D. 111.7/11/01); In re Nontestimonial Identification Order Directed to R.H., 171 Vt. 227, 762 A.2d 1239 (Vt.2000); In re Grand Jury Proceedings Involving Vickers, 38 F.Supp.2d 159 (D.N.H. 12/4/98).
Mixon's testimony at trial differs slightly from the information contained in the "Motion for Issuance of Subpoena Duces Tecum.” The motion represents that the CS saw the revolver when he first entered the defendant’s vehicle and does not describe as "white” the missing woman from Zachary.
The state also notes that in order to confirm the DNA results linking defendant to the murder of Geralyn DeSoto, after defendant was in custody the state obtained another sample by filing a motion to compel a DNA sample.
Several Louisiana statutes provide authority for state intrusion based upon "reasonable grounds.” LSA-R.S. 17:416.3 provides for the search of students’ persons, desks, lockers, and other areas based upon reasonable grounds to suspect that the search will reveal evidence that the student has violated the law, a school rule, or a school board policy. LSA-R.S. 28:53 provides that a police officer may take a person into protective custody and transport him to a treatment facility for a medical evaluation when, as a result of his personal observation, the officer has reasonable grounds to believe the person is a proper subject for involuntary admission to a treatment facility because the person is acting in a manner dangerous to himself or dangerous to others, is gravely disabled, and is in need of immediate hospitalization to protect such a person or others from physical harm. LSA-R.S. 32:661(A)(1) provides for the implied consent to chemical testing for blood-alcohol content of persons operating motor vehicles in this state. LSA-R.S. 32:661(A)(2)(a) provides that the test shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person has been driving while under the influence of alcohol or a controlled dangerous substance. LSA-Ch. Code art. 621 allows a police officer to take a child into custody without a court order if he has reasonable grounds to believe that the child's surroundings are such as to endanger his welfare and immediate removal appears to be necessary for his protection.
Although not applicable to the instant proceeding, we note Article 163.1 was added to the Louisiana Code of Criminal Procedure by 2005 La. Acts, No. 38, § 1, and provides: A.A judge may issue a search warrant authorizing the search of a person for bodily samples to obtain deoxyribonucleic acid (DNA) or other bodily samples. B. The warrant may be executed any place the person is found and shall be directed to any peace officer who shall obtain and distribute the bodily samples as directed in the warrant. C. A warrant authorizing the search of a person for bodily samples remains in effect for one hundred eighty days after its issuance.
Another factor we consider is that grand jury proceedings are conducted in secrecy, not only to facilitate investigations, but to protect innocent persons. Code of Criminal Procedure article 66 seems to imply production pursuant to a subpoena duces tecum “at a time and place designated in the order’’ for the person involved to appear. Presumably the subject of the subpoena would thus have an opportunity to obtain counsel and attempt to quash or contest the subpoena, or to seek a protective order. However, the order prepared in the instant case provided for the DNA sample to be provided "instanter.” Fortunately, it also provided for the results to be sealed.
The chronology appears as follows: the composite drawing when released to the public led to interest in defendant. He was then identified through DNA as the common perpetrator of the five known serial murders. D.A. identified defendant in a photographic lineup and he was arrested for the attack on her. Subsequent DNA analysis linked defendant to Geralyn DeSoto.
In the writ action by this court, Judge McDonald concurred in part and dissented in part.
The supreme court concluded that erroneous admission of other crimes evidence is subject to harmless error analysis under the standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Chapman standard was later refined in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). The supreme court stated that the inquiry was not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. The court found that when the trial court erroneously allows inadmissible evidence, the prosecutor has a veiy heavy burden to demonstrate in the appellate court that the error was harmless beyond a reasonable doubt. State v. Bell, 99-3278 at pp. 5-6, 776 So.2d at 422-23.
We note that during jury selection in this case, 6 panels of 14 potential jurors were examined by the court and counsel before the 12-man and 2-alternate jury was empanelled. Of those 84 persons, 17 potential jurors were excused by the trial judge for various disqualifying reasons. Defendant asserted challenges for cause as to almost all of the remaining 67 prospective jurors. The trial judge granted 17 of defendant’s challenges for cause and 14 challenges for cause asserted by the state.
Article 63 provides the district attorney may employ or accept the assistance of counsel in the conduct of a criminal case.
STATE of Louisiana v. Derrick Todd LEE.
No. 2005-KA-2098.
Supreme Court of Louisiana.
Jan. 16, 2008.
Rehearing Denied March 7, 2008.
Capital Appeals Project, Jelpi Pierre Pi-cou, Jr., Marcia Adele Widder, for Appellant.
Charles C. Foti, Jr., Attorney General, Douglas P. Moreau, District Attorney, John Warren Sinquefield, Monisa L. Thompson, Dana J. Cummings, Assistant District Attorneys, for Appellee.
[OPINION BY KNOLL, Justice. type=majority]
KNOLL, Justice.
_JjOn June 25, 2003, an East Baton Rouge Parish grand jury indicted defendant, Derrick Todd Lee, with the May 31, 2002, first-degree murder of Charlotte Murray Pace, a violation of La.Rev.Stat. Ann. § 14:30. Defendant’s jury trial commenced on September 13, 2004, and the presentation of evidence ended on October 12, 2004. After hearing closing arguments at the conclusion of the guilt phase, receiving the trial court’s instructions, and deliberating defendant’s guilt, the jury returned a unanimous verdict of guilty of first-degree murder. At the conclusion of the penalty phase, the jury unanimously returned a verdict of death, finding the defendant committed the aggravated rape of the victim. The trial court sentenced defendant to death in accordance with the jury verdict and denied defendant’s motion for new trial on December 10, 2004.
This is a direct appeal under La. Const. Ann. art. V, § 5(D) by the defendant, Derrick Todd Lee. Defendant appeals his conviction and sentence raising 32 assignments of error. We will address the most significant of these errors in this opinion, and the remaining errors will be addressed in an unpublished appendix. After a thorough review of the law and the evidence, for the following reasons we affirm defendant’s first-degree murder conviction and the imposition of the death sentence.
bFACTS
The victim, Charlotte Murray Pace, was a pretty 22 year old who had just graduated from Louisiana State University (LSU) as one of the youngest recipients of a MBA degree. Her family and friends called her Murray. After graduating from LSU, she continued her graduate work with the LSU Alumni Association until her job in Atlanta at the firm of Deloit and Touche would begin later that summer.
On Friday, May 31, 2002, after leaving her graduate work, Pace washed her newly acquired 1999 BMW at approximately 11:52 aun. and then went to her Baton Rouge townhouse at [address omitted] that she shared with R.Y., a close friend for six years, to await R.Y.’s scheduled 1 p.m. arrival. Pace and R.Y. planned to travel to Alexandria, Louisiana to attend the weekend wedding of G.C., a former roommate. When R.Y. arrived at 2:00 p.m., she found Pace’s almost completely nude body lying on the floor between the bedroom door and the bed. She observed blood all over the room, on the furniture, and all over the floor; the bed was made, but the bedspread was blood-soaked. She later also found blood in the kitchen and in the hallway to the bedroom. She saw Pace had many small holes in her chest and stomach, and Pace’s throat was cut open. Unable to find the townhouse’s portable phone, R.Y. used her cell phone to call a 9-1-1 operator and then flagged down a passing police car.
In addition to the Baton Rouge City Crime Scene Unit, the Baton Rouge police, including Detectives Ike Vavasseur, Don Greene and Chris Johnson, called the Louisiana State Police Crime Lab (Crime Lab) to collect trace evidence and to conduct serological techniques prior to moving Murray’s body from the crime scene. The Crime Lab sent Julia D. Naylor, an expert in the field of forensic DNA analysis, to examine the crime scene. Her partner, Adam Becnel, accompanied her to the crime scene. Joining Naylor and Becnel at the crime scene were the East Baton Rouge Parish Coroner, Dr. Louis Cataldie, two members of the Coroner’s office, Jason Doyle and Don Moreau, and three Baton Rouge crime scene technicians, David Fauntleroy, Darryl Busbin, and Charles Thompson. The police investigators found no evidence of a forced entry into the townhouse.
With the assistance of the crime scene investigators, Naylor took swabs from Pace’s breasts and nipples, swabs from voided areas near the rib cage, a swab from her left buttock just below her vagina, and another swab on the decedent’s left thigh. These samples were deemed important because a procedure referred to as “ALS” (Alternate Light Source) revealed the presence of biological stains, e.g., urine, feces, saliva, or semen, that might yield valuable DNA evidence. In addition to this evidence, Fauntleroy, one of the crime scene technicians, found a clothing iron in the bedroom and four pieces of plastic, two black and two blue; the iron was in close proximity to Pace’s body. The base of the iron (the heating element) was blood-stained and the majority of the iron, including the handle and the cord, was missing. After the investigative team gathered the individual pieces of evidence and labeled Reach according to protocol, they submitted the specimens to the Baton Rouge City Police who logged them into evidence and sent them to the Crime Lab for scientific analysis.
After the crime scene was searched, the evidence secured, and bags were placed over Pace’s hands, the Coroner’s Office moved Pace’s body to the morgue. At the morgue, Dr. Michael Cramer collected sexual assault kit evidence, taking swabbings from the vaginal and anal areas, as well as the breasts, and submitted the kit for scientific examination. Additionally, Dr. Cramer removed the bags from Pace’s hands and took fingernail clippings for future scientific analysis. Pace’s tank top and bra, which were found loosened and pulled above her breasts, were also removed. After this evidence was bagged and labeled, Dr. Cramer presented the items to Pamela Faye Young, a Baton Rouge City police officer who works in the crime scene division. Officer Young logged the evidence into the evidence log book at the police office and secured the evidence. This additional evidence was then also sent to the Louisiana State Police Crime Lab for scientific analysis.
Dr. Cramer’s autopsy report enumerated 81 different wounds to Pace’s body and opined that the cause of death was exsanguination. He theorized that two patterns of stab wounds were present: one resembling lesions caused by a flat bladed screwdriver and the other resembling incised wounds from a knife. He also found Pace sustained blunt injuries to the head with a fractured skull and blunt trauma to the eyeballs, together with multiple bruises to the upper and lower extremities. The heart, the liver and the lungs were perforated three times each; there was also a stab wound to the left area of the eyeball that penetrated into the cranial cavity after fracturing the left frontal bone. In addition, there was an impressive wound at the top of the neck with transection of the cartilage and the esophagus accompanied with a severed left jugular vein.
Dr. Alfredo Suarez, an expert pathologist who reviewed Dr. Cramer’s autopsy report and the accompanying photographs, told the jury there were a number of defensive wounds on Pace’s arms, forearms, hands and wrists inflicted as she attempted to ward off her assailant. He agreed with Dr. Cramer’s opinion that Pace died as the result of exsanguination.
On June 13, 2002, Naylor began her DNA analysis of the evidence she obtained from the crime scene and the fingernail clippings obtained during the autopsy. Although Naylor detected seminal fluid on the swabs from Pace’s left buttock and the vaginal and cervical areas, she obtained her most complete DNA profile from the sample taken from the victim’s left buttock. Naylor calculated the probability of a random match to the genetic profile of Pace’s assailant was 1 in 3.6 quadrillion persons. Naylor recorded the result of her tests in the various DNA data banks maintained at the local, state, and national levels, but she failed to identify a consistent profile with any DNA profile already logged into the systems. Pace’s rape and murder remained unsolved during this time.
At the time of Pace’s rape and murder, there were other unsolved violent rapes and murders of women in the Baton Rouge and Lafayette areas that caused the police to further investigate these homicides. Indeed, some time later when the DNA analysts in the State Police Crime Lab compared notes on DNA samples recovered from several victims of these unsolved homicides, it showed that a single perpetrator had committed the unsolved homicides of these women. The perpetrator was thus deemed a serial killer. Because some of these homicides were used at defendant’s trial to show identity, motive, plan, system, and intent, we will now set forth the facts of five of these homicides the State used at defendant’s trial.
On September 24, 2001, eight months prior to Pace’s death, Gina Wilson Green, an attractive, successful registered nurse 40 years of age, was found strangled and raped just three doors away from Murray’s townhouse. No signs of forced entry were evident. John Colter, the lead detective from the East Baton Rouge Parish Sheriffs Office, opined that although Green’s body was found in her bed, a struggle appeared to have begun in the hallway. He said that in the hallway there were large stains, later determined to be fecal matter, a clump of hair, and Green’s earrings were separated a good distance on the floor; her shoes were found in different rooms. Crime scene personnel bagged the blouse Green was wearing, logged it into evidence, and submitted it to the Crime Lab for analysis.
Green’s shorts, as well as her purse and cell phone, were missing. Through the assistance of Cingular Wireless, Green’s cell phone provider, police officers recovered these items dumped behind a warehouse on Choctaw Street in Baton Rouge. In addition to those items, the police recovered a kitchen towel that appeared to come from Green’s home.
In April 2002, Angela Ross, an expert in DNA analysis with the Crime Lab, obtained a complete DNA profile from a spot of blood recovered from the back elbow of Green’s blouse. Consistent DNA profiles with that found on Green’s blouse were also found on the kitchen towel and her blue jean shorts. Ross described the match probability on the blouse as 1 in 3.6 quadrillion. As Ross stated, “Currently the Earth’s population is approximately 7 billion ... and if ... you would actually have to take over 500,000 Earth populations to have the chance of finding an individual that has the same exact combination of numbers at those locations.” Trial Tr. vol. XXXV, 8641 (Oct. 8, 2004).
Approximately five weeks after Pace’s murder, on July 8, 2002, Angela Ross and Julia Naylor, the two DNA analysts with the Crime Lab who had independently obtained DNA profiles in the Green and Pace murders, compared the DNA results in their respective cases. Immediately, it became apparent to them that the results from the DNA samples they independently examined in their respective cases indicated that a single perpetrator committed those homicides.
On July 9, 2002, D.A., an attractive nurse, was attacked at her home in Breaux Bridge, about 45 minutes west of Baton Rouge, in rural St. Martin Parish. On the morning of July 9, D.A. was getting ready for work when a black man, who identified himself as Anthony, knocked on her locked front door, asking for directions to the Montgomerys’s. When D.A. said she did not know the Montgomerys, the man asked to use the telephone. He then asked her if her husband might know the Montgomerys. When she eventually informed him that her husband was not at home, the stranger’s demeanor quickly changed. He forced his way into the mobile home and overpowered her. The intruder caught her by the throat, told her not to try anything because he was armed with a knife and that he would poke her in the eye. He then attempted to rape her, but he could not maintain an erection. He then bludgeoned her and attempted to strangle her with a telephone cord he cut from the home computer that was close at hand.
D.A. placed her hand between the telephone cord and her neck in an effort to stop her strangulation. She was passing in and out of consciousness when fortuitously her son, H.A., arrived at the residence. When the intruder heard H.A.’s car approach on the gravel driveway, the attacker ran out the backdoor. H.A. saw the unfamiliar car at his parents’s home. He described it as a gold Mitsubishi Eclipse with a “Hampton Has It” plate on the front and further noted it had a dent in the hood. He also observed a beige telephone cord hanging out of the ear window.
When he entered the home, H.A. found his mother on the floor, lying in a pool of blood. D.A. had a skull fracture and she was rushed via helicopter to a Lafayette hospital where she remained for five days. Crime scene personnel from St. Martin Parish secured evidence from the scene of the attack. Two significant items were preserved and logged into evidence for future forensic analysis: the severed end of the telephone cord that was cut from the computer and D.A.’s dress with DNA evidence on it.
On July 15, 2002, D.A. gave a detailed description of her attacker to Detective Arthur Boyd of the St. Martin Parish Sheriffs Office. Through her description, a composite sketch of the attacker was made. The evidence from this crime scene and the sketch, which bore a striking resemblance to the defendant, would later become vital in resolving who the perpetrator was in the unsolved homicides of the women in the Baton Rouge and Lafayette areas. Despite the existence of this sketch, at this time the investigation leads were focused on an unknown white male driving a white pickup truck.
Just three days after D.A.’s attack, Pamela Piglia Kinamore, a beautiful 44-year-old antique shop owner, was reported missing from her Baton Rouge home. On July 12, 2002, Kinamore’s husband, B.K., arrived at their home in Briarwood Place at about 11:45 p.m. He found a full bathtub, spots of blood on a bedroom rug, and a minor dishelving of the bedroom furniture. His wife Pam was not at home.
1 ¡Three days later, on July 16, 2002, a survey crew found a body just south of the Whiskey Bay exit on Interstate 10. Crime scene investigators also found a piece of telephone cord a few hundred feet from the body; later, forensic analysis would match this piece of cord to that cut from the home of D.A. three days earlier. The body, which had been exposed to three days of summer heat, was initially unidentifiable. Only though the use of dental records was the body identified as being that of Pamela Piglia Kinamore.
An autopsy revealed that Kinamore had been strangled and three significant cut wounds, five and a-half, five, and four inches long, were evident in the neck. These neck wounds cut through the skin, the windpipe, below the larynx and the opening of the airway, and opened the right carotid artery and both jugular veins. A sexual assault kit was also utilized because there was physical evidence of forceful penetration of the vagina and the anus. Defensive injuries were seen on Kinamore’s left hand, the right hand, the left elbow, the back of the forearm, the back of the arm, and the knees.
Vaginal swabbings were obtained during the autopsy and turned over to the Crime Lab for forensic analysis. Through scientific testing a DNA profile was procured. Although the profile did not produce a complete set of markers because of the body degradation, it was sufficiently extensive to genetically identify Kinamore’s attacker as the same person who murdered Green and Pace.
