State v. Tucker

181 So.3d 590

STATE of Louisiana

v.Lamondre TUCKER.

No. 2013–KA–1631.

Supreme Court of Louisiana.

Sept. 1, 2015.

Rehearing Denied Oct. 30, 2015.

Caddo Parish Public Defender's Office, David R. McClatchey ; Capital Appeals Project, James William Craig, G. Benjamin Cohen, New Orleans, LA, Sarah Lynn Ottinger, Cecelia Trenticosta, Richard John Bourke, For Appellant.

Louisiana Department of Justice, James D. Caldwell, Attorney General, Caddo Parish District Attorney's Office, Dale G. Cox, District Attorney, Suzanne Owen, Assistant District Attorney, William Jacob Edwards, Assistant District Attorney, Sarah Midboe, Assistant District Attorney, For Appellee.

CLARK, Justice.^*

This is a direct appeal under La. Const. art. V, § 5 (D) by the defendant Lamondre Tucker.¹ In November 2008, a Caddo Parish grand jury indicted the defendant for the first degree murder of Tavia Sills, in violation of La. R.S. 14:30. After a trial, the jury found the defendant guilty as charged. At the conclusion of the penalty phase of the trial, the jury unanimously returned a verdict of death, finding the aggravating circumstances that: (1) the defendant was engaged in the perpetration or attempted perpetration of second degree kidnaping; and (2) the defendant knowingly created a risk of death or great bodily harm to more than one person. The trial court sentenced the defendant to death in accordance with the jury's determination. Defendant now appeals his conviction and sentence, raising 55 assignments of error, variously combined into 21 arguments.² After a thorough review of the law and the evidence, we find no merit in any of the assignments of error. Therefore, we affirm the defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

In September 2008, Tavia Sills was nearly five months pregnant. A few weeks earlier, she had informed 18–year–old Lamondre Tucker that she believed he was the father of her unborn child. On September 9, 2008, Tucker picked Tavia up at the home of her mother, Vickie Britton. Tucker claimed that his sister, Alexis Metcalf, had asked to meet Tavia after learning of the pregnancy. Before leaving, Tavia demonstrated some trepidation; she asked her mother to pray with her and then gave her defendant's phone number.

A few hours later Tucker returned without Tavia and informed Mrs. Britton that, at Tavia's request, he had dropped her off at the apartment of her older sister, Toquilla Sills. Mrs. Britton became alarmed because she knew her daughter Toquilla was not at home, as she had been hospitalized due to complications from her own pregnancy. Mrs. Britton contacted Shreveport police.

Sergeant John Youngblood investigated the missing person report. He spoke with Tucker at his high school, Booker T. Washington. Tucker told him that he had dropped Tavia off at the Prince Village Apartments in Shreveport. Sergeant Youngblood obtained surveillance videos from the apartment complex and discovered that Tucker, Tucker's car and Tavia did not appear in any of the videos.

On September 12, 2008, a couple fishing by a secluded pond near Legardy Street in Shreveport discovered the decomposing body of Tavia Sills floating in the water. Tavia had been shot three times. Two shots perforated soft tissue at the base of her neck and her upper arm. The fatal, penetrating shot was fired into her back, perforated her lung, and fractured a rib.

Tucker accompanied Detective Rod Demery, the lead homicide investigator, and Sergeant Youngblood to the police station the evening of September 12, 2008. Tucker was arrested, Mirandized, and interviewed around midnight. In an audio-recorded interview, Tucker claimed he took Tavia to meet his sister, who was not at home, so he dropped her off at the Prince Village Apartments. Detective Demery informed Tucker that the surveillance video proved that he was lying and the detective indicated that he was turning off the recorder. The detective, however, continued to record the interview. Tucker then explained that he dropped Tavia off on the corner near the Prince Village Apartments at her request (outside the range of the surveillance video). Defendant was transported to jail.

Late the next morning, after attending the autopsy, Detective Demery interviewed Tucker at the jail. The detective allowed Tucker to call and speak with his mother. Tucker then admitted that he had taken Tavia to the pond where her body was found. Near the pond, Tucker claimed he found a tackle box containing a pistol. Tucker claimed that when he held the pistol up it accidentally discharged, twice, hitting Tavia. Tucker said he then ran away and discarded the gun in a drainage canal near Linear Street just off of Dr. Martin Luther King Drive. Tucker agreed to accompany the detective to show him where he discarded the gun. A diver recovered a CZ .40 caliber semi-automatic pistol from the drainage canal. A firearms examiner later determined that three .40 caliber cartridge cases found by the pond were ejected when this pistol was fired. The firearms examiner was unable to determine, however, that the fatal bullet recovered during the autopsy was fired by the pistol (although it had the same general class characteristics).