Thereafter, police officials realized they were looking for the same perpetrator in multiple murders and a Multi-Agency Homicide Task Force was formed in August 2002 to track down the killer.
On November 21, 2002, Trineisha Dene Colomb, an attractive 23-year-old woman, disappeared from her Lafayette home. Her car, purse, and keys were found linin Grand Coteau near the cemetery where her mother had been buried approximately seven months earlier. Three days later a hunter found Colomb’s body in the woods near Scott, Louisiana. She was wearing only a T-shirt, bra, socks and tennis shoes. Investigators found a pair of fleece pants and a pair of underwear in underbrush near the body. A pool of blood about 30-feet from the body was found and there was evidence the body was dragged through mud to where it was found by the hunter. A forensic pathologist determined Colomb died of blunt force trauma to the head. During the autopsy, the pathologist also obtained a sexual assault kit, took swabbings, and submitted the kit for forensic investigation. Carolyn Booker, a DNA analyst with the Acadiana Crime Lab, visualized semen on the vaginal swabbings and obtained a DNA profile. The profile was consistent with the DNA profile generated in the Green, Pace, and Kinamore murders.
Lastly, on March 3, 2003, L.E.S. reported his girl friend, Carrie Yoder, a beautiful 26-year-old graduate student at LSU, disappeared from her home near campus. L.E.S. reported that he entered the residence through an unlocked window; after entering the residence, he discovered the front door unlocked. Other than a key holder that was askew, a broken necklace, and a small amount of blood on Yoder’s purse, there was no indication of a struggle at Yoder’s residence.
After days of searching, a commercial fisherman found Yoder’s body on March 13, 2003, partially submerged at Whiskey Bay not far from where Kinamore’s body had been found. Upon forensic examination and a complete autopsy, it was determined Yoder was raped, strangled, beaten, and stomped. A sexual assault kit was utilized during the autopsy and a complete DNA profile was obtained from the vaginal washings. Natasha Poe, the DNA analyst who examined the evidence In obtained from Yoder’s sexual assault kit, opined the probability of a random match to the genetic profile of Yoder’s assailant was 1 in 3.6 quadrillion persons. The DNA profile Poe identified was consistent with the DNA profiles obtained in the Green, Pace, Kinamore, and Colomb murders. At trial, evidence was presented that showed defendant used a prepaid cell phone on March 3, 2003, three times at approximately 10 p.m. at locations within less than ten miles of Whiskey Bay, the place where Yoder’s body was found.
Although the forensic evidence pointed to a single killer, the police had no match of this DNA profile to any that was electronically filed in the data bases maintained on either local, state, or national levels. Accordingly, the Task Force continued its investigation, followed leads turned in, and obtained hundreds of voluntary DNA swabbings.
During this time, on May 5, 2003, independent of the Task Force, the Zachary Police Department and the Louisiana Attorney General’s Office, working in concert on the unsolved 1992 murder of Connie Warner and the disappearance of Randi Mebruer on April 27, 1999, obtained a subpoena duces tecum to obtain DNA buccal swabbings from defendant. Pursuant to that subpoena, the police and investigators located defendant at his home, obtained two buccal DNA swabbings, and logged in this evidence at the Zachary Police Department. On the next day, May 6, 2003, the Zachary Police delivered defendant’s buccal swabbings to the Crime Lab. On May 20, 2003, Natasha Poe was assigned to test defendant’s buccal swabbings and began her testing.
In the meantime, the Task Force expanded its search beyond looking for a white male in a white pickup truck because a Florida forensic lab had determined from several rare markers in the DNA that might suggest the suspect was African-American. Accordingly, on May 22, 2003, D.A. again met with Detective Boyd of the St. Martin Parish Sheriffs Office, reviewed the sketch that was first produced from her description of her black assailant, and modified it only to adjust the hairline to show a razor edge. For the first time, the Task Force joined the St. Martin Parish Sheriffs Office to broadcast D.A.’s modified sketch and her son H.A.’s description of the attacker’s fleeing vehicle through television and print media on May 23, 2003. As detailed more fully herein, the Task Force began receiving calls almost immediately after publication of D.A.’s composite drawing and the car description. All of the callers identified defendant as the assailant portrayed in D.A.’s composite drawing.
Just afterwards, on May 25, 2003, Natasha Poe completed her analysis of the buccal swabs submitted by the Zachary Police Department. Poe’s analysis identified defendant as the individual whose DNA profile was consistent with the DNA profile identified in the murders of Gina Wilson Green, Charlotte Murray Pace, Pamela Piglia Kinamore, Trineisha Dene Colomb, and Carrie Yoder. At that time, police authorities were notified, but the decision was made to withhold defendant’s name from the public.
Before defendant’s identity was publicized, the Task Force emailed a photographic lineup of six individuals to D.A.; one of the photographs depicted defendant. Immediately, D.A. picked out defendant as her assailant, signed her name underneath the individual photograph she identified, and emailed her response to the Task Force.
lisEven though the Task Force was initially unable to locate defendant at his St. Francisville home, on May 26, 2003, it chose to release defendant’s identification as the serial killer. On May 27, 2003, Chris J. Johnson, an East Baton Rouge Parish homicide detective, assisted by the FBI, the U.S. Marshals Service, and the Atlanta Police Department, arrested defendant in Atlanta, Georgia. Defendant did not contest his extradition to Louisiana.
After defendant’s arrest and pursuant to a court order, blood was drawn from defendant for further DNA testing. The Louisiana State Police Crime Lab analyzed the blood drawn from defendant and determined that the likelihood of randomly finding another individual other than defendant having the same genetic profile was 1 in 3.6 quadrillion.
On March 31, 2004, the district court ruled the murders of Gina Wilson Green, Pamela Piglia Kinamore, Trineisha Dene Colomb, and Carrie Yoder, as well as the attempted rape and murder of D.A., were admissible other crimes evidence for the limited purpose of proving identity, motive, plan, system, and intent. This matter then proceeded to trial by jury. As noted above, an unanimous jury found defendant guilty of the first-degree murder of Charlotte Murray Pace and determined the defendant should be sentenced to death.
ASSIGNMENTS OF ERROR
Motion to Suppress DNA
Defendant contends the trial court erred when it denied his motion to suppress DNA evidence collected on May 5, 2003, by the Zachary Police Department and the Louisiana Attorney General’s Office. Defendant’s argument is threefold: (1) he did not consent to have his cheeks swabbed for a DNA sample; (2) there was no legal and constitutional basis for the use of an Attorney General’s subpoena duces tecum issued under La.Code CRiM. PROC. Ann. art. 66 without probable cause and not in conformity with the requirements of a search warrant; and (3) the inevitable discovery doctrine was inapplicable to the facts in this case.
The Louisiana and Federal constitutions prohibit unreasonable searches and seizures. U.S. Constitution Ann. art. IV; La. Const, ann. art. I, § 5. A search warrant may issue only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. La. Const. Ann. art. I, § 5; La.Code CRiM. Peoc. Ann. art. 162. Probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Johnson, 408 So.2d 1280, 1283 (La.1982); La Code CRiM. Proc. Ann. art. 162. The task for a reviewing court is simply to insure that under the totality of the circumstances the magistrate had a “substantial basis” for concluding probable cause existed. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). Determination of probable cause does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879, 880. A warrantless search is per se unreasonable unless it falls within certain limited, well-delineated exceptions to the warrant requirement. Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Hernandez, 410 So.2d 1381 (La.1982); State v. Zito, 406 So.2d 167 (La.1981). Warrants therefore are generally required to search an individual’s home or person, “unless ‘the exigencies 11Rof the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” State v. White, 399 So.2d 172, 175 (La.1981). The trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. State v. Vessell, 450 So.2d 938, 943 (La.1984).
In Schmerber v. California, 384 U.S. 757, 761-64, 86 S.Ct. 1826, 1830-32, 16 L.Ed.2d 908 (1966), the Supreme Court assumed that a search warrant resting on probable cause issued by a neutral magistrate would be required for all body-invasion searches; in that case a blood sample was used to determine blood-alcohol content. Id., 384 U.S. at 770, 86 S.Ct. at 1835 (“Search warrants are ordinarily required for dwellings and, absent an emergency, no less could be required where intrusions into the human body are concerned.”); compare Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989) (drug and alcohol testing of railroad employees constituted a “search” where it involved breath and urine analysis); Cupp v. Mur phy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (involuntary collection of fingernail scrapings a search); Winston v. Lee, 470 U.S. 753, 760-61, 105 S.Ct. 1611, 1616-17, 84 L.Ed.2d 662 (1985) (order to compel surgical operation to remove a bullet constituted a search); California v. Trombetta, 467 U.S. 479, 481, 104 S.Ct. 2528, 2530, 81 L.Ed.2d 413 (1984) (breath test a search); Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952) (induced vomiting violation of due process); with United States v. Dionisio, 410 U.S. 1, 8, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (production of voice exemplar not a search); U.S. v. Mara, 410 U.S. 19, 21-22, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (mandated production of handwriting exemplar not a search); Davis v. Mississippi 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (collection of (fingerprints not a search); In re Shabazz, 200 F.Supp.2d 578, 581 (D.S.C.2002) (grand jury sought saliva sample after reasonable suspicion established, collection not a search where it was used in a grand jury setting to establish probable cause for later arrest).
The issue of DNA collection through a La.Code CRiM. PROC. Ann. art. 66 Attorney General/District Attorney’s investigatory subpoena duces tecum is res nova to this Court. Accordingly, we find it appropriate to look at the decisions of other courts to examine their characterization of the collection of DNA in terms of the requirement for a search warrant.
According to the United States Fifth Circuit, “[i]t is undisputed that the collection of a saliva sample for DNA analysis is a search [requiring a warrant] implicating the Fourth Amendment.” Kohler v. Englade, 470 F.3d 1104, 1109 (5th Cir.2006); see also, Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir.2005) (“The Commissioner does not dispute that the statutorily required extraction of saliva for DNA profiling constitutes a ‘search’ within the meaning of the [Fourth] Amendment.”); Groceman v. U.S. Dep’t of Justice, 354 F.3d 411, 413 (5th Cir.2004) (“The extraction of blood from a prisoner to collect a DNA sample implicates Fourth Amendment rights.”); Schlicher v.(NFN) Peters, I & I, 103 F.3d 940, 942-43 (10th Cir. 1996) (“It is agreed that the collection, analysis and storage of blood and saliva ... is a search and seizure within the meaning of the Fourth Amendment.”); In Re Grand Jury Proceeding, 455 F.Supp.2d 1281, 1282 (D.N.M.2006) (saliva samples may not be compelled by a grand jury on the mere chance that desired evidence might be obtained); but see Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996) (collection of sex offender inmate’s saliva does not violate any expectation of privacy in the information revealed where the inmate has diminished privacy rights and procedure not dissimilar from fingerprinting); State v. Lee, 05-0456 (La.App. 1 Cir. 5/16/07), 964 So.2d 967 (reasonable suspicion sufficient to justify subpoena duces tecum to compel production of buccal swab for DNA sample). When the facts of the present case are compared to the aforementioned jurisprudence of other courts, we find the collection of defendant’s DNA constituted a search.
Before addressing the heart of this issue as it pertains to defendant’s motion to suppress and as a preliminary matter, we note the State argued to the trial court and again before us that defendant consented to produce DNA samples through the use of buccal swabbings of both cheeks. Thus, the State urges defendant’s consent obviated the necessity for a search warrant.
For this argument to be successful, the State will have to hurdle the burden of showing more than acquiescence to a claim of lawful authority. As stated in Bumper v. North Carolina:
When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.
Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).
ln the present case, it is clear law enforcement officers from the Attorney General’s Office and the Zachary Police Department encountered defendant at his home, advised him they had a court order compelling him to submit to swabbing to obtain his DNA, and showed him a subpoena duces tecum, requiring him to submit a DNA sample instanter. Given these facts, it is clear under Bumper defendant simply acquiesced to the lawful authority of law enforcement and it cannot be said that such acquiescence constituted free and voluntary consent. Therefore, although the trial court never reached the issue of defendant’s consent, we find no merit to the State’s contention that defendant consented to the buccal swabbings.
The State next asserts a subpoena duces tecum issued by a judge under La. Code CRIM. PROC. Ann. art. 66 is the “functional equivalent” of a search warrant that would not violate the protections of the Fourth Amendment.
La.Code CRIM. Proc. Ann. art. 66(A) states in relevant part:
Upon written motion of the attorney general or district attorney setting forth reasonable grounds therefor, the court may order the clerk to issue subpoenas directed to the persons named in the motion, ordering them to appear at a time and place designated in the order for questioning by the attorney general or district attorney respectively, concerning any offense under investigation by him. The court may also order the issuance of a subpoena duces tecum.
The basis for the State’s argument is that art. 66 subpoenas and search warrants are equivalent because both require review by a neutral magistrate. However, as recognized by the First Circuit in State v. Lee, a subpoena duces tecum does not require probable cause, as a search warrant does. State v. Lee, 05-0456, pp. 8-9, 964 So.2d 967. A subpoena duces tecum can be supported by probable cause, but such a threshold showing is not required. A District Attorney or the Attorney General must instead only establish “reasonable grounds” to support the subpoena, and as with any other subpoena, the issuing party must give “a reasonably accurate description” of what is sought. La. Code Crim. PROC. Ann. art. 66; La.Code Chim. PROC. Ann. art. 732.
In the present case, the State adduced testimony during redirect examination at the pretrial suppression hearing that the purpose of the subpoena was to gather evidence to obtain probable cause to arrest defendant. For this reason it filed the court order authorizing the subpoena under seal to protect the intended target should the swabbings exclude him as a suspect. Even though the State avers in the present case that a judge reviewed the subpoena request and stated at a pretrial suppression hearing that he “realized the import of the request,” “applied [the] probable cause standard,” and “would have signed a search warrant,” such treatment exceeded what is statutorily called for in art. 66.
Notwithstanding its post hoc finding of probable cause (after the DNA test led to the arrest of defendant), there is no way to ascertain which standard the judge utilized when presented with the art. 66 request for the issuance of a subpoena duces tecum. Moreover, despite the State’s claims of the equivalence of the subpoena to a li>nsearch warrant, we observe the subpoena in the present case did not include the sworn supporting affidavit a search warrant is required to contain. La. Const. Ann. art. I, § 5 (“No warrant shall issue without probable cause supported by oath or affirmation ... ”). As evidenced in his testimony at the motion to suppress, the issuing judge twice acknowledged what he signed was not a search warrant.
Regardless, even assuming a subpoena duces tecum may constitute the functional equivalent of a search warrant in some circumstances, the application at a minimum must rest upon a showing of probable cause, not simply the “reasonable grounds” required by art. 66. Thus the application must contain within its four corners the facts establishing the existence of probable cause. State v. Duncan, 420 So.2d 1105 (La.1982); State v. Wells, 253 La. 925, 221 So.2d 50 (1969). In passing on the validity of a search warrant (or its functional equivalent), a reviewing court may consider only information brought to the magistrate’s attention. Aguilar v. Texas, 378 U.S. 108, 109, n. 1, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723. In other words, to be a valid search, the State must have unintentionally obtained a de facto search warrant captioned as an art. 66 subpoena duces tecum. Cf. State v. Clark, 02-1463, p. 36 (La.6/27/03), 851 So.2d 1055, 1081 (court order for production of blood sample equivalent of proper search warrant, notwithstanding its name, when it was “issued with all of the safeguards that a warrant affords” and probable cause found).
Assuming the correctness of the State’s argument on this point, we nonetheless find it did not present the trial court sufficient facts to support a finding of probable cause for the lawful issuance of a warrant. In the present case, the State based its request for a subpoena on five factors: (1) defendant had been arrested years before on a “Peeping Tom” charge in the subdivision in which the two victims in Zachary had been abducted and/or murdered; (2) defendant had an extensive criminal record involving arrests, charges, and/or convictions for burglary, attempted burglary, stalking, aggravated battery, trespassing, and “Peeping Tom” charges; (3) both defendant and his girl friend indicated he had occasion to drive past Randi Mebruer’s subdivision the night she disappeared; (4) defendant was not incarcerated at the time of the abduction/murders of the two Zachary victims, or of any of the other serial killer’s victims; and (5) a friend of defendant informed police that defendant had told him the “police were harassing him” about the disappearance of a Zachary woman just two days after Mebruer’s disappearance.
Even when considered under the totality-of-cireumstances, we find these factors do not support the conclusion the State established probable cause in its subpoena request. See Gates, 462 U.S. at 229-230, 103 S.Ct. at 2327-28. When viewed from the perspective that this subpoena was sought before it was shown that defendant was conclusively linked by his DNA to the murders, his prior criminal history, his movements within the community, as well as his lack of incarceration at the time of those murders and those of the serial killer were insufficient to provide a reasonable basis to conclude he was involved with the Zachary abductions/murders. See e.g., Kohler v. Englade, 470 F.3d 1104, 1111 (5th Cir.2006) (“While the use of prior arrests and convictions can be helpful in establishing probable cause, especially where the previous arrest or conviction involves a crime of the same general nature as the one the warrant is seeking to uncover,” burglary is not a crime of the same general nature as rape or murder)(citing Greenstreet v. County of San Bernardino, 41 F.3d 1306, 1309 (9th Cir. 1994)); Robinson v. Texas, 03-04-0025 (Tex.App.-Austin 9/7/06) 2006 WL 2589249 (“Appellant is correct to assert that neither his reputation, his prior criminal record, nor his presence in a high-crime neighborhood gave the officers probable cause to arrest him.”).
Furthermore, a confidential informant’s unsubstantiated declaration that defendant had mentioned “being harassed by the police about a missing woman” two days after Mebruer’s disappearance is insufficient to reasonably suggest he was responsible. This insufficiency is underscored and heightened where there is no background given in the motion for the issuance of the subpoena about the source’s credibility or connection to defendant. There is no “corroboration through other sources of information [that would reduce] chances of a reckless or prevaricating tale, thus providing a substantial basis for crediting the hearsay.” Gates, 462 U.S. at 244-45, 103 S.Ct. at 2335; State v. Williams, 338 So.2d 1365, 1369 (La.1976) (when affidavit that contained no attestation to reliability of informant, nor disclosed informant’s basis for conclusions, it could not support issuance of search warrant). Setting aside the absence of any sworn statements or other indicia of a valid search warrant, the factors listed in the motion for the issuance of the subpoena duces tecum did not rise to the level of probable cause.
Having disposed of these initial issues, we now examine whether the evidence from defendant’s buccal swabbing is admissible under the inevitable discovery rule. Defendant claims the State failed to prove by a preponderance of the evidence that it would have inevitably discovered his DNA through other unrelated investigations. To the contrary, the State argues each investigation would have inevitably identified defendant as a viable suspect and further posits that defendant may have already been identified as a suspect at the time of the issuance of the subpoena duces tecum.
One of the theories courts use in addressing “fruit of the poisonous tree” issues is the inevitable discovery rule. The inevitable discovery doctrine “is in reality an extrapolation from the independent source doctrine: Because the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 2534, 101 L.Ed.2d 472 (1988). A functional similarity exists between the independent source and inevitable discovery doctrines because both seek to avoid excluding evidence the police “would have obtained ... if no misconduct had taken place.” Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984). The State therefore bears the burden of proving by a preponderance of the evidence that “the information ultimately or inevitably would have been discovered by lawful means.... ” Id.; State v. Vigne, 01-2940 (La.6/21/02), 820 So.2d 533, 539. Application of the inevitable discovery doctrine thus “involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment....” Nix v. Williams, 467 U.S. at 444, 104 S.Ct. at 2509 n. 5; State v. Vigne, 820 So.2d at 539.
Integral to the proper application of the inevitable discovery doctrine is a finding that law enforcement would have inevitably secured the evidence by lawful means, not simply that they could have. Thus, a mere showing that the police had probable cause for a search and could have secured a warrant from a neutral magistrate does not satisfy the doctrine, because it would effectively obviate the Fourth Amendment preference for warrants and reduce the exclusionary rule to cases in which the police lack probable cause. See United States v. Elder, 466 F.3d 1090, 1091 (7th Cir.2006)(“The usual understanding of that doctrine is that the exclusionary rule should not be applied when all the steps required to obtain a valid warrant have been taken before the premature search occurs [citing Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) ].... If probable cause alone— without putting in train the process of applying for a warrant — were enough to invoke the inevitable-discovery doctrine, that would have the same effect as limiting the exclusionary rule to searches conducted without probable cause.”); see also 6 LaFave, Search and Seizure, § 11.4, at 278-79 (Fourth Ed.) (“Circumstances justifying application of the ‘inevitable discovery’ rule are most likely to be present if these [independent] investigative procedures were already in progress prior to the discovery via illegal means, as in Nix v. Williams, or where the circumstances are such that, pursuant to some standardized procedures or established routine a certain evidence-revealing event would definitely have occurred later.”).
In the case sub judice, the State asserts law enforcement was closing in on defendant, various agencies were pursuing him as a suspect, and more leads which drew attention to defendant were coming in daily. The State further contends it would have inevitably acquired the defendant’s DNA either by consent or through “surreptitious” means, e.g., by checking defendant’s garbage, searching for cigarette butts, soft drink cans, envelopes, disposable plates and utensils. The State contends that through the “quality and quantity of evidence available to the Serial Killer Task Force, Zachary Police, West Feliciana Parish Sheriffs Department, Attorney General’s Office, and St. Martin Parish Sheriffs Office was such that each agency [would eventually have] come to regard defendant as a suspect.” State brief at 21.
The record shows two lines of criminal investigation involving defendant were underway prior to the issuance of the subpoena duces tecum on May 5, 2003. The first branch consisted of members of the Zachary Police Department and investigators with the Louisiana Attorney General’s Office who were investigating the April 27, 1999, disappearance of Randi Mebruer from her Zachary home, as well as the 1992 murder of Connie Warner. Ray Day, a police officer with the Zachary Police Department, testified he had actively investigated Mebruer’s disappearance (her body has never been found) from the very beginning and defendant was the main suspect. 1 ^Dannie Mixon, an investigator with the Attorney General’s Office, stated he too had actively assisted the Zachary Police Department in the disappearance of Mebruer and he viewed defendant as the primary suspect since the end of April 1999. It was because of this continued investigation and the recent information the confidential informant provided that prompted the Attorney General’s Office to seek the art. 66 subpoena duces tecum. Neither the Zachary Police Department nor the Louisiana Attorney General’s Office were part of the Multi-Agency Homicide Task Force (Task Force) formed in August 2002.
Independent of the Zachary Police Department and the Louisiana Attorney General’s Office, the Task Force was conducting its own investigation after DNA profiles were matched in the Green and Pace murders in East Baton Rouge Parish by Angela Ross and Julia Naylor, two forensic DNA analysts with the Crime Lab. David Smith, a detective with the East Baton Rouge Parish Sheriffs Office, testified at the hearing on defendant’s motion to suppress that a lead was first called in to the Task Force on September 4, 2002, naming defendant as a suspect in the serial killings. That lead was assigned to a member of the Narcotics Division who “closed” the lead at that time because defendant was neither white nor did he drive a white truck, the two elements then deemed characteristic of the suspected serial killer.
Notwithstanding the earlier “closure” of the lead identifying defendant, the Task Force received a new lead on March 31, 2003, naming defendant as a suspect in the serial killings. At that time, this lead was reopened for two reasons: (1) a sample of the matching DNA evidence acquired in the Green and Pace murders was sent to a Florida lab which determined that several rare markers in the DNA might suggest the suspect was African-American; and (2) while the police canvassed the neighborhood shortly after Carrie Yoder’s disappearance on March 3, 2003, the Task lafiForce received reports of a black male being seen around Carrie Yoder’s house shortly before her murder.
Testimony was presented at the suppression hearing that the new tip of March 31 was reassigned to an investigator who unsuccessfully attempted to contact defendant once. When the investigator could not locate defendant, he left instructions with the West Feliciana Parish Sheriffs Office to let him know when defendant was seen again. The agent, however, had not yet located defendant before the Attorney General’s office collected defendant’s DNA on May 5, 2003.
These tips that named defendant as a suspect prior to the May 3 issuance of the subpoena duces tecum, though not conclusive in the analysis of inevitable discovery, are significant when placed into the context of the operations of the Task Force. As the State notes, the evidence showed 26,000 suspects and their corresponding leads were to be investigated and not “closed” until successfully resolved vis-a-vis an alibi that could be established or by the voluntary submission of DNA and the exclusion of that profile when compared against that generated by the State Police Crime Lab. Utilizing that criteria, approximately 18,000 leads had been “closed” at the time of defendant’s capture. At the time of the release of the DNA testing that identified the serial killer, the Task Force’s new lead on defendant had not yet been closed.
Against that backdrop, Detective David Smith testified that “but for” defendant’s arrest, the Task Force investigator would have worked the lead on defendant until it too could have been cleared by alibi or DNA exclusion. The investigator also testified that in the event consent was not given by a suspect for a DNA sample, and an alibi could not be otherwise established, “that entire team would be dedicated to resolving that lead one way or another.” Trial Tr. vol. XXI (Oct. 22, 2004). He further stated DNA could also have been collected by the aforementioned surreptitious means with other leads.
Even though this evidence demonstrates “historical facts capable of ready verification or impeachment” as enunciated in Nix, we need not rest our resolution of the inevitable discovery rule on these facts alone. As the chronology of events unfolded, it is important to remember that although defendant’s buccal swabbings were obtained on May 3, 2003, Natasha Poe, the analyst in the State Police Crime Lab who examined the swabbings, testified at trial that she did not begin her analysis until May 20 because she was out of town, and did not conclude her testing until May 23, 2003. She then reported her findings immediately to her superior who evidently did not convey them to the Task Force until May 25, 2003.
Two days prior to the release of the Crime Lab’s results of the May 3 swabbings of defendant, the investigation leading to the identification of defendant as the South Louisiana Serial Killer by lawful means intensified with the release of D.A.’s composite drawing and her son’s description of the car he saw in the [D.A.] driveway. D.A., the only victim that survived the defendant’s attack, had provided a detailed description of her July 22, 2002, attacker to the St. Martin’s Parish Sheriffs Office and a composite drawing of her attacker was produced. This drawing remained underutilized by the Task Force for nearly a year because the focus of attention was not on an African-American male. After the Task Force’s focus broadened, the Task Force met with D.A. on May 22, 2003. At that time, D.A. made a slight adjustment to her original composite with regard to her assailant’s hairline. On May 23, 2003, Mary Ann Godwa, the spokesperson for the Task Force, testified that on May 23 she conducted a noon press conference at the Lafayette Parish Sheriffs Office to release the sketch of the assailant to the television and press media. After the press conference and over the course of the next day, the Task Force received four different tips referring to defendant by name and describing his car as a match to the one D.A.’s son described. As can be verified from the record, D.A.’s sketch of her attacker, given approximately ten months before defendant’s buccal swabbing, bore a striking resemblance to the defendant.
The first new tip came on May 23, 2003, the day of the release of the composite drawing, at 2:24 p.m. The caller, as summarized in the Task Force’s event narrative, indicated:
Thinks she knows the person because of the description of the car, a gold Mirage. He was a Peeping Tom before. She thinks his name is Todd Lee. He is from St. Francisville. He is always in and out of jail. His wife had a type of car ... they are describing. Not long ago he was charged with a crime similar to breaking in. Call her if you need more information.
Trial Tr. vol. XXI, 5149 (April 22, 2004).
The second tip was received at about 6:16 p.m. on May 23, 2003. The call narrative to the Task Force was summarized as follows:
Caller works for a local sheriffs office. He knows someone that has a past criminal history for stalking women from the St. Francisville area. His name is Derrick Lee, about 5'10". The suspect made the comment that he had killed a woman he was dating before. The suspect fits the sketch. He’s light-complected, black male. He had a small gold car at one time. He keeps himself up really clean, keeps his hair short, thin mustache and he has a muscular build.
Trial Tr. vol. XXI, 5151 (April 22, 2004).
Another email tip was received on May 24, 2003, at 5:41 p.m. That tip was summarized as follows:
The event narrative here was he was looking at the picture of the man on the front page of The Advocate. His name is Derrick Lee and he lives in St. Francisville. He has a history of being a peeping tom and was the prime suspect in a double homicide in Zachary. Randy Metz with the West Feliciana Sheriffs Department can tell you more about the case.
Trial Tr. vol. XXI, 5152 (April 22, 2004).
Again on May 24, 2003, a fourth tip was received. Its summary indicated:
The event narrative here is calling to report a man that fits the description of serial killer. This man has a gold Mirage that is wrecked in the front, and the man that tried to rape a woman in Breaux Bridge had a gold Mirage that was wrecked in the front too. He is the exact same man in today’s paper except that his lips need to be a little bit bigger. His name is Derrick Todd Lee and he used to live on Highway 61 right after you pass the truck stop called Southern Belle. The car is parked in front of his mother’s house in St. Francisville on Blackmore Road. His whole family lives in that area and he never moved out of the house but just disappeared with wife and kids.
Trial Tr. vol. XXI, 5153 (April 22, 2004).
Although these leads were received on May 24, and May 25 by the Task Force after publication of D.A.’s composite sketch and her son’s description of the attacker’s vehicle, they were unable to be pursued before defendant’s arrest a short time later on May 27, 2003.
Considering the historical facts that are verifiable, we find the State satisfied its burden of showing by a preponderance of the evidence there was a parallel and independent investigation unrelated to the illegal search that would have inevitably and legally yielded defendant’s DNA. When viewed in light of the Task Force’s receipt of four rapid-fire tips identifying defendant by name and make of car after the release of the sketch of the serial killer, it is apparent defendant’s apprehension was no longer an object of pure speculation, but rather a matter of imminent reality. The tips various citizens called in provided probable cause to arrest defendant as D.A.’s assailant. Through the pursuit of this entirely independent investigation based on information entirely untainted by the prior collection of defendant’s DNA sample, it is evident the police would have arrested the defendant and would have secured a DNA sample. Thus, the State has shown: (1) there is a reasonable probability the contested evidence would have been discovered by lawful means in the absence of police misconduct; and (2) law enforcement was actively pursuing a substantial alternate line of investigation at the time of the constitutional violation. See e.g., United States v. Lamas, 930 F.2d 1099, 1102 (5th Cir.1991); United States v. Cherry, 759 F.2d 1196, 1205-1206 (5th Cir. 1985); cf. United States v. James, 353 F.3d 606, 616 (8th Cir.2003) (no proof of inevitable discovery given absence of evidence that there was actual, alternative investigation which would have led to discovery of evidence); United States v. Procopio, 88 F.3d 21, 27 (1st Cir.1996) (inevitable discovery exception applicable when local police would have certainly contacted local agents and secured a warrant on their own); United States v. Drosten, 819 F.2d 1067, 1071 (11th Cir.1987) (inevitable discovery exception applicable when evidence indicated police knew witness’s telephone number and were actively pursuing evidence of his name through lawful avenue of discovery when illegal search revealing name occurred); Davis v. Georgia, 262 Ga. 578, 583, 422 S.E.2d 546, 551 (1992) (no inevitable discovery found where the State did not show a standard procedure where warrant would have been sought following 10-year-old child’s telephone call stating that drugs were in house).
In summation, the collection of defendant’s DNA constituted a Fourth Amendment “search” that would require probable cause, a sworn supporting affidavit, and the issuance of a proper search warrant. The State’s attempt to file a subpoena duces tecum through the use of La.Code CRim. PROC. Ann. art. 66 was a circumvention of the constitutional mandates for the issuance of a search warrant based upon probable cause. However, due to the sheer size and complexity of the search for the South Louisiana Serial Killer, other agencies working independently of the Attorney General and the Zachary Police Department received specific tips naming defendant as a suspect both before and after the illegal search. Task Force members testified as to their standard procedure used to pursue every lead and exclude every suspect through alibis and/or DNA analysis. Accordingly, it is clear from the record that law enforcement already suspected defendant, and had an established operational procedure to investigate him at the time the DNA from the illegal search was obtained and matched. Law enforcement then acquired probable cause to arrest defendant and secure his DNA to identify him as D.A.’s assailant as well as the other murders. Consequently, defendant’s DNA would have been inevitably collected and matched to his victims. Thus the trial court properly denied defendant’s motion to suppress.
Motion for Change of Venue
Defendant contends the trial court’s denial of his motion for change of venue based upon the extraordinary media coverage of this case unfairly deprived him of his right to a fair trial by an impartial jury. Defendant argues this case was extraordinary and the notoriety inherently associated with the search for the South Louisiana serial killer brought into question the issue of whether defendant could receive a fair trial in the Baton Rouge community. Additionally, defendant emphasizes he was tried and convicted just a month before this trial in West Baton Rouge Parish of the second-degree murder of Carolyn Barr Desoto and news coverage of that trial flooded East Baton Rouge Parish. See, n. 8, supra.
On July 17, 2003, defendant filed a motion for change of venue, and supplemented that motion on January 30, February 6, and February 27, 2004. After defendant introduced thousands of print and media stories about the search for the South Louisiana Serial Killer into evidence, the trial court deferred ruling on the motion until after jury selection commenced. Ultimately, on the fourth day of jury selection, the trial court denied defendant’s motion for change of venue. As a result of the trial court’s deferral of defendant’s motion until voir dire examination began, we have the entire record of voir dire examination, approximately nine volumes of the trial transcript involving more than 100 jurors, to examine whether defendant was able to select a fair and impartial jury.
As provided, in pertinent part, in La. Const. Ann. art. I, § 16, “Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law.” Concurrent with that right, the law provides for a change of venue when a defendant establishes he will be unable to obtain an impartial jury or a fair trial at the place of original venue. State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, 140.
La.Code Cmm. PROC. Ann. art. 622 governs change of venue which provides:
A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.
In unusual circumstances, prejudice against the defendant may be presumed. See State v. David, 425 So.2d 1241, 1246 (La.1983) (“[Ujnfairness of a constitutional magnitude will be presumed in the presence of a trial atmosphere which is utterly corrupted by press coverage or which is entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob.”). Otherwise, the defendant bears the burden of showing actual prejudice. State v. Vaccaro, 411 So.2d 415, 423-24 (La.1982); State v. Adams, 394 So.2d 1204, 1207-8 (La.1981); State v. Williams, 385 So.2d 214, 215-217 (La.1980).