Tucker, after being interviewed repeatedly throughout the day on September 13, 2008, eventually abandoned the tackle box story and admitted he had obtained the pistol from Marcus Taylor a few days before the shooting.³ Tucker said Taylor had accompanied them to the pond. Tucker claimed he offered to teach Tavia to shoot and he handed her the pistol. He said he tried to grab it back from her because she wasn't holding it in a safe manner, which is when it discharged twice accidentally. Tavia was shot and fell to the ground. Taylor suggested they call the police but Tucker was frightened and pushed Tavia, who was still alive, into the pond. Tucker said he then shot her again, deliberately this time to be certain she was dead, and Taylor used a branch to push her farther out into the water. Although the third shot would have been imminently fatal, the coroner could not exclude the possibility that Tavia had drowned.

During the course of the investigation, several witnesses were interviewed. Alexis Metcalf, Tucker's sister, confirmed that Tucker did not bring Tavia to meet her on September 9, 2008. Tavia's sister, Toquilla, confirmed that she was at the hospital on that date and said that Tavia in fact had visited her there earlier that day. Tamara Bates, the mother of Tucker's three-year-old son, told police she and Tucker had argued about the status of their relationship when she learned of Tavia's pregnancy just a few days before Tavia was reported missing. Chasmine Hamilton, Tucker's close friend, said Tucker confided in her when he learned Tavia was pregnant and expressed the desire to beat Tavia to cause a miscarriage. Charles Wilson, Tucker's friend, said that Tucker had asked him on September 11, 2008, to claim he saw him drop Tavia off at the Prince Village Apartments. Glen Taylor, another friend of Tucker, told police that Tucker told him that he and Marcus Taylor pushed Tavia into the pond, Tucker shot her, Tavia asked Tucker what he was going to tell his mother, and then Tucker shot her again. Catherine Golston, who lives near the pond, said she heard a young woman screaming nearby and looked and saw that she was pregnant. According to Golston, the young woman was afraid of the cattle that pastured along the path to the pond. Golston also heard Tucker's voice, which she recognized, trying to calm the young woman. Later she heard two gunshots and then a third.

Subsequent DNA testing proved that Tucker was not the father of Tavia's unborn child. Expert witnesses estimated that the male fetus was 19 weeks old, healthy, and barring unforeseen complications, believed Tavia would have carried him to full term and given birth to a healthy infant. The experts indicated that a 19–week–old fetus is not viable outside of the womb.

Tucker was indicted for first degree murder. By bill of particulars, the state clarified that Tucker committed first degree murder by killing Tavia Sills while engaged in the perpetration of a second degree kidnapping and when he had the specific intent to kill or inflict great bodily harm upon more than one person. Tucker filed a motion to suppress his statements, in which he contended they were involuntarily and unknowingly made, as well as made after he invoked his right to remain silent and to the assistance of counsel. The motion was denied after an evidentiary hearing held on March 10, 2010. At the hearing, the state presented the testimony of Detective Demery and Sergeant Youngblood that Tucker voluntarily accompanied them to police headquarters, was Mirandized, signed a rights waiver, and voluntarily gave a series of increasingly incriminating statements after initially denying any involvement. The defense presented the testimony of Tucker's grandmother, Ora Ellis, Tucker's mother, Alicia Tucker, and Tucker. According to Alicia Tucker and her son, Detective Demery promised that if Tucker would confess to an accidental shooting then the charge would be reduced to manslaughter and her impounded car would be returned to her.

Jury selection began on March 14, 2011, and was completed on March 19, 2011. Six panels of approximately 16 prospective jurors each were examined. Eight prospective jurors were excluded by joint agreement. For each panel, death qualification preceded general voir dire. During death qualification, the state challenged 35 prospective jurors for cause, of which 33 were granted, and the defense challenged 12 prospective jurors for cause, of which 6 were granted.⁴ During general voir dire, the state made three cause challenges, of which two were granted without objection by the defense, and the defense made 12 cause challenges, of which 8 were granted (6 without objection by the state). Nineteen peremptory challenges were exercised including two backstrikes.⁵ A jury of 12...