A defendant must prove more than mere public general knowledge or familiarity with the facts of the case to have his trial moved to another parish. State v. Frank, 99-0553 (La.1/17/01), 803 So.2d 1, 16 (no “bright line test for determining the degree of prejudice existing in the collective mind of the community ... the defendant must show the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case before trial”). A defendant is not entitled to a jury entirely ignorant of his case and cannot prevail on a motion for change of venue merely by showing a general level of public awareness about the crime. State v. Clark 02-1463 (La.6/27/03), 851 So.2d 1055; see also State v. Huls, 95-0541 (La.App. 1 Cir. 5/29/96), 676 So.2d 160, 172 (defendant was not entitled to change of venue of murder trial based on pretrial publicity, when thorough voir dire of prospective jurors was conducted, most jurors were questioned individually about their exposure to publicity, and all prospective jurors who could not make unbiased judgment based on their exposure to pretrial publicity and their inability to set aside that information were excused). However, courts must differentiate largely factual publicity from that which is invidious or inflammatory because they present real differences in the potential for prejudice. State v. Clark, 851 So.2d at 1071.
Whether a defendant has made the requisite showing of actual prejudice is “a question addressed to the trial court’s sound discretion which will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion.” State v. Wilson, 467 So.2d 503, 512 (La.1985) cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985); see also Vaccaro, 411 So.2d at 424. Several factors are pertinent in determining whether actual prejudice exists, rendering a change in venue necessary, including: (1) the nature of pretrial publicity and the degree to which it has circulated in the community; (2) the connection of government officials with the release of the publicity; (3) the length of time between the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury is to be drawn; (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant; and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. State v. Bell, 315 So.2d 307, 311 (La.1975); see also State v. Brown, 496 So.2d 261, 263 (La.1986). Moreover, the jurisprudence shows courts have examined the number of jurors excused for cause for having a fixed opinion as another gauge of whether prejudice exists in the public mind. Clark, 851 So.2d at 1071.
Nature of pretrial publicity: In support of defendant’s motion for change of venue, he filed into evidence over 5,000 pages of printed media reports and newscast transcripts published between July 2002 and January 2004 that related to the South Louisiana Serial Killer. The record also reveals that 123 of 125 potential jurors stated they were at least vaguely familiar with this case through media accounts or informal private conversations. We further observe the trial court only excused 40 jurors (32%) for cause due to their exposure to publicity or opinions of the ease. Additionally, defendant challenged 16 jurors for cause. Accordingly, if defendant had been granted all of these challenges, the total percentage of cause challenges would have been 44%. After examining these statistics and surveying prior jurisprudence, we find these numbers consistent with other similarly situated cases in which venue was not changed. See State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297, 315 (capital murder defendant not entitled to change of venue based on pretrial publicity; while most of venire had knowledge of case through media sources or through general community knowledge, media coverage was primarily factual in nature, record showed that each prospective juror individually was questioned concerning his or her knowledge of the instant case and opinions concerning defendant’s guilt or innocence, and while defendant was black and victim was white, prospective jurors’ voir dire responses failed to show any indication that race was an issue that community considered); State v. Frank, 99-0553, 803 So.2d at 16-17 (change of venue not required when 110 out of 113 venire members (97.3%) “had been exposed to some publicity surrounding the case” and 89% of the prospective jurors indicated that they had been exposed to information about the case on more than one occasion or from multiple sources); State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, 555 (denial of venue change not abuse of discretion when 72 out of 90 prospective jurors (80%) had awareness of the case before trial and court questioned each prospective juror individually in painstaking detail concerning his or her knowledge of the instant case, and opinions concerning the defendant’s guilt or innocence).
It cannot be gainsaid that media coverage was extensive from the time of defendant’s arrest through his trial. It is also evident that on August 2, 2004, defendant, as more fully detailed in n. 8, supra, was tried and convicted by a jury in West Baton Rouge Parish for the second-degree murder of Geralyn Barr DeSoto. Although DeSoto’s murder was not part of the other crimes evidence used in the State’s prosecution against defendant in the Pace homicide, it is true that much of the other crimes evidence in the present prosecution was also used in the West Baton Rouge Parish prosecution. It is equally true the media reported the facts of the West Baton Rouge Parish prosecution. Despite media coverage of a defendant’s conviction in another case, such coverage does not constitute prejudice as long as the coverage is solely factual and not inflammatory. See e.g., Snell v. Lockhart, 14 F.3d 1289, 1293 (8th Cir.1994). Defendant has not shown the pretrial publicity, particularly about his West Baton Rouge Parish conviction, was inflammatory. On the other hand, the record shows time and again during voir in the present case that those jurors who were unable to put pretrial publicity out of their minds were excused. Likewise, all the jurors who served on defendant’s jury not only assured the court they were able to decide the case against defendant in the Pace prosecution based solely upon the evidence presented at trial, but also they would accord the defendant the presumption of innocence. Finally, the record bears out that the trial court repeatedly admonished jurors from viewing media coverage of the case during voir dire and trial.
Comments of governmental officials: Even though voir dire examination showed almost all prospective jurors were exposed to the case or the several serial killer cases, the comments of government officials were not included in many pretrial articles. As detailed in the State’s argument to us, few of the statements officials made included comments by the East Baton Rouge Parish District Attorney’s Office; those comments that the District Attorney’s Office did make involved procedure and the court proceedings. Importantly, many of the statements law enforcement officials made were patently inconsistent, especially as they related to the profile of the South Louisiana serial killer.
IssLength of time between comment and trial: Defendant was arrested in Atlanta, Georgia on May 27, 2003, and his trial commenced more than a year later on September 13, 2004. It was not until shortly before defendant’s arrest that media accounts detailed the DNA evidence and victim’s sketches depicting the suspect as an African-American. In fact, although the first homicide that would be linked to the serial killer investigation occurred on September 24, 2001, for the greater part of the serial killer investigation, law enforcement focused on several suspects, including the delusory “white man in a white pickup truck.” As a result, defendant was not the subject of media coverage for a prolonged period of time and publicity involving him was not initiated until his identification and arrest.
Severity and notoriety of the offense: Although the severity and notoriety of the Pace murder was extreme, the current murder trial, when compared with other similar first-degree murder convictions, presents facts that are unfortunately not dissimilar from other like first-degree murder convictions this Court has reviewed. See e.g., State v. Bowie, 00-3344 (La.4/3/02), 813 So.2d 377 (defendant robbed victim over the age of 70 and strangled him with his shoelaces and an electrical cord); State v. Cosey, 97-2020 (La.11/28/00), 779 So.2d 675 (defendant raped and slashed throat of 12-year-old victim, stomping her face as he left); State v. Miller, 99-0192 (La.9/6/00), 776 So.2d 396 (defendant robbed and raped 67-year-old woman in her home, then killed her by repeatedly stabbing her, slashing her throat, and dropping a couch on her face); State v. Tilley, 99-0569 (La.7/6/00), 767 So.2d 6 (defendant killed a 68-year-old man by repeated stabbing during the course of an armed robbery in the parking lot of a Burger King); State v. Robertson, 97-0177 (La.3/4/98), 712 So.2d 8 (defendant repeatedly and viciously stabbed two people during a home invasion); State v. Jones, 474 So.2d 919 (La.1985) (defendant kidnapped 11-year-old victim, beat her, raped her, and choked her to death, eventually dumping her body in a drainage canal).
The area from which the jury was drawn: At the time of the 2000 Census, East Baton Rouge Parish had a population of 412,852. See http://quickfacts.census. gov/qfd/states/22/22033.html (accessed September 25, 2007). The jury pool summoned for this case consisted of 1,300 persons and was far larger than average. As mentioned previously, over 98% of jurors polled had heard something of the case, from either media outlets or acquaintances. The record shows jurors who knew any of the parties or witnesses were not allowed to remain. With a venire pool so large, however, this did not cause a dearth of qualified prospective jurors.
Other community events that either affect or reflect the community attitude toward defendant: The majority of jurors candidly admitted they did not significantly change their lifestyle while the search for the serial killer continued. When queried about the impact of the serial killings, jurors for the most part responded they were more aware of their surroundings and were more cautious when conducting their daily lives. Although defendant emphasizes the Task Force received 26,000 tips, he neither quantifies how many came from East Baton Rouge Parish nor shows how these tips demonstrate a community bias specifically against him. Defendant fails to provide any support for his contention that general public participation in a police investigation automatically equates to venire bias.
Factors that likely affect the candor and veracity of prospective jurors: Our review of the record shows the prospective jurors appeared truthful when questioned Indirectly and repeatedly on the issue of defendant’s guilt, and the clear majority of jurors with a pre-existing opinion stated they were able to put it aside and base their verdict only upon evidence presented at trial.
In summation, considering that less than one-third of the prospective jurors were excused because of their inability to put aside their pretrial exposure, defendant fails to demonstrate in the context of the other Bell factors that the undoubtedly high press coverage of the investigation was sufficient to alter the “candor and veracity” of the jurors’s answers during voir dire examination. In fact, several jurors expressed their lack of enthusiasm for serving on the jury, despite their willingness to do so if called upon. The ever-changing profile of the serial killer, and the public perception of rampant mistakes in the investigation during the search for the serial killer would work as much in favor of defendant as the publicity would work against him. As we have previously observed, “the mere existence of any preconceived notion as to the guilt or innocence of the accused, without more, is insufficient to rebut the presumption of the juror’s impartiality.” State v. Clark, 851 So.2d at 1071. Defendant fails to show the existence of pretrial publicity was such that it would color the jurors’ voir dire responses to the point of making them unreliable and that he was therefore deprived of his right to trial by a fair and impartial jury. After carefully reviewing the record of this matter, defendant failed to show the trial court abused its discretion in denying his motion for a change of venue.
Defense funding
Defendant next contends the trial court denied him adequate funds to mount a defense and deprived him of effective assistance of counsel. Specifically, defendant claims the $37,000 he received was far less than the $216,000 needed to secure several necessary experts. With the refusal of more funding, defendant claims he was 141 deprived of the “raw materials integral to the building of an effective defense.” Ake v. Oklahoma, 470 U.S. 68, 78, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985). Additionally, defendant argues the trial court erred when it failed to consider the heavy caseloads under which defendant’s trial counsel labored.
From the outset, we note that at a hearing on expert funding, whether ex parte or contradictory, defendant has the burden to 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. Touchet, 93-2839 (La.9/6/94), 642 So.2d 1213, 1221. He must 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., 642 So.2d at 1221. If this burden is met, the trial court is to order the state to provide those funds. Id. A reviewing court examines a denial of funding under the abuse of discretion standard. See e.g., State v. Phillips, 05-1338 (La.App. 1 Cir. 3/29/06), 934 So.2d 162, 165 (finding the trial court did not abuse its discretion in denying the request for funds for a psychiatrist and a psychologist).
In the present case, the trial court denied defendant’s request for funding in the following particulars: (1) a penalty phase investigator to controvert “the ongoing persuasive campaign for [defendant’s] execution” and to develop a claim of mental retardation; (2) a blood spatter expert to have proper analysis performed on crime scene blood evidence; (3) a fingerprint expert to match all prints taken from the Pace and Green murder scenes and point out problems with the State’s fingerprint evidence; (4) a private investigation service to investigate the 26,000 other suspects in the serial killer investigation; (5) a venue consultant to assist in a motion to change venue; and (6) an eyewitness identification consultant to counter “four very dubious identifications apparently made of Mr. Lee in one of the cases against him.” Although the trial court granted defendant $37,000 for a pathologist, a serial killer expert, a social worker, a tool mark expert, a psychologist, and DNA experts, he claims the award was woefully inadequate. The trial court also directed defendant to file with the Louisiana Indigent Defense Assistance Board to obtain more funding if the grant was insufficient. It appears no other funding was found.
After reviewing this voluminous record, it is clear defendant’s DNA was conclusively linked to the body of the victim. There is nothing a blood spatter expert, fingerprint expert, private investigator, or eyewitness identification expert could have opined that would counter that fact. Defendant never alleged victim consent. As for the penalty-phase investigator, defendant was granted funds for two mental health experts to help establish mental retardation, namely psychologist Drew Grouvier and psychiatrist Sarah Deland. As discussed at length above on the issue of change of venue and the application of the Bell factors, an expert would not have altered the trial court’s determination that venue was proper.
As to trial counsel’s attempt to be relieved because of a burdensome caseload that would render his assistance ineffective, defendant failed to demonstrate counsel labored under such a workload. In stark contrast to this assertion, defendant’s brief reproduces a statement the trial court made noting defendant “has two — over two attorneys. I know one is just helping out and may not be full-time with them, but nevertheless, he is here to help.” Trial Tr. vol. XVI, 3948 (Aug. 25, 2003). Testimony was also adduced that defendant’s lead counsel’s caseload consisted of two cases, including defendant. Defendant refers to nothing in the record to support his contention trial counsel’s workload prevented him from properly representing defendant. Compare State v. Peart, 621 So.2d 780, 789 (La.1993) (excessive 1^caseloads and the insufficient support with which their attorneys must work may result in failure to provided effective assistance of counsel); see also e.g., State v. Robinson, 01-1305 (La.App. 4 Cir. 4/17/02), 820 So.2d 571, 582, writ denied, 02-1640 (La.5/31/03), 845 So.2d 1068 (relator failed to establish denial of effective assistance of counsel because his trial counsel had a heavy caseload, absent any specific evidence to substantiate his claim). After reviewing defendant’s argument and the record of this case, we find this assignment of error lacks merit.
Guilt Phase
Other Crimes Evidence
Defendant next asserts the trial court’s admission of other crimes evidence during the State’s case-in-chief violated his due process rights.
In addition to presenting evidence of the charged crime involving Charlotte Murray Pace, the State also placed evidence before the jurors of four other homicides and one attempted homicide committed by the defendant: Gina Wilson Green, who died on September 24, 2001, at home (three doors down from Pace’s former residence) in her bed from manual strangulation; Pamela Piglia Kinamore, who had been kidnapped from her Baton Rouge home at night on July 12, 2002, whose body the police found four days later dumped in Whiskey Bay with her throat cut; Carrie Yoder, kidnapped from her Baton Rouge home on March 3, 2003, whom the police found 10 days later also dumped in Whiskey Bay, approximately one mile away from where Kinamore’s body had been recovered, a victim of manual strangulation; Trineisha Dene Colomb, abducted from her car on November 2, 2002, in Scott, Louisiana (Lafayette Parish), whose body the police found on November 24, 2002, bludgeoned to death, in a wooded area some distance away from her abandoned vehicle; and D.A., who survived an attaek in her Breaux Bridge home on July 9, 2002, by an assailant who tried to rape and strangle her and then fled the trailer when her son arrived home and interrupted the attack. Sexual assault kit testings indicated that Yoder, Kinamore, and Colomb had also been victims of sexual assault. Dr. Alfredo Suarez, a medical expert, reviewed pictures taken during the Green autopsy and opined that Green, too, was the victim of sexual assault.
Generally, courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. However, the State may introduce evidence of other crimes if the State establishes an independent and relevant reason, i.e., to show motive, opportunity, intent, or preparation, or when the evidence relates to conduct which constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. Code Evm Ann. art. 404(B)(1). Nonetheless, the State must provide the defendant with notice and a hearing before trial that it intends to offer prior crimes evidence. State v. Prieur, 277 So.2d 126, 130 (La.1973). Additionally, the State must prove the defendant committed the other acts. La.Code Evm Ann. art. 1104; Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 1501-1502, 99 L.Ed.2d 771 (1988); State v. Crawford, 95-1352 (La.App. 3 Cir. 4/3/96), 672 So.2d 197, 207-208, unit denied, 96-1126 (La.10/4/96), 679 So.2d 1379. Furthermore, the other crimes evidence must tend to prove a material fact genuinely at issue, and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Hatcher, 372 So.2d 1024, 1033 (La.1979); State v. Sutfield, 354 So.2d 1334, 1337 (La.1978); State v. Jackson, 352 So.2d 195, 196 (La.1977); State v. Ledet, 345 So.2d 474 (La.1977). However, the jurisprudence has established an exception to the general inadmissibility of other crimes evidence to include evidence that shows modus operandi, particularly when the modus operandi employed by the Lsdefendant in both the charged and the uncharged offenses is so peculiarly distinctive one must logically say they are the work of the same person. See e.g., State v. Code, 627 So.2d 1373, 1381 (La.1993) (other crimes evidence admissible where they show similar distinctive handcuff ligature, overkill, predominant use of a knife, and need for domination and control of the victims to the extent of moving them from room to room). Lastly, the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. Hatcher, 372 So.2d at 1033.
In all, with testimony from investigating detectives, forensic DNA experts, and various other witnesses, the other crimes evidence in the present case is spread over 600 pages of testimony, slightly over half of all of the testimony presented during the guilt phase. As in the Pace homicide, the State principally utilized DNA evidence to connect defendant to all the other homicides. Three of the connections were made by DNA experts with the Louisiana State Police Crime Laboratory (as in the Pace homicide), i.e., Angela Ross (for the Green case), Julia Naylor (for the Kinamore case; she was also the forensic expert who matched defendant’s DNA to the samples taken from Pace’s body) and Natasha Poe (for the Yoder case; Poe also made the match of defendant’s buccal sample to the known profile of the South Louisiana Serial Killer). In Dene Colomb’s case, Carolyn Booker with the Acadiana Crime Laboratory made the fourth match.
Additionally, the State relied upon two pieces of circumstantial evidence to connect the defendant to Yoder’s murder and the attack on D.A. The first was provided by a representative of Cingular Wireless in Carrie Yoder’s case. Cingular’s computer records showed defendant used a phone card to place two calls on March 3, 2003. These calls were captured and relayed along Cingular’s network line by two of its cell phone towers outside Ramah and Grosse Tete, Louisiana, from I — 10, near Whiskey Bay where Yoder’s body was recovered. The second item of circumstantial evidence involved the telephone cord used in the attack on D.A. See infra.
Although the State mentioned during opening argument that some DNA evidence from the attacker’s sweat had been recovered from the dress D.A. was wearing at the time she was attacked, the State ultimately elected at the close of the evidentiary portions of trial not to introduce this piece of scientific evidence. Thus, the State relied solely on the eyewitness identification D.A. made of defendant, first in a photographic lineup emailed to her brother’s home in Kentucky where she had sought refuge after the Task Force published her composite drawing of her assailant, and then in open court as she testified at trial. D.A.’s son, H.A., who saved her life by fortuitously interrupting the assault as defendant was tightening a phone cord around his mother’s neck, corroborated her testimony by identifying defendant’s Mitsubishi car parked outside their mobile home when he arrived there. In addition, he noticed a phone cord dangling out of one of the windows as the attacker’s vehicle sped from the scene. The cord was later recovered at Whiskey Bay several hundred feet away from the body of Pam Kinamore, who died only two days after the attack on D.A. Mark Kurowski of the Acadiana Criminalistics laboratory, an expert in tool mark identification, matched the cut phone cord found inside the trailer after the assault ended to the telephone cord found near Kinamore’s body at Whiskey Bay. D.A.’s testimony further indicated she too had been the intended victim of a sexual assault, interrupted not only by the arrival of her son but also, initially, by defendant’s inability to sustain an erection.
On the basis of extensive testimony adduced from numerous witnesses at a pretrial hearing held on January 14 and 15, and March 30, and 31, 2004, the trial court ruled the other crimes evidence involving Green, Kinamore, Colomb, Yoder and D.A. was admissible “for the purpose of identity, motive, plan, system, and intent.” Defendant unsuccessfully sought review of that ruling in this Court. State v. Lee, 04-1112 (La.6/4/04), 876 So.2d 77. As stated elsewhere in this appeal, this Court’s pretrial writ denial does not preclude reconsideration of the issue on the basis of the full trial record. State v. Fontenot, 550 So.2d 179 (La.1989).
In brief, the defendant attacks the introduction of all of this evidence primarily on grounds that the only conceivable rationale for introducing the other crimes evidence in this case was on the sole contested issue at trial, ie., the identity of Charlotte Pace’s assailant. Defendant contends the circumstances of the other crimes were not sufficiently similar to establish a signature or modus operandi identifying the perpetrator in the charged and uncharged crimes as the same man.
Defendant contends the State presented evidence of other crimes of such “quantity and quality,” as to eviscerate any hope that he could receive a fair adjudication. At issue is not whether defendant committed the other crimes, but whether, as urged by the defendant, that admission of the evidence at trial was unduly prejudicial because it served no other purpose than to show the bad character of defendant, and not a larger and legitimate purpose of establishing motive, intent, system, or plan. The crimes, defendant claims, were so dissimilar that to present them to the jury inevitably resulted in undue prejudice. Defendant contends the evidence of the murders and one attempted murder the State introduced, including gruesome crime scene photographs and alleged testimony of the victims’ good character, was not indicative of the modus operandi, plan, motive, or identity in the instant murder.
FBI Agent Mary Ellen O’Toole, an expert in criminal investigative analysis, testified for the State at the Prieur hearing about the victims’ similarities and how they demonstrated a consistent modus operandi. Her analysis indicated all the victims were attractive, successful adult women. All the victims had “low-risk” lifestyles that would not likely put them in situations in which they could become a victim of violent crime. Moreover, all the victims were alert and not incapacitated at the time their attacks began, and each had recently traveled in the area. O’Toole noted the first confrontation by the victims’ attacker was in a “comfort zone,” most being in or near their homes. There were no signs of forced entry in any of the attacks. Each victim appeared to be disarmed nonviolently, with the attacks beginning only after they were subdued. All the victims were moved around their “comfort zones” during the attacks, and none of the victims appeared to have provoked their assailant’s violence and anger.
O’Toole observed the perpetrator attacked each victim in a “high-risk” manner: first, the attacks occurred at times of the day when others could have been around; secondly, the killer’s behavior was impulsive and directed at “low risk” victims, as opposed to “easier targets” like hitchhikers or prostitutes. O’Toole also found the attacks exhibited a very consistent pattern which exemplified the attacker’s need for high risk, high thrill, and a sexual assault. To underscore her observation about the attacker, O’Toole noted there were neither signs of burglarious intent in any of the crime scenes nor any signs of remorse.
At the Prieur hearing, defendant emphasized the dissimilarities between the victims to counter the State’s contention. He pointed out Pace died from exsangui-nation after being stabbed 81 times. Gina Wilson Green and Carrie Yoder were asphyxiated, Pamela Kinamore had her throat slashed, Trineisha Dene Colomb was bludgeoned to death, and D.A. was being strangled when her attacker was scared off by the sudden arrival of her son. In stark contrast to defendant’s assertions, it was the State’s contention at the Prieur hearing that defendant chose Pace for the same reasons he chose his other victims, but Pace may-have put up a bigger “fight,” one that defendant did not expect. As a result, the crime scene was more chaotic and the murder was more brutal than the other victims.
When confronted with defendant’s contentions, O’Toole explained that the difference in Pace’s murder resulted from defendant’s perceived loss of control during the attack. She theorized that if Pace had backed off or attempted to escape her attacker, a different crime scene would have resulted. However, O’Toole opined this change did not mask the other consistent traits she found prior to the attack. Additionally, O’Toole stated all but one murder victim (Dene Colomb) died of wounds received to the neck.
The record shows the State introduced photographs of the victims and the crime scenes to illustrate the similarities of the physical injuries of each victim and their respective crime scenes. Moreover, the State elicited victim character testimony at trial ta establish the background of each victim, to show their movements immediately before the attack, to demonstrate chain of custody of evidence, and in some instances, to show the condition of the crime scene when it was first encountered.
In addition to Agent’s O’Toole’s expert assessment of the commonality of these other crimes, there was one distinctive aspect of the four homicides involving Green, Kinamore, Yoder, and Colomb. As the DNA analyses shows, defendant left behind his distinct genetic signature in all four cases by depositing his virtually Isnunique genetic material on the blouse worn by Gina Wilson Green at the time she died and on a towel in her home and in the bodies of Kinamore, Yoder, and Colomb.
Four analysts independently worked on the DNA matches. Three of the analysts, Ross, Naylor, and Poe, were employed by the same State Police Crime Lab police, but they worked from separate work stations with different computers, the fourth analyst, Booker, worked for a separate crime lab. The consistency of the DNA results, when viewed in the context of crimes involving Green, Kinamore, Yoder, and Colomb, not only produced a portrait that resembled the single attacker Agent O’Toole discussed, it also provided jurors an observable basis for concluding nothing was amiss with the DNA analysis of the samples in the Pace homicide. Moreover, the consistency of the DNA analyses in these other crimes further provided jurors with an experiential foundation to reliably identify defendant as Pace’s assailant. To this extent, the State’s other crimes evidence addressed any reluctance jurors might otherwise have had in returning a verdict based wholly on scientific evidence.
Furthermore, although the State ultimately chose not to present DNA evidence in the case of D.A., her eyewitness testimony, as partially corroborated by the testimony of her son who fortuitously interrupted the crime and saved her life, removed the issue of identity from the realm of abstract scientific analysis and statistical probabilities and presented it in a manner jurors could assess for themselves on the basis of their own experience — live testimony in court from witnesses whose demeanor they could observe as they responded to questions posed by the State and cross-examined by the defense. In turn, the eyewitness evidence D.A. provided was probative on the issue of defendant’s identity in the Pace homicide because it also provided jurors with a basis to conclude that, given the similarities in the crimes Agent O’Toole discussed, the scientific test results correctly identified Pace’s assailant.
Accordingly, although the State’s presentation of other crimes evidence occupied half of the guilt phase of trial, the State used this evidence against the defendant, not by asking jurors to convict defendant because of his criminal propensities, but on the basis of the genetic markers he left behind in a variety of similar circumstances over the course of a year. These genetic markers unmistakably identifying defendant as the assailant who claimed the life of Charlotte Murray Pace. Accordingly, this assignment of error lacks merit.
Penalty Phase
Defendant’s Mental Retardation Claim
In his first penalty phase argument, defendant contends he established by a preponderance of evidence that he is mentally retarded. Thus, he contends the imposition of capital punishment violates the Eighth Amendment to the United States Constitution.
In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the United States Supreme Court held that execution of mentally retarded persons constitutes an excessive punishment, and thus violates the Eighth Amendment. This Court addressed Atkins in State v. Williams, 01-1650 (La.11/1/02), 831 So.2d 835, 861, and directed trial courts in postAAms hearings:
1) to order a pretrial evidentiary hearing on the issue of mental retardation when the court has ‘reasonable grounds’ to believe a defendant is mentally retarded, [La.C.Cr.P.] art. 643; 2) to hold the hearing before a judge, not a jury; 3) to require the defendant to prove Isiiby a preponderance of the evidence that he meets the criteria established in Louisiana’s statutory definition of mental retardation, LSA-28:381 [defining retardation as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior, and manifested during the developmental period”].
In response to Atkins and Williams, the Louisiana Legislature enacted 2003 La. Acts 698, which created La. Code CRIM. PROC. Ann. art. 905.5.1. The code article provides for a procedure used in the event a defendant raises a claim of mental retardation. Under the article, such a defendant has the burden of proving mental retardation by a preponderance of the evidence. La.Code CRIM. PROC. Ann. art. 905.5.1(C)(1). The article defines mental retardation as:
a disability characterized by significant limitations in both intellectual functioning and adaptive behavior as expressed in conceptual, social, and practical adaptive skills. The onset must occur before the age of eighteen years.
La.Code Crim. Proc. Ann. art. 905.5.1(H)(1).
The article concludes with an advisory list of several medical conditions which “do[ ] not necessarily constitute mental retardation.” La.Code Crim. Proc. Ann. art. 905.5.1(H)(2). Included in the list are mental illness, organic brain damage occurring after age 18, learning disabilities, speech and language disorders, and personality disorders. Id. In Atkins, the United States Supreme Court also suggested factors to consider for the determination of mental retardation:
clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.
Atkins, 536 U.S. at 318, 122 S.Ct. at 2250-51.
In the present case, defendant contends the record preponderates he is mentally retarded and not subject to execution. Defendant claims the test results of a Wechsler Adult Intelligence Scale, 3 d Revision (WAIS III) and placement on the Vineland Adaptive Behavior Scale show him mildly mentally retarded. Dr. Drew Gouvier, a board-certified psychologist and neuropsychologist at Louisiana State University testified he found defendant mildly mentally retarded after interviewing defendant for about two hours, and his wife and mother for about two to three hours. To support [S4this claim, Dr. Gouvier stated defendant’s full-scale WAIS score was 65, and that the Vineland test revealed deficits in communication/language and capacity for self-direction. Graduate students administered the tests. Dr. Gouvier also testified defendant’s mental retardation onset occurred before the age of 22, and likely started when he was in grammar school, where he was in special education classes and had speech therapy. Dr. Gouvier further placed defendant in the bottom 2 d percentile relative to his deficiencies. However, he only examined some of defendant’s work and school records. Although Dr. Gouvier conceded not every person with an IQ below 70 is mentally retarded, he opined that it is skill deficits that are determinative of the issue. We note, however, in conflict with his stated opinion, Dr. Gouvier found defendant displayed “excellent skills” in the areas of community living and mobility.
Dr. Sarah Deland, a board-certified forensic psychiatrist employed with Tulane University, also examined defendant. She interviewed defendant for a total of six hours, and at first was unsure if defendant had suffered a brain injury or was mentally retarded. She testified she interviewed defendant with a skeptical eye, as she did with all the criminals she examined. While she did not administer any psychological examinations, she opined with reasonable medical certainty that based on the results of Dr. Gouvier’s tests and her interviews, defendant is mildly mentally retarded. She observed several behaviors that are consistent with someone who is mentally retarded: an inability to remember the chronology of past events; a tendency to repeat themselves frequently; and the inability to understand abstract concepts. Dr. Deland concluded her observations of defendant and conversations with his wife and mother were consistent with the school and work records she reviewed. The psychiatrist also opined it was likely defendant’s story of paying someone to take the commercial driver’s license examination for him was truthful as it was “an outlier” when compared with his other examination performances. She also observed defendant had a history of violence toward women.
In response to defendant’s witnesses, the State presented two lay witnesses and two expert witnesses. The first lay witness was P.L., a former coworker of defendant. P.L. testified defendant was a skilled “Class B Pipefit-ter” with whom he worked for approximately a year. P.L. testified defendant occasionally read and understood blueprints, and he had no difficulty conversing with co-workers. In short, defendant was “a regular guy” who liked to barbeque, party, and enjoy himself. In P.L.’s lay opinion, defendant did not appear retarded in his interactions with him. G.R., a former supervisor of defendant, testified similarly. He stated defendant was a good employee who could read blueprints, and he was easy to talk to. Defendant began as a entry-level pipe fitter, progressed at work, and “was on his way” to being a “Class-A Pipefit-ter.”
Dr. Donald G. Hoppe, a board-certified psychologist, testified for the State. Dr. Hoppe spent approximately two hours interviewing defendant and a little more time observing him before and after that interview. Dr. Hoppe also reviewed Dr. Gouvier’s report and raw data, and found the WAIS administration adequate. However, Dr. Hoppe concluded defendant is in no way mentally retarded. He based his professional opinion on his interpretation of the WAIS results, interpreting them differently than Dr. Gouvier, and in part because of his review of defendant’s school records. Succinctly stated, Dr. Hoppe testified one’s IQ ranges over any period of time, and that the results presented by Dr. Gouvier and his students were only 66% reliable. In Dr. Hoppe’s opinion, to achieve a 95% level of confidence, the rangej^must be expanded to place defendant’s IQ somewhere between 62 and 70 at any given time. Dr. Hoppe continued that school IQ testing would provide a better analysis of defendant’s IQ over time. After averaging nine IQ tests occurring between grades one and six, Dr. Hoppe found defendant had an average IQ as a child of 75.5, well over the clinical definition of mild retardation. In his evaluation of defendant’s mental retardation claim, Dr. Hoppe also looked to defendant’s 91 % passing grade on his DOTD commercial drivers exam, and his 88% final average from truck driving school. He also pointed out defendant averaged 79% in his work-related safety training exams. Looking at the totality of the information available to him, Dr. Hoppe concluded defendant qualified under no definition of mental retardation.
Next, the State called Dr. Robert Blanche, a board-certified psychiatrist working out of East Baton Rouge Parish Prison, to the stand. Dr. Blanche testified that after meeting with defendant for about three hours, and reviewing all data and interviews collected by others, he determined defendant was not mentally retarded.
Viewing defendant’s assertions in light of the lay and expert testimony, we observe defendant’s examples of mental retardation can just as easily be interpreted as a combination of malingering in front of testers and illiteracy or a learning disability. See La.Code Crim. PROC. Ann. art. 905.5.1(H)(2)(j), (p) (learning disabilities and speech and language disorders do not necessarily constitute mental retardation).
An examination of the attacks on Green, Pace, D.A., Kinamore, Colomb, and Yoder reveals one common thread among defendant’s attacks — none of the crime scenes showed any signs of forced entry. An examination of D.A.’s testimony sheds light on the proposition that forced entry was unnecessary because defendant was a “smooth talker” and a charming man. D.A. testified that when she responded to the knock on the door of her mobile home, she found standing in front of her a neatly dressed African American male, clean shaven, but with a thin mustache, and groomed with a fresh haircut with a “neat razor line.” The man introduced himself as “Anthony” and explained he was “supposed to be doing construction for some people in the area by the name of Montgomery.” D.A. immediately assumed “he was lost because he was confident when he spoke.” The man asked D.A. whether her husband knew the whereabouts of the Montgomerys, and when she said, “No,” he then asked for a telephone book and a phone. D.A. gave him her cordless phone and a phone book and closed the door behind her. After a few minutes, she reopened the door to retrieve her phone. The man heard gospel music D.A. was playing that morning and told her he sang with a gospel choir. He continued to make small talk with D.A. and asked again whether her husband knew where the Montgomerys lived. This time, D.A. responded, “Look ... my husband is not home.” With that, defendant bulled his way through the door and launched his brutal attack on D.A.
Thus, as described by D.A., defendant’s conduct was scarcely that of a man suffering from significant adaptive skills impairments. Instead, defendant demonstrated he was capable of communicating with D.A. in such a way as to put her at ease until determining her husband was not home and he could easily overpower her with his considerable physical strength.
This is further evidenced by the fact defendant maintained two households during the time of the killings, one for his wife and children and one for his girl friend. The same is true when we examine defendant’s encounter with the Zachary Police Department and the Attorney General’s representatives when they obtained Issbuccal swabbings from him. At that time, defendant did not simply accept the officers’s assertion they had a subpoena duces tecum, he asked them for the court order authorizing the subpoena. Similarly, a reading of the transcript of defendant’s interrogation shortly after his arrest in Atlanta reveals a person who stealthily dodged questions, formulated answers that were short on incriminatory statement, and long on talk about the possibility of book deals based upon the serial murder case. In the end, reality belies defendant’s present claim he has communication skills that fall in the bottom two percentile.
Merely because defendant wrote “okay, thanks” in response to a teacher evaluation, does not equate to retardation or an inability to communicate. Those people who worked with defendant on a daily basis testified he appeared like a regular guy and he had no difficulty working or speaking. Defendant’s ability to successfully pass an oral drivers test, but fail a written commercial drivers test, is as easily explained by an inability to read as it is minor mental retardation. The complexity, scope, planning, and relative skill with which defendant committed a string of violent murders and evade capture contradicts any claim he is somehow “slow” and unable to grasp abstract concepts as Dr. Deland testified. Defendant displayed a survival mentality with great assuredness time and again when he took great lengths to cover up his crimes and hide evidence. Defendant escaped detection and capture for nearly two years while he committed a series of gruesome murders. Defendant’s placement in special education during grammar school is also not necessarily indicative of retardation. His poor academic performance is again just as easily explained by a learning disability as it is mental retardation.
The jury heard expert and lay witnesses from both the State and defense. The jury’s unanimous decision that defendant is not mentally retarded, and thus that he failed to carry his burden of proof, is neither irrational nor arbitrary. La.Code CRIM. Proc. Ann. art. 905.5.1(C)(1). Defendant failed to show “significant limitations in both intellectual functioning and adaptive behavior as expressed in conceptual, social, and practical adaptive skills” La.Code Crim. Proc. Ann. art. 905.5.1(H)(1). This claim fails.
Capital Sentence Review
Under La.Code Crim. Proc. Ann. art. 905.9 and La. S.Ct. Rule 28, this Court reviews every sentence of death imposed by Louisiana courts to determine if it is constitutionally excessive. In making this determination, the Court considers whether the jury imposed the sentence under the influence of passion, prejudice or other arbitrary factors; whether the evidence supports the jury’s findings with respect to a statutory aggravating circumstance; and whether the sentence is disproportionate, considering both the offense and the offender.
The district judge in the present case has filed the Uniform Capital Sentence Report (“UCSR”) required by La. S.Ct. Rule 28 § 8(a) and the Department of Public Safety and Correction submitted a Pre-sentence Investigation Report (“PSI”). See La. S.Ct. Rule 28 § 3(b). In addition, the State filed a Sentence Review Memorandum.
Those documents indicate the defendant, Derrick Todd Lee, is an African-American male born on November 5, 1968 in Baton Rouge. He lived in St. Francisville for most of his life. He is married, and has three children. However, Lee and his wife have had a tumultuous relationship for many years, and there have been reports Lee beat her on occasion. He also had a longtime girl Mend with whom he kept a separate household, and with whom he also was physically violent. Although both his parents are still alive, he was primarily raised by his mother, on whom he was overly dependent. He also developed a close relationship with his stepfather, and Isndid not meet his biological father until he was 21 years of age. Lee has 13 siblings and half-siblings, but the families are split along lines of paternity.
A self-described loner in his childhood, Lee performed poorly in school, had chronic asthma, and underwent speech therapy. He was enrolled in special education classes for the majority of his schooling. Lee completed the eleventh grade before dropping out. Lee has apparently never obtained a GED.
After dropping out, Lee went through a succession of jobs as a pipe fitter, sandblaster, painter, boiler maker, tool lifter, and cement finisher. Lee also obtained a commercial driver’s license and drove a truck hauling chemicals for six months.
Defendant has an extensive criminal history, and has spent periods of his life incarcerated. Lee’s only juvenile offense was a conviction for simple burglary in 1981. As an adult, defendant was convicted of: (1) attempted unauthorized entry of an inhabited dwelling (1988, one year at hard labor, suspended and placed on two years of probation); (2) disturbing the peace (1990, bench probation for one year); (3) simple burglary of an inhabited dwelling (1992, four years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for one year); (4) “Peeping Tom,” resisting arrest by flight, and criminal damage to property (1995, six month suspended sentence with two years of bench probation); (5) two counts of “Peeping Tom” (1997, two years supervised probation); (6) stalking (1999, six month suspended sentence, two years supervised probation that was ultimately revoked); and (7) aggravated flight (2000, two years imprisonment at hard labor).
Defendant has been positively linked to the murders of several women in south Louisiana, and is strongly suspected of being responsible for the murders of many more. At trial Lee was also shown responsible for the attempted murder and attempted aggravated rape of D.A. in Breaux Bridge, Louisiana.
Passion, Prejudice, or Other Arbitrary Factors
The record does not provide any indicia of passion, prejudice, or arbitrariness. Defendant, an African-American male who was 33-years of age at the time of the offense, raped and killed a 22-year-old woman. Additionally it was proven he was responsible for the deaths of at least four other women, and the aggravated rape and attempted murder of another. He received a unanimous sentence of death from a unanimous jury of 12 persons. A jury of twelve persons was presented with credible evidence in addition to defendant’s behavior that led them to reject his mental retardation defense and to return a verdict of death. No prejudice is apparent.
Aggravating Circumstances
The jury returned the verdict of death, after finding Charlotte Murray Price died during the commission of an aggravated rape or attempted aggravated rape. La. Code Crim. Proc. Ann. art. 905.4(A)(1); see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Trial Tr. vol. XII, 2919 (Oct. 14, 2004) (penalty phase verdict form). As discussed supra, the aggravating circumstances relied upon by the State were fully supported by the evidence. Defendant’s DNA was found in and on the victim who was stabbed 81 times and subsequently died of exsangui-nation. Consequently, defendant’s sentence of death is firmly grounded on the finding of this aggravating circumstance.
Proportionality Review
Although the Federal Constitution does not require proportionality review, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), comparative proportionality review remains a relevant consideration in determining the issue of excessiveness in Louisiana. State v. Burrell, 561 So.2d 692, 710 (La.1990); State v. Wille, 559 So.2d 1321, 1341 (La.1990); State v. Thompson, 516 So.2d 349, 357 (La.1987). This Court, however, has set aside only one death penalty as disproportionately excessive under the post-1976 statutes, finding in that one case, inter alia, a sufficiently “large number of persuasive mitigating factors.” State v. Sonnier, 380 So.2d 1, 9 (La.1979); see also State v. Weiland, 505 So.2d 702, 707-10 (La.1987) (in case reversed on other grounds, dictum suggesting that death penalty was disproportionate).
This Court reviews death sentences to determine whether the sentence is disproportionate to the penalty imposed in other cases, considering both the offense and the offender. If the jury’s recommendation of death is inconsistent with sentences imposed in similar cases in the same jurisdiction, an inference of arbitrariness arises. State v. Sonnier, 380 So.2d at 9.
The State’s Sentence Review Memorandum reveals that since 1976, jurors in the 19th Judicial District Court, which comprises East Baton Rouge Parish, have recommended imposition of the death penalty on approximately 24 occasions, including the present case. Several of the salient features of the case sub judice make it similar enough to other death sentences recommended by juries in the 19th JDC that defendant’s sentence is not disproportionate. See, e.g., State v. Bowie, 00-3344 (La.4/3/02), 813 So.2d 377 (defendant robbed victim over the age of 70 and strangled him with his shoelaces and an electrical cord); State v. Cosey, 97-2020 (La.11/28/00), 779 So.2d 675 (defendant raped and slashed throat of 12-year-old victim, stomping her face as he left); State v. Miller, 99-0192 (La.9/6/00), 776 So.2d 396 (defendant robbed and raped 67-year-old woman in her home, then killed her by repeatedly stabbing her, slashing her throat, and dropping a couch on her face); State v. Tilley, 99-0569 (La.7/6/00), 767 So.2d 6 (defendant killed a 68-year-old man repeatedly stabbing him during the course of an armed robbery in the parking lot of a Burger King); State v. Robertson, 97-0177 (La.3/4/98), 712 So.2d 8 (defendant repeatedly and viciously stabbed two people during a home invasion); State v. Jones, 474 So.2d 919 (La.1985) (defendant kidnapped 11-year-old victim, beat her, raped her, and choked her to death, eventually dumping her body in a drainage canal).
The cases above provide strong support for an argument the death penalty imposed in this case is not disproportionate. It is also appropriate for this Court to look beyond the 19th JDC and conduct the proportionality review on a statewide basis. Cf. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1030-31. Cases are legion in which this Court has affirmed capital sentences based primarily on the jury’s finding the defendant killed the victim in the course of an aggravated rape. See, e.g., State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238; State v. Clark, 02-1463 (La.6/27/03), 851 So.2d 1055; State v. Wright, 01-0322 (La.12/4/02), 834 So.2d 974; State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022; State v. Connolly, 96-1680 (La.7/1/97), 700 So.2d 810; State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16; State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190; State v. Wille, 595 So.2d 1149 (La.1992); State v. Lee, 559 So.2d 1310 (La.1990); State v. Copeland, 530 So.2d 526 (La.1988); State v. Eaton, 524 So.2d 1194 (La.1988); State v. Carmouche, 508 So.2d 792 (La.1987); State v. Williams, 490 So.2d 255 (La.1986); State v. Loyd, 489 So.2d 898 (La.1986); State v. Jones, 474 So.2d 919 (La.1985); State v. Brogdon, 457 So.2d 616 (La.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862, rehearing denied, 473 U.S. 921, 105 S.Ct. 3547, 87 L.Ed.2d 670 (1985).
Because this Court has overwhelmingly upheld death sentences in such cases, and due to the heinousness of the brutal killing as described above, we find the death sentence imposed in this case is not disproportionate.
IJDECREE
For the reasons assigned herein, the defendant’s conviction and death sentence are affirmed. This judgment becomes final on direct review when either: (1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari; or (b) that Court denies his petition for rehearing, the trial court shall, upon receiving notice from this Court under La.Code CRiM. PROC. ANN. art. 923 of finality of direct appeal, and before signing the warrant of execution, as provided by La.Rev. Stat. Ann. § 15:567(B), immediately notify the Louisiana Indigent Defense Assistance Board and provide the Board with reasonable time in which: (1) to enroll counsel to represent the defendant in any State post-conviction proceedings, if appropriate, pursuant to its authority under La.Rev.Stat. Ann. § 15:149.1; and (2) to litigate expeditiously the claims raised in that application, if filed in the state courts.
AFFIRMED.
JOHNSON, Justice, concurs and assigns reasons.
[OPINION BY JOHNSON, J., type=concurrence]
JOHNSON, J.,
concurs and assigns reasons:
This case affords us the opportunity to give clear direction to the trial courts as to when they should rule on a motion to change venue.
Defendant filed his motion to change venue on July 17, 2003, then supplemented his motion on January 30, February 6 and February 27, 2004. As is the practice with many trial judges, the court deferred ruling on the motion until after the trial commenced with jury selection on September 13, 2004.
LSA-C. Cr. P. art. 622 provides, in pertinent part:
A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
A defendant must prove more than mere public general knowledge or familiarity with the facts of the case, to be entitled to have his trial moved to another parish. State v. Frank, 99-0553, p. 16 (La.1/17/01), 803 So.2d 1, 16 (“there is no “bright line” test for determining the degree of prejudice existing in the collective mind of the community ... the defendant must show the extent of prejudice in the minds of the community as a result of knowledge or exposure to the case before trial”); State v. George, 37,492, 10 (La.App.2d Cir.9/24/03), 855 So.2d 861, 870 (defendant is not entitled to a jury entirely ignorant of the case and cannot prevail on a motion for change of venue merely by showing a general level of public awareness about the crime).
The jurisprudence shows that the usual practice among trial judges is to wait for voir dire examination of prospective jurors to determine whether jurors can lay aside their impressions or opinions, and render a verdict based on the evidence presented in the case. There has heretofore been no “bright line” rule to give trial courts guidance as to when the motion for change of venue, must be decided. The result is that the defendant who is required to wait for voir dire examination before winning a change of venue, is prejudiced, when compared to the defendant who won the change of venue, pretrial.
Recently, in State v. Montz, 07-K-0653, (La.11/21/07) 968 So.2d 727, this Court suggested that the better practice is to rule on the defendants’ motion to change venue, pretrial. In Montz, the trial court granted the pretrial motion after the defendants introduced into evidence over 140 articles published or broadcast between January and August 2005, concerning the death of Levon Jones, at Club Razzo in New Orleans, Louisiana. At the hearing on the motion to change venue, the defendants presented the testimony of their pollster, Joe Walker, who testified that based on two polls he conducted in the Summer of 2005 (pre-Hurricane Katrina) and one taken in February 2006, the results revealed that 98% of those polled were familiar with the facts of the case.
Here, in support of the motion for change of venue, defendant filed into evidence over 5,000 pages of printed media reports and newscast transcripts published between July 2002 and January 2004 that related to the South Louisiana Serial Killer. The trial court deferred the defendant’s motion for change of venue until after jury selection. The majority concludes that this media coverage was not prejudicial since the coverage was factual and not inflammatory. The jury pool consisted of 1,300 persons and over 98% of prospective jurors polled had heard something about the case, from either media outlets or acquaintances. Nevertheless, the trial court denied the motion to change venue
Our jurisprudence is replete with instances where despite high exposure to publicity before the trial, the trial judge denied the motion for change of venue, and this Court held that such denial did not result in reversible error. In State v. Frank, supra, voir dire demonstrated that 110 out of 113 venire members (97%) had been exposed to some publicity surrounding the case, and 89% of the prospective jurors indicated they had been exposed to information about the case on more than one occasion or from multiple sources. See also Hoffman, 98-3118 at p. 9, 768 So.2d 542, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); [72 out of 90 prospective jurors (80%) had awareness of the case before trial]; State v. Connolly, supra, [although 120 out of 139 potential jurors (86.33%) possessed some knowledge about the crime, most had only a vague recollection of the surrounding facts].
Conclusion
When we consider the fact that 97% and 98% of the prospective jurors in Frank, Montz, and in this case, were exposed to pretrial publicity and were familiar with the facts of the case, yet the trial judges reached disparate results on the question whether the jurors could put aside preconceived notions as to the guilt or innocense of the defendant, and make an unbiased judgment, my preference would be appellate review, pretrial, of whether the trial court abused its discretion, rather than a review of this issue at the end of a very expensive trial on the merits.
The record shows the receipt the carwash provided definitively established the time she was there. This fact was further corroborated by surveillance films of the carwash at the time Pace was on the premises.
Julia Naylor, the forensic analyst with the Louisiana State Police Crime Lab, testified that trace evidence is usually referred to as very minute samples, such as hair. Trace evidence is almost anything that if you move the body of a victim it could get lost, damaged or contaminated.
The room is darkened as much as possible and a blue light is shone. In the present case, room darkness was achieved by closing the bedroom door and hanging either cloth or black paper over the bedroom window. The technician, through the use of a pair of orange glasses, was then able to see biological stains which fluoresce in the blue light. .As noted in Dr. Cramer’s autopsy report, Pace received blunt head injuries, including a fractured skull and blunt trauma to the eyeballs. Such injuries would have been consistent with blows inflicted with the iron.
At the time of trial the whereabouts of Dr. Michael Cramer were unknown. Dr. Cramer also performed the autopsies of Gina Wilson Green and Carrie Yoder.
A review of the record shows a vaginal washing is obtained when the medical examiner, using a syringe containing sterile water, injects the sterile water into the vaginal area and then the liquid is suctioned out and placed into a tube for laboratory analysis.
Neither the Zachary Police Department nor the Louisiana Attorney General's Office were members of the Multi-Agency Homicide Task Force.
So as not to be confusing, we point out that defendant, Derrick Todd Lee, was also indicted in West Baton Rouge Parish with the first-degree murder of Geralyn Barr DeSoto, a violation of La.Rev.Stat. Ann. § 14:30. The State later amended the indictment to charge defendant with second-degree murder, a violation of La.Rev.Stat. Ann. § 14:30.1. The defendant pled not guilty and his trial began in West Baton Rouge Parish on August 2, 2004. After a trial by jury, defendant was found guilty as charged and the trial court sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The Court of Appeal, First Circuit, affirmed defendant's conviction and sentence. State v. Lee, 2005-0456 (La.App. 1 Cir. 5/16/07), 964 So.2d 967.
In the present case, the subpoena duces tecum commanded Lee "to produce a DNA specimen, instanter ... and herein fail not under penalty of law.” As provided in La. Code Crim. Proc. Ann. art. 66(B), “[t]he contumacious failure or refusal of the person subpoenaed to appear is punishable as a contempt of court.” As an ancillary to that provision, it is also recognized in the jurisprudence that a person subpoenaed or ordered to appear may at any time seek protection by the court from hardship or abuse of process by moving to modify or quash the subpoena or order. See In re, Grand Jury Subpoenas, 363 So.2d 651, 655 (La.1978) (recognizing the motion to quash in the context of a grand jury subpoena). As authority for the motion to quash, the court in In re, Grand Jury Subpoenas cited La.Code Crim. Proc. Ann. art. 17 where it is recognized the district court possesses inherently all powers necessary for the enforcement of its orders and the performance of its duty to require that criminal proceedings be conducted with dignity, orderliness and justice. In addition, La.Code Crim. Proc. Ann. art. 732 provides: "A subpoena may order a person to produce at the trial or hearing, books, papers, documents, or any other tangible things in his possession or under his control, if a reasonably accurate description thereof is given; but the court shall vacate or modify the subpoena if it is unreasonable or oppressive.” While in its brief the State argues that the recipient of the subpoena duces tecum can challenge its requirements before a magistrate, the subpoena at issue in the present case ordered the production of the DNA sample instanter, thus not allowing such a challenge here.
Voir dire examinations spanned from September 13, 2004 to October 4, 2004.
For other cases in which a change of venue was denied see State v. Connolly, 96-1680 (La.7/1/97), 700 So.2d 810, 815 (although 120 of 139 potential jurors (86%) possessed some knowledge of the crime, most had only a vague recollection of the surrounding facts); State v. Wilson, 467 So.2d 503, 513 (La.1985) ("Although a majority of prospective jurors (i.e., 24 of 39 or 62%) admitted exposure to pretrial publicity, only four (10%) were excused for cause on ground of their formation of a fixed opinion.”); State v. Clark, 442 So.2d 1129, 1133 (La.1983) (motion for change of venue granted based on dry run voir dire in which 37 of 38 jurors recalled details of crime and only six out of 24 (25%) jurors in the last two groups questioned indicated that their knowledge would not affect their decision whereas 47% conceded prior knowledge would); State v. David, 425 So.2d at 1247 (out of 112 jurors, 27 (24%) had read or heard about the case, but only six of those 27 had an opinion, and all four jurors [3%] who said that they could not put their opinion aside were excused for cause); State v. Rodrigue, 409 So.2d 556, 559 (La.1982) (in a mock voir dire set up in order to determine the impact of media coverage by the court, 26 of 30 prospective jurors had read about the case, but only nine (30%) had fixed an opinion which satisfied the court that a jury could be chosen in that parish); State v. Wright, (La.App. 2 Cir. 5/19/06), 931 So.2d 432 (of 44 prospective jurors, 15 indicated that they had neither read nor heard anything about the case and while 11 challenges for cause were granted, not all were granted on the issue of media coverage (no more than 22%), and only 6 had formed an opinion regarding guilt); State v. George, 37,492, 855 So.2d at 871 (of 40 persons questioned during voir dire, only eight (20%) were excused because of the pretrial publicity and its taint); State v. Hundley, 99-1156, (La.App. 3 Cir. 3/22/00) 760 So.2d 417, 419 (pretrial publicity did not taint jury pool to extent that it was impossible for murder defendant to receive a fair trial, and thus, defendant was not entitled to change of venue, when 15 out of 60 prospective jurors (25%) were excused for cause based on pretrial publicity, and defendant used only 11 of his 12 peremptory challenges); State v. McLemore, 26,106 (La.App. 2 Cir. 6/24/94), 640 So.2d 847, 855 (no error where 100% of 36 potential jurors had heard or read something about the case and of that number, seven (19%) reported that they had a fixed opinion, and three jurors dismissed for cause (8%) because remaining prospective jurors demonstrated only a cursory familiarity with the case and all denied that published accounts of the case would affect their ability to apply the law fairly); see also Mills v. Singletary, 63 F.3d 999, 1011-12 (11th Cir.1995) (newspaper articles and television reports about victim's murder and defendant’s arrest did not give rise to presumption of prejudice necessary to require change of venue in capital murder case on grounds of pretrial publicity; most newspaper articles did not mention defendant and instead reported on progress of search for victim, articles that mentioned defendant did so in context of reporting unfolding case, there were no editorials concerning case, and less than 15% of jury venire was excused for bias); Knapp v. Leonardo, 46 F.3d 170, 177 (2d Cir.1995) (jury not prejudiced though extensive pretrial publicity resulted in dismissal of 83% of 1,417 venirepersons for cause because jurors questioned regarding publicity only had vague recollection of press coverage and said nothing they might remember would prevent them from reaching a fair judgment).
The constitutional standard of fairness requires a defendant have a panel of impartial, indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct 1639, 1642, 6 L.Ed.2d 751 (1961). To hold the mere existence of any preconceived notion about the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), citing Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642. "At the same time, the juror's assurances that he is equal to this task cannot be dispositive of the accused's rights, and it remains open to the defendant to demonstrate the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.” Id.
As noted by the West Baton Rouge Parish trial court during the DeSoto case, there was unlikely to be anyone in the state who had not heard of the South Louisiana Serial Killer.
At no time in brief or in argument before us does the defendant contend the evidence was insufficient to prove the other crimes relied upon by the State.
Cf. Old Chief v. United States, 519 U.S. 172, 187, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997)(''Evidence ... has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.”).
Defendant claims that La.Code Crim. Proc. Ann. art. 905.5.1 is unconstitutional in that it calls for a jury to make the determination of mental retardation rather than through a pretrial determination by the court. Moreover, defendant claims the guilt phase verdict form and jury instructions created an unacceptable risk that individual jurors were prevented from finding mental retardation existed because the jury was required to find retardation unanimously. As an initial matter, this Court has already thoroughly addressed the claim that La Code Crim. Proc. Ann. art. 905.5.1 is unconstitutional and found it without merit. State v. Turner, 05-2425, p. 12 (La.7/10/06), 936 So.2d 89, 99 ("[njeither Atkins nor other controlling legal principles compel the selection of a specific fact finder regarding mental retardation or require the determination be made at a specific point in the adjudication process.”). As to the jury instructions, defendant failed to object to it and thus waived the claim here. La.Code Crim. Proc. Ann. art. 801(C); La.Code Crim. Proc. Ann. art. 841; State v. Draughn, 950 So.2d at 622 (applying La.Code Crim. Proc. Ann. art. 801(C) to claims of jury instruction error); State v. Wessinger, (La.5/28/99), 736 So.2d at 180 (applying contemporaneous objection rule to penalty phase errors short of Rule 28 arbitrary facts in penalty phase of a capital trial).
In a significant departure from the procedures established by this Court in Williams, the new legislation calls for a jury to determine whether a defendant is exempt from capital punishment by reason of mental retardation.
Dr. Gouvier admitted there were aspects of defendant’s psychological history he was given that were impossible to verify and that it was possible he could get a false impression of defendant's history from his wife and mother. Dr. Sarah Deland, a forensic psychiatrist, noted a similar motivation of family members to be less than truthful in their testimony. .His communications deficit was not "grossly” deficient. Furthermore, on another test, defendant was scored as having an IQ of 81. That test, however, had a lowest possible score of 80, and was said less reliable.
It should be noted one of the component scores of the average IQ was a 91, achieved after defendant repeated the fourth grade.
On December 31, 2004, Levon Jones, an African-American college student athlete from Georgia was celebrating New Years Eve on Bourbon Street with a group of friends and family members. The group was denied admission to Razzoo's Bar, purportedly because of a dress code violation by one of the group members. During an ensuing scuffle, Jones was fatally injured by the bar’s security personnel (a/k/a "bouncers”) stationed at the barroom entrance. Several bystanders videotaped the incident and those videotapes subsequently were shown in the television coverage of the student’s death.
STATE of Louisiana v. Derrick Todd LEE.
No. 2007-K-1288.
Supreme Court of Louisiana.
March 7, 2008.
In re Lee, Derrick Todd; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 034925; to the Court of Appeal, First Circuit, No. 2005 KA 0456.
Denied.
STATE of Louisiana v. Derrick Todd LEE.
No. 2011-KP-0731.
Supreme Court of Louisiana.
April 13, 2011.
In re Lee, Derrick Todd; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 6-03-655.
Stay denied; writ denied.
STATE of Louisiana v. Derrick Todd LEE.
No. 2011-KP-0955.
Supreme Court of Louisiana.
Jan. 13, 2012.
In re Lee, Derrick Todd;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-03-0655.
Denied.
STATE of Louisiana v. Derrick Todd LEE.
No. 2011-KP-0956.
Supreme Court of Louisiana.
Jan. 13, 2012.
In re Lee, Derrick Todd; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-03-0655.
Denied.
STATE of Louisiana v. Derrick Todd LEE.
No. 2012-KK-1931.
Supreme Court of Louisiana.
Nov. 9, 2012.
In re Lee, Derrick Todd; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 034925; to the Court of Appeal, First Circuit, No. 2012 KW 0872.
Denied.
STATE of Louisiana v. Derrick Todd LEE.
No. 2014-KP-2374.
Supreme Court of Louisiana.
Sept. 18, 2015.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Writ denied. We find relator has not carried his post-conviction burden of proof and thus, the District Court did not err when it dismissed his claims for the reasons it assigned in denying relief. La.C.Cr.P. art. 930.2. It is well-established that the District Court may dispose of an application for post-conviction relief without conducting an evidentiary hearing, even if the application states a claim on which relief could be granted, if the issues raised can be resolved on the application, answer, and supporting documents, including relevant transcripts, depositions, and other reliable documents submitted by either party or that are available to the court. La.C.Cr.P. art. 928; La.C.Cr.P. art. 929(A); see State ex rel. Tassin v. Whitley, 602 So.2d 721, 722-23 (La.1992) (only “[w]hen there is a factual issue of significance that is sharply contested” need the court hold a hearing); see also art. 929 cmt.; Cheney C. Joseph, Jr., Developments in the Law: Postconviction Relief, 41 La.L.Rev. 632, 635-37 (1981) (reporter of Court committee which drafted statute reviews judge’s role in summary rulings).
After a lengthy trial in 2004, an East Baton Rouge Parish jury unanimously found relator guilty as charged of the first degree murder of Charlotte Murray Pace and, after the sentencing hearing, unanimously voted to impose a sentence of death. In addition to evidence of Pace’s murder, the State presented evidence of relator’s guilt in four unx-elated homicides and one attempted homicide in which the surviving victim had positively identified relator. This Court affirmed his conviction and sentence on appeal, State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, and the United States Supreme Court denied certiorari. Lee v. Louisiana, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).
In 2009, relator filed a pro se “shell” application for post-conviction relief and requested counsel. Thereafter, counsel enrolled and filed three supplements, raising 42 claims. On August 19, 2014, the District Court summarily denied relief, assigning written reasons. We find no error in the District Court’s thorough ruling and thus, no basis for remanding for an evidentiary hearing and no grounds for vacating his conviction or sentence. Most of relator’s claims fail because they were addressed in his appeal and thus are repetitive.
First, relator has not shown he was denied a fair trial as a result of inadequate funding. He claims the District Court underestimated the cost of independently testing the DNA and forensic evidence and he was thereby unable to afford the kind of detailed inquiry that was necessary to expose the allegedly unorthodox practices of the Louisiana State Police Crime Lab (LSPCL). The record shows that, before trial, the District Court allocated the full balance of the budget for the East Baton Rouge Public Defender’s Office, $37,000, for relator’s defense and approved funding for a pathologist, a serial killer expert, a social worker, a tool mark expert, a psychologist, and DNA experts. Lee, 05-2098, pp. 40-41, 976 So.2d at 137-38. The adequacy of these allocations was addressed on appeal and this Court found relator failed to justify his claimed need for additional funds. Id, pp. 40-43, 976 So.2d at 137-38 (citing State v. Touchet, 93-2839 (La. 9/6/94), 642 So.2d 1213). In particular, this Court noted relator had been afforded funds for DNA experts and that lead counsel’s caseload had consisted of only one other client. Lee, 05-2098, pp. 42-43, 976 So.2d at 138 (citing State v. Peart, 621 So.2d 780 (La.1993) (excessive caseload may result in failure to provide effective assistance)).
In re-urging his funding complaints post-conviction, relator has alleged there existed significant doubt as to the presence of sperm on Pace’s body and that only unreliable evidence linked him to the other victims. Other than mere technical allegations, relator does not assert or provide any evidence suggesting he should have been excluded as the source of the DNA recovered from Pace or the other victims. Nothing relator has offered post-conviction establishes that any amount of additional funding would have given rise to discovery of evidence excluding him as the DNA contributor dr casting reasonable doubt on the State’s case. Thus, relator has failed to show prejudice as a result of the allegedly insufficient funding and failed to show his similar complaints were incorrectly disposed of in the proceedings leading to trial or on appeal. We find the District Court correctly dismissed these claims.
We find relator has also not shown the State’s evidence was insufficient to support his conviction and sentence. In his view, the evidence collected from Pace’s body was unreliable and the State failed to prove she was raped because his post-conviction expert found no detectable spermatozoa on her vaginal or cervical swabs. As an initial matter, although more often raised on appeal, timely freestanding claims challenging the sufficiency of the evidence are cognizable on collateral review. State ex rel. Montgomery v. State, 12-2116 (La.3/15/13), 109 So.3d 371. “In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime ■ had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).
Here, the jury found relator acted with specific intent to kill Pace while engaged in the perpetration or attempted perpetration of an aggravated rape. R.S. 14:30(A)(1). To show he committed or attempted to commit aggravated rape, the State was required to prove beyond a reasonable doubt relator had or attempted to have “anal, oral, or vaginal sexual intercourse” with Pace while she resisted to the utmost, but was overcome; that Pace was prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution; or that Pace was prevented from resisting because relator was armed with a dangerous weapon. R.S. 14:42.
We find the State presented ample evidence to make the required showings. Jurors heard from forensic analyst Julia Naylor, who, with the assistance of crime scene investigators, took swabs frqm Pace’s breasts and nipples, voided areas near her rib cage, left buttock just below her vagina, and left thigh. Lee, 05-2098, p. 3, 976 So.2d at 116. These samples were important because an Alternate Light Source test conducted at the scene revealed biological stains on those portions of her body. Id. According to Naylor’s trial testimony, there was seminal fluid on Pace’s left buttock, vagina, and cervix and the “most complete DNA profile” came from the left buttock sample. Lee, 05-2098, pp. 2-5, 976 So.2d at 116-17. The probability of relator being randomly matched with the genetic profile recovered from Pace’s body was one in 3.6 quadrillion. Id.
, The jury .apparently credited this evidence, which indicated the presence of semen on or near Pace’s genitals, and the presence of relator’s DNA, coupled with the defensive wounds that Pace sustained, and determined relator had raped or attempted to rape her during the ■ brutal attack in which he violently killed her. Lee, 05-2098, pp. 2-5, 976 So.2d at 116-17 (“[Tjhere were a number of defensive wounds on Pace’s arms, forearms’, hands and wrists”). The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the. testimony of any witness. State v. Mussall, 523 So.2d 1305, 1310 (La.1988). Relator has not shown the jury’s determinations were unreasonable and has not shown the State failed to carry its burden of proof. In urging there existed no proof of sexual intercourse, he emphasizes limited portions of his post-conviction expert’s report which opined that some of the LSPCL’s tests were susceptible to misinterpretation. In relying on those select portions of his expert’s nuanced and technical ad hoc opinions, however, relator ignores that his expert, within the same report, acknowledged the existence of reliable proof that Pace had been raped: ’her vaginal, cervical, and buttock swabs tested positive for P30 fluid, which the report characterized as presumptive evidence of semen. We find this claim meritless and the District Court correctly dismissed it.
Relator has also failed to show counsel - rendered ineffective assistance during the guilt phase of trial. Under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by this Court in State v. Washington, 491 So.2d 1337, 1339 (La.1986), a reviewing court .must reverse a conviction if the defendant establishes (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s inadequate ^performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect.
Not only, has relator failed to show counsel overlooked any evidence capable of casting reasonable doubt on the State’s case, see generally Jones v. Jones, 988 F.Supp. 1000, 1002-03 (E.D.La.1997) (before reviewing court will reverse for counsel’s failure to investigate, inmate must show attorney has “fail[ed] to investigate a plausible line of defense or interview^ available witnesses.”), he has also failed to show that even if counsel could have somehow more vigorously contested the State’s case it would have affected the verdict in a case in which he was matched with DNA recovered from Pace’s body and his own post-conviction expert has acknowledged the evidence of sperm on her genitals.
Relator also fails to show counsel unreasonably elected not to seek to suppress the DNA evidence. In relator’s view, The State’s DNA evidence was unreliable because much of it was “mixture evidence” based on small sample quantities and because the State’s technicians allegedly failed to apply generally-accepted methods when undertaking some aspects of their analyses. He argues further he has been prevented from independently reviewing the DNA evidence because the State has refused to disclose its raw electronic data.
In evaluating ineffective assistance of counsel claims based on a failure to pursue. a motion to suppress, courts normally require a petitioner to show the overlooked motion to suppress would have been meritorious and that there is a reasonable probability the jury would have reached a different verdict absent the introduction of the unlawful evidence. Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir.2003) (citing Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). Thus, if a reasonably competent attorney could have suppressed the evidence and as a result, the State would have dismissed the charges, the petitioner may show a basis for relief. See Northrop v. Trippett, 265 F.3d 372, 383-84 (6th Cir.2001) (en banc) (conviction vacated based on ineffective assistance: “[during his representation, [counsel] knew that police had arguably seized Northrop based upon no more than an anonymous tip without any supporting verifiable detail.... Without the inadmissible cocaine evidence, Michigan would obviously have failed to meet its burden of proving Northrop possessed the cocaine.”); State v. Reichenbach, 153 Wash.2d 126, 101 P.3d 80, 87 (Wash.2004) (because contraband was illegally seized there existed no tactical basis for failing to move to suppress it; counsel’s performance clearly prejudicial).
Under the standard set in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which this Court adopted in State v. Foret, 628 So.2d 1116, 1121 (La.1993) (La.C.E. art. 702 “virtually identical to its source provision in the Federal Rules of Evidence ... [Rule] 702”), the District Court is required to perform a “gatekeeping” function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. Acting as gatekeeper, the District Court has considerable leeway to determine whether expert testimony is reliable. Kumho Tire Company, Ltd., v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999). In the end, “the trial judge must determine whether the testimony has ⅛ reliable basis in. the knowledge and experience of [the relevant] discipline.’ ” Id. at 149, 119 S.Ct. at 1174 (quoting Daubert, 509 U.S. at 592, 113 S.Ct. at 2796). “Whether Daubert’s specific factors are, or are not, reasonable measures of reliability ... is a matter that ... the trial judge [has] broad latitude to determine,” and, therefore a decision to admit or exclude is reviewed under an abuse of discretion standard. Id., 526 U.S. at 153, 119 S.Ct. at 1176; State v. Edwards, 97-1797, pp. 24-25 (La.7/2/99), 750 So.2d 893, 908-09.
lsRelator has argued the DNA evidence would have been found unreliable, and therefore inadmissible, if counsel had filed a motion to suppress. Although he and his post-conviction expert take issue with various methodologies employed by the State’s forensic analysts and claim that a full independent review remains impossible absent the raw electronic data, relator has not shown or even asserted that the State’s DNA results were incorrect. He offers nothing to show his DNA profile should have in fact been excluded as a source of the DNA samples recovered from Pace or any of the other victims’ bodies but rather seeks merely to cast doubt on isolated processes within the series of complex steps carried out by the analysts. Moreover, he ignores the reality the DNA expert he hired in preparation for trial, also apparently failed to find any meritorious basis upon which to contest the State’s evidence. Lee, 05-2098, pp. 40-41, 976 So.2d at 137—38. Accordingly, he has not shown the District Court would have granted a motion to suppress.
In addition, the District Court did not unreasonably fail to order the State to disclose its raw electronic data given -that the State has provided all the DNA test records in paper form. Even more importantly, the State made available samples of all the DNA evidence so relator could conduct independent testing in furtherance of his post-conviction claims. See State v. Franklin, 03-3072 (La.4/23/04), 872 So.2d 1051 (per curiam). In urging entitlement to the State’s raw electronic data, relator has not offered any explanation as to why he apparently declined to take advantage of the opportunity to carry out his own testing. The District Court did not erroneously dismiss these claims.
Moreover, relator’s claims contesting the admission of other crimes evidence and the denial of counsel’s motion for change of venue were considered and rejected on appeal. Lee, 05-2098, 976 So.2d 109. A petitioner’s attempt to re-jhtigateg a claim that has been previously disposed of, by couching it as a post-conviction ineffective assistance of counsel claim, is generally unavailing. We find the District Court correctly rejected these claims as repetitive. See La.C.Cr.P. art. 930.4(A).
Finally, relator has failed to show that relief is warranted as a result of counsel’s claimed failures at the penalty phase. A defendant at the penalty phase of a capital trial is entitled to the assistance of a reasonably competent attorney acting as a diligent, conscientious advocate for his life, State v. Fuller, 454 So.2d 119, 124 (La.1984); State v. Berry, 430 So.2d 1005, 1007 (La.1983); State v. Myles, 389 So.2d 12, 28 (La.1980) (on reh’g); see also Burger v. Kemp, 483 U.S. 776, 788-89, 107 S.Ct. 3114, 3122-26, 97 L.Ed.2d 638 (1987), and counsel’s dereliction may warrant relief even if the defendant has been convicted of a particularly egregious crime. See, e.g., Williams v. Taylor, 529 U.S. 362, 368, 120 S.Ct. 1495, 1500, 146 L.Ed.2d 389 (2000) (committed two assaults on elderly women, leaving one in a persistent vegetative state) and Rompilla v. Beard, 545 U.S. 374, 377, 125 S.Ct. 2456, 2460, 162 L.Ed.2d 360 (2005) (stabbed victim repeatedly before setting fire to his body). To show ineffectiveness as a result of counsel’s failure to present mitigating evidence, a petitioner must establish that: (1) counsel failed to undertake “a reasonable investigation [which] would have uncovered mitigating evidence;” and (2) failing to put on the available mitigating evidence “was not a tactical decision but reflects a failure by counsel to advocate for his client’s cause;” (3) which caused “actual prejudice.” State v. Hamilton, 92-2639, p. 6 (La.7/1/97), 699 So.2d 29, 32 (citing State v. Brooks, 94-2438 (La.10/16/95), 661 So.2d 1333 and State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272).
Relator asserts counsel failed to discover evidence of his frontal lobe abnormalities, nightmarish childhood, and diverse frailties. He points to omitted 11 nevidence indicating he has bipolar and other disorders; that his father abandoned him as an infant; that he suffered from and witnessed abuse at the hands of his stepfather; and that his family has a history of mental illness. In relator’s view, had this evidence been presented, at least one juror would have voted for a life sentence.
However, even assuming arguendo counsel unreasonably failed to discover and present the omitted mitigating evidence, relator has not shown it would have created a reasonable likelihood of a different sentencing verdict in a case in which the jury heard substantial evidence of his intellectual disability and adaptive impairments in furtherance of his mental retardation claim. See, e.g., Wesbrook v. Thaler, 585 F.3d 245, 253 (5th Cir.2009) (no reasonable probability that the penalty phase outcome would have been different with the omitted evidence of defendant’s frontal lobe damage because it was largely duplicative of other testimony). Relator has not shown the District Court erroneously dismissed this claim.
This Court’s review has revealed the District Court correctly dismissed each of relator’s claims for post-conviction relief and no relief is further warranted. As an appendix to this per curiam, we attach hereto and make a part hereof the District Court’s well-considered reasons denying relator post-conviction relief.
In conclusion, the record shows that after relator’s conviction and sentence became final on direct review, State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, cert. denied, Lee v. Louisiana, 555 U.S. 824, 129 S.Ct 143, 172 L.Ed.2d 39 (2008), relator initiated state collateral proceedings by filing an application for post-conviction relief in the District Court as required by La.C.Cr.P. art. 925. Several supplemental applications followed along with sweeping discovery requests and several years of extensive litigation. State ex rel. Lee v. Cain, 11-2683 (La.9/21/12), 98 So.3d 323; State ex rel. Lee v. Cain, 11-1933 (La.1/13/12), 77 So.3d 955; State v. Lee, 11-0956 (La.1/13/12), 78 So.3d 129; State v. Lee, 11-0955 (La.1/13/12), 77 So.3d 953; State ex rel. Lee v. Cain, 11-843 (La.1/13/12), 77 So.3d 964. Similar to federal habeas, see 28 U.S.C. § 2244, Louisiana’s post-conviction procedures envision the filing of second or successive petitions only under the narrow circumstances provided for in La.C.Cr.P. art: 930.4. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against granting relief on successive filings mandatory. ' Relator’s claims are now all at the cusp of being fully litigated in state collateral proceedings in accordance with La.C.Cr.P. art. 930.6 and, if rehearing is not sought or granted in accordance with La.S.Ct. Rule 9, the denial of relief will become final. Thereafter, unléss relator can show that one of the narrow exceptions authorizing the fifing of a successive application applies, relator has exhausted his right to state collateral review.
CRICHTON, J., additionally concurs with reasons.
[OPINION BY CRICHTON, J., type=concurrence]
CRICHTON, J.,
additionally concurs and assigns reasons.
hi concur in the reasons set forth in the per curiam and emphasize in addition that Lee has shown no entitlement to post-conviction relief as a result of trial counsel’s alleged failings at the capital penalty phase of the proceedings.
The brutal and vicious manner in which Lee killed Pace cannot be "ignored. Pace bled to death as á result of the'81 knife and screwdriver wounds that Lee inflicted. State v. Lee, 05-2098, pp. 2-4 (La.1/16/08), 976 So.2d 109, 116-17. He slashed her throat - and used a clothing iron, which investigators found blood-stained and broken into pieces, to bludgeon her head, fracture her skull, and crush her eyeballs. Id. p. 3 n. 4, 976 So.2d at 116. Her heart, fiver, and lungs were each perforated three times and a stab wound to her eye was so forceful that it penetrated the cranial cavity. Id. Pace also sustained several defensive wounds as she attempted to ward off the terrorizing attack. Id. In addition to the grisly details of Pace’s murder, the jury also heard evidence that Lee perpetrated at least four similarly heinous attacks on other women.
Against this overwhelming and horrific evidence, Lee now complains about his appointed lawyer’s performance during the penalty phase, contending that counsel unreasonably failed to discover and present additional mitigating evidence. Specifically, he points to omitted evidence of his frontal lobe abnormalities; bipolar disorder;. depression; schizophrenia; mood disturbances; split personality disorder; family history of mental illness; and of the physical abuse he suffered at the hands of his stepfather when he attempted to intervene to prevent his stepsister from being molested. In Lee’s view, this omitted evidence would have swayed at least one juror against the death penalty.
Complaints about counsel’s performance at the penalty phase of a capital trial, like other allegations of counsel’s ineffectiveness, are governed by the well-established Strickland test, according" to which counsel’s decisions are afforded a heavy measure of deference. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984). The right to the effective assistance of'counsel does not guarantee errorless counsel-but rather, counsel likely to render effective assistance. See U.S. Const. amend. VI; La. Const. art. I, § 13; State v, Ratcliff, 416 So.2d 528, 531 (La.1982). Counsel ⅛ not necessarily required to mine a defendant’s entire life history in search of mitigating evidence; and decisions regarding the presentation of mitigating evidence should generally be viewed as strategic and not later second-guessed.’ See State v. Felde, 422 So.2d 370, 393 (La.1982) (that a particular strategy fails does not establish ineffective assistance); cf. Sanders v. State, 738 S.W.2d 856, 858 (Mo.1987) (“The selection of witnesses and the introduction of evidence are questions of trial strategy and the mere choice of trial strategy is not a foundation for finding ineffective assistance of counsel.”).
■Even in cases in which a capital post-conviction petitioner has shown that counsel’s penalty phase performance was somehow deficient, no relief is due unless he has also shown a reasonable probability that, absent counsel’s faffing, the jury would have concluded that the balance of all aggravating and mitigating Isrircumstances did not warrant the death penalty. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69. In other words, no relief •is due-even if counsel’s presentation of mitigating evidence was not as thorough as it could have been-unless the omitted evidence would have been likely to change the sentencing verdict. See State v. Hamilton, 92-2639, pp. 6-10 (La.7/1/97), 699 So.2d 29, 32-34 (affirming conviction but vacating death sentence in light of finding that “[djefense counsel did nothing in the penalty phase except offer the meager testimony he pi’esented at the guilt phase and give a lackluster two paragraph closing argument.”); State v. Sanders, 93-0001, p. 25 (La.11/30/94), 648 So.2d 1272, 1291, cert. denied, 517 U.S. 1246, 116 S,Ct. 2504, 135 L.Ed.2d 194 (1996).
In the instant case, defense counsel presented substantial evidence at the penalty phase in an effort to demonstrate Lee’s intellectual disability and show why he should be spared the death penalty, Counsel presented expert testimony indicating that Lee’s results on the Wechsler Adult Intelligence Scale (WAIS-III) and the Vineland Adaptive Behavior Scale were consistent with a diagnosis of mild mental retardation; testimony from a board-certified neuropsychologist who opined that Lee was mildly mentally retarded, demonstrated communication deficits and lacked capacity for self-direction; evidence that Lee was enrolled in special education and speech therapy as a child; and testimony from a board-certified forensic psychiatrist who explained that she had interviewed Lee (like all criminals) with a skeptical eye and opined with reasonable medical certainty that he was mildly mentally retarded, in light of his inability to remember chronology of past events, frequent self-repetition, and inability to grasp abstract concepts. Lee, 05-2098, pp. 53-54, 976 So.2d at 144-45. In addition, counsel elicited testimony from two school administrators and two teachers who encountered Lee during their careers and who recalled that he had been an average or below average student. Counsel also presented Lee’s younger sister, who, after expressing apologies for the victims’ families, recounted her memories of growing up with Lee and explained that although they sometimes argued, she loved him and they had always reconciled. She also acknowledged an incident when they were in their late teens which prompted her to file a complaint against Lee: while at the home she shared with their mother, she heard a knock on the locked door and looked outside to see that it was Lee. When she refused to let him in, for reasons unstated,' Lee removed the glass panel from the door, reached in, and unlocked it. Upon entering, he threatened physical violence and announced that he would come and go as he pleased and no one could do anything to stop him.
In urging entitlement to post-conviction relief, Lee. bemoans counsel’s failure to discover and present evidence of his frontal lobe abnormalities and various alleged mental health problems, including bipolar disorder and schizophrenia; his family’s history of mental illness; and the physical, abuse he suffered and observed as a child. Even assuming, however, that counsel’s presentation of mitigating 'evidence was unreasonably limited, see Hamilton, 92-2639, p. 6, 699 So.2d at 32, and possibly' less than beneficial to his defense — to the extent it created an impression he was an average or below average student who generally got along with others, and who, as a young adult, began to exhibit a propensity for violence — Lee has not made the required showing that he suffered prejudice as a result.
In’ my view, nothing Lee has offered post-conviction would have outweighed the atrocious nature of his crimes. See, e.g., Bobby v. Van Hook, 558 U.S, 4, 12-13, 130 S.Ct. 13, 20, 175 L.Ed.2d 255 (2009) (weighing aggravating ' circumstance that defendant stole victim’s goods, killed him, and then disfigured his body, in concluding that omitted mitigating evidence would not have affected sentencing verdict); see also Strickland, 466 U.S. at 700, 104 S.Ct. at 2071 (“.Given the overwhelming aggravating factors,.there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed.”); State v.Code, 627 So.2d 1373 (La.1993) (affirming convictions and death sentences for serial' killer who committed eight heiiious killings) and Code v. Cain, 09-0113 (La.10/8/10), 46 So.3d 1258 (denying writs following district court’s dismissal of application for post-conviction relief in which defendant claimed, inter alia, that counsel rendered ineffective assistance by failing' to discover and present additional mitigating evidence). Even if all the omitted evidence had been presented, there would not have existed a reasonable probability of á different sentence in a case with such horrendous crimes and in which 'substantial evidence of Lee’s adaptive impairments was presented in furtherance of his mental retardation claim. Not every case in which counsel fails to present mitigating evidence requires setting aside the sentence. See Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (reinstating judgment of California Supreme Court that it was not probable a jury would find evidence that defendant’s childhood was troubled or that he had turned to drugs to escape an unbearable family life would outweigh that he committed a cold-blooded execution style murder of one victim and tried to kill another during planned armed robbery, stabbed one man in an unrelated incident, and stabbed a -pregnant woman trying to protect her unborn child); see also Schriro v. Landrigan, 550 U.S. 465, 480-81, 127 S.Ct. 1933, 1943-44, 167 L.Ed.2d 836 (2007) (evidence that defendant was exposed to alcohol and drugs in útero, was abandoned by birth mother and raised by alcoholic stepmother, and suffered poly-substance abuse at an earlier age, was so “weak” that district court did not err in denying an evidentiary hearing, given evidence that by age 30 he had murdered one man, repeatedly stabbed another, escaped from prison, and then killed another).
Given the compelling evidence that Lee committed five brutal murders marked by exceptional violence and unsuccessfully attempted another, he cannot show that counsel’s failure to present additional evidence that he may suffer from other mental disorders, whether or not related to his troubled upbringing, deprived him of a fair sentencing hearing or resulted in an unreliable recommendation of death. Rather, it appears likely that much of his “new” evidence would have been construed by jurors as cumulative of that presented in counsel’s effort to demonstrate his intellectual disability. Cullen v. Pinholster, 563 U.S. 170, 199-200, 131 S.Ct. 1388, 1409-10, 179 L.Ed.2d 557 (2011).
Lee also ignores the reality that,‘had counsel called additional experts to demonstrate his alleged mental illness or disorders, he would have further opened the door to rebuttal by state experts. See id. (citing Wong v. Belmontes, 558 U.S. 15, 24-25, 130 S.Ct. 383, 388-90, 175 L.Ed.2d 328 (2009) (per curiam) (taking into account that certain mitigating evidence would have exposed petitioner to further aggravating evidence)). Moreover, the allegedly wrongfully omitted evidence cannot be definitively characterized as entirely mitigating, given that jurors may have responded by finding Lee “simply beyond rehabilitation.” See Pinholster, 563 U.S. at 201, 131 S.Ct. at 1410 (citing Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (recognizing that mitigating evidence can be a “two-edged sword” indicating dangerousness)).
A balanced review of the aggravating and mitigating circumstances in this case, including those omitted, reveals that jurors would likely reach the same sentencing determination at a second hearing. See Pinholster, 563 U.S. at 198, 131 S.Ct. ,at 1408 (in assessing prejudice, reviewing court “reweigh[s] the evidence in ^aggravation against the totality of available mitigating evidence.”) (citing Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 2542, 156 L.Ed.2d 471 (2003)). Lee has not shown any entitlement to relief and the district court did not err when it dismissed this claim without an evidentiary hearing. La.C.Cr.P. art. 929(A).
As made clear in. the Court’s unanimous per curiam opinion, Lee has been afforded the assistance of appointed counsel and several years of access to Louisiana's courts for litigation of his post-conviction claims. Much like an inmate’s singular opportunity to seek relief in federal habeas proceedings, see 28 U.S.C. § 2244, after the delays for rehearing have run pursuant to La. Supreme Court Rule IX, this writ denial marks the end of Lee’s state court proceedings, finally bringing some measure of closure to the families of the multiple victims that have been irreparably affected by his hideous crimes.
With the end of state collateral review here, the statute of limitations governing the federal writ of habeas corpus will cease to be. tolled and, if rehearing is not sought or granted in accordance with La.S.Ct. Rule IX, the time to apply to the federal courts for habeas review resumes. See 28 U.S.C. § 2244(d)(2). Whether the one-year period of limitations of 28 U.S.C. § 2244(d)(1) or the six-month period of 28 U.S.C.A. § 2263(a) will be applied by the federal courts presents what may be a res nova issue. See 28 U.S.C. § 2261; cf. Mata v. Johnson, 99 F.3d 1261, 1266 (5th Cir.1996), vacated in part on other grounds, 105 F.3d 209 (5th Cir.1997), Regardless, Lee should be aware that, unless he can show one of the narrow circumstances provided in La.C.Cr.P. art. 930.4 applies, he has no further right to state review.